M. R. Balaji & Ors Vs. State of
Mysore  INSC 276 (28 September 1962)
28/09/1962 GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 649 1962 SCR Supl. (1) 439
CITATOR INFO :
D 1964 SC 179 (13,14,17,18,30) R 1964 SC1823
(14) R 1967 SC1283 (6) F 1968 SC 507 (6) R 1968 SC1012 (7) F 1968 SC1379 (316)
MV 1971 SC 530 (271) R 1971 SC1762 (24) RF 1971 SC2206 (4) R 1971 SC2303
(21,22,23) E 1972 SC1375 (63,75,80,83,86,88,98,101) F 1973 SC 930 (22,23,24,32)
R 1974 SC 532 (14) RF 1975 SC 563 (14,16,23,28,34) D 1976 SC 490
(26,68,126,184) R 1981 SC 298 (28,88,89,110,131,132) R 1981 SC 588 (13) O 1985
SC1495 (9,10,13,24,51,59,63,64,95,99, RF 1988 SC 959 (2,8,10) F 1989 SC 903
(26) RF 1992 SC 1 (91)
Admission into Colleges-Reservation of seats
for socially and educationally backward classes and Scheduled Castes and
Scheduled Tribes-Scope of-Directive Principles-Supreme Court not to fix
percentage-Constitution of India, Arts. 15 (4), 16 (4), 29 (2), 46, 340.
On July 26, 1958, the State of Mysore issued
an order that all the communities excepting the Brahmin community, fell within
the definition of educationally and socially backward classes and Scheduled
Castes and Scheduled Tribes and 75% of seats in educational institutions were
reserved for them.
Similar orders reserving seats were issued on
May 14, 1959, July 22, 440 1959, June 9, 1960 and July 10, 196 1. The
percentage of seats reversed varied in various orders, but all of them.
were set aside when challenged.
On July 31, 1962, the State of Mysore passed
another order which superseded all previous orders made by the State under Art.
15 (4) for reservation of seats. Under that order, the backward classes were
divided into two categories, backward classes and more backward classes. The
order reserved 68% of the scats in the engineering and medical colleges and
other technical institutions for the educationally and socially backward
classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent
seats for the merit pool.
The order was challenged by 23 petitioners by
a writ petition under Art. 32. The petitioners contended that but for the
reservations made by the impugned order, they would have been entitled to
admission in the respective colleges for which they had applied. They contended
that the classification made under the order was irrational and the reservation
of 68% scats made by the order was a fraud on Art. 15 (4) of the Constitution.
Held, that the impugned order was a fraud on
the constitutional power conferred on the State by Art. 15(4) and the same be
quashed. The impugned order categorises the backward classes on the sole basis
of caste which is not permitted by Art. 15 (4). The reservation of 68% scats is
inconsistent with the concept of the special provision authorised by Art. 15
(4). However, this Court would not attempt to lay down definitely and in an
inflexible manner as to what should be the proper percentage for reservation.
Reservation should and must be adopted to
advance the prospects of weaker sections of society, but while doing so, care
should be taken not to exclude admission to higher educational centres of
deserving and qualified candidates of other communities. Reservations under
Arts. 15 (4) and 16 (4) must be within reasonable limits. The interests of
weaker sections of society, which are a first charge on the States and the
Centre, have to be adjusted with the interests of the community as a whole.
Speaking generally and in a broad way, a special provision should be less than
50%. The actual percentage must depend upon the relevant prevailing
circumstances in each case.
The object of Art. 15 (4) is to advance the
interests of the society as a whole by looking after the interests of the
weaker elements in society. If a provision under Art. 15 (4) ignores the
interests of society, that is clearly outside the scope of 441 Art. 15 (4). it
is extremely unreasonable to assume that in enacting Art. 15 (4), Parliament
intended to provide that where the advancement of the backward classes or the
Scheduled Castes and Tribes were concerned, the fundamental right.% of the
citizens constituting the rest of the society were to be completely and
Considerations of national interest and the
interests of the community and the society as a whole have already to be kept
Article 15 was amended and Art. 15 (4) was
added in view of the judgment of this Court in the State of Madras v. Smt.
Champakam Dorairajan and The State of Madras
v. C. R. Srinivasan  S. C. R. 525. Article 15 (4) is a proviso or an
exception to Arts. 15 (1) and 29 (2). If an order is justified by the
provisions of Art. 15 (4), its validity cannot be questioned on the ground that
it violates Art. 15 (4) or Art. 29 (2).
It is true that the Constitution contemplates
the appointment of a commission whose report and recommendations can be of
assistance to the authorities concerned for taking adequate steps for the
advancement of backward classes, but this does not mean that the appointment of
the commission and the subsequent steps that would follow it are a condition
precedent to any action being taken under Art. 15 (4). The special provisions
contemplated under Art. 15 (4) can be made by the Union or the States by an
executive order. It cannot be said that the President alone can make special
provision for the advancement of the backward classes.
Article 15 (4) authorises the State to make
special provision for the advancement of socially and educationally backward
classes of citizens as distinguished from the Scheduled Castes and Scheduled
Tribes. Some backward classes may, by presidential order, be included in
Scheduled Castes and Tribes, and in that sense the backward classes for whose improvement
provision is made in Art. 15 (4) are comparable to Scheduled Castes and
The backwardness under Art. 15 (4) must be
social and educational. It is not either social or educational, but it is both
social and educational. Though caste in relation to Hindus may be a relevant
factor to consider in determining the social backwardness of groups or classes
of citizens, it cannot be made the sole or dominant test. There are certain
sections of Indian society such as Christians, Jains, Muslims, etc., who do not
believe in caste system, and the test of caste does not apply to them.
Moreover, social backwardness is in the Ultimate analysis the result of poverty
to a very large extent.
442 The classes of citizens who are
deplorably poor automatically socially backward. Moreover, the occupation of
citizens and the place of their habitation also result in social backwardness.
