B.K. Pavithra vs Union Of India on 19 March, 2020


Supreme Court of India

B.K. Pavithra vs Union Of India on 19 March, 2020

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, Hemant Gupta

                                                                           REPORTABLE



                            IN THE SUPREME COURT OF INDIA
                              CIVIL ORIGINAL JURISDICTION

                                    M.A. No. 1323 of 2019


                                             In


                              Writ Petition (C) No. 764 of 2018



          B K Pavithra and Ors.                             ...Petitioners/Applicants


                                          Versus


          Union of India and Ors.                            ...Respondents

With
MA No.1325 of 2019
In
Writ Petition (C) No. 850 of 2018

And with
MA No.1324 of 2019
In
Writ Petition (C) No. 769 of 2018

Signature Not Verified

Digitally signed by
CHETAN KUMAR
Date: 2020.03.19
12:30:15 IST
Reason:

1
JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1. On 10 May 2019, this Court delivered its judgment in B K Pavitra & Ors. v

Union of India & Ors.1 (“B K Pavitra II”), upholding the constitutional validity of

the Karnataka Extension of Consequential Seniority to Government Servants

Promoted on the Basis of Reservations (to the Posts in the Civil Services of the

State) Act 20182. The conclusion which was arrived at by the Court is extracted

below:

“144. For the above reasons, we have come to the conclusion
that the challenge to the constitutional validity of the
Reservation Act 2018 is lacking in substance. Following the
decision in B K Pavitra I, the State government duly carried
out the exercise of collating and analysing data on the
compelling factors adverted to by the Constitution Bench in
Nagaraj. The Reservation Act 2018 has cured the deficiency
which was noticed by B K Pavitra I in respect of the
Reservation Act 2002. The Reservation Act 2018 does not
amount to a usurpation of judicial power by the state
legislature. It is Nagaraj and Jarnail compliant. The
Reservation Act
2018 is a valid exercise of the enabling
power conferred by Article 16 (4A) of the Constitution.”

2. 277 applicants are before this Court in three Miscellaneous Applications 3.

The reliefs sought in the lead MA are thus:

“(a) Direct the State of Karnataka to implement ‘post based
reservation’ in terms of the judgment passed by this Hon’ble
Court in R.K. Sabharwal vs State of Punjab – (1995) 2 SCC

1 (2019) 16 SCC 129
2 “Reservation Act 2018”
3 “MAs”

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745 and to re-work all promotions on ‘post’ basis before any
further action.

(b) Direct the State of Karnataka to apply ‘creamy layer’ and
to exclude individuals belonging to the Scheduled Castes and
Scheduled Tribes who no longer require reservation under
Article 16(4-A) of the Constitution with a further direction to
the State to apply creamy layer at entry level to disqualify
those who were creamy layer at that stage and to conduct the
exercise from 17th June, 1995, i.e. the date of the Seventy
Seventh Amendment.

(c) Restrain the State and its instrumentalities from taking any
action where, no exercise is undertaken for that service or
cadre on adequacy or where there is adequacy of
representation particular when every specific application of
order in relation to each cadre must be Nagaraj compliant.”

Similar reliefs have been sought by the applicants in the other two MAs.

3. Dr Rajeev Dhavan, learned Senior Counsel prefaced his arguments by

submitting that:

(i) The present MA is for directions and not for review of the recent

judgment of this Court in B K Pavitra II; and

(ii) The directions which have been sought emanate from the judgment of

this Court in B K Pavitra II.

4. The Government of Karnataka issued a Government Order 4 on 15 May

20195. The preamble to the GO notes that on 27 February 2019, instructions

have been issued for implementing the Reservation Act 2018 subject to the

judgment that would be delivered by this Court on the validity of the Reservation

Act 2018. Subsequently, in pursuance of an interim order of this Court dated 1

March 2019,6 instructions were issued in a GO dated 5 March 2019 to the effect
4 “GO”
5 Government Order No. DPAR 186 SRS 2018, Bengaluru.
6 In IA 36981 of 2019 in Writ Petition (C) No. 764 of 2019

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that no further action should be taken for implementing the GO dated 27

February 2019 until further directions. Following the judgment of this Court in B K

Pavitra II upholding the Reservation Act 2018, the Government of Karnataka, by

the GO dated 15 May 2019 withdrew the earlier GO dated 5 March 2019 and

directed all appointing authorities to abide by the GO dated 27 February 2019 in

the implementation of the Reservation Act 2018.

