Orissa High Court
Hiranmayee Nayak And vs State Of Odisha & Others .... Opposite ... on 22 January, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) Nos.7674, 3289, 4527, 4707, 4709, 4928,
5063, 6555, 6661, 6663, 6687, 6691, 7129, 7901, 8372,
8380, 8382, 8510, 8573, 8627, 8720, 8739, 8875, 9265,
9277, 9291, 9296, 9397, 9643, 9789, 9985, 10042,
10105, 10223, 10224, 10721, 10923, 11039, 12454,
12973, 13367, 13600, 14016, 14228, 15864, 15998,
16104, 16316, 18943, 18965, 19487, 19512, 19884,
21084, 21393, 22005, 22656, 23002, 23166, 23781,
24202, 24631, 25482 & 27932 of 2025
In the matter of an application under Articles 226 and 227
of the Constitution of India.
..................
W.P.(C) No.7674 of 2025
Hiranmayee Nayak and
Others .... Petitioners
-versus-
State of Odisha & Others .... Opposite Parties
W.P.(C) No.3289 of 2025
Jagannath Samal .... Petitioner
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.4527 of 2025
Santosh Kumar Swain .... Petitioner
-versus-
State of Odisha and Others
.... Opp. Parties
// 2 //
W.P.(C) No.4707 of 2025
Ramakanta Mahanty Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.4709 of 2025
Jyochhna Rani Parida Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.4928 of 2025
Kadambari Tripathy Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.5063 of 2025
Amiya Kumar Pradhan Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.6555 of 2025
Sukumar Panda Petitioner
....
-versus-
Page 2 of 103
// 3 //
State of Odisha and Others .... Opp. Parties
W.P.(C) No.6661 of 2025
Sabita Pradhan Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.6663 of 2025
Dibyajyoti Panda Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.6687 of 2025
Jyotsnarani Subudhi Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.6691 of 2025
Nirupama Mohapatra Petitioner
....
-versus-
Page 3 of 103
// 4 //
State of Odisha and Others .... Opp. Parties
W.P.(C) No.7129 of 2025
Sujata Mishra Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.7901 of 2025
Rasmita Muni Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8372 of 2025
Tapas Ranjan Gumansingh Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8380 of 2025
Sangeeta Kumari Panda Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8382 of 2025
Page 4 of 103
// 5 //
Banajabala Parida Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8573 of 2025
Netrananda Behera Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8627 of 2025
Prakash Kumar Sahoo Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8720 of 2025
Dr. Kaibalya Kumar Rath Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8739 of 2025
Dilleep Kumar Behera Petitioner
....
-versus-
Page 5 of 103
// 6 //
State of Odisha and Others .... Opp. Parties
W.P.(C) No.8875 of 2025
Yogamaya Sahu Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9265 of 2025
Bishnu Prasad Naik Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9277 of 2025
Rinki Prusty Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9291 of 2025
Amiya Kumar Patel Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9296 of 2025
Page 6 of 103
// 7 //
Binod Kumar Sahu Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9397 of 2025
Jyotirmayee Rout Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9643 of 2025
Khirod Prasad Rout Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9789 of 2025
Binodini Sahu Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.9985 of 2025
Satyaranjan Nayak Petitioner
....
-versus-
Page 7 of 103
// 8 //
State of Odisha and Others .... Opp. Parties
W.P.(C) No.10042 of 2025
Hitesh Kumar Khamari Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.10105 of 2025
Kabitanjali Mund Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.10223 of 2025
Abani Kumar Patro Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.10224 of 2025
Suvendu Kumar Dash Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.10721 of 2025
Page 8 of 103
// 9 //
Rasmita Rout Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.10923 of 2025
Ranjita Das Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.11039 of 2025
Alok Maharana Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.12454 of 2025
Jagannath Rout Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.12973 of 2025
Gagan Kumar Khadanga Petitioner
....
-versus-
Page 9 of 103
// 10 //
State of Odisha and Others .... Opp. Parties
W.P.(C) No.13367 of 2025
Snehasish Dash Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.13600 of 2025
Shikharani Sarangi Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.14016 of 2025
Bani Shatabdi Dash Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.14228 of 2025
Diptimayee Tripathy Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.15864 of 2025
Page 10 of 103
// 11 //
Pankajini Naik Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.15998 of 2025
Rakesh Kumar Toppo Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.16104 of 2025
Krushna Chandra Pradhan Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.16316 of 2025
Rajeeb Pujari Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.18943 of 2025
Saikamalini Sethy Petitioner
....
-versus-
Page 11 of 103
// 12 //
State of Odisha and Others .... Opp. Parties
W.P.(C) No.18965 of 2025
Pradipta Chandra Deo Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.19487 of 2025
Mrutunjaya Panda Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.19512 of 2025
Manasi Das Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.19884 of 2025
Debasish Nayak Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.21084 of 2025
Page 12 of 103
// 13 //
Santosh Kumar Sahu Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.21393 of 2025
Tavamani Naik Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.22005 of 2025
Bhasmita Majhi Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.22656 of 2025
Narayan Mohanty Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.23002 of 2025
Shridhar Das Petitioner
....
-versus-
Page 13 of 103
// 14 //
State of Odisha and Others .... Opp. Parties
W.P.(C) No.23166 of 2025
Bibhudatta Maharana Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.23781 of 2025
Bhagban Pradhan Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.24202 of 2025
Prakash Kumar Mahauty Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.24631 of 2025
Sudheer Kumar Panda Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.25482 of 2025
Page 14 of 103
// 15 //
Sabita Gomango Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
W.P.(C) No.27932 of 2025
Tinisha Sekhar Behera Petitioner
....
-versus-
State of Odisha and Others .... Opp. Parties
For Petitioner : Mr. S. Palit, Sr. Advocate
with Mr. B.B. Mohanty, Advocate in
W.P.(C) No.7674 of 2025 and Mr. B.
Routray, Sr. Advocate with Mr. J. Biswal,
Advocate in W.P.(C) No.8720 of 2025
For Opp. Parties : Mr. M.R. Mohanty, AGA (O.P. Nos.1
to 4) in all the cases
Mr. A.K. Mohanty, Sr. Advocate for Opp.
Parties in W.P.(C) No.9643 of 2025
Mr. P.K. Sinha, Advocate for O.P. Nos.5 to 9
in W.P.(C) No.7674 of 2025
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------
Date of Hearing:23.10.2025 and Date of Judgment:22.01.2026
--------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. Heard learned counsels appearing for the parties.
Page 15 of 103// 16 //
2. Since the core issue in the present batch of Writ Petitions involves sustainability of the clarification issued by the Govt. in the ST and SC Development Department-Opp. Party No.3 on 06.05.2024 as well as 27.02.2025 basing on the view given by the Law Department on 27.02.2024 and consequential action taken thereof in the eye of law, all the matters were heard analogously and disposed of by the present common order. For the sake of brevity and convenience, W.P.(C) No.7674 of 2025 was treated as the leading case.
3. It is the case of the petitioners that petitioners while working as Asst. Engineers (Civil), they were found eligible for promotion to the rank of Assistant Executive Engineer (Civil) in the year 2024 in the DPC held on 04.09.2024. Petitioners were recommended to get the benefit of promotion by the DPC. However, basing on the impugned clarification issued by the Commissioner-cum-Secretary, ST and SC Development Department on 06.05.2024 and further communication Page 16 of 103 // 17 // issued by the Department on 27.02.2025, recommendation made by the DPC when was cancelled vide Notification dated 04.03.2025, aggrieved by such cancellation, W.P.(C) No.7674 of 2025 was filed.
3.1. It is contended that this Court vide order dated 18.03.2025, while directing the State Counsel to obtain instruction in the matter, passed an interim order to the effect that in the event a fresh DPC is held, no final recommendation shall be made without leave of this Court till the next date. However, vide order dated 24.04.2025, interim order passed by this Court on 18.03.2025 was modified by permitting the State to issue promotion orders in respect of the persons who are found Senior to the petitioners on their own merit in respect of their own stream and who are likely to retire by 30.06.2025.
3.2. Learned Senior Counsels appearing for the Petitioners while assailing the impugned clarification issued by the Department on 06.05.2024 and further communication issued in that regard on 27.02.2025, Page 17 of 103 // 18 // contended that Opp. Party No.3 is not at all competent to issue such a clarification in view of the provisions contained under the OCS (Criteria for Promotion) Rules, 1992 (in short Rules).
3.3. It is contended that as provided under Rule-3-A of the Amendment Rules, 2022 to the 1992 Rules, Scheduled Caste and Schedule Tribe candidates appointed on their own merit either by direct Recruitment or by promotion and placed above the unreserved candidates in the merit list shall be considered and adjusted against the unreserved vacancy and such candidates are not to be counted within the percentage earmarked for reservation in their category.
3.4. It is contended that in view of the Amendment carried to OCS (Criteria for Promotion) Rules, 1992 with insertion of Rule-3-A vide the Amendment Rules, 2022, there was no justification on the part of Opp.
Party No.3 to issue the impugned clarification on 06.05.2024 and subsequent communication issued on Page 18 of 103 // 19 // 27.02.2025, with a direction to all the departments of the Govt. to follow the clarification dated 06.05.2024 and the same is not sustainable in the eye of law.
3.5. Learned Senior Counsels appearing for the petitioners contended that OCS (Criteria for Promotion) Rules, 1992 and the amendment carried vide Amendment Rules, 2022, were framed in exercise of the powers conferred under Art-309 of the Constitution of India and such a rule was framed at the instance of the Hon'ble Governor of Odisha.
3.6. It is accordingly contended that since the impugned clarification dated 06.05.2024 has been issued by Opp. Party No.3, without prior permission and/or concurrence of Hon'ble Governor of Odisha, the same is not sustainable in the eye of law. It is also contended that such a clarification, so issued by Opp.
Party No.3, is contrary to the provisions contained under Art-154 and 162 of the Constitution of India.
Art-154 and 162 of the Constitution of India reads as follows:-
Page 19 of 103// 20 // "Article-154. Executive power of State.--(1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Nothing in this article shall-- (a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.
Article-162. Extent of executive power of State.--Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."
3.7. Since the impugned clarification dated 06.05.2024 has been issued by Opp. Party No.3 contrary to the provisions contained under Art-154 read with Art-162 of the Constitution of India, basing on the impugned clarification, no consequential action could have been taken by the departments concerned.
It is also contended that Law department was not competent to issue the clarification on 27.02.2024 on the face of the provisions contained under Rule-3-A of the Amendment Rules, 2022. It is further contended that the impugned clarification dtd. 06.05.2024 was also issued when the Model Code of Conduct was in Page 20 of 103 // 21 // force in the entire country for the General Election to the Lok Sabha and State Legislative Assembly for the State of Odisha w.e.f. 16.03.2024.
3.8. It is also contended that such Model Code of Conduct remain in force till the new Govt. assumed its office on 12.06.2024. It is also contended that as provided under the 1992 Rules, more particularly under Rule-6 of the said Rules, it is only the General Administration Department, who is competent to issue any such clarification. Rule-6 of the 1992 Rules reads as follows:-
"6. Interpretation- If any doubt arises on interpretation of any of the provisions of these rules, it shall be referred to Government in General Administration Department for final decision."
3.9. It is also contended that no amendment has been made to Rule-6 of the 1992 Rules, whereby Opp. Party No.3 is permitted to issue any such clarification, so issued vide the impugned clarification dated 06.05.2024. It is further contended that Reserve Category candidates who have not availed the benefit of reservation at the time of initial appointment can be Page 21 of 103 // 22 // appointed against U.R. vacancies on their own merit.
But O.P. No.3 while issuing the impugned clarification has held the Reserve Category candidates are eligible to be promoted against the vacancies earmarked for unreserved candidates without any restriction.
3.10. In support of his aforesaid submission, reliance was placed to the decision of the Hon'ble Apex Court in the case of R.K. Sabharwal and Ors. Vs. State of Punjab and Others reported in AIR 1995 SC 1371.
