Judgment :- The short question that arises for consideration in this writ petition is whether the petitioner-Association in demanding reservation in the matter of promotion to the post of General Manager in the Chennai Petroleum Corporation Limited (for short CPCL) erstwhile known as Madras Refineries Limited was justified. 2. Thefacts leading to the filing of the present writ petition is as follows:- One V.Natarajan, General Manager (Finance) working in the CPCL got retired and CPCL took efforts to fill up the said post. The petitioner-Association which is registered under the Tamil Nadu Societies Registration Act, claims to have represented the interests of SC/ST employees had sent a representation dated 11.01.2010 asking the CPCL whether reservation is made for filling up the post of General Manager. In response to their query, the CPCL sent a letter dated 29.01.2010 negativing their claim for reservation in the post of General Manager. Since the entire controversy revolves around the stand of the CPCL as expressed in their letter dated 29.01.2010, which became the subject matter of attack in this writ petition, it is necessary to extract their stand from that communication which is as follows:- "As you are aware, reservation in appointments including promotions in Central Public Sector Undertakings is governed by the Presidential Directives issued by the Department of Public Enterprises, Government of India, from time to time. As of now, according to Para 16 of the Presidential Directives, there will be reservation at 15% and 71/2% of vacancies for Scs and Sts respectively, in promotions by selections from Group C to Group B, within Group B and from Group B to the lowest rung of category in Group A in grades and services, in which the element of Direct recruitment, if any, does not exceed 75%. You agree that we are complying with this directive. As regards the reservation in promotion for the post of General Manager, which falls within Group A, Para 14.1 of the said Presidential Directives states that "in promotions by selection to posts within Group "A" (Class I) which carry an ultimate salary of Rs.2250/- (now revised to Rs.20800/w.e.f. 1. 96 vide DPEs OM dated 011. As regards the reservation in promotion for the post of General Manager, which falls within Group A, Para 14.1 of the said Presidential Directives states that "in promotions by selection to posts within Group "A" (Class I) which carry an ultimate salary of Rs.2250/- (now revised to Rs.20800/w.e.f. 1. 96 vide DPEs OM dated 011. 2004) per month or less there is no reservation, except a concession namely that the Scheduled Castes/Scheduled Tribes officers, who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which a select list has to be drawn up, would be included in the list, provided they are not considered unfit for promotion." This directive also is scrupulously implemented in the Company. With regard to the DoPT Office Memorandum (OM) dated 13 August 1998 on Reservation for Scs/STs in promotion, it is to be stated that the said OM conveys that it is has been decided to continue reservation in promotion, as at present, for the Scheduled Castes and the Scheduled Tribes in services/posts under the Central Government beyond 111. 1997 till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation where after, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories. The foregoing would show that as of now reservation in promotion is applicable to posts only up to the lowest rung of category in Group A. In this regard there is no change even after the DoPTs OM dated 13.08.1997, which was issued subsequent to the Constitution (Seventy-Seventh Amendment) Act, 1995. We reiterate that we scrupulously follow only the instructions/directives issued by the Government of India in the matter of reservation. In the light of the foregoing, we state that it would not be possible to reserve the post of General Manager for SC/ST. Notwithstanding the rule of reservation in promotion, we wish to inform that all the eligible SC/ST Officers will be considered for promotion for the post of General Manager along with the other eligible candidates as and when a vacancy arises in future as per rules in vogue." 3. Aggrieved by the action of the respondents, the petitioner has chosen to challenge the said communication in this writ petition. Aggrieved by the action of the respondents, the petitioner has chosen to challenge the said communication in this writ petition. When the matter came up on 05.02.2010, notice was taken by the learned counsel for the respondent-CPCL and thereafter, it was adjourned to 18.02.2010. 4. In the mean while, on behalf of the CPCL, a counter affidavit dated 11.02.2010 was filed together with supporting documents, to which the petitioner Association had filed a rejoinder dated 14.02.2010 with certain Annexures. It was also informed that in the mean while, the interview for the post of General Manager was held on 08.02.2010. It was pursuant to the interview one A.Paul Christudass, Deputy General Manager (Finance) was promoted as General Manager (Finance) by order dated 12.02.2010. 5. Heard the arguments of Mr.Vijay Narayan, learned Senior Counsel appearing for Mr.R.Parthiban for the petitioner and Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for Mr.R.Senthil Kumar of M/s.Dua Associates. 