# rf ASHOK KUMAR GUPTA AND ANR v. STATE OF U.P. AND ORS

- **Citation:** [1997] 3 S.C.R. 269
- **Court:** Supreme Court of India
- **Decided:** 1997-03-21
- **Bench:** K. Ramaswamy, S. Saghir Ahmad, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rf-ashok-kumar-gupta-and-anr-v-state-of-u-p-and-ors-15506
- **Pages:** 53

## Headnote

A
B
Constitution of India, Articles 13, 14, 16 (1), 16(4), 16(4-A), 32, 142,
145(5) r/w Uttar Pradesh Service of Engineers (Public Works Depmtment)
(Higher) Rules, 1990-Reseivation in promotion-Whether Supreme Court in C
Manda! Case could validly postpone effect of invalidity of reservation in
promotion till five yem:~ after date of judgment-Held, yes; directions were not
violative of Arlicle 14 read with 16 (1) and were law under Anicle 141; Furlher
held, promotions already made in excess of roster would not be disturbed.
Service Law-Constitution of India, Arlicles J4, 16(1)! 16(4), 16(4-A) D
and 335-Whether right to promotion is a fundamental right-Held, no; it is
a statutory right; Fwther held, Article 16 (4-A) read with Arlicles 16(4) and
14 guarantee a fundamental right to promotion to Dalits and Tribes where
they have inadequate representation co11siste11t with efficiency of administration.
. Interpretation of Constitution-Rule of Stare Decisis in -Held, not an
inexorable or rigid ntle-Constitution of India, A1ticles 141, 145(5).
E
The Uttar Pradesh Service of Engineers (Public Works Department)
(Higher) Rules, 1990 provided for reservation in promotions. The promoF
lion of the respondents to various posts in the Public Works Department
of the Government of Uttar Pradesh was made between November 17, 1992
and December 11, 1993 and therefore were saved by the directions in Indira
Sawhney v. Unio11 of India, [1992] Supp 3 SCC 217 ('Manda! Case') since
they were made within five years of the date of the judgment. The appel- G
!ants challenged the promotions before the High Court unsuccessfully.
Before this Court the appellants and other writ petitioners contended that the operation of the judgment of the majority in the Mandai
Case that reservation in promotion was unconstitutional could not have
been postponed by prospective overruling of the ratio in The General H
269
270
SUPREME COURT REPORTS
(1997) 3 S.C.R.
A Manager, Southem Railway v. Rangachari, [1962] 2 SCR 586 ('Rangachari's
Case'). The direction to postpone the effect of the decision was not the
judgment of the majority of the judges in the Manda! Case and was a void
ab inito. Some of the private Respondents contended that with the insertion
of Article 16 (4-A) by the Constitution (77th) Amendment) Act of 1995
B effective from June 17, 1995, their promotions were validly made.
c
The question that arose for determination were whether the right to
promotion was a fundamental right and whether the direction regarding
prospective operation of the decision in the Manda/ Case was violative of
Articles 14 and 16 (1) and void under Article 13 (2) of the Constitution.
Dismissing the appeal and the writ petition, this Court
HELD : 1.1. The power under Article 142 being a constituent power
available only to this Court, the directions given in the Manda! case were
neither violative of rights under Article 14 read with Article 16(1), nor ultra
D vires the power, void or incompatible to or inconsistent with the doctrine
of equality enshrined under Article 14 read with Article 16(1) or the
Constitution. On the other hand, the power was exercised by this Court
under Article 142 read with Articles 32 and the direction postponing the
operation of the decision for a period of five years was a law of the land
E under Article 141. The question of such a law being void abinitio or nullity
or v9idable does not arise. [320-H, 321-A, 318-C]
Indira Sawhney v. U11io11 of I11dia, [1992] Supp. 3 SCC 217, explained.
The Ge11eral Manager, Southern Railway v. Rangachari, [1962] 2 SCR
F 586; A.R. A11tulay v. RS. Nayak, [1988] 2 SCC 602; Delhi Judicial Services
Associatio11, Tis Hazari v. State of Gujarat, [1991] 4 SCC 406; In Re; Vi11ay
Chandra Misra, [1995] 2 SCC 584; Delhi Development Authority v. Skipper
Const1Uctio11 Co. (P) Ltd., [1996] 4 SCC 622; Waman Rao v. Unio11 of India,
[1981] 2 SCR 1; Golaknath v. State of Punjab, [1967] 2 SCR 762;
Keshavana11da Bharati v. State of Kera/a, [1973] Su

## Text

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rf
ASHOK KUMAR GUPTA AND ANR.
v.
STATE OF U.P. AND ORS.
MARCH 21, 1997
[K. RAMASWAMY, S. SAGHIR AHMAD AND
G.B. PATTANAIK, JJ.]
A
B
Constitution of India, Articles 13, 14, 16 (1), 16(4), 16(4-A), 32, 142,
145(5) r/w Uttar Pradesh Service of Engineers (Public Works Depmtment)
(Higher) Rules, 1990-Reseivation in promotion-Whether Supreme Court in C
Manda! Case could validly postpone effect of invalidity of reservation in
promotion till five yem:~ after date of judgment-Held, yes; directions were not
violative of Arlicle 14 read with 16 (1) and were law under Anicle 141; Furlher
held, promotions already made in excess of roster would not be disturbed.
