Jarnail Singh vs Lachhmi Narain Gupta - Reservation in Promotion Case - Supreme Court Judgement 2022

Jarnail Singh vs Lachhmi Narain Gupta - Reservation in Promotion Case - Supreme Court Judgement 2022

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
Civil Appeal No. 629 of 2022
(Arising out of SLP (C) No. 30621 of 2011)
Jarnail Singh & Ors. …..Appellant (s)
Versus
Lachhmi Narain Gupta & Ors. …..Respondent (s)
W I T H
Civil Appeal No. 630 of 2022
(Arising out of SLP (C) No.31735 of 2011)
Civil Appeal No. 631 of 2022
(Arising out of SLP (C) No. 35000 of 2011)
Civil Appeal No. 632 of 2022
(Arising out of SLP (C) No.2839 of 2012)
Civil Appeal No. 636 of 2022
(Arising out of SLP (C) No. 5859 of 2012)
Civil Appeal No. 635 of 2022
(Arising out of SLP (C) No. 5860 of 2012)
1 | P a g e
Civil Appeal No. 633 of 2022
(Arising out of SLP (C) No. 4831 of 2012)
Civil Appeal No. 637 of 2022
(Arising out of SLP (C) No. 30841 of 2012)
Civil Appeal No. 638 of 2022
(Arising out of SLP (C) No. 6915 of 2014)
Civil Appeal No. 642 of 2022
(Arising out of SLP (C) No. 23344 of 2014)
Civil Appeal No. 753 of 2022
(Arising out of SLP (C) No. 1332 of 2022)
 (D. No. 35818 of 2017)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No. 30694 of 2018)
Civil Appeal Nos. 643-644 of 2022
(Arising out of SLP (C) Nos.23339-23340 of 2014)
Civil Appeal No. 646 of 2022
(Arising out of SLP (C) No. 21343 of 2015)
Civil Appeal Nos. 703-704 of 2022
(Arising out of SLP (C) Nos. 14549-14550 of 2019)
Civil Appeal No. 735 of 2022
(Arising out of SLP (C) No. 845 of 2020)
Civil Appeal No. 645 of 2022
(Arising out of SLP (C) No. 33163 of 2014)
Civil Appeal No. 713 of 2022
(Arising out of SLP (C) No. 25756 of 2019)
2 | P a g e
Civil Appeal No. 648 of 2022
(Arising out of SLP (C) No. 31191 of 2015)

Civil Appeal Nos. 4876-4877 of 2017
Civil Appeal Nos. 4878-4879 of 2017
Civil Appeal No. 4880 of 2017
Civil Appeal No. 4881 of 2017
Civil Appeal No.4882 of 2017
Civil Appeal No.11817 of 2016
Civil Appeal No.11816 of 2016
Civil Appeal No. 11820 of 2016
Civil Appeal No. 651 of 2022
(Arising out of SLP (C) No. 31240 of 2016)
Civil Appeal No. 4833 of 2017
Civil Appeal Nos.701-704 of 2017
Civil Appeal Nos. 11822-11825 of 2016
Civil Appeal Nos.11837-11840 of 2016
Civil Appeal Nos.11842-11845 of 2016
Civil Appeal Nos. 11829-11832 of 2016
Civil Appeal Nos. 11847-11850 of 2016
3 | P a g e
Civil Appeal No.11828 of 2016
Contempt Petition (C) No.13 of 2017
In
Civil Appeal Nos.4562-4564 of 2017
Civil Appeal No. 734 of 2022
(Arising out of SLP (C) No. 626 of 2020)
Civil Appeal Nos. 724-727 of 2022
(Arising out of SLP (C) No. 28164-28167 of 2019)
Civil Appeal No. 736 of 2022
(Arising out of SLP (C) No.851 of 2020)
Contempt Petition (C) No.11 of 2017
In
Civil Appeal Nos.4562-4564 of 2017
Civil Appeal Nos.4562-4564 of 2017
Contempt Petition (C) No.314 of 2016
In
SLP (C) No.4831 of 2012
Civil Appeal No.5247 of 2016
T.P.(C) Nos. 608-609 of 2017
Civil Appeal No. 652 of 2022
(Arising out of SLP (C) No.10638 of 2017)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (CC No. 6821 of 2017)
4 | P a g e
Civil Appeal No. 656 of 2022
(Arising out of SLP (C) No. 18844 of 2017)
Civil Appeal Nos. 654-655 of 2022
(Arising out of SLP (C) Nos. 19422-19423 of 2017)
Civil Appeal No. 647 of 2022
(Arising out of SLP (C) No.25191 of 2015)
Civil Appeal No. 649 of 2022
(Arising out of SLP (C) No.33688 of 2015)
Civil Appeal No. 650 of 2022
(Arising out of SLP (C) No.31425 of 2016)
Civil Appeal No. 653 of 2022
(Arising out of SLP (C) No.17491 of 2017)
Civil Appeal No. 657 of 2022
(Arising out of SLP (C) No.24681 of 2017)
Civil Appeal No. 663 of 2022
(Arising out of SLP (C) No. 32944 of 2017)
Civil Appeal No. 754 of 2022
(Arising out of SLP (C) No. 1336 of 2022)
 (D. No. 28776 of 2017)
Civil Appeal No. 755 of 2022
(Arising out of SLP (C) No. 1338 of 2022)
 (D. No. 29066 of 2017)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No. 30189 of 2017)
5 | P a g e
Civil Appeal No. 752 of 2022
(Arising out of SLP (C) No. 1202 of 2022)
 (D. No. 31145 of 2017)
Civil Appeal Nos. 659-660 of 2022
(Arising out of SLP (C) Nos. 28446-28447 of 2017)
Civil Appeal No. 658 of 2022
(Arising out of SLP (C) No.28306 of 2017)
Civil Appeal Nos. 683-694 of 2022
(Arising out of SLP (C) Nos.13993-14004 of 2019)
Civil Appeal No. 661 of 2022
(Arising out of SLP (C) No. 30942 of 2017)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No. 33488 of 2017)


 Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No. 34271 of 2017)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.34520 of 2017)
Civil Appeal Nos. 695-702 of 2022
(Arising out of SLP (C) Nos.14105-14112 of 2019)


Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No. 35577 of 2017)
6 | P a g e
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No. 36305 of 2017)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.36377 of 2017)
Civil Appeal No. 662 of 2022
(Arising out of SLP (C) No.31288 of 2017)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.38895 of 2017)
Civil Appeal No. 677 of 2022
(Arising out of SLP (C) No. 13719 of 2019)
Civil Appeal No. 678 of 2022
(Arising out of SLP (C) No. 13720 of 2019)
Civil Appeal No. 670 of 2022
(Arising out of SLP (C) No. 28842 of 2018)
Civil Appeal No. 671 of 2022
(Arising out of SLP (C) No. 28844 of 2018)
Civil Appeal No. 679 of 2022
(Arising out of SLP (C) No.13721 of 2019)
Civil Appeal No. 672 of 2022
(Arising out of SLP (C) No. 28846 of 2018)
Civil Appeal No. 673 of 2022
(Arising out of SLP (C) No. 28847 of 2018)
7 | P a g e
Civil Appeal No. 674 of 2022
(Arising out of SLP (C) No. 28848 of 2018)
Civil Appeal Nos. 707-708 of 2022
(Arising out of SLP (C) Nos. 21309-21310 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.28194 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No. 34750 of 2018)
Civil Appeal Nos. of 2022
(Arising out of SLP (C) Nos.27951-27959 of 2019)
Civil Appeal Nos. 681-682 of 2022
(Arising out of SLP (C) Nos.13974-13975 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.41552 of 2018)
Civil Appeal No. 666 of 2022
(Arising out of SLP (C) No.18925 of 2018)
Civil Appeal Nos. of 2022
(Arising out of SLP (C) Nos. of 2022)
 (D. No.22349 of 2018)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.22985 of 2018)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.23907 of 2018)
8 | P a g e
Civil Appeal Nos. of 2022
(Arising out of SLP (C) Nos.27401-27402 of 2018)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.30693 of 2018)
Contempt Petition (C) No.985 of 2018
In
Civil Appeal No.5247 of 2016
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.24594 of 2018)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.14611 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.39571 of 2018)
Civil Appeal Nos. of 2022
(Arising out of SLP (C) Nos.5724-5725 of 2019)
Civil Appeal Nos. of 2022
(Arising out of SLP (C) Nos.10551-10553 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.18314 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.21364 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.20777 of 2019)
9 | P a g e
Civil Appeal No. of 2022
(Arising out of SLP (C) No.22246 of 2019)
Contempt Petition (C) No.1067 of 2019
In
SLP (C) No.30621 of 2011
Civil Appeal Nos. of 2022
(Arising out of SLP (C) No. 110-215 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.26891 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 29159 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.29152 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 571 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.29150 of 2019)
Writ Petition (C) No. 1371 of 2019
Civil Appeal No. of 2022
(Arising out of SLP (C) No.29234 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 920 of 2020)
Civil Appeal No.1004 of 2020
Civil Appeal No.2434 of 2019
10 | P a g e
Civil Appeal No. 664 of 2022
(Arising out of SLP (C) No. 1132 of 2018)
Civil Appeal Nos. of 2022
(Arising out of SLP (C) Nos.2395-2396 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. of 2022)
 (D. No.43894 of 2019)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 887 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 609 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 7332 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 6834 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 8066 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 8588 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.15749 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No.15148 of 2020)
Civil Appeal No. of 2022
(Arising out of SLP (C) No. 639 of 2021)
11 | P a g e
Civil Appeal No. of 2022
(Arising out of SLP (C) No.3684 of 2021)
