Central Administrative Tribunal - Delhi
Darshan Kumar Sharma vs M/O Finance on 22 April, 2026
1 OA No.1407/2017
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.1407/2017
Order reserved on: 20.03.2026
Order pronounced on: 22.04.2026
Hon'ble Dr. Chhabilendra Roul, Member (A)
Hon'ble Sh. Rajveer Singh Verma, Member (J)
1. Mr. Darshan Kumar Sharma
Son of Shri H.R.Sharma,
Resident of B-242, Pradyogiki Appts.,
Plot No.11, Sector 3,
Dwarka, ND-78
Aged 59 years,
Superintendent, presently posted as
Addl. Asst. Director, in the
O/O Directorate General
Human Resource Development,
Bhai Veer Singh Sahitya Sadan,
Gole Market,
New Delhi-110001.
2. Mr. Appukuttan Pillai P C
S/o late Sh. K.C. Pillai,
R/o Flat No.508, New Delhi Apartments,
Vasundhara Enclave, Delhi-110096.
Presently posted as Superintendent posted at
Service Tax-Delhi-I Commissionerate, New Delhi
Aged about 55 years.
....Applicants
(By Advocate: Ms. Jasvinder Kaur)
Versus
1. Union of India through Ministry of Finance,
Department of Revenue Through its Secretary,
North Block, New Delhi.
2. Chairman, Central Board of Excise & Custom
North Block, New Delhi.
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2 OA No.1407/2017
3. Chief Commissioner of Central Excise,
Delhi Zone (Cadre Controlling Authority)
C.R. Building, I.P. Estate,
New Delhi.
4. Directorate General Human Resource Development
Ministry of Finance, Department of Revenue
Bhai Veer Singh Sahitya Sadan,
Gole Market,
New Delhi-110001.
5. Sh. Ram Singh, Superintendent (Custom & Central
Excise) U/Chief Commissioner of Central Excise,
Delhi Zone, (CCA).
6. Mr. Ashok Kumar,
Superintendent (Custom & Central
Excise) U/Chief Commissioner of Central Excise,
Delhi Zone (CCA).
7. Mr. Ramesh Kumar Kasotia,
Superintendent (Custom & Central Excise) U/Chief
Commissioner of Central Excise,
Delhi Zone (CCA).
Respondents No. 5 to 7 to be served through Respondent
No.3)
... Respondents
(By Advocate: Mr. Rajeev Kumar )
ORDER
By Dr. Chhabilendra Roul, Member (A) The present Original Application has been filed by Applicants, two in number, under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"(1) May issue directions to the respondents no.1 to 4 to revise the seniority list of Superintendents in Delhi zone followed by revised All India Seniority List of SUNITA 2026.05.05 17:41:44 DUTT +05'30' 3 OA No.1407/2017 Superintendents, and fix the seniority of the applicants above the Respondent No.5 to 7 as per the seniority in the grade of Inspector in the draft Seniority List dated 23.11.2001 on which the DPC was conducted by the Respondent No.3.
(2) May direct the Respondents No.1 to 2 to hold review DPC for the post of Superintendent and consider and give notional promotion to the Applicants w.e.f. 23.09.2002 the date on which the Respondent no.5 to 7 were promoted to the post of Superintendent.
(3) And, may direct the Respondents No.1 to 3 to pay the arrears of pay and allowances and other consequential benefits that arise in favour of Applicants in view of relief at serial no. (1) & (2) above.
(4) And, may pass such other further orders/directions deem fit and proper in the facts of the case."
2. Factual Matrix 2.1 The Applicants were appointed as Inspector on 03.12.1990 vide Establishment Order dated 369/1990 in the Central Excise Department, Delhi Zone. The private respondents came to Delhi Zone through inter zonal transfers. The draft seniority list of Inspectors in this zone was issued on 23.11.2001. The seniority of the present applicants and the private Respondent Nos. 5, 6 and 7 were at seniority Nos. 444, 445, 455, 461 and 465 respectively. The competent authority amongst the official respondents promoted the private respondents on 23.09.2002 to the rank of Superintendents allegedly giving the benefit of reservation in promotions. The present applicants were promoted to the rank of Superintendents on 21.04.2003. The final seniority list of Inspectors (Central Excise) was published on SUNITA 2026.05.05 17:41:44 DUTT +05'30' 4 OA No.1407/2017 27.02.2003 when the private respondent Nos. 5, 6 and 7 were shown at seniority Nos. 468, 477, 484 whereas the present applicants were shown at Sl. Nos.475 and 478 respectively. The Official Respondents prepared and published the seniority list of Superintendents at Zonal level as well as at All India level on 31.10.2011. The Official Respondents placed the seniority of the private respondent Nos. 5, 6 & 7 at seniority No. 442, 443 and 444 at Zonal level as compared to seniority No.550 and 551 respectively for the applicants. At All India level, the private respondent Nos. 5, 6, and 7 were shown at seniority Nos. 3444, 3445, and 3485 respectively whereas the applicants were shown at Seniority Nos.4463 and 4464 respectively. The Applicant Nos.1 and 2 submitted representations on 29.12.2016 and 15.02.2017 respectively to the respondents to revise their seniority in light of various court judgments including Coordinate Benches of this Tribunal. As the Official respondents did not respond to the representations submitted by the applicants, they have approached this Tribunal in the present OA seeking aforementioned relief.
3. Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed his rejoinder.
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4. Pleadings by the applicants and submission by their counsel 4.1 The applicants are seeking refixation of their seniority vis-a-vis the private respondents based on the draft seniority list of 23.11.2001 and consequential benefits of antedating their promotion along with further consequential benefits from the date the private respondents were promoted as Superintendents i.e. on 23.09.2002.