Hon'ble Apex Court in Para-2, 4, 8 and 9 of the said judgment has held as follows:-
"2. On the above facts the petitioners have challenged the reservation policy on several grounds but Mr. Harish Salve, learned counsel for the petitioners, has confined the arguments to the following two points:
(1) The object of reservation is to provide adequate representation to the Scheduled Castes/Tribes and Backward Classes in services and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved. The precise argument is that for working out the percentage of reservation the promotees/appointees belonging to the Scheduled Castes and Backward Classes whether appointed against the general category posts or against the reserve posts are to be counted. In other words if more than 14% of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates then the purpose of reservation in the said cadre having been achieved, the Government instructions providing reservations would become inoperative.Page 22 of 103
// 23 // (2) Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category -- reserve or general -- due to retirement etc. of whose member the post fell vacant.
xxxx xxxx xxxx xxxx
4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non- reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the Page 23 of 103 // 24 // same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.
xxxx xxxx xxxx xxxx
8. The quoted observations clearly illustrate that the rule of 50% a year as a unit and not the entire strength of the cadre has been adopted to protect the rights of the general category under clause (1) of Article 16 of the Constitution of India. These observations in Indra Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] are only in relation to posts which are filled initially in a cadre. The operation of a roster, for filling the cadre- strength, by itself ensures that the reservation remains within the 50% limit. Indra Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] is not the authority for the point that the roster survives after the cadre-strength is full and the percentage of reservation is achieved.
9. A Division Bench of the Allahabad High Court in J.C. Malik v. Union of India [(1978) 1 SLR 844 (All)] interpreted Railway Board's circular dated 20-4-1970 providing 15% reservations for the Scheduled Castes. The High Court held that the percentage of reservation is in respect of the appointment to the posts in a cadre. On the basis of the material placed before the High Court it reached the conclusion that if the reservation is permitted in the vacancies after all the posts in a cadre are filled then serious consequences would ensue and the general category is likely to suffer considerably. We see no infirmity in the view taken by the High Court."
3.11. It is further contended that Hon'ble Apex Court in the case of Jarnail Singh Vs. Lachhmi Narain Gupta and Others, reported in 2022 INSC 105, held that State is free to exercise the power conferred under Art-
16(4-A) of the Constitution of India, but prior to exercising the same, the State has to collect Page 24 of 103 // 25 // quantifiable data for determining the inadequacy of representation of ST and SC Candidates as a basic requirement for providing reservation to them in the case of promotion in any cadre/post. View expressed by the Hon'ble Apex Court in Para-45 to 47 of the judgment reads as follows:-
"45. Collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions, as laid down by this court in M. Nagaraj (supra). The unit for the purpose of collection of data is a cadre, according to M. Nagaraj (supra) and Jarnail Singh (supra). For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre, as already stated. The structure of services in the State of Karnataka is along the same lines as that of services in the Central Government. Services are divided into 'groups', which are further bifurcated into cadres. There is no confusion that a cadre is not synonymous with a 'group'.
46. The first term of reference for the Ratna Prabha Committee was to collect data cadre-wise. The conclusion of this Court in B.K. Pavitra II (supra) that the expression 'cadre' has no fixed meaning in service jurisprudence is contrary to the judgments of this Court, which have been referred to above while answering point 2. In clear terms, M. Nagaraj (supra) held that the unit for collection of quantifiable data is cadre, and not services as has been held in B.K. Pavitra II (supra). Article 16(4-A) of the Constitution enables the State to make reservation in promotions for SCs and STs, which are not adequately represented in the services of the State. However, the provision for reservation in matters of promotion is with reference to class or classes of posts in the services under the State. That 'groups' consist of cadres is a fact which was taken into consideration by this Court in B.K. Pavitra II (supra). The conclusion that the collection of data on the basis of 'groups' is valid, is contrary to the decisions of this court in M. Nagaraj (supra) and Jarnail Singh (supra).Page 25 of 103
// 26 //
47. The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a 'group', which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a 'group', is the unit and the data has to be collected with respect to each cadre. Therefore, we hold that the conclusion of this Court in B.K. Pavitra II (supra) approving the collection of data on the basis of 'groups' and not cadres is contrary to the law laid down by this Court in M. Nagaraj (supra) and Jarnail Singh (supra).
3.12. It is further contended that no such quantifiable data has yet been collected and/or prepared by the State of Odisha, determining the inadequacy of representation of ST and SC candidates in any cadre and thereby entitling them to get the benefit of reservation in promotion against unreserved vacancies.
Not only that in the case of Pravakar Mallick and Anr. Vs. State of Odisha and Others, disposed of on 17.04.2020 in C.A. Nos.3240 of 2011, State of Odisha clearly admitted that no such quantifiable data has yet been obtained for determining the inadequacy of representation for SC and ST candidates. Hon'ble Apex Page 26 of 103 // 27 // Court in Para-4, 8, 9, 11 to 13 of the said decision has held as follows:-
"4. The respondent-writ petitioners were appointed to Orissa Administrative Service-II (OAS-II) posts pursuant to selections made by the Orissa Public Service Commission. They were recruited during the years 1983, 1984 and 1987. They were assigned different ranks in the merit list for their respective batches prepared by the Public Service Commission. In the above said merit list, persons belonging to SC/ST category, who were appointed against the reserved vacancies were placed below the writ petitioners. Thus, the writ petitioners were senior to appointees belonging to SC/ST category. The respondent-writ petitioners were subsequently promoted and appointed in the next higher category, i.e., Orissa Administrative Service-I (OAS-I)(JB) vide Government Notification dated 26.08.2000. The appellants and some others belonging to SC and ST category, recruited along with the respondent-writ petitioners in subsequent batches, were given promotion to the rank of OAS-I(JB) against reserved vacancies during the year 1995 and 2000 as provided under Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made thereunder. The seniority of reserved categories and unreserved categories, including that of the respondent- writ petitioners was not finalised by the Public Service Commission since the principles determining seniority, inter se, was the subject matter of several litigations. The original seniority position in the cadre of OAS-II prepared by the Public Service Commission was retained without any changes in view of the judgment of this Court in the case of Union of India & Ors. v. Virpal Singh Chauhan & Ors.2 . Irrespective of getting promotion in subsequent years, the inter se seniority of the respondent-writ petitioners and the SC/ST roster point promotees in the rank of OAS-I was maintained in the seniority list prepared on 16.05.2001. Article 16(4A) of the Constitution of India was amended by 85th amendment, enabling the State to grant benefit of promotion with consequential seniority to SC/ST reserved category officers. By Constitution (85th) Amendment Act of 2001, Article 16(4A) was amended and for the words, "in matters of promotion to any class", the words, "in matters of promotion with consequential seniority to any class"
were substituted. In the judgment of this Court in the case of M. Nagaraj1 a Constitution Bench of this Court, while upholding the Constitution (85th) Amendment Act of Page 27 of 103 // 28 // 2001 held that, the State is not bound to make reservation for SCs/STs in matter of promotions. However it was held that, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335 of the Constitution of India. It is further made clear that even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling of 50% or obliterate the creamy layer or extend the reservation indefinitely. In the case of Virpal Singh Chauhan2 , this Court has held that reservedpromoted candidates are not entitled to seniority in the promoted post and if the general category candidate reaches the said post, he is entitled to seniority over the promotees to reserved vacancies. Subsequently, a three-Judge Bench judgment of this Court in the case of Jagdish Lal & Ors. v. State of Haryana & Ors.3 has held that reserved promoted category candidates are entitled to seniority, in the promoted posts and not as per the feeder cadre. Subsequently, a Constitution Bench of this Court in the case of Ajit Singh & Ors. (II) v. State of Punjab & Ors.4 has overruled the judgment in the case of Jagdish Lal3 and upheld the principle, viz., "Catch Up Rule", as mentioned in the judgment in the case of Virpal Singh Chauhan2.
xxxx xxxx xxxx xxxx "8. Sri Subba Rao, learned counsel appearing for the appellants has primarily contended that as per the judgment of this Court in the case of M. Nagaraj1 this Court has upheld the amendment to Article 16(4A) of the Constitution by 85th Constitution Amendment and held that it is always open for the State to extend the benefit of reservation with consequential seniority, either by executive order or by way of legislation. When the Government has taken decision by way of Resolution dated 20.03.2002, same is quashed by the High Court without assigning any valid reasons. It is further submitted that the Orissa Act 38 of 1975, i.e., The Orissa Reservation of Vacancies in Post and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 is in force, in the State and by the said Act, benefit of reservation has been extended to scheduled castes and scheduled tribes, in promotions also. The learned counsel has placed reliance on Section 10 of the said Act, to buttress his submission that as per the same, the promoted SC/ST candidates are entitled for benefit of seniority.
Page 28 of 103// 29 //
9. The learned counsel appearing for the State of Orissa has fairly submitted that after 85th Constitution Amendment by which Article 16(4A) was amended, there is neither any legislation in the State of Orissa nor any executive order by the Government, to extend the benefit of promotion to the reserved vacancies with consequential seniority.
xxxx xxxx xxxx xxxx
11. It is clear from the material placed on record that the seniority for general category officers was restored in the Gradation List of OAS-I(JB) which was prepared on 16.05.2001, by extending the benefit of "Catch Up Rule", evolved by this Court in the case of Virpal Singh Chauhan2 which is subsequently accepted in the case of Ajit Singh (II) 4. After Constitution (Eighty-Fifth) Amendment Act, 2001, Article 16(4A) reads as under :
"16. Equality of opportunity in matters of public employment.-(1) .... .... .... (2) .... .... .... (3) .... .... .... (4) .... .... .... (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State." The above said amended constitutional provision makes it clear that in case the State is of opinion, SC & STs are not adequately represented, State is empowered to make a provision for reservation in matters of promotion with consequential seniority, to any class. When the validity of the constitutional amendment was questioned, same was upheld by this Court in the case of M. Nagaraj1 . In the aforesaid judgment, a Constitution Bench of this Court has held that the State is not bound to make reservation for SCs/STs in matters of promotion. However, if they wish to exercise their discretion and make reservations in promotion, the States have to collect quantifiable data showing backwardness of theclass and inadequacy of representation of that class in public employment, keeping in mind maintenance of efficiency, as indicated by Article 335 of the Constitution of India. It is further held that such exercise depends on availability of data. In the case of Suraj Bhan Meena & Anr. V. State of Rajasthan & Ors.5 a two-Judge Bench of this Court has considered the validity of notifications, providing for promotion of members of SC/ST with consequential seniority, issued by the State Government. In the aforesaid judgment, it is held by this Court that the need for collecting quantifiable data and ascertaining inadequacy of representation of members belonging to Page 29 of 103 // 30 // SC/STs is a condition precedent for issuing notifications providing benefit of reservation with consequential seniority. Further, in the case of B.K. Pavitra & Ors. v. Union of India & Ors.6 this Court has held that the determination of 'inadequacy of representation', 'backwardness' and 'overall efficiency' is mandatory for exercising power under Article 16(4A). It is further held in the said case that the mere fact that there is no proportionate representation in promotional posts for reserved category candidates, by itself is not sufficient to extend the benefit of consequential seniority to promotees who are otherwise juniors. It is held that in absence of such mandatory exercise by the State the "Catch Up Rule" fully applies. In the case of Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.7 while answering the reference a Constitution Bench of this Court has held that the judgment in the case of M. Nagaraj1 need not be revisited by referring to a seven-Judge Bench. At the same time it held that the conclusion in M. Nagaraj1 that the State has to collect quantifiable data showing backwardness of scheduled castes and scheduled tribes is held to be invalid on the ground that the same runs contrary to 9-Judge Bench judgment of this Court in the case of Indra Sawhney & Ors. v. Union of India & Ors.8 . It is also held in the said judgment that Article 16(4A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post in question. Further in the case of B.K. Pavitra & Ors. v. Union of India & Ors.9 this Court while considering the validity of 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 has upheld the Act on the ground that same was enacted by making study regarding inadequacy of representation,
12. In view of the judgments as referred above, in this case, it is to be noticed that after Constitution (Eighty- Fifth) Amendment Act, 2001, amending Article 16(4A) of the Constitution which enabled the State to extend the benefit of promotion with consequential seniority by examining the adequacy of representation to scheduled castes and scheduled tribes in the State services, the State of Orissa has not made any provision, either by way of legislation or by an executive order, to extend such benefit in the Class-I Services. The advocate for Stateand overall administrative efficiency. specifically admitted that the Govt. has not issued any executive order or has passed any legislation. The Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in Page 30 of 103 // 31 // posts. As is evident from the order of the High Court, the State in its counter affidavit has taken the stand that there is no necessity for bringing out any law to extend the benefit of seniority for those who are promoted in reserved vacancies. Government Resolution dated 20.03.2002 can neither be termed as law made in exercise of enabling power of the State under Article 16(4A), nor does it satisfy the parameters laid down in the various decisions of this Court. The Resolution has no legal basis. The Seniority/Gradation List dated 16.05.2001 of OAS-I (JB) was prepared correctly by following the ratio laid down by this Court and in absence of any law or decision by way of executive order based on acceptable material for conferring additional benefit of consequential seniority, the Gradation List dated 03.03.2008 was prepared by altering the positions which were maintained in the List dated 16.05.2001.
