# U.P. POWER CORPORATION LTD v. RAJESH KUMAR & ORS

- **Citation:** [2012] 4 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 2012-04-27
- **Case number:** Civil Appeal No. 2608 of 2011
- **Bench:** Dalveer Bhandari, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u-p-power-corporation-ltd-v-rajesh-kumar-ors-28368
- **Pages:** 56

## Headnote

Constitution of India, 1950:
c
Arts. 16(1), 16(4), 16(4A) and 16(48) - Reservation in
promotion - Consequential/Accelerated seniority- Principles
emerging from M. Nagraj - Culled out - Held: Articles 16(4A)
and 16(48) are enabling provisions and the State can make
the provisions for the same on certain basis or foundation -
0
In the instant case, the conditions precedent have not been
satisfied - No exercise as per decision in M. Naqraj has been
undertaken - Therefore, s.3(7) of the 1994 Act and r.8-A of
the Rules are ultra vires as they run counter to the dictum in
M. Nagraj - Uttar Pradesh Public Servants (Reservation for
E Scheduled Castes, Scheduled Tribes and other Backward
Classes) Act, 1994 - s. 3(7) - Uttar Pradesh Government
Servants Seniority Rules, 1991 - r.8-A as inserted by Uttar
Pradesh Government Servants Seniority (Third Amendment)
Rules, 2007.
F
Judicial Discipline:
On a similar issue cases being heard by Lucknow Bench
of Allahabad High Court - Another Division Bench at
Allahabad entertained and decided a writ petition involving the
G same issue - Division Bench at Lucknow holding the said
decision as per incurium - Held: When Allahabad Bench was
apprised about the number of matters at Lucknow filed earlier
in point of time which were being part heard and the hearing
was in continuum, it would have been advisable to wait for the
H
118
U.P. POWER CORPORATION LTD. v. RAJ ESH
119
KUMAR & ORS.
verdict at Lucknow Bench or to bring it to the notice of the
A
Chief Justice about the similar matters being instituted at both
the places -
The judicial courtesy and decorum warranted
such discipline which was expected from the Judges -
Similarly, the Division Bench at Lucknow erroneously treated
the verdict of Allahabad Bench as per incuriam or not a
B
binding precedent - Judicial d;scipline commands in such a
situation when there is disagreement, to refer the matter to a
larger Bench.
Writ petitions were filed before the Lucknow Bench
C
of the Allahabad High Court challenging r.8-A as inserted
by the U.P. Government Servants Seniority (3rd
Amendment) Rules, 2007, in the U.P. Government
Servants Seniority Rules, 1991. The assail was also to the
constitutional validity of s. 3(7) of the Uttar Pradesh
Public Servants (Reservation for Scheduled Castes,
D
Scheduled Tribes and other Backward Classes) Act,
1994. It was the case of the writ petitioners that the State
Government in gross violation of the constitutional
provisions enshrined under Arts. 16(4A) and 16(4B) of the
Constitution of India and the interpretation placed
E
thereon by the Constitution Bench in M. Nagrap framed
the Rules and the U.P. Power Corporation adopted the
same by amending its Rules and introduced the concept
of reservation in promotion with accelerated seniority. It
was contended before the Lucknow Bench that neither
F
the State Government nor the Corporation had carried out
the exercise as per the decision in M. Nagraj and in the
absence of the same, the provisions of the Act and the
Rules caused discomfort to the constitutional provisions.
While the said writ petitions were pending and were G
being dealt with on merit by a Division Bench at Lucknow,
another Division Bench of the High Court at Allahabad
entertained and decided writ petition No. 63217 of 2010
1.
M. Nagaraj v. Union of India 2006 (7) Suppl. SCR 336.
H
120
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A (Mukund Kumar Srivastava vs. State of UP. and Another)
upholding the validity of the provisions contained in r.8A
of the 1991 Rules. However, when the said decision was
brought to the notice of the Division Bench at Lucknow,
the said Bench, in Writ Petition no. 1389 (S/B) of 2007
B (Prem Kumar Singh and others v. State of UP. and others),
held that the decision in Mukund Kumar Srivastava was per
incurium and that s.3(7) of the 1994 Act and r.8-A of 1991
Rules were invalid, ultra vires and unconstitutional. It
quashed the orders relating to seniority passed by the
c State Government and clarified

## Text

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A
B
[2012] 4 S.C.R. 118
U.P. POWER CORPORATION LTD.
v.
RAJESH KUMAR & ORS.
(Civil Appeal No. 2608 of 2011 etc.)
APRIL 27, 2012
[DALVEER BHANDARI AND DIPAK MISRA, JJ.]
Constitution of India, 1950:
c
Arts. 16(1), 16(4), 16(4A) and 16(48) - Reservation in
promotion - Consequential/Accelerated seniority- Principles
emerging from M. Nagraj - Culled out - Held: Articles 16(4A)
and 16(48) are enabling provisions and the State can make
the provisions for the same on certain basis or foundation -
0
In the instant case, the conditions precedent have not been
satisfied - No exercise as per decision in M. Naqraj has been
undertaken - Therefore, s.3(7) of the 1994 Act and r.8-A of
the Rules are ultra vires as they run counter to the dictum in
M. Nagraj - Uttar Pradesh Public Servants (Reservation for
E Scheduled Castes, Scheduled Tribes and other Backward
Classes) Act, 1994 - s. 3(7) - Uttar Pradesh Government
Servants Seniority Rules, 1991 - r.8-A as inserted by Uttar
Pradesh Government Servants Seniority (Third Amendment)
Rules, 2007.
