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12. The learned senior counsel for respondents 2 to 9, Mr Anupam Gupta submits in his opening sentence that seniority is not a constitutional issue. It cannot be elevated to the level of a constitutional value. The word 'seniority' was inserted for the first time in the Constitution by the (Eighty- Fifth Amendment) Act, 2001 inserting Article 16 (4A) in the Constitution retrospectively from June 17, 1995 to remove the base of the ruling of a Coram of 9 Hon'ble Judges of the Supreme Court in Indira Sawhney v. Union of India, AIR 1993 SC 477 delivered on 16th November 1992 holding that reservation in appointments or posts under Article 16 (4) were confined to initial appointments but not in matters of promotion. However, the Supreme Court gave a moratorium period of 5 years for the old system to continue after which the reservation apparatus in promotions was ordered to be disbanded for a new order to emerge. Parliament ordained otherwise by enacting The Constitution (Seventy-seventh Amendment) Act, 1995 providing for continued reservation in promotion to members of CWP No.21564 of 2012, CWP No.22211 of 2011, CWP No.20080 of 2012 and CWP No.7791 of 2012 the scheduled castes to tide over the boundary fixed in Indira Sawhney. The 85th Amendment introduced the words 'with consequential seniority' in newly introduced Article 16 (4A) to remove the basis of Ajit Singh I (1996) and Ajit Singh II (1999) cases.

(1) " The key issue which arises for determination is whether the above "catch-up" rule and the concept of "consequential seniority" are constitutional requirements of Article 16 and of equality, so as to be beyond the constitutional amendatory process. In other words, whether obliteration of the "catch-up" rule or insertion of the concept of "consequential seniority code", would violate the basic structure of the equality code enshrined in Articles 14, 15 and 16."

Then;

"...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 Article 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 the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the 'catch-up' rule nor the concept of 'consequential seniority' are implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan, [AIR 1996 SC 448]"

Then again;

CWP No.21564 of 2012, CWP No.22211 of 2011, CWP No.20080 of 2012 and CWP No.7791 of 2012 "...the concept of the 'catch-up' rule and 'consequential seniority' are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism etc. Obliteration of these concepts or insertion of these concepts do not change the equality code indicated by Articles 14, 15 and 16 of the Constitution."