B K Pavithra v. Union of India

(i) The State government has not taken any step to correct the illegality of following a vacancy-based roaster since 27 April 1978, when the policy of reservation in promotions was introduced in the State Civil Services of Karnataka;

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

Counter Affidavit filed before this Court in B K Pavitra II that the reservation policy would be implemented on the principle of post-based reservations;

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

27 April 1978, the State government is obliged to apply the ‘creamy layer’ principle to disqualify those who fall within the creamy layer at the entry level and this exercise should be conducted at least from 17 June 1995, when the Seventy Seventh Amendment to the Constitution came into force; and

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

16(4-A) against Article 16(1) of the Constitution and to collect cadrewise data before implementing the Reservation Act 2018, the GO dated 15 May 2019 and the circular dated 24 June 2019 are silent on the above issues as a result of which, the State government is implementing the Reservation Act 2018 in an arbitrary manner.

8. Dr Dhavan relied on the inherent powers of this Court, as recognised by Order LV of the Supreme Court Rules 2013[9] to urge that the invocation of the jurisdiction of this Court in the form of the present MAs is based on the recourse to that inherent power. Reliance in this regard was placed on the decisions of this Court in Himachal Pradesh Scheduled Tribes Employees Federation v Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh10 and Abu Salem Abdul Qayyum Ansari v Central Bureau of Investigation11.

9. Mr Shekhar Naphade, learned Senior Counsel appearing on behalf of the applicant in MA 1324 of 201912, submitted that no data had been collected for the departments in which the applicants have been engaged as required by the judgment of this Court in Nagaraj v Union of India13. 9 “2013 Rules”

10. Mr Basava Prabhu S Patil, learned Senior Counsel and Mr Dinesh Dwivedi, learned Senior Counsel have opposed the MAs and urged that:

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

(ii) The applicants have sought to challenge the subsequent directions and clarifications issued by the State government through the present MAs. The MAs, it was urged, are not maintainable.

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

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

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

(iii) There is a bar contained in Order XII Rule 3 of the 2013 Rules for entertaining such an application, except for correcting arithmetical errors; and

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

12. Addressing the Court on the reliefs which have been sought in the MAs, Ms Jaising submitted that:

(i) The relief which has been sought in prayer (a) is founded on a fresh cause of action for re-drafting the seniority list;

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

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

B K Pavitra II since the Court did not deal with recruitment at the entry level, but with promotions and consequential seniority thereto; and

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

13. In rejoinder, Dr Dhavan submitted that:

(i) The concern is that the parties should not be required to go through endless stages of litigation; and

(ii) The judgment delivered by this Court on 10 May 2019 requires directions and even the State government has thought it fit so as to implement the Reservation Act 2018.

14. The rival submissions fall for consideration.

15. It is necessary for this Court to address at the outset the preliminary objection raised by the learned counsel opposing the MAs that, though styled as an application for directions, they seek to lay a substantive challenge to the subsequent directions and clarifications issued by the State government in implementing the Reservation Act 2018.

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

Rule 3 stipulates that, save for the purpose of correcting a clerical or arithmetical mistake or any error arising from an accidental slip or omission, no alteration or addition may be made to a judgment pronounced by the Court. This is in keeping with the principle of according finality to a judgment of the Court. The rule is made subject to Order XLVII of the 2013 Rules which contains provisions for the filing of a review before this Court. The parameters that guide the exercise of the review jurisdiction of this Court are contained in Order XLVII. Subject to the review jurisdiction of this Court, Rule 3 mandates that the Court “shall not” alter or delete any part of a judgment that has been pronounced, save for the purposes of minor corrections or accidental mistakes.

17. Order LV of the 2013 Rules titled ‘Power to Dispense and Inherent Powers’ contains provisions that empower this Court to adopt, notwithstanding anything contained in the Rules, such course as it considers just and expedient. Order LV, in so far as is relevant provides thus:

Order LV empowers this Court to, for sufficient cause, excuse parties from compliance with any of the requirements of the 2013 Rules and issue such directions as it considers just and expedient. Rule 6 of Order LV clarifies that nothing in the rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Rule 6 of Order LV mirrors the constitutional power conferred by Article 142 of the Constitution which empowers this Court to pass such decree or make such order as is necessary for doing complete justice.