While it is open for the State to confer benefit even through an executive order by applying mandatory requirements as contemplated under Article 16(4A) but the Resolution dated 20.03.2002 is merely issued by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts, as held by this Court
13. Further, the submission of the learned counsel - Sri A. Subba Rao - that the benefit of reservation in promotion is given in the services of OAS-I for scheduled caste and scheduled tribe officers as per Section 10 of Orissa Act 38 of 1975, but same cannot be countenanced for the reason that such Act was enacted by the State of Orissa in the year 1975 but no provision is brought to our notice in such Act for giving the benefit of seniority for the promotees who were promoted in reserved vacancies. In absence of any provision in the said Act for conferring the benefit of seniority, and in absence of any amendment after Constitution (Eighty-Fifth) Amendment Act of 2001, by which Article 16(4A) was amended, benefit of seniority cannot be extended relying on Section 10 of the Act. In view of the stand of the respondent-State in the counter affidavit filed in the writ petition and further in view of the submission made by the learned counsel for the State of Orissa that no benefit of seniority was extended by any State Act or by any executive order by examining adequate representation in terms of Article 16(4A) of the Constitution, we do not find any merit in this appeal so as to interfere with the well reasoned judgment of the High Court. The judgment of this Court rendered in the case of Jarnail Singh7 relied on by the learned counsel for the appellants also would not take any further the case of the appellants. In the said judgment also for giving the benefit of promotion with Page 31 of 103 // 32 // consequential seniority, the need to examine adequate representation in posts in terms of the judgment of this Court in the case of M. Nagaraj1 is maintained. As such, the said judgment would not render any assistance for the case of appellants."
3.13. It is accordingly contended that since in terms of the decision of the Hon'ble Apex Court in the case of Jarnail Singh so cited (supra), no such quantifiable data has yet been obtained by the State in determining the inadequacy of reservation of SC and ST candidates and thereby making them entitled to get the benefit of reservation in promotion against un-reserved vacancies, no such clarification could have been issued by Opp. Party No.3 on 06.05.2024 basing on the views given by the Law Department on 27.02.2024. View of the Law Department dated 27.02.2024 reads as follows:-
"The A/D has endorsed the file seeking views of this Department to clarify the present status of own merit in direct recruitment/promotion in light of Para-3, 4 of the judgment rendered by Hon'ble Supreme Court of India in R.K. Sabharwal & others Vrs. State of Punjab & others and the recent clarifications issued by DoPT after taking into account the latest judgment rendered by Hon'ble Supreme Court in the case of Jarnail Singh & others Vrs. Lachhmi Narain Gupta & others.
The current position of law as is as given as below:Page 32 of 103
// 33 // In Indra Sawhney v. Union of India, Hon'ble Constitution Bench of Hon'ble Supreme Court held that "Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion", 1992 Supp (3) SCC 217.
Parliament through Constitution (Seventy -Seventh Amendment) Act, 1995, and Constitution (Eighty-First Amendment) Act, 2000 inserted Articles 16(4-A) (Reservation in matters of promotion with consequential seniority) and 16 (4-8) (Carry forward rule) respectively. The above-mentioned amendments were held constitutional by Hon'ble Apex Court in the case of M. Nagaraj v. Union of India, (2006) 8 SCC 212... In the case of Jarnail Singh Vrs. Lachhmi Narain Gupta decided vide Order dtd.26.09.2018 in SLP No.30621 of 2011, Hon'ble Apex Court again held that the judgment in Nagraj Case does not need to be referred to a seven-judge bench.
The five Judges Constitutional Bench of Hon'ble Supreme Court of India in the case of R.K.Sabharwal & others Vrs. State of Punjab & others have observed the followings:
"When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete for the non- reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. 1995 AIR 1371.
To the question" Are reserved category candidates free to contest for vacancies in general category", Hon'ble Supreme Court in the case of M.Nagaraj & Others vs Union Of India & Others observed that, "In Indra Sawhney, Reddy, J noted that reservation under Article 16(4) do not operate on communal ground. Therefore, if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal the Supreme Court held that while general category candidates are not Page 33 of 103 // 34 // entitled to fill the reserved posts; reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State service may be a relevant factor for the State Government to review the question of continuing reservation for the said class." (2006) 8 SCC 212.
In Akhil Bharatiya Soshit Karmachari Versus Union of India, Hon'ble Supreme Court have held that "That apart in a particular cadre after following the roster meant for reserved category candidate, there is absolutely no bar to fill up the vacancies in the general category even in favor of the reserved category candidate in a particular cadre after following the prescribed roster for the reserved category candidate, if the said reserved category candidate is entitled for the same. The same is true on the basis of his general seniority. "AIR 1996, Supreme Court 3534.
In the case of Jarnail Singh vs Lachhmi Narain Gupta. Hon'ble Apex Court held that:
"Two points came up for consideration before this Court in the said judgment, the first being that in case more tharf 14 per cent of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority, then the purpose of reservation having been achieved in the said cadre, the Government instructions providing reservations would become Inoperative. The second point on which arguments were heard is that roster cannot operate once the posts earmarked for the SCs, STs and Backward Classes are filled. Any post falling vacant in al cadre, thereafter, is to be filled from the category reserved on general due to retirement etc. of whose member the 'post fell vacant. The first point raised by general category candidates was rejected by this Court by holding that reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. This Court was of the opinion that Article-16(4) of the Constitution of India enables the State Government to make provision for reservation in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services. The percentage of posts reserved for Backward Classes, as prescribed by the State has to be strictly followed and cannot be varied or changed simply because some members of the Backward Class have already been appointed/promoted against Page 34 of 103 // 35 // the general seats". SLP 30621 of 2011 order dtd.26.09.2018.
Government of Odisha in GA & PG Department vide Gazette Notification dt.12.10.2022 amended the OCS (Criteria for Promotion) Rules, 1992 to include the following:
"3-A Notwithstanding anything contained in the relevant recruitment rules, where the promotion is to be considered as per the post-based reservation (by way of replacement theory), the separate zone of consideration shall be applicable.
Provided that the Scheduled Caste or Scheduled Tribe candidates appointed on their own merit either by direct recruitment or by promotion and placed above the unreserved candidates in the merit list shall be considered and adjusted against the unreserved vacancies and such candidates are not to be counted within the percentage earmarked for reservation of their category".
In view of the above discussion the followings are emerged:
i) reservation in in Reserved category employees who have availed appointment and falling seniority/merit above the last unreserved candidate could be promoted against unreserved vacancy treating them as own merit.
ii) Reserve category candidates appointed on their own merit can be considered for promotion and adjusted against the unreserved vacancies. Similarly, reserve category candidates who have availed reservation in appointment and falling in seniority above the last unreserved candidate could be promoted against unreserved vacancy.
iii) Senior reserved category candidates (not appointed on their own merit) in the gradation list would be considered in zone of consideration for unreserved vacancies.
For the above reasons, if the reserved category candidate is on the top of the gradation list over a general category candidate, the general category candidate cannot be promoted to the next unreserved category vacancy by-passing the reserved category candidate.
Page 35 of 103// 36 // The A/D is advised accordingly."
3.14. Making all these submissions, learned Senior Counsel for the petitioners contended that since prior to exercise of the power conferred under Art-16(4-A) of the Constitution of India, no such quantifiable data has yet been obtained and/or collected by the State with regard to determination of inadequacy of representation of SC and ST candidates in any cadre and thereby entitling them to get the benefit of reservation in promotion against un-reserved vacancies, Opp. Party No.3 could not have issued the impugned clarification on 06.05.2024 and further communication issued in that regard on 27.02.2025 and both the clarifications are not sustainable in the eye of law and require interference of this Court.
4. Mr. Ashok Mohanty, learned Senior Counsel appearing for the private Opp. Parties made his submission basing on the stand taken in the counter affidavit so filed in W.P.(C) No.9643 of 2025. It is contended that under the Rules of Business in the 1st Page 36 of 103 // 37 // Schedule of the said Rules in Sl. No.XIX under the headings of SC and ST Development Department in Item No.10 of the State, it has been clearly indicated that matter relating to Reservation of vacancies in post and services for SC and ST Act and rules framed thereunder can be issued by Opp. Party No.3 department.
4.1. It is contended that in view of such Rules of Business, Opp. Party No.3 is competent to issue the impugned clarification on 06.05.2024 and further communication on 27.02.2025. It is also contended that in view of the provisions contained under Rule-3-A of the Amendment Rules, 2022, reserved category candidates can be considered and adjusted against un- reserved vacancies by way of promotion.
4.2. Taking into account such provision contained under Rule-3-A of the Amendment Rules, 2022 the Law Department submitted its views on 27.02.2024, indicating therein that reserved category employees who have availed Reservation in appointment and Page 37 of 103 // 38 // falling in Seniority/Merit against the last un-reserved candidates could be promoted against un-reserved vacancy on own merit. It is also contended that in terms of the decision rendered by the Hon'ble Apex Court in the case of Jarnail Singh so cited (supra), State has collected the required quantifiable data showing lack of representation of reserved category candidates in the promotional post.
4.3. It is also contended that even though Model of Code of Conduct came into force on 16.03.2024 but there is no such bar in letter dated 16.03.2024, issued by Election Commission of India with regard to issuance of the clarification on 06.05.2024. It is contended that as provided under Para-3(vi) of the letter dated 16.03.2024, from the time elections were announced by the Commission, Ministers and others authorities shall not make any adhoc appointment in Govt., Public undertaking etc. which have the effect of influencing the voters in favour of the party in power. It is contended that since in Para-3(vi) of the letter dated Page 38 of 103 // 39 // 16.03.2024 there is no such bar to with regard to issuance of clarification dated 06.05.2024; such Model Code of Conduct cannot be treated as a bar on the part of Opp. Party No.3 in issuing the clarification on 06.05.2024.
4.4. With regard to the aforesaid stand, learned Senior Counsel relied on a decision of this Court in the case of Lalit Kumar Nayak Vrs. State of Odisha and Others (in W.P. (C) No.12516 of 2020, decided on 24.07.2024). This Court in Para-12 and 13 of the said judgment has held as follows:-
"12. Thus, no law mandates reservation for general category candidates in public employment. Consequently, the issue of reserved category candidates occupying or being selected for the general seats does not arise. Since the concept of reservation does not apply to general category candidates/ the notion of them having "fixed seats" is inherently flawed.
