TMI Blog2019 (5) TMI 1907X X X X Extracts X X X X X X X X Extracts X X X X ..... art from or outside of Clause (4) of Article 16. The opinion of the Division Bench in STATE OF UTTARAKHAND VERSUS VIKRANT MISHRA OTHERS.[ 2013 (8) TMI 1152 - UTTARAKHAND HIGH COURT ], that Article 16(4) is exhaustive of all forms of reservation, and that no reservation can be provided under Article 16(1), runs contrary to law declared by the Supreme Court in STATE OF KERALA ANR. VERSUS N.M. THOMAS ORS. [ 1975 (9) TMI 176 - SUPREME COURT ] is, therefore, overruled - The power to make reservation, in favour of sportsmen, is traceable to Article 16(1) of the Constitution of India, subject, of course, that the exercise of power, to provide such reservation, satisfies the twin tests of a valid classification. Whether the order in VIKRANT MISHRA is not good in law result in revival of Government Order dated 06.10.2006, which was the foundation of the right of the respondents-writ petitioners? - HELD THAT:- A decision inter-parties cannot be overturned in collateral proceedings. A decision can be set aside in the same lis on a prayer for review or an application for recall. Overruling of a decision takes place in a subsequent lis where the precedential value of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided under Articles 16(4), (4A) and (4B), can be extended under Article 16(1), provided such reservation satisfies the test of a valid and reasonable classification - As the Government Order dated 06.10.2006 has been held to be non est by the Division Bench in its order in Special Appeal No. 162 of 2013 dated 14.08.2013, which order has attained finality, the petitioners in both the Writ Petitions are not entitled to the grant of any relief from this Court. Petition dismissed. - WRIT PETITION (S/B) NO. 45 OF 2014 AND WRIT PETITION (S/S) NO. 330 OF 2015 - - - Dated:- 21-5-2019 - RAMESH RANGANATHAN, C.J., SUDHANSHU DHULIA AND ALOK SINGH, JJ. For the Appellant : Ashok Singh, Narendra Bali and Amar Shukla, Advocates For the Respondent : S.N. Babulkar, Learned Advocate General assisted by Paresh Tripathi, Chief Standing Counsel, B.D. Kandpal, Standing Counsel and Neeti Rana, Advocate holding brief Rakesh Thapliyal, Advocate JUDGMENT Ramesh Ranganathan, C.J. 1. The question, which are called upon to answer, is whether Article 16(4) of the Constitution of India is exhaustive of all forms of reservation, or whether reservation for the sports category can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.10.2006 provided for appointment in the sports quota irrespective of the place of domicile. The respondents were directed to appoint the petitioners if the posts had not already been filled up. Aggrieved thereby, the Government of Uttarakhand carried the matter in appeal to the Division Bench in Special Appeal No. 162 of 2013. 4. While holding that the judgment under appeal was not interferable, a Division Bench of this Court, in its order in Special Appeal No. 162 of 2013 dated 14.08.2013, opined that an important aspect had been overlooked by the learned Single Judge that the Government, by a Government Order or otherwise, could not reserve any Government post for sports personnel; the same was impermissible in view of Article 16 of the Constitution of India; the words, in Sub-Article (1) of Article 16, were any office under the State ; therefore, in respect of each and every office under the State, there shall be equality of opportunity for all citizens; this suggested that, in the matter of public appointment, everybody had the right of equal opportunity of being considered; but for Sub-Article (4) of Article 16, no reservation could be made for backward class citizens; b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 14.08.2013, they thought it fit to refer the matter to a Full Bench. 7. Later a learned Single Judge, by his order in Writ Petition (S/S) No. 330 of 2013 dated 28.10.2016, directed that Writ Petition (S/S) No. 330 of 2013 be connected with Writ Petition (S/B) No. 45 of 2014; and Writ Petition (S/S) No. 330 of 2015 be taken up for consideration after the decision of the larger Bench. Liberty was granted to the petitioner to move an application before the larger Bench so constituted. It is in such circumstances that both these writ petitions have been listed before us. While the petitioner in Writ Petition (S/B) No. 45 of 2014 claims to have participated in the Aatya-Patya championship, the petitioner in Writ Petition (S/S) No. 330 of 2013 claims to have participated in Karate-Do championship, both of which are enumerated in the Appendix to the Government Order dated 06.10.2006. 8. Mr. Ashok Singh, learned counsel for the petitioner, would submit that the earlier Division Bench, in its order in Special Appeal No. 162 of 2013 dated 14.08.2013, had erred in holding that Clauses (4), (4A) and (4B) of Article 16 are exhaustive of all forms of reservation, and no provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiate amongst different classes of people. (State of Rajasthan and Ors. vs. Shankar Lal Parmar (2011) 14 SCC 235). The legislature is free to recognise degrees of harm, and to confine its restrictions to those cases where the need is deemed to be the clearest. (Ram Krishna Dalmia AIR 1958 SC 538). Article 14 forbids class legislation, and not reasonable classification for the purposes of legislation. While the classification may be founded on different basis, there must be a nexus between the basis of classification and the object of the Act (or Rule or Policy) under consideration. (Ram Krishna Dalmia AIR 1958 SC 538; Budhan Chaudhary v. State of Bihar AIR 1995 SC 191). 11. Articles 14 and 16 do not mandate that un-equals should be treated as equals. (M. Jagdish Vyas and Ors. vs. Union of India and Ors. (2010) 4 SCC 150). Article 16 (1), which takes its roots from Article 14, particularizes the generality in Article 14 and identifies, in a constitutional sense, equality of opportunity in matters of employment and appointment to any office under the State. (Ajit Singh and Ors. vs. The State of Punjab and Ors AIR 1999 SC 3471). Article 16, an incident of the application of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and exemptions, but also reservation of posts. What kind of special provision should be made in favour of a particular class is a matter for the State to decide, having regard to the facts and circumstances of a given situation. (Indira Sawhney 1992 Supp (2) SCC 217). 