(1.) In this batch of Writ Petitions preferred under Article 32 of the Constitution of India the prayer relates to issue of a direction in the nature of mandamus commanding the respondents to enforce appropriately the constitutional mandate as contained under the provisions of Articles 16(4-A), 16(4-B) and 335 of the Constitution of India or, in the alternative, directing the respondents to constitute a Committee or appoint a Commission chaired either by a retired Judge of the High Court or Supreme Court in making survey and collecting necessary qualitative data of the Scheduled Castes and the Scheduled Tribes in the services of the State for granting reservation in promotion in the light of direction gives by this Court in M. Nagaraj & others v. Union of India & others, 2006 8 SCC 212 . Let it be clarified in the beginning, apart from this prayer, other reliefs sought for in the petitions have not been argued and rightly so, as the said grievances have already been directed to be dealt with in interlocutory applications to be filed in the case of U.P. Power Corporation Limited v. Rajesh Kumar & others, 2012 7 SCC 1.
(2.) At the commencement of the hearing, Dr. K.S. Chauhan, learned counsel appearing for the petitioner in Writ Petition (Civil) No. 715 of 2015, had submitted that the decision in M. Nagaraj by the Constitution Bench requires reconsideration. For the said purpose, he has made an effort to refer to certain passages from Indra Sawhney & others v. Union of India & others, 1992 Supp3 SCC 217 and R.K. Sabharwal v. State of Pubjab, 1995 2 SCC 745.
(3.) The principal submission of Mr. Salman Khurshid, Mr. K.V. Vishwanathan, learned senior counsel and Dr. K.S. Chauhan learned counsel appearing for the respective petitioners is the alternative submission which can be put in three compartments:- (i) the decision rendered in M. Nagaraj has not been appositely applied (ii) the authority in Rajesh Kumar has to apply prospectively and cannot have retrospective effect, and (iii) even if it is assumed, as interpreted in M. Nagaraj , Articles 16(4-A) and 16(4-B) are enabling constitutional provisions, the concept of power coupled with duty requires the authorities to perform the duty and they are obliged to collect the quantifiable data to enable them to take a decision on reservation in promotion and hence, a mandamus should be issued to all authorities to carry out the constitutional command. We have permitted Dr. Rajiv Dhavan to argue the matter as he had appeared for some of the respondents in the case of Rajesh Kumar .
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