Kameshwar Kumar Yadav & Ors. vs State Of Chhattisgarh & Anr.

Heard Ms. Naushina Afrin Ali, learned Senior Advocate, assisted by Ms. Ankita Gouraha, Mr. Shailendra Kumar Bajpai, Mr. Ajay Shrivastava and Mr. Tapan Kumar Chandra, learned counsel appearing for the respective petitioners; Mr. Yogendramani Verma, petitioner appearing in person in WPS No.4254/2023; Mr. Anand Dadariya, learned Deputy Advocate General appearing for the respondents-State; and Ms. Akanksha Singh, learned counsel appearing on behalf of Mr. Avinash Singh, Mr. Arpit Parakh, Mr. Animesh Tiwari and Mr. Rupendra Kumar Dewangan, learned counsel for the respective respondents.

Since a common question of law and facts arises for consideration in all these writ petitions, they were, therefore, heard analogously and are being disposed of by this common order, so as to avoid repetition of facts and pleadings and to ensure consistency in adjudication. Though the petitioners have sought certain reliefs which may vary in their form and formulation, the principal and foundational challenge raised in all the writ petitions is directed against the legality and validity of the advertisement dated 04.05.2023 issued by the respondent authorities for recruitment to the posts of Assistant Teacher, Teacher and Lecturer, particularly Teachers (E-Cadre) and Teachers (T-Cadre), insofar as the reservation provided therein is alleged to be contrary to the applicable reservation policy, reservation roster and the law laid down by this Court as well as the Hon'ble Supreme Court.

For the sake of convenience, WPS No.300 of 2024 is treated as the lead case, and the facts, pleadings, documents and reliefs contained therein are being referred to for the purpose of adjudication of all the connected matters, except where any distinction is specifically required to be noticed.

The petitioners' common grievance arises out of the advertisement dated 04.05.2023 issued by the respondent authorities through CGVYAPAM for recruitment to the posts of Assistant Teachers, Teachers and Lecturers, including Teachers (E-Cadre) and Teachers (T-Cadre). The petitioners, possessing the requisite qualifications under the Chhattisgarh School Education (Teaching Cadre) Service Rules, 2019, participated in the selection process; the written examination was conducted on 10.06.2023 and the result was declared on 02.07.2023. The principal challenge is to the category-wise distribution of vacancies, particularly the alleged excessive reservation in favour of the Scheduled Tribe category. It is pleaded that out of 1113 posts of Teachers (E-Cadre), 698 posts were reserved for Scheduled Tribe candidates, constituting approximately 62.71%, while out of 4659 posts of Teachers (T-Cadre), 3105 posts were reserved for the Scheduled Tribe category, constituting approximately 66.64%. According to the petitioners, such distribution substantially exceeds the permissible reservation and correspondingly reduces the vacancies available to unreserved and other categories.

The petitioners further contend that the aforesaid reservation cannot be justified by treating the vacancies as backlog vacancies. According to them, out of the total 12489 vacancies, approximately 3746 were backlog vacancies and 8743 were fresh vacancies, and even after excluding the backlog vacancies, the proportion of unreserved posts remained substantially below what was permissible under the applicable reservation regime. The petitioners rely upon the Chhattisgarh Lok Seva (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the subsequent notification dated 29.11.2012, whereby reservation was enhanced from 50% to 58%, comprising 12% for Scheduled Castes, 32% for Scheduled Tribes and 14% for Other Backward Classes. The said enhancement was challenged before this Court in WPC No.591 of 2012 and connected matters and was quashed by the Division Bench vide order dated 19.09.2022. The said judgment was challenged before the Hon'ble Supreme Court in SLP (C) Nos.18816-18817 of 2022, wherein, by order dated 01.05.2023, the State was permitted to complete recruitment and promotion processes which were already pending, subject to the final outcome of the proceedings. According to the petitioners, the said order did not authorise issuance of any fresh advertisement on the basis of the quashed reservation notification.

It is, therefore, the specific case of the petitioners that the impugned advertisement dated 04.05.2023, issued after the judgment of this Court and immediately after the order of the Hon'ble Supreme Court, could not have continued or extended the quashed 58% reservation regime, much less provided reservation to the Scheduled Tribe category beyond the prescribed percentage. The petitioners also rely upon the order dated 12.05.2022 whereby the circular dated 17.01.2012 concerning eligibility of local residents for appointments in the Surguja and Bastar Divisions was quashed. They contend that, despite their representation dated 24.08.2023 pointing out the alleged errors in the reservation roster, the recruitment and online counselling process was proceeded with. The impugned advertisement is, therefore, assailed as being contrary to the statutory reservation scheme, the judgment of this Court dated 19.09.2022, the order dated 01.05.2023 of the Hon'ble Supreme Court and Articles 14 and 16 of the Constitution of India, with a consequential prayer for quashing of the advertisement insofar as it relates to the posts of Teachers and for consideration of the petitioners for document verification, counselling and appointment in accordance with law.

In the lead petition, i.e. WPS No.300/2024, the petitioners have accordingly sought, inter alia, the following reliefs:-

The present batch of writ petitions arises out of a common recruitment process initiated by the respondent authorities pursuant to advertisement dated 04.05.2023, whereby applications were invited for filling up vacant posts of Assistant Teachers, Teachers and Lecturers under the Chhattisgarh School Education (Teaching Cadre) Service Rules, 2019 and the amendments made thereto. The recruitment process was to be conducted through the Chhattisgarh Professional Examination Board (CGVYAPAM). The impugned advertisement pertains, inter alia, to the posts of Teachers in E-Cadre and T-Cadre in the Surguja and Bastar Divisions. The petitioners in the respective writ petitions are candidates possessing the requisite educational and other qualifications prescribed for the posts in question and had participated in the recruitment process pursuant to the aforesaid advertisement. After submission of their applications, the eligible candidates were issued admit cards and the written examination was conducted by CGVYAPAM on 10.06.2023. The result of the examination was thereafter declared on 02.07.2023 and the petitioners claim to have been declared successful therein and to have acquired a legitimate expectation of being considered further in the recruitment process in accordance with law.

The principal grievance raised by the petitioners is with regard to the manner in which the vacancies were distributed amongst the various social categories in the impugned advertisement. According to the petitioners, the reservation roster adopted by the respondent authorities has resulted in an excessive allocation of vacancies to the Scheduled Tribe category, substantially beyond the percentage prescribed under the applicable reservation framework. It has been pleaded that, out of 1113 posts advertised for Teachers (E-Cadre), 698 posts were earmarked for candidates belonging to the Scheduled Tribe category, constituting approximately 62.71% of the total vacancies, whereas 105 posts were earmarked for the Scheduled Caste category. Likewise, out of 4659 posts advertised for Teachers (T-Cadre), 3105 posts were reserved for the Scheduled Tribe category, constituting approximately 66.64% of the vacancies. The petitioners contend that such distribution has resulted in a corresponding reduction in the number of posts available to candidates belonging to the unreserved and Scheduled Caste categories and is contrary to the reservation roster as well as the constitutional guarantee of equality of opportunity in public employment under Articles 14 and 16 of the Constitution of India.

The challenge to the impugned reservation roster has its genesis in the earlier reservation regime prevailing in the State of Chhattisgarh. According to the petitioners, under the Chhattisgarh Lok Seva (Anusuchit Jatiyo, Anusuchit Janjatiyo aur Anya Pichhda Vargon Ke Liye Arakshan) Adhiniyam, 1994, the reservation for direct recruitment was originally prescribed at 16% for Scheduled Castes, 20% for Scheduled Tribes and 14% for Other Backward Classes, aggregating to 50%. Subsequently, by amendment/notification dated 29.11.2012, the reservation structure was altered and the reservation for Scheduled Tribes was enhanced to 32%, while the reservation for Scheduled Castes was fixed at 12% and that for Other Backward Classes at 14%, thereby taking the aggregate reservation to 58%. The said enhancement, including the model roster applicable to the Surguja Division, was challenged before this Court in WPC No.591 of 2012 and connected matters. By judgment/order dated 19.09.2022, the Division Bench of this Court quashed the notification dated 29.11.2012, inter alia, on the ground that the enhanced reservation exceeded the permissible ceiling of 50%, and also dealt with the special reservation arrangement applicable to the Surguja Division. The petitioners contend that, in view of the aforesaid judgment, the respondent authorities could not have proceeded to frame a fresh recruitment roster by relying upon the very reservation structure which had already been judicially invalidated.

