REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.6385 OF 2010

SURAJ BHAN MEENA & ANR.     … PETITIONERS VERSUS

STATE OF RAJASTHAN & ORS.     … RESPONDENTS

WITH  SLP(C)NOS.7716, 7717, 7826, 7838 of 2010

J U D G M E N T

ALTAMAS KABIR, J.

1. Since  common  questions  of  fact  and  law  are  

involved,  five  Special  Leave  Petitions  have  been  

taken up for hearing and final disposal together.

While SLP(C)No.6385 of 2010 has been filed by Suraj  

Bhan Meena & Anr., SLP(C)Nos.7716, 7717, 7826 and  

7838 of 2010, have all been filed by the State of  

Rajasthan.   

2. All  the  petitioners  are  aggrieved  by  the  

judgment and order dated 5th February, 2010, passed  

by the Jaipur Bench of the Rajasthan High Court in  

D.B. Civil Special Appeal (Writ) No.618/2009 filed  

by the State of Rajasthan & Anr. against Bajrang  

Lal Sharma & Ors., D.B. Civil Special Appeal (Writ)  

No.3/2010 filed by Suraj Bhan Meena against Bajrang  

Lal Sharma & Ors., D.B. Civil Special Appeal (Writ)  

No.611/2009 filed by the State of Rajasthan against  

Gyan  Prakash  Shukla,  D.B.  Civil  Special  Appeal  

(Writ) No.610/2009 filed by the State of Rajasthan  

against  M.M.  Joshi,  D.B.  Civil  Writ  Petition  

No.8104/2008  filed  by  Bajrang  Lal  Sharma  &  Ors.  

against the State of Rajasthan & Ors., D.B. Civil  

Writ  Petition  No.6241/2008  filed  by  Gyan  Prakash  

Shukla & Anr. against the State of Rajasthan & Ors.  

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and D.B. Civil Writ Petition No.7775/2009 filed by  

M.M. Joshi against the State of Rajasthan & Ors.  

As  indicated  hereinbefore,  all  the  matters  were  

heard and disposed of by a common judgment passed  

by the Division Bench on 5th February, 2010. While  

considering the writ petitions along with the writ  

appeals, the Division Bench referred to the facts  

of D.B. Civil Writ Petition No.8104/2008, against  

which  SLP(C)No.6385/2010  has  been  filed  by  Suraj  

Bhan Meena and SLP(C)No.7716/2010 has been filed by  

the State of  Rajasthan.  The other Special Leave  

Petitions have been filed against the orders passed  

in  the  Writ  Petitions  filed  by  the  private  

respondents therein.   

3. All  the  writ  petitioners,  as  also  the  

Petitioners in SLP(C)No.6385/2010, are members of  

the  Rajasthan  Administrative  Service  and  are  

governed  by  the  Rajasthan  Administrative  Service  

Rules,  1954.   The  writ  petitioners  in  their  

respective  writ  petitions  challenged  the  

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Notification dated 25th April, 2008, issued by the  

State  of  Rajasthan  in  exercise  of  its  powers  

conferred  by  the  proviso  to  Article  309  of  the  

Constitution  of  India  amending  the  Rajasthan  

“Various  Service  Rules”  with  effect  from  

28.12.2002.

4. According  to  the  writ  petitioners,  they  had  

been  inducted  in  the  Rajasthan  Administrative  

Service in December, 1982, through selection by the  

Rajasthan Public Service Commission.  Vide notice  

dated 26th June, 2000, the State Government issued a  

Provisional  Seniority  List  of  Rajasthan  

Administrative  Service  Selection  Grade  as  on  

1.4.1997,  in  which  the  Writ  Petitioner  No.1,  

Bajrang  Lal  Sharma,  was  placed  above  Suraj  Bhan  

Meena  (Scheduled  Tribe)  and  Sriram  Choradia  

(Scheduled  Caste).  The  said  Seniority  List  was  

published pursuant to the order of this Court dated  

16.9.1999, passed in the case of  Ajit Singh-II &  

Ors. Vs. State of Punjab & Ors. [(1999) 7 SCC 209]  

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and another order of the same date in the case of  

Ram Prasad vs. D.K. Vijay [(1999) 7 SCC 251].  Once  

again Provisional Seniority Lists were published on  

27.11.2003 and 12.5.2008.  Subsequently, the State  

of Rajasthan published the final Seniority Lists of  

Super Time Scale and Selection Scale of the service  

on  24.6.2008  as  on  1.4.1997  and  Provisional  

Seniority  List  dated  2.7.2008  as  on  1.4.2008,  

wherein the name of Bajrang Lal Sharma was shown  

below the names of both Suraj Bhan Meena and Sriram  

Choradia.   

5. The Notification dated 25.4.2008, which was the  

subject matter of challenge in the Writ Petition  

was  challenged  on  two  grounds.   It  was  firstly  

contended that the proviso dated 28.12.2002, which  

had  been  added  to  the  Various  Service  Rules  was  

subject to the final decision of this Court in Writ  

Petition (Civil) No.234/2002 filed by the All India  

Equality Forum against the Union of India & Ors.,  

but the same was yet to be decided.  Therefore,  

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during  the  pendency  of  the  Writ  Petition  before  

this Court, the Respondents had acted improperly in  

deleting the above-mentioned proviso in the Various  

Service Rules by the Notification dated 25.4.2008,  

which amounted to giving a consequential seniority  

to candidates belonging to the Scheduled Castes and  

Scheduled Tribes, which could not have been given  

without quantifying the figures of Scheduled Castes  

and  Scheduled  Tribes  candidates  to  enable  a  

decision  to  be  arrived  at  that  reservation  was  

required  in  promotion  and  also  to  show  that  the  

State  had  to  pass  such  orders  for  compelling  

reasons,  such  as,  backwardness,  inadequacy  of  

representation, as held by this Court in the case  

of M. Nagaraj & Ors. vs.  Union of India & Ors.  

[(2006) 8 SCC 212].  It was contended that since  

the  State  Government  had  not  complied  with  the  

directions given by this court in M. Nagaraj’s case  

(supra), the Notification in question was liable to  

be quashed.  It was further urged on behalf of the  

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Writ Petitioner, Bajrang Lal Sharma, that in the  

case of Indra Sawhney & Ors. Vs. Union of India &  

Ors. [(1992) Supp.(3) SCC 217], this Court had held  

that Article 16(4) of the Constitution of India did  

not permit reservations in the matter of promotion.  