Service Law-Constitution of India, Arlicles J4, 16(1)! 16(4), 16(4-A) D
and 335-Whether right to promotion is a fundamental right-Held, no; it is
a statutory right; Fwther held, Article 16 (4-A) read with Arlicles 16(4) and
14 guarantee a fundamental right to promotion to Dalits and Tribes where
they have inadequate representation co11siste11t with efficiency of administration.
. Interpretation of Constitution-Rule of Stare Decisis in -Held, not an
inexorable or rigid ntle-Constitution of India, A1ticles 141, 145(5).
E
The Uttar Pradesh Service of Engineers (Public Works Department)
(Higher) Rules, 1990 provided for reservation in promotions. The promoF
lion of the respondents to various posts in the Public Works Department
of the Government of Uttar Pradesh was made between November 17, 1992
and December 11, 1993 and therefore were saved by the directions in Indira
Sawhney v. Unio11 of India, [1992] Supp 3 SCC 217 ('Manda! Case') since
they were made within five years of the date of the judgment. The appel- G
!ants challenged the promotions before the High Court unsuccessfully.
Before this Court the appellants and other writ petitioners contended that the operation of the judgment of the majority in the Mandai
Case that reservation in promotion was unconstitutional could not have
been postponed by prospective overruling of the ratio in The General H
269
270
SUPREME COURT REPORTS
(1997) 3 S.C.R.
A Manager, Southem Railway v. Rangachari, [1962] 2 SCR 586 ('Rangachari's
Case'). The direction to postpone the effect of the decision was not the
judgment of the majority of the judges in the Manda! Case and was a void
ab inito. Some of the private Respondents contended that with the insertion
of Article 16 (4-A) by the Constitution (77th) Amendment) Act of 1995
B effective from June 17, 1995, their promotions were validly made.
c
The question that arose for determination were whether the right to
promotion was a fundamental right and whether the direction regarding
prospective operation of the decision in the Manda/ Case was violative of
Articles 14 and 16 (1) and void under Article 13 (2) of the Constitution.
Dismissing the appeal and the writ petition, this Court
HELD : 1.1. The power under Article 142 being a constituent power
available only to this Court, the directions given in the Manda! case were
neither violative of rights under Article 14 read with Article 16(1), nor ultra
D vires the power, void or incompatible to or inconsistent with the doctrine
of equality enshrined under Article 14 read with Article 16(1) or the
Constitution. On the other hand, the power was exercised by this Court
under Article 142 read with Articles 32 and the direction postponing the
operation of the decision for a period of five years was a law of the land
E under Article 141. The question of such a law being void abinitio or nullity
or v9idable does not arise. [320-H, 321-A, 318-C]
Indira Sawhney v. U11io11 of I11dia, [1992] Supp. 3 SCC 217, explained.
The Ge11eral Manager, Southern Railway v. Rangachari, [1962] 2 SCR
F 586; A.R. A11tulay v. RS. Nayak, [1988] 2 SCC 602; Delhi Judicial Services
Associatio11, Tis Hazari v. State of Gujarat, [1991] 4 SCC 406; In Re; Vi11ay
Chandra Misra, [1995] 2 SCC 584; Delhi Development Authority v. Skipper
Const1Uctio11 Co. (P) Ltd., [1996] 4 SCC 622; Waman Rao v. Unio11 of India,
[1981] 2 SCR 1; Golaknath v. State of Punjab, [1967] 2 SCR 762;
Keshavana11da Bharati v. State of Kera/a, [1973] Supp. SCR 1; U11ion
G Carbide v. Unio11 of I11dia, [1991] 4 SCC 584; M. Venkateswarnlu v. Government of A.P., [1996] 5 SCC 167; U11ion of India v. Madhav, JT (1996) 9 SC
320; G.S./.C. Karamachari Union v. Gujarat Small I11dustries Corpon, JT
(1997) 1 SC 384; S. Sathyapriya v. State of A.P., [1996] 9 SCC 466; S.P.
Sampath Kumar v. Union of I11dia, [1987] 1 SCC 124; St. Stephe11
1s College
H v. Delhi University, [1992] 1SCC558; Managing Director, ECIL, Hyderabad
1
I
A.K. GUPTA v. STATE
271
v. B. Karunakar, [1993] 4 SCC 727; Union of India v. Mohd. Ramzan Khan, A
[1991] 1 SCC 588; Pannalal Bansilal Pitti v. State of Andhra Pradesh,
[1996) 2 SCC 498; Mahendra Lal Jaini v. State of Uttar Pradesh, [1963)
Supp. 1 SCR 912 andAtam Prakash v. State of Haryana, 1986 2 SCC 249,
referred to.
1.2. The promotions of the respondents were legal and valid. Reser- B
vation in promotions had been in vogue in the State of Uttar Pradesh right
from 1973 and the promotions of the respondents came to be made from
1981 onwards. The U.P. Act saved the existing policy of reservation in
promotions. The judgment in the Manda/ Case saved the promotions
already made. In Sabharwal's case also a Constitution Bench upheld the C
validity of the promotion given in excess of the roster and the law became
operative only from the date of the judgment. [321-B-D]
R.K Sabharwal v. State of Punjab, [1995] 2 SCC 745, followed.