F
Judicial Discipline:
On a similar issue cases being heard by Lucknow Bench
of Allahabad High Court - Another Division Bench at
Allahabad entertained and decided a writ petition involving the
G same issue - Division Bench at Lucknow holding the said
decision as per incurium - Held: When Allahabad Bench was
apprised about the number of matters at Lucknow filed earlier
in point of time which were being part heard and the hearing
was in continuum, it would have been advisable to wait for the
H
118
U.P. POWER CORPORATION LTD. v. RAJ ESH
119
KUMAR & ORS.
verdict at Lucknow Bench or to bring it to the notice of the
A
Chief Justice about the similar matters being instituted at both
the places -
The judicial courtesy and decorum warranted
such discipline which was expected from the Judges -
Similarly, the Division Bench at Lucknow erroneously treated
the verdict of Allahabad Bench as per incuriam or not a
B
binding precedent - Judicial d;scipline commands in such a
situation when there is disagreement, to refer the matter to a
larger Bench.
Writ petitions were filed before the Lucknow Bench
C
of the Allahabad High Court challenging r.8-A as inserted
by the U.P. Government Servants Seniority (3rd
Amendment) Rules, 2007, in the U.P. Government
Servants Seniority Rules, 1991. The assail was also to the
constitutional validity of s. 3(7) of the Uttar Pradesh
Public Servants (Reservation for Scheduled Castes,
D
Scheduled Tribes and other Backward Classes) Act,
1994. It was the case of the writ petitioners that the State
Government in gross violation of the constitutional
provisions enshrined under Arts. 16(4A) and 16(4B) of the
Constitution of India and the interpretation placed
E
thereon by the Constitution Bench in M. Nagrap framed
the Rules and the U.P. Power Corporation adopted the
same by amending its Rules and introduced the concept
of reservation in promotion with accelerated seniority. It
was contended before the Lucknow Bench that neither
F
the State Government nor the Corporation had carried out
the exercise as per the decision in M. Nagraj and in the
absence of the same, the provisions of the Act and the
Rules caused discomfort to the constitutional provisions.
While the said writ petitions were pending and were G
being dealt with on merit by a Division Bench at Lucknow,
another Division Bench of the High Court at Allahabad
entertained and decided writ petition No. 63217 of 2010
1.
M. Nagaraj v. Union of India 2006 (7) Suppl. SCR 336.
H
120
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A (Mukund Kumar Srivastava vs. State of UP. and Another)
upholding the validity of the provisions contained in r.8A
of the 1991 Rules. However, when the said decision was
brought to the notice of the Division Bench at Lucknow,
the said Bench, in Writ Petition no. 1389 (S/B) of 2007
B (Prem Kumar Singh and others v. State of UP. and others),
held that the decision in Mukund Kumar Srivastava was per
incurium and that s.3(7) of the 1994 Act and r.8-A of 1991
Rules were invalid, ultra vires and unconstitutional. It
quashed the orders relating to seniority passed by the
c State Government and clarified that in case the State
Government undertook to provide reservation in
promotion to any class or classes of posts in the services
under the State, it could do so after undertaking the
exercise as required under the constitutional provisions
0 in accordance with law laid down by this Court in M.
Nagraj. The instant appeals were filed challenging both
the judgments.
Disposing of the appeals, the Court
E
HELD: 1.1 The Allahabad Bench was apprised about
the number of matters at Lucknow filed earlier in point of
time which were being part heard and the hearing was
in continuum. It would have been advisable to wait for
the verdict at Lucknow Bench or to bring it to the notice
F of the Chief Justice about the similar matters being
instituted at both the places. The judicial courtesy and
decorum warranted such discipline which was expected
from the Judges. Similarly, the Division Bench at
Lucknow erroneously treated the verdict of Allahabad
Bench not to be a binding precedent on the foundation
G that the principles laid down by the Constitution Bench
in M. Nagraj* are not being appositely appreciated and
correctly applied by the Bench when there was reference
to the said decision and number of passages were
quoted and appreciated albeit incorrectly, the same could
H
U.P. POWER CORPORATION LTD. v. RAJESH
121
KUMAR & ORS.
not have been a ground to treat the decision as per A
incuriam or not a binding precedent. Judicial discipline
commands in such a situation when there is
disagreement to refer the matter to a larger Bench.
Instead of doing that, the Division Bench at Lucknow
took the burden on themselves to decide the case. There
B
are two decisions by two Division Benches from the
same High Court. This Court expresses its concern
about the deviation from the judicial decorum and
discipline by both the Benches and expect that in future,
they shall be appositely guided by the conceptual c
eventuality of such discipline as laid down by this Court
from time to time. [para 12 and 14] [137-B-F; 138-G~H; 139A]
Lala Shri Bhagwan and another v. Ram Chand and
another 1965 SCR 218 =AIR 1965 SC 1767; and Sundarjas
D
Kanya/al Bhathija and others v. The Collector, Thane,
Maharashtra and others AIR 1991 SC 1893 - relied on.
