# 14 (ADDL.) S.C.R. 532 SURAJ BHAN MEENA & ANR v. STATE OF RAJASTHAN & ORS

- **Citation:** [2010] 14 S.C.R. 532
- **Court:** Supreme Court of India
- **Decided:** 2010-12-07
- **Case number:** SLP No. 6385 of 2010
- **Bench:** Altamas Kabir, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-532-suraj-bhan-meena-anr-v-state-of-rajasthan-ors-26495
- **Pages:** 28

## Headnote

SERVICE LAW·
c
Promotion through reservation -
Consequential
seniority -
Held: The position after the decision in M.
Nagaraj's case is that reservation in promotion is dependent
on the inadequacy of representation of members of
Scheduled Castes, Scheduled Tribes and Backward
0
Classes and subject to the condition of ascertaining as to
whether such reservation was at all required -
The High
Court has rightly quashed the notifications dated 28.12.2002
and 25.04.2008 issued by the Government of Rajasthan
providing for consequential seniority to the members of the
Schedules Caste and Scheduled Tribe communities on
E promotion through reservation or roster -
Constitution of
India, 1950 -
Article 16(4-A) and 16(4-8). -
Rajasthan
Administrative Service Rules, 1954 -
Government of
Rajasthan Notifications dated 28.12.2002 and 25.04.2008.
F
Writ petitions were filed before the High Court, by
the members of Rajasthan Administrative Service
governed by the Rajasthan Administrative Service Rules
1954, challenging the Notification dated 25.04.2008 by
which various Service Rules of the State were amended
G with effect from 28.12.2002. Thl3ir case was that by virtue
of the Notification dated 25.4.2008, consequential
seniority was given to the candidates belonging to
Scheduled Castes and Scheduled Tribes on their
promotion through reservation, which could not have
H
532
SURAJ BHAN MEENA & ANR. v. STATE OF
533
RAJASTHAN & ORS.
been done without quantifying the figures of Scheduled
A
Caste and Scheduled Tribe candidates so as to take a
decision 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 was held by the
B
Supreme Court in M. Nagaraj's case1. The High Court
allowed the writ petitions and quashed the Notifications
dated 28.12.2002 and 25.8.2008. Aggrieved, the affected
officers and the State Government filed the petitions for
special leave.
c
The question for consftteration before the Court
was: whether the. amended provisions of Article 16(4-A)
of the Cohstitution intended that those belonging to
Scheduled Caste and Schedule Tribe communities and
had been promoted against reserve quota, would also D
be entitled to consequential seniority on account of
such promotions, or would the "catch-up" rule prevail.
Disposing of the petitions, the Court
Held:
1.1. In M. Nagaraj's case, the Constitution Bench of
E
the Supreme Court, while upholding the validity of the
77th, 81st, 82nd and 85th constitutional amendments,
added that, in any event, the requirement of Articles
F
16(4-A) and 16(4-B) of the Constitution 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) would have to be satisfied, which could
only be achieved after an inquiry as to identity. The
G
Court further held that the concepts of "catch-up" rule
and "consequential seniority" are judicially evalued
1.
M. Nagaraj & Ors. vs. Union of India & Ors. 2006 (7) Suppl. SCR 326.
H
534
SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A concepts and could not be elevated to the status of a
constitutional principle so as to place them beyond the
amending power of Parliament. The position after the
decision in M. Nagaraj's case is that reservation of posts
in promotion is dependent on the inadequacy of
B representation of members of Scheduled Castes,
Scheduled Tribes and Backward Classes and subject
to the condition of ascertaining as to whether such
reservation was at all required. [para 45-46) [858-C-F]
1.2. The view of the High Court is based on the
C decision in M. Nagaraj's case, as no exercise was
undertaken in terms of Article 16(4-A) to acquire
quantifiable data regarding the inadequacy of
representation of Schedule Caste and Scheduled Tribe
communities in public services. The High Court has
D rightly quashed the notifications dated 28.12.2002 and
25.4.2008 issued by the State of Ra

## Text

_Characters 0–39,808 of 54,614. This is a partial read: ask again with offset=39808 for what follows._

A
B
[2010] 14 (ADDL.) S.C.R. 532
SURAJ BHAN MEENA & ANR.
v.
STATE OF RAJASTHAN & ORS.
(Special Leave Petition (Civil) No.6385 of 2010 etc.)
DECEMBER 7, 2010
[ALTAMAS KABIR AND A.K. PATNAIK, JJ.)
SERVICE LAW·
c
Promotion through reservation -
Consequential
seniority -
Held: The position after the decision in M.
