S.C. Dharmadhikari, J.—By this writ petition under Article 226 of the Constitution of India, the petitioner-Association and its office bearers are seeking the following reliefs :
(a) this Hon''ble Court be pleased to issue a Writ of Certiorari or any such other appropriate writ, order or direction calling for the records relating to the issuance of the OM dated 21.1.2002 and the actions taken in pursuance to OM dated 21.1.2002, this Hon''ble Court be pleased to quash and set aside the OM dated 21.1.2002 being "Ex A1" hererto;
(b) this Hon''ble Court by a writ of Mandamus or any such other appropriate writ, order or direction, be pleased to quash and set aside letter at Ex F and all the actions taken as per OM dated 21.1.2002 or otherwise including promotions and fixation of seniority being against judgment at Ex A2 and illegal, erroneous, bad-in-law and arbitrary;
(c) that this Hon''ble Court be pleased to issue Writ of Mandamus directing the Respondents to recalculate seniority and effect promotions as per OMs dated 30.1.1997 and 2.7.1997 being Ex "J" and Ex "K" hereto;"
2. The petitioners have stated in the writ petition that their Association protects and safeguards the rights of non Scheduled Caste and non-Scheduled Tribe employees of the Board of Trustees of the Mumbai Port Trust (for short "MPT employees"). It is stated that the first respondent is a State within the meaning of Article 12 of the Constitution of India. The second respondent, Chairman of the said MPT as also the Port Trust complies with certain policies, rules and regulations which are brought into force by the Union of India / Central Government, particularly through its Ministry of Shipping and Transport and the Department of Personnel, Training, Ministry of Personnel, Public Grievances and Pensions, Government of India. The latter Ministry evaluates and formulates the policies particularly of reserving certain posts for Scheduled Castes / Scheduled Tribes and Other Backward Classes popularly known as the constitutional reservations.
3. The respondent Nos.5 and 6 represent the Scheduled Castes and Scheduled Tribes, so also Other Backward Classes employees and try and protect their welfare and interests. They came to be impleaded as party-respondents on the applications made in that behalf by these respondents.
4. The petitioners state that by the Seventy Eight and Eighty-Fifth Amendment to the Constitution of India, 1950 Articles 16(4-A) and 16(4-B) were inserted enabling the State to make provision for reservation in matters of promotion with consequential seniority to any class or classes, particularly the Scheduled Castes and Scheduled Tribes and which, in the opinion of the State, are not adequately represented.
5. It is stated that pursuant to this constitutional amendment, an Office Memorandum (for short "OM") came to be issued by the fourth respondent and copy of the same is annexed to the writ petition as Annexure A-1.
6. It is stated that the OM dated 3rd October, 2000 and 21st January, 2000 along with newly introduced Articles in the constitution were challenged, inter alia, by the petitioners in the Hon''ble Supreme Court by Writ Petition No. 440 of 2002. That was clubbed along with other petitions, particularly Writ Petition No.61 of 2002 and 58 others. On this batch of petitions, a Constitution Bench judgment came to be delivered. That judgment of the Hon''ble Supreme Court is in the case of M. Nagaraj & Ors. v. Union of India & Ors., reported in (2008) 8 SCC 212 : AIR 2007 SC 71 We shall refer to this judgment for short as M. Nagaraj''s case.
7. The petitioners highlight the conclusions in this Constitution Bench judgment in M. Nagaraj''s case to submit that effect has to be given to it inasmuch as if in promotions reservations are made by the concerned PSU/authorities like MPT without application of mind and without carrying out the exercise directed under the judgment, then, those actions have to be quashed and set aside or revisited. The petitioners state that on 21st December, 2010, and on 26th May, 2011, they repeatedly brought to the notice of the respondents that the directions in the Constitution Bench judgment in M. Nagaraj''s case have not been implemented. It is stated that because of the inaction on the part of respondent No.1, an anomalous situation has been created. The interpretation of the promotion policy is not in accordance with law. In paragraph 7 of the writ petition, the petitioners state that if one takes for illustration, the posts of Office Superintendents on the establishment of the respondent No.1, then, there are six posts of Office Superintendents. All the six posts, according to the petitioners, have been filled in by promoting six Scheduled Caste / Scheduled Tribe candidates. This amounts to 100% reservation. After noticing this fact, the petitioners had addressed a letter, but even the grievance in the same has not been redressed.
8. Rather, on 18th September, 2007, the petitioners were informed that the matter was referred to the Department of Personnel & Training, Government of India and that Department has opined that the Eighty-Fifth Constitutional Amendment was upheld by the Hon''ble Supreme Court. Therefore, the Scheduled Caste / Scheduled Tribe candidates were entitled to the consequential seniority in the promotional post. Therefore, there is no requirement of modifying or effecting any change in the Executive instructions issued on 21st January, 2002. Annexure-E is a copy of this letter.
9. Thereafter, the petitioners sought certain information under the Right to Information Act, 2005, and their queries were replied on 29th / 30th March, 2011, stating that it is true that the scheduled strength of the Office Superintendents in the Docks Department is six. The number of posts / vacancies were marked for post-based roster of reserved category, namely, Scheduled Caste first replacement and even though roster points were earmarked as non-reserved (general) those points were utilised for Scheduled Caste / Scheduled Tribe candidates by virtue of seniority and based on the OM dated 21st January, 2002. It is stated that all the Scheduled Caste / Scheduled Tribe candidates rank senior by virtue of the implementation of this OM results in the general category employees not figuring in the post-based roster. Since Scheduled Caste / Scheduled Tribe candidates were promoted in order of seniority in the said feeder post, the question of ceiling limit of fifty percent in promotional vacancies did not arise.
10. It is, therefore, apparent that the petitioners, not satisfied with this response, also addressed a letter dated 27th April, 2011, and the above letters having failed to evoke any response, approached advocates for legal advice. The advocate''s notice, copy of which is annexed as Annexure-H dated 11th July, 2011, was replied on 3rd August, 2011, by the first respondent in which it categorically states that it is bound by the understanding and interpretation of the Union of India of the judgment delivered in M. Nagaraj''s case. Hence MPT being an organization under the Union Ministry of Shipping and Surface Transport, it is bound to comply with these OMs.
11. It is in these circumstances and terming these actions as not only bad in law but contumacious, emphasizing that there is gross injustice to the general category employees despite they putting in several years of honest and diligent service, that the writ petition is filed.
12. Once again in paragraph 16 of this petition, the grievance based on the appointments by promotion in the grade of Office Superintendent and Assistant Office Superintendent is highlighted. This averment is stated to be based on the information obtained from the concerned department of the MPT under the Right to Information Act, 2005.
13. The petitioners in paragraph 18 of this petition state that once the actions are based on the OM dated 21st January, 2002, those being unsustainable in law, then, this Court after quashing and setting aside the OM should direct undoing of the wrongs. Thereby, promotions be awarded to the non-Scheduled Caste / Scheduled Tribe candidates with restoration of their seniority and consequential benefits. The petitioners seek a relief that the respondents should determine the seniority and give promotions as per OM dated 30th January, 1997, and OM dated 2nd July, 1997, pertaining to seniority and reservation roster and submit that these governed the field prior to the OM dated 21st January, 2002, and its interpretation.
14. It is on these averments that the writ petition containing the above prayers has been filed in this Court. The petition, initially filed on 23rd February, 2012, was later on amended on 16th March, 2012. That was to annex a copy of the OM dated 21st January, 2002. The contesting respondents were served with a copy of the writ petition.
15. The first respondent-MPT filed its affidavit-in-reply on 31st December, 2012. Prior to reiterating the legal position as emanating from the above OMs, the first respondent has raised an objection by pointing out that the petitioner-Association has not annexed a list of such employees who are its members. Eventually, grievance of in-service candidates has been projected. Those candidates are entitled to reliefs in law. Though an Association seeking to espouse their grievance and placing it before a Court of law can file and maintain such petitions, but such Associations are duty bound to furnish, inter alia, a list of members, made of collection of subscription in order to ascertain the representative strength, else it would mean that an organization other than the representative or recognised Association, several other Associations come forward and seek to espouse the cause of the aggrieved individuals. It is common ground that individuals have not approached this Court in such cases. Therefore, whether such individuals have authorised any Association or otherwise has not been ascertained and ought to be ascertained before going into the merits of the case.