15. Both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties, but are only in the nature of enabling provisions vesting a discretion in the State to consider providing reservation, if the circumstances mentioned in those Articles so warrant, (Ajit Singh AIR 1999 SC 3471; C.A. Rajendran v. Union of India [1997] 3 SCR 269), for appointment in favour of backward classes of citizens which, in its opinion, is not adequately represented in the services of the State. (Ajit Singh: AIR 1999 SC 3471; P T SC/ST Employees' Welfare Association v. Union of India (1989) I LLJ 76 SC and SBI SC/ST Employees Welfare Association v. State Bank of India AIR 1996 SC 18). The backward class of citizens are classified as a separate category deserving special treatment in the nature of reservation in appointment/posts in the services of the State. Backward Classes, having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esides Article 16(4). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of Clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. If reservations are made both under Clause (4) as well as under Clause (1) of Article 16, the vacancies available for free competition would be correspondingly whittled down, and that is not a reasonable thing to do. (Indira Sawhney 1992 Supp (2) SCC 217). 18. The judgments of the Supreme Court in N.M. Thomas (1976) 2 SCC 310 and Indira Sawhney 1992 Supp (2) SCC 217, were not noticed by the Division Bench of this Court when it passed the order in Special Appeal No. 162 of 2013 dated 14.08.2013, and the said order is in ignorance of the law declared by the Supreme Court which is binding under Article 141 of the Constitution of India. Incuria literally means carelessness. A conclusion, without reference to the relevant provision of law, is weaker than even casual observations. (State of U.P. another vs. Synthetics and Chemicals Ltd. and another (1991) 4 SCC 139). The 'quot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tible facts (statements of the principles of law applicable to the legal problems disclosed by the facts); and a judgment based on the combined effect of the above. What is of the essence in a decision is its ratio. The enunciation of the reason or principle, on which a question before a court has been decided, is binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it is, is binding. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue would constitute a precedent. (Union of India v. Dhanwanti Devi (1996) 6 SCC 44; State of Orissa v. Mohd. Illiyas (2006) 1 SCC 275; ICICI Bank v. Municipal Corpn. of Greater Bombay (2005) 6 SCC 404; Girnar Traders v. State of Maharashtra (2007) 7 SCC 555; A D M, Jabalpur vs. Shivakant Shukla (1976) 2 SCC 521; Quinn v. Leathem 1901 AC 495 : (1900-03) All ER Rep. 1 (HL) and State of Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 647). 22. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisition Collector and Anr. (2005) 7 SCC 190). 24. A decision, which has attained finality, is binding between the parties, and they are not to be permitted to reopen the issue decided thereby. (Supreme Court Employees Welfare Association Vs. Union of India AIR 1990 SC 334). Such orders bind the parties in a subsequent litigation or before the same Court at a subsequent stage of proceedings. (Barkat Ali v. Badrinarain AIR 2001 Rajasthan 51). An order of a Court/Tribunal of competent jurisdiction, directly upon a point, creates a bar, as regards a plea, between the same parties in some other matter in another Court/Tribunal where the said plea seeks to raise afresh the very point that was determined in the earlier order. (Swamy Atmananda AIR 2005 SC 2392; Iswar Dath Land Acquisition Collector (2005) 7 SCC 190). Issues which have been concluded inter-parties cannot be raised again in proceedings inter-parties. (State of Haryana Vs. State of Punjab 2004(12) SCC 673). 25. A decision inter-parties cannot be overturned in collateral proceedings. A decision can be set aside in the same lis on a prayer for review or an application for recall. Overruling of a decision takes place in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to employment or appointment to any office under the State, can Article 14 and Article 16(1) of the Constitution be said to have been violated. Such denial would arise only if a law made by the State Legislature, or the Rules made and policies framed by the Executive, violate Articles 14 and 16(1) of the Constitution. While reservation with respect to categories, other than the backward classes, can also be extended under Article 16(1), the power to provide such reservation, under Article 16(1) of the Constitution, enures only in the Legislature and the Executive. In the absence of any such law or rule having been made, or a policy having been framed, the petitioners' request, for reservation to be provided under the Sports Category, cannot be granted by Courts. 28. Whether reservation is desirable or not, as a policy, is not for the Court to decide. (M. Nagaraj others vs. Union of India (2006) 8 SCC 212). Under our Constitutional scheme, Parliament and the State Legislatures exercise sovereign power to enact laws, and no outside power or authority can issue a direction to enact a particular piece of legislation. (State of J K v. A.R. Zakki 1992 (1) SCC 548; Suresh Seth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State. (M.P. Oil Extraction and anr. V. State of M.P. and Ors. (1997) 7 SCC 592). As the duty to formulate policies is entrusted to the executive, which is accountable to the legislature, the Court would not direct the executive to adopt a particular policy or the legislature to convert it into enacted law. (Satpal Saini (2017) 11 SCC 195). The exercise of making policy must be left to the discretion of the executive and legislative authorities. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes the fundamental rights guaranteed by the Constitution of India or any other statutory right. (Premium Granites v. State of Tamil Nadu (1994) 2 SCC 691 and Census Commissioner and Ors. v. R. Krishnamurthy (2015) 2 SCC 796). 31. It is not within the domain of the Court to legislate. The Courts interpret the law, and have the jurisdiction to declare the law unconstitutional. But, the courts are not to plunge into policy making by adding something to the policy by issuing a writ of mandamus. (R. Krishnamurthy (2015) 2 SCC 796 and Mangalam Organics Ltd. (2017) 7 SCC 221). Since a writ of Mandamus cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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