1. These petitions have been remitted to this Court by the Hon'ble Supreme Court as per the order dated 19.10.2006 passed in Writ Petition (civil) No. 61/2002 (M. NAGARAJ v. UNION OF INDIA) and connected cases with the following directions:

“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 creamy layer or extend the reservation indefinitely.

124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty - Second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.

125. We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate Bench in accordance with law laid down by us in the present case.”

2. The said civil petitions have been numbered as writ petition No. 14655/2010 and connected petitions before this Court after the matter was remitted by the Hon'ble Supreme Court. Since all these petitions are connected and involve common questions of law and fact, they are disposed of by this common order.

3. The essential facts of the case leading up to these writ petitions with reference to the civil petition filed before the Hon'ble Supreme Court are as follows:—

3.1 The facts would be referred to with reference to the facts in W.P. (Civil) No. 61/2002 now numbered as W.P. No. 14655/2010. The petitioners in these writ petitions filed Writ petition (civil) No. 61/2002 and connected cases on the file of the Hon'ble Supreme Court of India seeking for the following reliefs:

“In the circumstances, it is prayed that this Hon'ble court may be pleased to:—

a) a writ, order or direction in the nature of certiorari quashing the constitutional (eighty fifth) Amendment Act, 2002 introducing amendment to Article 16(4A) whereby the words “in the matter of promotions” are substituted by words “in the matter of promotion, with consequential seniority, to any class”;

b) a writ or order or direction in the nature of madamus to direct the respondents to act in accordance with the law laid down by this Hon'ble Court in Ajith Singh-II and M.G. Baddappanavar's case and to desist from giving effect to the amendment.

c) Pass such order or orders as this Hon'ble Court may deem fit in the facts and circumstances of the case.

d) A writ, direction or order in the nature of certiorari quashing the Karnataka Act 10 of 2002 introduced in pursuance of Constitution (85th) Amendment Act, 2002.

e) Issue writ, a direction or order of certiorari quashing of any notification issued or action taken in pursuance of the the said Karnataka Act No. 10 of 2002.”

4. The prayers which are required to be considered by this Court having regard to the direction issued by the Hon'ble Supreme Court were based upon the following averments made in the writ petition.

4.1.1 It is averred that the decision of the Hon'ble Supreme Court in M.G. BADAPPANAVAR v. STATE OF KARNATAKA ((2001) 2 SCC 666) on 01.12.2000 and held that the decision in AJIT SINGH v. STATE OF PUNJAB (AIR 1999 SC 3471 [LQ/SC/1999/880] ) and the decision in R.K. SABHARWAL v. STATE OF PUNJAB ((1995) 2 SCC 745) [LQ/SC/1995/223] are binding and issued directions to be complied with expeditiously stage by stage within six months. Since the directions in the M.G. Baddappanavar's case were not complied with by the State of Karnataka (hereinafter called ‘the State’), the contempt petition was filed by the General Merit candidates on 09.07.2001 and in pursuance of the said directions issued in the said contempt petition, the petitioners were promoted in August/September 2001.

5. The Government has reviewed the position in the light of the views received from various quarters and in order to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes, official memorandum dated 30.01.1997 was withdrawn and in order to meet the purpose and review or revision of seniority of the Government servants and grant of consequential benefits to such Government servants, the amendment to Article 16(4-A) of the Constitution was felt necessary. It is further averred that the position of Reservation in Karnataka is as follows:—

“3. Position of reservation in State of Karnataka

The State of Karnataka has about 10,000 Engineers Working in the Public Works Department, Irrigation and Rural development an Panchayat Raj Department of the State. The Karnataka Engineering Service has two branches i.e graduate Engineers and non graduate engineers. The cadre of the graduate engineers are:

a) Assistant engineer, - (Entry Level Post)

b) Assistant Executive Engineer Dn-I

c) Executive Engineer

d) Superintendent Engineer,

e) Chief Engineer

f) Engineer-in-Chief

C1 (b) to (f) are promotional posts

The cadre of non graduate engineers are as follows:—

a) Junior engineer, (Entry Level Post)

b) Junior Engineer Special Grade

c) Assistant Executive engineer - Div-II

C1 (b) and (c) are promotional level posts. The petitioners are the graduate Engineers belonging to different cadres of aforesaid Department, whose seniority have been revised in all the cadres during August/September, 2001 and promoted in pursuance of the directions of this Hon'ble Court in the case of Baddappanavar and would be adversely affected in case the said amendment is given affect to retrospectively.

4. The respondent No. 1 is the Union of India, respondent Nos. 2 and 3 are the State of Karnataka. The respondents are State within the meaning of Article 12 of the Constitution of India and are amenable to the writ jurisdiction of this Hon'ble Court.

5. In the state of Karnataka, the policy of reservation in pro-notion was introduced in the State Civil Service of Karnataka by the Government order bearing No. DPAR : 29 : SBC : 77 dated 27.04.1978. A copy of the same is annexed hereto as Annexure P-3 The salient features of this policy is:

a) Reservation in promotion is available only to the Scheduled Castes and the Scheduled Tribes at 15% and 3% respectively.

b) It is available upto and inclusive of the lowest Group-A post in the department.

c) It is available to the cadres in which there is no element of direct recruitment, and if there is an element of direct recruitment, such element does not exceed 66.⅔%.

d) The reservation in promotion is applicable to each cadre of posts under each appointing authority as indicated above. A roster of 33 points is given for this purpose.

e) On any occasion of promotion, qualified and suitable persons belonging to Scheduled Castes and the Scheduled Tribes are not available such vacancies shall be filled up by promotion by qualified and suitable persons in accordance with rules of recruitment.”

5.1.1 It is averred that earlier to 01.04.1992, there was no carry forward system of the vacancies lost to the Scheduled Castes and the Scheduled Tribes. With the amendment of General Recruitment Rules on 01.04.1992, the carry forward of the vacancies lost to the Scheduled Castes and the Scheduled Tribes and the concept of back log was introduced. It is further averred that in the stream of graduate Engineers, the reservation in promotion was available up to and inclusive of third level i.e., Executive Engineer up to 1999 and as on the date of the petition, it was available up to second level i.e., Assistant Executive Engineer. In the stream of Diploma Engineers, it was available up to and inclusive of the third level i.e., Assistant Executive Engineer - Division II. Prior to the judgement in Baddappanaavar's case, the factual position was that the Assistant Engineers of SC/st category recruited in the year 1987 were promoted to the cadre of Assistant Executive Engineer, whereas Assistant Engineers belonging to General Merit recruited in 1976 were being considered for promotion. The representation of SC/st group was as under:—

6. It is further averred that the SC/st candidates get promotion at an early age and has longer period to go. In view of the reservation in promotion with consequential seniority, the percentage of SC/st candidates was much higher than the permitted percentage and all top positions were going to be filled by the SC/st candidates without general merit candidates getting to higher positions. In M.G. Baddappanavar's case, the Hon'ble Supreme Court on 01.12.2000 applied the principles laid down by it in Ajit Singh-I, Ajit Singh-II and Sabberwal's case and issued direction to the State to redo the seniority in accordance with the said judgement and promote and demote in accordance with the said principles. The Government did not take any action to implement the said judgement and in pursuance of the contempt petition filed by some of the general merit candidates for non-implementation of the said judgement, the Government revised the seniority of the Engineers belonging to General Merit candidates and promotions have been issued accordingly during August-September 2001. As on the date of the petition, the contempt petition Nos. 200-201/2001 were pending for non-implementation of the judgement. The notifications issued by the Government providing promotion to the petitioners in pursuance of the judgement in Baddappanavar's case have been produced as per Annexure ‘P4’ to the petitions.

6.1.1 It is further averred that if accelerated seniority was given to the roster point promotee, the consequences would be disastrous. A roster point promotee in the graduate stream would reach the third level by the time he attains the age of 45 years. Thereafter, he would reach the fourth level in another three years and fifth level in another two years and sixth level in yet another two years. Then at the age of 49 years, he would be at the top to stay there for about 9 years. On the other hand, the general merit promotee would reach the third level at the age of 56 years and by the time, he gets eligibility to fourth level, he would have retired from the service. A chart demonstrating the said position has been produced as per Annexure ‘P5’ to the petitions. It is further averred that the said accelerated seniority given to the roster point promotee would result in hostile reverse discrimination in the percentage of representation of the reserved category officers in the higher cadres and the same would range anywhere between 36% and 100%. The chart showing the said discrimination has been produced as Annexure ‘P6’ to the petitions. It is further averred that the Government of Karnataka had issued Karnataka Determination of Seniority of Government Servants promoted on the basis of reservation (to the post in the Civil Services of the State) Act, 2002 and it received the assent of the Governor on 12.08.2002. It is further averred that the Article 16(4A) of the Constitution is an enabling provision and the present Karnataka Act No. 10 of 2002 enacted with retrospectivity on the basis of the said enabling provision, is beyond the scope of the Constitutional Amendment. Such an enabling provision does not empower the Government to give effect retrospectively. In case the reservation is permitted as per the said Karnataka Act, all top positions would be filled up by the reserved candidates for the next couple of decades and the General Merit candidates may even retire without a single promotion. The principles laid down by the Hon'ble Supreme Court in; VIRPAL CHAUHAN's case ((1995) 6 SCC 684) [LQ/SC/1995/983] ; AJIT SINGH - II v. STATE OF PUNJAB ((1999) 7 SCC 209) [LQ/SC/1999/880] and JAGDISH LAL v. STATE OF HARYANA ((1997) 6 SCC 538) [LQ/SC/1997/847] have been relied upon in the said writ petitions in respect of the grounds urged contending that accelerated promotion and consequential seniority given to roster point promotee would choke the promotional aspects available to the General Merit category and the reservation that is provided for SC and st candidates in Karnataka is excessive and contrary to the principles Said down by the Hon'ble Supreme Court. Therefore, the petitioners have sought for quashing of the said Rules as referred to above.

