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2022 Supreme(SC) 60

SUPREME COURT OF INDIA
(From the High Court of Punjab & Haryana at Chandigarh)
L. NAGESWARA RAO, SANJIV KHANNA, B.R. GAVAI, JJ.
Jarnail Singh & Ors. – Appellants
Versus
Lachhmi Narain Gupta & Ors. – Respondents
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No.34520 of 2017), Civil Appeal Nos. 695-702 of 2022, (Arising out of SLP (C) Nos.14105-14112 of 2019), Civil Appeal No. 766 of 2022(Arising out of SLP (C) No. 1357 of 2022), (D. No. 35577 of 2017), Civil Appeal No. 776 of 2022, (Arising out of SLP (C) No. 1367 of 2022), (D. No. 36305 of 2017), Civil Appeal No. 767 of 2022, (Arising out of SLP (C) No. 1358 of 2022), (D. No.36377 of 2017), Civil Appeal No. 662 of 2022, (Arising out of SLP (C) No.31288 of 2017), Civil Appeal No. of 2022, (Arising out of SLP (C) No. of 2022), (D. 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No.24594 of 2018), Civil Appeal No. 705 of 2022 (Arising out of SLP (C) No.14611 of 2019), Civil Appeal No. 760 of 2022 (Arising out of SLP (C) No. 1348 of 2022), (D. 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No.43894 of 2019), Civil Appeal No. 737 of 2022, (Arising out of SLP (C) No. 887 of 2020), Civil Appeal No. 733 of 2022, (Arising out of SLP (C) No. 609 of 2020), Civil Appeal No. 741 of 2022 (Arising out of SLP (C) No. 7332 of 2020), Civil Appeal No. 740 of 2022 (Arising out of SLP (C) No. 6834 of 2020), Civil Appeal No. 742 of 2022(Arising out of SLP (C) No. 8066 of 2020), Civil Appeal No. 743 of 2022 (Arising out of SLP (C) No. 8588 of 2020), Civil Appeal No. 744 of 2022(Arising out of SLP (C) No.15749 of 2020), Civil Appeal No. 628 of 2022(Arising out of SLP (C) No.15148 of 2020), Civil Appeal No. 745 of 2022(Arising out of SLP (C) No. 639 of 2021), Civil Appeal No. 746 of 2022 (Arising out of SLP (C) No.3684 of 2021), Contempt Petition (C) Nos.200-201 of 2021 In SLP (C) Nos.5724-5725 of 2019, Contempt Petition (C) Nos.211-212 of 2021 In Civil Appeal No.5247 of 2016, Writ Petition (C) No. 882 of 2021, Contempt Petition (C) Nos.378-379 of 2021 In Civil Appeal Nos.11837-11840 of 2016
Decided on : 28-01-2022