Thereafter, the Constitution (77th Amendment) Act,  

1995, was enacted and came into force on 17.6.1995.  

The subsequent Special Leave Petitions filed by the  

Union of India & Ors. against Virpal Singh Chauhan  

& Ors. [(1995) 6 SCC 684], Ajit Singh Januja & Ors.  

Vs. State of Punjab & Ors. [(1996) 2 SCC 715] and  

Ajit Singh-II & Ors. Vs.  State of Punjab & Ors.  

[(1999) 7 SCC 209)], introduced the “catch-up” rule  

and  held  that  if  a  senior  general  candidate  was  

promoted after candidates from the Scheduled Castes  

and  Scheduled  Tribes  have  been  promoted  to  a  

particular  cadre,  the  senior  general  candidate  

would  regain  his  seniority  on  promotion   in  

relation  to  the  juniors  who  had  been  promoted  

against reserved vacancies.    

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6. The  Parliament  on  4.1.2002  amended  the  

Constitution  by  the  Constitution  (85th Amendment)  

Act,  2001,  in  order  to  give  the  benefit  of  

consequential  seniority  to  the  reserved  category  

candidates  with  effect  from  17.6.1995.   The  

constitutional  validity  of  both  the  said  

Constitution Amendment Acts was challenged before  

this court in other writ petitions, including the  

writ  petition  filed  by  M.  Nagaraj  and  All  India  

Equality Forum.  During the pendency of the writ  

petitions,  this  Court  passed  an  interim  order  

protecting  the  promotion  and  seniority  of  

general/OBC  candidates.  The  Government  of  

Rajasthan,  thereafter,  deleted  the  proviso  added  

vide Notification dated 1.4.1997.   

7. In M. Nagaraj’s case (supra), this Court while  

upholding  the  constitutional  validity  of  the  

Constitution  (77th Amendment)  Act,  1995  and  the  

Constitution (85th Amendment) Act, 2001, clarified  

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the position that it would not be necessary for the  

State  Government  to  frame  rules  in  respect  of  

reservation  in  promotion  with  consequential  

seniority, but in case the State Government wanted  

to frame such rules in this regard, then it would  

have to satisfy itself by quantifiable data, that  

there  was  backwardness,  inadequacy  of  

representation  in  public  employment  and  overall  

administrative  inefficiency  and  unless  such  an  

exercise  was  undertaken  by  the  State  Government,  

the rule relating to reservation in promotion with  

consequential seniority could not be introduced.

8. Despite the decision in M. Nagaraj’s case, the  

State Government by deleting the proviso, which had  

been inserted vide notification dated 1.4.1997 on  

the  basis  of  the  “catch-up”  rule  and  further  

deleting the new proviso added on 28.12.2002 in the  

Various Service Rules of the State, had in effect  

provided consequential seniority to the Scheduled  

Castes  and  Schedule  Tribes  candidates,  without  

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undertaking the exercise indicated in  M. Nagaraj’s  

case in respect of the three conditions laid down  

in  the  said  judgment.   It  was  the  case  of  the  

Petitioners  that  the  impugned  notification  dated  

25.4.2008 was liable to be declared ultra vires to  

the provisions of the Constitution being contrary  

to the decision of this Court in M. Nagaraj’s case.

9. As indicated hereinbefore, it was also the case  

of the Writ Petitioners that nowhere in Rule 33 of  

the Rajasthan Administrative Service Rules has any  

provision been made for consequential seniority to  

reserved category promotees.   As a result, after  

the judgment in  B.K. Sharma & Anr. Vs.  State of  

Rajasthan & Ors. [WLC (Raj.) 1998 (2) 583] and in  

Ram Prasad’s case (supra), consequential seniority  

could not have been assigned to reserve promotees  

above the senior General/OBC candidates.   

10. This was the view which had been taken by this  

Bench in the cases of Virpal Singh Chauhan (supra)  

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and Ajit Singh-I (supra) to the effect that reserve  

promotees  would  be  entitled  for  accelerated  

promotion, but not accelerated seniority.  The same  

view was reiterated by a Constitution Bench of this  

Court on 16th September, 1999, while deciding  Ajit  

Singh-II’s case (supra).  It is only on account of  

the judgment in Virpal Singh Chauhan’s case (supra)  

and in the case of Ajit Singh-I (supra), the State  

Government  vide  notification  dated  1.4.1997  

inserted  the  new  proviso  in  the  Various  Service  

Rules.  

11. The Constitution (85th Amendment) Act, 2001 was  

thereafter  passed  on  4th January,  2002,  with  

retrospective effect from 16th September, 1995, with  

regard  to  consequential  seniority  to  reserve  

promotees.  It was the said amendments which were  

the  subject  matter  of  challenge  in  several  writ  

petitions, including in M. Nagaraj’s case and in  

the case of All India Equality Forum.  

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12. On behalf of the Petitioners, it was submitted  

by Dr. Krishan Singh Chauhan, that the insertion of  

the words “with consequential seniority” in clause  

IVA  of  Article  16  of  the  Constitution  after  the  

words  “reservation  in  promotion”,  was  only  an  

enabling provision which was under challenge before  

this  Court  and  while  the  matter  was  sub-judice,  

without waiting for the decision of this Court in  

M. Nagaraj’s case and All India Equality Forum, the  

State Government withdrew its earlier notification  

dated  1st April,  1997  vide  notification  dated  

28.12.2002.  It has to be kept in mind that as in  

M. Nagaraj’s case (supra), this Court has made it  

mandatory on the part of the State Government to  

undertake the three exercises in case any rule was  

required to be framed by the State for reservation  

in promotion with consequential seniority.  It was  

submitted that the withdrawal of the notification  

dated  1.4.1997  by  notification  dated  28.12.2002  

amounted to negating the judgment of this Court in  

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Ram  Prasad’s  case  (supra)  and,  accordingly,  the  

notification dated 28.12.2002 was also liable to be  

quashed by the Court.  In short, the question to be  

decided  in  this  case  is  whether  the  State  

Government  was  reintroducing  a  concept  which  had  

been replaced pursuant to the orders passed by this  

Court, which had been found to be  ultra vires the  

provisions of the Constitution.  

