JUDGMENT : HON’BLE THE ACTING CHIEF JUSTICE, SHREE CHANDRASHEKHAR In this batch of writ petitions, the constitutional validity of Eighty-Fifth Amendment Act, 2001 has been challenged primarily on the ground that the amended Article 16(4-A) violates the right to equality under Article 14 and the right to equal opportunity in service under Article 16 of the Constitution. The petitioners are aggrieved by refixation of their seniority in the cadre pursuant to the Resolution No.1862 dated 31st March 2003 which was issued by the State of Jharkhand to give effect to Article 16(4-A) of the Constitution. Therefore, the petitioners have also challenged their respective seniority/civil list on a similar ground of violation of Article 14 and Article 16 of the Constitution. For example, the petitioners in W.P(S) No.5882 of 2003 have challenged the provisional gradation list vide Notification dated 15th March 2003 whereunder their seniority has gone down the list to their prejudice. Similarly, in WP(S) No.3963 of 2006 the petitioners have challenged the provisional gradation list dated 29th June 2006 on a similar ground. 2. The petitioners have also questioned the Resolution dated 31st March 2003 issued by the State of Jharkhand adopting the office memorandum issued by the Union of India. 3. In W.P(S) No. 5882 of 2003, the petitioners have made the following prayers: i. for quashing/setting aside the 85th Amendment Act 2001, Article 16(4A) whereby and whereunder the Constitution of India has been amended to the effect that 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 class of position in the service under the state in favour of the scheduled case and the scheduled tribe which, in the opinion of the state are not adequately represented in the service under the state. ii. For also quashing/setting aside the circular dated 31.3.2002 issued under the signature of the respondent no.2 whereby and whereunder the State of Jharkhand had adopted the memorandum dated 21.1.2002 issued by Union of India. iii. For also quashing/setting aside the notification dated 15.3.2003 issued by the Government of Bihar whereby and whereunder the provisional gradation list has been prepared taking into consideration the 85th Amendment in the Constitution of India which is clearly prejudicial to the interest of the petitioners in view of the fact that the juniors to the petitioners have become senior. iv. For also quashing/setting aside the notification dated 15.3.2003 issued by the Government of Bihar whereby and whereunder the provisional gradation list has been prepared taking into consideration the 85th Amendment in the Constitution of India which is clearly prejudicial to the interest of the petitioners in view of the fact that the juniors to the petitioners have become senior. iv. For issuance of any other appropriate direction for doing conscionable justice to the petitioner.” 4. There is an unanimity at the Bar that the constitutional validity of Eighty-Fifth Amendment Act, 2001 after having been affirmed by the Hon’ble Supreme Court in “M. Nagaraj v. Union of India” (2006) 8 SCC 212 cannot be debated before this Court. However, the petitioners seek to challenge the Resolution dated 31st March 2003 on the ground that the instructions/directions contained thereunder are unguided, arbitrary and do not confirm to the law laid down by the Hon’ble Supreme Court in “M. Nagaraj”, “Jarnail Singh v. Lachhmi Narain Gupta” (2018) 10 SCC 396 (hereinafter referred to as “Jarnail Singh-I”) and other cases. 5. Mr. Rahul Kumar, the learned counsel who appears for the petitioners in WP(S) Nos.3963 of 2006 and 109 of 2017 takes this Court through the history of reservation in service. The learned counsel has referred to “General Manager, S. Rly. v. Rangachari” (1962) 2 SCR 586 wherein the majority decision was that reservation in promotions is permissible. Then came “State of Kerala v. N.M. Thomas” (1976) 2 SCC 310 which held that Article 16(4) is not an exception to Article 16(1). It was in “Indra Sawhney v. Union of India” 1992 Supp (3) SCC 217 where the majority opinion held that the view expressed in “Rangachari” was erroneous and that reservation in promotions is impermissible under Article 16. Thereafter, Article 16 has undergone amendments to provide for reservation in the promotions and preserving the consequential seniority of the Scheduled Castes and Scheduled Tribes. 6. In “M. Nagaraj”, the Hon’ble Supreme Court held that Clause (1) and Clause (4) of the Article 16 of the Constitution embody the principle of equality under Article 14. Therefore, in every case where the State decides to provide for reservation in promotions to the Scheduled Castes and Scheduled Tribes the said decision must be based on twin considerations viz. (i) backwardness and (ii) inadequacy of representation in service. Therefore, in every case where the State decides to provide for reservation in promotions to the Scheduled Castes and Scheduled Tribes the said decision must be based on twin considerations viz. (i) backwardness and (ii) inadequacy of representation in service. In “M. Nagaraj”, the Hon’ble Supreme Court held as under: “121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) 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 OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt 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 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. 