1

BRIEF NOTE ON RESERVATION FOR SCHEDULED CASTES AND SCHEDULED

TRIBES –IMPORTANT CONSTITUTIONAL PROVISIONS, AMENDMENTS AND
COURT CASES

1. Nodal Departments/Ministries for the Development of SCs and STs

1.1 Reservation in Services and Posts: Department of Personnel & Training is
responsible for implementation of policies of reservation in services and posts
under the Central Government for Scheduled Castes, Scheduled Tribes,
Other Backward Classes, Economically Weaker Sections and Persons with
Disabilities (PwDs).
1.2 Social, Educational and Economic Empowerment: Department of Social
Justice and Empowerment, Ministry of Social Justice and Empowerment is
the nodal Department for the overall policy, planning and coordination of
programmes including special schemes aimed at social, educational and
economic empowerment of SCs e.g. scholarships, hostels, residential
schools, skill training, concessional loans and subsidy for self-employment,
etc.
1.3 Ministry of Tribal Affairs: Ministry of Tribal Affairs is the nodal Department
for the overall policy, planning and coordination of programmes including
special schemes aimed at social, educational and economic empowerment of
STs e.g. scholarships, hostels, skill training, concessional loans and subsidy
for self-employment, etc.
1.4 Department of Disability Affairs: Department of Disability Affairs is the
nodal Department for the overall policy, planning and coordination of
programmes including special schemes aimed at social & economic
empowerment and welfare of Persons with Disabilities.
2. Constitutional and Legal Provisions on Reservation in Services and
Posts
Objective of providing reservations to the Scheduled Castes(SCs),
Scheduled Tribes (STs) and Other Backward Classes (OBCs) in services is
not only to give jobs to few persons belonging to these communities, but also
aims at empowering them and ensuring their participation in the decision
making process of the State. The Constitution has, therefore, made
provisions for providing equality of opportunity to them in the matter of public
employment. Clauses (4) and (4A) of Article 16 of the Constitution provide for
reservation in appointments to posts and services in favour of backward class
of citizens which, in the opinion of the State, is not adequately represented in
the services under the State.

3. Implementation of Post based Roster in reference of the Supreme Court

judgment in the case of R. K. Sabharwal Vs. State of Punjab

Reservation till 01.07.1997 was computed on the basis of number of

vacancies to be filled. The Supreme Court in the case, titled R. K. Sabharwal
Vs. State of Punjab, held that the reservation should be determined on the
basis of number of posts in the cadre and not on the basis of vacancies.
Accordingly, post based reservation was introduced w.e.f. 02.07.1997. The
basic principle of post based reservation is that the number of posts filled by
reservation for any category in a cadre should be equal to the quota
prescribed for that category. Prior to introduction of post based reservation,
there was a provision of exchange of reserved posts between SCs and STs.
After implementation of the post based reservation such exchange is no more
permissible.
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4. Adequate reservation, not proportional representation- Extent of

reservation as on date
A Nine judge Bench of the Hon’ble Supreme Court, in its judgment dated
16.11.1992 in the matter of ‘Indra Sawhney Vs. Union of India [WP(C) No.
930/1990]’, inter-alia, observed that clause (4) of Article 16 speaks of
adequate representation and not of proportionate representation. The Apex
Court has held that it is not possible to accept the theory of proportionate
representation though the proportion of population of Backward Classes to the
total population would certainly be relevant and held that the power conferred
by clause (4) of article 16 should be exercised in a fair manner and within
reasonable limits so that reservation does not exceed 50%. At present,
reservation in case of direct recruitment on all India basis by open competition
is 49.5% (i.e. 15% for SCs, 7.5% for STs and 27% for OBCs) and reservation
in case of direct recruitment on all India basis otherwise than by open
competition is 50% (i.e. 16.66% for SCs, 7.5% for STs and 25.84% for
OBCs).