4.2 The grounds taken by the applicants in their OA and by their counsel in the final hearing are as follows:
(i) Order dated 02.05.2012 in OA No.38/CH/2011 by Coordinate Bench of this Tribunal at Chandigarh, which was upheld by the Haryana and Punjab High court.
(ii) A similar Order of the Coordinate Bench of this Tribunal at Chandigarh in OA No.388/PB/2005 was implemented by the official respondents.
(iii) Order dated 15.09.2016 by the Coordinate Bench of Chandigarh in OA No. 060/090/2015 M.S. Sandhu & others Vs. UOI & Ors.
(iv) Order dated 26.05.2016 by the Coordinate Bench of Chandigarh in OA No. 060/01043/2014 Krishna Dutt & ors. Vs. UOI & Ors.
(v) The Apex Court Judgment in M. Nagaraj & ors. vs. UOI & ors., AIR 2007 SC 71 decided on 19 October, 2006 to be applied retrospectively to the promotions held in 2002 for the applicants and the private respondents. This judgment was reiterated in Uttar Pradesh Power Corporation Ltd. Vs. Rajesh Kumar, 2012 (2) SCC (L&S) 289 that the State has to make an exercise as mandated by M. Nagaraj before making reservation.
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 6 OA No.1407/2017 4.3 Citing the above mentioned judgements/orders, the learned counsel or the applicant states that the Coordinate Benches of this Tribunal in similar matters had held that reservation in promotion is not permissible and hence, the respondents should review the DPC already held for promotion of Superintendent.
5. Submission by Learned Counsel for Respondents 5.1 On the other hand, the official respondents have countered the claim of the applicants. The learned counsel for the respondents referred to Paragraph 4.3 and 5.1 of the counter affidavits filed such respondents on 21.11.2017 which are reproduced below:
"Para 4.3 That the Contents of para 4.3 of the O.A. are wrong and denied. The provisions of MHA OM No. 9/11/55-RPS dated 22.12.1959 as relied upon by the applicants do not squarely pertain to the situation of the applicant as the respondents No. 5,6 & 7 were promoted to the grade of Superintendent on an earlier date i.e 23.09.2002 and the applicants were promoted on a later date i.e 21.04.2003. The contest of the applicant that "the Seniority of an officer assessed as 'fit' in the promoted grade shall be same as in the feeder grade from which they are promoted does not apply to the present applicant as they have not been promoted vide the same Establishment order and the above principle cannot be applied between the officers getting promoted on different dates unless promotion so granted is on notional basis. Para 5.1 That the Contents of para 5.1 of the O.A. are wrong and denied. The provisions of para 4 of the DOPT's OM No. 20011/1/2001 -Estt (D) dated 21.01.2002 quoted by the applicant on which reliance has been placed does not find mention in the said DOPT OM . Further, the contention of the applicant quoting the provisions of DOPT OM No. 35014/7/97- Estt (D) dated 08.02.2002 that "the DPC is to grade an officer as 'fit' or 'unfit' and the feeder grade Seniority of the Officers SUNITA 2026.05.05 17:41:44 DUTT +05'30' 7 OA No.1407/2017 assessed as fit would be maintained in the promoted grade " is not sustainable as the aforesaid provisions are to be applied only in respect of officers who are promoted to a higher grade on the same date. Furthermore, as regards the implication of judgment dated 15.07.2011 of Hon'ble Punjab & Haryana High Court at Chandigarh in determining the seniority in the grade of Superintendent of Delhi Zone, it is to submit that the matter has not attained finality as the Department of Revenue has filed SLP bearing No.6915/2014 against the aforesaid judgment dated 15.07.2011 of the Hon'ble Punjab & Haryana High court, which is pending decision by the Hon'ble Apex court. In view of the above, the direction of the Hon'ble High Court cannot be given effect to at this stage."
6. Analysis 6.1 The Applicants have challenged the seniority list of Superintendents without challenging the final seniority list of Inspectors based on which such promotions were held. Further, the applicants are seeking review DPC for the post of Superintendents without challenging any order of promotion based on the original DPC. Further, they are challenging the seniority of Superintendents based on draft seniority of Inspectors issued on 23.11.2001 without challenging the final seniority list of Inspectors issued on 27.03.2003. 6.2 Despite the aforementioned issues of non-challenge or non-impugning of relevant orders and seniority list, the crux of the issue, as argued by the learned counsel for the applicants and as evident in the pleadings in the OA, is that the respondents should not have made reservations in promotions while promoting Inspectors to the rank of Superintendents and when they were promoted, they should SUNITA 2026.05.05 17:41:44 DUTT +05'30' 8 OA No.1407/2017 not have been given their seniority based on such reservations. The applicants in their OA as well as their learned counsel have failed to state whether the official respondents have given any benefit of reservation while finalising the seniority list of Inspectors which was published on 27.03.2003. In absence of any such clear documentary evidence, the final seniority list of Inspectors issued on 27.03.2003 could be taken as given and final. Based on this seniority list/provisional seniority list published earlier, the official respondents promoted the respondent Nos. 5, 6 and 7 on 23.09.2002 and the applicants on 21.04.2003. As there is no specific challenge to the promotion orders, the demand for review DPC to promote the applicants from the date the private respondents were promoted on 23.09.2002 (as assumed from the pleadings and submissions) is based on the presumption that the private respondents were given benefit of reservation which should not have been given in 2002. Again, it is made clear that no documentary evidence has been produced to give credence to such presumption. Nevertheless, issue of reservation in promotion has evolved since 1995 when the Apex Court in Indra Sawhney Etc. Etc. vs. Union of India and Others, Etc. Etc., JT 1992 (6) SC 273 case framed the issue and gave specific rulings. The following sections contains a detailed discussion regarding SUNITA 2026.05.05 17:41:44 DUTT +05'30' 9 OA No.1407/2017 evolving position of case laws and constitutional provisions since 1992, pertaining to reservation in promotion.