The problem of determining who are socially backward classes, is undoubtedly
very complex, but the classification of socially backward citizens on the basis
of their castes alone is not permissible under Art. 15 (4).
In determining the educational backwardness
of a class of citizens, the literacy test supplied by the Census Reports is not
adequate. It is doubtful if the test of the average of the student population
in the last three high school classes is appropriate in determining educational
backwardness. Io any case, the State is not justified in including, in the list
of backward classes castes or communities whose average of student population
per thousand is slightly above or very near or just below the State average.
The legitimate view to take is that the classes of citizens whose average is
well or substantially below the State average can be treated as educationally
backward. It is not for this Court to lay down any hard and fast rule in this
matter. It is the duty of the State to decide the matter in a manner which is
consistent with the requirements of Art. 15 (4).
The division of backward classes into two
categories of backward classes and more backward classes is not warranted by
Art. 15 (4). Art. 15 (4) authorises special provision being made for the really
backward classes but by introducing two categories, what is intended is to
devise measures for all classes of citizens who are less advanced as compared
to the most advanced classes in the State. That is not the scope of Art. 15
The object of making a special provision for
the advancement of castes or communities is to carry out the Directive
Principle enshrined in Art46. Unless the educational and economic interests of
the weaker sections of the people are promoted quickly and liberally, the ideal
of establishing social and economic equality cannot be attained. Article 15 (4)
authorises the State to take adequate steps to achieve the object.
While making adequate reservation under Art.
16 (4), care should be taken not to provide for unreasonable, excessive or
extravagant reservation because that would by eliminating general competition
in a large field and by creating widespread dissatisfaction among the
employees, materially affect their efficiency. Like the special provision
improperly made under Art. 15 (4), reservation made under Art. 16 (4) beyond
the permissible and legitimate limits is a fraud on the Constitution.
443 Ramakrishna Singh Rain Singh v. State of
Mysore A. I. R.
1960 Mysore 338, S. A. Partha v. The State of
Mysore, A. 1.
R. 1961 Mysore 220, The State of Madras v.
Shrimathi Champakam Dorairajan,  S. C. R. 525 and General Manage?-,
Southern Railway v. Rangachari,  2 S. C. R.
586, referred to
ORIGINAL JURISDICTION Writ Petitions Nos. 90
to 11 2 of 1962.
Petition under Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
S. K. Venkataranya Iyengar and R.
Gopalakrishnan, for the petitioners.
G. Ethirajulu Naidu, Advocate General of the
State of Mysore, B. R. L. Iyengar, D. M. Chandrasekhar and P. D.
Menon, for the Respondent No. 1.
R. Gopalakrishnan, for the Interveners.
1962. September 28. 'The judgment of the
Court was delivered by GAJENDRAGADKAR, J.-Since 1958 the Stale of Mysore has
been endeavouring to make a special provision for the advancement of the
socially and educationally backward classes of citizens in the State of Mysore
under Article 15 (4) of the Constitution, and every time when an order is
passed in that behalf, its validity has been challenged by writ proceedings.
Four previous orders passed in that behalf were challenged by writ proceedings
taken against the State under Art. 226 in the High Court of Mysore. The present
petitions filed by the respective petitioners under Art. 32 dispute the
validity of the last order passed by the State of Mysore on the July 31, 1962,
under Art. 15 (4).
Out of the twenty-three petitioners, six had
applied for admission to the Pre-professional Class in Medicine in the Medical
Colleges affiliated either 444 to the Mysore University or to the Karnatak
University, and seventeen had applied for admission to the First Year of the 5
Year integrated course leading to the Degree of B. E. in the University of
Mysore. According to the petitioners, but for the reservation made by the
impugned order, they would have been entitled to the admission in the
respective colleges for which they had applied. As a result of the reservation
made by the said order, students who have secured less percentage of marks have
been admitted, but not the petitioners. That, in brief, is the petitioners'
grievance and they urge that the impugned order which has denied them the facility
of admission in the respective colleges is void under Arts. 15 (1) and 29 (2)
and should not be enforced against them. Accordingly, the petitioners pray that
a writ of mandamus and/or any suitable writ or direction should be issued
against respondent No. 1, the State of Mysore (hereinafter called the State),
and the two Selection Committees which have been impleaded as respondents 2
& 3. The petitioners' case is that the impugned order which has been passed
under Art. 15 (4) is not valid because the basis adopted by the order in
specifying and enumerating the socially and educationally backward classes of
citizens in the State is unintelligible and irrational, and the classification
made on the said basis is in consistent with and outside the provisions of Art.
15 (4). It is also urged by them that the extent of reservation prescribed by
the said order is so unreasonable and extravagant that the order, in law, is
not justified by Art. 15 (4) and, in substance, is a fraud on the power
conferred by the said Article on the State.
These allegations are denied by the State and
it is urged on its behalf that the classification made is both rational and
intelligible and the reservation prescribed by the order is fully justified by
Art. 15 (4). The contention that the order is a colourable exercise 445 of the
State's power and amounts to a fraud on the Constitution is disputed.
As we have just indicated, the impugned order
was preceded by four other orders and so, it is necessary to refer to the said
orders in their sequence to understand the background of the dispute between
the parties. On the 26th,July 1958, the State issued an order that all the
communities, excepting the Brahmin community, fell within the definition of
educationally and socially Backward Classes and Scheduled Castes and Tribes,
and provided for the said communities and tribes reservation of 75% of seats in
educational institutions. For the Scheduled Castes and the Scheduled Tribes,
the percentage of reservation was 15% and 3% respectively. This percentage for
the Scheduled Castes & Tribes has been maintained in all the subsequent
The order issued by the State on the 26th
July, 1958, was challenged before the Mysore High Court and it appears that the
State conceded before the High Court that there was a drafting error in the
Government Order and so, it did not press its case that the said order was
valid. In the result, the writ petitions filed to challenge the validity of the
order succeeded and the impugned order was quashed.
