Ramegowda & Ors, Vs. State of Karnataka & ANR  INSC 69 (24
RAMASWAMY, G.T. NANAVATI
CIVIL APPEAL NOS. 492-98, 501-02 &/499 OF 1997 (Arising out of SLP (C) Nos.
6086-87/95, 17091-95/96, 5152- 53/96 and 10429/96) O R D E R Leave granted. We
have heard learned counsel on both sides.
appeals by special leave arise from the order of Karnataka Administrative
Tribunal, made on April
29, 1994 in
Application Nos. 3727/82 and batch.
admitted position is that under Karnataka Civil Services (General Recruitment)
Rules, 1977, the Government exercising the power under proviso to Article 309
of the Constitution has amended Rule 8 and introduced proviso thereto. It reads
Provision for reservation of appointments or posts:- Subject to provisions of
sub-rule (3) of Rule 9, appointments or posts shall be reserved for the members
of the Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward
Classes to such extent and in such manner as may be specified by the Government
under clause (4) of Article 16 of the Constitution of India." As a result
thereof, the Government is empowered, in consistency with Article 335 of the
Constitution, to a point by promotion by way of reservation of the members
belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes to
such extent and in such manner as may be specified by the Government under
clause (4) of Article 16 of the Constitution. By another order dated April 1, 1992, the second proviso was introduced
which reads as under:
that, notwithstanding anything in the rules of recruitment specially made in
respect of any service or post, the backing vacancies in the promotional quota
shall be determined and implemented with effect from 27th April, 1978.
The backlog vacancy means the extent of the number of vacancies available under
the roster system upto the level of lowest category in group-A posts calculated
from 27th April 1978." Under this proviso, the
Government has introduced the principle of filling up of the posts reserved for
Scheduled Castes, Scheduled Tribes and Other Backward Classes including the
backlog vacancies in promotional quota effective from April 27, 1978. These rules came to be challenged
in the Tribunal. The Tribunal had held that first proviso cannot be made with
retrospective effect. The view taken by the Tribunal is wholly unsustainable.
Constitution Bench of this Court had held in B.S. Vadera vs. Union of India
[AIR 1969 SC 118] that rules made under the proviso to Article 309 of the
Constitution are legislative in character and, therefore, they could be made
with retrospective effect. The same principle was reiterated in several
decisions, viz., Chief Secretary to Government of Andhra Pradesh & Anr. V/s.
V.J. Cornelius etc. [AIR 1981 SC 1099], P.D. Aggarwal & Ors. V/s. State of U.P. & Ors. [AIR 1987 SC 1676], Supreme Court
Employees Welfare Association V/s. Union
of India & Ors. [AIR 1990 SC 334], R.L. Bansal & Ors. V/s. Union of India & Ors. [AIR 1993 SC 978] and V.K. Sood
V/s. Secretary, Civil Aviation & Ors. [AIR 1993 SC 2285]. The view of the
Tribunal that the rules cannot be made with retrospective effect is ex-facie
illegal and unsustainable. The rules also were struck down on yet another
ground, namely, until the guidelines have been provided for working out the
rules, the rules are non est and, therefore, the second proviso is ultra vires.
This view also is not correct. The operation of the rules does not depend on
the guidelines to be laid. Merely because the guidelines have not been provided
in the manner in which the backlog vacancies are required to be filled up, the
second proviso to Rule 8 made in exercise of the power under proviso to Article
309 does not become non est. At best, it remains unworkable. The Government is
required to formulate the guidelines under Article 16(4) of the Constitution as
to the manner in which the backlog vacancies are required to be filled up.
Admittedly, such guidelines have not been provided including preparing the
roster, identifying the backing vacancies and the placement of the officers
between the general and reserved categories which were annexed for first time
along with the counter-affidavit filed in the Tribunal. Under these
circumstances, the view of the Tribunal is not correct. It may be construed
that to the extent the second proviso remains unworkable until the guidelines
under Article 16(4) have been issue by the State Government. Under these
circumstances, whatever promotions have been given, they would remain valid
subject to laying down of the guidelines and working out of the backlog
vacancies in the light of the guidelines provided thereunder and adjustment of
the 11 officers promoted under second proviso. All the promotions will be
subject to the above fitment and adjustment between general candidates and the
reserved candidates in the respective categories, namely, Scheduled Castes and
Scheduled Tribes and other Backward Classes in accordance with the guidelines
and the law laid down by this Court. The State Government is directed to
complete the exercise within a period of three months from the date of the
receipt of the order.
appeals are allowed to the above extent. No costs.