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B.K PAVITRA V. UNION OF INDIA

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OVERVIEW OF THE CASE

Case NameB,K Pavitra v. Union Of India
Civil Case No. 2368 of 2011
AppellantB.K Pavitra and Ors.
RespondentThe State of Karnataka and SC,ST Engineer’s welfare association and The Union Of India,
Cases referredIndra Sawhney v. Union of India 1992M.Nagraj v. Union Of India 2006Jarnail Singh v. Lacchmi Narain Gupta 2018State of Kerala v. NM Thomas  
BenchHon’ble Dr.Justice D,Y Chandrachud[1] Hon’ble Mr. Justice Uday Umesh Lalit
Citation (2019) 16 SCC 129 Equivalent citation-2019 SCC online SC 694
Statutes referredThe constitution of India Section-15 & 16Karnataka Determination of Seniority of the government servants promoted on the Basis of Reservation Act, 2002 – section3,4,5,9[2]Reservation Act, 2018-section 3,4[3]  
Date of Judgment10-05-2019

FACTS:

The Karnataka State government through an order of 27 April, 1978 sought to introduce reservation policy in promotion. The policy of reservation aimed to provide Scheduled Castes (SCs) to the extent of 15% and Scheduled Tribes (STs) to the extent of 3%.This included the provision reservation in the lowest Group- A posts even in cadres where there existed no direct recruitment or where direct recruitment is limited to 66%. Subsequently, The Act brought by the state of Karnataka through Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the posts in the civil services of the state) Act, 2002 prescribed consequential seniority to the employees to the state government, belonging to SCs and STs , who had been promoted as per the reservation policy. The court invalidated the said act due to absence of relevant data collection, which is capable of being quantified on the parameters of- representation inadequacy, backwardness of the communities and overall deficiency. Further, the reservation Act, 2018 which followed the 2002 Act, forms the subject matter of this case. This legislation was enacted after the invalidation of the 2002 Act.The Act of 2018 has been challenged by the petitioners/ appellants on the grounds that it re-iterates the provisions of 2002 Act which were held to be unconstitutional by the Apex court,

ISSUES RAISED

Whether the exercise of collection of data and enactment of a fresh law arising out of such data render the cure the 2002 Act, invalidated by the court in B.K Pavitra v. Union of India or the B.K Pavitra-I case.

Whether legislation brought by the government through The Reservation Act, 2018  overruled the B.K Pavitra –I Judgment (2017).

CONTENTIONS

ARGUMENTS FROM APPELLANT

Counsels raising arguments on behalf of appellant by senior counsels:

Dr. Rajeev Dhavan

Mr.Shekhar Naphade

  • Dr. Rajeev has asserted that the enactment has been brought in a hurry and with the only intent to surpass the judgment of the court in B.K Pavitra- I and the substantive matter of the enactment is still the same as the 2002 Act .
  • The provisions of the 2002 Act namely-Sections 3 and 4 which were held ultra-vires by the court had not been modified in this enactment of 2018.
  • The counsel insists that the Ratna Prabha is flawed on the grounds that it is not in consonance postulates laid down in the decision of the court in  Jarnail Singh v. Lacchmi Narain Gupta &Ors.[4] And M.Nagraj v. Union Of India.[5] The report was non-inclusive of the data from Public Sector Undertakings(PSUs) , corporations and other local institutions/organizations.
  •  The data collected by the report is grades based, while the precedent laid down in Jarnail Singh requires it be to cadre based. The cadres have been erroneously assumed to be grades A,B,C,D by the report.
  •  Further, in reserving the bill and the referring the bill to the president, the governor did not specify the specificity of the matter and that the reference was unconstitutional on the ground that governor’s assent was not obtained. 
  • Section 5 of this Act mandates reservation and impliedly, although not expressly reinforces the 1957 Seniority rules. The 1957 rules are deemed to surpass the Government order of 1978. Thus section 5 is capable of being struck down, owing to it’s excessiveness.
  • Similarly, Section 9 of the Act, indemnifies the act from past precedents and future attempts to challenge.
  • Further it was also contended that the retrospective application as prescribed by this Act makes this legislation over-arching and arbitrary.