6.2 The petition was resisted by the respondents 4 to 136. The averments made in the objections statement in so far as it relates to prayer for deleting the Rules regarding the promotion of SC and st Candidates on the basis of the accelerated promotion and consequential seniority are as follows:

6.2.1 The Government of Karnataka by an order dated 27.04.1978 bearing No. DPAR 29 SEC 77, for the first time, introduced reservation in promotions under Article 16(4) of the Constitution of India. While doing so, to regulate seniority to candidates promoted against the reserved quota Paragraph - 7 of the said order made the following provision:

“7. Inter-se seniority amongst persons promoted on any occasion shall be determined in accordance with Rule 4 or 4A (as the case may be) of the Karnataka Government Servants (Seniority) Rules, 1957.”

7. The said provision to regulate seniority from the date of promotion to candidates promoted under the reserved quota was further elaborated through illustrations in Government Order dated 01.06.1978 bearing No. DPAR.29.SEC.77 with effect from 01.04.1992 by an amendment to the Karnataka Civil Services (General Recruitment) Rules, 1977, a provision was made to fill up back-log vacancies. The Constitutional validity of the order was upheld by this Court in the case of BHAKTHARAME GOWDA v. STATE OF KARNATAKA reported in (1997) 2 SCC 661 [LQ/SC/1997/116] . Thereafter, the Government of Karnataka by Government Order dated 24.06.1997 bearing No. DPAR 10 SBC 97 also provided for fixation of seniority to Scheduled Caste and Scheduled Tribe candidates promoted under the said provision from the date of such promotion. It is on the basis of the said provisions that the members of the Scheduled Castes and Scheduled Tribes have been provided seniority on their promotion under the reserved quota. The said Government Orders dated 27.04.1978, 01.06.1978 and 24.06.1997 have been produced and marked as Annexures ‘R1’ to ‘R3’ respectively to the objections It is further averred that under the aforesaid provisions, seniority is not provided in the order of roster point against which promotions are effected. But, on the other hand, on each occasion of promotion, inter-se seniority in the lower cadre is maintained in the promoted post also. The Scheduled caste and Scheduled Tribe candidates, though promoted against roster point, have been provided seniority maintaining the inter-se seniority of the feeder cadre. Thus, on a given occasion, no Scheduled Caste/Scheduled Tribe candidate supercedes his senior in the feeder cadre provided all of them were promoted on the same occasion. No scheduled caste or scheduled tribe candidates were provided seniority on the basis of roster point. Notwithstanding their promotion against higher roster point, all the Scheduled Caste and Scheduled Tribe candidates were placed at the bottom of the list in promotions effected on any given occasion. It is further averred that the aforesaid provisions for fixation of seniority on promotion against reserved quota provided under the three Government orders mentioned above, were not placed before the Hon'ble Court in the case of M.G. BADAPPANAVAR v. STATE OF KARNATAKA (2001) 2 SCC 666 [LQ/SC/2000/1897] . The suppression of the said fact resulted in the Hon'ble Court proceeding on the basis “that there is no specific rule permitting seniority to be counted in respect of roster promotion.” Until 1990 reservations were allowed only for one stage, as it was found that representation of persons belonging to Scheduled Castes and Scheduled Tribes was highly inadequate. It is further averred that the provisions ought to have been brought to the notice of the Hon'ble Court, in which event, the interest of the Scheduled Caste and Scheduled Tribe Candidates would not have been adversely affected. It is further averred that the Scheduled Caste/Scheduled Tribe Engineers, who are the respondents herein, have always had the benefit of provisions regulating their seniority in the cadre to which they were promoted on the basis of continuous length of service. However, the said fact was not placed before the Hon'ble Supreme Court at the time of hearing of BADAPPANAVAR's case.

7.1.1 It Is further averred that the averment made in the petition that the representation given to the Scheduled Caste and Scheduled Tribe Engineers was 19.9% in the Executive Engineers cadre, 4.3% in the Chief Engineers cadre, 44.44% in the cadre of Engineer-in-chief is totally false. The petitioners have proceeded as if reservation is provided in all these cadres. While the reservation in promotion operated from Assistant Engineers Cadre to the cadre of Assistant Executive Engineer right from the inception, reservation in promotion to the cadre of Executive Engineer was not so operated continuously. There was no reservation in promotion to the cadre of Executive Engineers between the years 1985 to 1990. The representation of Scheduled Caste and Scheduled tribes in the said cadre in the year 1990 was just 2.36%. As the representation of Scheduled Caste and Scheduled Tribe Engineers in the cadre was far from adequate. In the year 1990, a provision was made providing for reservation in promotion to the cadre as well. It is only after me said reservation was introduced that there was gradual improvement of the representation of Scheduled Castes and Scheduled Tribes. Nevertheless, the representation provided to the Scheduled Castes and Scheduled Tribes never reached the prescribed quota at any point of time. Even then the reservation was discontinued in the year 1999. It is further averred that the quantum of reservation in favour of the Scheduled Castes was prescribed at 15% and in favour of the Scheduled Tribes was prescribed at 3% on the basis of the census figures obtained in the year 1951 census. Subsequently, the list of Scheduled Castes and Scheduled tribes in Karnataka itself has undergone a sea change. After the reorganization of the States in the year 1956, the castes and tribes which were designated as Scheduled castes and scheduled tribes n the five different areas which ultimately came to be merged in the State of Karnataka (then called the State of Mysore) were brought under one list. Subsequently, by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1977 (Central Act No. 108/76), which came into force from 27.07.1977, the area restriction that was imposed confining the status of Scheduled Caste or Scheduled Tribe to the area from which those castes came was removed and all the castes and tribes existing in the list were treated as Scheduled Castes and Scheduled Tribes throughout the State of Karnataka. Consequently, there was an increase in the population of the Scheduled Castes and Scheduled Tribes in the State. Further, the census figures for the year 1991 showed that the population of the Scheduled Caste and the Scheduled Tribes is 16.38% and 4.26% in the State. Subsequently, five new names have been added to the Scheduled Tribe's list substantially increasing the population of Scheduled Tribe's list. One of them Beda was shown to have a population of 2.49%. So, in the year 1991 itself, the Scheduled Castes and Scheduled Tribes population in Karnataka was above 23% (SC 16.38% + st 4.26% + Beda 2.49%). Therefore, the percentage of population of the Scheduled Castes and Scheduled Tribes is much higher than 24% as shown in the 1991 census. Though the census operations have been completed in the year 2001 and provisional figures have also been published, the figures of Scheduled Castes and Scheduled Tribes population are not available with the respondents. Nevertheless, the quantum of reservation provided at 15% and 3% in favour of Scheduled Castes and Scheduled Tribes respectively, has remained unchanged, without being revised. It is just and necessary that the said facts should be borne in mind for evaluation of representation provided to the Scheduled Castes and Scheduled Tribes and the same cannot be judged solely on the basis of 15% and 3% fixed in their favour over four decades next before the date of filing of the statement of objections. It is further averred that the petitioners have approached the Hon'ble Supreme Court exaggerating the representation given to the Scheduled Castes and Scheduled Tribes, There is absolutely no truth in the statements made in the writ petition and in the various interlocutory applications filed by the petitioners that the percentage of Scheduled Caste and Scheduled Tribes candidates was much higher than the permitted percentage and that all top positions would be filled by Scheduled Caste and Scheduled Tribe candidates. The allegations made by the petitioners in the writ petition and in the various Interlocutory applications that Scheduled Caste and Scheduled Tribe candidates would reach level IV at 45 years of age and become Chief Engineers by 49 years and the representation provided to the Scheduled Caste and Scheduled Tribes has resulted in reverse discrimination or that the representation would range from 36% to 100% are baseless. It is further averred that out of 9008 posts of Engineers, the actual representation provided to Scheduled Castes and Scheduled Tribes was only 7.6%, which comes to 687 posts out of 9008 and the same is gross under-representation and not over representation. As a matter of fact, another 10.4% of the posts numbering 934 are required to be filled up by Scheduled Castes and Scheduled Tribes in order to bring the quota of their representation to 18%. It is further averred that under the said circumstances, the statements made by the petitioners to the contrary are totally false and baseless and have been denied as such.

