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, 2018: Validity of – Held: Reservation Act 2018 is constitutionally valid – Reservation Act 2018 has cured the deficiency noticed by *B K Pavitra I in respect of the Reservation Act 2002 – Reservation Act 2018 does not amount to usurpation of judicial power by the state legislature – The Act is a valid exercise of the enabling power conferred by Art. 16 (4A) – Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2002 – Constitution of India – Art. 16 (4A). 2018 Act, if overruled or nullified B K Pavitra I case – In B K Pavitra I case, the Reservation Act 2002 was held to be unconstitutional since the State did not collect the quantifiable data on the three parameters enunciated in Nagaraj case-inadequacy of representation, backwardness and overall efficiency, before providing for reservation in promotion and consequential seniority – Thereafter, enactment of 2018 Act – Held: 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 in Nagaraj case – State legislature of Karnataka, by enacting the Reservation Act 2018, has not nullified the judicial decision in *B K Pavitra I, but taken care to remedy the underlying cause which led to a declaration of invalidity in the first place – Thus, the Reservation Act 2018 cured the deficiency noticed by *B K Pavitra I in respect of the Reservation Act 2002 – Such a law is valid because it removes the basis of the decision – Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2002.

s. 4 – Protection of consequential seniority already accorded from 27.04.1978 onwards – Provision in regard to retrospectivity, whether arbitrary or unconstitutional – Held: Provisions are neither arbitrary or unconstitutional – 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 27.04.1978 shall be valid and shall be protected – Since decision in Virpal Singh held that the catch-up rule would be applied only from 10.02.1995, decision in Ajit Singh II specifically protected the promotions granted before 01.03.1996 without following the catch-up rule; and in Badappanavar’s case, promotions of reserved candidates based on consequential seniority which took place before 01.03.1996 were specifically protected, it was logical for the legislature to protect consequential seniority – Object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points.

Constitution of India: Arts. 200 and 201 – Assent to the Bill – Reservation of the Bill( which led to Reservation Act, 2018) by the Governor for the consideration of the President – Power u/Art. 200 – Exercise of – Held: Once the Bill was reserved by the Governor for the consideration of the President, it was for the President to either grant or withhold assent to the Bill – President having assented to the Bill, the requirements of Art. 201 were fulfilled – Validity of the assent by the President is non-justiciable – State Government, was of the view that there was no necessity of reserving the Bill for the consideration of the President, since in its view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul of existing central legislation on the subject or that it was beyond legislative competence or derogated from the fundamental rights – This objection of the State Government cannot cast doubt upon the grant of assent by the President – 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, 2018. Art. 16(4A) and (4B) – Ratna Prabha Committee report – Collection of data by State on adequacy of representation and impact on efficiency – Exercise of judicial power on propriety and sufficiency – Held: Court should recognize the circumspection with which judicial power must be exercised – Judicial review must traverse conventional categories by determining as to whether the Ratna Prabha Committee considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted. Art. 16(4A) and (4B) – Ratna Prabha Committee report – Report, commissioned to collect information on cadre wise representation of SC and ST employees in all government departments and on backwardness of SCs and STs; and study the effect on the administration due to the promotion of SCs and STs – Report, whether constituted an adequate and appropriate basis to support the validity of the Reservation Act and its implementation – Held: Ratna Prabha Committee report is valid – After the decision in *B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise – Committee has not based its conclusions on any extraneous or irrelevant material – In adopting recourse to sampling methodologies, the Committee has not acted arbitrarily – The exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed – State analysed the data which is both relevant and representative, before drawing its conclusions – Even if there were some errors in data collection, that would not justify the invalidation of a law which the competent legislature was within its power to enact – Furthermore, there is no merit in the challenge to the Ratna Prabha Committee report on the ground that the collection of data was on the basis of groups A, B, C and D as opposed to cadres – Collection of data on the basis of groups A to D does not by its very nature exclude data pertaining to cadres – Since, the group includes posts in all the cadres in that group, it can logically be presumed that the State has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well – 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, 2018.

Art. 16(1) and (4) – Equality – Substantive versus formal equality – Constitutional content of – Held: For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them – Reservations are not an exception to the rule of equality of opportunity, rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born.

Interpretation of the Constitution – Held: Constitution is a transformative document – Realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts – Constitution was intended by its draftspersons to be a significant instrument of bringing about social change – Realisation of the transformative potential of the Constitution has been founded on the evolution of equality away from its formal underpinnings to its substantive potential.

