1997 Supreme(SC) 547

1997(4) Supreme 450
SUPREME COURT OF INDIA
K. Ramaswamy, S. Saghir Ahmad and G.B. Pattanalk, JJ.
Ashok Kumar Gupta & Anr. - Appellants
versus
State of U.P. & Ors. - Respondents
Civil Appeal No. 2239 of 1997
And
Writ Petition No. 511 of 1995
Both decided on 21-3-1997
Counsel for the Parties:
For the Appearing Parties: Raju Ramachandran, Sr. Adv., P.P. Tripathi, Anil Kumar Gupta, Rakesh Diwedi, (Adv. General for State), R.B. Misra, Arvind Verma, Prashant Kumar, R. Ayyam Perumal, Joseph Pookkatt, Dr. M.P. Raju, T.U. Rajan, S.P. Sharma, Ms. Mary Searia, Advocates.

IMPORTANT POINT
Principle of rule of reservation is applicable not only to initial recruitment but also in promotions where the State is of the opinion that the Dalits and Tribes are not adequately represented in promotional posts in a class or classes of services under the State.

Headnote:(i) SERVICE LAW - Reservations -Promotions - Whether reservation in promotion is bad in law or unconstitutional? - (No) - Policy of reservation is part of socio-economic justice - Right to promotion is a statutory right and not a fundamental right - Article 16(4A) r/w Articles - 16(1) and 14 of Constitution guarantees a right to promotion to Dalits and Tribes as fundamental right where they do not have adequate representation consistently with efficiency in administration - Egalitarian protective discrimination in favour of Dalits.

       Held that the principle of rule of reservation is applicable not only to initial recruitment but also in promotions where the State is of the opinion that the Dalits and Tribes are not adequately represented in promotional posts in a class or classes of services under the State. (Para 35)

       Further held, the policy of reservation is part of socio-economic justice enshrined in the Preamble of the Constitution, the fundamental rights under Articles 14, 15(1), 15(4), 16(1), 16(4), 16(4A), 46 and 335 and the other related Articles, to give effect to the above constitutional objectives.

       (Para 35)

       Right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or a class of posts depends upon the operation of the conditions of service. Article 16(4A) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as fundamental right where they not have adequate representation consistently with the efficiency in administration. The Mandai s case, has prospectively over ruled the ratio in Rangachari s case, i.e., directed the decision to be operative after 5 years from, the date of the judgment; however, before expiry thereof, Article 16(4A) has come into force from June 17, 1995. Therefore, the right to promotion continues as a constitutionally guaranteed fundamental right. In adjusting the competing rights of the Dalits and Tribes on the one-hand and the employees belonging to the general category on the other, the balance is required to be struck by applying the egalitarian protective discrimination in favour of the Dalits and Tribes to give effect to the Constitutional goals, policy and objectives referred to hereinbefore.

       (Para 36)

       (ii) SERVICE LAW - Reservations -Whether judgment in Mandal s case by Jeevan Reddy, J. prospectively overruling ratio in Rangachari s case is a majority judgment? - (Yes). (Constitution of India - Art. 145(3)

       Held that unless majority Judges comprised in the Bench concur on the opinion or the decision, it would not be a judgment and no such opinion shall be delivered by the Supreme Court. In Mandal s case, on the question of reservation in promotion, eight of the nine Judges participated in the opinion. Of them, Jeevan Reddy, J. spoke for himself, Kania, C.J.I. and Venkatachaliah, J. as he then was. Pandian and Sawant, JJ. also agreed with them. There is a considerable debate on Micro Lexicon Surgery conducted by the learned counsel for the appellants/petitioners drawing a distinction between conclusions and directions. The Micro Lexicon Surgery of the distinction between conclusions and directions leads us nowhere to reach satisfactory solution. One needs to adopt pragmatic approach to understand the conclusions reached and the directions given as part of the judgment in that behalf. Even if rule of strict interpretation is to be applied, as is sought by the learned counsel, Sawant, J. in paragraph 555 has indicated his concurrence with the conclusions of Jeevan Reddy, J. in paragraph 860(8) which includes directions contained therein. We have, to our benefit, the contemporaneous understanding that directions in paragraph 860(8) given by Jeevan Reddy, J. is a majority judgment and it gets reinforced from the approval thereof, as followed by the Constitution Bench, in R.K. Sabharwal s case. The presiding Judge therein, viz., Kuldip Singh, J., who was one of the nine Judges in Mandal s case, participated in the majority opinion on the issue of reservation in promotion. However, no opinion was expressed on the conclusions and directions of Jeevan Reddy, J. in para 860, the Constitution Bench having upheld the rule of reservation in promotion, proceeded to apply the law and worked out the rights of the Dalits in promotions in R.K. Sabharwal s case. It is true that there is no positive indication of a finding to that effect in Sabharwal s case but the fact that the presiding Judge therein was one of the members of the nine-Judge Bench in Mandal s case, and that the Constitution Bench considered and upheld the right to reservation in promotion to the Dalits and Backward Classes and applied the roster points to such promotions, itself goes to point out and reassure us that prospective overruling of Rangachari s case by Jeevan Reddy, J. is a majority opinion.

