Karnataka High Court
B Gurumurthy vs State Of Karnataka on 20 January, 2023
Bench: S.Sunil Dutt Yadav
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2023
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.36133/2019 (S-RES)
C/W
WRIT PETITION No.44851/2019
WRIT PETITION No.8160/2020
IN W.P. NO.36133/2019
BETWEEN:
1. B. GURUMURTHY
S/O B LAKKAPPA
AGED ABOUT 58 YEARS
WORKING AS CHIEF ENGINEER
ELECTRICITY C, O & M ZONE
BESCOM,
CHITRADURGA - 577 001
2. G ASHOK KUMAR
S/O VASUDEVA RAO
AGED ABOUT 58 YEARS,
WORKING AS MANAGING DIRECTOR
KAVIKA,
MYSORE ROAD,
BENGALURU
3. K V SHIVAKUMAR
S/O K VEERABHADRAPPA
AGED ABOUT 59 YEARS
WORKING AS DIRECTOR (TRANSMISSION)
KPTCL,
CAUVERY BHAVAN
BENGALURU - 560 009
2
4. M MALLIKARJUNA REDDY
S/O MADDI REDDY
AGED ABOUT 58 YEARS
WORKING AS CHIEF ENGINEER
ELECTRICITY TRANSMISSION ZONE
KPTCL, ANANDA RAO CIRCLE,
BENGALURU - 560 009
5. H K BHARATHI W/O B N RAMESH
AGED ABOUT 59 YEARS
WORKING AS MANAGING DIRECTOR
PCKL, CAUVERY BHAVAN
BENGALURU - 560 009
6. N RAGHUPRAKASH
S/O S V NARASIMHA MURTHY
AGED ABOUT 59 YEARS
WORKING AS DIRECTOR (TECHNICAL)
CORPORATE OFFICE, MESCOM
MANGALORE.
7. SMT H V MALINI
W/O R V VENKATESH
AGED ABOUT 59 YEARS
WORKING AS CHIEF GENERAL MANAGER
CORPORATE OFFICE, BESCOM
K R CIRCLE, BENGALURU - 560 001
8. AFTAB AHMED
S/O MOHAMED SADIQ
AGED ABOUT 59 YEARS
WORKING AS DIRECTOR (TECHNICAL)
CORPORATE OFFICE, CESC,
MYSORE.
9. K S PRASANNA
S/O P SHANKARAPPA
AGED ABOUT 56 YEARS
WORKING AS ADDITIONAL DIRECTOR
PCKL, CAUVERY BHAVAN
BENGALURU - 560 009
... PETITIONERS
3
(BY SRI KUMAR PARIMAL, ADVOCATE FOR
MISS SUVARNA M.L., ADVOCATE AND
SRI PUTTEGOWDA K., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT,
ENERGY DEPARTMENT,
PERSONNEL AND ADMINISTRATIVE REFORMS
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT
ENERGY DEPARTMENT
VIKAS SOUDHA
DR AMBEDKAR VEEDHI
BENGALURU - 560 001.
3. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
REPRESENTED BY ITS MANAGING DIRECTOR
CAUVERY BHAVAN,
K G ROAD
BENGALURU - 560 009.
4. SRI D. NAGARJUNA
S/O M. DORESWAMY
AGED ABOUT 54 YEARS
SUPERINTENDING ENGINEER
(MPD & TCD), BESCOM
CORPORATE OFFICE,
K.R. CIRCLE
BANGALORE - 560 009.
5. SMT. G. SHEELA
D/O LATE SRI K. GURUMURTHY
AGED ABOUT 54 YEARS
SUPERINTENDING ENGINEER
4
WORKING AS GENERAL MANAGER
DSM, CORPORATE OFFICE
K.R. CIRCLE,
BANGALORE - 560 009.
6. SRI GOPAL KRISHNA V.,
S/O C.S. VEERANNA
AGED ABOUT 59 YEARS
SUPERINTENDING ENGINEER
R & D CENTRE, KPTCL,
CAUVERY BHAVAN,
BANGALORE - 560 009.
7. SRI KRISHNA MURTHY P.,
S/O M. PUTTASWAMY
AGED ABOUT 59 YEARS
SUPERINTENDING ENGINNER
GENERAL MANAGER (POWER PURCHASE)
BESCOM, K.R. CIRCLE
BANGALORE - 560 009.
8. SRI GOPAL N GOANKAR
S/O SRI NARAYANA GAONKAR
AGED ABOUT 56 YEARS
WORKING AS SUPERINTENDING ENGINEER
PROJECTS CESC CORPORATE OFFICE
HINKAL, VIJAYANAGAR 2ND STAGE
MYSORE - 570 007.
9. SRI M.K. SOMASHEKAR
S/O LATE M.A. KRISHNAPPA
AGED ABOUT 52 YEARS
WORKING AS EXECUTIVE ENGINEER
PROCUREMENT CESC CORPORATE OFFICE
HINKAL, VIJAYANAGAR 2ND STAGE
MYSORE - 570 007.
10. SRI A.A. SUNIL KUMAR
S/O LATE A.K. AYAPPA
AGED ABOUT 57 YEARS
WORKING AS EXECUTIVE ENGINEER
CESC, O & M DIVISION,
5
HUNSUR,
MYSORE DISTRICT - 571 101.
... RESPONDENTS
(BY SRI DYAN CHINNAPPA, SENIOR COUNSEL AND
SMT. M.C. NAGASHREE, ADVOCATE FOR R1 & R2;
SRI S. SRIRANGA, SENIOR ADVOCATE FOR
SRI ARIHANT R. SUNGAY, ADVOCATE AND
SMT. SUMANA NAGANANDA, ADVOCATE FOR R3;
SRI VIJAYA KUMAR V.B., ADVOCATE FOR R4 TO R7;
SRI K.S. ANASUYADEVI, ADVOCATE FOR R8 TO R10;
SRI REUBEN JACOB, ADVOCATE FOR R12 TO R16;
MISS SUVARNA M.L., ADVOCATE FOR R11;
SRI ADITYA SONDHI, SENIOR COUNSEL
HAS BEEN APPOINTED AS AMICUS CURIAE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS LEADING TO CIRCULAR DTD.24.06.2019 AND
PROVISIONAL SENIORITY LIST DTD.22.07.2019 AND -
QUASH (I) CIRCULAR DTD.24.06.2019 (UNDER
ANNXURE-N TO THE W.P.) ISSUED BY THE R-1 IN SO FAR AS IT
PERTAINS ITS IMPLEMENTATION IN THE R-3/KPTCL AND (II)
NOTIFICATION DTD.22.07.2019 (UNDER ANNXURE-S TO THE
W.P.) PUBLISHING THE PROVISIONAL SENIORITY LIST ISSUED
BY THE R-3/KPTCL BY ISSUE OF A WRIT IN THE NATURE OF
CERIORARI AND DIRECT THE R-3/KPTCL BY ISSUE OF A WRIT IN
THE NATURE OF MANDAMUS TO FOLLOW GOVERNMENT ORDERS
DTD.27.02.2019 AND 15.05.2019 FOR IMPLEMENTATION OF THE
JUDGMENT OF THE HON'BLE SUPREME COURT IN
B.K.PAVITRA-II V. UNION OF INDIA (AIR 2019 SC 2723)
RENDERED ON 10TH MAY 2019 AND MAINTAIN THE RATIO OF
RESERVATION AT 18% FOR SC/ST AND 82% FOR OTHERS AND
GRANT ALL CONSEQUENTIAL BENEFITS AND ETC.
IN W.P. NO.44851/2019
BETWEEN:
1. GOPALAKRISHNA
S/O LATE DEVAPPA NAYAK
AGED ABOUT 59 YEARS
Page No.5 Re-typed and replaced vide
chamber order dated 21.01.2023
6
WORKING AS SUPERINTENDING ENGINEER (EL).,
OFFICE OF THE CHIEF ENGINEER,
TENDERING AND PROCUREMENT,
KPTCL, KAVERI BHAVAN,
BANGALORE - 09,
AND RESIDING AT NO.05,
MIG-2, 3RD MAIN, I CROSS,
4TH PHASE, YALAHANKA NEW TOWN,
BANGALORE - 64.
2. KOTRESHI THALASTA
S/O SHANKARAPPA THALASTA,
AGED ABOUT 58 YEARS
WORKING AS SUPERINTENDING ENGINEER (ELE),
OFFICE OF THE CHIEF ENGINEER,
TRANSMISSION ZONE,
KPTCL, SANTHEPETE,
HASSAN - 573 201.
... PETITIONERS
(BY MISS SUVARNA M.L., ADVOCATE FOR
SRI K. PUTTEGOWDA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA,
BANGALORE - 01,
REPRESENTED BY THE
ADDITIONAL CHIEF SECRETARY.
2. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
KAVERI BHAVAN,
BANGALORE - 09
REPRESENTED BY THE
MANGALORE - 09
REPRESENTED BY THE MANAGING DIRECTOR.
3. THE DIRECTOR (ADMN & HR),
KARNATAKA POWER TRANSMISSION
7
CORPORATION LIMITED,
KAVERI BHAVAN,
BANGALORE - 09.
4. SHANTI M
FATHER'S NAME NOT KNOWN TO
THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER ELECL.,
RT & R & D, KPTCL
KHAVERI BHAVAN
BANGALORE - 09.
5. SRI. RAJAPPA
FATHER'S NAME NOT KNOWN TO THE
PETITIONERS
MAJOR IN AGE
WORKING AS DIRECTOR TECHNICAL
HESCOM, NAVANAGAR
HUBLI - 580 025.
6. SRI. YESWANTH CHAVAN
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER,
BMRCL, SHANTI NAGAR,
BANGALORE - 27.
7. SRI. SIDDARAJU K
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER (ELE),
CO&M, BESCOM BRAZ,
BANGALORE - 44.
8. SRI. ANANDA NAIK
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER ELECL.
8
C O & M, MESCOM,
SHIVAMOGGA - 577 201.
