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(e) 85th Constitutional amendment :-

The government felt that government servants belonging to the Scheduled Caste and Scheduled Tribe who had been enjoying the benefit of consequential seniority on their promotion on the basis of Rule of Reservation had received a jolt by the judgment of the Hon'ble Supreme Court in Virpal Singh Chauhan (supra). The government reviewed the position in the light of the views received from the various quarters and in order to protect the interest of the government servants belonging to Scheduled Caste and Scheduled Tribe it decided to bring an amendment to Article 16(4A) of the Constitution of India to provide for consequential seniority in the case of promotion by virtue of Rule of Reservation. It also decided to give retrospective effect to the Constitutional amendment introduced to Article 16(4A) from the date of coming into force of Article 16(4A) itself i.e. from the 17th day of June, 1995. The amended Article 16 (4A) by virtue of the Constitutional 85th Amendment Act 2001 reads as follows :-

d) There is no observation in M. Nagaraj that the pre- condition mandated for providing reservation in promotion and consequential seniority while upholding 85th amendment would apply only prospectively. Therefore, applying the above ratio laid down by the Hon'ble Supreme Court, we have no hesitation to hold that the mandates in the shape of rider contemplated in M. Nagaraj (supra) will take effect from 17.6.1995, the date on which 85th amendment was supposed to take effect.

even after 17.6.1995 as M. Nagaraj has retrospective application.

b)We are in full agreement with the submissions made on the side of the contesting respondents. We have already held relying upon the decision in M.A. Murthy and Laxmi Devi that the ruling in M. Nagaraj will apply retrospectively. In other words, the amendment introduced vide 85th amendment to Article 16(4A) of the Constitution will apply with the above rider in M. Nagaraj from the date when 85th amendment was supposed to have come into force. Therefore, the contesting respondents are entitled to enjoy the concept of "Catch up Rule" evolved by the judiciary. But we make it clear that the above "Catch up Rule" will have no application to the employees belonging to Scheduled Caste and Scheduled Tribe category who have been promoted on their own merit/seniority sans any concession granted to them.

b) M.Nagaraj was pronounced by the Hon'ble Supreme Court on 19.10.2006. The 85th amendment which was upheld in M. Nagaraj, of course, with a rider, has taken effect from 17.6.1995, the date on which 85th amendment was supposed to take effect. The parliament in its wisdom has introduced a provision in Article 16(4A) to grant reservation in promotion with consequential seniority to the Scheduled Caste and Scheduled Tribe category employees, if in the opinion of the State they have not been adequately represented. The Courts have interpreted that quantifiable data to reflect the inadequacy of representation of the employees of Scheduled Caste and Scheduled Tribe should be collected by the State before venturing into the affirmative action in terms of Article 16(4A) of the Constitution. It is really paining to note that the employees of the Scheduled Caste and Scheduled Tribe, who have been given such a Constitutional protection under Article 16(4A) have been compelled to approach the Courts to give effect to the Constitutional provision introduced by 85th amendment. On the other hand, General Category employees taking advantage of the fact that the State is reluctant to take required efforts to comply with the mandates in M. Nagaraj institute number of cases before the Court of law. In the unequal fight, the Scheduled Caste and Scheduled Tribe employees have suffered very much. In spite of such a Constitutional provision introduced to grant benefit to the socially, economically, culturally and educationally disadvantaged sections of the society, they could not enjoy the fruits thereof.