2.1 It is axiomatic in service jurisprudence that any
promotions made wrongly in excess of any quota are to
be treated as ad hoc. This applies to reservation quota
E
as much as it applies to direct recruits and promotee
cases. If a court decides that in order only to remove
hardship such roster-point promotees are not to face
reversions, then it would be necessary to hold -
consistent with Arts. 14 and 16(1) - that such promotees
F
cannot plead for grant of any additional benefit of
seniority flowing from a wrong application of the roster.
While courts can relieve immediate hardship arising out
of a past illegality, courts cannot grant additional benefits
like seniority which have no element of immediate G
hardship. [para 20] [146-D-F]
Ajit Singh and others (//) v. State of Punjab and others
1999 (2) Suppl. SCR 521 = 1999 (7) SCC 209; and Union
of India and others v. Virpal Singh Chauhan and others 1995
(4) Suppl. SCR 158 = 1995 (6) sec 684 - relied on
H
122
SUPREME COURT REPORTS
(2012] 4 S.C.R.
A
Indra Sawhney etc. v. Union. of India and others 1992 (2)
Suppl. SCR 454 =1992 Supp. (3) sec 217 : AIR 1993 SC
477; General Manager, S. Rly. v. Rangachari 1962 AIR 36 =
1962 SCR 586 =State of Punjab v. Hira Lal 1971 (3) SCR
267 = 1970 (3) SCC 567; Akhil Bharatiya Soshit Karamchari
B Sangh v. Union of India 1981 (2) SCR 185 = 1981 (1)
SCC 246 and Comptroller and Auditor General v. K. S.
Jagannathan 1986 (2) SCR 17 = 1986 (2) SCC 679; R.K.
Sabharwal v. State of Punjab 1995 (2) SCR 35 = 1995 (2)
SCC 745; Ajit Singh Januja and others v. State of Punjab
C and others 1996 (3) SCR 125 = 1996 (2) SCC 715; Jagdish
Lal and others v. State of Haryana and others 1997 AIR 2366
- referred to.
2.2 Arts. 16(4A) and 16 (48) were inserted in the
Constitution to confer promotion with consequential
D seniority and introduced the concept of carrying forward
vacancies treating the vacancies meant for reserved
category candidates as a separate class of vacancies.
The validity of the said Articles were challenged under Art.
32 before this Court and the Constitution Bench in M.
E Nagraj upheld the validity of the said Articles with certain
qualifiers/riders by taking recourse to the process of
interpretation. [para 21, 22] [147-B; 148-G]
M. Nagaraj v. Union of India 2006 (7) Suppl. SCR 336
F = (2006) 8 SCC 212 : AIR 2007 SC 71 - relied upon
A vinash Singh Bagri and Ors. v. Registrar /IT Delhi and
Another 2009 (13) SCR 258 = 2009 (8) SCC 220; Ashok
Kumar Thakur v. Union of India 2008 (4) SCR 1 = 2008 (6
) SCC 1; E. V. Chinniah v. State of Andhra Pradesh 2004
G (5) Suppl. SCR 972 = 2005 (1) SCC 394; Suraj Bhan
Meena and Another v. State of Rajasthan & Ors. 2010 (14)
SCR 532 = 2011 (1) SCC 467; Barium Chemicals v.
Company Law Board 1971 (3) SCR 267 = 1970 (3) SCC
567; Union of India v. Rakesh Kumar 2010 (1) SCR 483 =
H 2010 (4) SCC 50; Ashok Kumar Thakurv. Union of India and
U.P. POWER CORPORATION LTD. v. RAJESH
123
KUMAR & ORS.
others 2008 (4) SCR 1 = 2008 (6) SCC 1 - referred to.
A
2.4 From the decision in M. Nagraj, the principles that
emerge are: (i) Vesting of the power by an enabling
provision may be constitutionally valid and yet 'exercise
of power' by the State in a given case may be arbitrary,
8
particularly, if the State fails to identify and measure
backwardness and inadequacy keeping in mind the
efficiency of service as required under Article 335; (ii) Art.
16(4) which protects the interests of certain sections of
the society has to be balanced against Art. 16(1) which
C
protects the interests of every citizen of the entire society.
They should be harmonized because they are
restatements of the principle of equality under Art. 14; (iii)
Each post gets marked for the particular category of
candidates to be appointed against it and any
subsequent vacancy has to be filled by that category
D
candidate; (iv) The appropriate Government has to apply
the cadre strength as a unit in the operation of the roster
in order to ascertain whether a given class/group is
adequately represented in the service. The cadre strength
as a unit also ensures that the upper ceiling-limit of 50%
E
is not violated. Further, roster has to be post-specific and
not vacancy based; (v) The State has to form its opinion
on the quantifiable data regarding adequacy of
representation. Clause (4A) of Art. 16 is an enabling
provision. It gives freedom to the State to provide for
F
reservation in matters of promotion. Clause (4A) of Art.
16 applies only to SCs and STs. The said clause is carved
out of Art. 16(4). Therefore, Clause (4A) will be governed
by the two compelling reasons - "backwardness" and
"inadequacy of representation", as mentioned in Art.