       (Para 38)

       (iii) MANDAL CASE - Whether prospective over-ruling of Rangachari s case, to be operative after five years from date of Mandal s case, amounts to judicial legislation? - Whether such a decision is void when it offends fundamental rights under Art. 13(2) of Constitution? - (No) - It is a declaratory law under Article 141 of Constitution -Whether such a declaration is inconsistent with Constitution or in derogation of fundamental rights? (No)

       Held; evolving of the appropriate rule to give effect to the decision of the Court over-ruling its previous precedent, is one of judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law operated prior to the date of the judgment over-ruling the previous law.

       (para 47)

       Article 13(2) envisages situation where the State action, be it legislative or executive, violates the fundamental rights in Part III of the Constitution; such law is declared as void but when the previous over-ruled decision and the new rule laid down by the Court as a stare decisis operates prospectively from a given date, namely, either the date of the judgment or extended date. Judgment or order is not a legislative Act which is void under Article 13(2) but judicial tool by which the effect of the judgment was given. Therefore, the judgment of this Court in Mandal s case declaring that Rangachari s ratio did not correctly interpret Articles 16(1) and 16(4) of the Constitution is a declaratory law under Article 141 of the Constitution. It is true that Article 13(1) deals with pre constitutional law and if it is inconsistent with fundamental rights, it becomes void from January 26, 1950, he date on which the Constitution of India came into force and if a post-constitutional law governed by Article 13(2) violates fundamental rights, it becomes void from its inception. Either case deals with statute law and not the law declared by this Court under Article 141 and directions/orders under Article 142.

       (Para 49)

       Both the disadvantaged and advantaged sections of the society have equal competing fundamental rights in Part III, i.e., Chapter of Fundamental Rights. The Court is Mandal s case had obviously recognised the need to adjust the competing rights of both sections of citizens and, therefore, it postponed the operation of that judgment for five years form that date giving an option to the executive to have the law amended appropriately.

       (Para 50)

       Admittedly, the Constitution has entrusted this salutary duty to this Court with power to remove injustice or to do complete justice in any cause or matter before this Court. The Rangachari ratio was in operation for well over three decades under which reservation in promotions were given to several persons in several services, grade or cadre of the Union of India or the respective State Governments. This Court, with a view to see that there would not be any hiatus in the operation of that law and, as held earlier, to bring about smooth transition of the operation of law of reservation in promotions, by a judicial creativity extended the principle of prospective over-ruling applied in Golak Nath case in the case of statutory law and of the judicial precedent in Karunakaran s case and further elongated the principle postponing the operation of the judgment in Mandal s case for five years from the date of the judgment. This Judicial creativity is not anathema to constitutional principle but an accepted doctrine, as an extended facet of stare decisis. It would not be labelled as proviso to Article 16(4) as contended for.

       (Para 53)

       The direction in Mandal s case postponing the operation of the judgment of reservation in promotions for a period of five years is a part of the scheme of judicial review being an innovative device of mete out justice to the Dalits and Tribes giving breathing time to the executive to bring about suitable legislative measures, if they so desired and if no action was taken by mending the law, on expiry of five years, the judgment in Mandal case would become operative. Thereafter reservation in promotion would be unconstitutional which invalidity was remedied. As held earlier, this being one of the tools of judicial craftsmanship adopted by exercising the power under Article 142, which is available only to this Court, the directions given are not violative of rights under Article 14 read with Article 16(1), not ultra vires the power nor void, nor incompatible to or inconsistent with the doctrine of equality enshrined under Article 14 read with Article 16(1) of the Constitution. On the other hand, the power was exercised by this Court under Article 142 read with Article 32 and the direction postponing the operation of the decision for a period of five years is a law of the land under Article 141.

       (Para 54)

       (iv) SERVICE LAW - U.P. Service of Engineers (Public Works Department) (Higher) Rules, 1990b - Rule 6 - U.P. Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 - Rule of reservation on promotion at all levels for Dalits and Tribes - Respondents 2 to 10 recruited as promotees from cadres of Executive Engineer to that of Superintending Engineer and above cadre on basis of merit-Challenged - Whether promotions of respondents are legal and valid? - (Yes).

       Held that the rule of reservation in promotions was in vogue in the State of Uttar Pradesh right from 1973 and the promotions came to be made from 1981 onwards to the respondents 2 to 10. The U.P. Act saves the existing policy of reservation in promotions. The judgment In Mandal case saves the promotions already made. In Sabharwal s case also a Constitution Bench has upheld the validity of the promotions given in excess of the roster; otherwise also those promoted on their own merit were held to be validly promoted. Even excess promotions remained undisturbed and the law became operative only from the date of the judgment. This Court upheld the previous promotions, though in excess of the roster system, as constitutional and valid. Therefore, we hold that the promotions of the respondents are legal and valid and they do not become void or unconstitutional as contended.

       (Para 55)

       (v) Constitution of India - Articles 39, 46-Socio-economic Justice Art. 46, Preamble & Art. 39 to be read conjointly.

       (Para 25)