Contempt Petition (C) Nos.200-201 of 2021
In
SLP (C) Nos.5724-5725 of 2019
Contempt Petition (C) Nos.211-212 of 2021
In
Civil Appeal No.5247 of 2016
Writ Petition (C) No. 882 of 2021
Contempt Petition (C) Nos.378-379 of 2021
In
Civil Appeal Nos.11837-11840 of 2016
J U D G M E N T
L. NAGESWARA RAO, J.
1. Leave granted.
2. Reservation of 27 per cent in favour of backward
classes was the subject matter of dispute in Indra
Sawhney & Ors. v. Union of India & Ors.
1
. This Court
was of the opinion that Article 16(4) of the Constitution of
India does not provide for reservation in the matter of
promotions. It was clarified that the judgment shall have
1 1992 Supp (3) SCC 217
12 | P a g e
prospective operation and shall not affect the promotions
already made, whether made on regular or on any other
basis. Reservation provided in the matter of promotions in
the Central services or State services were directed to be
continued for a period of five years from the date of the
judgment.
3. By the Constitution (Seventy-seventh Amendment)
Act, 1995, which came into force on 17.06.1995, Article 16
of the Constitution was amended by insertion of Article
16(4-A), which then read as below:-
“Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion to any
class or classes 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”.
4. The above amendment was made in view of the
State’s opinion that representation of the Scheduled Castes
and the Scheduled Tribes (“SCs” and “STs”) in services in
the States had not reached the required level and that it
was necessary to continue the existing dispensation by
providing reservation in promotions. Therefore, the
Government decided to continue the existing policy of
13 | P a g e
reservation in promotions for the SCs and the STs, according
to the Statement of Objects and Reasons of the Constitution
(Seventy-seventh Amendment) Act, 1995.
5. In Union of India & Ors. v. Virpal Singh Chauhan
& Ors.
2
, this Court held that roster-point promotees who
were given the benefit of accelerated promotion would not
get consequential seniority. As the Government was of the
opinion that the concept of “catch-up” rule was not in the
interest of SCs and STs in the matter of seniority on
promotion, Article 16(4-A) was further amended by the
Constitution (Eighty-fifth Amendment) Act, 2001 to give the
benefit of consequential seniority in addition to accelerated
promotion. At present, Article 16(4-A) reads as follows:-
“(4-A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of
promotion, with consequential seniority, to any class or
classes 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. A number of vacancies which were reserved for SCs
and STs could not be filled up due to non-availability of
2 (1995) 6 SCC 684
14 | P a g e
candidates belonging to these categories. Such of these
vacancies which were not filled up were treated as “backlog
vacancies” and were carried forward. In Indra Sawhney
(supra), this Court held that reservations contemplated in a
year under Article 16(4) shall not exceed 50 per cent. In
practice, backlog vacancies were not included within the
ceiling of 50 per cent reservation in a year. An office
memorandum was issued on 29.08.1997 making the 50 per
cent limit applicable to current as well as backlog vacancies,
in accordance with Indra Sawhney (supra). Thereafter,
several representations were made to the Central
Government about the injustice that would be caused to the
members of SCs and STs in view of the office memorandum
dated 29.08.1997, which led to a further amendment to
Article 16 of the Constitution of India, by insertion of Article
16(4-B) by the Constitution (Eighty-first Amendment) Act,
2000. Article 16(4-B) reads as under: -
“(4-B) Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or
clause (4-A) as a separate class of vacancies to be filled up
in any succeeding year or years and such class of vacancies
15 | P a g e
shall not be considered together with the vacancies of the
year in which they are being filled up for determining the
ceiling of fifty per cent reservation on total number of
vacancies of that year.”

7. The validity of the above amendments made to Article
16 (4) was considered by this Court in M. Nagaraj & Ors.
v. Union of India & Ors.
3
. The key issue that was
identified and decided in M. Nagaraj (supra) is whether any
constitutional limitation mentioned in Article 16(4) and
Article 335 stood obliterated by the constitutional
amendments resulting in Articles 16(4-A) and 16(4-B). This
Court upheld the constitutional amendments. The
amendments were held to be enabling provisions. This
Court observed that the State is not bound to make
reservation for SCs and STs in matters of promotion.
However, if it wishes to exercise its discretion, the State has
to collect quantifiable data showing the backwardness of the
class and inadequacy of representation of that class in
public employment, in addition to compliance with Article
335 of the Constitution of India.
3 (2006) 8 SCC 212
16 | P a g e
8. This Court in State of Tripura & Ors. v. Jayanta
Chakraborty & Ors.
4
referred M. Nagaraj (supra) to a
larger bench for reconsideration. Further, in State of
Maharashtra & Anr. v. Vijay Ghogre & Ors.
5
, this Court
thought it appropriate that the request for reconsideration
of the judgment in M. Nagaraj (supra) should be heard by a
constitution bench. The request made for referring M.
Nagaraj (supra) to a seven-judge bench was not
entertained by this Court in Jarnail Singh & Ors. v.
Lachhmi Narain Gupta & Ors.
6
. However, the conclusion
arrived at in M. Nagaraj (supra) relating to collection of
quantifiable data showing backwardness of the SCs and the
STs was held to be invalid as the same was contrary to a
larger bench judgment of this Court in Indra Sawhney
(supra), wherein it had been held by the Court that
conditions of social and educational backwardness are
presumed to be satisfied in case of SCs and STs as they are
identified and grouped as such because of prior
discrimination and its continuing ill effects. The Court
rejected the remaining grounds of challenge to the decision
4 (2018) 1 SCC 146
5 (2018) 17 SCC 261
6 (2018) 10 SCC 396
17 | P a g e
in M. Nagaraj (supra) and reiterated that the State has to
collect quantifiable data regarding inadequate
representation of SCs and STs in the services of the State, if
reservation is sought to be provided in promotions.
9. In the meanwhile, some High Courts have dealt with
matters where reservation in promotions provided by the
Central Government and the State Governments to SCs and
STs have been assailed as being violative of the law laid
down by this Court in M. Nagaraj (supra). The judgments
of the High Courts have been challenged before this Court.
In view of the broad similarities in the issues involved, all
the cases were tagged together. On 18.01.2021, a
direction was given to the Advocates-on-Record appearing
for each State to submit a note to the learned Attorney
General for India, identifying the issues involved in their
respective cases. The learned Attorney General for India
was requested to hold a conference with the counsel
appearing in the matters to finalise the issues for
determination and a list of issues with reference to each
State was directed to be prepared thereafter. A note was
18 | P a g e
submitted by the learned Attorney General formulating
issues that arise for our consideration.
10. When the matter was listed for hearing on 14.09.2021,
it was made clear that this Court would not entertain any
arguments for reconsideration of the law laid down by this
Court in M. Nagaraj (supra) as a constitution bench in
Jarnail Singh (supra) had rejected such a request. This
Court was informed that the cases in this batch of matters
can be bifurcated into eleven categories. As the common
issues that have been raised could be decided without
reference to the facts of each case, the learned counsel
appearing for the parties were requested to make
submissions on the issues that had been identified by the
learned Attorney General. After considering the issues
identified by the learned Attorney General and other learned
counsel and hearing them, the following six points are
formulated for determination:-
1)What is the yardstick by which, according to M.
Nagaraj (supra), one would arrive at quantifiable
data showing inadequacy of representation of SCs
and STs in public employment?
19 | P a g e
2)What is the unit with respect to which quantifiable
data showing inadequacy of representation is
required to be collected?
3)Whether proportion of the population of SCs and STs
to the population of India should be taken to be the
test for determining adequacy of representation in
promotional posts for the purposes of Article 16(4-A)?
4)Should there be a time period for reviewing
inadequacy of representation?
