B K PAVITHRA & Ors. v. UNION OF INDIA & Ors.

Dr. Rajeev Dhavan, Shekhar Naphade, Ms. Indira Jaising, Dinesh Dwivedi, Basava Prabhu S. Patil, R. Balasubramaniam, Sr. Advs., Kumar Parimal, Smarhar Singh, Anuj Saxena, Mohd. Naved, Ms. Nehmat Kaur, Prakash Sharma, Rameshwar Prasad Goel, Ms. Prakrati Raj, Achyut Saxena, Mohd. Naved, Rahul Dev Singh, V.N. Raghupathy, Ms. Rachitha Hiremath, Chinmay Deshpande, Geet Ahuja, Mahendra Pal Gupta, Prakash Jadhav, Shubrahanshu Padhi, Ashish Yadav, Rakshit Jain, Ms. Shraddha Deshmukh, B.V. Balaram Das, S.K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Dinesh Kumar Garg, Dhananjay Garg, Abhishek Garg, S.J. Amith, Dr. (Mrs.) Vipin Gupta, Sarbendra Kumar, R.P. Goyal, Kabir Dixit, Joseph Aristotle S., Advs. for the appearing parties. A B C D E F G H 1044 SUPREME COURT REPORTS [2020] 4 S.C.R. A The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

#1. On 10 May 2019, this Court delivered its judgment in B K Pavitra & Ors. v Union of India & Ors.1 (“B K Pavitra II”), upholding the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservations (to the Posts in the Civil Services of the State) Act 20182. The conclusion which was arrived at by the Court is extracted below: “144. For the above reasons, 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.”

#2. 277 applicants are before this Court in three Miscellaneous Applications3. The reliefs sought in the lead MA are thus: “(a) Direct the State of Karnataka to implement ‘post based reservation’ in terms of the judgment passed by this Hon’ble Court in R.K. Sabharwal vs State of Punjab – (1995) 2 SCC 745 and to re-work all promotions on ‘post’ basis before any further action. (b) Direct the State of Karnataka to apply ‘creamy layer’ and to exclude individuals belonging to the Scheduled Castes and Scheduled Tribes who no longer require reservation under Article 16(4-A) of the Constitution with a further direction to the State to apply creamy layer at entry level to disqualify those who were creamy 1 (2019) 16 SCC 129 2 “Reservation Act 2018” 3 “MAs” B C D E F G H B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.] 1045 layer at that stage and to conduct the exercise from 17th June, 1995, i.e. the date of the Seventy Seventh Amendment. (c) estrain the State and its instrumentalities from taking any action where, no exercise is undertaken for that service or cadre on adequacy or where there is adequacy of representation particular when every specific application of order in relation to each cadre must be Nagaraj compliant.” Similar reliefs have been sought by the applicants in the other two MAs.

#3. Dr Rajeev Dhavan, learned Senior Counsel prefaced his arguments by submitting that: (i) The present MA is for directions and not for review of the recent judgment of this Court in B K Pavitra II; (ii) The directions which have been sought emanate from the judgment of this Court in B K Pavitra II.

#4. The Government of Karnataka issued a Government Order4 on 15 May 20195. The preamble to the GO notes that on 27 February 2019, instructions have been issued for implementing the Reservation Act 2018 subject to the judgment that would be delivered by this Court on the validity of the Reservation Act 2018. Subsequently, in pursuance of an interim order of this Court dated 1 March 2019,6 instructions were issued in a GO dated 5 March 2019 to the effect that no further action should be taken for implementing the GO dated 27 February 2019 until further directions. Following the judgment of this Court in B K Pavitra II upholding the Reservation Act 2018, the Government of Karnataka, by the GO dated 15 May 2019 withdrew the earlier GO dated 5 March 2019 and directed all appointing authorities to abide by the GO dated 27 February 2019 in the implementation of the Reservation Act 2018.

#5. On 24 June 2019, a circular was issued by the Government of Karnataka7. The circular notes that while preparing the seniority lists 4 “GO” 5 Government Order No. DPAR 186 SRS 2018, Bengaluru. 6 In IA 36981 of 2019 in Writ Petition (C) No. 764 of 2019 7 No : DPAR 186 SRS 2018 A B C D E F G H 1046 SUPREME COURT REPORTS [2020] 4 S.C.R. A B C D E F G in conformity with the GO dated 27 February 2019, meetings were held under the auspices of the Chief Secretary and Additional Chief Secretary to the Government of Karnataka, following which a list of Frequently Asked Questions8 has been prepared together with answers. The annexure to the circular contains a reference to the FAQs and the answers provided by the Government.