7.1.2 It is further averred that the annexures produced by the petitioners along with the writ petition and the various applications have also set out the imaginary figures, which have absolutely no grain of truth in them and contents of the said chart is denied. It is further averred that the implementation of the directions given in BADAPPANAVAR's case has resulted in disastrous consequences to Scheduled Caste and Scheduled Tribe Engineers. After the decision in Badappanavar's case, persons who were working as Chief Engineers for over two years were brought down to work as Executive Engineers and persons who were working as Superintending Engineers were reverted to the post of Assistant Executive Engineer. The only Engineer-in-chief, who had worked in that post for over one year, was reverted by two stages to work as Superintending Engineer. The said Engineer-in-chief, on the last day of his service, was given a symbolic reinstatement only for the purpose of retiring him in the said post. However, some of the officers belonging to the Scheduled Castes and Scheduled Tribes, who were reverted to the lower posts have been restored to their earlier posts giving the benefit of the Karnataka Ordinance No. 2/2002 and Karnataka Ordinance No. 3/2002. The statement showing representation of Scheduled Castes and Scheduled Tribes as obtained prior to the implementation of the directions in Badappanavar's case (Annexure ‘R4’ to the objections statement) and the statement showing the projected representation of Scheduled Castes and Scheduled Tribes officers for the period 2001-2010 (Annexure ‘R5’ to the objections statement) would clearly demonstrate the fallacy of the contentions advanced by the petitioners to the contrary and establishes the fact that the representation provided to the Scheduled Castes and Scheduled Tribes is far from adequate, 24 years of reservation in promotion notwithstanding. It is further averred that even with the consequential seniority, the representation of the Scheduled Caste and Scheduled Tribe Engineers would be never beyond the proportion of their population and reservation provided to Scheduled Caste and Scheduled Tribes at 15% and 3% is justified. It is further averred that if the prayers made by the petitioners are granted, that will seriously prejudice the rights of the respondents in the matter of promotion as also fixation of seniority pursuant to the promotion granted in their favour under the quota reserved in their favour.

8. We have heard the learned senior counsel/counsel appearing for the writ petitioners in these petitions and also the learned senior counsel/counsel appearing for the respondents in these writ petitions.

9. The learned senior counsel - Sri. S. Vijaya Shankar appearing for the petitioners in W.P. No. 14672/2010 submitted that though the constitutional validity of the provisions of Article 16, including consequential seniority under Article 16(4A) has been upheld, the State of Karnataka has not produced any data or material to show that the members of the Scheduled Caste and Scheduled Tribe were not adequately represented in the service and wherefore, there was justification for giving the benefit of consequential seniority in Karnataka. Having regard to the averments made in the petition, it is clear that the consequential seniority would be effective even prior to 17.06.1995, the date from which the Constitution (Eighty Fifth) Amendment Act, 2001, came into effect and wherefore, the order passed by the Government is liable to be set aside. The learned senior counsel has referred to us the statement filed along with the writ petitions and submitted that the principles laid down in BADAPPANAVAR's case, AJIT SINGH-II's case and VIRPAL CHAUHAN's case have been considered by the Hon'ble Supreme Court while considering the constitutional validity of Article 16 and it is held that if there is excessive representation of Scheduled Castes and Scheduled Tribes, that would violate the Article 16(1) and wherefore, the same is liable to be set aside. In the absence of any material produced to show that there is justification for reservation of 15% for scheduled castes and 3% for Scheduled Tribes as provided by the Government order, the impugned orders and provisions of the Rules cannot be sustained and the same are liable to be set aside. The learned senior counsel further submitted that if consequential seniority is provided in excess of the sufficient representation for Scheduled Castes and Scheduled Tribes, the same would affect efficiency of administration and the provisions of Article 16(4A) is subject to Article 335 of the Constitution and wherefore, efficiency of administration should also be borne in mind. He has relied upon the decision of the Hon'ble Supreme Court in (2001) 2 SCC 666 [LQ/SC/2000/1897] (M.G. BADAPPANAVAR v. STATE OF KARNATAKA) and further submitted that the impugned orders are contrary to the provisions of Articles 14 and 16(1) of the Constitution of India and wherefore, the same are liable to be set aside.

10. Sri. Udaya Holla, the learned senior counsel appearing for the writ petitioners submitted chat the principles laid down in M.G. BADAPPANAVAR's case and AJIT SINGH-II's case and VIRPAL CHAUHAN's case have not been obliterated in the said cases. In the said cases, the Hon'ble Supreme Court proceeded on the basis that the provisions of the constitution (Eighty Fifth) Amendment Act, was valid and in view of the direction issued by the Hon'ble Supreme Court, while remitting these cases to this Court, the controlling factors such as backwardness, inadequacy of representation and overall administrative efficiency have to be considered by the State. However, the State has not produced any statistics or data to point out that the reservation at 15% and 3% in respect of Scheduled Castes and Scheduled Tribes is justified, having regard to the number of positions available in the cadre. The learned senior counsel has relied upon the decision of the Hon'ble Supreme Court in the case of INDRA SAWHNEY v. UNION OF INDIA (1992 Supp (3) SCC 217) and AJIT SINGH-II's case and the observations made by the Hon'ble Supreme Court in this case while remitting the matter to this Court. The learned senior counsel further submitted that the effect of the provisions of the Karnataka Act No. 10 of 2002 enacted by the State of Karnataka providing consequential seniority would obliterate the observations countenanced by the Hon'ble Supreme Court and the same would also amount to giving retrospective effect beyond 17.06.1995 and wherefore, the executive orders issued by the State Government challenged in the writ petition are liable to be set aside.

11. The learned counsel for the petitioners submitted that he would adopt the arguments of the learned senior counsel appearing for the petitioners in W.P. No. 14672/2010 and further submitted that the State Government has not provided any material nor any data to show that there is inadequate reservation to the members of the Scheduled Caste and Scheduled Tribe in the service of Engineers. In the absence of any material produced in that behalf as per the direction issued by the Hon'ble Supreme Court in the present case, the accelerated promotion with consequential seniority cannot be upheld. The learned counsel further submitted that the effect of giving consequential seniority would stretch beyond 17.06.1995 also and since the writ petitions were filed under Article 32 of the Constitution before the Hon'ble Supreme Court, the same could not have been transferred to this case.

12. Sri. M. Nagaraj, Party-in-person (petitioner No. 1 in W.P. No. 14555/2010) submitted that the provisions of 2002 Act passed by the State of Karnataka are contrary to the principles laid down by the Hon'ble Supreme Court and there is excessive reservation for Scheduled Castes and Scheduled Tribes in Karnataka and the candidates belonging to the Scheduled Castes and Scheduled Tribes not only get the benefit of accelerated promotion, but, also get accelerated seniority, which would seriously cause prejudice to the general merit candidates and at one time, all the echelons of the higher post would be occupied by the Scheduled Caste and Scheduled Tribe candidates and general merit candidates would be deprived of their right of promotion without getting any promotion in due course of time as per the charts produced along with the writ petition. He further submitted that the issue of consequential seniority has been explained in Ajit Singh II's case and the 2002 Act tries to overrule the principles laid down in the said case. If the State provides consequential seniority without taking into consideration the controlling factors such as backwardness, inadequacy of representation and overall efficiency of administration, the same would be contrary to Article 16(1) of the Constitution and the decision of the Hon'ble Supreme Court in this case, wherein the constitutional validity of Articles 16(4A) and 16(4B) has been upheld. He has also relied upon the decision of the Hon'ble Supreme Court in BIMLESH TANWAR v. STATE OF HARYANA (2003 SCC (L&S) 737, wherein the Hon'ble Supreme Court has held as under:—

“Seniority is not a fundamental right. It is merely a civil right. Inter se seniority of the candidates, who are appointed on the same day would be dependent on the rules governing the same. In the absence of rules governing seniority an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the Court may have to evolve a fair and just principle which could be applied in the facts and circumstances of the case.

xxx

An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation to a class of citizenry, who are socially or economically backward. Article 16 is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance with the constitutional schemes. The provisions of Articles 16(1), 16(4) and 335 of the Constitution of India imply that a process should be adopted while making appointment through direct recruitment or promotion in which the merit is not affected.”

13. He has also relied upon the observations made by the Hon'ble Supreme Court while deciding the constitutional validity of the Constitution (Eighty Fifth) Amendment Act. 2001, while remitting the matter to this Court. Sri. Nagaraj also submitted that the percentage of reservation for persons belonging to Scheduled Caste and Scheduled Tribe categories is more than 15% and 3% respectively and the same would prejudicially affect the right of the general merit candidates for consideration to promotion. Accordingly, he submitted that the impugned Act and Rules are liable to be set aside as sought for in the writ petition.