5)Whether the judgment in M. Nagaraj (supra) can be
said to operate prospectively?
6)Whether quantifiable data showing inadequacy of
representation can be collected on the basis of
sampling methods, as held by this Court in B.K.
Pavitra & Ors. v. Union of India & Ors.
7
(“B.K.
Pavitra II”)?
1) YARDSTICK FOR ARRIVING AT QUANTIFIABLE DATA
11. Articles 16(4) and 16(4-A) are enabling provisions. It
was held in M. Nagaraj (supra) that the discretion of the
State to provide reservation is subject to the existence of
7 (2019) 16 SCC 129
20 | P a g e
backwardness and inadequacy of representation in public
employment. It was further held that backwardness has to
be based on objective factors whereas inadequacy has to
factually exist. There is no fixed yardstick to identify
equality, justice and efficiency which are variable factors
and it depends on the facts and circumstances of each case.
This Court was of the further opinion that the concepts of
efficiency, backwardness, inadequacy of representation are
required to be identified and measured on the basis of data.
In case of a challenge made to reservations provided by the
State Government, it is incumbent on the State Government
to satisfy the Court that the decision is supported by
quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public
employment, in addition to compliance with Article 335 of
the Constitution of India.
12. The exercise of identifying and measuring concepts of
efficiency, backwardness and inadequacy of representation
on the basis of data depends on numerous factors. It is for
this reason that the enabling provisions are required to be
made because each competing claim seeks to achieve
21 | P a g e
certain goals. How best one should optimise these
conflicting claims can only be done by the administration in
the context of local prevailing conditions in public
employment. 8
13. The learned Attorney General argued before this Court
in Jarnail Singh (supra) that this Court did not indicate any
test for determining adequacy of representation in service in
M. Nagaraj (supra). He submitted that it is important to
decide the yardstick applicable for arriving at quantifiable
data showing inadequacy of representation of SCs and STs
to avoid multiple litigation. This Court refused to lay down
any criteria for determining the adequacy of representation,
as the States were given liberty to determine the factors
relevant for deciding adequate representation, depending
upon the promotional posts in question.
14. It is well-established that it is neither legal nor proper
for the Courts to issue directions or advisory sermons to the
executive in respect of the sphere which is exclusively
within their domain under the Constitution9
. In Asif
8 Uttar Pradesh Power Corporation Limited v. Rajesh Kumar & Ors. (2012) 7 SCC 1
9 Mallikarjuna Rao & Ors. v. State of Andhra Pradesh & Ors. (1990) 2 SCC 707
22 | P a g e
Hameed & Ors. v. State of Jammu & Kashmir & Ors.
10
,
this Court observed as under: -
“When a State action is challenged, the function of the court
is to examine the action in accordance with law and to
determine whether the legislature or the executive has
acted within the powers and functions assigned under the
Constitution and if not, the court must strike down the
action. While doing so the court must remain within its selfimposed limits. The court sits in judgment on the action of a
coordinate branch of the Government. While exercising
power of judicial review of administrative action, the court is
not an Appellate Authority. The Constitution does not permit
the court to direct or advise the executive in matters of
policy or to sermonize qua any matter which under the
Constitution lies within the sphere of legislature or
executive…”.
15. In P. Ramachandra Rao v. State of Karnataka
11
, R.
C. Lahoti, J. referred to a monograph “Judicial Activism and
Constitutional Democracy in India” by T.R. Andhyarujina, in
his judgment. While lauding judicial activism, a note of
caution was sounded in the said monograph to the effect
that the Supreme Court should leave “the decision-making
to other branches of government after directing their
attention to the problems rather than itself entering into the
remedial field”. The following sentences from the
10 1989 Supp (2) SCC 364
11 (2002) 4 SCC 578
23 | P a g e
monograph are very well borne out in this particular
context: “…courts lack the facilities to gather detailed data
or to make probing enquiries. Reliance on advocates who
appear before them for data is likely to give them partisan
or inadequate information. On the other hand if courts have
to rely on their own knowledge or research it is bound to be
selective and subjective. … Moreover, since courts mandate
for isolated cases, their decrees make no allowance for the
differing and varying situations which administrators will
encounter in applying the mandates to other cases.”
16. Determination of inadequate representation of SCs and
STs in services under a State is left to the discretion of the
State, as the determination depends upon myriad factors
which this Court cannot envisage. A conscious decision was
taken by this Court in M. Nagaraj (supra) and Jarnail
Singh (supra) to leave it to the States to fix the criteria for
determining inadequacy of representation. The submission
of the learned Attorney General for India that this Court has
to lay down the yardstick for measuring adequacy of
representation did not yield a favourable result as this Court
in Jarnail Singh (supra) found it befitting for the States to
24 | P a g e
have the liberty to evaluate the representation of SCs and
STs in public employment. Laying down of criteria for
determining the inadequacy of representation would result
in curtailing the discretion given to the State Governments.
In addition, the prevailing local conditions, which may
require to be factored in, might not be uniform. Moreover,
in M. Nagaraj (supra), this Court made it clear that the
validity of law made by the State Governments providing
reservation in promotions shall be decided on a case-to-case
basis for the purpose of establishing whether the
inadequacy of representation is supported by quantifiable
data. Therefore, we are of the opinion that no yardstick can
be laid down by this Court for determining the adequacy of
representation of SCs and STs in promotional posts for the
purpose of providing reservation.
2) UNIT FOR COLLECTING QUANTIFIABLE DATA
17. Seniority of Superintending Engineers in the Irrigation
Department of the State of Punjab was the subject matter of
a writ petition filed under Article 32 of the Constitution of
India in R.K. Sabharwal & Ors. v. State of Punjab &
Ors.
12
. The relevant instructions issued by the State of
12 (1995) 2 SCC 745
25 | P a g e
Punjab provided for 14 per cent reservation for SCs. Two
points came up for consideration before this Court in the
said judgment, the first being that in case more than 14 per
cent of the Scheduled Caste candidates are
appointed/promoted in a cadre on their own merit/seniority,
then the purpose of reservation having been achieved in the
said cadre, the Government instructions providing
reservations would become inoperative. The second point
on which arguments were heard is that roster cannot
operate once the posts earmarked for the SCs, STs and
Backward Classes are filled. Any post falling vacant in a
cadre, thereafter, is to be filled from the category - reserved
or general - due to retirement etc. of whose member the
post fell vacant. The first point raised by general category
candidates was rejected by this Court by holding that
reserved category candidates can compete for non-reserved
posts and in the event of their appointment to the said
posts, their number cannot be added and taken into
consideration for working out the percentage of reservation.
This Court was of the opinion that Article 16(4) of the
Constitution of India enables the State Government to make
26 | P a g e
provision for reservation in favour of any Backward Class of
citizens which, in the opinion of the State is not adequately
represented in the services. The percentage of posts
reserved for Backward Classes, as prescribed by the State,
has to be strictly followed and cannot be varied or changed
simply because some members of the Backward Class have
already been appointed/promoted against the general seats.

18. The second point relates to the implementation of the
roster in the form of “running account” year to year. Roster
points were fixed in a lot of 100 posts. This Court held that
once 14 per cent posts earmarked in the roster are filled up,
the result envisaged by the instructions is achieved.
Thereafter, there is no justification for operating the roster.
This Court observed that the “running account” is to operate
only till the quota provided by the instructions is reached
and not thereafter. The vacancies arising in the cadre, after
the initial posts are filled, will have to be filled from amongst
the category to which the post belonged in the roster.
19. In M. Nagaraj (supra), this Court observed that the
appropriate Government has to apply cadre strength as a
unit in the operation of the roster in order to ascertain
27 | P a g e
whether a given class/group is adequately represented in
the service. Cadre strength as a unit also ensures that the
upper ceiling limit of 50 per cent is not violated. Following
the law laid down in R.K. Sabharwal (supra), this Court in
M. Nagaraj (supra) further held that the roster has to be
post-specific and not vacancy based.
20. In M. Nagaraj (supra), this Court held that it is open
to the State to provide for reservation in promotions subject
to limitation that there must exist compelling reasons for
backwardness, inadequacy of representation in a class of
post(s) keeping in mind the overall administrative efficiency.
While referring to the roster, this Court observed that the
appropriate Government has to apply the cadre strength as
a unit in the operation of the roster in order to ascertain
whether a given class/group is adequately represented in
the service. Collection of quantifiable data regarding
inadequacy of representation as stipulated by M. Nagaraj
(supra) is relatable to the cadre concerned, according to
Jarnail Singh (supra).
