# B K PAVITRA AND ORS v. THE UNION OF INDIA AND ORS

- **Citation:** [2019] 7 S.C.R. 1086
- **Court:** Supreme Court of India
- **Decided:** 2019-05-10
- **Case number:** Civil Appeal No. 2368 of 2011
- **Bench:** Uday Umesh Lalit, Dr. Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-k-pavitra-and-ors-v-the-union-of-india-and-ors-33963
- **Pages:** 133

## Headnote

Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the
Posts in the Civil Services of the State) Act, 2018:
Validity of - Held: Reservation Act 2018 is constitutionally
valid - Reservation Act 2018 has cured the deficiency noticed by
*B K Pavitra I in respect of the Reservation Act 2002 - Reservation
Act 2018 does not amount to usurpation of judicial power by the
state legislature - The Act is a valid exercise of the enabling power
conferred by Art. 16 (4A) - 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 - Constitution
of India - Art. 16 (4A).
2018 Act, if overruled or nullified B K Pavitra I case - In
B K Pavitra I case, the Reservation Act 2002 was held to be
unconstitutional since the State did not collect the quantifiable data
on the three parameters enunciated in Nagaraj case-inadequacy of
representation, backwardness and overall efficiency, before
providing for reservation in promotion and consequential seniority
- Thereafter, enactment of 2018 Act - Held: Following the decision
in *B K Pavitra I, the State government duly carried out the exercise
of collating and analysing data on the compelling factors adverted
to in Nagaraj case - State legislature of Karnataka, by enacting
the Reservation Act 2018, has not nullified the judicial decision in
*B K Pavitra I, but taken care to remedy the underlying cause which
led to a declaration of invalidity in the first place - Thus, the
 [2019] 7 S.C.R. 1086
1086
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1087
Reservation
Act
2018
cured
the
deficiency
noticed
by *B K Pavitra I in respect of the Reservation Act 2002 - Such a
law is valid because it removes the basis of the decision - 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.
s. 4 - Protection of consequential seniority already accorded
from 27.04.1978 onwards - Provision in regard to retrospectivity,
whether arbitrary or unconstitutional - Held: Provisions are neither
arbitrary or unconstitutional - Section 4 stipulates that the
consequential seniority already granted to government servants
belonging to the SCs and STs in accordance with the reservation
order with effect from 27.04.1978 shall be valid and shall be
protected - Since decision in Virpal Singh held that the catch-up rule
would be applied only from 10.02.1995, decision in Ajit Singh II
specifically protected the promotions granted before 01.03.1996
without following the catch-up rule; and in Badappanavar's case,
promotions of reserved candidates based on consequential seniority
which took place before 01.03.1996 were specifically protected, it
was logical for the legislature to protect consequential seniority -
Object of the Reservation Act 2018 is to accord consequential
seniority to promotees against roster points.
Constitution of India:
Arts. 200 and 201 - Assent to the Bill - Reservation of the
Bill( which led to Reservation Act, 2018) by the Governor for the
consideration of the President - Power u/Art. 200 - Exercise of -
Held: Once the Bill was reserved by the Governor for the
consideration of the President, it was for the President to either
grant or withhold assent to the Bill - President having assented to
the Bill, the requirements of Art. 201 were fulfilled - Validity of the
assent by the President is non-justiciable - State Government, was
of the view that there was no necessity of reserving the Bill for the
consideration of the President, since in its view, the Governor had
not recorded a finding that it was unconstitutional, or fell afoul of
existing central legislation on the subject or that it was beyond
legislative competence or derogated from the fundamental rights -
This objection of the State Government cannot cast doubt upon the
grant of assent by the President - Karnataka Extension

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SUPREME COURT REPORTS
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B K PAVITRA AND ORS.
v.
THE UNION OF INDIA AND ORS
(M. A. No. 1151 of 2018)
in
(Civil Appeal No. 2368 of 2011)
MAY 10, 2019
[UDAY UMESH LALIT AND
DR. DHANANJAYA Y CHANDRACHUD, JJ.]
Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the
Posts in the Civil Services of the State) Act, 2018:
Validity of - Held: Reservation Act 2018 is constitutionally
valid - Reservation Act 2018 has cured the deficiency noticed by
*B K Pavitra I in respect of the Reservation Act 2002 - Reservation
Act 2018 does not amount to usurpation of judicial power by the
state legislature - The Act is a valid exercise of the enabling power
conferred by Art. 16 (4A) - 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 - Constitution
of India - Art. 16 (4A).
