U.P. Power Corporation Ltd. Vs. Rajesh Kumar & Ors. [April 27, 2012]
2012 Latest Caselaw 251 SC

U.P. Power Corporation Ltd. Vs. Rajesh Kumar & Ors.

[Civil Appellate Jurisdiction Civil Appeal No. 2608 of 2011]

[With Civil Appeal No. 4009 of 2012 arising out of SLP (C) No. 10217/2011]

[With Civil Appeal No. 4022 of 2012 arising out of SLP (C) No. 15114/2011]

[With Civil Appeal Nos. 4027-4029_ of 2012 arising out of SLP (C) Nos. 20577-20579/2011]

[With Civil Appeal Nos. 2605 of 2011, 2607/2011, 2609/2011, 2610/2011, 2614/2011, 2616/2011, 2629/2011, 2675/2011, 2676/2011, 2677/2011, 2678/2011, 2679/2011, 2729/2011, 2730/2011, 2737/2011]

[With Civil Appeal No. 4023 of 2012 arising out of SLP (C ) No. 14188 of 2012 (Cc 4420/2011]

[With Civil Appeal No. 4024 of 2012 arising out of SLP (C ) No.14189/2012 (Cc 4421/2011]

[With Civil Appeal No. 4025 of 2012 arising out of SLP (C ) No.14190/2012 (Cc 4431/2011]

[With Civil Appeal No. 4691 of 2011]

[With Civil Appeal No. 4697 of 2011]

[With Civil Appeal No. 4699 of 2011]

[With Civil Appeal No.4026 of 2012 arising out of SLP (C ) No. 14191 of 2012 (Cc 5070/2011]

[With Civil Appeal No. 4016 of 2012 arising out of SLP (C) No.14179/2012 (Cc 5580/2011]

[With Civil Appeal No.4021 of 2012 arising out of SLP (C ) No.14184/2012 (Cc 6362/2011With Civil Appeal No. 4017 of 2012 arising out of SLP (C ) No. 14181/2012 (Cc 6482/2011]

[With Civil Appeal No. 4018 of 2012 arising out of SLP (C ) No. 14182/2012 (Cc 7037/2011]

[With Civil Appeal No.4019 of 2012 arising out of SLP (C ) No. 14183/2012 (Cc 7042/2011]

[With Civil Appeal No. 4020of 2012 arising out of SLP (C ) No.14184/2012 (Cc 7058/2011]

[With Civil Appeal No.4030 of 2012 arising out of SLP (C) No. 30325/2011]

[With Civil Appeal No. 4031 of 2012 arising out of SLP (C ) No. 30326/2011]

[With Civil Appeal No.4032 of 2012 arising out of SLP (C ) No. 30327/2011]

[With Civil Appeal No.4033 of 2012 arising out of SLP (C ) No. 30692/2011]

[With Civil Appeal No.4034 of 2012 arising out of SLP (C ) No. 30696/2011]

State of U.P Versus Brij Bhushan Sharma & Anr.

[Civil Appeal No. 2622 of 2011]

[With Civil Appeal No. 2611 of 2011]

[With Civil Appeal No. 2612/2011]

[With Civil Appeal No. 2613 of 2011]

[With Civil Appeal No. 2623 of 2011]

[With Civil Appeal No. 2624 of 2011]

[With Civil Appeal No. 2682-2683 of 2011]

[With Civil Appeal No. 2684 of 2011]

[With Civil Appeal No. 2881 of 2011]

[With Civil Appeal No. 2884-2885 of 2011]

[With Civil Appeal No. 2886 of 2011]

[With Civil Appeal No. 2908 of 2011]

[With Civil Appeal No. 2909 of 2011]

[With Civil Appeal Nos. 2944-2945 of 2011 Civil Appeal No. 66 of 2012]

[With Civil Appeal No.4067/2012 arising out of SLP (C ) No.14207/2012 (Cc 17243/2011]

J U D G M E N T

Dipak Misra, J.