Nagaraj's case is that reservation in promotion is dependent
on the inadequacy of representation of members of
Scheduled Castes, Scheduled Tribes and Backward
0
Classes and subject to the condition of ascertaining as to
whether such reservation was at all required -
The High
Court has rightly quashed the notifications dated 28.12.2002
and 25.04.2008 issued by the Government of Rajasthan
providing for consequential seniority to the members of the
Schedules Caste and Scheduled Tribe communities on
E promotion through reservation or roster -
Constitution of
India, 1950 -
Article 16(4-A) and 16(4-8). -
Rajasthan
Administrative Service Rules, 1954 -
Government of
Rajasthan Notifications dated 28.12.2002 and 25.04.2008.
F
Writ petitions were filed before the High Court, by
the members of Rajasthan Administrative Service
governed by the Rajasthan Administrative Service Rules
1954, challenging the Notification dated 25.04.2008 by
which various Service Rules of the State were amended
G with effect from 28.12.2002. Thl3ir case was that by virtue
of the Notification dated 25.4.2008, consequential
seniority was given to the candidates belonging to
Scheduled Castes and Scheduled Tribes on their
promotion through reservation, which could not have
H
532
SURAJ BHAN MEENA & ANR. v. STATE OF
533
RAJASTHAN & ORS.
been done without quantifying the figures of Scheduled
A
Caste and Scheduled Tribe candidates so as to take a
decision 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 was held by the
B
Supreme Court in M. Nagaraj's case1. The High Court
allowed the writ petitions and quashed the Notifications
dated 28.12.2002 and 25.8.2008. Aggrieved, the affected
officers and the State Government filed the petitions for
special leave.
c
The question for consftteration before the Court
was: whether the. amended provisions of Article 16(4-A)
of the Cohstitution intended that those belonging to
Scheduled Caste and Schedule Tribe communities and
had been promoted against reserve quota, would also D
be entitled to consequential seniority on account of
such promotions, or would the "catch-up" rule prevail.
Disposing of the petitions, the Court
Held:
1.1. In M. Nagaraj's case, the Constitution Bench of
E
the Supreme Court, while upholding the validity of the
77th, 81st, 82nd and 85th constitutional amendments,
added that, in any event, the requirement of Articles
F
16(4-A) and 16(4-B) of the Constitution 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) would have to be satisfied, which could
only be achieved after an inquiry as to identity. The
G
Court further held that the concepts of "catch-up" rule
and "consequential seniority" are judicially evalued
1.
M. Nagaraj & Ors. vs. Union of India & Ors. 2006 (7) Suppl. SCR 326.
H
534
SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A concepts and could not be elevated to the status of a
constitutional principle so as to place them beyond the
amending power of Parliament. The position after the
decision in M. Nagaraj's case is that reservation of posts
in promotion is dependent on the inadequacy of
B representation of members of Scheduled Castes,
Scheduled Tribes and Backward Classes and subject
to the condition of ascertaining as to whether such
reservation was at all required. [para 45-46) [858-C-F]
1.2. The view of the High Court is based on the
C decision in M. Nagaraj's case, as no exercise was
undertaken in terms of Article 16(4-A) to acquire
quantifiable data regarding the inadequacy of
representation of Schedule Caste and Scheduled Tribe
communities in public services. The High Court has
D rightly quashed the notifications dated 28.12.2002 and
25.4.2008 issued by the State of Rajasthan providing
for promotion and consequential seniority to the
members of Scheduled Caste and Scheduled Tribe
communities and the same does not call for any
E interference. Accordingly, the claim of the appellants in
Special Leave Petition (Civil) No.6385 of 2010 will be
subject to the conditions laid down in M. Nagaraj's case.
[para 46] [858-G-H; 859-A-B]
F
M. Nagaraj & Ors. vs. Union of India & Ors. 2006 (7)
Suppl. SCR 336 = 2006 (8) SCC 212 -
Followed
Ajit Singh-II & Ors. vs. State of Punjab & Ors. 1999 (2)
suppl. SCR 521 = 1999 (7 ) SCC 209; Ram Prasad etc.
vs D. K. Vijay & Ors. 1999 (2) Suppl. SCR 576 = 1999 (7)
G SCC 251; Union of India vs. Virpal Singh Chauhan & Ors.
1995 (4) Suppl. SCR 158 = 1995 (6) sec 684; B. K.
Sharama & Anr. Vs. State of Rajasthan & Ors. WLC (Raj)
1998 (2) 583; Ajit Singh Januja & Ors. vs. State of Punjab
H
SURAJ BHAN MEENA & ANR. v. STATE OF
535
RAJASTHAN & ORS.
