Ashok
Kumar Gupta , Vidya Sagar Gupta & Ors Vs. State of U.P. & Ors [1997] INSC
335 (21 March 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK
ACT:
HEADNOTE:
AND
WRIT PETITION (C) NO. 511 OF 1995
K.
Ramaswamy, J.
Leave
granted.
This
appeal by special leave arise from the judgment dated 4th August, 1983 of the
Allahabad High Court, Lucknow Bench, In Writ petition No. 3088 of 1993. The
Writ petition also arises from the same facts but is filed by different set of
officers challenging the promotion of respondents 2 to 10 (in the writ
petition) the 2nd respondent (in the civil appeal) to the post of
Superintending Engineers (Civil), Chief Engineer Level-II (Civil, Chief
Engineer, Level-I and Engineer-in-Chief in Public Works Department of the
Government of Uttar Pradesh. The petitioners seek a writ of mandamus to
restrain the first respondent from Nos. 2 to 10. They also seek writ of
certiorari to quash the orders dated March 12, 1981 appointing the second
respondent as Superintending Engineer on ad hoc basis an on regular basis
w.e.f. April 10, 1991 as temporary Chief Engineer by order dated November 7,
1994 and orders promoting Harbans Lal and others as Superintending Engineers.
The
Governor exercising the power under proviso to Article 309 of the Constitution
made the Uttar Pradesh Service of Engineers (Public works Department) (Higher)
Rules, 1990 effective from October 15, 1990
(for short, the 'Rules'). They came into force at once by operation of Rule
1(2). The services comprised thereunder are grouped as a Group 'A' posts,
consisting of various posts. Under sub-rule (1) of Rule 4 which speaks of
"Cadre of the Service", the strength of the service and of each
category of the posts shall be such as may be determined by the Government from
time to time. Sub-Rule (2) gives power to determine the strength of service and
of each category of posts until they are ordered to be varied. The posts of
Executive Engineer (Civil), Executive Engineer (Electrical and Mechanical),
Superintending Engineer (Civil), Superintending Engineer (Electrical and
mechanical), Chief Engineer Level-II (Civil), Chief Engineer Level-II
(Electrical and Mechanical), Chief Engineer Level-I (Civil), and Engineer-
Chief have been specified under tow categories, viz., the permanent and temporary
cadre and strength in the respective cadres has been enumerated. In part III,
Rule 5 provides method of recruitment by way of promotion from the substantive
post of Assistant Engineers to the post of Executive Engineers and recruitment
by promotion from amongst substantive post of Executive Engineers to the post
of Superintending Engineers; from the Executive to Superintending Engineer
Level - II and from Chief Engineer Level - II to Engineer-in-Chief
respectively. Rule 6 prescribes reservation for the candidates belonging to
Scheduled Casts (for Short, 'Dalits") and Scheduled Tribes (for Short, ,
'Tribes') and other categories in accordance with the orders of the Government
in force at the time of the recruitment. The qualifying service in the lower cadre
for promotion to higher cadre is also prescribed. The procedure for
determination of the vacancies to be reserved under Rule 6 for Dalits, Tribes
and other categories has been provided in Rule 7.
Rule 8
adumbrates that t recruitment to the post of Executive Engineer (Civil) shall
be made on the basis of seniority subject to rejection of unfit and to the post
of Superintending Engineer and above shall be made on the basis of merit
thorough a Selection Committee to be constituted of officials specified thereunder.
Recruitment to the post of Chief Engineer Level - II is by the process of
screening and selection. The details thereof ar not material, hence omitted.
Rule 9 empowers the Government to appoint the selected candidates in the order
of seniority. If more than one persons are recruited in one selection by a
committee appointed in their behalf, a combined order indicating the names of
persons has to be issued in the seniority order as it stood in the earlier
cadre. The procedure has been prescribed in Rule 10 for declaration of the
probation etc.
Rule
11 empowers the Government to confirm the appointee at the end of the probation
of the extended probation. Rule 12 prescribes procedure for determination of
seniority. The other details are not material, hence are omitted. Rule 18 is
saving provision which provides that nothing in this rule shall effect
reservations and other concessions required to be provided for Dalits, Tribes
and other special categories of persons in accordance with the orders of the Government
issued from time to time in that regard.
By
proceedings dated March 8, 1973, the Government had provided percentage in
reservation for Dalits and Tribes @ 18% and 2% respectively in all services or
posts to be filled in by promotion through process of selection either by
direct recruitment or by competitive examination or limited department or by
competitive examination or limited departmental examination . The said
percentage has been increased by 21% for Dalits and retained 2% for the Tribes
under the U.P. Service (reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 (for short, the U.P. Act') that came into
force with effect from December 11, 1993. It has provided for the first time
reservation @ 27% to the Other Backward Classes, 1973 Rules provided that if
sufficient number of suitable candidates belonging to Dalits and Tribes were
not available against reserved vacancies at the time of selection and if the
vacancies were required to be filled up in the public interest, general
category employees could be appointed on ad hoc basis. It had to be so
mentioned in their orders of appointment that the provision/appointments were
ad hoc and conferred no rights and that the vacancies would be carried forward
to the following year. Carried forward vacancies would be carried forward to
the following year. Carried forward vacancies could not exceed 45% of the total
of such vacancies etc. Under Rule 3 of 1973 Rules, for suitability purpose,
Dalits and Tribes were treated to be same as the general candidates, i.e., the
standard of suitability was same for all the candidates. The Dalits and Tribes
who fulfilled the minimum required standard of merit would be selected upto to
the limit of reservation. Under Rule 4, when Dalits and Tribes were promoted
substantively or temporarily to the above reserved vacancies for the first
time, their confirmation would be done under normal rules.
The
rule of the reservation was not applicable again for conformation in their
case.
Through
the Government Omitted under 1973 Rules reservation in the posts pursuant to
which required recruitment by promotion on the principle of seniority subject
to rejection of unfit, by the rules issued on March 20, 1974, the Government
amended the same and restored recruitment by promotion to the posts on the
prescribed percentage. The reservation was limited to those services only where
direct recruitment was not more than 50%. The promotion thereafter was to be
done according to rules and regulations under those provisions of reservation.
The candidates who were eligible and suitable on the basis of seniority and
were not found unfit, would be selected upto the reservation limit. Rule 2 of
1974 Rules provides for promotion to the posts where merit was also the consideration.
The selected candidates from amongst the Dalits and Tribes and the general
candidates would be shown in separate eligibility list to each category. The
selected candidates were to be placed according to their inter se seniority of
the original post. Afterward, all the three lists were to be compiled according
to the inter se seniority and promotion were to be given against the vacancies
accordingly and common seniority list was to be maintained. By orders issued on
December 27, 1974, it was further clarified that
"after reconsideration, the Government has withdrawn the restriction,
i.e., reservation will be limited to those services on where direct recruitment
is not more than 50%". The above referred G.O.
Will
be treated to be modified accordingly. thus, the Dalits and Tribes were to get
reservation in promotion on all posts/services. By proceedings dated July 5, 1984, it was further amplified,
vis-a-vis that these order referred to hereinbefore thus: "The Government
after reconsideration feels it necessary to clarify the process of preparation
of separate eligibility lists in this regard".
"Rule
2 of the 1984 order provided that :
"The
total vacancies for promotion on the basis of seniority subject to rejection of
unfit arises in any department/office at any time shall be divided into general
candidates and SC/ST candidates on the basis candidates on the basis of G.Os. issued
from time to time for reservation in promotions for these special categories.
Each category shall be prepared separately in the order of their inter se
seniority for available vacancies for each category and selection have been
done from such eligibility list for each category and selection have been done
from such eligibility list for each category on the basis of seniority subject
to rejection of unfit. A combined list shall be prepared after selection of
candidates form each category according to their inter se seniority.
For ad
hoc promotion also the above principle was made applicable. In this legal
backdrop, it would thus, be seen that preceding 1990, promotions in State
Service where regulated by above instructions and from 1990 Rules, they formed
statutory base. The rule of reservation in promotion at all levels has, thus,
been provided for the Dalits and Tribes. Under The U.P. Act it was extended to
the OBCs only in direct recruitment.
When
respondents 2 to 10 were considered and recruited as promotees from the cadre
of Executive Engineer to that of Superintending Engineer and above cadres on
the basis of merit, the appellants came to challenge their appointments.
It was
contended in the High Court and reiterated by the learned counsel, M/s. Prag P.
Tripathi and Anil Kumar Gupta that in Indira Sawhney & Ors. v. Union of India & Ors. [1992 supp. (3) SCC 217] know as
Mandal's case, eight of the nine judges, per majority [Ahmadi,j. as he then
was, having not participated on this issue] held that appointment by promotion
under Articles 16(2) and 16(4) of the Constitution is unconstitutional. In
particular, they placed strong reliance on the judgment of jeevan Reddy, J.
Speaking for three judges) and Sawant, J. (for himself) in that behalf.
They
referred to question No. 7 framed by the Bench and contended that the finding
has been recorded in paras 859 (7) and 860(8) by Jeevan Reddy, J., in paras
242-431(10) by Pandian, j., In paras 323-24-D by Thommen, J. and Kuldip Singh,
J. In para 381, by Sawant, J. in Para
553-553 and by Sahai, J. In paras 623-625. On that premise, it was contended
that the 1996 Rules are ultra vires and the promotion of the respondents
unconstitutional. It is also contended that having declared the promotions
under Articles 16(1) and 16(4) of the constitution as unconstitutional,
overruling the judgment of a Bench of five judges of this Court in the General
Manager, southern Railway. Rangachari [(1962) 2 SCR 586] the same being not
correct in law. Jeevan Reddy, J. with whom Kania, C.J. and Venkatachaliah, J.,
as he then was, had concurred, and Pandian, J. Having also concurred, expressly
overruled prospectively the applicability of the rule of reservation in
promotion operative for a period of five year November 16, 1992 i.e. the dare of the judgment. The contention of the
petitioners is that it is only a minority view. The ratio, therefore, is
unconstitutional. Under Article 145(5) of the Constitution, it does not
constitute majority judgment.
Having
declared that the reservation in promotion as unconstitutional , it is void ab
initio under Article 13(3) of the Constitution. It bears, thereby, no legal or
constitutional existence. The promotion made to respondents 2 to 10 at all
levels therefore, is unconstitutional. The operation of the unconstitutional
direction cannot be postponed by prospective overruling of Rangachari's ratio.
The
judgment of Jeevan Reddy, J. concurred by Pandian, J.
being
minority judgment, cannot operate prospectively. Even if it assumed that it is
a mojority judgment, it is inconsistent with and contrary to the constitutional
scheme of the Articles 14 and 16 violating the fundamental rights of the
appellants/petitioners and, therefore, the power under Article 142 of the
Constitution cannot be exercised to curtail the fundamental rights guaranteed
in Part III of the Constitution.
There
is a distinction between the conclusions and directions. Justice Pandian and
Justice Sawant expressed their concurrence on the conclusions and not with
directions given by Jeevan Reddy, j. The direction for prospective overruling
of Rangachari's case and for operation of Mandal's ratio after five years in only
by a minority of four judge. It being inconsistent with and contrary to the
scheme of the Constitution in exercise of the power of judicial review, the
Court cannot postpone the operation of the judgment to a future date, which
violates there fundamental rights. In support thereof, they placed strong
reliance on the judgment in A.R. Antulay v. R.S. Nayak & Anr. [(1988) 2 SCC
602, para 15] and Delhi Judicial Services Association, Tis Hazari V. State of
Gujarat & Ors. [(1991) 4 SCC 406, para 37[. Having declared the reservation
in promotions as void, the prospective over-ruling is illegal as it is no part
of the doctrine of stare decisis. In support thereof, they placed reliance on
Woman Rao & Ors V. Union of India & Ors. [1981 (2) SCR 1]. Postponement
of operation of the judgment amounts to judicial legislation which is
inconsistent with the power of judicial review which empowers only to declare
the law to be unconstitutional and not to make the law.
It is
further contended the exercise of Article 142 to postpone the operation of
judgement after five years amounts to perpetration of void action and is
violative of the appellants' fundamental rights guaranteed under Articles 14
and 16 (1) of the Constitution. The order under Article 142, being only a remedial
measure to do complete justice, cannot operate as a substantive right. The
direction to operate the scheme of reservation in promotion for five years is
inconsistent with and in derogation of the substantive right to equality
guaranteed under Articles 14 and 16(1).