The aforesaid judgment of the Division Bench was assailed before the Hon'ble Supreme Court in SLP (C) Nos.18816-18817 of 2022. During pendency of the proceedings before the Hon'ble Supreme Court, the State brought to the notice of the Court that, prior to the judgment of this Court, various recruitment and promotion processes had already been initiated under the reservation regime contemplated by the notification dated 29.11.2012 and that several such processes were at different stages of completion. In the said backdrop, by order dated 01.05.2023, the Hon'ble Supreme Court permitted the State to proceed with and complete the selection processes which were already pending and to make appointments and promotions pursuant thereto, subject to the final outcome of the proceedings pending before it. According to the petitioners, however, the said order was confined to protecting or permitting completion of recruitment and promotion processes which had already been initiated and did not authorise the State to commence a fresh recruitment process by issuing a new advertisement based upon the reservation regime contained in the notification dated 29.11.2012. It is the specific case of the petitioners that the advertisement dated 04.05.2023 was a fresh advertisement issued after the judgment of this Court dated 19.09.2022 and, therefore, could not derive protection from the order dated 01.05.2023 passed by the Hon'ble Supreme Court.

The petitioners further contend that the reservation in the present recruitment cannot be justified merely by describing a substantial portion of the vacancies as backlog vacancies. According to the material relied upon by them, a considerable number of vacancies advertised in the recruitment process were fresh vacancies, and even after excluding the backlog vacancies, the distribution of the remaining vacancies did not conform to the permissible reservation structure. The petitioners have referred to the particulars disclosed by the State in connected writ proceedings, including the number of backlog and fresh vacancies, and contend that the proportion of unreserved posts in relation to the fresh vacancies was substantially reduced on account of the excessive reservation provided to the Scheduled Tribe category. It is their further case that the State itself, in its pleadings in connected matters, disclosed the existence of a substantial number of backlog vacancies, but the same could not be utilised as a device to justify reservation in fresh vacancies beyond the prescribed percentage. The petitioners accordingly assert that the impugned advertisement effectively continues the quashed 58% reservation regime and, in respect of certain categories, even provides reservation to the Scheduled Tribe category substantially beyond 58%.

During the course of the recruitment process, the petitioners also approached the competent authorities and raised objections regarding the alleged error in preparation and implementation of the reservation roster. Representations were submitted before the concerned authorities, including the Director, Public Instruction, pointing out the alleged disparity in the category-wise allocation of vacancies and seeking correction of the roster. It is further stated that the recruitment process proceeded through online counselling and that candidates were called upon to participate in the counselling process despite the objections raised by the petitioners. The petitioners have also relied upon the proceedings in other connected writ petitions, including WPS No.4254/2023 and WPS No.3179/2023, and the pleadings filed therein by the State, in support of their contention regarding the number of backlog vacancies, fresh vacancies and the manner in which the reservation roster was prepared. The petitioners submit that, despite the pendency of litigation concerning the reservation policy and despite the judgment of this Court quashing the notification dated 29.11.2012, the respondents proceeded with the recruitment on a reservation pattern which, according to them, is inconsistent with the applicable law.

It is in the aforesaid factual and legal backdrop that the present batch of writ petitions has been instituted. Though the individual petitioners have sought consequential reliefs in relation to their respective candidature, document verification, counselling and appointment, the core issue raised in all the matters is substantially common, namely, whether the respondent authorities could have issued the advertisement dated 04.05.2023 and undertaken the recruitment process by adopting a reservation roster which, according to the petitioners, earmarks vacancies in excess of the permissible percentage for the Scheduled Tribe category and thereby reduces the vacancies available to the unreserved and other reserved categories. The petitioners contend that such action is contrary to the statutory reservation scheme, the judgment dated 19.09.2022 passed by the Division Bench of this Court, the order dated 01.05.2023 passed by the Hon'ble Supreme Court, and the constitutional mandate contained in Articles 14 and 16 of the Constitution of India. The respondent-State, on the other hand, has sought to justify the recruitment process and the reservation roster on the basis of the applicable reservation policy, the nature of the vacancies and the protection granted in the pending proceedings before the Hon'ble Supreme Court.

Ms. Naushina Afrin Ali, learned Senior Counsel assisted by Ms. Ankita Gouraha, learned counsel for the petitioners would submit that the controversy involved in the present batch of writ petitions is not directed against the constitutional concept of reservation or the affirmative action contemplated under Article 16(4) of the Constitution of India, but is confined to the legality of the recruitment process initiated pursuant to the advertisement dated 04.05.2023. It is submitted that the respondents have initiated a fresh recruitment process for the posts of Teacher (E-Cadre) and Teacher (T-Cadre) by applying the reservation notification dated 29.11.2012 and the consequential reservation roster, despite the fact that the said notification had already been quashed by the Division Bench of this Court vide judgment dated 19.09.2022. According to learned Senior Counsel, once the parent notification itself stood quashed, the consequential reservation roster framed thereunder could not have continued to operate as an independent source of power for making fresh appointments. The petitioners, being qualified candidates who participated in the selection process and successfully cleared the written examination, are directly prejudiced by the unlawful distribution of vacancies and, therefore, have a substantive legal right to challenge the recruitment process.

Learned Senior Counsel further submits that prior to the notification dated 29.11.2012, the reservation structure in the State provided for 16% reservation for Scheduled Castes, 20% for Scheduled Tribes and 14% for Other Backward Classes, aggregating to 50%. Subsequently, by notification dated 29.11.2012, the reservation was enhanced to 58%, comprising 12% for Scheduled Castes, 32% for Scheduled Tribes and 14% for Other Backward Classes, and consequential reservation rosters were prepared for different divisions, including Bastar and Surguja. The validity of the said notification and the consequential rosters was challenged before this Court in WPC No.591 of 2012 and connected matters, and this Court, after examining the issue, quashed the notification dated 29.11.2012 vide judgment dated 19.09.2022. It is submitted that the legal consequence of such quashing is that the notification ceased to have operative force and could not thereafter constitute the foundation for any fresh recruitment. The respondents, therefore, could not have treated the said notification as continuing to remain in force merely because the judgment was subsequently challenged before the Hon'ble Supreme Court.

Learned Senior Counsel submits that the subsequent order dated 01.05.2023 passed by the Hon'ble Supreme Court in the proceedings arising out of the judgment dated 19.09.2022 does not assist the respondents. According to learned Senior Counsel, the Hon'ble Supreme Court, while taking note of the fact that certain recruitment and promotion processes had already commenced under the earlier reservation regime, permitted the State to complete such pending processes, subject to the final outcome of the proceedings pending before it. The said order neither stayed the judgment dated 19.09.2022 nor revived the notification dated 29.11.2012, nor did it grant liberty to the State to initiate a fresh recruitment process by issuing a new advertisement on the basis of the quashed notification. It is emphatically submitted that the impugned advertisement dated 04.05.2023 was issued after the judgment of this Court and after the order dated 01.05.2023 of the Hon'ble Supreme Court and, therefore, cannot be treated as a continuation of any recruitment process which was already pending. The distinction between completion of an existing selection process and initiation of a fresh recruitment process, according to learned Senior Counsel, is fundamental and goes to the root of the controversy.

Learned Senior Counsel further submits that the figures contained in the impugned advertisement themselves demonstrate the extent of the illegality. Out of 1113 posts advertised for Teacher (E-Cadre), 698 posts have been earmarked for candidates belonging to the Scheduled Tribe category, constituting approximately 62.71% of the total vacancies, while out of 4659 posts advertised for Teacher (T-Cadre), 3105 posts have been earmarked for the Scheduled Tribe category, constituting approximately 66.64% of the total vacancies. It is submitted that even under the very notification dated 29.11.2012, upon which the respondents seek to rely, the reservation for Scheduled Tribe candidates was only 32%, and, therefore, allocation of more than 60% of the vacancies to a single reserved category cannot be justified merely by referring to the said notification or the reservation roster framed thereunder. Learned Senior Counsel submits that the respondents have failed to disclose any lawful statutory or constitutional basis for such extraordinary allocation of vacancies and that the impugned distribution materially affects the rights of candidates belonging to the unreserved as well as other reserved categories and consequently infringes the guarantee of equality of opportunity under Articles 14 and 16 of the Constitution.