2018 Act, if overruled or nullified B K Pavitra I case - In
B K Pavitra I case, the Reservation Act 2002 was held to be
unconstitutional since the State did not collect the quantifiable data
on the three parameters enunciated in Nagaraj case-inadequacy of
representation, backwardness and overall efficiency, before
providing for reservation in promotion and consequential seniority
- Thereafter, enactment of 2018 Act - Held: Following the decision
in *B K Pavitra I, the State government duly carried out the exercise
of collating and analysing data on the compelling factors adverted
to in Nagaraj case - State legislature of Karnataka, by enacting
the Reservation Act 2018, has not nullified the judicial decision in
*B K Pavitra I, but taken care to remedy the underlying cause which
led to a declaration of invalidity in the first place - Thus, the
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1086
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B
C
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E
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Reservation
Act
2018
cured
the
deficiency
noticed
by *B K Pavitra I in respect of the Reservation Act 2002 - Such a
law is valid because it removes the basis of the decision - 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.
s. 4 - Protection of consequential seniority already accorded
from 27.04.1978 onwards - Provision in regard to retrospectivity,
whether arbitrary or unconstitutional - Held: Provisions are neither
arbitrary or unconstitutional - Section 4 stipulates that the
consequential seniority already granted to government servants
belonging to the SCs and STs in accordance with the reservation
order with effect from 27.04.1978 shall be valid and shall be
protected - Since decision in Virpal Singh held that the catch-up rule
would be applied only from 10.02.1995, decision in Ajit Singh II
specifically protected the promotions granted before 01.03.1996
without following the catch-up rule; and in Badappanavar's case,
promotions of reserved candidates based on consequential seniority
which took place before 01.03.1996 were specifically protected, it
was logical for the legislature to protect consequential seniority -
Object of the Reservation Act 2018 is to accord consequential
seniority to promotees against roster points.
Constitution of India:
Arts. 200 and 201 - Assent to the Bill - Reservation of the
Bill( which led to Reservation Act, 2018) by the Governor for the
consideration of the President - Power u/Art. 200 - Exercise of -
Held: Once the Bill was reserved by the Governor for the
consideration of the President, it was for the President to either
grant or withhold assent to the Bill - President having assented to
the Bill, the requirements of Art. 201 were fulfilled - Validity of the
assent by the President is non-justiciable - State Government, was
of the view that there was no necessity of reserving the Bill for the
consideration of the President, since in its view, the Governor had
not recorded a finding that it was unconstitutional, or fell afoul of
existing central legislation on the subject or that it was beyond
legislative competence or derogated from the fundamental rights -
This objection of the State Government cannot cast doubt upon the
grant of assent by the President - Karnataka Extension of
Consequential Seniority to Government Servants Promoted on the
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Basis of Reservation (to the Posts in the Civil Services of the State)
Act, 2018.
Art. 16(4A) and (4B) - Ratna Prabha Committee report -
Collection of data by State on adequacy of representation and impact
on efficiency - Exercise of judicial power on propriety and
sufficiency - Held: Court should recognize the circumspection with
which judicial power must be exercised - Judicial review must
traverse conventional categories by determining as to whether the
Ratna Prabha Committee considered material which was irrelevant
or extraneous or had drawn a conclusion which no reasonable
body of persons could have adopted.
Art. 16(4A) and (4B) - Ratna Prabha Committee report -
Report, commissioned to collect information on cadre wise
representation of SC and ST employees in all government
departments and on backwardness of SCs and STs; and study the
effect on the administration due to the promotion of SCs and STs -
Report, whether constituted an adequate and appropriate basis to
support the validity of the Reservation Act and its implementation -
Held: Ratna Prabha Committee report is valid - After the decision
in *B K Pavitra I, the Ratna Prabha Committee was correctly
appointed to carry out the required exercise - Committee has not
based its conclusions on any extraneous or irrelevant material - In
adopting recourse to sampling methodologies, the Committee has
not acted arbitrarily - The exercise cannot be invalidated only on
the ground that data pertaining to a particular department or of
some entities was not analysed - State analysed the data which is
both relevant and representative, before drawing its conclusions -
Even if there were some errors in data collection, that would not
justify the invalidation of a law which the competent legislature
was within its power to enact - Furthermore, there is no merit in the
challenge to the Ratna Prabha Committee report on the ground that
the collection of data was on the basis of groups A, B, C and D as
opposed to cadres - Collection of data on the basis of groups A to
D does not by its very nature exclude data pertaining to cadres -
Since, the group includes posts in all the cadres in that group, it
can logically be presumed that the State has collected quantifiable
data on the representation of SCs and STs in promotional posts in
the cadres as well - Karnataka Extension of Consequential Seniority
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to Government Servants Promoted on the Basis of Reservation (to
the Posts in the Civil Services of the State) Act, 2018.