Therefore,
the Scheme is unconstitutional. Prospective operation of Mandal's case amounts
to judicial legislation and amounts to temporary amendment to the Constitution
or an addition in the from of proviso to Articles 16(1) or 16(4) of the Constitution.
Shri
Rakesh Dwivedi, learned Additional Advocate General, contended that the Micro
Lexicon surgery conducted by the counsel for the appellants-petitioners to make
distinction between conclusions and directions requires no detailed
examination. The end result is that five out of eight learned judges, who
opined in the negative on the issued reservation in promotion direction that
reservation, from that date, will continue for five years, while giving liberty
to the appropriate Government to make suitable legislative amendments. In fact,
the right to promotion is a facet of right to recruitment to a post or a office
under the State. No express provision in required in this behalf in Article
16(1) or 16(4) of the Constitution. After the judgment in Mandal's case,
however, the Constitution (77th Amendment) Act was enacted by the parliament
which was come into force w.e.f. June 17, 1995 for which date Article 16 (4A) was brought into the
Constitution. It provides that "nothing in this Article shall prevent the
State from making any provision for reservation in matters of promotion of any
class or classes of posts in the services under State in favour of Scheduled
Castes and Scheduled Tribes which, in favour of Scheduled Castes and Scheduled
Tribes which , in the opinion of the State, are not adequately represented i
the services under the State". Thereby, the Parliament has re-manifested
its policy that right to reservation in promotion is a part of constitutional
scheme or public policy in order to accord socio-economic empowerment and
dignity of person and status to the Dalits and Tribes. The right to reservation
in promotion would be available to Dalits and Tribes in any, class or class, of
post in the state does not get adequate representation of Dalits & Tribes.
This due to the historical evidence that the Dalits and Tribes are socially,
educationally and economically deprived, denied and disadvantaged sections of
the society to make their right to equality meaningful. They are equally
entitled to the facilities and apportunities, by way of reservation in
promotions, and the State in compliance of the mandate of the Preamble. Article
14, 21, 38, 46 and 335 of constitution, has provided them with the right to
equality of opportunity is all post of classes of posts in the services under
the State. Therefore, the majority section of the society are required to
reconcile to an accept the equal fundamental rights of Dalits and Tribes
guaranteed under Articles 16 and 14 of the Constitution. The right to reservation
in promotions is not an anathema to right to equality enshrined to other
general candidates. The competing rights of both should co-exist and
consistently be given effect by balancing the abstract doctrine of equality and
the distributive justice would filled in the gap. Only upholding of affirmative
action of State by pragmatic interpretation under rule of law would enable the
State to harmonise competing rights of all sections of the society.
There
is no dichotomy or distinction between the conclusion and directions. Paragraph
680(8) should be read with the conclusion of Sawant. J. in paragraph 552 and
555 and, therefore, the opinions of Kania, CJ. Venkatachaliah, Pandian, Sawant
and Jeevan Reddy JJ., as the issue of reservation in promotion constitute
majority of five judges under Article 145(5) of the Constitution. Prospective
over over-ruling is a part of constitutional policy. For application, different
perceptions would be considered and given effect while over - ruling the prior
decision.
Rangachari's
ratio had operated as constitutional law for over three decades and rights were
settled on the basis.
Therefore.
With a view to enable the appropriate Government to amend the law in theat
behalf, the operation of the judgment was postponed for five years. It is,
there fore, not judicial legislation but a part of the declaration granted by
the Court. In pith and substance, it is a facet of suspending the operation of
the judgement for the years so that the constitutional objective of providing
reservation in promotion to Dalits and tribes would operate of Punjab [(1995) 2 SCC 745] by a
Constitution Bench re- affirms that the decision in Mandal's case on promotion
was by a majority. Obviously Sabharwal's ration had upheld the principle of
reservation in promotions and applied "running account theory" put
forth by the State to give practical content to equality in results applying
the roster points earmarked for the Dalits and Tribes, apart from equal
opportunity to them to compete with the general candidates for general posts.
The employees from general sections and Dalits and Tribes are integrated in the
roster system to harmonise the competing interests. The Dalits and Tribes
Selected for promotion on merit in open competition are bot to be treated as part
of reserved quota. That contemporaneous understanding of the operation of law
is in accordance with the law laid in para 860(8) of Mandal's case. So, it is a
valid direction.
The
reservation in promotions in all the services or posts under the State of Uttar Pradesh was in vogue from March 1973. The
legislature of Uttar Pradesh reiterated the need for continuance of the
reservation not only in direct recruitment but also its continuance, as
mentioned in the U.P Act the U.P. Act came into force w.e.f. December 11, 1993 The judgment in Mandal's case was
delivered on November
16, 1992. All the
promotions made prior to that date were held valid in Mandal's case. The
impugned judgement of the High Court was rendered on August 4, 1993 while the Constitution (77th
Amendment) Act of 1995 came into force on June 17, 1995. The promotions of respondents came
to be made between November
17, 1992 and December 11, 1993, i.e., within five years of the
directions in para 860(8) in Mandal's case and agreed to by other learned
judges.
Therefore,
it was contended that the promotions to and appointment of the private
respondents is constitutional.
He
further contended that right to promotion is not a fundamental right to general
candidates while it is so in the case of Dalits and Tribes. It is subject to
rules. The policy of the Government as per the constitutional objectives is
that the Dalits and Tribes should be given adequate representation in all posts
or classes of posts and services under the State. Reservation in promotion is
one of the policies under the Constitution and the statutory share in the
governance makes no discrimination nor offend Article 14 as the rights of
general and reserved employees. are to be mutually balanced. The law is always
presumed o be constitutional until it is declared otherwise. The Rules and the
Act are constitutionally valid. By operation of Article 13(1),
pre-constitutional law, if declared void, is void only from the date of the
Constitution, namely, from January 26, 1950
and though the post-constitutional law may be void from its inception. To
adjust the competing rights of the general and Dalit and Tribe employees, there
is no prohibition for this Court to postpone the operation of the judgment in
Mandal's case or to so prospectively over-rule Rangachari's ratio as to be
operative from expiry of five years from the date of judgment. The intention
behind the direction appears to be that the law in the transition, as per the
constitutional scheme of reservation in promotions, would be smooth and operate
as a continuous scheme. If the Government makes no amendment to the statute,
after expiry of five years, the operation of the scheme of reservation in
promotion would come to a stop. By constitution (77th Amendment) Act, 1995, the
scheme of reservation in promotions in continued without any need to bring
about amendment to the statutory rules wince Article 16(4A) itself provided
constitutional operation of reservation in promotion obviating the necessity to
amend all statutory rules.
The
Prospective operation of law for 5 years is consistent with the doctrine of
stare decisis as the declaratory law becomes operative therefore. The ratio of
Antule's case has no application. Therein, the appellant- Antule was meted out
with a hostile discrimination denying him the normal trial and right of appeal
and he was subjected to special trial by the High Court, depriving him of the
statutory appeal violating his fundamental right to equality. Therefore, this
Court had held that the direction given under Article 142 to constitute a
separate Tribunal presided over by a High Court Judge was inconsistent with the
fundamental right to equality guaranteed by Article 14.
From
that perspective, it was held therein that the exercise of power under Article
142 should be consistent with the constitutional scheme. In Golaknath vs. State
of Punjab [(1967) 2 SCR 762 at 808], it was
held that the power of this Court under Article 142 is very wide and it cannot
be controlled by any statutory prohibition. In Union Carbide vs. Union of India
[(1991) 4 SCC 584 at 634 paragraph 83], this Court held that the competing
rights are required to be adjusted by balancing them. The Court in Mandal's
case, being conscious of the consequences and pervasive effect of its
declaration on the policy of reservation in promotions, by the arm of the
judicial review, extended the time to enable the executive to suitable amend
its law. This Court, therefore, set the time limit upto which existing law
would remain in operation, as the selection procedure is a continuous process
to fill up existing or anticipated vacancies each year. The gap between
equality in law and equality in results was bridged by Article 1694A). It is
not case of hostile discrimination meted out to any section of the citizens but
one of adjustment balancing the competing rights of two groups of the citizens
of the country. The directions issued, in exercise of the power under Article
142, therefore, was not in violation of the fundamental rights of the employees
belonging to the general category.
The
direction issued under Article 142 is, therefore, neither unconstitutional nor
contrary to the law. In fact, the direction is to prevent injustice as is
provided in Article 46 of the Constitution. In M. Venkateswarulu & Ors.
vs. Government
of A.P. & Ors. [(1996) 5 SCC 167], Union of India & Anr. vs. Madhav s/o
Gajanan Chaubal & Anr. [JT 1996 (9) SC 320], G.S.I.C. Karmachari Union
& Ors. Gujarat Small Industries Corpn. & Ors.
[JT 1997 (1) SC 384] and s.
Sathvapriva
& Ors. vs. State of A.P. & Ors. [1996] 9 SCC 466, this Court held that
the Constitution (77th Amendment) Act, 1995 has given effect to the law laid
down in Rangachari's case as enshrined in Articles 14 and 16(1) of the
Constitution.
Shri
Raju Ramchandran, learned senior counsel' appearing for private respondents,
while adopting the arguments of Shri Rakesh Dwivedi, argued that the
prospective over-ruling of Rangachari' ratio, the distinction of stare decisis
and the constitutional invalidation of a legislative enactment may be kept in
view.
The
ratio in Rangachari's case having prevailed the field for over three decades,
majority in Mandal's case opined that the ratio in Rangachari's case would
remain operative for a further period of five years. Exercise of the power of
judicial review and power under Article 142 are the judicial tools given to
this court to prevent injustice. By judicial craftsmanship, the directions came
to be issued to elongate the constitutional and public policy of reservation in
promotion, until appropriate amendments are brought on statute within five
years. He cited instances of staying the operation of the judgement by the High
Court, Pending grant of leave under Article 136. The decision to postpone the
effect of Mandal's case is a legal policy as a part of the inherent power
preserved in this Court by Article 142. This Court, by prospective operation of
a statute or operation of a judgment has no sanctioned any unconstitutional
scheme but intended to postpone the operation of the declaration of law to a
future date. In sampath Kumar vs. Union of India [(1987) 1 SCC 124], this
Court, with a view to void constitutional crisis in dispensation of service
dispute between public servants and the appropriate Government or
instrumentally, by the administrative Tribunals constituted under the
Administrative Tribunals Act, instead of declaring the Act ultra vires. issued
mandamus to make suitable amendments to the Tribunals Act so as to be
consistent with the constitutional scheme. The judicial creativity, therefore,
cannot be cribbed or crabbed by any set proposition or standard formulation.
They are required to be modulated depending upon the fact situation in a given
case on hand and the consequences of the judgment under consideration.
Rangachari's ratio having held the field for three decades, the conclusions and
the directions which are integral part of part 860(8) of Mandal's judgment are
part of ratio decidendi and are intended to be operative after a period of five
years from the date of the judgment unless.
By
then, suitable amendments are brought out.
Dr.
M.P. Raju, learned counsel appearing for the intervener, contended that the
Dalits and the Tribes have equal constitutional rights. The Constitutional has
provided in their favor protective and positive discrimination by providing for
reservation in promotions are part of equality of opportunity, status, social
and economic justice, dignity of person which were given effect to by the
Constitution (77th Amendment) Act, 1995. Reservation in promotion itself is a
fundamental right to the Dalits and Tribes. They claim equality of opportunity
at all levels or promotions to the respective cadres/grade/categories of posts.
The right to reservation in promotion is required to be balanced with competing
right to equality of the general employees.
Article
16(4A) gives effect to that balancing competing right. In St. Stephen College
vs. Delhi University [(1992) 1 SCC 558 in para 102], this Court worked out the
competing claims by a schemes directing minority institutions to fill up 50% of
admissions by the general candidates while ensuring to the minorities their
constitutional right under Article 30(1) to admit to students belonging to
minority community with balance 50% seats. Such declaration is consistent not
only with the scheme of the Constitution but also special protection of the
rights of the minorities.
Reservation
in promotions in Article 16(4A) also requires same interpretation. If so
viewed, there would be no violation of Article 13(2). The Prospective over-ruling
of Rangachari's ratio in Mandal's case, is constitutional and fulfils competing
equality between sections of the society.
