B K PAVITRA & Ors. v. THE UNION OF INDIA & Ors.

information, etc.); and intrinsic ability and hard work. The first two criteria are evidently not the products of a candidate’s own efforts but rather the structural conditions into which they are born. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society. [Para 127, 128] [1208-G-H; 1209-A-C] Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984), cited by Deshpande S, Inclusion versus excellence: Caste and the framing of fair access in Indian higher education, 40:1 South African Review of Sociology 127 - 147 – referred to.

8.7 The Ratna Prabha Committee report considers the relationship between reservation in promotion and maintenance of efficiency in administration. Moreover, even in a formal legal sense, promotions, including those in respect of roster points, are made on the basis of seniority–cum–merit and a candidate to be promoted has to meet this criteria. A candidate on promotion has to serve a statutory period of officiation before being confirmed. This rule applies across the board including to roster point promotees. This ensures that the efficiency of administration is, in any event, not adversely affected. [Paras 129, 130] [1209-C; E-G] The issue of creamy layer

9.1 It cannot be said that Jarnail is not per curium on the issue of creamy layer. For one thing, Jarnail specifically examined the decision in Indra Sawhney, noticing that eight of the nine Judges applied the creamy layer principle as a facet of the larger equality principle. In fact, the decision in Indra Sawhney II summarised the judgments in Indra Sawhney I on the aspect of creamy layer. The judgment in Jarnail approved Indra Sawhney II when it held that the creamy layer principle sounds in Articles 14 and 16 (1). Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of legislative competence on the part of the State legislatures to create sub–categories among the A B C D E F G H B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1109 Presidential lists under Articles 341 and 342. The decision in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj and hence it was not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter, it is held that Jarnail, on a construction of Indra Sawhney holds that the creamy layer principle is a principle of equality. [Para 137] [1214-D-E; 125-C-D]

9.2 The challenge in the instant case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant of consequential seniority. Progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. [Para 138] [1215-E-H]

9.3 In sustaining the validity of Articles 16(4A) and 16(4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch–up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, A B C D E F G H 1110 SUPREME COURT REPORTS [2019] 7 S.C.R. the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In view thereof, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. [Para 139] [1216-C-F] Jarnail Singh v Lachhmi Narain Gupta 2018 (10) SCC 396 – Explained and followed. Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 ; Indra Sawhney II v Union of India (2000) 1 SCC 168 : [1999] 5 Suppl. SCR 229 ; M Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 ; E V Chinnaiah v State of AP (2005) 1 SCC 394 : [2004] 5 Suppl. SCR 972 ; State of Tripura v Jayanta Chakraborty (2018) 1 SCC 146 : [2017] 11 SCR 247 ; State of Maharashtra v Vijay Ghogre (2018) 15 SCC 64 - referred to. Retrospectivity

#10. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force “at once” as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected. The decision in Virpal Singh held that the catch-up rule would be applied only from 10 February 1995 which was the date of the judgment in Sabharwal; The decision in Ajit Singh II specifically protected the promotions which were granted before 1 March 1996 without following the catch-up rule. In Badappanavar, promotions of reserved candidates based on consequential seniority which took place before 1 March 1996 were specifically protected. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation A B C D E F G H B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1111 Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, there is no reason to hold that the provisions in regard to retrospectivity in the Reservation Act, 2018 are either arbitrary or unconstitutional. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded. [Paras 140– 142] [1216-G-H; 1217-A-E] Union of India v Virpal Singh Chauhan (1995) 6 SCC 684 : [1995] 4 Suppl. SCR 158 ; R K Sabharwal v State of Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ; Ajit Singh Januja v State of Punjab (1996) 2 SCC 715 : [1996] 3 SCR 125 ; M G Badappanavar v State of Karnataka (2001) 2 SCC 666 : [2000] 5 Suppl. SCR 302 – referred to. Over representation in KPTCL and PWD