Art. 16(1) and (4) - Equality - Substantive versus formal
equality - Constitutional content of - Held: For equality to be truly
effective or substantive, the principle must recognise existing
inequalities in society to overcome them - Reservations are not an
exception to the rule of equality of opportunity, rather the true
fulfilment of effective and substantive equality by accounting for
the structural conditions into which people are born.
Interpretation of the Constitution - Held: Constitution is a
transformative document - Realization of its transformative potential
rests ultimately in its ability to breathe life and meaning into its
abstract concepts - Constitution was intended by its draftspersons
to be a significant instrument of bringing about social change -
Realisation of the transformative potential of the Constitution has
been founded on the evolution of equality away from its formal
underpinnings to its substantive potential.
Art. 335 proviso - Claims of Scheduled Castes and Scheduled
Tribes to services and posts - Constitutional justification for
efficiency in administration - Held: Under Art. 335 consideration
of the claims of SCs and STs in making appointments to services
and posts in connection with the affairs of the Union or of a State is
to be in a manner consistent with maintaining the efficiency of
administration - Proviso to Art. 335 specifically protects provisions
in favour of the SCs and STs for relaxing qualifying marks in an
examination; lowering the standards of evaluation; or reservation
in matters of promotion - Proviso recognises that special measures
need to be adopted for considering the claims of SCs and STs in
order to bring them to a level playing field - Proviso is not a
qualification to the substantive part of Art. 335 but it embodies a
substantive effort to realise substantive equality - Need to maintain
the efficiency of administration cannot be construed as a fetter on
adopting these special measures designed to uplift and protect the
welfare of the SCs and STs.
Art. 335 - Phrase "efficiency of administration" - Definition
of - Held: Constitution does not define the phrase "efficiency of
administration" - Art. 335 cannot be construed on an assumption
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that roster point promotees drawn from SCs and STs are not efficient
or that efficiency is reduced by appointing them - Benchmark for
the efficiency of administration is not the performance of a qualified
open category candidate - Efficiency of administration in the affairs
of the Union or of a State must be defined in an inclusive sense,
where diverse segments of society find representation as a true
aspiration of governance by and for the people - Inclusion together
with the recognition of the plurality and diversity of the nation
constitutes a valid constitutional basis for defining efficiency -
Hence, while interpreting Art. 335, it is necessary to liberate the
concept of efficiency from a one sided approach which ignores the
need for and the positive effects of the inclusion of diverse segments
of society on the efficiency of administration - Since inclusion is
inseparable from a well governed society, there is, no antithesis
between maintaining the efficiency of administration and
considering the claims of the SCs and STs to appointments.
Arts. 335, 16(4) and 46 - Reservation for SCs and STs -
Principal of meritocracy - Held: Providing of reservations for SCs
and the STs is not at odds with the principle of meritocracy - "Merit"
must not be limited to narrow and inflexible criteria such as one's
rank in a standardised exam, but rather must flow from the actions
a society seeks to reward, including the promotion of equality in
society and diversity in public administration - Proviso to Art. 335
allows for provisions to be made for relaxing the marks in qualifying
exams in the case of candidates from the SCs and the STs - If the
government's sole consideration in appointments was to appoint
individuals who were considered talented or successful in
standardised examinations, by virtue of the inequality in access to
resources and previous educational training (existing inequalities
in society), the stated constitutional goal of uplifting these sections
of society and having a diverse administration would be undermined
- Thus, a "meritorious" candidate is not merely one who is "talented"
or "successful" but also one whose appointment fulfils the
constitutional goals of uplifting members of the SCs and STs and
ensuring a diverse and representative administration.
Arts. 16 (4A), (4B), 16(1) and 14 - Reservation - Concept of
creamy layer - Applicability to SCs and STs - Plea that concept of
creamy layer is inapplicable to the SCs and STs; and that the SCs
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and STs cannot be split or bifurcated and the adoption of the creamy
layer principle would amount to a split in the homogenous groups
of the SCs and STs - Held: Cannot be accepted - Creamy layer
principle sounds in Arts. 14 and 16(1) - Creamy layer principle is a
principle of equality.
Arts. 16 (4A) and (4B) - Reservation - Concept of creamy
layer - Application of the concept of creamy layer in assessing the
validity of the Reservation Act 2018 - Held: Concept of creamy
layer has no application in assessing the validity of the Reservation
Act 2018 which is designed to protect consequential seniority upon
promotion of persons belonging to the SCs and STs - Reservation
Act 2018 adopts the principle that consequential seniority is not an
additional benefit but a consequence of the promotion which is
granted to the SCs and STs - Concept of creamy layer has no
relevance to the grant of consequential seniority - Consequential
seniority is a concept purely based in service jurisprudence - Thus,
incorporation of consequential seniority would not violate the
constitutional mandate of equality - Protection of consequential
seniority as an incident of promotion does not require the application
of the creamy layer test - Arts 16 (4A) and 16 (4B) were held to not
obliterate any of the constitutional limitations and to fulfil the width
test - Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the
Posts in the Civil Services of the State) Act, 2018.