13. Furthermore, numerous judgments have consistently affirmed that if an individual meets the prescribed merit criteria, there is no justification for preventing them from being recruited or promoted to unreserved positions. The relaxations provided are solely to ensure that reserved category candidates have a level playing field, which aligns with the intent of Article 16(4) of the Indian Constitution."
4.5. Reliance was also placed to another decision of this Court in the case of Litu Behera and Anr. Vrs.
Page 39 of 103// 40 // State of Odisha and Others (in W.P. (C) No.24636 of 2024 decided on 04.09.2025). This Court in Para-3.3 and 3.4 of the said judgment has held as follows:-
"3.3 The Apex Court in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 observed at para-5 as under:
"When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand, the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State."
The Odisha Civil Services (Criteria for Promotion) Rules, 1992, as amended vide Notification dated 12.10.2022, reads as under:
"3-A Notwithstanding anything contained in the relevant recruitment rules, where the promotion is to be considered as per the post based reservation (by way of replacement theory), the separate zone of consideration shall be applicable: Provided that the Scheduled Caste or Scheduled Tribe candidates appointed on their own merit either by direct recruitment or by promotion and placed above the unreserved candidates in the merit list shall be considered and adjusted against the unreserved vacancies and such candidates are not to be counted within the percentage earmarked for reservation of their category."
A Coordinate Bench of this Court in WP(C) No.12516 of 2020 between Lalit Kumar Nayak v. State of Orissa & Others disposed of on 24.07.2024, having examined all aspects of the matter, has accorded relief to a reserved category candidate, in a substantially similar fact matrix.
Page 40 of 103// 41 // 3.4. Learned counsel for the petitioner has graciously filed a memo dated 03.09.2025, which reads as under:
"The petitioners are restricting to the Prayer No.II and not pressing the Prayer No.I." (sic) On that basis, the promotion granted to private OPs herein can be saved, is true. However, the same cannot be read as giving up the seniority of the petitioners, once they are to be promoted with effect from the date their immediate juniors have been given promotion. An argument to the contrary amounts to illegally depriving the benefit of reservation that has been enacted in terms Article 16 of the Constitution of India. Even otherwise, a meritorious candidate cannot be prejudiced merely because he belongs to reserved category. The very object of reservation is to achieve affirmative equality in the matter of public employment."
5. Mr. P.K. Sinha, learned counsel appearing for some of the private Opp. Parties in W.P.(C) No.7674 of 2025 also made similar submission as made by the learned Senior Counsel appearing for the private Opp.
Parties in W.P.(C) No.9643 of 2025. It is contended that in view of the amendment carried vide Amendment Rules, 2022 with insertion of Rule-3-A, which has got overriding effect, no illegality or irregularity can be found with the clarification issued by the Opp. Party No.3 on 06.05.2024. Rule-3-A of the Rules reads as follows:-
"3-A Notwithstanding anything contained in the relevant recruitment rules, where the promotion is to be considered as per the post based reservation (by way of Page 41 of 103 // 42 // replacement theory), the separate zone of consideration shall be applicable:
Provided that the Scheduled Caste or Scheduled Tribe candidates appointed on their own merit either by direct recruitment or by promotion and placed above the unreserved candidates in the merit list shall be considered and adjusted against the unreserved vacancies and such candidates are not to be counted within the percentage earmarked for reservation of their category."
5.1 It is contended that vide Rule-3-A of the Amendment Rules, 2022, it was specifically indicated that notwithstanding anything contained in the relevant recruitment rules, where the promotion is to be considered as per the post based reservation (by way of replacement theory) the separate zone of consideration shall be applicable. It is also contended that as provided under Rule-5 of the Original 1992 Rules, provision of the Rules shall have overriding effect notwithstanding anything contained in any other recruitment rule or any other order or instruction for the time being in force.
5.2. It is also contended that in view of the provisions contained under Art-16(4-A) of the Constitution of India, the State is competent to make the provision for Page 42 of 103 // 43 // reservation in the matter of promotion, with consequential Seniority to any class or classes of post in the service under the state in favour of SC and ST candidates which in the opinion of the State are not adequately represented in the services under the State.
5.3 In addition to the reliance placed to the decision of this Court in the case of Lalit Kumar Nayak as well as Litu Behera so cited (supra), Mr. Sinha, learned counsel relied on the decision of the Hon'ble Apex Court in the case of Bihari Lal Rada Vrs. Anil Jain (Tinu) and Others, reported in (2009) 4 SCC 1.
Hon'ble Apex Court in the said judgment in Para-40 has held as follows:-
"40. Be that as it may, neither Article 243-T of the Constitution nor Section 10(5) of the Haryana Municipal Act provide for any reservation to the office of the President in favour of any candidate who does not belong to Scheduled Caste or Backward Class. Obviously there cannot be any such reservation of seats in municipalities nor to the office of Chairperson in favour of candidates belonging to general category. There is no separate category like general category. The expression "belonging to the general category"
wherever employed means the seats or offices earmarked for persons belonging to all categories irrespective of their caste, class or community or tribe. The unreserved seats euphemistically described as general category seats are open seats available for all candidates who are otherwise qualified to contest to that office."
Page 43 of 103// 44 // 5.4. Reliance was also placed to the decision of the Hon'ble Apex Court in the case of R.K. Sabharwal so cited (supra). Hon'ble Apex Court in Para-4 of the said judgment has held as follows:-
"4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Page 44 of 103 // 45 // Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same."
5.5. Reliance was also placed to a decision of the Hon'ble Apex Court in the case of Union of India Vs. Virpal Singh Chauhan reported in (1995) 6 SCC 684.
Hon'ble Apex Court in Para-29 has held as follows:-
"29. The Constitution Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively [vide Para 11]. It has further been held in the said decision that the "percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength (and that) the concept of `vacancy' has no relevance in operating the percentage of reservation".
(As a matter of fact, it is stated that this batch of cases were also posted for hearing before the Constitution Bench along with R.L. Sabharwal batch of cases but these cases were de- linked on the ground that they raise certain other issues which did not arise in R.K. Sabharwal.) Be that as it may, as a result of the decision in R.K. Sabharwal and the views/findings recorded by us hereinabove, the following position emerges:
(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para-5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of Page 45 of 103 // 46 // rule of reservation) shall not be counted as reserved category candidates.
(ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect to vacancies.
(iii) So far as Railway Guards in Railway service are concerned - that is the only category we are concerned herewith - the seniority position in the promoted category as between reserved candidates and general candidates shall be the same as their inter se seniority position in Grade `C' at any given point of time provided that at that given point of time, both the general candidate and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in a subsequent batch.
(This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction.) In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category."
5.6. Reliance was placed to a decision of the Hon'ble Apex Court in the case of Jarnail Singh so cited (supra). Hon'ble Apex Court in Para-18 & 19 of the said judgment has held as follows:-
"18. Seniority of Superintending Engineers in the Irrigation Department of the State of Punjab was the subject-matter of a writ petition filed under Article 32 of the Constitution of India in R.K. Sabharwal v. State of Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] . The relevant instructions issued by the State of Punjab provided for 14% reservation for SCs. Two points came up for consideration Page 46 of 103 // 47 // before this Court in the said judgment, the first being that in case more than 14% of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority, then the purpose of reservation having been achieved in the said cadre, the government instructions providing reservations would become inoperative. The second point on which arguments were heard is that roster cannot operate once the posts earmarked for the SCs, STs and Backward Classes are filled. Any post falling vacant in a cadre, thereafter, is to be filled from the category--reserved or general--due to retirement, etc. of whose member the post fell vacant.
19. The first point raised by general category candidates was rejected by this Court by holding that reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. This Court was of the opinion that Article 16(4) of the Constitution of India enables the State Government to make provision for reservation in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services. The percentage of posts reserved for Backward Classes, as prescribed by the State, has to be strictly followed and cannot be varied or changed simply because some members of the Backward Class have already been appointed/promoted against the general seats."
5.7. Reliance was placed in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Others reported in (2007) 8 SCC 785. Hon'ble Apex Court in Para-7 and 9 of the decision has held as follows:-
"7. A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Page 47 of 103 // 48 // Gupta v. State of U.P. [(1995) 5 SCC 173] thus: (SCC p. 185, para 18) "The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied--in case it is an overall horizontal reservation--no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)"
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9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 :
(1995) 29 ATC 481] , Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ritesh R. Sah v. Dr. Y.L. Yamul [(1996) 3 SCC 253] .) But the aforesaid principle applicable to Page 48 of 103 // 49 // vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)"
5.8. Reliance was placed to the decision of the Hon'ble Apex Court in the case of Ajit Singh (II) and Ors. Vs. State of Punjab and Others reported in (1999) 7 SCC Page 49 of 103 // 50 //
209. Hon'ble Apex Court in Para-22 and 27 of the said judgment has held as follows:-
"Articles 14 and 16(1): is right to be considered for promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.
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27. In our opinion, the above view expressed in Ashok Kumar Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and followed in Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a Page 50 of 103 // 51 // fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [(1997) 5 SCC 201: 1997 SCC (L&S) 1299] right from 1950."
6. Mr. M.R. Mohanty learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed in W.P.(C) No.7674 of 2025. It is contended that provisions contained under Rule-3-A of the Amendment Rules, 2022, so Notified on 12.10.2022, was issued with due approval of the Governor. It is contended that such an amendment was made in consonance with the decision of the Hon'ble Apex Court in the case of R.K. Sabharwal so cited (supra) and in the case of Lalit Kumar Nayak of this Court.
6.1. It is further contended that even though in terms of the provisions contained under Rule-6 of the 1992 Rules, it is the G.A. and P.G department, who is competent to issue any clarification with regard to interpretation of any of the provisions, but Opp. Party No.3 has been permitted by the Govt. to issue such clarification and such permission is accorded in Page 51 of 103 // 52 // consideration of department letter dated 23.07.1997.
View expressed by the SC and ST Development Department in its letter dated 23.07.1997 was accepted by the G.A. and P.G. Department while giving its view on 21.11.2023.
6.2. It is also contended that as Opp. Party No.3 department is carrying out reservation policy, the inherent responsibility lies with the department to issue any such clarification for implementation of the statutory Rule. The department in terms of the provisions contained under Point no. 10 of the Rule of Business, is competent to issue the clarification so issued on 06.05.2024. It is also contended that similar to the clarification issued on 06.05.2024, G.A. & P.G. Department has also issued a clarification vide letter dated 10.04.2023.
6.3. Learned Addl. Govt. Advocate contended that after issuance of the clarification on 06.05.2024 basing on the view of the Law Department dtd.27.02.2024, when confusion arose with regard to its applicability, the Page 52 of 103 // 53 // same was withdrawn with issuance of letter dated 13.06.2024. However, basing on the views given by the Law Department on 25.07.2024 and the decision rendered by this Court in the case of Lalit Kumar Nayak, Opp. Party No.3 restored the clarification issued on 06.05.2024 vide letter dated 11.09.2024.
Subsequently, vide letter dated 27.02.2025, all the departments were directed to follow the clarification initially issued on 06.05.2024 with regard to promotion of reserved category candidates against un-reserved vacancies on own merit.