6. Thesheet anchor of the petitioner-Association in filing the writ petition was on the basis of the judgment of a Division Bench of this Court in All India Union Bank of India SC/ST Employees Association v. The Chairman-cum-Managing Director,Union Bank of India and others in W.A.No.304 of 1998 and batch cases dated 012. 2009 (since reported in 2010(1) MLJ 1142 ). In that case, the SC/ST Employees association had challenged the action of various nationalised banks including Union Bank of India, Central Bank of India, Canara Bank and Syndicate Bank and sought for a direction from this Court to those banks to provide reservation in promotions in the category of Junior Management Grade (JMG)Scale I to TEG Scale VII by following the Government of Indias instructions issued in Office Memorandum No.36012/18/95, Ministry of Personnel Public Grievances and Pension Departments of Personnel and Training dated 13.08.1997 and in furtherance of Article 16(4-A) of the Constitution. This Court by a final order dated 012. 2009 allowed the writ appeals and directed the banks to implement the Office Memorandum dated 13.08.1997 issued by the Government of India, within 8 weeks from the date of receipt of the judgment copy. 7. It transpires that subsequent to the judgment, the Additional Solicitor General who appeared for the Union of India forwarded a copy of the judgment with a covering letter dated 112. 2009 to the Government of India and the Government of India subsequently issued two Office Memorandums dated 14.01.2010 and 01.02.2010. 8. 7. It transpires that subsequent to the judgment, the Additional Solicitor General who appeared for the Union of India forwarded a copy of the judgment with a covering letter dated 112. 2009 to the Government of India and the Government of India subsequently issued two Office Memorandums dated 14.01.2010 and 01.02.2010. 8. In the first Office Memorandum dated 14.01.2010, the Government of India in Paragraphs 2 and 3 had directed as follows:- "2. This Departments O.M.No.36012/18/95-Estt(Res.) Pt.II dated 18. 1997 provides that reservation for SCs and STs in promotion, as applicable on the date of the O.M. shall continue beyond 111. 1997 till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation. Whereafter, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for respective categories. A copy of the O.M. is enclosed for ready reference. 3. The department of Financial Services, Ministry of Finance, the nodal department for framing and implementing reservation policy in Financial institutions/Bank etc., is requested to take necessary action in the matter." 9. Subsequently by a circular No.F.No.6/2/2009-SCT(B) dated 01.02.2010 all the Public Sector Banks, State Bank of India and Insurance Companies were given the following direction as found in paragraph 2: "2. It is clarified that as provided in the DoP&Ts O.M.No.36012/18/95-Estt(Res.)Pt.II dated 13.08.1997, reservation for SCs/STs in promotion as applicable on the date of issue of the O.M. (i.e. 13.08.1997), shall continue beyond 11. 1997 till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation whereafter, the reservation in promotions shall continue to maintain the representation in the extent of he prescribed percentages for respective categories." 10. Since these two circulars were issued on the basis of Judgment of the Division Bench of this Court in All India Union Bank of India SC/ST Employees Association (cited supra) it is necessary to understand the ratio of the said judgment. Since the operative portion of the judgment referred to the Government of India’s Office memorandum dated 13.08.1997, it is also necessary to refer to the said Office Memorandum. Since the operative portion of the judgment referred to the Government of India’s Office memorandum dated 13.08.1997, it is also necessary to refer to the said Office Memorandum. As the entire controversy revolved around the interpretation of the said office memorandum, the Office Memorandum dated 13.08.1997 may be usefully extracted below:- Subject : Reservation for the Scs/STs in promotion The undersigned is directed to invite attention to this Departments OM No.36012/37/93-Estt.(SCT) dated 19.08.1993 clarifying that the Supreme Court had, the Indira Sawhney-case, permitted the reservation, for the Scheduled Castes and the Scheduled Tribes, in promotion, to continue for a period of five years from 111. 1992. 2. Consequent to the Judgement in Indira Sawhneys case, the Constitution was amended by the Constitution (Seventy – Seventh Amendment) Act 1995 and Article 16(4A) was incorporated in the Constitution. This Article enables the State to provide for reservation, in matters of promotion, 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. 3. In pursuance of Article 16(4A), it has been decided to continue the reservation in promotion, as at present, for the Scheduled Castes and the Scheduled Tribes in the services/posts under the Central Government beyond 111. 1997 till such time as the presentation of each of the above two categories in each cadre reaches the prescribed percentages of reservation where after, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories. 