14. The learned Advocate General appearing for the respondent - State has narrated the manner in which reservation is provided for persons belonging to the Scheduled Castes and Scheduled Tribes and as to how the accelerated promotion and consequential seniority was given to them. The learned Advocate General submitted that the accelerated promotion was given on 27.04.1978 itself and thereafter, consequential seniority has been provided under the impugned Act and the percentage of reservation for Scheduled Castes and Scheduled Tribes at 15% and 3% respectively has been calculated on the basis of the data that is available and the same can never be said to be excessive in view of the progressive increase in the population of the Scheduled Castes and Scheduled Tribes. The learned Advocate General further submitted that the provisions of the Karnataka Determination of Seniority promoted on the basis of Reservation (to the posts in the Civil Services of the State) Act, 2002, provides that the inter-se seniority of the Government servants belonging to the Scheduled Castes and the Scheduled Tribes as well as those belonging to the unreserved category provided to a cadre at the same time by a common order, shall be determined on the basis of their seniority inter-se in the lower cadre and wherefore, the interest of the persons belonging to general merit category is safeguarded. The learned Advocate General further submitted that the petitioners cannot claim their right to promotion apart from claiming right for consideration to promotion and the claim of the petitioners that conferment of accelerated promotion and consequential seniority to the members of the Scheduled Caste and Scheduled Tribes, which are their fundamental rights would prejudicially affect their right for consideration to promotion is baseless as the said reservation is provided only up to the post of Assistant Executive Engineer and after 17.06.1995, the decision of the Hon'ble Supreme Court in the present case before remitting the matter to this Court (NAGARAJ v. UNION OF INDIA - (2006) 8 SCC 212) [LQ/SC/2006/956] has been followed. The learned Advocate General further submitted that in INDRA SAWHNEY's case though the Hon'ble Supreme Court has held that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extend to reservation in the matter of promotion, has further directed that wherever reservation in promotions was already provided, such reservation may continue in operation for a period of five years from the date of the judgement (16.11.1992), within which the relevant provisions should be revised, modified or re-issued to achieve the objective of Article 16(4). Thereafter, in view of the decision of the Hon'ble Supreme Court in the present case upholding the constitutional validity of the Amendment Acts and in view of the Articles 16(4A) and 16(4B) and 335 as amended, it is clear that the reservation provided to the Scheduled Castes and Scheduled Tribes for giving accelerated promotion and consequential seniority at 15% and 3% respectively can never be said to be excessive.

15. Sri. Ravi Verma Kumar, the learned senior counsel appearing for the respondents submitted that he has preliminary objection for hearing these writ petitions by this Court. The learned senior counsel submitted that the writ petitions were filed under Article 32 of the Constitution of India before the Hon'ble Supreme Court challenging the validity of the Constitution (Eighty Fifth) Amendment Act, 2001 and other amendments pertaining to Article 16(4A) and 16(4B) of the Constitution. The Hon'ble Supreme Court, having upheld the Constitutional validity of the said Amendment Act, 2001, challenged in the writ petitions, could not have remitted the matter to this Court as this Court can hear only the writ petitions that are filed under Articles 226 and 227 of the Constitution of India and not the petitions filed under Article 32 of the Constitution of India. The learned senior counsel further submitted that the concept of reservation in promotion and consequential seniority in favour of the Government servants belonging to the Scheduled Castes and Scheduled Tribes has been in State of Karnataka since 27.04.1978 even prior to constitutional amendment by which Article 16(4A) has been inserted. The reservation provided to the Scheduled Castes and Scheduled Tribes at 15% and 3% respectively cannot be said to be excessive and clear guideline is given in the Karnataka Act No. 10 of 2002 that the seniority inter-se of the Government servants belonging to the Scheduled Castes and the Scheduled Tribes as well as those belonging to the unreserved category, promoted to a cadre, at the same time by a common order, shall be determined on the basis of their seniority inter-se, in the lower cadre and wherefore, there is no violation of Article 16(1) of the Constitution. The learned senior counsel further submitted that though right to be considered for promotion is a fundamental right, the right to claim seniority or consequential seniority or promotion is not a fundamental right and catch up rule and principle of consequential seniority were the principles developed by judicial decisions and was not contained in Article 16(1) or 16(4) of the Constitution and wherefore, they cannot be conferred with status of a fundamental right and there is no violation of the Article 16(1) of the Constitution. The learned senior counsel has relied upon the decision of the Hon'ble Supreme Court in ASHOK KUMAR v. UNION OF INDIA ((2008) 6 SCC 1) [LQ/SC/2008/884] in support of his contention. The learned senior counsel further submitted that the reservation of 15% and 3% in Karnataka for the persons belonging to Scheduled Castes and Scheduled Tribes and accelerated promotion and consequential seniority has not been challenged by the petitioners at any time and no retrospective effect is given beyond 17.06.1995. In Karnataka, accelerated promotion was available from 27.04.1978 itself and the percentage of reservation has never been challenged as excessive and the said percentage is inadequate and wherefore, the writ petitions are liable to be dismissed. The learned senior counsel further submitted that the reservation in promotion and consequential seniority is provided to the members of the Scheduled Castes and Scheduled Tribes in Engineering service up to the post of Assistant Executive Engineer and not above the said level. Therefore, the contentions of the petitioners are baseless and unfounded and are liable to be set aside. It is further averred that there is no pleading in the writ petitions that the percentage of reservation provided to the candidates belonging to the Scheduled Castes and Scheduled Tribes is excessive at any point of time. In fact, from 1978, the percentage of reservation at 15% and 3% in respect of the persons belonging to Scheduled Castes and Scheduled Tribes has been maintained and has not been enhanced and the same is required to be enhanced having regard to the increase in the population of Scheduled Castes and Scheduled Tribes since 1978 in the State of Karnataka.

16. Sri. P.S. Rajagopal, the learned senior counsel appearing for the Respondent submitted that the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 1995, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001 have been upheld by the Hon'ble Supreme Court in this case only before remitting the matter to this Court and wherefore, the rights that are available to the persons belonging to the Scheduled Castes and Scheduled Tribes for accelerated promotion and consequential seniority are fundamental rights and the said policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes has been introduced in Karnataka on 27.04.1978. The percentage of reservation in promotion for the candidates belonging to the Scheduled Castes and Scheduled Tribes at 15% and 3% respectively cannot at all be said to be excessive and the accelerated promotion and consequential seniority is provided only to the post of Assistant Executive Engineer and the statement produced by the petitioners are baseless and prepared only to suit their convenience and there is no retrospective operation of the accelerated promotion and consequential seniority beyond 17.06.1995 as contended by the petitioners as in Karnataka the said reservation policy has been operative from 27.04.1978 itself and necessary Rules and Acts have been promulgated. There is no pleading in the writ petition to show that the said reservation provided by the State is excessive or that it would affect the efficiency of administration of service as under the proviso to Article 335 of the Constitution, it is stated that nothing in Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in promotion and the said proviso is also confined to only members of the Scheduled Castes and Scheduled Tribes. The learned senior counsel has referred to the various decisions in support of his contention.

17. We have given careful consideration to the contentions of the learned counsel appearing for the Parties and scrutinized the material on record. Having regard to the contentions urged and in view of the directions issued by the Hon'ble Supreme Court, the points that arise for our determination in these writ petitions are as follows:—

1. Whether there is merit in the preliminary objection raised by the respondents that this Court has no jurisdiction to hear the petitions filed under Article 32 of the Constitution of India

2. Whether the State Government has shown the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation for Scheduled Castes and Scheduled Tribes in matters of promotion and as to whether the extent of reservation provided for promotion in favour of the persons belonging to Scheduled Castes and Scheduled Tribes at 15% and 3% respectively, in Karnataka, is justified

3. What order

18. We answer the above points for determination as follows:—

Point No. 1 : in the negative;

Point No. 2 : in the affirmative;

Point No. 3 : in view of our answer to point No. 1 & 2, the Writ petitions are liable to be dismissed for the following:

REASONS

19. Point No. 1 : The scrutiny of the material on record would clearly show that these writ petitions were filed under Article 32 of the Constitution of India before the Hon'ble Supreme Court challenging the Constitution (Eighty-fifth) Amendment Act, 2001 inserting Article16(4-A) of the Constitution retrospectively from 17.06.1995 and the Constitution (Seventy-seventh) Amendment Act, 1995 and also the provisions of the Karnataka Act 10 of 2002. The Hon'ble Supreme Court has considered the contention of the petitioners regarding the constitutional validity of the Constitution (Eighty-fifth) Amendment Act, 2001 and has upheld the same by order dated 19.10.2006. Having upheld the provisions of the Constitution (Seventy-seventh) Amendment Act, 1995, the Constitution (Eighty first) Amendment Act, 2000, the Constitution (Eighty second) Amendment Act, 2000 and the Constitution (Eighty-fifth) Amendment Act, 2001, the Hon'ble Supreme Court further held that the impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4) and they do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation, which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. The impugned amendments are confined only to SCs and STs. They 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's case, the concept of post-based roster with inbuilt concept of replacement was held in R.K. SABHARWAL's case. The Hon'ble Supreme Court further reiterated that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, 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. The Hon'ble Supreme Court has further observed that the main issue concerns the “extent of reservation”. In that 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. The impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotion. 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. The Hon'ble Supreme Court has clarified that even if the State as compelling reasons, 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 creamy layer or extend the reservation indefinitely. The Hon'ble Supreme Court has further held that they have not examined the validity of the individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate Bench in accordance with law laid down by them in the present case and the matter has been remitted to this Court for considering the validity of the Acts enacted by the State. It is well settled that the Hon'ble Supreme Court has got the power to transfer the writ petition, which is filed under Article 32 of the Constitution of India to the High Court for consideration of the same on merits. Having regard to the facts of the case, the Hon'ble Supreme Court, having upheld the constitutional validity of the Amendments, which were impugned in the writ petitions, held that the question with regard to validity of the individual enactments of appropriate States, will have to be considered by the High Court and in view of the provisions of Article 142 of the Constitution of India, the order is passed by the Hon'ble Supreme Court remitting the matter to this Court, Therefore, it is clear that the objection of the respondents that this Court has no jurisdiction to hear these writ petitions, which were initially filed under Article 32 of the Constitution of India, cannot be accepted and the same is accordingly rejected. Accordingly, we answer point No. 1 in the negative.

