B K Pavitra and Ors. vs The Union of India and Ors.

s. 4 – Protection of consequential seniority already accorded from 27.04.1978 onwards – Provision in regard to retrospectivity, whether arbitrary or unconstitutional – Held: Provisions are neither arbitrary or unconstitutional – 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 27.04.1978 shall be valid and shall be protected – Since decision in Virpal Singh held that the catch-up rule would be applied only from 10.02.1995, decision in Ajit Singh II specifically protected the promotions granted before 01.03.1996 without following the catch-up rule; and in Badappanavar’s case, promotions of reserved candidates based on consequential seniority which took place before 01.03.1996 were specifically protected, it was logical for the legislature to protect consequential seniority – Object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. Constitution of India:

Arts. 200 and 201 – Assent to the Bill – Reservation of the Bill( which led to Reservation Act, 2018) by the Governor for the consideration of the President – Power u/Art. 200 – Exercise of – Held: Once the Bill was reserved by the Governor for the consideration of the President, it was for the President to either grant or withhold assent to the Bill – President having assented to the Bill, the requirements of Art. 201 were fulfilled – Validity of the assent by the President is non-justiciable – State Government, was of the view that there was no necessity of reserving the Bill for the consideration of the President, since in its view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul of existing central legislation on the subject or that it was beyond legislative competence or derogated from the fundamental rights – This objection of the State Government cannot cast doubt upon the grant of assent by the President – Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018.

Art. 16(4A) and (4B) – Ratna Prabha Committee report – Collection of data by State on adequacy of representation and impact on efficiency – Exercise of judicial power on propriety and sufficiency – Held: Court should recognize the circumspection with which judicial power must be exercised – Judicial review must traverse conventional categories by determining as to whether the Ratna Prabha Committee considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted.

Art. 16(4A) and (4B) – Ratna Prabha Committee report – Report, commissioned to collect information on cadre wise representation of SC and ST employees in all government departments and on backwardness of SCs and STs; and study the effect on the administration due to the promotion of SCs and STs – Report, whether constituted an adequate and appropriate basis to support the validity of the Reservation Act and its implementation – Held: Ratna Prabha Committee report is valid – After the decision in *B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise – Committee has not based its conclusions on any extraneous or irrelevant material – In adopting recourse to sampling methodologies, the Committee has not acted arbitrarily – The exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed – State analysed the data which is both relevant and representative, before drawing its conclusions – Even if there were some errors in data collection, that would not justify the invalidation of a law which the competent legislature was within its power to enact – Furthermore, there is no merit in the challenge to the Ratna Prabha Committee report on the ground that the collection of data was on the basis of groups A, B, C and D as opposed to cadres – Collection of data on the basis of groups A to D does not by its very nature exclude data pertaining to cadres – Since, the group includes posts in all the cadres in that group, it can logically be presumed that the State has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well – Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018.

Art. 16(1) and (4) – Equality – Substantive versus formal equality – Constitutional content of – Held: For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them – Reservations are not an exception to the rule of equality of opportunity, rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born. Interpretation of the Constitution – Held: Constitution is a transformative document – Realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts – Constitution was intended by its draftspersons to be a significant instrument of bringing about social change – Realisation of the transformative potential of the Constitution has been founded on the evolution of equality away from its formal underpinnings to its substantive potential.

Art. 335 proviso – Claims of Scheduled Castes and Scheduled Tribes to services and posts – Constitutional justification for efficiency in administration – Held: Under Art. 335 consideration of the claims of SCs and STs in making appointments to services and posts in connection with the affairs of the Union or of a State is to be in a manner consistent with maintaining the efficiency of administration – Proviso to Art. 335 specifically protects provisions in favour of the SCs and STs for relaxing qualifying marks in an examination; lowering the standards of evaluation; or reservation in matters of promotion – Proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field – Proviso is not a qualification to the substantive part of Art. 335 but it embodies a substantive effort to realise substantive equality – Need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.