Arts 16(4A) and (4B) - Reservation in promotion - Plea that
over representation for SCs and STs in Karnataka Power Transport
Corporation Limited and PWD due to reservation in seniority in the
cadre of Superintending Engineer and Engineer in Chief - Held:
Cannot be accepted in view of the report of the Ratna Prabha
Committee collected data from thirty one departments of the State
Government of Karnataka, which was taken as representative of
the position in public employment under the State - KPTCL and
PWD fall within the administrative control of one of the departments.
Legislation: Curative legislation - Scope and permissibility
of - Held: Curative legislation is constitutionally permissible - It is
not an encroachment on judicial power - Legislature has the plenary
power to enact a law, both with prospective and retrospective effect
- Where a law has been invalidated by the decision of a
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constitutional court, the legislature can amend the law
retrospectively or enact a law which removes the cause for
invalidation - Legislature cannot overrule a decision of the court
on the ground that it is erroneous or is nullity - However, it can
either amend an existing law or to enact a law which removes the
basis on which a declaration of invalidity was issued in the exercise
of judicial review - Declaration by a court that a law is
constitutionally invalid does not fetter the authority of the legislature
to remedy the basis on which the declaration was issued by curing
the grounds for invalidity - Legislature cannot simply override the
declaration of invalidity - It has to remedy basis on which it was
held to be ultra vires - Law may have been held to be invalid on the
ground that the legislature which enacted the law had no legislative
competence on the subject matter of the legislation, or a law may
have been declared invalid on the ground that there was a breach
of the fundamental rights contained in Part III of the Constitution.
The constitutional validity of the Karnataka Determination
of Seniority of the Government Servants Promoted on the Basis
of the Reservation (to the Posts in the Civil Services of the State)
Act 2002 providing for consequential seniority was challenged in
B K Pavitra v Union of India case (*B K Pavitra I). This Court
invalidated the Reservation Act 2002 since no exercise of data
collection was carried out by the State of Karnataka as mandated
by the M Nagraj case, to provide for consequential seniority to
the scheduled castes and scheduled tribe candidates. Thereafter,
the Government of Karnataka constituted the Ratna Prabha
Committee to submit report on backwardness and inadequacy of
representation of SCs and STs in the State Civil Services and the
impact of reservation on overall administrative efficiency in the
State of Karnataka. On the basis of the report, the State of
Karnataka enacted 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) Act
2018, wherein section 3 provides for reservation in promotion
and section 4 provides for protection of consequential seniority
from 27th April 1978 onwards. Hence, the instant matters
challenging the validity of the Reservation Act, 2018.
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Dismissing the Writ Petitions, Review Petitions and
Miscellaneous Applications, the Court
HELD : 1.The challenge to the constitutional validity of
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) Act, 2018 is lacking
in substance. Following the decision in *B K Pavitra I, the State
government duly carried out the exercise of collating and
analysing data on the compelling factors adverted to by the
Constitution Bench in Nagaraj. The Reservation Act 2018 has
cured the deficiency which was noticed by * B K Pavitra I in
respect of the Reservation Act 2002. The Reservation Act 2018
does not amount to a usurpation of judicial power by the state
legislature. It is Nagaraj and Jarnail compliant. The Reservation
Act 2018 is a valid exercise of the enabling power conferred by
Art. 16(4A) of the Constitution. The constitutional validity of the
Reservation Act 2018 is upheld. [Para 144-145] [1218-C-E]
M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]
7 Suppl. SCR 336 - followed.
*B K Pavitra v Union of India (2017) 4 SCC 620 :
[2017] 1 SCR 631 ; Jarnail Singh v Lachhmi Narain
Gupta 2018 (10) SCC 396 - relied on.