& Ors. 1996 (3) SCR 125 = 1996 ( 2 ) SCC 715 - Relied
A
on
Indra Sawhney & Ors. vs. Union of India & Ors. 1992
(2) Suppl. SCR 454 = 1992 (3) Suppl. SCC 217 - referred
to
Jagdish Lal vs. State of Haryana 1997 (6) SCC 538 -
Stood over ruled
8
S. S. Bola & Ors. Vs. B.D. Saldana & Ors. (1997) 8
SCC 522; T. Narasimhulu & Ors. Vs. State of A.P. & Ors.
C
(2010) 5 SCALE 730; General Manager, Southern Railway
Vs. Rangachari (1962) 2 SCR 586 - Cited.
Case Law Reference:
1999 (2) suppl. SCR 521
relied on
para 4 and 42
1999 (2)
Suppl. SCR 576 relied on
para 4 and 42
2006 (7) Suppl. SCR 336
followed
para 5
1992 (2) Suppl. SCR 454
referred to para 5
1995 (4) Suppl. SCR 158 relied on
para 5
1996 (3) SCR 125
relied on
para 5
WLC (Raj) 1998 (2) 583
relied on
para 9
1997 (6) sec 538
Stood over ruled para 14
(1997) 8 sec 522
Cited
para 19
•
(2010) 5 SCALE 730
Cited
para 19
(1962) 2 SCR 586
Cited
para 21
CIVIL APPELLATE JURISDICTION : SLP No. 6385 of
2010.
D
E
F
G
H
536 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A
From the Judgment & Order dated 5.2.2010 of the High
Court of Judicature for Rajasthan, Jaipur Bench, at Jaipur
D.B. (Civil) Writ Petition No. 8104 of 2008.
WITH
B SLP (C) Nos. 7716, 7717, 7826 & 7838 of 2010
Conmt. Pet. (C) No. 313 of 2010 in SLP (C) 7716 of 2010.
P.P. Rao, Rajeev Dhawan, Pallav Shishodia, M.R. Calla,
C Dr. Manish Singhvi, AAG, Dr. Krishan Singh Chauhan, Chand
Kiran, Ajit Kumar Ekka, Tej Singh Varun, Devanshu Kumar
Devesh, R. Gopalakrishnan, Jaswant Persoya, Rajesh Kumar,
Binu Tamta, Pradeep Aggarwal, N. Annapoorani, L.P. Singh,
Ram Niwas, Shobhit Tiwari, Brijesh Singh, M.L. Lahoty, Mukul
Kumar, Rishi Matoliya, Pratiksha Sharma, Charu Mathur for
D the appearing parties.
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. Since common questions of
E 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 Su raj Bhan Meena
& Anr., SLP(C)Nos.7716, 7717, 7826 and 7838 of 2010,
have all been filed by the State of Rajasthan.
F
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
G (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
H
SURAJ BHAN MEENA & ANR. v. STATE OF
537
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
Petition No.8104/2008 filed by Baj rang Lal Sharma & Ors.
A
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. 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
B
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 c
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
D
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 Notification dated
25th April, 2008, issued by the State of Rajasthan in exercise
E
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
G
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.
F
H
538
SUPREME COURT REPORTS [2010] 14 (ADDL.) $.C.R.
A State of Punjab & Ors. [(1999) 7 SCC 209) 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
B 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.
c
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
D 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, during the pendericy of the Writ
Petition before this Court, the Respondents had acted
improperly in deleting the ~bove-mentioned proviso in the
E 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
F candidates to enable a decision to be arrived at that
reservation wa 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
G 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 Writ Petitioner, Bajrang Lal
H Sharma, that in the case of Indra Sawhney & Ors. Vs. Union
SURAJ BHAN MEENA & ANR. v. STATE OF
539
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
of India & Ors. [(1992) Supp.(3) SCC 217], this Court had
A
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
B
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 sec 209)], introduced the "catch-up" rule and held
that if a senior general candidate was promoted after c
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.
D
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
E
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 generallOBC candidates. The Government
F
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)
G
Act, 1995 and the Constitution (85th Amendment) Act, 2001,
clarified 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
H
540 SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A 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
s 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 "catchup" rule and further deleting the new proviso added on
C 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 undertaking
the exercise indicated in M. Nagaraj's case in respect of the
three conditions laid down in the said judgment. It was the
D 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.
E
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.
F
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
G Bench in the cases of Virpal Singh Chauhan (supra) 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-1/'s case (supra). It is only on account of the
SURAJ BHAN MEENA & ANR. v. STATE OF
541
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
judgment in Virpal Singh Chauhan's case (supra) and in the
A
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
B
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 · C
the case of All India Equality Forum.
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
D
only an enabling provision which was under challenge befor
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
E
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
F
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 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
G
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
H
542
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 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
B held that reservation in promotion was unconstitutional, but
permitted such reservation to continue for a period of five
years. It is_ p,ursuant to the said decision in Indra Sawhney's
case (supra), that the Parliament enacted the Constitution
(77th Amendment) Act, 1995. A contrary view was taken in
c Union of India vs. Virpal Singh Chauhan [(1995) 6 SCC
684), whe~i~ 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 1that the
0 grant of consequential seniority to reserve category
employees, who had got promotion on the basis of
reservation, wa unconstitutional.