Art. 335 – Phrase “efficiency of administration” – Definition of – Held: Constitution does not define the phrase “efficiency of administration” – Art. 335 cannot be construed on an assumption that roster point promotees drawn from SCs and STs are not efficient or that efficiency is reduced by appointing them – Benchmark for the efficiency of administration is not the performance of a qualified open category candidate – Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people – Inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency – Hence, while interpreting Art. 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration – Since inclusion is inseparable from a well governed society, there is, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments. Arts. 335, 16(4) and 46 – Reservation for SCs and STs – Principal of meritocracy – Held: 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 – Proviso to Art. 335 allows for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs – If the government’s sole consideration in appointments was to appoint individuals who were considered talented or successful in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined – Thus, a “meritorious” candidate is not merely one who is “talented” or “successful” but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration. Arts. 16 (4A), (4B), 16(1) and 14 – Reservation – Concept of creamy layer – Applicability to SCs and STs – Plea that concept of creamy layer is inapplicable to the SCs and STs; and that the SCs and STs cannot be split or bifurcated and the adoption of the creamy layer principle would amount to a split in the homogenous groups of the SCs and STs – Held: Cannot be accepted – Creamy layer principle sounds in Arts. 14 and 16(1) – Creamy layer principle is a principle of equality.

Arts. 16 (4A) and (4B) – Reservation – Concept of creamy layer – Application of the concept of creamy layer in assessing the validity of the Reservation Act 2018 – Held: Concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs – Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs – Concept of creamy layer has no relevance to the grant of consequential seniority – Consequential seniority is a concept purely based in service jurisprudence – Thus, incorporation of consequential seniority would not violate the constitutional mandate of equality – Protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test – Arts 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test – Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018.

Arts 16(4A) and (4B) – Reservation in promotion – Plea that over representation for SCs and STs in Karnataka Power Transport Corporation Limited and PWD due to reservation in seniority in the cadre of Superintending Engineer and Engineer in Chief – Held: Cannot be accepted in view of the report of the Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka, which was taken as representative of the position in public employment under the State – KPTCL and PWD fall within the administrative control of one of the departments.

Legislation: Curative legislation – Scope and permissibility of – Held: Curative legislation is constitutionally permissible – It is not an encroachment on judicial power – Legislature has the plenary power to enact a law, both with prospective and retrospective effect – Where a law has been invalidated by the decision of a constitutional court, the legislature can amend the law retrospectively or enact a law which removes the cause for invalidation – Legislature cannot overrule a decision of the court on the ground that it is erroneous or is nullity – However, it can either amend an existing law or to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review – Declaration by a court that a law is constitutionally invalid does not fetter the authority of the legislature to remedy the basis on which the declaration was issued by curing the grounds for invalidity – Legislature cannot simply override the declaration of invalidity – It has to remedy basis on which it was held to be ultra vires – Law may have been held to be invalid on the ground that the legislature which enacted the law had no legislative competence on the subject matter of the legislation, or a law may have been declared invalid on the ground that there was a breach of the fundamental rights contained in Part III of the Constitution. The constitutional validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 2002 providing for consequential seniority was challenged in B K Pavitra v Union of India case (*B K Pavitra I). This Court invalidated the Reservation Act 2002 since no exercise of data collection was carried out by the State of Karnataka as mandated by the M Nagraj case, to provide for consequential seniority to the scheduled castes and scheduled tribe candidates. Thereafter, the Government of Karnataka constituted the Ratna Prabha Committee to submit report on backwardness and inadequacy of representation of SCs and STs in the State Civil Services and the impact of reservation on overall administrative efficiency in the State of Karnataka. On the basis of the report, the State of Karnataka enacted the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018, wherein section 3 provides for reservation in promotion and section 4 provides for protection of consequential seniority from 27 th April 1978 onwards. Hence, the instant matters challenging the validity of the Reservation Act, 2018. Dismissing the Writ Petitions, Review Petitions and Miscellaneous Applications, the Court

HELD : 1.The challenge to the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018 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 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 Art. 16(4A) of the Constitution. The constitutional validity of the Reservation Act 2018 is upheld. [Para 144-145] [1218-C-E]

M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]

7 Suppl. SCR 336 - followed.

*B K Pavitra v Union of India (2017) 4 SCC 620 : [2017] 1 SCR 631 ; Jarnail Singh v Lachhmi Narain Gupta 2018 (10) SCC 396 - relied on.

