REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6187 OF 2009 (Arising out of SLP (C) No.13913 of 2008)

ANIL CHANDRA & ORS.  

-------Appellants

VERSUS

RADHA KRISHNA GAUR & ORS.                                    -------

Respondents

WITH

CIVIL APPEAL NO.6188 OF 2009        (Arising out of SLP©No.14794 of 2008)

J U D G M E N T

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  

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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  

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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  

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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  

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[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.  

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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  

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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  

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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  

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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  

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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  

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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.  

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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,  

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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  

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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  perquisites  for  making  such  a  provision  as  required  

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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  

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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.

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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.    

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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.    

…………………………….. J. [Tarun Chaterjee]

………………………………J. New Delhi;     [V.S.Sirpurkar] September 10, 2009.

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