13. It  was  urged  on  behalf  of  the  Petitioners,  

Suraj Bhan Meena and Sriram Choradia, that till the  

decision of this Court in the case of Indra Sawhney  

vs. Union of India [(1992) Supp. (3) SCC 217], this  

Court  had  almost  uniformly  applied  the  rule  of  

reservation  in  promotion  with  consequential  

seniority.  In  Indra Sawhney’s case (supra), this  

Court had held that reservation in promotion was  

unconstitutional, but permitted such reservation to  

continue  for  a  period  of  five  years.    It  is  

pursuant to the said decision in  Indra Sawhney’s  

case  (supra),  that  the  Parliament  enacted  the  

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Constitution (77th Amendment) Act, 1995.  A contrary  

view was taken in  Union of India vs.  Virpal Singh  

Chauhan [(1995)  6  SCC  684],  wherein  it  was  laid  

down that the grant of consequential seniority in  

cases of reservation in promotion was illegal.  The  

issue was taken further in the case of  Ajit Singh  

Januja Vs.  State  of  Punjab [(1996)  2  SCC  715]  

holding that the grant of consequential seniority  

to  reserve  category  employees,  who  had  got  

promotion  on  the  basis  of  reservation,  was  

unconstitutional.  

14. On 7th May, 1997, another Bench of this Court in  

the  case  of  Jagdish  Lal Vs.  State  of  Haryana  

[(1997) 6 SCC 538] took a diametrically opposite  

view upon holding, inter alia, that equality should  

not  remain  mere  idle  incantation,  but  it  had  to  

become a vibrant living reality since equality of  

opportunity could not simply be judged on the merit  

of the marks obtained by him but by taking into  

account  de  facto  inequalities  which  exist  in  

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society and to give preference to the socially and  

economically  disadvantaged  persons  by  inflicting  

handicaps on those more disadvantageously placed.  

Although such affirmative action might appear to be  

discriminatory,  it  was  calculated  to  bring  about  

equality on a broader basis by eliminating the de  

facto inequalities between the weaker sections and  

the stronger sections of the community and placing  

them on a footing of equality in relation to public  

employment.   

15. In view of the opposite stands taken in Jagdish  

Lal’s  case  (supra)  and  in  Ajit  Singh-I’s  case  

(supra),  the  matters  were  referred  to  the  

Constitution Bench which approved the decision in  

Ajit Singh Januja’s case (supra) and  Virpal Singh  

Chauhan’s case (supra), upon holding that the case  

of Jagdish Lal had not been correctly decided.   As  

a result, the rule of “regain” and “catch-up” was  

explained  as  the  correct  interpretation  of  the  

rules.   As mentioned hereinbefore, by enacting the  

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Constitution  (85th Amendment)  Act,  2001,  the  

Parliament constitutionally nullified the principle  

of  “regain”  and  “catch-up”  by  enacting  the  

Constitution  (77th Amendment)  Act, 1995  under its  

constituent  power  under  Article  368  of  the  

Constitution.   It was sought to be urged by Dr.  

Krishan Singh Chauhan, learned Advocate, that the  

power which was existing in the Government to make  

provision for consequential seniority in promotion  

of reservation, which had been eclipsed on account  

of  the  decision  of  this  Court  in  Virpal  Singh  

Chauhan’s  case  (supra),  stood  revived  by  the  

enactment of the Constitution (85th Amendment) Act,  

2001, with retrospective effect.

16. Learned counsel for the Petitioners referred to  

various decisions on the doctrine of eclipse, which  

we will refer to, if necessary.

17. Learned  counsel,  in  addition,  contended  that  

the Respondents had not acquired any vested right  

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since  the  Constitution  Amendment  Acts  had  been  

enacted by the Parliament only with the intention  

of nullifying the effects of the judgments of this  

Court in  Virpal Singh Chauhan’s case (supra) and  

Ajit  Singh-II’s  case  (supra).   Dr.  Chauhan  

submitted  that  the  Constitution  (85th Amendment)  

Act, 2001, given effect to from 17th June, 1995, had  

constitutionally nullified the principle of “regain  

of seniority” and the principle of “catch-up” which  

had been explained by this Court in  Virpal Singh  

Chauhan’s case (supra).   

18. Mr.  P.P.  Rao,  learned  Senior  Advocate,  

appearing for the State of Rajasthan, submitted at  

the very outset that the reliefs prayed for in the  

several  writ  petitions,  which  are  common  in  the  

Special  Leave  Petitions,  praying  for  a  direction  

that the benefit of reservation in promotion with  

consequential seniority, should not be given unless  

the three compelling conditions as indicated in M.  

Nagaraj’s case (supra), were fulfilled, was totally  

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misconceived in the absence of any challenge to the  

order dated 10th February, 1975, passed by the State  

of Rajasthan providing for reservations in favour  

of Scheduled Castes and Scheduled Tribes candidates  

in promotion. Furthermore, no such prayer had been  

granted by the High Court. Mr. Rao submitted that  

the  reliefs  prayed  for  was  based  on  a  complete  

misreading  of  the  decision  in  M.  Nagaraj’s  case  

(supra).

19. Mr.  Rao  urged  that  the  High  Court  took  an  

erroneous view that seniority is a vested right in  

view of the observations made in paragraph 123 in  

M. Nagaraj’s case that the State was not bound to  

provide  for  reservation  for  Scheduled  

Castes/Scheduled  Tribes  candidates  in  matters  of  

promotions, but that if it intended to exercise its  

discretion  and  make  such  provision,  it  had  to  

collect quantifiable data showing backwardness of  

the class and inadequacy of representation of that  

class  in  public  employment  in  addition  to  

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compliance of Article 335 of the Constitution.  Mr.  

Rao  submitted  that  the  High  Court,  however,  

overlooked the opening part of the judgment which  

indicated that the main issue involved the extent  

of reservation.  Mr. Rao submitted that the High  

Court  erred  in  proceeding  on  the  basis  that  

seniority in Government service is a vested right,  

since it is now well settled that the seniority of  

a Government servant can be interfered with by the  

State by making a Rule under the Proviso to Article  

309 of the Constitution.  In this regard, Mr. Rao  

referred  to  and  relied  on  the  decision  of  this  

Court in S.S. Bola & Ors. Vs. B.D. Saldana & Ors.  