Assent to the Bill

2.1 The framers carefully eschewed defining the circumstances in which the Governor may reserve a Bill for the consideration of the President. By its very nature the conferment of the power cannot be confined to specific categories. Exigencies may arise in the working of the Constitution which justify a recourse to the power of reserving a Bill for the consideration of the President. They cannot be foreseen with the vision of a soothsayer. The power having been conferred upon a constitutional functionary, it is conditioned by the expectation that it would be exercised upon careful reflection and for resolving legitimate concerns in regard to the validity of the legislation. The entrustment of a constitutional discretion to the Governor is premised on the trust that the exercise of authority would be governed by constitutional statesmanship. In a federal structure, the conferment of this constitutional discretion is not intended to thwart democratic federalism. The state legislatures represent the popular will of those who elect their representatives. They are the collective embodiments of that will. The act of reserving a Bill for the assent of the President must be undertaken upon careful reflection, upon a doubt being entertained by the Governor about the constitutional legitimacy of the Bill which has been passed. [Para 63] [1168-F-G; 1169-A-B]

2.2 Article 254(1) postulates inter alia, that in a matter which is governed by the Concurrent List, a law which has been enacted by the legislature of a state shall be void to the extent of its repugnancy with a law enacted by the Parliament. Clause (2) of Article 254 obviates that consequence where the law has been reserved for the consideration of the President and has received assent. Article 254(1) is made subject to Clause (2), thereby emphasizing that the assent of the President will cure a repugnancy of the state law with a law enacted by the Parliament in a matter falling in the Concurrent List. The assent of the President should be sought in relation to a repugnancy with a specific provision contained in a Parliamentary legislation so as to enable due consideration by the President of the ground on which assent has been sought. Article 200 contains the source of the constitutional power which is conferred upon the Governor to reserve a Bill for the consideration of the President. Article

254 (2) is an illustration of the constitutional authority of the Governor to reserve a law enacted by the state legislature for consideration of the President in a specified situation-where it is repugnant to an existing law or to a Parliamentary legislation on a matter falling in the Concurrent List. The eventuality which is specified in Article 254 (2) does not exhaust the ambit of the power entrusted to the Governor under Article 200 to reserve a Bill for the consideration of the President. Apart from a repugnancy in matters falling in the Concurrent List between state and Parliamentary legislation, a Governor may have sound constitutional reasons to reserve a Bill for the consideration of the President. Article 200, in its second proviso mandates that a Bill which derogates from the powers of the High Court must be reserved for the consideration of the President. Apart from Bills which fall within the description set out in the second proviso, the Governor may legitimately refer a Bill for consideration of the President upon entertaining a legitimate doubt about the validity of the law. By its very nature, it would not be possible for this Court to reflect upon the situations in which the power under Article 200 can be exercised. [Para 67] [1170-F-H; 1171-A-E]

2.3 Once the Bill (which led to the Reservation Act 2018) was reserved by the Governor for the consideration of the President, it was for the President to either grant or withhold assent to the Bill. The President having assented to the Bill, the requirements of Article 201 were fulfilled. The validity of the assent by the President is non-justiciable. [Para 69] [1172-D-E]

2.4 The State Government, in the course of its clarifications, was of the view that there was no necessity of reserving the Bill for the consideration of the President, since in its view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul of existing central legislation on the subject or that it was beyond legislative competence or derogated from the fundamental rights. All procedural requirements under the Constitution were according to the government duly complied with. This objection of the State Government cannot cast doubt upon the grant of assent by the President. [Para 70] [1173-B-C]

Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4 SCC 45 : [1983] 3 SCR 130 - relied on.

Nabam Rebia and Bamang Felix v Deputy Speaker Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1 : [2016] 6 SCR 1 ; Gram Panchayat of Village Jamalpur v Malwinder Singh (1985) 3 SCC 661 ; Kaiser-I-Hind Pvt Ltd v National Textile Corporation Ltd (2002) 8 SCC 182 : [2002] 2 Suppl. SCR 555 - referred to.

Does the Reservation Act 2018 overrule or nullify B K Pavitra I

3.1 The foundation of the decision in B K Pavitra I is the principle enunciated in Nagaraj that in order to sustain the exercise of the enabling power contained in Article 16 (4A), the state is required to demonstrate a “compelling necessity” by collecting quantifiable data on: (i) inadequacy of representation;

(ii) backwardness; and (iii) overall efficiency. The judgment in B K Pavitra I held that no such exercise was undertaken by the State of Karnataka before providing for reservation in promotion and providing for consequential seniority. On the ground that the state had not collected quantifiable data on the three parameters enunciated in Nagaraj, the Reservation Act 2002 was held to be unconstitutional. The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A) on the basis that before taking recourse to the enabling power the state has to carry out the exercise of collecting quantifiable data and fulfilling the three parameters noted above. B K Pavitra I essentially held that there was a failure on the part of the state to undertake this exercise, which was a pre-condition for the exercise of the enabling power to make reservations in promotions and to provide for consequential seniority. [Para 71] [1173-D-G] M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]

7 Suppl. SCR 336 - followed.

*B K Pavitra v Union of India (2017) 4 SCC 620 : [2017] 1 SCR 631 - relied on.

