ANIL CHANDRA & ORS. v.

RADHA KRISHNA GAUR & ORS. (Civil Appeal No. 6187 of 2009)

SEPTEMBER 10, 2009 [Tarun Chatterjee and V.S. Sirpurkar, JJ.]

[2009] 14 (ADDL.) S.C.R. 335

The Judgment of the Court was delivered by

TARUN CHATERJEE, J. 1. Leave granted.

2.  These two appeals  are  directed against  an interim order  

dated  4th  of  December,  2007  passed  in  Writ  Petition  No.  

1496(S/B)  of  2007  by  a  Division  Bench  of  the  High  Court  of  

Allahabad,  Lucknow  Bench,  Lucknow  whereby  the  High  Court  

directed the aforesaid writ petition to be tagged with Writ Petition  

No. 1389 (SB) of 2007 pending in the High Court,  following the  

interim order passed in the aforesaid Writ Petition No. 1389 (SB) of  

2007  directing  that  the  seniority  of  the  respondents  as  existing  

prior  to  the  enforcement  of  the  U.P.  Government  Servants  

Seniority (3rd Amendment) Rules, 2007 shall not be disturbed in  

pursuance of the Rules by way of the aforesaid impugned order.

3. The relevant facts leading to the filing of these appeals may  

be summarized as under: -

In the year 1973, the Government Orders providing reservation  

in  the  matter  of  promotion  for  the  Scheduled  Castes  and  

Scheduled Tribes were issued. Subsequently, the U.P. Jal Nigam  

adopted the U.P. Government Servants Seniority Rules 1991. The  

aforesaid  rules  were  notified  by  the  State  Government  vide  

Notification  dated  20th  of  March,  1991  which  consisted  of

provisions of the aforesaid Rules of 1991. The respondent no. 2,  

namely, U.P. Jal Nigam is a Statutory Corporation created under  

the U.P. Water Supply and Sewerage Act, 1975 and the service  

conditions of  the employees of  the Nigam are governed by the  

U.P. Jal Nigam (Public Health Branch) Service Regulations, 1978.  

The  aforesaid  regulations  were  made  in  exercise  of  power  

conferred on the U.P. Jal Nigam under Sections 97(2) and 98(1) of  

the  U.P.  Water  Supply  and  Sewerage Act,  1975  with  the  prior  

approval of the State Government.

4. Subsequently,  in the year 1994, the Uttar Pradesh Public  

Services (Reservation for Schedule Caste, Schedule Tribes and  

other Backward Classes) Act, 1994 was promulgated and Section  

3  (7)  of  the  said  Act  of  1994  says  that  if  on  the  date  of  the  

commencement  of  this  Act,  reservation  was  in  force  under  

Government  orders  for  appointment  to  posts  to  be  filled  up  by  

promotion,  such  Government  orders  shall  continue  to  be  

applicable  till  they are modified or  revoked.  Further,  on 10th of  

October,  1994  the  percentage  of  reservation  in  the  matter  of  

Schedule Castes was enhanced from 18% to 21% by means of  

Government order referring to section 3(7) of the aforesaid Act of  

1994.

5.  Article  16(4-A)  was  introduced  by  an  amendment  of  the  

Constitution on 17th of June, 1995, which reads as under :-

“Nothing in this article shall prevent the State from making any  

provision  for  reservation  in  the  matters  of  promotion,  with  

consequential seniority, to any class or class of posts in the  

services under the State in favour of the scheduled castes and

the scheduled tribes which in the opinion of the State are not  

adequately represented in the services under the State”  

6. Article 16(4-A) of the Constitution, which was inserted in the  

Constitution on 17th of June, 1995, as noted herein earlier, was  

incorporated  by  the  Constitution  (77th  Amendment)  Act,  1995,  

thereby introducing an enabling provision for providing reservation  

in the matter of promotion.

7.  However,  this  Court  in  its  Judgment  dated  16th  of  

November, 1992, in the case of Indira Sawhney vs. Union of India  

[AIR 1993 SC 447], observed that reservation of appointments or  

posts under Article 16 of the Constitution is confined to the initial  

appointment  and  cannot  extend  to  reservation  in  the  matter  of  

promotion.  

