TMI Blog2016 (3) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court Advocates-on-Record Association [ 1993 (10) TMI 352 - SUPREME COURT] (IInd Judges case) but they are based on principles of secure operation of legal system, access to justice and speedy disposal of cases. In All India Judges' Association and Ors. v. Union of India and Ors. [ 2001 (2) TMI 1023 - SUPREME COURT] , the Court issued directions by stating that it is the constitutional obligation to ensure that the backlog of cases is decreased and efforts are made to increase the disposal of cases. Keeping in view the concept of constitutional silence or abeyance, guidelines were issued in Vishaka and Ors. v. State of Rajasthan and Ors. [ 1997 (8) TMI 456 - SUPREME COURT] and for the said purpose, reliance was placed on international Treaties, norms of gender equality and right to life and liberty of working women. The Courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and Regulation or policy relating to reservation. The Courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of subordinate legislation. We may hasten to ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id grievances have already been directed to be dealt with in interlocutory applications to be filed in the case of U.P. Power Corporation Limited v. Rajesh Kumar and Ors. (2012) 7 SCC 1. 2. At the commencement of the hearing, Dr. K.S. Chauhan, learned Counsel appearing for the Petitioner in Writ Petition (Civil) No. 715 of 2015, had submitted that the decision in M. Nagaraj (supra) by the Constitution Bench requires reconsideration. For the said purpose, he has made an effort to refer to certain passages from Indra Sawhney and Ors. v. Union of India and Ors. (1992) Supp. 3 SCC 217 and R.K. Sabharwal v. State of Punjab 1995 (2) SCC 745. We are not inclined to enter into the said issue as we are of the considered opinion that the pronouncement in M. Nagaraj (supra) is a binding precedent and has been followed in number of authorities and that apart, it has referred to, in detail, all other binding previous authorities of larger Benches and there does not appear any weighty argument to convince us, even for a moment, that the said decision requires any reconsideration. The submission on the said score is repelled. 3. The principal submission of Mr. Salman Khurshid, Mr. K.V. Vish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively from 17-6-1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the Petitioners, the impugned amendment reverses the decisions of this Court in Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684, Ajit Singh Januja v. State of Punjab (1996) 2 SCC 715 (Ajit Singh-I), Ajit Singh (II) v. State of Punjab (1999) 7 SCC 209, Ajit Singh (III) v. State of Punjab (2000) 1 SCC 430, Indra Sawhney v. Union of India (supra) and M.G. Badappanavar v. State of Karnataka (2001) 2 SCC 666. The Petitioners say that Parliament has appropriated the judicial power to itself and has acted as an Appellate Authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. The Petitioners have furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 123. However, in this case, as stated above, the main issue concerns the extent of reservation . In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (4-A) will be governed by the two compelling reasons-- backwardness and inadequacy of representation , as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced. (vi) If the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the timescale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the timescale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact situation. (vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation. (viii) The constitutional limitation Under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Virpal Singh Chauhan (supra) and Ajit Singh (2) (supra). Being of this view, the Court held that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. On the said score, the Court did not accept the submission as the provisions of the Constitution are treated valid with certain conditions and riders. Thereafter the Court concluded: In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheduled Tribes and Other Backward Classes) Amendment Ordinance, 2012. We do not intend to address to the said facets. Suffice it to say, the Court in Rajesh Kumar (supra) has clearly held that Section 3(7) of the 1994 Act and Rule 8-A are ultra vires. What has been stated in the said judgment is that any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8-A was to remain undisturbed. Thus, the decision has made it distinctly clear what has been stated. 15. The stand that the provisions remained in force till the State omits it by an omission has no force. When the statutory provisions and the rules have been declared ultra vires, the two-Judge Bench was absolutely conscious what is to be stated and accordingly, has directed so. In this regard, reference may be made to the decision in Ganga Ram Moolchandani v. State of Rajasthan and Ors. (2001) 6 SCC 89, wherein a particular rule was declared ultra vires. A contention was advanced that the Court must hold that the decision would have prospective operation to avoid a lot of complications. The Court referred to the authorities in Ganga Ram Moolchandani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ashok Kumar Sharma case No. II (1997) 4 SCC 18. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside. 18. Tested on the aforesaid principles, it is luminescent that the pronouncement in Rajesh Kumar (supra) is by no means prospective. The declaration is clear and the directions are absolutely limpid. The Court has not stated that the entire past promotions should be saved. It allows limited sphere of saving. Thus viewed, the submission that prospectivity is inhered in the said judgment does not appeal to us. If a promotee is saved as per the judgment of the said case, the same is saved; and for that reason, the Court has already directed in certain interlocutory applications that the promotees who have been reversed, their grievance shall be looked into by a committee and the decision of the committee can directly be challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provisions. The President has Under Articles 341 and 342 to specify Scheduled Castes and Scheduled Tribes and he has done so. Specification so made carries for the members of the Scheduled Castes and Scheduled Tribes certain special benefits e.g. reservation of seats in the House of the People, and in the State Legislative Assemblies by Articles 330 and 332, and of the numerous provisions made in Schedules V and VI. It may be noticed that Scheduled Castes and Scheduled Tribes are specially defined for the purposes of the Constitution by Articles 366(24) and 366(25). If power to declare certain classes of citizens as belonging to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without substituting a fresh declaration, the President will be destroying the constitutional scheme. The power to specify may carry with it the power to withdraw specification, but it is coupled with a duty to specify in a manner which makes the constitutional provisions operative. (Underlining is ours) 20. Learned Counsel has also drawn our attention to the opinion of Hegde, J. which reads as follows: In my opinion Article 366(22) imposes a duty on the President and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conflicting interpretation. May is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. As early as 1880 the Privy Council in Julius v. Lord Bishop of Oxford (1880) 5 AC 214 explained the position. Earl Cairns, Lord Chancellor speaking for the judicial committee observed dealing with the expression it shall be lawful that these words confer a faculty or power and they do not of themselves do more than confer a faculty or power. But the Lord Chancellor explained there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty must depend upon the facts and circumstances of each case and must be so decided by the courts in each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It necessarily implies that the Government should not frame any policies or do any acts which shall derogate from the very ethos of the stated basic principle of judicial independence. If the policy decision of the State is likely to prove counterproductive and increase the pendency of cases, thereby limiting the right to fair and expeditious trial to the litigants in this country, it will tantamount to infringement of their basic rights and constitutional protections. Thus, we have no hesitation in holding that in these cases, the Court could issue a mandamus. The extent of such power, we shall discuss shortly hereinafter. The aforesaid decision, in our considered opinion, is quite distinguishable. The Court was referring to certain constitutional concepts, namely, constitutional duty, independence of judiciary, effectiveness of justice delivery system in the country, the infringement of specific rights and constitutional protection. We will in course of our deliberations advert to whether the said principles can be taken recourse to in the case at hand. 23. Reliance has also been placed by the learned Counsel on the decision in Aneesh D. Lawande and Ors. v. State of Goa and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, concurred with the view expressed in Julius (supra) and eventually, held that it was obligatory on the Government to constitute a Committee to carry out the purpose and objective of the Act. The import and effect of the aforesaid authorities we shall dwell upon when we will be addressing the issue whether a writ of mandamus can be issued in the present factual matrix regard being had to the nature of constitutional provisions. 24. We will be failing in our duty if we do not take note of another facet of the submissions advanced by the learned Counsel for the Petitioners. It is urged by them that it is the constitutional duty and obligation of the authorities to work out the constitutional provisions to effectuate the affirmative action meant for scheduled castes and the scheduled tribes persons and regard being had to the principles stated in M. Nagaraj (supra), the reservation in promotion with consequential seniority cannot be thought of without collection of the necessary quantitative data in regard to certain aspects. Mechanisms are to be provided for collection of such data. It is contended that failure to do so tantamounts to failure of performance of constitutional du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing in the nature of thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. 27. Immense emphasis has been laid on D.K. Basu (supra) wherein the Court was dealing with Section 21 of the Protection of Human Rights Act, 1993 which deals with setting up of State Human Rights Commission. Interpreting the said provision, the Court has observed: A plain reading of the above would show that Parliament has used the word may in Sub-section (1) of Section 21 while providing for the setting up of a State Human Rights Commission. In contrast Parliament has used the word shall in Section 3(1) while providing for constitution of a National Commission. The argument on behalf of the defaulting States, therefore, was that the use of two different expressions which dealing with the subject of analogous nature is a clear indication that while a National Human Rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Petitioner, as stated earlier, has founded his argument on the principles stated in many authorities which pertain to interpretation of power coupled with duty . Reference has been made to Breen v. Amalgamated Engineering Union (1971) 2 QB 175, 190 which has been cited by the House of Lords in Padfield (supra) wherein their Lordships considering the discretion of statutory authority under the Agriculture Marketing Act, 1958 (UK) opined: The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations, which is ought not to have taken into account, then the decision cannot stand. 31. The said view has been accepted by the Court in S.P. Gupta (supra). 32. In T.N. Godavarman Thirumulpad v. Union of India and Ors. (2014) 4 SCC 61 the Court referred to the decision in Lafarge Umiam Mining (P) Ltd. v. Union of India and Ors. (2011) 7 SCC 338, reproduced a paragraph from it and observed: It will be clear from the italicised portions of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and Bishop of London (1812) 15 East 117, at 136] ; and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual[R. v. Bank of England (1819) 2 B and Ald 620, at 622; R v. Thomas (1892) 1 QB 426]. 36. This Court in State of Kerala v. A. Lakshmikutt (1986) 4 SCC 632, while dealing with the concept of mandamus, opined thus: It is well settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. (Emphasis added) 37. In Dr. Umakant Saran v. State of Bihar and Ors. (1973) 1 SCC 485, the Court referred to its earlier decision in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College 1962 Supp. 2 SCR 144 and observed that in order that manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of power coupled with duty. 40. In this regard reference to the decision in Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. (2002) 4 SCC 638 would be fruitful. In the said case, a three-Judge Bench of the Court, while dealing with the order of the High Court to issue mandamus, opined: One of the conditions for exercising power Under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. Mandamus means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... founded on the backdrop of right to life and the enhancement of the criminal justice delivery system. 42. In the case at hand, we are concerned with the enabling power as engrafted Under Articles 16, 16(4-A) and 16(4-B). The said Articles being enabling provisions, there is no power coupled with duty. In Ajit Singh (II) (supra), it has been held that no mandamus can be issued either to provide for reservation or for relaxation. Recently, in Chairman and Managing Director, Central Bank of India and Ors. v. Central Bank of India SC/ST Employees Welfare Association and Ors. 2015 (1) SCALE 169 it has been held thus: In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the State to take affirmative action in favour of SC/ST category persons by making reservations for them in the employment in the Union or the State (or for that matter, public sector/authorities which are treated as State Under Article 12 of the Constitution). The laudable objective underlying these provisions is also to be kept in mind while undertaking any exercise pertaining to the issues touching ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj (supra). The Constitution Bench while opining that Articles 16(4-A) and (4-B) are enabling provisions had observed thus: Extent of reservation, as stated above, will depend on the facts of each case. Backwardness and inadequacy of representation are compelling reasons for the State Governments to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements. After so stating, the larger Bench has clearly held that Article 16(4-A) and 16(4-B) do not alter the structure of Article 16(4). The said Articles are confined to the Scheduled Castes and the Scheduled Tribes and do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney (supra), the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal (supra). After so stating, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reservation there is a necessity for collection of data in accordance with the principles stated in M. Nagaraj (supra) as the same is the condition precedent. A writ of mandamus is sought to collect material or data which is in the realm of condition precedent for exercising a discretion which flows from the enabling constitutional provision. Direction of this nature, in our considered opinion, would not come within the principle of exercise of power coupled with duty. A direction for exercise of a duty which has inherent and insegretable nexus with the constitutional provision like Article 21 of the Constitution or a statutory duty which is essential for prayer as laid down in Julius (supra) where a power is deposited with a public officer but the purpose of being used for the benefit of persons who are specifically pointed out with regard to whom a discretion is applied by the Legislature on the conditions upon which they are entitled. We are inclined to think so as the language employed in M. Nagaraj (supra) clearly states that the State is not bound to make reservation in promotion. Thus, there is no constitutional obligation. The decisions wherein this Court has placed relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policymaking by adding something to the policy by ways of issuing a writ of mandamus. We have referred to the said authority as the court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a Regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. In our considered opinion a writ of mandamus of such a nature cannot be issued. 45. Consequently, the Writ Petitions, being devoid of merit, ..... 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