Shri
Parag Tripathi, in reply, contended that Article 145(5) requires that for a
judgment to be majority judgment, concurrence of the majority learned Judges
constituting the Bench is necessary. There was no need for four other learned
Judges to express their concurrence with Jeevan Reddy, J. as they felt that the
reservation in promotion is void from the inception, by operation of Article
13(2). Unless they agreed to the view expressed by Jeevan Reddy, J., it could
not be a majority judgment. The Separate judgments of the learned judges are
self-operative from the date of the judgment in the absence their express
concurrence for prospective over- ruling of Rengachari ratio. The prospective
over-ruling evolved under Article 142 is inconsistent with the ratio in Waman
Rao's case which had held that an amendment to the Constitution violating the
fundamental right, unless the Act receives protective umbrella of Schedule IX,
is void from inception. The ratio in Mandal's case laid by Jeevan Reddy, J. and
agreed to by other three Judges does not amount to a statutory law nor it
receives any protective umbrella under Schedule IX by is one declared under
Article 141. Therefore, Mandal's ratio of prospective over-ruling of
Rangachari's case is unconstitutional and void ab initio. Article 142,
therefore, does not save its voidity; nor can the void order be given effect to
or saved by Article 142.
In The
State of Jammu & Kashmir vs. Triloki Nath Khosa & Ors. [AIR 1974 SC 1],
a Constitution Bench had held that the code of equality and equal opportunity
is a charter for equals; equality of opportunity is matters of promotion means
an equal promotional opportunity for persons who fall, substantially, within
the same class. A classification of employees can, therefore, be made for first
identifying and then distinguishing members of one class from those of another.
Classification on the basis of educational qualifications made with a view to
achieving administrative efficiency was upheld.
In
service jurisprudence, a distinction between right and interest has always been
maintained. Seniority is a facet of interest. When the Rules prescribe the
methods of selection/recruitment, seniority is governed by the ranging given
and governed by such rules as was held by a bench of three judges in A.K.
Bhatnagar & Ors. v. Union of India & Ors [(1993) supp. 1
SCC 730 in paras 14 & 15] another Bench of three judges had held that no
one has a vested right to promotion or seniority but an officer has an interest
to seniority acquired by working out the rules. In A.B.S.K. Sangh v. Union of India & Ors. [JT (1996) SC 274], a Bench to
which tow of us, K. Ramaswamy & G.P. Pattanaik, JJ., were members,
following the above ratio, held that no one has a "vested right to
promotion or seniority but an officer has an interest to seniority acquired by
working out the rules".
It
could be taken away only by operation of valid law. In M.D. Shujat Ali &
Ors. v. Union of India & Ors. [(1975) 1 SCR
449] a Constitution Bench had held that Rule 18 of the Andhra Pradesh
Engineering Service Rules which confers a right of actual promotion or a right
to be considered by promotion is a rule prescribing conditions of service. In
Md. Bhakar v. Krishna Reddy [1970 SLR 768], another Bench of three Judges had
held that any rule which affects that promotion of a person relates to
conditions of service. In State of Mysore v. G.B. Purohit [1967 SLR 753] a
Bench of two judges had held that the rule which merely affects chances of
promotion cannot be regarded as varying condition of service. Chances of
promotion are not condition of service. In Ramchandra Shankar Deodhar v. State
of Maharashtra [(1974) 1 SCC 317], a Constitution
Bench had held that a rule which merely affects the changes of promotion does
not amount to change in the conditions of service. In Syed Khalid Rizvi &
Ors. v. Union of India & Ors [(1993) supp. 3 SCC 575] a Bench of three
judges following the above ratio, with approval, had held at page 602 para 31,
that no employee has a right to promotion but he has only the right to be
considered for promotion according to rules. Chances of promotion are not
conditions of service and are defeasible in accordance with the law.
In the
light of this normal run of service Jurisprudence, the question emerges whether
the right to promotion is a fundamental right and the direction of prospective
operation of the decision is Mandal Judgment, after five years, violates
equality enshrined in Articles 14 and 16(1) and is void under Article 13(2) of
the Constitution? Right to reservation itself is a fundamental right under
Article 16(1) as was laid in State of Kerala v. N.M. Thomas [1976 (2) SCC 310]
which was reiterated in Mandal's case. The permanent bureaucracy in Part XIV of
the Constitution is an integral scheme of the Constitution to aid and assist
the political executive in the governance of the country. Abraham Lincon, one
of the greatest Presidents of the United States of America, a noble should, who
laid his life in giving right to equality to the Blanks, a living truth
enshrined in 14th Amendment, had stated that democracy, is by the people, of
the people and for the people. Democracy governed by rule of law brings about
change in the social order only through rule of law. Every citizen or group of
people has right to a share in the governance of the State. The Dalits and
Tribes equally being citizens have a right to a share in the governance of the State
and in the permanent democracy service conditions are assured under Article 309
to 312A of the Constitution subject to the pleasure of the President under
Article 310 and also the express exclusion of its applicability to the
specified services in Articles 33 and 34. The right to seek equality of
opportunity to a office or a post under the State is a guaranteed fundamental
right to all citizens alike under Article 16(1), the specie of Article 14, the
genus. In State of Maharashtra v. Chandrabhan Tale [(1983) 3 SCC
387] it was held that public employment opportunity is a national wealth and
all citizens are equally entitled to share it. In Delhi Transport Corporation v. D.T.C.
Mazdoor Congress and Ors. [(1991) supp. 1 SCC 600 at 737 para 271] it was held
that law is social engineering to remove the existing imbalance and to further
the progress, serving the needs of the Socialist Democratic Bharat Under the
rule of law. The prevailing social conditions and actualities of life are to be
taken into account in adjudging whether or not the impugned legislation would
observe the purpose of the society.
The
historical evidence of disabilities worked against the Dalits and the Tribes
received acknowledgement in Articles 17 which provides for abolition of practice
of untouchability: Article 15(2) which provides prohibition of access to public
places and article 29(2) which provides for prohibition of denial of admission
into educational institutions. So social educational and economic protection is
provided to them under Article 46 of the Constitution.
Article
335 which is part of the scheme of equality of opportunity in governance of the
State in chapter XVI, by a special provision, enjoins the State that the claims
of the members of the Dalits and the Tribes shall be taken into consideration
consistently with the efficiency of administration in the making of the
appointment to service and post in connection with the affairs of the Union of
a State. In Comptroller & Auditor General v. K.S. Jagannathan [A.I.R. 1987 SC
537 in para 21 and 23] a Bench of three judges had held that Article 335 is to
be read with Article 46 which enjoins that the State shall promotes with
special care the educational and economic interest of the weaker section, in
particular, the Dalits and the Tribes and shall protect them from social
injustice, Article 38 of the Constitution enjoins the State to secure and
protect a social order in which justice, social, economic and political shall
inform all the institutions of the national life. The State shall, in
particular, strive to minimise the inequalities in income, and endeavour to
eliminate inequalities in status, "facilities" and
"opportunities", not only amongst individuals but also amongst groups
of people residing different areas or engaged in different vacations. The
Preamble of the Constitution assures to every citizen justice, social, economic
and political and "equality of status" and opportunity assuring
dignity of the individual to integrate all sections of the society in a
integrated Bharat.
In
Consumer Education & Research Centre & ors. V/s Union of India &
ors. {(1995) 3 SCC 45] and Air India Statutory Corporation etc V/s. United
Labour Union & Ors.
etc.
[(1996 (9) SCALE 70] and Dalmia Cements (bharat) Ltd. & Anr, vs. Union of
India & Ors. JT 1996 (4) SC 555] social justice was held by three-judge
Benches to be fundamental right approving the view taken in C.E.S.C. Ltd &
Ors. V/s, Subhash Chandra Bose & Ors. [(1992) 1 SCC 441]. In Murlidhar
Dayandeo Kesekar V/s Vishwanath Pandu Barde & Anr. [(1995) Supp. 2 SCC
549]; R. Chandevarapa & Ors. V/s. State of Karnataka & Ors. [(1995) 6 SCC 309] and Papaiah V/s. State of
karnataka & Anr. [(1996) 10 SCC 533] right to economic empowerment was held
by the two judges Benches of this Court to be fundamental right.
It is
now settled legal position that social justice is a fundamental right and
equally economic empowerment is a fundamental right to the disadvantaged.
Article 51A(j) enjoins that it shall be the day of every citizen to strive
towards excellence in all spheres of individual and collective activities so
that the nation constantly rises to higher levels of endeavour and achievement.
Equality of status and dignity of the individual will be secured when the
employees belonging to Dalits and Tribes are given an opportunity of
appointment by promotion in higher echelons of service so that they will have
opportunity to strive towards excellence individually and collectively with
other employees in improving the efficiency of administration.
Equally
they get the opportunity to improve their efficiency and opportunity to hold
offices of responsibility at hierarchical levels.
In
A.K. Gopalan v. State of Madras [1950 SCR 88], per majority the Constitution
Bench had held that the operation of each Article of the Constitution and its
effect on the protection of fundamental rights is required to be measured
independently and not in conjoint consideration of all the relevant provisions.
The above ratio was overruled by a Bench of 11 Judges in R.C. Cooper V. Union
of India [(1970) 1 SCC 248] This Court had held that all the provisions of the
Constitution conjointly be read on the effect and operation of fundamental
right of the citizens when the state action infringes the right of the
individual. In D.T.C. case (supra) [(1991) supp. 1 SCC 600 at 750-51, paras 297
and at 298] it was held that:
"It
is well settled constitutional law that different articles in the chapter on
Fundamental Rights and the Directive Principles in Part IV of the Constitution
must be read as an integral and incorporeal whole with possible and incorporeal
whole with possible overlapping with the subject matter of what is to be
protected by its various provisions particularly the Fundamental Rights.
....The
nature and content of the protection of the fundamental rights is measured not
by the operation rights is measured not by the operation of the State action,
must be adjudged in the light of its operation upon the rights of the
individuals or group of the individual in all their dimensions.
It is
not the object of the authority making the law impairing the right of the
citizen nor the form of action taken that determines the protection he can
claim: it is the effect of the law and of the action upon the right which of
the action upon the right which attract the jurisdiction of the court to grant
relief. In Minerva Mills Ltd. vs. Union of India [(1980) 3 SCC 625] the
fundamental rights and directive principles are held to be the conscience of
the Constitution and disregard of either would upset the equibalance built up
therein. In Maneka Gandhi case it was held that different articles in the
chapter of fundamental rights of the Constitution must be read as an integral
whole with possible overlapping of subject matter of what is sought to be
protected by its various provisions particularly by articles relating
fundamental rights of the Constitution must be read as an integral whole, with
possible overlapping of the subject matter of what is sought to be protected by
its various provisions particularly by articles relating to fundamental rights
contained in Part III of the Constitution do not represent entirely separate
streams of rights which do not mingle at many points. They are all parts of an
integrated scheme in the Constitution. Their waters must mix to constitute that
grand flow of unimpeded and impartial justice;
social,
economic and political justice; social, economic and political, and of equality
of status and opportunity which imply absence of unreasonable or unfair
discrimination between individuals or groups or protected by Part III of the
Constitution, out of which Articles 14, 19 and 21 are the most frequently
invoked to test the validity of executive as well as legislative actions when
these actions are subjected to judicial scrutiny. Fundamental rights are
necessary means to develop one's own personality and to carve out one's own
life in the manner one likes best, subject to reasonable restrictions imposed
in the paramount interest of the society and to a just, fair and reasonable
procedure. The effect of restriction procedure. The effect of restriction of
deprivation and not of the form adopted to deprive the right is the conclusive
test.
It
already seen that the right to a public employment is a constitutional right
under Article 16(1). All matters relating to employment include the right to
continue in service till the employee reaches superannuation or his service is
duly terminated in accordance with just, fair and reasonable procedure
prescribed under the provisions of the Constitution or the rules made under
proviso to Article 309 of the Constitution or the statutory provision or the
rules, regulations or instruction having statutory favour made thereunder. But
the relevant provisions must be conformable to the rights guaranteed in Parts
III and IV of the Constitution. Article 21 guarantees the right to live which
includes right to livelihood, to a many the assured tenure of service is the
source, the deprivation thereof must be in accordance with the procedure
prescribed by law conformable to the mandates of Articles 14 and 21 as be fair,
just and reasonable nut not fanciful, oppressive or at vagary. The need for the
fairness, justness or reasonableness of the procedure was elaborately
considered in Maneka Gandhi case and it hardly needs reiteration." It
would, therefore, be necessary to consider the effect of reservation in
promotion to the Dalits and the Tribes vis-a-vis the employees belonging to the
general categories; it is a balancing right to equality in results and adjusting
the competing rights of all sections. In Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat & Anr. [(1975) 1 SCR 173 at
252] through a Bench of nine Judges, this Court Pointed out that to establish
equality, it would require absolute identical treatment of both the minority
and majority. That would result only in equality in law but inequality in fact.