6.4. In support of his submission, learned Addl. Govt.
Advocate relied on the decision of the Hon'ble Apex Court in the case of R.K. Sabharwal and Jarnail Singh so cited (supra). Reliance was placed to Para-3 and 4 of the judgment in the case of R.K. Sabharwal and Para-17 of the decision in the case of Jarnail Singh. Para-3, Para-4 and 17 of both the judgments read as follows:-
Page 53 of 103// 54 // "3. Adverting to the first point Mr Harish Salve and Mr Rajeev Dhavan, learned counsel representing the petitioners, have contended that the total number of promotees/appointees belonging to the reserve categories in a cadre are to be counted to work out the prescribed percentage of reservation. According to the learned counsel the reserve categories can take advantage of the reservation made in their favour till their representation in the Service -- including those appointed against general category posts -- reaches the prescribed percentage. For working out the percentage the promotees/appointees belonging to reserve categories in the Service, whether on the reserve posts or general category posts, are to be counted. Support is sought from the judgment of the Punjab and Haryana High Court in Joginder Singh Sethi v. Punjab Govt. [(1982) 2 SLR 307 (P&H)] In the said case 22% reservation was provided for the members of Scheduled Castes/Tribes and Backward Classes. In the cadre strength of 202 posts the Scheduled Caste candidates were entitled to 42 posts. There were already 47 members of the said category in the cadre but out of them 10 were promoted on the basis of seniority-cum-merit against the general category posts. There being only 37 persons who had been promoted against the reserved posts 4 more Scheduled Castes were sought to be promoted against the reserve vacancies. The High Court quashed the promotion on the ground that the cadre was already having more than 22% persons from the reserve categories. We are of the view that the High Court in Joginder Singh Sethi case [(1982) 2 SLR 307 (P&H)] fell into a patent error. The said case was subsequently considered by a Full Bench of Punjab and Haryana High Court in Jaswant Singh v. Secretary to Government Punjab, Education Department [(1989) 4 SLR 257 (P&H)] . The Full Bench did not agree with the ratio in Joginder Singh Sethi case [(1982) 2 SLR 307 (P&H)] and reversed the same.
4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the Page 54 of 103 // 55 // State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.
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17. Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannot envisage. A conscious decision was taken by this Court in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 :
(2019) 1 SCC (L&S) 86] to leave it to the States to fix the criteria for determining inadequacy of representation.
The submission of the learned Attorney General for India that this Court has to lay down the yardstick for measuring adequacy of representation did not yield a favourable result as this Court in Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 :
Page 55 of 103// 56 // (2019) 1 SCC (L&S) 86] found it befitting for the States to have the liberty to evaluate the representation of SCs and STs in public employment. Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments. In addition, the prevailing local conditions, which may require to be factored in, might not be uniform. Moreover, in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , this Court made it clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data. Therefore, we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation."
6.5. It is also contended that there was no bar in the Model Code of Conduct so issued by the Election Commission of India on 16.03.2024 restraining Opp.
Party No.3 from issuing the clarification dated 06.05.2024.
7. To the submissions made by learned Addl. Govt.
Advocate and learned Senior Counsel as well as learned counsel appearing for the Private Opp. Parties in W.P.(C) No.7674 of 2025 and W.P.(C) No.9643 of 2025, learned Senior Counsels appearing for the petitioners made further submission, contending inter alia that in view of the clear provision contained under Rule-3-A of Page 56 of 103 // 57 // the Amendment Rules, 2022, Opp. Party No.3 was not required to issue the impugned clarification dated 06.05.2024.
7.1. It is contended that since no such amendment was carried to Rule-6 of the 1992 Rules, Opp. Party No.3 though as per the Rules of Business, is competent to deal with the subject relating to Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules framed thereunder, but unless and until Rules-6 is amended by permitting Opp. Party No.3 to issue any such clarification, the impugned clarification dtd.
06.05.2024 is not sustainable in the eye of law at its instance.
7.2. It is also contended that even a policy decision taken by the State in exercise of its jurisdiction under Art-162 of the Constitution of India, would be sub-servient to the recruitment rules framed by the State either in terms of the Legislative Act or proviso appended to Art-309 of the Constitution of India. It is Page 57 of 103 // 58 // also contended that a purported policy decision issued by way of an executive instruction cannot override the statute or statutory rule and less the constitutional provisions.
7.3. In support of his aforesaid submission, reliance was placed to a decision of the Hon'ble Apex Court in the case of State of Odisha and Others Vrs.
Prasanna Kumar Sahoo, reported in (2007) 15 SCC
129. Hon'ble Apex Court in Para-12 of the said judgment has held as follows:-
"12. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions."
7.4. It is also contended that decision in the case of Prasanna Kumar Sahoo so cited (supra) was followed by this Court while dealing with a batch of matters in W.P.(C) No.12518 of 2020 and batch. This Court in Para-11 to 13 of the said judgment has held as follows-
Page 58 of 103// 59 // "11. It is now well settled that a State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Articles 14 and 16 of the Constitution of India.
12. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.
13. In A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : 2004 SCC (L&S) 918] this Court has held: (SCC p. 126, para 45) "45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
7.5. It is also contended that in view of the clear provisions contained under Rule-3-A of the Amendment Rules, 2022, there was no need on the part of Opp.
Party No.3 to issue the impugned clarification and thereby permitting reserved category candidates to get the benefit of promotion against un-reserved vacancy in absence of any quantifiable data being collected by the State as yet in terms of the decision in the case of Jarnail Singh so cited (supra) and the admission in the case of Pravakar Mallick so cited (supra).
Page 59 of 103// 60 // 7.6. In addition to the aforesaid decisions, reliance was placed to a decision of the Hon'ble Apex Court in the case of Union of India and Others Vs. Sajib Roy.
2025 INSC 1084. Hon'ble Apex Court in Para-32 of the judgment has held as follows:-
"32. On an analysis of the aforecited cases, we summarise as follows: Whether a reserved candidate who has availed relaxation in fees/upper age limit to participate in open competition with general candidates may be recruited against unreserved seats would depend on the facts of each case. That is to say, in the event there is no embargo in the recruitment rules/employment notification, such reserved candidates who have scored higher than the last selected unreserved candidate shall be entitled to migrate and be recruited against unreserved seats. However, if an embargo is imposed under relevant recruitment rules, such reserved candidates shall not be permitted to migrate to general category seats.
7.7. Learned Senior Counsel appearing for the petitioners further contended that Reservation in Promotion for SC and ST candidates was incorporated by insertion of the provision under Art-16(4-A) of the Constitution by the Parliament by virtue of Constitution (77th Amendment) Act, 1995 w.e.f.
17.06.1995. Such a provision was made by the Parliament in providing Reservation in Promotion in favour of Scheduled Castes and Scheduled Tribes who Page 60 of 103 // 61 // are not adequately represented in the services under the State.
7.8. It is contended that by virtue of the further amendment made by the Parliament by the Constitution (85th Amendment) Act, 2001, Reservation in Promotion with consequential Seniority was also brought into effect w.e.f. 17.06.1995. Accordingly, Art-
16(4-A) after such amendment of the Constitution by the 77th Amendment and 85th Amendment read as follows:-
"Art16(4-A)- Nothing in this article shall the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State."
7.9. Learned Senior Counsels appearing for the petitioners contended that the amendment made by the Parliament with insertion of Art-16(4-A) by virtue of the 77th and 85th Amendment Act, was the subject matter before the Hon'ble Apex Court in the case of M. Nagraj Vrs. Union of India reported in 2006 8 SCC 212.
Page 61 of 103// 62 // 7.10. While inserting such provision by virtue of the 77th Amendment Act, provision was made to extend reservation in promotion in favour of SC and ST candidates, which in the opinion of the State, are not adequately represented in the services under the State.
But by virtue of the 85th Amendment Act, 2001, such Reservation in Promotion with consequential Seniority was made in favour of such SC and ST candidates, but with the condition that such benefit can be extended in such cases where in the opinion of the State, SC and ST candidates are not adequately represented in the services under the State.
7.11. Hon'ble Apex Court in the case of M. Nagraj so cited (supra) though did not interfere with the amendment with insertion of the provision under Art-
16(4-A), but observed that such benefit of Promotion in Reservation can only be made when the State come to a finding that SC and ST candidates are not adequately represented in the services under the State Govt.
Page 62 of 103// 63 // Hon'ble Apex Court in the case of M. Nagraj held as follows in Para-2, 107, 121 to 123:-
"2. The facts in the above writ petition, which is the lead petition, are as follows:
The petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively from 17-6-1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] , Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239 : AIR 1996 SC 1189] (Ajit Singh-I), Ajit Singh (II) v. State of Punjab [(1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , Ajit Singh (III) v. State of Punjab [(2000) 1 SCC 430 : 2000 SCC (L&S) 204] , Indra Sawhney v. Union of India [1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and M.G. Badappanavar v. State of Karnataka [(2001) 2 SCC 666 : 2001 SCC (L&S) 489] . The petitioners say that Parliament has appropriated the judicial power to itself and has acted as an Appellate Authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. The petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. The petitioners say that the equality in the context of Article 16(1) connotes "accelerated promotion"
so as not to include consequential seniority. The petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). The petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. The petitioners say that in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] decided on 16- 11-1992, this Court has held that under Article 16(4), reservation to the Backward Classes is permissible only Page 63 of 103 // 64 // at the time of initial recruitment and not in promotion. The petitioners say that contrary to the said judgment delivered on 16-11-1992, Parliament enacted the Constitution (Seventy-seventh Amendment) Act, 1995. By the said amendment, Article 16(4-A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-seventh Amendment) Act, 1995 is also challenged by some of the petitioners. The petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous. A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. At the age of 49, he would reach the highest level and stay there for nine years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56 and by the time, he gets eligibility to the 4th level, he would have retired from service. The petitioners say that the consequences of the impugned 85th Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre.
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107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court Page 64 of 103 // 65 // discussed hereinabove. Therefore, there is a basic difference between "equality in law" and "equality in fact" (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4- B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions.
However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of "guided power". We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.
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121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , the concept of post- based roster with inbuilt concept of replacement as held in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] .
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the "extent of reservation". In this Page 65 of 103 // 66 // regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."
7.12. It is contended that view expressed by the Hon'ble Apex Court in the case of M. Nagraj so cited (supra), was further dealt with by the Hon'ble Apex Court on being referred in the case of Jarnail Singh and Others Vs. Lachhmi Narain Gupta and Others, (2018) 10 SCC 396. Hon'ble Apex Court in the said judgment in Para-1, 2 and 36 has held as follows:-
"1. The present group of cases arises out of two reference orders--the first by a two-Judge Bench [State of Tripura v. Jayanta Chakraborty, (2018) 1 SCC 146 :
(2018) 1 SCC (L&S) 14] referred to in a second reference order, dated 15-11-2017 [State of Maharashtra v. Vijay Ghogre, (2018) 17 SCC 261] , which is by a three-Judge Bench, which has referred the correctness of the decision in M. Nagaraj v. Union of India [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , (Nagaraj), to a Constitution Bench.
2. The controversy in these matters revolves around the interpretation of the following Articles of the Constitution of India:
Page 66 of 103// 67 // "16. Equality of opportunity in matters of public employment.--(1)-(4)*** (4-A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4-B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
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335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.--The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
Provided that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.
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341. Scheduled Castes.--(1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Page 67 of 103// 68 // ***
342. Scheduled Tribes.--(1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
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36. Thus, we conclude that the judgment in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does not need to be referred to a seven- Judge Bench. However, the conclusion in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-
Judge Bench in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1] is held to be invalid to this extent."
7.13. Learned Senior Counsel appearing for the petitioners contended that since as provided under Art-
16(4-A) and so admitted in the case of Pravakar Mallick so cited (supra), the State Govt. as on date has not collected quantifiable data in determining inadequacy of representation of SCs and STs for providing them Reservation in Promotion with consequential seniority, reservation in Promotion to such SC and ST candidates is not only bad in the eye Page 68 of 103 // 69 // of law but also the impugned communication issued by Opp. Party No.3 on 06.05.2024 and 27.02.2025, wherein it has been held that such reserved category candidates can get benefit of promotion against un- reserved vacancies on their own merit.