In 1959, two separate orders were passed by
the State on the 14th May and 22nd July respectively. By the first order, all
communities, excepting Brahmins, Baniyas and Kayasts among the Hindus and
Muslims, Christians and Jains, were classified as socially and educationally
It appears that 65% of the seats were
reserved for these socially and educationally Backward Classes and Scheduled
Castes and Tribes. These orders were challenged before the Mysore High Court in
the case of Ramakrishna Singh Ram Singh v. State of Mysore(1). The High Court
upheld the pleas raised by the petitioners and quashed the impugned (1) A.I.R.
1960 Mysore 338.
(1) A.I.R. 1960 Mysore 338.
446 orders. In the result, the High Court
directed that the applications made by the petitioners for admission to the
respective colleges should be considered without reference to the said orders,
but subject to the reservation for Scheduled Castes and Scheduled Tribes made
The State then appointed a Committee called
the Mysore Backward Classes Committee with Dr. R. Nagan Gowda as its Chairman,
to investigate the problem and advise the Government as to the criteria which
should be adopted in determining the educationally and socially Backward
Classes, and the special provisions which should be made for their advancement.
The Committee made an interim report, and inthe light of the said report, the
State passed an order on the 9th June, 1960 regulating admissions for that year
into the professional and technical colleges. Broadly stated, the effect of
this order was that 60% of the seats were left open for what may be
conveniently described as the 'merit pool' available to candidates according to
their merits. 40% were reserved for the 'reservation pool', 22% of which were reserved
for the Backward Classes, 15% for the Scheduled Castes and 3% for the Scheduled
Tribes. This order was also challenged before the Mysore High Court in S. A.
Partha v. The State of Mysore(1). It appears that, on the whole, the High Court
did not feel satisfied that the scheme of the special provision made by the
impugned order was invalid, but it thought that the allotment of seats under
the provisions of the said order in favour of the other Backward Classes in
excess of 22% reserved for them otherwise than by open competition amounted to
an unreasonable restraint on the fundamental right of other citizens and,
therefore, was invalid. Having reached this decision, the High Court indicated
the manner in which the reservation in favour of the Scheduled Castes and
Scheduled Tribes and other Backward Classes should be worked out so as to (1)
A.I.R. 1961 Mysore 220, 447 avoid a successful challenge under Arts. 15 (1) and
Thereafter, the Nagan Gowda Committee made
its report in 1961 and in the light of the said report and the recommendations
made therein, the State proceeded to make an order under Art. 15 (4) on July
10, 1961. This Order begins with the observation that the Nagan Gowda Committee
has come to the conclusion that in the present circumstances, the only
practicable method of classifying the Backward Classes in the State is on the
basis of castes and communities, and it has specified the criteria which should
be adopted for determining the educational and social backwardness of the communities.
The two criteria specified in the report at,(, then set out. The order then
expresses the States's concurrence with the proposal made by the Committee that
the Backward Classes should be Sub divided into two categories--Backward and
the More Backward, and it adopts the test laid down by the report in that
behalf. This approach, according to the order, is realistic and practicable. On
the question is to the communities which should be treated as backward, the
State made some variations in the recommendations made by the Committee. It
held that Lingayats and Bhunts who formed part of Vokkaligas, should be treated
as backward. In that connection, the State noticed the fact that the
recommendation of the Committee in respect of the said two communities was not
unanimous, and it observed that a large percentage of Lingayat population lives
in rural areas and most of them are engaged in agriculture and mannual labour
and suffer from all the consequences of illiteracy and poverty. In regard to
the Bhunts, the State thought that they could not be distinguished from the
rest of the Vokkaligas. The order then adds that Satanis, Nayars and
Zoreastrians whose average according to the educational test prescribed by the
Committee was as per thousand of population (whereas that of Lingayats is 448
7. 1) need not be treated as backward. The
order then examines the question as to the percentage which should be reserved,
and it rejects the Committee's recommendation of reservation of 68% all-told on
the ground that such a large percentage of reservation would not be in the
larger interests of the State. That is why, according to the order, 48% was
fixed as the total reservation in favour of the Backward Classes, the Scheduled
Castes and Scheduled Tribes together; that means, 30% was reserved for the
Backward Classes. Annexure I to this order gives a list of 81 Classes and 135
More Backward Classes.
On July 31, 1962, the State passed the
impugned order which supersedes all previous orders made by the State under
15(4) for reservation of the seats in favour
of the Scheduled Castes and Scheduled Tribes as well as the Backward Classes.
Under this order, the Backward Classes are divided into two categories (1)
Backward Classes and (2) More Backward Classes. The' effect of this order is
that it has fixed 50% as the quota for the reservation of seats for Other
Backward Classes; 28% out of this is reserved for Backward Classes so-called
and 22% for More Backward Classes. The reservation of 15% and 3% for the
Scheduled Castes and Scheduled Tribes respectively continues to be the same.
The result of this order is that 68% of the seats available for admission to
the Engineering and Medical Colleges and to other technical institutions
specified in the order passed on July 10, 1961 is reserved, and only 32% is
available to the merit pool. In other words, the percentage of reservation to
the extent of 68%, which, according to the order of July 10, 1961, would have
been against the larger interests of the State, has, by the impugned order,
been accepted. The petitioners contend that the classification made by this
order is irrational and the reservation of 68% made by it is a fraud on Article
449 The problem raised for our decision by
the present petitions involves the consideration of sociological, social and
economic factors, and so, before dealing with the contentions raised by the
parties before us, it is necessary to set out briefly the material which has
been adduced before us. On January 29, 1953, the President appointed the
Backward Classes Commission by virtue of the power conferred on him under Art.
340 (1) of the Constitution. This Commission made its report on March 30, 1955.
The Commission was required "to investigate the conditions of socially and
educationally backward classes within the territory of India and the
difficulties under which they labour, and to make recommendations as to the
steps that should be taken by the Union or any State to remove such
difficulties and to improve their condition." Art. 340 (1)].
