UDAY UMESH LALIT,J. - (1.) These Contempt Petitions seek to highlight non-compliance of directions issued by this Court in its Judgments dated 07.12.2010 in Suraj Bhan Meena and another vs. State of Rajasthan and others, (2011) 1 SCC 467 and 29.08.2012 in Salauddin Ahmed and another vs. Samta Andolan, (2012) 10 SCC 235 and seek initiation of contempt proceedings against the alleged contemnors/respondents.
(2.) The Contempt Petitioner, a Rajasthan Administrative Officer of 1982 batch, had preferred DB Civil Writ Petition No.8104 of 2008 before the High Court3 for following reliefs:- (i) By an appropriate writ, order or direction the Hon'ble Court may be pleased to quash and set aside the notification dated 25.04.2008. (ii) By further appropriate writ order or direction the Hon'ble Court may be pleased to direct respondents to strictly adhere to the "catch-up rule" and revise the seniority of all the petitioners in comparison to SC/ST candidates after giving the benefit of regaining of the seniority by the general category candidates as envisaged by the circular dated 01.04.1997 and provisional seniority list dated 26.06.2000. (iii) By further appropriate writ order or direction the Hon'ble Court may be pleased to declare the circular dated 20.10.2000 unconstitutional and illegal as the same is not in accordance with the theory of compartmentalization. (iv) By further appropriate writ order or direction the Hon'ble Court may be pleased to further direct respondents to revise the seniority list since 1982 as the benefit of seniority given to the reserved category candidates before 1995 in accordance with the Rule 33 of RAS Rules, 1954 is illegal. (v) By further appropriate writ order or direction the Hon'ble Court may be pleased to restrain the respondents to provide consequential seniority of SC/ST candidates as the Rules were not framed in pursuance of Article 16(4-A). In alternative if Rule 33 talks about giving benefit of consequential seniority then that rule be declared unconstitutional to the extent it provides consequential seniority to SC/ST employees. (vi) By further writ, order or direction the respondents be directed to strictly adhere to post based roster system as envisaged by R.K. Sabharwal's case and respondents be further directed to bifurcate 53 seats occurring in 2008 because of the selection to IAS post in their respective years of vacancies for the sake of holding year wise DPCs for those years. (vii) By further writ, order or direction the respondents be restrained to provide the benefit of reservation in promotion with consequential seniority unless and until they establish the existence of three compelling reasons as enunciated in the judgment of M. Nagraj. (viii) By further writ, order or direction the respondents be directed to revise the seniority of all the petitioners and they should be given the benefit of their seniority in pursuance of the "catch-up rule". (ix) By further writ, order or direction the respondents be restrained to make any selection for IAS cadre through promotion till disposal of this writ petition.
(3.) The High Court by its judgment and order dated 05.02.20104 quashed the notifications dated 25.04.2008 and 28.12.2002 and all consequential actions. The challenge to the judgment of the High Court was considered by this Court and by its decision in Suraj Bhan1 the view taken by the High Court was affirmed. The factual background was considered by this Court as under:- "4. All the writ petitioners, as also the petitioners in SLP (C) No. 6385 of 2010, are members of the Rajasthan Administrative Service and are governed by the Rajasthan Administrative Service Rules, 1954. The writ petitioners in their respective writ petitions challenged the Notification dated 25-4-2008, issued by the State of Rajasthan in exercise of its powers conferred by the proviso to Article 309 of the Bajrang Lal Sharma vs. State of Rajasthan, WP (C)No.8104 of 2008 (Raj) and other connected matters Constitution of India amending the Rajasthan "Various Service Rules" with effect from 28-12-2002. 5. According to the writ petitioners, they had been inducted in the Rajasthan Administrative Service in December 1982, through selection by the Rajasthan Public Service Commission. Vide notice dated 26-6- 2000, the State Government issued a provisional seniority list of Rajasthan Administrative Service Selection Grade as on 1-4-1997, in which Writ Petitioner 1, Bajrang Lal Sharma, was placed above Suraj Bhan Meena (Scheduled Tribe) and Sriram Choradia (Scheduled Caste). 6. The said seniority list was published pursuant to the order of this Court dated 16-9-1999, passed in Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 and another order of the same date in Ram Prasad v. D.K. Vijay ,(1999) 7 SCC 251 . Once again provisional seniority lists were published on 27-11- 2003 and 12-5-2008. Subsequently, the State of Rajasthan published the final seniority lists of super- time scale and selection scale of the service on 24-6- 2008 as on 1-4-1997 and provisional seniority list dated 2-7-2008 as on 1-4-2008, wherein the name of Bajrang Lal Sharma was shown below the names of both Suraj Bhan Meena and Sriram Choradia. 