9. SRI. SAKKARI S P
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE
WORKING AS CHIEF ENGINEER ELECL.,
TR ZONE, KPTCL,
BAGALAKOTE - 587 103.
10 . MANJUNATH M T
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER ELECL,
CO&M, CESCOM,
MYSORE - 570 015.
11 . SRI. LAKSMAN CHAVAN
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER ELECL,
CORPORATE OFFICE, GESCOM,
GULBARGA - 585 101.
12 . SRI. KODANDAPANI D
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER ELECL,
TR ZONE, KPTCL
MYSORE - 570 007.
13 . SRI. UMESH B J
FATHER'S NAME NOT KNOWN
TO THE PETITONERS
MAJOR IN AGE
WORKING AS CHIEF ENGINEER ELECL.,
CO&M, BESCOM BMAZ NORTH,
BANGALORE - 560 046.
9
14 . SRI. CHANDRASHEKARAIAH G R
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER ELECL.,
BESCOM PROJECTS,
K R CIRCLE,
BANGALORE - 01.
15 . SRI. JAYAKUMAR R
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS DIRECTOR TECHNICAL,
GESCOM,
GULBARGA - 585 101.
16 . ADINARAYANA C
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF EINGINEER ELECL.,
TR ZONE KPTCL,
TUMKUR - 572 103.
17 . SMT. PADMAVATHI
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS CHIEF ENGINEER ELECL,
C O &M, MESCOM
MANGALORE - 575 004.
18 . SRI. GOVINDAPPA K V
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS SUPERINTENDING ENGINEER (ELE).
CO & M, BESCOM,
TUMKUR - 572 101.
10
19 . SRI. MANJUNATHA S V
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS SUPERINTENDING ENGINEER ELECL.
TR. MAINTENANCE CIRCLE, BRAZ,
KPTCL, HEBBAL
BANGALORE - 560 024.
20 . SRI. NAGARAJAN N R M
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS SUPERINTENDING ENGINEER ELECL.
CO&M CIRCLE, BESCOM,
RAMANAGAR, KENGERI,
BANGALORE - 560 060
21 . SRI. KOTEPPA S
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
MAJOR IN AGE,
WORKING AS SUPERINTENDING ENGINEER ELECL,
BESCOM, PROJECTS
K R CIRCLE,
BANGALORE - 560 001.
... RESPONDENTS
(BY SMT. SUMANA, ADVOCATE FOR R2 & R3;
SRI DYAN CHINNAPPA, SENIOR COUNSEL FOR
SMT. M.C. NAGASHREE, ADVOCATE FOR R1;
SRI RAGHAVENDRA N., ADVOCATE AND
SRI MARUTHI S., ADVOCATE FOR R4, R7, R13,
R14, R16, R18, R19 & R20)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
ENTIRE RECORDS FROM THE RESPONDENTS AND DIRECT THE
R-2 TO CONSIDER OBJECTIONS FILED BY THE PETITIONERS
DTD.17.8.2019 AND 16.8.2019 VIDE ANNEXURE-E AND E1 TO
THE PROVISIONAL SENIORITY LIST PUBLISHED BY THE R-2
DTD.22.7.2019 VIDE ANNXURE-D WITH A FURTHER DIRECTION
11
NOT TO EFFECT PROMOTIONS TO THE POST OF CHIEF
ENGINEERS(ELE)PENDING FINALIZATION OF THE SENIORITY
LIST OF SUPERINTENDING ENGINEER(ELE) AND ETC.
IN W.P. NO.8160/2020
BETWEEN:
1. MANSOOR AHMED M.,
S/O RAHAMATH ULLA
AGED ABOUT 59 YEARS
WORKING AS CHIEF ENGINEER
ELECTRICITY, TA & QC
KPTCL,
CAUVERY BHAVAN
BENGALURU - 560 009.
2. RENU PRASAD M.,
S/O S. MAHAKINGA SWAMY
AGED ABOUT 59 YEARS
WORKING AS CHIEF ENGINEER
ELECTRICITY, T & P,
KPTCL
CAUVERY BHAVAN
BENGALURU - 560 009.
... PETITIONERS
(BY MISS SUVARNA, ADVOCATE FOR
SRI PUTTEGOWDA K., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
VIDHANA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
12
2. THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT
ENERGY DEPARTMENT
VIKAS SOUDHA,
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
3. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
REPRESENTED BY ITS
MANAGING DIRECTOR
CAUVERY BHAVAN,
K.G. ROAD
BENGALURU - 560 009.
... RESPONDENTS
(BY SRI ADITYA SONDHI, SENIOR COUNSEL AND
SMT. M.C. NAGASHREE, ADVOCATE FOR R1 & R2;
SRI SUMANA BALIGA M., ADVOCATE FOR R3)
***
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO CIRCULAR DATED 24.06.2019
AND PROVISIONAL SENIORITY LIST DATED 22.7.2019 AND
QUASH (I) CIRCULAR DATED 24.6.2019 (UNDER ANNEXURE-N
TO THE W.P.) ISSUED BY THE R-1 IN SO FAR AS IT PERTAINS
ITS IMPELMENTATION IN THE R-3/KPTCL AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 14.12.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
13
ORDER
S. SUNIL DUTT YADAV. J
THIS ORDER HAS BEEN DIVIDED INTO THE FOLLOWING
SECTIONS TO FACILITATE ANALYSIS:
DETAILS OF ORDERS PASSED RELATING TO 36
INTERLOCUTORY APPLICATIONS
RESERVATION ACT, 2018
BENGALURU DATED 27.02.2019
ANALYSIS OF JARNAIL SINGH-II AND
THE RESERVATION ACT, 2018
BE CALCULATED AT THE TIME OF EVERY PROMOTION
ANALYSIS OF OVER ALL ADMINISTRATIVE 70
EFFICIENCY
SRS 2018 DATED 24.06.2019
(FREQUENTLY ASKED QUESTIONS)
W.P.No.8160/2020, W.P.No.36133/2019 and
W.P.Nos.44851/2019 are filed by Officers of the Karnataka
Power Transmission Corporation Limited (hereinafter
referred to as "KPTCL") and belong to the General Category
(in contradistinction to those officers who belong to
reserved category consisting of Scheduled Castes and
Scheduled Tribes) and are aggrieved by their seniority
vis-à-vis those who have been promoted on the basis of
reservation and as the above writ petitions raise common
legal questions, all the petitions are taken up together and
are disposed off by this common order.
2. Reliefs sought for in the various writ petitions are as
follows:
2.1 W.P.No.8160/2020
a) Quash the Circular bearing DPAR 186 SRS 2018
Dated 24.06.2019, quash the Notification No.KPTCL/B100/
3750/2019-20 dated 22.07.2019 publishing the provisional
seniority list issued by the KPTCL and further direct the
KPTCL by issuing writ in the nature of mandamus to follow
Government Orders dated 27.02.2019 and 15.05.2019 for
the purpose of implementation of judgment of the Apex
Court in B.K.Pavitra and Others v. Union of India and
Others1 (B.K.Pavitra II)
b) to maintain ratio of reservation at 18% for SC/ST
and 82% for others and grant all consequential benefits.
2.2 W.P.No.36133/2019
a) Identical relief's as in (a) and (b) in
W.P.No.8160/2020 referred to above have been claimed.
b) Further, by way of amendment, challenge has
been laid to the seniority list dated 27.08.2021 published
pursuant to the judgment in B.K.Pavitra II (supra) with
further direction for restoration of the seniority list dated
27.10.2017 pursuant to the judgment in B.K.Pavithra and
Others v. Union of India and Others2 (B.K.Pavitra I)
(2019) 16 SCC 129
(2017) 4 SCC 620
c) To direct the KPTCL to make promotions in terms
of the seniority list dated 27.10.2017 on the basis of
deemed date of eligibility.
2.3 W.P.Nos.44851/2019
(a) Petitioners have sought for issuance of writ of
mandamus to direct the KPTCL to consider objections filed
by the petitioners dated 17.08.2019 and 16.08.2019 as per
Annexure-'E' and 'E1' to the provisional seniority list
published by the second respondent dated 22.07.2019 with
a further direction not to effect promotions to the post of
Chief Engineer pending finalization of the seniority list of
Superintending Engineer (Ele).
b) Sought for issuance of writ of mandamus to direct
the KPTCL to issue revised final seniority list of
Superintending Engineers (Ele) in strict adherence to
Section 5 of Act 21 of 2018.
3. BRIEF FACTS:
3.1 The Apex Court in the case of B.K.Pavitra I (supra)
had considered a challenge to the validity of the "Karnataka
Determination of Seniority of the Government Servants
Promoted on the Basis of Reservation (to the Posts in the
Civil Services of the State) Act, 2002" ("Reservation Act,
2002) and had held that Sections 3 and 4 of the
Reservation Act, 2002 whereby the "catch up rule" was
done away with and had provided for consequential
seniority was ultra-vires Article 14 and 16 of the
Constitution of India on the ground that the exercise for
determining inadequacy of representation, backwardness
and the impact on overall efficiency had not preceded the
enactment of the law as was mandated by the decision of
the Constitution Bench in M.Nagaraj and Others v. Union
of India and Others3 (M.Nagaraj). The Apex Court
further held that the "catch up rule" should apply. It was
however clarified that the judgment would not affect those
who had already retired and had taken financial benefits.
(2006) 8 SCC 212
It was further provided that promotions granted to serving
employees based on consequential seniority would be
treated as adhoc and liable to be reviewed. Seniority List
was directed to be revised in light of the judgment. The
observations made by the Apex Court are as follows:
"29. It is clear from the above discussion
in S. Panneer Selvam case [S. Panneer
Selvam v. State of T.N., (2015) 10 SCC 292 :
(2016) 1 SCC (L&S) 76] that exercise for
determining "inadequacy of representation",
"backwardness" and "overall efficiency", is a
must for exercise of power under Article 16(4-A).