1.3. Prospective overruling of Rangachari's Case is a majority D
opinion. [307-D]
Indira Sawhney v. Union of I11dia, [1992] Supp. 3 SCC 217, explained.
The General Manager, Southem Railway v. Ra11gachari, [1962) 2 SCR E
586 and R.K Sabharwal v. State of Pu11jab, [1995] 2 SCC 745, referred to.
2.1. Right to promotion is a statutory right. It is not a fundamental
right. [304-C-D]
The State of lammu & Kashmir v. Triloki Nath Klwsa, AIR (1974) SC p
l;A.K Bhat11agarv. Unio11 of India, [1991] 1SCC544; IndianAdmn. Service
(S.C.S.) Association, U.P. v. U11ion of I11dia, [1993) Supp 1 SCC 730;
A.B.S.K Sang v. Unio11 of India, JT (1996) SC 274; Md. Shujat Ali v. Union
of India, [1975] 1 SCR 449; Md. Bhakar v. Krishna Reddy, 1970 SLR 768;
State of Mysore v. G.B. Purohit, (1967) SLR 753; Ramchandra Shankar
Deodhar v. State of Maharashtra, [1974] 1 SCC 317; Syed Khalid Razvi v. G
Union of India, [1993] 3 SCC 575; State of Kera/a v. N.M. Thomas, [1976]
2 SCC 310; State of Maharashtra v. Chandrabhan Tale, [1983] 3 SCC 387;
Delhi Transpo11 Corporation v. D.T.C. Mazdoor Congress, [1991) Supp. 1
SCC 600 and Comptroller & Auditor General v. K.S. Iaga.nnathan,. AIR
(1987) SC 537, referred to.
'.;
H
272
SUPREME COURT REPORTS
[1997] 3 S.C.R.
A
2.2. Article 16 (4·A) read with Articles 16 (1) and 14 guaranteed a
right to promotion to Dalits and Tribes as fundamental rights where they
did not have adequate representation consistent with the efficiency in ad·
ministration. The Manda/ case directed the decision to be operative after 5
years from the date of the judgment; however, before expiry thereof, Article
16 (4A) came into.force from June 17, 1995. Therefore, the right to promo·
B tion continued as a constitutionally guaranteed fundamental right.
[304-D-E]
2.3. Protective discrimination envisaged in Articles 16 (4) and 16
( 4-A) was the armour to establish the equilibrium between equality in law
and equality in results as a fact to the disadvantaged. The principle of
C reservation in promotion provided equality in results. [293-D-E]
A.K Gopalan v.Stateof Madras, [1950] SCR88;R.C. Cooperv. Union
of India, [1970] 1 SCC 248; Ahmedabad St. Xaviers College Society v. State
of Gujarat, [1975] 1SCR173; Dr. Pradeep Jain v. Union of India, [1984) 3
SCC 654; Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College,
D [1990] 3 SCC 130; Maharashtra State Board of Secondary and Higher Secon·
dary Education v. KS. Gandhi, [1991) 2 SCC 716; KC. Vasanth Kumar v.
State of Kamataka, [1985] Supp. SCC 714; Vacher & Sons Ltd. v. Londan
Society of Compositors, (1913) AC 107; The Bengal Immunity Company Ltd.
v. The State of Bihar, [1955) 2 SCR 603; Shri Sitaram Sugar Co. Ltd. v. Union
E of India, [1990) 1 SCR 909; S. Azeez Bash v. Union of India, (1968) 1 S.C.R.
833; Menaka Gandhi v. Union of India, A.I.R. (1978) SC 597; Commissioner
of Commercial Taxes, A.P. Hyderabad v. G. Sethumadhava Rao, [1996] 7
SCC 512; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of
. India, [1981) 1 SCC 246; G.S.I.C. Karamchari Union v. Gujarat Small InF dustries Corpn., JT (1997) 1SC384 and Union of India v. Madhav, JT (1996)
9 SC 320, referred to.
2.4. Social Justice is a fundamental right and equally economic
empowerment is a fundamental right to the disadvantaged. [288-D]
Col!Sumer Education & Research Centre v. Union of India, [1995) 3
G SCC 45; Air India Statutory Corporation v. United Labour Union, (1996) 9
Scale 70; Dalmia Cements (Bharat) Ltd. v. Union of India, JT (1996) 4 SC
SSS; C.E.S. C. Limited v. Sub hash Chandra Bose, [1992] 1 SCC 441; Murlid·
har Dayanadeo Kesekar v. Vishwanath Pandu Barde, [1995] Supp. 2 SCC
549; R. Chandevarapa v. State of Kamataka, [1995] 6 SCC 309 and Papaiah
H v. State of Kamataka, [1996) 10 SCC 533, referred to.
,.
/
AK.GUPTA v. STATE[K.RAMASWAMY,J.]
273
V.T. Rajshekar : "Merit, My Foot" (A reply to Anti-Reservation A
Racists), 1996 Published by Dalit Sahitya Academy; Bangalore, referred to.
