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11. Mr. M. Venkatachalapathy, learned senior counsel, in support of his contention, placed strong reliance on the decision rgorted in Ashok Kumar Gupta and Another v. State of U. P. and Vidya Sagar Gupta and Others v. State of U. P. which was decided by three Hon'ble Judges of the Supreme Court. Learned Senior counsel submitted that the right of promotion is a fundamental right and that promotion of social justice is a fundamental right and equally economic empowerment is a fundamental right to the disadvantaged. The above case was one where different set of officers filed the Writ Petition challenging the promotion of the Respondents 2 to 10 therein have sought a Writ of Mandamus to restrain the State of U. P. from giving effect to the promotions given to the Respondents 2 to 10 and also sought a writ of certiorari to quash the orders dated March 12, 1981 appointing the 2nd respondent as Superintending Engineer on ad hoc basis and on regular basis w.e.f . April 10, 1991 as temporary Chief Engineer by order dated November 7, 1994 and orders promoting few others as Superintending Engineers. By proceedings dated March 8, 1973, the Government had provided percentage in reservation for Dalits and Tribes at 18% and 2% respectively in all services or posts to he filled in by promotion through process of selection either by direct recruitment or by competitive examination or limited departmental examinations. The said percentage has been increased to 21 % for Dalits and retained at 2 % for the Tribes under the U.P. Services (Reservation for Schedule Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 that came into force with effect from December 11, 1993. When the Respondents 2 to 10 were a considered and recruited as promotees from the cadre of Executive Engineer to that of Superintending Engineer and above cadres on the basis of merit, the appellant., before the Supreme Court came to challenge their appointments. It was contended in the High Court and reiterated by their learned counsel that in Indra Sawhney v. Union oflndia known as Mandal case eight of 50 the nine Judges, per majority held that appointment by promotion under Articles 16(1) and 16(4) of the Constitution is unconstitutional. They placed strong reliance on the judgment of Jeevan Reddy. I., speaking for three Judges and Sawant,J., for himself in that behalf. It was also contended that having declared the promotions under Articles 16(1) and 16(4) of the Constitution as unconstitutional, overruling the judgment of a Bench of five Judges of the Supreme Court in General Manager, Southern Railway, v. Rangachari (1970-II-LLJ-289) to the same being not correct in law. It was also urged that having declared the reservation in promotion as unconstitutional, it is void ab initio under Article 13(2) of the Constitution, and that the promotion made to Respondents 2 to 10 is at all levels, therefore, is unconstitutional. The operation of the unconstitutional direction cannot be postponed by prospective overruling of Rangachari ratio.

12. The question considered in Ashok Kumar Gupta v. State of U. P. (supra) was that die direction to operate the scheme of reservation in promotion for five years is inconsistent with and in derogation of the substantive right to equality guaranteed under Articles 14 and 16(1). Therefore, the Scheme is unconstitutional and that the prospective operation of Mandal case amounts tojudicial legislation and amounts to temporary amendment to the Constitution Or an addition in the form of a proviso to Article 16(1) or 16(4) of the Constitution. It was further contended that the exercise of Art. 142 to postpone the operation of the judgment after 5 years amounts to perpetration of void action and is voidable of the appellants' fundamental rights guaranteed under Articles 14 and 16(1) of the Constitution.

13. In the above case, the reservation in promotions in all the services or posts under the State of Uttar Pradesh was in vogue from March 1973. The legislature of U.P. reiterated the need for continuance of the reservation not only in direct recruitment but also its continuance, as mentioned in the U.P. Act, which came into force w.e.f. December 11, 1993. The judgment in Mandal case was delivered on November 16, 1992. All the promotions made prior to that date were held valid in Mandal case. The, impugned judgment of the High Court was rendered on August 4, 1993 while the Constitution (77th Amendment) Act of 1995 came into force on June 17, 1995. Thepromotions of the respondents came to he made between November 17, 1992 and December 11, 1993 ie., within five years of the directions in para 860 (8) in Mandal case and agreed to by other learned Judges. Therefore, it was contended that the promotions to and appointment of the private respondents is constitutional. The Supreme Court on a consideration of the above submissions made by both the parties held that the direction in Manm Case postponing the operation of the judgment of reservation in promotions for a period of five is years is a part of the scheme of judicial review eing an innovative device to meet out justice to the Dalits and Tribes giving breathing time to the executive to bring about suitable legislative measures, if they so desired and if no action was taken by amending the law, on expiry of five years, the Judgment in Manm case would become operative. Thereafter reservation in promotion would he unconstitutional which 1 invalidity was remedied . As already held, this being one of the tools of judicial craftsmanship adopted by exercising the power under Article 142, which is available only to Supreme Court, the directions given are not violative of rights under Article 14 read with Article 16(1), nor ultra vires the power nor void, not incom patible or inconsistent with the doctrine of equality enshrined under Article 14 read with Article 16(1) of the Constitution. On the other hand, the power was exercised by the Supreme Court under Article 142 read with Article 32 and the direction postponing the operation of the decision for a period of five years is a law of the land under Article 141. In the concluding portion, the Supreme Court held that the U.P. Act saves the existing policy of reservation in promotions, and the judgment in Mandal case saves the promotions already made, and even excess promotions remained undisturbed and the law became operative only from the date of the Judgment. Therefore, the Supreme Court held that promotions of the respondents are legal and valid and they do not become void or unconstitutional as contended by the appellants and dismissed the writ petition accordingly.