Mere fact that there is no proportionate
representation in promotional posts for the
population of SCs and STs is not by itself enough
to grant consequential seniority to promotees
who are otherwise junior and thereby denying
seniority to those who are given promotion later
on account of reservation policy. It is for the
State to place material on record that there was
compelling necessity for exercise of such power
and decision of the State was based on material
including the study that overall efficiency is not
compromised. In the present case, no such
exercise has been undertaken. The High Court
erroneously observed that it was for the
petitioners to plead and prove that the overall
efficiency was adversely affected by giving
consequential seniority to junior persons who got
promotion on account of reservation. Plea that
persons promoted at the same time were
allowed to retain their seniority in the lower
cadre is untenable and ignores the fact that a
senior person may be promoted later and not at
the same time on account of roster point
reservation. Depriving him of his seniority affects
his further chances of promotion. Further plea
that seniority was not a fundamental right is
equally without any merit in the present context.
In absence of exercise under Article 16(4-A), it is
the "catch-up" rule which fully applies. It is not
necessary to go into the question whether the
Corporation concerned had adopted the rule of
consequential seniority.
30. In view of the above, we allow these
appeals, set aside the impugned judgment and
declare the provisions of the impugned Act to
the extent of doing away with the "catch-up"
rule and providing for consequential seniority
under Sections 3 and 4 to persons belonging to
SCs and STs on promotion against roster points
to be ultra vires Articles 14 and 16 of the
Constitution. The judgment will not affect those
who have already retired and will not affect
financial benefits already taken. Consequential
promotions granted to serving employees, based
on consequential seniority benefit, will be treated
as ad hoc and liable to be reviewed. Seniority list
may be now revised in the light of this judgment
within three months from today. Further
consequential action may be taken accordingly
within next three months."
3.2 After the judgment in B.K.Pavitra-I (supra), the
Government of Karnataka constituted the "Rathnaprabha
Committee"4 to submit a report on the backwardness and
inadequacy of representation of Scheduled Castes and
Scheduled Tribes (hereinafter referred as SC/ST's) in the
State Civil Services and to study the impact of reservation
on overall administrative efficiency. The terms of reference
of the committee was as follows:
"(1) Collect information on the cadre-wise
representation of Scheduled Castes and
Scheduled Tribes in all the government
departments;
(2) Collect information regarding
backwardness of Scheduled Castes and
Scheduled Tribes; and
(3) Study the effect on the administration
due to the provision of reservation in promotion
to the Scheduled Castes and Scheduled Tribes."
The Committee submitted its report and on the basis
of which the State Government enacted the "Karnataka
Extension of Consequential Seniority to Government
Servants promoted on the basis of Reservation Act, 2017
(to the posts in the Civil Services of the State) (Karnataka
Vide G.O.No.DPAR 182 Sene Ni 2011; Headed by the Additional Chief
Secretary to the State of Karnataka
Act 21 of 2018)" [hereinafter referred to as "Reservation
Act, 2018"].
3.3 The validity of the Reservation Act, 2018 came to be
challenged and the Apex Court in the case of B.K.Pavitra
II (supra), has upheld the constitutional validity and the
relevant observations of the operative order is as follows:
"153. For the above reasons, we have come
to the conclusion that the challenge to the
constitutional validity of the Reservation Act, 2018
is lacking in substance. Following the decision
in B.K.Pavitra (1) [B.K. Pavitra v. Union of India,
(2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] ,
the State Government duly carried out the
exercise of collating and analysing data on the
compelling factors adverted to by the Constitution
Bench in Nagaraj [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] .
The Reservation Act, 2018 has cured the
deficiency which was noticed by B.K. Pavitra
(1) [B.K. Pavitra v. Union of India, (2017) 4 SCC
620 : (2017) 2 SCC (L&S) 128] in respect of the
Reservation Act, 2002. The Reservation Act, 2018
does not amount to a usurpation of judicial power
by the State Legislature. It is Nagaraj [M.
Nagaraj v. Union of India, (2006) 8 SCC 212 :
(2007) 1 SCC (L&S) 1013] and Jarnail [Jarnail
Singh v. Lachhmi Narain Gupta, (2018) 10 SCC
396 : (2019) 1 SCC (L&S) 86] compliant. The
Reservation Act, 2018 is a valid exercise of the
enabling power conferred by Article 16(4-A) of the
Constitution."
3.4 In fact, the Apex Court dismissed the Review Petition5
seeking review of the judgment in B.K.Pavitra II (supra).
The observations made by the Apex Court in the Review
Petition are as follows:
"1. These proceedings have been initiated
for a review of the judgment of this Court in
B K Pavitra & Ors. v Union of India &
Ors.[(2019) 16 SCC 129)]. This Court, by its
judgment dated 10 May 2019, upheld the
constitutional validity of the Karnataka
Extension of Consequential Seniority to
Government Servants Promoted on the Basis of
Reservations (to the Posts in the Civil Services
of the State) Act 2018. The conclusion which
was arrived at by the Court is extracted below:
"144. For the above reasons, we
have come to the conclusion that the
challenge to the constitutional validity of
the Reservation Act 2018 is lacking in
substance. Following the decision in
B K Pavitra I, the State government duly
carried out the exercise of collating and
analysing data on the compelling factors
adverted to by the Constitution Bench in
Nagaraj. The Reservation Act 2018 has
cured the deficiency which was noticed
by B K Pavitra I in respect of the
Reservation Act 2002. The Reservation
Review Petition (C) No.1632 of 2019 in W.P.(C) No.764 of 2018
Decided on 30.07.2020
Act 2018 does not amount to a
usurpation of judicial power by the State
Legislature. It is Nagaraj and Jarnail
compliant. The Reservation Act 2018 is a
valid exercise of the enabling power
conferred by Article 16 (4A) of the
Constitution."
2. It has been urged in the Review
Petitions that this Court did not consider the
binding principles laid down by a Constitution
Bench of this Court in Nagaraj v Union of India
[(2006) 8 SCC 212)] and Jarnail Singh v
Lachhmi Narain Gupta [(2018) 10 SCC 396]
and that, in any case, the matter should have
been referred to a Bench of a higher strength.
It has also been urged, inter alia, that there is
an error apparent in the findings of this Court
on the retrospective application of the
Reservation Act 2018 and the inapplicability of
the 'creamy layer' concept to consequential
seniority.
3. We have gone through the contents of
the Review Petitions. Every ground urged in the
review petitions has been addressed on merits
in the judgment under review. Consistent with
the parameters that guide the exercise of the
review jurisdiction, we do not find any error
apparent on the record to justify interference.
The Review Petitions are therefore dismissed."
4. SUMMARY OF CONTENTIONS:
4.1 CONTENTIONS OF THE PETITIONERS:
A. W.P.No.44851/2019
i) The private respondents were promoted in violation of
the roster and contrary to the prevailing reservation
policy and rules. The promotion of the private
respondents was in excess and beyond the quota
stipulated.
ii) The seniority list was required to be reviewed in terms
of the procedure under Section 5 of Reservation Act,
2018, Proviso to Section 5 specifically provides that if
persons belonging to SC & ST candidates are
promoted in excess of the reservation specified and if
they cannot be adjusted and fitted against the roster
points they are required to be continued against
supernumerary posts to be created in the cadres in
which they are working till they obtain eligibility for
promotion. It is contended that this is also in
accordance with Clause 8 (iii) and (iv) of the
Government Order dated 24.06.1997.
iii) The Government Order dated 24.06.1997 and
13.04.1999 provides that reservation in promotion in
favour of Scheduled Caste and Scheduled Tribe shall
not exceed 15% and 3% respectively after backlog is
cleared which has not been adhered to.
iv) As promotion to the private respondents was in excess
of the extent of reservation, the private respondents
ought to have been placed in supernumerary posts
and if that were to be so, they would still be juniors to
the petitioners.
v) The private respondents were promoted to the post of
Assistant Executive Engineers (AEE) in 1996 in excess
of their quota of 15% and 3% and the seniority
assigned is the starting point of illegality which has
continued. The petitioners were promoted as
Executive Engineers during 2008 while private
respondents were promoted as Superintending
Engineers during January, 2008. The petitioners had
to wait for their promotion to the post of
Superintending Engineer till 2016 and 2018. The
illegality in promotion of the private respondents in
excess of their reservation quota has resulted in
cascading effect on the promotional prospects of the
petitioners who have been denied seniority over the
private respondents resulting in prejudicing their
promotional prospects to the post of Superintending
Engineers for a decade.
vi) Based on the judgment passed in B.K.Pavitra-II
(supra) on 22.07.2019 KPTCL has published
provisional seniority list of Superintending Engineers
as on 01.06.2019 wherein petitioners were shown at
Sl.No. 61 and 44 and had filed their objections to such
provisional seniority list pointing out that excess
reservation was provided to Scheduled Caste and
Scheduled Tribe candidates in the cadre of Assistant
Executive Engineers which is required to be set right in
terms of procedures prescribed in Section 5 of
Reservation Act, 2018.
vii) The names of private respondents No.18 to 20 also
figure at Sl.No.1 to 3 as per the letter dated
26.08.2019. Provisional seniority list has been
published by restoring the seniority of the
Superintending Engineers as existed prior to the
judgment rendered by the Apex Court in
B.K. Pavitra I (supra) and such list is in violation of
provisions of Reservation Act, 2018.
B. W.P.No.36133/2019
i) The Circular dated 24.06.2019 issued by the State is
contrary to the Government Orders earlier issued for
implementation of Reservation Act, 2018 as also the
Government Order dated 27.02.2019 which indicates
manner of implementation.
ii) The respondent-KPTCL has been operating the roster
eternally as a running account even after representation
of Scheduled Castes and Scheduled Tribes in a cadre
had reached the required percentage and consequently
the reservation has exceeded the percentage of 15%
and 3%.
iii) Promotions made after 10.02.1995 are to be strictly in
accordance with the law laid down in R.K.Sabharwal
and Others v. State of Punjab and Others6
(R.K.Sabharwal) and once reservation is permitted,
the same is to be implemented till all vacancies and
posts in a cadre are filled and the question of operating
roster eternally does not arise.
iv) The Government Order dated 03.02.1999 provides that
reservation in favour of persons belonging to Scheduled
Castes and Scheduled Tribes would continue to operate
till their representation in a cadre reaches the requisite
percentage of 15% and 3%. Thereafter the reservation
in promotion shall be continued only to maintain the
reservation with respect to the aforesaid percentage.
