IMPORTANT POINT
The impugned constitutional amendments by which Articles 16(4A) and 16(4B) of the Constitution of India have been inserted flow from Article 16(4) of the Constitution and they do not alter the structure of Article 16(4) and retain the controlling factors or the compelling reasons, namely, backwardness, and inadequacy of representation which enables the states to provide for reservation keeping in mind the overall efficiency of the State Administration under Article 335 of the Constitution.

Headnote:(i) Constitution of India—Article 16 (4A) inserted by Constitution (Eighty- fifth Amendment Act, 2001)—Reservations in Promotion with consequential seniority—Challenged as unconstitutional and violative of basic structure of the Constitution—Petitioners allege that if accelerated seniority is given to the roster point promotees, consequences would be disastrous—Validity of 77th Amendment, 81st Amendment, 82nd Amendment and 85th Amendment challenged—Whether impugned constitutional amendments violate the principle of Basic Structure ?—(No)—These amendments do not alter structure of Articles 14, 15 and 16 (Equity Code) of the Constitution—Parameters mentioned in Section 16(4) of the Constitution are retained—Impugned amendments have introduced merely enabling provisions—Articles 16(4A) and 16(4B) fall in the pattern of Article 16(4) of the Constitution—Articles 16(4A) and 16(4B) are classifications within the principle of equality under Article 16(4) of the Constitution.
       Held : The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50 (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney and others v. Union of India, 1992 Supp. (3) SCC 217, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal and Others v. State of Punjab and others, (1995) 2 SCC 745. (Para 121)
       We reiterate that the ceiling-limit of 50 , the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.(Para 122)
       However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50 or obliterate the creamy layer or extend the reservation indefinitely. (Para 123)
       Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001. (Para 124)
       (ii) Constitution of India—Articles 16(4A), 16(4B), 335—Constitution (Seventy-Seventh Amendment) Act, 1995: Constitution (Eighty-First Amendment) Act 2000; Constitution (Eighty-Second Amendment) Act, 2000 and Constitution (Eighty Fifth Amendment) Act, 2001—Scope of these constitutional amendments—Whether any constitutional limitation mentioned in Article 16(4) and Article 335 stand obliterated by the above constitutional amendments—(No).
       Held : The Supreme Court in its judgment dated 16.11.92 in Indra Sawhney and others v. Union of India, 1992 Supp. (3) SCC 217 stated that reservation of appointments or posts under Article 16(4) is confined to initial appointment and cannot extend to reservation in the matter of promotion. Prior to the judgment in Indra Sawhney reservation in promotion existed. The Government felt that the judgment of this court in Indra Sawhney adversely affected the interests of SCs and STs in services, as they have not reached the required level. Therefore, the Government felt that it was necessary to continue the existing policy of providing reservation in promotion confined to SCs and STs alone. We quote hereinbelow Statement of Objects and Reasons with the text of the Constitution (Seventy-Seventh Amendment) Act, 1995 introducing clause (4A) in Article 16 of the Constitution.(Para 84)
       The said clause (4A) was inserted after clause (4) of Article 16 to say that nothing in the said Article shall prevent the State from making any provision for reservation in matters of promotion to any class(s) of posts in the services under the State in favour of SCs and STs which, in the opinion of the States, are not adequately represented in the services under the State.(Para 85)
       Clause (4A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4A) of Article 16 emphasizes the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4A) will be governed by the two compelling reasons – "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further in Ajit Singh and others (II) v. State of Punjab and others, 1999(7) SCC 209, this court has held that apart from backwardness and inadequacy of representation the State shall also keep in mind overall efficiency (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government by providing for reservation in promotion for SCs and STs.(Para 86)
       After the Constitution (Seventy-Seventh Amendment) Act, 1995, this court stepped in to balance the conflicting interests. This was in the case of Union of India and others v. Virpal Singh Chauhan and others, (1995) 6 SCC 684 in which it was held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position. According to the Government, the decisions in Virpal Singh and Ajit Singh Januja and others (I) v. State of Punjab and others, 1996(2) SCC 715 bringing in the concept of "catch-up" rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the next higher grade.(Para 87)
       In the circumstances, clause (4A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that, the Constitution (Eighty-Fifth Amendment) Act, 2001 was an extension of clause (4A) of Article 16. Therefore, the Constitution (Seventy-Seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-Fifth Amendment) Act, 2001.(Para 88)
       By clause (4B) the "carry-forward"/"unfilled vacancies" of a year is kept out and excluded from the overall ceiling-limit of 50 reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-First Amendment) Act, 2000.(Para 95)
       The Constitution (Eighty-First Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R.K. Sabharwal and Others v. State of Punjab and others, (1995) 2 SCC 745. Once it is held that each point in the roster indicates a post which on falling vacant has to be filled by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies do not arise. Therefore, in effect, Article 16(4B) grants legislative assent to the judgment in R.K. Sabharwal. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter. (Para 96)
       By the Constitution (Eighty-Second Amendment) Act, 2000, a proviso was inserted at the end of Article 335 of the Constitution.(Para 98)
       This proviso was added following the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of this court in Vinod Kumar 1996(6) SCC 580, which took the view that relaxation in matters of reservation in romotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4A).(Para 99)
       (iii) Constitution of India—Articles 16(4A), 16(4B), 335—Reservations in Promotions—Extent of Reservations—Concept of ‘catch up rule’ and ‘consequential seniority’—By clause (4B) the ‘carry forward’/‘unfilled vacancies’ of a year is kept out and excluded from overall ceiling limit of 50 reservation—Relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion—Proviso inserted at the end of Article 335 of the Constitution by 82nd Amendment—Introduction of ‘Time’ factor in view of Article 16(4B) of the Constitution.
       Held : The concept of catch-up rule and consequential seniority are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of consequential seniority the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that equality code under Article 14, 15 and 16 is violated by deletion of the catch-up rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the catch-up rule nor the concept of consequential seniority are implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.(Para 79)
       Article 16(4B) lifts the 50 cap on carry-over vacancies (backlog vacancies). The ceiling-limit of 50 on current vacancies continues to remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation. What is stated hereinabove is borne out by Service Rules in some of the States where the carry-over rule does not extend beyond three years.(Para 100)
       (iv) Constitution of India—Articles 14, 15, 16, 16(4), 16(4A), 16(4B)—Constitutional Amendments—Nature of standards of judicial review—Concept of basic structure—Whether Equality is a part of fundamental features or the Basic Structure of the Constitution—(Yes)—Equality is the essence of democracy and, accordingly a basic feature of the Constitution—Difference between formal equality and egalitarian equality.
       Held : The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules. (Para 24)
       For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, the second step is to be taken, namely, whether the principle is so fundamental as to bind even the amending power of the Parliament, i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of the Parliament. To sum up: in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.(Para 25)
       Therefore, axioms like secularism, democracy, reasonableness, social justice etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of the Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values. For example, under the German Constitutional Law, human dignity under Article 1 is inviolable. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give. It simply is. Every human being has dignity by virtue of his existence. The Constitutional Courts in Germany, therefore, see human dignity as a fundamental principle within the system of the basic rights. This is how the doctrine of basic structure stands evolved under the German Constitution and by interpretation given to the concept by the Constitutional Courts. (Para 26)
       At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression.(Para 31)
       The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an Article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.(Para 35)
       (v) INTERPRETATION OF STATUTES—Constitution of India—A purposive rather than a strict literal approach to the interpretation should be adopted—A constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes.
       Held : Constitution is not an ephermal legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges. (Para 19)