Advocates appeared:
For the parties :K.K.Venugopal, Ld. AG Vikramjit Banerjee, Ld. ASG Akshay Amritanshu, Ankur Talwar, Siddharth Kohli, Apoorva Kurup, Gurmeet Singh Makker, M.K.Maroria, A. K. Sharma Amrish Kumar, B.V. Balaram Das, Mr A Mariarputham, Avneesh Arputham, M/s.Arputham Aruna And Co, Manish Kumar, Pratik R. Bombarde, Pradeep S. Wathore, Devendra Kumar, Abhishek Kumar, Shailesh Madiyal, Ranjeeta Rohatgi, Abhinav Mukerji, Pratishtha Vij, Bihu Sharma, Akshay C. Shrivastava, Prerna Mehta, Shreyas Gacche, Swati Vaibhav, Dr. Gunratan Sadavarte Dr. Jay Shree Patil, Raj Singh Rana Pankaj Kumar Singh, Kamal Kumar Pandey Rakesh Kumar Mudgal, Dinesh Kumar Mudgal, Satpal Singh Som Raj Choudhury, Smarhar Singh, Shweta Kumari, Dr. Menaka Gurusamy, Sr., Prashant R. Dahat, Sangharaj D.Rupwate, Vijay Nirbhavane, Akash Moon, Smita Kamble, Shraddha Vavhal, Yash S Vijay, Rayavarapu Aishwarya Devi, Puneet Yadav, Sourabh Gupta, T. R. B. Sivakumar, R.D. Agrawala, Pradeep Kumar Mathur, Chiranjeev Johri, Sameer Agrawal, Sanjay R. Hegde, Sr. Manoj Gorkela, Gaganpreet Singh Chawla, Priyal Suryavanshi, M/s Gorkela Law Office, Rupinder Singh Suri, Ld. ASG Manoj Gorkela, Aditya Giri, Nikita Capoor, Priyal Suryavanshi, Gaganpreet Singh Chawla, M/s Gorkela Law Office, Ranjit Kumar, Sr. Manoj Gorkela, Gaganpreet Singh Chawla, M/S.Gorkela Law Office, Krishnan Venugopal, Manoj Gorkela, Shivendra Singh, Gaganpreet Singh Chawla, M/s Gorkela Law Office, Manoj Gorkela, Gagandeep Singh Chawla, Priyal Suryawanshi, M/s Gorkela Law Office, Nidhesh Gupta, Sr. Manoj Gorkela, Gaganpreet Singh Chawla, Priyal Suryavanshi, M/s Gorkela Law Office, Shuvodeep Roy, Kabir Shankar Bose, Ishaan Borthakaur, Indira Jaising, Deepak Jain, K.B. Pradeep, Jaspreet Aulakh, Tanpreet Gulati, A. Sumathi, Rajeev Dhavan, Atul Yeshwant Chitale, Tanvi Kakar, Atulesh Kumar, Saurabh Mishra, AAG Mrinal Elker Mazumdar , Vansaja Shukla, Manish Yadav, Soumya Chakraborty, Shobhit Tiwari, Lal Pratap Singh, Umesh Pratap Singh Arjun Aggarwal Bhaskar Aditya Gaurav Kejriwal, Chandra Bhushan Prasad, N. Annapoorani, Ravindra Keshavrao Adsure, Sidheshwar Namdev Biradar, Yash Prashant Sonavane, Sagar N.Pahune Patil, Sangeeta Sagar Pahune-Patil, Yogesh Ramesh Joshi, Sakshi Ajit Kale, Digvijay Shivaji Kachare, Suchitra Atul Chitale, Nalini Chidambaram, Vikas Mehta, Dr. Sukhdev Sharma, Dr. Shivani Gambhir, J.B.Mudgil, 15 Rakesh Kumar, Rameshwar Prasad Goyal, Rakesh Dwivedi, Sr. Sansriti Pathak, Suyash Guru, Sandeep Devashish Das, Vinod Diwakar, AAG (State of U.P.) Alka Sinha, B.N. Dubey, Anuvrat Sharma, Basant Kumar Choudhary,Sr. Dinesh Dwivedi, Rituraj Biswas, Chandan Kumar, Rituraj Choudhary, Mayan Prasad, Sujaya Bardhan, P. Soma Sundaram, Uttara Babbar, Manoj Ranjan Sinha, Santosh Kumar Pandey, P. V. Yogeswaran, Suhaas Ratna Joshi, Suyash Mohan Guru, Amol Shrivasta, Vardhman Kaushik, Lalita Kaushik, Praveen Jain, Fuzail Ahmad Ayyubi, Kanishka Prasad Ibad Mushtaq, Akanksha Rai, Gopal Shankar Narayan, Shobhit Tiwari, Lal Pratap Singh Umesh Pratap Singh, Arjun Aggarwal, Bhaskar Aditya, Vishal Singh, Shrutanjaya Bhardwaj, Shivani Vij, Ruchi Kohli, M. L. Lahoty, Paban K Sharma, Anchit Sripat, Pranab Kumar Nayak, Ruchi Kohli, Himanshu Gupta, Manoj C. Mishra, Rekha Pandey, L.C.Patne, Raghav Pandey, Aldanish Rein, Sunil Kumar Verma, D. Ramakrishna