7. Evolution of Reservation in Public Employment 7.1 Constitutional Provision Regarding Reservation.
The framers of the Constitution envisaged the affirmative action in the form of providing reservation to backward classes. Clauses (1) and (4) of Article 16 provide:
"(1) There shall be equality of opportunity for all citizens in matters relating to the citizens belonging to the backward classes in employment or appointment to any office under the State.
...
(4) Nothing in this article shall prevent the State from making 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.
Based on the constitutional provision, the Union of India and states provided for reservation for SCs and STs in public employment, as well as admission to publicly funded educational institutions."
7.2 Was reservation contemplated in Promotions when it used the expression "Appointment". The first SEBC commission was set up in January 1953 under the chairmanship of Kaka Kalelkar. It presented its report on March 30, 1955, listing down 2399 castes as socially and educationally in deprived class. On January 1, 1979, the then Government set up the Socially and Educationally Backward Classes (SEBC) Commission headed SUNITA 2026.05.05 17:41:44 DUTT +05'30' 10 OA No.1407/2017 by Shri B.P. Mandal under Article 340 of the Constitution of India.
The Mandal Commission submitted its report in December 1980. In this report, the Commission identified about 3743 castes as socially & educationally backward classes and recommended for reservation of 27% in Government jobs. However, the Report of the Mandal Commission could not be implemented for considerable time. The Central Government issued an office of a memorandum on August 13, 1990, and reserved 27% seats for the Socially & Backward classes.
7.2.2 A writ of appeal was filed by the Bar Association of the Supreme Court, Challenging the legitimacy of the aforesaid Office Memorandum. Finally, the case was placed before a Constitution Bench consisting of 5 Judges. Later, on October 1, 1990, the said Bench of the Apex Court issued a stay order till the final disposal of the matter. The Government chose to issue another Office Memorandum by rolling out 2 improvements:
i) by presenting the financial rule in allowing reservation inside 27% in Govt., and
ii) Reserving another 10% of opportunities socially and instructively in reverse classes.
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 11 OA No.1407/2017 7.2.3 The 5 Judge Bench of the Apex Court referred this matter to a Larger Bench. A Nine-Member Bench was constituted by the Apex Court. This is the background under which the 9 Judge Bench of the Supreme Court adjudicated the Indra Sawhney [Indra Sawhney Etc. Etc. vs. Union of India and Others, Etc. Etc., (SC) (1992) 6 JT 673.1 (SC) on 16 November, 1992. The 9 Judge Constitutional Bench formulated 9 issues including (i) whether the percentage of reservation can extend beyond 50% of total, (ii) whether caste or economic parameters would determine backwardness and
(iii) whether reservation can extend to promotions. The 9-judge Constitution Bench held inter alia, the following:
(i) Reservations contemplated by Article 16 (4) of the Constitution should not exceed 50 per cent. While 50 per cent shall be the rule, ―it is necessary not to put out of consideration certain extraordinary situations inherent the great diversity of this country and the people . But, any relaxation of the strict rule must be with extreme caution and on a special case being made out;
(ii) Reservations under Article 16 (4) could only be provided at the time of entry into government service but not in matters of promotion. However, this principle would operate only prospectively and not affect promotions already made. Moreover, reservations already provided in promotions shall continue in operation for a period of five years from the date of the judgment;
(iii) The creamy layer can be and must be excluded.
Justice B.P Jeevan Reddy held: ―792...While we agree that claus.e (4) aims at group backwardness, we feel that exclusion of such socially advanced members will SUNITA 2026.05.05 17:41:44 DUTT +05'30' 12 OA No.1407/2017 make the class's a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).
(iv) The adequacy of the representation of a backward class of citizens in services ―is a matter within the subjective satisfaction of the State, since the requirement in Article 16 (4) is preceded by the words ―in the opinion of the State.
(v) The backward class of citizens cannot be identified only and exclusively with reference to an economic criterion. It is permissible to identify a backward class of citizens with reference to occupation, income as well caste.
7.2.4 In view of the aforementioned decision of the Apex Court, the provisions for reservation in matters of promotion under the Karnataka Government Order of 1978, as clarified by the Official Memorandum dated 01 June 1978, were saved for a period of five years from 16 November 1992. In other words, Promotions already made were saved. 7.3 The 77th Constitutional Amendment incorporating provision for reservation in Promotion On 17 June 1995, the Parliament acting in its constituent capacity adopted the Seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservations to be made in promotion in favour of the SCs and STs. Clause 16 (4A) reads as follows:
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 13 OA No.1407/2017 "16 (4A). Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and Scheduled Tribes."
This amendment came into force on 17 June 1995, before the expiry of five years from 16 November 1992 (the date on which the decision in Indra Sawhney (supra) was pronounced). As a result of the decision in Indra Sawhney (supra) and the seventy-seventh amendment to the Constitution, the provision for reservations made by the Government of Karnataka under the Government Order of 1978 stood saved and continued to operate. 7.4 The Apex Court Decision regarding operation of Roster (R K Sabharwal v State of Punjab, 10.2.1995) The issue of continuation of Roster Point Reservations was adjudicated in R. K. Sabharwal and Ors. vs. State of Punjab and Ors.,1995 SCC (2) 745, decided on 10 February, 1995. In the said petition, the petitioners and respondents 4, 5 and 6 were members of the Punjab Service of Engineers (Class1) in the Irrigation Department of the State of Punjab. The respondents were members of the Scheduled Castes whereas the petitioners belonged to the general category. The conditions of service of the members of the Service were governed by the Rules called The Punjab Service of Engineers Class I P.W.D. (I.B.) Rules, 1964 (the Rules). The Punjab SUNITA 2026.05.05 17:41:44 DUTT +05'30' 14 OA No.1407/2017 Government by the instructions dated May 04, 1964 provided reservations for the Scheduled Castes and Backward Classes in promotions to and within Class I and II services under the State Government. It was laid down under the said instructions that 16% of the posts to be filled by promotion were to be reserved for members of the Scheduled Castes and Backward Classes (14% for the Scheduled Casts and 2% for the Backward Classes) subject to the conditions that the persons to be considered must possess the minimum necessary qualifications and they should have, satisfactory record of service. The instructions further provided as under:
"(i) In a lot of 100 vacancies occurring from time to time, those falling at serial numbers mentioned below should be treated as reserved for the members of Scheduled Castes; 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, 91 and so on. Vacancies falling at serial numbers 26 and 76 should be treated as reserved for the members of Backward Classes.