It is further submitted by learned Senior Counsel that the respondents cannot overcome the aforesaid illegality by describing a part of the vacancies as backlog vacancies. According to learned Senior Counsel, backlog vacancies and fresh vacancies stand on a distinct legal footing and the existence of backlog vacancies has to be established by production of the relevant roster, category-wise vacancy position, recruitment year, statutory provision governing carry-forward and the methodology by which such vacancies have been adjusted against the present recruitment. In the present case, the respondents have not furnished the foundational material necessary to demonstrate that the excessive reservation reflected in the impugned advertisement is attributable exclusively to validly carried-forward backlog vacancies. It is submitted that even assuming the existence of backlog vacancies, such vacancies cannot revive a reservation notification which has already been quashed by a constitutional court, nor can they confer jurisdiction upon the respondents to commence a fresh recruitment process under an invalidated reservation regime. The respondents must first establish the existence of a valid source of power before seeking to justify the manner in which the vacancies have been distributed.

Learned Senior Counsel also submits that the respondents, being executive authorities, are constitutionally bound to obey and implement the judgments of this Court unless the same are stayed, modified or set aside by a competent superior court. Mere pendency of an appeal or Special Leave Petition does not efface the binding effect of the judgment under challenge. In the present case, there was no order staying the operation of the judgment dated 19.09.2022, nor was there any order expressly restoring the notification dated 29.11.2012. Therefore, the respondents could not have proceeded as though the quashed notification continued to possess legal force. Learned Senior Counsel submits that the reservation roster, being merely a mechanism for implementation of the parent reservation policy, could not survive independently once the parent notification had been quashed. Reliance is placed on the settled principles governing the distinction between quashing and stay of an order and the binding nature of judgments rendered by constitutional Courts.

Lastly, learned Senior Counsel submits that the impugned advertisement and the recruitment process undertaken pursuant thereto are consequently vitiated by lack of lawful authority, disregard of the binding judgment dated 19.09.2022 passed by this Court, an erroneous interpretation of the limited protection granted by the Hon'ble Supreme Court vide order dated 01.05.2023, and arbitrary implementation of the reservation roster. It is submitted that the State cannot, under the guise of filling backlog vacancies or by relying upon a consequential roster, circumvent a judgment of this Court and continue a reservation regime which has already been judicially invalidated. According to learned Senior Counsel, permitting such action would not only prejudice the petitioners and similarly situated candidates but would also undermine the rule of law and the constitutional discipline governing executive action. The impugned advertisement, insofar as it proceeds on the basis of the quashed notification and provides reservation substantially in excess of the permissible limit, is therefore liable to be quashed, with consequential directions for consideration of the petitioners' candidature in accordance with the reservation regime legally prevailing on the date of the fresh recruitment.

Learned Senior Counsel, in support of her submissions, has placed reliance upon a catena of decisions of the Hon'ble Supreme Court as well as this Court. She has first relied upon the judgment of the Constitution Bench of the Hon'ble Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, particularly the principles governing the extent of reservation permissible under Article 16(4) of the Constitution of India. It is submitted that the Constitution Bench, while recognising reservation as an instrument of substantive equality, has cautioned that reservation cannot be permitted to obliterate the general rule of equality of opportunity and has evolved the general rule that reservation should not ordinarily exceed 50%, save in exceptional circumstances. Learned Senior Counsel submits that the aforesaid constitutional principle assumes significance in the present case, where the impugned advertisement allocates more than 60% of the vacancies in certain cadres to the Scheduled Tribe category.

Learned Senior Counsel has further placed reliance upon the judgment of the Hon'ble Supreme Court in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745, to contend that a reservation roster is only a mechanism for giving effect to a valid reservation policy and cannot itself constitute an independent source of reservation. According to learned Senior Counsel, the respondents' reliance upon the division-wise reservation roster for Bastar and Surguja cannot be sustained once the parent notification dated 29.11.2012, pursuant to which the said roster was prepared, had already been quashed by this Court. It is submitted that the roster merely operationalises the reservation policy and, therefore, its validity necessarily depends upon the continued existence of the statutory or executive instrument from which it derives its authority. Once the foundational notification stood quashed, the consequential roster could not have been utilised for initiating a fresh recruitment process.

Reliance has also been placed upon the judgment of the Hon'ble Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, (1992) 3 SCC 1, in support of the proposition that there is a fundamental distinction between an order being quashed and its operation being stayed. Learned Senior Counsel submits that when an order or notification is quashed by a competent constitutional court, it is rendered non-existent in the eyes of law, whereas a stay merely suspends its operation. Applying the said principle, it is contended that after the judgment dated 19.09.2022 passed by the Division Bench of this Court quashing the notification dated 29.11.2012, the respondents could not have treated the said notification as continuing to remain operative merely because the State had preferred Special Leave Petitions before the Hon'ble Supreme Court. Unless the judgment itself was stayed or the quashed notification was specifically revived by the Hon'ble Supreme Court, the executive authorities were bound to act in accordance with the judgment of this Court.

Learned Senior Counsel has also relied upon the judgment of the Hon'ble Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 1893, to emphasise the binding nature of judgments of the High Court upon executive authorities and subordinate forums functioning within its territorial jurisdiction. It is submitted that the executive cannot disregard a judgment rendered by a constitutional court merely because an appeal or Special Leave Petition has been preferred against such judgment. According to learned Senior Counsel, the doctrine of judicial discipline obliges the executive authorities to faithfully implement the law declared by the competent constitutional court unless and until the judgment is stayed, modified or set aside by a superior court. In the present case, the respondents were, therefore, bound to give effect to the judgment dated 19.09.2022 and could not have proceeded upon the assumption that the quashed notification dated 29.11.2012 continued to confer authority upon them.

Reliance has further been placed upon the judgment of the Constitution Bench of the Hon'ble Supreme Court in M. Nagaraj v. Union of India, (2006) 8 SCC 212, to submit that reservation, though constitutionally permissible, remains subject to the limitations and requirements flowing from the equality code contained in Articles 14 and 16 of the Constitution. Learned Senior Counsel submits that the power of the State to make reservation is an enabling power and cannot be exercised in an arbitrary or unstructured manner so as to destroy the constitutional guarantee of equality of opportunity. According to her, the present case is not a challenge to reservation as an affirmative action measure, but to the manner in which the State has exercised that power by relying upon a notification which had already been quashed and by providing reservation to the Scheduled Tribe category at a level substantially higher than the percentage prescribed even under the said notification.

Learned Senior Counsel has also referred to the judgment of the Constitution Bench in Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396, for the proposition that the exercise of reservation powers by the State remains subject to constitutional scrutiny and cannot be permitted to operate outside the parameters prescribed by the Constitution. It is submitted that the fact that reservation is intended to advance substantive equality does not confer an unfettered discretion upon the executive to determine the extent or manner of reservation contrary to the constitutional framework. The impugned action, according to learned Senior Counsel, must therefore be examined on the touchstone of Articles 14 and 16 and cannot be sustained merely by invoking the object of providing adequate representation to Scheduled Tribe candidates.

Reliance has also been placed upon the Constitution Bench judgment of the Hon'ble Supreme Court in Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1, wherein the constitutional significance of the 50% ceiling governing reservation was reiterated. Learned Senior Counsel submits that, although the constitutional scheme recognises the possibility of exceptional circumstances, any departure from the general rule cannot be presumed or founded upon administrative convenience and must be supported by constitutionally relevant material. According to her, in the present case no such exceptional constitutional basis has been disclosed by the respondents for earmarking more than 60% of the vacancies in favour of the Scheduled Tribe category.