4. All Ministries/Departments are requested to urgently bring these instructions to the notice of all their attached subordinate offices as also the Public Sector Undertakings and Statutory Bodies etc." (Emphasis added) 11. Therefore the Division Bench accepting the contentions of the SC/ST Employees gave a direction as referred to above in reaching that conclusion. The Division Bench made the following conclusions in the judgment referred to above: "18. ...There is also no dispute that the Ministry of Finance is the nodal Ministry for framing policy on reservation for financial institutions/banks. Therefore, it follows that the Government of India has given clear instructions to all the ministries/Departments, including the Ministry of Finance to implement reservation in promotions to SC/ST employees. ...There is also no dispute that the Ministry of Finance is the nodal Ministry for framing policy on reservation for financial institutions/banks. Therefore, it follows that the Government of India has given clear instructions to all the ministries/Departments, including the Ministry of Finance to implement reservation in promotions to SC/ST employees. It is an admitted case of the respondents that they are implementing the reservation upto the ministerial staff, whereas when it comes to the scale posts, they are not following the rule of reservation. 21. ...Article 16(4-A)was incorporated, thereby introducing an enabling provision for providing reservation in the matter of promotion. 24. ...Had the spirit of Article 16(4-A) been carried out properly, as has even been directed by Government of India to the Banks, at all stages, there would have been adequate representation for these reserved category candidates and since the respondent Banks have paid their deaf ears to such directions issued by the Union of India, there is no adequate representation for these underprivileged classes of the society in the promotions effected by the Banks.....Even though the Regulations of these Banks provide that the promotions to all grades of officers in the Bank shall be made in accordance with the policy laid down by the Board shall be made in accordance with the policy laid down by the Board from time to time, having regard to the guidelines of the Government, if any, in spite of specific instructions from the Government of India, it has not been implemented, causing much prejudice to the employees of SC/ST communities. 25. There is no dispute from any quarter about the fact that a notification was already issued by the Government of India bearing No.36012/18/95-Estt.(Res.)Pt.II, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, Dated 13.08.1997.... 26. ...When the Union of India has directed the Banks to follow the rule of reservation in promotions in all cadres, as early as in the year 1997, there is no impediment for the Banks to implement the same. However, for no better reason to be appreciated, the Banks are adamant in implementing the said OM, issued by the Government of India. 27. However, for no better reason to be appreciated, the Banks are adamant in implementing the said OM, issued by the Government of India. 27. ...By this, we want to insist that while maintaining the efficiency of administration, the Banks can very well implement the OM, dated 13.08.1997 issued by the Government of India and they can also press into service the proviso to Article 335 of the Constitution, wherever and whenever it is so required, to meet the ends of justice." 12. It is under these premises, the order of the Division Bench came to be made. If the dictum of the Division Bench has been correctly understood, the Division Bench came to the following conclusions: a)That in respect of Public Sector Banks, promotions are already available in the category of officers from the Middle Management Grade to TEG (Scale VII). b) Indra Sawhney v. Union of India reported in (1992 supp 3 SCC 217) continued the promotion for a period of five years from 111. 1992. c) Thereafter, Article 16(4-A)was introduced for enabling the Government of India to provide reservation in promotions. d) In order to continue such reservation in promotions which were in force before 111. 1992 and directed to continue up to 111. 1997 was further directed to be continued in the Office Memorandum dated 13.08.1997. e) The details furnished by the Banks did not show that the scale wise revision of SC/ST up to 31.03.2008 was adequate. The question of pressing into service the impact of Article 335 of the Constitution may not arise since no sweeping generalized argument regarding the alleged inefficiency and not being suitable to promotion by the members of SC/ST was advanced by the Bank. f) The proviso to Article 335 inserted by 82nd constitution amendment with effect from 08.09.2000, provides relaxation in qualifying marks or lowering the standards of evaluation for filling up those posts. 13. It is in this context, the Division Bench gave directions which has been circularized by the Government of India for its implementation. Though the learned counsel for the respondents stated that the nationalized banks have taken the matter on appeal to the Supreme Court which is likely to come up any time, it is unnecessary to go into such details. 14. Though the learned counsel for the respondents stated that the nationalized banks have taken the matter on appeal to the Supreme Court which is likely to come up any time, it is unnecessary to go into such details. 14. In the present case, whether the ruling in the All India Union Bank of India SC/ST Employees Associations case can be pressed into service by the petitioner Association even for filling up the post of General Manager as it was constitutionally guaranteed and that such a right can be enforced by a writ in the nature of mandamus by this Court is the question remains to be answered. 