1.     Leave granted in Special Leave Petitions.

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

3.     Extraordinary and, in a way, perplexing though it may seem, yet as the factual scenario pronouncedly reveals, the assail in some of the appeals of this batch of appeals is to the judgment and order passed by the Division Bench of the High Court of Judicature at Allahabad in Writ Petition No. 63217 of 2010 (Mukund Kumar Srivastava vs. State of U.P. and Another) upholding the validity of the provisions contained in Rule 8-A of the U.P. Government Servants Seniority Rules, 1991 (for brevity ‘the 1991Rules’) that were inserted by the U.P. Government Servants Seniority (3rdAmendment) Rules, 2007 by the employees-appellants and in some of the appeals, the challenge by the State Government and the U.P. Power Corporation Ltd. (for short ‘the Corporation’) is to the judgment and order passed by the Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow, in Writ Petition No. 1389 (S/B) of 2007 (Prem Kumar Singh and others v. State of U.P. and others) and other connected writ petitions holding, inter alia, that the decision rendered by the Division Bench in the case of Mukund Kumar Srivastava (supra) at Allahabad is perincuriam and not a binding precedent and further Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (for short ‘the 1994 Act’) and Rule8A of the 1991 Rules, as brought into force in 2007, are invalid, ultravires and unconstitutional and, as a necessary corollary, the consequential orders relating to seniority passed by the State Government deserved to be quashed and, accordingly, quashed the same and further clarified that incase the State Government decides to provide reservation in promotion to any class or classes of posts in the services under the State, it is free to do so after undertaking the exercise as required under the constitutional provisions keeping in mind the law laid down by this Court in M. Nagraj (supra). It has been directed that till it is done, no reservation in promotion on any post or classes of posts under the services of the State including the Corporation shall be made hence forth. However, the Division Bench observed that the promotions already made as per the provisions/Rules where the benefit of Rule 8A has not been given while making the promotion shall not be disturbed.

4.     The cleavage has invited immense criticism by the learned senior counsel appearing for both sides on principles of judicial discipline, decorum, propriety and tradition. Initially the debate centred around the concept of precedent and the duties of the Benches but gradually it was acceded to, absolutely totally being seemly, to decide the controversy on merits instead of a remit and, accordingly, the learned counsel for the parties addressed the Court at length. As advised, we shall dwell upon the merits of the controversy but we shall not abdicate our responsibility todelve into the first issue, i.e., judicial discipline as we are inclined to think that it is the duty, nay, obligation in the present case to do so because despite repeated concern shown by this Court, the malady subsists, making an abode of almost permanency. Ergo, we proceed to state the facts on the first issue and our opinion thereon and, thereafter, shall deal with the assail and attack on both the judgments on merits.

5.     One Rajesh Kumar and two others, the private respondents in the appeal preferred by the Corporation, filed Writ Petition No. 146 (S/B) of2009 at the Lucknow Bench of the High Court of Judicature at Allahabad seeking declaration to the effect that Rule 8A of the 1991 Rules and the resolution passed by the Corporation are ultra vires. That apart, the assail was to the constitutional validity of Section 3(7) of the 1994 Acton the foundation that the State Government in gross violation of the constitutional provisions enshrined under Articles 16(4A) and 16(4B) and the interpretation placed thereon by the Constitution Bench in M. Nagraj (supra) has framed the Rules and the Corporation has adopted the same by amending its Rules and introduced the concept of reservation in promotion with accelerated seniority.

6.     It was contended before the Lucknow Bench that neither the State Government nor the Corporation had carried out the exercise as per the decision in M. Nagraj (supra) and in the absence of the same, the provisions of the Act and the Rules caused discomfort to the constitutional provisions. The stand and stance put forth by the writ petitioners was combated by the Corporation contending, inter alia, that the Scheduled Castes and Scheduled Tribes were inadequately represented in the service and the chart wise percentage of representation to direct recruitment of reserved categories incumbents would clearly reflect the inadequacy.

We are not referring to the pleadings in detail as that will be adverted to at a later stage. Suffice to say at present, in view of the assertions made by the parties and the records produced the Division Bench framed the question for determination whether Rule 8-A of the Rules is ultra vires and unconstitutional. During the course of hearing of the writ petition, the Corporation brought to the notice of the Division Bench at Lucknow the judgment dated 21.10.2010 passed by the Division Bench at Allahabad in Writ Petition No. 63127 of 2010 (Mukund Kumar Srivastava v. State of U.P. and another).

It was urged that the same was a binding precedent and, therefore, the Division Bench was bound to follow the same. But, the Bench hearing the writ petition declared the said decision as not binding and perincuriam as it had not correctly interpreted, appreciated and applied the ratio laid down in M. Nagraj (supra) and, on that base, declared Section3(7) of the 1994 Act and Rule 8A of the 1991 Rules as unconstitutional and issued the directions as have been stated hereinbefore.

7.     It is the admitted position at the Bar that certain writ petitions were filed at Lucknow Bench and they were being heard. They were filed one arlier point of time and were being dealt with on merits by the concerned Division Bench. At that juncture, the Division Bench at Allahabad entertained Writ Petition No. 63127 of 2010. The Bench was of the viewthat without calling for a counter affidavit from any of the respondents the writ petition could be decided. Be it noted, the petitioner there in was an Executive Engineer in Rural Engineering Service at Sonebhadra Division and had challenged the seniority list of Executive Engineers of Rural Engineering Service published vide Office Memorandum No. 2950/62-3-2010-45-RES/2010 dated 8.9.2010 and further sought declaration of Rule 8Aof the 2007 Rules as unconstitutional.