Learned Senior Counsel has further placed reliance upon the judgment of the Hon'ble Supreme Court in Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, (2021) 11 SCC 401, to contend that even where the State seeks to advance the interests of a particular Scheduled Tribe population or a geographically distinct area, the exercise of reservation power remains subject to the constitutional limitations embodied in Articles 14 and 16. It is submitted that the geographical or demographic composition of a particular division cannot, by itself, furnish an unrestricted basis for granting reservation in a manner which substantially excludes candidates belonging to other categories from equal consideration for public employment.

Learned Senior Counsel has also relied upon the judgment of the Hon'ble Supreme Court in Assistant Collector of Central Excise v. Dunlop India Ltd., (1985) 1 SCC 260, in support of the principle of judicial discipline and the binding nature of orders passed by superior courts. According to learned Senior Counsel, once a constitutional court has adjudicated upon the validity of an executive policy or notification, the executive authorities cannot circumvent or indirectly nullify the effect of such judgment by adopting the same policy through another administrative instrument. The respondents, therefore, could not have achieved indirectly, through the impugned advertisement and consequential reservation roster, what stood prohibited by the judgment dated 19.09.2022 of this Court. She also placed reliance upon the judgment rendered by the Hon’ble Supreme Court in Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73 as well as recent judgment of the Hon’ble Apex Court in State of Punjab v. Davinder Singh, (2025) 1 SCC 1.

Learned Senior Counsel has lastly placed specific reliance upon the judgment dated 19.09.2022 passed by the Division Bench of this Court in WPC No.591 of 2012 and connected writ petitions, whereby the notification dated 29.11.2012 enhancing the reservation to 58% and the consequential reservation arrangement applicable to the concerned divisions were quashed. It is submitted that the said judgment constitutes the immediate and foundational judicial pronouncement governing the present controversy. According to learned Senior Counsel, once the aforesaid notification was quashed, the respondents could not have invoked the same reservation structure for a recruitment process initiated thereafter. The subsequent order dated 01.05.2023 passed by the Hon'ble Supreme Court in the proceedings arising from the said judgment, according to learned Senior Counsel, merely permitted completion of recruitment and promotion processes which had already commenced and did not revive the quashed notification or authorise the State to issue a fresh advertisement on its basis. The present recruitment, having admittedly commenced only with the advertisement dated 04.05.2023, is therefore not covered by the protection granted by the Hon'ble Supreme Court and is liable to be tested independently on the basis of the law prevailing on the date of issuance of the impugned advertisement.

Mr. Ajay Shrivastava, learned counsel for the petitioners adopting the submissions advanced by learned Senior Counsel, submits that the impugned advertisement dated 04.05.2023 is liable to be set aside, as the reservation roster adopted therein is founded upon the very notifications and model rosters which had already been declared ultra vires and quashed by this Court. It is submitted that the recruitment relates to 1,113 posts of Teacher (E-Cadre), 4,659 posts of Teacher (T-Cadre), 793 posts of Assistant Teacher (E-Cadre) and 5,492 posts of Assistant Teacher (T-Cadre), wherein an excessive percentage of vacancies has been earmarked for the Scheduled Tribe category, ranging from approximately 56.62% to 68.42%. According to learned counsel, such reservation is traceable to the notification dated 29.11.2012 and the consequential district/divisional model roster, both of which have ceased to have legal efficacy pursuant to the judgment of this Court. It is further submitted that the petitioners have themselves participated in the selection process for the posts of Assistant Teacher and Teacher and their candidature is directly affected by the unlawful distribution of vacancies.

Learned counsel further submits that reliance placed by the State upon the order dated 01.05.2023 passed by the Hon'ble Supreme Court in the pending proceedings arising out of WPC No.591 of 2012 is wholly misplaced. The permission granted by the Hon'ble Supreme Court was confined to recruitment and promotion processes which had already been initiated prior to the judgment of the Division Bench and was subject to the final outcome of the proceedings pending before the Hon'ble Supreme Court. It did not authorise the State to issue a fresh advertisement dated 04.05.2023 by relying upon a notification and model roster which had already been quashed by this Court. Learned counsel submits that once the Division Bench had, by judgment dated 19.09.2022, struck down the notification dated 29.11.2012 and the consequential model roster providing excessive reservation at the district and divisional levels, there was no subsisting statutory or executive instrument authorising the respondents to prescribe such enhanced reservation for district-level posts of Assistant Teacher and divisional-level posts of Teacher. Consequently, in the absence of a valid notification or reservation roster, the respondents could not have proceeded to earmark an excessive percentage of vacancies in favour of the Scheduled Tribe category. It is, therefore, submitted that the impugned recruitment deserves to be reconsidered by applying a legally valid reservation framework and by excluding the benefit of the quashed notifications and rosters.

Learned counsel has placed specific reliance upon the judgment dated 19.09.2022 passed by the Division Bench of this Court in WPC No.591 of 2012 and connected matters, particularly paragraph 85 thereof, whereby the notification dated 29.11.2012, including the provisions relating to enhancement of reservation and the district/divisional model roster providing excessive reservation, was held ultra vires and quashed. It is submitted that the very model roster which has been relied upon by the State in its affidavit to justify the impugned distribution of vacancies was the subject-matter of challenge and stands specifically invalidated by the aforesaid judgment. Learned counsel has further relied upon W. P. No.1081/2020, wherein this Court quashed the provision providing preference/eligibility on the basis of local residency for recruitment in the Bastar and Surguja Divisions. According to learned counsel, after the said judgment, the respondents could not indirectly achieve the same result by adopting a special reservation roster for the said divisions so as to substantially enhance reservation in favour of the Scheduled Tribe category. Learned counsel has also referred to the order dated 01.05.2023 passed by the Hon'ble Supreme Court in the proceedings arising from WPC No.591 of 2012, to submit that the protection granted therein was confined to recruitment processes which were already underway and did not confer authority to commence a fresh recruitment under the quashed reservation framework. Thus, according to learned counsel, neither the notification dated 29.11.2012 nor the consequential district/divisional model roster could constitute the legal foundation for Advertisement dated 04.05.2023.

Mr. Tapan Kumar Chandra, learned counsel for the petitioners submits that the impugned Advertisement dated 04.05.2023 is based upon the notification dated 29.11.2012 and the consequential district/divisional model roster, despite the same having already been quashed by this Court in WPC No.591 of 2012 and connected matters, particularly paragraph 85 thereof, whereby the enhancement of reservation and the excessive reservation provided for the Scheduled Tribe category were held ultra vires; he submits that, notwithstanding the aforesaid judgment, out of 1,113 posts of Teacher (E-Cadre), 698 posts (62.71%) have been reserved for Scheduled Tribes, out of 4,659 posts of Teacher (T-Cadre), 3,005 posts (64.49%) have been reserved for Scheduled Tribes, out of 793 posts of Assistant Teacher (E-Cadre), 449 posts (56.62%) have been reserved for Scheduled Tribes and out of 5,492 posts of Assistant Teacher (T-Cadre), 3,758 posts (68.42%) have been reserved for Scheduled Tribes, which clearly demonstrates excessive reservation contrary to the applicable reservation framework; he further submits that although this Court, vide orders dated 10.07.2023 and 27.07.2023, directed the State to explain the basis and procedure adopted for providing such reservation, the State, in its affidavit dated 14.09.2023, sought to justify the same by relying upon the Surguja and Bastar model rosters, which themselves had already been quashed; learned counsel also places reliance upon the judgment in WP No.1081/2020, whereby the provision granting reservation/ preference on the basis of local residency in Bastar and Surguja Divisions was quashed, and submits that the respondents cannot, by adopting a divisional or district-wise roster, indirectly confer special and excessive reservation upon the Scheduled Tribe category in the said divisions; accordingly, it is submitted that the impugned recruitment, being founded upon the very notifications and rosters which have ceased to have legal efficacy, is contrary to the binding judgments of this Court and liable to be interfered with.