G
16(4). If the said two reasons do not exist, then the
enabling provision cannot be enforced; (vi) If the ceilinglimit on the carry-over of unfilled vacancies is removed,
the other alternative time-factor comes in and in that
event, the time-scale has to be imposed in the interest of
H
124
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A efficiency in administration as mandated by Art. 335. If the
time-scale is not kept, then posts will continue to remain
vacant for years which would b.e detrimental to the
administration. Therefore, in each case, the appropriate
Government will now have to introduce the duration
B depending upon the fact-situation; (vii) If the appropriate
Government enacts a law providing for reservation
without keeping in mind the parameters in Art. 16(4) and
Art. 335, then this Court will certainly set aside and strike
down such legislation; (viii) The constitutional limitation
c under Art. 335 is relaxed and not obliterated. Be it
reservation or evaluation, excessiveness in either would
result in violation of the constitutional mandate. This
exercise, however, will depend on the facts of each case;
(ix) The concepts of efficiency, backwardness and
0 inadequacy of representation are required to be identified
and measured. That exercise depends on the availability
of data. That exercise depends on numerous factors. It
is for this reason that the enabling provisions are
required to be made because each competing claim
seeks to achieve certain goals. How best one should
E optimize these conflicting claims can only be done by the
administration in the context of local prevailing
conditions in public employment; and (x) Art. 16(4),
therefore, creates a field which ena!;>les a State to provide
for reservation provided there exists backwardness of a
F class and inadequacy of representation in employment.
These are compelling reasons. They do not exist in Art.
16(1). It is only when these reasons are satisfied that a
State gets the power to provide for reservation in the
matter of employment. [para 38) [168-E-H; 169-A-H; 170G A-G]
2.5 There may be statutory rules or executive
instructions to grant promotion but it cannot be forgotten
that they are all subject to the pronouncement by this
H Court in Vir Pal Singh Chauhan and Ajit Singh (II) . This
U.P. POWER CORPORATION LTD. v. RAJESH
125
KUMAR & ORS.
Court is of the firm view that a fresh exercise in the light A
of the judgment of the Constitution Bench in M. Nagaraj
is a categorical imperative. The stand that the
constitutional amendments have facilitated the
reservation in promotion with consequential seniority and
have given the stamp of approval to the Act and the Rules
B
cannot withstand close scrutiny inasmuch as the
Constitution Bench has clearly opined that Arts. 16(4A)
and 16(4B) are enabling provisions and the State can
make provisions for the same on certain basis or
foundation. The conditions precedent have not been c
satisfied. No exercise has been undertaken. It cannot be
ignored on the ground that the concept of reservation in
promotion was already in vogue. When· the provisions of
the Constitution are treated valid with certain conditions
or riders, it becomes incumbent on the part of the State 0
to appreciate and apply the test so that its amendments
can be tested and withstand the scrutiny on parameters
laid down therein. [para 41) [172-F-H; 173-A-C]
3. This Court concludes and holds that s.3(7) of the
1994 Act and r. SA of the 1991 Rules, as inserted by the
E .
3rd Amendment Rules, 2007, are ultra vires as they run
counter to the dictum in M. Nagaraj. Any promotion that
has been given on the dictum of Indra Sawhney and
without the aid or assistance of s. 3(7) and r. SA shall
remain undisturbed. [para 42) [173-D]
F
Case Law Reference:
2006 (7) Suppl. SCR 336 relied on
para 2
1992 (2) Suppl. SCR 454 referred to
para 7 and
G
16
1965 SCR 21S
relied on
para 13
AIR 1991 SC 1 S93
relied on
para 14
1962 AIR 36
referred to
para 16
H
A
8
c
D
.E
126
SUPREME COURT REPORTS
[2012] 4 S.C.R.
1962 SCR 586
1971 (3) SCR 267
1981 (2) SCR 185
1986 (2) SCR 17
referred to
para 16
referred to
parci 16
referred to
para 16
referred to
para 16
1995 (4) Suppl. SCR 158relied on
para 17
1995 (2) SCR 35
1996 (3) SCR 125
1996 (2) sec 715
referred to
para 17
referred to
para 17
referred to
para 19
1999 (2) Suppl. SCR 521 relied on
para 20
2009 (13) SCR 258
referred to
para 28
2008 (4) SCR 1
referred to
para 29
2004 (5) Suppl. SCR 972 referred to
para 29
2010 (14) SCR 532
1971 (3) SCR 267
2010 (1) SCR 483
2008 (4) SCR 1
referred to
para 30
referred to
para 31
referred to
para 31
referred to
para 35
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2608 of 2011 etc.
G
From the Judgment & Order dated 04.01.2011 of the High
Court of Judicature at Allahabad, Lucknow Bench in Writ
Petition No. 146 (S/B) ;of 2009.
WITH
C.A. Nos. 4009, 4022, 4027-4029 of 2012, 2605, 2607,
2609,2610,2614,2616,2629,2675,2676,2677,2678,2679,
2729, 2730, 2737 of2011, 4030, 4031, 4032, 4033, 4034,
H
U.P. POWER CORPORATION LTD. v. RAJESH
127
KUMAR & ORS.
4023, 4024, 4025 of 2012, 4691, 4697, 4699 of 2011, 4026,
A
4016, 4021, 4017, 4018, 4019, 4020 of 2012, 2622, 2611,
2612,2613,2623,2624,2682-83,2684,2881, 2884-85,2886,
2908, 2909, 2944-2945 of 2011, 566 & 4067 of 2012.