Assent to the Bill
2.1 The framers carefully eschewed defining the
circumstances in which the Governor may reserve a Bill for the
consideration of the President. By its very nature the conferment
of the power cannot be confined to specific categories. Exigencies
may arise in the working of the Constitution which justify a
recourse to the power of reserving a Bill for the consideration of
the President. They cannot be foreseen with the vision of a
soothsayer. The power having been conferred upon a constitutional
functionary, it is conditioned by the expectation that it would be
exercised upon careful reflection and for resolving legitimate
concerns in regard to the validity of the legislation. The
entrustment of a constitutional discretion to the Governor is
premised on the trust that the exercise of authority would be
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governed by constitutional statesmanship. In a federal structure,
the conferment of this constitutional discretion is not intended
to thwart democratic federalism. The state legislatures represent
the popular will of those who elect their representatives. They
are the collective embodiments of that will. The act of reserving
a Bill for the assent of the President must be undertaken upon
careful reflection, upon a doubt being entertained by the Governor
about the constitutional legitimacy of the Bill which has been
passed. [Para 63] [1168-F-G; 1169-A-B]
2.2 Article 254(1) postulates inter alia, that in a matter which
is governed by the Concurrent List, a law which has been enacted
by the legislature of a state shall be void to the extent of its
repugnancy with a law enacted by the Parliament. Clause (2) of
Article 254 obviates that consequence where the law has been
reserved for the consideration of the President and has received
assent. Article 254(1) is made subject to Clause (2), thereby
emphasizing that the assent of the President will cure a
repugnancy of the state law with a law enacted by the Parliament
in a matter falling in the Concurrent List. The assent of the
President should be sought in relation to a repugnancy with a
specific provision contained in a Parliamentary legislation so as
to enable due consideration by the President of the ground on
which assent has been sought. Article 200 contains the source of
the constitutional power which is conferred upon the Governor
to reserve a Bill for the consideration of the President. Article
254 (2) is an illustration of the constitutional authority of the
Governor to reserve a law enacted by the state legislature for
consideration of the President in a specified situation-where it is
repugnant to an existing law or to a Parliamentary legislation on
a matter falling in the Concurrent List. The eventuality which is
specified in Article 254 (2) does not exhaust the ambit of the
power entrusted to the Governor under Article 200 to reserve a
Bill for the consideration of the President. Apart from a
repugnancy in matters falling in the Concurrent List between
state and Parliamentary legislation, a Governor may have sound
constitutional reasons to reserve a Bill for the consideration of
the President. Article 200, in its second proviso mandates that a
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Bill which derogates from the powers of the High Court must be
reserved for the consideration of the President. Apart from Bills
which fall within the description set out in the second proviso,
the Governor may legitimately refer a Bill for consideration of
the President upon entertaining a legitimate doubt about the
validity of the law. By its very nature, it would not be possible for
this Court to reflect upon the situations in which the power under
Article 200 can be exercised. [Para 67] [1170-F-H; 1171-A-E]
2.3 Once the Bill (which led to the Reservation Act 2018)
was reserved by the Governor for the consideration of the
President, it was for the President to either grant or withhold
assent to the Bill. The President having assented to the Bill, the
requirements of Article 201 were fulfilled. The validity of the
assent by the President is non-justiciable. [Para 69] [1172-D-E]
2.4 The State Government, in the course of its clarifications,
was of the view that there was no necessity of reserving the Bill
for the consideration of the President, since in its view, the
Governor had not recorded a finding that it was unconstitutional,
or fell afoul of existing central legislation on the subject or that it
was beyond legislative competence or derogated from the
fundamental rights. All procedural requirements under the
Constitution were according to the government duly complied
with. This objection of the State Government cannot cast doubt
upon the grant of assent by the President. [Para 70] [1173-B-C]
Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4
SCC 45 : [1983] 3 SCR 130 - relied on.
Nabam Rebia and Bamang Felix v Deputy Speaker
Arunachal Pradesh Legislative Assembly (2016) 8
SCC 1 : [2016] 6 SCR 1 ; Gram Panchayat of Village
Jamalpur v Malwinder Singh (1985) 3 SCC 661 ;
Kaiser-I-Hind Pvt Ltd v National Textile Corporation
Ltd (2002) 8 SCC 182 : [2002] 2 Suppl. SCR 555
- referred to.
Does the Reservation Act 2018 overrule or nullify B K
Pavitra I
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3.1 The foundation of the decision in B K Pavitra I is the
principle enunciated in Nagaraj that in order to sustain the
exercise of the enabling power contained in Article 16 (4A), the
state is required to demonstrate a "compelling necessity" by
collecting quantifiable data on: (i) inadequacy of representation;
(ii) backwardness; and (iii) overall efficiency. The judgment in B
K Pavitra I held that no such exercise was undertaken by the
State of Karnataka before providing for reservation in promotion
and providing for consequential seniority. On the ground that
the state had not collected quantifiable data on the three
parameters enunciated in Nagaraj, the Reservation Act 2002 was
held to be unconstitutional. The Constitution Bench in Nagaraj
upheld the validity of Article 16 (4A) on the basis that before
taking recourse to the enabling power the state has to carry out
the exercise of collecting quantifiable data and fulfilling the three
parameters noted above. B K Pavitra I essentially held that there
was a failure on the part of the state to undertake this exercise,
which was a pre-condition for the exercise of the enabling power
to make reservations in promotions and to provide for
consequential seniority. [Para 71] [1173-D-G]
M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]
7 Suppl. SCR 336 - followed.
*B K Pavitra v Union of India (2017) 4 SCC 620 :
[2017] 1 SCR 631 - relied on.