(ii) The reservation prescribed shall be given effect to in accordance with a roster to be maintained in each Department. The roster will be implemented in the form of a running account from year to year."
The issue which came for adjudication was whether once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled, it would be construed that the reservation is complete. Whether the roster cannot operate any further and it should be stopped. The five Judge Constitution Bench of the Apex Court held that:
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(i) 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.
(ii) 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.
(iii) The interpretation placed on the working of the roster shall operate prospectively from 10 February 1995.
(iv) In the event of non-availability of a reserve candidate at the roster-point it would be open to the State Government to carry forward the point in a just and fair manner.
7.5 The Catch-up Rule: Union of India vs. Virpal Singh Chauhan (10.10.1995) On 1st October 1995, a two judge Bench of the Apex Court in Virpal Singh (supra) held that:
"44. It is true that this case presents a rather poignant turn of events. Of the thirty-three candidates being considered for eleven vacancies, all are Scheduled Castes/Scheduled Tribes candidates. Not a single candidate among them belongs to general category. The learned counsel for the respondent is justified in complaining that appellants have failed to explain how such a situation has come about. Not only the juniors are stealing a march over their seniors but the march is so rapid that not only erstwhile compatriots are left far behind but even the persons who were in the higher categories at the time of entry of Scheduled Castes/Scheduled Tribes candidates in the service have also been left behind. Such a configuration could not certainly have been intended by the framers of the Constitution or the framers of the rules of reservation. In the absence of any explanation from the authorities, the best we can do is to ascribe it as faulty implementation of the rule of reservation. In other words, not only have the Railways not observed the principle that the reservation must be vis-a-vis posts and not vis-a-vis vacancies but they had also not kept in mind the rule of seniority in the promotion posts enunciated in the Railway Board's circulars referred to supra. Yet another principle which the authorities appeared to have not observed in practice is SUNITA 2026.05.05 17:41:44 DUTT +05'30' 16 OA No.1407/2017 that once the percentage reserved for a particular reserved category is satisfied in that service category or grade (unit of appointment) the rule of reservation and the roster should no longer be followed. Because of the breach of these three rules, it appears, the unusual situation complained of by the general candidates has come to pass. The learned counsel for general candidates is right that such a situation is bound to lead to acute heart-burning among the general candidates which is not conducive to the efficiency of administration. Be that as it may, the question is can the said situation be rectified. Probably not, until we direct all the promotions to be reviewed and re-done. This may not be advisable at this distance of time. The enormity of the exercise should deter any one from launching upon such a course. It is evidently for this reason that the Constitution Bench has directed in R.K. Sabharwal that the rule affirmed by them should be applied only prospectively. There is yet another circumstance: the Scheduled Castes/Scheduled Tribes candidates cannot be barred from competing for general posts. We are constrained to remark that it is the application of rule of reservation in the matter of promotions -which entitles a reserved category candidate to avail of the benefit of reservation any number of times which is mainly responsible for such a situation."
In other words, Virpal Singh (supra) judgment held that the State could provide that even if a candidate belonging to the SC or ST is promoted earlier on the basis of Castes and the Scheduled Tribes can compete for further promotion and if in the opinion of the State, they are not adequately represented in the services under the State, they can avail 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 next 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 SUNITA 2026.05.05 17:41:44 DUTT +05'30' 17 OA No.1407/2017 Bench directed that the above principle would be followed with effect from the date of the judgment in Sabharwal. 7.6 Ajit Singh Januja vs. State of Punjab (Januja- I), 1996 (2) SCC 715 and retaining seniority in feeder cadre - catch -up Rule affirmed but feeder cadre seniority restored.
Six months after the decision in Virpal Singh (supra), on 1 March 1996, a three judge Bench of the Apex Court in Ajit Singh Januja vs. State of Punjab, (1996 (2) SCC 715, 1 Ajit Singh I), adopted the catch-up rule propounded in Virpal Singh (supra), 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. The Apex 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. 7.7 The Jagdish Lal case and reversing Janjua-I Judgement: Catch up Rule cannot be the basis for review of seniority after lapse of considerable period. In Jagdish Lal & Ors vs State of Haryana & Ors., 1997 (6) SCC 538 on 7 May, 1997 a three judge Bench of the Apex Court took the following view:
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 18 OA No.1407/2017 "That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or 32 of the Constitution. It is not necessary to reiterate all catena of precedents in this behalf. Suffice it to state that the appellant kept sleeping over their rights for long and elected to wake up when they had the impetus from Vir Pal Chauhan and Ajit Singh's ratios. But Vir Pal Chauhan and Sabharwal's cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation, to all the persons prior to the dated of judgment in Sabharwal's case, which required to examined in the light of law laid in Sabharwal's case. Thus, earlier promotions cannot be reopened? Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal's case Vir Pal Chauhan's case and equally Ajit Singh's case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed contraryview to the decision in Ajit Singh I. The decision in Jagdish Lal held that by virtue of the principle of continuous officiation, a candidate belonging to a reserved category who is promoted earlier than a general category candidate due to an accelerated promotion would not lose seniority in the higher cadre."