Judgement Key Points

The court's judgement acknowledges the concept of the "creamy layer" as an important aspect of ensuring proportional and egalitarian reservation policies. It recognizes that the idea of excluding the "creamy layer" among backward classes is a means to prevent reverse discrimination and to make affirmative action more effective and just. The judgement explicitly states that the "creamy layer" concept has been accepted as a valid criterion for exclusion within backward classes, including SCs and STs, and is part of the constitutional scheme to balance equality and social justice.

However, the court emphasizes that the determination of backwardness and the application of the "creamy layer" concept are to be based on objective data and are within the domain of the concerned authorities. It does not direct the government to introduce the "creamy layer" concept anew but recognizes its role as part of the existing constitutional and judicial framework for implementing reservation policies.

In summary, the court's judgement does not explicitly ask the government to introduce the "creamy layer" concept for SCs and STs, but it affirms the importance and validity of the concept within the existing constitutional scheme and affirms its role in the context of reservations. It underscores that the application of such concepts must be based on objective data and within constitutional limits.

[Refer to the discussion of proportional equality and the recognition of the "creamy layer" concept in the context of reservations, which is supported by the references to the principles of social justice, equality, and affirmative action in the judgement.]

JUDGMENT

Kapadia, J.—The width and amplitude of the right to equal opportunity in public employment, in the context of reservation, broadly falls for consideration in these writ petitions under Article 32 of the Constitution.

FACTS IN WRIT PETITION (CIVIL) NO. 61 OF 2002 :

2. The facts in the above writ petition, which is the lead petition, are as follows.

Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in the case of Union of India and others v. Virpal Singh Chauhan and others1, Ajit Singh Januja and others v. State of Punjab and others2 (Ajit Singh-I), Ajit Singh and others (II) v. State of Punjab and others3, Ajit Singh and others (III) v. State of Punjab and others4, Indra Sawhney and others v. Union of India5, and M. G. Badappanavar and another v. State of Karnataka and others6. Petitioners say that the Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. Petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. Petitioners say that the equality in the context of Article 16(1) connotes "accelerated promotion" so as not to include consequential seniority. Petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). Petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. Petitioners say that in the case of Indra Sawhney5 decided on 16.11.1992, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion. Petitioners say that contrary to the said judgment delivered on 16.11.1992, the Parliament enacted the Constitution (Seventy-Seventh Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-Seventh Amendment) Act, 1995 is also challenged by some of the petitioners. Petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous. A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. At the age of 49, he would reach the highest level and stay there for nine years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56 and by the time, he gets eligibility to the 4th level, he would have retired from service. Petitioners say that the consequences of the impugned 85th Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre.

BROAD ISSUES IN WRIT PETITION No. 527 OF 2002 :

3. The broad issues that arise for determination in this case relate to the:

1.Validity

2.Interpretation

3.Implementation

of (i) the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000, and the Constitution (Eighty-Fifth Amendment) Act, 2001; and

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2006 Supreme(SC) 979

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