7. The Notification dated 25-4-2008, which was the subject-matter of challenge in the writ petition was challenged on two grounds. It was firstly contended that the proviso dated 28-12-2002, which had been added to the Various Service Rules was subject to the final decision of this Court in Writ Petition (Civil) No. 234 of 2002 filed in All India Equality Forum v. Union of India, but the same was yet to be decided. Therefore, during the pendency of the writ petition before this Court, the respondents had acted improperly in deleting the abovementioned proviso in the Various Service Rules by the Notification dated 25-4-2008, which amounted to giving a consequential seniority to candidates belonging to the Scheduled Castes and Scheduled Tribes, which could not have been given without quantifying the figures of Scheduled Caste and Scheduled Tribe candidates to enable a decision to be arrived at that reservation was required in promotion and also to show that the State had to pass such orders for compelling reasons, such as, backwardness, inadequacy of representation, as held by this Court in M. Nagaraj v. Union of India7. It was contended that since the State Government had not complied with the directions given by this Court in M. Nagaraj case, (2006) 8 SCC 212 the notification in question was liable to be quashed. 8. It was further urged on behalf of the writ petitioner Bajrang Lal Sharma, that in Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217 this Court had held that Article 16(4) of the Constitution of India did not permit reservations in the matter of promotion. Thereafter, the Constitution (Seventy-seventh Amendment) Act, 1995, was enacted and came into force on 17-6-1995. The subsequent special leave petitions filed in Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 [Ajit Singh (I)] and Ajit Singh (II) v. State of Punjab5, introduced the "catch-up" rule and held that if a senior general candidate was promoted after candidates from the Scheduled Castes and Scheduled Tribes have been promoted to a particular cadre, the senior general candidate would regain his seniority on promotion in relation to the juniors who had been promoted against reserved vacancies." 3.1 After considering the decision of the Constitution Bench of this Court in M. Nagaraj7 the matter was concluded as under:- "60. The vital issue which fell for determination was whether by virtue of the implementation of the constitutional amendments, the power of Parliament was enlarged to such an extent so as to ignore all constitutional limitations and requirements. 61. Applying the "width" test and "identity" test, the Constitution Bench held that firstly, it is the width of the power under the impugned amendments introducing amended Articles 16(4-A) and 16(4-B) that had to be tested. Applying the said tests, the Constitution Bench, after referring to the various decisions of this Court on the subject, came to the conclusion that the Court has to be satisfied that the State had exercised its power in making reservation for Scheduled Caste and Scheduled Tribe candidates in accordance with the mandate of Article 335 of the Constitution, for which the State concerned would have to place before the Court the requisite quantifiable data in each case and to satisfy the Court that such reservation became necessary on account of inadequacy of representation of Scheduled Caste and Scheduled Tribe candidates in a particular class or classes of posts, without affecting the general efficiency of service. 62. The Constitution Bench went on to observe that the constitutional equality is inherent in the rule of law. However, its reach is limited because its primary concern is not with efficiency of the public law, but with its enforcement and application. The Constitution Bench also observed that the width of the power and the power to amend together with its limitations, would have to be found in the Constitution itself. It was held that the extension of reservation would depend on the facts of each case. In case the reservation was excessive, it would have to be struck down. 63. It was further held that the impugned Constitution Amendments, introducing Articles 16(4-A) and 16(4-B), had been inserted and flow from Article 16(4), but they do not alter the structure of Article 16(4) of the Constitution. They do not wipe out any of the constitutional requirements such as ceiling limit and the concept of creamy layer on one hand and Scheduled Castes and Scheduled Tribes on the other hand, as was held in Indra Sawhney case8. 64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Caste and Scheduled Tribe candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution. 65. In effect, what has been decided in M. Nagaraj case7 is part recognition of the views expressed in Virpal Singh Chauhan case9, but at the same time upholding the validity of the Seventy-seventh, Eighty- first, Eighty-second and Eighty-fifth 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 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 Articles 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity. 66. The position after the decision in M. Nagaraj case7 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. 67. The view of the High Court is based on the decision in M. Nagaraj case7 as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Caste and Scheduled Tribe 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 Caste and Scheduled Tribe communities and the same does not call for any interference. 68. 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 case7 and is disposed of accordingly. Consequently, Special Leave Petitions (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed." 3.2. Thus, the view taken by the High Court that no exercise was undertaken in terms of Article 16(4-A) of the Constitution to acquire quantifiable data regarding inadequacy of the representation of the Scheduled Caste (SC) and Scheduled Tribe (ST) communities in public services, was accepted. ;