3.2 The decision in B K Pavitra I did not restrain the state
from carrying out the exercise of collecting quantifiable data so
as to fulfil the conditionalities for the exercise of the enabling
power under Article 16 (4A). The legislature has the plenary
power to enact a law. That power extends to enacting a legislation
both with prospective and retrospective effect. Where a law has
been invalidated by the decision of a constitutional court, the
legislature can amend the law retrospectively or enact a law which
removes the cause for invalidation. A legislature cannot overrule
a decision of the court on the ground that it is erroneous or is
nullity. But, it is certainly open to the legislature either to amend
an existing law or to enact a law which removes the basis on
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which a declaration of invalidity was issued in the exercise of
judicial review. Curative legislation is constitutionally permissible.
It is not an encroachment on judicial power. In the instant case,
state legislature of Karnataka, by enacting the Reservation Act
2018, has not nullified the judicial decision in B K Pavitra I, but
taken care to remedy the underlying cause which led to a
declaration of invalidity in the first place. Such a law is
valid because it removes the basis of the decision. [Para 72]
[1173-G-H; 174-A-C]
*B K Pavitra v Union of India (2017) 4 SCC 620 :
[2017] 1 SCR 631 - relied on.
Utkal Contractors & Joinery (P) Ltd v State of Orissa
(1987) Supp. SCC 751 : 1988 SCR 314 ;
Bhubaneshwar Singh v Union of India (1994) 6 SCC
77 : [1994] 1 Suppl. SCR 639 ; Indian Aluminium Co v
State of Kerala (1996) 7 SCC 637 ; State of Himachal
Pradesh v. Narain Singh (2009) 13 SCC 165 : [2009]
10 SCR 821 ; Cheviti Venkanna Yadav v State of
Telangana (2017) 1 SCC 283 : [2016] 7 SCR 689
- referred to.
3.3 The legislature has the power to validate a law which is
found to be invalid by curing the infirmity. As an incident of the
exercise of this power, the legislature may enact a validating law
to make the provisions of the earlier law effective from the date
on which it was enacted. [Para 74] [1175-A-B]
The United Provinces v Mst Atiqa Begum AIR 1941 FC
16 ; Rai Ramkrishna v State of Bihar (1964) 1 SCR
897 ; Shri Prithvi Cotton Mills Ltd v Broach Borough
Municipality (1969) 2 SCC 283 : [1970] 1 SCR 388 ;
State of T N v Arooran Sugars Ltd (1997) 1 SCC 326 :
[1996] 8 Suppl. SCR 193 ; Virender Singh Hooda v
State of Haryana (2004) 12 SCC 588 : [2004] 5 Suppl.
SCR 720 - referred to.
3.4 A declaration by a court that a law is constitutionally
invalid does not fetter the authority of the legislature to remedy
the basis on which the declaration was issued by curing the
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grounds for invalidity. While curing the defect, it is essential to
understand the reasons underlying the declaration of invalidity.
The reasons constitute the basis of the declaration. The
legislature cannot simply override the declaration of invalidity
without remedying the basis on which the law was held to be
ultra vires. A law may have been held to be invalid on the ground
that the legislature which enacted the law had no legislative
competence on the subject matter of the legislation. Obviously,
in such a case, a legislature which has been held to lack legislative
competence cannot arrogate to itself competence over a subject
matter over which it has been held to lack legislative competence.
However, a legislature which has the legislative competence to
enact a law on the subject can certainly step in and enact a
legislation on a field over which it possesses legislative
competence. Apart from legislative competence, a law may have
been declared invalid on the ground that there was a breach of
the fundamental rights contained in Part III of the Constitution.
In that situation, if the legislature proceeds to enact a new law on
the subject, the issue in essence is whether the re-enacted law
has taken care to remove the infractions of the fundamental rights
on the basis of which the earlier law was held to be invalid. The
true test therefore is whether the legislature has acted within
the bounds of its authority to remedy the basis on which the earlier
law was held to suffer from a constitutional infirmity. [Para 76]
[1176-G-H; 1177-A-B; D-E]
Madan Mohan Pathak v Union of India (1978) 2 SCC
50 : [1978] 3 SCR 334 - distinguished.
Sri Ranga Match Industries v Union of India 1994 Supp.