124. 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 the 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.” 7. Mr. Manoj Tandon and Mr. Rahul Kumar, the learned counsels for the petitioners submit that notwithstanding the constitutional validity of Article 16 (4-A) of the Constitution having been upheld by the Hon’ble Supreme Court the individual writ petitions are required to be dealt with on their own merits. 8. For the sake of convenience, we shall refer to the pleadings in W.P(S) Nos.5882 of 2003. The petitioners therein have pleaded that they were appointed as Assistant Engineers in the Department of Road Construction in the erstwhile State of Bihar. After the bifurcation of the State of Bihar, they were allotted Jharkhand cadre and were posted in different capacity under different departments of the Government of Jharkhand. The grievance of the petitioners who belong to General category is that the Assistant Engineers under the Scheduled Castes and Scheduled Tribes category (a) who were juniors to them (b) some of them were diploma holders and (c) even those who joined as Junior Engineers and promoted to the post of Assistant Engineer on a much later date, are shown senior to them in the provisional gradation list which was issued after Eighty-Fifth Amendment. Mr. Manoj Tandon, the learned counsel has referred to the comparative chart of seniority before and after Eighty-Fifth Constitution Amendment to demonstrate that unguided adoption and implementation of Article 16(4-A) of the Constitution has caused serious harm to their promotional prospects. The learned counsel has demonstrated that the petitioner no.1 who was initially holding seniority position at Sl. No.232 has gone down in the list at Sl. No.598. Similarly, the other petitioners have also lost their seniority by about 300 position. Whereas, the Scheduled Caste candidates who were appointed later and came in the initial cadre about 5 years after the petitioners have gained and jumped in the seniority list. No.232 has gone down in the list at Sl. No.598. Similarly, the other petitioners have also lost their seniority by about 300 position. Whereas, the Scheduled Caste candidates who were appointed later and came in the initial cadre about 5 years after the petitioners have gained and jumped in the seniority list. For example, Ramdeo Paswan who holds a diploma qualification and was appointed in 1980 was at Sl. No.429 in the seniority list and now he is placed at Sl. No.305. 9. The comparative chart showing the positions of the petitioners and the Scheduled Castes and Scheduled Tribes officers in the gradation list is reproduced below: Sl. No. Petitioner name Joined as Asst. Engg. in the years Technical Qualification Seniority position in the gradation list dated 15.7.2000 Seniority position in the gradation list dated 15.7.2003 Category 1. Sri Raghubansh Prasad Singh 1975 Degree 232 598 General 2. Sri Ganesh Prasad 1975 Degree 263 653 General 3. Sri Tripurari Shankar Prasad 1976 Degree 279 683 General 4. Sri Jai Kishore Dutta 1976 Degree 294 698 General 5. Sri Krishna Nand Choubey 1976 Degree 315 718 General 10. The list of the Scheduled Castes and Scheduled Tribes officers gaining seniority in the gradation list is as under: 1. Sri Ramdeo Paswan 1980 Diploma 429 305 SC 2. Sri Yadu Nandan Choudhary 1980 Degree 369 309 SC 3. Sri Jai Ram Rajak 1980 Diploma 385 373 SC 4. Sri Badshahi Choudhary 1980 Diploma 389 377 SC 5. Sri Amrendra Kumar 1981 Diploma 393 379 SC 6. Sri Pramod Kumar No.2 1981 Diploma 397 391 SC 7. Sri Hari Charan Rajak 1981 Diploma 430 393 SC 11. Some arguments on applicability of creamy-layer are also advanced by the learned counsel for the petitioners. Mr. Manoj Tandon, the learned counsel for the petitioners has endeavored to contend that the creamy layer restriction has not been considered by the State and the Resolution dated 31st March 2003 does not exclude such Scheduled Castes and Scheduled Tribes seeking reservation in promotions. However, Mr. Sreenu Garapati, the learned SC-III, successfully controverted the attack on Resolution dated 31st March 2003 on such a ground by referring to several paragraphs in “B.K. Pavitra v. Union of India” (2019) 16 SCC 129 . 12. However, Mr. Sreenu Garapati, the learned SC-III, successfully controverted the attack on Resolution dated 31st March 2003 on such a ground by referring to several paragraphs in “B.K. Pavitra v. Union of India” (2019) 16 SCC 129 . 12. In “B.K. Pavitra”, the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018 (in short, Reservation Act) enacted to protect the consequential seniority of the Scheduled Castes and Scheduled Tribes from 24th April 1978 was challenged on various grounds including, that the reservation Act does not confirm to the principles enunciated in the decisions of the Hon’ble Supreme Court and, in particular, does not confirm to the compliance, with “M. Nagaraj” and “Jarnail Singh-I”. 