[(1997) 8 SCC 522], and  T. Narasimhulu & Ors. Vs.  

State of A.P. & Ors. [(2010) 5 SCALE 730], where  

the  aforesaid  principle  was  enunciated.   It  was  

urged  that  even  otherwise,  a  right  would  accrue  

only  when  an  order  is  issued  to  a  Government  

servant.   It  was  further  urged  that  the  High  

Court’s  reliance  on  the  observations  in  M.  

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Nagaraj’s case (supra), and the statement of the  

Advocate General that the exercise of collection of  

quantifiable  data  was  not  undertaken,  is  without  

basis  on  the  ground  that  the  collection  of  

quantifiable  data  showing  backwardness  and  

inadequacy of representation would only arise when  

the  State  wished  to  exercise  its  discretion  in  

making  reservation  for  Scheduled  Tribes  and  

Scheduled Castes candidates in matters of promotion  

and  not  in  a  case  where  reservation  had  already  

been  made  as  far  back  as  on  10.2.1975  and  was  

allowed to continue uninterruptedly.

20. Mr. Rao submitted that as far as the “Catch-up  

Principle” is concerned, the same had been deleted  

by the impugned notification dated 25.4.2008.  The  

first  Notification  deleted  the  said  rule  with  

effect  from  1.4.1997,  while  retaining  some  

reservation in the form of a Proviso which too was  

ultimately deleted by the second Notification with  

effect from 28.12.2002.  Mr. Rao also referred to  

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the observation made in M. Nagaraj’s case  that it  

could  not  be  said  that  the  equality  code  under  

Articles 14, 15 and 16 was violated by the deletion  

of  the  “Catch-up”  Rule.   Mr.  Rao  submitted  that  

this declaration of the Constitution Bench had not  

been noticed by the High Court when it held that  

the two impugned notifications violated Articles 14  

and 16 of the Constitution.

21. Mr.  Rao  also  submitted  that  the  doctrine  of  

eclipse, as urged on behalf of the Petitioners, was  

not applicable to the facts of the case since after  

over-ruling  the  decision  in  General  Manager,  

Southern Railway Vs. Rangachari [(1962) 2 SCR 586],  

this Court had extended the life of the existing  

reservations  for  a  period  of  five  years.  

Accordingly, the Government Order dated 10.2.1975  

survived  the  decision  in  Indra  Sawhney’s  case  

(supra) and during the period of extension of five  

years,  Parliament  intervened  and  inserted  Clause  

(4-A)  in  Article  16  empowering  the  State  to  

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continue reservations in promotions already made or  

to  make  such  reservations,  if  not  already  made.  

Mr. Rao urged that the 85th Amendment was enacted  

not merely to withdraw the Office Memorandum dated  

31.1.1997, which gave effect to the catch-up rule,  

but  to  restore  the  benefit  of  consequential  

seniority with retrospective effect from 17.6.1995  

as if there never was any Catch-up Rule at all in  

the  eye  of  law.   Mr.  Rao  submitted  that  the  

contention of the Petitioners that for the purpose  

of giving the benefit of consequential seniority,  

the State would have to undertake the collection of  

quantifiable  data  in  regard  to  backwardness,  

inadequacy of representation and non-impairment of  

efficiency, was based on a misunderstanding of the  

law declared in  M. Nagaraja’s case (supra), since  

it  defeats  the  intent  of  Parliament  to  give  

retrospective  effect  to  the  Constitution  (85th  

Amendment) Act.

22

22. In  addition,  it  was  pointed  out  that  in  

M. Nagaraj’s case (supra) it had been categorically  

indicated  that  the  concept  of  consequential  

seniority did not violate the equality code under  

Articles  14,  15  and  16  by  deleting  the  Catch-up  

Principle , as was held in  Virpal Singh Chauhan’s  

case (supra).  It was submitted that the instant  

case is a simple case of deletion of the Catch-up  

Principle  in  view  of  the  Constitution  (85th  

Amendment)  Act.   It  was  contended  that  the  

provisional seniority list which was quashed by the  

High Court could never become the ground for any  

accrued right to seniority.   

23. Appearing for the Intervenor, Rajasthan Vanijik  

Kar  Anusuchit  Jati-Janjati  Mahasangh,  hereinafter  

referred to as “Mahasangh”, Mr. Pallav Shishodia,  

learned  Senior  Advocate,  reiterated  Mr.  Rao’s  

submissions regarding the observations made by this  

Court in paragraph 79 of M. Nagaraj’s case that the  

concept  of  “Catch-up  Rule”  and  “consequential  

23

seniority”  are  judicially  evolved  concepts  not  

implicit in Clauses (1) and (4) of Article 16 of  

the Constitution and with the concept of equality  

contained in Articles 14, 15 and 16 stood violated  

by  the  deletion  of  the  “Catch-up  Rule”.   The  

Constitution Bench also observed that such concepts  

were  based  on  principles  which  could  not  be  

elevated to the status of constitutional principles  

or constitutional limitations.  Mr. Shishodia urged  

that  the  deletion  of  the  Proviso  added  by  the  

Amendment  of  1997  by  way  of  the  impugned  

Notification  of  28.12.2002  and  25.4.2008,  merely  

gave a quietus to the Catch-up Rule in harmony with  

the  Constitution  (85th Amendment)  Act,  which  was  

introduced with the specific object of negating the  

effect  of  the  decisions  of  this  Court  in  Virpal  

Singh Chauhan’s case (supra),  Ajit Singh-I’s case  

(supra) and in  Ajit Singh-II’s case (supra).  It  

was submitted that since the 85th Amendment had been  

upheld by the constitution Bench in  M. Nagaraj’s  

24

case (supra) the State was duty bound to restore  

the original practice of giving seniority from the  

date of substantive appointment, without reference  

to the Catch-up Principle.           