20. Point No. 2 : It is clear from the arguments advanced by the learned counsel appearing for the petitioners and the respondents in these cases that in view of the fact that the Hon'ble Supreme Court has upheld the provisions of the Constitution (Seventy-seventh) Amendment Act, 1995, the Constitution (Eighty first) Amendment Act, 2000, the Constitution (Eighty second) Amendment Act, 2000 and the Constitution (Eighty-fifth) Amendment Act, 2001, and the fundamental right, which has been conferred on the persons belonging to the Scheduled Castes and Scheduled Tribes in the service of the State has been upheld. It should also be noted that the various decisions relied upon by the learned counsel appearing for the Parties in these cases have been considered by the Hon'ble Supreme Court while deciding the constitutional validity of the Constitution (Eighty-Fifth) Amendment Act, 2001, which has come into effect from 17.06.1995. The circumstances under which the decisions were rendered in VIRPAL SINGH CHAUAHAN's case; AJIT SINGH-I's case, AJIT SINGH-II's case, JAGADISH LAL's case and M.G. BADAPPANAVAR's case and the principles laid down in the said cases have been considered in the present petitions by the Hon'ble Supreme Court while considering the constitutional validity of the above said Amendment Acts and wherefore, it is unnecessary to consider the contention of each counsel regarding the interpretation of the said decisions and the extent to which the principles laid down in the said decisions would be applicable to the present case. The decision pertaining to VIRPAL SINGH CHAUHAN's case ((1995) 6 SCC 684) [LQ/SC/1995/983] regarding the concept of “catch-up” rule has been considered by the Hon'ble Supreme Court in Paras 71 to 73 of the judgement rendered in the present cases (M. NAGARAJ v. UNION OF INDIA ((2006) 8 SCC 212) [LQ/SC/2006/956] while considering the constitutional validity of the Amendment Acts, which were impugned in the writ petitions, which reads as under:—

“71. The concept of “catch-up” rule appears for the first time in Virpal Singh Chauthan. In the category of Guards in the Railways, there were four categories, namely, Grade C, Grade B, Grade A and Grade A Special. The initial recruitment was made to Grade C. Promotion from one grade to another was by seniority-cum-suitablity. The rule of reservation was applied not only at the initial stage of appointment to Grade C but at every stage of promotion. The percentage reserved for SCs was 15% and for STs, it was 7.5%. To give effect to the rule of reservation, a forty-point roster was prepared in which certain points were reserved for SCs and STs respectively. Subsequently, a hundred-point roster was prepared reflecting the same percentages. In 1986, general candidates and members of SCs/STs came within Grade A in Northern Railway. On 1-8-1986, the Chief Controller promoted certain genral candidates on ad hoc basis to Grade A Special. Within three months, they were reverted and SCs and STs were promoted. This action was challenged by general candidates as arbitrary and unconstitutional before the Tribunal. The general candidates asked for three reliefs, namely, (a) to restrain the Railways from filling up the posts in higher grades in the category of Guards by applying the rule of reservation : (b) to restrain the Railways from acting upon the seniority list prepared by them; and (c) to declare that the general candidates were alone entitled to be promoted and confirmed in Grade A Special on the strength of their seniority earlier to the reserved category employees. The contention of the general candidates was that once the quota prescribed for the reserved group is satisfied, the forty-point roster cannot be applied because that roster was prepared to give effect to the rule of reservation. It was contended by the general candidates that accelerated promotion may be given but the Railways cannot give consequential seniority to reserved category candidates in the promoted category. (emphasis added) In this connection, the general category candidates relied upon decisions of the Allahabad and Madhya Pradesh High Courts. It was contended by the general candidates that giving consequential seniority in addition to accelerated promotion constituted conferment of double benefit upon the members of the reserved category and therefore, violated the rule of equality in Article 16 (1) It was further urged that accelerated promotion-cum-accelerated seniority is destructive of the efficiency of administration inasmuch as by this means the heigher echelons of administration would be occupied entirely by members of reserved categories. This was opposed by the reserved category candidates who submitted that for the purposes of promotion to Grade A special, he seniority list pertaining to Grade A alone should be followed that, the administration should not follow the seniority lists maintaned by the administration pertaining to Grade C as urged by the general candidates and since SCs and STs were senior to the general candidates in Grade A, the seniority in Grade A alone should apply. In short, the general candidates relied upon the “catch-up” rule, which was opposed by the members of SCs/STs. They also relied upon the judgment of this Court in R.K. Sabharwal.

72. This Court gave the following reasons for upholding the decision of the Tribunal. Firstly, it was held that a rule of reservation as such does not violated Article 16(4), Secondly, this Court opined that there is no uniform method of providing reservation. The extent and nature of reservation is a matter for the State to decide having regard to the facts and requirements of each case. It is open to the State, if so advised, to say that while the rule of reservation shall be applied, the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over seniors in the feeder category and that it is open to the State to interpret the “catch-up” rule in the service conditions governing the promotions (see Para 24 of SCC) Thirdly, this Court did not agree with the view expressed by the Tribunal (in Virpal singh Chaudhan) that a harmonious reading of clauses (1) to (4) of Article 16 should mean that a reserved category candidate promoted earlier than his senior general category candidates in the feeder grade shall necessarily be junior in the promoted category to such general category. This Court categorically ruled, vide Para 27 (of SCC) that catch-up principle cannot be said to be implicit in clauses (1) to (4) of Article 16. (emphasis supplied) Lastly, this Court found on facts that for 11 vacancies, 33 candidates were considered and they were all SC/st candidates. Not a single candidate belonged to general category. It was argued on behalf of the general candidates that all top grades stood occupied exclusively by the reserved category members, which violated the rule of equality underlying Articles 16(1), 16(4) and 14. This court opined that the above 3 situation arose on account of faulty implementation of the rule or reservation, as the Railways did not observe the principle that reservation, must be in relation to “posts” and not “vacancies” and also for applying the roster even after the attainment of the requisite percentage reserved for SCs/STs. In other words, this Court based its decision only on the faulty implementation of the rule by the Railways which the Court ordered to be rectified.

73. The point which we need to emphasise is that the Court has categorically ruled in Virpal Singh Chauhan that the “catch-up” rule is not implicit in clauses(1) to (4)of Article 16. Hence, the said rule cannot bind the amending power of Parliament. It is not beyond the amending power of Parliament.”

21. In Para 74 of the said judgement, the principles laid down in AJIT SINGH JANUJA v. STATE OF PUNJAB (AJIT SINGH I's case ((1996) 2 SCC 715) [LQ/SC/1996/535] has been considered and the same reads as under:

“74. In Ajit Singh (I)2 the controversy which arose for determination was-whether after the members of SCs/STs for whom specific percentage of posts stood reserved having been promoted against those posts, was it open to the administration to grant consequential seniority against general category posts in the higher grade. The appellant took a clear stand that he had no objection if members of SCs/STs get accelerated promotions. The appellant objected only to the grant of consequential seniority. Relying on the circulars issued by the administration date 19-7-1969 and 8-9-1969, the High Court held that the members of SCs/STs can be promoted against general category posts on the basis of seniority. This was challenged in appeal before this Court. The High Court's ruling was set aside by this Court on the ground that if the “catch-up” rule is not applied then the equality principle embodied in Article 16(1) would stand violated. This Court observed that the “catch-up” rule was a process adopted while making appointments through direct recruitment or promotion because merit cannot be ignored This court held that for attracting meritorious candidates a balance has to be struck while making provisions for reservation. It was held that the promotion is an incident of service. It was observed that seniority is one of the important factors in making promotion. It was held that the right to equality is to be preserved by prevening reverse discrimination. Further, it was held that the equality principle requires exclusion of extra weightage of roster - point promotion to a reserved category candidates, (emphasis supplied) This Court opined that without “catch-up” rule, giving weightage to earlier promotion secured by roster-point promotee would result in reverse discrimination and would violate equality under Article 14, 15, and 16. Accordingly, this Court took the view that the seniority between the reserved category candidates and general candidates in the promoted category shall be governed by their panel position. Therefore, this Court set aside the factor of extra weightage of earlier promotion to a reserved category candidate as violative of Articles 14 and 16 (1) of the Constitution.”