3. In the interpretation of the Constitution or the concepts embodied
therein, the application of the doctrine of stare decisis is not an inexorable
or rigid rule. It required modulation or adherence based upon the need of
the constitutional command and social imperatives. It would, therefore, be B
entirely within the discretion of the Court when it is called upon to consider
its application to the given set of circumstances. [312-D-E]
State of Kamataka v. Appa Balu, [1995] Supp. 4 SCC 469; Sakal
Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842; Union of India v. C
Raghubir Singh, [1989] 2 SCC 754; State of Bombay v. The United Motors
(India) Ltd.. [1953] SCR 1069, referred to.
United States of Ame1ica v. South Eastem Undeiwriters Association, 322
US 533, referred to.
CIVIL APPELLATE ORIGINAL JURISDICTION : Civil Appeal D
No. 2239 of 1997.
From the Judgement and Order dated 4.8.93 of the Allahabad High
Court in W.P. No. 3088 of 1993.
AND
Writ Petition (C) No. 511/1995.
· (Under Article 32 of the Constitution of India.)
E
Raju Ramachandran, P.P. Tripathi, Anil Kumar Gupta, Rakesh
Diwedi, (Adv. General for State), R.B. Misra, Arvind Verma, Prashant F
Kumar, R. Ayyam Perumal, Joseph Pookkatt, Dr. M.P. Raju, T.U. Rajan,
S.P. Sharma and Ms. Mary Searia for the appearing parties.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Leave granted.
This appeal by special leave arises from the judgment dated 4th G
August, 1983 of the Allahabad High Court, Lucknow Bench, in Write Petition No. 3088 of 1993. Tb,e writ petition also arises from the same facts butis
filed by different set of officers challenging the promotion of respondents 2
to ~O (in the Wl)it petition) the 2nd respondent (in the civil appeal) to the post
.of Superintending Engineers, (Civil); Chief Engineer, Level-II (Civil), Chief H
\
274
SUPREME COURT REPORTS
[1997] 3 S.C.R.
A Engineer Level-I and Engineer in-Chief in Public Works Department of the
Government of Uttar Pradesh. The petitioners seek a writ of mandamus to
restrain the first respondent from giving effect to the promotions given to
Respondent Nos. 2 to 10. They also seek writ of certiorari to quash the orders
dated March 12, 1981 appointing the second respondent as Superintending
Engineer on ad hoc basis and on regular basis w.e.f. April 10, 1991 as temB ponuy Chlcl EngW= by °'''"''"' No'Omb0< 7,1994 md o'dm prnmotJ.;;····. ,.
ing Harbans Lal and others as Superintending Engineers.
'
The Governor exercising the power under proviso to Article 309 of the
Constitution made the Uttar Pradesh Service of Engineers Public Works
C Department) (Higher) Rules, 1990 effective from October 15, 1990 (for
short, the 'Rules'). they came into force at once by operation of Rule 1(2).
The services comprised thereunder are grouped as Group 'A' posts, consisting of various posts. Under sub-rule (1) of Rule 4 which speaks of "Cadre of
the Service'', the strength of the service and of each category of the posts
shall be such as may be determined by the Government from time to time.
D Sub-rule (2) gives power to determine the strength of service and of each
category of posts until they are ordered to be varied. The posts of Executive
Engineer (Civil), Executive Engineer (Electrical and Mechanical), Superintending Engineer (Civil), Superintending Engineer (Electrical and Mechanical), Chief Engineer Level-II (Civil), Chief Engineer Level-II (Electrical and
E Mechanical, Chief Engineer Level-I (Civil), and Engineer-in-Chief have
been specified under two categories, viz., the permanent and temporary
cadre and strength in the respective cadres has been enumerated. In Part III, ·
Rule 5 provides method of recruitment by way of promotion from the substantive posts of Assistant Engineers to the post of Executive Engineers and
recruitment by promotion from amongst substantive posts of Executive EnF gineers to the posts of Superintending Engineers; from the Executive to
Superintending Engineer Level-II and from Chief Engineer Level-II to Chief
Engineer Level-I and from Chief Engineer Level-I to Engineer-in-Chief
respectively. Rule 6 prescribes reservation for the candidates belonging to
Scheduled Castes (for short, 'Dalits') and Scheduled Tribes (for short,
'Tribes') and other categories in accordance with the orders of the GovernG ment .in force at the time of the recruitment. The qualifying service in the
lower cadrefor promotion.to higher cadre is also prescribed. The procedure
for determination of the vacancies to be reserved under Rule 6 for Dalits,
Tribei; and other categories has been provided in Rule 7.
H
Rule 8 adumbrates that recruitment to the post of Executive Engineer
f
AK.GUPTA v. STATE[K.RAMASWAMY,J.]
275
(Civil) shall be made on the basis of seniority subject to rejection of unfit A
and to the post of Superintending Engineer and above shall be made on
the basis of merit through a Selection Committee to be constituted of
officials specified thereunder. Recruitment to the post of Chief Engineer
Level-II is by the process of screening and selection. The details thereof are
not material, hence omitted. Rule 9 empowers the Government to appoint the
selected candidates in the order of seniority. If more than one persons are B
recruited in one selection by a committee appointed in their behalf, a combined order indicating the names of persons has to be issued in the seniority
order as it stood in the earlier cadre. The procedure has been prescribed in
Rule 10 for declaration of the probation etc. Rule 11 empowers the Government to confirm the appointee at the end of the probation or the extended C
probation. Rule 12 prescribes procedure for determination of seniority. The
other details are not material, hence are omitted. Rule 18 is saving provision
which provides that nothing in this rule shall affect reservations and other
concessions required to be provided for Dalits, Tribes and other special
categories of persons in accordance with the orders of the Government issued
from time to time in that regard.