(1995) 2 SCC 745
v) The KPTCL has failed to adopt application of roster on
"post based" and has been continuing to operate the
roster "vacancy based" which is contrary to the
judgment of the Apex Court in the case of
R.K.Sabharwal (supra).
vi) The Government in its pleadings filed in pending
proceedings before the Apex Court has taken a stand
that reservation in promotion was being practiced and
implemented on "vacancy based" principle till the
judgment of the Apex Court in B.K. Pavitra I (supra).
It was submitted that post based reservation would be
made prospectively.
vii) After the judgment of the Apex Court in B.K. Pavitra II
(supra), the State Government has passed a
Government Order dated 15.05.2019 and Clause 6 and
7 of the said Government Order stipulates that
publication of provisional/ final seniority lists,
assignment of dates of eligibility, review of promotions,
fixation of pay and pension is required to be completed
within a period of 30 days.
viii) Without conducting review of promotions and notifying
seniority list by official memorandum dated 20.05.2019
all persons belonging to Scheduled Castes and
Scheduled Tribes have been brought back to the
position that they held prior to 16.04.2018.
ix) The circular regarding Frequently Asked Questions
(FAQ's) has the effect of bringing back those officials
who were demoted without conducting any review as
was required.
x) In terms of the provisional seniority list that is notified,
the percentage of reservation in every cadre is beyond
15% and 3% leading to the petitioners approaching this
Court challenging the Circulars of 24.06.2019 and the
provisional seniority list dated 22.07.2019.
xi) On the strength of the interim order the Apex Court has
published final seniority list dated 27.08.2021 which is
the replica of the provisional seniority list.
xii) After the judgment in the case of B.K. Pavitra II
(supra), pronounced on 10.05.2019 Government has
notified an order on 15.05.2019 reiterating the
Government Order dated 27.02.2019 towards
implementation of the judgment in the case of
B.K. Pavitra II (supra), which would have the effect
that beneficiaries of the judgment in B.K. Pavitra I
(supra) would not be reverted and in terms of the
Government Orders petitioners are not to be reverted
or shown in a lower cadre in the provisional seniority
list.
xiii) The seniority list finalized and implemented as per the
notification of 27.10.2017 was prepared by applying the
catch up rule in terms of judgment in B.K. Pavitra I
(supra). The preparation of seniority list in
B.K. Pavitra II (supra), is contrary to the law laid
down in M. Nagaraj (supra) and Jarnail Singh and
Others v. Lachhmi Narain Gupta7 (Jarnail Singh
II).
xiv) Consequent to the judgment in Jarnail Singh II
(supra) if the State wishes to exercise its discretion to
provide for reservation State is required to collect
quantifiable data showing backwardness of the cadre
and inadequacy of representation of that cadre in public
employment while complying with the mandate under
Article 335 of the Constitution of India.
xv) State is required to ensure that the provision for
reservation does not lead to excessiveness so as to
breach the ceiling limit of 50% or obliterate the creamy
layer or extend the reservation indefinitely.
C. W.P.No.8160/2020
The petitioners have challenged the validity of the
Circular dated 24.06.2017 and the relief's sought for and
Civil Appeal No. 629/2022
contentions raised are substantially similar as raised in
W.P.No.36133/2019.
4.2 SUMMARY OF CONTENTIONS OF THE RESPONDENTS
A. CONTENTIONS OF THE RESPONDENT-KPTCL
i) As far as the challenge relating to the provisional
seniority list as made out in the original prayer same
is impermissible as it is only the final seniority list that
could be challenged.
ii) The Government Order dated 27.02.2019 provided for
a protection against non-reversion till exercise is
completed by way of revised seniority lists prepared in
accordance with Sections 4, 5 and 6 of the
Reservation Act, 2018 r/w Section 9 of the "Karnataka
State Civil Services (Regulation of Promotion, Pay and
Pension) Act, 1973." ("KCS Regulation of Promotion
Act, 1973). Such procedure for revising the seniority
lists is being done in accordance with applicable law.
iii) Following the verdict of the Apex Court in
B.K. Pavitra I (supra) and in light of setting aside of
the Reservation Act, 2002, fresh seniority list was
published on 27.10.2017. With coming into force of
the Reservation Act of 2018 and protection of
consequential seniority has resulted in the protection
of consequential seniority from 24.04.1978.
iv) The prayer of the petitioners that they shall be
retained in the cadre of Chief Engineer or in the
promoted post to which they were promoted in
accordance with the judgment of the Apex Court in
B.K. Pavitra I (supra) is liable to be rejected as the
protection against reversion contemplated in the
Government Order of 27.02.2019 would be only till
exercise of review is completed in terms of Sections 4,
5 and 6 of the Reservation Act 2018 r/w Section 9 of
the KCS Regulation of Promotion Act, 1973.
v) Protection of the position as per the list prepared after
B.K. Pavitra I (supra) would in effect result in
violation of the judgment in B.K. Pavitra II (supra).
vi) The assertion that percentage of reservation is beyond
permissible limit is a bald allegation and no evidence is
placed to substantiate such contention.
vii) The Reservation Policy does not apply to promotion to
the cadre above the level of Assistant Executive
Engineer and hence the allegation of excessive
reservation at the higher end of the hierarchy cannot
be accepted.
B. CONTENTIONS OF THE RESPONDENT-STATE:
i) The exercise of revision of the seniority list in terms of
provisions of the Reservation Act, 2018 will have the
effect of reversion of officers belonging to General
Category. In light of the setting aside of the
Reservation Act, 2002, officers belonging to the
Scheduled Castes and Scheduled Tribes category lost
their consequential seniority and their positions were
occupied by those in the General Category. With
Reservation Act, 2018 granting consequential seniority
to those from the General Category are bound to be
reverted.
ii) The entire list of FAQ's which forms part of the Circular
dated 24.06.2019 does not take away or alter the
efficacy of the Reservation Act, 2018 or the
Government Order dated 27.02.2019 and it is the
Reservation Act, 2018 which governs the field and
would supersede the Circular in case of conflict.
5. ANALYSIS:
5.1 DETAILS OF ORDERS PASSED RELATING TO
INTERLOCUTORY APPLICATIONS
It would be necessary to notice that during the
pendency of the writ petitions, various interim orders were
passed which gave rise to challenges to the said interim
orders and for completeness of narration of facts, it is
necessary that the said details are to be enumerated.
(i) 05.09.2019 - As the respondents did not file their
statement of objections, an interim order of stay of
the proceedings and restraining the respondents from
reverting the petitioners from the post of Chief
Engineer to Superintendent Engineer came to be
passed.
(ii) As against such order, I.A.No.4/2019 came to be filed
seeking vacation of interim order dated 05.09.2019.
The said application came to be disposed off
permitting third respondent Corporation to publish and
operate the Seniority List, while stipulating that
compliance with the law laid down by the Apex Court
and statement made by the State to the Apex Court in
Shiv Kumar Tripathi v. Union of India and
Others8( Shiv Kumar Tripathi) was to be ensured.
(iii) It was further provided that copy of the Seniority List
ought to be placed before the Court prior to publishing
the same and that the petitioners, if not promoted, are
W.P.(C) No.791/2019
not to be reverted till further orders are passed by the
Court. It was stipulated that Seniority List to be
published would be subject to the final orders to be
passed and those Officers who are accorded
promotions are not entitled to claim equity.
(iv) 28.07.2020 - Orders were passed on I.A.No.2/2020.
The said application was filed by the third respondent
Corporation seeking permission for granting officiating
charge to the eligible employees figuring in the
Seniority List impugned in the Writ Petition to enable
day-to-day operation. Said application came to be
disposed off in terms of the following:-
"Having heard the learned counsel for the
parties, this Court accords permission to the
respondent-Corporation for making placement
by way of In-charge arrangement of the
persons enlisted in the impugned Seniority List
subject to following conditions:
(a) the placement of the employees figuring in
the impugned Seniority List shall be only by
way of In-charge arrangement subject to
outcome of the writ petitions;
(b) the employees placed on In-charge
arrangement shall not have any right of lien to
the posts in question and that they will not
exercise any substantive functions of the said
posts;
(c) this In-charge arrangement per se shall not
create any equity or right in favour of the
employees now being placed in the higher
positions for seeking retrospective promotion in
any circumstance, whatsoever;
(d) in effecting placement by way of In-charge
arrangement, the extant rules of reservation
shall be followed so that equity & justice are
meted out to all sections of the employees;
(e) the In-charge arrangement to be effected
shall not result into interfering with the
protection afforded to the petitioners by virtue
of the interim orders or otherwise affect their
powers and positions; and,
(f) no party to the main proceedings shall use
this In-charge arrangement or any benefit
derived there under either in its favour or
against the interest of the others, in any way
whatsoever."
(v) As against the order of 28.07.2020 on I.A.No.2/2020,
Writ Appeal No.480/2020 came to be filed and was
disposed off on 13.11.2020 with the following
observations:
"36. In view of the aforesaid discussion, we
find that the impugned order would call for the
following modification and the modified
conditions shall read as under:-
(a) The placement of the employees figuring in
the impugned Seniority List shall be only by way
of in-charge arrangement subject to outcome of
the writ petitions;
(b) The employees placed on in-charge
arrangement shall not have any right of lien to
the posts in question. They can, however,
exercise substantive functions of the said posts,
having regard to the interest of administration;
(c) This in-charge arrangement per se shall not
create any equity or right in favour of the
employees now being placed in the higher
positions for seeking retrospective promotion in
any circumstance, whatsoever as it is being
made having regard to administrative
exigencies;
(d) In effecting placement by way of In-charge
arrangement, the extant rules of reservation
shall be followed so that equity and justice are
meted out to all sections of the employees so far
as practicable;
(e) The In-charge arrangements to be effected
shall not result into interfering with the
protection afforded to the petitioners by virtue of
the interim orders or otherwise affect their
powers and positions; and,
(f) No party to the main proceedings shall use
this In-charge arrangement or any benefit
derived there under either in its favour or
against the interest of the others, in any way
whatsoever."