The distinction need not be elaborated. It is obvious that equality in law
precludes discrimination of any kind whereas equality in fact may involve the
necessity of differential treatment in order to attain a result which
establishes and equilibrium between different situations. To give adequate
representation to the Dalits and Tribes in all posts or classes of posts or
services, a reality and truism.
Facilities
and opportunities, as enjoined in Article 38 are required to be provided to
them to achieve the equality of representation in real content. In Dr. Pradeep
Jain & Ors. V/s. Union of India & Ors. [(1984) 3 SCC
654] a three-judge Bench of this Court considered the concept of equality under
Articles 14 and 15(1) of the Constitution and had held in para 13 at page 676
thus:
"Now
the concept of equality under the Constitution is a dynamic concept. It takes
within its sweep every process of equalisation and protective discrimination.
Equality must not remain mere idle incantation but it must become a living
reality for the large masses of people. In a hierarchical society with an
indelible feudal stamp and incurable actual inequality. It is absurd to suggest
the progressive measures to eliminate group disabilities and promote collective
equality are antagonistic to equality on the ground that every individual is
entitled to equality of opportunity based purely on merit judged by the marks obtained
by him. We cannot countenance such a suggestion, for to do so would make the
equality clause sterile and perpetuate existing inequalities. Equality of
opportunity is not simply a matter of legal equality . Its existence depends
not merely on the absence of disabilities but on the presence of abilities.
Where, therefore, there is inequality, in fact, legal equality always tends to
accentuate it. What the famous poet William Blake said graphically is very
true, namely, "once law for the Lion and the Ox is oppression".
Those
who are unequal, in fact, cannot be treated by identical standard; that may be
equality in law but it would certainly not be real equality. It is, therefore,
necessary to take into account de facto inequalities which exist in the society
and to take affirmative action by way of giving preference to the socially and
economically disadvantaged persons or inflicting handicaps on those more
advantageously placed, in order to bring about reals equality. Such affirmative
action though apparently discriminatory is calculated to produce equality on a
broader basis by eliminating de facto inequalities and placing the weaker
sections or the community on footing of equality with the stranger and more
powerful sections so that each member of the community, whatever is his birth,
occupation or social position may enjoy equal opportunity of using to the full
his natural endowments of physique, of character and of intelligence.:
In
Marri Chandra Shekhar Rao V/s. Dean, Seth G.S. Medical College & ors.
[(1990) 3 SCC 130 at 138] a Constitution Bench to which one of us, K.
Ramaswamy, J. Was a member, had held in para 8 thus:
"Therefore,
reservation in favour of Scheduled Castes and Scheduled Tribes for the purpose
of advancement of socially and educationally backward citizens to make them
equal with other segments of community in educational or job facilities is the
mandate of the Constitution. Equality is the dictate of our Constitution.
Article
14 ensures equality in its fullness to all our citizens. State is enjoined not
to deny to any persons equality before law and equal protection of the law
within the territory of India. Where it is necessary, however, for the purpose
of bringing bout real equality of opportunity between those who are unequals,
certain reservations are necessary and these should be ensured. Equality under
the Constitution is a dynamic concept which must cover every process of
equalisation. Equality must become a living reality for the large masses of the
people. Those who are unequal, in fact, cannot be treated by identical
standards; that may be equality in law but it would certainly not be real
equality.
Existence
of equality of opportunity depends not merely on the absence of disabilities.
It is not simply a matter of legal equality. De jure equality must ultimately
finds its raison d`etre in de facto equality. The State must, Therefore, resort
to compensatory State action for the purpose of making people who are factually
unequal in their wealth, education or social environment, equal in which exist
in the society and to take affirmative action by way of giving preference and
reservation to the socially and economically disadvantaged persons or
inflicting handicaps on those more advantageously placed, in order to bring
about real equality.
Such
affirmative action though apparently discriminatory is calculated to produce
equality on a broader basis by eliminating be facto inequalities and placing
the weaker sections of the community on a footing of equality with the stronger
and more powerful sections so that each member of the community, whatever is
his birth, occupation or social position may enjoy equal opportunity of using
to the full his natural endowments of physical, of character and of
intelligence." By abstract application of equality under Article 14, every
citizen is treated alike without there being any discrimination. Thereby, the
equality in fact subsists.
Equality
prohibits the States from making discrimination among citizens on any ground.
However, inequality in fact without differential treatment between the
advantaged and disadvantaged subsists. In order to bridge the gap between
inequality in results and equality in fact, protective discrimination provides
equality of opportunity. Those who are unequal cannot be treated by identical
standards.
Equality
in law certainly would not be real equality. In the circumstances, equality of
opportunity depends not merely on the absence of disparities but on the
presence of abilities and opportunities. De jure equality must ultimately find
its raison d'etre in de facto equality. State must, therefore, resort to
protective discrimination for the purpose of making people, who factually
unequal, equal in specific areas. It would, therefore, be necessary to take
into account de facto inequality in which exists the society and to take
affirmative action by giving preferences and making reservation in promotions
in favour of the Dalits and Tribes or by "inflicting handicaps on those
more advantageously placed", in order to bring about equality, such
affirmative action, though apparently discriminatory, is calculated to produce
equality on a broader basis by eliminating de facto inequality and placing
Dalits and Tribes on the footing of equality with non-tribal employees so as to
enable them to enjoy equal opportunity and to unfold their full potentiality.
Protective discrimination envisaged in Articles 16(4) and 16 (4-A) is the
armour to establish the said equilibrium between equality in law and equality
in results as a fact to the disadvantaged. The Principle of reservation in
promotion provides equality in results.
From
this backdrop, the socio-economic justice assured by Article 46, the Preamble
and Article 39 would get practical content and effect so that the dignity of
person and equality to status assured to them would become meaningful and real.
Harmonious interpretation of all these provisions should, therefore, pave way
for the target/goals.
So
they need to be conjointly read so that every provision/clause/concept in
different Articles of the Constitution is given full play, effect and flesh and
blood are infused in their dry bones.
In
Mandal's case, admittedly, the two Government Memorandum provided for
reservation to OBCs. in initial direct recruitment in central services. The
question of reservation in promotion was non-issue as conceded in that case
itself and across the bar: but the learned judges, with all due respect and
deference to their learned view, decided a non-issue, though objected to on the
ground that counsel appearing for the parties had put their heads together and
formed the issue and reference was made to a larger Bench so that the issue was
decided on that premise though it is settled constitutional law that
constitutional issues cannot be decided unless the issues directly arises for
decision, with due respect the Bench decided a non-issue on a constitutional
law affecting 22% of the national population and held that Article 16(1) read
with Article 16(4) provides right to reservation in initial recruitment. The
framers of the Constitution did nor intend to provided for reservation in
promotion. Since Article 335 speaks of efficiency of administration,
reservation in promotion to the Dalits and Tribes, without competition with
non-reserved employees would affect efficiency in service is unconstitutional.
IT si an admitted case that as there was no issue, nor was any evidence adduced
to prove whether efficiency of administration was deteriorated due to
reservation in promotion; nor was it pointed out from the facts of any case.
In
Maharashtra State Board of Secondary and Higher Secondary Education V. K.S.
Gandhi & Ors. [(1991) 2 SCC 716 at 748 at 37] a Bench of two judges had
held that to prove a fact, inference must be drawn on the basis of the evidence
and circumstances. They must be carefully distinguished form conjectures or
speculation. The mind is prone to take pleasure adapt circumstances to one
another and even in straining them a little to force them to form parts of one
connected whole. There must be evidence direct or circumstantial to deduce
necessary inferences in prof of the fact in issue. There can be no inferences
unless there are objective facts, direct or circumstantial, from which the
other fact which is sought to establish an be inferred. In some case, the other
facts can be inferred, as much as is practical, as if they had been actually
observed. In other cases, the inferences d not go beyond reasonable
probability. It there are no positive proved facts, oral, documentary or
circumstantial from which the inferences can be made. the method of inference
fails and what is left is mere speculation or conjecture. Therefore, for an
inference of proof that a fact in dispute has been hold established, there must
be some material facts or circumstances on record form which such an inference
could be drawn." In the absence of any issue and facts and proof thereof,
the inference that reservation in promotion deteriorates the efficiency or
administration remains only a conjecture or an opinion based on no evidence. As
seen, it is constitutional mandate of the State under Article 335 that to
render socio-economic justice and to prevent injustice to the Dalit and Tribes,
facilities and opportunities of reservation in promotion should be provided
consistently with the efficiency of administration.
The
question then is: what is the meaning of the phrase "efficiency of
administration"? In D.T.C. case, it was observed in para 275 that
"the term efficiency is an elusive and relative one to the adept capable
to be applied in diverse circumstances. If a superior officer develops liking
towards sycophant, though corrupt, he would tolerate him and find him to be
efficient and pay encomiums and corruption in such cases stand no impediment.
When he finds a sincere, devoted and honest officer to be inconvenient, it is
easy to cast him/her off by writing confidential reports with delightfully
vague language imputing to be 'not up to mar', 'wanting public relations' etc.
At times they may be termed to be "security risk" (to their activities).
Thus they spoil the career of the honest, sincere an devoted officers.
Instances
either way are galore in this regard. Therefore, one would be circumspect,
pragmatic and realistic to these actualities of life while angulating
constitutional validity of wide, arbitrary, uncanalised and unbridled
discretionary power of dismissal." V.T. Rajshekar in his "merit' May
Foot" (A reply to Anti-Reservation Racists), 1996 published by Dalit
Sahitya Academy, Bangalore, has stated that nowhere in the world 'merit and
efficiency' are given so much importance as in India which is now pushed to the
120th position - virtually the last among different countries in the world.
Upper caste rulers of India keep the country's vast original
inhabitants- the Untouchables, Tribals, Backward castes and 'religious
minorities" - permanently as salves with the help of this 'merit' mantra.
By 'merit and efficiency', they mean the birth. Merit goes with the Highborn -
the blue blood.
This
is pure and simple racism. That Birth and skin-color have nothing to do with
'merit and efficiency' (brain) is a scientifically proved fact". "But
the ruling class nowhere in the world is concerned with science because science
stands for progress. And those interested in progress will have to be human.
That is not so in India. If on has to see man's inhumanity
to man in its most naked from he must come to India, the original home of racism and inequality. So the 'meri
theory' beautifully suits its ruling class or caste".
At
page 10, he states that Scientist have identified tow forces which are
perpetually and constantly at work to influence the character, growth and
development of the features of every living being in the universe including
animals and plants: (1) heredity and (2) environment. Each species products
only its own species. Biology is funded on the cell theory. Cell live and die.
At page 11, he states that 'Merit and efficiency' are not inherited. They are
an acquired quality that has not reached the germ plasma. So, to say that a
Brahmina's son alone is a Brahmin and hence has the 'merit' to become a temple
priest (archaka) has no scientific basis. Some other influence acts in
combination with heredity and that is environment. With right environment -
food, education, free atmosphere-Untouchables can prove better than
Brahmins". At page 12, he states that genetic factors only provide the
potential for human development whereas it is the environmental factors that
translate this inherent potential into the full flowering of the personality.
Experiments though selective breeding and studies on identical twins have
established to a large extent the influence of genetics on behaviours. But what
ultimately determines the personality is the inter-actional influences of
heredity and environments. At page 15, he states that heredity is fixed by
parentage but it is not an ideal environment. Opportunity is necessary on merit
and efficiency. A genius is only 10% inspiration and 90% perspiration. There is
nothing like a born genius.
Ramanujam,
Indian prodigy on mathematics was given opportunity by the British to prove his
genius and was provided with the right environment. though he was born genius
without opportunities, he could not have got recognition. Rajshekar states that
"all ruling classes built" a theory by suited to their needs and try
to give a 'scientific' backing to it. Merit and efficiency is a pure Aryan
invention, aimed at maintaining their monopoly". He states that
"human rights are due to blending of the forces of heredity and the more
important environment. The White meritocrats made us believe that the 'Block
Negro' is a backward race." Justice O. Chinnappa Reddy, in K.C. Vasanth
Kumar & Anr. vs. State of Karnataka [1985 (Supp.) SCC 714 at 738- 740] had
stated thus :
"Efficiency
is very much on the lips of the privileged whenever reservation is mentioned.