ARGUMENTS FROM RESPONDENT & INTERVENORS

The contentions on behalf of the respondents were raised by,senior advocate Mr. Basava Prabhu S patil.

  • The counsel contended that the disputed 2018 Act does not surpass the ruling of the court in B.K Pavitra- I. And that the law has been introduced to bestow consequential seniority to candidates from reserved category which is supplemented by the furnishing of compelling reasons (as laid down in Nagraj Case). The data collected, capable of being classified under the heads of (i) Backwardness (ii) Representation inadequacy and (iii) Overall deficiency. This results in the removal of the irregularities of the 2002 Act and hence in compliance with the decision of the court in B.K Pavitra-I judgment.
  • Further the power conferred on the state by virtue of Article 16 (4A) empowers the state to introduce law and the law enacted by this means cannot be considered invalid merely due to its retrospective effect.
  • In defense of the Ratna Prabha Committee report, the counsel asserted the consideration of all relevant aspects entailed to show that administration efficiency is not compromised due to reservations in promotions. The promotions are also subject to merit and candidates meeting the criteria of meritoriousness and seniority are promoted.
  • The classification and exception of creamy layer was only applicable at the entry level and or while appointment and not in the scope of promotion. Since, consequential seniority is a consequence of promotion and not a conferred privilege/benefit, therefore, it is inapplicable at the stage of promotion.
  • In regard to the assent of the governor following the assent of the president, it was urged that the textual language of Article 200 and Article 201 do not suggest the presentation of the bill before the governor if the bill has already gained assent of the president.[6]

The contentions on behalf of the intervenors were raised by senior counsels Ms.Indira Jaisingh, Mr.Dinesh Dwivedi.

  • The counsel referred to the case of State of Kerala v. N M Thomas[7] and Nagraj where the court held that the affirmative action principle entails proportional equality as a means of substantive equality, which is reflected in the action of the government in reservation for SCs,STs and other backward cases.
  • Article 15 and Article 16(4) mandate the proportional representation of all the existing sections of the society in the state services.
  • Since the state has been successful in collecting data groupwise which equates to collection of data from cadres, therefore it cannot be held that the state has not collected relevant data. The absence of consequential seniority will never aid in achieving the prescribed percentage.

RATIOANALE & JUDGMENT

  • Does the Act of 2018 override the judgment of the court in the B.K Pavitra –I case?

The court held that the government has carried out the actions of collection and analysis of the data as prescribed by the judgment of Nagraj. And thus The Reservation Act, 2018 serves as a means to cure the defects found in the Act of 2002 and thus, the Act,2018 , is in consonance with the judgment of B.K Pavitra- I. Through reference to State of T.N V. Arooran Sugars[8] ,the court has considered that the Reservation Act, 2018 is a curative legislation and such is permissible as per the constitution. And thus, this enactment has not overridden the judgment of B.K Pavitra, rather has sought to cure the defects observed in the 2002 Act. Therefore, the court assessed that the Act of 2018, does not result in the transgression of judicial powers by the state legislature.

  • Is the defect, from B.K Pavitra- I rectified through the enactment of this Act?

The court clarified that in order to abide by the directions provided by the court in B.K Pavitra-I case, the government of karnataka entrusted the task upon the Additional Chief Secretary to Government, for collection of relevant, quantifiable data on the inadequacy, backwardness and consequent effects of providing reservation in promotion. The report adequately highlights the backwardness and inadequacy of representation of the SCs and STs in state civil services.

  • The court as of the observation that the procedures adopted in the process of reservation of the bill for president’s assent  and the enactment of the bill after having gained assent, was in compliance with the rules and procedures laid down in the constitution.
  • Referring to the judgment of Indra sawhney v. Union of India[9], court has asserted on the power of the state to bring/carry out affirmative action for state which are backward or lack representation. However such recognition is subjective to the opinion of the state either on its own or on the basis of data collected through some committees or commission. In such matters, the court must present thoughtfulness to the findings of the state. The provisions introduced by the state must abide to the principles prescribed though the judgment of Indra Sawhney case – (a) The conditions prevailing must be within the knowledge and awareness of the executive and (b) The assessment as to adequacy or inadequacy of representation of is subject to the satisfaction of the government and the state.
  • The court has affirmed that the findings of the state or the empirical data which is the basis of the satisfaction of the state is derived from the findings of the Ratna Prabha Committee. And the methodology relied upon by the committee was similar to the methodologies used in conventional social science and recourse adoption.[10]