13. In “B.K. Pavitra”, the Hon’ble Supreme Court held that the protection of consequential seniority to the Scheduled Castes and the Scheduled Tribes being an incident of promotion does not require the application of the creamy layer test. In paragraph no.148 of the reported judgment, the Hon'ble Supreme Court conclusively pronounced that the concept of creamy layer has no application in assessing the validity of the Reservation Act which was designated to protect consequential seniority upon promotion of the persons belonging to the Scheduled Castes and Scheduled Tribes. 14. The main plank of the petitioners is “M. Nagaraj” wherein the Hon’ble Supreme Court held that the exercise of power by the State shall be arbitrary if the State fails to identify and measure inadequate representation in service of that particular class of employees, to give effect to Article 16 (4-A) of the Constitution by providing reservation in promotions to the Scheduled Castes and Scheduled Tribes and protecting their consequential seniority. Mr. Manoj Tandon, the learned counsel would submit that the provisions under Article 16 (4-A) cannot be given effect to overlooking the equality clause under Article 16 (1) and the discretion of the State to provide reservation in promotions with consequential seniority shall always be subject to the existence of backwardness and inadequacy of representation in public employment. 15. In “Jarnail Singh-I” the Hon’ble Supreme Court revisited “M. Nagaraj” and held that the requirement to collect quantifiable data showing backwardness of the Scheduled Castes and Scheduled Tribes in “M. Nagaraj” was contrary to “Indra Sawhney”. 15. In “Jarnail Singh-I” the Hon’ble Supreme Court revisited “M. Nagaraj” and held that the requirement to collect quantifiable data showing backwardness of the Scheduled Castes and Scheduled Tribes in “M. Nagaraj” was contrary to “Indra Sawhney”. Furthermore, “Jarnail Singh-I” specifically declined to accept the proposition that the proportion of the Scheduled Castes and Scheduled Tribes to the population of the country should be taken to be the test for determining whether they are adequately or inadequately represented in promotional post for the purpose of Article 16 (4-A). In “U.P. Power Corpn. Ltd. v. Rajesh Kumar” (2012) 7 SCC 1 , the Hon’ble Supreme Court held that when any provision of the Constitution is held valid with certain conditions or riders then it becomes incumbent on the part of the State to ensure that those conditions are met and fulfilled. In “Pravakar Mallick v. State of Orissa” (2020) 15 SCC 297 , the Hon’ble Supreme Court held that the parameters as stipulated in “M. Nagaraj” and “Jarnail Singh-I” on the inadequacy of representation of the Scheduled Castes and Scheduled Tribes in promotional posts in the State are mandatory conditions for the grant of reservation in promotion with consequential seniority under Article 16 (4-A), while balancing the same with the requirements of overall administrative efficiency. 16. The general propositions emanating from the aforementioned decisions are reaffirmed in “Jarnail Singh v. Lachhmi Narain Gupta” (2022) 10 SCC 595 (hereinafter referred to as “Jarnail Singh-II”) wherein the Hon’ble Supreme Court held that it is for the State to assess the inadequacy of representation of the Scheduled Castes and Scheduled Tribes in promotional posts by taking into account the relevant factors. 17. In “Jarnail Singh-II” the Hon’ble Supreme Court held as under: “69. The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a “group”, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a “group”, is the unit and the data has to be collected with respect to each cadre. Therefore, we hold that the conclusion of this Court in B.K. Pavitra (2) approving the collection of data on the basis of “groups” and not cadres is contrary to the law laid down by this Court in M. Nagaraj and Jarnail Singh.” 18. The Resolution dated 31st March 2003 refers to the judgment in “Union of India v. Virpal Singh Chauhan” (1995) 6 SCC 684 and the amendment in Article 16(4-A) of the Constitution by the Constitution Eighty-Fifth Amendment Act, 2001 and provides that (i) the resultant seniority of the government servant belonging to the Scheduled Castes and Scheduled Tribes upon their promotion following the rules of reservation/roster shall remain intact and (ii) this decision shall be effective from 17th June 1995 that is the date of the enforcement of Eighty-Fifth Amendment. This Resolution further provides that the government servants belonging to SC/ST category shall be promoted from the date of promotion of their immediate junior belonging to General category/Other Backward Classes and for the intervening period they shall be given notional promotion. Mr. Manoj Tandon and Mr. Rahul Kumar, the learned counsels appearing for the petitioners have indicated that even the stipulation under clause (c) of paragraph no. 3(iii) in the Resolution dated 31st March 2003 to the effect that any procedure approved by the competent authority has not been laid down and blanket reservation in promotions and accelerated promotions with preservation of consequential seniority to the Scheduled Castes and Scheduled Tribes have been provided in the State of Jharkhand. 