(vi) As against the order passed on I.A.No.4/2019 dated
06.03.2020, W.A.No.448/2020 came to be filed which
was also disposed off on 13.11.2020. As per order
dated 06.03.2020, the Corporation was permitted to
publish the Seniority List subject to compliance with
order of the Apex Court in Shiv Kumar Tripathi
(supra). The Division Bench stipulated that if the
Scheduled Castes and Scheduled Tribes Officers are
promoted against backlog vacancies which are found
to be in excess and are contrary to the reservation
provided and cannot be adjusted and fitted against
roster points, they shall be continued against
supernumerary posts till they obtain eligibility for
promotion in that cadre. It was further stipulated that
the final Seniority List ought to be published keeping
in mind observations made therein, while reserving
liberty to those who were aggrieved to challenge the
same in accordance with law.
(vii) As against the order of the Division Bench dated
13.11.2020 in R.P.No.14/2021 in W.A.No.448/2020
Special Leave Petition No.11573-11574/2021 came to
be filed. The Apex Court has noted the interim order
permitting publishing of Final Seniority List which
interim direction reads as follows:
"Pending further consideration, the
petitioner is at liberty to publish Final
Seniority List in terms of B.K.Pavithra-II and
Section 4 and 5 of the above legislation.
However, publication of such Final Seniority
List shall not adversely impact or effect
interest of the writ petitioners or similarly
situated candidates till further orders."
The Apex Court while noting that the challenge
is pending consideration before a Single Judge did
not deem it appropriate to entertain the SLP's while
directing that interim directions referred to above to
continue during the pendency of the proceedings
before the learned Single Judge in the writ
proceedings while directing disposal of the writ petition
within six (6) months.
(viii) It is the argument of the counsel appearing for the
petitioner that the observations made in
W.A.No.448/2020 stand undisturbed and the Apex
Court while considering the SLP's filed against the said
order did not set aside the observations made, and
that the directions passed in the writ appeals merged
with the final order. Accordingly, it is submitted that
the promotions made between B.K.Pavitra I (supra)
and B.K. Pavitra II (supra), are saved in terms of
observations made in Para 54 and 55 of the order in
W.A.No.448/2020 dated 13.11.2020 and would have
the effect of non-reversion of promotees even
belonging to the General Category.
(ix) It must be noted that no doubt, the Apex Court did
not entertain the Special Leave Petitions, but that is
on the premise that the main challenge was pending
consideration before the learned Single Judge and as
interim directions were passed by the Apex Court
protecting against any adverse impact on the
publication of Final Seniority List vis-a-vis the
petitioners who were similarly situated persons.
(x) It is clear that there has been no adjudication
regarding the order passed in W.A.No.448/2020 and in
light of the interim protection granted the SLP's itself
were declined to be entertained. The non-entertaining
of SLP must be construed in the context of entirety of
facts as on date of passing of the order. It cannot
however be construed to be affirmation of the
observations made by the Division Bench on merits of
the matter that was still pending adjudication. The
Apex court in the interim directions passed on
02.08.20219 extracted in the order of 22.04.2022
clarified that the Final Seniority List must be in terms
"Pending further consideration, the petitioner is at liberty to publish final seniority list in
terms of B.K.Pavithra-II and Sections 4 and 5 of the above legislation. However,
publication of such final seniority list shall not adversely impact or affect the interest of
the writ petitioners or similarly situated candidates till further orders."
of B.K.Pavitra II which had upheld the validity of the
Reservation Act, 2018 and in terms of Section 4 and 5.
(xi) Needless to state the directions passed at interim
stage even in the writ appeal cannot have the effect of
pre-judging the issue which is now being adjudicated
upon. Accordingly to state that the protection given
against demotion to those in the General Category is
to continue cannot be accepted.
5.2 B.K.PAVITRA-I, B.K.PAVITRA-II AND RESERVATION
ACT, 2018:
i) The judgment of the Apex Court in B.K.Pavitra I
(supra) had the effect of setting aside the
Reservation Act of 2002. The court had observed that
exercise prior to providing reservation as provided
under Article 16 (4-A) of the Constitution of India
would require determining "inadequacy of
representation", "backwardness" and a study relating
to reservation and its effect on "overall efficiency" as a
condition precedent for providing reservation in
promotion. While holding so, the court had further
held that the provisions of the Reservation Act, 2002
to the extent of doing away with the "catch up rule"
and providing for consequential seniority under
Sections 3 and 4 to persons belonging to SC's & ST's
on promotion against roster points was ultra-vires
Article 14 and 16 of the Constitution of India.
Consequently, the court directed review of the
seniority list.
The seniority list thus prepared and notified on
27.10.2017 in light of the directions in B.K. Pavitra I
(supra) led to reversion of employees belonging to
Scheduled Castes and Scheduled Tribes to lower
cadres and promotion of employees belonging to
the unreserved category to higher cadres.
ii) The Government of Karnataka thereafter on
23.06.2018 notified the Reservation Act of 2018 which
was preceded by the exercise of determining
inadequacy in representation and impact of
reservation on overall efficiency, by way of a study
that was commissioned culminating in a report from
the "Rathnaprabha Committee".
iii) The Reservation Act, 2018 provided for (a) seniority of
those simultaneously belonging to SC & ST and
Unreserved Category who are promoted to a cadre at
the same time by a common order which would be
determined on the basis of seniority inter se in the
lower cadre10; (b) the consequential seniority accorded
to the Government servants belonging to SC & ST with
effect from 27.04.1978 as per various Government
Orders would stand protected11; (c) All promotions to
the posts are required to be within the extent and in
accordance with provisions of the reservation orders
and other rules pertaining to method of recruitment
and seniority. The Act also provided that the
Appointing Authority was required to revise the
existing seniority list to ensure that promotions are
Section 3
Section 4
made appropriately, provided that subsequent to such
a review whenever it is found that the Government
Servants belonging to SC & ST's were promoted
against reservation and backlog vacancies in excess
and are contrary to the extent of reservation, same
would be adjusted with reference to roster points by
assigning appropriate dates of eligibility. In the event
there cannot be adjustment against roster points they
shall be continued against supernumerary posts to be
created by concerned administrative department which
would be in operation till they obtain eligibility for
promotion in that cadre12; (d) The Act afforded
protection by stipulating that any action taken in
respect of promotions and all proceedings made
subsequent to 27.04.1978 in relation to promotion as
per Sections 3 and 4 of the Reservation Act, 2018
before publication of the Act are deemed to be valid
Section 5
and effective and such promotions cannot be reopened
or reviewed contrary to the provisions of the Act 13.
iv) The validity of the Reservation Act, 2018 came to be
assailed before the Apex Court in the case of
B.K.Pavitra-II disposed off on 10.05.2019, which
upheld the constitutional validity of the Act. The Apex
Court has declared that the Reservation Act of 2018 is
M. Nagaraj (supra) and Jarnail Singh and Others
v. Lachhmi Narain Gupta and Others 14 (Jarnail
Singh I) compliant and that the said Act is a valid
exercise of the enabling power conferred under Article
16 (4-A) of the Constitution.
5.3 GOVERNMENT ORDER NO.DPAR 186 SRS 2018
BENGALURU DATED 27.02.2019
i) During the pendency of the case of B.K. Pavitra II
(supra) before the Apex Court, the State Government
passed the Government Order dated 27.02.2019. The
said Government Order even in terms of the preamble
Section 9
[(2018) 10 SCC 396]
has been passed in order to implement the
Reservation Act, 2018 subject to the judgment of the
Apex Court which was pending consideration.
ii) The Government Order provided that all those officials
who had been reverted would be re-posted to the
cadres held by them immediately prior to their
reversion and if vacant posts are not available in those
cadres, supernumerary posts were to be created to
accommodate them. It was further provided that
Officers/Officials working at present in those cadres
belonging to any category shall not be reverted 15.
iii) The Government Order further provided; (a) the
change effected in the seniority consequent to the list
prepared pursuant to the Government Order dated
06.05.2017 and officials if reverted to lower cadre
would be posted back with retrospective effect to the
post held by him immediately before such reversion.
In the event the post in the cadre held by him
Point 8 of the Government Order
immediately before his reversion was not vacant he
was required to be posted against a supernumerary
post to be created by the administrative department
concerned16; (b) During this process, officers/officials
working in those cadres belonging to any category
shall not be reverted; (c) the supernumerary posts so
created would stand abolished after action is
completed in respect of the revised seniority lists
prepared in accordance with Section 4, 5 and 6 of the
Reservation Act, 2018 r/w Section 9 of the KCS
Regulation of Promotion Act, 197317.
