Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 569

SUPREME COURT OF INDIA
Uday Umesh Lalit, Dhananjaya Y. Chandrachud, JJ.
B. K Pavitra and Ors – Appellants
Versus
The Union of India and Ors. – Respondents
M A No. 1151 of 2018 In Civil Appeal No. 2368 of 2011 With Review Petition (c) Diary No. 7833, 10240, 10258, 10859, 12622, 12674, 13047, 14563 &16896 of 2017 with With M A No. 1152 of 2018 In Civil Appeal No. 2369 of 2011 with Writ Petition (c) No. 764, 769, 791 of 2018, 823, 827, 850, 875, 872, 901, 879 & 1209 of 2018
Decided On : 10-05-2019

Advocates Appeared:
For the Parties :Mr. Basava Prabhu Patil, Mr. Devadatt Kamat, AAG Mr. V.N. Raghupathy, Ms. Rachitha Hiremath, Mr. Chinmay Deshpande, Mr. Geet Ahuja, Mr. Rajesh Inamdar, Mr. Javedur Rahman, Mr. Aditya Bhat, Ms. Indira Jaising, Mr. Anuj Saxena, Ms. Nehmat Kaur, Mr. Alok Singh, Ms. Arjita Sharma, Mr. Rameshwar Prasad Goyal, Mr. V. Lakshminarayana, Mr. Dinesh K. Garg, Mr. Dhananjay Garg, Mr. Abhishek Garg, Mr. Deepak Mishra, Mr. Dinesh Dwivedi, Mr. Anuj Saxena, Ms. Payal Gaikwad, Ms. Nehmat Kaur, Mr. Kumar Parimal, Mr. Smarhar Singh, Mr. Prakash Sharma, Mohd. Naved, Ms. Prakrati Raj, Mr. Rameshwar Prasad Goyal, Mr. Dinesh Dwivedi, Mr. Yasharth Kant Srivastava, Mr. Krishnam Misra, Mr. Nishant Singh, Mr. Satpal Singh, Mr. Puneet Jain, Ms. Christi Jain, Mr. Abhinav Gupta, Mr. Harsh Jain, Ms. Arpita Gupta, Dr. K.S. Chauhan, Mr. Ajit Kumar Ekka, Mr. Ravi Prakash, Mr. Chand Kiran, Mr. Murari Lal, Mr. R.S.M. Kalky, Mr. Anand Sanjay M. Nuli, Mr. Dharm Singh, Mr. Suraj Kaushik, Mr. Nanda Kumar K.B., for M/s. Nuli & Nuli, Mr. Naveen R. Nath, Mr. S.K. Kulkarni, Mr. M. Gireesh Kumar, Mr. Ankur S. Kulkarni, Mr. Devadatt Kamat, AAG Mr. Joseph Aristotle S., Ms. Priya Aristotle, Mr. Rajesh Inamdar, Mr. Javedur Rehman, Mr. Aditya Bhat, Mr. Shiva P., Mr. B.V. Balaram Das, Mr. Sharanagouda Patil, Mr. Shirish K. Deshpande, Mr. Mohit Gautam, Mr. Shekhar G. Devasa, Mr. Manish Tiwary, Mr. Luv Kumar, for M/s. Devasa & Co. Mr. S. N. Bhat, Mr. Pulkit Tare, Ms. Anagha S. Desai, Mr. Subashchandra Sagar, Mr. E.C. Vidya Sagar, Mr. S.J. Amith, Dr. (Ms.) Vipin Gupta, Mr. Sudhir Nagar, Mr. Kabir Dixit, Advocate

IMPORTANT POINTS
Exercise of enabling power under Article 16 (4A) not violative of basic features of the Constitution.
Court cannot reflect upon the situations in which power under Article 200 can be exercised. Assent of the President is non-justiciable.
Legislature cannot overrule a decision of the court as being erroneous or a nullity but the legislature can either amend an existing law or enact a law which removes the basis of invalidity. Curative legislation is constitutionally permissible.
Statement of Objects and Reasons cannot be used for restricting the plain meaning of a legislation - Cannot determine validity of a provision. Preamble, on the other hand though cannot prevail over the provisions of the statute, it can be an aid to resolve an ambiguity.
Presumption of constitutionality attached to enacted law.
Adequacy of representation of SC/ST in government employment is a matter of subjective satisfaction of State. Not open for the court to substitute its own opinion for that of the authority.
Percentage of reservation has to be worked out in relation to the number of posts which form part of the cadre strength and not the posts actually filled up.
Consequential seniority is an incident of promotion. Hence its protection does not require application of the creamy layer test.
The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature.
The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.