D
By proceedings dated March 8, 1973, the Government had provided
percentage in reservation for Dalits and Tribes @ 18% and 2% respectively
in all services or posts to be filled .in by promotion through process of
selection either by direct recruitment or by competitive examination or E
limited departmental examination. The said percentage has been increased
to 21% for Dalits and retained 2% for the Tribes under the U.P. Service
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994 (for short, the 'U.P. Act') that came into force with
effect from December 11, 1993. It has provided for the first time reservation @ 27% to the other Backward Classes. 1973.Rules provided that if p
sufficient number of suitable candidates belonging to Dalits and Tribes
were not available against reserved vacancies at the time of selection and
if the vacancies were required to be filled up in the public interest, general
category employees could be appointed on ad hoc basis. It had to be so
mentioned in their orders of appointment that the provision/appointments
were ad hoc and conferred no rights and that the vacancies would be G
carried forward to the following year. Carried forward vacancies could not ·
exceed 45% of the total of such vacancies etc. Under Rule 3 of 1973 Rules,
for suitability purpose, Dalits and Tribes were treated to be same as the
general candidates, i.e., the standard of suitability was same for all the
candidates. The Dalits and Tribes who fulfilled the minimum required H
276
SUPREME COURT REPORTS
[1997) 3 S.C.R.
A standard of merit would be selected upto the limit of reservation. Under
Rule 4, when Dalits and Tribes were promoted substantively or temporarily
to the above reserved vacancies for the first time, their confirmation would
be done under normal rules. The rule of the reservation was not applicable
again for confirmation in their case.
B
. Though the Government omitted under 1973 Rules reservation in the
posts pursuant to which required . recruitment by promotion on the principle of seniority subject to rejection of unfit, by the rules issued on March
20, 1974, the Government amended the same and restored recruitment by
promotion to the posts on the prescribed percentage. The reservation was
C limited to those services only where direct recruitment was not more than
50%. The promotion thereafter was to be done according to rules and
regulations under those provisions of reservation. The candidates who were
eligible and suitable on the basis of seniority and were not found unfit,
would be selected upto the reservation limit. Rule 2 of 1974 Rules provides
for promotion to the posts where merit was also the consideration. The
D selected candidates from amongst the Dalits and Tribes and the general
candidates would be shown in separate eligibility lists to each category. The
selected candidates were to be placed according to their inter se seniority
of the original post. Afterwards, all the three lists were to be compiled
according to the inter se seniority and promotion were to be given against
the vacancies accordingly and common seniority list was to be maintained.
E By orders issued on December 27, 1974, it was further clarified that "after
reconsideration, the Government has withdrawn the restriction i.e. this
reservation will be limited to those services only where direct recruitment
is not more than 50%. The above referred G.O. will be treated to be
modified accordingly." Thus, the Dalits and Tribes were to get reservation
F
G
in promotion on all posts/services. By proceedings dated July 5, 1984, it
was further amplified, vis-a-vis that these orders referred to hereinbefore
thus: "The Government after reconsideration feels it necessary to clarify
the process of preparation of separate eligibility lists in this regard".
Rule 2 of the 1984 order provided that:
"The total vacancies for promotion on the basis of seniority subject
to rejection of unfit arises in any department/office at any time
shall be divided into general candidates and SC/ST candidates on
the basis of G.Os. issued from time to time for reservation in
H
promotions for these special categories. Each category shall be
\
..
/
I
AK.GUPTA v. STATE[K.RAMASWAMY,J.)
277
prepared separately in the order of their inter se seniority for A
available vacancies for each category and selection have been done
from such eligibility list for each category on the basis of seniority
subject to rejection of unfit. A combined list shall be prepared
after selection of candidates from each category according to their
inter se seniority.
For ad hoc promotion also the above principle was made applicable.
In this legal backdrop, it would, thus, be seen that preceding 1990, promotions in State Service were regulated by above instructions and from 1990
Rules, they formed statutory base. The rule of reservation in promotion at
B
all levels has, thus, been provided for the Dalits and Tribes. Under the U.P. C
Act it was extended to the OBCs only in direct recruitment.
When respondents 2 to 10 were considered and recruited as
promotees from the cadre of Executive Engineer to that the Superintending Engineer and above cadres on the basis of merit, the appellants came D
to challenge their appointments.' It was contended in the High Court and
reiterated by the learned counsel, M/s. Prag P. Tripathi and Anil Kumar
Gupta that in Indira Sawhney & Ors. v. Union of India & Ors., [1992) supp.
3 SCC 217, known as Mandal's case, eight of the nine Judges, per majority
[Ahmadi, J. as he then was, having not participated on this issue] held that
appointment by promotion under Articles 16(1) and 16(4) of the ConstituE
tion is unconstitutional. In particular, they placed strong reliance on the
judgments of Jeevan Reddy, J. Speaking for three Judges) and Sawant, J.