#11. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. The corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj’s case. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Under the Government Order dated 13.04.1999, reservation in promotion in favour of SC’s and ST’s has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the said Government Order is applicable to KPTCL and PWD. [Para 143] [1217-F-H; 1218-A-B] A B C D E F G H 1112 SUPREME COURT REPORTS [2019] 7 S.C.R. A B C D E F R K Sabharwal v State of Punjab (1995) 2 SCC 745 : [995] 2 SCR 35 ; M Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 ; Bhakta Ramegowda v State of Karnataka (1997) 2 SCC 661 : [1997] 1 SCR 535 ; Jagdish Lal v State of Haryana (1997) 6 SCC 538 ; Suraj Bhan Meena v State of Rajasthan (2011) 1 SCC 467 : [2010] 14 SCR 532 ; Uttar Pradesh Power Corporation Ltd v Rajesh Kumar (2012) 7 SCC 1 : [2012] 4 SCR 118 ; S Panneer Selvam v State of Tamil Nadu (2015) 10 SCC 292 ; S R Bhagwat v State of Mysore (1995) 6 SCC 16 : [1995] 3 Suppl. SCR 545 ; Bakhtawar Trust v M D Narayan (2003) 5 SCC 298 : [2003] 1 Suppl. SCR 1 ; Delhi Cloth & General Mills Co. Ltd v State of Rajasthan (1996) 2 SCC 449 : [1996] 1 SCR 518 ; Re Cauvery (1993) Supp (1) SCC 96 : [1991] 2 Suppl. SCR 497 ; S T Sadiq v State of Kerala (2015) 4 SCC 400 : [2015] 3 SCR 287 ; Medical Council of India v State of Kerala (2018) 11 SCALE 141 : 2018 SCR 213 ; I R Coelho v State of TN (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Pandit M S M Sharma v Dr Krishna Sinha AIR 1960 SC 1186 ; State of West Bengal v Kamal Sengupta (2008) 8 SCC 612 : [2008] 10 SCR 4 ; Rohtas Industries v S D Agarwal (1969) 1 SCC 325 : [1969] 3 SCR 108 ; Rustom Cavasjee Cooper v Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530 ; Ritesh Sah v Y L Yamul (1996) 3 SCC 253 : [1996] 2 SCR 695 – referred to. Case Law Reference [1997] 1 SCR 535 referred to Para 8 (1997) 6 SCC 538 referred to Para 16 [2010] 14 SCR 532 referred to Para 25 G [2012] 4 SCR 118 referred to Para 25 (2015) 10 SCC 292 referred to Para 25 [1995] 3 Suppl. SCR 545 referred to Para 42 [2003] 1 Suppl. SCR 1 referred to Para 42 H B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1113 [1996] 1 SCR 518 referred to Para 42 [1991] 2 Suppl. SCR 497 referred to Para 42 [2015] 3 SCR 287 referred to Para 42 2018 SCR 213 referred to Para 42 [2007] 1 SCR 706 referred to Para 45 AIR 1960 SC 1186 referred to Para 51 [2008] 10 SCR 4 referred to Para 51 [1969] 3 SCR 108 referred to Para 57 [1970] 3 SCR 530 referred to Para 57 [1996] 2 SCR 695 referred to Para 57 [2016] 6 SCR 1 referred to Para 62 [2002] 2 Suppl. SCR 555 referred to Para 66 (1985) 3 SCC 661 referred to Para 65 [1983] 3 SCR 130 relied on Para 69 [2017] 1 SCR 631 referred to Para 71, 72, 78, 81, 82, 87, 88, 101, relied on. Para 71, 72, 144 [2006] 7 Suppl. SCR 336 followed Para 71, 144 referred to Para 72, 82, 87, 90, 91, 93, 101, 104, 15, 132, 134,137, 139, 143, [2016] 7 SCR 689 referred to Para 73 [1988] SCR 314 referred to Para 73 [1994] 1 Suppl. SCR 639 referred to Para 73 [2009] 10 SCR 821 referred to Para 73 (1996) 7 SCC 637 referred to Para 73, 79 AIR 1941 FC 16 referred to Para 74 A B C D E F G H 1114 SUPREME COURT REPORTS [2019] 7 S.C.R. A (1964) 1 SCR 897 referred to Para 74 [1970] 1 SCR 388 referred to Para 74 [1996] 8 Suppl. SCR 193 referred to Para 75 [2004] 5 Suppl. SCR 720 referred to Para 75 B [1978] 3 SCR 334 distinguished Para 78 1994 Supp. (2) SCC 726 referred to Para 79 [2015] 3 SCR 612 referred to Para 79 [2002] 5 Suppl. SCR 116 referred to Para 84 [2009] 10 SCR 634 referred to Para 84 [1976] 1 SCR 552 referred to Para 84 [1994] 3 Suppl. SCR 405 referred to Para 84 [2003] 2 SCR 139 referred to Para 84 [1962] SCR 44 referred to Para 85 [1992] 2 Suppl. SCR 454 referred to Para 87, 91, 93, 105, 114, 121, 132, 134, 137 2018 (10) SCC 396 referred to Para 87, 91, 94, 132, 134-136, 144 [1974] 3 SCR 820 referred to Para 91 [1980] SCR 500 referred to Para 91 [2017] 1 SCR 658 referred to Para 92 [1966] SCR 311 referred to Para 93 [1995] 2 SCR 35 referred to Para 102, 103, 105, 140, 143 [1964] SCR 680 referred to Para 112 [1981] 2 SCR 185 referred to Para 113 [1976] 1 SCR 906 referred to Para 113, 115 C D E F G H B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1115 [1985] Suppl. SCR 352 referred to Para 120, 121 A [2017] 11 SCR 247 referred to Para 135 (2018) 15 SCC 64 referred to Para 135 [2004] 5 Suppl. SCR 972 referred to Para 137 (2018) 10 SCC 396 explained and followed Para 137, 138 [1999] 5 Suppl. SCR 229 