P.S. Patwalia, Raju Ramachandran, P.P. Rao, Ranjit
B
Kumar, Vijay Hansaria, Shanti Bhushan, Dr. Rajeev Dhawan,
Vinod A. Bobde, Shail Kumar Dwivedi, AAG Aman Preet Singh
Rahi, Ashok K. Mahajan, Ankur Talwar, Sanchit Asthana, Rajat
Singh, Ankur Mittal, P .N. Gupta, Manoj Kumar Dwivedi,
Vandana Mishra, Aviral Shukla, Abhinav Shrivastava, Ashutosh
C
Sharma, Naresh Bakshi, Tushar Bakshi, S. Ranjith Kumar,
Natasha Vinayak, Namrata Sharma, Ajay Singh, Ranjith,
Jaiveer Shergill, Manoj Kumar Dwivedi, G. Venkateswara Rao,
Abhinav Srivatava, P.N. Gupta, Aviral Shukla, Sanjay Singh,
Rajeev Singh, Shaikh Chand Saheb, Moinuddin Ansari, R.K.
Gupta, Apeksha Sharan, Abhimanyu Tiwari, S.K. Gupta, Utsav
D
Sidhu, Shekhar Kumar, T. Srinivas Murthy, Preetika Dwivedi,
Mukti Chaudhary, Sanskriti Pathak, Senthil Jagadeesan, Satya
Mitra, Rakesh Kumar Gupta, Shiv Ram Pandey, A Subba Rao,
Manoj Gorkela, A.T. Rao, Anand Tiwari, Vinod, Ajit Kumar
Gupta, Mridula Ray Bharadwaj, Pradeep Misra, Suraj Singh,
E
Prashant Choudhary, Anuvrat Sharma, Vishwajit Singh,
Abhinda Maheswari, Kumar Parimal, Sanjeev K. Choudhary,
A.P. Mayee, Abhishek Chaudhary, Vishwajit Singh, Abhindra
Maheshwari (for Vidhi International), Kamakshi S. Mehwal,
Naresh Kaushik, Anirudh Joshi, Lalitha Kaushik, Mukesh
F
Verma, Yash Pal Dhingra, Rajendra Singhvi, K.K.L. Gautam,
Brij Bhushan, Sameer Singh, Sneha Kalita, Vibhor Vardhan (for
Harsh Surana), Manish Pratap Singh, Ajit Singh, Rajan Roy,
Shailendra Tiwary, Prem Prakash, P.K. Manohar, C.D. Singh,
P.V. Yoeswaran, AK. Singh for the appearing parties.
G
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted in Special Leave
Petitions.
H
128
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
2. The controversy pertaining to reservation in promotion
for the Scheduled Castes and Scheduled Tribes with
consequential seniority as engrafted under Articles 16(4A) and
16(48) and the facet of relaxation grafted by way of a proviso
to Article 335 of the Constitution of India being incorporated
B by the Constitution (Seventy-seventh Amendment) Act, 1995,
the Constitution (Eight-first Amendment) Act, 2000, the
Constitution (Eighty-second Amendment) Act, 2000 and the
Constitution (Eighty-fifth Amendment) Act, 2001 at various
stages having withstood judicial scrutiny by the dictum in M.
c Nagaraj v. Union of lndia 1, the issue of implementation of the
same through existing statutory enactment by the State
Legislature and the subsequent rules framed by the authorities
of the State or concerned corporation of the State of Uttar
Pradesh, has, as the learned counsel appearing for both sides
D in their astute and penetrating manner have pyramided the
concept in its essentiality, either appeared too simple that
simplification may envy or so complex that it could manifest as
the reservoir of imbalances or a sanctuary of uncertainties.
Thus, the net result commands for.an endeavour for a detailed
survey of the past and casts an obligation to dwell upon the
E controversy within the requisite parameters that are absolutely
essential for adjudication of the /is emanated in praesenti.
THE FACTUAL EXPOSE'
F
3. Extraordinary and, in a way, perplexing though it may
seem, yet as the factual scenario pronouncedly reveals, the
assail in some of the appeals of this batch of appeals is to the
judgment and order passed by the Division Bench of the High
Court of Judicature at Allahabad in Writ Petition No. 63217 of
G 2010 (Mukund Kumar Srivastava vs. State of UP. and
Another) upholding the validity of the provisions contained in
Rule 8-A of the U.P. Government Servants Seniority Rules,
1991 (for brevity 'the 1991 Rules') that were inserted by the
U.P. Government Servants Seniority (3rd Amendment) Rules,
H
1.
(2006) 8 sec 212 : AIR 2007 SC 71.
U.P. POWER CORPORATION LTD. v. RAJESH
129
KUMAR & ORS. [DIPAK MISRA, J.]
2007 by the employees-appellants and in some of the appeals,
A
the challenge by the State Government and the U.P. Power
Corporation Ltd. (for short 'the Corporation') is to the judgment
and order passed by the Division Bench of the High Court of
Judicature at Allahabad, Lucknow Bench. Lucknow, in Writ
Petition No. 1389 (SIB) of 2007 (Prem Kumar Singh and
B
others v. State of U.P. and others) and other connected writ
petitions holding, inter alia, that the decision rendered by the
Division Bench in the case of Mukund Kumar Srivastava
(supra) at Allahabad is per incuriam and not a binding
precedent and further Section 3(7) of the Uttar Pradesh Public c
Servants (Reservation for Schedwed Castes, Scheduled Tribes
and other Backward Classes) Act, 1994 (for short 'the 1994
Act') and Rule BA of the 1991 Rules, as brought into force in
2007, are invalid, ultra vires and unconstitutional and, as a
necessary corollary, the consequential orders relating to
D
seniority passed by the State Government deserved to be
quashed and, accordingly, quashed the same and further
clarified that in case the State Government decides to provide
reservation in promotion to any class or classes of posts in the
services under the State, it is free to do so after undertaking
E
the exercise as required under the constitutional provisions
keeping in mind the law laid down by this Court in M. Nagraj
(supra). It has been directed that till it is done, no reservation
in promotion on any post or classes of posts under the services
of the State including the Corporation shall be made hence
forth. However, the Division Bench observed that the promotions
already made as per the provisions/Rules where the benefit of
Rule 8A has not been given while making the promotion shall
not be disturbed.