16. Then, the legal position is highlighted and on a strength of the Major Port Trusts Act, 1963, it is submitted that in the scheme of the MPT Act, the Port Trust has to abide by the directions issued to its Board by the Central Government. The Central Government has been conferred with the power to make rules. The Central Government''s power to make rules is absolute and to be found in section 122. As far as the general power to make regulations is concerned, that is conferred in the Board by section 123. The Board may make regulations consistent with the MPT Act for all or any of the matters or purposes enumerated in section 123. One of the purposes, inter alia, is the manner in which the Port is administered and the functions have to be discharged. There is a distinct power conferred by section 123-A in the authority to make regulations consistent with the Act for all or any of the purposes mentioned in section 123-A. Those are pertaining also to the salaries and allowances payable to and other conditions of service of the officers and other employees of the authority under section 47-H(2). It is, therefore, apparent from the scheme of this Act, according to the first respondent, that the Central Government can direct making of regulations. That the Central Government can make the first regulations. It is stated that the Central Government has thus made the first regulations and which are already referred to in the petition, The first regulations are styled as the Mumbai Port Trust Employees (Recruitment, Seniority and Promotion) Regulations, 1977. Now, the Regulations on this subject are the Mumbai Port Trust Employees (Recruitment, Seniority and Promotion) Regulations, 2010. These and the power traceable to the MPT Act enable the MPT to abide by the above OMs. Hence, it is not the fault of the MPT for it has only abided by these OMs. So long as the OMs are in force, the MPT cannot be expected to disregard them. The specific stand in that behalf is to be found in paragraph 8 running page 136 of this affidavit-in-reply. It is, therefore, submitted that some misconceived and ill-advised allegations have been made against the MPT.
17. This Court was unable to proceed in this matter as it found that the rival Association have revealed their stand. There was an affidavit extensively referring to the reservation policy and the decisions of the Government as also the MPT. That affidavit has been filed by the added respondents, namely, respondent Nos.5 and 6. However, for a long time there was no affidavit in reply filed by the Union of India.
18. An additional affidavit is also filed by the petitioners.
19. Prior to that affidavit being referred, it would be advantageous to refer to an affidavit filed in this Court on 30th September, 2016, by the Department of Personnel & Training, Government of India. Since this Court had directed the Government of India to outline its policy and decision on the subject noted above, this affidavit is stated to be filed. In paragraph 4 of this affidavit, it is stated that the OM dated 21st January, 2002, has been issued in pursuance of the Eighty-Fifth Amendment to the Constitution. The Amendment was approved by the Parliament in the year 2001. After this Eighty-Fifth Amendment, the Department of Personnel & Training issued this OM providing that the members of the Scheduled Caste / Scheduled Tribe would get the benefit of reservation in promotion with consequential seniority. It is stated that this OM is based on a constitutional amendment. That has also been upheld by the Hon''ble Supreme Court in M. Nagaraj (supra). Hence, in order to provide impediment free reservation in promotion to Schedule Caste / Schedule Tribe candidates, a bill, namely, The Constitution (117th Amendment) Bill, 2012, was introduced in the Rajya Sabha on 5th September, 2012. However, it could not be discussed in the Lok Sabha and lapsed on the dissolution of the 15th Lok Sabha. It is stated that subsequent to the lapsing, the matters emanating from the judgment in M. Nagaraj''s case are under examination of the Government. Yet, this affidavit states that in the light of the observations and directions of the Hon''ble Supreme Court in the judgment of M. Nagaraj, it is stated that rigorous modalities are prescribed for inclusion of communities in the list of Scheduled Caste / Scheduled Tribes. For the Scheduled Caste, one of the important determinant is the traditional practise of untouchability. For the Scheduled Tribe backwardness is an important determinant. The determination of backwardness of a caste / tribe is primarily the responsibility of the concerned State Government or the Union of Territory. Unlike in the case of the other backward classes, there is no separate central list of the Scheduled Caste / Scheduled Tribe. As per Ministry of Social Justice and Empowerment''s letter dated 17th December, 2015, in drawing up the list of Scheduled Caste, the test applied is extreme, social and economic backwardness arising out of traditional practices of untouchability. Thus what is highlighted in this affidavit is the process by which Scheduled Castes / Scheduled Tribes are notified or the list in that regard is either modified or changed from time to time. It is stated that the directions in that regard and from the National Commission for Scheduled Castes or National Commission for Scheduled Tribes are being abided by the concerned Department.
20. It is stated that there is an inadequacy of representation inasmuch as per instructions issued by the Ministry of Home Affairs dated 25th March, 1970, the percentage of reservation for Scheduled Caste and Scheduled Tribe in respect of promotional posts, in which reservations are applicable, shall be 15% and 7.5% respectively. There are further instructions issued by the Department of Personnel & Training dated 2nd July,1997, which state that the Reservation for the entitled categories is to be maintained, then, the prescribed percentage and the total shall not in any way exceed fifty percent (50 %) of the cadre. It is in these circumstances and the mandate of Article 335 being highlighted that what this affidavit states is that the issuance of the OM is in order and cannot be faulted.
21. The petitioners filed an affidavit annexing therewith the copy of the Registration Certificate, the letter of authority issued to petitioner No.2 by petitioner No.1. It has also annexed a list of members at Annexure-C. It is stated that the cause of these employees or members is being projected and highlighted. It is clarified that the petitioners are not seeking interpretation of the judgment of the Constitution Bench in M. Nagaraj, but its implementation. That is how this additional affidavit is filed.
22. It is on this material that we have heard the counsel appearing for the parties.
23. Mr. Sanglikar learned counsel appearing for the petitioners submits that the issue raised in this writ petition is squarely covered by the Constitution Bench judgment in the case of M. Nagaraj. He would submit that this judgment has been followed in several subsequent judgments of the Supreme Court of India. In fact, the Supreme Court refused to re-consider the view taken by the Constitution Bench in M. Nagaraj. He would submit that once OM dated 21st January, 2002, which was subject matter of the judgment in M. Nagaraj cannot stand in the light of the conclusions recorded by the Constitution Bench, then, all actions and orders giving effect to that OM deserve to be declared as unconstitutional. That OM itself cannot survive to the extent indicated in the Constitution Bench judgment. Mr. Sanglikar would submit that the Port Trust is not giving effect to the Constitution Bench judgment only because the Central Government directives bind it. It is the Central Government which is causing a breach and violation of the Constitution Bench judgment and, in turn, by not allowing the MPT to follow it. Mr. Sanglikar has relied upon the averments in the writ petition, particularly the amended page 20-A to submit that the Office Memorandum is on the subject of seniority of the Scheduled Caste / Scheduled Tribe Government servants on promotion by virtue of rule of reservation / roster. The seniority of a person appointed to a post is determined according to the general principle and that is what the preamble of this Office Memorandum states. The seniority is determined by the order of merit indicated at the time of initial appointment and seniority of persons promoted to various grades is determined in the order of selection for such promotion. Thus, according to this OM and pursuant to certain prior instructions, persons appointed through an earlier selection would be senior to those promoted through subsequent selection. This position was rejected subsequent to the judgment of the Supreme Court in the case of Union of India v. Virpal Chouhan AIR 1996 SC 352 and it was decided by the Department of Personnel & Training to modify the then existing policy by addition of a proviso to the general principle enunciated above. That is if a candidate belonging to the Scheduled Caste / Scheduled Tribe is promoted to an immediate higher post / grade against a reserved vacancy earlier than his senior general / OBC candidate who is promoted later to the said immediate higher post / grade, the general / OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste / Scheduled Tribe in the immediate higher post / grade. The submission of Mr. Sanglikar is that this position is in no way disturbed by the judgment of the Constitution Bench. It is rather maintained. Thus, accelerated promotion does not guarantee accelerated seniority. However, to negate the effect of this general principle and relying on the Constitution Amendment by which the Government is conferred with an enabling power to provide for reservations in promotions [Article 16(4-A)] the Government has allowed the Scheduled Castes / Scheduled Tribes to retain the seniority in the case of their promotion by virtue of rule of reservation. Thus, they would rank senior by virtue of an earlier round of promotions against a reserved post. This is directly contrary to the judgment in M. Nagaraj (supra). It is submitted that the 2002 OM completely overlooks the fact that the OM dated 30th January, 1997, was in force and operative till the subject OM was issued. The latter OM of 2002 was specifically in issue in M. Nagaraj. The conclusions reached in M. Nagaraj have been relied by Mr. Sanglikar to submit that the impugned OM cannot stand and must give way to the earlier settled position in law. Mr. Sanglikar, therefore, submits that the representations were specific and in those representations it was highlighted as to how effect has to be given to the judgment. The law of the land cannot be ignored and brushed aside. Further, Mr. Sanglikar complains that the constitutional embargo and outer limit of fifty percent has been crossed and in some cases and some posts there is hundred per cent reservation. He, therefore, relied upon the averments in the writ petition once again and some annexures, particularly at pages 95 and 96 of the paper-book. Mr. Sanglikar submits that there is complete misinterpretation and misreading of the judgment which could be termed a deliberate act as well. That is how from time to time it was brought to the notice of the first respondent that this position needs to be reversed.