referred to Para 137 [1995] 4 Suppl. SCR 158 referred to Para 140 [1996] 3 SCR 125 referred to Para 140 [1999] 2 Suppl. SCR 521 referred to Para 140 [2000] 5 Suppl. SCR 302 referred to Para 140 CIVIL APPELLATE / ORIGINAL / JURISDICTION : Miscellaneous Application No. 1151 of 2018 in Civil Appeal No. 2368 of 2011. INHERENT From the Judgment and Order dated 23.12.2010 of the High Court of Karnataka at Bangalore in Writ Petition No. 14672 of 2010. With Review Petition (C) Diary Nos. 7833, 10240, 10258, 10859, 12622, 12674, 13047, 14563, 16896 of 2017, M.A. No. 1152 of 2018 in C.A. No. 2369 of 2011, Writ Petition (C) Nos. 764, 769, 791, 823, 827, 850, 875, 872, 901, 879 1209 of 2018. Devadatt Kamat, AAG, Dr. Rajeev Dhavan, Basava Prabhu Patil, Ms. Indira Jaising, V. Lakshminarayana, Dinesh Dwivedi, Nidhesh Gupta, Sr. Advs., Kumar Parimal, Smarhar Singh, Ms. Siddhi Padia, V.N. Raghupathy, Ms. Rachitha Herimath, Chinmay Deshpande, Parikshit P. Angadi, Geet Ahuja, Anuj Saxena, Ms. Nehmat Kaur, Ms. Ajita Sharma, Rameshwar Prasad Goyal, Dinesh K. Garg, Dhananjay Garg, Abhishek Garg, Deepak Mishra, Krishnam Mishra, Yasharth Kant, Nishant Singh, Mohd. Naved, Sarbendra Kumar, Ms. Payal Gaikwad, Prakash Sharma, Ms. Prakrati Raj, Ms. Ila Gandhi, Satpal Singh, Puneet Jain, Ms. Christi Jain, Abhinav Gupta, Harsh Jain, Ms. Arpita Gupta, Dr. K.S. Chauhan, Ajit Kumar Ekka, Ravi Prakash, Chand Kiran, S.P. Singh, Anand Sanjay B C D E F G H 1116 SUPREME COURT REPORTS [2019] 7 S.C.R. A B C M. Nuli, Dharm Singh, Nanda Kumar K.B. (for M/s. Nuli & Nuli), Naveen R. Nath, Rahul Jain, Darpan K.M., Siddharth Agarwal, S.K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Joseph Aristotle S., Ms. Priya Aristotle, Shiva P., R. Balasubramanian, Ms. Shraddha Deshmukh, B.V. Balaram Das, Sharanagouda Patil, Shirish K. Deshpande, Ms. Shraddha Deshmukh, B.V. Balram Das, M/s. Devasa & Co., S. N. Bhat, Pulkit Tare, Ms. Anagha S. Desai, E.C. Vidya Sagar, Dr. (Ms.) Vipin Gupta, Sudhir Nagar, Kabir Dixit, Advs. for the appearing parties. The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J. This judgment has been divided into sections to facilitate analysis. They are A. The constitutional challenge B. The constitutional backdrop to reservations in Karnataka D C. Submissions C.I Petitioners C.2 Submissions for the respondents and intervenors D. Assent to the Bill E. Does the Reservation Act 2018 overrule or nullify B K Pavitra I E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act 2018 E.2 The Ratna Prabha Committee report F. Substantive versus formal equality F.I The Constituent Assembly’s understanding of Article 16 (4) F.2 The Constitution as a transformative instrument G. Efficiency in administration H. The issue of creamy layer I. Retrospectivity J. Over representation in KPTCL and PWD E F G H B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS [DR. DHANANJAYA Y CHANDRACHUD, J.] 1117 K. Conclusion A. The constitutional challenge

#1. The principal challenge in this batch of cases is to the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 20181. The enactment provides, among other things, for consequential seniority to persons belonging to the Scheduled Castes2 and Scheduled Tribes3 promoted under the reservation policy of the State of Karnataka. The law protects consequential seniority from 24 April 1978.

#2. The Reservation Act 2018 was preceded in time by the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 20024. The constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra v Union of India5, (“B K Pavitra I”). A two judge Bench of this Court (consisting of Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on the ground that an exercise for determining “inadequacy of representation”, “backwardness” and the impact on “overall efficiency” had not preceded the enactment of the law. Such an exercise was held to be mandated by the decision of a Constitution Bench of this Court in M Nagaraj v Union of India6 (“Nagaraj”). In the absence of the State of Karnataka having collected quantifiable data on the above three parameters, the Reservation Act 2002 was held to be invalid.

#3. The legislature in the State of Karnataka enacted the Reservation Act 2018 after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The grievance of the petitioners is that the state legislature has virtually re-enacted the earlier legislation without curing its defects. According to the petitioners, it is not open to a legislative body governed by the parameters of a written constitution to override a