F
4. The cleavage has invited immense criticism by the
G
learned senior counsel appearing for both sides on principles
of judicial discipline, decorum, propriety and tradition. Initially
the debate centred around the concept of precedent and the
duties of the Benches but gradually it was acceded to,
absolutely totally being seemly, to decide the controversy on
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A merits instead of a remit and, accordingly, the learned counsel
for the parties addressed the Court at length. As advised, we
shall dwell upon the merits of the controversy but we shall not
abdicate our responsibility to delve into the first issue, i.e.,
judicial discipline as we are inclined to think that it is the duty·,
B nay, obligation in the present case to do so because despite
repeated concern shown by this Court, the malady subsists,
making an abode of almost permanency. Ergo, we proceed to
state the facts on the first issue and our opinion thereon and,
thereafter, shall deal with the assail and attack on both the
c judgments on merits.
5. One Rajesh Kumar and two others, the private
respondents in the appeal preferred by the Corporation, filed
Writ Petition No. 146 (SIB) of 2009 at the Lucknow Bench of
the High Court of Judicature at Allahabad seeking declaration
D to the effect that Rule 8A of the 1991 Rules and the resolution
passed by the Corporation are ultra vires. That apart, the assail
was to the constitutional validity of Section 3(7) of the 1994 Act
on the foundation that the State Government in gross violation
of the constitutional provisions enshrined under Articles 16(4A)
E and 16(4B) and the interpretation placed thereon by the
Constitution Bench in M. Nagraj (supra) has framed the Rules
and the Corporation has adopted the same by amending its
Rules and introduced the concept of reservation in promotion
with accelerated seniority.
F
6. It was contended before the Lucknow Bench that neither
the State Government nor the Corporation had carried out the
exercise as per the decision in M. Nagraj (supra) and in the
absence of the same, the provisions of the Act and the Rules
G caused discomfort to the constitutional provisions. The stand
and stance put forth by the writ petitioners was combated by
the Corporation contending, inter alia, that the Scheduled
Castes and Scheduled Tribes were inadequately represented
in the service and the chart wise percentage of representation
.H to direct recruitment of reserved categories incumbents would
U.P. POWER CORPORATION LTD. v. RAJESH
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clearly reflect the inadequacy. We are not referring to the
A
pleadings in detail as that will be adverted to at a later stage.
Suffice to say at present, in view of the assertions made by the
parties and the records produced the Division Bench framed
the question for determination whether Rule 8-A of the Rules
is ultra vires and unconstitutional. During the course of hearing
B
of the writ petition, the Corporation brought to the notice of the
Division Bench at Lucknow the judgment dated 21.10.2010
passed by the Division Bench at Allahabad in Writ Petition No.
63127 of 2010 (Mukund Kumar Srivastava v. State of UP. and
another). It was urged that the same was a binding precedent c
and, therefore, the Division Bench was bound to follow the
same. But, the Bench hearing the writ petition declared the said
decision as not binding and per incuriam as it had not correctly
interpreted, appreciated and applied the ratio laid down in M.
Nagraj (supra) and, on that base, declared Section 3(7) of the
D
1994 Act and Rule 8A of the 1991 Rules as unconstitutional
and issued the directions as have been stated hereinbefore.
7. It is the admitted position at the Bar that certain writ
petitions were filed at Lucknow Bench and they were being
heard. They were filed on earlier point of time and were being
E
dealt with on merits by the concerned Division Bench. At that
juncture, the Division Bench at Allahabad entertained Writ
Petition No. 63127 of 2010. The Bench was of the view that
without calling for a counter affidavit from any of the respondents
the writ petition could be decided. Be it noted, the petitioner
F
therein was an Executive Engineer in Rural Engineering
Service at Sonebhadra Division and had challenged the
seniority list of Executive Engineers of Rural Engineering
Service published vide Office Memorandum No. 2950/62-32010-45-RES/2010 dated 8.9.2010 and further sought G
declaration of Rule 8A of the 2007 Rules as unconstitutional.
A prayer for issue of a writ of mandamus was sought not to
proceed with and promote any person on the next higher post
on the basis of the impugned seniority list of Executive
Engineers of Rural Engineering Service. The Bench, as is
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A manifest from the order, adverted to the facts and then dwelled
upon the validity of the Rules. It scanned Rules 6, 7, 8 and SA
and referred to the decision of this Court in Indra Sawhney etc.
v. Union of India and others2, Section 3 of the 1994 Act, Article
335 of the Constitution and quoted in extenso from M. Nagraj
s (supra) and came to hold as follows: -
c
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"The Constitutional validity of Amending Act 77th
Amendment Act 1995 and 85th Amendment Act 2001
whereby clause (4A) has been inserted after clause (4)
under the Article 16 of the Constitution has already been
upheld by the Constitution Bench of Hon'ble Apex Court
in M. Nagraj case (supra) holding that neither the catch
up rule nor the Constitutional seniority is implicit in Clause
(1) and Clause (4) of Article 16 rather the concept of catch
up rule and consequential seniority are judicially evolved
concepts to control the extent of reservation. The source
of these concepts is in service jurisprudence. These
concepts cannot be elevated to the status of an axiom, like
secularism, constitutional sovereignty, equality code etc.
forming basic structure of the Constitution. It cannot be
said that by insertion of concept of consequential seniority
the structure of Article 16 stands destroyed or abrogated.