Mr. Yogendramani Verma, petitioner-in-person in WPS No.4254/2023, submits that the impugned Advertisement dated 04.05.2023 suffers from serious constitutional infirmity inasmuch as, out of the total 5,772 posts advertised, 2,050 posts were subsequently disclosed by the State to be backlog vacancies and, out of the remaining 3,722 fresh vacancies, as many as 2,277 posts were earmarked for the Scheduled Tribe category, constituting approximately 61.17% of the fresh vacancies, apart from the reservation provided to the Scheduled Caste and Other Backward Classes categories. He submits that the excessive reservation is also evident from the cadre-wise distribution, wherein 698 out of 1,113 Teacher (E-Cadre) posts (62.71%), 3,005 out of 4,659 Teacher (T-Cadre) posts (64.49%), 449 out of 793 Assistant Teacher (E-Cadre) posts (56.62%) and 3,758 out of 5,492 Assistant Teacher (T-Cadre) posts (68.42%) have been reserved for the Scheduled Tribe category. Learned petitioner-in-person submits that the State seeks to justify the aforesaid distribution by relying upon the 100 Point Model Roster and the divisional/district-wise model rosters; however, the validity of the very reservation arrangement was considered by this Court in WPC No.591 of 2012 and connected matters, decided on 19.09.2022, wherein, particularly in paragraph 85, the notification dated 29.11.2012 and the Schedule-II Model Roster insofar as it related to the districts of Surguja, Surajpur, Balrampur-Ramanujganj, Jashpur, Koria and Surguja Division were declared unconstitutional. He further submits that the said judgment has admittedly not been stayed, which position was also noticed by the Three-Judge Committee of this Court in Annexure P-10, and therefore the respondents could not have relied upon the quashed model roster for a fresh recruitment initiated on 04.05.2023.

He further submits that the constitutional limitation upon excessive reservation is firmly settled by the judgments of the Hon'ble Supreme Court in M.R. Balaji v. State of Mysore, AIR 1963 SC 649; Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217; M. Nagaraj v. Union of India, (2006) 8 SCC 212; Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1; Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, (2021) 11 SCC 401; Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra, (2021) 8 SCC 1; R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745; and Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396, which collectively emphasise that reservation must operate within constitutional parameters and that a roster is merely a mechanism for implementing a valid reservation policy and cannot itself create or enlarge a reservation quota. He submits that the State has failed to satisfactorily explain the legal authority for applying the old model roster after the judgment dated 19.09.2022 and the subsequent clarification regarding the applicable reservation regime. He further points out that the petition was instituted on 06.07.2023, immediately after declaration of the combined examination result on 02.07.2023 and before the first selection list dated 12.08.2023, and therefore the plea that the petitioners approached the Court only after their non-selection is factually incorrect. He submits that this Court, vide orders dated 10.07.2023 and 27.07.2023, had already required the State to explain the basis and procedure adopted for providing such excessive reservation, and the subsequent affidavits relying upon the Bastar and Surguja model rosters do not cure the fundamental illegality arising from reliance upon a roster which had been declared unconstitutional.

Per contra, Mr. Anand Dadariya, learned Deputy Advocate General appearing for the State, opposes the submissions advanced on behalf of the respective petitioners and submits that the impugned recruitment process has been undertaken strictly in accordance with the reservation policy and the applicable reservation roster of the State Government. He submits that the petitioners have proceeded on an erroneous assumption that the percentage of reservation reflected in the advertisement represents fresh or excessive reservation in favour of the Scheduled Tribe category, whereas the vacancies advertised comprise both newly sanctioned posts and backlog vacancies pertaining to earlier recruitment processes, particularly the vacancies which remained unfilled pursuant to the recruitment conducted in the year 2019. He submits that the State Government, by its policy decision, had provided for division/district-wise reservation for the Bastar and Surguja Divisions, having regard to the special circumstances prevailing in those areas, and the competent authorities, while issuing the advertisement dated 04.05.2023, merely implemented the reservation roster already prescribed by the Government. According to learned Deputy Advocate General, the reservation figures appearing against the Scheduled Tribe category cannot be considered in isolation by comparing them with the State-level percentage, since the posts of Assistant Teacher are district-level posts and the posts of Teacher are division-level posts, for which the applicable district/division-wise roster was required to be followed.

Learned Deputy Advocate General further submits that the State has already placed on record, by way of affidavit filed in WPS No.4254 of 2023, the complete particulars of the vacancies, including the newly sanctioned vacancies as well as the backlog vacancies of the year 2019, and the manner in which the same were incorporated in the impugned recruitment. He submits that out of the total posts, 9,299 posts were sanctioned as fresh vacancies, while 3,190 posts represented backlog vacancies, and the reservation roster was applied accordingly. Therefore, the mere fact that the resultant number of Scheduled Tribe vacancies appears to be higher than the ordinary percentage of reservation does not, by itself, establish any violation of the constitutional or statutory reservation scheme. He would further submit that the reliance placed by the petitioners upon the judgment dated 19.09.2022 passed in WPC No.591 of 2012 and connected matters is misplaced. According to him, the said judgment is the subject matter of challenge before the Hon'ble Supreme Court in SLP(C) No.19668 of 2022 and connected matters, and the interim order passed by the Hon'ble Supreme Court has permitted continuation/completion of recruitment processes in the manner protected therein. It is submitted that the State authorities, while issuing the impugned advertisement, acted upon the existing Government policy and reservation roster and did not independently create or enhance reservation in favour of the Scheduled Tribe category.

Lastly, learned Deputy Advocate General submits that the petitioners have failed to demonstrate any individual or constitutional prejudice warranting interference with the recruitment process. The advertisement was issued pursuant to a conscious policy decision of the State Government, the reservation roster was applied uniformly to the concerned districts and divisions, and the inclusion of backlog vacancies is supported by the record placed before this Court. He, therefore, submits that the challenge to the advertisement is founded upon an incorrect computation of reservation and deserves to be rejected, there being neither any arbitrariness nor violation of Articles 14 and 16 of the Constitution of India.

Ms. Akanksha Singh, learned counsel appearing on behalf of Mr. Avinash Singh, Mr. Arpit Parakh, Mr. Animesh Tiwari and Mr. Rupendra Kumar Dewangan, learned counsel for the respective respondents, adopts the submissions advanced by Mr. Anand Dadariya, learned Deputy Advocate General appearing for the State, and submits that the impugned recruitment process has been undertaken strictly in accordance with the applicable reservation policy and the district/division-wise reservation roster prescribed by the competent authority. She submits that the petitioners have incorrectly treated the percentage of Scheduled Tribe vacancies reflected in the advertisement as fresh reservation, without taking into account the nature of the posts, the applicable district/division-wise roster and the backlog vacancies carried forward from the earlier recruitment process. They further submit that the vacancies advertised pursuant to the advertisement dated 04.05.2023 comprised both newly sanctioned posts and backlog vacancies which had remained unfilled from the recruitment process of the year 2019. The inclusion of such backlog vacancies necessarily resulted in a higher numerical representation of the Scheduled Tribe category in the total advertised vacancies and cannot, by itself, be construed as an enhancement of the prescribed reservation. According to learned counsel, the State has already placed the relevant particulars and the methodology adopted for preparation of the vacancy position on record and, therefore, there is no factual or legal basis to contend that the respondents have acted arbitrarily or contrary to the reservation policy.

Learned counsel further submit that the reliance placed by the petitioners upon the judgment dated 19.09.2022 passed in WPC No.591 of 2012 and connected matters does not render the impugned recruitment illegal, particularly when the said judgment is under challenge before the Hon'ble Supreme Court and the State authorities have acted in accordance with the prevailing policy and the orders passed in the pending proceedings. She accordingly adopts the submissions advanced on behalf of the State in their entirety and submits that the petitioners have failed to establish any violation of Articles 14 or 16 of the Constitution of India. The writ petitions, therefore, deserve to be dismissed.

I have heard learned counsel appearing for the respective parties and perused the documents annexed with the batch of writ petitions.

The principal grievance of the petitioners is that the percentage of vacancies earmarked for Scheduled Tribe candidates in the impugned recruitment is substantially higher than 50% and that such reservation has been worked out on the basis of the reservation framework and model rosters which were considered by the Division Bench in WPC No.591 of 2012 and connected matters. The State, on the other hand, has explained that the figures appearing in the advertisement cannot be examined merely by comparing the total number of advertised vacancies with the percentage of reservation ordinarily prescribed at the State level, since the posts in question are district-level and division-level posts, different rosters operate for such posts, and, significantly, the advertised vacancies include a substantial number of backlog vacancies pertaining to earlier recruitment cycles.