7.8 Catch-Up Rule Reiterated and elaborated - Ajit Singh Januja-II Judgement This conflict of decisions as was raised in Jagdish Lal case was resolved by a five Judge Bench in Ajit Singh and Ors. vs. State of Punjab and Ors., 2000 (1) SCC 430.
The Constitution Bench held that Article 16 (4A) is only an enabling provision for reservation in promotion. The Constitution Bench held:
"In Ajit Singh II v. State of Punjab, [1997] 7 SCC 209, It was stated (at PP. 229-230) relying upon earlier judgments starting from 1963, that Article 16(4) was only an enabling provision and did not impose any constitutional duty nor confer any fundamental right for reservations. The observations at page 691 by Jeevan Reddy, J. in Indira Sawhney relied upon in the review applications do not deal with the above issue. It was the view of two Constitution Bench Judgments of this Court SUNITA 2026.05.05 17:41:44 DUTT +05'30' 19 OA No.1407/2017 one of 1963 in M.R. Balaji v. State of Mysore, [1963] Supp. 1 SCR 439 and another in 1968 in C.A. Rajendran v. Union of India, [1968] 1 SCR 721 and also two three judgments of this Court in P& T Scheduled Caste/Tribe Employees Welfare Association (Regd.) v. Ajit Singh And Ors vs State Of Punjab And Ors on 8 December, 1999 Indian Kanoon - Union of India, [1998] 4 SCC 147 and State Bank of India v. Scheduled Caste/ Tribes Employees Welfare Association, [1996] 4 SCC 1191, that Article 16 (4) was only am enabling provision. The view was nowhere dissented in Indira Sawhney much less at page 691 by Jeevan Reddy, J. It appears to us that all the nine Judges in Indira Sawhney were of the same view that Article 16(4) was not in the nature of a fundamental right and was only an enabling provision. In this connection, reference may be made with advantage to the view of the Jeevan Reddy, J. (at pages 667-735) referring to Subba Rao, J, That Article 16 (4) was a provision conferring a 'power' and referring to Article 16 (1) alone as a guarantee and not to Article 16 (4); to the view of Sawant, J. (at page 517,para 43 (4), Pandian J. (at page 407, para 168). Thommen, J. (at page 449, para 284), Sahai, J. (at page 580) with whom Kuldip Singh, J. agreed, - all expressly stating that Article 16 (4) was only an enabling provision. Thus, majority of the learned Judges expressly stated that Article 16 (4) was an "enabling provision".
Merely because the reservation for backward classes was created as reasonable classification and justified at page 691, that does not detract from the view that Article 16 (4) was only an enabling provision.
For the aforesaid reasons, we find there is no merit in these review petitions which are dismissed." 7.8.1 In consequence, roster point promotes belonging to the reserved categories could not count their seniority in the promoted category from the date of continuance officiation in the promoted post in relation to general category candidates who were seniors to them in the lower category and who were promoted later. Where a senior general candidate at the lower level is promoted later than a reserved category candidate, but before the further promotion of the latter, such a person SUNITA 2026.05.05 17:41:44 DUTT +05'30' 20 OA No.1407/2017 will have to be treated as senior at the promotional level in relation to the reserved candidate who was promoted earlier. The Constitution Bench accordingly applied the catch-up rule for determining the seniority of roster point promotes vis-à-vis general category candidates. The Court held that any circular, order or rule that was issued to confer seniority to roster point promotes would be invalid. However, the Constitution Bench directed that candidates who were promoted contrary to the above principles of law before 1 March 1999 (the date of the decision in Ajit Singh I) need not be reverted.
7.9 Conferment of seniority to roster point promotes cannot be given if no rule exists; implying catch-up rule applies if there is no specific rule conferring seniority to roster point promotes.
A three judge Bench, in M.G. Badappanavar and Another vs. State of Karnataka And Others on 1 December, 2000, 2001(1) KARLJ 236, relying on the decisions in Ajit Singh I, Ajit Singh II and Sabharwal (cases) reiterated the principle that Article 16 (4A) does not permit the conferment of seniority to roster point promotes. The Apex Court specifically held:
"12. There is no specific rule here permitting seniority to be counted in respect of a roster promotion. In second Ajit Singh Januja's case, supra, a circular which gave seniority to the roster point promotes was held to be violative of Articles 14 and 16. In Virpal Singh Chauhan's case, supra, which was later decided, this Court used the words "it is SUNITA 2026.05.05 17:41:44 DUTT +05'30' 21 OA No.1407/2017 open to the State" and it gave an impression that the State could give seniority to roster point promotes. But in first Ajit Singh's case, supra, this aspect has since been clarified. It was held that Seniority Rules like Rules 2(c), 4 and 4-A permitting seniority to be counted from date of initial promotion, govern normal promotions made according to rules --by seniority at basic level, by seniority-cum-fitness or by seniority-cum-merit or by selection -- but not to promotions made by way of roster. The roster promotions were, it was held, meant only for the limited purpose of due representation of backward classes at various levels of service. If the rules are to be interpreted in a manner conferring seniority to the roster point promotes, -- who have not gone through the normal channel where basic seniority or selection process is involved, --then the rules, it was held will be ultra vires of Article 14 and Article 16 of the Constitution of India. Article 16(4-A) cannot also help. Such seniority, if given, would amount to treating unequal's equally, rather, more than equals."