8.  Further  in  the year  2002,  the  U.P.  Government  Servants  

Seniority  (1st  Amendment)  Rules,  2002,  were  issued  by  which  

Rule  8  (A)  was  inserted  in  the  Seniority  Rules,  1991  providing  

consequential  Seniority to  the scheduled Castes and scheduled  

tribes from the date of their  promotion and in the meantime the  

validity of Article 16(4-A) of the Constitution as also the Rules and  

Enactments of various states granting consequential  seniority to  

the  scheduled  castes  and  scheduled  tribes  in  the  matter  of  

promotion was assailed in a bunch of  writ  petitions which were  

filed before this Court under Article 32 of the Constitution of India  

and the said matters were referred to a Constitution Bench.  

9.  Further  in  the year  2005,  the  U.P.  Government  Servants  

Seniority (2nd Amendment) Rules, 2005 were introduced by which  

Rule 8(A) referred to above was omitted.

10.  On 19th  of  October,  2006,  the  aforesaid  reference was  

decided by the Constitution Bench in M.Nagaraj & Ors. vs. Union  

of India & Ors. [(2006) 8 SCC 212] and the Constitution Bench  

held in that decision that the provision contained in Article 16(4-A)  

of the Constitution is an enabling provision and the State is not  

bound to make reservation for SCs/STs in the matter of promotion.  

However, if they wish to exercise their discretion and make such  

provision,  the  State  has  to  collect  quantifiable  data  showing  

backwardness of  the class and inadequacy of  representation of  

that class in public employment in addition to compliance of Article  

335 of the Constitution of India. It is clear that even if the State has  

compelling reasons, as stated above, the State will  have to see  

that its reservation provision does not lead to excessiveness so as  

to breach the ceiling-limit of 50% or obliterate the creamy layer or  

extend the reservation indefinitely.

11.  Further,  after  the  passing  of  aforesaid  judgment  by  the  

Constitution Bench, the U.P. Government issued a Notification on  

14th of September, 2007 by which the U. P. Government Servants  

Seniority (3rd Amendment) Rules, 2007, were issued which runs  

as under :  

“Rule 8-A :- Entitlement of consequential seniority to a person  

belonging  to  scheduled  castes  and  scheduled  tribes  :  

Notwithstanding anything contained in Rules 6, 7 or 8 of these  

rules,  a  person  belonging  to  the  SC  or  ST  shall,  on  his  

promotion by virtue of rule of reservation/roster, be entitled to  

consequential  seniority  also  from  17.6.1995  in  the  seniority  

rules, 1991 and also provided for consequential seniority to the

scheduled Castes and scheduled tribes from the date of their  

promotion as per the Roster/rule of reservation”.  

12. After the issuance of the aforesaid notification, the State  

Government vide letter  dated 3rd of  October,  2007 directed the  

various Development Authorities including the appellants to take  

necessary action in accordance with the Notification dated 14th of  

September, 2007 and according to Section 92 of the U. P. Avas  

Evam Vikas Parishad Adhiniyam, 1965, the State Government will  

have control over the Board and other Local authorities and the  

State Government may give the board such directions which in its  

opinion are necessary or expedient for carrying out the purpose of  

the Act, and it shall be the duty of the Board to comply with such  

directions.  

13. On 17th of October, 2007, the State Government issued  

another  order,  wherein  it  was  directed  that  as  a  result  of  the  

aforesaid  Amendment  in  the  Seniority  Rules  1991,  necessary  

amendments should be made in the Seniority List by adopting the  

procedure  in  accordance  with  the  seniority  Rules.  But  before  

making any such provision, it was the Constitutional obligation and  

duty of the State Government to see in each case the existence of  

the  compelling  reason,  namely,  backwardness,  inadequacy  of  

representation and overall administrative inefficiency on the basis  

of  qualified  data  collected  but  in  the  present  case,  no  such  

exercise has been undertaken by the State of U.P.

14. The aforesaid Notification dated 14th of September, 2007  

was adopted vide order dated 19th October, 2007 by the Chairman  

of Jal Nigam and was given immediate effect thereto. Thereafter,  

the U.P.Jal Nigam issued the tentative joint seniority list of Chief

Engineer  Level-1,  Chief  Engineer  Level-II  (Civil)  and  

Superintending Engineer (Civil) and the tentative Seniority List of  

the Executive Engineers of U.P. Jal Nigam dated 3rd of November,  

2007  in  furtherance  of  the  aforesaid  notification  dated  14th  of  

September, 2007.  