22. Further, in Para 75 of the said judgement, the observations made in VIRPAL SINGH CHAUHAN's case in respect of “Catch-up” rule has been considered, which reads as follows:

“75. Therefore, in Virupal Singh Chauhan this Court has said that the “catch-up” rule insisted upon by the Railways though not implicit in Articles 16(1) and 16(4), is constitutionally valid as the said practice/process was made to maintain efficiency. On the other hand, in Ajit Sing (I)2 this Court has held that the equality principle excludes the extra weithtage given by the Government to roster-point promotes as such weightage is against merit and efficiency of the administration and that the Punjab Government had erred in not taking into account the said merit and efficiency factors.”

23. The decision in AJIT SINGH (II) v. STATE OF PUNJAB (AJIT SINGH (II) (1999) 7 SCC 209) [LQ/SC/1999/880] has been considered by the Hon'ble Supreme Court in Paras 76 to 79 of the judgement, which reads as under:

“76. In Ajit Singh(II)3 three interlocutory applications were filed by the State of Punjab for clarification of the Judgment of this Court in Ajit Singh (I)2. The limited question was-whether there was any conflict between the judgment of this Court in Virpal Sing Chauhan and Ajit Singh (I)2 on one hand and vis-a-vis the judgment of this Court in Jagdish Lal v. State of Haryana. The former cases were decided favour of general candidates whereas the latter was a decision against the general candidates. Briefly, the facts for moving the interlocutory applications were as follows : the Indian Railways following the law laid down in Virpal Singh Chaudan issued a circular on 28-2-1997 to the effect that the reserved candidates promoted on roster-points could not claim seniority over the senior general candidates promoted later on. The State of Punjab after following Ajit Singh (I)2 revised their seniority list and made further promotions of the senior general candidates following the “catch-up” rule. Therefore, both the judgments were against the reserved candidates. However, in the later judgment of this Court in Jagdish Lal another three-Judge bench took the view that under the general rule of service jurisprudence relating to seniority, the date of continuous officiation has to be taken into account and if so, the roster-point promotees were entitled to the benefit of continuos officiation. In Jagdish Lal the Bench observed that the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Articlel6 (4-A) were fundamental rights of the reserved candidates and therefore, the reserved candidates were entitled to the benefit of continuous officiation.

77. Accordingly, in Ajit Singh (II)3 three points arose for consideration:

(i) Can the roster-point promotees count their seniority in the promoted category from the date of their continuous officiation vis-a-vis general candidates, who were senior to them in the lower category and who were later promoted to the same level

(ii) Have Virpal1 and Ajit Singh (I)3 been correctly decided and has Jagdish Lal been correctly decided

(iii) Whether the catch-up principles are tenable

78. At the outset, this Court stated that it was not concerned with the validity of constitutional amendments and, therefor, it proceeded on the assumption that Article 16(4-A) is valid and not unconstitutional. Basically, the question decided was whether the “catch-up” principle was tenable in the context of Article 16(4). It was held that the primarypurpose of Article 16(4) and Article 16(4-A) is to give due representation to certain classes in certain posts keeping in mind Articles 14, 16(1) and 335; that, Articles 14 and 16 (1) have prescribed permissive limits to affirmative action by way of reservation under Articles 16(4) and 16 (4-A) of the Constitution; that, Article 335 is incorporated so that efficency of administration is not jeopardised and that Article 14 and 16 (1) are closely connected as they deal with individual shall be equality of opportunity to all citizens in public employment. It was further held that Article 16(1) flows from Article 14. It was held that the word “employment” in Article 16 (1) is wide enough to include promotions to posts at posts at the stage of initial level of recruitment. It was observed that Article 16(1) provides to every employee otherwise eligible for promotion fundamental right to be considered for promotion. It was held that equal opportunity means the right to he considered for promotion. The right to be considered for promotion was not a statutory right. It was held that Articles 16(4) and 16(4-A) did not confer any fundamental right to reservation. That they are only enabling provisions. Accordingly, in Ajit Singh (II)3 the judgment of this Court in Jagdish Lal case was overruled. However, in the context of balancing of fundamental rights under Article 16(1) and the rights of reserved candidates under Article 16(4) and 16 (4-A), this Court opined that Article 16 (1) deals with a fundamental right whereas Articles 16 (4) and 16 (4-A) are only enabling provisions and, therefore, the interests of the reserved classes must he balanced against the interests of other segments of society. As a remedial measure, the Court held that in matters relating to affirmative action by the State, the rights under Article 14 and 16 are required to be protected and a reasonable balance should be struck so that the affirmative action by the State does not lead to reverse discrimination.

79. Reading the above judgments, we are of the view that the concept of “catch-up” rule and “consequential seniority” are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. There concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. It cannot be said that by insertion of concept to “consequential seniority” the structure of Article 16(1) stands destroyed or abrogated. It cannot be said the “equality code” under Articles 14, 15 and 16 is violated by deletion of the “catch-up” rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the “catch-up” rule nor the concept of “consequential seniority” is implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.”

24. The Hon'ble Supreme Court has also considered the case of M.G. BADAPPANAVAR v. STATE OF KARNATAKA ((2001) 2 SCC 666) [LQ/SC/2000/1897] at Paras 80 and 81 of the judgement as follows:

“80. Before concluding, we may refer to the judgment of this Court in M.G. Badappanavar. In that case the facts were as follows : the appellants were general candidates. They contended that when they and the reserved candidates were appointed at level 1 and junior reserved candidates got promoted earlier on the basis of roster points to Level 2 and again by way of roster points to Level 3, and when the senior general candidates got promoted to Level 3, the reserved candidate should have been considered along with the senior general candidate for promotion to Level 4. In support of their contention, the appellants relied upon the judgment of the Constitution Bench in Ajit Singh (II)3. The above contentions raised by the appellants were rejected by the Tribunal. Therefore, the general candidates came to this Court in appeal. This court found on the facts that the service rule concerned did not contemplate computation of seniority in respect of roster promotions. Placing reliance on the judgments of this Court in Ajit Singh (I)2 and in Virpal Singh this Court held that roster promotions were meant only for the limited purpose of due representation of Backward Classes at various levels of service and therefore, such roster promotions did not confer consequential seniority to the roster-point promotee. In Ajit Singh (II)3 the circular which gave seniority to the roster-point promotees was held to be violative of Articles 14 and 16. It was further held in M.G Badappanavar that equality is the basic feature of the Constitution and nay treatment of equals as unequals or any treatment of unequals as equals violated the basic structure of the Constitution. For this proposition, this Court placed reliance on the judgment in Irdra Sahney while holding that if creamy layer among Backward Classes were given some benefits as Backward Classes, it will amount to equals being treated unequals. Applying the creamy layer test, this Court held that if roster-point promotees are given consequential seniority, it will violate the equality principle which is Part of the basic structure of the Constitution and in which event even Article 16(4-A) cannot be of any help to the reserved category candidates. This is the only judgment of this Court delivered by a three-Judge Bench saying that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of equality principle which is a Part of the basic structure of the Constitution. Accordingly, the judgment of the Tribunal was set aside.

81. The judgment in M.G. Badappanavar was mainly based on the judgment in Ajit Singh (I)2 which had taken the view that the departmental circular which gave consequential seniority to the “roster-point promotee”. Violated Articles 14 and 16 of the Constitution. In none of the above cases, was the question of the validity of the constitutional amendments involved. Ajit Singh (I)2, Ajit Singh (II)3 and M.G. Badappanavar were essentially concerned with the question of “weightage”. Whether weightage of earlier accelerated promotion with consequential seniority should be given or not to be given are maters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and representation in public employment and overall efficiency of services. The above judgments, therefore, did not touch the questions which are involved in the present case.”

25. Hon'ble Supreme Court while considering the constitutional validity of the Constitution (Seventy-seventh) Amendment Act, 1995, has laid down in the judgement rendered in these cases at Paras 86 to 88 as follows:—

“86. Clause (4-A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4-A) of Article 16 emphasises the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4-A) will be governed by the two compelling reason - “backwardness” and “inadequacy of representation”, as mentioned in Article 16 (4). If the said two reason do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further, in Ajit Singh(ii)3 this Court : has held that apart from “backwardness” and “inadequacy of representation” the State shall also keep in ming “overall efficiency” (Article 335). Therefore, all the three factors have to kept in mind by the appropriate Government in providing for reservation in promotion for SCs and STs.

87. After the Constitution (Seventy-seventh Amendment) Act, 1995, this Court stepped in to balance the conflicting interests. This was in Virpal Singh Chauhan in which it was held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential seniority constituted additional benefit and, therefore, his seniority will be governed in Virpal Singh and Ajit Singh (I) bringing in the concept of “catch-up” rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the next higher grade.