According to the Commission, the relevant
factors to consider in classifying Backward Classes would be their traditional
occupation or profession; the percentage of literacy or the general educational
advancement made by them; the estimated population of the community, and the
distribution of the various communities throughout the State or their
concentration in certain areas. The Commission also thought that the social
position which a community occupies in the caste hierarchy would also have to
be considered, as well as its representation in Government service or in the
industrial sphere. (p. 47). According to the Commission., the causes of
educational backwardness amongst the educationally and socially backward
1. Traditional apathy for education on
account of social and environmental conditions or occupational handicaps.
2. Poverty and lack of educational
institutions in rural areas.
3. Living in inaccessible areas.
4. Lack of adequate educational aids, such as
free studentships, scholarships and monetary grants.
5. Lack of residential hostel facilities.
6. Unemployment among the educated which acts
as a damper on the desire of the members to educate their children; and
7. Defective educational system which does
not train students for appropriate occupations and professions. (p.107).
The Committee realised that, in substance,
the problem of the Backward Classes is really the problem of Rural India (p.
55). It appears that having considered several criteria which may be relevant
in determining which classes are backward, the Committee ultimately decided to
treat the status of caste as an important factor in that behalf, and it is on
that basis that it proceeded to make a list of Backward Communities which were
specified in Volume 11 of the Report.
Dealing with the problem of university
education, the Committee observed that the present rush of students to the
Universities should be prevented in the larger interests of the country and
that could be done only by training students in various occupations and
professions at the secondary stage itself. But the Committee noticed that so
long as University Degree qualification continues to be a prerequisite to
Government service, it was not easy to prevent the rush at the doors of the
Universities, and so, the Committee proceeded to recommend that in all Science,
Engineering, Medicine, Agriculture, Veterinary and other technical
institutions, a reservation of 70% of the seats should be made for qualified
students of Backward Classes till such time as accommodation can be provided
for all students eligible for admission. (pp. 119 & 125).
451 That, in brief, is the nature of the
material available from the Commission's Report.
It is, however, significant that the Chairman
of the Commission who signed the Report congested to a feeling of grave
dissatisfaction with the approach adopted in the Report in determining the
question as to which communities could be regarded as backward under Art.
15(4). "My eyes were however opened," says the Chairman in his
covering letter to the President, "to the dangers of suggesting remedies
on caste basis when I discovered that it is going to have a most unhealthy
effect on the Muslim and Christian sections of the nation," and he added that
the said consciousness gave him a rude shock and drove him to the conclusion
that the remedies suggested by the Commission were worse than the evil it was
out to combat. According to the Chairman, "if we eschew the principle of
caste, it would be possible to help the extremely poor and deserving from all
communities. Care, however, being taken to give preference to those who come
from the traditionally neglected social classes." Even though the Chairman
thus expressed his distress in very strong language over the basis adopted by
the Commission, he ultimately agreed to the proposal of the Commission for the
reservation of seats. for Backward Classes to the extent of 70 percent.
The Report made by the Backward Classes
Commission along with the Chairman's covering letter was considered by the
Central Government in due course. The Central Government apparently did not
feel satisfied about the approach adopted by the Commission in determining as
to who should be treated as Backward Classes under Article 15(4). The Memorandum
issued by the Government of India on the Report of the Commission points out
that it cannot be denied that the caste system is the greatest hindrance in the
way of our progress towards an egalitarian society, and the recognition of' 452
the specified castes as backward may serve to maintain and even perpetuate the
existing distinctions on the basis of castes. Besides, the memorandum goes on
to add that some of the tests applied by the Commission were more or less of an
individual character, and even if they were accepted, they would encompass a
large majority of the country's population. If the entire community, says the
memorandum, barring a few exceptions, has thus to be regarded as backward, the
really needy would be swamped by the multitude and hardly receive any special
attention or adequate assistance, nor would such dispensation fulfill the
conditions laid down in Art. 340 of the Constitution. The memorandum,
therefore, emphasised that action on a systematic and elaborate basis can be
proceeded with only after the necessary positive tests and criteria have been
laid down for determining which classes or sections are really entitled to get
special relief and assistance. To that end, further investigation was obviously
Even so, instructions were issued by the
Central Government to the State Governments requesting them to render every
possible assistance and to give all reasonable facilities to the people who
come within the category of Backward Classes in accordance with their existing
lists and also to such others who in their opinion deserve to be considered as
socially and educationally backward in the existing circumstances.
On April 24, 1962, the Central Government
wrote to the Secretary of Education Department of the Government of Mysore on
the subject of reservation of seats under Article 15(4). In this communication
it was observed that the Central Government had considered the said question
and was of opinion that a uniform policy should be followed all over the
country at least in non-Government institutions. It was then added that the
All-India Council for Technical Education had recommended that the reservation
for Scheduled Castes and Scheduled Tribes and other 453 backward communities
may be up to 25 % with marginal adjustments not exceeding 10% in exceptional
cases. The Central Government, therefore, suggested that in all non Government
institutions in the State, the reservations under Art. 15 (4) should not in any
case exceed 35%.
In this connection, it would be interesting
to refer to the report made by the Commissioner for Scheduled Castes and
Scheduled Tribes in 1959. In this Report, the Commissioner refers to the pilot
survey made by the Dy. Registrar General of India at the request of the
Government of India.
This survey was made with the help of
material collected at the time of 1951 Census with a view to find out whether
occupations could be adopted as suitable basis for determining social and
educational backwardness. A preliminary analysis of the data collected indicated
that it would be possible to draw up a list of socially and educationally
backward occupations on the basis of:-(a) any non-agricultural occupations in
any State in India in which 500% or more of the persons belong to the Scheduled
Castes or the Scheduled Tribes; or (b) any non-agricultural occupations in
which literacy percentage of the persons depending thereon Is less than 500% of
the general literacy in the State.
In his Report, the Commissioner has adversely
commented on the classification made by the State in the impugned order.
It now remains to consider the report made by
the Nagan Gowda Committee appointed by the State. This Report proceeds on the
basis that higher social status has generally been accorded on the basis of
caste for centuries;
and so, it takes the view that the low social
position of any community is, therefore, 454 mainly due to the caste system.