21. While it is clear that the unit for collection of
quantifiable data is with respect to a cadre, it is necessary
28 | P a g e
to understand what cadre means. For a better appreciation,
it would be profitable to relate to the historical background
of the concerned rules applicable to services under the
Centre as well as the states. In exercise of the powers
conferred by sub-section (2) of Section 96B of the
Government of India Act, 1919, the Secretary of State in
Council made the Civil Services (Classification, Control and
Appeal) Rules, 1930. Public services in India were classified
as per Rule 14 of the said Rules in the following manner: (i)
the all India Services; (ii) the Central Services, Class-I; (iii)
the Central Services, Class-II; (iv) the Provincial Services; (v)
the Specialist Services; and (vi) the Subordinate Services.
The First Central Pay Commission considered the
classification of services to “secure fair treatment to the
employees on the basis of their services to Government, fair
return to the Government for the salary paid to its
employees, and relative fairness to employees in different
kinds of position on the basis of the nature of the duties
performed”. According to the Report of the First Central Pay
Commission, the Central Services were broadly divided into
four categories, i.e., Class I, Class II, Subordinate Services
29 | P a g e
and Inferior Services. After taking note of some objections
regarding the use of the words “subordinate” and “inferior”
as being derogatory, the First Central Pay Commission
recommended that those categories be referred to as Class
III and Class IV. The classification of the Civil Services of the
Union of India as per the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 (“CCA
Rules, 1965”) is: (1) Central Civil Services, Class I; (2)
Central Civil Services; Class II; (3) Central Civil Services,
Class III; and (4) Central Civil Services, Class IV. Rule 4 of
the said Rules provides that a particular class can comprise
of different grades. All civil posts under the Union were
reclassified from ‘Class’ to ‘Group’ by way of the notification
of the Government of India in the Department of Personnel
and Administrative Reforms number S.O. 5041 dated
11.11.1975 and as recorded in Rule 6-A of the CCA Rules,
1965. Thereafter, the Central Civil Services/the Central Civil
Posts were organised into Group ‘A’, Group ‘B’, Group ‘C’
and Group ‘D’. The present structure of the Central Civil
Services is that a particular Service is divided across
Groups, which further consist of grades.
30 | P a g e
22. During the course of the hearing, the Union of India
has filed an affidavit informing this Court of the compliance
of the conditions prescribed in M. Nagaraj (supra) before
making reservation in promotions in services under the
Centre. The Union of India referred to an Office
Memorandum dated 02.07.1997, which heavily relied on
R.K. Sabharwal (supra), wherein this Court had held that
the cadre-strength is always measured by the number of
posts comprising the cadre. Right to be considered for
appointment can only be claimed in respect of a post in a
cadre. As a consequence, the percentage of reservation has
to be worked out in relation to the number of posts which
form the cadre-strength. The Union of India has brought to
the notice of this Court that there are around 90
Ministries/Departments under the Government of India in
which 30 lakh employees are working. Referring to
information received from 44 Ministries/Departments out of
the 90, the Union of India has stated that there are around
3800 cadres. We were also apprised of the fact that
instructions have been in existence since 2013 for
appointment of an officer of the rank of Deputy Secretary to
31 | P a g e
the Government of India as a Liaison Officer, who is
responsible for ensuring compliance of the instructions on
reservation. According to the affidavit filed by the Union of
India, thousands of reservation rosters are being maintained
in the various offices/units/sub-units of the Departments and
Ministries in the Government of India. Office Memorandum
dated 02.07.1997 issued by the Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and
Training, Government of India contains principles for
preparing the rosters. According to para 4(c) of the said
Office Memorandum, “cadre”, for the purpose of a roster,
shall mean a particular grade and shall comprise the
number of posts to be filled by a particular mode of
recruitment in terms of the applicable recruitment rules.
Explanatory Notes which are appended to the Office
Memorandum dated 02.07.1997 elaborate the principles for
making and operating post-based rosters. Para 5 of the
Explanatory Notes reads as follows:
“While cadre is generally to be construed as the number of
posts in a particular grade, for the purpose of preparation of
roster, it shall comprise posts required to be filled by a
particular mode of recruitment in terms of the applicable
recruitment rules. To illustrate, in a cadre comprising 200
32 | P a g e
posts, where the recruitment rules prescribe a ratio of 50:50
for direct recruitment and promotions, the roster for direct
recruitment shall have 100 points and that for promotion
shall have 100 points – thus making a total of 200.”
23. The Union of India has filed the prevalent service rules
of the States of Andhra Pradesh, Uttar Pradesh, West
Bengal, Rajasthan, Madhya Pradesh, Punjab and Himachal
Pradesh for the purpose of demonstrating the
implementation of reservation in promotions in services
under these States. Rule 2(8) of the Andhra Pradesh State
and Subordinate Services Rules, 1996 defines “cadre” as
posts in various classes, categories and grades in a service.
“Service” has been defined in Rule 2(30) as a post or a
group of posts or categories of posts classified by the State
Government as State or Subordinate Service, as the case
may be. Rule 22 which deals with Special Representation
(Reservation) empowers the State Government to make a
provision for reservation in promotions. The said Rule refers
to the implementation of a 100-point roster for promotion to
the next higher category. It would be relevant to refer to the
reservation policy of the State of Punjab according to which
reservation for SCs and STs is on the basis of roster registers
33 | P a g e
maintained for each category of posts. The State of
Himachal Pradesh has decided to provide reservation in
promotions by following the Explanatory Notes to the Office
Memorandum issued by the Government of India dated
02.07.1997.
24. It would be relevant to refer to the judgments of this
Court which have dealt with the scope of the expression
“cadre”. Rule 4(2) of the Central Engineering Service, Class
I, Recruitment Rules, 1954 provided that 75% of the
vacancies in the grade of Executive Engineer, Class I shall
be filled by promotion from Assistant Executive Engineers,
Class I. Interpreting the words “vacancies in the grade of
Executive Engineer”, this Court in A.K. Subraman & Ors.
v. Union of India & Ors.
13
 held that the word “grade” is
used in the sense of cadre. The dispute that arose for
consideration of this Court in Dr Chakradhar Paswan v.
State of Bihar & Ors.
14
 relates to the posts of Director and
three Deputy Directors in the Directorate of Indigenous
Medicines, Department of Health, State of Bihar being
grouped together for the purpose of implementing the
13 (1975) 1 SCC 319
14 (1988) 2 SCC 214
34 | P a g e
policy of reservation under Article 16(4) of the Constitution
of India. This Court was of the opinion that though the
Director and three Deputy Directors are Class I posts, the
posts of Director and Deputy Directors do not constitute one
‘cadre’. It was held that the term “cadre” has a definite
legal connotation in service jurisprudence. This Court
referred to Fundamental Rule 9(4) which defines the word
“cadre” to mean the strength of a service or part of a
service sanctioned as a separate unit. It was observed that
as the post of Director is the highest post in the Directorate
of Indigenous Medicines for which a higher pay scale is
prescribed in comparison to Deputy Directors, who are
entitled to a lower scale of pay, they constitute two distinct
cadres or grades. This Court further expressed its view that
it is open to the Government to constitute as many cadres in
any particular service as it may choose, according to
administrative convenience and expediency. This Court
concluded that the post of Director and Deputy Directors
constitute different cadres in the service.
25. In K. Manickaraj v. Union of India
15
, the appellant
was a Welfare Inspector, Grade III belonging to Scheduled
15 (1997) 4 SCC 342
35 | P a g e
Caste category. He claimed promotion to Grade II by
contending that four posts were reserved for Scheduled
Castes as there were 26 Grade II posts. The Respondent
contended that there were only 23 Grade II posts as three
Grade III posts which were temporarily upgraded to Grade II
did not form part of the cadre strength of Grade II
Inspectors. While allowing the appeal of K. Manickaraj, this
Court recognized that promotions take place from one grade
to a higher grade, with the cadre strength for the purpose of
providing reservation in such promotion to be the total
number of posts available in the grade to which promotion
was sought. The meaning of “cadre” fell for consideration of
this Court again in Union of India v. Pushpa Rani &
Ors.
16
. “Cadre” in the 1985 edition of the Railway
Establishment Code is defined as the strength of a service
or a part of a service sanctioned as a separate unit. This
Court held that the posts sanctioned in different grades
would constitute independent cadres, even for the purpose
of implementing the roster. The reason for giving an
enlarged meaning to the term “cadre” was that the posts in
the railway establishment are sanctioned with reference to
16 (2008) 9 SCC 242
36 | P a g e
grades. Even temporary, work-charged, supernumerary and
shadow posts created in different grades can constitute part
of the cadre.