Efficiency,
it seems, will be impaired if the total reservation exceed 50%; efficiency, it
seems, will suffer if the 'carry forward' rule is adopted; efficiency, it
seems, will be injured if the rule of reservation is extended to promotional
posts, From the protests against reservation exceeding 50% or extending to
promotional posts and against the carry forward rule, one would think that the
civil service is a Heavenly Paradise into which only the archangels, the chosen
the of the elite, the very best may enter and may be allowed to go higher up
the ladder. But the truth is otherwise. The truth is that the civil services is
no paradise and the upper echelons belonging to the chosen classes are not
necessarily models of efficiency. The underlaying assumption that those
belonging to the upper-castes and classes, who are appointed to the
non-reserved posts will, because of their presumed merit, 'naturally' perform
better than those who have been appointed to the reserved posts and that the
clear stream of efficiency will be polluted by the infiltration of the latter
into the sacred precincts is a vicious assumption, typical of the superior
approach of the elitists classes.
There
is neither statistical basis nor expert evidence to support these assumptions
that efficiency will necessarily be impaired if reservation exceeds 50%, if
reservation is carried forward or if reservation is extended to promotional
posts. Arguments are advanced are opinion are expressed entirely on an ad hoc
presumptive basis. The age long contempt with which the 'superior' or '
forward' castes have treated the 'inferior' or 'backward' castes is now
transforming and crystallising itself into an unfair prejudice, conscious and
subconscious, ever since the 'inferior' castes and classes started claiming
their legitimate share of the cake, which naturally means, for the 'superior'
castes, parting with a bit of it.
Although
in actual practice their virtual monopoly on elite occupations and post is
hardly threatened. the forward casts are nevertheless increasingly afraid that
they might loses this monopoly in the higher ranks of government service and
the profession. It is so difficult for the 'superior' castes to understand and
rise above their prejudice and its is so difficult for the inferior castes and
classes to overcome the bitter prejudice and opposition which they are forced
to face at every stage, always one hears the word 'efficiency' as if it is
sacrosanct and the sanctorum has to be fiercely guarded. 'Efficiency' is not a
Mantra which is whispered by the Guru in the Sishya's year. The mere securing
of high marks at an examination may not necessarily mark out a good
administrator. An efficient administrator, one takes it, must be one who
possesses amount other qualities the capacity to understand with sympathy and,
therefore, to tackle bravely the problems of a large segment of population
constituting the weaker sections of the people. And, who better than the ones
belonging to those very sections? Why not ask ourselves why 35 years after
independence, the position of the Scheduled Castes, etc. has not greatly
improved? Is it not a legitimate question to ask whether things might have been
different, had the District Administrators and the State and Central
Bureaucrats been drawn in larger numbers from these classes? Courts are not
equipped to answer these questions, but the courts may not interfere with the
honest endeavours of the Government to find answers and solutions. We do not
mean to say that efficiency in the civil service is unnecessary or that it is a
myth. All that we mean to say is that one need not make a fastidious fetish of
it. It may be that for certain posts, only the best may be appointed and for
certain courses of study only the best may be admitted. If so, rules may
provide for reservation for appointment to such posts and for admission to such
courses. The rules may provide for no appropriate method of selection. It may
be that certain posts require a very high decree of industry and intelligence.
If so, The rules may prescribe a high minimum qualifying standard and an
appropriate method of selection. Different minimum standards and different
modes of selection may be prescribed for different posts and for admission to
different posts and for admission to different courses of study and having
regard to the requirements of the posts and the courses of study. No one will
suggest that the degree of efficiency required of a general medical
practitioner. Similarly, no one will suggest that the decree of industry and
intelligence expected of a candidate seeking admission to an ordinary arts
degree course. We do not, therefore, means to say that efficiency is to be
altogether discounted. All that we mean to say is that it cannot be permitted
to be used as a camouflage to let the upper classes in its name and to
monopolise the services, particularly the higher posts and the professional
institutions. We are afraid we have to rid our minds of many cobwebs before we
arrive at the core of the problem. The quest for our illusions, though not our
faith. It is the dignity of man to pursue the quest for equality. It will be
advantageous to quote at this juncture R.H. Tawney in his 'classic work
Equality' where he says.
The
truth is that it is absurd and degrading for men to make much of their the
members of a social groups where each would consider the other as his equal,
not higher of lower, A society, which does not treat each of its members as
equals, forfeits its right of being called a democracy. All are equal partners
in the freedom. Every one of our ninety four hundred million people must have
equal right to opportunities and blessings that freedom of India has to offer. To bring freedom in a
comprehensive sense to the common man, material resources and opportunity for
appointment be made available to secure socio-economic empowerment which would
ensure justice and fullness of list of workman, i.e., every and and
woman." In para 43, it was held That "(I)n a developing society like
ours, steeped with unbridgeable and ever-widening gaps of inequality in status
and of opportunity, law is a catalyst, rubicon to the poor etc. To reach the
ladder of social justice. What is due cannot be ascertained by an absolute
standard which keeps changing, depending upon the time, place and circumstance.
The
constitutional concern of social justice as an elastic continuous process is to
accord justice to all sections of the society by providing facilities due to
which the poor, the workmen etc. are languishing ar to secure dignity of their
person. The Constitution, therefore, mandates the State to accord justice to
all members of the society in all facets of human activity. The concept of
social justice embeds equality to flavour and enliven the practical content of
life. Social justice and equality are complementary to each other so that both
should maintain their vitality. Rule of law, therefore, is a potent instrument
of social justice to being about equality in results." Efficiency is service
attracts the well-known parabole the insanity cannot be cured until married and
marriage cannot be celebrated till insanity is cured. Unless one is given
opportunity and facility by promotion to hold and office on a post with
responsibilities, there would be no opportunity to prove efficiency in the
performance or discharge of the duties. With efficiency one cannot be promoted.
How to synthesise both and give effect to the Constitutional animation to
effectuate the principle or adequacy of representation in all posts or classes
of posts in all cadres, service or grad is the nagging question. From that
perspective, one is required to examine whether reservation in promotion is
constitutionally valid. It seen that the rules provide promotion from Assistant
Engineer to Executive Engineer on the principle of "seniority subject to
rejection of unfit" ad from Superintending Engineers onward, 'merit' is
the consideration. In other words, the promotion is based on the aforesaid
principles. Even employees from Dalits or Tribes get promoted only on
satisfying the above test. Appointment by promotion is a facet of recruitment
to a service or cadre/grade/classes of posts. In fairness on the part of the
appellants/Petitioners and their learned counsel, none impugned not alleged
that the private respondents are not meritorious of inefficient. No such
evidence is placed on record.
The
fundamental requisites to all employees are honesty, integrity and character,
apart from hard work, dedication and willingness to apply assiduously to the
responsibilities attached to the office or post and also inclination to achieve
improved excellence. What Dalits and Tribe employees need is an opportunity and
fair chance of promotion to higher posts and offices earmarked for them in the
roster where they are not adequately represented. In clash of competing claims
between general category employees on the one hand and Dalits and Tribes on the
other, what the authorities need to take into consideration is the aforesaid
factors and their service record with an objective and dispassionate
assessment. When the authorities have a power coupled with constitutional duty,
the doctrine of full faith and credit under Article 261 gets due acceptance
when done truly and sincerely with an honest, objective and dispassionate
assessment by the appropriate authority. Their claims need to be considered in
that perspective; they should be given promotion, if found eligible, to the
posts or classes of posts in the higher cadre, grade, class or category etc.
The selecting officer/Officers need to eschew narrow. sectarian, caste,
religion or regional consideration or prejudices which were deleterious to
fraternity, unity and integrity and integration of the nation as unified
Bharat. What needs to be achieved by the Dalits and Tribal officers so promoted
is that they could, on par with others assiduously devote themselves with
character, integrity and honesty in the discharge of the duties of the posts
with added willingness and dedication to improve excellence.
Thereby
the efficiency of administration would automatically get improved and the
nation constantly rises to higher levels of achievement. Therefore, it cannot
be held that reservation in promotion is bad in law or unconstitutional.
As
stated earlier, Article 16 (4A) has come into force w.e.f. 17th June, 1995. The appellants/petitioners have
sought amendment of the pleadings challenging the vires of Article 16(4A) of
the Constitution and in fairness on the part of the learned counsel, they did
not press for consideration thereof obviously for the reason that it objects
are mentioned in the statement of Objects and Reasons as under:
"The
Scheduled Castes and the Scheduled Tribes have been enjoying the facility of
reservation in promotion since 1955. The Supreme Court in its judgment dated
16th November, 1992 in the case of India & Others, however, observed that
reservation of appointments or posts under article 16 (4) of the Constitution
is confined to initial appointment and cannot extent to reservation in the matter
of promotion. This ruling of the Supreme Court will adversely affect the
interests of the Scheduled Castes and the Scheduled Tribes.
Since
the representation of the Scheduled Castes and the Scheduled Tribes in services
in the States have not reached the required level, it is necessary to continue
the existing dispensation of providing reservation in promotion in the case of
the Scheduled Castes and the Scheduled Tribes. In view of the commitment of the
Government to protect the interests of the Scheduled Castes and the Scheduled
Tribes, the Government have decided to continue the existing policy of
reservation is promotion for the Scheduled castes and the Scheduled Tribes. To
carry out this, it is necessary to amend article 16 of the of the Constitution
by inserting a new clause (4A) in the said article to provide for reservation
in promotion for the Scheduled Castes and Scheduled tribes." Lord
Macnaughten in Vacher & Sons Ltd. vs. Londan Society of Compositors [(1913)
Ac 107 at 118] has laid that a judicial tribunal has nothing to do with the
policy of any Act which it may be called upon to interpret. That may be a
matter for private judgment . The duty of the Court, and its only duty, is to
expound the language of the Act in accordance with the settled rules of
construction. The above principle was followed by this Court in the Bengal
Immunity Company Ltd. vs. The State of Bihar & Ors. [(1955) 2 SCR 603].
This
Court in Shirt Sitaram Sugar Co. Ltd. & Anr. V/s Union of India & Ors. [(1990) 1 SCR 909 at 936 and
942] through a Constitution Bench, had held that legislative policy is beyond
the pale of assailment on the anvil of violation of the fundamental rights. In
S. Azeez Bash & Ar. V/s. Union of India [(1968) 1 SCR 833 at 845] another
Constitution Bench had held that it is not the function of the Court to
consider the policy underlying the amendment made to the Act nor the Court
proposed to go into the merits of the amendment made by that Act (the
Constitutionality of the underlying policy of the Aligarh Muslim University
(Amendment) Act of 1965 was questioned put the Court did not go into the
underlying policy except the constitutionality of the Act itself which was
upheld by this Court. Though the doctrine of original intent was given effect
to in Gopalan's case, this Court had not accepted the same in R.C. Coopar's
case and the later was followed in Menaka Gandhi V/s. Union of India [AIR 1978
SC 597] etc. Therefore, thought the doctrine of original intent of reservation
in promotion does not expressly find place in the speech of Dr. Ambedkar, as
supported in Mandal's case it found place in statutory policy engrafted in the
rules issued under proviso to Article 309 of the Constitution, which is
legislative in character adopted and explained in the Statement of Objects and
Reasons of the Constitution (77th Amendment) Act, 1995, which was declared as
constitutional in Rangachari's case.
After
mandal's case, the parliament has given effect to the legislative policy of
reservation in promotion as constitutional scheme. This Court in Commissioner
of Commercial Taxes, A.P. Hydrabad & Anr. V/s. G. Sethumadhava Rao &
Ors. [(1996])7 SCC 512] through a three judge Bench, has held that he intention
behind introduction of Article 16(4A) was to remove the defect as pointed out
by this Court in Mandal's case. By legislative judgment, the Parliament upheld
the ratio in Rangachari's case. Thomas's case and akhil Bharatiya Soshit
Karamchari Sangh (Railway) V/s. Union of India & Ors. [(1981) 1 SCC 246]
upholding the rule of reservation in promotion . The interpretation put up
therein was given acceptance by legislature amendment. It was, therefore, held
that Article 16(4A) would establish that the principle of rule of reservation
is applicable not only to initial recruitment but also in promotions where the
State is of the opinion that the Dalits and Tribes are not adequately
represented in promotional posts in a class or classes of services under the
State. In G.S.I.C. Karmachari Union & Ors. V.S. Gujarat Small Industries Corp.
& Ors. {J] 1997 (1) SC 384] another Bench of three Judges has held that
"the question of retrospectivity of the policy does not arise; what is
being done is to give effect to the constitutional policy of providing adequate
representation to the members of Scheduled Castes and Scheduled Tribes in all
classes of service or posts where they are not adequately represented.