According to the Report, there are ample reasons to conclude that social
backwardness is based mainly on racial, tribal, caste and denominational
differences, even though economic backwardness might have contributed to social
backwardness. It would thus be clear that the Committee approached its problem
of enumerating and classifying the socially and educationally backward communities
on the basis that the social backwardness depends substantially on. the caste
to which the community belongs, though it recognised that economic condition
may be a contributory factor. The classification made by the Committee and the
enumeration of the backward communities which it adopted shows that the
Committee virtually equated the classes with the castes. According 'to the
Committee, the entire Lingayat community was socially forward, and that all
sections of Vokkaligas,'excluding Bhunts, were socially backward. With regard
to the Muslims, the majority of the Committee agreed that the Muslim community
as a whole should be classified as socially backward. The Committee further
decided that amongst the backward communities two divisions should be made (i)
the Backward and (ii) the More Backward.
In making this distinction, the Committee
applied one test.
It enquired: "Was the standard of
education in the community in question less than 500% of the State average? -If
it was, the community should be regarded as more backward; if it was not, the
community should be regarded as backward." As to the extent of reservation
in educational institutions, the Committee's recommendation was that 28% should
be reserved for backward and 22% for more backward. In other words, 50% should
be reserved for the whole group of backward communities besides 150% and 3%
which had already been reserved for the Scheduled Castes and Scheduled Tribes
respectively. That is how according to the Committee, 68% was carved out by reservation
for the betterment of the Backward Classes and the Scheduled Castes an 455
Tribes' It is on the basis of these recommendations that the Government
proceeded to make its impugned order.
Article 15(4) provides that nothing in this
Article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally
backward Classes of citizens or for the Scheduled Castes and the Scheduled
Tribes. This Article was added by the Constitution (First Amendment) Act '1951.
The object of this amendment was to bring Articles 15 and 29 in line with Art.
16(4). It will be recalled that in the case of The State of v. Srimathi
Champakam Dorairajan(1) the validity of the Government order issued by the
Madras Government fixing certain proportions in which students seeking for
admissions to the Engineering and Medical Colleges in the State should be
admitted, was challenged.
The said Government Order was on the face of
it a communal order fixing the admissions in the Stated proportion by reference
to the communities of. the candidates. This order was struck down by the Madras
High Court and the decision of the Madras High Court was confirmed by this
Court in appeal, on the ground that the fundamental rights guaranteed by
Articles 15(1) and 29(2) were not controlled by any exception, and that since
there was no provision under Art.
15 corresponding to Art. 16(4), the impugned
order could not be sustained. It was directly as a result of this decision that
Art. 15 was amended and Art. 15(4) was added. Thus, there is no doubt that Art.
15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2).
In other words, if the impugned order is justified by the provisions of Art.
15(4), its validity cannot be impeached on the ground that it violates Art.
15(1) or Art. 29(2).
The fundamental rights guaranteed by the said
two provisions do not affect the validity of the special provision which it is
permissible to 'make under Art. 15(4).
(1)  S.C.R. 525.
456 This position is not and cannot be in
dispute. The petitioners contend that the impugned order is invalid because it
is not justified by Art. 15(4).
The first argument which has been urged by
Mr. Iyyangar on behalf of the petitioners is that it is not competent to the
State to make an order under Art. 15(4) unless a Commission has been appointed
under Art. 340 (1) and a copy of the report of the said Commission is laid
before the House of Parliament under Art. 340(3). The argument is that Art. 340
provides for the appointment of a Commission to investigate the conditions of
Backward Classes. The Commission so appointed is required to make a report
recommending what steps should be taken to improve the conditions of the
Backward Classes [Art. 340(2). When the Report is received by the President,
the President is required to cause a copy-of the Report together with the
memorandum explaining the action taken thereon to be laid before each House of
Parliament [Art. 340(3)]. It is the President who is to take action on the
Report and then lay it before the House of Parliament and it is only the
President who can, therefore, make special provision for the advancement of the
Backward Classes. That is the effect of reading Articles 340 and 15(4) together.
In our opinion, this contention is misconceived. It is true that the
Constitution contemplated the appointment of a Commission whose report and
recommendations, it was thought, would 'Be of assistance to the authorities
concerned to take adequate steps for the advancement of Backward Classes; but
it would be erroneous to assume that the appointment of the Commission and the
subsequent steps that were to follow it constituted a condition precedent to
any action being taken under Art. 15(4). Besides, it would be noticed that Art.
340(1) provides that recommendations had to
be made by the Commission as to the steps that should be taken by the union or
any State, inter alia, to improve the condition of the 457 Backward Classes ;
and that means that the recommendations were to be made which would be
implemented in their discretion by the Union and the State Government and not
by the President. Thus Art. 340(1) itself shows that it is the Union or the
State that has to take action in pursuance of the recommendations made, and so,
the argument that the President alone has to act in this matter cannot be
Then it is urged that even if special
provision can be made by the State under Art. 15(4), the said provision must be
made not by an executive order but. by legislation. This argument. is equally
misconceived. Under Art. 12, the State includes the Government and the
Legislature of each of the States, and so, it would be unreasonable to suggest
that the State must necessarily mean the Legislature and not the Government.
Besides, where the Constitution intended that a certain action should be taken
by legislation and not by executive action, it has adopted suitable phraseology
in that behalf. Article 16(3) and (5) are illustrations in point. Both the said
subclasses of Art. 16, in terms, refer to the making of the law by the
Parliament in respect of the matters covered by them. Similarly, Articles 341
(2) and 342 (2) expressly refer to a law being made by Parliament as therein
contemplated. Therefore, when Art. 15(4) contemplates that the State can make
the special provision in question, it is clear that the said provision can be
made by an executive order.