7.10 85th & 86th Amendment to Constitution (2001) to bring consequential seniority to any class in promotion The Constitution (Eighty-fifth Amendment) Act, 2001 was enacted to come into effect retrospectively from 17th June, 1995. Vide these amendments Article 16 (4A) was further amended in the following manner:
"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."
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 22 OA No.1407/2017 The purpose of the amendment was to enable the grant of consequential seniority to reserved categories promotees. The significance of the date on which the eighty-fifth amendment came into force - 17 June 1995 - is that it coincides with the coming into force of the seventy-seventh amendment which enabled reservations in promotions to be made for the SCs and STs.
7.10.1 A further amendment was made to Article 16 of the Constitution of India, by insertion of Article 16(4-B) by the Constitution (Eighty-first Amendment) Act, 2000. Article 16(4- B) reads as under: -
"(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 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."
16 (4-B) was introduced to rationalise the 50% ceiling. This ceiling will be applicable to a particular year of vacancy, but excluding the carry over vacancies. But all these are subject to overall ceiling of 50% of the cadre.
7.10.2 Effect on catch-up Rule- Inapplicable in view of the Constitutional amendment SUNITA 2026.05.05 17:41:44 DUTT +05'30' 23 OA No.1407/2017 The above constitutional amendment made the catch-up rule propounded in Ajit Singh II inapplicable. The earlier decision of this Court in Badappanavar had held that there was no specific rule for the conferment of seniority to roster point promotes. By the enactment of the Reservation Act 2002 w.e.f. 17th June, 1995, the principle of consequential seniority was statutorily incorporated as a legislative mandate by the State of Karnataka.
7.11 Validity of 85th and 86thAmendment to Constitution:
The M. Nagraj Case, 19 October, 2006 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 M. Nagaraj & Others vs. Union of India & Others which was decided on 19 October, 2006, 2006 (8) SCC 212. The Constitution Bench analysed whether the replacement of the catch-up rule with consequential seniority violated the basic structure and equality principle under the Constitution. Upholding the constitutional validity of the amendments, the Apex 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 (4A) was held not to violate the basic features of the Constitution:
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 24 OA No.1407/2017 ―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.
7.11.1 The Constitution Bench held that Article 16 (4A) 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 affected.
7.11.2 The principles governing this approach emerge from the following extracts from the decision:
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...
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 25 OA No.1407/2017 ... 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 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:
―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 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 (4A). 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 SUNITA 2026.05.05 17:41:44 DUTT +05'30' 26 OA No.1407/2017 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.
Conclusion The impugned constitutional amendments by which Articles 16(4A) and 16(4B) 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 OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in- built concept of replacement as held in R.K. Sabharwal. 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. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 SC/ST in matter 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 of 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. M.Nagaraj & Others vs. Union of India & Others. Subject to above, we uphold 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.
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 27 OA No.1407/2017 7.12 Does the catch-up Rule remain intact in M. Nagaraj Case?
The M.Nagaraj (supra) upheld the constitutional validity of the 85th and 86th amendments. Hence, it upheld the constitutional amendment allowing consequential seniority to the promotees. It 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 (4A) was held not to violate the basic features of the Constitution.
7.12.1 The principle postulated in M.Nagaraj (supra) is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being true, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs SUNITA 2026.05.05 17:41:44 DUTT +05'30' 28 OA No.1407/2017 7.13 A bunch of petitions were filed in the Apex court {S. Panneer Selvam & Ors. Vs. Govt. of T. Nadu & Ors on Civil Appeal Nos. 6631-6632 of 2015 decided on 27 August, 2015} seeking to grant benefit of catch-up Rule in absence of policy decision taken by the Statutory Rules framed pursuant to the enabling provisions of Article 16 (4A) of the Constitution of India. The issue framed in those petitions was:
(i) In the absence of policy decision taken by the State/rules framed pursuant to the enabling provision of Article 16 (4A) of the Constitution of India whether a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidate in the feeder category can claim consequential seniority in the promotional post.
The Apex Court in its decision dated 27.08.2015 (Panneer Selvam case) held:
"35. In the absence of any provision for consequential seniority in the rules, the 'catch up rule' will be applicable and the roster-point reserved category promotes cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16 (4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotes and the judgment of the Division Bench cannot be sustained."
In other words, consequential benefit applies when the exercise directed in M. Nagaraj etc. are completed. Till then, catch-up rule applies. The Apex Court in Jarnail Singh & others further deliberated the modalities to SUNITA 2026.05.05 17:41:44 DUTT +05'30' 29 OA No.1407/2017 frame such policy/Rules based on quantifiable data to the extent of representation of backward classes in any cadre. 7.14 Striking down Sections 3 & 4 of the Karnataka Reservation Act, 2002 (B.K. Pavitra -I Judgment) In B.K.Pavitra I,[B.K.Pavitra & Ors. Vs. Union Of India & Ors., 2017 (4) SCC 620,] a two judge Bench of this Court considered a challenge to 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 providing for consequential seniority on the ground that the exercise which was required to be carried out in M.Nagaraj (supra) had not been undertaken by the State and there was no provision for the exclusion of the creamy layer. Analysing the judgement, the Apex Court in Jarnail Singh (supra) judgment observed that:
"Relying on the decisions of this Court in Suraj Bhan Meena v State of Rajasthan43, Uttar Pradesh Power Corporation Ltd v Rajesh Kumar44 and S Panneer Selvam v State of Tamil Nadu (―Panneer Selvam ), a two judge Bench of this Court affirmed that the exercise laid down in Nagaraj for determining ―inadequacy of representation , ―backwardness and ―overall efficiency is necessary for recourse to the enabling power under Article 16 (4A) 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 (4A). Hence, the directions laid down by this Court in Nagaraj were not followed. Striking down Sections 3 and 4 of the Reservation Act 2002, this Court held thus: ―29. It is clear from the above discussion in S. Panneer Selvam case 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 SUNITA 2026.05.05 17:41:44 DUTT +05'30' 30 OA No.1407/2017 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 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. ‚46 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."