14. On 7th May, 1997, another Bench of this Court in _
the case of Jagdish Lal Vs. State of Haryana [(1997) 6
E 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
F inequalities which exist in 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
G 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.
H
15. In view of the opposite stands taken in Jagdish Lat's
SURAJ BHAN MEENA & ANR. v. STATE OF
543
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
case (supra) and in Ajit Singh-l's case (supra), the matters
A
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
B
interpretation of the rules. As mentioned hereinbefore, by
enacting the 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 c
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 Virpa/ Singh
D
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,
E
if necessary.
17. Learned counsel, in addition, contended that the
Respondents had not acquired any vested right since the
Constitution Amendment Acts had been enacted by the
F
Parliament only with the intention of nullifying the effects of
the judgments of this Court in Virpa/ Singh Chauhan's case
(supra) and Ajit Singh-1/'s case (supra). Dr. Chauhan
submitted that the Constitution (85th Amendment) Act, 2001,
given effect to from 17th June, 1995, had constitutionally
G
nullified the principle of "regain of seniority" and the principle
of "catch-up" which had been explained by this Court in Virpa/
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
H
544 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. .
A 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
B fulfilled, was totally 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
c 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
D made in paragraph 123 in M. Nagaraj's case that the State
was not bound to provide for reservation1 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
E backwardness of the class and inadequacy of representation
of that class in public employment in addition to 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
F
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
G 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
H urged that even otherwise, a right would accrue only when an
SURAJ BHAN MEENA & ANR. v. STATE OF
545
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
order is issued to a Government servant. It was further urged
A
that the High Court's reliance on the observations in M.
Nagaraj's ca~e (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
B
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 c
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
D
some reservation in the form of a Proviso 1which too was
ultimately deleted by the second Notification with effect from
28.12.2002. Mr. Rao also referred to 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
E
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)
F
2 SCR 586], this Court had extended the life of the existing
G
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 continue
H
546
SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A 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
B 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
c 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.
D
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 unde Articles 14, 15 and 16 by deleting the Catch-up
Principle , as was held in Virpal Singh Chauhan's case
E (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
F 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,
G reiterated Mr. Rae'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
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
H
SURAJ BHAN MEENA & ANR. v. STATE OF
547
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
violated by the deletion of the "Catch-up Rule". The
A
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
B
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-f's case c
(suprq) and in Ajit Singh-ti's case (supra). It was submitted
that since the 85th Amendment had been upheld by the
constitution Bench in M. Nagaraj's case (supra) the State
was duty bound to restore the original practice of giving
seniority from the date of substantive appointment, without
0
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
E
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-l's case (supra),
Ram Prasad's case (supra) and Ajit Singh-ti's case (supra),
F
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 201 O, while
reiterating the submissions made on behalf of the other
G
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
H
548 SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A 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
B 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,
c the same was 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
0 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,
E little or no information was supplied with regard to the
population, education, public employment, private employment,
selfemployment, below poverty line population and percapita
income of Scheduled Tribes and Scheduled Castes for the
years 1951, 2001 and 2009. In fact, the response of the
F National Commission for Scheduled Tribes was that they did
not have the requisite data for all the information sought for.
27. Mr. Lahoti lastly contended that in the absence of
any data in relation to Scheduled Castes and Scheduled
G 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
H
SURAJ BHAN MEENA & ANR. v. STATE OF
549
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
Scheduled Castes and Scheduled Tribes employees.
A
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
8
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 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
C
he has 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
D
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,
E
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 allowed on 3oth May, 2001 and the
subsequent challenge thereto before the Division Bench
F
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
G
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.
H
550
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 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
B the most important factor for the Government to exercise its
powers under Article 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
c 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
0
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.
E
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 whether the conditions enumerated
in M. Nagaraj's case (supra) applied to cases of seniority
F 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)
G 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(4A) by substituting the words "in matters of promotion, with
consequential seniority, to any class", in place of the words
H "in matters of promotion to any class". Dr. Dhawan submitted
SURAJ BHAN MEENA & ANR. v. STATE OF
551
RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
that by the Constitution (85th Amendment) Act, 2001, the
legislature reintroduced the concept of consequential seniority
to any class in matters of promotion.
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 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
A
8
c
D
E
F
G
H
552 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A not, either directly or indirectly, circumvent or ignore or refuse
to undertake the exercise by taking recourse to the
Constitution (85th Amendment) Act providing for reservation
in promotion with consequential seniority.
8
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.