15. In response to the claim by the petitioner Society, in the Counter affidavit, heavy reliance was placed upon the office memorandum dated 25.04.1991 issued by the Ministry of Industry, Department of Public Enterprise which provides reservation for SC/ST in the appointment of the Public Sector Enterprise. Paragraph 14 of the said office memorandum is as follows:- 14. Promotions by Selection within Group"A: (Class 1) "14.1 In promotion by selection to posts within Group A (Class 1) which carry an ultimate salary of Rs.2250(revised to Rs.5700) per month or less there is no reservation, except a concession namely that the Scheduled Castes/Scheduled Tribes Officers, who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn up, would be included in the list, provided they are not considered unfit for promotion. Their position in the select list would, however, be the same as assigned to them by the Departmental Promotion Committee on the basis of their record of service. They would not be given for this purpose, one grading higher than the grading otherwise assignable to them on the basis of their record service. It may be noted that the salary limit of Rs.2250/-per month mentioned above has been revised to Rs.5700/- based on the recommendations of the High Power Pay Committee (HPPC). In the case of officers in PSUs who are following Central Government DA pattern. In PSEs which are following IDA pattern the corresponding monetary ceilings would be Rs.6900/- as revised w.e.f. 1. 87 (Rs.3200/-where pay scale have not been revised)" 16. In the case of officers in PSUs who are following Central Government DA pattern. In PSEs which are following IDA pattern the corresponding monetary ceilings would be Rs.6900/- as revised w.e.f. 1. 87 (Rs.3200/-where pay scale have not been revised)" 16. After extracting the said directive in the counter affidavit, it was stated that the Office Memorandum dated 13.08.1997 will apply to cases of reservation in promotion which are available in services and posts as were available on the date of judgment in Indra Sawhneys case (cited supra) and did not apply to cases where there were no reservation earlier in promotion. Therefore, it was emphatically stated that the post General Manager is not earmarked and kept reserved exclusively for SC/ST candidates. Finally, in paragraph 15 of the counter affidavit, it was stated as follows:- "15. ... It is relevant to state that the department of Personnel and Training has now issued Office Memorandum No.36012/43/2008-Estt.(Res) dated 11. 2010 to the Ministry of Finance in which it has been clarified that the Office Memorandum No.36012/18/95-Estt(Res) Pt.II dated 18. 1997 provides that reservation for schedule caste and schedule tribes in promotion as applicable on the date of issue of the Office memorandum shall continue beyond 111. 1997 As stated earlier, prior to and as on 18. 1997 the reservation applicable in the mater of promotion was only from group C to Group B, within Group B and from Group B to the lowest rung in Group A. Therefore, the same is being continued till date and the respondent corporation has complied with Office Memorandum No.36012/18/95-Estt.(Res) Pt.II dated 18. 1997." 17. In order to appreciate the rival contentions raised herein, it is necessary to refer to certain judgments of the Supreme Court on the Sweep, Scope and import of Article 16(4-A) of the Constitution in the matter of reservation in promotion. 18. The Supreme Court in National Federation of S.B.I. v. Union of India reported in (1995) 3 SCC 532 dealt with the scope of reservation in promotion and also reviewed the previous cases on the subject. The following passages found in paragraphs 23,29,31 and 32 may be usefully extracted below: 23. 18. The Supreme Court in National Federation of S.B.I. v. Union of India reported in (1995) 3 SCC 532 dealt with the scope of reservation in promotion and also reviewed the previous cases on the subject. The following passages found in paragraphs 23,29,31 and 32 may be usefully extracted below: 23. For the above reasons, we must say, with all the respect at our command that the decision in Bihar State Harijan Kalyan Parishad1 cannot be said to lay down the law correctly insofar as it purports to hold that the rule of reservation applies in the matter of promotions within Class I. 29. It is true that we have arrived at a conclusion which is different from the one adopted in Bihar State Harijan Kalyan Parishad1 and in Syndicate Bank Scheduled Castes and Scheduled Tribes Employees’ Assn.3 but we have no alternative in view of the clear language of the Office Memorandum dated 26-3-1970, the Presidential directive referred to in Bihar State Harijan Kalyan Parishad1 as also para 9 of the Brochure (whichever edition one looks to). It may be that according to our interpretation, the members of Scheduled Castes/Scheduled Tribes may stand to gain in some cases, in the sense that they may get more number of promotions than they would have been entitled to had the rule of reservation been applied to promotions within Class I, while in some other cases they may stand to lose. But that cannot be a factor determining the interpretation of the relevant orders. It also appears that a view different from the view taken in Bihar State Harijan Kalyan Parishad1 was taken in the order dated 18-8-1988 in Writ Petition No. 1594 of 1987 (All India Bank of Baroda SC/ST Employees’ Assn. v. Union of India4), wherein it was held, no doubt on the basis of a concession made by the learned counsel for the writ petitioners, that “the promotion by selection method of officers within Group ‘A’ (Class I) in the Bank of Baroda shall be done in accordance with the rules contained in para 9.2 in Chapter 9 of the Brochure”. This order does not refer to rule of reservation. 31. This order does not refer to rule of reservation. 31. For the above reasons, we hold that in the matter of promotion by selection to posts within Class I which carry an ultimate salary of Rs.2250 in the revised scale of pay per month or less, there is no reservation in favour of Scheduled Castes/Scheduled Tribes but they are entitled to the concession contained in para 2 of the Office Memorandum dated 26-3-1970 issued by the Ministry of Home Affairs. The concession is that those Scheduled Castes/Scheduled Tribes officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn up will be included in the select list provided they are not considered unfit for promotion. (This rule has been explained in the body of the judgment by giving an illustration, which it is not necessary to repeat here.) The position of such candidates included in the select list would, however, be the same as is assigned to them by the Departmental Promotion Committee on the basis of their record of service. The said candidates would not be entitled, for the purpose of the said selection, one grading higher than the grading otherwise assignable to them on the basis of their record of service. This is also the purport of para 9 of the Brochure insofar as it deals with promotions within Class I. 32. So far as prayer (b) in Writ Petition No. 896 of 1990 is concerned, we must say that it is not possible to accede to it. The prayer is to direct the respondents in the writ petition to fill up the backlog of unfilled vacancies since 1978 by applying the carry-forward rule in all grades and scales with consequential benefits. Firstly, none of the relevant memorandums and orders referred to above provide for carry-forward rule. In the absence of such a rule, each year has to be treated as the unit for applying the rule of reservation or concession, as the case may be. In any event, so far as the concession concerned herein is concerned, it can be applied and followed only when a selection takes place. In the absence of a rule to that effect, the said concession cannot be given effect to retrospectively. These writ petitions were filed only in 1990 or thereafter. In any event, so far as the concession concerned herein is concerned, it can be applied and followed only when a selection takes place. In the absence of a rule to that effect, the said concession cannot be given effect to retrospectively. These writ petitions were filed only in 1990 or thereafter. In such a case, there can be no question of relating back the relief to 1978. So far as prayer (c) is concerned, it is equally beside the point in the light of what we have decided herein, viz., that the special provision made in the matter of promotions with Class I is not in the nature of reservation but a concession. The only declaration and direction that can be granted in these matters is that the respondents shall apply, implement and follow the concession contained in para 2 of the Office Memorandum dated 26-3-1970 aforesaid in the matter of promotions in Class I to be made hereafter. Of course, so far as promotions to Classes II, III and IV and promotions from Class II to the lowest rung or category in Class I are concerned, the orders in Office Memorandum dated 11-7-1968 shall be followed." (Emphasis added) 19. The same view was reiterated in State Bank of India Scheduled Caste/Tribe Employees Welfare Assn. v. State Bank of India reported in (1996) 4 SCC 119 . In paragraph 14, the Supreme Court observed as follows: "14.. ...Our attention in this connection has been drawn to a recent decision of this Court in the case of National Federation of S.B.I. v. Union of India. In that case, one of the prayers was for a direction to fill up the backlog of unfilled vacancies since 1978 by applying the carry-forward rule in all grades and scales with consequential benefits. This Court said that in the absence of a rule providing for retrospective grant of concession such a relief could not be granted. This judgment which is of a Bench of three Judges of this Court has differed from the decision of a Bench of two Judges of this Court in Syndicate Bank Scheduled Castes and Scheduled Tribes Employees’ Assn. (Regd.) v. Union of India. The judgment in the Syndicate Bank case has been relied upon by the learned counsel for the employees in support of her contention that retrospective relief should be granted in the present case. (Regd.) v. Union of India. The judgment in the Syndicate Bank case has been relied upon by the learned counsel for the employees in support of her contention that retrospective relief should be granted in the present case. In view of the observations in the later judgment of a larger Bench of this Court in the case of National Federation of S.B.I., we prefer to follow the ratio laid down in the case of the National Federation of S.B.I. v. Union of India." 20. The said judgment came to be followed in Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 . After referring to the State Bank of India Scheduled Caste/Tribe Employees Welfare Assn. (cited supra) in Paragraph 24 observed as follows: "24. This statement of law makes it clear that there is no uniform or prescribed method of providing reservation. The extent and nature of reservation is a matter for the State to decide having regard to the facts and requirements of each case. Such a situation was indeed dealt with in National Federation of S.B.I. v. Union of India(rendered by one of us, B.P. Jeevan Reddy, J. on behalf of the Bench which included R.M. Sahai and S.C. Sen, JJ.). In the case of service under Public Sector Banking Institutions, while reservation in promotions was provided in the case of promotion from Class IV to Class III, Class III to Class II and from Class II to Class I, no such reservation was provided so far as promotions within Class I were concerned. Only a concession (set out in the judgment) was provided in favour of Scheduled Caste/Scheduled Tribe candidates with a view to enable them to obtain promotions within Class I which they may not have obtained otherwise. It was held by this Court that such a concession can also be provided under Article 16(4). Only a concession (set out in the judgment) was provided in favour of Scheduled Caste/Scheduled Tribe candidates with a view to enable them to obtain promotions within Class I which they may not have obtained otherwise. It was held by this Court that such a concession can also be provided under Article 16(4). In short, it is open to the State, if it is so advised, to say that while the rule of reservation shall be applied and the roster followed in the matter of promotions to or within a particular service, class or category, the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over his senior in the feeder category and that as and when a general candidate who was senior to him in the feeder category is promoted, such general candidate will regain his seniority over the reserved candidate notwithstanding that he is promoted subsequent to the reserved candidate. There is no unconstitutionality involved in this. It is permissible for the State to so provide. The only question is whether it is so provided in the instant case?" (Emphasis added) 21. It must also be noted that even after the introduction of Article 16(4-A), the Supreme Court has constantly held that the reservation in promotion guaranteed by the Constitution is only an enabling provision and there is no directive or command either under Article 16(4) or Article 16(4-A) as found in Article 16(1). 22. The Supreme Court in Ajit Singh II v. State of Punjab reported in (1999) 7 SCC 209 , dealt with the scope of Article 16(4) and Article 16(4-A). The following passages found in paragraphs 18,28,31,32,38 and 39 may be usefully extracted below:- "18. Nobody can deny that the above approach is the proper one while dealing with the reserved classes. The primary purpose of Article 16(4) and Article 16 (4-A) is due representation of certain classes in certain posts. However, we must bear in mind and not ignore that there are other provisions, namely, Articles 14, 16(1) and Article 335 of the Constitution which are also very important. The Constitution has laid down in Articles 14 and 16(1) the permissible limits of affirmative action by way of reservation under Articles 16(4) and 16(4-A). However, we must bear in mind and not ignore that there are other provisions, namely, Articles 14, 16(1) and Article 335 of the Constitution which are also very important. The Constitution has laid down in Articles 14 and 16(1) the permissible limits of affirmative action by way of reservation under Articles 16(4) and 16(4-A). While permitting reservations at the same time, it has also placed certain limitations by way of Articles 14 and 16(1) so that there is no reverse discrimination. It has also incorporated Article 335 so that the efficiency of administration is not jeopardised. 28. We next come to the question whether Article 16(4) and Article 16(4-A) guaranteed any fundamental right to reservation. It should be noted that both these articles open with a non obstante clause — “Nothing in this Article shall prevent the State from making any provision for reservation....” (emphasis supplied) There is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4-A) on the other. There is no directive or command in Article 16(4) or Article 16(4-A) as in Article 16(1). On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963. 31. Unfortunately, all these rulings of larger Benches were not brought to the notice of the Bench which decided Ashok Kumar Gupta and Jagdish La and to the Benches which followed these two cases. In view of the overwhelming authority right from 1963, we hold that both Articles 16(4) and 16 (4-A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provisions vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those articles so warranted. We accordingly hold that on this aspect Ashok Kumar Gupta, Jagdish Lal and the cases which followed these cases do not lay down the law correctly. Power is coupled with duty 32. Learned Senior Counsel for the reserved candidates, Shri K. Parasaran however contended that Article 16(4) and Article 16(4-A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Power is coupled with duty 32. Learned Senior Counsel for the reserved candidates, Shri K. Parasaran however contended that Article 16(4) and Article 16(4-A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Reliance for that purpose was placed upon Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan and also on Julius v. Lord Bishop which case was followed by this Court in Commr. of Police v. Gordhandas Bhanji. We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran v. Union of India8 held that Article 16(4) conferred a discretion and did not create any constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reservation under Article 16(4) in certain Class I and Class II services. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused. Even in M.R. Balaji case the Constitution Bench declared that Article 16(4) conferred only a discretion. It is true that in Jagannathan case the three-Judge Bench issued a mandamus, after referring to Article 142, that the Government must add 25 marks to SC/ST candidates who had taken the SAS Examination for promotion as Section Officers and also that, in future, a reduced minimum marks must be provided and announced before the examination. The Court also observed that the Department had not passed orders as per a general OM of the Government dated 21-9-1977. But the attention of the Court was not drawn to the judgment of the Constitution Bench in C.A. Rajendran case and other cases to which we have referred earlier. Further, if the State is of the opinion that in the interests of efficiency of administration, reservation or relaxation in marks is not appropriate, then it will not be permissible for the Court to issue a mandamus to provide for reservation or relaxation. Further, if the State is of the opinion that in the interests of efficiency of administration, reservation or relaxation in marks is not appropriate, then it will not be permissible for the Court to issue a mandamus to provide for reservation or relaxation. We also note that in Superintending Engineer, Public Health v. Kuldeep Singh, Jagannathan case was followed and reference was made to Article 16(4) and Article 16(4-A) and to the principle that where a power is coupled with a duty as in Julius v. Lord Bishop and Commr. of Police v. Gordhandas Bhanji the same could be enforced by the court. But we may point out that even in Kuldeep Singh case no reference was made to C.A. Rajendran and other cases. We, accordingly, hold that the view in Jagannathan and Kuldeep Singh cases that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be said to be laying down the correct law. 38. Krishna Iyer, J. also cautioned in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of Balancing of fundamental rights under Article 16(1) and the rights of reserved candidates under Articles 16(4) and 16(4-A) India (at SCC p.286, para 73) that “care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse”. The learned Judge relied upon State of J&K v. Triloki Nath Khosa and State of Kerala v. N.M. Thomas. Krishna Iyer, J. stated in Soshit Karamchari case (para 102) that reservations cannot lead to an “overkill”. At p.301, His Lordship said: (SCC para 102) “102. The remedy of ‘reservations’ to correct inherited imbalances must not be an overkill.” In other words, affirmative action stops where reverse discrimination begins. (i) Efficiency of administration and Article 335 39. It is necessary to see that the rule of adequate representation in Article 16(4) for the Backward Classes and the rule of adequate representation in promotion for Scheduled Castes and Scheduled Tribes under Article 16(4-A) do not adversely affect the efficiency in administration. In fact, Article 335 takes care to make this an express constitutional limitation upon the discretion vested in the State while making provision for adequate representation for the Scheduled Castes/Tribes. In fact, Article 335 takes care to make this an express constitutional limitation upon the discretion vested in the State while making provision for adequate representation for the Scheduled Castes/Tribes. Thus, in the matter of due representation in service for Backward Classes and Scheduled Castes and Scheduled Tribes, maintenance of efficiency of administration is of paramount importance. As pointed in Indra Sawhney4 the provisions of the Constitution must be interpreted in such a manner that a sense of competition is cultivated among all service personnel, including the reserved categories. (ii) Reservation and effect of the roster-point reservation" (Emphasis added) 23. Once again the Constitution Bench of the Supreme Court in M.Nagaraj v. Union of India reported in (2006) 8 SCC 212 went into the same issue. Though the Division Bench referred to M.Nagarajs case (cited supra), it had extracted only the passages found in Paragraphs 121 and 122 which dealt with the scope of fixing ceiling limit of 50% in the matter of filling up backlog vacancies and effect of the proviso to Article 335 of the Constitution as introduced by 82nd amendment. On identifying the posts for promotion and enforceability of the directives of the Government by the Courts were came to be dealt in the passages found in paragraphs 102,104,107 and 123, which may be usefully extracted below: "102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catchup” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is—whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh (I), Ajit Singh (II) and Indra Sawhney were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets— “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality. 104. Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-second) Amendment Act, 2000. The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4). 107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4). 