24. Mr. Shishodia concluded on the note that just  

as  the  repealing  of  an  enactment  would  not  

automatically revive the original Act, on the same  

analogy,  mere  setting  aside  or  quashing  of  the  

impugned  Notification  dated  28.12.2002  and  

25.4.2008  would  not  revive  the  “Catch-up”  Rule  

introduced by Notification dated 1.4.1997.  While  

the  repeal  of  the  two  Notifications  dated  

28.12.2002 and 25.4.2008 removed the eclipse caused  

by the judgment in Ajit Singh-I’s case (supra), Ram  

Prasad’s  case  (supra)  and  Ajit  Singh-II’s  case  

(supra), no fresh right of consequent seniority was  

conferred.   

25. Mr.  M.L.  Lahoti,  learned  Senior  Advocate,  

appearing for Respondent No.13 in SLP(C)No.6385 of  

25

2010,  while  reiterating  the  submissions  made  on  

behalf of the other Respondents, submitted that the  

question  of  reservation  had  been  gone  into  in  

detail in  Indra Sawhney’s case (supra) and it had  

been held that if a feeling of complacency relating  

to  promotion  was  allowed  to  prevail  amongst  

candidates  from  the  reserved  categories,  it  was  

bound to generate a feeling of despondency among  

candidates  from  the  open  categories  which  would  

affect the efficiency of administration.  It was  

also held that putting the members of the Backward  

Class on a fast track would lead to leap-frogging  

which could have disastrous effects on the moral of  

the  candidates  from  the  general  candidates.  

Learned counsel went on to submit that the 77th and  

85th Constitutional Amendments were brought about in  

the  Constitution  after  the  judgment  in  Indra  

Sawhney’s  case  and  provided  the  Government  with  

power  to  provide  reservation  in  promotion  and  

consequential  seniority.   Although,  the  same  was  

26

challenged in the All India Equality Forum’s case,  

as also in  M. Nagaraja’s case, this Court upheld  

the constitutional validity of all the amendments,  

subject to compelling circumstances being fulfilled  

by the States.  Mr. Lahoti also referred to the  

contents  of  paragraph  123  of  the  judgment  in  M.  

Nagaraja’s case (supra) which has been referred to  

hereinbefore,  relating  to  the  “extent  of  

reservation” to be made by the State Government.

26. Mr.  Lahoti  submitted  that  in  response  to  

several  applications  made  under  the  Right  to  

Information Act, 2005, little or no information was  

supplied with regard to the population, education,  

public  employment,  private  employment,  self-

employment, below poverty line population and per-

capita  income  of  Scheduled  Tribes  and  Scheduled  

Castes for the years 1951, 2001 and 2009.  In fact,  

the  response  of  the  National  Commission  for  

Scheduled  Tribes  was  that  they  did  not  have  the  

requisite data for all the information sought for.

27

27. Mr. Lahoti lastly contended that in the absence  

of  any  data  in  relation  to  Scheduled  Castes  and  

Scheduled Tribes, the parameters laid down in  M.  

Nagaraja’s case were not fulfilled and Rule 33 of  

the  Rajasthan  Administrative  Service  Rules,  1954  

providing  for  consequential  seniority,  was  

unconstitutional as no exercise had been undertaken  

by  the  State  pursuant  to  Article  16(4-A)  of  the  

Constitution, and, as such it was not entitled to  

provide consequential seniority to Scheduled Castes  

and Scheduled Tribes employees.      

28. Mr. M.R. Calla, learned Senior Advocate, who  

appeared for the sole Respondent, Mr. O.P. Harsh,  

in Special Leave Petition (Civil) No.7838 of 2010,  

contended that as far as his client was concerned,  

he  was  the  Selection  Scale  promotee  of  the  year  

1991-92  and  the  judicial  decision  upholding  his  

position had attained finality and had nothing to  

do  with  the  amendment  of  the  rules  or  the  

28

constitutional amendment with retrospective effect  

from 17th June, 1995.  It was submitted that in his  

case there was no question of any general category  

candidate gaining seniority over him once he had  

superseded them on the basis of merit in the year  

1991-92. In other words, once a general category  

candidate, though initially senior to him, failed  

to compete against him in merit in the year 1991-

92, he could not regain seniority over his client  

even  if  he  had  been  promoted  in  any  subsequent  

year.  Mr. Calla urged that when Shri Harsh had  

been given the benefit of the “catch-up” rule in  

terms  of  the  notification  dated  1.4.1997,  the  

general category candidates, who were senior to him  

but  had  been  superseded  by  him  on  the  basis  of  

merit in the year 1991-92 for the selection scale,  

had  been  wrongly  placed  above  him.   Mr.  Calla  

further submitted that such an act on the part of  

the  Respondents  having  been  challenged  by  Shri  

Harsh in Writ Petition No.3136 of 2000, which was  

29

allowed  on  30th May,  2001  and  the  subsequent  

challenge thereto before the Division Bench having  

been dismissed, the order dated 12.9.2001 of the  

learned Single Judge had attained finality.  

29. Mr. Calla also referred to the decision of this  

Court in  M. Nagaraj’s case (supra) and submitted  

that  despite  the  constitutional  mandate  to  the  

Government as per the 77th and 85th amendments, to  

form an opinion relating to adequate representation  

for exercise of the powers under Articles 16(4) and  

16(4-A) of the Constitution, no such exercise had  

been undertaken by the State before exercising the  

enabling  power.   It  was  submitted  that  adequate  

representation of candidates cannot be a constant  

factor for ever, but was variable for the purpose  

of  providing  adequate  representation  in  the  

services, as circumstances had changed after 1975.  

Mr. Calla submitted that the exercise for adequate  

representation  was  the  most  important  factor  for  

the Government to exercise its powers under Article  

30

16(4) and 16(4-A) of the Constitution and the same  

could  not  be  avoided  by  the  Government  and  the  

failure  to  follow  the  said  mandate  rendered  the  

exercise of the enabling power invalid.  Mr. Calla  

submitted that the various data which came to be  

disclosed during the hearing of the matter, clearly  

show  that  Scheduled  Castes  and  Scheduled  Tribes  

candidates were adequately represented and had at  

times even exceeded the quota and as such it was  

necessary  for  an  exercise  to  be  undertaken  to  

ascertain  the  representation  of  such  candidates.  

Mr. Calla submitted that, in any event, since no  

injustice  had  been  done  to  Scheduled  Castes  and  

Scheduled Tribes candidates, the petitioners could  

have  no  legitimate  cause  for  grievance  with  the  

order of the High Court.  

