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13. It was urged on behalf of the Petitioners, Suraj Bhan Meena and Sriram Choradia, that till the decision of this Court in the case of Indra Sawhney vs. Union of India [(1992) Supp. (3) SCC 217], this Court had almost uniformly applied the rule of reservation in promotion with consequential seniority. In Indra Sawhney's case (supra), this Court had held that reservation in promotion was unconstitutional, but permitted such reservation to continue for a period of five years. It is pursuant to the said decision in Indra Sawhney's case (supra), that the Parliament enacted the Constitution (77th Amendment) Act, 1995. A contrary view was taken in Union of India vs. Virpal Singh Chauhan [(1995) 6 SCC 684], wherein it was laid down that the grant of consequential seniority in cases of reservation in promotion was illegal. The issue was taken further in the case of Ajit Singh Januja Vs. State of Punjab [(1996) 2 SCC 715] holding that the grant of consequential seniority to reserve category employees, who had got promotion on the basis of reservation, was unconstitutional.

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.

33. It was submitted that since the State had not undertaken the exercise which was mandatory in terms of the judgment in M. Nagaraj's case (supra), the State could not, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (85th Amendment) Act providing for reservation in promotion with consequential seniority.

34. Dr. Dhawan urged that the powers conferred on the State under Articles 16(4), 16(4-A) and 16(1-B) of the Constitution are enabling in nature and the expression "consequential seniority" was optional and not a requirement. Dr. Dhawan also urged that what was restored by the decision in M. Nagaraj's case (supra) was merely the enabling power of the Government and exercise of such power in relation to consequential seniority by the State of Rajasthan would still have to be reconsidered in accordance with the decision in M. Nagaraj's case (supra).

35. Dr. Dhawan submitted that the seniority of the candidates who had been promoted on merit was protected by the notification dated 1.4.1997 and the same was required to be retained and the contingent protection given by the notification of 28.12.2002 was also required to be retained, though the contingency in the last sentence of the notification was liable to be struck down. Dr. Dhawan also urged that the restoration of consequential seniority in the notification of 25.4.2002, without conducting the exercise as contemplated in M. Nagaraj's case (supra), was liable to be struck down and if the State wanted to introduce a provision for consequential seniority, it would have to follow the procedure indicated in M. Nagaraj's case (supra).