The observation referred to at point (b) above
has been relied upon by the petitioners who claim
that there could be no reversion of officials belonging
to 'any category' despite any exercise of review and
have also sought for the protection of the seniority
list prepared subsequent to the judgment in
B.K. Pavitra I (supra), inspite of the direction
Point (8 (1) (a) of the Government Order
Point (8 (1) (a) of the Government Order
to re-work the seniority list by virtue of
Reservation Act, 2018.
iv) Though this Government Order was stayed by the
direction of the Apex Court on 01.03.2019
subsequently in light of upholding of the validity of the
Reservation Act, 2018 by the judgment of the Apex
Court in B.K. Pavitra II (supra), on 10.05.2019, the
Government of Karnataka by Government Order dated
15.05.2019 vide G.O.No.DPAR 186 SRS 2018 clarified
that the Reservation Act, 2018 is required to be
implemented in terms of the Government Order dated
27.02.2019.
v) While the seniority list dated 27.10.2017 made post
B.K.Pavithra-I by applying the catch-up rule was
required to be reviewed in terms of Sections 4, 5 and
6 of the Reservation Act, 2018 r/w Section 9 of the
KCS Regulation of Promotion Act, 1973 the question of
reverting to the seniority list prepared consequent to
B.K. Pavitra I (supra) cannot arise in light of the
Reservation Act, 2018 which provides for a review of
the seniority list.
vi) It must be noted that Section 4 of the Reservation Act,
2018 protects consequential seniority with effect from
27.04.1978, while Section 5 provides for review to
ensure that promotion would be within the extent and
in accordance with the provisions of the orders in
force. The proviso to Section 5 further provides that
subsequent to the review wherever it is found that
reservation in promotion was in excess of the requisite
limit, supernumerary post would be created till
eligibility for promotion is obtained by the official.
vii) It is clear that the Reservation Act, 2018 seeks to
provide for consequential seniority and extend the
same benefit as was sought to be made at the first
instance under the Reservation Act, 2002. It is also
clear that the reversion of those belonging to SC & ST
category consequent to the review would stand
protected even if it is found that promotions were
made in excess of the limits as imposed in the Orders
and Rules in operation, by creating supernumerary
posts which would continue to be in currency till the
officials belonging to the reserved category obtain
eligibility for promotion in that cadre. It is also clear
from the provisions of the Reservation Act, 2018 that
the protection against non-reversion was only as
regards those officers belonging to SC and ST.
viii) Reading of the Government Order dated 27.02.2019
makes it clear from the very preamble that it was only
to facilitate implementation of the Reservation Act,
2018.
ix) As rightly pointed out by the Additional Advocate
General appearing for State, the protection against
non-reversion for "any category" of employee provided
for under the Government Order dated 27.02.2019
was clearly only till the review as contemplated under
Sections 4 and 5 of the Reservation Act, 2018 was
completed. The protection under Section 5 of the Act
with regard to reversion after the exercise of review
was only as regards officials belonging to SC and ST
category. The Government Order of 27.02.2019
cannot confer any right to those officers of the General
category against non-reversion after the exercise of
review in terms of the Reservation Act, 2018 as the
plain reading of the proviso of Section 5 does not
permit such interpretation. It must also be noted as
conceded by the Additional Advocate General that the
Government Order even otherwise cannot be
construed to confer any right to those officers in
General Category contrary to the statutory provision of
Section 5 of the Act.
x) The Reservation Act, 2018 provides for protection of
consequential seniority in terms of Sections 3 and 4
of the Reservation Act, 2018. It further provides that
the seniority list was required to be re-worked from
that as notified after B.K.Pavitra I (supra).
Accordingly, the contention of continuing with the
seniority list of 27.10.2017 is a relief that cannot be
sought for or granted.
xi) It is also to be noted that the Apex Court in the case
of B.K. Pavitra II (supra), has observed that the
consequential seniority has been extended from the
date of the Reservation Order of 1978 and also
upholds protection provided for with retrospective
effect under the provisions of the Reservation Act,
2018 and the legal position relating to protection with
retrospectivity is summarized in Para 149 to 151 as
follows:
149. Sections 3 and 4 of the Reservation
Act, 2018 came into force on 17-6-1995. The
other provisions came into force "at once" as
provided in Section 1(2). Section 4 stipulates
that the consequential seniority already granted
to government servants belonging to the SCs
and STs in accordance with the reservation order
with effect from 27-4-1978 shall be valid and
shall be protected. In this context, we must note
from the earlier decisions of this Court that:
149.1. The decision in Virpal Singh [Union
of India v. Virpal Singh Chauhan, (1995) 6 SCC
684 : 1996 SCC (L&S) 1] held that the catch-up
rule would be applied only from 10-2-1995
which was the date of the judgment
in Sabharwal [R.K. Sabharwal v. State of Punjab,
(1995) 2 SCC 745 : 1995 SCC (L&S) 548] .
149.2. The decision in Ajit Singh (2) [Ajit
Singh (2) v. State of Punjab, (1999) 7 SCC 209 :
1999 SCC (L&S) 1239] specifically protected the
promotions which were granted before 1-3-1996
without following the catch-up rule.
149.3. In Badappanavar [M.G.Badappanava
r v. State of Karnataka, (2001) 2 SCC 666 : 2001
SCC (L&S) 489], promotions of reserved
candidates based on consequential seniority which
took place before 1-3-1996 were specifically
protected.
150 [Ed. : Para 150 corrected vide
Official Corrigendum No. F.3/Ed.B.J./86/
2019 dated 30-9-2019.] Since promotions
granted prior to 1-3-1996 were protected, it was
logical for the legislature to protect
consequential seniority. The object of the
Reservation Act, 2018 is to accord consequential
seniority to promotees against roster points. In
this view of the matter, we find no reason to
hold that the provisions in regard to
retrospectivity in the Reservation Act, 2018 are
either arbitrary or unconstitutional.
151. The benefit of consequential seniority
has been extended from the date of the
Reservation Order, 1978 under which
promotions based on reservation were accorded.
Insofar as the contention as regards the concept of
creamy layer, the Apex Court in B.K. Pavitra II (supra) at
Para 148 has clarified that the protection of consequential
seniority as an incident of promotion does not require
application of the creamy layer test. The relevant
observation at para 148 reads as follows:
"148. ... The incorporation of consequential
seniority would hence not violate the constitutional
mandate of equality. This being the true
constitutional position, the protection of
consequential seniority as an incident of promotion
does not require the application of the creamy layer
test. Articles 16(4-A) and 16(4-B) were held to not
obliterate any of the constitutional limitations and
to fulfill the width test. In the above view of the
matter, it is evident that the 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."
5.4 JARNAIL SINGH-II AND THE RESERVATION ACT, 2018
i) The judgment of the Apex Court in Jarnail Singh and
Others v. Lachhmi Narain Gupta and Others18
(Jarnail Singh II) has however disapproved certain
observations of the Apex Court in B.K.Pavitra II
(supra) relating to the unit with respect to which
quantifiable data showing inadequacy of
representation is required to be collected.
(2022) SCC Online SC 96 / Civil Appeal No.629/2022
ii) The Apex Court has opined that the unit for the
purpose of collection of data is a Cadre while referring
to the judgment in M. Nagaraj (supra) and Jarnail
Singh I (supra).
iii) The Court has opined that the conclusion of the court
in B.K.Pavitra II (supra) that the word "Cadre"
has no fixed meaning has also been disapproved while
holding that M. Nagaraj (supra) has held that the
unit for collection of quantifiable data is "Cadre" and
not "Services" as has been held in B.K. Pavitra II
(supra). Accordingly, the court has held that the
conclusion in B.K. Pavitra II (supra) that the
collection of data on the basis of groups is valid, is
contrary to the decision of the court in M. Nagaraj
(supra) and Jarnail Singh I (supra).
iv) It must be noted that the matter in Jarnail Singh II
(supra) is still pending consideration and observation
has been made which may have the effect of a binding
finding when the challenge to the specific validity of
legislations are sought to be adjudicated henceforth.
As on the date of observations being made in Jarnail
Singh II (supra) on 28.01.2022 the validity of the
Reservation Act, 2018 had already been adjudicated
upon. The nature of the finding also made in Jarnail
Singh II (supra) must be read in proper context
keeping in mind the observation at Para 48 wherein it
is observed, "it is made clear that we have not
expressed any opinion on the merits of any individual
case as we have only answered the common issues
that were formulated after hearing the parties; Para
49. List the matters on 24.02.2022 for further
hearing".
Accordingly, it is clear that the observations
made are not in the context of any specific legislation
and are general findings which would be applicable
in case of pending adjudications.
v) The Apex Court in the case of Neelima Srivastava v.
State U.P. and Others19 has affirmed the principle
that mere overruling of the principles in a subsequent
judgment will not dilute the binding effect of the
decision inter-parties. The relevant extract is produced
as below:
"30. It becomes absolutely clear from the
above clarification that earlier decisions running
counter to the principles settled in the decision
of Umadevi (3) will not be treated as
precedents. It cannot mean that the judgment
of a competent Court delivered prior to the
decision in Umadevi (3) and which has attained
finality and is binding inter se between the
parties need not be implemented. Mere over-
ruling of the principles, on which the earlier
judgment was passed, by a subsequent
judgment of higher forum will not have the
effect of uprooting the final adjudication
between the parties and set it at naught. There
is a distinction between over-ruling a principle
and reversal of the judgment. The judgment in
question itself has to be assailed and got rid of
in a manner known to or recognized by law.
Mere over-ruling of the principles by a
subsequent judgment will not dilute the binding
effect of the decision on inter-parties."
(2021) SCC Online SC 610
vi) It is clear that the judgment in B.K. Pavitra II
(supra), has not been over-ruled in Jarnail Singh II
(supra). The adjudication regarding the validity of
the Reservation Act of 2018 has attained finality in
B.K. Pavitra II (supra). The observations made in
Jarnail Singh II (supra) though may amount to an
over-ruling of the principle regarding the unit of
analysis being "cadre" and not "group" is a position of
law that needs to be applied prospectively and does
not in any way effect the conclusive adjudication made
in B.K. Pavitra II (supra). Accordingly, any
attempt by the petitioners to contend that the
adjudication regarding the validity of the Reservation
Act, 2018 requires to be re-looked cannot be
permitted.