A prayer for issue of a writ of mandamus was sought not to proceed with and promote any person on the next higher post on the basis of the impugned seniority list of Executive Engineers of Rural Engineering Service. The Bench, as is manifest from the order, adverted to the facts and then dwelled upon the validity of the Rules. It scanned Rules 6, 7, 8 and 8A and referred to the decision of this Court in Indra Sawhney etc. v. Union of India and others[2], Section 3of the 1994 Act, Article 335 of the Constitution and quoted in extenso from M. Nagraj (supra) and came to hold as follows: -

“The Constitutional validity of Amending Act 77th Amendment Act 1995 and 85th Amendment Act 2001 whereby clause (4A) has been inserted after clause (4) under the Article 16 of the Constitution has already been upheld by the Constitution Bench of Hon’ble Apex Court in M. Nagraj case (supra) holding that neither the catch up rule nor the Constitutional seniority is implicit in Clause (1and Clause (4) of Article 16 rather the concept of catch up rule and consequential seniority are judicially evolved concepts to control the extent of reservation.

The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom, like secularism, constitutional sovereignty, equality code etc. forming basic structure of the Constitution. It cannot be said that by insertion of concept of consequential seniority the structure of Article 16 stands destroyed or abrogated. It cannot be said that equality code contained under Articles 14, 15, 16 is violated by deletion of catch-up rule. We are bound by the aforesaid decision of Hon’ble Apex Court in M. Nagraj case (supra).

Therefore, there can be no scope for doubt to hold that deletion of catch-up rule and conferring the benefits of consequential seniority upon the members of SC and ST on account of reservation in promotion in a particular service or grade or post has any way obliterated the equality code contained under Articles 14, 15 and 16 of the Constitution as concept of catch-up rule of seniority does not directly flow from Article 16(1and (4) of the Constitution of India. We are of the considered opinion that Rule 8A of 1991 Rules has merely effectuated the provisions contained under Article 16(4A) of the Constitution of India whereby benefit of consequential seniority has been given to the members of scheduled castes and scheduled tribes due to reservation/roster in promotion by obliterating the concept of catch-up Rule of seniority.

Rule 8A of 1991 Rules specifically stipulates that if any member of scheduled castes or scheduled tribes is promoted on any post or grade in service earlier to other categories of persons, the member of SC/ST shall be treated to be senior to such other categories of persons who are promoted subsequently after promotion of members of SC/ST, despite anything contained in Rules 6, 7 and 8 of 1991 Rules.

In our view Rule 8A of 1991 Rules has constitutional sanctity of Article 16(4A) of the Constitution and cannot be found faulty merely on account of violation of judicially evolved concept of catch-up rule of seniority which has been specifically obliterated by Article 16(4A) of the Constitution. Likewise the said rule can also not be held to be unconstitutional or invalid on account of obliteration of any other judicially evolved principle of seniority or any other contrary rules of seniority existing under Rules 6, 7 and 8 of 1991 Rules, as Rule 8A of 1991 Rules opens with non-obstante clause with overriding effect upon Rules 6, 7 and 8 of 1991 Rules, therefore, we do not find any justification to strike down the provisions contained under Rule 8-A of 1991 Rules on the said ground and on any of the grounds mentioned in the writ petition.”After so stating, the Division Bench proceeded to observe as follows: -

“27. In this connection, we make it clear that deletion of the said concept of catch-up Rule of seniority and addition of consequential seniority due to reservation in promotion on any post or grade in service are applicable to the member of scheduled castes and scheduled tribes only, whereas inter-se seniority of other categories employees shall continue to be determined according to their existing seniority rules as contemplated by the provisions of Rules 6, 7 and 8 of 1991 Rules, subject to aforesaid limitations.

Thus the concept of catch-up Rule of Seniority stands obliterated only to the extent of giving benefit of consequential seniority to the members of scheduled castes and scheduled tribes on account of their promotion on any post or grade in service due to reservation, therefore, the scope of obliteration of concept of catch-up rule is limited to that extent. In this view of the matter the petitioner is not entitled to get the relief sought for in the writ petition questioning the validity of said Rule 8A of 1991 Rules.

Thus we uphold the validity of said Rules and the question formulated by us is answered accordingly.” It is interesting to note that in paragraph 29 of the said judgment the Division Bench expressed thus: - “29. However, since the petitioner did not challenge the Constitutional Validity of Law regarding reservation in promotion in favour of scheduled castes and scheduled tribes existing in State of Uttar Pradesh which is applicable to the services and posts in connection of affairs of State of Uttar Pradesh inasmuch as other services and posts covered by said Reservation Act 1994, in our opinion, the petitioner shall not be permitted to raise this question by filing any other writ petition again.