26. It is relevant to refer to another judgment of this Court
in State of Rajasthan v. Fateh Chand Soni
17
, wherein
the meaning of “promotion” was looked into. This Court
held that ‘promotion’ not only covered advancement to
higher position or rank but also implied advancement to a
higher grade. Whether the officers serving in Arms, Arms
Support and Services comprise a single cadre for purposes
of promotion was the question adjudicated by this Court in
Union of India & Anr. v. Lieutenant Colonel P.K.
Choudhary & Ors.
18
. This Court held that they do not
constitute a single cadre, even though they might be
drawing the same salary, holding the same rank, wearing
the same uniform and serving the same employer with
similar service benefits. As the officers were allocated to
different Arms and Services which put them in distinct
cadres, with promotional avenues being made available
against the posts comprising that cadre alone, there cannot
17 (1996) 1 SCC 562
18 (2016) 4 SCC 236
37 | P a g e
be constitution of a common cadre. This Court referred to
an earlier judgment in Sub-Inspector Rooplal & Anr. v.
Lt. Governor & Ors.
19
 in which it was held that
equivalence of two posts is not judged by the sole factor of
equal pay. There are four factors in that regard, namely: (i)
the nature and duties of the post, (ii) the responsibilities and
powers exercised by the officer holding a post; the extent of
territorial or other charge held or responsibilities discharged;
(iii) the minimum qualifications, if any, prescribed for
recruitment to the post; and (iv) the salary of the post. This
Court, in Lieutenant Colonel P.K. Choudhary (supra),
was of the further opinion that transferability or
interchangeability of one incumbent to another in the cadre
are essential attributes of a common cadre.
27. In R.K. Sabharwal (supra), this Court held that the
right to be considered for appointment can only be claimed
in respect of a post in a cadre and that the concept of
'vacancy' has no relevance in operating the percentage of
reservation. It was further held that the cadre strength is
always measured by the number of posts comprising the
cadre.
19 (2000) 1 SCC 644
38 | P a g e
28. It is clear from the above statutory regime and the law
laid down by this Court that civil posts under the
Government are organised into different services. A service
constitutes ‘classes’/ ‘groups’ of posts. A ‘class’/‘group’ is
further bifurcated into grades. Though the nomenclature
might be different, the structure of services under the Union
and the States is similar. According to the instructions
issued by the Union of India, cadres are constituted for each
grade. At the cost of repetition, the Union of India
submitted that there are 3800 cadres in 44
Ministries/Departments. Fundamental Rule 9(4) defines
“cadre” to mean the strength of a service or part of a
service sanctioned as a separate unit. It is the choice of a
State to constitute cadres. The entire service cannot be
considered to be a cadre for the purpose of promotion from
one post to a higher post in a different grade. Promotion is
made from one grade to the next higher grade, in relation to
which cadres are constituted. This Court in Dr Chakradhar
Paswan (supra) has categorically stated that the post of
Director and Deputy Director cannot form one cadre. A
39 | P a g e
cadre is constituted by the Government by taking into
account several factors within its sole discretion.
29. In the Office Memorandum dated 02.07.1997, the
Union of India set out the principles for making and
operating post-based rosters, in which it has been expressly
stated that cadre is to be construed as the number of posts
in a particular grade. It is made clear that rosters have
been prepared grade-wise which are reviewed on a yearly
basis and that reservation in promotions is implemented on
the basis of these rosters, which operate grade-wise. In M.
Nagaraj (supra), this Court approved that the percentage of
reservation in promotions was to be applied to the entire
cadre strength, as held in R.K. Sabharwal (supra). While
doing so, this Court in M. Nagaraj (supra) made it clear
that the unit for operation of the roster would be the cadre
strength. Before providing for reservation in promotions to
a cadre, the State is obligated to collect quantifiable data
regarding inadequacy of representation of SCs and STs.
Collection of information regarding inadequacy of
representation of SCs and STs cannot be with reference to
the entire service or ‘class’/‘group’ but it should be relatable
40 | P a g e
to the grade/category of posts to which promotion is sought.
Cadre, which should be the unit for the purpose of collection
of quantifiable data in relation to the promotional post(s),
would be meaningless if data pertaining to representation of
SCs and STs is with reference to the entire service.
3) PROPORTIONATE REPRESENTATION AS TEST OF
ADEQUACY
30. In R.K. Sabharwal (supra), it was observed that State
Governments may take the total population of a particular
Backward Class and its representation in the State services
for the purpose of coming to a conclusion that there is
inadequate representation in the State services. In M.
Nagaraj (supra), this Court was of the considered view that
the exercise of collecting quantifiable data depends on
numerous factors, with conflicting claims to be optimised by
the administration in the context of local prevailing
conditions in public employment. As equity, justice and
efficiency are variable factors and are context-specific, how
these factors should be identified and counter-balanced will
depend on the facts and circumstances of each case. The
attempt of the learned Attorney General for India to impress
41 | P a g e
upon this Court that the proportion of SCs and STs in the
population of India should be taken as the test for
determining whether they are adequately represented in
promotional posts, did not yield results. This Court in
Jarnail Singh (supra) found no fault with M. Nagaraj
(supra) regarding the test for determining the adequacy of
representation in promotional posts in the State. While
emphasising the contrast in the language used between
Article 330 and Articles 16(4-A) and 16(4-B) of the
Constitution, this Court declined the invitation of the learned
Attorney General for India to hold that the proportion of SCs
and STs to the population of India should be the test for
determining inadequacy of representation in promotional
posts. Therefore, we are not persuaded to express any
opinion on this aspect. It is for the State to assess the
inadequacy of representation of SCs and STs in promotional
posts, by taking into account relevant factors.
4) TIME PERIOD FOR REVIEW
31. There is near unanimity amongst the counsel for both
sides that the data collected to establish inadequacy of
representation, which forms the basis for providing
42 | P a g e
reservation for promotions, should be reviewed periodically.
Ms. Indira Jaising, learned Senior Counsel appearing for
members of the reserved categories, supported the
submissions of the learned Attorney General for India that a
review should be conducted every 10 years. Mr. Gopal
Sankaranarayanan, learned Senior Counsel, submitted that
it is time for reservation in public employment to be
discontinued. Additionally, he submitted that the lion’s
share of reservation for members of SCs and STs accrued to
the benefit of a select few within these categories, which
further strengthened the requirement for review to appraise
whether certain groups/classes within these categories had
achieved the desired representation. We are not inclined to
express any view on discontinuation of reservations in
totality, which is completely within the domain of the
legislature and the executive. As regards review, we are of
the opinion that data collected to determine inadequacy of
representation for the purpose of providing reservation in
promotions needs to be reviewed periodically. The period
for review should be reasonable and is left to the
Government to set out.
43 | P a g e
5) PROSPECTIVE OPERATION OF THE JUDGMENT IN
M. NAGARAJ
32. While holding that Article 16(4-A) does not provide for
reservation in matters of promotion, this Court in Indra
Sawhney (supra) saved the promotions that were already
made. It was made clear that the judgment shall operate
only prospectively and shall not affect promotions already
made, whether on temporary, officiating or
regular/permanent basis. Already-existing provisions made
for reservation in promotions in Central or State services
were permitted to continue to operate for a period of five
years from the date of the judgment in Indra Sawhney
(supra). Article 16(4-A) was brought into force from
17.06.1995. This Court upheld the validity of Article 16(4-A)
in M. Nagaraj (supra) on 19.10.2006 and observed that
reservation in promotions in public services can be made,
subject to collection of quantifiable data by the State
showing backwardness of the class and inadequacy of
representation of that class in public employment, in
addition to compliance with Article 335 of the Constitution.
Reservation in promotions provided by various State
44 | P a g e
Governments and the Central Government have been
challenged in the High Courts on the ground of noncompliance with the requirement of collection of
quantifiable data showing backwardness of the class and
inadequacy of representation. It is relevant to mention at
this stage that collection of quantifiable data regarding
backwardness of SCs and STs is no more required in view of
the judgment of this Court in Jarnail Singh (supra). In
respect of the data relating to inadequacy of representation
of SCs and STs, the High Courts have adjudicated writ
petitions which are the subject matter of special leave
petitions pending in this Court.
33. The duty of the court is not to ‘pronounce a new law,
but to maintain and expound the old one’.20 Holmes, J., in
his dissent in Kuhn v. Fairmont Coal Co.
21
, held “I know of
no authority in this court to say that, in general, state
decisions shall make law only for the future. Judicial
decisions have had retrospective operation for near a
thousand years.” In M. Nagaraj (supra), this Court upheld
the constitutional validity of Article 16(4-A), subject to the
20 Blackstone, Commentaries 69 (15th ed. 1809)
21 215 U.S. 349 (1910)
45 | P a g e
State collecting quantifiable data showing inadequate
representation. The law declared by this Court interpreting
Article 16(4-A) in M. Nagaraj (supra) applies from
17.06.1995, i.e., the date on which Article 16(4-A) came into
force (See: Ravi S. Naik v. Union of India & Ors.