Art. 15(4) authorises the State to make a
special provision for the advancement of any socially and educationally
backward classes of citizens, as distinguished from the Scheduled Castes and
Scheduled Tribes. No doubt, special provision can be made for both categories
of citizens, but in specifying the categories, the first category is
distinguished from the second. Sub-clauses (24) and (25) of Art. 366 define
Scheduled Castes and Scheduled Tribes respectively, 458 but there is no clause
defining socially and educationally, backward classes of citizens, and so, in
determining the question as to whether a particular provision has been validly
made under Art. 15 (4),or not, the first, question which falls to be determined
is whether the State has validly, determined who should .be included in those
Backward Classes. It seems fairly clear that the back and classes of citizens,,
for whom special provision is authorised to be made are, by Art. 15(4) itself,
treated as being similar to the Scheduled Castes and Scheduled Tribes.
Scheduled Castes and Scheduled Tribes which
have been defined were known to be backward and the Constitution makers felt no
doubt that special provision had to be made for their advancement. It was
realised that in the Indian society there were other classes of citizens who
were equally, or may be somewhat less, backward than the Scheduled Castes and
Tribes and it was thought that some special provision ought to be made even for
them. Article 341 provides for the issue of public notification specifying the
castes, races or tribes which shall, for the purposes of this Constitution, be deemed
to be Scheduled Castes either in the State or the Union territory as the case
Similarly,' Art. 342 makes a provision for
the issue of public notification in respect of Scheduled Tribes. Under Article
338 (3), it' is provided that references to the Scheduled Castes and Scheduled
Tribes shall be construed as including references to such other Backward
Classes as the President may, on receipt of the report of a Commission
appointed under Art. 340(1), by order, specify and also to the Anglo Indian
community. It would thus be seen that This provision contemplates that some
Backward Classes may by the Presidential order be included in Scheduled castes
and Tribes. That helps to bring, out the point that the Backward Classes for
whose improvement special provision is contemplated, by Art. 15 (4) are in the
matter of their,, backwardness comparable to Scheduled Castes and Scheduled
Tribe 459 In considering the scope and extent of the expression "'backward
classes' under Art. 15(4), it is necessary to remember that the concept of
backwardness is not intended to be relative in the sense that any classes who
arc backward in relation to the most advanced classes of the society should be
included in it. If such relative tests were to be applied by reason of the most
advanced classes, there would he several layers or strata of backward classes
and each one of them may claim to be included under Art. 15(4). This position
is not disputed before us by the learned Advocate General for the State. The
backwardness under Art. 15(4) must be social and educational. It is not either
social or educational but it is both social and educational; and that takes us
to the question as to how social and educational backwardness has to be
Let us take the question of social
backwardness first. By what test should it be decided whether a particular
class is socially backward or not ? The group of citizens to whom Article 15(4)
applies -ire described as 'classes of citizens', not as castes of citizens. A
class, according to the dictionary meaning, shows division of society according
to status, rank or caste. I In the Hindu social structure, caste unfortunately
plays an important part in determining the status of the citizen. Though
according to sociologists and Vedic scholars, the caste system may have
originally begun on occupational or functional basis, in course of time, it
became rigid and inflexible. The history of the growth of caste system shows
that its original functional and occupational basis was later over-burdened
with considerations of purity based on ritual concepts, and that led to its
ramifications which introduced inflexibility and rigidify. This artificial
growth inevitably tended to create a feeling of superiority and inferiority and
to foster narrow caste loyalties. Therefore, in dealing with the question as to
whether any class of citizens is socially 460 backward or not, it may not be
irrelevant to consider the caste of the said group of citizens. In this
connection, it is, however, necessary to bear in mind that the special
provision is contemplated for classes of citizens and not for individual
citizens as such, and so, though the caste of the group of citizens may be
relevant, its importance should not be exaggerates. If the classification of
backward classes of citizens was based solely on the caste of the citizen, it
may not always be logical and may perhaps contain the vice of perpetuating the
Besides, if the caste of the group of
citizens was made the sole basis for determining the social backwardness of the
said group, that test would inevitably break down in relation to many sections
of Indian society which do not recognise castes In the conventional sense known
to Hindu society. How is one going to decide whether Muslims, Christians or
jains, or even Lingayats are socially backward or not ? The test of castes
would be inapplicable to those groups, but that would hardly justify the
exclusion of these groups in toto from the operation of Art. 15(4). It is not
unlikely that in some States some Muslims or Christians or jains forming groups
may be socially backward. That is why we think that though castes in relation
to Hindus may be a relevant factor to consider in determining the social
backwardness of groups or classes of citizens, it cannot be made the sole or
the dominant test in that behalf. Social backwardness is on the ultimate
analysis the result of poverty, to a very large extent. The classes of citizens
who are deplorably poor automatically become socially backward. They do not
enjoy a status in society and have, therefore, to be content to take a backward
seat. It is true that social backwardness which results from poverty is likely
to be aggravated by considerations of caste to which the poor citizens may
belong, but that only shows The relevance of 461 both caste and poverty in
determining the backwardness of citizens.
The occupations of citizens may also
contribute to make classes of citizens socially backward. There are some
occupations which are treated as inferior according to conventional beliefs and
classes of citizens who follow these occupations are apt to become socially
backward. The place of habitation also plays not a minor part in determining
the backwardness of a community of persons. In a sense, the problem of social.
backwardness is the problem of Rural India and in that behalf, classes of
citizens occupying a socially backward position in rural area fall within the
purview of Art. 15(4). The problem of determining who are socially backward
classes is undoubtedly very complex. Sociological, social and economic
considerations come into play in solving the problem and evolving proper
criteria for determining which classes are socially backward is obviously a
very difficult task; it will need an elaborate investigation and collection of
data and examining the said data in a rational and scientific way. That is the
function of the State which purports to act under Art.
15(4). All that this Court is called upon to
do in dealing with the present petitions is to decide whether the tests applied
by the impugned order are valid under Art. 15(4).
If it appears that the test applied by the
order in that behalf is improper and invalid, then the classification of
socially backward classes based on that test will have to be held to be
inconsistent with the requirements of Art. 15(4).