7.14. It is contended that since in terms of the provision contained under Art-16(4-A), no such quantifiable data has yet been collected by the State, Reservation in Promotion in favour of SC and ST candidates is not at all permissible. It is contended that State of Karnataka without collecting such quantifiable data, when allowed such Reservation in Promotion in favour of SC and ST candidates and the same was assailed in the case of B.K. Pavitra and Others Vs. Union of India and Others, (2017) 4 SCC 620, Hon'ble Apex Court in Para-1, 2, 16, 18, 19 to 23 & 30 of the said judgment held as follows:-
"1. These appeals involve the question of validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2002 (the impugned Act). The Act, inter alia, provides for grant of consequential seniority to the government servants belonging to the Scheduled Page 69 of 103 // 70 // Castes and the Scheduled Tribes promoted under reservation policy. It also protects consequential seniority already accorded from 27-4-1978 onwards.
2. The validity of the Act was challenged before this Court by way of Writ Petition (Civil) No. 61 of 2002 titled M. Nagaraj v. Union of India. The issue referred to larger Bench in the writ petition along with connected matters was decided by this Court on 19-
10-2006 [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . While upholding the constitutional validity of the Constitution (Seventy- seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001, individual matters were remitted to the appropriate Bench [M. Nagaraj v. Union of India, (2006) 8 SCC 212, p. 279, paras 124-125] . Thereafter, the matter was remitted back to the High Court for deciding the question of validity of the said enactment [M. Nagaraj v. Union of India, (2010) 12 SCC 526 : (2011) 1 SCC (L&S) 244] .
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16. We proceed to deal with the contention that the High Court judgment proceeds on incorrect understanding of the law laid down in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . While no doubt in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , 85th Amendment was upheld with the observation that enabling the State to do away with the "catch-up" rule, a judicially evolved concept to control the effect of reservations, was valid but the exercise of power to do away with the said rule and providing consequential seniority in favour of roster point promotees of reserved category was subject to the limitation of determining the three factors of "backwardness", "inadequacy of representation" and "overall efficiency". The High Court brushed aside the said mandatory requirement by simply observing that Section 3 provided for an inbuilt mechanism as the extent of mechanism was limited to 15% and 3% respectively for SCs and STs which dispensed with any requirement of determining inadequacy of representation or backwardness. The High Court further dispensed with the requirement of determining overall efficiency by observing that there was no pleading that overall efficiency would be hampered by promoting persons belonging to SCs and STs. This reasoning in the judgment of the High Court, it is Page 70 of 103 // 71 // submitted, is contrary to the mandate of law as recognised in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and the view similar to the impugned judgment has been repeatedly disapproved in decisions of this Court.
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18. In M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , this Court considered the constitutional validity of the 77th, 81st, 82nd and 85th Amendments. In doing so, the Court was concerned with the question whether the amendment infringed the basic structure of the Constitution. It was held that equality is part of the basic structure but in the present context, right to equality is not violated by an enabling provision if exercise of power so justifies. In this regard, the following observations are worthwhile to note : (SCC pp. 245-46 & 248, paras 31-34 & 42) "31. At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things, justice both social and economic. ...
32. In Minerva Mills [Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625] Chandrachud, C.J., speaking for the majority, observed that Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation, Article 32 will be rendered nugatory. ...
33. From these observations, which are binding on us, the principle which emerges is that "equality" is the essence of democracy and, accordingly a basic feature of the Constitution. ...
34. However, there is a difference between formal equality and egalitarian equality which will be discussed later on.
*** Page 71 of 103 // 72 //
42. ... There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of the Hindu community as "untouchable" and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore, provisions of Part III also provide for political and social justice."
19. Considering the right of equality in the context of reservation/affirmative action it was observed : (M. Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC p. 248, para 43) "43. ... Therefore, the concept of "equality of opportunity" in public employment concerns an individual, whether that individual belongs to the general category or Backward Class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a Backward Class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimisation of these conflicting interests and claims."
20. Thereafter, concepts of "equity", "justice" and "merit" in public employment were referred to and it was held that application of these concepts in public employment depends upon quantifiable data in each case. It was observed : (M. Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC pp. 248-49, paras 44-46) "44. ... Backward Classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the Government in the Page 72 of 103 // 73 // matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution.
45. ... The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways it considers it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of "extent of reservation" is not an absolute concept and like merit it is context-specific.
46. ... Therefore, "vesting of the power" by an enabling provision may be constitutionally valid and yet "exercise of the power" by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335."
21. The above discussion led this Court in M. Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 :
(2007) 1 SCC (L&S) 1013] to hold that conferment of enabling power on State under Article 16(4-A) did not by itself violate the basic feature of equality. If the affirmative action stipulated under Article 16(4-A) could be balanced with the need for adequate representation for justice to the backwards while upholding equity for the forwards and efficiency for the entire system with the further observation that the content of a right is defined by the courts and even while the amendment as such could be upheld, validity of an individual enactment was required to be gone into. If the State wished to exercise its discretion under Article 16(4-A), it was to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It was made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
22. It may also be worthwhile to note further observations of this Court in the said judgment : (M. Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC pp. 250-52, 268-72 & 276-78, paras 49, 59, 102, 104, 106-108, 117-118, 120 & 122) "49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used Page 73 of 103 // 74 // in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification.
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59. Giving the judgment of the Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] Jeevan Reddy, J. stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of Backward Classes to the total population would certainly be relevant.
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102. ... Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, "backwardness" and "inadequacy of representation". As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid.
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104. ... As stated above, 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. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4).
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106. ... According to the Constitutional Law of India, by H.M. Seervai, 4th Edn., p. 546, equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred. This is the theory of "guided power". This Page 74 of 103 // 75 // theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred, would be corrected by the courts. ...
107. ... If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. ...
108. ... Moreover, Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.
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117. ... Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.
118. The constitutional principle of equality is inherent in the rule of law. However, its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The rule of law is satisfied when laws are applied or enforced equally, that is, even-handedly, free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Justification needs each case to be decided on case-to-case basis.
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120. At this stage, one aspect needs to be mentioned. Social justice is concerned with the distribution of benefits and burdens. The basis of distribution is the area of conflict between rights, needs and means. These three criteria can be put under two concepts of equality, namely, "formal equality" and "proportional Page 75 of 103 // 76 // equality". Formal equality means that law treats everyone equal. Concept of egalitarian equality is the concept of proportional equality and it expects the States to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity. In Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] all the Judges except Pandian, J. held that the "means test"
should be adopted to exclude the creamy layer from the protected group earmarked for reservation. In Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] this Court has, therefore, accepted caste as a determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer. Views have often been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should be the determinant of backwardness. As stated above, we are bound by the decision in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] . The question as to the "determinant" of backwardness cannot be gone into by us in view of the binding decision. In addition to the above requirements this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] has evolved numerical benchmarks like ceiling limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination.
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122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse."
23. Question of application of principles laid down in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] for judging the exercise of enabling power of granting consequential seniority and promotion was raised in Suraj Bhan Meena [Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] . Therein challenge was to the validity of Notification dated 25- 8-2008 issued by the State Government of Rajasthan Page 76 of 103 // 77 // under the proviso to Article 309 of the Constitution, amending the service rules in the State of Rajasthan w.e.f. 28-12-2002. The notification purported to give consequential seniority to candidates belonging to SCs and STs who got roster point promotions. The challenge to the notification was that without quantifying figures of SCs and STs or showing compelling reasons such as "backwardness", "inadequacy of representation" and "overall administrative efficiency" as laid down in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] the grant of consequential seniority was not permissible. The High Court quashed the notification providing for consequential seniority on the ground that no exercise had been undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding inadequacy of representation to SCs and STs in public service and to assess whether such reservation was necessary. This was upheld by this Court as under : (Suraj Bhan Meena case [Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] , SCC p. 484, paras 66-67) "66. The position after the decision in M. Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 :
(2007) 1 SCC (L&S) 1013] is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required.
67. The view of the High Court is based on the decision in M. Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the Notifications dated 28-12-2002 and 25-4-2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference."
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30. In view of the above, we allow these appeals, set aside the impugned judgment and declare the provisions of the impugned Act to the extent of doing away with the "catch-up" rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion Page 77 of 103 // 78 // against roster points to be ultra vires Articles 14 and 16 of the Constitution. The judgment will not affect those who have already retired and will not affect financial benefits already taken. Consequential promotions granted to serving employees, based on consequential seniority benefit, will be treated as ad hoc and liable to be reviewed. Seniority list may be now revised in the light of this judgment within three months from today. Further consequential action may be taken accordingly within next three months."
7.15. Subsequently, when State of Karnataka by making necessary exercise with collection of quantifiable data made provision for reservation in promotion in favour of SC and ST candidates with consequential seniority, the same was again assailed before the Hon'ble Apex Court in the case of B.K. Pavitra and Others Vrs. Union of India and Others, AIR 2019 SC 2723, Hon'ble Apex Court in Para-14 to 16, 23 to 27, 35, 36, 96, 99, 107, 108, 110, 121, 127, 142 to 146 & 153 has held as follows:-
"14. On 10-2-1995, a Constitution Bench of this Court rendered a judgment in R.K. Sabharwal v. State of Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] ("Sabharwal") and held that:
14.1. Once the prescribed percentage of posts is filled by reserved category candidates by the operation of the roster, the numerical test of adequacy is satisfied and the roster would cease to operate [Id at p. 750, para 5] .
14.2. The percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in Page 78 of 103 // 79 // operating the percentage of reservation [Id at pp. 751-52, para 6] .
14.3. The interpretation placed on the working of the roster shall operate prospectively [Id at p. 753, para 11] from 10-2-1995.
15. On 1-10-1995, a two-Judge Bench of this Court held in Union of India v. Virpal Singh Chauhan [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] ("Virpal Singh") that the State could provide that even if a candidate belonging to the SC or ST is promoted earlier on the basis of reservation and on the application of the roster, this would entitle such a person to seniority over a senior belonging to the general category in the feeder cadre. However, a senior belonging to the general category who is promoted to a higher post subsequently would regain seniority over the reserved candidate who was promoted earlier. This rule came to be known as the catch-up rule. The two-Judge Bench directed that the above principle would be followed with effect from the date in the judgment in Sabharwal [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] i.e. 10-2-1995.
16. Six months after the decision in Virpal Singh [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] , on 1-3-1996, a three-Judge Bench of this Court in Ajit Singh Januja v. State of Punjab [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540] ["Ajit Singh (1)"], adopted the catch-up rule propounded in Virpal Singh [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] , to the effect that the seniority between reserved category candidates and general candidates in the promoted category shall continue to be governed by their inter se seniority in the lower grades. This Court held that a balance has to be maintained so as to avoid "reverse discrimination" and, a rule or circular which gives seniority to a candidate belonging to the reserved category promoted on the basis of roster points would violate Articles 14 and 16 of the Constitution.
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23. The validity of the Seventy-seventh and Eighty-fifth Amendments to the Constitution and of the legislation enacted in pursuance of those amendments was challenged before a Constitution Bench of this Court in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . The Constitution Bench analysed whether the replacement of the catch-up rule with consequential seniority violated the basic structure Page 79 of 103 // 80 // and equality principle under the Constitution. Upholding the constitutional validity of the Amendments, this Court held that the catch-up rule and consequential seniority are judicially evolved concepts based on service jurisprudence. Hence, the exercise of the enabling power under Article 16(4-A) was held not to violate the basic features of the Constitution : (SCC p. 259, para 79) "79. Reading the above judgments, we are of the view that 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, etc. It cannot be said that by insertion of the concept of "consequential seniority" the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that "equality code" under Articles 14, 15 and 16 is violated by deletion of the "catch-up" rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the "catch-up"
rule nor the concept of "consequential seniority" is implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] ."