24. Mr. Sanglikar submits that though an attempt was made by the MPT to seek a clarification, the Government of India in the Ministry of Shipping, Road Transport and Highways, Department of Shipping (Ports) issued a communication on 18th September, 2007, addressed to the Chairman of the MPT. In that, the Central Government stated that the Supreme Court has upheld the constitutional validity of the Eighty-Fifth Amendment as also other related amendments challenged before it in the matter of consequential seniority on promotion by applicability of rule of reservation. That is why no alteration is required to the OM dated 21st January, 2002.
25. Mr. Sanglikar submits that one more issue that has been raised and squarely in the writ petition so also in the representations is with regard to non adherence to the constitutional mandate. While it is true that the State can provide for reservation in promotion but that is subject to an application of mind by taking into consideration the representation given to above classes in the services. It is only when this representation is inadequate that the State can step in. The finding that it is inadequate has to be reached by due consideration of a quantitative data. That is how this constitutional provision has been interpreted in M. Nagaraj''s case. That binds everybody by virtue of Article 141 of the Constitution of India. For these reasons he would submit that there being no compliance, this Court should not uphold any contrary actions. He has faulted the clarification given by the Central Government on 18th September, 2007. Once there is a fundamental flaw which cannot be ignored, then all the more the impugned actions cannot be sustained. He would submit that the reservation that is contemplated by Article 16(4-A) ought to be such as would not negate the constitutional guarantee of equality in matters of public employment. So far as the reserved category is concerned, their right qua the reserved post has to be conceded but that right as in cases, is restricted to their claims being considered. If they have only a right to be considered for appointment to a reserved or non-reserved post, then, a balancing act will have to be performed. There is no prohibition in such candidates seeking appointment even to non-reserved posts, but when they are selected and promoted their seniority cannot be adjusted in the manner now suggested. In that regard, our attention is invited by Shri Sanglikar to the affidavits filed in reply to this petition.
26. For all the above reasons, he would submit that the writ petition be allowed. Heavy reliance is placed by Mr. Sanglikar on the judgment in the case of M. Nagaraj and the subsequent decisions following the same.
27. On the other hand, Mr. Talsania, learned senior counsel appearing for the first respondent would submit that going by the provisions of the MPT Act, it is the Central Government which has to give suitable and necessary directions. Whenever any directions are given and issued, those bind the Port Trust. He has relied upon the affidavit-in-reply and the sections and provisions of the MPT Act which empower the Central Government to issue directions even in matters of employment of officials and their service conditions. Therefore, he would submit that MPT has no discretion or choice, but to abide by the Government decisions and the OMs. Consequently, this Court should not take a view that any deliberate inaction or act is performed so as to allegedly defeat the constitutional mandate or the binding judgments.
28. This writ petition is mainly contested by respondent Nos.5 and 6, but prior thereto we must note the stand of the Union of India. Mr. Bhate appearing for the Union of India has submitted that this Court should not pronounce its verdict on this vexed issue simply because on 18th November, 2016, the Department of Personnel & Training has informed him in writing that same issue is pending before the Hon''ble Supreme Court of India. The All India Federation of Customs and Central Excise have filed before the Hon''ble Supreme Court three petitions challenging the judgment of the Supreme Court in M. Nagaraj. One of the Special Leave Petitions is likely to be taken upon on 14th December, 2016. Therefore, this Court should postpone consideration of the issue involved in this petition until a further authoritative pronouncement by the Hon''ble Supreme Court.
29. Secondly, Mr. Bhate would submit that the constitutional provision and which has been heavily relied upon by Mr. Sanglikar ensures equality of opportunity in matters of public employment. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) sets out a positive mandate of non-discrimination and on grounds only of religion, race, caste, sex, descent, place of birth etc. However, nothing in the above two clauses and as clarified by clause (3) shall prevent the Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government or any local or other authority, any requirement as to residence within that State or Union territory prior to such employment or appointment. Clause (4) of Article 16 states that nothing in this Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Hence the power to provide for reservation even in such employment or appointment to office under the State is not disputed. Further, clause (4-A) enables the State to make provision for reservation in matters of promotion with consequential seniority under any class or classes of posts in the services under the State in favour of Scheduled Castes and Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Though it is not an issue for our consideration, Mr. Bhate has relied upon all the clauses of this Article to submit that the constitutional amendment by which clause (4-A) was introduced came to be challenged and that has been upheld even in matters falling in the substitution of this clause by the Constitution (Eighty-Fifth Amendment) Act, 2001. Both have not been disturbed or interfered with. In such circumstances and to protect the rights of the backward class of citizens and particularly the Scheduled Castes and Scheduled Tribes that promotional opportunities are granted to them. This carries forward the mandate of equality rather than defeats it. Therefore, relying upon the Constitution Bench judgment, the petitioner cannot claim any relief.
30. It is this argument which is taken ahead by Dr. Mane appearing on behalf of respondent Nos.5 and 6. He would submit that the writ petition is not maintainable. In that regard, our attention is invited to the prayers in the writ petition. He would submit that the averments and the prayers, considered as a whole, would denote that the petitioner-association is not espousing the cause of any individual official. It is only raising a general and vague challenge. It is on the basis of general pleas that a declaratory relief is purportedly sought. However, even that relief cannot be granted bearing in mind the wording of prayer clauses (a) to (c). Relying upon the affidavit-in-reply, it is submitted that the writ petition has been filed and for the first time by a non-SC / ST Employees Association. That would indicate as to how a constitutional provision and protection guaranteed thereby is sought to be defeated. The impugned OM is issued by the Department of Personnel & Training, Government of India. The MPT Employees (Recruitment, Seniority and Promotion) Regulations, 1977 and the present MPT Employees (Recruitment, Seniority and Promotion) Regulations 2010 replacing the 1977 regulations are expressly approved and notified by the Central Government. It provides that orders issued by the Central Government for reservation in appointment in favour of the Scheduled Castes, Scheduled Tribes and Other Backward Classes will mutatis mutandis apply to all appointments in the MPT. It is submitted by Dr. Mane that on 30th January, 1997, the DOPT issued directions to the first respondent-MPT stating that if a candidate belonging to Scheduled Caste or Scheduled Tribe was promoted to an immediate higher post or grade against a reserved vacancy earlier than his senior general/OBC candidate and thereafter the said senior general candidates/OBC candidate catches up, he would regain his seniority over such earlier promoted candidate belonging to Scheduled Caste / Scheduled Tribe. However, after this direction, the Constitution was amended. The constitutional amendment as highlighted by Mr. Bhate are relied upon by Dr. Mane to submit that this position in the OM dated 30th January, 1997 stands replaced by the subsequent OM of 21st January, 2002. The attempt made by the present petitioner to quash and aside this latter OM of 2002 assumes that once that is quashed and set aside the position prevailing from 1997 to 2002 would revive. However, that does not automatically take place. Nothing that has been done during the subsistence of OM of 2002 and while implementing it can be unsettled much less interfered with or disturbed by a general challenge raised in the writ petition. This Court, therefore, should not adjudicate the issue at all. Dr. Mane has also relied upon subsequent OMs, copies of which are annexed to the affidavit of respondent Nos.5 and 6, namely, the OM dated 11th July, 2002. It is submitted that this petitioner association had filed a writ petition and which was tagged along with the main matter in M. Nagaraj''s case. This petitioner association was very much before the Supreme Court while M. Nagaraj was decided. It was aware of the position emerging from the Constitution Bench judgment. Yet, it files this writ petition and seeks further interpretation of the same judgment. Once a judgment is pronounced by the Hon''ble Supreme Court none, including this Court, can initiate a process of interpreting it. In the circumstances and when the first respondent specifically sought an advise from the DOPT after the judgment in M. Nagaraj''s case and that clarification has been duly given, then, all the more this Court should not countenance any of the submissions of Mr. Sanglikar. Dr. Mane places heavy reliance upon the letter dated 27th April, 2011, by which the MPT informed the petitioner about the directions received from the Central Government and stated that it was acting in compliance with the same. It is submitted that all this having taken place to the knowledge of the present petitioners, they cannot complain by institution of a fresh petition. Dr. Mane has taken us through the affidavit which is filed by respondent Nos.5 and 6. He brought to our notice the averments and statements in paragraphs 9, 10 and 11 of this affidavit to submit that the petitioner does not make any reference to the OMs dated 2nd July, 1997 and 10th August, 2010.