(for himselt) in that behalf. They referred to question No. 7 framed by the
Bench and contended that the finding has been recorded in paras 859 (7)
and 860 (8) by Jeevan Reedy, J., in paras 242-431 (10) by Pandian, J., in p
paras 323-24-D by Thommen, J. and by Kuldip Singh, J. in para 381, by
Sawant, J. in para 553-553 and by Sahai, J. in paras 623-625. On that
premise, it was contended that the 1996 Rules are ultra vires and the
promotion of the respondents is unconstitutional. It is also contended that
having declared the promotions under Articles 16 (1) and 16 ( 4) of the
Constitution as unconstitutional, overruling the judgment of a Bench of five G
judges of this Court in The General Manager, Southern Railway v. Rangachari [1962] 2 SCR 586 the same being not correct in law. Jeevan Reddy,
J. with whom Kania, CJ. and Venkatachaliah, J., as he then was, had
concurred, and Pandian, J. having also concurred, expressly overruled
prospectively the applicability of the rule of reservation in promotion H
278
SUPREME COURT REPORTS
[1997) 3 S.C.R.
A operative for a period of five years November 16, 1992 i.e., the date of the
judgment. The contention of the petitioners is that it is only a minority view.
The ratio, therefore, is unconstitutional. Under Article 145 (5) of the
Constitution, it does not constitute majority judgment.
B
Having declared that the reservation in promotion as unconstitutional, it is void ab initio under Article 13 (2) of the Constitution. It bear~-
thereby, no legal or constitutional existence. The promotion made
res pendents 2 to 10 at all levels, therefore, is unconstitutional. The opera- '-
tion of the unconstitutional direction cannot be postponed by prospective
overruling of Rangachari's ratio. The judgment of Jeevan Reedy, J. conC curred by Pandian, J. being minority judgment, cannot operate prospectively. Even if it is assumed that it is a majority judgment, it is inconsistent
with and eontrary to the constitutional scheme of Articles 14 and 16
violating the fundamental rights of the appellants/petitioners and, therefore, the power under Article 142 of the Constitution cannot be exercised
D to curtail the fundamental rights guaranteed in Part III of the Constitution.
There is a distinction between the conclusions and directions. Justice
Pandian and Justice Sawant expressed their concurrence on the conclusions and not with directions given by Jeevan Reddy, J. The direction
for prospective overruling of Rangachari's case and for operation of
E Mandal's ratio after five years is only by a minority of four judges. It being
inconsistent with and contrary to the scheme of the Constitution in exercise
of the power of judicial review, the Court cannot postpone the operation
of the judgment to a future date, which violates their fundamental rights.
In support thereof, they placed strong reliance on the judgment in A.R.
p Antulay v. R.S. Nayak & Anr., [1988] 2 SCC 602, para 15 and Delhi Judicial
Services Association, Tis Hazari v. State of Gujarat & Ors., [1991] 4 SCC
406, para 37. Having declared the reservation in promotions as void, the
prospective over-ruling is illegal as it is no part of the doctrine of stare
decisis. In support thereof, they placed reliance on Waman Rao & Ors. v.
Union of India & Ors., [1981] 2 SCR 1. Postponement of operation of the
G judgment amounts to judicial legislation which is inconsistent with the
power of judicial review which empowers only to declare the law to be
unconstitutional and not to make the law.
It is further contended that the exercise of Article 142 to postpone
H the opera.tion of the judgment after five years amounts to perpetration of
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279
void action and is violative of the appellants' fundamental rights guaranteed A
under Articles 14 and 16 (1) of the Constitution. The order under Article
142, being only a remediiil measure to do complete justice, cannot operate
as a substantive right. The direction to operate the scheme of reservation
in promotion for five years is inconsistent with and in derogation of the
substantive right to equality guaranteed under Articles 14 and 16 (1). B
Therefore, the scheme is unconstitutional. Prospective operation of
Mandal's case amounts to judicial legislation and amounts to temporary
amendment to the Constitution or an addition in the form of a proviso to
Articles 16 (1) or 16 ( 4) of the Constitution.
Shri Rakesh Dwivedi, learned Additional Advocate General, conC
tended that the Micro Lexicon Surgery conducted by the counsel for the
appellants-petitioners to make distinction between conclusions and directions requires no detailed examination. The end result is that five out of
eight learned Judges, who opined in the negative on the issue of reservation
in promotion directed that reservation, from that date, will continue for D
five years, while giving liberty to the appropriate . Government to make
suitable legislative amendments. In fact, the right to promotion is a facet
of right to recruitment to a post or an office under the State. No express
provision is required in this behalf in Article 16 (1) or 16 ( 4) of the
Constitution. After the judgment in Mandal's case, however, the Constitution (77th AmendmentfAct was enacted by the Parliament which has come E
into force w.e.f. June 17, 1995 from which date Article 16 (4A) was brought
into the Constitution. It provides that "nothing in this Article shall prevent
the State from making any provision for reservation in matters of promotion of any class or classes of posts in the services under the State in favour
of Scheduled Castes and Scheduled Tribes which, in the opinion of the p
State, are not adequately represented in the services under the State".
