IMPORTANT POINTS
Judicial discipline.
Reservation in promotion with consequential benefits cannot be provided without undertaking exercise as per dictum in M. Nagraj.
Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 and Rule 8A of U.P. Government Servants Seniority Rules, 1991 are ultra vires.

Headnote:(a) Administration of Justice – Judicial Discipline – Similar matters considered by two Benches of the same High Court – Either the later cases should have been deferred till a decision is pronounced in earlier cases or the matter should have been brought to the notice of the Chief Justice – Instead both Benches pronounced differing judgments – Both Benches deviated from judicial decorum and discipline – Practice deprecated. (Paras 12 and 14)
        (b) Administration of Justice – Binding precedent – Judgment of a co-ordinate Bench is binding – In case of disagreement with judgment of co-ordinate Bench the proper course is to refer the matter to a larger Bench. (Para 12)
        (c) Administration of Justice – Per incuriam – When a judgment refers, analyses and considers a binding precedent and differs from it, it cannot be called per incuriam. (Para 12)
        AIR 1965 SC 1767; AIR 1991 SC 1893 – Relied upon
        (d) Service Law – Reservation – Principles for providing and implementing reservation rules restated. (Para 38)
        (2006) 8 SCC 212 : AIR 2007 SC 71; 1992 Supp. (3) SCC 217 : AIR 1993 SC 477; AIR 1965 SC 1767; AIR 1991 SC 1893; (1981) 1 SCC 246; (1995) 6 SCC 684; (1999) 7 SCC 209; (2009) 8 SCC 220; (2008) 6 SCC 1; (2005) 1 SCC 394; (2011) 1 SCC 467 – Relied upon
        AIR 1962 SC 36; (1970) 3 SCC 567; (1986) 2 SCC 679; (1995) 2 SCC 745; (1996) 2 SCC 715; (1999) 7 SCC 209; (1970) 3 SCC 567; (2010) 4 SCC 50 – Referred
        (e) Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 – Section 3(7) and Rule 8A, U.P. Government Servants Seniority Rules, 1991 – Reservation – Reservation in promotion with consequential benefits cannot be provided without undertaking exercise as per dictum in M. Nagraj – Section 3(7) and Rule 8A run counter to the diuctum in M. Nagraj – Held ultra vires – However any promotion already given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed. (Para 42)
        (2006) 8 SCC 212 : AIR 2007 SC 71; (2011) 1 SCC 467, 1992 Supp. (3) SCC 217 : AIR 1993 SC 477 – Relied upon
       Facts of the case:
        Reservation for SC/ST with consequential seniority is once again under consideration in these appeals.
       Finding of the Court:
        Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 and Rule 8A of U.P. Government Servants Seniority Rules, 1991 are ultra vires.

JUDGMENT

Dipak Misra, J.- Leave granted in Special Leave Petitions.

2. The controversy pertaining to reservation in promotion for the Scheduled Castes and Scheduled Tribes with consequential seniority as engrafted under Articles 16(4A) and 16(4B) and the facet of relaxation grafted by way of a proviso to Article 335 of the Constitution of India being incorporated by the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution (Eight-first Amendment) Act, 2000, the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001 at various stages having withstood judicial scrutiny by the dictum in M. Nagaraj v. Union of India,1 (2006) 8 SCC 212 : AIR 2007 SC 71, the issue of implementation of the same through existing statutory enactment by the State Legislature and the subsequent rules framed by the authorities of the State or concerned corporation of the State of Uttar Pradesh, has, as the learned counsel appearing for both sides in their astute and penetrating manner have pyramided the concept in its essentiality, either appeared too simple that simplification may envy or so complex that it could manifest as the reservoir of imbalances or a sanctuary of uncertainties. Thus, the net result commands for an endeavour for a detailed survey of the past and casts an obligation to dwell upon the controversy within the requisite parameters that are absolutely essential for adjudication of the lis emanated in praesenti.

THE FACTUAL EXPOSE’

3. Extraordinary and, in a way, perplexing though it may seem, yet as the factual scenario pronouncedly reveals, the assail in some of the appeals of this batch of appeals is to the judgment and order passed by the Division Bench of the High Court of Judicature at Allahabad in Writ Petition No. 63217 of 2010 (Mukund Kumar Srivastava vs. State of U.P. and Another) upholding the validity of the provisions contained in Rule 8-A of the U.P. Government Servants Seniority Rules, 1991 (for brevity ‘the 1991 Rules’) that were inserted by the U.P. Government Servants Seniority (3rd Amendment) Rules, 2007 by the employees-appellants and in some of the appeals, the challenge by the State Government and the U.P. Power Corporation Ltd. (for short ‘the Corporation’) is to the judgment and order passed by the Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow, in Writ Petition No. 1389 (S/B) of 2007 (Prem Kumar Singh and others v. State of U.P. and others) and other connected writ petitions holding, inter alia, that the decision rendered by the Division Bench in the case of Mukund Kumar Srivastava (supra) at Allahabad is per incuriam and not a binding precedent and further Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (for short ‘the 1994 Act’) and Rule 8A of the 1991 Rules, as brought into force in 2007, are invalid, ultra vires and unconstitutional and, as a necessary corollary, the consequential orders relating to seniority passed by the State Government deserved to be quashed and, accordingly, quashed the same and further clarified that in case the State Government decides to provide reservation in promotion to any class or classes of posts in the services under the State, it is free to do so after undertaking the exercise as required under the constitutional provisions keeping in mind the law laid down by this Court in M. Nagraj (supra). It has been directed that till it is done, no reservation in promotion on any post or classes of posts under the services of the State including the Corporation shall be made hence forth. However, the Division Bench observed that the promotions already made as per the provisions/Rules where the benefit of Rule 8A has not been given while making the promotion shall not be disturbed.

4. The cleavage has invited immense criticism by the learned senior counsel appearing for both sides on principles

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2012 Supreme(SC) 328

Cases Referred (18)