(2) SCC 726 ; Indian Aluminium Co v State of Kerala
(1996) 7 SCC 637 ; Agricultural Income Tax Officer v
Goodricke Group Ltd (2015) 8 SCC 399 : [2015] 3
SCR 612 - referred to.
Is the basis of B K Pavitra I cured in enacting the
Reservation Act 2018
4. The Statement of Objects and Reasons of the
Reservation Act 2018 refers to the legislative history preceding
its enactment. The Ratna Prabha Committee was constituted after
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the Reservation Act 2002 was held to be invalid in B K Pavitra I
on the ground that no compelling necessity had been shown by
the state to provide for reservation in matters of promotion for
SCs and STs by collecting and analysing relevant data to satisfy
the requirements laid out in Nagaraj. The Statement of Objects
and Reasons, cannot be used for restricting the plain meaning of
a legislation; cannot determine whether a provision is valid; and
may not be definitive of the circumstances in which it was passed.
The preamble to a law may be a statutory aid to consider the
mischief which the law seeks to address. While it cannot prevail
over the provisions of the statute, it can be an aid to resolve an
ambiguity. [Para 82, 84, 85] [1180-F-G; 1181-A; 1182-E-G]
Bhaiji v Sub-Divisional Officer, Thandla (2003) 1 SCC
692 : [2002] 5 Suppl. SCR 116 ; A Manjula Bhashini v
A P Monen's Coor. Finance Corp. Ltd. (2009) 8 SCC
431 : [2009] 10 SCR 634 ; Kerala State (Electricity)
Board v Indian Aluminum (1976) 1 SCC 466 : [1976] 1
SCR 552 ; K S Paripoornan v State of Kerala (1994) 5
SCC 593 : [1994] 3 Suppl. SCR 405 ; Welfare
Association v Ranjit (2003) 9 SCC 358 : [2003] 2 SCR
139 ; Burrakur Coal Co. Ltd. v Union of India AIR
1961 SC 954 : 1962 SCR 44 ; Indra Sawhney v Union
of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR
454 ; M Nagaraj v Union of India (2006) 8 SCC 212 :
[2006] 7 Suppl. SCR 336 ; Jarnail Singh v Lachhmi
Narain Gupta 2018 (10) SCC 396 - referred to.
The Ratna Prabha Committee report
5.1 The Ratna Prabha Committee report was commissioned
to collect information on cadre wise representation of SC and ST
employees in all government departments; collect information
on backwardness of SCs and STs; and study the effect on the
administration due to the promotion of SCs and STs. [Para 88]
[1183-F-G]
5.2 It is relevant for this Court to recognize the
circumspection with which judicial power must be exercised on
matters which pertain to propriety and sufficiency, in the context
of scrutinizing the underlying collection of data by the State on
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the adequacy of representation and impact on efficiency. The
Court, is above all, considering the validity of a law which was
enacted by the State legislature for enforcing the substantive right
to equality for the SCs and STs. Judicial review must hence
traverse conventional categories by determining as to whether
the Ratna Prabha Committee report considered material which
was irrelevant or extraneous or had drawn a conclusion which no
reasonable body of persons could have adopted. In this area, the
fact that an alternate line of approach was possible or may even
appear to be desirable cannot furnish a foundation for the
assumption by the court of a decision making authority which in
the legislative sphere is entrusted to the legislating body and in
the administrative sphere to the executive arm of the government.
[Para 95] [1188-E-G]
5.3 The collection of data and its analysis are governed by
varying and often divergent approaches in the social sciences.
The methodology which was adopted by the Ratna Prabha
Committee has not been demonstrated to be alien to conventional
social science methodologies. It cannot be said that the
Committee has based its conclusions on any extraneous or
irrelevant material. In adopting recourse to sampling
methodologies, the Committee cannot be held to have acted
arbitrarily. If, sampling is a valid methodology for collection of
data, the necessary consequence is that the exercise cannot be
invalidated only on the ground that data pertaining to a particular
department or of some entities was not analysed. The data which
was collected pertained to thirty one departments which are
representative in character. The State has analysed the data which
is both relevant and representative, before drawing its
conclusions. There are limitations on the power of judicial review
in entering upon a factual arena involving the gathering, collation
and analysis of data. [Para 97, 99] [1190-C; 1191-F-H; 1192-A]
Empircal Political Analysis - Quantitative and
Qualitative Research Methods Ninth Edn. Richard C.
Rich, Craig Leonard Brians, Jarol B Manheim and
Lars B Willnat, Longman Publishers - referred to.