5. On 24 June 2019, a circular was issued by the Government of Karnataka 7.

The circular notes that while preparing the seniority lists in conformity with the

GO dated 27 February 2019, meetings were held under the auspices of the Chief

Secretary and Additional Chief Secretary to the Government of Karnataka,

following which a list of Frequently Asked Questions 8 has been prepared together

with answers. The annexure to the circular contains a reference to the FAQs and

the answers provided by the Government.

6. Dr Rajeev Dhavan, learned Senior Counsel has more specifically adverted

to items 2 and 3 of the FAQs in the annexure which are extracted below:

“2. Whether to consider the scheduled caste and
scheduled tribe candidate for promotions for the purpose
of calculating their representation for such of the
candidates who are selected in general merit rather than
against the roaster points under direct recruitment.

Answer: Even though the scheduled caste and scheduled
tribe candidates are selected under general merit rather than
against roaster points under direct recruitment, they shall be
considered against their roaster points for the purpose of
calculating their representation. This has been clearly told in
the Government Order No. DPAR 29 SBC 77 dated
01.06.1978 and the same point is explained in the form of an
example in the Schedule of the Act 2017.

7 No : DPAR 186 SRS 2018
8 “FAQs”

4

3. Whether to consider the total no. of post in the
respective cadres while revising the seniority list from
27.04.1978? or to consider the number of Government
employees working in the respective cadre (Excluding
the vacant post of the cadre strength)

Answer: The consequential seniority is to be given to those
belonging to the reserved category employees who have
been promoted against promotional roaster points at the time
of revising the seniority list from 27.04.1978 to 02.02.1999.

3.1 After the date 3.2.1999, only it is to be revised by
considering on the basis of total number of Government
employees in the respective cadres (Cadre working strength
excluding vacant posts). Thus it is not allowed to calculate the
representation on the basis of total number of posts in the
respective cadres. In this regard attention is drawn towards
Government order number DPAR 21 SBC 97 dated
03.02.1999 and Government order even number dated
13.04.1999.”

7. The grievance of the applicants is that until the backlog is cleared, the

proportion of Scheduled Castes/Scheduled Tribes will exceed 15 per cent and 3

per cent. The principal points which have been urged in the present MAs are:

(i) The State government has not taken any step to correct the illegality of

following a vacancy-based roaster since 27 April 1978, when the policy

of reservation in promotions was introduced in the State Civil Services

of Karnataka;

(ii) The State government was bound by the statement contained in its

Counter Affidavit filed before this Court in B K Pavitra II that the

reservation policy would be implemented on the principle of post-based

reservations;

(iii) Since reservations in the state are contemplated retrospectively from

27 April 1978, the State government is obliged to apply the ‘creamy

layer’ principle to disqualify those who fall within the creamy layer at the

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entry level and this exercise should be conducted at least from 17 June

1995, when the Seventy Seventh Amendment to the Constitution came

into force; and

(iv) Though it was mandatory for the State of Karnataka to balance Article

16(4-A) against Article 16(1) of the Constitution and to collect cadre-

wise data before implementing the Reservation Act 2018, the GO dated

15 May 2019 and the circular dated 24 June 2019 are silent on the

above issues as a result of which, the State government is

implementing the Reservation Act 2018 in an arbitrary manner.

8. Dr Dhavan relied on the inherent powers of this Court, as recognised by

Order LV of the Supreme Court Rules 2013 9 to urge that the invocation of the

jurisdiction of this Court in the form of the present MAs is based on the recourse

to that inherent power. Reliance in this regard was placed on the decisions of this

Court in Himachal Pradesh Scheduled Tribes Employees Federation v

Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh 10 and

Abu Salem Abdul Qayyum Ansari v Central Bureau of Investigation11.