What then is the test applied by the State in
passing the impugned order ? We have already seen that the Nagan Gowda
Committee appointed by the State was inclined to treat the caste as almost the
sole basis in determining the question about the social backwardness of any
community. The Committee has no doubt incidentally referred to the general 462
economic condition of the community as a contributory factor; but the manner in
which it has enumerated the backward any more backward classes leaves no room
for doubt that the predominant, if not the sole, test that weighed in their
minds was the test of caste. When we consider the impugned order itself. the
position becomes absolutely clear. The impugned order has adopted the earlier
order of July 10, 1961, with some changes as to the quantum of reservation, and
so, it is necessary to examine the earlier order in order to see what test was
applied by the State in classifying the backward Classes. In its preamble, the
order of July 10, 1961, clearly and unambiguously states that the Committee had
come to the conclusion that in the present circumstances, the only practicable
method of classifying the Backward Classes in the State is on the basis of castes
and communities and the State Government accepts this test. In. other words, on
the order as it stands there can be no room for doubt that the classification
of backward and more backward classes was made by the State Government only on
the basis of their castes which basis was regarded as a practicable method. It
is true that in support of the inclusion of the Lingayats amongst the Backward
Classes the order refers to some other factors, but neither the Report of the
Nagan Gowda Committees, nor the orders passed by the State Government on July
10, 1961, and July 31, 1962, afford any indication as to how any test other
than that of the caste was applied in deciding the question. The learned
Advocate-General has contended that the statement in the preamble of' the order
of July 10, 1961 should not be literally construed and he has argued that the
words used in the relevant portion are inartistic and he has suggested that the
order is not based on the sole basis of castes. We are not impressed by this
argument. We have considered both the orders in the light of the Report' and
the recommendations made by the Nagan Gowda Committee and we are satisfied that
the classification 463 of the socially backward classes of citizens made by the
State proceeds on the only consideration of their castes without regard to the
other factors which are undoubtedly relevant. If that be so, the social
backwardness of the communities to whom the impugned order applies has been
determined in a manner which is not permissible under Art.
15(4) and that itself would introduce an
infirmity which is fatal to the validity of the said classification.
The next question to consider is in regard to
the educational backwardness of the classes of citizens. The Nagan Gowda Report
and the impugned order proceed to deal with this question on the basis of the
average of student population in the last the High School classes of all High
Schools in the State in relation to a thousand citizens of that community. On
the figures supplied to the Committee which admittedly are approximate and not
fully accurate, the Committee came to the conclusion that the State average of
student population in the last three High School classes of all High Schools in
the State was 69 per thousand. The Committee decided that all Castes whose
average was less than the State average of 6.9 per thousand should be regarded
as backward communities, and it further held that if the average of any
community was less than 50% of the State average, it should be regarded as
constituting the more backward classes. It may be conceded that in determining
the educational backwardness of a class of citizens, the literacy test supplied
by the Census Reports may not be adequate; but it is doubtful if the test of
the average of student population in the last three High School classes is
appropriate in determining the educational backwardness.
Having regard to the fact that the test is
intended to determine who are educationally backward classes, it may not be
necessary or proper to put the test as high as has been done by the Committee.
But even assuming that the test applied is rational and permissible under Art.
15(4), 464 the question still remains as to whether it would be legitimate to
treat castes or communities which are just below the State average as
educationally backward classes.
If the State average is 6.9 per thousand, a
community which satisfies the said test or is just below the said test cannot
be regarded as backward. It is only communities which are well below the State
average that can properly be regarded as educationally backward classes of
Classes of citizens whose average of student
population works below 50% of the State average are obviously educationally
back-ward classes of citizens. Therefore, in our opinion, the State was not
justified in including in the list of Backward Classes, castes or communities
whose average of student population per thousand was slightly above, or very
near, or just below the State average.
It will be recalled that the Nagan Gowda
Committee had recommended that the Lingayats should not be treated as Backward
Classes. The State has decided otherwise, and in doing so, the State has taken
the view that the figures arrived at by the Committee should be corrected to
the nearest integer as, in the nature of things, says the order of July 10,
1960, it is not possible to attain absolute mathematical precision in making
such assessments. That is how the State average was raised from (6.9 to 7 per
thousand. Even after increasing the State average to 7, the position with
regard to Lingayat community was that its average of student, population was
7.1 per thousand according to the Committee's calculations and according to the
decision of the State 7, and yet the Lingayats as a community have been held to
be an educationally backward class of citizens under the State order. This
result has been achieved by adding,1 to the State average and deducting ,1 from
the Lingayats' average. The Ganigas whose average of student population is 7
per thousand are likewise included in the list of Backward Classes. If the
State 465 average is 6.9 or 7, it would, we think, be manifestly erroneous to
regard those communities as educationally backward whole student population
ratio works at the same level as the State average.
In regard to the Muslims, the majority view
in the Committee was that the Muslim community as a whole should be treated as
socially backward. This conclusion is stated merely as a conclusion and no data
or reasons are cited in support of it. The average of student population in
respect of this community works at 5 per thousand and that, in our opinion, is
not so below the State average that the community could be treated as
educationally backward in the State of Mysore.
Therefore, we are not satisfied that the
State was justified in taking the view that communities or castes whose average
of student population was the same as, or just below, the State average, should
be treated as educationally backward classes of citizens. If the test has to be
applied by a reference to the State average of student population, the
legitimate view to take would be that the classes of citizens whose average is
well or substantially below the State average can be treated as educationally
backward. On this point again, we do not propose to lay down any hard and fast,
rule; it is for the State to consider the matter and decide it in a manner
which is consistent with the requirements of Art. 15 (4).
In this connection, it is necessary to add
that the sub classification made by the order between Backward Classes and More
Backward Classes does not appear to be justified under Art. 15(4). Art. 15(4)
authorises special provision being made for the really backward classes. In
introducing two categories of Backward Classes, what the impugned order, in
substance, purports to do is to devise measures for the benefit of all the
classes of citizens who are less advanced, compared to the most advanced
classes in the State, and that, in our opinion, is not the scope 466 of Art.