5. Reservation in promotion struck down in Indira Sawhney case - 77th

(Seventy Seventh) Amendment
5.1. The Hon’ble Supreme Court, in the case of ‘Indra Sawhney vs. Union of India
and Ors.’, inter-alia, held that reservation in promotion is ultra-virus, as much
as, there is no provision in the Constitution to provide for reservation in
promotions. However, it continued the provision of reservation in promotion to
Scheduled Castes and Scheduled Tribes for five years from the
pronouncement of the judgment i.e. upto 15.11.1997. Thus the reservation
for Scheduled Castes and Scheduled Tribes after 15.11.1997 would have
ceased to exist. In order to continue reservation in promotion beyond
15.11.1997, the 77th Amendment was made to incorporate clause (4A) in
Article 16 of the Constitution. The Statement of Objects and Reasons
appended to the Bill leading to the enactment of Constitution (Seventy
Seventh Amendment) Act, 1995 stated that the object of the incorporation of
Article 16 (4A) was to continue the then existing dispensation relating to
reservation in promotion.

5.2. The 77th amendment inserted Article 16(4A) in the Constitution provides as
under:
"(4A) Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion to any class or
classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of
the State, are not adequately represented in the services under
the State."

6. DoPT OM dated 13.08.1997

Accordingly, with Cabinet approval, the OM, dated 13.08.1997, was issued to
convey the decision of the Government to continue the reservation in
promotion for the SCs/STs in services/ posts under the Central Government
beyond 15.11.1997, till such time the representation of each of the above two
categories, in each cadre reaches the prescribed percentages whereafter the
representation in promotion shall be continued to be maintained to the extent
of the prescribed percentages for the respective categories.
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7. Applicability at ‘Reservation in Promotions’

Reservation to the members of the Scheduled Castes and the Scheduled
Tribes is provided in the matter of promotion when promotions are made:
(a) Through Limited Departmental Competitive Examination in Group B,
Group C and Group D posts;

(b) By seniority cum fitness from Group B post to the lowest a Group A post or
within Group B, Group C and Group D posts

However, reservation in promotion is not given in the grades in which the

element of direct recruitment, if any, exceeds 75 per cent [36012/17/88-
Estt.(SCT) dated 25/4/1989].

8. Backlog Vacancies to be treated as a separate class of vacancies - 81st

(Eighty First) Amendment
8.1. Any vacancy/vacancies which was/were earmarked reserved in an earlier
recruitment year but could not be filled in the previous attempt and remained
vacant is/are treated as backlog reserved vacancy/vacancies in the
subsequent recruitment year(s).

8.2. The Supreme Court, in the case of ‘Indira Sawhney Vs Union of India’, inter-
alia held that the number of reserved vacancies in a year in any cadre,
including backlog reserved vacancies, should not exceed 50 per cent of the
total number of vacancies of the year.

8.3. In order to overcome the limitation imposed by the Judgement of the Supreme
Court, the 81st (Eighty First ) Amendment was made to the Constitution,
whereby Clause (4B) was incorporated in Article 16 of the Constitution.
Clause 16 (4B) reads as follows:-
“Nothing in this article shall prevent the State from considering any
unfilled vacancies of a year which are reserved for being filled up in
that year in accordance with any provision for reservation made under
Clause (4) or Clause (4A) as a separate class of vacancies to be filled up
in any succeeding year or years and such class of vacancies shall
not be considered together with the vacancies of the year in which they
are being filled up for determining the ceiling of fifty per cent reservation
on total number of vacancies of that year.”
8.3. After the above mentioned amendment to the Constitution, Department of
Personnel & Training issued O.M. No. 36012/5/97-Estt (Res) Vol.II, dated
20.7.2000, laying down that the backlog reserved vacancies would be
treated as a separate and distinct group and would not be considered
together with the reserved vacancies of the year in which they are being
filled up for determining the ceiling of 50% reservation on total number of
vacancies of that year. In other words, the ceiling of 50% on filling up of
reserved vacancies would apply only on the reserved vacancies pertaining
to that year in which the said vacancies arise and the backlog reserved
vacancies of earlier years would be treated as a separate and distinct
group and would not be subject to any ceiling.
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9. Vinod Kumar Vs Union of India and 82nd (Eighty Second) Amendment