Therefore, the question of arbitrariness does not arise since it is part of the
scheme of the Constitution. Unless adequate representation is given to the
employees belonging to Scheduled Castes and Scheduled Tribes in promotions
also, the adequacy of representation in all classes and grades of service,
where there is no element of direct recruitment, cannot be achieved. Obviously,
therefore, Article 16 (4-A) was brought in the Constitution by Constitution
(77th Amendment) Act, after the majority judgment of this Court by a Bench of
nine Judges in Indira Sawhney v/s. Union of India & India & Ors.
[(1992) Supp. 3 SCC 210]. So, the policy of reservation is part of socio-
economic justice enshrined in the Preamble of the Constitution, the fundamental
rights under Articles 14, 15 (1), 15 (4), 16 (1), 16 (4), 16 (4A), 46 and 335
and the other related Articles, to give effect to the above constitutional
objectives. In Union of India & Anr. V/s. Madhav s/o Gajanan Chaubai &
Anr. [J] 1996 (9) SC 320], a there-Judge Bench, to which two of us, K.
Ramaswamy and G.P. Pattanaik, JJ. were members, also considered the same
question and held in paragraph 6 that "Government evolved reservation in
posts or offices under the State as one of the modes to give effect to
socio-economic justice to Dalits and Tribes. Appointment to an office or post
into a service under the State is one of the means to render socio-economic
Justice. Constitution (77th Amendment) Act, 1995 has resuscitated the above
objective to enable the Dalits and Tribes-employees to improve excellence in
higher echelons of service and a source of equality of opportunity, social and
economic status guaranteed by the Preamble to the Constitution, As a
consequence, the Parliament has removed the lacuna pointed out by this Court in
Mandal's case. Thus, it would be seen that the legal position held by this
Court in Rangachari's case and followed in other cases has been restored and
reservation of appointment by promotion would be available to the members of
the Scheduled Castes and Scheduled Tribes under 50% quota as is maintained by
this Court in Indira Sawhney's case." It would thus be clear that right to
promotion is a statutory right. It is not a fundamental right. The right to
promotion to a post or a class of posts depends upon the operation of the
conditions of service. Article 16 (4A) read with Articles 16 (1) and 14
guarantees a right to promotion to Dalits and Tribes as fundamental right where
they not have adequate representation consistently with the efficiency in
administration. The Mandal's case, has prospectively overruled the ratio in
Rangachari's case, i.e., directed the decision to be operative after 5 years
from the date of the judgment; however, before expiry.
thereof,
Article 16 (4A) has come into force from June 17, 1995. Therefore, the right to
promotion continues as a constitutionally guaranteed fundamental right. In
adjusting the competing rights of the Dalits and Tribes on the one hand and the
employees belonging to the general category on the other, the balance is
required to be struck by applying the egalitarian protective discrimination in
favour of the Dalits and Tribes to give effect to the Constitutional goals.
policy and objectives referred to hereinbefore.
In
R.K. Sabharwal's & Ors. V/s. State of Punjab & Ors. [(1995) 2 SCC 745],
the Constitution Bench was called upon to consider whether the reservation in
promotion as per the roster was correct in law and, therefore, constitutional
and whether the employees belonging to Scheduled Castes have right to be
considered for promotion in their own merits, if so, how they are required to
be adjusted in the roster prescribed by the Government. The Constitution Bench
has pointed out that when percentage of reservation is fixed in respect of a
particular cadre and the roster indicates the reserved points, it has to be
taken that the posts shown at the reserved points are to be filled from amongst
the members of the reserved categories. The candidates belonging to the general
category are not entitled to be considered for the reserved posts. On the other
hand, the reserved category candidates can compete for the non-reserved posts.
In the
event of their appointment to the said posts, In the event of their appointment
to the said posts, their number cannot be added and taken into consideration
for working out the percentage of reservation. When the State Government after
doing the necessary exercise makes reservation and provides the extent of
percentage of posts to be reserved for the said backward class, then the
percentage has to be followed strictly. The prescribed percentage cannot be
varied or changed simply because some of the members of the backward class have
already been appointed or promoted against the general seats. The fact that
considerable number of members of the backward classes have been appointed/
promoted against the general seats in the State may be a relevant factor for
the State Government to review the question of continuing reservation for the
said class but so long as the instructions/rules providing certain percentage
of reservations for the backward classes are operative, the same have to be
followed. It was further held that the reserved vacancies like a running
account. When the reserved quota is full in the cadre then application of rule
of reservation would be stopped until vacancies as per the roster arise and
operate. It was also held following Mandal's case that the judgment therein
could be operative prospectively from that date, viz., February 10, 1995 and all the promotions which became
settled rights due to reservation in promotion could not be unsettled. As seen
earlier, "right to equality", "equality or status and
opportunity"; duty to "improve excellence"; "opportunities
and facilities to remove inequality in status" and "social
justice", all should be given their due and full play under rule of law to
bring about equality in results to establish an egalitarian social order. It
would, therefore, be clear that reservation in promotion is constitutionally
valid; the posts earmarked for Dalits and Tribes shall be filled up and
adjusted with them. The Dalits and Tribes selected in open competition for
posts in general quota should be considered appointees to the general posts in
the roster as general candidates. The promotions given in excess of the quota
prior to the judgment in Sabharwal's case should not be disturbed.
The
further question is; whether the judgment in Mandal's case in paragraph 860 (8)
by Jeevan Reddy, J. prospectively overruling the ratio in Rangachari's case is
a majority judgment? In this connection, we may, at the outset, refer to
Article 145 (5) of the Constitution. It postulates that "(N)o judgment and
no such opinion shall be delivered by the Supreme Court, save with the
concurrence of a majority of the Judges present at the hearing of the case, but
nothing in this clause shall be deemed to prevent a judge who does not concur
from delivering a dissenting judgment or opinion". It would, therefore, be
manifest that unless majority Judges comprised in the Bench concur on the
opinion or the decision, it would not be a judgment and no such opinion shall
be delivered by the Supreme Court, In Mandal's case, on the question of
reservation in promotion, eight of the nine Judges participated in the opinion.
Of them, Jeevan Reddy, J. spoke for himself, Kania, C.J.I. and Venkatachaliah,
J. as he then was. Pandian and Sawant. JJ.
also
greed with them. There is a considerable debate on Micro Lexicon Surgery
conducted by the learned counsel for the appellants/petitioners drawing a
distinction between conclusions and directions contained in paragraph 860 (8)
and the language used in the concurrent opinions of Pandian and Sawant, JJ. In
support thereof, they have placed strong reliance on the wording used by
Sawant, J. in paragraphs 552 and 555 on the conclusion and directions. Equally,
there was absence of concurrence by other learned Judges. They have also drawn
our attention to the dictionary meaning of those words. Having given due
consideration, we are of the view that the Micro Lexicon Surgery of the
distinction between conclusions and directions leads us nowhere to reach
satisfactory solution. One needs to adopt pragmatic approach to understand the
conclusions reached and the directions given as part of the judgment in that
behalf. Even if rule of strict interpretation is to be applied, as is sought by
the learned counsel, Sawant, J. in paragraph 555 has indicated his concurrence
with the conclusions of Jeevan Reddy, J. in paragraph 860 (8) given by Jeevan
Reddy, J. is majority judgment and it gets reinforced from the approval
thereof, as followed by the Constitution Bench, in R.K. Sabharwal's case. The
presiding Judge therein, viz., Kuldip Singh, J., who was one of the nine Judges
in Mandal's case, participated in the majority opinion on the issue of
reservation in promotion. However, no opinion was expressed on the conclusions
and directions of Jeevan Reddy, J. in para 860, the Constitution Bench having
upheld the rule of reservation in promotion, proceeded to apply the law and
worked out rights of the Dalits in promotions in R.K. Sabharwal's case. The
same do support our conclusion that the Constitution Bench equally understood
that the directions contained in paragraph 860(8) constituted majority
judgment. Otherwise, the Constitution Bench in R.K. Sabharwal's case would not
have proceeded to consider the right to promotion of the Dalits and question of
giving effect to the roster system and the question of percentage of
reservation provided in promotions would not have been give effect. The
Constitution Bench in that case would have declared that in the light of the
majority judgment the reservation in promotions were void ab initio under
Article 13 (2) and that, therefore, the question of application of the roster
would not have arisen. It is true that there is no positive indication or a
finding to that effect in Sabharwal's case but the fact that the presiding
Judge therein was one of the members of the nine-judge Bench in Mandal's case,
and that the Constitution Bench considered and upheld the right to reservation
in promotion and upheld the right to reservation in promotion to the Dalits and
Backward Classes and applied the roster points to such promotions. itself goes
to point out and reassure us that prospective overruling of Rangachari's case
by Jeevan Reddy, J. is a majority opinion. In that view of the matter, the
Micro Lexicon Surgery fails.
The
next questions are: whether the prospective over- ruling of Rangachari's case,
to be operative after five years from the date of Mandal's case, amounts to
judicial legislation? Is it void ab initio under Article 13(2) of the
Constitution? whether it is violative of the fundamental rights of the
appellant-petitioners and whether the exercise of the power by this Court under
Article 32(4) and 142 of the Constitution is inconsistent with and derogatory
to the fundamental rights of the appellants-petitioners and, if so, what would
be the consequence? It is settled constitutional principle that to make the
right to equality to the disadvantaged Dalits and Tribes meaningful, practical
contents of results would be secured only when principles of distributive
justice and protective discrimination are applied, as a facet of right to
equality enshrined under Article 14 of the Constitution. Otherwise, right to
equality will be a teasing illusion. Right to promotion is a method of
recruitment from one cadre to another higher cadre or class or category or
grade of posts or classes of posts or offices, as the case may be. Reservation
in promotion has been evolved as a facet of equality where the appropriate
Government is of the opinion that the Dalits and Tribes are not adequately represented
in the class or classes of posts in diverse cadres, grade, category of posts or
classes of posts. The discrimination, therefore, by operation of protective
discrimination and distributive justice is inherent in the principle of
reservation and equality too by way of promotion but the same was evolved as a
part of social and economic justice assured in the Preamble and Articles 38, 46
14, 16(1), 16(4) and 16(4A) of the Constitution. The right to equality, dignity
of person and equality of status and of opportunity are fundamental rights to
bring the Dalits and the Tribes in the Mainstream of the national life. It
would, therefore, be an imperative to evolve such principle to adjust the
competing rights, balancing the claims, rights and interest of the deprived and
disadvantaged Dalits and Tribes on one hand and the general section of the
society on the other.
The
Constitution, unlike other Acts, is intended to provide an enduring paramount
law and a basic design of the structure and power of the State and rights and
duties of the citizens to serve the society through a long lapse of ages. It is
not only designed to meet the needs of the day when it is enacted but also the
needs of the day when it is enacted but also the needs of the altering conditions
of the future. It contains a framework of mechanism for resolution of
constitutional disputes. It also embeds its ideals of establishing an
egalitarian social order to accord socio-economic and political justice to all
sections of the society assuring dignity of person and to integrate a united
social order assuring every citizen fundamental rights assured in part III and
the directives in part IV of the Constitution. In the interpretation of the
Constitution, words of width are both a framework of concepts and means to
achieve the goals in the preamble. Concepts may keep changing to expand and
elongate the rights. Constitutional issues are not solved by mere appeal to the
meaning of the words without an acceptance of the line of their growth. The
intention of the Constitution is, rather, to outline principles than to engrave
details. In State of Karnataka vs. Appa Balu [(1995) Supp. 4 SCC 469 at 485-86]
a two-Judge Bench of this Court, to which one of us, K. Ramaswamy, J. was a
member, while interpreting Articles 17 and 15 (2) and the Civil Rights
Protection Act, held that "(J)udiciary acts as a bastion of the freedom
and of the rights of the people.
Jawaharlal
Nehru, the architect of Modern India as early as in 1944 stated that the spirit
of the age is in favour of equality though the practice denies it almost
everywhere, yet the spirit of the age triumphs. The judge must be atune with
the spirit of his/her times. Power of judicial review, a constituent power has,
therefore, been conferred upon the judiciary which constitutes one of the most
important and potent weapons to protect the citizens against violation of
social, legal or constitutional rights. The judges are participants in the
living stream of national life, steering the law between the dangers of
rigidity on the one hand and formlessness on the other hand in the seemless web
of life.