15.  On 6th of  November,  2007,  the validity of  the aforesaid  

Rule 8(A) of Uttar Pradesh Government Servants'  Seniority (3rd  

Amendment) Rules, 2007 was challenged by the Engineers of the  

Irrigation Department by way of a Writ Petition No. 1389 of 2007  

before the High Court of Allahabad, Lucknow Bench, Lucknow. In  

the  said  writ  petition,  the  Division  Bench  of  the  High  Court  of  

Allahabad, Lucknow Bench after hearing the Parties, has issued a  

notice to the Advocate General of the State vide order dated 6th of  

November,  2007.  The High Court,  in  the  meantime,  passed an  

interim order by which the seniority of the petitioners in that writ  

Petition and other Promoted officers, as was existing prior to the  

enforcement of the aforesaid Uttar Pradesh Government Servants'  

Seniority (3rd Amendment) Rules, 2007 shall not be disturbed in  

pursuance of these Rules and no reversion shall be effected.  

16.  Respondents  who  were  working  on  the  post  of  

Superintending  Engineers,  Executive  Engineers  and  Assistant  

Engineers in U.P. Jal Nigam, aggrieved by the aforesaid Seniority  

List,  filed  a  Writ  Petition  assailing  the  validity  of  the  U.  P.  

Government Servants Seniority (3rd Amendment) Rules, 2007, by  

which  Rule  8-A  has  been  inserted  in  the  U.  P.  Government  

Servants  Seniority  Rules,  1991  and  by  virtue  of  the  aforesaid  

Rules, the Government Servants belonging to Scheduled Castes  

and Scheduled Tribes would be entitled to consequential seniority

on  accelerated  promotion  given  to  them  through  roster/rule  of  

reservation. In the aforesaid Writ Petition, the respondents further  

assailed the validity of the Notification dated 14th of September,  

2007 of the U.P. Government Servants Seniority (3rd Amendment)  

Rules, 2007 made effective from 17th of June, 1995. They also  

challenged the order dated 19th of  October,  2007 by which the  

aforesaid Notification dated 14th of September, 2007 was adopted.  

The respondents also challenged the aforesaid tentative Seniority  

List dated 3rd of November, 2007: issued by the U.P. Jal Nigam in  

furtherance of the Notification.

17. The aforesaid Writ Petition No.- 1496 (S/B) of 2007 came  

up  for  hearing  before  a  Division  Bench  of  the  High  Court  of  

Allahabad, Lucknow Bench, Lucknow. The High Court directed the  

aforesaid Writ  Petition to be tagged with Writ  Petition No. 1389  

(SB) of  2007 pending in  the High Court.  However,  the Division  

Bench,  following the reasons mentioned in  the order  passed in  

Writ Petition No. 1389(S/B) of 2007, by an interim order, directed  

that  the  seniority  of  the  respondents  as  existing  prior  to  the  

enforcement  of  the  U.P.  Government  Servants  Seniority  (3rd  

Amendment) Rules, 2007 shall not be disturbed in pursuance of  

the Rules.  

18. Further in the meantime, some of the Executive Engineers  

also  filed  a  Writ  Petition  No.81/2008  thereby  challenging  the  

consequential  validity  of  Rule  8-A  of  the  U.P.  Government  

Servants Seniority (3rd Amendment) Rules, 2007. In the present  

writ petition, the Division Bench of the High Court, relying upon the  

order passed by the High Court in the earlier writ petition No.1389  

(SB) of 2007, issued notice and granted relief and provided that

the  seniority  of  the  appellants  therein  as  existing  prior  to  the  

enforcement  of  the  U.P.  Government  Servants  Seniority  (3rd  

Amendment) Rules, 2007, shall not be disturbed in pursuance of  

these rules. Subsequently,  the U.P. Avas Evam Vikas parishad,  

Lucknow,  which  was  a  party  in  the  aforesaid  writ  petition,  

aggrieved by the aforesaid interim order dated 17th of  January,  

2008, filed a Special Leave Petition (c) No. 3097 of 2008 before  

this  Court  challenging  the  aforesaid  interim  order  of  the  High  

Court.  This  Court,  vide  order  dated  22nd  of  February,  2008,  

granted  leave  and  allowed  the  aforesaid  appeal  filed  by  the  

Parishad to the extent that the interim order passed by the High  

Court was set aside and requested the High Court to dispose of  

the writ petition preferably within two months from the date of the  

communication of the order. The appellants, on coming to know  

about the passing of the aforesaid order, filed an application for  

impleadment  and  the  said  application  was  numbered  as  C.M.  