The Scheduled Castes and the Scheduled Tribes had been enjoying the
benefit of relaxation in qualifying marks and standards of evaluation in the
matters of reservation in promotion. The Supreme Court, in its judgment,
dated 1-10-1996, in the case of ‘S. Vinod Kumar Vs. Union India’ held that
such relaxations in matters of reservation in promotion were not permissible
under article 16(4) of the Constitution in view of the command contained in
article 335 of the Constitution. The Apex Court also held that the law on the
subject of relaxations of qualifying marks and standards of evaluation, in
matters of reservation in promotion, is the one laid down by the nine-judge
Constitution Bench of the Supreme Court in the case of ‘Indira Sawhney and
others Vs. Union of India’ and others. Para 831 of Indira Sawhney judgment
also held that such relaxations, is not permissible under article 16(4) in view of
the command contained in article 335 of the Constitution. In order to
implement the judgments of the Supreme Court, such relaxations had to be
withdrawn with effect from 22.07.1997. In view of the adverse impact of the
order, dated 22.07.1997, on the interests of Scheduled Castes and Scheduled
Tribes, the 82nd (Eighty Second) Amendment was made to the Constitution
whereby in Article 335 of the Constitution, the following proviso was inserted:

"Provided that nothing in this article shall prevent in making of any

provision in favour of the members of the Scheduled Castes and
the Scheduled Tribes for relaxation in qualifying marks in any
examination or lowering the standards of evaluation, for
reservation in matters of promotion to any class or classes of
services or posts in connection with the affairs of the Union or of a
State".
10. Virpal Singh Chauhan Vs. UOI and Ajit Singh Janjua Vs. State of Punjab -
85th (Eighty-Fifth) Amendment – Consequential Seniority.
10.1. The Hon’ble Supreme Court in the case of Indra Sawhney & Ors. Vs. Union of
India & Ors, reported in 1992 Supp.(3) SCC 217, has held that Article 16(4) of
the Constitution does not permit reservations in the matter of promotion.
Thereafter, the Constitution (Seventy-Seventh) Act, 1995 came into force on
17.6.1995 (as explained in para 8 above). Later on, the Hon’ble Supreme
Court in the cases of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors.,
reported in (1995) 6 SCC 684, Ajit Singh Janjua & Ors, Vs. State of Punjab &
Ors. (Ajit Singh-I), reported in (1996) 2 SCC 715 and & Ors. Vs. State of
Punjab & Ors. (Ajit Singh-II), reported in (1999) 7 SCC 209, introduced the
catch-up rule and did away with the principle of consequential seniority and
held that when the senior general candidate is promoted, he will regain his
seniority vis-a vis his junior reserved candidate, promoted to the higher post
earlier than the general candidate as a result of reservation policy. It was also
held that consequential seniority on promotion post is not covered by Article
16(4A).
10.2. The Government servants belonging to the Scheduled Castes and the
Scheduled Tribes had been enjoying the benefit of consequential seniority on
their promotion on the basis of rule of reservation. The above judgments of
the Supreme Court would have adversely affected the interest of the
Government servants belonging to the Scheduled Castes and Scheduled
Tribes category in the matter of seniority on promotion to the next higher
grade. In order to remove this inconsistency and to dilute & repeal the catch
 5

up principle, the Parliament of India, again amended the Constitution of India

[85th (Eighty-Fifth) Amendment] whereby the term consequential seniority
was added in Article 16(4A).
10.3. The amended Article 16 (4A) provides as under:-
Nothing in this article shall prevent the State from making any provision
for reservation in matters of promotion, with consequential seniority, to
any class or classes of posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes which, in the opinion of
the State, are not adequately represented in the services under the
State.