18. Dr Rajeev Dhavan, learned Senior Counsel has urged that this Court may issue the directions sought in exercise of its inherent power. In effect, Order LV of the 2013 Rules has been pressed in aid of the submission that this Court may grant the reliefs sought in exercise of its inherent power to do complete justice.

19. This Court has, on several previous occasions, considered whether the filing of applications, though styled as applications for directions/ modification/recall/correction are, in substance, of a different nature and consequentially not maintainable. In Delhi Administration v Gurdip Singh Uban14 (“Gurdip Singh”), this Court disapproved of the practice of filing applications for “clarifications”, “modifications” and “recall” of final judgments and orders, noting that this was an attempt to bypass the provisions for review contained in Order XL of the Supreme Court Rules 1966. The Court observed:

20. The view of the two judge Bench in Gurdip Singh has been reiterated by this Court in Zahira Habibullah Sheikh v State of Gujarat15, Common Cause v Union of India16, Ram Chandra Singh v Savitri Devi17 and APSRTC v Abdul Karim18.

21. Recently, in M C Mehta v Union of India19, a two judge Bench of this Court rejected an application filed before it seeking a clarification that the applicant is permitted to carry out construction on the land in question in the following terms: “…the view expressed by this Court in Gurdip Singh Uban cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications to side-step the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. In our opinion, the nomenclature given to an application is of absolutely no consequence-what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation. (Emphasis Supplied)

22. The Court noted the growing practice, despite the decision of this Court in Gurdip Singh, of filing applications before this Court with different nomenclatures in order to bypass or circumvent the procedure envisaged for the consideration of the reliefs sought. This Court clarified that the nomenclature of an application is of no consequence and courts must assess the contents and reliefs sought in the application to determine what is the true nature of the application.

23. Though the cases adverted to above were rendered in the context of applications before this Court which were held to be, in substance, applications 19 (2019) 2 SCJ 640 for the review of a judgment, the principle of law that emerges is that courts may scrutinise applications to assess whether they, in substance, seek a relief that may not be granted in those applications. Where the court is of the opinion that the nature of the application differs from its nomenclature and there is a method prescribed in law for the grant of the reliefs sought, it may hold that the application before it is not maintainable.

24. In the present case, the basis of the MAs is founded in the steps taken by the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II. The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which were issued subsequent to the decision of this Court.

25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27 February 2019 which stipulated instructions for the implementation of the Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as upheld by this Court, was to be operationalised in terms of the instructions contained in the GO dated 27 February 2019. By the circular dated 24 June 2019, a list of FAQs and their answers were annexed to the Schedule which concerned the preparation of the seniority list in accordance with the GO dated 27 February 2019.

26. The judgment of this Court in B K Pavitra II concerned the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. The present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018. This is clear from the nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which are subsequent to the judgment of this Court in B K Pavitra II.

27. The remedy, styled as directions, sought by the applicants cannot lie in the form of MAs. Prayer (a) which seeks a direction to “re-work” all promotions on the basis of ‘post based reservations’ impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre. Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level. As it has been noted above, the judgment of this Court in B K Pavitra II concerned the grant of consequential seniority and not the applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018, compliance with the decision in Nagaraj.

28. The present MAs are, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018 through the GO dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are aggrieved by the steps which have been taken by the State government, it is open to them to pursue a substantive remedy for challenging the steps taken by the State government in independent proceedings.

29. We are clearly of the view that MAs of this nature are not maintainable. Having come to this conclusion, no need arises for this Court to adjudicate upon the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel appearing for the applicants.

30. We consequently dismiss the Miscellaneous Applications, but leave it open to the applicants to pursue such independent remedies as may be available in the law. We clarify that no observations have been made on the merits of the matter. Pending application(s), if any, shall stand disposed of. …..…..…....…........……………….… ........ J. [Uday Umesh Lalit) …..…..…....…........……………….… ........ J. [Dr Dhananjaya Y Chandrachud] New Delhi; March 19, 2020.