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4. There would be no need to make mention of the detailed pleadings as made in the Original Application, as the most part of the Application deals with the legal position as envisaged by judicial precedents on the issue, which, in any case, would be referred to by us hereinafter. All that we may mention on facts is that the applicant no.2, Jagmohan Singh, was appointed as clerk in the Ministry of Railways on 16.6.1972, whereas, Vijay Laxmi, Veena Rani, Mohan Lal Meena, S. N. Raut and Pyare Lal joined much later, i.e., on 13.8.1976, 30.9.1974, 19.3.1980, 16.2.1976 and 20.2.1978 respectively. They all belong to SC/ST categories. They have been further promoted on the posts of senior clerk, head clerks, OS-II and OS-1 under the policy of reservation prior to 17.6.1995, and also prior to promotion of the applicant no.2. The said employees were allowed benefit of consequential seniority from the date of earlier promotion on reserved posts. Applicant no.3, Rajendra Kumar Bhatnagar, joined the railways as clerk on 1.6.1974, whereas Ratan Lal, Rati Ram and Suraj Mal Meena, who belong to SC/ST categories, joined service on 18.5.1975, 16.11.1975 and 8.4.1982. They have been further promoted as senior clerk, head clerk, OS-II, OS-I and COS prior to the promotion of the 3rd applicant and also prior to 17.6.1995. They have been allowed consequential seniority from the date of promotion on reserved posts and given further promotion on the basis of accelerated seniority. The grievance of the applicants is that the bifurcation made by the railways, as stated above, is not in consonance with the constitutional scheme and the judgment of the Honble Supreme Court has not been properly implemented. It is urged that the entire basis of the interpretation taken by the railways is based on an erroneous interpretation of the judgment of the Honble Supreme Court in Virpal Singh Chauhan (supra). It is also the case of the applicants that the judgment of the Honble Supreme Court in Indra Sawhney v Union of India [1992 Supp (3) SCC 217] is a good law, and inasmuch as, it has been held in the said judgment that the power to make reservation in promotion cannot be traced to Article 16(4), or in other words, Article 16(4) does not permit reservation in promotion, all promotions given to reserved category candidates prior to 17.6.1995 ought to be treated as ad hoc in terms of the judgment in Ajit Singh v State of Punjab [(1999) 7 SCC 209]. The promotees, it is urged, would not be entitled to the additional benefit of seniority on the basis of such promotions against reserved post on the roster. The period prior to 17.6.1995 is before the Seventy-seventh Constitution Amendment. It is the case of the applicants that the Seventy-seventh amendment brought about a new regime of empowering the State to provide for reservation in promotions for the first time, and, therefore, promotions in reservations prior to the said period ought to be considered as promotions individually made, and such additional benefit of accelerated seniority could not be given to such employees. Insofar as, the period from 17.6.1995 to 8.3.2002 is concerned, the plea of the applicants is that during the said period, though the power subsisted (in view of the retrospective amendment by the 85th Constitution Amendment), the power being an enabling power was never exercised and, therefore, even where promotions are made during the said period, consequential seniority cannot be conferred. It is the case of the applicants that letter dated 8.3.2002 cannot be permitted to operate retrospectively from 17.6.1995 so as to confer the benefit retrospectively, and in any case, since the 77th Constitution Amendment as well as the 85th Constitution Amendment have been upheld by the Honble Supreme Court in the case of M. Nagaraj (supra) subject to conditions laid down therein, unless the State can show existence of compelling reasons, i.e., backwardness and inadequacy of representation, the enabling power cannot be exercised and that too, retrospectively. It is the case of the applicants that the letter dated 8.3.2002 is without complying with the conditions laid down in M. Nagarajs case and, therefore, the said order cannot be sustained. Insofar as, the period after 8.3.2002 is concerned, it is the case of the applicants that the conditions precedent for applicability of accelerated promotion, which has been held to be intra vires, have not been complied with, and, therefore, accelerated promotion cannot be conferred upon the reserved category candidates.