Before examining the rival submissions, this Court considers it necessary to determine the precise legal effect of the judgment dated 19.09.2022 passed by the Division Bench of this Court in WPC No.591 of 2012 and connected matters and, more particularly, the effect of the subsequent order dated 01.05.2023 passed by the Hon'ble Supreme Court in the proceedings arising therefrom. The controversy cannot be decided merely by noticing that the judgment dated 19.09.2022 is presently under challenge before the Hon'ble Supreme Court. The legal consequence of a judgment declaring a statutory provision, notification or reservation arrangement unconstitutional is materially different from a mere stay of its operation. Unless the judgment is stayed, modified or set aside, the executive authorities are bound to respect the law declared by the competent constitutional Court.

The judgment dated 19.09.2022 rendered in WPC No.591 of 2012 and connected matters was not confined to an abstract examination of the reservation policy. The Division Bench specifically considered the enhancement of reservation brought about by the notification dated 29.11.2012 and the consequential model rosters prepared for different districts and divisions. Upon examining the constitutional scheme contained in Articles 14, 15 and 16 of the Constitution of India, the Division Bench found that the reservation arrangement, insofar as it exceeded the constitutionally permissible limits without a legally sustainable justification, could not be permitted to continue. In paragraph 85 of the said judgment, the relevant provisions and the reservation arrangement reflected in Schedule-II Model Roster in respect of the specified districts and Surguja Division were declared unconstitutional and quashed.

The consequence of such declaration cannot be diluted merely because the State preferred a Special Leave Petition before the Hon'ble Supreme Court. It is well settled that there is a fundamental distinction between an order which is quashed and an order whose operation is merely stayed. Mere filing or pendency of an appeal or Special Leave Petition does not, by itself, obliterate the binding effect of the judgment under challenge. The executive authorities cannot proceed on the assumption that a quashed notification continues to have independent legal efficacy unless the superior Court, in exercise of its jurisdiction, quash judgment or grants an appropriate final order.

In the present bunch of cases, the respondents have admittedly relied upon the very notification dated 29.11.2012 and the consequential district/division-wise model rosters which were the subject matter of consideration in WPC No.591 of 2012 and connected matters. The material placed before this Court further demonstrates that the percentage of vacancies earmarked for Scheduled Tribe candidates under the impugned advertisement is exceptionally high. Out of 1,113 posts of Teacher (E-Cadre), 698 posts, constituting approximately 62.71%, were earmarked for Scheduled Tribe candidates; out of 4,659 posts of Teacher (T-Cadre), 3,005 posts, constituting approximately 64.49%, were earmarked for Scheduled Tribe candidates; out of 793 posts of Assistant Teacher (E-Cadre), 449 posts, constituting approximately 56.62%, were earmarked for Scheduled Tribe candidates; and out of 5,492 posts of Assistant Teacher (T-Cadre), 3,758 posts, constituting approximately 68.42%, were earmarked for Scheduled Tribe candidates. The aforesaid figures are not merely a mathematical aberration which can be ignored by referring generally to the existence of a roster. They call for a strict constitutional examination because the resultant reservation is substantially in excess of the ordinary constitutional ceiling.

The respondents have attempted to justify the aforesaid distribution by referring to backlog vacancies and by contending that the posts of Assistant Teacher and Teacher constitute different territorial cadres. This submission, however, does not answer the foundational question involved in the present cases. A roster is only an instrument for implementing a legally valid reservation policy. It cannot itself become a source of power to create or perpetuate a reservation arrangement which has already been declared unconstitutional. Once the foundational notification and the consequential model roster stood quashed by the judgment dated 19.09.2022, the respondents were required to identify a subsisting and legally valid source authorising the reservation pattern adopted in the impugned advertisement. The State has not been able to demonstrate the existence of any subsequent statutory provision, notification or validly operative reservation policy which independently authorises the very extent of reservation reflected in the impugned advertisement. The mere description of certain vacancies as backlog vacancies cannot revive a reservation framework which has ceased to possess legal efficacy. Backlog vacancies may be carried forward only in accordance with law; the concept of backlog cannot be utilised as a mechanism for reviving an invalid reservation regime or for introducing, through an administrative exercise, a reservation arrangement which otherwise lacks a lawful foundation.

The distinction between backlog vacancies and fresh vacancies, undoubtedly, has significance in the constitutional scheme. Article 16(4B) itself recognises that unfilled vacancies of a year reserved for a particular category may, subject to the constitutional and statutory framework, be treated as a separate class of vacancies in succeeding years. However, Article 16(4B) does not confer an independent power upon the executive to create reservation. It operates within the framework of an otherwise valid reservation policy. Therefore, before the respondents can rely upon backlog vacancies, it must first be demonstrated that the reservation to which those vacancies originally related was founded upon a legally valid and subsisting reservation provision. In the present cases, the respondents seek to trace the excessive reservation to the district/division-wise model rosters which themselves were part of the reservation arrangement declared unconstitutional by this Court. Consequently, the label of "backlog vacancy" cannot, by itself, validate the source from which the vacancy is claimed to have arisen.

The constitutional position governing reservation is no longer res integra. In Indra Sawhney (supra), the Constitution Bench held that reservations contemplated under Article 16(4) should ordinarily not exceed 50% and that, though exceptional circumstances may justify departure, extreme caution is required and a special case must be made out. The principle was thereafter reiterated in subsequent Constitution Bench decisions. The constitutional ceiling is not a matter of administrative convenience but forms part of the balancing mechanism between Articles 14 and 16(1), on the one hand, and Articles 15(4) and 16(4), on the other.

In Dr. Jaishri Laxmanrao Patil (supra), the Constitution Bench reiterated that reservation under Article 16(4) should not exceed 50%, and that exceeding the ceiling requires extraordinary circumstances of the nature contemplated in Indra Sawhney. The Court further emphasised that the 50% ceiling is intended to preserve equality of opportunity and that any departure from it must satisfy the stringent constitutional requirements. The principle is of direct relevance to the present case because the reservation figures reflected in the impugned advertisement are not marginally above the ordinary ceiling but, in certain cadres, substantially exceed it. When the State adopts such a reservation arrangement, the constitutional burden is correspondingly greater to demonstrate the source of power, the existence of constitutionally permissible circumstances and the legal methodology by which the reservation has been computed.

The decision in M. Nagaraj (supra), also emphasises that reservation provisions remain subject to constitutional limitations and that the ceiling of 50% constitutes an important quantitative limitation within the equality scheme. Similarly, Jarnail Singh (supra), and Chebrolu Leela Prasad Rao (supra), reiterate that affirmative action, however desirable its objective, cannot be implemented in a manner which destroys the constitutional guarantee of equality of opportunity. The Court is conscious that the State possesses enabling powers under Articles 15 and 16 to adopt measures for advancement of backward classes and for ensuring adequate representation. However, such power is constitutionally structured and cannot be exercised in an uncanalised or arbitrary manner.

Equally significant is the principle laid down in R.K. Sabharwal (supra) that a reservation roster is only a mechanism for giving effect to a valid reservation policy. The roster cannot independently create reservation. Once the prescribed reservation has been achieved, the roster must operate consistently with the cadre strength and the governing reservation policy. Therefore, in the present case, the respondents cannot derive independent authority merely from the existence of a district/division-wise roster when the very reservation arrangement underlying such roster has already been declared unconstitutional by this Court.

The judgment in WPC No.591 of 2012 also requires to be read in its entirety. The Division Bench, while declaring the impugned provisions and the specified reservation arrangement unconstitutional, was conscious of the consequences which would follow if all appointments and admissions already made under the impugned framework were unsettled. Paragraphs 87 and 88 of the judgment demonstrate that the Court moulded the relief so as to prevent administrative chaos and hardship to persons who had already been selected or appointed. The Court specifically observed that the power under Article 226 could be exercised to mould relief and that setting aside selections and appointments made under the impugned framework would cause great hardship and administrative complications. Consequently, while the relevant provisions were declared unconstitutional, the existing admissions and appointments were not disturbed. The Divisional Bench of this Court while passing the order dated 19.09.2022 in WPC No.591 of 2022, has observed as follows :-

The next and most important question is the effect of the order dated 01.05.2023 passed by the Hon'ble Supreme Court in SLP (C) Nos.18816-18817 of 2022 and connected proceedings. The respondents have heavily relied upon the said order to contend that the recruitment process was protected and that the State was permitted to proceed with appointments and promotions.

