REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL ORIGINAL JURISDICTION  

M.A. No. 1323 of 2019

In  

Writ Petition (C) No. 764 of 2018  

B K Pavithra and Ors.                                              ...Petitioners/Applicants

Versus  

Union of India and Ors.                                     ...Respondents   

With  

MA No.1325 of 2019  

In  

Writ Petition (C) No. 850 of 2018

And with  

MA No.1324 of 2019  

In  

Writ Petition (C) No. 769 of 2018

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J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1. On 10 May 2019, this Court delivered its judgment in B K Pavitra & Ors. v

Union of India & Ors.1 (“B K Pavitra II”), upholding the constitutional validity of

the  Karnataka  Extension  of  Consequential  Seniority  to  Government  Servants

Promoted on the Basis of Reservations (to the Posts in the Civil Services of the

State) Act 20182. The conclusion which was arrived at by the Court is extracted

below:

“144. For the above reasons, we have come to the conclusion that  the  challenge  to  the  constitutional  validity  of  the Reservation 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 Article 16 (4A) of the Constitution.”

2. 277 applicants are before this Court in three Miscellaneous Applications3.

The reliefs sought in the lead MA are thus:

“(a) Direct the State of Karnataka to implement ‘post based reservation’ in terms of the judgment passed by this Hon’ble Court in R.K. Sabharwal vs State of Punjab – (1995) 2 SCC

1 (2019) 16 SCC 129 2 “Reservation Act 2018” 3 “MAs”

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745 and to re-work all promotions on ‘post’ basis before any further action.

(b) Direct the State of Karnataka to apply ‘creamy layer’ and to exclude individuals belonging to the Scheduled Castes and Scheduled  Tribes  who no longer  require  reservation  under Article 16(4-A) of the Constitution with a further direction to the State to apply  creamy layer at  entry  level  to disqualify those who were creamy layer at that stage and to conduct the exercise from 17th June, 1995, i.e. the date of the Seventy Seventh Amendment.

(c) Restrain the State and its instrumentalities from taking any action where,  no exercise is  undertaken for  that  service or cadre  on  adequacy  or  where  there  is  adequacy  of representation  particular  when every  specific  application  of order in relation to each cadre must be Nagaraj compliant.”

 Similar reliefs have been sought by the applicants in the other two MAs.

3. Dr Rajeev Dhavan,  learned Senior  Counsel  prefaced his  arguments  by

submitting that:

(i) The  present  MA is  for  directions  and  not  for  review  of  the  recent

judgment of this Court in B K Pavitra II; and

(ii) The directions which have been sought emanate from the judgment of

this Court in B K Pavitra II.

4. The Government of  Karnataka issued a Government Order4 on 15 May

20195.  The preamble to the GO notes that on 27 February 2019, instructions

have  been  issued  for  implementing  the  Reservation  Act  2018  subject  to  the

judgment that would be delivered by this Court on the validity of the Reservation

Act 2018. Subsequently, in pursuance of an interim order of this Court dated 1

March 2019,6 instructions were issued in a GO dated 5 March 2019 to the effect

4 “GO” 5 Government Order No. DPAR 186 SRS 2018, Bengaluru.  6 In IA 36981 of 2019 in Writ Petition (C) No. 764 of 2019

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that  no  further  action  should  be  taken  for  implementing  the  GO  dated  27

February 2019 until further directions. Following the judgment of this Court in B K

Pavitra II upholding the Reservation Act 2018, the Government of Karnataka, by

the GO dated 15 May 2019 withdrew the earlier GO dated 5 March 2019 and

directed all appointing authorities to abide by the GO dated 27 February 2019 in

the implementation of the Reservation Act 2018.

5. On 24 June 2019, a circular was issued by the Government of Karnataka7.

The circular notes that while preparing the seniority lists in conformity with the

GO dated 27 February 2019, meetings were held under the auspices of the Chief

Secretary  and  Additional  Chief  Secretary  to  the  Government  of  Karnataka,

following which a list of Frequently Asked Questions8 has been prepared together

with answers. The annexure to the circular contains a reference to the FAQs and

the answers provided by the Government.  