88. In the circumstances, clause (4-A) of Article 16 once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that the Constitution (Eighty-fifth Amendment) Act, 2001 was an extension or clause (4-A) of Article 16, Therefore, the Constitution (Seventy-seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-fifth Amendment) Act, 2001.”

26. Hon'ble Supreme Court has also made observations regarding the ceiling limit of reservation and has held that in view of the decision of the Hon'ble Supreme Court in INDRA SAWHNEY's case (1992 Supp (3) SCC 217), reservation cannot exceed 50% and Article 16 has taken care of the backlog vacancies and it should not be included in the said 50%. The Hon'ble Supreme Court has observed in Para 102 of the said judgement in the present cases (M. NAGARAJ v. UNION OF INDIA) while considering the constitutional validity of the Constitution (Eighty-Fifth) Amendment, Act 2001, as follows:

“102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and test of “identity”. As stated hereinabove. The concept of the “catch-up” rule and “consequential Seniority” are not constitutional requirements. They are not implicit in clause (1) and (4) of Article 16, They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The Parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs. alone. Therefore, the present case does not change the identity of the Constitution.”

27. The contentions of the learned senior counsel/counsel appearing for the petitioners and the contentions of the learned senior counsel/counsel appearing for the respondents have to be considered in the light of the principles laid down by the Hon'ble Supreme Court.

28. We have given careful consideration to the contentions of the learned senior counsel appearing for the Parties and scrutinized the material on record to find out as to whether the State Government has made out that the factors such as backwardness and inadequacy of representation and overall administrative efficiency have been considered before making provision for reservation of posts at 15% and 3% for the persons belonging to the Scheduled Castes and Scheduled Tribes respectively in promotion up to the post of Assistant Executive Engineer.

29. The scrutiny of the material on record would clearly show that the State Government, having regard to Article 16(4) of the Constitution of India and after considering the statistics available about the number of employees and the representation of persons belonging to Scheduled Castes and Scheduled Tribes categories, passed an order on 27.04.1978 making provision for reservation in favour of persons belonging to Scheduled Castes and Scheduled Tribes in promotional vacancies at 15% and 3% respectively of vacancies to be filled by promotion in all the cadres up to the inclusive of the lowest category of Class I posts, in which there is no element of direct recruitment, and if there is an element of direct recruitment, such element of direct recruitment does not exceed 66 23%. Thereafter, in view of the judgement of Hon'ble Supreme Court in INDRA SAWHNEY v. UNION OF INDIA (AIR 1983 SC 477) holding that reservation of appointments or posts under Article 16(4) of the Constitution cannot extend to providing reservation in the matter of promotions and directed that wherever reservation in promotions is already provided, such reservation may continue in operation for a long period of five years from the date of the judgement, that is 16.11.1992, within which period the relevant provisions should be revised, modified or re-issued to achieve the objective of Article 16(4). Subsequent to the aforesaid judgement, the Constitution of India was amended by the Constitution (Seventy Seventh) Amendment Act, 1995, dated 17.06.1995, whereby, clause 4A was inserted in Article 16, which enables the State to provide for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Having regard to the above said facts, the State Government by order dated 03.02.1999, has modified the policy of reservation in matter of promotion by holding that in pursuance of Article 16(4A) of the Constitution of India, there shall be reservation in promotion in favour of the persons belonging to the Scheduled Castes and the Scheduled Tribes to the extent of 15% and 3% respectively, of the posts in a cadre upto and inclusive of the lowest category of Group-A posts in each service and/or department, in which there is no element of direct recruitment and if there is an element of direct recruitment, such element of direct recruitment does not exceed 66.⅔%, shall continue to operate, the reservation in promotion in favour of the persons belonging to the Scheduled Castes shall continue to operate till such time as their representation in a cadre reaches 15% and the reservation in promotion in favour of the persons belonging to the Scheduled Tribes shall continue to operate till such time as their representation in a cadre reaches 3%. Thereafter, the reservation in promotion shall be continued only to maintain the representation to the extent of the aforesaid percentages for respective categories. It was further ordered that promotion of the persons belonging to the Scheduled Castes and the Scheduled Tribes against backlog shall be accorded only if in a cadre, the representation of the persons belonging to the Scheduled Castes is less than 15% and those belonging to the Scheduled Tribes is less than 3% and it shall be limited to the extent of the shortfall. Promotions made against backlog was ordered to be taken into account for calculating the percentages of representation of the persons belonging to the Scheduled Castes and the Scheduled Tribes to the extent of 15% and 3% respectively.

30. The State Government after re-examining the matter in detail, by order dated 13.04.1999, amended its earlier order dated 03.02.1999 as follows:—

“(1) In Para 5, for the second sentence, starting with the words, “The reservation in promotion………….” and ending with the words “……………………….. representation in a cadre reaches 3%” the following shall be substituted, namely:—

“The reservation in promotion in favour of the persons belonging to the Scheduled Castes and the Scheduled Tribes shall continue to operate by applying the existing roster to the vacancies till the representation of the persons belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes, reaches 15% or 3% respectively”.

(2) For Paras 7 and 8, the following shall be substituted, namely:—

“7. Promotion of the persons belonging to the Scheduled Castes and the Scheduled Tribes against backlog shall be continued to be accorded in accordance with the Government Order dated 24.06.1997, read at (7) above.

8. The provisions of the Government Order dated 24.06.1997 read at (7) above, will continue to operate until! the existing backlog is cleared but while making any promotion thereafter In favour of the persons belonging to the Scheduled Castes or the Scheduled Tribes, their representation shall be maintained to the extent of 15%. and 3% respectively of the total working strength.”

31. Thereafter, by the Karnataka Act No. 43 of 1994, the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of seats in Educational Institutions and of appointments or posts in the services under the State) Act, 1994 was enacted. It should also be noted that as per the Government orders dated 27.04.1978 and 01.06.1978, seniority is not provided in the order of roster point against which promotions were effected. But, on the other hand, on each occasion of promotion, inter-se seniority in the lower cadre was maintained in the promoted post also. The candidates belonging to Scheduled Castes and Scheduled Tribes, though promoted against roster point, were provided seniority maintaining the inter-se seniority of the feeder cadre. Thus, on a given occasion, no Scheduled Caste or Scheduled Tribe candidate supercedes his senior in the feeder cadre provided all of them were promoted on the same occasion. Until 1990, reservations were allowed only for one stage. Thereafter, the benefit was extended up to a second stage, as it was found that the representation of persons belonging to Scheduled Castes and Scheduled Tribes was highly inadequate. The Engineers belonging to Scheduled Castes and Scheduled Tribes, who are the respondents herein have always had the benefit of the provisions regulating their seniority in the cadre to which they were promoted on the basis of continuous length of service. At no point of time, the reservation exceeded 15% for Scheduled Castes and 3% for Scheduled Tribes and the said percentage of reservation was fixed on the basis of 1951 census. Subsequently, population of Scheduled Castes and Scheduled Tribes has increased. Few additional castes have been added to the Scheduled Tribes' list and one of them Beda was shown to have a population of 2.49%. So, in the year 1991 itself, the Scheduled Castes and Scheduled Tribes, population in Karnataka was above 23% (SC 16.38% + st 4.26% + Beda 2.49%). Therefore, the percentage of population of the Scheduled Castes and Scheduled Tribes was much higher than 24% as shown in the 1991 census. But, the same percentage of reservation of 15% and 3% for Scheduled Castes and Scheduled Tribes has been maintained. The material on record would further show that in view of the coming into force of the Constitution (Eighty Fifth Amendment) Act, 2001 with retrospective effect from 17.06.1995 providing consequential seniority in the case of promotion on the basis of reservation, the Karnataka Act No. 10 of 2002 under the title “The 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” was enacted. The said Act is deemed to have come into force from 17.06.1995. Section 3 of the said Act reads as follows:—

“3. Determination of seniority of the Government servants promoted on the basis of reservation;- Notwithstanding anything contained in any other law for the time being in force, the Government Servants belonging to the Scheduled Caste and the Scheduled Tribes promoted in accordance with the policy of reservation in promotion provided Tor in the Reservation Order shall be entitled to consequential seniority. Seniority shall be determined on the basis of the length of service in a cadre.

Provided that the seniority inter-se of Government Servants belonging to the Scheduled Castes and the Scheduled Tribes as well as those belonging to the unreserved category, promoted to a cadre, at the same time by a common order, shall be determined on the basis of their seniority inter-se, in the lower cadre.

Provided further that where the posts in a cadre, according to the rules of recruitment applicable to them are required to be filled by promotion from two or more lower cadre.

(i) the number of vacancies available in the promotional (higher) cadre for each of the lower cadres according to the rules of recruitment applicable to it shall be calculated; and

(ii) the roster shall be applied separately to the number of vacancies so calculated in respect of each of those lower cadres;

Provided also that the serial numbers of the roster points specified in the Reservation Order are intended only to facilitate calculation of the number of vacancies reserved for promotion at a time and such roster points are not intended to determine inter-se seniority of the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes vis-a-vis the Government Servants belonging to the unreserved category promoted at the same time and such inter-se seniority shall be determined by their seniority inter-se in the cadre from which they are promoted, as illustrated in the Schedule appended to this Act.”