Reddy, D.Bharathi Reddy, Mrigank Prabhakar, Tanuj Bagga Sharma, D.K. Goswami, Sr. Saharsh Jauhari, Kuldeep Singh, Aditya Soni, M. Gireesh Kumar, Ankur S. Kulkarni, Shivam Singh, Yasharth Kant, B.Karunakaran, Mrs K. Balambihai S. Gowthaman, Nitin Meshram, Sourabh Singh, Rishi Raj Singh, Ranbir Singh Yadav, Senthil Jagadeesan, Sudarshan Rajan, Mahesh Kumar, Rohit Bhardwaj, Hiten Bajaj, Ramesh Rawat, ADN Rao, Annam Venkatesh, Rahul Mishra, K Lenin Devasahaya Vinober, Ananya Khandelwal, Agrimaa Singh, Sangeetha MR, D. Shiva Shankar, Vishal Gupta, Abhay Kant Mishra, Avijit Bhattacharjee Dinesh P.Rajbhar Anzu.K.Varkey Uday Gupta, Shivani M. Lal, Hiren Dasan, M. K. Tripathi, Harish Dasan, Rajiv Ranjan, Mohan Pandey, Avijit Mani Tripathi, Gaichangpou Gangmei, Abhay Kumar, Neetu Jain, Rajat Khattry, Saurabh Mishra, Kumar Milind, Shagun Ruhil, Vishal Nautiyal, Sachin Patil, Rahul Chitnis, Akshay Shinde, Aaditya A. Pande, Geo Joseph, Shwetal Shepal, Rohini Musa, Zafar Inayat, Abhishek Gupta, Namit Saxena, P.V.Dinesh, Vikalp Mudgal, Kshitij Mudgal, Raj Kumar, Colin Gonsalves, Olivia Bang, Disha Wadekar, Nihal Sing Rathod, Satya Mitra, K.Saradadevi, R.Vijaynandan Reddy, Naresh Kaushik, Vardhman Kaushik Manoj Joshi, Dhruv Joshi Prafful Saini, Nishant Gautam, B. Purushottama Reddy, Lalitha Kaushik, Satyajit A. Desai, Satya Kam Sharma, Siddharth Gautam, Himanshu Sharma, Anagha S Desai, Amit Anand Tiwari Brajesh Pandey, Anilendra Pandey, Ashok K Mahajan, Amita Singh Kalkal, K.K.L.Gautam, Chicalwar Rastrapal, Abhishek Kumar Suman, Manoj Sharma, Rahul Mohod, Abhishek Gurawa, Sandeep Kr. Singh, Abhishek Raj, Sanjeev Malhotra, Gopal Jain Devashish Bharuka, Sarvshree, Justine George Mr Manas Syal Indira Jaising, Sunil Fernandes, Nupur Kumar, Prastut Dalvi, Disha Wadekar, Paras Nath Singh, Ujjaini Chatterjee, Darpan Sachdeva, Shubham Sharma, Indira Jaising, Dr. K.S. Chauhan, Sr. Ajit Kumar Ekka, Ravi Prakash, Abhishek Chauhan, Ajit Kumar, Vishwa Pal Singh, Rajendra Prasad, Miss. Pallavi, Dinesh Kumar Mudgal, Arihant Mehta, Vikas Gothwal, Sanjiv Saraf, Praphul Kumar Vohra, Prateek Rai, Kiran Suri, Sr. S.J. Amith, Krishna Kumar, Dr. (Mrs.) Vipin Gupta, Anil Kumar, Vijay Sharma, Varinder Kumar Sharma, K.N.Rai, M/S.S.M. Jadhav And Company, Shashi Kiran, Dr. K.S. Chauhan, Sr. M. Vijaya Bhaskar, Murari Lal, Abhishek Chauhan, K.C. Lamba, Sumit Kishore, Dr. K.S. Chauhan, M. Vijaya Bhaskar, R.S.M. Kalky, S.P. Singh, Sunil Kumar, Ramesh Kumar, Gaya Prasd, Ravindra Kumar, Binay Kumar Das, Priyanka Das, Neha Das, Yadav Narender Singh, M. K. Bhardwaj, Ashutosh Kumar, Vedant Pardhan, Bano Deswal, Shweta Sharma, R. C. Kaushik, Sanjay Kharde, Chandan Ramamurthi, D.K Garg Dhananjay Garg, Abhishek Garg, Pradeep Kumar Mathur, Arvind Kumar Sharma, Arvind S. Avhad, Shantanu Krishna, B. Krishna Prasad, Gaurav Agrawal, Samir Ali Khan, B. Sridhar, Respondent-in-person Kuldip Singh, Mrs. Anil Katiyar, Ravindra Kumar, Hrishikesh Baruah, M. C. Dhingra, P. N. Puri, Anil Kumar Mishra, Ranjan Mukherjee, S. N. Bhat, Prashant Bhushan, Ashok K. Mahajan, K. N. Rai, Mrs. K. Sarada Devi, M. K. Dua, Ravindra Kumar, Binay Kumar Das, Priyanka Das, Neha Das, Gopal Singh, Vardhman Kaushik , P. V. Dinesh, Rahul Kaushik, Christi Jain, Arjun Garg, Nikilesh Ramachandran, Aswathi M.k., Dinesh Rattan Bhardwaj, Advocates