It cannot be said that equality code contained under
Articles 14, 15, 16 is violated by deletion of catch-up rule.
We are bound by the aforesaid decision of Hon'ble
Apex Court in M. Nagraj case (supra). Therefore, there can
be no scope for doubt to hold that deletion of catch-up rule
and conferring the benefits of consequential seniority upon
the members of SC and ST on account of reservation in
promotion in a particular service or grade or post has any
way obliterated the equality code contained under Articles
14, 15 and 16 of the Constitution as concept of catch-up
rule of seniority does not directly flow from Article 16(1)
and (4) of the Constitution of India. We are of the
H
2.
1992 Supp. (3) sec 217: AIR 1993 SC 477.
U.P. POWER CORPORATION LTD. v. RAJ ESH
133
KUMAR & ORS. [DIPAK MISRA, J.]
considered opinion that Rule 8A of 1991 Rules has merely
A
effectuated the provisions contained under Article 16(4A)
of the Constitution of India whereby benefit of
consequential seniority has been given to the members of
scheduled castes and scheduled tribes due to reservation/
roster in promotion by obliterating the concept of catch-up
Rule of seniority. Rule 8A of 1991 Rules specifically
stipulates that if any member of scheduled castes or
scheduled tribes is promoted on any post or grade in
service earlier to other categories of persons, the member
8
of SC/ST shall be treated to be senior to such other c
categories of persons who are promoted subsequently
after promotion of members of SC/ST, despite anything
contained in Rules 6, 7 and 8 of 1991 Rules. In our view
Rule 8A of 1991 Rules has constitutional sanctity of Article
16(4A) of the Constitution and cannot be found faulty
D
merely on account of violation of judicially evolved concept
of catch-up rule of seniority which has been specifically
obliterated by Article 16(4A) of the Constitution. Likewise
the said rule can also not be held to be unconstitutional or
invalid on account of obliteration of any other judicially
E
evolved principle of seniority or any other contrary rules of
seniority existing under Rules 6, 7 and 8 of 1991 Rules,
as Rule 8A of 1991 Rules opens with non-obstante clause
with overriding effect upon Rules 6, 7 and 8 of 1991 Rules,
therefore, we do not find any justification to strike down the
provisions contained under Rule 8-A of 1991 Rules on the
said ground and on any of the grounds mentioned in the
writ petition."
After so stating, the Division Bench proceeded to observe as
F
follows: -
G
"27. In this connection, we make it clear that deletion of
the said concept of catch-up Rule of seniority and addition
of consequential seniority due to reservation in promotion
on any post or grade in service are applicable to the
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member of scheduled castes and scheduled tribes only,
whereas inter-se seniority of other categories employees
shall continue to be determined according to their existing
seniority rules as contemplated by the provisions of Rules
6, 7 and 8 of 1991 Rules, subject to aforesaid limitations.
Thus the concept of catch-up Rule of Seniority stands
obliterated only to the extent of giving benefit of
consequential seniority to the members of scheduled
castes and scheduled tribes on account of their promotion
on any post or grade in service due to reservation,
therefore, the scope of obliteration of concept of catch-up
rule is limited to that extent. In this view of the matter the
petitioner is not entitled to get the relief sought for in the
writ petition questioning the validity of said Rule 8A of 1991
Rules. Thus we uphold the validity of said Rules and the
question formulated by us is answered accordingly."
It is interesting to note that in paragraph 29 of the said judgment
the Division Bench expressed thus: -
"29. However, since the petitioner did not challenge the
Constitutional Validity of Law regarding reservation in
promotion in favour of scheduled castes and scheduled
tribes existing in State of Uttar Pradesh which is applicable
to the services and posts in connection of affairs of State
of Uttar Pradesh inasmuch as other services and posts
covered by said Reservation Act 1994, in our opinion, the
petitioner shall not be permitted to raise this question by
filing any other writ petition again. In given facts and
circumstances of the case, we are not inclined to issue any
mandamus, commanding the respondents, not to proceed
with impugned seniority list for the purpose of promotion
on the next higher post without expressing any opinion on
the merit of said seniority list. We are also not inclined to
issue any such restraint order, staying any promotion on
the next higher post, if the respondents are intending to
make such promotion on the basis of impugned seniority
list."
U.P. POWER CORPORATION LTD. v. RAJESH
135
KUMAR & ORS. [DIPAK MISRA, J.J
8. We have been apprised at the Bar that it was brought
A
to the notice of the Division Bench at Allahabad that certain writ
petitions, where there was comprehensive challenge, were
part-heard and the hearing was in continuance at Lucknow
Bench, but, as is vivid from the first paragraph of the said
judgment, the Bench heard the learned counsel for the petitioner
B
and the standing counsel for the State and caveator and
proceeded to decide the matter without a counter affidavit.
9. Presently, we shall advert to how the Lucknow Bench
dealt with this decision.