31. Finally, it is submitted by him that the writ petition proceeds on the erroneous footing that there is a hundred per cent reservation or the inadequacy in matter of promotions has not been considered by the first respondent. Relying upon paragraph 15 of this affidavit-in-reply, it is submitted that as far as the Traffic Department is concerned, there are six posts of Office Superintendents. Five posts have been occupied by Scheduled Castes. However, only one post is occupied under reservation and rest four posts have been occupied as unreserved on the basis of feeder cadre seniority as per OM dated 10th August, 2010, effective from 2nd July, 1997. One post is occupied by Scheduled Tribe on the basis of feeder cadre seniority. As per L Stage Roster, one post is reserved for Scheduled Caste and that is occupied by Scheduled Caste candidate. Therefore, there is no excess or representation to the reserved category. Dr. Mane has elaborated this by pointing out that if a general category candidate and candidate belonging to Scheduled Caste / Scheduled Tribe compete for an unreserved post and in the process of selection and appointment, the Scheduled Caste candidate is appointed, then, it is not as if there is hundred per cent reservation. Secondly, his seniority is then adjusted. This is a technical matter. Making and implementing a roster and particularly reservation policy cannot be brought before a Court of law. It is best left to the decision of experts in the field. It is the employer''s discretion and once that employer has acted in accordance with the service rules and regulations and the constitutional provisions, then, how the adjustments are made cannot be questioned unless there are clear allegations of mala fides or arbitrariness or perversity by individual aggrieved officers. That is not how the challenge can be raised. This Court, in the absence of facts and figures and relevant data should not presume that there is hundred per cent reservation or denial of equality. Dr. Mane would, therefore, submit that in the written note tendered, he has highlighted this aspect and for the additional reasons set out in the written note, this Court should dismiss the writ petition. Dr. Mane has placed reliance upon the decision in the case of R.K. Sabharwal & Ors. v. State of Punjab & Ors. reported in (1995) 2 SCC 745 : AIR 1995 SC 1371 He has also relied upon the OM dated 21st March, 2007.
32. For properly appreciating the rival contentions, we would have to make a reference first to the MPT Act. The MPT Act and which is enacted for the purposes of making provision for construction of Ports, authorities for certain major Ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith would enable the Board of Trustees and Committees thereof to take such decisions as are necessary to carry forward this mandate. There is no dispute that by Chapter III of this Act - Staff of the Board - the power to make appointments, power to promote, grant leave etc. to employees of the Board, power to create posts and power to make regulations is conceded. That is the clear mandate of the sections appearing in this Chapter. The definitions appearing in the definition section (Section 2) would indicate as to how the Board, in relation to a port, means the Board of Trustees constituted under the MPT Act for that port. The word ''Authority'' means the Tariff Authority for Major Ports constituted under section 47-A. It is, therefore, apparent that the Act enables the competent authorities to create posts and also grant promotions. This would ensure and sub-serve the purpose and object of the Act. An efficient and effective so also proper management by the port authorities would require it to make such a stipulation and for appointment of staff. This is, however, subject to the control of the Central Government. Mr. Talsania, therefore, is right in contending that so long as there are certain directions issued by the Central Government even in matters of service conditions of staff, then, those have to be followed and implemented. The larger power to the Central Government being conceded and not disputed that would enable the Central Government to frame the initial regulations and also give directions. As far as this aspect is concerned, there is no dispute between the parties.
33. Equally, it is conceded that the regulations that have been made in 1977 and later on in 2010 provide that the policies of the Central Government in matters of reservation of posts for Scheduled Castes / Scheduled Tribes equally assuring promotions to these classes would mutatis mutandis apply to the MPT and its staff. Such reservation policies have to be, therefore, implemented. That subserves the larger public interest. It also ensures equality of opportunity in matters of employment. Once these powers are conceded, then, no further reference is required either to the MPT Act or to the staff regulations.
34. The core issue is with regard to the understanding and interpretation by the MPT and prior thereto, by the Central Government of the mandate flowing from Article 16 of the Constitution of India. For ready reference we reproduce this Article as a whole:
"16. Equality of opportunity in matters of public employment - (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.
(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) of clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."
35. We are essentially concerned with clause (4-A). This clause was inserted by the Constitution (Seventy-Seventh Amendment) Act, 1995 with effect from 17th June, 1995. Therefore, the State is not prevented from making any provision for reservation, but part of this clause was substituted by the Constitution (Eighty-Fifth Amendment) Act, 2001 with retrospective effect from 17th June, 1995. Therefore, the words "In matters of promotion with consequential seniority to any class or classes or posts in the services under the State",appear in this clause thereafter. Thus, reservation in promotion can be made. That can be in favour of Scheduled Castes and Scheduled Tribes, but is permissible only after the State forming an opinion that these classes are not adequately represented in the services under the State.
36. We would now refer to the Constitution Bench judgment in the case of M. Nagaraj. M. Nagaraj was a judgment delivered by the Constitution Bench following a comprehensive challenge raised by several parties and in writ petitions. The Hon''ble Supreme Court had before it such challenge inasmuch as the petitions before the Supreme court sought to quash the Constitution (Eighty-Fifth Amendment) Act inserting the above Article retrospectively from 17th June, 1995, providing reservation in promotion with consequential seniority. The essential argument was that this is unconstitutional and violative of the basic structure. The impugned amendment reverses the decisions of the Supreme Court in Union of India v. Virpal Singh Chouhan [(1995) 6 SCC 1]; Ajit Singh Januja v. State of Punjab styled as Ajit Singh (I) [(1996) 2 SCC 715]; Ajit Singh (II) v. State of Punjab (1997 7 SCC 209); Ajit Singh (III) v. State of Punjab [(2000) 1 SCC 430; Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 and M.G. Badappanavar v. State of Karnataka (2001) 2 SCC 666. It was submitted before the Supreme Court that the Parliament has appropriated the judicial power to itself. It has acted as an Appellate Authority by reversing the judicial pronouncements of the Supreme Court by the use of power of amendment and that violates the basic structure of the Constitution. The amendment is, therefore, constitutionally invalid and is liable to be set aside. The petitioners before the Supreme Court further pleaded that the amendment seeks to alter the fundamental right to equality which is part of the basic structure of the Constitution. The petitioners urged that equality in the context of Article 16 (1) connotes accelerated promotion so as not to include consequential seniority. By attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality as guaranteed by Article 14 read with Article 16(1). Then the argument was that by providing reservation in matters of promotion with consequential seniority, there is impairment of efficiency. Thus the constitutional amendments and challenged as above fell for determination.
37. After extensively noting the arguments, the Hon''ble Supreme Court framed the key issue and that was "whether by view of the constitutional amendment, the power of the Parliament is so enlarged so as to obliterate any or all of the constitutional limitations and requirements". After reiterating the principles of judicial review, the Hon''ble Supreme Court considered whether equality is a part of the fundamental features or the basic structure of the constitution and concluded that the concept of reservation would indicate that it is an anti-poverty measure. It is an affirmative action and that can have a different connotation. Reservation is already provided by Article 16(4). After analysing all these Articles, the Supreme Court came to the conclusion that reservation is necessary for transcending caste and not for perpetuating it. A reservation has to be used in a limited sense otherwise it would perpetuate casteism in the country. Reservation is underwritten by a special justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16 and 16(4-A) is enabling. The discretion of the State is, however, subject to the existence of backwardness and inadequacy of representation in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. So long as the parameters in Article 16(4) and 16(4-A) are maintained, then, reservation and as a matter of policy cannot be questioned. But, the Supreme Court clarified that equity, justice and merit/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist State-wise. Then, the extent of reservation is considered, the maximum limit of limitation possible and in paragraph 16, it is observed that if a member from reserved category gets promoted in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal, the Supreme Court held that while general category candidates are not entitled to fill the reserved posts; reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class. Then, the issue of vacancies that could be reserved has been considered after which the catch-up rule fell for consideration. The concept of catch-up rule has been extensively noted and from paragraphs 69 of this judgment. The Hon''ble Supreme Court, therefore, found that all the judgments noted by it from paragraphs 69 to 81 did not touch the questions which are involved in M. Nagaraj.