19. The State of Jharkhand seeks to provide reservation in the promotions to the Scheduled Castes and Scheduled Tribes in public employment under Article 16(4-A) of the Constitution. The State of Jharkhand has however not made any legislation for providing reservation in the promotions to the Scheduled Castes and Scheduled Tribes in public employment. In the counter-affidavit, the State of Jharkhand did not address any of the issues raised by the petitioners. The State of Jharkhand has however not made any legislation for providing reservation in the promotions to the Scheduled Castes and Scheduled Tribes in public employment. In the counter-affidavit, the State of Jharkhand did not address any of the issues raised by the petitioners. The stand of the State of Jharkhand as projected in the counter-affidavit is confined to mere reiteration of the provisions under Article 16(4-A) of the Constitution. This is not even pleaded in the counter-affidavit that promotions to the Scheduled Castes and Scheduled Tribes are provided in the government service after conducting a survey as regards their inadequate representation in the cadre. Naturally, there is no reference of any procedure being followed by the State of Jharkhand for providing reservation in promotions to the Scheduled Castes and Scheduled Tribes in government service. The Resolution dated 31st March 2003 has been issued by the order of the Governor of Jharkhand which is thus an executive instruction. However, while providing reservation in promotions to the Scheduled Castes and Scheduled Tribes the State of Jharkhand did not provide any guideline in the Resolution dated 31st March 2003. There is no whisper about the mode, manner and method of providing promotion to the Scheduled Castes and Scheduled Tribes. This is not even pleaded that the inadequacy of representation in any cadre/service has been taken into account for providing reservation in promotions and the consequential benefit of promotion to the Scheduled Castes and Scheduled Tribes. As the pleadings and the data furnished by the petitioners in W.P(S) No.5882 of 2003 reveal, wholesale reservation in promotions to the Scheduled Castes and Scheduled Tribes are being given and their consequential promotions have been protected. The Resolution dated 31st March 2003 apparently does not provide any guidance or lay down any procedure for (i) assessing inadequate representation of the Scheduled Castes and Scheduled Tribes in any cadre/service and (ii) the extent of reservation in promotions that is required to be extended to the Scheduled Castes and Scheduled Tribes. 20. The Resolution dated 31st March 2003 simply reproduces the provisions under Article 16(4-A) of the Constitution with a little elaboration. The validity of this Resolution has to be seen with reference to the object and purpose behind Article 16(4-A) of the Constitution. 20. The Resolution dated 31st March 2003 simply reproduces the provisions under Article 16(4-A) of the Constitution with a little elaboration. The validity of this Resolution has to be seen with reference to the object and purpose behind Article 16(4-A) of the Constitution. This is well-settled that even a subordinate legislation can be challenged on the grounds of (i) violation of the fundamental rights (ii) violation of any provision of the Constitution of India (iii) failure to confirm to the Parent Act (iv) exceeding the limits of authority under the Parent Act (v) manifest arbitrariness and (vi) unreasonableness. This is also a well-settled principle that the conferment of authority by the Parent Act for subordinate legislation does not enable the authority to make a provision which travels beyond the scope of the Enabling Act or which is inconsistent therewith or repugnant thereto. 21. Tested on the aforementioned principles, this Court comes to a conclusion that the Resolution dated 31st March 2003 does confer a blanket power to provide reservation in promotions with protection to the consequential seniority to the Scheduled Castes and Scheduled Tribes in government employment. However, having regard to a possible cascading effect in any cadre in the government service about two decades after the first writ petition was filed questioning the validity of the Resolution dated 31st March 2003, this Court is not inclined to interfere with the benefits already conferred pursuant to the seniority/civil list prepared by different departments of the Government. 22. Henceforth, the Resolution dated 31st March 2003 shall not be given effect to till rules/guidelines/executive instructions are issued based on the requirements as mandated by the Hon’ble Supreme Court in “M. Nagaraj”, “Jarnail Singh-I” “Jarnail Singh-II” and other decisions of the Hon’ble Supreme Court. 23. These writ petitions succeed to the aforesaid extent and are accordingly disposed of.