3.2 The decision in B K Pavitra I did not restrain the state from carrying out the exercise of collecting quantifiable data so as to fulfil the conditionalities for the exercise of the enabling power under Article 16 (4A). The legislature has the plenary power to enact a law. That power extends to enacting a legislation both with prospective and retrospective effect. Where a law has been invalidated by the decision of a constitutional court, the legislature can amend the law retrospectively or enact a law which removes the cause for invalidation. A legislature cannot overrule a decision of the court on the ground that it is erroneous or is nullity. But, it is certainly open to the legislature either to amend an existing law or to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review. Curative legislation is constitutionally permissible. It is not an encroachment on judicial power. In the instant case, state legislature of Karnataka, by enacting the Reservation Act 2018, has not nullified the judicial decision in B K Pavitra I, but taken care to remedy the underlying cause which led to a declaration of invalidity in the first place. Such a law is valid because it removes the basis of the decision. [Para 72] [1173-G-H; 174-A-C]

*B K Pavitra v Union of India (2017) 4 SCC 620 : [2017] 1 SCR 631 - relied on.

Utkal Contractors & Joinery (P) Ltd v State of Orissa (1987) Supp. SCC 751 : 1988 SCR 314 ;

Bhubaneshwar Singh v Union of India (1994) 6 SCC

77 : [1994] 1 Suppl. SCR 639 ; Indian Aluminium Co v State of Kerala (1996) 7 SCC 637 ; State of Himachal Pradesh v. Narain Singh (2009) 13 SCC 165 : [2009]

10 SCR 821 ; Cheviti Venkanna Yadav v State of Telangana (2017) 1 SCC 283 : [2016] 7 SCR 689 – referred to.

3.3 The legislature has the power to validate a law which is found to be invalid by curing the infirmity. As an incident of the exercise of this power, the legislature may enact a validating law to make the provisions of the earlier law effective from the date on which it was enacted. [Para 74] [1175-A-B] The United Provinces v Mst Atiqa Begum AIR 1941 FC

16 ; Rai Ramkrishna v State of Bihar (1964) 1 SCR

897 ; Shri Prithvi Cotton Mills Ltd v Broach Borough Municipality (1969) 2 SCC 283 : [1970] 1 SCR 388 ; State of T N v Arooran Sugars Ltd (1997) 1 SCC 326 : [1996] 8 Suppl. SCR 193 ; Virender Singh Hooda v State of Haryana (2004) 12 SCC 588 : [2004] 5 Suppl. SCR 720 – referred to.

3.4 A declaration by a court that a law is constitutionally invalid does not fetter the authority of the legislature to remedy the basis on which the declaration was issued by curing the grounds for invalidity. While curing the defect, it is essential to understand the reasons underlying the declaration of invalidity. The reasons constitute the basis of the declaration. The legislature cannot simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires. A law may have been held to be invalid on the ground that the legislature which enacted the law had no legislative competence on the subject matter of the legislation. Obviously, in such a case, a legislature which has been held to lack legislative competence cannot arrogate to itself competence over a subject matter over which it has been held to lack legislative competence. However, a legislature which has the legislative competence to enact a law on the subject can certainly step in and enact a legislation on a field over which it possesses legislative competence. Apart from legislative competence, a law may have been declared invalid on the ground that there was a breach of the fundamental rights contained in Part III of the Constitution. In that situation, if the legislature proceeds to enact a new law on the subject, the issue in essence is whether the re-enacted law has taken care to remove the infractions of the fundamental rights on the basis of which the earlier law was held to be invalid. The true test therefore is whether the legislature has acted within the bounds of its authority to remedy the basis on which the earlier law was held to suffer from a constitutional infirmity. [Para 76] [1176-G-H; 1177-A-B; D-E]

Madan Mohan Pathak v Union of India (1978) 2 SCC

50 : [1978] 3 SCR 334 – distinguished.