Headnote:
(a) Constitution of India - Article 16(4) - reservation in service - Catch-up rule and consequential seniority - Judicially evolved concepts based on service jurisprudence - Exercise of enabling power under Article 16 (4A) not violative of basic features of the Constitution. (Para 21)
       (2006) 8 SCC 212 - Relied upon
       (1997) 2 SCC 661; 1992 Supp (3) SCC 217; (1995) 2 SCC 745; (1995) 6 SCC 684; (1996) 2 SCC 715; (1997) 6 SCC 538; (1999) 7 SCC 209; (2001) 2 SCC 666 - Referred
       (b) Constitution of India - Article 16(4) - Service law - Reservation - Article 16(4) an enabling provision - State, may but, not bound to provide for reservation to SC/ST in promotional cadres - Such reservations may be made on basis of quantifiable data on: backwardness of the class; inadequacy of the representation of that class in public employment; and without effecting general efficiency of service as mandated by Article 335. (Para 22)
       (2006) 8 SCC 212; (2017) 4 SCC 620; (2011) 1 SCC 467; (2012) 7 SCC 1; (2015) 10 SCC 292 - Relied upon
       (c) Constitution of India - Article 200 - Assent of President - Power of Governor discretionary - Court cannot reflect upon the situations in which power under Article 200 can be exercised - Assent of the President is non-justiciable. (Para 67, 68, 70)
       (2016) 8 SSC 1; (1985) 3 SCC 661; (2002) 8 SCC 182; (1983) 4 SCC 45 - Relied upon
       (d) Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018 - Validity - Whether nullifying B K Pavitra I - B K Pavitra I striking sections of the Act on the nground of non-compliance with norms of Nagraj - It did not restrain the state from collecting data as required by Nagraj so as to make Article 16(4) applicable - Plenary legislative power of State extends to enacting a legislation both with prospective and retrospective effect - Legislature cannot overrule a decision of the court as being erroneous or a nullity - But the legislature can either amend an existing law or enact a law which removes the basis of invalidity - Curative legislation is constitutionally permissible - Instantly the Act, 2018 has not nullified the judicial decision in B K Pavitra I - It has remedied the underlying cause of invalidity - Act held valid. (Para 72)
       (1987) Supp. SCC 751; AIR 1941 FC 16; (1964) 1 SCR 897; (1997) 1 SCC 326 - Relied upon
       1994 Supp. (2) SCC 726; (1996) 7 SCC 637; (2015) 8 SCC 399; (2005) 1 SCC 394; (1969) 2 SCC 283; (1995) 6 SCC 16; (2003) 5 SCC 298; (1996) 2 SCC 449; (1993) Supp (1) SCC 96; (2015) 4 SCC 400; (2018) 11 SCALE 141; AIR 1960 SC 1186; (2008) 8 SCC 612; (2017) 1 SCC 283; (2009) 13 SCC 165; (1969) 1 SCC 325; (1970) 1 SCC 248 - Referred
       (1978) 2 SCC 50 - Distinguished
       (e) Interpretation of statute - Statement of Objects and Reasons - Cannot be used for restricting the plain meaning of a legislation - Cannot determine validity of a provision - Only may be definitive of the circumstances in which the legislation was passed - Preamble, on the other hand though cannot prevail over the provisions of the statute, it can be an aid to resolve an ambiguity. (Para 84, 85)
       (2003) 1 SCC 692; (2009) 8 SCC 431; (1976) 1 SCC 466; (1994) 5 SCC 593; (2003) 9 SCC 358; AIR 1961 SC 954 - Relied upon
       (g) Constitutional validity - Legislature being accountable to those who elect their representatives, presumption of constitutionality attaches to enacted law - Executive and the legislature duty bound to protect social welfare. (Para 91)
       (1974) 4 SCC 415; (1980) Supp SCC 249; (2017) 11 SCC 42 - Relied upon
       (h) Constitution of India - Article 16(4A) - Adequacy of representation of SC/ST in government employment - Subjective satisfaction of State - Not open for the court to substitute its own opinion for that of the authority - Opinion of the authority cannot be challenged on grounds of propriety or sufficiency - Judicial review - Scrutinizing underlying collection of data for State’s satisfaction of inadequacy of representation - Instantly, Ratna Prabha Committee adopting conventional social science methodologies - Conclusions not based on any extraneous or irrelevant material - Held, compelling reasons as required by Nagraj established - Further judicial review not warranted. (Para 94, 99, 101)
       1992 Supp (3) SCC 217; AIR 1967 SC 295; (2006) 8 SCC 212; (2018) 10 SCC 396 - Relied upon
       (1995) 2 SCC 745 - Referred
       (i) Constitution of India - Article 16(4A) - Reservation - Held, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population. (Para 102)
       (j) Constitution of India - Article 16(4A) - Reservation in service - Percentage of reservation has to be worked out in relation to the number of posts which form part of the cadre strength - Not the posts actually filled up. (Para 103)
       (k) Service jurisprudence - Cadre - Challenge to data collected on basis of groups A, B, C and D as opposed to cadres - No fixed meaning ascribed to ‘cadre’ - State studying extent of reservation for SCs and STs in groups A to D, consisting of several cadres - Data represents reservation in cadres as well. (Para 104)
       1992 Supp (3) SCC 217; (1995) 2 SCC 745 l - Referred
       (l) Constitution of India - Article 16(1) and 16(4) - Constitutional and formal equality - principle of effective equality recognizes existing inequalities in society - Reservations, held, not an exception to the rule of equality of opportunity - Article 16(4) enunciation of one particular facet of rule of substantive equality set out in Article 16(1). (Para 107)
       1992 Supp (3) SCC 217 - Relied upon
       134 AIR 1964 SC 179; (1976) 2 SCC 310; (1981) 1 SCC 246 - Referred
       (m) Constitution of India - Article 335, Proviso - Claims of SCs and STs in making appointments to services and posts - Need to adopt special measures in order to bring SCs/STs to a level playing field - Need to maintain efficiency of administration not a fetter on adopting special measures - Efficiency not tied to the selection method itself - Meritorious candidate - Not merely one who is “talented” or “successful” but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration - Instantly in Karnataka promotion is on merit-cum-seniority basis - Rule 19(3) A and D, Karnataka Civil Services General Recruitment Rules 1977 - Ensures efficiency in administration. (Para 118, 122, 126, 130)
       (1985) Supp. SCC 714 - Referred
       (n) Constitution of India - Article 1694) - Creamy layer in SC/ST - Consequential seniority is an incident of promotion - Hence its protection does not require application of the creamy layer test - Held, concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. (Para 139)
       1992 Supp (3) SCC 217; (2018) 10 SCC 396; (2006) 8 SCC 212 - Relied upon
       (2005) 1 SCC 394; (2018) 1 SCC 146; (2018) 15 SCC 64; (2000)1 SCC 168 - Referred
       (o) Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018 - Sections 3 and 4 - Retrospectivity - Promotions granted before 1 March 1996 protected by Ajit Singh II without following the catch-up rule - It was therefore logical for the legislature to protect consequential seniority - Provisions in regard to retrospectivity held neither arbitrary nor unconstitutional. (Para 141)
       (1999) 7 SCC 209 - Relied upon
       (1995) 6 SCC 684; (1995) 2 SCC 745; (2001) 2 SCC 666 - Referred
       Facts of the case:
       The principal challenge in this batch of cases is to the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018 [Reservation Act 2018]. The enactment provides, among other things, for consequential seniority to persons belonging to the Scheduled Castes [SCs] and Scheduled Tribes [STs] promoted under the reservation policy of the State of Karnataka. The law protects consequential seniority from 24 April 1978.
       Finding of the Court:
       Reservation Act 2018 is constitutionally valid.
       Result: Writ petitions dismissed.