In given facts and circumstances of the case, we are not inclined to issue any mandamus, commanding the respondents, not to proceed with impugned seniority list for the purpose of promotion on the next higher post without expressing any opinion on the merit of said seniority list. We are also not inclined to issue any such restraint order, staying any promotion on the next higher post, if the respondents are intending to make such promotion on the basis of impugned seniority list.”

8.     We have been apprised at the Bar that it was brought to the notice of the Division Bench at Allahabad that certain writ petitions, where there was comprehensive challenge, were part-heard and the hearing was in continuance at Lucknow Bench, but, as is vivid from the first paragraph of the said judgment, the Bench heard the learned counsel for the petitioner and the standing counsel for the State and caveator and proceeded to decide the matter without a counter affidavit.

9.     Presently, we shall advert to how the Lucknow Bench dealt with thisdecision.

10.  After stating the basic pleas, the Division Bench at Lucknow proceeded to state as follows:- “.......but before we proceed to decide the validity of the challenge made and the defence put, we find it expedient to respond to the foremost plea of the respondents that the aforesaid Rule 8-A of the U.P. Government Servants Seniority Rules, 1991, (hereinafter referred to as ‘the Rules, 1991), was challenged before a Division Bench (Hon’ble Sheo Kumar Singh and Hon’ble Sabhajeet Yadav, JJ) at Allahabad in Writ Petition No. 63127 of 2010 in re: Mukund Kumar Srivastava versus State of U.P. and another, which writ petition has been dismissed upholding the validity of the aforesaid Rule 8-A, therefore, this Court is bound by the said judgment passed by a Bench of equal strength and hence all these petitions need be dismissed only on this ground.” Before the said Bench, it was contended that the judgment rendered by the Division Bench at Allahabad is per incuriam and is not a binding precedent.

11.  Various grounds were urged to substantiate the aforesaid stand. The Division Bench, after analysing the reasoning of the Allahabad Bench in great detail and after referring to certain decisions and the principles pertaining to binding precedent, opined as follows:- “The Division Bench at Allahabad, did not enter into the question of exercise of power by the State Government under the enabling provisions of the Constitution and upheld the validity of Rule 8-A only for the reason, that there did exist such a power to enact the Rule, whereas the Apex Court, very clearly has pronounced, that if the given exercise has not been undertaken by the State Government while making a rule for reservation with or without accelerated seniority, such a rule may not stand the test of judicial review.

In fact, M. Nagraj obliges the High Court that when a challenge is made to the reservation in promotion, it shall scrutinize the same on the given parameters and it also casts a corresponding duty upon the State Government to satisfy the Court about the exercise undertaken in making such a provision for reservation. The Division Bench did not advert upon this issue, nor the State Government fulfilled its duty as enumerated in M. Nagraj.

The effect of the judgment delivered at Allahabad is also to be seen in the light of the fact that though the Division Bench at Allahabad did not adjudicate on the dispute with regard to the seniority for which the petitioner Mukund Kumar Srivastava has been relegated to the remedy of State Public Services Tribunal, but upheld the validity of Rule 8-A, which could not be said to be the main relief, claimed by the petitioner. For the aforesaid reasons and also for the reason, that the present writ petitions do challenge the very rule of reservation in promotion, which challenge we have upheld for the reasons hereinafter stated, because of which the rule of accelerated seniority itself falls to the ground, we, with deep respect, are unable to subscribe to the view taken by the Division Bench at Allahabad and hold that the said judgment cannot be considered as binding precedent having been rendered per incuriam.”

12.  We have reproduced the paragraphs from both the decisions in extensor to highlight that the Allahabad Bench was apprised about the number of matters at Lucknow filed earlier in point of time which were being part heard and the hearing was in continuum. It would have been advisable to wait for the verdict at Lucknow Bench or to bring it to the notice of the learned Chief Justice about the similar matters being instituted at both he places.

The judicial courtesy and decorum warranted such discipline which was expected from the learned Judges but for the unfathomable reasons, neither of the courses were taken recourse to. Similarly, the Division Bench at Lucknow erroneously treated the verdict of Allahabad Bench not to be a binding precedent on the foundation that the principles laid down by the Constitution Bench in M. Nagraj (supra) are not being appositely appreciated and correctly applied by the Bench when there was reference to the said decision and number of passages were quoted and appreciated albeit incorrectly, the same could not have been a ground to treat the decision as per incuriam or not a binding precedent. Judicial discipline commands in such a situation when there is disagreement to refer the matter to a larger Bench. Instead of doing that, the Division Bench at Lucknow took the burden on themselves to decide the case.