6. Dr Rajeev Dhavan, learned Senior Counsel has more specifically adverted

to items 2 and 3 of the FAQs in the annexure which are extracted below:

“2. Whether  to  consider  the  scheduled  caste  and scheduled tribe candidate for promotions for the purpose of  calculating  their  representation  for  such  of  the candidates who are selected in general merit rather than against the roaster points under direct recruitment.

Answer:  Even though the  scheduled  caste  and scheduled tribe candidates are selected under general merit rather than against roaster points under direct recruitment, they shall be considered  against  their  roaster  points  for  the  purpose  of calculating their representation. This has been clearly told in the  Government  Order  No.  DPAR  29  SBC  77  dated 01.06.1978 and the same point is explained in the form of an example in the Schedule of the Act 2017.

7 No : DPAR 186 SRS 2018 8 “FAQs”

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3. Whether to consider the total  no.  of  post in the respective  cadres while  revising the seniority  list  from 27.04.1978? or  to  consider  the number  of  Government employees  working  in  the  respective  cadre  (Excluding the vacant post of the cadre strength)

Answer:  The consequential seniority is to be given to those belonging  to  the  reserved  category  employees  who  have been promoted against promotional roaster points at the time of revising the seniority list from 27.04.1978 to 02.02.1999.  

3.1 After  the  date  3.2.1999,  only  it  is  to  be  revised  by considering  on  the  basis  of  total  number  of  Government employees in the respective cadres (Cadre working strength excluding vacant posts). Thus it is not allowed to calculate the representation on the basis of total  number of  posts in the respective cadres. In this regard attention is drawn towards Government  order  number  DPAR  21  SBC  97  dated 03.02.1999  and  Government  order  even  number  dated 13.04.1999.”         

7. The grievance of the applicants is that until  the backlog is cleared, the

proportion of Scheduled Castes/Scheduled Tribes will exceed 15 per cent and 3

per cent. The principal points which have been urged in the present MAs are:

(i) The State government has not taken any step to correct the illegality of

following a vacancy-based roaster since 27 April 1978, when the policy

of reservation in promotions was introduced in the State Civil Services

of Karnataka;

(ii) The State  government  was bound by the statement  contained in  its

Counter  Affidavit  filed  before  this  Court  in  B  K  Pavitra II that  the

reservation policy would be implemented on the principle of post-based

reservations;

(iii) Since reservations in the state are contemplated retrospectively from

27 April  1978, the State government is obliged to apply the ‘creamy

layer’ principle to disqualify those who fall within the creamy layer at the

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entry level and this exercise should be conducted at least from 17 June

1995, when the Seventy Seventh Amendment to the Constitution came

into force; and

(iv) Though it was mandatory for the State of Karnataka to balance Article

16(4-A) against Article 16(1) of the Constitution and to collect cadre-

wise data before implementing the Reservation Act 2018, the GO dated

15 May 2019 and the circular dated 24 June 2019 are silent on the

above  issues  as  a  result  of  which,  the  State  government  is

implementing the Reservation Act 2018 in an arbitrary manner.

8. Dr Dhavan relied on the inherent powers of this Court, as recognised by

Order LV of the Supreme Court Rules 20139 to urge that the invocation of the

jurisdiction of this Court in the form of the present MAs is based on the recourse

to that inherent power. Reliance in this regard was placed on the decisions of this

Court  in  Himachal  Pradesh  Scheduled  Tribes  Employees  Federation  v

Himachal  Pradesh Samanaya Varg Karamchari  Kalayan Mahasangh10 and

Abu Salem Abdul Qayyum Ansari v Central Bureau of Investigation11.

9. Mr Shekhar Naphade, learned Senior Counsel appearing on behalf of the

applicant in MA 1324 of 201912, submitted that no data had been collected for the

departments  in  which  the  applicants  have  been engaged as  required  by  the

judgment of this Court in Nagaraj v Union of India13.  