6. We may now make mention of the respective replies filed by the respondents and rejoinders of the applicant, insofar as they may be relevant to comment and adjudicate upon the controversy involved in the case. We are not making an elaborate mention of the pleadings in the replies and rejoinders inasmuch as, the issues raised in this case are purely legal and, be it the applicants or the respondents, while making their respective contentions, the learned counsel representing them have by and large relied upon the instructions issued from time to time and judicial precedents touching upon the issues involved in the case. The first reply available on records is filed by respondents 1 to 6. By way of preliminary objections, it is pleaded that the applicants have challenged Railway Boards circulars referred to above, which were issued by the Board regarding revision/assignment of seniority of Government servants by applying the 85th Constitution Amendment and judgments of the Honble Supreme Court in that regard. As per the 85th Constitution Amendment, it is pleaded, the seniority of SC/ST railway servants is to be determined from the date of entry into the grade, however, in regard to the seniority in non-selection posts, seniority is being determined on the basis of Boards instructions contained in its letter dated 6.5.2005. It has been averred that in the matter of Union of India v Pushpa Rani [(2008) 9 SCC 42], the Honble Supreme Court has upheld the validity of reservation in the cadre restructuring. In view of the averments as stated above, it is pleaded that the OA needs outright dismissal. It is then pleaded that no cause of action has accrued in favour of the applicants and the OA is totally devoid of merits, and that the OA is misconceived and not maintainable under law. While giving reply on merits, it has been reiterated that the impugned circulars have been issued by applying the 85th Constitution Amendment and the judgments of the Honble Supreme Court in that behalf. The 85th Constitution Amendment Act, 2001, it is pleaded, would require seniority of SC/ST railway servants to be determined from the date of entry into the grade. However, seniority in the non-selection posts is being determined on the basis of Boards instructions contained in letter dated 6.5.2005. It is denied that the applicants have a common cause of action. The applicants, it is stated, have no common grievance. The judgment of the Honble Supreme Court in Virpal Singh Chauhan (supra), it is stated, would not be applicable after the 85th Constitution Amendment. It is then pleaded that the position was reviewed subsequent to the judgment of the Honble Supreme Court in Virpal Singh Chauhan, and it was decided vide DOP&T OM dated 30.1.1997 to modify the existing policy by addition of the proviso to general principle 5(i) contained in MHA (now DOP&T) OM dated 22.12.1959 and para 2.2 in DOP&T OM dated 3.7.1986, which stipulated that if an employee belonging to the SC or ST is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/OBC employee who is promoted later to the said immediate higher post/grade, the general/OBC employee would regain his seniority, over such earlier promoted employee of SC/ST in immediate higher post/grade. It is, however, further stated that the Government has now decided to negate the effect of DOP&T OM dated 30.1.1997 by amending Article 16(4A) of the Constitution right from the date of its inclusion in the Constitution, i.e., 17.6.1995, with a view that Government servants belonging to SC/ST would maintain their seniority in case of promotion by virtue of rule of reservation. In other words, the employees belonging to general/OBC categories promoted later will be placed junior to SC/ST employees promoted earlier, even though by virtue of rule of reservation. Therefore, in pursuance of the 85th Amendment, it has been decided as follows:

(v) Except seniority other consequential benefits like promotion, pay etc. (including retiral benefits in respect of those who have already retired allowed to general/OBC govt. servants by virtue of O.M. dated 30.01.1997 and/or in pursuance of the directions of CAT/Court should be protected as personal to them.

(vi) All Ministries/Departments are requested to bring the above decision to the notice of all concerned for guidance and compliance. Necessary action to implement the decisions contained in para 4(iii) above may be completed within three months from the date of issue of these instructions and necessary action to implement the decision at para (iv) above may be completed within 6 months from the date of issue of these instructions. It is pleaded that para 3(iii) of the letter dated 8.3.2002would indicate that since the earlier instructions issued pursuant to the judgment of the Honble Supreme Court in Virpal Singh Chauhan (supra) as incorporated in para 319A of IREM Vol.I were effective from 10.2.1995 and the revised instructions issued pursuant to the 85th Constitutional Amendment were being made effective from 17.6.1995, the question as to how the cases falling between 10.2.1995 and 16.6.1995 should be regulated was under consideration in consultation with DOP&T, and that separate instructions in that regard would be issued. The matter has since been considered and it has been decided vide Boards letter dated 13.1.2005 that since the 85th Amendment Act, 2001 has been made effective from 17.6.1995, promotions, if any, or railway servants which had taken place during the period from 10.2.1995 to 16.6.1995 as per the principle of regaining seniority by general/OBC staff in terms of procedure in force at that point of time in implementation of Honble Supreme Courts judgment in R.K. Sabharwal (supra) and Virpal Singh Chauhan (supra) vide Railway Boards letter dated 28.2.1997 and 15.5.1998 may be protected as personal to them. Accordingly, the existing para-3 (iii) of Railway Boards letter dated 08.03.2002 has been substituted, of which we have already made a mention hereinbefore. All orders passed by the Tribunal regarding seniority dispute, it is stated, have been superseded by the 85th Constitutional Amendment. However, seniority determined and promotions effected in between the period 10.2.1995 and 16.6.1995 (both days inclusive) in terms of para 319A IREM in force during the said period, would be protected as personal to the incumbents as per Boards letter dated 13.1.2005. It is denied that instructions have been issued by the Board that staff of general category who were promoted between 10.2.1995 and 16.6.1995 would regain their seniority over SC/ST employees who were promoted earlier. The applicant has filed rejoinder to the written statement filed on behalf of respondents 1 to 6.

15. The question raised by learned ASG being a sort of preliminary objection, we may deal with the same in the first instance before we may advert to the main controversy as regards fulfilling the conditions subject to which alone the challenged provisions of the Constitution before the Honble Supreme Court in M.Nagarajs case(supra) were protected.

16. The question raised by learned ASG, as mentioned above, has been canvassed on the basis of judicial precedents and provisions of Articles 341 and 342 of the Constitution of India. Before we may, however, refer to the same, it would be appropriate to find out as to what were the issues that came to be framed by the Honble Supreme Court in M.Nagrajs case, and what decision has been rendered on the said issues. In a writ that came to be filed in Honble Supreme Court seeking to quash the Constitution (85th Amendment) Act, 2001 inserting Article 16(4A) retrospectively from 17.06.1995 providing for reservation in promotion with consequential seniority as being unconstitutional and violative of basic structure, one of the arguments raised in challenging the said amendment was that it seeks to alter the fundamental right of equality which is a part of basic structure of the Constitution. It was urged that equality in the context of Article 16(1) connotes accelerated promotion which was not to include consequential seniority, and thereby attaching of consequential seniority to accelerated promotion would violate the equality in Article 14 read with Article 16(1) of the Constitution. It was also urged that the same would impair efficiency. The challenge was also to Constitution (77th Amendment) Act, 1995. It was urged that if accelerated seniority is given to the roster point promotees, the consequences would be disastrous. 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.