5.5 WHETHER INADEQUACY IN REPRESENTATION MUST BE
CALCULATED AT THE TIME OF EVERY PROMOTION ?
i) It is the contention of learned counsel for the
petitioners that amongst the three controlling factors
provided for in M. Nagaraj (supra) as regards
provision for backward class of citizens who are not
adequately represented in the services under the State,
at every stage there must be ascertainment of
inadequate representation.
ii) It must be noted that Reservation Act of 2002 was
earlier struck down on the ground that there was no
exercise conducted to ascertain "inadequacy of
representation", "backwardness" and "overall efficiency"
and the Act was set aside by virtue of the judgment in
B.K. Pavitra I (supra). Subsequently, the Reservation
Act of 2018 was introduced preceded by an exercise of
collection of data through the "Rathnaprabha
Committee". The validity of Reservation Act of 2018
was also challenged on similar grounds and same came
to be upheld by the Apex Court in B.K. Pavitra II
(supra).
iii) While enacting the Reservation Act of 2018 the
Preamble of the said Act narrates the circumstances
under which Act of 2002 came to be set aside in
B.K.Pavithra-I (supra) and also the pre-requisite of
existence of "inadequacy of representation",
"backwardness" and consideration of "overall efficiency"
which are required before providing for reservation in
promotion20.
iv) It is further narrated in the Preamble of the Reservation
Act 2018 taking note of the law laid down in
M. Nagaraj (supra), that the task of conducting study
and submitting a report on the backwardness of the
Scheduled Castes and Scheduled Tribes in the State and
their inadequacy of representation in the State Civil
Services and the effect of reservation in promotion on
the State Administration was entrusted to the Additional
"The Preamble reads as follows: Whereas, the Hon'ble Supreme Court of India
in its judgment dated 09.02.2017 in the case of B.K. Pavitra and others v/s Union
of India and others in Civil Appeal No.2368 of 2011 and connected matters while
dealing with the issue of consequential seniority provided to the Scheduled Castes
and the Scheduled Tribes, having regard to the ratio of the decision of the
Constitution Bench in M. Nagaraj in Writ Petition No. 61 of 2002 has observed
that a proper exercise for determining 'inadequacy of representation',
'backwardness' and 'overall efficiency', is a must for exercise of power under
Article 16(4A). The court held that in the absence of this exercise under Article
16(4A) it is the "catch up" rule that shall be applicable."
Chief Secretary as per Government Order No.DPAR 182
SRR 2011 Dated 22.03.201721.
v) It is further narrated that the Additional Chief Secretary
to Government has made a detailed study of
quantifiable data and has submitted a report on; the
backwardness of the Scheduled Castes and Scheduled
Tribes in the State, inadequacy of their representation
in the State Civil Services and the effect of reservation
in promotion on the State Administration. It is noted
that the report confirmed the backwardness of the
Scheduled Castes and Scheduled Tribes in the State and
their inadequacy of representation while noting that the
overall efficiency of administration will not be affected
or hampered by proposed reservation in promotion and
accordingly, it is narrated that the Act has been
"The Preamble reads as follows: Whereas, while in compliance of the Supreme
Court order, the Government considering the need and taking note of the decision
of the Constitution Bench in M. Nagaraj, in Writ Petition No. 61 of 2002, has
entrusted the task of conducting study and submitting a report on the
backwardness of Scheduled Castes and Scheduled Tribes in the State, inadequacy
of their representation in the State Civil Services and the effect of reservation in
promotion on the State administration, to the Additional Chief Secretary to
Government in Government Order No. DPAR 182 SRR 2011 dated: 22.03.2017;"
enacted. It is further narrated that the Government
was satisfied and has come to the conclusion that
compelling reasons continue to exist for providing
consequential seniority to persons promoted on the
basis of Policy of Reservation "so as to ensure adequate
representation of the Scheduled Castes and Scheduled
Tribes across all Departments."22
vi) The legislative exercise that has culminated in passing
of the Reservation Act, 2018 provides for consequential
seniority for those promoted in accordance with Policy
of Reservation, Operation of Roster (Section 3),
Protection of Consequential Seniority already accorded
"The Preamble reads as follows: Whereas, the report confirms the backwardness of
Scheduled Castes and Scheduled Tribes in the State, inadequacy of their representation in
the State Civil Services and that the overall efficiency of administration has not been
affected or hampered by extending reservation in promotion to the Scheduled Castes and
Scheduled Tribes in the State and continuance of reservation in promotion within the
limits will not affect or hamper overall efficiency of administration;
Whereas, the Government of Karnataka has also obtained the views of Legal
Experts and the Karnataka Law Commission in this regard; and
Whereas, after having examined the report submitted by the Additional Chief
Secretary and the views expressed by the Legal Experts the Government of Karnataka has
accepted the report. Keeping in view the findings of the report, the Government is
satisfied and having identified and measured, has come to the conclusion that compelling
reasons continue to exist for providing consequential seniority to persons promoted on
the basis of policy of reservation in the State since 1978 so as to ensure adequate
representation of the Scheduled Castes and Scheduled Tribes across all departments";
from 27.04.1978 (Section 4), Revision and Re-drawing
of existing seniority lists to ensure that promotions are
made within the extent and in accordance with
provisions of reservation orders and other Rules
pertaining to method of recruitment and seniority
(Section 5).
vii) Once the roster point has been notified taking note of
the strength of the cadre which is a part of the scheme
of promotion, the operation of such roster would ensure
that the last point in the roster when given effect to
would ensure maintenance of 15 % and 3% in the
entirety of the cadre.
viii) Accordingly, the Act gives effect to the objective of
maintenance of adequate representation by providing
for reservation in promotion and consequential
seniority.
ix) Once the validity of the Reservation Act, 2018 has been
upheld, in its implementation it is intended that the
inadequacy of representation of Scheduled Castes and
Scheduled Tribes in certain cadres is taken note of.
x) The scheme that is now put into place to correct the
inadequacy in representation is formalised by a
continuing exercise of extending benefits of reservation.
This scheme also takes within its fold roster point,
which would ensure maintenance of 15% and 3% in the
entirety of the cadre.
xi) The operation of the Scheme technically cannot result in
excessive reservation. However, it is also to be noted
that where candidates from the reserved category
become eligible on the basis of their own merit and
seniority to claim benefits of promotion then their
selection/promotion will not eat into the extent of
reserved category but will find its place in the
unreserved category on parity with General Category
candidates in the Open Category. The selection of
those from the reserved category and merging them in
the General Category once they are eligible as per merit
in the General Category, cannot be objected to and
grudged contending that there is excess representation
of persons belonging from the reserved category.
xii) If a certain number of officers are selected to
promotional posts on their own merit such selection if
taken along with the reserved category who fall within
the 15% and 3% category the cumulative number of
officers in both these categories if is substantial and
exceeds the 15% and 3%, the same cannot be
described as amounting to excessive representation.
The word excessive itself would be a relative and
variable concept and is dependant on various factors
including their population.
xiii) Even otherwise, the aspect of inadequacy or impact on
efficiency are matters left to the wisdom of the State
and the Courts cannot substitute their decision for that
of the Government. Whether the implementation of the
policy over a prolonged period of time would necessitate
a review as regards necessity of continuance and other
such issues are also to be left to the wisdom of the
State. The courts exercise power of judicial review and
may intervene in circumstances, necessitating
intervention and adjudication only in response to action
of the State, and cannot enter into the arena
exclusively within the domain of the State.
xiv) Accordingly, to state that evaluation of inadequacy is to
be made at every stage of making fresh promotion
cannot be accepted and runs contrary to the policy of
the State as reflected in the Government Orders and
culminating in the Reservation Act of 2018.
5.6 OVER ALL ADMINISTRATIVE EFFICIENCY
i) The mandate under Article 335 of the Constitution of
India would require efficiency in administration to be a
necessary consideration so as to ensure that
reservation in promotion does not result in affecting
efficiency in administration.
ii) It is submitted by counsel appearing for the
respondents that the reservation is limited upto the
lowest cadre of Group-A and stops at the level of
Executive Engineers23.
iii) It is submitted that thereafter the promotions to the
higher posts is purely on the basis of seniority-cum-
merit as provided under the "Karnataka Electricity
Board Recruitment and Promotions Regulations [KEB
Recruitment and Promotion Regulations]; Employees
(Probation) Regulations [KEB Employees Probation
Regulations]; and Employees (Seniority) Regulations
[KEB Employees Seniority Regulations]" which ensures
that the aspect of efficiency is taken care of. It is also
submitted that the promotions cannot be claimed as a
matter of right and is filtered by the principle of
seniority-cum-merit as is evident from the Table
annexed infra. Further the Regulations also provides
that vacancies by promotion need not be filled up if
suitable candidates are not available as regards posts
of Superintending Engineer.
(See G.O. dated 27.04.1978)
iv) The assertion that promotions above the post of AEE is
on the basis of seniority-cum-merit and is not
automatic, is evidenced by the Regulations in
Chapter-VI of KEB Recruitment and Promotion
Regulations. The following table would evidence the
above.
KARNATAKA ELECTRICITY BOARD
RECRUITMENT AND PROMOTION REGULATIONS,
EMPLOYEES (PROBATION) REGULATIONS
AND
EMPLOYEES (SENIORITY) REGULATIONS
CHAPTER - VI
Sl. Category Cadre Method of Recruitment
No. of Post
8. Assistant a) 25% of vacancies shall be filled
Executive up by direct recruitment (both from
Engineer open competition and inservice
(El) employees) on the basis of the
results of the written competitive
examination envisaging 400 Marks
and by interview envisaging 100
Marks conducted by the Board
Selection by a Committee
constituted by the Board from time
to time.
b) 45% of the vacancies shall be
filled up by promotion of Assistant
Engineer Elecl., (Graduate) on the
basis of Seniority-cum-Merit
c) 30% of posts shall be filled up by
promotion of Assistant Engineer
Elecl., (non-graduate)/Store Keeper
Grade I on the basis of Seniority-
cum-Merit
d) Posts upgraded from the cadre of
Assistant Engineer Elecl., to that of
Assistant Executive Engineer Elecl.,
shall be filled by graduate Assistant
Engineers Elecl.,/and non-graduate
Assistant Engineers Elecl./Store
Keeper Grade I in the same ratio as
they would be applicable under
these regulations had the posts
have not been upgraded.
7. Executive State-wide By promotion of Graduate Asst.
Engineer, Executive Engineers (Civil) on the
Civil basis of Seniority-cum-Merit.
6. Executive State-wide By promotion from the cadre of
Engineers. graduate Assistant Executive
Elecl. Engineers (Elecl.) on the basis of
Seniority-cum-Merit
5. Public State-wide By Selection from the cadre of
Relations Executive Engineer, Electrical
Officer
4. Superintend State-wide By promotion on the basis of
ing Seniority-cum-Merit from the cadre
Engineers, of Executive Engineer, (Civil).