9. Mr Shekhar Naphade, learned Senior Counsel appearing on behalf of the

applicant in MA 1324 of 2019 12, submitted that no data had been collected for the

departments in which the applicants have been engaged as required by the

judgment of this Court in Nagaraj v Union of India13.

9 “2013 Rules”
10 (2013) 10 SCC 308
11 (2013) 12 SCC 1
12 KPTCL General Category Association (Regd.)
13 (2006) 8 SCC 212

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10. Mr Basava Prabhu S Patil, learned Senior Counsel and Mr Dinesh

Dwivedi, learned Senior Counsel have opposed the MAs and urged that:

(i) The prayers in the MAs are not adjunct to the main decision of this

Court in B K Pavitra II; and

(ii) The applicants have sought to challenge the subsequent directions and

clarifications issued by the State government through the present MAs.

The MAs, it was urged, are not maintainable.

11. Ms Indira Jaising, learned Senior Counsel submitted that:

(i) No provision of law has been invoked while filing the present MAs;

(ii) This Court, upon delivering its decision on 10 May 2019, has been

rendered functus officio;

(iii) There is a bar contained in Order XII Rule 3 of the 2013 Rules for

entertaining such an application, except for correcting arithmetical

errors; and

(iv) A petition for review has been filed by the applicants and hence the

MAs are not maintainable.

12. Addressing the Court on the reliefs which have been sought in the MAs,

Ms Jaising submitted that:

(i) The relief which has been sought in prayer (a) is founded on a fresh

cause of action for re-drafting the seniority list;

(ii) The nature of the reliefs sought require the filing of a fresh substantive

Writ Petition;

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(iii) The relief in prayer (b) was not an issue in the judgment of this Court in

B K Pavitra II since the Court did not deal with recruitment at the entry

level, but with promotions and consequential seniority thereto; and

(iv) Prayer (c) has been specifically dealt with and considered in paragraph

96 of the judgment of this Court in B K Pavitra II.

13. In rejoinder, Dr Dhavan submitted that:

(i) The concern is that the parties should not be required to go through

endless stages of litigation; and

(ii) The judgment delivered by this Court on 10 May 2019 requires

directions and even the State government has thought it fit so as to

implement the Reservation Act 2018.

14. The rival submissions fall for consideration.

15. It is necessary for this Court to address at the outset the preliminary

objection raised by the learned counsel opposing the MAs that, though styled as

an application for directions, they seek to lay a substantive challenge to the

subsequent directions and clarifications issued by the State government in

implementing the Reservation Act 2018.

16. Order XII Rule 3 of the Supreme Court Rules provides that:

“3. Subject to the provisions contained in Order XLVII of these
rules, a judgment pronounced by the Court or by a majority
of the Court or by a dissenting Judge in open Court shall not
afterwards be altered or added to, save for the purpose of
correcting a clerical or arithmetical mistake or an error arising
from any accidental slip or omission.”

8
Rule 3 stipulates that, save for the purpose of correcting a clerical or arithmetical

mistake or any error arising from an accidental slip or omission, no alteration or

addition may be made to a judgment pronounced by the Court. This is in keeping

with the principle of according finality to a judgment of the Court. The rule is

made subject to Order XLVII of the 2013 Rules which contains provisions for the

filing of a review before this Court. The parameters that guide the exercise of the

review jurisdiction of this Court are contained in Order XLVII. Subject to the

review jurisdiction of this Court, Rule 3 mandates that the Court “shall not” alter or

delete any part of a judgment that has been pronounced, save for the purposes

of minor corrections or accidental mistakes.

17. Order LV of the 2013 Rules titled ‘Power to Dispense and Inherent Powers’

contains provisions that empower this Court to adopt, notwithstanding anything

contained in the Rules, such course as it considers just and expedient. Order LV,

in so far as is relevant provides thus:

“1. The Court may, for sufficient cause shown, excuse the
parties from compliance with any of the requirements of these
rules, and may give such directions in matters of practice and
procedure as it may consider just and expedient.

