Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B) and 335 – Reservation in promotion – Collection of quantifiable data regarding inadequacy of representation of SCs and STs – Yardstick for arriving at quantifiable data – In M. Nagaraj case the key issue that was identified and decided by the Supreme Court was whether any constitutional limitation mentioned in Art.16(4) and Art.335 stood obliterated by the constitutional amendments resulting in Arts. 16(4-A) and 16(4-B) – The Supreme Court upheld the constitutional amendments – The amendments were held to be enabling provisions – It was observed that the State is not bound to make reservation for SCs and STs in matters of promotion, however, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Art.335 of the Constitution – What is the yardstick by which, according to M. Nagaraj case, one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment – Held: Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments – In addition, the prevailing local conditions, which may require to be factored in, might not be uniform – Moreover, in M. Nagaraj case, the Court made it clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a case-tocase basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data – Therefore, no yardstick can be laid down by the court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation – Reservation. Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B) and 335 – Reservation in promotion – Collection of quantifiable data regarding inadequacy of representation of SCs and STs – Unit for collecting quantifiable data – In M. Nagaraj case the key issue that was identified and decided by the Supreme Court was whether any constitutional limitation mentioned in Art.16(4) and Art.335 stood obliterated by the constitutional amendments resulting in Arts. 16(4-A) and 16(4-B) – The Supreme Court upheld the constitutional amendments – The amendments were held to be enabling provisions – It was observed that the State is not bound to make reservation for SCs and STs in matters of promotion, however, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Art.335 of the Constitution – What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected – Held: In M. Nagaraj case, the Supreme Court approved that the percentage of reservation in promotions was to be applied to the entire cadre strength, as held in R.K. Sabharwal case – While doing so, the court in M. Nagaraj made it clear that the unit for operation of the roster would be the cadre strength – Before providing for reservation in promotions to a cadre, the State is obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs – Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or ‘class’/‘group’ but it should be relatable to the grade/category of posts to which promotion is sought – Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service – Reservation. Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B) and 335 – Reservation in promotion – Quantifiable data regarding representation of SCs and STs – Proportionate representation as test of adequacy – In M. Nagaraj case the key issue that was identified and decided by the Supreme Court was whether any constitutional limitation mentioned in Art.16(4) and Art.335 stood obliterated by the constitutional amendments resulting in Arts. 16(4-A) and 16(4B) – The Supreme Court upheld the constitutional amendments – The amendments were held to be enabling provisions – It was observed that the State is not bound to make reservation for SCs and STs in matters of promotion, however, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Art.335 of the Constitution – Whether proportion of the population of SCs and STs to the population of India should be taken to be the test for determining adequacy of representation in promotional posts for the purposes of Art.16(4-A) – Held: In M. Nagaraj case, the Court was of the considered view that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment – As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case – The Court in Jarnail Singh found no fault with M. Nagaraj case regarding the test for determining the adequacy of representation in promotional posts in the State – It is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors – Reservation.
Constitution of India, 1950 – Arts. 16(4), 16(4-A), 16(4-B) and 335 – Reservation in promotion – Quantifiable data regarding inadequacy of representation of SCs and STs – Review of – Period for review – In M. Nagaraj case the key issue that was identified and decided by the Supreme Court was whether any constitutional limitation mentioned in Art.16(4) and Art.335 stood obliterated by the constitutional amendments resulting in Arts. 16(4-A) and 16(4B) – The Supreme Court upheld the constitutional amendments – The amendments were held to be enabling provisions – It was observed that the State is not bound to make reservation for SCs and STs in matters of promotion, however, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Art.335 of the Constitution – Should there be a time period for reviewing inadequacy of representation – Held: Data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically – The period for review should be reasonable and is left to the Government to set out – Reservation.
Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B),
142 and 335 – Reservation in promotion – Prospective operation of the judgment in M. Nagaraj case – In M. Nagaraj case the key issue that was identified and decided by the Supreme Court was whether any constitutional limitation mentioned in Art.16(4) and Art.335 stood obliterated by the constitutional amendments resulting in Arts. 16(4-A) and 16(4-B) – The Supreme Court upheld the constitutional amendments – The amendments were held to be enabling provisions – It was observed that the State is not bound to make reservation for SCs and STs in matters of promotion, however, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Art.335 of the Constitution – Whether the judgment in M. Nagaraj case can be said to operate prospectively – Held: In Golak Nath and Ashok Kumar cases, it was laid down that Art. 142 of the Constitution empowers the Supreme Court to mould the relief to do complete justice – The purpose of holding that M. Nagaraj would have prospective effect is only to avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj case – Most of them would have already retired from service on attaining the age of superannuation – The judgment of M. Nagaraj was delivered in 2006, interpreting Art.16(4-A) of the Constitution which came into force in 1995 – As making the principles laid down in M. Nagaraj effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, the judgment of M. Nagaraj should be declared to have prospective effect – Reservation. Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B) and 335 – Reservation in promotion – Quantifiable data regarding inadequacy of representation of SCs and STs – In M. Nagaraj case the key issue that was identified and decided by the Supreme Court was whether any constitutional limitation mentioned in Art.16(4) and Art.335 stood obliterated by the constitutional amendments resulting in Arts. 16(4-A) and 16(4-B) – The Supreme Court upheld the constitutional amendments – The amendments were held to be enabling provisions – It was observed that the State is not bound to make reservation for SCs and STs in matters of promotion, however, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Art.335 of the Constitution – Whether quantifiable data showing inadequacy of representation can be collected on the basis of sampling methods, as held by the court in B.K. Pavitra II case – Held: The State should justify reservation in promotions with respect to the cadre to which promotion is made – Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made – For collection of quantifiable data to assess representation of SCs and STs for providing reservation in promotions, cadre, which is a part of a ‘group’, is the unit and the data has to be collected with respect to each cadre – Therefore, the conclusion of the court in B.K. Pavitra II case approving the collection of data on the basis of ‘groups’ and not cadres is contrary to the law laid down in M. Nagaraj and Jarnail Singh cases.
Constitution of India, 1950 – Art.142 – Art.142 of the Constitution empowers the Supreme Court to mould the relief to do complete justice.
Doctrines / Principles – Doctrine of Prospective Overruling – Discussed.
Administrative action – Judicial review of – Scope – Held: It is neither legal nor proper for the Courts to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within their domain under the Constitution.
Service Jurisprudence – Term “cadre” – Meaning and legal connotation of – Discussed – Words and Phrases. Answering the issues, the Court
HELD:
1. YARDSTICK FOR ARRIVING AT QUANTIFIABLE
DATA
1.1. Articles 16(4) and 16(4-A) of the Constitution are enabling provisions. It was held in M. Nagaraj case that the discretion of the State to provide reservation is subject to the existence of backwardness and inadequacy of representation in public employment. It was further held that backwardness has to be based on objective factors whereas inadequacy has to factually exist. There is no fixed yardstick to identify equality, justice and efficiency which are variable factors and it depends on the facts and circumstances of each case. The Court was of the further opinion that the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured on the basis of data. In case of a challenge made to reservations provided by the State Government, it is incumbent on the State Government to satisfy the Court that the decision is supported by quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Article 335 of the Constitution of India. [Para 11][732-E-H]
1.2. The exercise of identifying and measuring concepts of efficiency, backwardness and inadequacy of representation on the basis of data depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. [Para 12][733-A-B]
1.3. It is well-established that it is neither legal nor proper for the Courts to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within their domain under the Constitution. [Para 14][733-A-D]
1.4. Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which the court cannot envisage. A conscious decision was taken by the court in M. Nagaraj and Jarnail Singh to leave it to the States to fix the criteria for determining inadequacy of representation. The submission of the Attorney General for India that the court has to lay down the yardstick for measuring adequacy of representation did not yield a favourable result as the court in Jarnail Singh found it befitting for the States to have the liberty to evaluate the representation of SCs and STs in public employment. Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments. In addition, the prevailing local conditions, which may require to be factored in, might not be uniform. Moreover, in M. Nagaraj, the Court made it clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a caseto-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data. Therefore, no yardstick can be laid down by the court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation. [Para 16][734-D-H]
2. UNIT FOR COLLECTING QUANTIFIABLE DATA