Sri Ranga Match Industries v Union of India 1994 Supp.

(2) SCC 726 ; Indian Aluminium Co v State of Kerala (1996) 7 SCC 637 ; Agricultural Income Tax Officer v Goodricke Group Ltd (2015) 8 SCC 399 : [2015] 3 SCR 612 - referred to.

Is the basis of B K Pavitra I cured in enacting the Reservation Act 2018

4. The Statement of Objects and Reasons of the Reservation Act 2018 refers to the legislative history preceding its enactment. The Ratna Prabha Committee was constituted after the Reservation Act 2002 was held to be invalid in B K Pavitra I on the ground that no compelling necessity had been shown by the state to provide for reservation in matters of promotion for SCs and STs by collecting and analysing relevant data to satisfy the requirements laid out in Nagaraj. The Statement of Objects and Reasons, cannot be used for restricting the plain meaning of a legislation; cannot determine whether a provision is valid; and may not be definitive of the circumstances in which it was passed. The preamble to a law may be a statutory aid to consider the mischief which the law seeks to address. While it cannot prevail over the provisions of the statute, it can be an aid to resolve an ambiguity. [Para 82, 84, 85] [1180-F-G; 1181-A; 1182-E-G]

Bhaiji v Sub-Divisional Officer, Thandla (2003) 1 SCC

692 : [2002] 5 Suppl. SCR 116 ; A Manjula Bhashini v A P Monen’s Coor. Finance Corp. Ltd. (2009) 8 SCC

431 : [2009] 10 SCR 634 ; Kerala State (Electricity) Board v Indian Aluminum (1976) 1 SCC 466 : [1976] 1 SCR 552 ; K S Paripoornan v State of Kerala (1994) 5 SCC 593 : [1994] 3 Suppl. SCR 405 ; Welfare

Association v Ranjit (2003) 9 SCC 358 : [2003] 2 SCR

139 ; Burrakur Coal Co. Ltd. v Union of India AIR 1961 SC 954 : 1962 SCR 44 ; Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR

454 ; M Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 ; Jarnail Singh v Lachhmi Narain Gupta 2018 (10) SCC 396 - referred to. The Ratna Prabha Committee report

5.1 The Ratna Prabha Committee report was commissioned to collect information on cadre wise representation of SC and ST employees in all government departments; collect information on backwardness of SCs and STs; and study the effect on the administration due to the promotion of SCs and STs. [Para 88] [1183-F-G]

5.2 It is relevant for this Court to recognize the circumspection with which judicial power must be exercised on matters which pertain to propriety and sufficiency, in the context of scrutinizing the underlying collection of data by the State on the adequacy of representation and impact on efficiency. The Court, is above all, considering the validity of a law which was enacted by the State legislature for enforcing the substantive right to equality for the SCs and STs. Judicial review must hence traverse conventional categories by determining as to whether the Ratna Prabha Committee report considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted. In this area, the fact that an alternate line of approach was possible or may even appear to be desirable cannot furnish a foundation for the assumption by the court of a decision making authority which in the legislative sphere is entrusted to the legislating body and in the administrative sphere to the executive arm of the government. [Para 95] [1188-E-G]

5.3 The collection of data and its analysis are governed by varying and often divergent approaches in the social sciences. The methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies. It cannot be said that the Committee has based its conclusions on any extraneous or irrelevant material. In adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily. If, sampling is a valid methodology for collection of data, the necessary consequence is that the exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed. The data which was collected pertained to thirty one departments which are representative in character. The State has analysed the data which is both relevant and representative, before drawing its conclusions. There are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data. [Para 97, 99] [1190-C; 1191-F-H; 1192-A] Empircal Political Analysis – Quantitative and Qualitative Research Methods Ninth Edn. Richard C. Rich, Craig Leonard Brians, Jarol B Manheim and Lars B Willnat, Longman Publishers – referred to.