10.4. Apex Court judgment, dated 19.10.2006, on the legality off the above
constitutional Amendment in the case of M.Nagaraj & Others Vs.
Union of India & Ors.

The Apex Court ruled as follows:

“The impugned constitutional amendments by which Articles 16(4A) and

16(4B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and inadequacy of
representation which enables the States to provide for reservation keeping
in mind the overall efficiency of the State administration under Article 335.
These impugned amendments are confined only to SCs and STs. They do
not obliterate any of the constitutional requirements, namely, ceiling-limit of
50% (quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBC on one hand and SCs and
STs on the other hand as held in Indra Sawhney, the concept of post-based
Roster with in-built concept of replacement as held in R.K. Sabharwal.

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.

However, in this case, as stated, the main issue concerns the "extent of
reservation". In this regard the concerned State will have to show in
each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency before making provision for reservation. As
stated above, the impugned provision is an enabling provision. The
State is not bound to make reservation for SC/ST in matter of
promotions. However if they wish to exercise their discretion and
make such provision, the State has to collect quantifiable data
showing backwardness of the class and inadequacy of representation
of that class in public employment in addition to compliance of Article
335. It is made clear that even if the State has compelling reasons, as
stated above, the State will have to see that its reservation provision does
not lead to excessiveness so as to breach the ceiling-limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.

Subject to above, we uphold the constitutional validity of the Constitution

(Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First
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Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act,

2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

We have not examined the validity of individual enactments of appropriate

States and that question will be gone into in individual writ petition by the
appropriate bench in accordance with law laid down by us in the present
case.

Reference is answered accordingly”.

11. Own Merit in reservation in promotion

11.1. The concept of ‘own merit’ was introduced, vide Department of Personnel and
Training’s Office Memorandum No. 36028/17/2001-Estt (Res), dated
11.07.2002. The O.M dated 11.07.2002, inter- alia, provided that the SC/ST
candidates appointed on their own merit and not owing to reservation or
relaxation of qualifications will not be adjusted against the reserved points of
the reservation roster. They will be adjusted against unreserved points.
However, the said O.M did not clarify the following two points:

(i) The date of effect of the O.M No. 36028/17/2001-Estt (Res), dated
11.07.2002.
(ii) Whether the orders will apply in case of promotion made by non-selection
method.

11.2. To clarify these above two points, an O.M No. 36028/17/2001-Estt (Res),
dated 31.01.2005, was issued by the Department of Personnel and Training,
which clarified that OM dated 11.07.2002 be applicable w.e.f. 11.07.2002. It
also clarified that in case of promotions by non-selection, promotions are
made on the basis of seniority-cum-fitness and the concept of own merit is not
involved in such promotions.

11.3. The O.M. dated 31.01.2005 was challenged in the Hon’ble Central
Administrative Tribunal, Madras Bench, in O.A No. 900/2005 [S.
Kalugasalamoorthy vs Union of India & Ors]. The Hon’ble CAT quashed the
O.M dated 31.01.2005, and held that when a person is selected on the basis
of his own seniority, the scope of considering and counting him against quota
reserved for SCs does not arise. The Judgment of CAT, dated 14.9.2006, was
challenged in the Hon’ble High Court of Madras which upheld the decision of
the CAT Madras, vide judgment, dated 20.08.2009.

11.4. After consultation with D/o of Legal Affairs, the O.M No. 36012/45/2005-Estt
(Res), dated 10.08.2010, was issued to withdraw the Office Memorandum No.
36028/17/2001-Estt(Res), dated 31.01.2005, and to, inter-alia, clarify that
SC/ST candidates appointed by promotion on their own merit and seniority,
and not owing to reservation or relaxation of qualifications, will be adjusted
against unreserved points of reservation roster, irrespective of the fact
whether the promotion is made by selection method or non-selection method.
It was also clarified that the OM dated 10.08.2010 will take effect from
2.7.1997, the date on which post based reservation was introduced.
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12. Punjab & High Court’s Decision on Own Merit in Jarnail Singh and Ors.
Vs. Lachmi Chand Gupra & Ors.