38. Then, the Supreme Court proceeded to set out the scope of the impugned amendments to the Constitution. It is held by the Supreme Court that clause (4-A) will be governed by the two compelling reasons ''backwardness'' and ''inadequacy of representation'' as mentioned in Article 16(4). If the said two reasons do not exist, then, the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further in Ajit Singh (II), the Hon''ble Supreme Court has held that apart from ''backwardness'' and ''inadequacy of representation'' the State shall also keep in mind ''overall efficiency''. Hence all the three factors have to be kept in mind by the appropriate Government in providing for reservation in promotion for Scheduled Castes / Scheduled Tribes. After the Constitution (Seventy-Seventh Amendment) Act, 1995, the Supreme Court stepped in to balance the conflicting interests and made that attempt in Virpal Singh Chouhan. The Government, therefore, argued that the decisions in Virpal Singh Chouhan and Ajit Singh-I bringing in the concept of catch-up rule adversely affected the interests of the Scheduled Castes / Scheduled Tribes in the matter of seniority on promotion to the next higher grade. In these circumstances, clause (4-A) was once again amended and the benefit of consequential seniority was given in addition to the accelerated promotion to the roster-point promotees. This was the argument on behalf of the State. The Court found that the constitutional limitation mentioned in Article 16(4) and Article 335 whether stands obliterated by the constitutional amendment is thus the key issue. In the circumstances, it proceeded to note the judgments in R.K. Sabharwal, Indra Swahney and then referred and extensively to the constitutional amendments. The Supreme Court proceeded to then consider Article 16(4-B). It considered the arguments as to whether the amendments challenged before it violate the basic structure and the mandate of Article 14 and after all this, it came to the conclusion that the object behind the impugned constitutional amendment is to confer discretion on the State to make reservations for Scheduled Castes / Scheduled Tribes in promotions subject to the circumstances and the constitutional limitations indicated in the paragraphs prior to paragraph 109. Then, the test to judge the validity of the State Acts is set out and in paragraph 110 the Supreme Court held that boundaries of the width of the power, namely, the ceiling-limit of fifty per cent (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, it would have to consider the law enacted by States providing for reservations, if challenged. The limitations on the exercise of the power whether violated the Constitutional policy or not would be considered at that time. The State is thus free to exercise its discretion of providing for reservation subject to the limitation, namely, there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. The Supreme Court clarified that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside. Then, from paragraph 111, the Supreme Court considered whether these amendments make an in-road into the balance struck by the judgment in Indra Swahney''s case and arrived at a conclusion that it is bound by the judgment in Indra Sawhney. Finally, it recorded the following conclusions :
"121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). 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. These 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 OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal.
122. We reiterate 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.
123. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 SC/ST in matter 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 of 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 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."
39. Thus, the constitutional validity of the Amendment Act of 1995, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001 was upheld subject to the above.
40 We are, therefore, not inclined to accept the submission of Mr. Bhate or Mr. Mane that the present writ petition seeks interpretation of the judgment in M. Nagaraj''s case. We do not think that the petitioners are seeking to interprete the judgment. They are praying for its enforcement and implementation. The petitioners are seeking a declaratory relief that once the authoritative pronouncement by the Supreme Court is binding by virtue of Article 141 of the Constitution of India, then, any stipulation or provision whether in Executive instructions or in law if contrary to it, does not survive. The attempt is not to implement this judgment, but to defeat it is the complaint.
41. It is true that in the process the petitioner-association cannot straight away unsettle the settled state of affairs and disturb the position of the employees who may have gained promotions on the basis of the constitutional amendments but by its wrongful interpretation and implementation. It would be for the MPT to implement the judgment of the Hon''ble Supreme Court and our directions and take consequential measures and steps. Today, the list of petitioners-members and claiming to be officers in the service of the MPT is before us. How many of them are actually displaced or affected is not clarified. Further, we do not have specific cases and complaints with details regarding the excess promotions and the position in seniority or the placement therein. Therefore, when this Court delivers its judgment in the present case, then, depending upon its conclusion the consequential directions would have to be implemented. We clarify this for the simple reason that Dr. Mane apprehended that in the garb of entertaining this petition, we would be disturbing the career prospects or placement of employees.
42. We have no such intent in this petition. However, if the petitioner-association highlights that despite an authoritative pronouncement of the Hon''ble Supreme Court of India, the Central Government is refusing to implement a binding Judgment or creating a situation by which authorities like the respondent No.1 act in breach or utter violation thereof, then, that complaint needs serious consideration. We cannot brush that aside.
43. The Hon''ble Supreme Court has clarified that though the amendments do not alter the structure of Article 16, they retain the controlling features or the compelling reasons. Backwardness and inadequacy of representation would alone enable the State to provide for reservation. Keeping in mind the overall efficiency of the State administration under Article 335, which cannot be compromised. Further, the amendments are confined only to Scheduled Castes / Scheduled Tribes. They do not obliterate any of the constitutional requirements, namely, ceiling limit of fifty per cent (quantitative limitation). The concept of post-based roster with in-built concept of replacement and held in R.K. Sabharwal. Therefore, none of these would be affected and by the amendments post Indra Sawhney .
44. The ceiling limit of fifty percent and above are in-built therefore and without which the structure of equality of opportunity in Article 16 would collapse.
45. The extent of reservation is clarified in the judgment of the Supreme Court by observing that the State concerned will have to show in each case, the existence of compelling reasons. The constitutional provision itself is an enabling one. The State is not bound to make reservations for Scheduled Castes / Scheduled Tribes in matters of promotion. However, if it wishes to exercise its discretion and make such a provision, it has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in such employment in addition to compliance with Article 335. Even if there are compelling reasons, as stated above, it will have to justify that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of fifty per cent or obliterate the creamy layer or extend the reservation indefinitely. We do not think that anybody can tinker with or interfere with this principle.
46. What we find in the instant case is that the MPT has taken a view that even after the constitutional amendment are interpreted as above, it would still be bound by the OM dated 21st January, 2002, particularly in the light of its subsequent clarification.
47. We must at once note the OMs dated 30th January, 1997 and 31st January, 2002. Copies of these OMs are annexed at pages 140 and 142 of the paper-book. Thus, on the subject of seniority of Scheduled Castes/Scheduled Tribes, officers promoted earlier vis-a-vis general candidates promoted later, the OM dated 30th January, 1997, referred to the earlier OMs and the subsequent judgment in the case of Virpal Singh Chouhan (supra) and clarified that having regard to the judgment in Virpal Singh Chouhan, it is necessary to modify the existing policy of fixing seniority on promotion on the lines mentioned in paragraph 2 above. Therefore, it added a proviso to the general principle 5(i) contained in the DOPT OM dated 22nd December, 1959, and paragraph 2.2 of the OM dated 3rd July, 1986. It clarified that if a candidate belonging to the Scheduled Caste or Scheduled Tribe is promoted to any higher post / grade against a reserved vacancy earlier than his senior general / OBC candidate who is promoted later to the said immediate higher post / grade, the general / OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste and the Scheduled Tribe in the immediate higher post / grade.
48. The OM dated 21st January, 2002, read as a whole would indicate that the Government attempted to negate the effect of the earlier OM dated 30th January, 1997, referred above, by virtue of Article 16(4-A) on introduction thereof so also the amendment thereby by the Constitution (Eighty-Fifth Amendment) Act.
49. We do not think that paragraph 3 of this OM can be interpreted in isolation and contrary to the dictum in M. Nagaraj.