The
great tides and currents which engulf the rest of the men do not turn aside in
their course and pass the judges idly by. Law should subserve social purpose.
Judge must be a jurist endowed with the legislator's wisdom, historian's search
for truth, prophet's vision, capacity to respond to the needs of the present,
resilience to cope with the demands of the future and to decide objectively
disengaging himself/herself from every personal influence or predilections.
Therefore, the judges should adopt purposive interpretation of the dynamic
concepts of the Constitution and the Act with its interpretative armoury to
articulate the felt necessities of the time. The judge must also bear in mind
that social legislation is not a document for fastidious dialects but a means
of ordering the life of the people. To construe law one must enter into its
spirit. its setting and history. Law should be capable of expanding freedoms of
the people and the legal order can, weighed with utmost equal care, be made to
provide the underpinning of the highly inequitable social order. The power of
judicial review must, therefore, be exercised with insight into social values
to supplement the changing social needs. The existing social inequalities or
imbalances are to be removed and social order readjusted through rule of law,
lest the force of violent cult gain ugly triumph. Judges are summoned to the
duty of shaping the progress of the law to consolidate society and grant access
to the Dalits and Tribes to public means or places dedicated to public use or
places of amenities open to public etc. The law which is the resultant product
is not found but made. Public policy of law, as determined by new conditions,
would enable the courts to recast the changing conceptions of social values of
yesteryears yielding place to the changed conditions and environment to the
common good. The courts are to search for light from among the social elements
of every kind that are the living forces behind the factors they deal with. By
judicial review, the glorious contents and the trite realisation in the
constitutional words of width must be made vocal and audible giving them
continuity of life, expression and force when they might otherwise be forgotten
or ignored in the heat of the moment or under sway of passions or emotions
remain aroused, that the rational faculties get befogged and the people are
addicted to take immediate for eternal, the transitory for the permanent and
the ephemeral for the timeless, it is in such transitory for the permanent and
the ephemeral for the timeless. It is in such surging situation the presence
and consciousness and the restraining external force by judicial review ensures
stability and progress of the society. Judiciary does not forsake the ideals
enshrined in the Constitution, but makes them meaningful and makes the pople
realise and enjoy the rights.
The
Judges, therefore, should respond to the human situations to meet the felt
necessities of the time and social needs; make meaningful the right to life and
give effect to the Constitution and the will of the legislature.
This
Court as the vehicle of transforming the nation's life should respond to the
nation's needs, interpret the law with pragmatism to further public welfare to
make the constitution broadly and liberally enabling the citizens to enjoy the
rights.
In
Sakal Papers (P) Ltd. & Ors. V/s. The Union of India [(1962) 3 SCR 842 at
857] it was held by another Constitution Bench thus;
"It
must be borne in mind that the Constitution must be interpreted in a broad way
and not in a narrow and pedantic sense. Certain rights have been inshrined in
our Constitution as fundamental and, therefore, while considering the nature
and content of those rights the Court must not be took astute to interpret the
language of the Constitution in so literal a sense as to whittle them down. On
the other hand, the Court must interpret the Constitution in a manner which
would enable the citizen to enjoy the rights guaranteed by it in the fullest
measure subject, of course, to permissible restrictions." Common sense has
always served in the court's ceaseless striving as a voice of reason to
maintain the blend of change and continuity of order which is sine qua non for
stability in the process of change in a parliamentary democracy.
Therefore,
it is but the duty of the Court to supply vitality, blood and flesh, to balance
the competing rights by interpreting the principles, to the language or the
words contained in the living and organic Constitution, broadly and liberally.
The judicial function of the Court, thereby, is to build up, by judicial
statesmanship and judicial review, smooth social change under rule of law with
a continuity of the past to meet the dominant needs and aspirations of the
present. This Court, as sentinel on the qui vive, has been invested with more
freedom, in the interpretation of the Constitution than in the interpretation
of other laws. This Court, therefore, is not bound to accept an interpretation
which retards the progress or impedes social integration; it adopts such
interpretation which would bring about the ideals set down in the Preamble of
the Constitution aided by Part III and IV - a truism meaningful and a living reality
to all sections of the society as a whole by making available the rights to
social justice and economic empowerment to the weaker sections, and by
preventing injustice to them. Protective discrimination is an armour to realise
distributive justice. Keeping the above perspective in the backdrop of our
consideration, let us broach whether the rights of the employees belonging to
the general category are violative of Article 14;
inconsistent
with and derogatory to right to equality and are void ab initio. In Union of
India & Anr. vs. Reghubir Singh (Dead) by LRs. etc. [(1989) 2 SCC 754 at
766], a Constitution Bench had held that like all principles evolved by man for
the regulation of the social order, the doctrine of binding precedent is
circumscribed in its government by perceptible limitations, limitations.
arising by reference to the need for re-adjustment in a changing society, a
re-adjustment of legal norms demanded by a changed social context. This need
for adapting the law to new urges in society brings home that truth that the
life of the law has not been logic, but it has been experienced. The law is
forever adopting new principles from life at one end and "sloughing
off" old ones at the other. The choice is between competing legal propositions
rather than by the operation of logic upon existing legal propositions that the
growth of law tends to be determined. Interpretation of the Constitution is a
continuous process. The concepts engraved therein keep changing with the
demands of changing needs and time.
The
doctrine of stare decisis is ordinarily a wise rule of action, because in most
matters, it is more important that the applicable rule of law be settled right.
The rule of stare decisis, though one tending to keep consistency and
uniformity of decisions, is not an inflexible rule. Whether it shall be
followed or departed from is a question entirely within the discretion of the
Court and it does not deter the court to depart from it. Stare decisis is not,
like the rule of res judicata, a universal, inexorable command. whether it
would be desirable to continue the decision in constitutional questions is one
of the choice between competing rights. In The Bengal Immunity Company Ltd.
case, considering the question whether the decision of a Constitution Bench
referred in the State of Bombay vs. The Union Motors (India) Ltd. [(1953) SCR
1069], a majority of seven Judges following the descending judgment of Stone,
CJ in United States of America vs. South-Eastern Underwriters Association [322
US 533], had held that the Court has never committed itself to any rule or
policy that it will not bow to the lessons of experience and the force of
better reasoning by overruling a mistaken precedent. The doctrine of stare
decisis should not be rigidly applied to the constitutional as well as to other
laws. In the case of private import, the chief desideratum is that the law
remained certain, and, therefore, where a rule has been judicially declared and
private rights created thereunder, the courts will not, except in the clearest
cases of error, depart from the doctrine of stare decisis. When, however,
public interests are involved, and especially, when the question is one of
constitutional construction, the matter is otherwise. Accordingly the Bench
overruled the majority decision. It would, thus, be settled law that in the
interpretation of the Constitution or the concepts embodied therein, the
application of the doctrine of stare decisis is not an inexorable or rigid
rule. It requires modulation or adherence based upon the need of the
constitutional command and social imperatives. It would, therefore, be entirely
within the discretion of the Court when it is called upon to consider its
application to the given set of circumstances.
It is
settled principle right from Golak Nath ratio that prospective over-ruling is a
part of the principles of constitutional canon of interpretation. Though Golak
Nath ratio of unamendability of fundamental rights under Article 368 of the
Constitution was over-ruled in Keshavananda Bharati's case [1973 Supp. SCR 1]
the doctrine of prospective over-ruling was upheld and followed in several
decisions. This Court negatived the contention in Golak Nath's case that
prospective over-ruling amounts to judicial legislation. Explaining the
Blackstonian theory of law, i.e., Judge discovers law and does not make law,
and the efficacy of prospective over-ruling at page 808 placitum D to H, this
Court by a Bench of eleven Judges had held that the doctrine of prospective
over-ruling is a modern doctrine and is suitable for a fast moving society. It
does not do away with the doctrine of stare decisis but confines it to past
transactions. While in strict theory, it may be said that the doctrine involves
the making of law, what a Court really does is to declare the law but refuses
to give retrospectivity to it. It is really a pragmatic solution reconciling
the two conflicting doctrines, namely, that a Court finds law and that it does
make the law. It finds the law but restricts its operation to the future. It enables
the Courts to bring about a smooth transition by correcting the errors without
disturbing the impact of those errors on past transactions. By implication of
this doctrine, the past may be preserved and the future protected. The
Constitution does not expressly or by necessary implication speak against the
doctrine of prospective over-ruling. Articles 32(4) and 142 are designed with
words of width to enable this Court to declare the law and to give such
direction or pass such orders as are necessary to do complete justice.
Declaration of law under Article 141 is wider than words found or made.
The
law declared by this Court is the law of the land. So, there is no acceptable
reason as to why the Court in dealing with the law in supersession of the law
declared by it earlier could not restrict the operation of law, as declared, to
the future and save the transactions, whether statutory or otherwise, that were
effected on the basis of the earlier law. This Court is, therefore, not
impotent to adjust the competing rights of parties by prospective over- ruling
of the previous decision in Rangachari ratio. The decision in Mandal's case
postponing the operation for five years from the date of the judgment is an
instance of, and an extension to the principle of prospective over-ruling
following the principle evolved in Golak Nath case. In Managing Director, ECIL,
Hyderabad & Ors. vs. B.Karunakar & Ors. [(1993) 4 SCC 727], a
Constitution Bench of this Court, while over-ruling Union of India V/s. Mohd.
Ramzan Khan [(1991) 1 SCC 588] had held that benefit of the decisions would be
given only to the parties to the cases pending before the authorities from the
date of the judgment but not to the actions already taken by the date of that
judgment.
In
that behalf in separate but partly dissenting judgment to a limited extent, on
the issue of the need to give benefit to the party that approaches the Court in
that case, one of us, K. Ramaswamy, J., had held that as a matter of
constitutional law retrospective operation of an over-ruling decision is
neither required nor prohibited by the Constitution; it is a matter of judicial
attitude depending on the facts and circumstances in each case; the nature and
purpose the particular over-ruling decision seeks to serve are required to be
taken into consideration. The Court would look into the justifiable reliance on
the over-ruled case by the administration. All the factors, viz., ability to
effectuate the new rule adopted in the over-ruling case, without doing
injustice and whether the likelihood of its operation substantially burdens the
administration or retards the purpose, are to be taken into account, while
over-ruling the earlier decision or laying down a new principle. Equally, no
distinction could be made between claims involving constitutional rights,
statutory right or common law right. The Court is required to adjust the
competing rights taking into consideration the prior history of the rule in
question, its purpose and effect and to find out whether retrospective operation
will accelerate or retard its operation. Therefore, evolving of the appropriate
rule to give effect to the decision of the Court over-ruling its previous
precedent, is one of judicial craftsmanship with pragmatism and judicial
statesmanship as a useful outline to bring about smooth transition of the
operation of law without unduly affecting the rights of the people who acted
upon the law operated prior to the date of the judgment over-ruling the
previous law.
The
question, therefore, is: whether such a decision is void when it offends the
fundamental rights under Article 13(2) of the Constitution? The doctrine of
voidity was dealt with in the Administrative Law by wade (Seventh Edition) at
page 342, and it is stated that "the truth of the matter is that the Court
would invalidate an order only if the right remedy is sought by the right
person in the right proceedings and circumstances". The terms "void
ab initio" or "nullity" or "voidable" are descriptive
of the status of the legislation or subordinate legislation alleged to be ultra
vires for patent or for latent defects before its validity has been pronounced
by a Court of competent jurisdiction. It would, therefore, be of necessity to
consider in each case, the effect of the declaration granted by the Court
before labelling it as void, nullity or voidable, as the case may be.
It is
seem that Article 13(2) envisages a situation where the State action, be it
legislative or executive, violates the fundamental rights in Part III of the
Constitution; such law is declared as void but when the previous over-ruled
decision and the new rule laid down by the Court as a stare decisis operates
prospectively from a given date, namely, either the date of the judgment or
extended date. Judgment or order is not a legislative Act which is void under
Article 13(2) but judicial tool by which the effect of the judgment was given.
Therefore, the judgment of this Court in Mandal's case declaring that
Rangachari ratio did not correctly interpret Articles 16(1) and 16(4) of the Constitution
is a declaratory law under Article 141 of the Constitution. It is true that
Article 13(1) deals with pre-constitutional law and if it is inconsistent with
fundamental rights, it becomes void from January 26, 1950, the date on which
the Constitution of India came into force and if a post-constitutional law
governed by Article 13(2) violates fundamental rights, it becomes void from its
inception. Either case deals with statute law and not the law declared by this
Court under Article 141 and directions/orders under Article 142.