9 “2013 Rules” 10 (2013) 10 SCC 308 11 (2013) 12 SCC 1 12 KPTCL General Category Association (Regd.) 13 (2006) 8 SCC 212

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10. Mr  Basava  Prabhu  S  Patil,  learned  Senior  Counsel  and  Mr  Dinesh

Dwivedi, learned Senior Counsel have opposed the MAs and urged that:

(i) The prayers in the MAs are not adjunct to the main decision of this

Court in B K Pavitra II; and  

(ii) The applicants have sought to challenge the subsequent directions and

clarifications issued by the State government through the present MAs.

The MAs, it was urged, are not maintainable.

11. Ms Indira Jaising, learned Senior Counsel submitted that:

(i) No provision of law has been invoked while filing the present MAs;

(ii) This  Court,  upon delivering its  decision on 10 May 2019,  has been

rendered functus officio;   

(iii) There is a bar contained in Order XII  Rule 3 of  the 2013 Rules for

entertaining  such  an  application,  except  for  correcting  arithmetical

errors; and

(iv) A petition for review has been filed by the applicants and hence the

MAs are not maintainable.

12. Addressing the Court on the reliefs which have been sought in the MAs,

Ms Jaising submitted that:  

(i) The relief which has been sought in prayer (a) is founded on a fresh

cause of action for re-drafting the seniority list;

(ii) The nature of the reliefs sought require the filing of a fresh substantive

Writ Petition;

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(iii) The relief in prayer (b) was not an issue in the judgment of this Court in

B K Pavitra II since the Court did not deal with recruitment at the entry

level, but with promotions and consequential seniority thereto; and

(iv) Prayer (c) has been specifically dealt with and considered in paragraph

96 of the judgment of this Court in B K Pavitra II.

                                   13. In rejoinder, Dr Dhavan submitted that:

(i) The concern is that the parties should not be required to go through

endless stages of litigation; and

(ii) The  judgment  delivered  by  this  Court  on  10  May  2019  requires

directions and even the State government has thought it  fit  so as to

implement the Reservation Act 2018.

 14. The rival submissions fall for consideration.  

15. It  is  necessary  for  this  Court  to  address  at  the  outset  the  preliminary

objection raised by the learned counsel opposing the MAs that, though styled as

an application  for  directions,  they  seek to  lay  a  substantive  challenge  to  the

subsequent  directions  and  clarifications  issued  by  the  State  government  in

implementing the Reservation Act 2018.  

16. Order XII Rule 3 of the Supreme Court Rules provides that:

“3. Subject to the provisions contained in Order XLVII of these rules, a judgment  pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or  added to,  save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission.”   

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Rule 3 stipulates that, save for the purpose of correcting a clerical or arithmetical

mistake or any error arising from an accidental slip or omission, no alteration or

addition may be made to a judgment pronounced by the Court. This is in keeping

with the principle of  according finality to a judgment of  the Court.  The rule is

made subject to Order XLVII of the 2013 Rules which contains provisions for the

filing of a review before this Court. The parameters that guide the exercise of the

review jurisdiction  of  this  Court  are  contained  in  Order  XLVII.  Subject  to  the

review jurisdiction of this Court, Rule 3 mandates that the Court “shall not” alter or

delete any part of a judgment that has been pronounced, save for the purposes

of minor corrections or accidental mistakes.

 17. Order LV of the 2013 Rules titled ‘Power to Dispense and Inherent Powers’

contains provisions that empower this Court to adopt, notwithstanding anything

contained in the Rules, such course as it considers just and expedient. Order LV,

in so far as is relevant provides thus:

“1.  The Court  may,  for  sufficient  cause shown,  excuse the parties from compliance with any of the requirements of these rules, and may give such directions in matters of practice and procedure as it may consider just and expedient. … 6. Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for  the ends of  justice or  to prevent abuse of the process of the Court.”  