13.  In this context, we may profitably quote a passage from Lala Shri Bhagwan and another v. Ram Chand and another[3]:- “18. .. It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.”

14.  In Sundarjas Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra and others[4] while dealing with judicial discipline, the two-Judge Bench has expressed thus:- “One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.”

The aforesaid pronouncements clearly lay down what is expected from the Judges when they are confronted with the decision of a Co-ordinate Bench on the same issue. Any contrary attitude, however adventurous and glorious may be, would lead to uncertainty and inconsistency. It has precisely so happened in the case at hand. There are two decisions by two Division Benches from the same High Court. We express our concern about the deviation from the judicial decorum and discipline by both the Benches and expect that in future, they shall be appositely guided by the conceptual eventuality of such discipline as laid down by this Court from time to time. We have said so with the fond hope that judicial enthusiasm should not obliterate the profound responsibility that is expected from theJudges.

15.  Having dealt with the judicial dictum and the propriety part, we shall now proceed to deal with the case on merit as a common consensus was arrived at the Bar for the said purpose. The affected employees have filed certain civil appeals against the judgment of the Allahabad High Court and the employees who are affected by the verdict of the Lucknow Bench have also preferred appeals. That apart, the State of U.P. and the Corporation have also challenged the decision as the rules framed have been declared ultra vires. The main controversy relates to the validity of Section 3(7)of the 1994 Act and Rule 8A of the 1991 Rules. Thus, we really have to advert to the constitutional validity of the said provisions.

16.  Prior to the advertence in aforesaid regard, it is necessary to have a certain survey pertaining to reservation in promotional matters. The question of reservation and the associated promotion with it has been a matter of debate in various decisions of this Court. After independence, there were various areas in respect of which decisions were pronounced. Eventually, in the case of Indra Sawhney and another v. Union of India and others (supra) the nine-Judge Bench, while dealing with the question whether clause (4) of Article 16 of the Constitution provides for reservation only in the matter of initial appointment, direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well, recorded the submissions of the petitioners in paragraph 819 which reads as follows: -

“The petitioners’ submission is that the reservation of appointments or posts contemplated by clause (4) is only at the stage of entry into State service, i.e., direct recruitment. It is submitted that providing for reservation thereafter in the matter of promotion amounts to a double reservation and if such a provision is made at each successive stage of promotion it would be a case of reservation being provided that many times. It is also submitted that by providing reservation in the matter of promotion, the member of a reserved category is enabled to leap-frog over his compatriots, which is bound to generate acute heartburning and may well lead to inefficiency in administration.

The members of the open competition category would come to think that whatever be their record and performance, the members of reserved categories would steal a march over them, irrespective of their performance and competence. Examples are give how two persons (A) and (B), one belonging to O.C. category and the other belonging to reserved category, having been appointed at the same time, the member of the reserved category gets promoted earlier and how even in the promoted category he jumps over the members of the O.C. category already there and gains a further promotion and so on. This would generate, it is submitted, a feeling of disheartening which kills the spirit of competition and develops a sense of disinterestedness among the members of O.C. category.

It is pointed out that once persons coming from different sources join a category or class, they must be treated alike thereafter in all matters including promotions and that no distinction is permissible on the basis of their “birth-mark”. It is also pointed out that even the Constituent Assembly debates on draft Article 10(3) do not indicate in any manner that it was supported to extend to promotions as well. It is further submitted that if Article 16(4) is construed as warranting reservation even in the matter of promotion it would be contrary to the mandate of Article 335 viz., maintenance of efficiency in administration. It is submitted that such a provision would amount to putting a premium upon inefficiency.

The members of the reserved category would not work hard since they do not have to compete with all their colleagues but only within the reserved category and further because they are assured of promotion whether they work hard and efficiently or not. Such a course would also militate against the goal of excellence referred to in clause (j) of Article 51-A (Fundamental Duties).”

Thereafter, the Bench referred to the decisions in General Manager, S. Rly. v. Rangachari[5], State of Punjab v. Hira Lal[6], Akhil Bharatiya Soshit Karamchari Sangh v. Union of India[7] and Comptroller and Auditor General v. K.S. Jagannathan [8] and did not agree with the view stated in Rangachari (supra), despite noting the fact that Rangachari has been a lawfor more than thirty years and that attempt to reopen the issue was repelled in Akhil Bharatiya Soshit Karamchari Sangh (supra).

Thereafter, their Lordships addressed to the concept of promotion and, eventually after adverting to certain legal principles, stated thus: - “831. We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in State of Kerala v. N.M. Thomas [(1976) 2 SCC 310] and the concessions namely carrying forward of vacancies and provisions for in-service coaching/training in Karamchari Sangh are instances of such concessions and relaxations.