24. The Constitution Bench held that Article 16(4-A) is an enabling provision. The State is not bound to make reservations for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets:
(i) The backwardness of the class;
(ii) The inadequacy of the representation of that class in public employment; and
(iii) The general efficiency of service as mandated by Article 335 would not be effected.
25. The principles governing this approach emerge from the following extracts from the decision : (Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC pp. 270-71 & 276-78, paras 107, 117 & 123) "107. ... If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of Page 80 of 103 // 81 // efficiency, backwardness, inadequacy of representation are required to be identified and measured. ... ***
117. ... in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.
***
123. ... In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely." The Constitution Bench held that the constitutional amendments do not abrogate the fundamentals of equality : (Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC p. 272, para
110) "110. ... the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated Page 81 of 103 // 82 // above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside."
These observations emphasise the parameters which must be applied where a law has been enacted to give effect to the provisions of Article 16(4-A). The legislative power of the State to enact such a law is preserved. The exercise of the power to legislate is conditioned by the existence of "compelling reasons", namely; the existence of backwardness, the inadequacy of representation and overall administrative efficiency. Elsewhere in the decision, the Constitution Bench treated these three parameters as "controlling factors" for making reservations in promotions for SCs and STs. They were held to be constitutional requirements crucial to the preservation of "the structure of equality of opportunity" in Article 16. The Constitution Bench left the validity of the individual enactments of the States to be adjudicated upon separately by Benches of this Court.
26. In B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] , a two-Judge Bench of this Court considered a challenge to the Reservation Act, 2002 providing for consequential seniority on the ground that the exercise which was required to be carried out in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] had not been undertaken by the State and there was no provision for the exclusion of the creamy layer. The validity of the Reservation Act, 2002 had been upheld [M. Nagaraj v. Union of India, 2010 SCC OnLine Kar 5407] by a Division Bench of the Karnataka High Court. In B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] , this Court struck down Sections 3 and 4 of the Reservation Act, 2002 as ultra vires Articles 14 and 16. The petitioner contended that the law laid down by this Court in Badappanavar [M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 666 :
2001 SCC (L&S) 489] , Ajit Singh (2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] and Virpal Singh [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] remained applicable despite the Constitution (Eighty-fifth Amendment) Act, 2001. Moreover, it was contended that the Government of Karnataka had not complied with the tests laid down in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and had failed to provide any material or data to show inadequacy of representation. Moreover, no consideration was given to the issue of overall administrative efficiency. The principal challenge was that an exercise for determining Page 82 of 103 // 83 // "backwardness", "inadequacy of representation", and "overall efficiency" in terms of the decision in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] had not been carried out.
27. Relying on the decisions of this Court in Suraj Bhan Meena v. State of Rajasthan [Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] , U.P. Power Corpn. Ltd. v. Rajesh Kumar [U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC 1 : (2012) 2 SCC (L&S) 289] and S. Panneer Selvam v. State of T.N. [S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292 :
(2016) 1 SCC (L&S) 76] ("Panneer Selvam"), a two-Judge Bench of this Court affirmed that the exercise laid down in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] for determining "inadequacy of representation", "backwardness" and "overall efficiency" is necessary for recourse to the enabling power under Article 16(4-A) of the Constitution.
The Court held that the Government of Karnataka had failed to place material on record showing that there was a compelling necessity for the exercise of the power under Article 16(4-A). Hence, the directions laid down by this Court in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] were not followed. Striking down Sections 3 and 4 of the Reservation Act, 2002, this Court held thus : [B.K. Pavitra (1) case [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] , SCC p. 641, para 29] "29. It is clear from the above discussion in S. Panneer Selvam case [S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] that exercise for determining "inadequacy of representation", "backwardness" and "overall efficiency", is a must for exercise of power under Article 16(4-A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their Page 83 of 103 // 84 // seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at the same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4- A), it is the "catch-up" rule which fully applies. It is not necessary to go into the question whether the Corporation concerned had adopted the rule of consequential seniority."
The Court clarified that the decision will not affect those who have already retired and availed of financial benefits. It was further directed that promotions granted to existing employees based on consequential seniority are liable to be reviewed and that the seniority list be revised in terms of the decision. Three months were granted to take further consequential action. Petitions seeking a review of the decision have been tagged with the present proceedings.
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35. In Jarnail Singh v. Lachhmi Narain Gupta [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 :
(2019) 1 SCC (L&S) 86] , ("Jarnail") a Constitution Bench of this Court considered whether the decision in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] requires to be referred to a larger Bench since:
35.1. It requires the State to collect quantifiable data showing backwardness of the SCs and STs contrary to the nine Judge Bench decision in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] .
35.2. The creamy layer principle was not applied to SCs and STs in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] .
35.3. In applying the creamy layer principle, Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] conflicts with the decision in E.V. Chinnaiah v. State of A.P. [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] ("Chinnaiah").
36. In Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] , the Constitution Bench held that:
36.1. The decision in Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] holds, in essence, that a State law [ The Court was considering Page 84 of 103 // 85 // the provisions of the Andhra Pradesh Scheduled Caste (Rationalisation of Reservations) Act, 2000.] cannot further sub-divide the SCs into sub-categories. Such an exercise would be violative of Article 341(2) since only an Act of Parliament and not the State Legislatures can make changes in the Presidential list. Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] did not dwell on any aspect on which the constitutional amendments were upheld in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . Hence, it was not necessary for Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to advert to the decision in Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] . Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] dealt with a completely different problem and not with the constitutional amendments, which were dealt with in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 at pp. 422-23, para 22 : (2019) 1 SCC (L&S) 86] .
36.2. The decision of the Constitution Bench in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , insofar as it requires the State to collect quantifiable data on backwardness in relation to the SCs and STs is contrary to Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and would have to be declared to be bad on this ground [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 at p. 424, para 24 : (2019) 1 SCC (L&S) 86] .
36.3. Constitutional courts, when applying the principle of reservation will be within their jurisdiction to exclude the creamy layer on a harmonious construction on Articles 14 and 16 along with Articles 341 and 342 [Id at p. 425, para 26] . The creamy layer principle is an essential aspect of the equality code.
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96. Clause (4) of Article 16 contains an enabling provision to empower the State to make reservations in appointments or posts in favour of any backward class of citizens "which, in the opinion of the State, is not adequately represented in the services under the State". Clause (4-A) contains an enabling provision that allows the State to provide for reservations in promotion with consequential seniority in posts or classes of posts in services under the State in favour of SCs and STs. Clause (4-A) also uses the expression "which, in the opinion of the Page 85 of 103 // 86 // State, are not adequately represented in the services under the State". In Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , while construing the nature of the satisfaction which has to be arrived at by the State, this Court held : (SCC p. 728, para 798) "798. ... The language of clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the words "in the opinion of the State". This opinion can be formed by the State on its own i.e. on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated inBarium Chemicals Ltd. v. Company Law Board [Barium Chemicals Ltd. v. Company Law Board, 1966 Supp SCR 311 : AIR 1967 SC 295] which need not be repeated here. Suffice it to mention that the said principles apply equally in the case of a constitutional provision like Article 16(4) which expressly places the particular fact (inadequate representation) within the subjective judgment of the State/executive."
(emphasis supplied) The above extract from the decision in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] presents two mutually complementary and reinforcing principles. The first principle is that the executive arm of the State is aware of prevailing conditions. The legislature represents the collective will of the people through their elected representatives. The presumption of constitutionality of a law enacted by a competent legislature traces itself to the fundamental doctrine of constitutional jurisprudence that the legislature is accountable to those who elect their representatives. Collectively, the executive and the legislature are entrusted with the constitutional duty to protect social welfare. This Court explained in Amalgamated Tea Estates Co. Ltd. v. State of Page 86 of 103 // 87 // Kerala [Amalgamated Tea Estates Co. Ltd. v. State of Kerala, (1974) 4 SCC 415 : 1974 SCC (Tax) 265] , the rationale for the principles of constitutionality :
(Amalgamated Tea Estates case [Amalgamated Tea Estates Co. Ltd. v. State of Kerala, (1974) 4 SCC 415 :
1974 SCC (Tax) 265] , SCC p. 420, para 11) "11. The reason why a statute is presumed to be constitutional is that the legislature is the best judge of the local conditions and circumstances and special needs of various classes of persons. '(T)he Legislature is the best judge of the needs of particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist.'"
This principle was reiterated in V.C. Shukla v. State (UT of Delhi) [V.C. Shukla v. State (UT of Delhi), 1980 Supp SCC 249 : 1980 SCC (Cri) 849] : (SCC pp. 259-60, para 11) "11. ... Furthermore, the legislature which is in the best position to understand the needs and requirements of the people must be given sufficient latitude for making selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to the object of the Act, Article 14 would not be attracted. That is why this Court has laid down that presumption is always in favour of the constitutionality of an enactment and the onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept of equality."
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99. The element of discretion vested in the State Governments to determine adequacy of representation in promotional posts is once again emphasised in the following extract from the decision in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 :
(2019) 1 SCC (L&S) 86] : (SCC p. 430, para 35) "35. ... According to us, Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16(4-A) has been couched in language which would leave Page 87 of 103 // 88 // it to the States to determine adequate representation depending upon the promotional post that is in question."
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107. 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. The Constitution Bench noticed this in Sabharwal [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] , where it observed : (SCC p. 750, para 4) "4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class."
Explaining this further, the Constitution Bench held : (SCC p. 751, para 5) "5. ... Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the Page 88 of 103 // 89 // roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster."
Consequently, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population.
108. One of the submissions which has been urged on behalf of the petitioners is that the quota has to be reckoned with reference to posts which are actually filled up or the working strength and not with reference to sanctioned posts. This submission is answered by the decision in Sabharwal [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] , which holds that the percentage of reservation has to be worked out in relation to the number of posts which form part of the cadre strength. The Constitution Bench held : (SCC pp. 751-52, para 6) "6. The expressions "posts" and "vacancies", often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions makes it clear that there must be a "post" in existence to enable the "vacancy" to occur. The cadre- strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of "vacancy" has no relevance in operating the percentage of reservation." (emphasis supplied) Similarly, in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] the Constitution Bench held : (SCC p. 261, para 83) "83. In our view, 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 upper ceiling limit of 50% is not Page 89 of 103 // 90 // violated. Further, roster has to be post-specific and not vacancy based."
Hence, the submission that the quota must be reckoned on the basis of the posts which are actually filled up and not the sanctioned posts cannot be accepted.
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110. Another facet of the matter is that in the judgment of Jeevan Reddy, J. in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , 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 [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] 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, the sobering experience of administration is that the overwhelmingly 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.
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121. Ultimately, a Bench of nine Judges of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] recognised that Article 16(4) is not an exception to but a facet of equality in Article 16(1). Jeevan Reddy, J. delivering the judgment of a plurality of four Judges observed : (SCC p. 691, para 741) "741. ... Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of stating the principle inherent in the main provision itself. ... In our respectful opinion, the view taken by the majority in Thomas [State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227] , SCC at p. 380 is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it."
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127. This part of the philosophy of the Constitution was emphasised in a powerful exposition contained in the judgment of O. Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka [K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714] ("K.C. Page 90 of 103 // 91 // Vasanth Kumar"). The learned Judge held : (SCC pp. 737- 38, para 35) "35. One of the results of the superior, elitist approach is that the question of reservation is invariably viewed as the conflict between the meritarian principle and the compensatory principle. No, it is not so. The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis. There is not enough fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated. And, what is merit? There is no merit in a system which brings about such consequences."
(emphasis in original) Speaking of efficiency, the learned Judge held : (SCC p. 738, para 36) "36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned. ... one would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen of the elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the civil service is no paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlying assumption that those belonging to the upper castes and classes, who are appointed to the non- reserved posts will, because of their presumed merit, "naturally" perform better than those who have been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitist classes."