Order  LV  empowers  this  Court  to,  for  sufficient  cause,  excuse parties  from

compliance  with  any  of  the  requirements  of  the  2013  Rules  and  issue  such

directions as it  considers just and expedient. Rule 6 of Order LV clarifies that

nothing in  the rules shall  be deemed to limit  or  otherwise affect  the inherent

powers of the Court to make such orders as may be necessary for the ends of

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justice or to prevent the abuse of the process of the Court. Rule 6 of Order LV

mirrors the constitutional power conferred by Article 142 of the Constitution which

empowers this Court to pass such decree or make such order as is necessary for

doing complete justice.  

18. Dr Rajeev Dhavan, learned Senior Counsel has urged that this Court may

issue the directions sought in exercise of its inherent power. In effect, Order LV of

the 2013 Rules has been pressed in aid of the submission that this Court may

grant the reliefs sought in exercise of its inherent power to do complete justice.  

19. This Court  has, on several  previous occasions, considered whether  the

filing  of  applications,  though  styled  as  applications  for  directions/

modification/recall/correction  are,  in  substance,  of  a  different  nature  and

consequentially  not  maintainable.  In  Delhi  Administration  v Gurdip  Singh

Uban14 (“Gurdip  Singh”), this  Court  disapproved  of  the  practice  of  filing

applications for “clarifications”, “modifications” and “recall” of final judgments and

orders,  noting  that  this  was  an  attempt  to  bypass  the  provisions  for  review

contained in Order XL of the Supreme Court Rules 1966. The Court observed:

“17. We next come to applications described as applications for  “clarification”,  “modification”  or  “recall”  of  judgments  or orders  finally  passed.  We  may  point  out  that  under  the relevant Rule XL of the Supreme Court Rules, 1966 a review application  has  first  to  go  before  the  learned  Judges  in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued.

…

In case notice is issued, the review petition will be listed for hearing,  after  notice is  served.  This  procedure is  meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a

14 (2000) 7 SCC 296

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view  to  avoid  this  procedure  of  “no  hearing”,  we  find  that sometimes  applications  are  filed  for  “clarification”, “modification”  or  “recall”  etc.  not  because  any  such clarification,  modification  is  indeed  necessary  but because the applicant in reality wants a review and also wants  a  hearing,  thus  avoiding  listing  of  the  same  in chambers  by  way  of  circulation. Such  applications,  if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to  bypass  Order  XL  Rule  3  relating  to  circulation  of  the application  in  chambers  for  consideration  without  oral hearing…  

By describing an application as one for “clarification” or “modification”, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly.

(Emphasis supplied)

The Court  observed that  many applications,  though styled as applications for

clarification  or  modification  are,  in  substance,  applications  for  review.  This

practice  was  presumably  adopted  to  bypass  the  procedure  stipulated  for  the

consideration by this Court of review petitions. A party, it was held, would not be

permitted to circumvent substantive procedures by filing such applications. With

the  above  observations,  the  Court  affirmed  a  fundamental  principle  of

jurisprudence that “what cannot be done directly cannot be permitted to be done

indirectly.”

20. The view of the two judge Bench in Gurdip Singh has been reiterated by

this Court in Zahira Habibullah Sheikh v State of Gujarat15, Common Cause v

Union of India16,  Ram Chandra Singh v  Savitri Devi17 and APSRTC v Abdul

Karim18.

15 (2004) 5 SCC 353 16 (2004) 5 SCC 222 17 (2004) 12 SCC 713 18 (2007) 3 SCJ 168

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21. Recently,  in  M C Mehta v  Union of India19, a two judge Bench of this

Court  rejected  an  application  filed  before  it  seeking  a  clarification  that  the

applicant is permitted to carry out construction on the land in question in the

following terms:  

“…the view expressed by this Court  in Gurdip Singh Uban cannot  be  limited  only  to  applications  for  modification, clarification or recall. There is a growing tendency to provide different  nomenclatures  to  applications  to  side-step  the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled  as  applications  for  directions,  rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review  petition  by  circulation.  In  our  opinion,  the nomenclature given to an application is of absolutely no consequence-what is of importance is the substance of the  application and  if  it  is  found,  in  substance,  to  be  an application for review, it should be dealt with by the Court as such, and by circulation.