30. Dr. Rajeev Dhawan, learned Senior Advocate who  

appeared for the Respondent No.10 in Special Leave  

Petition (Civil) No.7716 of 2010, firstly contended  

that the main issue for decision in this case is  

31

whether the conditions enumerated in  M. Nagaraj’s  

case  (supra)  applied  to  cases  of  seniority  and  

promotion after 17th June, 1995, from which date the  

amendments  were  declared  to  be  valid  in  M.  

Nagaraj’s case (supra).  Dr. Dhawan submitted that  

in M. Nagaraj’s case (supra) this Court was called  

upon to consider the provisions of the Constitution  

(77th, 81st, 82nd and 85th Amendment) Acts relating to  

reservation  in  promotion,  the  principle  of  carry  

over,  enabling  preservation  of  principles  of  

efficiency  and  providing  for  consequential  

seniority  by  amending  Article  16(4-A)  by  

substituting  the  words  “in  matters  of  promotion,  

with  consequential  seniority,  to  any  class”,  in  

place of the words “in matters of promotion to any  

class”.   Dr.  Dhawan  submitted  that  by  the  

Constitution  (85th Amendment)  Act,  2001,  the  

legislature  reintroduced  the  concept  of  

consequential seniority to any class in matters of  

promotion.

32

31. It  was  submitted  that  after  the  decision  in  

Virpal Singh Chauhan’s case (supra), the provisions  

relating  to  “catch-up”  were  discontinued  and  the  

protection which had been given against disputes of  

seniority  by  juniors  by  the  notification  dated  

1.4.1997  was  withdrawn,  but  with  a  proviso  of  

maintaining the status-quo that was existing as on  

that date.

32.  Dr. Dhawan contended that the exercise to be  

undertaken as per the directions in  M. Nagaraj’s  

case (supra) was mandatory and admittedly such an  

exercise had not been undertaken before grant of  

promotion. The Division Bench also held that the  

rights which had been preserved by virtue of the  

notifications  dated  1.4.1997  and  28.12.2002  were  

vested rights in favour of the writ petitioners and  

by the impugned judgment, the notifications dated  

28.12.2002 and 25.4.2008 had been rightly quashed.  

Dr. Dhawan urged that by the notifications dated  

33

1.4.1997  and  28.12.2002,  the  Government  of  

Rajasthan had protected the seniority and merit of  

candidates.  The decision in M. Nagaraj’s case made  

a distinction between the existence and the width  

of the exercise of power under the amendments and  

validates  the  amendments  subject  to  the  exercise  

emanating from the above-mentioned principles. Dr.  

Dhawan submitted that the decision in M. Nagaraj’s  

case did not automatically invalidate or validate  

any exercise between when the amendments were held  

to be valid, and 4.1.2000 from when consequential  

seniority was required to be considered in terms of  

such amendment.    

33. It was submitted that since the State had not  

undertaken  the  exercise  which  was  mandatory  in  

terms of the judgment in M. Nagaraj’s case (supra),  

the State could not, either directly or indirectly,  

circumvent  or  ignore  or  refuse  to  undertake  the  

exercise  by  taking  recourse  to  the  Constitution  

34

(85th Amendment) Act  providing for  reservation in  

promotion with consequential seniority.  

34. Dr. Dhawan urged that the powers conferred on  

the State under Articles 16(4), 16(4-A) and 16(1-B)  

of the Constitution are enabling in nature and the  

expression  “consequential  seniority”  was  optional  

and not a requirement.  Dr. Dhawan also urged that  

what was restored by the decision in  M. Nagaraj’s  

case (supra) was merely the enabling power of the  

Government and exercise of such power in relation  

to  consequential  seniority  by  the  State  of  

Rajasthan would still have to be reconsidered in  

accordance with the decision in  M. Nagaraj’s case  

(supra).

35. Dr. Dhawan submitted that the seniority of the  

candidates  who  had  been  promoted  on  merit  was  

protected  by  the  notification  dated  1.4.1997  and  

the  same  was  required  to  be  retained  and  the  

contingent protection given by the notification of  

35

28.12.2002 was also required to be retained, though  

the  contingency  in  the  last  sentence  of  the  

notification  was  liable  to  be  struck  down.   Dr.  

Dhawan  also  urged  that  the  restoration  of  

consequential  seniority  in  the  notification  of  

25.4.2002,  without  conducting  the  exercise  as  

contemplated  in  M.  Nagaraj’s  case  (supra),  was  

liable to be struck down and if the State wanted to  

introduce a provision for consequential seniority,  

it would have to follow the procedure indicated in  

M. Nagaraj’s case (supra).   

36. The primary question which we are called upon  

to answer in these five Special Leave Petitions is  

whether the amended provisions of Article 16(4-A)  

of the Constitution intended that those belonging  

to  the  Scheduled  Castes  and  Schedule  Tribes  

communities, who had been promoted against reserved  

quota,  would  also  be  entitled  to  consequential  

seniority on account of such promotions, or would  

the “catch-up” rule prevail.  

36

37. The said question has been the subject matter  

of  different  decisions  of  this  Court,  but  the  

discordant note was considered and explained by the  

Constitution Bench in M. Nagaraj’s case (supra). On  

account  of  reservation  those  who  were  junior  to  

their  seniors,  got  the  benefit  of  accelerated  

promotions  without  any  other  consideration,  

including performance. Those who were senior to the  

persons  who  were  promoted  from  the  reserved  

category  were  not  overlooked  in  the  matter  of  

promotion on account of any inferiority in their  

work  performance.   It  is  only  on  account  of  

fortuitous circumstances that juniors who belong to  

the  reserve  category  were  promoted  from  that  

category  before  their  seniors  could  be  

accommodated.   