22
; Lily
Thomas & Ors. v. Union of India & Ors.
23
). The
contention put forth by the learned Attorney General for
India and the learned counsel appearing for the reserved
category candidates, which requires to be examined, is
regarding the prospective applicability of the law laid down
in M. Nagaraj (supra), i.e., from the date of the judgment.
34. This Court, in I.C. Golak Nath & Ors. v. State of
Punjab & Anr.
24
, held that the Parliament had no power to
amend Part III of the Constitution so as to take away or
abridge the fundamental rights. However, to save the past
transactions, the doctrine of prospective overruling was
invoked and the judgment was given prospective operation.
The following propositions were laid down in Golak Nath
case (supra):
22 1994 Supp (2) SCC 641
23 (2000) 6 SCC 224
24 (1967) 2 SCR 762
46 | P a g e
“(1) The doctrine of prospective overruling can be invoked
only in matters arising out of the Constitution;
(2) it can be applied only by the highest court of the
country, i.e., the Supreme Court as it has the constitutional
jurisdiction to declare law binding on all the courts in India;
 (3) the scope of the retroactive operation of the law
declared by the Supreme Court superseding its earlier
decisions is left to its discretion to be moulded in
accordance with the justice of the cause or matter before it.”
While interpreting the scope of Article 142 of the
Constitution, this Court held that the law declared by the
Supreme Court is the law of the land and in so declaring, the
operation of the law can be restricted to the future, thereby
saving past transactions.
35. The power of this Court under Article 142 of the
Constitution is a constituent power transcendental to
statutory prohibition.25 In Orissa Cement Ltd. v. State of
Orissa & Ors.
26
, this Court observed that relief can be
granted, moulded or restricted in a manner most
appropriate to the situation before it in such a way as to
advance the interests of justice. The doctrine of prospective
overruling is in essence a recognition of the principle that
the Court moulds the reliefs claimed to meet the justice of
25 Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997) 5 SCC 201
26 1991 Supp (1) SCC 430
47 | P a g e
the case, as has been held in Somaiya Organics (India)
Ltd. & Anr. v. State of U.P. & Anr.
27
. It was further
clarified that while in Golak Nath (supra), ‘prospective
overruling’ implied an earlier judicial decision on the same
issue which was otherwise final, this Court had used the
power even when deciding on an issue for the first time.
There is no need to refer to other judgments of this Court
which have approved and applied the principle of
prospective overruling or prospective operation of
judgments. There cannot be any manner of doubt that this
Court can apply its decision prospectively, i.e., from the date
of its judgment to save past transactions.
36. While objecting to the contention of the learned
Attorney General for India to declare the law laid down by
M. Nagaraj (supra) as having prospective operation, Mr.
Rakesh Dwivedi, learned Senior Counsel appearing for the
unreserved candidates, submitted that relief can be
moulded in exercise of the power under Article 142 of the
Constitution. It is no doubt true that M. Nagaraj (supra)
did not state that it would be prospective in operation. It is
necessary for this Court to examine whether a judgment can
27 (2001) 5 SCC 519
48 | P a g e
be made prospectively applicable subsequently by a
different bench of this Court. The doctrine of prospective
overruling was applied to Indian law in Golak Nath (supra)
by following the theory which was prevalent in the United
States of America. Reference was made to the judgment of
Linkletter v. Walker
28
 which declared an earlier decision of
the U.S. Supreme Court in Mapp v. Ohio
29
 to be prospective
in operation.
37. For a better understanding, it is necessary to refer to
the issue in Linkletter (supra). The United States Supreme
Court in Weeks v. United States
30
 held that illegallyseized evidence cannot be used in federal courts, by
establishing the exclusionary rule. The applicability of the
exclusionary rule to states fell for consideration in Wolf v.
Colorado
31
. Taking note of the fact that 16 States adopted
the exclusionary rule laid down in Weeks (supra) while 31
other States rejected the exclusionary rule, the U.S.
Supreme Court held that it was not a departure from basic
standards of due process to allow States to introduce
illegally-obtained evidence in State trials. Later, the U.S.
28 381 U.S. 618 (1965) : 1965 SCC Online US SC 126
29 367 U.S. 643 (1961)
30 232 U.S. 383 (1914)
31 338 U.S. 25 (1949)
49 | P a g e
Supreme Court in Mapp (supra) held that the exclusion of
evidence seized in violation of search and seizure provisions
of the Fourth Amendment was required of the States by the
due process clause of the Fourteenth Amendment. In
Linkletter (supra), the U.S. Supreme Court was confronted
with the question of prospective operation of its earlier
judgment in Mapp (supra). The overruling of the judgment
in Wolf v. Colorado (supra) by Mapp (supra) was made
prospective by the U.S. Supreme Court by making the
following observations:
“22. We believe that the existence of the Wolf doctrine prior
to Mapp is 'an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration.' Chicot County
Drainage Dist. v. Baxter State Bank, supra, 308 U.S. at 374,
60 S.Ct. at 319. The thousands of cases that were finally
decided on Wolf cannot be obliterated. The 'particular
conduct, private and official,' must be considered. Here
'prior determinations deemed to have finality and acted
upon accordingly' have 'become vested.' And finally, 'public
policy in the light of the nature both of the (Wolf doctrine)
and of its previous application' must be given its proper
weight. Ibid. In short, we must look to the purpose of the
Mapp rule; the reliance placed upon the Wolf doctrine; and
the effect on the administration of justice of a retrospective
application of Mapp.
50 | P a g e
23. It is clear that the Wolf Court, once it had found the
Fourth Amendment's unreasonable Search and Seizure
Clause applicable to the States through the Due Process
Clause of the Fourteenth Amendment, turned its attention to
whether the exclusionary rule was included within the
command of the Fourth Amendment. This was decided in
the negative. It is clear that based upon the factual
considerations heretofore discussed the Wolf Court then
concluded that it was not necessary to the enforcement of
the Fourth Amendment for the exclusionary rule to be
extended to the States as a requirement of due process.
Mapp had as its prime purpose the enforcement of the
Fourth Amendment through the inclusion of the exclusionary
rule within its rights. This, it was found, was the only
effective deterrent to lawless police action. Indeed, all of the
cases since Wolf requiring the exclusion of illegal evidence
have been based on the necessity for an effective deterrent
to illegal police action. See, e.g., Rea v. United States, supra.
We cannot say that this purpose would be advanced by
making the rule retrospective. The misconduct of the police
prior to Mapp has already occurred and will not be corrected
by releasing the prisoners involved. Nor would it add
harmony to the delicate state-federal relationship of which
we have spoken as part and parcel of the purpose of Mapp.
Finally, the ruptured privacy of the victims' homes and
effects cannot be restored. Reparation comes too late.
24. It is true that both the accused and the States relied
upon Wolf. Indeed, Wolf and Irvine each pointed the way for
the victims of illegal searches to seek reparation for the
violation of their privacy. Some pursued the same. See
51 | P a g e
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961). In addition, in Irvine, a flag in a concurring opinion
warned that Wolf was in stormy weather. On the other hand,
the States relied on Wolf and followed its command. Final
judgments of conviction were entered prior to Mapp. Again
and again this Court refused to reconsider Wolf and gave its
implicit approval to hundreds of cases in their application of
its rule. In rejecting the Wolf doctrine as to the exclusionary
rule the purpose was to deter the lawless action of the
police and to effectively enforce the Fourth Amendment.
That purpose will not at this late date be served by the
wholesale release of the guilty victims.
25. Finally, there are interests in the administration of
justice and the integrity of the judicial process to consider.
To make the rule of Mapp retrospective would tax the
administration of justice to the utmost. Hearings would have
to be held on the excludability of evidence long since
destroyed, misplaced or deteriorated. If it is excluded, the
witnesses available at the time of the original trial will not
be available or if located their memory will be dimmed. To
thus legitimate such an extraordinary procedural weapon
that has no bearing on guilt would seriously disrupt the
administration of justice.”
The point to be noticed is that the U.S. Supreme Court in
Linkletter (supra) declared its earlier judgment in Mapp
(supra) to be prospective in operation, after considering the
consequences of Mapp (supra) being given retrospective
effect.
52 | P a g e
38. This Court in Indra Sawhney (supra) interpreted
Article 16(4-A) of the Constitution by holding that
reservation cannot be provided in promotions. However,
reservation in promotions were permitted for a further
period of five years from the date of the judgment. In
Ashok Kumar Gupta & Anr. v. State of U.P. & Ors.