However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs – consistent with the efficiency of administration and the nature of duties attaching to the office concerned – in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded hereinabove.” In paragraph 859, while summarising the said aspect, it has been ruled thus: - “859.

We may summarise our answers to the various questions dealt with and answered hereinabove: .......... .............. ........... (7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis.

It is further directed that wherever reservations are already provided in the matter of promotion – be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of ‘State’ in Article 12 – such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4).

If any authority thinks that for ensuring adequate representation of ‘backward class of citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so (Ahmadi, J expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration.”

17.  After the said decision, another decision, namely, Union of India andothers v. Virpal Singh Chauhan and others[9] came to the field. In the said case, the two-Judge Bench was concerned with the nature of rule and reservation in promotions obtaining in the railway service and the rule concerning the determination of seniority between general candidates and candidates belonging to reserved classes in the promotional category.

The Bench referred to the decision in R.K. Sabharwal v. State of Punjab [10],various paragraphs of the Indian Railways Establishment Manual andparagraphs 692 and 693 of the Indra Sawhney (supra) and opined that the roster would only ensure the prescribed percentage of reservation but would not affect the seniority. It has been stated that while the reserved candidates are entitled to accelerated promotion, they would not been titled to consequential seniority.

18.  Thereafter, in Ajit Singh Januja and others v. State of Punjab and others[11], the three-Judge Bench posed the question in the following terms: - “The controversy which has been raised in the present appeals is: whether, after the members of Scheduled Castes/Tribes or Backward Classes for whom specific percentage of posts have been reserved and roster has been provided having been promoted against those posts on the basis of “accelerated promotion” because of reservation of posts and applicability of the roster system, can claim promotion against general category posts in still higher grade on the basis of their seniority which itself is the result of accelerated promotion on the basis of reservation and roster?”

The Bench referred to the decisions in Virpal Singh Chauhan (supra),R.K. Sabharwal (supra) and Indra Sawhney (supra) and ultimately concurred with the view expressed in Virpal Singh Chauhan by stating as follows: - “16. We respectfully concur with the view in Union of India v. Virpal Singh Chauhan, that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated “consequential seniority”.

If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/ Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-a-vis his seniors belonging to the general category.

As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him.

Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority-cum-merit or merit-cum-seniority.

If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.”

19.  In Jagdish Lal and others v. State of Haryana and others[12], a three-Judge Bench opined that seniority granted to the Scheduled Caste and Scheduled Tribe candidates over a general candidate due to his accelerated promotion does not in all events get wiped out on promotion of general candidate. The Bench explained the decisions in Vir Pal Singh Chauhan(supra) and Ajit Singh Januja (supra).

20.  In Ajit Singh and others (II) v. State of Punjab and others[13], the Constitution Bench was concerned with the issue whether the decisions in Vir Pal Singh Chauhan (supra) and Ajit Singh Januja (supra) which were earlier decided to the effect that the seniority of general candidates is to be confirmed or whether the later deviation made in Jagdish Lal (supra)against the general candidates is to be accepted.

The Constitution Bench referred to Articles 16(1), 16(4) and 16(4A) of the Constitution and discussed at length the concept of promotion based on equal opportunity andseniority and treated them to be facets of Fundamental Right under Article16(1of the Constitution. The Bench posed a question whether Articles16(4) and 16(4A) guarantee any Fundamental Right to reservation. Regard being had to the nature of language employed in both the Articles, they were to be treated in the nature of enabling provisions.

The Constitution Bench opined that Article 16(1deals with the Fundamental Right and Articles 16(4) and 16(4A) are the enabling provisions. After so stating, they proceeded to analyse the ratio in Indra Sawhney (supra), AkhilBharatiya Soshit Karamchari Sangh (supra) and certain other authorities in the field and, eventually, opined that it is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc.

This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a court decides that in order only to remove hardship such roster-point promotees are not to face reversions, - then it would, in our opinion be, necessary to hold –consistent with our interpretation of Articles 14 and 16(1– that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster.

While courts can relieve immediate hardship arising out of a past illegality, courts cannot grant additional benefits like seniority which have no element of immediate hardship. Ultimately while dealing with the promotions already given before 10.2.1995 the Bench directed as follows: - “Thus, while promotions in excess of roster made before 10-2- 1995 are protected, such promotees cannot claim seniority.

Seniority in the promotional cadre of such excess roster-point promotees shall have to be reviewed after 10-2-1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the “prospectivity” point in relation to Sabharwal.”

21.  At this juncture, it is condign to note that Article 16(4A) and Article 16 (4B) were inserted in the Constitution to confer promotion with consequential seniority and introduced the concept of carrying forward vacancies treating the vacancies meant for reserved category candidates as a separate class of vacancies.