IMPORTANT POINTS
(1) Reservation in matter of promotion – Collection of quantifiable data for determining inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions.
(2) Reservation – It is neither legal nor proper for Courts to issue directions or advisory sermons to executive in respect of sphere which is exclusively within their domain under Constitution – No yardstick can be laid down by this Court for determining adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation.
(3) Entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade.
(4) Power of Apex Court under Article 142 of Constitution is a constituent power transcendental to statutory prohibition.
(5) Obiter Dictum – Only ratio decidendi can act as binding or authoritative precedent.

Headnote:
(A) Reservation – It is neither legal nor proper for Courts to issue directions or advisory sermons to executive in respect of sphere which is exclusively within their domain under Constitution – Exercise of identifying and measuring concepts of efficiency, backwardness and inadequacy of representation on the basis of data depends on numerous factors – Enabling provisions are required to be made because each competing claim seeks to achieve certain goals – How best one should optimise these conflicting claims can only be done by administration in context of local prevailing conditions in public employment – Determination of inadequate representation of SCs and STs in services under a State is left to discretion of State, as determination depends upon myriad factors which this Court cannot envisage – Laying down of criteria for determining inadequacy of representation would result in curtailing discretion given to State Governments – In addition, prevailing local conditions, which may require to be factored in, might not be uniform – No yardstick can be laid down by this Court for determining adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation. (Paras 12, 14 and 16)
(B) Constitution of India – Article 16(4) – Reservation in matter of promotion – Collection of quantifiable data for determining inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions – Unit for the purpose of collection of data is a cadre – For the purpose of collection of quantifiable data for providing reservation in promotions, entire service cannot be taken to be a unit and treated as a cadre – A cadre is not synonymous with a ‘group’ – Article 16(4-A) of Constitution enables State to make reservation in promotions for SCs and STs, which are not adequately represented in services of State – However, provision for reservation in matters of promotion is with reference to class or classes of posts in services under the State – State should justify reservation in promotions with respect to cadre to which promotion is made – Taking into account data pertaining to a 'group’, which would be an amalgamation of certain cadres in a service, would not give correct picture of inadequacy of representation of SCs and STs in cadre in relation to which reservation in promotions is sought to be made – Rosters are prepared cadre-wise and not group-wise – Sampling method which was adopted by Ratna Prabha Committee might be a statistical formula appropriate for collection of data – However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a 'group’, is the unit and data has to be collected with respect to each cadre. (Paras 45, 46 and 47)
(C) Service Law – Cadre – Fundamental Rule 9(4) defines “cadre” to mean strength of a service or part of a service sanctioned as a separate unit – It is choice of a State to constitute cadres – Entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade – Promotion is made from one grade to next higher grade, in relation to which cadres are constituted – A cadre is constituted by Government by taking into account several factors within its sole discretion. (Para 28)
(D) Constitution of India – Article 142 – Power to do complete justice – Power of Apex Court under Article 142 of Constitution is a constituent power transcendental to statutory prohibition – Doctrine of prospective overruling is in essence a recognition of principle that Court moulds reliefs claimed to meet justice of case – Apex Court can apply its decision prospectively, i.e., from date of its judgment to save past transactions. (Para 35)
(E) Precedent – Obiter Dictum – A decision on a point not necessary for the purpose of or which does not fall for determination in that decision becomes an obiter dictum – Only ratio decidendi can act as binding or authoritative precedent – Reliance placed on mere general observations or casual expressions of Court, is not of much avail. (Para 41)
Facts of the case:
Reservation of 27 per cent in favour of backward classes was the subject matter of dispute in Indra Sawhney & Ors. v. Union of India & Ors., 1992 Supp (3) SCC 217 This Court was of the opinion that Article 16(4) of the Constitution of India does not provide for reservation in the matter of promotions. It was clarified that the judgment shall have prospective operation and shall not affect the promotions already made, whether made on regular or on any other basis. Reservation provided in the matter of promotions in Central services or State services were directed to be continued for a period of five years from the date of the judgment.
Findings of Court:
The first term of reference for the Ratna Prabha Committee was to collect data cadre-wise. The conclusion of this Court in B.K. Pavitra II that the expression ‘cadre’ has no fixed meaning in service jurisprudence is contrary to the judgments of this Court,
Result : Reference answered. Matter Listed for further hearing.