32
,
promotions in Public Works Department of the Government
of Uttar Pradesh were challenged. One of the grounds of
challenge was that the direction of the Supreme Court for
prospective overruling of the judgment of this Court in
General Manager, Southern Railway v. Rangachari
33
and for operation of the ratio in Indra Sawhney (supra)
after five years from the date of the judgment was
inconsistent with and contrary to the scheme of the
Constitution. In other words, it was contended by the
appellants in Ashok Kumar Gupta (supra) that after
having declared reservation in promotions under Articles
16(1) and 16(4) as unconstitutional and overruling
Rangachari (supra) as not being correct in law, the Court
cannot postpone the operation of the judgment to a future
32 (1997) 5 SCC 201
33 (1962) 2 SCR 586
53 | P a g e
date as it amounts to perpetration of void action and is
violative of the appellants’ fundamental rights. In Ashok
Kumar Gupta (supra), this Court was of the opinion that
there is no prohibition for this Court to postpone the
operation of the judgment in Indra Sawhney (supra) or to
prospectively overrule the ratio in Rangachari (supra).
This Court further held that:
“60. It would be seen that there is no limitation under
Article 142(1) on the exercise of the power by this Court.
The necessity to exercise the power is to do “complete
justice in the cause or matter”. The inconsistency with
statute law made by Parliament arises when this Court
exercises power under Article 142(2) for the matters
enumerated therein. Inconsistency in express statutory
provisions of substantive law would mean and be
understood as some express prohibition contained in any
substantive statutory law. The power under Article 142 is a
constituent power transcendental to statutory prohibition.
Before exercise of the power under Article 142(2), the Court
would take that prohibition (sic provision) into consideration
before taking steps under Article 142(2) and we find no
limiting words to mould the relief or when this Court takes
appropriate decision to mete out justice or to remove
injustice. The phrase “complete justice” engrafted in Article
142(1) is the word of width couched with elasticity to meet
myriad situations created by human ingenuity or cause or
result of operation of statute law or law declared under
Articles 32, 136 and 141 of the Constitution and cannot be
54 | P a g e
cribbed or cabined within any limitations or phraseology.
Each case needs examination in the light of its backdrop and
the indelible effect of the decision. In the ultimate analysis,
it is for this Court to exercise its power to do complete
justice or prevent injustice arising from the exigencies of the
cause or matter before it. The question of lack of jurisdiction
or nullity of the order of this Court does not arise. As held
earlier, the power under Article 142 is a constituent power
within the jurisdiction of this Court. So, the question of a law
being void ab initio or nullity or voidable does not arise.
61. Admittedly, the Constitution has entrusted this salutary
duty to this Court with power to remove injustice or to do
complete justice in any cause or matter before this Court.
The Rangachari [(1962) 2 SCR 586 : AIR 1962 SC
36] ratio was in operation for well over three decades under
which reservation in promotions were given to several
persons in several services, grades or cadres of the Union of
India or the respective State Governments. This Court, with
a view to see that there would not be any hiatus in the
operation of that law and, as held earlier, to bring about
smooth transition of the operation of law of reservation in
promotions, by a judicial creativity extended the principle of
prospective overruling applied in Golak Nath case [(1967) 2
SCR 762 : AIR 1967 SC 1643] in the case of statutory law
and of the judicial precedent in Karunakar case [(1993) 4
SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] and
further elongated the principle postponing the operation of
the judgment in Mandal case [1992 Supp (3) SCC 217 : 1992
SCC (L&S) Supp 1 : (1992) 22 ATC 385] for five years from
the date of the judgment. This judicial creativity is not
55 | P a g e
anathema to constitutional principle but an accepted
doctrine as an extended facet of stare decisis. It would not
be labelled as proviso to Article 16(4) as contended for.”
39. Whether the judgment of this Court in Indian Council
for Enviro-Legal Action v. Union of India & Ors.
34
 was
prospective was the subject-matter of consideration in
Goan Real Estate and Construction Limited & Anr. v.
Union of India & Ors.
35
. After a detailed consideration of
the judgment in Indian Council for Enviro-Legal Action
(supra), this Court in Goan Real Estate (supra) concluded
that though not stated categorically in Indian Council for
Enviro-Legal Action (supra), it was the intention of this
Court to give prospective effect to the judgment. The above
is an instance where this Court declared an earlier judgment
to have prospective effect.
40. A contrary view was expressed by this Court in M.A.
Murthy v. State of Karnataka & Ors.
36
 in which it was
held that prospective overruling can be done only by the
Court which has rendered the decision. The dispute that
arose for consideration of this Court in the said judgment
pertained to appointment to the posts of Manager (Finance
34 (1996) 5 SCC 281
35 (2010) 5 SCC 388
36 (2003) 7 SCC 517
56 | P a g e
and Accounts) in the Karnataka State Financial Corporation.
The appellants challenged the selection of respondent no. 4
before the Karnataka High Court. Though the learned Single
Judge of the High Court found respondent no. 4 therein to be
ineligible as on the date of his appointment, the selection
was not disturbed on the ground that he obtained
qualifications by the time of interview. The learned Single
Judge relied upon the judgment of this Court in Ashok
Kumar Sharma & Anr. v. Chander Shekher & Anr.
37
(Ashok Kumar Sharma case No. I). The judgment of the
learned Single Judge was upheld by the Division Bench of
the High Court. Thereafter, a review application was filed
informing the Division Bench of the High Court that the
judgment of this Court in Ashok Kumar Sharma case No.
I was overruled in Ashok Kumar Sharma & Ors. v.
Chander Shekhar & Anr.
38
(Ashok Kumar Sharma case
No. II). By holding that on the date of the judgment of the
Division Bench, Ashok Kumar Sharma case No. I held the
field, the High Court dismissed the review petition. Taking
note of the fact that Ashok Kumar Sharma case No. II
37 1993 Supp (2) SCC 611
38 (1997) 4 SCC 18
57 | P a g e
was a judgment of this Court in review of the judgment in
Ashok Kumar Sharma case No. I, which, therefore,
merged with the subsequent judgment, making the later
decision the one and only judgment rendered for all
purposes, this Court found that the High Court had
committed an error in not following the law laid down by this
Court in Ashok Kumar Sharma case No. II. While holding
so, this Court referred to the doctrine of prospective
overruling and earlier judgments of this Court in Golak
Nath (supra), Ashok Kumar Gupta (supra) and others.
This Court proceeded to observe that there shall be no
prospective overruling unless it is so indicated in a particular
decision.
41. The facts of the case and the dispute resolved by this
Court in M.A. Murthy (supra) relate to the applicability of
the subsequent judgment of Ashok Kumar Sharma case
No. II rendered in review of an earlier judgment. The
question of prospective overruling did not arise in the said
case. The observation made in M.A. Murthy (supra) that
there shall be no prospective overruling unless indicated in
58 | P a g e
the particular decision is obiter. Obiter dictum is defined in
Black's Law Dictionary (9th Edn., 2009), as follows:
“Obiter dictum.— A judicial comment made while delivering
a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential (although
it may be considered persuasive). — Often shortened to
dictum or, less commonly, obiter.
 …
Strictly speaking an “obiter dictum” is a remark made or
opinion expressed by a judge, in his decision upon a cause,
“by the way”—that is, incidentally or collaterally, and not
directly upon the question before the court; or it is any
statement of law enunciated by the Judge or court merely by
way of illustration, argument, analogy, or suggestion…. In
the common speech of lawyers, all such extrajudicial
expressions of legal opinion are referred to as “dicta”, or
“obiter dicta”, these two terms being used interchangeably.”
Wharton's Law Lexicon (14th Edn., 1993) defines the term
“obiter dictum” as “an opinion not necessary to a judgment;
an observation as to the law made by a Judge in the course
of a case, but not necessary to its decision, and therefore,
of no binding effect; often called as obiter dictum, ‘a remark
by the way’”. A decision on a point not necessary for the
purpose of or which does not fall for determination in that
59 | P a g e
decision becomes an obiter dictum.39
 It is a well-settled
proposition that only the ratio decidendi can act as the
binding or authoritative precedent. Reliance placed on mere
general observations or casual expressions of the Court, is
not of much avail.40 Therefore, the casual and unnecessary
observation in M.A. Murthy (supra) that there shall be no
prospective overruling unless it is so indicated in a particular
decision is obiter and not binding. Moreover, in M.A.
Murthy (supra), this Court failed to consider the ratio of the
judgment of this Court in Ashok Kumar Gupta (supra),
even after referring to it. As stated above, the prospective
overruling of Rangachari (supra) by Indra Sawhney
(supra) was upheld in Ashok Kumar Gupta (supra).