2.1. In M.Nagaraj case, the Court observed that the appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Cadre strength as a unit also ensures that the upper ceiling limit of 50 per cent is not violated. Following the law laid down in R.K. Sabharwal, the court in M. Nagaraj further held that the roster has to be post-specific and not vacancy based. [Para 19][736-AB]
2.2. In M. Nagaraj case, the Court held that it is open to the State to provide for reservation in promotions subject to limitation that there must exist compelling reasons for backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. While referring to the roster, the Court observed that the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Collection of quantifiable data regarding inadequacy of representation as stipulated by M. Nagaraj is relatable to the cadre concerned, according to Jarnail Singh. [Para 20][736-B-D]
2.3. It is clear from the statutory regime and the law laid down by the Supreme Court that civil posts under the Government are organised into different services. A service constitutes ‘classes’/ ‘groups’ of posts. A ‘class’/‘group’ is further bifurcated into grades. Though the nomenclature might be different, the structure of services under the Union and the States is similar. According to the instructions issued by the Union of India, cadres are constituted for each grade. Fundamental Rule 9(4) defines “cadre” to mean the strength of a service or part of a service sanctioned as a separate unit. It is the choice of a State to constitute cadres. The entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade. Promotion is made from one grade to the next higher grade, in relation to which cadres are constituted. A cadre is constituted by the Government by taking into account several factors within its sole discretion. [Para 28][741-C-F]
2.4. In the Office Memorandum dated 02.07.1997, the Union of India set out the principles for making and operating post-based rosters, in which it has been expressly stated that cadre is to be construed as the number of posts in a particular grade. It is made clear that rosters have been prepared gradewise which are reviewed on a yearly basis and that reservation in promotions is implemented on the basis of these rosters, which operate grade-wise. In M. Nagaraj, the Supreme Court approved that the percentage of reservation in promotions was to be applied to the entire cadre strength, as held in R.K. Sabharwal. While doing so, the court in M. Nagaraj made it clear that the unit for operation of the roster would be the cadre strength. Before providing for reservation in promotions to a cadre, the State is obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs. Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or ‘class’/‘group’ but it should be relatable to the grade/category of posts to which promotion is sought. Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service. [Para 29][741-F-H; 742-A-B]
3. PROPORTIONATE REPRESENTATION AS TEST OF
ADEQUACY
In R.K. Sabharwal, it was observed that State Governments may take the total population of a particular Backward Class and its representation in the State services for the purpose of coming to a conclusion that there is inadequate representation in the State services. In M. Nagaraj, the Court was of the considered view that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case. The Court in Jarnail Singh found no fault with M. Nagaraj regarding the test for determining the adequacy of representation in promotional posts in the State. While emphasising the contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, the Court declined the invitation of the Attorney General for India to hold that the proportion of SCs and STs to the population of India should be the test for determining inadequacy of representation in promotional posts. Therefore, this Court is not persuaded to express any opinion on this aspect. It is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors. [Para 30][742-C-G]
4. TIME PERIOD FOR REVIEW
There is near unanimity amongst the counsel for both sides that the data collected to establish inadequacy of representation, which forms the basis for providing reservation for promotions, should be reviewed periodically. This Court is not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive. As regards review, the data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically. The period for review should be reasonable and is left to the Government to set out. [Para 31][742-H; 743-C-D]
5. PROSPECTIVE OPERATION OF THE JUDGMENT
IN M. NAGARAJ
In Golak Nath and Ashok Kumar cases, it was laid down that Article 142 of the Constitution empowers the Supreme Court to mould the relief to do complete justice. The purpose of holding that M. Nagaraj would have prospective effect is only to avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj. Most of them would have already retired from service on attaining the age of superannuation. The judgment of M. Nagaraj was delivered in 2006, interpreting Article 16(4-A) of the Constitution which came into force in 1995. As making the principles laid down in M. Nagaraj effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M.Nagaraj should be declared to have prospective effect. [Para 42][752-G; 753-A-C]
6. QUANTIFIABLE DATA AND SAMPLING METHOD
6.1. Collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions, as laid down by this court in M. Nagaraj case. The unit for the purpose of collection of data is a cadre, according to Nagaraj and Jarnail Singh. For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre. [Para 45][755-F-G]
6.2. The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method adopted by the Ratna Prabha Committee (which submitted ‘Report on Backwardness, Inadequacy of Representation and Administrative Efficiency in Karnataka’) might be a statistical formula appropriate for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a ‘group’, is the unit and the data has to be collected with respect to each cadre. Therefore, the conclusion of the court in B.K. Pavitra II approving the collection of data on the basis of ‘groups’ and not cadres is contrary to the law laid down by the court in M. Nagaraj and Jarnail Singh. [Para 47][756-D-G]
M. Nagaraj & Ors.v. Union of India & Ors. (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 – held
prospectively applicable.