38. The  question  relating  to  reservation  in  

promotional  posts  fell  for  the  consideration  of  

this  Court  in  Indra  Sawhney’s case  (supra)  for  

37

construction of Article 16(4) of the Constitution  

relating to the State’s powers for making provision  

for reservation of appointments or posts in favour  

of  any  backward  class  of  citizens,  which  in  the  

opinion  of  the  State,  was  not  adequately  

represented  in  services  under  the  State.   The  

further question for determination was whether such  

power extended to promotional posts.  This Court  

answered  the  questions  by  holding  that  Article  

16(4) does not permit provision for reservation in  

the matter of promotion.  Further, such rule was to  

be given effect to only prospectively and would not  

affect the promotions already made, whether made on  

regular basis or on any other basis.  Accordingly,  

apart  from  holding  that  Article  16(4)  does  not  

permit provision for reservation in the matter of  

promotion, this Court also protected the promotees  

who had been appointed against reserved quotas and  

a  direction  was  also  given  that  wherever  

reservations  are  provided  in  the  matter  of  

38

promotion,  such  reservation  would  continue  in  

operation for a period of five years from the date  

of  the  judgment.   In  other  words,  the  right  of  

promotion  was  protected  only  for  a  period  of  5  

years from the date of the judgment and would cease  

to have effect thereafter.  

39. The matter did not end there.  The Constitution  

(77th Amendment) Act, 1995, came into force on 17th  

June,  1995.   A  subsequent  question  arose  in  the  

case of  Union of India vs.  Virpal Singh Chauhan,  

[(1995) 6 SCC 684],  as to whether the benefit of  

accelerated  promotion  through  reservation  or  the  

roster system would give such promotees seniority  

over general category promotees who were promoted  

subsequently.  The said question arose in regard to  

promotion of Railway Guards in non-selection posts  

by  providing concession to Scheduled Castes and  

Scheduled Tribes candidates and it was sought to be  

contended  that  the  reservation  provided  was  not  

only at the stage of initial appointment, but at  

39

every stage of subsequent promotions.  In the said  

case,  the  Petitioners,  who  were  general  category  

candidates and the Respondents who were members of  

the Scheduled Castes and Scheduled Tribes were in  

the  grade  of  Guards  Grade  ‘A’  in  the  Northern  

Railway.    On  1st August,  1986,  the  Chief  

Controller,  Tundla,  promoted  certain  general  

category candidates on ad-hoc basis to Grade ‘A’  

Special.  Within less then three months, however,  

they were reverted and in their place members of  

the  Scheduled  Castes  and  Scheduled  Tribes  were  

promoted.    Complaining  of  such  action  as  being  

illegal,  arbitrary  and  unconstitutional,  Virpal  

Singh Chauhan and others moved the High Court, but  

the  petition  was  transferred  to  the  Central  

Administrative Tribunal.  The Tribunal, inter alia,  

held that persons who had been promoted by virtue  

of  the  application  of  roster  would  be  given  

accelerated promotion but not seniority, and that  

the  seniority  in  a  particular  grade  amongst  the  

40

incumbents  available  for  promotion  to  the  next  

grade  would  be  re-cast  each  time  new  incumbents  

entered  from  the  lower  grade  on  the  basis  of  

initial  Grade  ‘C’  seniority.  This  came  to  be  

recognized as the “catch-up” rule. The matter was  

brought to this Court by the Union of India and  

this  Court  confirmed  the  view  taken  by  the  

Tribunal.  

40. The same view was reiterated in the case of  

Ajit  Singh  Januja’s  case  (supra)  wherein  it  was  

held  further  that  by  accelerated  promotion  

Scheduled  Castes/Scheduled  Tribes  and  Backward  

Class candidates could not supersede their seniors  

in the general category by accelerated promotion,  

simply because that their seniors in the general  

category  had  been  promoted  subsequently.  It  was  

observed that balance has to be maintained vis-à-

vis reservation.  

41

41. After  the  decision  rendered  in  Virpal  Singh  

Chauhan’s case (supra) and in  Ajit Singh-I’s case  

(supra), in which the claim of reserved category  

candidates in promotional posts with consequential  

seniority was negated, the question surfaced once  

again in the case of Jagdish Lal & Ors. Vs. State  

of Hayrana & Ors. [(1997) 6 SCC 538], where a Bench  

of  Three  Judges  took  a  different  view.  Their  

Lordships  held  that  the  recruitment  rules  had  

provided  for  fixation  of  seniority  according  to  

length  of  continuous  service  on  a  post  in  the  

service.  Interpreting the said provisions, Their  

Lordships held that in view of the said rules those  

Scheduled Castes and Scheduled Tribes candidates,  

who  though  junior  to  others  in  the  general  

category,  had  got  promotion  earlier  than  their  

seniors  in  the  general  category  candidates  and  

would, therefore, be entitled to get seniority with  

reference  to  the  date  of  their  promotion.  Their  

Lordships  held  that  the  general  candidates  by  

42

relying on Virpal Singh Chauhan’s case (supra) and  

Ajit Singh Januja’s case (supra) could not derive  

any benefit therefrom.   

42. This  resulted  in  the  vexed  question  being  

referred to the Constitution Bench. Of the several  

cases taken up by the Constitution Bench, we are  

concerned with the decision rendered in the case of  

Ram Prasad vs. D.K. Vijay [(1999) 7 SCC 251]  and  

Ajit Singh-II & Ors. Vs.  State of Punjab & Ors.  

[(1999)  7  SCC  209].   Differing  with  the  views  

expressed  in  Jagdish  Lal’s  case  (supra),  the  

Constitution Bench in  Ajit Singh-II’s case (supra)  

affirmed  the  earlier  decision  in  Virpal  Singh  

Chauhan’s case (supra) and Ajit Singh Januja’s case  

(supra)  and  overruled  the  views  expressed  in  

Jagdish Lal’s case (supra).  The constitution Bench  

reiterated  the  views  expressed  in  Ajit  Singh-I’s  

case  (supra)   that  those  who  had  obtained  the  

benefit  of  accelerated  promotion  should  not  be  

reverted as that would cause hardship to them, but  

43

they would not be entitled to claim seniority in  

the promotional cadre.  Quite naturally, the same  

view  was  expressed  in  Ram  Prasad’s case  (supra)  

which was also decided on the same day.  In the  

said  case,  while  affirming  the  decision  in  Ajit  

Singh-I’s  case  (supra),  this  Court  directed  

modification of the seniority lists which had been  

prepared earlier, to fall in line with the decision  

rendered in Ajit Singh-I’s case (supra)  and Virpal  

Singh Chauhan’s case (supra).