12.1. The said O.M, dated 10.08.2010, was challenged in the Hon’ble High Court of
Punjab & Haryana, in CWP No. 13218/2009 [Shri Lachhmi Narain Gupta &
Ors Vs Jarnail Singh & Ors]. The Hon’ble High Court Punjab & Haryana, vide
judgment, dated 15.07.2011, quashed the O.M dated 10.8.2010 stating as
under:

“In the absence of any survey with regard to inadequacy as also

concerning the overall requirement of efficiency of the administration
where reservation is to be made alongwith backwardness of the class
for whom the reservation is required, it is not possible to sustain these
notifications. Accordingly, it has to be held that these notifications
suffers from violation of the provisions of Articles 16(4A), 16(4B) read
with Article 335 of the Constitution as interpreted by the Constitution
Bench in M. Nagaraj’s as well as in Suraj Bhan Meena’s case.”

12.2. Union of India through Department of Revenue has filed an SLP (C) No.
6915/2014 which has been clubbed with SLP(C) No. 30621/2011, filed by
Shri Jarnail Singh in the matter. The Hon’ble Supreme Court, vide order,
dated 03.02.2015, stated as under:

“…. Status quo existing as on today in respect of the promotional matters

that are covered by the impugned judgment shall be maintained till the
next date of hearing”.

12.3. Subsequently, a Contempt petition was filed by the Samta Andolan Samiti
alleging that DoPT and Ministry of Railways have reportedly implemented
the provisions of OM, dated 10.08.2010, inspite of the abovesaid Interim
Order dated 03.02.2015.

12.4. In order to preclude any interim order in the contempt case, the Ld. Solicitor
General, in the hearing held in Supreme Court on 29.09.2016, has
undertaken that till such time the main matter along with the Contempt
Petition is decided, no further promotions of reserved category persons to
unreserved posts will be made based on the DOPT O.M. dated 10.08.2010.
Accordingly, instructions were issued by the Establishment (Reservation)
Division to all departments, vide O.M.36012/11/2016-Estt.(Res.), dated
30.09.2016.

13. Delhi High Court Judgement dated 23.08.2017 on ‘Reservation in

Promotion’

13.1. In WP(C) 3490/2010 & CM No. 6956/2010, filed by All India Equality Forum
Vs Union of India, the Hon’ble High Court, Delhi vide para 15 of its judgment
dated 23.08.2017, has held as under:-

“…The impugned OM No. 36012/18/95-Estt.(Res.) Pt. II dated

13.08.1997, issued by DOPT, is quashed and set aside. The
respondents are restrained from granting any reservation, in promotion,
to Scheduled Castes or Scheduled Tribes, in exercise of the power
conferred by Article 16(4A) of the Constitution of India, without, in the
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first instance, carrying out the necessary preliminary exercise of

acquiring quantifiable data indicating inadequacy of representation, of
the said categories, in service, and evaluating the situation by taking
into consideration the said data, along with the competing
considerations of backwardness and overall efficiency in administration,
and arriving at an empirical decision on the basis thereof.”

13.2 An SLP vide No. 31288/2017 has been filed by this Department against the
judgment, dated 23.08.2017, of the Hon’ble Delhi High Court. This SLP has
been tagged with the SLP No. 30621/2011 of Jarnail Singh.

13.3. Hon’ble Supreme Court, vide order, dated 14.11.2017, in CA No. 4562-
4564/2017, in the matter of the State of Tripura & Ors. Vs Jayanta
Chakraborty & Ors and vide order, dated 15.11.2017 in SLP(C) No.
28306/2017 in the matter of the State of Maharashtra & Anr Vs Vijay Ghogre
& Ors stated that the case of M. Nagaraj may be referred to larger
Constitutional Bench to examine if the M. Nagaraj judgement needs re-
examination.