5.4 Once an opinion has been formed by the State Government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re–evaluate the factual material on record. The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the State and the Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy. Thus, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population. [Para 101, 102] [1192-D-G; 1193-A]

5.5 The submission that the quota must be reckoned on the basis of the posts which are actually filled up or the working strength and not the sanctioned posts cannot be accepted. The percentage of reservation has to be worked out in relation to number of posts which form part of the cadre strength. There is no merit in the challenge to the Ratna Prabha Committee report on the ground that the collection of data was on the basis of groups A, B, C and D as opposed to cadres. For one thing, the expression ‘cadre’ has no fixed meaning ascribed to it in service jurisprudence. But that apart, Nagaraj requires the collection of quantifiable data inter alia, on the inadequacy of representation in services under the State. Clause 4A of Article 16 specifically refers to the inadequacy of representation in the services under the State. The collection of data on the basis of groups A to D does not by its very nature exclude data pertaining to cadres. The State has studied in the instant case the extent of reservation for SCs and STs in groups A to D, consisting of several cadres. Since, the group includes posts in all the cadres in that group, it can logically be presumed that the State has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well. [Para 103, 104] [1194-G-H; 1195-A-C]

5.6 In Indra Sawhney’s case, it was observed that reservation under Article 16 (4) does not operate on communal grounds. Hence, if a member belonging to a reserved category is selected in the general category, the selection would not count against the quota prescribed for the reserved category. The decision in Sabharwal also noted that while candidates belonging to the general category are not entitled to fill reserved posts, reserved category candidates are entitled to compete for posts in the general category. In several group D posts, such as municipal sweepers, large segment of applicants consists of persons belonging to the SCs and STs. Over representation in group D posts as a result of candidates belonging to the general category staying away from those posts cannot be a valid or logical basis to deny promotion to group D employees recruited from the reserved category. [Para 105] [1195-D-F]

Amalgamated Tea Estates Co Ltd v State of Kerala (1974)

4 SCC 415 : [1974] 3 SCR 820 ; V C Shukla v State (Delhi Administration) (1980) Supp SCC 249 : 1980 SCR 500 ; State of Himachal Pradesh v Satpal Saini (2017) 11 SCC 42 : [2017] 1 SCR 658 ; Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 ; Barium Chemicals Ltd. v Company Law Board AIR 1967 SC 295 : 1966 SCR 311 ; M

Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 ; Jarnail Singh v Lachhmi Narain Gupta 2018 (10) SCC 396 ; Sabharwal v State of Punjab (1995) 2 SCC 745 : [995] 2 SCR 35 - referred to.

Substantive versus formal equality

6.1 For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the rule of equality of opportunity. They are rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born. If Article 16(1) merely postulates the principle of formal equality of opportunity, then Article 16(4) (by enabling reservations due to existing inequalities) becomes an exception to the strict rule of formal equality in Article 16(1). However, if Article 16(1) itself sets out the principle of substantive equality (including the recognition of existing inequalities) then Article 16(4) becomes the enunciation of one particular facet of the rule of substantive equality set out in Article 16 (1). One method of overcoming the inequalities in the society is reservations for the SCs and STs in the legislatures and state services. Therefore, for the members of the Constituent Assembly who supported reservations, a key rationale for incorporating reservations for SCs and STs in the Constitution was the existence of inequalities in society based on discrimination and prejudice within the caste structure. This is evidenced by the statements in support of reservations for minorities by members. By recognising that formal equality of opportunity will be insufficient in fulfilling the transformative goal of the Constitution, these members of the Assembly recognised that the conception of equality of opportunity must recognise and account for existing societal inequalities. Members debated draft article 10 (which would go on to become Article 16 of the Constitution). In these debates, some members understood subclause (4) (providing for reservations) as an exception to the general rule of formal equality enunciated in sub-clause (1). [Paras 107, 109] [1195-G-H; 1196-A-B; D-E; 1197-F-G; 1198-A]

The Constitution as a transformative instrument

7. The Constitution is a transformative document. The realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts. For, above all, the Constitution was intended by its draftspersons to be a significant instrument of bringing about social change in a caste based feudal society witnessed by centuries of oppression of and discrimination against the marginalised. As our constitutional jurisprudence has evolved, the realisation of the transformative potential of the Constitution has been founded on the evolution of equality away from its formal underpinnings to its substantive potential. [Para 111] [1199-E-F] T Devadasan v The Union of India AIR 1964 SC 179 : 1964 SCR 680 ; State of Kerala v N M Thomas (1976)

2 SCC 310 : [1976] 1 SCR 906 ; ABS Sangh (Railways) v Union of India (1981) 1 SCC 246 : [1981] 2 SCR

185 ; Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 ; M Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 - referred to.