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5.4 Once an opinion has been formed by the State
Government on the basis of the report submitted by an expert
committee which collected, collated and analysed relevant data,
it is impossible for the Court to hold that the compelling reasons
which Nagaraj requires the State to demonstrate have not been
established. Even if there were to be some errors in data
collection, that will not justify the invalidation of a law which the
competent legislature was within its power to enact. After the
decision in B K Pavitra I, the Ratna Prabha Committee was
correctly appointed to carry out the required exercise. Once that
exercise has been carried out, the Court must be circumspect in
exercising the power of judicial review to re-evaluate the factual
material on record. The adequacy of representation has to be
assessed with reference to a benchmark on adequacy.
Conventionally, the State and the Central governments have
linked the percentage of reservation for the SCs and STs to their
percentage of population, as a measure of adequacy. Thus, it is
open to the State to make reservation in promotion for SCs and
STs proportionate to their representation in the general
population. [Para 101, 102] [1192-D-G; 1193-A]
5.5 The submission that the quota must be reckoned on
the basis of the posts which are actually filled up or the working
strength and not the sanctioned posts cannot be accepted. The
percentage of reservation has to be worked out in relation to
number of posts which form part of the cadre strength. There is
no merit in the challenge to the Ratna Prabha Committee report
on the ground that the collection of data was on the basis of groups
A, B, C and D as opposed to cadres. For one thing, the expression
'cadre' has no fixed meaning ascribed to it in service
jurisprudence. But that apart, Nagaraj requires the collection of
quantifiable data inter alia, on the inadequacy of representation
in services under the State. Clause 4A of Article 16 specifically
refers to the inadequacy of representation in the services under
the State. The collection of data on the basis of groups A to D
does not by its very nature exclude data pertaining to cadres.
The State has studied in the instant case the extent of reservation
for SCs and STs in groups A to D, consisting of several cadres.
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Since, the group includes posts in all the cadres in that group, it
can logically be presumed that the State has collected quantifiable
data on the representation of SCs and STs in promotional posts
in the cadres as well. [Para 103, 104] [1194-G-H; 1195-A-C]
5.6 In Indra Sawhney's case, it was observed that
reservation under Article 16 (4) does not operate on communal
grounds. Hence, if a member belonging to a reserved category
is selected in the general category, the selection would not count
against the quota prescribed for the reserved category. The
decision in Sabharwal also noted that while candidates belonging
to the general category are not entitled to fill reserved posts,
reserved category candidates are entitled to compete for posts
in the general category. In several group D posts, such as
municipal sweepers, large segment of applicants consists of
persons belonging to the SCs and STs. Over representation in
group D posts as a result of candidates belonging to the general
category staying away from those posts cannot be a valid or logical
basis to deny promotion to group D employees recruited from
the reserved category. [Para 105] [1195-D-F]
Amalgamated Tea Estates Co Ltd v State of Kerala (1974)
4 SCC 415 : [1974] 3 SCR 820 ; V C Shukla v State
(Delhi Administration) (1980) Supp SCC 249 : 1980
SCR 500 ; State of Himachal Pradesh v Satpal Saini
(2017) 11 SCC 42 : [2017] 1 SCR 658 ; Indra Sawhney
v Union of India 1992 Supp (3) SCC 217 : [1992] 2
Suppl. SCR 454 ; Barium Chemicals Ltd. v Company
Law Board AIR 1967 SC 295 : 1966 SCR 311 ; M
Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7
Suppl. SCR 336 ; Jarnail Singh v Lachhmi Narain
Gupta 2018 (10) SCC 396 ; Sabharwal v State of
Punjab (1995) 2 SCC 745 : [995] 2 SCR 35 - referred
to.
Substantive versus formal equality
6.1 For equality to be truly effective or substantive, the
principle must recognise existing inequalities in society to
overcome them. Reservations are thus not an exception to the
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rule of equality of opportunity. They are rather the true fulfilment
of effective and substantive equality by accounting for the structural
conditions into which people are born. If Article 16(1) merely
postulates the principle of formal equality of opportunity, then
Article 16(4) (by enabling reservations due to existing
inequalities) becomes an exception to the strict rule of formal
equality in Article 16(1). However, if Article 16(1) itself sets out
the principle of substantive equality (including the recognition of
existing inequalities) then Article 16(4) becomes the enunciation
of one particular facet of the rule of substantive equality set out
in Article 16 (1). One method of overcoming the inequalities in
the society is reservations for the SCs and STs in the legislatures
and state services. Therefore, for the members of the Constituent
Assembly who supported reservations, a key rationale for
incorporating reservations for SCs and STs in the Constitution
was the existence of inequalities in society based on discrimination
and prejudice within the caste structure. This is evidenced by
the statements in support of reservations for minorities by
members. By recognising that formal equality of opportunity will
be insufficient in fulfilling the transformative goal of the
Constitution, these members of the Assembly recognised that
the conception of equality of opportunity must recognise and
account for existing societal inequalities.