14.1 In the mean time, promotion orders by many States were struck down by the
Hon’ble Supreme Court, being non compliant with Nagaraj Judgement.
Promotions were further withheld because of orders of the Hon’ble High Court
of Delhi.
14.2 Hence, there was a big hue and cry. Promotions were withheld and People
were retiring without getting benefit of promotion. As a result, an interim
application was filed, requesting Supreme Court to allow holding of DPC and
effect promotions. The Hon’ble Supreme Court, in the matter related to I.A.
No. 25195/2018 in SLP (C) No. 30621/2011 (Jarnail Singh & Ors Vs Lachhmi
Narain Gupta & Ors), on 17.05.2018 has passed the following Order:

“It is directed that the pendency of this Special Leave Petition shall
not stand in the way of Union of India taking steps for the purpose of
promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’
and also in the matter of promotion on merits. Post for further orders
after summer vacation.”

15. In another interim Order, dated 05.06.2018, in SLP No. 31288/2017, the
Hon’ble Supreme Court stated as follows:

“It is made clear that the Union of India is not debarred from making
promotions in accordance with law, subject to further orders, pending
further consideration of the matter. Tag to SLP (C) No. 30621/2011.”

16. Consequently, DoPT vide Office Memorandum No. 36012/11/2016- Estt.(Res-

I) {Pt-II}, dated 15.06.2018, issued instructions to all Ministries/Department to
carry out promotions in accordance with the directions of the Hon'ble Supreme
Court dated 17.05.2018, in the matter related to SLP (C) No. 30621/2011 and
interim order dated 05.06.2018 in the matter related to SLP(C) No.
31288/2017.

17. Decision in Jarnail Singh Case - Whether it should be referred to Larger

Bench
The Constitutional Bench on 26.09.2018, held that it is not required to be
referred to Larger Bench and that the State is not required to collect
 9

quantifiable data on the backwardness of SCs/STs. However, it is required to

collect data on the inadequacy of representation and to see that the efficiency
is not affected. The major observations in the judgement are summarised
below:-
(i) “........... we have confined arguments on two points which requires
serious consideration. The two points are (a) whether State has to collect
quantifiable data as observed in Nagaraj judgment, which is contrary to
nine-judge Bench in Indra Sawhney Vs Union of India and (b) whether
creamy layer concept will be applicable in the case of SCs/STs.” (Para 3
of the judgment

(ii) “ .... When Nagaraj applied the creamy layer test to SCs and STs in
exercise of application of the basic structure test to uphold the
constitutional amendments leading to Articles 16 (4-A) and 16(4-B), it did
not in any manner interfere with Parliament’s power under Article 341 or
342. We are, therefore, clearly of the opinion that this part of the judgment
does not need to be revised.....”. (Para 17 of the judgment).

(iii) “..... Thus, we may make it clear that quantifiable data shall be
collected by the State, on the parameters as stipulated in Nagaraj on the
inadequacy of representation, which can be tested by the Courts. We
may further add that the data would be relatable to the concerned cadre. “
(Para 17 of the judgment)

(iv) “... According to us, Nagaraj has wisely left the test for determining
adequacy of representation in promotional posts to the States for the
simple reason that as the post gets higher, it may be necessary, even if a
proportionality test to the population as a while is taken into account, to
reduce the number of SCs and STs in promotional posts, as one goes
upwards. This is for the simple reason that efficiency of administration has
to be looked at evey time promotions are made. .... For this reason, we
make it clear that Article 16 (4-A) has been couched in language which
would leave it to the States to determine adequate representation
depending upon the promotional post that is in question.” (Para 20 of
the judgment)

(v) “.... However, the conclusion in Nagaraj that the State has to collect
quantifiable data showing backwardness of the SCs and STs being
contrary to the nine-judge Bench in Indra Sawhney is held to be invalid to
this extent “(Para 21 of judgment).