#6. Dr Rajeev Dhavan, learned Senior Counsel has more specifically adverted to items 2 and 3 of the FAQs in the annexure which are extracted below: “2.Whether to consider the scheduled caste and scheduled tribe candidate for promotions for the purpose of calculating their representation for such of the candidates who are selected in general merit rather than against the roaster points under direct recruitment. Answer: Even though the scheduled caste and scheduled tribe candidates are selected under general merit rather than against roaster points under direct recruitment, they shall be considered against their roaster points for the purpose of calculating their representation. This has been clearly told in the Government Order No. DPAR 29 SBC 77 dated 01.06.1978 and the same point is explained in the form of an example in the Schedule of the Act 2017. 3. Whether to consider the total no. of post in the respective cadres while revising the seniority list from 27.04.1978? or to consider the number of Government employees working in the respective cadre (Excluding the vacant post of the cadre strength) Answer: The consequential seniority is to be given to those belonging to the reserved category employees who have been promoted against promotional roaster points at the time of revising the seniority list from 27.04.1978 to 02.02.1999.

3.1 After the date 3.2.1999, only it is to be revised by considering on the basis of total number of Government employees in the respective cadres (Cadre working strength excluding vacant posts). Thus it is not allowed to calculate the representation on the basis of total number of posts in the respective cadres. In H 8 “FAQs” B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.] 1047 this regard attention is drawn towards Government order number DPAR 21 SBC 97 dated 03.02.1999 and Government order even number dated 13.04.1999.”

#7. The grievance of the applicants is that until the backlog is cleared, the proportion of Scheduled Castes/Scheduled Tribes will exceed 15 per cent and 3 per cent. The principal points which have been urged in the present MAs are: (i) The State government has not taken any step to correct the illegality of following a vacancy-based roaster since 27 April 1978, when the policy of reservation in promotions was introduced in the State Civil Services of Karnataka; (ii) The State government was bound by the statement contained in its Counter Affidavit filed before this Court in B K Pavitra II that the reservation policy would be implemented on the principle of post-based reservations; (iii) Since reservations in the state are contemplated retrospectively from 27 April 1978, the State government is obliged to apply the ‘creamy layer’ principle to disqualify those who fall within the creamy layer at the entry level and this exercise should be conducted at least from 17 June 1995, when the Seventy Seventh Amendment to the Constitution came into force; and (iv) Though it was mandatory for the State of Karnataka to balance Article 16(4-A) against Article 16(1) of the Constitution and to collect cadre-wise data before implementing the Reservation Act 2018, the GO dated 15 May 2019 and the circular dated 24 June 2019 are silent on the above issues as a result of which, the State government is implementing the Reservation Act 2018 in an arbitrary manner.

#8. Dr Dhavan relied on the inherent powers of this Court, as recognised by Order LV of the Supreme Court Rules 20139 to urge that the invocation of the jurisdiction of this Court in the form of the present MAs is based on the recourse to that inherent power. Reliance 9 “2013 Rules” A B C D E F G H 1048 SUPREME COURT REPORTS [2020] 4 S.C.R. A B C D E F G H in this regard was placed on the decisions of this Court in Himachal Pradesh Scheduled Tribes Employees Federation v Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh10 and Abu Salem Abdul Qayyum Ansari v Central Bureau of Investigation11.

#9. Mr Shekhar Naphade, learned Senior Counsel appearing on behalf of the applicant in MA 1324 of 201912, submitted that no data had been collected for the departments in which the applicants have been engaged as required by the judgment of this Court in Nagaraj v Union of India13.

#10. Mr Basava Prabhu S Patil, learned Senior Counsel and Mr Dinesh Dwivedi, learned Senior Counsel have opposed the MAs and urged that: (i) The prayers in the MAs are not adjunct to the main decision of this Court in B K Pavitra II; and (ii) The applicants have sought to challenge the subsequent directions and clarifications issued by the State government through the present MAs. The MAs, it was urged, are not maintainable.

#11. Ms Indira Jaising, learned Senior Counsel submitted that: (i) No provision of law has been invoked while filing the present MAs; (ii) This Court, upon delivering its decision on 10 May 2019, has been rendered functus officio; (iii) There is a bar contained in Order XII Rule 3 of the 2013 Rules for entertaining such an application, except for correcting arithmetical errors; and (iv) A petition for review has been filed by the applicants and hence the MAs are not maintainable.

#12. Addressing the Court on the reliefs which have been sought in the MAs, Ms Jaising submitted that: