Reservation In Promotion: Plea In Supreme Court Seeks Review Of Declaration That M Nagaraj Judgment Will Have Only Prospective Effect

Two individual employees belonging respectively to Madhya Pradesh and Indian Railways have filed a review petition against the Top Court's judgment delivered in Jarnail Singh's case with regards to the prospective effect of its 2006 judgment in M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212.

On January 27, 2022 the Supreme Court had declared that its 2006 judgment in M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212, will have only prospective effect.

"This is to avoid chaos and confusion that would ensue from its retrospective operation, the court said. Making the principles laid down in M. Nagaraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time," the bench comprising Justices L. Nageswara Rao, Sanjiv Khanna and BR Gavai observed.

The court noted that in M.A. Murthy v. State of Karnataka (2003) 7 SCC 517, it was held that prospective overruling can be done only by the Court which has rendered the decision. The bench also noted that, in Ashok Kumar Gupta & Anr. v. State of U.P. (1997) 5 SCC 201, it was observed that there is no prohibition to postpone the operation of the judgment in Indra Sawhney (supra) or to prospectively overrule the ratio in General Manager, Southern Railway v. Rangachari (1962) 2 SCR 586.

The court therefore held that the observation made in M.A. Murthy (supra) that there shall be no prospective overruling unless indicated in the particular decision is obiter. The court said:

"42. This Court in Golak Nath (supra) and Ashok Kumar Gupta (supra), referred to above, has laid down that Article 142 empowers this Court to mould the relief to do complete justice. To conclude this point, the purpose of holding that M. Nagaraj (supra) would have prospective effect is only to avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj (supra). Most of them would have already retired from service on attaining the age of superannuation. The judgment of M. Nagaraj (supra) was delivered in 2006, interpreting Article 16(4-A) of the Constitution which came into force in 1995. As making the principles laid down in M. Nagaraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M. Nagaraj (supra) should be declared to have prospective effect."

It has been submitted in the petitions that there appears to be an error apparent on the fact of the record in that the very judgment of M Nagraj v. The Union of India upheld the 77th Constitutional Amendment subject to certain limitations.

"Therefore the said amendment as a necessary concomitant includes the limitations as a part of itself from the date it came into force, that is June 17, 1995. Without the said limitations, the constitutional validity of the said amendment will be questionable. Therefore, prospective operation of M Nagraj v. Union of India was not a possibility and indeed this Hon'ble Court thought it fit to not declare it so in that judgment," petition further states.

It has further been averred in the petition that protecting the promotions-seniority illegally granted by respective governments in violation of M. Nagraj is not at all a common question in all tagged matters, independent of facts of each matter.

In this regard it has further been stated that, "In the case of Madhya Pradesh matters, illegal promotions till 12.12.2002 are barred from protection because of explicit orders of the State Administrative Tribunal, endorsed by the High Court, Jabalpur, independent of M. Nagraj pre-conditions. In case of writ petition filed by Mr. M. Nagraj, 3-judge bench while referring the challenge to constitution bench on 08.04.2002 had made all action in pursuance of four impugned Amendments, subject to final outcome in that matter. Different such dates of operation exist for the Union of India and various States. Para-42 of impugned judgment thus violates both judicial comity & judicial discipline."

The petition further states that it is highly illogical to protect illegally granted promotion and seniority of period of 11 years (1995-2006) while leaving out of protection the illegal action of 16 years (2006-2022) nearer home.

"Only logical explanation is that the Court might take care of the remaining illegal action of 16 years in state-wise disposal orders. But this would set a very dangerous precedent of double-decker prospective overruling in the same matter, never before heard of in judicial history. Para-42 of impugned judgment, in light of authoritative rulings on exercise of extraordinary powers under Article 142, thus violates judicial discipline," plea states.

Reliance has been placed on the 7 judge bench judgment in State of Rajasthan Vs. Union of India to aver that Indirectly deciding the question of competing claims of violation of fundamental rights of citizens amounts to abdicating a duty.

The petitions have been filed by Advocate Mrigank Prabhakar.

Case Title: Satish Kumar Shrivastava v The State of Madhya Pradesh & Others and Bhaskar Guha v Union of India and Ors