JUDGMENT :

L. NAGESWARA RAO, J.

1. Leave granted (except Diary No.38895/2017).

2. Reservation of 27 per cent in favour of backward classes was the subject matter of dispute in Indra Sawhney & Ors. v. Union of India & Ors., 1992 Supp (3) SCC 217. This Court was of the opinion that Article 16(4) of the Constitution of India does not provide for reservation in the matter of promotions. It was clarified that the judgment shall have prospective operation and shall not affect the promotions already made, whether made on regular or on any other basis. Reservation provided in the matter of promotions in the Central services or State services were directed to be continued for a period of five years from the date of the judgment.

3. By the Constitution (Seventy-seventh Amendment) Act, 1995, which came into force on 17.06.1995, Article 16 of the Constitution was amended by insertion of Article 16(4-A), which then read as below:-

“Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”.

4. The above amendment was made in view of the State’s opinion that representation of the Scheduled Castes and the Scheduled Tribes (“SCs” and “STs”) in services in the States had not reached the required level and that it was necessary to continue the existing dispensation by providing reservation in promotions. Therefore, the Government decided to continue the existing policy of reservation in promotions for the SCs and the STs, according to the Statement of Objects and Reasons of the Constitution (Seventy-seventh Amendment) Act, 1995.

5. In Union of India & Ors. v. Virpal Singh Chauhan & Ors., (1995) 6 SCC 684, this Court held that roster-point promotees who were given the benefit of accelerated promotion would not get consequential seniority. As the Government was of the opinion that the concept of “catch-up” rule was not in the interest of SCs and STs in the matter of seniority on promotion, Article 16(4-A) was further amended by the Constitution (Eighty-fifth Amendment) Act, 2001 to give the benefit of consequential seniority in addition to accelerated promotion. At present, Article 16(4-A) reads as follows:-

“(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

6. A number of vacancies which were reserved for SCs and STs could not be filled up due to non-availability of candidates belonging to these categories. Such of these vacancies which were not filled up were treated as “backlog vacancies” and were carried forward. In Indra Sawhney (supra), this Court held that reservations contemplated in a year under Article 16(4) shall not exceed 50 per cent. In practice, backlog vacancies were not included within the ceiling of 50 per cent reservation in a year. An office memorandum was issued on 29.08.1997 making the 50 per cent limit applicable to current as well as backlog vacancies, in accordance with Indra Sawhney (supra). Thereafter, several representations were made to the Central Government about the injustice that would be caused to the members of SCs and STs in view of the office memorandum dated 29.08.1997, which led to a further amendment to Article 16 of the Constitution of India, by insertion of Article 16(4-B) by the Constitution (Eighty-first Amendment) Act, 2000. Article 16(4-B) reads as under: -

“(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in a