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142. The reference before the Constitution Bench in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] arose out of an initial reference by a two-Judge Bench in State of Tripura v. Jayanta Chakraborty [State of Tripura v. Jayanta Chakraborty, (2018) 1 SCC 146 :
(2018) 1 SCC (L&S) 14] ("State of Tripura") and then by a three-Judge Bench in State of Maharashtra v. Vijay Ghogre [State of Maharashtra v. Vijay Ghogre, (2018) 15 SCC 64 : (2018) 2 SCC (L&S) 759] . The order in State of Tripura [State of Tripura v. Jayanta Chakraborty, (2018) 1 SCC 146 : (2018) 1 SCC (L&S) 14] states : (SCC pp. 147-
48, para 2) Page 91 of 103 // 92 // "2. ... However, apart from the clamour for revisit, further questions were also raised about application of the principle of creamy layer in situations of competing claims within the same races, communities, groups or parts thereof of SC/STs notified by the President under Articles 341 and 342 of the Constitution of India."
143. Before the Constitution Bench in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 :
(2019) 1 SCC (L&S) 86] , the learned Attorney General specifically raised the following arguments : (SCC pp. 407-
408, para 3) "3. ... according to the learned Attorney General, the creamy layer concept has not been applied in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] to the Scheduled Castes and the Scheduled Tribes and Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has misread the aforesaid judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes. According to the learned Attorney General, once the Scheduled Castes and the Scheduled Tribes have been set out in the Presidential List, they shall be deemed to be Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament under Articles 341 and 342. The learned Attorney General also argued that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does not indicate any test for determining adequacy of representation in service. According to him, it is important that we lay down that the test be the test of proportion of Scheduled Castes and Scheduled Tribes to the population in India at all stages of promotion, and for this purpose, the roster that has been referred to in R.K. Sabharwal v. State of Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] can be utilised. Other counsel who argued, apart from the learned Attorney General, have, with certain nuances, reiterated the same arguments."
144. The decision in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] specifically addressed the issue of creamy layer :
(SCC p. 426, para 28) "28. Therefore, when Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament's power under Article Page 92 of 103 // 93 // 341 or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench.
We may also add at this juncture that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. This judgment has been repeatedly followed and applied."
Rohinton Nariman, J. speaking for the Constitution Bench in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] explained the reason for applying the creamy layer principle : (SCC p. 424, para
25) "25. However, when it comes to the creamy layer principle, it is important to note that this principle sounds in Articles 14 and 16(1), as unequals within the same class are being treated equally with other members of that class."
145. We are thus unable to subscribe to the submission that Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] is not per curiam on the issue of creamy layer. For one thing, Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] specifically examined the decision in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , noticing that eight of the nine learned Judges applied the creamy layer principle as a facet of the larger equality principle. In fact, the decision in Indra Sawhney (2) v. Union of India [Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168 : 2000 SCC (L&S) 1] ["Indra Sawhney (2)"] summarised the judgments in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] on the aspect of creamy layer. The judgment in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 :
(2019) 1 SCC (L&S) 86] approved Indra Sawhney (2) [Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168 : 2000 SCC (L&S) 1] when it held that the creamy layer principle sounds in Articles 14 and 16(1) : (Jarnail case [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] , SCC p. 415, para 12) "12. In para 27 of the said judgment, the three-Judge Bench of this Court clearly held that the creamy layer principle sounds in Articles 14 and 16(1) as follows :
[Indra Sawhney (2) case [Indra Sawhney (2) v. Union of Page 93 of 103 // 94 // India, (2000) 1 SCC 168 : 2000 SCC (L&S) 1] , SCC p. 190, para 27] '(i) Equals and unequals, twin aspects
27. As the "creamy layer" in the backward class is to be treated "on a par" with the forward classes and is not entitled to benefits of reservation, it is obvious that if the "creamy layer" is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of Backward Classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class. ...
Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4). We shall examine the validity of Sections 3, 4 and 6 in the light of the above principle.' "
146.Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] discussed the decision in Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] and held that it dealt with the lack of legislative competence on the part of the State Legislatures to create sub-categories among the Presidential lists under Articles 341 and 342. The decision in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] therefore held that Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and hence it was not necessary for Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to refer to Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] at all. In this view of the matter, we are clearly of the view that Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] , on a construction of Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] holds that the creamy layer principle is a principle of equality.
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153. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act, 2018 is lacking in substance. Following the decision in B.K. Pavitra (1) [B.K. Page 94 of 103 // 95 // Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] , 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 [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . The Reservation Act, 2018 has cured the deficiency which was noticed by B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] 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 [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] compliant. The Reservation Act, 2018 is a valid exercise of the enabling power conferred by Article 16(4-A) of the Constitution."
7.16. Since in the State of Odisha, no such quantifiable data has yet been collected to know the inadequacy of SC and ST candidates in any post, so admitted in the case of Pravakar Mallick, such reserved category candidates are not eligible to get the benefit of promotion after getting the benefit of promotion as per the roster point so fixed and decided in the case of R.K. Sabharwal. Accordingly, impugned communication issued by Opp. Party No.3 on 06.05.2024 in permitting SC and ST candidates to get the benefit of promotion against unreserved vacancies on own merit is not sustainable in the eye of law.
Page 95 of 103// 96 // 7.17. Making all these submissions, learned Senior Counsels appearing for the petitioners contended that since the impugned clarification has been issued by Opp. Party No.3 contrary to the provisions contained under Art-154 and 162 of the Constitution of India, the provisions contained in Rule-6 of the 1992 Rules, and the decisions in the case of M. Nagraj as well as Jarnail Singh, the impugned clarification dated 06.05.2024 and further clarification issued on 27.02.2025 are not sustainable in the eye of law. It is also contended that consequential action taken by any of the department of the State basing on such clarification issued on 06.05.2024 and 27.02.2025 is also not sustainable in the eye of law.
It is also contended that Art-16(4), 16(4-A) & 16(4-B) are enabling provisions, empowering the State to identify and recognize the compelling interest in extending the benefit of reservation in promotion in favour of SC & ST candidates. If the State has quantifiable data to show backwardness and inadequacy, then the State can make reservation in promotion keeping in mind maintenance of Page 96 of 103 // 97 // efficiency in administration, which is held to be a constitutional limitation on the discretion of the State in making reservation as incorporated in Art-335 of the Constitution. Art-335 of the Constitution reads as follows:-
"335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.--
The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: 5 [Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters or promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.]"
8. I have heard Mr. Subir Palit, learned Senior Counsel along with Mr. B.B. Mohanty, learned counsel for the petitioners in W.P.(C) No.7674 of 2025, Mr. B. Routray, learned Senior Counsel along with Mr. J.
Biswal, learned counsel for the petitioners in W.P.(C) No.8720 of 2025, learned counsels for the petitioners in other batch of Writ Petitions and Mr. M.R. Mohanty, learned Addl. Govt. Advocate for the State-Opp. Parties, Mr. Ashok Kumar Mohanty, learned Senior Counsel for Page 97 of 103 // 98 // the private Opp. Parties in W.P.(C) No.9643 of 2025 and Mr. P.K. Sinha, learned counsel for Opp. Party Nos.5 to 9 in W.P.(C) No.7674 of 2025. On the consent of the learned counsels appearing for the parties and with due exchange of pleadings, the matter was heard at the stage of admission and disposed of by the present common order.
9. Having heard learned counsels appearing for the parties and considering the submissions made, this Court finds that eligibility of an employee to get the benefit of promotion in any cadre is provided under the OCS (Criteria for Promotion) Rules, 1992. While amending Rule-3 of the 1992 Rules with insertion of Rule-3-A, it was clearly provided that SC and ST candidates appointed on their own merit either by direct recruitment or by promotion and placed above the un-reserved candidates in the merit list shall be considered and adjusted against the un-reserved vacancy and such candidates are not to be counted Page 98 of 103 // 99 // against the percentage earmarked for reservation of their category.
9.1. This Court finds that on the face of such clear provision contained under Rule-3-A of the Amendment Rules, 2022, O.P. NO.3 while issuing the impugned clarification on 06.05.2024 and 27.02.2025 basing on the view given by the Law Department on 27.02.2024 held that reserve category employees who have availed reservation in appointment, could be promoted against un-reserved vacancy to treat them as their own merit.
9.2. Placing reliance on the provisions contained under Rule-6 of the 1992 Rules, it is the view of this Court that it is only the G.A. and P.G. Department who is competent to issue any clarification while interpreting any of the Rules so contained under the 1992 Rules. It is also found that impugned clarification has been issued by Opp. Party No.3-department without prior concurrence/approval of the Hon'ble Governor of Odisha. Since 1992 Rule as well as the Amendment Rules, 2022 have been framed under Art-
Page 99 of 103// 100 // 309 of the Constitution of India and such a rule was issued with due approval of the Hon'ble Governor, placing reliance on the provisions contained under Art-
154 and 162 of the Constitution of India and the decision in the case of Prasanna Kumar Sahoo, so followed by this Court in W.P.(C) No.12518 of 2020 and batch so cited (supra), it is the view of this Court that Opp. Party No.3 is not competent to issue any such clarification so issued on 06.05.2024 and 27.02.2025, without prior approval of the Governor and Law Department was also not competent to give its view on 27.02.2024, basing on which such a clarification was issued on 06.05.2024.
9.3. It is also the view of this Court that in terms of the provision contained under Art-16(4-A) of the Constitution of India and decisions rendered by the Hon'ble Apex Court in the case of M. Nagraj, so followed in Jarnail Singh so cited (supra) and the provision contained under Art-335 of the Constitution of India, since no quantifiable data has yet been Page 100 of 103 // 101 // collected by the State with regard to inadequacy of representation of reserve category candidate in any cadre of posts, so admitted before the Hon'ble Apex Court in the case of Prabhakar Mallick so cited (supra), in absence of any such quantifiable data being collected by the State showing inadequacy of representation of SC and ST candidates in any cadre and the overall efficiency, no such clarification could have been issued by Opp. Party No.3 on 06.05.2024 and 27.02.2025.
9.4. Since in terms of the decision of the Hon'ble Apex Court in the case of M. Nagraj and Jarnail Singh, no such quantifiable data has yet been collected and the impugned clarification has been issued by Opp. Party No.3 contrary to the provisions contained under Rule-6 of the 1992 Rules as well as Art-154 and 162 of the Constitution of India, it is the view of this Court that the impugned clarification issued on 06.05.2024, directed to be followed in communication dated 27.02.2025 basing on the clarification issued by the Page 101 of 103 // 102 // Law Department on 27.02.2024, are not sustainable in the eye of law and stand quashed. Consequentially, any action taken basing on such clarification issued on 06.05.2024 and 27.02.2025 are also not sustainable in the eye of law and stand quashed. The decisions rendered by this Court in the case of Lalit Kumar Nayak as well as Litu Behera on the face of the provision contained under Art-16(4-A) of the Constitution of India and the decision in the case of M. Nagraj as well as Jarnail Singh as per the considered view of this Court are judgments per-incuriam.
9.5. Therefore, this Court while quashing clarification dtd.06.05.2024 and communication dtd.27.02.2025 so issued by Opp. Party No.3 as well as consequential action taken thereof by various departments of the State, direct the concerned departments in the present batch of Writ Petitions to follow the provisions contained under Rule-3-A of the Amendment Rules, 2022 and so also the provision contained under Art-
16(4-A) of the Constitution of India read with the Page 102 of 103 // 103 // decision in the case of M. Nagraj and Jarnail Singh with regard to promotion of SC & ST candidates.
10. With the aforesaid observation and direction, all the Writ Petitions stand disposed of accordingly.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 22nd January, 2026/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2026 10:38:58 Page 103 of 103