Art. 335 proviso – Claims of Scheduled Castes and Scheduled Tribes to services and posts – Constitutional justification for efficiency in administration – Held: Under Art. 335 consideration of the claims of SCs and STs in making appointments to services and posts in connection with the affairs of the Union or of a State is to be in a manner consistent with maintaining the efficiency of administration – Proviso to Art. 335 specifically protects provisions in favour of the SCs and STs for relaxing qualifying marks in an examination; lowering the standards of evaluation; or reservation in matters of promotion – Proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field – Proviso is not a qualification to the substantive part of Art. 335 but it embodies a substantive effort to realise substantive equality – Need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs. Art. 335 – Phrase “efficiency of administration” – Definition of – Held: Constitution does not define the phrase “efficiency of administration” – Art. 335 cannot be construed on an assumption that roster point promotees drawn from SCs and STs are not efficient or that efficiency is reduced by appointing them – Benchmark for the efficiency of administration is not the performance of a qualified open category candidate – Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people – Inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency – Hence, while interpreting Art. 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration – Since inclusion is inseparable from a well governed society, there is, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments. Arts. 335, 16(4) and 46 – Reservation for SCs and STs – Principal of meritocracy – Held: Providing of reservations for SCs and the STs is not at odds with the principle of meritocracy – “Merit” must not be limited to narrow and inflexible criteria such as one’s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration – Proviso to Art. 335 allows for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs – If the government’s sole consideration in appointments was to appoint individuals who were considered talented or successful in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined – Thus, a “meritorious” candidate is not merely one who is “talented” or “successful” but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration. Arts. 16 (4A), (4B), 16(1) and 14 – Reservation – Concept of creamy layer – Applicability to SCs and STs – Plea that concept of creamy layer is inapplicable to the SCs and STs; and that the SCs and STs cannot be split or bifurcated and the adoption of the creamy layer principle would amount to a split in the homogenous groups of the SCs and STs – Held: Cannot be accepted – Creamy layer principle sounds in Arts. 14 and 16(1) – Creamy layer principle is a principle of equality. Arts. 16 (4A) and (4B) – Reservation – Concept of creamy layer – Application of the concept of creamy layer in assessing the validity of the Reservation Act 2018 – Held: 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 – 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 – Concept of creamy layer has no relevance to the grant of consequential seniority – Consequential seniority is a concept purely based in service jurisprudence – Thus, incorporation of consequential seniority would not violate the constitutional mandate of equality – Protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test – Arts 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test – 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, 2018. Arts 16(4A) and (4B) – Reservation in promotion – Plea that over representation for SCs and STs in Karnataka Power Transport Corporation Limited and PWD due to reservation in seniority in the cadre of Superintending Engineer and Engineer in Chief – Held: Cannot be accepted in view of the report of the Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka, which was taken as representative of the position in public employment under the State – KPTCL and PWD fall within the administrative control of one of the departments. Legislation: Curative legislation – Scope and permissibility of – Held: Curative legislation is constitutionally permissible – It is not an encroachment on judicial power – Legislature has the plenary power to enact a law, both with prospective and retrospective effect – Where a law has been invalidated by the decision of a constitutional court, the legislature can amend the law retrospectively or enact a law which removes the cause for invalidation – Legislature cannot overrule a decision of the court on the ground that it is erroneous or is nullity – However, it can either amend an existing law or to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review – Declaration by a court that a law is constitutionally invalid does not fetter the authority of the legislature to remedy the basis on which the declaration was issued by curing the grounds for invalidity – Legislature cannot simply override the declaration of invalidity – It has to remedy basis on which it was held to be ultra vires – Law may have been held to be invalid on the ground that the legislature which enacted the law had no legislative competence on the subject matter of the legislation, or a law may have been declared invalid on the ground that there was a breach of the fundamental rights contained in Part III of the Constitution.

The constitutional validity of 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 2002 providing for consequential seniority was challenged in B K Pavitra v Union of India case (*B K Pavitra I). This Court invalidated the Reservation Act 2002 since no exercise of data collection was carried out by the State of Karnataka as mandated by the M Nagraj case, to provide for consequential seniority to the scheduled castes and scheduled tribe candidates. Thereafter, the Government of Karnataka constituted the Ratna Prabha Committee to submit report on backwardness and inadequacy of representation of SCs and STs in the State Civil Services and the impact of reservation on overall administrative efficiency in the State of Karnataka. On the basis of the report, the State of Karnataka enacted 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 2018, wherein section 3 provides for reservation in promotion and section 4 provides for protection of consequential seniority from 27th April 1978 onwards. Hence, the instant matters challenging the validity of the Reservation Act, 2018.