50. It was incumbent upon the Central Government to give effect to it and the Department of Personnel & Training should have noted that any attempt to dilute the rigour of the binding conclusions in M. Nagaraj would be construed as a defiance of the judgment and particularly defeating the constitutional mandate enshrined in Article 141 of the Constitution of India. Whether that would visit it with proceedings under the Contempt of Court Act, 1971, on the footing that it is a deliberate or intentional act is not our concern. Our concern is that consistent with the judgment in M. Nagaraj, the Central Government was duty bound to clarify the matter. It purported to clarify it contrary to this judgment and the conclusions therein.
51. We do not think that the further Office Memorandum, copy of which is at page 145 dated 11th July, 2002, would be a reiteration or the attempt to follow and implement the judgment in M. Nagaraj.
52. This OM reads as under :
"No.36028/17/2001-Estt.(Res.)
Government Of India Ministry Of Personnel, Public Grievances And Pensions Department Of Personnel And Training New Delhi
Dated July 11, 2002
Office Memorandum
Subject:Reservation in promotion � Treatment of SC/ST candidates promoted on their own merit.
The undersigned is directed to say that this Department has been receiving references from various Ministries etc. regarding adjustment of SC/ST candidates promoted on their own merit in the reservation rosters introduced vide DOPT''s OM No. 36012/2/96- Estt.(Res) dated 2.7.1997. While it is clear from the OM dated 2.7.1997 that the SC/ST/OBC candidates appointed by direct recruitment on their own merit and not owing to reservation will be adjusted against unreserved points of the reservation roster, doubts have been raised about SC/ST candidates promoted on their own merit. It is hereby clarified that:-
(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.
(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any.
(iv) 50% limit on reservation will be computed by excluding such reserved category candidates who are appointed/promoted on their own merit.
2.All Ministers/Departments are requested to bring the contents of this OM to the notice of all authorities under them for information and compliance.
(K.G. Verma)
Dy. Secretary to the Govt. of India"
53. This OM only concerns itself with the issue of adjustment of Scheduled Caste / Scheduled Tribe candidates promoted on their own merit in the reservation roster including DOPT OM dated 2nd July, 1997. While it is clear from the OM dated 2nd July, 1997, that Scheduled Caste / Scheduled Tribe candidates appointed by direct recruitment on their own merit and not owing to reservation will be adjusted against unreserved points of the reservation roster. Doubts were raised about the Scheduled Caste / Scheduled Tribe candidates promoted on their own merit and that is why the clarification came. We are not concerned as much with this aspect of the matter for we are primarily dealing with the issue of the survival of the OM dated 21st January, 2002, in its present form. It is entirely for the MPT to make the adjustment in terms of the rules and regulations and so long as these adjustments do not violate the conclusions in M. Nagaraj or the principles enshrined therein for determination of and placement of officers in seniority list, we have nothing to say. However, we clarify that this will not mean that the binding principles on maintaining the seniority of general candidates visa-vis the reserved after the promotional exercise can be given a go-bye or diluted.
54. It is apparent that on 1st July, 2007, the MPT addressed a communication to the Secretary to the Government of India in the Ministry of Shipping / Department of Shipping (Ports Wing) and sought a clarification that by the order dated 19th October, 2006, the Supreme Court having upheld the constitutional validity subject to the observations which we have already produced above, a representation was received from the MPT Non-Scheduled Caste Scheduled Tribe employees seeking implementation of the orders of the Supreme Court. The Chief Law Officer and advocate opined that action be taken in consultation with the concerned Ministry according to the directions in the judgment of the Supreme Court. Enclosing a copy of the representation and seeking guidance on the issue this communication was addressed.
55. However, on 18th September, 2007, the Under Secretary to the Government of India, Department of Shipping (Ports Wing) wrote as under :
"F.N 0.C-18018/6/2007-PE-II
Government of India Ministry of Shipping, Road Transport and Highways Department of Shipping (Ports Wing)
Dated the 18th September, 2007
To
The Chairman,
Mumbai Port Trust,
S. V. Marg, Mumbai 400 001
Subject - In the Supreme Court of India W.P.(Civil) no. 61 of 2002 M. Nagaraj & Ors. v. UOI & Ors. with WP(Civil) No. 440 of 2002 Bombay Port Trust non SC/ST Employees Association v. UOI & Ors � reg.
Sir,
I am directed to refer to your letter No. SECY/P/GEE-G/SCT/401 dated 1.06.2007 on the subject cited above and to say that the judgment of Supreme Court dated 19.10.2006, case has been taken up with DoP&T and DoP&T have opined that the Supreme Court has upheld the constitutional validity of the 85th Amendment (as also the other related Amendments challenged before the Apex Court) in the matter of consequential seniority on promotion by rule of reservation. As such, SC/ST employees, promoted by rule of reservation, shall continue to be entitled to seniority on such promotion to reserved vacancies, by virtue of the 85th Amendment and the executive instructions issued on 21 st June, 2002 and there is no change in the position.
Yours faithfully,
Sd/-
(P. Sasikumar)
Under Secretary to the Government of India "
56. It is in these circumstances that the Port Trust on 27th April, 2011, wrote to the petitioner-association that by virtue of Regulation 7 of the MPT (Employees, Recruitment, Seniority and Promotion) Regulations, 2010, the Government orders are followed scrupulously. Hence, the charge that the reservation policy suggested by MPT administration has proved to be very harmful and does not safeguard the promotional interest of the general categories, is baseless. This stand is taken only by relying upon the clarification dated 18th September, 2007, referred above. Thereafter, the charge of faulty implementation of the reservation policy was denied by the MPT.
57. We have to then see as to how the Government of India deals with this issue.
58. After prolonged wait it came and filed a counter affidavit in this writ petition. In this counter affidavit it states in paragraph 4 as under :
"4. In this regard, it is submitted that the OM No. 2011/2001-Estt.(D) dated 21.01.2002 has been issued in pursuance of 85th Amendment of the Constitution. The 85th amendment to the Constitution was approved by the Parliament in the year 2001 modifying clause (4A) of Article 16 of the Constitution so as to give benefit of seniority to SC/ST candidates promoted by reservation. After this 85th amendment to the Constitution, the Department of Personnel and Training issued OM No. 20011/1/2001-Estt.(D) dated 21.1.2002 providing that the members of Scheduled Caste and Scheduled Tribe communities would get the benefit of reservation in promotion with consequential seniority. The OM is therefore backed by a Constitutional mandate which has also been upheld by the Hon''ble Supreme Court in M. Nagaraj judgment of 19.10.2006. The relevant observations of the Hon''ble Supreme Court in this regard are reproduced below:-
"The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). �..
However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard, the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness and 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 SC/ST in matter 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 of 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. Subject to 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"
In order to provide impediment free reservation in promotion to Scheduled Castes and Scheduled Tribes, a bill, namely, "the Constitution (One Hundred Seventeenth Amendment) Bill, 2012 was introduced in Rajya Sabha on 5.9.2012. The Bill was passed in Rajya Sabha on 17.12.2012 and could not be discussed in Lok Sabha and therefore lapsed on the dissolution of the 15th Lok Sabha."
59. It states in the further part that because of the observation of the Supreme Court, only such class of citizens who are socially and educationally backward are qualified to be identified as backward classes and their backwardness has to be recognised by means of a Notification by the President under Articles 341 or 342 declaring them to be Scheduled Caste / Scheduled Tribe or on an objective consideration, identified by the State to be socially and educationally so backward by reason of prior discrimination and its continuing ill effects has to be comparable to the Scheduled Castes or Scheduled Tribes. In the case of Scheduled Castes or Scheduled Tribes these conditions are, in view of the Notification, presumed to be satisfied.
60 The stand before us is that no such enquiry into the backwardness or inadequacy of representation in the services particularly in matters of promotion is required in the case of Scheduled Castes and Scheduled Tribes.