DEFECTS OF LAW

The provisions of the constitution Article 15 and Article 16 empower the state to provide reservation to classes which as per the opinion of the state, are backward and/or lack adequate representation. However, as per the principles of the Nagraj Judgment, before bringing such provisions for reservation, the state has to furnish ‘compelling’ reasons as to (i) Backwardness (ii) Lack of adequate representation (iii) deterring effect of such reservation on the efficiency of administration, to assert its claim. The government could not present such ‘compelling reasons’ through relevant, quantifiable data, during the enactment of the Act of 2002. However, the Ratna Prabha Committee formed prior to the Act of 2018, brought out relevant data from around 31 departments of the state government , through which the government succeeded in presenting ‘compelling reasons’ to provide reservation in promotion.[11]

INFERENCE

The provisions for reservation in promotion have been constantly subjected to debates and contending opinions. The first instance when the decision of the government to provide reservation in promotion was challenged in the Indra Swahney case, where the court held that reservations were only permissible at entry level. However at later stages, though the 77th amendment, 1995 , the Indra Sawhney judgment had need nullified and reservations were held permissible even at the level of promotions. The Act of 2002 was held unconstitutional , after the 2006 Nagraj Judgment which mandated the fulfillment of three requirements , following which the state could enact reservations in promotion. The 2002 act lacked this fulfillment and was thus held unconstitutional. However, the enactment brought in 2018 has been found to abide by all the earlier precedents and provisions of the constitution, curing the latent defects of the 2002 Act. Therefore, the appeals to challenge this act have been dismissed by the Supreme Court of India.

Written By: INSHA PANI

University: NATIONAL LAW UNIVERSITY ODISHA

[1] L. I. Network, B.K. Pavitra Vs Union of India, Law Insider India (Sep. 27, 2021), https://www.lawinsider.in/judgment/b-k-pavitra-vs-union-of-india (last visited Nov 18, 2023).

[2] Id.

[3] ImportantOUqbX.pdf, https://documents.doptcirculars.nic.in/D2/D02adm/ImportantOUqbX.pdf (last visited Nov 18, 2023).

[4] Case study: Jarnail Singh v. Lachhmi Narain Gupta & Ors., Legal Wires, https://legal-wires.com/case-study/case-study-jarnail-singh-v-lachhmi-narain-gupta-ors/ (last visited Nov 17, 2023).

[5] Breaking| M. Nagaraj judgment on “Reservations in Promotions” does not require reconsideration: SC | SCC Blog, https://www.scconline.com/blog/post/2018/09/26/breaking-m-nagaraj-judgment-on-reservations-in-promotions-does-not-require-reconsideration-sc/ (last visited Nov 17, 2023).

[6] B.K. PAVITRA Vs. UNION OF INDIA on 10 May, 2019 – Legitquest, https://www.legitquest.com, https://www.legitquest.com/bk-pavitra-vs-union-of-india (last visited Nov 18, 2023).

[7] Admin, Critical Analysis of Case NM Thomas v State of Kerala 1976 SCR (1) 906, (2022), https://legalstudymaterial.com/nm-thomas-v-state-of-kerala/ (last visited Nov 18, 2023).

[8] The State of Tamil Nadu Vs M/s. Arooran Sugars Ltd. – Legal Authority, https://www.legalauthority.in/judgement/the-state-of-tamil-nadu-vs-m-s-arooran-sugars-ltd-25290 (last visited Nov 18, 2023).

[9] Reservations: Case Study of Indra Sawhney v. Union of India by Sayontika Das :: SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1813043 (last visited Nov 18, 2023).

[10] B.K. PAVITRA Vs. UNION OF INDIA on 10 May, 2019 – Legitquest, supra note 6.

[11] Reservation in Promotion: Court in Review, Supreme Court Observer, https://www.scobserver.in/journal/reservation-in-promotion-court-in-review/ (last visited Nov 18, 2023).