There can be no dispute that the order dated 01.05.2023 is binding upon all concerned and must be given its full effect. However, the said order has to be understood in its proper context and in the manner in which it was passed. The Hon'ble Supreme Court permitted the State to proceed with the selection/recruitment and promotion processes and to make appointments and promotions, but expressly directed that such appointments and promotions would remain subject to the result of the proceedings pending before it. Thus, the Hon'ble Supreme Court did not finally adjudicate upon or approve the constitutional validity of the reservation arrangement. Equally, the order did not confer a permanent or indefeasible right upon any selected candidate.

The expression "subject to the outcome" employed by the Hon'ble Supreme Court is of decisive significance. It indicates that the process may continue so that public administration is not brought to a standstill, but the rights created pursuant thereto remain provisional and subordinate to the final adjudication of the Hon'ble Supreme Court. In other words, the Hon'ble Supreme Court balanced two competing considerations: the immediate administrative necessity of filling vacancies and maintaining functioning of the State machinery, and the requirement that the final rights of the parties should abide by the ultimate decision concerning the validity of the reservation framework.

The interim protection granted by the Hon'ble Supreme Court, therefore, cannot be construed as an order validating the quashed notification dated 29.11.2012 or the model rosters which were declared unconstitutional by this Court. Nor can it be read as authorising the State to disregard the constitutional limitations governing reservation. The protection is procedural and conditional in nature; it is not a declaration of substantive validity.

This distinction assumes considerable importance. If the order dated 01.05.2023 were interpreted as reviving the quashed reservation notification for all purposes, the words "subject to the outcome of the proceedings" would become meaningless. The very purpose of imposing such condition was to ensure that whatever appointments or promotions were made during the pendency of the proceedings would remain capable of being moulded in accordance with the final decision of the Hon'ble Supreme Court. Therefore, the State was entitled to proceed with the process, but it was not entitled to treat the reservation arrangement as finally settled or to confer upon the selected candidates an absolute right immune from the final decision of the Hon'ble Supreme Court.

The Court is also unable to accept the submission of the respondents that the order dated 01.05.2023 completely immunises the impugned advertisement from judicial scrutiny. The jurisdiction of this Court under Article 226 does not stand excluded merely because proceedings on the reservation issue are pending before the Hon'ble Supreme Court. The question before this Court is whether the respondent authorities acted in accordance with the law declared by this Court and whether the recruitment process, particularly the reservation roster adopted therein, could legally be sustained after the judgment dated 19.09.2022. The pendency of the Special Leave Petition does not authorise the executive to proceed as though the judgment dated 19.09.2022 had never been delivered. At the same time, the order dated 01.05.2023 prevents this Court from directing that all recruitment and promotion activity must come to an end. The two judicial orders have, therefore, to be harmoniously implemented.

The proper approach, in the opinion of this Court, is to recognise that the respondents may continue the recruitment and promotion process in view of the liberty granted by the Hon'ble Supreme Court, but every consequential right arising from such process must remain expressly subject to the final decision in the pending proceedings. This approach neither nullifies the order of the Hon'ble Supreme Court nor permits the respondents to claim that the reservation arrangement has received final judicial approval.

The impugned advertisement, insofar as it adopts the reservation pattern founded upon the notification dated 29.11.2012 and the consequential model rosters already declared unconstitutional, therefore cannot be sustained in its present form. The State authorities were required to proceed in accordance with the reservation framework legally available to them after the judgment dated 19.09.2022, subject always to the protection and conditions contained in the order dated 01.05.2023 of the Hon'ble Supreme Court. The State could not achieve indirectly, through the impugned advertisement and consequential roster, what stood directly invalidated by the judgment of this Court. The principle of judicial discipline applies not merely to formal compliance with the operative portion of a judgment but also to executive action which has the effect of substantially reproducing the very arrangement that has been declared unconstitutional.

The contention of the respondents that the excessive numerical figures are explained by the inclusion of backlog vacancies cannot, therefore, be accepted as a complete answer. The existence of backlog vacancies may explain why a particular recruitment may contain a numerical composition different from the ordinary reservation percentage. But it cannot answer the prior question as to whether the reservation points forming the foundation of those backlog vacancies were themselves legally sustainable. The State must necessarily distinguish between a vacancy lawfully carried forward from a valid reservation roster and a vacancy claimed to be backlog merely because it arose under a reservation arrangement subsequently declared unconstitutional.

The Court is not holding that backlog vacancies, as a class, are constitutionally impermissible. On the contrary, backlog vacancies are recognised in the constitutional scheme. What is impermissible is to employ the concept of backlog to preserve, perpetuate or revive a reservation arrangement which has ceased to have legal efficacy. The respondents must, therefore, undertake the recruitment exercise on the basis of a legally sustainable roster and thereafter give due effect to the order dated 01.05.2023 of the Hon'ble Supreme Court. The material placed before this Court further shows that the petitioners approached this Court promptly. The examination was conducted on 10.06.2023, the result was declared on 02.07.2023 and the proceedings were instituted on 06.07.2023, i.e. before the first selection list dated 12.08.2023. Thus, the petitioners cannot be non-suited on the ground of delay, acquiescence or having approached the Court only after their non-selection. The petitioners participated in the examination because they were otherwise qualified and because the recruitment process was open to them. Participation in an unconstitutional or legally defective selection process cannot operate as an estoppel against a candidate challenging the legality of the reservation arrangement, particularly when the challenge was raised at the earliest available opportunity.

The Court is equally conscious that the recruitment concerns a large number of vacancies and that several candidates may have already been selected or appointed. This Court is not inclined to direct wholesale termination of appointments already made. Such a direction would be contrary to the protective approach adopted by the Hon'ble Supreme Court and would also cause avoidable administrative disruption. The appropriate relief must, therefore, be moulded so as to protect both the constitutional rights of the petitioners and the interests of candidates who have already participated in the recruitment.

Article 226 confers wide powers upon the High Court to mould relief according to the facts and circumstances of the case. The Court is not required to adopt an all-or-nothing approach. Where the illegality lies in the manner in which the reservation roster has been applied, and where the recruitment has proceeded during the pendency of litigation pursuant to orders of the constitutional courts, the Court can direct reconsideration and continuation of the process in a manner which preserves the rights of all concerned. In the present cases, such a course is particularly appropriate because the final determination regarding the reservation framework is pending before the Hon'ble Supreme Court.

It is accordingly held that the respondents were not justified in treating the notification dated 29.11.2012 and the consequential model rosters, insofar as they were declared unconstitutional by the judgment dated 19.09.2022, as an independent and unrestricted source of authority for prescribing the impugned reservation. The impugned advertisement and the consequential recruitment process, to that extent, cannot be permitted to operate as though the quashed reservation framework continues to have unconditional and final legal validity.

At the same time, this Court cannot ignore the subsequent order dated 01.05.2023 passed by the Hon'ble Supreme Court. The said order expressly permits the process of recruitment and promotion to go on, but makes the resultant appointments and promotions subject to the final outcome of the proceedings pending before the Hon'ble Supreme Court. This Court is, therefore, required to preserve the recruitment process rather than bring it to an absolute halt, while ensuring that no candidate obtains an indefeasible right contrary to the ultimate decision of the Hon'ble Supreme Court.

In this view of the matter, the appropriate relief would be to allow the writ petitions and direct the respondents to proceed with the recruitment process in accordance with law, subject to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected proceedings. The respondents shall ensure that the candidature of the petitioners and other similarly situated candidates is considered in accordance with the legally permissible reservation framework and the directions of the competent constitutional courts. It is made clear that this Court is not directing that any candidate belonging to any particular category should be displaced merely on the basis of the present judgment. The protection granted by the Hon'ble Supreme Court on 01.05.2023 shall remain operative. Any appointment already made pursuant to the impugned recruitment shall continue, but such continuation shall be expressly subject to the final outcome of the proceedings pending before the Hon'ble Supreme Court.