6. Nothing in these rules shall be deemed to limit or otherwise
affect the inherent powers of the Court to make such orders
as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.”

Order LV empowers this Court to, for sufficient cause, excuse parties from

compliance with any of the requirements of the 2013 Rules and issue such

directions as it considers just and expedient. Rule 6 of Order LV clarifies that

nothing in the rules shall be deemed to limit or otherwise affect the inherent

powers of the Court to make such orders as may be necessary for the ends of

9
justice or to prevent the abuse of the process of the Court. Rule 6 of Order LV

mirrors the constitutional power conferred by Article 142 of the Constitution which

empowers this Court to pass such decree or make such order as is necessary for

doing complete justice.

18. Dr Rajeev Dhavan, learned Senior Counsel has urged that this Court may

issue the directions sought in exercise of its inherent power. In effect, Order LV of

the 2013 Rules has been pressed in aid of the submission that this Court may

grant the reliefs sought in exercise of its inherent power to do complete justice.

19. This Court has, on several previous occasions, considered whether the

filing of applications, though styled as applications for directions/

modification/recall/correction are, in substance, of a different nature and

consequentially not maintainable. In Delhi Administration v Gurdip Singh

Uban14 (“Gurdip Singh”), this Court disapproved of the practice of filing

applications for “clarifications”, “modifications” and “recall” of final judgments and

orders, noting that this was an attempt to bypass the provisions for review

contained in Order XL of the Supreme Court Rules 1966. The Court observed:

“17. We next come to applications described as applications
for “clarification”, “modification” or “recall” of judgments or
orders finally passed. We may point out that under the
relevant Rule XL of the Supreme Court Rules, 1966 a review
application has first to go before the learned Judges in
circulation and it will be for the Court to consider whether the
application is to be rejected without giving an oral hearing or
whether notice is to be issued.


In case notice is issued, the review petition will be listed for
hearing, after notice is served. This procedure is meant to
save the time of the Court and to preclude frivolous review
petitions being filed and heard in open court. However, with a

14 (2000) 7 SCC 296

10
view to avoid this procedure of “no hearing”, we find that
sometimes applications are filed for “clarification”,
“modification” or “recall” etc. not because any such
clarification, modification is indeed necessary but
because the applicant in reality wants a review and also
wants a hearing, thus avoiding listing of the same in
chambers by way of circulation. Such applications, if
they are in substance review applications, deserve to be
rejected straight away inasmuch as the attempt is obviously
to bypass Order XL Rule 3 relating to circulation of the
application in chambers for consideration without oral
hearing…

By describing an application as one for “clarification” or
“modification”, — though it is really one of review — a
party cannot be permitted to circumvent or bypass the
circulation procedure and indirectly obtain a hearing in
the open court. What cannot be done directly cannot be
permitted to be done indirectly.

(Emphasis supplied)

The Court observed that many applications, though styled as applications for

clarification or modification are, in substance, applications for review. This

practice was presumably adopted to bypass the procedure stipulated for the

consideration by this Court of review petitions. A party, it was held, would not be

permitted to circumvent substantive procedures by filing such applications. With

the above observations, the Court affirmed a fundamental principle of

jurisprudence that “what cannot be done directly cannot be permitted to be done

indirectly.”

20. The view of the two judge Bench in Gurdip Singh has been reiterated by

this Court in Zahira Habibullah Sheikh v State of Gujarat15, Common Cause v

Union of India16, Ram Chandra Singh v Savitri Devi17 and APSRTC v Abdul

Karim18.

