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20 In 2002, the Karnataka State Legislature enacted the Reservation Act 2002. The law came into force on 17 June 1995. It provided for consequential seniority to roster point promotees based on the length of service in a cadre, making 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 promotees. By the enactment of the Reservation Act 2002 with effect from 17 June 1995, the principle of consequential seniority was statutorily incorporated as a legislative mandate. 21 The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted in pursuance of those amendments PART B was challenged before a Constitution Bench of this Court in Nagaraj. 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, 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 (4A) was held not to violate the basic features of the Constitution:

―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 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 (2011) 1 SCC 467 (2012) 7 SCC 1 (2015) 10 SCC 292 PART B 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.
(i) Creamy layer as a concept can be applied only at the entry level or at appointment and has no application while granting reservations in promotion and allowing for consequential seniority. The Reservation Act 2018 provides only for consequential seniority and the extent of reservation granted to SCs and STs at the entry level/ in appointment is not under challenge;
(ii) Even assuming that the concept of creamy layer can be applied at the stage of promotion, it is inapplicable to the conferment of consequential seniority. Consequential seniority is not an additional benefit but a consequence of promotion;

(iv) The decision in Virpal Singh concerned a rule that specifically provided for the application of the catch-up rule in a departure from the normal rule of seniority. This Court held that a state may prescribe either consequential seniority based on continuous officiation or the catch-up rule of seniority in case of roster point promotions. A harmonious reading of Articles 14 and 16(1) of the Constitution does not stipulate that the catch-up rule must apply in the case of roster point promotions. Thus, a balancing of Articles 14, 16(1) and 16(4) of the Constitution denotes that the catch-up rule is not mandatory. The decisions of this Court in Ajit Singh I, Ajit Singh II and Badappanavar, in holding to the contrary, have been expressly overruled by the seventy-seventh and the eighty-fifth amendments to the Constitution, following which the principles enunciated in Virpal Singh continue to govern the field. The eighty-fifth amendment was intended to make consequential seniority a constitutional principle and revive consequential seniority as the normal rule of seniority;