The said Articles as amended from time to time read as follows: - “16(4A) 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. 16(4B) 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 accordance with any provision for reservation made under clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of that year.”

22.  The validity of the said Articles were challenged under Article 32 of the Constitution of India before this Court and the Constitution Bench in M. Nagraj (supra) upheld the validity of the said Articles with certain qualifiers/riders by taking recourse to the process of interpretation. As the controversy rests mainly on the said decision, we will advert to it in detail at a later stage.

23.  Presently, we shall dwell upon the provisions that were under challenge before the High Court. The Legislative Assembly of Uttar Pradesh brought in a legislation, namely, the Uttar Pradesh Public Services(Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (UP Act No. 4 of 1994) to provide for reservation in public services and posts in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens and formatters connected therewith or incidental thereto. Section 3(7), which is relevant for our present purpose, reads as follows: - “Reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes. – ...... .......... .......... (7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.” Sub-section (7) of Section 3 was the subject-matter of assail before the High Court.

24.  As the factual matrix would reveal, the State of Uttar Pradesh brought into existence the Uttar Pradesh Government Servants Seniority(First Amendment) Rules, 2002 on the 18th of October, 2002 in exercise of the power conferred under Article 309 of the Constitution whereby after Rule 8, new Rule 8-A was inserted. The said Rule reads as follows: - “8-A. Notwithstanding anything contained in Rule s6,7 or 8 of these rules, a person belonging to the Scheduled Castes or Scheduled Tribes shall on his promotion by virtue of rule of reservation/ roster, be entitled to consequential seniority also.”

25.  It is worth noting that on May 13, 2005, by the Uttar Pradesh Government Servants Seniority (Second Amendment) Rules, 2005, Rule 8-A was omitted. However, it was provided in the said Rules that the promotions made in accordance with the revised seniority as determined under Rule 8-Aprior to the commencement of the 2005 Rules could not be affected. Thereafter, on September 14, 2007, by the Uttar Pradesh Government Servants Seniority (Third Amendment) Rules, 2007, Rule 8-A was inserted in the same language which we have already reproduced hereinabove. It has been mentioned in the said Rule that it shall be deemed to have come into force on June 17, 1995. It is germane to note here that the U.P. Power Corporation Limited adopted the said Rules as there is no dispute about the fact that after the Rules came into existence and have been given effect to at some places and that is why the challenge to the constitutional validity of the Act and the Rules was made before the High Court. We have already indicated how both the Benches have dealt with the said situation.

26.  At this stage, we may usefully state that though number of appeals have been preferred, yet some relate to the assail of the interim orders and some to the final orders. We may only state for the sake of clarity and convenience that if Section 3(7) and Rule 8-A as amended in 2007 are held to be constitutionally valid, all the appeals are bound to be dismissed and if they are held to be ultra vires, then the judgment passed by the Lucknow Bench shall stand affirmed subject to any clarification/modification in our order.

27.  As has been noticed hereinbefore, the Allahabad Bench had understood the dictum in M. Nagaraj (supra) in a different manner and the Division Bench at Lucknow in a different manner. The learned counsel appearing forvarious parties have advanced their contentions in support of the provisions in the enactment and the Rules. We would like to condense their basic arguments and endeavour to pigeon-hole keeping in view the facts which are requisite to be referred to at the time of analysis of the said decision in the backdrop of the verdict in M. Nagaraj (supra).

28.  Mr. Andhyarujina and Mr. Raju Ram Chandran, learned senior counsel criticising the decision passed by the Lucknow Bench, have submitted that the High Court has fallen into grave error by not scrutinising the materials produced before it, as a consequence of which a sanctuary of errors have crept into it. If the counter affidavit and other documents are studiedly scanned, it would be luminescent that opinion has been formed as regards inadequate representation in promotional posts and, therefore, it had become an imperative to provide for reservation.

The opinion formed by the Government need not be with mathematical precision to broad spectrum and such exercise has already been done by the State of U.P., since reservation in promotional matters was already in vogue by virtue of administrative circulars and statutory provisions for few decades. It is urged that the concept of inadequate representation and backwardness have been accepted by the amending power of the Constitution and, therefore, the High Court has totally flawed by laying unwarranted emphasison the said concepts.

The High Court could not have sat in appeal on the rule of reservation solely on the factual bedrock. The chart brought on record would reflect department wise how the persons from backward classes have not been extended the benefit of promotion and the same forms the foundation for making the enactment and framing the rule and hence, no fault could have been found with the same.