42. This Court in Golak Nath (supra) and Ashok Kumar
Gupta (supra), referred to above, has laid down that Article
142 empowers this Court to mould the relief to do complete
justice. To conclude this point, the purpose of holding that
M. Nagaraj (supra) would have prospective effect is only to
avoid chaos and confusion that would ensue from its
retrospective operation, as it would have a debilitating
39 H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. v.
Union of India & Anr. (1971) 1 SCC 85
40 Girnar Traders v. State of Maharashtra & Ors. (2007) 7 SCC 555
60 | P a g e
effect on a very large number of employees, who may have
availed of reservation in promotions without there being
strict compliance of the conditions prescribed in M.
Nagaraj (supra). Most of them would have already retired
from service on attaining the age of superannuation. The
judgment of M. Nagaraj (supra) was delivered in 2006,
interpreting Article 16(4-A) of the Constitution which came
into force in 1995. As making the principles laid down in M.
Nagaraj (supra) effective from the year 1995 would be
detrimental to the interests of a number of civil servants
and would have an effect of unsettling the seniority of
individuals over a long period of time, it is necessary that
the judgment of M. Nagaraj (supra) should be declared to
have prospective effect.

6) QUANTIFIABLE DATA AND SAMPLING METHOD
43. The Karnataka Legislature enacted the Karnataka
Determination of Seniority of the Government Servants
Promoted on the Basis of Reservation (to the Posts in the
Civil Services of the State) Act, 2002. This Court declared
the provisions of the said Act as unconstitutional on the
ground that the Government of Karnataka failed to produce
61 | P a g e
quantifiable data to show any compelling necessity for
exercising power under Article 16(4-A) and therefore,
Sections 3 and 4 of the said Act were held to be
unconstitutional. Thereafter, the Government of Karnataka
constituted a committee, headed by the Additional Chief
Secretary to the State of Karnataka, and entrusted the
following tasks to the committee:-
“(1) Collect information in cadre-wise representation of SCs
and STs in all the Government departments.
(2) Collect information regarding backwardness of SCs and
STs.
(3) Study the effect on the administration due to the
provision of reservation in promotion to SCs and STs.”
44. On 05.05.2017, the ‘Report on Backwardness,
Inadequacy of Representation and Administrative Efficiency
in Karnataka’ was submitted by the Ratna Prabha
Committee. The Government of Karnataka accepted the
Report and the Karnataka Extension of Consequential
Seniority to Government Servants Promoted on the Basis of
Reservation (to the Posts in the Civil Services of the State)
Bill 2017 was passed by the Legislative Assembly and the
Legislative Council and thereafter, received Presidential
assent on 14.06.2018. The grievance of the petitioners
62 | P a g e
therein was that the data was collected only from 31
departments out of a total of 62, based on Groups ‘A’, ‘B’,
‘C’ and ‘D’ and not on cadre. A further complaint was made
that no data was collected with respect to public sector
undertakings, boards, corporations, local bodies, grant-inaid institutions and autonomous bodies, and therefore, the
data is only representative in nature. This Court reproduced
a summary of the Ratna Prabha Committee Report, which is
as follows:
“2.5. Summary:
(1) The analysis of time series data collected for the last 32
years (1984-2016 except for 1986) across 31 departments of
the State Government provides the rich information on the
inadequacy of representation of SC and ST employees in
various cadres of Karnataka Civil Services.
(2) The total number of sanctioned posts as per the data of
2016 is 7,45,593 of which 70.22% or 5,23,574 are filled up
across 31 departments.
(3) The vacancies or posts are filled up through Direct
Recruitment (DR) and Promotions including consequential
promotion.
(4) The overall representation of the SC and ST employees of
all 31 departments in comparison with total sanctioned posts
comprises of 10.65% and 2.92% respectively. This proves
inadequacy of representation of SCs and Sts.
63 | P a g e
(5) On an average the representation in Cadre A for SCs is at
12.07% and STs 2.70% which sufficiently proves the
inadequacy of representation.
(6) The extent of representation in Cadre B is on an average
of 9.79% and 2.34% for STs for all the years of the study
period.
(7) It is observed that on an average 3.05% of SC
representation is inadequate in the Cadre ‘C’ whereas,
0.05% excess representation is seen for Sts.
(8) On an average of 2% and 1% over-representation of
employees of SCs and STs is found in Cadre D respectively.
However, in the last 5 years, inadequacy of representation of
SCs by 3% is found in this cadre.
(9) The representation of Scheduled Caste in Cadres A, B
and C is on an average 12, 9.79 and 12.04% respectively
whereas in Cadre D it is 16.91.
(10) In case of STs in the Cadres A and B the representation
is 2.70 and 2.34%. However, excess representation of 0.04
and 0.93% is found in case of Group C and Group D
respectively.
(11) Over-representation in some years and departments is
attributed to either Direct Recruitment or retirement of
employees or filling up of backlog vacancies as the latter
does not fall under 50% limitation of reservation.
2.6: Conclusion:
64 | P a g e
The data clearly shows the inadequacy of representation of
SCs and STs in the civil services in Groups A, B and C and
adequate representation in Group D.”
This Court found the challenge to the Report on the ground
of data having been collected on the basis of Groups A, B, C
and D as opposed to cadres, to be without merit. The basis
of the said conclusion of the Court was that there is no fixed
meaning ascribed to the term ‘cadre’ in service
jurisprudence. Further, this Court held that collection of
quantifiable data on the inadequacy of representation is in
the services of the State, according to M. Nagaraj (supra).
In addition, this Court was also of the view that Article 16(4-
A) referred to inadequacy of representation in the services
of the State. It was further declared that collection of data
on the basis of groups does not exclude data pertaining to
cadres, as a group includes posts in all the cadres in that
group.
45. Collection of quantifiable data for determining the
inadequacy of representation of SCs and STs is a basic
requirement for providing reservation in promotions, as laid
down by this court in M. Nagaraj (supra). The unit for the
purpose of collection of data is a cadre, according to M.
65 | P a g e
Nagaraj (supra) and Jarnail Singh (supra). For the
purpose of collection of quantifiable data for providing
reservation in promotions, the entire service cannot be
taken to be a unit and treated as a cadre, as already stated.
The structure of services in the State of Karnataka is along
the same lines as that of services in the Central
Government. Services are divided into ‘groups’, which are
further bifurcated into cadres. There is no confusion that a
cadre is not synonymous with a ‘group’.
46. The first term of reference for the Ratna Prabha
Committee was to collect data cadre-wise. The conclusion of
this Court in B.K. Pavitra II (supra) that the expression
‘cadre’ has no fixed meaning in service jurisprudence is
contrary to the judgments of this Court, which have been
referred to above while answering point 2. In clear terms,
M. Nagaraj (supra) held that the unit for collection of
quantifiable data is cadre, and not services as has been held
in B.K. Pavitra II (supra). Article 16(4-A) of the Constitution
enables the State to make reservation in promotions for SCs
and STs, which are not adequately represented in the
services of the State. However, the provision for reservation
66 | P a g e
in matters of promotion is with reference to class or classes
of posts in the services under the State. That ‘groups’
consist of cadres is a fact which was taken into
consideration by this Court in B.K. Pavitra II (supra). The
conclusion that the collection of data on the basis of
‘groups’ is valid, is contrary to the decisions of this court in
M. Nagaraj (supra) and Jarnail Singh (supra).
47. The State should justify reservation in promotions with
respect to the cadre to which promotion is made. Taking
into account the data pertaining to a 'group’, which would
be an amalgamation of certain cadres in a service, would
not give the correct picture of the inadequacy of
representation of SCs and STs in the cadre in relation to
which reservation in promotions is sought to be made.
Rosters are prepared cadre-wise and not group-wise.
Sampling method which was adopted by the Ratna Prabha
Committee might be a statistical formula appropriate for
collection of data. However, for the purpose of collection of
quantifiable data to assess representation of SCs and STs for
the purpose of providing reservation in promotions, cadre,
which is a part of a 'group’, is the unit and the data has to
67 | P a g e
be collected with respect to each cadre. Therefore, we hold
that the conclusion of this Court in B.K. Pavitra II (supra)
approving the collection of data on the basis of 'groups’ and
not cadres is contrary to the law laid down by this Court in
M. Nagaraj (supra) and Jarnail Singh (supra).
48. It is made clear that we have not expressed any
opinion on the merits of any individual case as we have only
answered the common issues that were formulated after
hearing the parties.
49. List the matters on 24/2/2022 for further hearing.
 …….......................................J.
 [ L. NAGESWARA RAO ]
…….......................................J.
 [SANJIV KHANNA]
.……......................................J.
 [B.R. GAVAI]

New Delhi,
January 28, 2022
68 | P a g e

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर