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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"

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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. ...

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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 // 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"