Efficiency in administration

8.1 The substantive part of Article 335 contains a mandate: a requirement to take into consideration the claims of SCs and STs in making appointments to services and posts in connection with the affairs of the Union or of a State. Consideration is much broader in its ambit than reservation. The consideration of their claims to appointment is to be in a manner consistent with maintaining the efficiency of administration. The proviso specifically protects provisions in favour of the SCs and STs for relaxing qualifying marks in an examination; lowering the standards of evaluation; or reservation in matters of promotion. Reservation is encompassed within the special provision but the universe of the latter is wider. The proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field. Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory. The proviso is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the States. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs. [Para 117, 118] [1202-G-H; 1203-A-F]

8.2 The Constitution does not define what the framers meant by the phrase “efficiency of administration”. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as it is held, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define the outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, the past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal citizenship recognizes governance which is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination and oppression have a real voice in governance. Since inclusion is inseparable from a well governed society, there is, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State. [Para 119] [1203-F-H; 1204-A-E]

8.3 The substantive right to equality is for all segments of society. Articles 15 (4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions of the SCs and STs. An assumption implicit in the critique of reservations is that awarding opportunities in government services based on “merit” results in an increase in administrative efficiency. Administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The submission that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods. Secondly, arguments that attack reservations on the grounds of efficiency equate “merit” with candidates who perform better than other candidates on seemingly “neutral” criteria, e.g. standardised examinations. Thus, candidates who score beyond a particular “cut–off point” are considered “meritorious” and others are “non–meritorious”. However, this is a distorted understanding of the function “merit” plays in society. [Para 121,122] [1205-E; -FG; 1206-A-B]

K C Vasanth Kumar v State of Karnataka (1985) Supp. SCC 714 : 1985 Suppl. SCR 352 ; Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 – referred to.

8.4 Once “merit” is understood as instrumental in achieving goods that we as a society value, 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. Based on the text of Articles 335, 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. 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. [Para 124, 125] [1207-B-D; 1208-A-B]

Sen A, Merit and Justice, in Arrow, KJ, Meritocracy and Economic Inequality (Princeton University Press 2000) (Amartya Sen, Merit and Justice) - referred to.

8.5 The proviso to Article 335 seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. If the government’s sole consideration in appointments was to appoint individuals who were considered “talented” or “successful” in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined. Thus, a “meritorious” candidate is not merely one who is “talented” or “successful” but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration. [Para 126]

8.6 Existing inequalities in society can lead to a seemingly “neutral” system discriminating in favour of privileged candidates. It is stated that three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of “merit”. These are economic resources (for prior education, training, materials, freedom from work etc.); social and cultural resources (networks of contacts, confidence, guidance and advice, information, etc.); and intrinsic ability and hard work. The first two criteria are evidently not the products of a candidate’s own efforts but rather the structural conditions into which they are born. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society. [Para 127, 128] [1208-G-H; 1209-A-C] Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984), cited by Deshpande S, Inclusion versus excellence: Caste and the framing of fair access in Indian higher education, 40:1 South African Review of Sociology 127 - 147 – referred to.

8.7 The Ratna Prabha Committee report considers the relationship between reservation in promotion and maintenance of efficiency in administration. Moreover, even in a formal legal sense, promotions, including those in respect of roster points, are made on the basis of seniority–cum–merit and a candidate to be promoted has to meet this criteria. A candidate on promotion has to serve a statutory period of officiation before being confirmed. This rule applies across the board including to roster point promotees. This ensures that the efficiency of administration is, in any event, not adversely affected. [Paras 129, 130] [1209-C; E-G]

The issue of creamy layer

9.1 It cannot be said that Jarnail is not per curium on the issue of creamy layer. For one thing, Jarnail specifically examined the decision in Indra Sawhney, noticing that eight of the nine Judges applied the creamy layer principle as a facet of the larger equality principle. In fact, the decision in Indra Sawhney II summarised the judgments in Indra Sawhney I on the aspect of creamy layer. The judgment in Jarnail approved Indra Sawhney II when it held that the creamy layer principle sounds in Articles

14 and 16 (1). Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of legislative competence on the part of the State legislatures to create sub–categories among the Presidential lists under Articles 341 and 342. The decision in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj and hence it was not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter, it is held that Jarnail, on a construction of Indra Sawhney holds that the creamy layer principle is a principle of equality. [Para 137] [1214-D-E; 125-C-D]

9.2 The challenge in the instant case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant of consequential seniority. Progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. [Para 138] [1215-E-H]

9.3 In sustaining the validity of Articles 16(4A) and 16(4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch–up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. 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 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In view thereof, 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. [Para 139] [1216-C-F]

Jarnail Singh v Lachhmi Narain Gupta 2018 (10) SCC

396 – Explained and followed.