7.15 Ratna Prabha Committee by Government of Karnataka, THE RESERVATION ACT 2018, AND B.K. PAVITRA -II (20 After the decision of this Court in B.K.Pavitra I, on 22 March 2017, the Government of Karnataka constituted the Ratna Prabha Committee headed by the Additional Chief Secretary to the State of Karnataka to submit a report on the backwardness and inadequacy of representation of SCs and STs in the State Civil Services and the impact of reservation on overall administrative efficiency in the State of Karnataka. The tasks entrusted to the Committee were to: ― SUNITA 2026.05.05 17:41:44 DUTT +05'30' 31 OA No.1407/2017
1) Collect information on the cadre-wise representation of Scheduled Castes and Scheduled Tribes in all the Government Departments;
2) Collect information regarding backwardness of Scheduled Castes and Scheduled Tribes; and
3) Study the effect on the administration due to the provision of reservation in promotion to the Scheduled Castes and Scheduled Tribes.
7.15.1 On the basis of the Ratna Prabha Committee report, the Government of Karnataka introduced the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Bill 2017. The Bill was passed by the Legislative Ratna Prabha Committee report PART B Assembly on 17 November 2017 and by the Legislative Council on 23 November 2017. On 16 December 2017, the Governor of the Karnataka reserved the Bill for the consideration of the President of India under Article 200 of the Constitution. The Bill received the assent of the President on 14 June 2018 and was published in the official Gazette on 23 June 2018. 7.15.2 The proceedings in B.K. Pavitra vs. Union of India, 2019 SC 275, (B.K. Pavitra-II) were instituted to assail the vires of the Reservation Act 2018. It was held that:
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 32 OA No.1407/2017 "144. 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 I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the deficiency which was noticed by B K Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature. It is Nagaraj and Jarnail compliant. The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution."
7.16 Jarnail Singh vs. Lachhmi Narain Gupta The issue regarding collection of quantifiable data to determine inadequate representation of SCs and STs in Government service was agitated by various petitioners in the Apex Court in State of Tripura & Ors. v. Jayanta Chakraborty & Ors. State of Maharashtra & Anr. v. Vijay Ghogre & Ors., and Jarnail Singh & Ors. v. Lachhmi Narain Gupta &Ors (Jarnail Singh-I). The Apex Court rejected the remaining grounds of challenge to the decision in M. Nagaraj (supra) and reiterated that the State has to collect quantifiable data regarding inadequate representation of SCs and STs in the services of the State, if reservation is sought to be provided in promotions.
7.16. In the meanwhile, several petitions were filed in various High Courts challenging reservation in promotions provided by the Central Government and the State Governments to SCs and STs. The decisions of High Courts were challenged SUNITA 2026.05.05 17:41:44 DUTT +05'30' 33 OA No.1407/2017 in the Apex Court. In view of the broad similarities in the issues involved, the Apex Court tagged all cases together in Jarnail Singh vs. Lachhmi Narain Gupta, Civil Appeal No. 629 of 2022). On 18.01.2021, a direction was given to the Advocates-on-Record appearing for each State to submit a note to the learned Attorney General for India, identifying the issues involved in their respective cases. The learned Attorney General of India was requested to hold a conference with the counsel appearing in the matters to finalise the issues for determination and a list of issues with reference to each State was directed to be prepared thereafter. A note was submitted by the learned Attorney General formulating the following issues:
1) What is the yardstick by which, according to M. Nagaraj (supra), one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment?
2) What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected?
3) Whether proportion of the population of SCs and STs to the population of India should be taken to be the test for determining adequacy of representation in promotional posts for the purposes of Article 16(4-A)?
4) Should there be a time period for reviewing inadequacy of representation?
5) Whether the judgment in M. Nagaraj (supra) can be said to operate prospectively?
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 34 OA No.1407/2017
6) Whether quantifiable data showing inadequacy of representation can be collected on the basis of sampling methods, as held by this Court in B.K. Pavitra & Ors. v. Union of India & Ors. ("B.K. Pavitra II")(supra).
8. The findings of the Apex Court in respect of all the issues are as follows:
"1) YARDSTICK FOR ARRIVING AT QUANTIFIABLE DATA 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 (supra) and Jarnail Singh (supra) to leave it to the States to fix the criteria for determining inadequacy of representation.
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.
2) UNIT FOR COLLECTING QUANTIFIABLE DATA Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or 'class'/'group' but it should be relatable to the grade/category of posts to which promotion is sought. SUNITA 2026.05.05 17:41:44 DUTT +05'30' 35 OA No.1407/2017 Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service.
3) PROPORTIONATE REPRESENTATION AS TEST OF ADEQUACY In R.K.Sabharwal (supra), it was observed that State Governments may take the total population of a particular Backward Class and its representation in the State services for the purpose of coming to a conclusion that there is inadequate representation in the State services. In M. Nagaraj (supra), the Apex Court was of the considered view that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case.
Therefore, the Apex Court did not express any opinion on this aspect. It was held that it is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors.
4) TIME PERIOD FOR REVIEW SUNITA 2026.05.05 17:41:44 DUTT +05'30' 36 OA No.1407/2017 There was near unanimity amongst the counsel for both sides that the data collected to establish inadequacy of representation, which forms the basis for providing reservation in promotions, should be reviewed periodically. The Apex Court held:
"We are not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive. As regards review, we are of the opinion that data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically. The period for review should be reasonable and is left to the Government to set out."