61 We are unable to agree with this for the simple reason that the language of Article 16(4-A) is mandatory and imperative. Despite providing for reservation in promotion for Scheduled Castes / Scheduled Tribes the words emphasized by us above, namely, "in the opinion of the State inadequately represented" appear in that clause. Once they are not adequately represented in the services under the State but that alone would not enable, unless coupled with other factors as enumerated in the authoritative pronouncement in M. Nagaraj, to exercise the discretion, then, this stand of the Central Government placed on affidavit before us cannot be upheld. The discretion cannot be exercised on assumptions and general presumptions. It must be exercised in accordance with the parameters set out in M. Nagaraj (supra). There is no escape route permitted in that judgment. If the discretion to reserve posts for Schedule Caste/ Schedule Tribe''s in matter of promotion is to be exercised that would have to conform and abide by the judgment in M.Nagaraj. That is the law of the land and not any memorandum of the Central Government purporting to interpret the judgment of the Hon''ble Supreme Court. An erroneous and flawed understanding of a binding Judgment by the Superior Authority cannot always bind a Statutory Authority like MPT. One cannot pick and choose a paragraph or a sentence in a judgment of the Supreme Court and read it conveniently. That would not be a fair and proper reading of a binding judgment. The judgment must be read as a whole. The key issue having been noted by us in the foregoing paragraphs, the manner of its consideration and the eventual conclusion leave us in no manner of doubt that to the extent the OM dated 21st January, 2002 relies upon the presumption as above, the refusal to give effect to the judgment when it clarifies the matter of consequential seniority, cannot be sustained. The Central Government has virtually refused to abide by this judgment. It refuses to undertake the collection of the quantitative data as mandated by relying on the plea that insofar as the Scheduled Castes and Scheduled Tribes which are included in the list under Articles 341 and 342 respectively, they were entitled to avail of the benefit of reservation in direct recruitment as well as promotion in the Central Government posts and services and their entry and insertion in the list raises the presumption that they are inadequately represented even in matters of promotion. This understanding does not accord with the authoritative pronouncement in M. Nagaraj. Therefore, to the extent the Union of India seeks to justify the OM dated 21st January, 2002, and the above stand, we cannot sustain it. It would be necessary to clarify that the extent of reservations, the efficiency in the administration and coupled with the inadequacy of representation would above enable the exercise of discretionary powers under Article 16 (4-A) of the Constitution. Else, that would not be available.
62. We are of the opinion that Mr. Sanglikar is justified in placing reliance on the judgments following M. Nagaraj.
63. In the case of Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors. AIR 2011 SC 874, the essential contention was that the insertion of the words "with consequential seniority" in clause (4-A) of Article 16 of the Constitution after the words "reservation in promotion", was only an enabling provision which was challenged in the Supreme Court in M. Nagaraj and other matters. The argument in Suraj Bhan was that without waiting for the decision in M. Nagaraj, the State Government withdrew its earlier Notification dated 1st April, 1997, vide Notification dated 28th December, 2002. In consideration of this argument and the one to the contrary, the Hon''ble Supreme Court heard parties at great length. In paragraphs 45 and 46 the Court held thus :-
"45 In effect, what has been decided in M. Nagaraj''s case (AIR 2007 SC 71 : 2006 AIR SCW 5482) (supra) is part recognition of the views expressed inVirpal Singh Chauhan''s case (AIR 1996 SC 448 : 1995 AIR SCW 4309), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity.
46. The position after the decision in M. Nagaraj''s case (AIR 2007 SC 71 : 2006 AIR SCW 5482) is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. The view of the High Court is based on the decision in M. Nagaraj''s case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Castes and Scheduled Tribes communities and the same does not call for any interference. Accordingly, the claim of Petitioners Suraj Bhan Meena and Sriram Choradia in Special Leave Petition (Civil) No.6385 of 2010 will be subject to the conditions laid down in M. Nagaraj''s case (supra) and is disposed of accordingly. Consequently, Special Leave Petition (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed."
64. A perusal of these paragraphs would indicate that the Rajasthan High Court rightly quashed the Notifications impugned before it issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities. The judgment did not call for any interference.
65. In the case of Salauddin Ahmed & Anr. v. Samta Andolan (2012) 10 SCC 235, the essential controversy was as to whether the State of Rajasthan in issuing a Notification providing for reservation to the Scheduled Castes and Scheduled Tribes and increasing it also introduced rules for promotion based on the criteria of seniority-cum-merit. After the judgment in Indra Sawhney and the introduction of Article 16(4-A) so also the judgments in Virpal Singh Chauhan and Ajit Singh, a writ petition was filed in the Supreme Court by the All India Equality Forum against the State of Rajasthan, to strike down the Constitution (Eighty-Second Amendment) Act and the Constitution (Eighty Fifth Amendment) Act. Similar reliefs are claimed as in M. Nagaraj. Thereafter, the State of Rajasthan issued a Notification dated 28th December, 2002, withdrawing the catch-up principle because of the introduction of the Constitution (Eighty-Fifth Amendment) Act. Thus, the attempt was made to preserve the rights of general category candidates, who were already promoted vide Notification dated 1st April, 1997 and it was also indicated that persons who had already been promoted vide Notification dated 1st April, 1997, were not to be reverted. After referring to M. Nagaraj, a subsequent writ petition challenging the Notification dated 25th April, 2008, which did not consider the catch-up principle, the Supreme Court referred to the proceedings before the Rajasthan High Court. It considered the argument that there is a deliberate violation of the judgment in M. Nagaraj and Suraj Bhan Meena. However, when it noted that there was a delay on the part of the State in giving effect to the observations but there was no wilful or deliberate intention to defy the orders of the Hon''ble Supreme Court that it absolved the concerned persons from the charge of contempt.
66. This very aspect was clarified in the clarificatory orders post M. Nagaraj and particularly in the case of S.V. Joshi & Ors. v. State of Karnataka (2012) 7 SCC 41. It was also clarified in the case of Uttar Pradesh Power Corporation v. Rajesh Kumar & Ors. (2012) 7 SCC 1 and S. Panneeer Selvam & Ors. v. State of Tamil Nadu & Ors. (2015) 10 SCC 292. What we must then note is the latest pronouncement of the Supreme Court of India and that is in the case of Suresh Chandra Gautam v. State of Uttar Pradesh & Ors. 2016 SCC Online 238. The Hon''ble Supreme Court was considering a batch of writ petitions and seeking a prayer to issue a direction in the nature of mandamus commanding the State of Uttar Pradesh and others to enforce appropriately the constitutional mandate as contained under the aforesaid constitutional articles or in the alternative, directing the respondents to constitute a Committee or appoint a Commission chaired either by a retired Judge of the High Court or Supreme Court in making survey and collecting necessary qualitative data of the Scheduled Castes and Scheduled Tribes in the services of the State for granting reservation in promotion in the light of directives in M. Nagaraj. An attempt was made to question the decision in M. Nagaraj as noted in paragraph 2 of this judgment. The Supreme Court clarified that it will not revisit this judgment in any manner. It does not require any reconsideration. Then the principal submissions were noted and all the earlier pronouncements referred either in M. Nagaraj or post M. Nagaraj and thereafter the Supreme Court pronounced authoritatively as under :
"45. In the case at hand, we are concerned with the enabling power as engrafted under Articles 16, 16(4-A)and 16(4-B). The said Articles being enabling provisions, there is no power coupled with duty. In Ajit Singh (II) (supra), it has been held that no mandamus can be issued either to provide for reservation or for relaxation. Recently, in Chairman & Managing Director, Central Bank of India & Ors. v. Central Bank of India SC/ST Employees Welfare Association & Ors. it has been held thus:-
"In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the State to take affirmative action in favour of SC/ST category persons by making reservations for them in the employment in the Union or the State (or for that matter,public sector/authorities which are treated as State under Article 12 of the Constitution). The laudable objective underlying these provisions is also to be kept in mind while undertaking any exercise pertaining to the issues touching upon the reservation of such SC/ST employees. Further, such a reservation can not only be made at the entry level but is permissible in the matters of promotions as well. At the same time, it is also to be borne in mind that Clauses 4 and 4A of Article 16 of the Constitution are only the enabling provisions which permit the State to make provision for reservation of these category of persons. Insofar as making of provisions for reservation in matters of promotion to any class or classes of post is concerned, such a provision can be made in favour of SC/ST Civil Appeal No. of 2015 & Ors. (arising out of SLP (C) No. 4385 of 2010 & Ors.) category employees if, in the opinion of the State, they are not adequately represented in services under the State. Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. Of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise."
46. The aforesaid passage makes its luminescent that existence of a provision for reservation in the matter of selection or promotion is the sine qua non for seeking mandamus. The right accrues in favour of the Scheduled Castes and the Scheduled Tribes candidates when there is a provision. We are absolutely in conscious that the controversy before us is quite different. The relief is not sought on the basis of existence of a provision. The grievance pertains to steps being not taken to collect the quantifiable data as has been envisaged in M. Nagaraj (supra). To appreciate the relief in its quintessence, it is imperative to clearly understand the ratio laid down in M. Nagaraj (supra). The Constitution Bench while opining that Articles 16(4-A) and (4-B) are enabling provisions had observed thus:-
"...Extent of reservation, as stated above, will depend on the facts of each case. Backwardness and inadequacy of representation are compelling reasons for the State Governments to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements."