Application  No.189180  of  2008.  In  the  said  application,  it  was  

contended that the appellants were necessary and affected parties  

and yet they were not arrayed as respondents in the aforesaid writ  

petition.  It  was  also  contended  that  any  order  passed  in  the  

aforesaid writ petition was going to affect the rights of the present  

appellants.  Accordingly,  they  prayed  to  be  impleaded  as  

respondent Nos. 4 to 8 in the array of the parties. Further on 5th of  

March, 2008, the aforesaid impleadment application came up for  

hearing before the High Court  and the High Court  on that  date  

allowed  the  impleadment  application  filed  by  the  appellants.  

Hence, on 3rd of April, 2008, the present special leave petition was  

filed.

19. In the present  case and in the facts and circumstances  

stated  herein  earlier,  we  are  of  the  view  that  it  was  the  

constitutional  obligation  of  the  State,  at  the  time  of  providing  

reservation  in  the  matter  of  promotion  to  identify  the  class  or  

classes of posts in the service for which reservation is required,  

however, neither any effort has been made to identify the class or  

classes  of  posts  for  which  reservation  is  to  be  provided  in  

promotion nor any exercise has been done to quantify the extent of  

reservation.  Adequate  reservation  does  not  mean  proportional  

representation. Rule 8(A) has been inserted mechanically without  

taking  into  consideration  the  prenequisites  for  making  such  a  

provision as required under Article l6 (4-A) of the Constitution of  

India. The ceiling-limit of 50%, the concept of creamy layer and the  

compelling  reasons,  namely,  backwardness,  inadequacy  of  

representation  and  overall  administrative  efficiency  are  all  

constitutional requirements without which, the structure of equality  

of opportunity in Article 16 would collapse. However, in this case,  

as stated, the main issue concerns the "extent of reservation" and  

in this regard, the State should have shown the existence of the  

compelling  reasons,  namely,  backwardness,  inadequacy  of  

representation and overall administrative efficiency before making  

provision for reservation. As observed in M. Nagaraj and Ors. vs.  

Union of India & Ors. (Supra), it has been held that the State is not  

bound  to  make  reservation  for  SC/ST  in  matter  of  promotions.  

However, if they wish to exercise their discretion and make such  

provision,  the  State  has  to  collect  quantifiable  data  showing  

backwardness of  the class and inadequacy of  representation of  

that class in public employment in addition to compliance of Article  

335  of  the  Constitution.  It  is  clear  that  even  if  the  State  has

compelling reasons, as stated above, the State will  have to see  

that its reservation provision does not lead to excessiveness so as  

to breach the ceiling-limit of 50% or obliterate the creamy layer or  

extend the reservation indefinitely.

20. The rules pertaining to the reservation and promotion list is  

prospective in nature and thereby cannot disturb the promotion list  

of  the  appellants  by  virtue  of  this  rule  further,  if  a  

rule/notification/circular claims to be retrospective in nature, has to  

expressly specify, as per the rules of interpretation of statutes in  

the  instant  petition,  the  appellants  have  failed  to  establish  the  

nature with regard to retrospective effect of the notification/rules.

21. In the light of the reasons above-mentioned, we are of the  

view that the High Court was fully justified in granted the present  

interim order and there is no infirmity in the same.

22. Since the interim order passed by the High Court, which  

has not been interfered with by us in this judgment, we make it  

clear that the grant of interim order and any observation made by  

the High Court while granting interim order and any observations  

made by us  in  this  order  shall  not  influence  the  High Court  to  

decide the writ petition on merits and the High Court shall not be  

influenced by any of the observations made by us in this order.  

23. There is one another aspect of this matter. These appeals  

have been filed, as noted herein earlier, against an interim order  

passed by the High Court. It appears that the main writ petition,  

with  which the present  writ  application has been tagged by the  

High  Court,  has  already  been  taken  up  for  hearing,  which  is  

already  heard  in  part.  Such  being  the  position  at  this  stage,  it  

would  not  be  appropriate  for  us  to  interfere  with  the  impugned

order passed by the High Court at this stage when the writ petition  

itself can be decided within a very short time.  

24. Considering the importance of the present dispute between  

the parties, we are of the view that the High Court shall take efforts  

to  decide the writ  petitions at  an early date and dispose of  the  

same within six months from the date of supply of a copy of this  

order to it.  

25. The appeals are thus dismissed. There will be no order as to costs.