10. After stating the basic pleas, the Division Bench at
Lucknow proceeded to state as follows:-
" ....... but before we proceed to decide the validity of the
c
challenge made and the defence put, we find it expedient
D
to respond to the foremost plea of the respondents that the
aforesaid Rule 8-A of the U.P. Government Servants
Seniority Rules, 1991, (hereinafter referred to as 'the
Rules, 1991 ), was challenged before a Division Bench
(Hon'ble Sheo Kumar Singh and Hon'ble Sabhajeet
E
Yadav, JJ) at Allahabad in Writ Petition No. 63127 of 2010
in re: Mukund Kumar Srivastava versus State of U.P. and
another, which writ petition has been dismissed upholding
the validity of the aforesaid Rule 8-A, therefore, this Court
is bound by the said judgment passed by a Bench of equal
strength and hence all these petitions need be dismissed
only on this ground."
Before the said Bench, it was contended that the judgment
rendered by the Division Bench at Allahabad is per incuriam
F
and is not a binding precedent.
G
11. Various grounds were urged to substantiate the
aforesaid stand. The Division Bench, after analysing the
reasoning of the Allahabad Bench in great detail and after
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A
referring to certain decisions and the principles pertaining to
B
c
D
E
F
G
H
binding precedent, opined as follows:-
"The Division Bench at Allahabad, did not enter into the
question of exercise of power by the State Government
under the enabling provisions of the Constitution and
upheld the validity of Rule 8-A only for the reason, that
there did exist such a power to enact the Rule, whereas
the Apex Court, very clearly has pronounced, that if the
given exercise has not been undertaken by the State
Government while making a rule for reservation with or
without accelerated seniority, such a rule may not stand the
test of judicial review.
In fact, M. Nagraj obliges the High Court that when
a challenge is made to the reservation in promotion, it shall
scrutinize the same on the given parameters and it also
casts a corresponding duty upon the State Government to
satisfy the Court about the exercise undertaken in making
such a provision for reservation. The Division Bench did
not advert upon this issue, nor the State Government
fulfilled its duty as enumerated in M. Nagraj.
The effect of the judgment delivered at Allahabad is
also to be seen in the light of the fact that though the
Division Bench at Allahabad did not adjudicate on the
dispute with regard to the seniority for which the petitioner
Mukund Kumar Srivastava has been relegated to the
remedy of State Public Services Tribunal, but upheld the
validity of Rule 8-A. which could not be said to be the main
relief, claimed by the petitioner.
For the aforesaid reasons and also for the reason,
that the present writ petitions do challenge the very rule of
reservation in promotion, which challenge we have upheld
for the reasons hereinafter stated, because of which the
rule of accelerated seniority itself falls to the ground, we,
with deep respect, are unable to subscribe to the view
U.P. POWER CORPORATION LTD. v. RAJESH
137
KUMAR & ORS. [DIPAK MISRA, J.]
taken by the Division Bench at Allahabad and hold that the
A
said judgment cannot be considered as binding precedent
having been rendered per incuriam."
12. We have reproduced the paragraphs from both the
decisions in extenso to highlight that the Allahabad Bench was
B
apprised about the number of matters at Lucknow filed earlier
in point of time which were being part heard and the hearing
was in continuum. It would have been advisable to wait for the
verdict at Lucknow Bench or to bring it to the notice of the
learned Chief Justice about the similar matters being instituted
C
at both the places. The judicial courtesy and decorum warranted
such discipline which was expected from the learned Judges
but for the unfathomable reasons, neither of the courses were
taken recourse to. Similarly, the Division Bench at Lucknow
erroneously treated the verdict of Allahabad Bench not to be a
binding precedent on the foundation that the principles laid
D
down by the Constitution Bench in M. Nagraj (supra) are not
being appositely appreciated and correctly applied by the
Bench when there was reference to the said decision and
number of passages were quoted and appreciated albeit
incorrectly, the same could not have been a ground to treat the
E
decision as per incuriam or not a binding precedent. Judicial
discipline commands in such a situation when there is
disagreement to refer the matter to a larger Bench. Instead of
doing that, the Division Bench at Lucknow took the burden on
themselves to decide the case.
F
13. In this context, we may profitably quote a passage from
Lala Shri Bhagwan and another v. Ram Chand and another3:-
" 18 ... It is hardly necessary to emphasise that
considerations of judicial propriety and decorum require
G
that if a learned single Judge hearing a matter is inclined
to take the view that the earlier decisions of the High Court,
whether of a Division Bench or of a single Judge, need to
3.
AIR 1965 SC 1767.
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be reconsidered, he should not embark upon that enquiry
sitting as a single Judge, but should refer the matter to a
Division Bench or, in a proper case, place the relevant
papers before the Chief Justice to enable him to constitute
a larger Bench to examine the question. That is the proper
and traditional way to deal with such matters and it is
founded on healthy principles of judicial decorum and
propriety. It is to be regretted that the learned single Judge
departed from this traditional way in the present case and
chose to examine the question himself."
14. In Sundarjas Kanya/a/ Bhathija and others v. The
Collector, Thane, Maharashtra and others4 while dealing with
judicial discipline, the two-Judge Bench has expressed thus:-
"One must remember that pursuit of the law, however,
glamorous it is, has its own limitation on the Bench. In a
multi-Judge Court, the Judges are bound by precedents
and procedure. They could use their discretion only when
there is no declared principle to be found, no rule and no
authority.