- (1.) This is an application for modification of our order dated 22-2-2008. In the application for modification, it has been alleged by the appellant that there was no occasion for this Court to decide the constitutional validity of Rule 8(A) of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007 in M. Nagaraj v. Union of India2. It has been further alleged that the writ petitioners had never challenged the constitutional validity of Article 16(4-A) of the Constitution of India in their writ petition.
(2.) We have heard Mr U.U. Lalit, learned Senior Counsel for the applicant Respondents 1, 2, 5 and 7 and Mr Rakesh Dwivedi, learned Senior Counsel appearing for the appellant. In our order dated 22-2-2008,U.P. Avas Evam Vikas Parishad v. Rajendra Kumar Aggarwal, 2008 3 SCC 672 we have made the following observations in para 6 of the same which runs as under: "6. Having heard the learned counsel for the parties and after going through the decision of this Court in M. Nagaraj v. Union of India2 in which the constitutional validity of the provisions of Article 16(4-A) of the Constitution of India and Rule 8(A) of the U.P. Government Servants Seniority (Third Amendment) Kuies, 2007 has already been upheld, we are unable to agree with Mr P.P. Rao that at the interim stage, there was any occasion for the High Court to grant the interim order in this pending writ application."
(3.) It appears that there has been a mistake on our part when we said that the constitutional validity of the provisions of Rule 8(A) of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007 has already been upheld in M. Nagaraj v. Union of India, 2006 8 SCC 212 Considering this aspect of the matter, we direct that the sentence viz. "and Rule 8(A) of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007" be deleted and the paragraph which has been noted hereinabove may be replaced with the following paragraph: "Having heard the learned counsel for the parties and after going through the decision of this Court in M. Nagaraj v. Union of India2 in which the constitutional validity of the provisions of Article 16(4-A) of the Constitution of India has already been upheld, we are unable to agree with Mr P.P. Rao, that at the interim stage there was any occasion for the High Court to grant interim order in this pending writ application.";