43. Thereafter,  as  mentioned  hereinbefore,  on  4th  

January,  2002,  the  Parliament  amended  the  

Constitution  by  the  Constitution  (85th Amendment)  

Act,  2001,  in  order  to  restore  the  benefit  of  

consequential  seniority  to  the  reserved  category  

candidates with effect from 17th June, 1995.  The  

constitutional  validity  of  both  the  Constitution  

Amendment  Acts  was  challenged  in  this  Court  in  

several  Writ  Petitions,  including  the  Writ  

Petitions  filed  by  M.  Nagaraj  and  the  All  India  

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Equality  Forum.  The  Constitution  Bench  while  

considering the validity and interpretation as also  

the implementation of the Constitution (77th, 81st,  

82nd and 85th Constitutional Amendment) Acts and the  

effect thereof on the decisions of this Court in  

matters relating to promotion in public employment  

and  their  application  with  retrospective  effect,  

answered  the  reference  by  upholding  the  

constitutional validity of the amendments, but with  

certain conditions.   

44. The vital issue which fell for determination  

was whether by virtue of the implementation of the  

Constitutional Amendments, the power of Parliament  

was enlarged to such an extent so as to ignore all  

constitutional  limitations  and  requirements.  

Applying the “width” test and “identity” test, the  

Constitution  Bench  held  that  firstly  it  is  the  

width of the power under the impugned amendments  

introducing  amended  Articles  16(4-A)  and  16(4-B)  

that had to be tested.  Applying the said tests,  

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the  Constitution  Bench,  after  referring  to  the  

various  decisions  of  this  Court  on  the  subject,  

came to the conclusion that the Court has to be  

satisfied that the State had exercised its power in  

making  reservation  for  Scheduled  Castes  and  

Scheduled Tribes candidates in accordance with the  

mandate  of  Article  335  of  the  Constitution,  for  

which  the  State  concerned  would  have  to  place  

before the Court the requisite quantifiable data in  

each  case  and  to  satisfy  the  Court  that  such  

reservation  became  necessary  on  account  of  

inadequacy  of  representation  of  Scheduled  Castes  

and  Scheduled  Tribes  candidates  in  a  particular  

class or classes of posts, without affecting the  

general  efficiency  of  service.  The  Constitution  

Bench went on to observe that the Constitutional  

equality is inherent in the rule of law.  However,  

it’s reach is limited because its primary concern  

is not with efficiency of the public law, but with  

its enforcement and application.  The Constitution  

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Bench also observed that the width of the power and  

the power to amend together with its limitations,  

would have to be found in the Constitution itself.  

It was held that the extension of reservation would  

depend on the facts of each case.  In case the  

reservation  was  excessive,  it  would  have  to  be  

struck down. It was further held that the impugned  

Constitution Amendments, introducing Article 16(4-

A)  and  16(4-B),  had  been  inserted  and  flow  from  

Article 16(4), but they do not alter the structure  

of Article 16(4) of the Constitution.   They do not  

wipe  out  any  of  the  Constitutional  requirements  

such  as  ceiling  limit  and  the  concept  of  creamy  

layer  on  one  hand  and  Scheduled  Castes  and  

Scheduled Tribes on the other hand, as was held in  

Indra  Sawhney’s  case  (supra).   Ultimately,  after  

the  entire  exercise,  the  Constitution  Bench  held  

that the State is not bound to make reservation for  

Scheduled Castes and Scheduled Tribes candidates in  

matters  of  promotion  but  if  it  wished,  it  could  

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collect quantifiable data touching backwardness of  

the applicants and inadequacy of representation of  

that class in public employment for the purpose of  

compliance with Article 335 of the Constitution.   

45. In  effect,  what  has  been  decided  in  M.  

Nagaraj’s case (supra) is part recognition of the  

views  expressed  in  Virpal  Singh  Chauhan’s  case  

(supra),  but  at  the  same  time  upholding  the  

validity of the 77th, 81st, 82nd and 85th amendments on  

the ground that the concepts of “catch-up” rule and  

“consequential  seniority”  are  judicially  evolved  

concepts and could not be elevated to the status of  

a  constitutional  principle  so  as  to  place  them  

beyond  the  amending  power  of  the  Parliament.  

Accordingly,  while  upholding  the  validity  of  the  

said amendments, the Constitution Bench added that,  

in any event, the requirement of Articles 16(4-A)  

and 16(4-B) would have to be maintained and that in  

order to provide for reservation, if at all, the  

tests  indicated  in  Article  16(4-A)  and  16(4-B)  

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would  have  to  be  satisfied,  which  could  only  be  

achieved after an inquiry as to identity.  

46. The position after the decision in M. Nagaraj’s  

case  (supra)  is  that  reservation  of  posts  in  

promotion  is  dependent  on  the  inadequacy  of  

representation of members of the Scheduled Castes  

and  Scheduled  Tribes  and  Backward  Classes  and  

subject  to  the  condition  of  ascertaining  as  to  

whether such reservation was at all required. The  

view of the High Court is based on the decision in  

M.  Nagaraj’s  case  (supra)  as  no  exercise  was  

undertaken in terms of Article 16(4-A) to acquire  

quantifiable  data  regarding  the  inadequacy  of  

representation of the Schedule Castes and Scheduled  

Tribes  communities  in  public  services.  The  

Rajasthan  High  Court  has  rightly  quashed  the  

notifications dated 28.12.2002 and 25.4.2008 issued  

by  the  State  of  Rajasthan  providing  for  

consequential  seniority  and  promotion  to  the  

members  of  the  Scheduled  Castes  and  Scheduled  

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Tribes communities and the same does not call for  

any  interference.  Accordingly,  the  claim  of  

Petitioners Suraj Bhan Meena and Sriram Choradia in  

Special Leave Petition (Civil) No.6385 of 2010 will  

be  subject  to  the  conditions  laid  down  in  M.  

Nagaraj’s  case  (supra)  and  is  disposed  of  

accordingly.  Consequently,  Special  Leave  Petition  

(C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed  

by the State of Rajasthan, are also dismissed.

47. Having  regard  to  the  nature  of  the  facts  

involved, each party will bear its own cost.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (A.K. PATNAIK)

New Delhi Dated: December 7, 2010

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