Thereby, the Parliament has re-manifested its policy that the right to
reservation in promotion is a part of the constitutional scheme or public
policy in order to accord socio-economic empowerment and dignity of
person and status to the Dalits and Tribes. The right to reservation in
promotions would be available to Dalits and Tribes in any, class or classes, G
of posts in the services under the State which in the opinion of the State
does not get adequate representation of Dalits & Tribes. This is due to the
historical evidence that the Dalits and Tribes are socially, educationally and
economically deprived, denied and disadvantaged sections of the society.
To make their right to equality meaningful, they are equally entitled to the H
280
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[1997] 3 S.C.R ..
A facilities and opportunities, by way of reservation in promotions, and the
State in compliance of the mandate of the Preamble, Articles, 14, 21, 38,
46 and 335 of the Constitution, has provided them with the right to equality
of opportunity in all posts or classes of posts in the services under the State.
Therefore, the majority sections of the society are r.equired to reconcile to
B and accept the equal fundamental rights of Dalits and Tribes guaranteed
under Articles 16 and 14 of the Constitution. The right to reservation in
promotions is not an anathema to right to equality enshrined to other
general candidates. The competing rights of both should co-exist and
consistently be given effect by balancing the abstract doctrine of equality
and the distributive justice would fill in the gap. Only upholding of affirmC ative action of the State by pragmatic interpretation under rule of law
would enable the State to harmonise competing rights of all sections of the
society.
There is no dichotomy or distinction between the conclusion and
D directions. Paragraph 860 (8) should be read with the conclusions of
Sawant, J. in paragraphs 552 and 555 and, therefore, the opinions of Kania,
. CJ, Venkatachaliah, Pandian, Sawanl and Jeevan Reddy JJ., as the issue
of reservation in promotion constitute majority of five Judges under Article
145 (5) of the Constitution. The opinion expressed by Jeev::in Reddy, J.
postponing the operation of the judgment for five years, unless expressly
E dissented by other Judges, is law declared by majority under Article 145
(5) of the Constitution. Prospective over- ruling is a part of constitutional
policy. For its application, different perceptions would be considered and
given effect while over-ruling the prior decision. Rangachari's ratio had
operated as constitutional law for over three decades and rights were
p
settled on that basis. Therefore, with a view to enable the appropriate
Government to amend the law in that behalf, ~e operation of the judgment
was postponed for five years. It is, therefore; not a judicial legislation but
a part of the declaration granted by the Court. In pith and substance, it is
a facet of suspending the operation of the judgment for five years so that
the constitutional objective of providing reservation in promotions to Dalits
G and Tribes would operate without any hiatus. The decision in R.K Sabharwal v. State of Punjab, [1995] 2 SCC 745 by a Constitution Bench re-affirms
. that the decision in Mandal's case on promotion was by a majority. Obviously Sabharwal's ratio had upheld the principle of reservation in promotions and applied "running account theory" put forth by the State to give
H practical content to equality in results applying the roster points earmarked
\
f
AK. GUPTA v. STATE [K. RAMASWAMY, J.]
281
for the Dalits and Tribes, apart from equal opportunity to them to compete A
with the general candidates for general posts. The employees from general
sections and dalits and Tribes are integrated in the roster system to
harmonise the competing interests. The Dalits and Tribes selected for
promotion on merit in open competition are not to be treated as part of
reserved quota. That contemporaneous understanding of the operation of B
law is in accordance with the law laid in para 860 (8) of Manda.l's case. So,
it is a valid direction.
The reservation in promotions in all the services or posts under the
State of Uttar Pradesh was in vogue from March 1973. The legislature of
Uttar Pradesh reiterated the need for continuance of the reservation not C
only in direct recruitment but also its continuance, as mentioned in the
U.P. Act. The U.P. Act came into force w.e.f. December 11, 1993. The
judgment in Mandal's case was delivered on November 16, 1992. All the
promotions made prior to that date were held valid in Mandal's case.
The impugned judgment of the High Court was rendered on August
4, 1993 while the Constitution (77th Amendment) Act of 1995 came into
force on June 17, 1995. The promotions of respondents came to be made
between November 17, 1992 and December 11, 1993, i.e., within five years
D
of the directions in para 860 (8) in Mandal's case and agreed to by other
learned Judges. Therefore, it was contended that the promotions to and E
appointment of the private respondents is constitutional.
He further contended that right to promotion is not a fundamental
right to general candidates while it is so in the case of Dalits and Tribes.
It is subject to rules. The policy of the Government as per the constitutional F
objectives is that the Dalits and Tribes should be given adequate representation in all posts or classes of posts and services under the State.
Reservation in promotion is one of the policies under the Constitution and
the statutory share in the governance makes no discrimination nor offend .
Article 14 as the rights of general and reserved employees are to be
mutually balanced. The law is always presumed to be constitutional until it G
is declared otherwise. The Rules and the Act are constitutionally valid. By
operation of Article 13 (1), pre-constitutional law, if declared void, is void
only from the date of the Constitution, namely, from January 26, 1950 and
though the post-constitutional law may be void from its inception. To adjust
the competing rights of the general and Dalit and Tribe employees, there H
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[1997) 3 S.C.R.
