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12. Shri S.N. Bhat, learned counsel for the private respondents supported the impugned judgment and submitted that the Government was not required to carry out the exercise of finding out ‘backwardness’, ‘inadequacy of representation’ and ‘overall administrative efficiency’ for providing consequential seniority to officers on the basis of reservation. The said exercise was required to be carried out only for providing reservation in promotion. Reservation in promotion was permissible only upto Class I posts in Karnataka. Moreover, inter se seniority of reserved category and general category candidates promoted together was not disturbed. The roster points ensured that there was no excessive representation in different cadres of service. In view of Government Order dated 3rd February, 1999 there was enough data available to justify continuance of provision for consequential seniority under the impugned Act. Data collected by the Department of Statistics with regard to overall representation of SCs and STs as on 31st March, 2002 showed that the representation of SCs and STs was not above 15% and 3% respectively. Section 4 of the Act only protected consequential seniority which was already given. Promotions already effected cannot be disturbed.

13. Reference may now be made to the impugned Act. The preamble of the Act refers to policy of reservation in promotion in favour of Government servants belonging to SCs and STs in terms of order dated 27th April, 1978. Para 7 of the said order stipulates that inter se seniority amongst persons promoted in accordance with the said order has to be determined in the manner provided under Rule 4 or Rule 4A of the 1957 Rules. There is further reference to the judgment of this Court in Badappanavar (supra) to the effect that there was no specific rule permitting seniority to be counted for persons promoted against a reserved roster point. It further refers to the Constitution (85th Amendment) Act, 2001 permitting consequential seniority in the case of promotion on the basis of reservation. It states that to remove any ambiguity and to clarify that government servants belonging to SCs and STs promoted in accordance with the reservation in promotion shall be entitled to seniority as it is available to government servants belonging to other categories. Section 3 of the impugned Act provides that government servants belonging to SCs and STs promoted in accordance with the policy reservation in promotion shall be entitled to consequential seniority on the basis of length of service in a cadre. Proviso to the said section to the effect that inter se seniority of government servants belonging to SCs/STs and those belonging to unreserved category promoted at the same time by a common order shall be on the basis of inter se seniority in the lower cadre. Section 4 provides for protection of consequential seniority already accorded from 27th April, 1978. Since Sections 3 and 4 are the key sections, the same are reproduced below :

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122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

22. Question of application of principles laid down in M. Nagaraj (supra) for judging the exercise of enabling power of granting consequential seniority and promotion was raised in Suraj Bhan Meena (supra). Therein challenge was to the validity of notification dated 25th August, 2008 issued by the State Government of Rajasthan under proviso to Article 309 of the Constitution, amending the service rules in the State of Rajasthan w.e.f. 28th December, 2002. The notification purported to give consequential seniority to candidates belonging to SCs and STs who got roster point promotions. The challenge to the notification was that without quantifying figures of SCs and STs or showing compelling reasons such as ‘backwardness’, ‘inadequacy of representation’ and ‘overall administrative efficiency’ as laid down in M. Nagaraj (supra) the grant of consequential seniority was not permissible. The High Court quashed the notification providing for consequential seniority on the ground that no exercise had been undertaken in terms of Article 16(4A) to acquire quantifiable data regarding inadequacy of representation to SCs and STs in public service and to assess whether such reservation was necessary. This was upheld by this Court as under :

27. In S. Panneer Selvam v. State of Tamil Nadu[18], question before the Court was whether in absence of any policy decision by the State for giving consequential seniority to candidates promoted on the basis of reservation prior to a senior general category candidate, claim for consequential seniority could be accepted. Answering the question in the negative, it was held that in absence of provision for consequential seniority, ‘catch up’ rule will be applicable and the roster point promotees cannot claim such consequential seniority. The senior general candidates will regain their seniority on being promoted. Observations relevant in this regard are as follows :