Document Fragment View

Matching Fragments

15. In view of the opposite stands taken in Jagdish Lal's case (supra) and in Ajit Singh-I's case (supra), the matters were referred to the Constitution Bench which approved the decision in Ajit Singh Januja's case (supra) and Virpal Singh Chauhan's case (supra), upon holding that the case of Jagdish Lal had not been correctly decided. As a result, the rule of "regain" and "catch-up" was explained as the correct interpretation of the rules. As mentioned hereinbefore, by enacting the Constitution (85th Amendment) Act, 2001, the Parliament constitutionally nullified the principle of "regain" and "catch-up" by enacting the Constitution (77th Amendment) Act, 1995 under its constituent power under Article 368 of the Constitution. It was sought to be urged by Dr. Krishan Singh Chauhan, learned Advocate, that the power which was existing in the Government to make provision for consequential seniority in promotion of reservation, which had been eclipsed on account of the decision of this Court in Virpal Singh Chauhan's case (supra), stood revived by the enactment of the Constitution (85th Amendment) Act, 2001, with retrospective effect.

21. Mr. Rao also submitted that the doctrine of eclipse, as urged on behalf of the Petitioners, was not applicable to the facts of the case since after over-ruling the decision in General Manager, Southern Railway Vs. Rangachari [(1962) 2 SCR 586], this Court had extended the life of the existing reservations for a period of five years. Accordingly, the Government Order dated 10.2.1975 survived the decision in Indra Sawhney's case (supra) and during the period of extension of five years, Parliament intervened and inserted Clause (4-A) in Article 16 empowering the State to continue reservations in promotions already made or to make such reservations, if not already made. Mr. Rao urged that the 85th Amendment was enacted not merely to withdraw the Office Memorandum dated 31.1.1997, which gave effect to the catch-up rule, but to restore the benefit of consequential seniority with retrospective effect from 17.6.1995 as if there never was any Catch-up Rule at all in the eye of law. Mr. Rao submitted that the contention of the Petitioners that for the purpose of giving the benefit of consequential seniority, the State would have to undertake the collection of quantifiable data in regard to backwardness, inadequacy of representation and non-impairment of efficiency, was based on a misunderstanding of the law declared in M. Nagaraja's case (supra), since it defeats the intent of Parliament to give retrospective effect to the Constitution (85th Amendment) Act.

23. Appearing for the Intervenor, Rajasthan Vanijik Kar Anusuchit Jati-Janjati Mahasangh, hereinafter referred to as "Mahasangh", Mr. Pallav Shishodia, learned Senior Advocate, reiterated Mr. Rao's submissions regarding the observations made by this Court in paragraph 79 of M. Nagaraj's case that the concept of "Catch-up Rule" and "consequential seniority" are judicially evolved concepts not implicit in Clauses (1) and (4) of Article 16 of the Constitution and with the concept of equality contained in Articles 14, 15 and 16 stood violated by the deletion of the "Catch-up Rule". The Constitution Bench also observed that such concepts were based on principles which could not be elevated to the status of constitutional principles or constitutional limitations. Mr. Shishodia urged that the deletion of the Proviso added by the Amendment of 1997 by way of the impugned Notification of 28.12.2002 and 25.4.2008, merely gave a quietus to the Catch-up Rule in harmony with the Constitution (85th Amendment) Act, which was introduced with the specific object of negating the effect of the decisions of this Court in Virpal Singh Chauhan's case (supra), Ajit Singh-I's case (supra) and in Ajit Singh-II's case (supra). It was submitted that since the 85th Amendment had been upheld by the constitution Bench in M. Nagaraj's case (supra) the State was duty bound to restore the original practice of giving seniority from the date of substantive appointment, without reference to the Catch-up Principle.

30. Dr. Rajeev Dhawan, learned Senior Advocate who appeared for the Respondent No.10 in Special Leave Petition (Civil) No.7716 of 2010, firstly contended that the main issue for decision in this case is whether the conditions enumerated in M. Nagaraj's case (supra) applied to cases of seniority and promotion after 17th June, 1995, from which date the amendments were declared to be valid in M. Nagaraj's case (supra). Dr. Dhawan submitted that in M. Nagaraj's case (supra) this Court was called upon to consider the provisions of the Constitution (77th, 81st, 82nd and 85th Amendment) Acts relating to reservation in promotion, the principle of carry over, enabling preservation of principles of efficiency and providing for consequential seniority by amending Article 16(4-A) by substituting the words "in matters of promotion, with consequential seniority, to any class", in place of the words "in matters of promotion to any class". Dr. Dhawan submitted that by the Constitution (85th Amendment) Act, 2001, the legislature reintroduced the concept of consequential seniority to any class in matters of promotion.