A is no prohibition for this Court to postpone the operation of the judgment
in Mandal's case or to so prospectively over-rule Rangachari's ratio as to
be operative from expiry of five years from the date of judgment. The
intention behind the direction appears to be that the law in the transition,
as per the constitutional scheme .:if reservation in promotions, would be
B smooth and operate as a continuous scheme. If the Government makes no
amendment to the statute, after expiry of five years, the operation of the
scheme of reservation in promotion would come to a stop. By Constitution
(77th Amendment) Act, 1995, the scheme of reservation in promotions is
continued without any need to bring about amendment to the statutory
rules since Article 16( 4A) itself provided constitutional operation of reserC vation in promotion obviating the necessity to amend all statutory rules.
The prosp.ective operation of law for 5 years is consistent with the
doctrine of stare decisis as the declaratory law becomes operative thereafter. The ratio of Antu/e's case has no application. Therein, the appellantD
Antule was meted out with a hostile discrimination denying him the normal
trial and right of appeal and he was subjected to special trial by the High
Court, depriving him of the statutory appeal violating his fundamental right
to equality. Therefore, this Court had held that the direction given under
Article 142 to constitute a separate Tribunal presided over by a High Court
Judge was inconsistent with the fundamental right to equality guaranteed
E by Article 14. From that perspective, it was held therein that the exercise
of power under Article 142 should be consistent with the constitutional
scheme. In Golaknath v. State of Punjab, [1967) 2 SCR 762 at 808, it was
held that the power of this Court under Article 142 is very wide and it
cannot be controlled by any statutory prohibition. In Union Carbide v.
F Union of India, [1991) 4 SCC 584 at 634 paragraph 83, this Court held that
the competing rights are required to be adjusted by balancing them. The
Court in Mandal's case, being conscious of the consequences and pervasive
effect of its declaration on the policy of reservation in promotions, by the
arm of the judicial review, extended the time to enable the executive to
suitably amend its law. This Court, therefore, set the time limit upto which
G existing law would remain in operation, as the selection procedure is a
continuous process to fill up existing or anticipated vacancies each year.
The gap between equality in law and equality in results was bridged by
Article 16 ( 4A). It is not a case of hostile discrimination meted out to any
section of the citizens but one of adjustment balancing the competing rights
H of two groups of the citizens of the country. The directions issued, in
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AK.GUPTA v. STATE[K.RAMASWAMY,J.]
283
exercise of the power under Article 142, therefore, was not in violation of A
the fundamental rights of the employees belonging to the general category.
The direction issued under Article 142 is, therefore, neither unconstitutional nor contrary tu the law. In fact, the direction is to prevent injustice as
is provided in Article 46 of the Constitution. In M. Venkateswarnlu & Ors.
v. Government of A.P. & Ors., [1996] 5 SCC 167, Union of India & Anr. v. B
Madhav s/o Gajanan Chaubal & Anr., JT (1996) 9 SC 320, G.S.l.C. Karamchari Union & Ors. Gujarat Small Industries Corpn. & Ors., JT (1997) 1 SC
384 and S. Sathyapriya & Ors. v. State of A.P. & Ors., JT (1996) 9 SCC 466,
this Court held that the Constitution (77th Amendment) Act, 1995 has
given effect to the law laid. down in Rangachari's case as enshrined in
Articles 14 and 16 (1) of the Constitution.
C
Shri Raju Ramachandran, learned senior counsel appearing for
private respondents, while adopting the arguments of Shri Rakesh Dwivedi,
argued that the prospective over-ruling of Rangachari' ratio, the distinction
of stare decisis and the constitutional invalidation of a legislative enactment D
may be kept in view. The ratio in Rangachari's case having prevailed the
field for over three decades, majority in Mandal's case opined that the ratio
in Rangachari's case would remain operative for a further period of five
years. Exercise of the power of judicial review and power under Article
142 are the judicial tools given to this Court to prevent injustice. By judicial
craftsmanship, the directions came to be issued to elongate the constituE
tional and public policy of reservation in promotion, until appropriate
amendments are brought on statute within five years. He cited instances of
staying the operation of the judgments by the High Court, pending grant
of leave under Article 136. The decision to postpone the effect of Mandal's
case is a legal policy as a part of the inherent power preserved in this Court F
by Article 142. The Court, by prospective operation of a statute or operation of a judgment has not sanctioned any unconstitutional scheme but
intended to postpone the operation of the declaration of law to a future
date. (iv) In Sampath Kumar v. Union of India, [1987] 1 SCC 124, this
Court, with a view to void constitutional crisis in dispensation of service
dispute between public servants and the appropriate Government or in- G
strumentality, by the administrative Tribunals constitut.ed under the Administrative Tribunals Act, instead of declaring the Act ultra vires, issued
mandamus to make suitable amendments to the Tribunals Ad so as to be
consistent with the constitutional scheme. The judicial creativity, therefore,
cannot be cribbed or crabbed by any set proposition or standard formula- H
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[1997] 3 S.C.R.
A tion. They are required to be modulated depending upon the fact situation
in a given case on hand and the consequences of the judgment under
consideration. Rangachari's ratio having held the field for three decade&,
the conclusions and the directions which are integral part of para 860 (8)
of Mandal's judgment are part of ratio decidendi and are intended to be
B operative after a period of five years from the date of the judgment unless,
by then, suitable amendments are brought out.
Dr. M.P. Raju, learned counsel appearing for the intervener, contended that the Dalits and the Tribes have equal constitutional rights.