Once an incumbent belongs to Scheduled Castes/ Scheduled Tribes category, it is conclusive that he suffers from backwardness and no further enquiry is necessary. It has been clearly held in the case of Indra Sawhney (supra) that the test or requirement of social and educational backwardness cannot be applied to Scheduled Castes/ Scheduled Tribes who indubitably fall within the expression ‘Backward Classes of Citizen’.

It is beyond any shadow of doubt that Scheduled Castes/ Scheduled Tribes are a separate class by themselves and the creamy layer principle is not applicable to them. It has been so held in Avinash Singh Bagri and Ors. v. Registrar IIT Delhi and Another[14]. Article 16 (4A) uses the phrase ‘in the opinion of’ and the said word carries a different meaning to convey that it is subjective in nature rather than objective. The Report of the “Social Justice Committee” dated 28.06.2001 clearly ascertains the need for implementation of reservation in promotional matters in public service in U. P. and the said Report deserves acceptance. The State Government was possessed of sufficient materials to implement the promotional provisions which are enabling in nature and the same is justified by the

“Social Justice Committee Report” which has examined the current status of implementation of Scheduled Castes/ Scheduled Tribes and other backward classes in other public services with respect to their quota, their participation and progress in various services, the substantial backlog in promotional posts in category A, B and C posts and the inadequacy of representation in promotional posts and various departments and State owned corporations. The High Court has completely erred specially when there was sufficient data available with the State Government.

Regard being had to the factum that the said promotions were being given for few decades, a fresh exercise regarding adequacy was not necessary. The concept of efficiency as stipulated under Article 335 of the Constitution is in no way affected if the reservation does not exceed 50%. The consequential seniority being vested by the Constitution, it follows as natural corollary and hence, no further exercise was required to be undertaken. The learned counsel for the State has drawn the attention of this Court with respect to the percentage of representation to justify that requisite data was available and no further exercise was needed and, therefore, the decision of the HighCourt is fundamentally fallacious.

29.  Mr. P. S Patwalia, learned senior counsel appearing in some appealsfor the corporation, has submitted that the requirement of having quantifiable data is not a new concept propounded in the case of M. Nagraj(supra) but is a reiteration of the earlier view enunciated in Indra Sawhney case (supra) and, therefore, the provision could not have been declared as ultra vires. The emphasis on backwardness is absolutely misconceived, for Scheduled Castes/ Scheduled Tribes are duly notified as such in the Presidential list by virtue of Articles 341 and 342 of the Constitution.

Their exclusion from the list can alone be done by the amendment of the Presidential Order and hence, any kind of collection of data as regards the backwardness is an exercise in futility. The concept of creamy layer principle cannot be applied to Scheduled Castes/ Scheduled Tribes as has been held in the case of Ashok Kumar Thakur v. Union of India[15]. Learned senior counsel has placed reliance on the decision in E. V. Chinniah v. State of Andhra Pradesh[16] to highlight that there may be only one list of Scheduled Castes/Scheduled Tribes and this list constitutes one group for the purpose of reservation and the same cannot be interfered with, disturbed, re-grouped or re-classified by the State.

In essence, the submission is that there may not be exclusion by engrafting the principle of backwardness for the purpose of reservation in promotion. Commenting on the adequacy of representation, it is urged by Mr. Patwalia that the data was immediately collected after the 1994 Act and thereafter, no fresh data was necessary to be collected after the decision rendered by the Constitution Bench in M. Nagraj (supra).

It is further submitted by the learned counsel that even if quantifiable data is not collected, the State can be asked to do so in view of the order passed by this Court in S.B Joshi v. State of Karnatka and Others in W.P. 259 of 1994 decided on13.07.2010. The efficiency of service as encapsuled in Article 335 of the Constitution has been duly respected by providing a uniform minimum standard of the matters of promotion as far as the Corporation is concerned and, therefore, no fault can be found in that regard.

30.  Mr. P. P. Rao, learned senior counsel appearing for some of the private respondents assailing the decision of the Lucknow Bench, has urged that when there was no challenge to the orders issued prior the amendment for reservation in promotion, no quantifiable data is necessary. Section3 (7) of the 1994 Act does not make any change except recognising the earlier orders which lay down that they shall continue to be applicable till it is modified or revoked and, therefore, it has only been conferred statutory recognition.

The High Court has misunderstood the decision in M. Nagraj (supra) while stating that the collection of quantifiable data was not undertaken though the said decision clearly lays down that a collection of quantifiable data showing backwardness for the class would be required while demonstrating the same in Court to the extent of promotion when it is under challenge.

In the case at hand, the issue is not the extent of reservation or excessive reservation but reservation in promotion. That apart, the principles laid down in M. Nagraj (supra) do not get attracted if reservation in promotion is sought to be made for the first time but not for continuing th