5) PROSPECTIVE OPERATION OF THE JUDGMENT IN M. NAGARAJ (SUPRA) "32. While holding that Article 16(4-A) does not provide for reservation in matters of promotion, this Court in Indra Sawhney (supra) saved the promotions that were already made. It was made clear that the judgment shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. Already-existing provisions made for reservation in promotions in Central or State services were permitted to continue to operate for a period of five years from the date of the judgment in Indra Sawhney (supra).
....
There cannot be any manner of doubt that this Court can apply its decision prospectively, i.e., from the date of its judgment to save past transactions.
....
As making the principles laid down in M. Nagaraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M. Nagaraj (supra) should be declared to have prospective effect."
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 37 OA No.1407/2017 "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)."
6) QUANTIFIABLE DATA AND SAMPLING METHOD 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. 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). 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)."
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).
8.1 Hence, by the interim order dated 28.1.2022, the Apex court in Jarnail Singh case (Paragraph 47) has categorically stated that states should justify reservation in promotion with respect to the cadre SUNITA 2026.05.05 17:41:44 DUTT +05'30' 38 OA No.1407/2017 to which promotion is made. Rosters are prepared cadre wise not group-wise. For the purpose of collection of quantifiable data to assess representation of SC's and STs for the purpose of providing reservation in promotions, Cadre, which [part of group is the unit and the data has to be collected in respect of each cadre.
9) Conclusion of the Analysis of the Apex Court judgments regarding Reservation in Promotions The Jarnail Singh-II (supra) judgment has not overruled the S. Paneer Selvam decision of the Apex Court. This case was never discussed; the catch-up rule was not an issue. The detailed modalities for effective decision in M. Nagaraj (supra) was expressed. Hence, regarding catch-up Rule, the decision of the Apex Court in Paneer Selvan (supra) prevails. 9.1 We now analyse the case at hand in context of the aforementioned analytical background concerning reservation in promotions and the related issues.
10. Limitation 10.1 The present OA suffers from the vice of limitation. It also suffers from delay and laches. The cause of action arose in 2002, when the applicants and the private respondents Nos. 5,6, & 7 were promoted as Superintendents based on alleged reservation in promotion. The applicants filed MA No. 1544/2017. The MA was dismissed on 31.08.2018 as not pressed by learned counsel for the applicants. Hence, the issue of delay remained open.
SUNITA 2026.05.05 17:41:44 DUTT +05'30' 39 OA No.1407/2017 10.2 The applicants were well aware of the promotions of Inspectors to the rank of Superintendents which took place in the year 2002. They were supposed to be aware of law prevalent during that time including the Apex Court judgment in Indra Sawhney (supra) in 1992, the 77th Constitutional Amendment incorporating provision for reservation in Promotion on 17 June 1995, the Apex Court decision regarding operation of Roster (R.K. Sabharwal v State of Punjab, 10.2.1995), the Catch-up Rule in Union of India v Virpal Singh Chauhan (10.10.1995), and the judgment of the Apex Court that conferment of seniority to roster point promotees could not be given if no rule exists (M.G. Badappanavar And Another vs State Of Karnataka And Others on 1 December, 2000). Despite such decisions by the Apex Court, the applicants remained silent and did not approach the respondents nor the court of law to agitate regarding their grievances arising out of alleged reservation in promotion of Superintendents which occurred in 2002.
Subsequently, the Apex Court has upheld the validity of 85th and 86th amendments to the Constitution (M. Nagaraj Case (supra) to bring consequential seniority to any class in promotion.
10.3 In the instant case, the applicants are seeking relief in the form of direction to the respondents to fix applying the SUNITA 2026.05.05 17:41:44 DUTT +05'30' 40 OA No.1407/2017 catch-up Rule. The presumption by the applicant is that ,as the respondents have not brought out any quantifiable data in the respective cadre of Inspectors and Superintendents as per the Jarnail Singh -II (supra) judgment by the Apex Court, the Catch-up Rule as enunciated in S. Panneer Selvam (Supra) and B.K Pavitra -I (supra) applies in favour of the present applicants.
10.4 But in most of the Apex Court judgments, the past promotions and seniority have been protected. The Apex court judgment came in 2006. The applicants first moved to the respondents in the year 2014, i.e., 12 years after the cause of action arose in 2002.
This is a matter regarding promotion and consequently correction in seniority. Such matters are attracted by the doctrine of delay and latches. With the flux of time, when such old matters are reopened, it opens the Pandora box. We are of the considered opinion that the present OA is liable to be dismissed only on grounds of delay and latches.
11. Other legal issues 11.1 The OA also suffers from the fact that the applicants have not impugned the promotion order of 2002. When they challenge the alleged reservation in promotion which took place in 2002, it was the legal obligation on the part of the SUNITA 2026.05.05 17:41:44 DUTT +05'30' 41 OA No.1407/2017 applicants to impugn such order. By not impugning such order and attempting to apply M. Nagaraj judgment of 2006 retrospectively to the promotions made in 2002, an attempt has been made to conceal the material facts of the case. 11.2 The present OA seeks to apply M. Nagaraj decision (supra) retrospectively to promotions already held in 2002. The Apex Court in such cases had declined to interfere with promotions which had taken place in the past. In view of this, the promotions already made in 2002 are protected by subsequent catena of judgments by the Apex Court. Accordingly, the present OA also lacks merit.
12. Conclusion 12.1 The present OA is dismissed on account of limitation, non-impugning of promotion order dated 23.09.2002, concealment of material facts by such non-impugnment, as well as on ground that it lacks merit.
13. No order as to costs.
14. All pending MAs, if any, are disposed of accordingly.
(Rajveer Singh Verma) (Dr. Chhabilendra Roul)
Member (J) Member (A)
'SD'
SUNITA 2026.05.05
17:41:44
DUTT +05'30'