(Emphasis Supplied)

22. The Court noted the growing practice, despite the decision of this Court in

Gurdip Singh, of filing applications before this Court with different nomenclatures

in order to bypass or circumvent the procedure envisaged for the consideration of

the reliefs sought. This Court clarified that the nomenclature of an application is

of no consequence and courts must assess the contents and reliefs sought in the

application to determine what is the true nature of the application.  

23. Though  the  cases  adverted  to  above  were  rendered  in  the  context  of

applications before this Court which were held to be, in substance, applications

19 (2019) 2 SCJ 640

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for the review of a judgment, the principle of law that emerges is that courts may

scrutinise applications to assess whether they, in substance, seek a relief that

may not be granted in those applications. Where the court is of the opinion that

the nature of the application differs from its nomenclature and there is a method

prescribed  in  law  for  the  grant  of  the  reliefs  sought,  it  may  hold  that  the

application before it is not maintainable.

24. In the present case, the basis of the MAs is founded in the steps taken by

the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II.

The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June

2019, both of which were issued subsequent to the decision of this Court.  

25. By  the  GO dated  15  May  2019,  the  stay  on  the  earlier  GO dated  27

February  2019  which  stipulated  instructions  for  the  implementation  of  the

Reservation Act  2018 was lifted.  Consequently,  the Reservation Act  2018,  as

upheld  by  this  Court,  was  to  be  operationalised  in  terms  of  the  instructions

contained in  the GO dated 27 February 2019.  By the circular  dated 24 June

2019, a list  of FAQs and their  answers were annexed to the Schedule which

concerned the preparation of the seniority list in accordance with the GO dated

27 February 2019.

26. The judgment of this Court in B K Pavitra II concerned the constitutional

validity  of  the  Reservation  Act  2018  and  not  actions  taken  thereunder  or  in

pursuance of its implementation. The present MAs, though styled as applications

for directions, seek to lay challenge to the actions of the State government to

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carry into effect the provisions of the Reservation Act 2018. This is clear from the

nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May

2019 and the circular dated 24 June 2019, both of which are subsequent to the

judgment of this Court in B K Pavitra II.

27. The remedy, styled as directions, sought by the applicants cannot lie in the

form of MAs. Prayer (a) which seeks a direction to “re-work” all promotions on the

basis of ‘post based reservations’ impugns item 3 of the FAQs annexed to the

circular dated 24 June 2019 which states that the list is to be revised on the basis

of the total number of government employees in the respective cadre. Prayer (b)

seeks the issuance of a direction to the State of Karnataka to apply the creamy

layer principle at the entry level. As it has been noted above, the judgment of this

Court in B K Pavitra II concerned the grant of consequential seniority and not the

applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance

of a direction to the State Government to ensure, in the implementation of the

Reservation Act 2018, compliance with the decision in Nagaraj.  

28. The present MAs are, in effect, a substantive challenge to the actions of

the State government in implementing the Reservation Act 2018 through the GO

dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are

aggrieved by the steps which have been taken by the State government, it  is

open to them to pursue a substantive remedy for challenging the steps taken by

the State government in independent proceedings.  

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29. We are clearly of the view that MAs of this nature are not maintainable.

Having come to this conclusion, no need arises for this Court to adjudicate upon

the  other  contentions  urged  by  Dr  Rajeev  Dhavan,  learned  Senior  Counsel

appearing for the applicants.

30. We consequently dismiss the Miscellaneous Applications, but leave it open

to the applicants to pursue such independent remedies as may be available in

the law. We clarify that no observations have been made on the merits of the

matter.

Pending application(s), if any, shall stand disposed of.  

…..…..…....…........……………….…........J.   [Uday Umesh Lalit)

…..…..…....…........……………….…........J.   [Dr Dhananjaya Y Chandrachud]

New Delhi;  March 19, 2020.

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