JUDGMENT :

Dhananjaya Y. Chandrachud, J.

This judgment has been divided into sections to facilitate analysis. They are :-
A The constitutional challenge
B The constitutional backdrop to reservations in Karnataka
C Submissions
C.I Petitioners
C.2 Submissions for the respondents and intervenors
D Assent to the Bill
E Does the Reservation Act 2018 overrule or nullify B K Pavitra I
E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act 2018
E.2 The Ratna Prabha Committee report
F Substantive versus formal equality
F.I The Constituent Assembly’s understanding of Article 16 (4)
F.2 The Constitution as a transformative instrument
G Efficiency in administration
H The issue of creamy layer
I Retrospectivity
J Over representation in KPTCL and PWD
K Conclusion

A The constitutional challenge

1. The principal challenge in this batch of cases is to the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018 [Reservation Act 2018]. The enactment provides, among other things, for consequential seniority to persons belonging to the Scheduled Castes [SCs] and Scheduled Tribes [STs] promoted under the reservation policy of the State of Karnataka. The law protects consequential seniority from 24 April 1978.

2. The Reservation Act 2018 was preceded in time by the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 2002 [Reservation Act 2002]. The constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra v Union of India, (2017) 4 SCC 620 (“B K Pavitra I”). A two judge Bench of this Court (consisting of Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on the ground that an exercise for determining “inadequacy of representation”, “backwardness” and the impact on “overall efficiency” had not preceded the enactment of the law. Such an exercise was held to be mandated by the decision of a Constitution Bench of this Court in M Nagaraj v Union of India, (2006) 8 SCC 212 (“Nagaraj”). In the absence of the State of Karnataka having collected quantifiable data on the above three parameters, the Reservation Act 2002 was held to be invalid.

3. The legislature in the State of Karnataka enacted the Reservation Act 2018 after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The grievance of the petitioners is that the state legislature has virtually re-enacted the earlier legislation without curing its defects. According to the petitioners, it is not open to a legislative body governed by the parameters of a written constitution to override a judicial decision, without taking away its basis. On the other hand, the State government has asserted that an exercise for collecting “quantifiable data” was in fact carried out, consistent with the parameters required by the decision in Nagaraj. The petitioners question both the process and the outcome of the exercise carried out by the state for collecting quantifiable data.

B The constitutional backdrop to reservations in Karnataka

4. The present case necessitates that this Court weave through the body of precedent which forms a part of our constitutional jurisprudence on the issue of reservations. In many ways, the issues before the Court are unique. For, in the post Nagaraj world which governs this body of law, the State government defends its legislation on the ground that it has fulfilled the constitutional requirement of collecting quantifiable data before it enacted the law. If such an exercise has been carried out, the Court will need to address itself to the standard of judicial review by a constitutional court of a legislation enacted by a competent legislature. The extent to which a data collection exercise by the government, which precedes the

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2019 Supreme(SC) 569

Cases Referred (50)