47. After so stating, the larger Bench has clearly held that Article 16(4-A) and 16 (4-B) do not alter the structure of Article 16(4). The said Articles are confined to the Scheduled Castes and the Scheduled Tribes and do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney (supra), the concept of postbased roster with inbuilt concept of replacement as held in R.K. Sabharwal (supra). After so stating, the Court has adverted to the concept of "extent of reservation". In that regard, it has been opined that the State concerned is required 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. It has been clearly laid down that the State is not bound to make reservation for SCs/STs in matters of promotion. However, if the State wishes to exercise the discretion and make such provision, it 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 expression of the opinion clearly demonstrates that the regard being had to the enabling provisions of Articles 16(4-A) and (4-B), the State is not bound to make reservation. It has a discretion to do so and the State''s discretion can only be exercised on certain conditions being satisfied. In Rajesh Kumar ''s case, after culling out the principles stated in M. Nagaraj (supra) the Court has graphically stated that a fresh exercise in accord with the law laid down in M. Nagaraj (supra) is a categorical imperative. It has been held that the State can make provisions for reservation in promotion with consequential seniority on certain basis or foundation and conditions precedents have to be satisfied. The Court has declared Section 3(9) of the 1994 Act and Rule 8-A of the 2002 Rules as unconstitutional as no fresh exercise had been undertaken. The submission of the learned counsel for the petitioners is that a command should be issued to the State of Uttar Pradesh to collect the data as enshrined in the Constitution Bench decision in M. Nagaraj (supra) so that benefit of reservation in promotion can be given. The relief sought may appear innocuous or simple but when the Court thinks of issue of a writ of mandamus, it has to apprise itself of an existing right or a power to be exercised regard being had to the conception of duty. The concept of power coupled with duty is always based on facts. If we keenly scrutinize the relief sought, the prayer is to issue a mandamus to the State and its functionaries to carry out an exercise for the purpose of exercising a discretion. To elucidate, the discretion is to take a decision to have the reservation, and to have reservation there is a necessity for collection of data in accordance with the principles stated in M. Nagaraj (supra) as the same is the condition precedent. A writ of mandamus is sought to collect material or data which is in the realm of condition precedent for exercising a discretion which flows from the enabling constitutional provision. Direction of this nature, in our considered opinion, would not come within the principle of exercise of power coupled with duty. A direction for exercise of a duty which has inherent and insegretable nexus with the constitutional provision like Article 21 of the Constitution or a statutory duty which is essential for prayer as laid down in Julius (supra) where a power is deposited with a public officer but the purpose of being used for the benefit of persons who are specifically pointed out with regard to whom a discretion is applied by the Legislature on the conditions upon which they are entitled. We are inclined to think so as the language employed in M.Nagaraj (supra) clearly states that the State is not bound to make reservation in promotion. Thus, there is no constitutional obligation. The decisions wherein this Court has placed reliance on Julius (supra) and the other judgments of this Court and issued directions, the language employed in the statute is different and subserves immense public interest in the said authorities, the purpose and purport are quite different.
48. Be it clearly stated, the Courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and regulation or policy relating to reservation. The Courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of sub-ordinate legislation. We may hasten to add that in certain decisions directions have been issued for framing of guidelines or the court has itself framed guidelines for sustaining certain rights of women, children or prisoners or under-trial prisoners. The said category of cases falls in a different compartment. They are in different sphere than what is envisaged in Article 16 (4-A) and 16 (4-B) whose constitutional validity have been upheld by the Constitution Bench with certain qualifiers. They have been regarded as enabling constitutional provisions. Additionally it has been postulated that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. Therefore, there is no duty. In such a situation, to issue a mandamus to collect the data would tantamount to asking the authorities whether there is ample data to frame a rule or regulation. This will be in a way, entering into the domain of legislation, for it is a step towards commanding to frame a legislation or a delegated legislation for reservation.
49. Recently in Census Commissioner & others v. R. Krishnamurthy a three-Judge Bench while dealing with the correctness of the judgment of the high court wherein the High court had directed that the Census Department of Government of India shall take such measures towards conducting the castewise census in the country at the earliest and in a time-bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour, the court analysing the context opined thus :-
"Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the 49 courts are not to plunge into policy-making by adding something to the policy by ways of issuing a writ of mandamus."
50. We have referred to the said authority as the court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. In our considered opinion a writ of mandamus of such a nature cannot be issued."
67. The writ petition was dismissed.
68. If this equally binding pronouncement of 11th March, 2016, is noted, then, we see no reason to accede to the prayer of Mr. Bhate of deferring the hearing of this writ petition. We are of the opinion that we are bound by not only M. Nagaraj, but all the subsequent pronouncements. We cannot brush aside or ignore them on a specious plea that some particular argument or facet thereof has not been considered or that the issue is still live. We do not see how in the light of the pronouncements and also interpreting clearly the aspect of consequential seniority can we direct that the MPT should continue to abide by the OM dated 21st January, 2002, or any contrary stipulation to the above pronouncement of law by highest Court of the land. Regarding both matters, namely, provision of reservation in promotions and whether seniority therewith is consequential or assured as claimed by all the reserved category candidates are matters which must abide by not any contrary stipulation, but the judgments of the Supreme Court alone.
69. It is rather disturbing to note that despite authoritative pronouncements of the highest Court, an attempt is made not to abide by them, but as noted in some cases, to defy them. We have cautioned all concerned that this spirit or attitude of defiance or not accepting the authoritative pronouncement of the highest Court would completely frustrate and defeat the constitutional scheme. The Constitution as a document ought to be read in its entirety. The Constitution must be accepted for it guarantees and assures to us an independent judiciary to review the actions of a democratic Government. The elected representatives after having enacted a law, the constitution envisages it being tested for its legality and validity in power of judicial review conferred in a competent Court. The judiciary is also established by the Constitution. By Article 50 there is a definite separation of powers of the legislature, executive and the judiciary. If all of them are permitted to act freely within their demarcated field, then, the Executive organ or body of the State cannot act in defiance and refuse to comply with the judgments delivered by a Court competent to deliver them. If this trend continues, the democracy would collapse. If the Central Government acts as noted above with impunity by not implementing and abiding by the Judicial pronouncements, then, the citizens would be encouraged to disrespect and disregard binding judgments of competent courts. This would lead to chaos and anarchy. We must learn lessons from our neighbouring countries and the situation prevailing therein and avoid a confrontation with each other. If true democracy is to survive and after almost seventy years of our independence, then, as a matter of habit even an adverse verdict must be accepted and respected by all. We say nothing more.
70. As a result of the above discussion, the Writ Petition succeeds. We direct the Mumbai Port Trust � respondent No.1 to abide by the judgment of the Hon''ble Supreme Court in the case of M. Nagaraj and particularly the conclusions reproduced in the foregoing paragraphs and give effect to it as expeditiously as possible. In giving effect to it, it shall ignore any contrary provisions or stipulations in the OM dated 21st January, 2002. It must ignore all clarifications post M. Nagaraj, including the one contained in the letter dated 18th September, 2007, give effect to and implement this judgment. We direct that all consequential steps be taken within a period of four months from the date of receipt of a copy of this judgment. We clarify that individual matters are not before us. Therefore, if there are powers available to revisit any promotions or matters concerning seniority under the Service Rules / Regulations, then, by abiding with the same, appropriate steps be taken by the MPT. Needless to clarify that before any adverse orders are passed, the concerned employees shall be given a fair and reasonable opportunity of being heard. No orders, including taking away any promotions, seniority or reversion shall be passed without complying with the principles of natural justice. Rule made absolute in the above terms. The parties are left to bear their own costs.
71. Needless further to clarify that the Department of Personnel & Training and the Department of Shipping (Port Wings) in the Ministry of Shipping & Surface Transport, Government of India, shall not in any manner interfere with the implementation of this judgment by the Mumbai Port Trust. Any contrary directions from these Ministries so as not to allow the Mumbai Port Trust to implement and abide by this judgment would be visited with severe consequences. Needless also to further clarify that this judgment equally binds the Central Government and the above Ministries.