(Civil)
3. Superintend State-wide By promotion on the basis of
ing Seniority-cum-Merit from the cadre
Engineers, of Executive Engineer, (Elec).
(Elec)
2. Chief State-wide By promotion by Selection from
Engineer. among the cadre of Superintending
(Electricity) Engineers (Elecl.)
1. Chief State-wide By promotion by Selection from
Engineer. among the first three Chief
Electy. Engineers, Electy., in line
(Gen.)
(Emphasis supplied)
v) Insofar as the post of Chief Engineer is concerned, it is
to be filled by selection from first three Chief
Engineers (Electricity) in line, and even the post of
Chief Engineer (Electricity) is a selection post. Upto
the post of Chief Engineer, all promotions from
Assistant Executive Engineers is a selection post on
the principle of seniority-cum-merit which takes care
of the aspect of efficiency.
vi) It is also to be noted that the aspect of monitoring the
efficiency is also by way of exercise of disciplinary
powers in the event the officer concerned fails in
maintaining requisite standards.
vii) The Apex Court in the case of B.K.Pavitra II
(supra), has noticed that providing of reservation for
SC & ST's is not at odds with the principle of
meritocracy.
The Apex Court has observed that control can be
exercised by taking appropriate action during
officiation if he is found not suitable for the promotion
post24. Accordingly, the question of efficiency in overall
131. Once we understand "merit" as instrumental in achieving goods that we as a
society value, we see that the equation of "merit" with performance at a few narrowly
defined criteria is incomplete. A meritocratic system is one that rewards actions that result
in the outcomes that we as a society value.
132. For example, performance in standardised examinations (distinguished from
administrative efficiency) now becomes one among many of the actions that the process
of appointments in government services seeks to achieve. Based on the text of Articles
335, Articles 16(4) and 46, it is evident that the uplifting of the SCs and STs through
employment in government services, and having an inclusive Government are other
outcomes that the process of appointments in government services seeks to achieve.
Sen gives exactly such an example:
"If, for example, the conceptualisation of a good society includes the absence of
serious economic inequalities, then in the characterisation of instrumental goodness,
including the assessment of what counts as merit, note would have to be taken of the
propensity of putative merit to lessen -- or to generate -- economic inequality. In this
case, the rewarding of merit cannot be done independent of its distributive consequences.
***
A system of rewarding of merit may well generate inequalities of well-being and of
other advantages. But, as was argued earlier, much would depend on the nature of the
consequences that are sought, on the basis of which merits are to be characterised. If the
results desired have a strong distributive component, with a preference for equality, then
in assessing merits (through judging the generating results, including its distributive
aspects), concerns about distribution and inequality would enter the evaluation." [ Sen
A., "Merit and Justice", in Arrow, K.J., Meritocracy and Economic Inequality (Princeton
University Press 2000) (Amartya Sen, "Merit and Justice").]
(emphasis supplied)
Thus, the providing of reservations for SCs and the STs is not at odds with the
principle of meritocracy. "Merit" must not be limited to narrow and inflexible criteria
such as one's rank in a standardised exam, but rather must flow from the actions a society
seeks to reward, including the promotion of equality in society and diversity in public
administration. In fact, Sen argues that there is a risk to excluding equality from the
outcomes:
"In most versions of modern meritocracy, however, the selected objectives tend to be
almost exclusively oriented towards aggregate achievements (without any preference
against inequality), and sometimes the objectives chosen are even biased (often
implicitly) towards the interests of more fortunate groups favouring the outcomes that are
more preferred by "talented" and "successful" sections of the population. This can
reinforce and augment the tendency towards inequality that might be present even with
an objective function that inter alia, attaches some weight to lower inequality levels." [
Sen A., "Merit and Justice", in Arrow, K.J., Meritocracy and Economic
Inequality (Princeton University Press 2000) (Amartya Sen, "Merit and Justice").]
administration being impacted by the Reservation Act or in
its operation does not arise. This would also be the
conclusion in light of the reasoning supra at Para 5.5 (xii)
and the said argument having been rejected in
B.K. Pavitra II (supra), cannot be revisited once again.
Hence, the controlling criteria of efficiency in overall
administration will not be an obstacle for reservation in
promotion.
5.7 CHALLENGE TO CIRCULAR BEARING DPAR 186 SRS
2018 DATED 24.06.2019 (FREQUENTLY ASKED
QUESTIONS)
i) The validity of the Government Order dated
24.06.2019 (Frequently Asked Questions) has been
called in question and various contentions have been
advanced including that the circular is silent as
regards to the adherence to the judgment of the Apex
Court in R.K.Sabharwal (supra).
It must be noted that this Court has eventually
held that no grounds are made to set aside the
seniority list as the factual foundation is insufficient
for such adjudication.
ii) In the course of the written submission filed by the
state on 29.10.2022 as regards the attack of the
circular of 24.06.2019, the Government has observed
as follows:
"15. That leaves the issue with
respect to Prayer 1. Prayer 1 insofar as the
State is concerned is with respect to the
circular dated 24.06.2019. It is trite that
when a legislation governs the filed, all
must act in terms of the legislation. The
2018 act is the legislation which would
apply to the present case."
iii) Accordingly, it is clear that manner of implementation
of the Reservation Act, 2018 must be strictly in
conformance with the provisions while taking note of
the Judgments of the Apex Court as laid down. The
Circular of 24.06.2019 does contain certain
ambiguities including as regards adherence to the
direction in R.K.Sabharwal (supra) as clause 3.1 is
ambiguous.
iv) It is the stand of the State in the context of the
challenge to the Government Order dated 24.06.2019,
that the Reservation Act, 2018 would prevail over the
notifications. If that were to be so in order to avoid
any further confusion it would be appropriate that the
Government Order that was specifically passed to
implement the Reservation Act, 2018 be withdrawn
while reserving liberty to pass a fresh Government
Order containing comprehensive guidelines keeping in
mind all the Judgments of the Apex Court enunciating
the law in particular as regards treatment of backlog
vacancies in promotion, post based reservation,
addressing the issue of those from the reserved
category being eligible in general merit and such other
relevant aspects. This would go a long way in
removing the avoidable ambiguity in implementation
of the Reservation Act, 2018. It is however clarified
that this direction made will not have any bearing on
the conclusion arrived at that no grounds are made
out for interfering with the Seniority list impugned in
the Writ Petitions as this court has not found any legal
lacunae made out from the pleadings that provisions
of the Reservation Act, 2018 have been violated. It is
further clarified that observations made regarding the
ambiguities in the Government Order of 24.06.2019
should not be construed as amounting to an
adjudication regarding the invalidity of the
Government Order. The observations are made in the
context of calling upon the State for removal of
ambiguity in executive instructions to ensure that the
Reservation Act, 2018 validity of which has been
upheld by the Apex Court is implemented in its letter
and spirit without giving rise to unnecessary litigation.
5.8 CHALLENGE TO FINAL SENIORITY LIST:-
i) The challenge to final Seniority list dated 27.08.2021
pursuant to the judgment in B.K. Pavitra II
(supra), is also based on the macro contention that
extent of reservation of 15% + 3% has not been
maintained, that Government Order passed would
protect the position of the petitioners from non-
reversion just as it protects the interests of those
belonging to the reserved categories, that there is
excessive reservation, are all aspects that have been
taken note of in the discussion made above.
ii) The respondent KPTCL have filed presentation
regarding implementation of Reservation Act, 2018.
In the said pleading filed along with the memo on
18.11.2022, the detailed explanation regarding the
manner of review has been placed including pointing
out that due to canceling of consequential seniority
and applying the 'Catch Up Rule' mentioned in
B.K.Pavitra I (supra), some of the promotions
accorded to Reserved Category Officers had to be
replaced with General Merit Officers. Accordingly, it
was pointed out that, some of the Officers in General
Merit Categories were entitled to earlier dates of
promotion and those from the SC/ST Officers were
entitled to later dates of promotion, which dates were
referred to as 'deemed dates'. Such lacunae was
required to be remedied after law laid down in
B.K.Pavitra II (supra), and also with the recognition
of consequential seniority.
iii) The material on record and pleadings made do not
make out any further specific case fulfilling legal
requirement as regards violation of any other principle
of service jurisprudence requiring intervention.
Accordingly, the exercise of review in terms of
Reservation Act, 2018 does not call for any
interference in the absence of specific pleadings. Such
contentions may have to be raised if case is made out
after taking note of the adjudication made in the
present writ and if after applying the law laid down, a
case is made out regarding violation of any principle of
service jurisprudence relating to seniority.
Consequently, the prayers sought for in the writ
petitions are rejected however subject to observations
made with respect to the Government Order of
24.06.2019 and the direction to the State as contained
supra in Para 5.7 (iv).
iv) It cannot be stated that in light of all but
petitioner no.9 in W.P.No.36133/2019 have attained
superannuation. The adjudication in the present
matter has been reduced to answering a question
which vis-a-vis the petitioners who have retired would
remain as an academic answer.
Such contention however cannot be accepted as
the final determination of seniority would have an
implication as regards post-retirement emoluments as
well.
v) Further, the questions that have arisen are of
significance and once adjudicated would bring about a
certainty in the implementation of the policy of
reservation in promotion.
vi) Questions raised are such that are brought before the
court repeatedly and requires to be adjudicated. The
time taken in deciding such questions where high
ranking officials who are closer to superannuation is
involved would invariably result in the petitioners
attaining superannuation during the course of the
litigation and if that were to be so in every matter the
question would remain unresolved and accordingly,
contention that adjudication is not required as all but
petitioner no.9 in W.P.No.36133/2019 have attained
finality cannot be accepted.
Accordingly the petitions are disposed off in
terms of the above.
This court place on record the assistance of
Dr.Aditya Sondhi, the Amicus who patiently has
participated in the numerous hearings and has
contributed his stand to assist the court which has
enabled passing of the judgment.
Sd/-
JUDGE
Np/-
