ORDER :

1. When the listed matters were called for hearing for the purpose of grant of leave, Mr. K.K. Venugopal, learned Attorney General of India, placed before us an order passed by two-Judge Bench in Civil Appeal Nos. 4562-4564 of 2017 (The State of Tripura & Ors. vs. Jayanta Chakraborty & Ors.) and other connected matters, which states as under:-

“The questions posed in these cases involve the interpretation of Articles 16(4), 16(4A) and 16(4B) of the Constitution of India in the backdrop of mainly three Constitution Bench decisions – (1)"Indra Sawhney and others v. Union of India and others, (1992) Supp. (3) SCC 217, (2) E.V Chinnaiah v. State of A.P. and others, (2005) 1 SCC 394 and (3) M. Nagaraj and others v. Union of India and others, (2006) 8 SCC 212. One crucially relevant aspect brought to our notice is that Nagaraj (supra) and Chinnaiah (supra) deal with the disputed subject namely backwardness of the SC/ST but Chinnaiah (supra) which came earlier in time has not been referred to in Nagaraj(supra). The question of further and finer interpretation on the application of Article 16(4A) has also arisen in this case. Extensive arguments have been advanced from both sides. The petitioners have argued for a re-look of Nagaraj (supra) specifically on the ground that test of backwardness ought not to be applied to SC/ST in view of Indra Sawhney (supra) and Chinnaiah(supra). On the other hand, the counsel for the respondents have referred to the cases of Suraj Bhan Meena and Another v. State of Rajasthan and others, (2011) 1 SCC 467; Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others, (2012) 7 SCC 1; S. Panneer Selvam and others v. State of Tamil Nadu and others, (2015) 10 SCC 292; Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others, (2015) 12 SCC 308, and Suresh Chand Gautam v. State of Uttar Pradesh and others, (2016) 11 SCC 113, to contend that the request for a revisit cannot be entertained ad nauseam. However, apart from the clamour for revisit, further questions were also raised about application of the principle of creamy layer in situations of competing claims within the same races, communities, groups or parts thereof of SC/ST notified by the President under Articles 341 and 342 of the Constitution of India.

2. Having regard to the questions involved in this case, we are of the opinion that this is a case to be heard by a Bench as per the constitutional mandate under Article 145(3) of the Constitution of India. Ordered accordingly. Place the files before the Hon’ble Chief Justice of India immediately.

3. Though the learned counsel have pressed for interim relief, we are of the view that even that stage needs to be considered by the Constitution Bench. The parties are free to mention the urgency before the Hon’ble Chief Justice of India.”

2. Mr. Shanti Bhushan, Dr. Rajeev Dhavan, Mr. Mukul Rohtagi and Mr. Shekhar Naphade, learned senior counsel, placing reliance upon the decision of the Constitution Bench in Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha and others,(2001) 4 SCC 448, urged that the matter could not have been directly referred to a Constitution Bench by a two-Judge Bench, more so, when the controversy has been put to rest. In the aforesaid decision, it has been held as follows :-

“1. The order of reference to a Constitution Bench is dated 13-1-1998. Two learned Judges of this Court have doubted the correctness of the scope attributed to Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 in the Constitution Bench Judgment in Gammon (India) Ltd. vs. Union of India (1974 (3) SCR 665). This is how the matter comes before us.

2. We are of the view that a decision of a Constitution Bench of this Court binds a Bench of

two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have orde