32. Section 4 of the said Act provides for “Protection of Consequential seniority already accorded from 27th April 1978, onwards”. There is no merit in the contention of the learned senior counsel appearing for the petitioners that the provisions of the Karnataka Act No. 10 of 2002 would extend even beyond 17.06.1995 as the consequential seniority already accorded to the Government servants belonging to the Scheduled Castes and the Scheduled Tribes, who were promoted in accordance with the policy of reservation in promotion provided for in the Reservation Order with effect from 27.04.1978, which was held to be valid was protected and not disturbed under Section 4 of the said Act.

33. The learned Advocate General appearing for the respondent - State submitted that the seniority list prepared as on 17.06.1995 is not disturbed. The said fact is also not disputed by the learned senior counsel appearing for the petitioners and petitioner No. 1 - Sri. Nagaraj. The material on record would further show that the petitioners' in all these petitions were promoted subsequent to 17.06.1995. It is also clear from the material on record that controlling factors such as backwardness, inadequacy of representation and overall administrative efficiency have been considered by the State Government before making provision for reservation in promotion and consequential seniority in respect of persons belonging to Scheduled Castes and Scheduled Tribes. Section 3 of the Karnataka Act No. 10 of 2002 would clearly show that there is an in-built mechanism, which would ensure that whenever an occasion arises for promotion due to vacancy arising in the cadre, the authority has to consider as to whether there is adequate representation of Scheduled Castes and Scheduled Tribes to the extent of 15% and 3% respectively, and only if there is shortfall, the persons belonging to Scheduled Castes and Scheduled Tribes would be given accelerated promotion with consequential seniority and if the representation of SCs., and STs., in a cadre has reached 15% and 3% respectively, accelerated promotion and consequential seniority will not be provided. There is a direction to the State Government to collect statistics every year and statistics is being collected and the statement produced by the respondents would clearly show that since 1978, the reservation in respect of persons belonging to Scheduled Castes and Scheduled Tribes in the State of Karnataka has been maintained at 15% and 3% respectively. The statement would show that for the period from 1984 to 1999, the reservation provided to SCs and STs., has not exceeded 15% and 3% respectively and for the period from 2000 to 2004, the persons belonging to the Scheduled Castes occupying the posts in Civil Services was ranging between 15.78 % to 16.54 % and those belonging to the Scheduled Tribes was ranging between 4.14 % to 4.09 %. However, the said excess in the extent of reservation has been made good by the State in the subsequent years according to the statement of the learned Advocate General. Statistics is being collected every year by the State to find out as to whether there is adequate representation of persons belonging to Scheduled Castes and Scheduled Tribes and whether the extent of reservation made in favour of SCs., and STs., for providing accelerated promotion and consequential seniority, has exceeded 15% and 3% respectively. Therefore, the provisions of Section 3 of the Karnataka Act No. 10 of 2002 and the in-built mechanism incorporated therein ensures that the reservation made for persons belonging to Scheduled Castes and Scheduled Tribes for providing accelerated promotion and consequential seniority shall not exceed 15% and 3% respectively by stipulating that if the said extent is already represented, further accelerated promotion and consequential seniority would not be given to persons belonging to SCs. and STs. It should also be noted that even according to the averments made in the petitions, the reservation for promotion is provided only to the lowest category in Grade-I i.e., Assistant Executive Engineer and reservation is not provided for providing accelerated promotion and consequential seniority after the cadre of Assistant Executive Engineer.

34. The contention of the petitioners in these petitions is that if consequential promotion and seniority is given to the persons belonging to Scheduled Castes and Scheduled Tribes, the persons belonging to SCs. and STs., who are in Government service would have further promotion and the promotion of General Merit candidates would be restricted and a time may come that all the posts in higher echelons may be filled by the SCs. and STs., and promotional prospects of the General Merit category would get choked or blocked. The said contention cannot be accepted as admittedly, no reservation in promotion with consequential seniority, much less consequential seniority has been provided in the cadre above the cadre of Assistant Executive Engineers. The amendment introducing consequential seniority in Article 16(4A) under the Constitution (Eighty-fifth) Amendment Act, 2001 has been upheld by the Hon'ble Supreme Court in these petitions. Having regard to the amendment of Article 335 of the Constitution by the Constitution (Eighty-second) Amendment Act, 2000, which has been upheld by the Hon'ble Supreme Court in the present case, adequate representation to Scheduled Castes and Scheduled Tribes has been provided without affecting the overall administrative efficiency. The said proviso to Article 335 reads as under:

“Provided that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”

35. There is no pleading made in the writ petitions that the overall efficiency of service would be hampered by promoting persons belonging to Scheduled Castes and Scheduled Tribes.

36. In any view of the matter, having regard to the principles laid down by the Hon'ble Supreme Court upholding the above said constitutional amendments and the provision of accelerated promotion with consequential seniority and holding that:“catch-up” rule and “consequential Seniority” are not constitutional requirements; they are not implicit in clauses (1) and (4) of Article 16; they are not constitutional limitations; they are concepts derived from service jurisprudence; they are not constitutional principles; they are not axioms like, secularism, federalism etc.; obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution, the reservation made to the persons belonging to the Scheduled Castes and Scheduled Tribes, in view of the inadequacy of representation, backwardness and overall administrative efficiency in the State of Karnataka cannot be assailed. It is well settled that mere chance of promotion is not a fundamental right and mere chance that the higher echelons may be filled up by persons belonging to Scheduled Castes and Scheduled Tribes and chance of promotion of the persons belonging to General Category may be delayed due to accelerated promotion and consequential seniority given to persons belonging to Scheduled Castes and Scheduled Tribes, would not in any way affect the constitutional validity of the Karnataka Act No. 10 of 2002. The legislative power of the State for enacting the said Act is not disputed and there is no violation of any fundamental right or any constitutional right conferred upon the petitioners to hold that the Karnataka Act No. 10 of 2002 is unconstitutional and requirement of backwardness, inadequacy of representation and overall administrative efficiency has been satisfied by the Government and the reservation of 15% and 3% provided to persons belonging to the Scheduled Castes and Scheduled Tribes in promotional vacancies up to the cadre of lowest category of Group-A posts in each service and/or department of the State cannot at all be said to be unconstitutional or unreasonable. Mere fact that the chance of promotion of the petitioners would be delayed to the petitioners and in future, higher echelons of posts may be occupied by the persons belonging to Scheduled Castes and Scheduled Tribes in view of the accelerated promotion and consequential seniority provided to them, would not in any way affect the validity of the Karnataka Act No. 10 of 2002 in view of the in-built mechanism provided under Sections 3 and 4 of the said Act. The decision of the High Court of Himachal Pradesh, Shimla, in the case of H.P. SAMANAY VARG KARAMCHARI KALAYAN MAHASANGH v. STATE OF H.P. in CWP.T. No. 2628/2008 disposed of on 18.09.2009 and the decision rendered by the Division Bench of the Rajasthan High Court in the case of BAJRANG LAL SHARMA v. STATE OF RAJASTHAN in W.P. No. 8104/2008, disposed of on 5-2-2010, which has been confirmed by the Hon'ble Supreme Court in SLP (C) Nos. 7716/2010, 7717/2010, 7826/2010 & 7838/2010 by judgment dated 7-12-2010 and which is relied upon by the learned senior counsel for the petitioners is not helpful to the petitioners in the present case as in the said case, no statistics whatever was made available by the State Government to show that there was inadequacy of representation of the Scheduled Castes and Scheduled Tribes for providing accelerated promotion and consequential seniority and wherefore, the Himachal Pradesh High Court has held that till such statistics is made available, no Rule can be made for accelerated promotion and consequential seniority. However, in the present case pertaining to the State of Karnataka, the Government Order dated 27.04.1978 itself provided reservation in favour of persons belonging to Scheduled Castes and Scheduled Tribes in promotional vacancies at 15% and 3% respectively and subsequently, the Karnataka Act No. 10 of 2002 provides for consequential seniority with in-built mechanism to see that the maximum limit of reservation provided to persons belonging to Scheduled Castes and Scheduled Tribes in promotional vacancies at 15% and 3% respectively, which is held to be reasonable, is not exceeded. If the extent of reservation provided to the persons belonging to Scheduled Castes and Scheduled Tribes in view of the accelerated promotion and consequential seniority provided to them, exceeds 15% and 3% respectively, it is open to the petitioners to challenge the same in accordance with law. Mere fact that such instances may arise in future would not by itself be a ground to hold that the Karnataka Act No. 10 of 2002 is unconstitutional. Accordingly, we answer the point No. 2 for determination in the affirmative against the petitioners and in favour of the State. In view of our finding on point Nos. 1 and 2, we hold that the writ petitions are devoid of merit and pass the fallowing Order:—

37. Accordingly, all these Writ Petitions are dismissed with no order as to cost.