Indra Sawhney v Union of India 1992 Supp (3) SCC

217 : [1992] 2 Suppl. SCR 454 ; Indra Sawhney II v Union of India (2000) 1 SCC 168 : [1999] 5 Suppl. SCR 229 ; M Nagaraj v Union of India (2006) 8 SCC

212 : [2006] 7 Suppl. SCR 336 ; E V Chinnaiah v State of AP (2005) 1 SCC 394 : [2004] 5 Suppl. SCR 972 ; State of Tripura v Jayanta Chakraborty (2018) 1 SCC

146 : [2017] 11 SCR 247 ; State of Maharashtra v Vijay Ghogre (2018) 15 SCC 64 - referred to.

Retrospectivity

10. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 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 April 1978 shall be valid and shall be protected. The decision in Virpal Singh held that the catch-up rule would be applied only from 10 February 1995 which was the date of the judgment in Sabharwal; The decision in Ajit Singh II specifically protected the promotions which were granted before

1 March 1996 without following the catch-up rule. In Badappanavar, promotions of reserved candidates based on consequential seniority which took place before 1 March 1996 were specifically protected. Since promotions granted prior to 1 March 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, there is no reason to hold that the provisions in regard to retrospectivity in the Reservation Act, 2018 are either arbitrary or unconstitutional. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded. [Paras 140– 142] [1216-G-H; 1217-A-E]

Union of India v Virpal Singh Chauhan (1995) 6 SCC

684 : [1995] 4 Suppl. SCR 158 ; R K Sabharwal v State of Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ; Ajit Singh Januja v State of Punjab (1996) 2 SCC 715 : [1996] 3 SCR 125 ; M G Badappanavar v State of Karnataka (2001) 2 SCC 666 : [2000] 5 Suppl. SCR

302 – referred to.

Over representation in KPTCL and PWD

11. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. The corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj’s case. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Under the Government Order dated 13.04.1999, reservation in promotion in favour of SC’s and ST’s has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the said Government Order is applicable to KPTCL and PWD. [Para 143] [1217-F-H; 1218-A-B]

R K Sabharwal v State of Punjab (1995) 2 SCC 745 : [995] 2 SCR 35 ; M Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 ; Bhakta

Ramegowda v State of Karnataka (1997) 2 SCC 661 : [1997] 1 SCR 535 ; Jagdish Lal v State of Haryana (1997) 6 SCC 538 ; Suraj Bhan Meena v State of Rajasthan (2011) 1 SCC 467 : [2010] 14 SCR 532 ; Uttar Pradesh Power Corporation Ltd v Rajesh Kumar (2012) 7 SCC 1 : [2012] 4 SCR 118 ; S Panneer Selvam v State of Tamil Nadu (2015) 10 SCC 292 ; S R Bhagwat v State of Mysore (1995) 6 SCC 16 : [1995] 3 Suppl. SCR 545 ; Bakhtawar Trust v M D Narayan (2003) 5 SCC 298 : [2003] 1 Suppl. SCR 1 ; Delhi Cloth & General Mills Co. Ltd v State of Rajasthan (1996) 2 SCC 449 : [1996] 1 SCR 518 ; Re Cauvery (1993) Supp

(1) SCC 96 : [1991] 2 Suppl. SCR 497 ; S T Sadiq v State of Kerala (2015) 4 SCC 400 : [2015] 3 SCR

287 ; Medical Council of India v State of Kerala (2018)

11 SCALE 141 : 2018 SCR 213 ; I R Coelho v State of TN (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Pandit M S M Sharma v Dr Krishna Sinha AIR 1960 SC 1186 ; State of West Bengal v Kamal Sengupta (2008) 8 SCC

612 : [2008] 10 SCR 4 ; Rohtas Industries v S D Agarwal (1969) 1 SCC 325 : [1969] 3 SCR 108 ; Rustom Cavasjee Cooper v Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530 ; Ritesh Sah v Y L Yamul (1996) 3 SCC 253 : [1996] 2 SCR 695 – referred to.