107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16 (4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between “equality in law” and “equality in fact” (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred. 123. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred. 123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned 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 SCs/STs in matters 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 with 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." (Emphasis added) 24. Subsequent to M.Nagarajs case (cited supra), the Supreme Court in Union of India v. Pushpa Rani reported in (2008) 9 SCC 242 , in paragraph 37 held as follows:- "37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration." (Emphasis added) 25. The Supreme Court very recently in Nair Service Society v. Dr. T. Beermasthan reported in (2009) 5 SCC 545 in paragraphs 48,55 and 56 had observed as follows:- 48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block. 55. It may be mentioned that reservation provisions are enabling provisions. In other words, the State is not bound to make a reservation, but it is empowered to do so in its own discretion vide M. Nagaraj v. Union of India. In para 102 of the said judgment, the Constitution Bench of this Court observed: (SCC p.269) 56. Different State Governments in the country may have different methods for providing reservations, and these will be valid as long as the method adopted by a particular State Government does not violate any constitutional provision or statute. It is not for this Court to decide on the wisdom or otherwise of the said method of reservation. This Court should exercise judicial restraint and not interfere with the same unless there is some clear illegality. In our opinion the method prescribed by the Rules made by the State Government suffers from no infirmity or illegality, and hence the High Court acted wrongly in allowing the writ petition." “102.…The impugned constitutional amendments are enabling in nature. This Court should exercise judicial restraint and not interfere with the same unless there is some clear illegality. In our opinion the method prescribed by the Rules made by the State Government suffers from no infirmity or illegality, and hence the High Court acted wrongly in allowing the writ petition." “102.…The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation.” The same view has been taken in paras 107 and 123 of the aforesaid decision. 26. Once again in its latest judgment, the Supreme Court in Gulshan Prakash (Dr.) and Others v. State of Haryana and others reported in (2010) 1 SCC 477 dealt with the similar contention, though made in the context of admissions to Post Graduate Degree in Medicine, yet the Supreme Court referred to Ajith Singh (II) v.State of Punjab, a Constitution Bench of this Court in para 28 has held that Article 16(4) is only an enabling provision which reads as under: (SCC p.229) "28. ....On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963." 27. From the aforesaid journey into the various decisions of the Supreme Court referred to above, the following propositions emerges: i) that Article 16(4-A) providing for reservation in promotion is an enabling provision. ii) It is for the State to make appropriate Rules consistent with Article 16(4) and 16(4-A) and Article 335 to make appropriate Rules by grant of due representation in various post. iii) If the State wants to make a provision, it has to collect quantifiable data showing backwardness of the class, inadequacy of representation of that class in pubic employment and mandatory compliance with Article 335 of the Constitution. iv) The Court cannot sit in appeal over the judgment of the State or Employer and ordain that a particular post be filled by direct recruitment/promotion and no mandamus can be issued either to provide for reservation or for relaxation and the earlier judgments in this regard were not correctly decided. 28. iv) The Court cannot sit in appeal over the judgment of the State or Employer and ordain that a particular post be filled by direct recruitment/promotion and no mandamus can be issued either to provide for reservation or for relaxation and the earlier judgments in this regard were not correctly decided. 28. If it is seen in this context, then the petitioners have not shown either by the Office Memorandum dated 13.08.1997 that there was a pre-existing direction of the Government of India or the CPCL in reserving the post of General Manager to be filled up through an exclusive reservation in promotion and to be filled up by SC/ST candidates. Further, the Office Memorandum issued by the Department of Public Enterprises dated 25.04.1991 do not provide for such a right on the part of SC/ST employees. 29. The attempt made by the petitioner Society to enforce a right which is neither a constitutional right nor supported by any law made in this regard cannot be sustained. Further, as held by the Supreme Court, the Court cannot issue a writ in the nature of mandamus directing the respondent CPCL to fill a particular post without the Government of India or the CPCL undertaking an exercise to identify such post to be filled up by reservation in promotion. The reliance placed by the petitioner Society on the judgment of All India Union Bank of India,SC/ST Employees Associations case (cited supra) is not apposite. 30. The writ petition is misconceived and devoid of merits. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.