It was also held that the State is required to see the efficiency of
administration while making provision for reservation.

18. Supreme Court judgment dated 27.8.2015 and 9.2.2017 in the case of
S.Paneerselvam and B.K.Pavitra - Consequential Seniority issue

18.1. Subsequent to the judgment of the Supreme Court in M. Nagaraj case, the
enactments/policy of various State Governments on the issue of
consequential seniority to SC/ST candidates after fast track promotion through
reservation/roster points were decided by the Supreme Court in the following
two cases:
1) S.Paneerselvam and others Vs. Government of Tamil Nadu vide
Supreme Court Judgement dated 27.8.2015.
 10

2) B.K. Pavitra and others Vs. UOI and others vide Supreme Court
Judgment dated 9.2.2017
18.2. Both the judgements of the Supreme court, in the cases of S. Paneerselvam
as well as B.K. Pavitra are based on the law laid down by the Supreme Court
in M. Nagaraj i.e., the State has to collect quantifiable data indicating
‘backwardness of the class’, ‘inadequacy of representation’ and ‘overall
efficiency of the State administration under Article 335. In other words, in the
absence of such data, the State cannot provide ‘consequential seniority’ to
those who are promoted against reservation/roster points.

19. Hon’ble Supreme in the case of B.K. Pavitra had held as under:-
“It is clear from the above discussion that exercise for determining
inadequacy of representation’, ‘backwardness’ and overall efficiency’, is a
must for exercise of power under Article 16(4A). 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 absence of exercise under Article
16(4A), it is the catch up’rule which is fully applies. It is not necessary to
go into the question whether the concerned Corporation had adopted the
rule of consequential seniority.”

20. B.K. Pavitra and Ors vs. The Union of India and Ors (Pavitra -2)

In B.K. Pavitra and Ors. Versus The Union of India and Ors.( to be referred to
as B.K. Pavitra 2), the validity of ‘the Karnataka Extension of Consequential
Seniority to Governnment Servants Promoted on the Basis of Reservation (to
the Posts in the Civil Services of the State) Act 2018’ was challenged on the
grounds that the state legislature has virtually re-enacted the earlier legislation
without curing its defects. Further, it is not open to legislative body governed
by the parameters of a written constitution to override a judicial decision
without taking away its basis. The State Government defended its legislation
on the grounds that it has fulfilled the constitutional requirements of collecting
quantifiable data before it enacted the law. The Hon’ble Supreme Court
concluded its judgement in the following manner:

“......we have come to the conclusion that the challenge to the

constitutional validity of the Reservation Act 2018 is lacking in
substance. Following the decision in B K Pavitra I, the State
government duly carried out the exercise of collating and analysing data
on the compelling factors adverted to by the Constitution Bench in
Nagaraj. The Reservation Act 2018 has cured the deficiency which was
noticed by B K Pavitra I in respect of the Reservation Act 2002. The
Reservation Act 2018 does not amount to a usurpation of judicial power
by the state legislature. It is Nagaraj and Jarnail compliant. The
Reservation Act 2018 is a valid exercise of the enabling power
conferred by Article 16 (4A) of the Constitution.” ( Para 144)
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21. Interim Order dated 15.04.2019

21.1. In a hearing on 15.04.2019 in respect of SLP No. 31288/2017 related to

Reservation in promotion and SLP No. 31621/2011 relating to own merit,
alongwith other tagged cases, the Hon’ble Supreme Court made the following
Order:

“Issue notice in the fresh matters. Until further orders, status quo, as
it exists today, shall be maintained. List all the matters on
15.10.2019.”

21.2. In view of the above order of the Hon’ble Supreme Court, an application has
been filed before the Hon’ble Court seeking clarification whether in the light of
the Interim order dated 15.4.2019 the Government can go ahead with
promotion.

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