The
question then is: whether such a declaration is inconsistent with the
Constitution or in derogation of the fundamental rights? As held earlier, both
the disadvantaged and advantaged sections of the society have equal competing
fundamental rights in Part adapter of Fundamental Rights.
The
Court in mod had obviously recognised the need to exempting rights of both
sections of citizens and therefore, it postponed the operation of that judgment
for five years from that date giving an option to the Executive to have the law
amended appropriately.
In
Union Carbide Corpn. & Ors v. Union of India & Ors. [(1991) 4 SCC 584],
a Constitution Bench was to consider the scope, ambit and limitation of the
exercise of the power under Article 142. Therein, the contention raised was
that the direction issued was contrary to the statutory provision violating
Article 21 of the constitution and that, therefore, the power under Article 142
could not be exercised in that backdrop. This Court explaining the interplay of
inference of Prohibition or limitation on the constitutional power and as to
when need to its exercise the same under Article 142 arises, had pointed out in
para 83 thus:
"It
is necessary to set at rest certain misconceptions in the arguments touching
the scope of the powers of this Court under Article 142(1) of the Constitution.
These issues are matters of serious public importance. The proposition that a
provision in any ordinary law irrespective of the importance of the public
policy on which it is founded, operates to limit the powers of the apex Court
under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay
cases the point was one of violation of constitutional provisions and
constitutional rights. The observations as to the effect of inconsistency with
statutory provisions were really unnecessary in those cases as the decisions in
the ultimate analysis turned on the breach of constitutional rights. We agree
with Shri Nariman that the power of the court under Article 142 insofar as
quashing of criminal proceedings are concerned is not exhausted by Section 320
or 321 or 482 Cr.PC or all of them put together. The power under Article 142 is
at an entirely different level and of a different quality. Prohibitions or limitations
or provisions contained in ordinary laws cannot, ipso facto, act as
prohibitions or limitations on the constitutional powers under Article 142 Such
prohibitions or limitations in the statutes might embody and reflect the scheme
of a particular law, taking into account the nature and status of the authority
or the court on which conferment of powers - limited in some appropriate way
not necessarily reflect or be based on any fundamental considerations of public
policy. Shri Sorabjee, learned Attorney General, referring to Garg case, said
that limitation on the powers under Article 142 arising from
"inconsistency with express statutory provisions of substantive law"
must really mean and be understood as some express prohibition contained in any
substantive statutory law. He suggested that if the expression `prohibition' is
read in place of `provision' that would perhaps convey the appropriate idea.
But we think that such prohibition should also be shown to be based on some
underlying fundamental and general issues of public policy and not merely
incidental to a particular statutory scheme or pattern. It will again be wholly
incorrect to say that powers under Article 142 are subject to such express
statutory prohibitions. That would convey the idea that statutory provisions
override a constitutional provision. Perhaps, the proper way of expressing the
idea is that in exercising powers under Article 142 and in assessing the needs
of "complete justice" of a cause or matter, the apex Court will take
note of the express prohibitions in any substantive statutory provision based
on some fundamental principles of public policy and regulate the exercise of
its power and discretion accordingly. The proposition does not relate to the
powers of the Court under Article 142, but only to what is or is not `complete
justice' of a cause or matter and in the ultimate analysis of the propriety of
the exercise of the power. No question of lack of jurisdiction or of nullity
can arise." In Delhi Judicial Service Association, Tis Hazari Court, Delhi
vs. State of Gujarat & Ors. [(1991) 4 SCC 406] and In Re: Vijay Chandra
Mishra [(1995) 2 SCC 584], this Court considered its paramount power and duty
to protect limbs of administration of justice from those whose actions created
interference with or obstruction to the course of justice. It was held that the
failure to exercise the power with such situations, when it is invested
specifically for the purpose, is a failure to discharge the duty. The first
case deals with a case when the judicial officer in Gujarat was assaulted by
the police and in the latter when a practising advocate assaulted a Judge of
the High Court, this Court took suo motu action and passed appropriate orders,
in spite of absence of specific power to deal with or despite the disciplinary
power available under the Advocates Act. In Delhi Development Authority vs.
Skipper Construction Co.(P) Ltd. & Anr. [(1996) 4 SCC 622], a Bench of two
Judges exercised the power under Articles 129 and 142 of the Constitution and
not only punished the defrauding party but also directed restoration of the
benefits illegally derived to the persons defrauded. The imposition of the
punishment, it was held, does not denude the power of Court; it could issue
directions to remedy the wrong done by the contemner including directions to
refund the amounts wrongfully derived by the contemner to the rightful persons.
It
would be seen that there is no limitation under Article 142(1) on the exercise
of the power by this Court.
The
necessity to exercise the power is to do "complete justice in the cause or
matter". The inconsistency with status law made by Parliament arises when
this Court exercises power under Article 142(2) for the matters enumerated
therein. Inconsistency in express statutory provisions of substantive law would
mean and be understood as some express prohibition contained in any substantive
statutory prohibition contained in any substantive statutory law. The power
under Article 142 is constituent power transcendental to statutory prohibition.
Before exercise of the power under Article 142(2) and we find no limiting words
to mould the relief or when this Court takes appropriate decision to met out
justice or to remove injustice. The phrase "complete justice"
engrafted in Article 142(1) is the word of width couched with elasticity to
meet myriad situations created by human ingenuity or cause or result of
operation of statute law or law declared under Article 32, 136 and 141 of the
Constitution and cannot be cribbed or crabbed within any limitations or
phraseology. Each case needs examination in the light of its backdrop and the
indelible effect of the decision. In the ultimate analysis, it is for this
Court to exercise its power to do complete justice or prevent injustice arising
from the exigencies of the cause or matter before it. The question of lack of
jurisdiction or nullity of the order of this Court does not arise. As held
earlier, the power under Article 142 is a constituent power within the
jurisdiction of this Court. So, the question of a law being void ab initio or
nullity or voidable does not arise.
Admittedly,
the Constitution has entrusted this salutary duty to this Court with power to
remove injustice of to do complete justice in any cause or matter before this
Court. The Rangachari ratio was in operation for well over three decades under
which reservation in promotions were given to several persons in several
services, grade or cadre of the Union of India or the respective State
Governments.
This
Court, with a view to see that there would not be any hiatus in the operation
of that law and, as held earlier, to bring about smooth transition of the
operation of law of reservation in promotions, by a judicial creativity
extended the principle of prospective over-ruling applied in Golak Nath case in
the case of statutory law and of the judicial precedent in Karunakaran's case
and further elongated the principle postponing the operation of the judgment in
Mandal's case for five years from the date of the judgment.
This
judicial creativity is not anathema to constitutional principle but an accepted
doctrine, as an extended facet of stare decisis. It would not be labelled as
proviso to Article 16(4) as contended for.
In
S.P. Sampat Kumar vs. Union of India & Ors. [(1987) 1 SCC 124], while
noticing that the Administrative Tribunal Act suffered from constitutional
invalidity, instead of declaring the Act as invalid, declared that its
invalidity would be removed by making necessary suggested amendments thereto so
that the law will become consistent with the Constitution. In St. Stephen
College case (supra), while holding that the orders issued by Delhi University
were violative of Article 30(1) of the Constitution, this Court declared that
admission by the minority institutions in the ratio of 50:50 between minority
students and the general students was constitutional which is another facet of
judicial creativity. In Pannalal Bansilal Pitti v. State of Andhra Pradesh
[(1996) 2 SCC 498], this Court, instead of declaring that abolition of hereditary
trusteeship of the founder of the temple to manage a temple was
unconstitutional, declared the law reading it down that the institutions would
be managed by a Committee of the non- hereditary and hereditary trustees
presided over by the hereditary trustees so as to be conducive to proper and
efficient management of the endowment or institutions. At the same time, this
Court upheld the power to remove hereditary trustees who mismanaged the
endowment or committee for acts of misfeasance or malfeasance, as valid.
It is
settled legal principle of reading down the provisions of a statute by so
interpreting them as to make the Act consistent with the constitutional
principles. Instances, therefore, are many under which this Court has evolved
the appropriate principle to sustain the legislative or executive actions
consistent with the constitutional philosophy or principles. Mahendra Lal Jaini
vs. The State of Uttar Pradesh & Ors. [1963 Supp.(1) SCR 912], relied on by
the petitioners. is of no assistance to the facts of this Case. Therein, the
distinction between the post- constitutional and pre-constitutional law which
violated the fundamental rights and the effect thereof under Article 13(1) and
13(2) was considered. The doctrine of eclipse was pressed into service and
explaining the circumstances in which the voidity of the pre-constitutional law
and the validity of the post-constitutional law was declared, this Court held
that the post-constitutional law violating the fundamental rights was
still-born and that, therefore, was void from its inception, while the
pre-constitutional law is effective from inception but its voidity supervened
when the Constitution came into force. Therefore, it would be void only from
January 26, 1950 and the previous operation of the law remained unaffected. The
ratio therein, therefore, has no application to the facts in this case.
Similarly, the ratio in Atam Prakash vs. State of Haryana & Ors. [(1986) 2
SCC 249] is equally inapplicable to the facts of this case.
Therein,
it was declared that the justification of right of pre-emption to different
classes enumerated in Section 15 of the Punjab Promotion Act was declared ultra
vires and inconsistent with the modern concept of equality. Therefore, it was
held that the law was not valid. Equally, the ratio in Waman Rao's case
(supra), is equally inapplicable.
Therein,
it was held that a law violating the fundamental rights was void but it
remained valid under the protective umbrella of Schedule IX of the Constitution
and, therefore, though it was void, it cannot be declared to be void and
remained to be valid law. But a post-constitutional Kesavananda Bharati law
which did not receive the protective umbrella of Schedule IX is void from its
inception. we are not concerned, as stated supra, with statute law in this
case. Under those circumstances, the ratio therein is inapplicable to the facts
in this case. A.R. Antule's case is inapplicable to the facts in this case.
Therein, though this Court had directed under Article 142 trial of the appellant
by a High Court Judge, it was held that such direction was inconsistent with
fundamental rights of equality under Article 21 read with Article 14 with the
trial of other similarly circumstanced offenders by a properly constituted
Court with a right of appeal while the order passed under Article 142 denied
him of the equality of trial process. This Court accepted that contention and
held that the direction issued on earlier occasion was invalid in law. In that
context, the observations came to be made in para 50. The ratio therein is also
inapplicable to the facts in this case. In Delhi Judicial Service Association
vs. State of Gujarat [(1991) 4 SCC 406 AT 452, para 37], it was held that the
powers under Articles 32, 136, 141 and 142 are basic structures of the
Constitution and cannot be curtailed by statute law. Equally, the same position
was reiterated in para 51 therein. The ratio also is inapplicable to the facts
in this case as we have already held that the direction in Mandal's case
postponing the operation of the judgment of reservation in promotions for a
period of five years is a part of the scheme of judicial review being an
innovative device to mete out justice to the Dalits and Tribes giving breathing
time to the executive to bring about suitable legislative measures, if they so
desired and if no action was taken by amending the law, on expiry of five
years, the judgment in Mandal case would become operative. Thereafter
reservation in promotion would be unconstitutional which invalidity was remedied.
As held earlier, this being one of the tools of judicial craftsmanship adopted
by exercising the power under Article 142, which is available only to this
Court, the directions given are not violative of rights under Article 14 read
with Article 16(1), not ultra vires the power nor void, nor incompatible to or
inconsistent with the doctrine of equality enshrined under Article 14 read with
Article 16(1) of the Constitution. On the other hand, the power was exercised
by this Court under Article 142 read with Articles 32 and the direction
postponing the operation of the decision for a period of five years is a law of
the land under Article 141.
It is
already seen that the rule of reservation in promotions was in vogue in the
State of Uttar Pradesh right from 1973 and the promotions came to be made from
1981 onwards to the respondents 2 to 10. The U.P. Act saves the existing policy
of reservation in promotions. The judgment in Mandal case saves the promotions
already made. In Sabharwal's case also a Constitution Bench has upheld the
validity of the promotions given in excess of the roster;
otherwise
also those promoted on their own merit were held to be validly promoted. Even
excess promotions remained undisturbed and the law became operative only from
the date of the judgment. This Court upheld the previous promotions, though in
excess of the roster system, as constitutional and valid. Therefore, we hold
that the promotions of the respondents are legal and valid and they do not
become void or unconstitutional as contended.
Both,
the appeal and the writ petition are accordingly dismissed with no order as to
costs.
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