15 (2004) 5 SCC 353
16 (2004) 5 SCC 222
17 (2004) 12 SCC 713
18 (2007) 3 SCJ 168

11

21. Recently, in M C Mehta v Union of India19, a two judge Bench of this

Court rejected an application filed before it seeking a clarification that the

applicant is permitted to carry out construction on the land in question in the

following terms:

“…the view expressed by this Court in Gurdip Singh Uban
cannot be limited only to applications for modification,
clarification or recall. There is a growing tendency to provide
different nomenclatures to applications to side-step the
rigours and limitations imposed on an applicant and the Court
in dealing with a review petition. Applications can be and are
titled as applications for directions, rehearing,
reconsideration, revisiting etc. etc. One has only to open a
thesaurus and find an equivalent word and give an application
an appropriate nomenclature so that it could be taken up for
consideration in open Court and on its merits and not as a
review petition by circulation. In our opinion, the
nomenclature given to an application is of absolutely no
consequence-what is of importance is the substance of
the application and if it is found, in substance, to be an
application for review, it should be dealt with by the Court as
such, and by circulation.

(Emphasis Supplied)

22. The Court noted the growing practice, despite the decision of this Court in

Gurdip Singh, of filing applications before this Court with different nomenclatures

in order to bypass or circumvent the procedure envisaged for the consideration of

the reliefs sought. This Court clarified that the nomenclature of an application is

of no consequence and courts must assess the contents and reliefs sought in the

application to determine what is the true nature of the application.

23. Though the cases adverted to above were rendered in the context of

applications before this Court which were held to be, in substance, applications

19 (2019) 2 SCJ 640

12
for the review of a judgment, the principle of law that emerges is that courts may

scrutinise applications to assess whether they, in substance, seek a relief that

may not be granted in those applications. Where the court is of the opinion that

the nature of the application differs from its nomenclature and there is a method

prescribed in law for the grant of the reliefs sought, it may hold that the

application before it is not maintainable.

24. In the present case, the basis of the MAs is founded in the steps taken by

the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II.

The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June

2019, both of which were issued subsequent to the decision of this Court.

25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27

February 2019 which stipulated instructions for the implementation of the

Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as

upheld by this Court, was to be operationalised in terms of the instructions

contained in the GO dated 27 February 2019. By the circular dated 24 June

2019, a list of FAQs and their answers were annexed to the Schedule which

concerned the preparation of the seniority list in accordance with the GO dated

27 February 2019.

26. The judgment of this Court in B K Pavitra II concerned the constitutional

validity of the Reservation Act 2018 and not actions taken thereunder or in

pursuance of its implementation. The present MAs, though styled as applications

for directions, seek to lay challenge to the actions of the State government to

13
carry into effect the provisions of the Reservation Act 2018. This is clear from the

nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May

2019 and the circular dated 24 June 2019, both of which are subsequent to the

judgment of this Court in B K Pavitra II.

27. The remedy, styled as directions, sought by the applicants cannot lie in the

form of MAs. Prayer (a) which seeks a direction to “re-work” all promotions on the

basis of ‘post based reservations’ impugns item 3 of the FAQs annexed to the

circular dated 24 June 2019 which states that the list is to be revised on the basis

of the total number of government employees in the respective cadre. Prayer (b)

seeks the issuance of a direction to the State of Karnataka to apply the creamy

layer principle at the entry level. As it has been noted above, the judgment of this

Court in B K Pavitra II concerned the grant of consequential seniority and not the

applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance

of a direction to the State Government to ensure, in the implementation of the

Reservation Act 2018, compliance with the decision in Nagaraj.

28. The present MAs are, in effect, a substantive challenge to the actions of

the State government in implementing the Reservation Act 2018 through the GO

dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are

aggrieved by the steps which have been taken by the State government, it is

open to them to pursue a substantive remedy for challenging the steps taken by

the State government in independent proceedings.

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29. We are clearly of the view that MAs of this nature are not maintainable.

Having come to this conclusion, no need arises for this Court to adjudicate upon

the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel

appearing for the applicants.

30. We consequently dismiss the Miscellaneous Applications, but leave it open

to the applicants to pursue such independent remedies as may be available in

the law. We clarify that no observations have been made on the merits of the

matter.

Pending application(s), if any, shall stand disposed of.

…..…..…….………..……………….………..J.

[Uday Umesh Lalit)

…..…..…….………..……………….………..J.

[Dr Dhananjaya Y Chandrachud]

New Delhi;

March 19, 2020.

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