Similarly, the State shall be at liberty to proceed with further appointments and promotions so that the administrative functioning of the State is not adversely affected. However, every such appointment or promotion shall carry a clear and unambiguous stipulation that the appointment/promotion is subject to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected matters and to any further order that may be passed by the Hon'ble Supreme Court. The said stipulation shall not be treated as a mere formality. It shall constitute an integral and enforceable condition of every appointment order, promotion order and consequential service order issued pursuant to the recruitment/promotion process covered by the present controversy. The authorities shall ensure that the condition is incorporated in the body of the order itself and not merely by way of a separate communication or internal departmental note.

The reason for issuing such a direction is apparent. The Hon'ble Supreme Court, while permitting the recruitment and promotion process to proceed, has consciously protected the final adjudication by making the appointments and promotions subject to the outcome of the pending proceedings. Any appointment or promotion made without incorporating such condition would dilute the protection expressly granted by the Hon'ble Supreme Court and may create equities which were never intended to arise during the pendency of the proceedings.

Consequently, no selected candidate shall claim that mere issuance of an appointment order during the pendency of the proceedings has conferred an absolute, indefeasible or irreversible right upon him or her in respect of continuation in service, seniority, promotion, consequential benefits or any other service benefit, insofar as such right is affected by the final determination of the reservation issue pending before the Hon'ble Supreme Court.

Correspondingly, the petitioners shall also not be denied consideration merely on the ground that the recruitment process has already progressed or that appointments have been made. Their candidature shall be considered in accordance with the directions issued herein and in conformity with the final decision of the Hon'ble Supreme Court. If, upon implementation of the final judgment of the Hon'ble Supreme Court, any consequential reworking of the selection, appointment, seniority or promotion becomes necessary, the respondents shall undertake such exercise strictly in accordance with law.

The Court further directs that the respondents shall not treat the order dated 01.05.2023 passed by the Hon'ble Supreme Court as a declaration of validity of the reservation notification dated 29.11.2012 or the model rosters which were the subject matter of the judgment dated 19.09.2022. The said order is to be understood as permitting continuation of the process, subject to the final adjudication. The substantive validity of the reservation framework shall remain open to and governed by the final decision of the Hon'ble Supreme Court. This construction, in the opinion of the Court, strikes the constitutionally appropriate balance. On one hand, it gives full respect to the judgment dated 19.09.2022 and the constitutional principles governing reservation; on the other hand, it gives full effect to the subsequent order dated 01.05.2023 of the Hon'ble Supreme Court permitting the State to proceed with recruitment and promotion. It also protects the interests of candidates who have already been appointed while preserving the rights of the petitioners and similarly situated candidates.

The Court accordingly holds that the petitioners have made out a case for interference. The reservation arrangement reflected in the impugned advertisement, insofar as it proceeds upon the quashed notification dated 29.11.2012 and the consequential model rosters declared unconstitutional, cannot be sustained as an independent and unconditional basis for making appointments. The respondents are consequently required to regulate the further recruitment exercise in accordance with law and subject to the final outcome of the proceedings pending before the Hon'ble Supreme Court. In the peculiar facts of the present cases, however, the relief shall not take the form of annulment of every appointment already made pursuant to the impugned recruitment. Such a course would be neither necessary nor consistent with the order dated 01.05.2023 passed by the Hon'ble Supreme Court. Instead, all such appointments shall remain protected subject to the final outcome of the proceedings pending before the Hon'ble Supreme Court. The same principle shall apply to promotions already made or which may hereafter be made during the pendency of the proceedings.

In view of the foregoing discussion and the findings recorded hereinabove, this Court is of the considered opinion that the petitioners have made out a case for interference under Article 226 of the Constitution of India. The impugned advertisement dated 04.05.2023, insofar as it proceeds upon and gives effect to the reservation arrangement founded upon the notification dated 29.11.2012 and the consequential model rosters which had already been declared unconstitutional by this Court in WPC No.591 of 2012 and connected matters, cannot be sustained in law. Accordingly, the impugned advertisement dated 04.05.2023, to the extent it incorporates the aforesaid reservation arrangement, is hereby quashed and set aside.

Consequently, all consequential actions taken by the respondents on the basis of the impugned reservation arrangement shall stand subject to the directions contained in this judgment and, more importantly, to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected proceedings pending before the Hon'ble Supreme Court. This Court, however, considers it neither necessary nor appropriate to direct wholesale cancellation of the recruitment process or termination of candidates who have already been appointed, particularly in view of the specific order dated 01.05.2023 passed by the Hon'ble Supreme Court permitting the State to proceed with the process subject to the final outcome of the proceedings.

Accordingly, the respondents are directed to proceed with the recruitment and promotion process in accordance with law and in conformity with the order dated 01.05.2023 passed by the Hon'ble Supreme Court. The respondents shall reconsider and regulate the vacancies and the reservation roster in accordance with the law declared by this Court, subject to the final adjudication by the Hon'ble Supreme Court in the aforesaid proceedings.

It is made clear that the setting aside of the impugned advertisement, to the extent indicated hereinabove, shall not result in automatic termination of the persons who have already been appointed pursuant thereto. Their appointments shall continue, but strictly subject to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected matters and any further order passed by the Hon'ble Supreme Court. No appointee shall, therefore, claim any indefeasible right on the basis of such appointment contrary to the final decision of the Hon'ble Supreme Court.

The respondents shall, however, ensure that every appointment order issued hereafter pursuant to the recruitment process in question contains, in clear and unambiguous terms, a specific stipulation that the appointment is "subject to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected proceedings pending before the Hon'ble Supreme Court and to any further order passed therein." The said stipulation shall constitute an integral condition of such appointment and shall be specifically incorporated in the appointment order itself.

Similarly, every promotion order issued hereafter, where the promotion is in any manner connected with or affected by the reservation framework which is the subject matter of the proceedings before the Hon'ble Supreme Court, shall specifically record that such promotion is subject to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected proceedings and to any further order passed by the Hon'ble Supreme Court therein. The concerned authorities shall not issue any such promotion order without incorporating the aforesaid condition. It is further directed that the same condition shall be incorporated, wherever applicable, in orders relating to seniority, confirmation, regularisation or any other consequential service benefit arising out of the appointments or promotions made during the pendency of the proceedings before the Hon'ble Supreme Court. The purpose of such stipulation is to ensure that no equity is created in favour of any individual which may operate to defeat or frustrate the final judgment of the Hon'ble Supreme Court.

Upon final adjudication of the aforesaid proceedings by the Hon'ble Supreme Court, the respondent authorities shall be bound to give full and consequential effect to the judgment/order so rendered. If such final adjudication necessitates re-determination of the reservation roster, selection, appointment, promotion, seniority or any other consequential service benefit, the competent authorities shall undertake the necessary exercise strictly in accordance with the final directions of the Hon'ble Supreme Court.

It is clarified that this Court has not expressed any final opinion upon the ultimate validity of the reservation framework which is presently under consideration before the Hon'ble Supreme Court. The relief granted herein is intended to give effect to the judgment dated 19.09.2022 passed by this Court, while simultaneously preserving the liberty granted by the Hon'ble Supreme Court by its order dated 01.05.2023 to continue the recruitment and promotion process subject to the final outcome of the pending proceedings.

For the reasons aforesaid, the batch of writ petitions is allowed. The impugned advertisement dated 04.05.2023, insofar as it gives effect to the reservation arrangement founded upon the notification dated 29.11.2012 and the consequential model rosters declared unconstitutional by this Court, is quashed and set aside. The consequential recruitment and promotion processes shall, however, be permitted to continue in terms of the order dated 01.05.2023 passed by the Hon'ble Supreme Court, subject to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected matters.

All interim orders, if any, shall stand merged in this final order, subject to the directions contained herein.

There shall be no order as to costs.

Constitutional validity of reservation — Effect of judicial declaration of invalidity — Executive authorities cannot act upon a reservation framework already held unconstitutional, unless protected by a subsequent order of the Supreme Court — Recruitment/ appointment/promotion may proceed subject to the final outcome of proceedings pending before the Supreme Court, with consequential orders expressly made subject thereto.