I.C. Golak Nath & Ors. v. State of Punjab & Anr. [1967]
2 SCR 762 and Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997) 5 SCC 201 : [1997] 3 SCR 269 – relied on.
A.K. Subraman & Ors. v. Union of India & Ors. (1975)
1 SCC 319 : [1975] 2 SCR 979; Dr Chakradhar
Paswan v. State of Bihar & Ors. (1988) 2 SCC 214 : [1988] 3 SCR 130; Indra Sawhney & Ors. v. Union of India & Ors. 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454; Union of India & Ors. v. Virpal Singh Chauhan & Ors. (1995) 6 SCC 684 : [1995] 4 Suppl. SCR 158; State of Tripura & Ors. v. Jayanta
Chakraborty & Ors. (2018) 1 SCC 146 : [2017] 11 SCR 247; State of Maharashtra & Anr. v. Vijay Ghogre & Ors. (2018) 17 SCC 261; Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors. (2018) 10 SCC 396 : [2018] 10 SCR 663; B.K. Pavitra & Ors. v. Union of India & Ors. (2019) 16 SCC 129 : [2019] 7 SCR 1086; Uttar Pradesh Power Corporation Limited v. Rajesh Kumar & Ors. (2012) 7 SCC 1; Mallikarjuna Rao & Ors. v. State of Andhra Pradesh & Ors. (1990) 2 SCC
707 : [1990] 2 SCR 418; Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors. 1989 Supp. 2 SCC 364: [1989] 3 SCR 19; P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578; R.K. Sabharwal & Ors. v. State of Punjab & Ors. (1995) 2 SCC 745 : [1995] 2 SCR 35; K. Manickaraj v. Union of India (1997) 4 SCC
342 : [1997] 3 SCR 504; Union of India v. Pushpa Rani & Ors. (2008) 9 SCC 242 : [2008] 11 SCR 440; State of Rajasthan v. Fateh Chand Soni (1996) 1 SCC 562 : [1995] 6 Suppl. SCR 559; Union of India & Anr. v. Lieutenant Colonel P.K. Choudhary & Ors. (2016) 4 SCC 236 : [2016] 2 SCR 426; Sub-Inspector Rooplal & Anr. v. Lt. Governor & Ors. (2000) 1 SCC 644 : [1999]
5 Suppl. SCR 310; Ravi S. Naik v. Union of India & Ors., 1994 Supp (2) SCC 641 : [1994] 1 SCR 754; Lily Thomas & Ors. v. Union of India & Ors. (2000) 6 SCC
224 : [2000] 3 SCR 1081; Orissa Cement Ltd. v. State of Orissa & Ors. 1991 Supp (1) SCC 430 : [1991]
2 SCR 105; Somaiya Organics (India) Ltd. & Anr. v. State of U.P. & Anr. (2001) 5 SCC 519 : [2001] 3 SCR 33; General Manager, Southern Railway v. Rangachari [1962] 2 SCR 586; Indian Council for Enviro-Legal Action v. Union of India & Ors. (1996) 5 SCC 281 : [1996] 1 Suppl. SCR 507; Goan Real Estate and
Construction Limited & Anr. v. Union of India& Ors. (2010) 5 SCC 388 : [2010] 3 SCR 1160; M.A. Murthy v. State of Karnataka & Ors. (2003) 7 SCC 517 : [2003]
3 Suppl. SCR 327; Ashok Kumar Sharma & Anr. v. Chander Shekher & Anr. (Ashok Kumar Sharma case No.I ) 1993 Supp (2) SCC 611 : [1992] 3 Suppl. SCR 768; Ashok Kumar Sharma & Ors. v. Chander Shekhar & Anr. (Ashok Kumar Sharma case No. II ) (1997) 4 SCC 18 : [1997] 2 SCR 896; H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. v. Union of India & Anr. (1971) 1 SCC 85 : [1971] 3 SCR 9 and Girnar Traders v. State of
Maharashtra & Ors. (2007) 7 SCC 555 : [2007] 9 SCR
383 – referred to.
Kuhn v. Fairmont Coal Co. 215 U.S. 349 (1910); Linkletter v. Walker 1965 SCC Online US SC 126; Mapp v. Ohio 643 367 U.S. 643 (1961); Weeks v. United States
232 U.S. 383 (1914); Wolf v. Colorado 338 U.S. 25 (1949) – referred to.
Blackstone, Commentaries (15 th ed. 1809) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.