15(4). The result of the method adopted by the impugned order is that nearly
90% of the population of the State is treated as backward, and that illustrates
how the order in fact divides the population of the State into most advanced
and the rest, and puts the latter into two categories of Backward and More
Backward. The classification of the two categories, therefore, is not warranted
by Art. 15(4).
That takes us to the question about the
extent of the special provision which it would be competent to the State to
make under Art. 15(4). Article 15(4) authorises the State to make any special
provision for the advancement of the Backward Classes of citizens or for the
Scheduled Castes and Scheduled Tribes. The learned Advocate-General contends.
that this Article must be read in the light of Art. 46, and he argues that Art.
15(4) has deliberately and wisely placed no limitation on the State in respect
of the extent of special provision that it should make. Art. 46 which contains
a directive principle, provides that the State shall promote with special care
the educational and economic interests of the weaker sections of the people,
and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all form,% of exploitation. There can be
no doubt that the object of making a special provision for the advancement of
the castes or communities, there specified, is to carry out the directive
principle enshrined in Art. 46. It is obvious that unless the educational and
economic interests of the weaker sections of the people are promoted quickly
liberally, the ideal of establishing social
and economic equality will not be attained, and so, there can be no doubt that
Art. 15(4) , authorises the State to take adequate steps to achieve the object
which it has in view. No one can dispute the proposition that political freedom
and even fundamental rights can have very little meaning or significance for
the Backward Classes and the Scheduled Castes 467 Scheduled Tribes unless the
backwardness and inequality from which they suffer are immediately redressed.
The teamed Advocate-General, however, suggests that the absence of any
limitation on the State's power to make an adequate special provision indicates
that if the problem of backward classes of citizens and Schedule a Caste and
Tribes in any given State is of such a magnitude that it requires the
reservation of all seats in higher educational institutions, it would be open
to the State to take that course. His argument is that the only test which can
be applied is whether or not having regard to the problem which the State is
called upon to meet, the provision made is reasonably adequate or not. Thus
presented, the argument is, no doubt, prima facie attractive, and so, it must
be carefully examined.
When Art. 15(4) refers to the special
provision for the advancement of certain classes or scheduled castes or
scheduled tribes, it must not be ignored that the provision which is authorised
to be made is a special provision ; it is not a provision which is exclusive in
character, so that in looking after the advancement of those classes, the State
would be justified in ignoring altogether the advancement of the rest of the
society. It is because the interests of the society at large would be served by
promoting the advancement of the weaker elements in the society that Art.
15(4) authorises special provision to be
made. But if a provision which is in the nature of an exception completely
excludes the rest of the society, that clearly is outside the scope of Art.
15(4). It would be extremely unreasonable to assume that in enacting Art. 15(4)
the Parliament intended to provide that where the advancement of the Backward
Classes or the Scheduled Castes , and Tribes was concerned, the fundamental
rights of the citizens constituting the rest of the society were to be
completely and absolutely ignored, 468 In this connection, it is necessary to
remember that the reservation made by the impugned order is in regard to
admission in the seats of higher education in the State. It is well-known that
as a result of the awakening caused by political freedom, all classes of
citizens are showing a growing desire to give their children higher university
education and so, the Universities are called upon to face the challenge of
this growing demand. While it is necessary that the demand for higher education
which is thus increasing from year to year must be adequately met and properly
channelised, we cannot overlook the fact that in meeting that demand standards
of higher education in Universities must not be lowered. The large demand for
education maybe met by starting larger number of educational institutions,
vocational schools and polytechnics. But it would be against the national
interest to exclude from the portals of our Universities qualified and
competent students on the ground that all the seats in the Universities are
reserved for weaker elements in society. As has been observed by the University
Education Commission, "he indeed must be blind who does not see that
mighty as are the political changes, far deeper are the fundamental questions
which will be decided by what happens in the universities" (p. 32).
Therefore, in considering the question about the propriety of the reservation
made by the impugned order, we cannot lose sight of the fact that the
reservation is made in respect of higher university education. The demand for
technicians scientists, doctors, economists, engineers a experts for the
further economic advancement of the country is so great that it would cause
grave prejudice to national interests if considerations of merit are completely
excluded by whole-sale reservation of seats in all Technical, Medical or
Engineering colleges or institutions of that kind.
Therefore, considerations of national
interest and the interests of the community or society as a whole cannot be
ignored in determining the question as to whether the special provision 469
contemplated by Art. 15(4) can be special provision which excludes the rest of
the society altogether. In this connection, it would be relevant to mention
that the University Education Commission which considered the problem of the
assistance to backward communities, has observed that the percentage of
reservation shall not exceed a third of the total number of seats, and it has
added that the principle of reservation may be adopted for a period often
years. (p. 53).
We have already noticed that the Central
Government in its communication to the State has suggested that reservation for
backward classes, Scheduled Castes and Scheduled Tribes may be up to 25% with
marginal adjustments not exceeding 10% in exceptional cases.
The learned Advocate-General has suggested
that reservation of a large number of seats for the weaker sections of the
society should not affect either the depth or efficiency of scholarship at all,
and in support of this argument, he has relied on the observations made by the
Backward Classes Commission that it found no complaint in the States of Madras,
Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates
from other Backward Classes to the reserve quota has been in vogue for several
The Committee further observed that the
representatives of the upper classes did not complain about any lack of
efficiency i n the offices recruited by reservation (p. 135). This opinion,
however, is plainly inconsistent with what is bound to be the inevitable
consequence of reservation in higher university education. If admission to
professional and technical colleges is unduly liberalised it would be idle to
contend that the quality of our graduates will not suffer. That is not to say
that reservation should not be adopted; reservation should and must be adopted
to advance the prospects of the weaker section's of society, but in providing
for special 470 measures in that behalf care should be taken not to exclude
admission to higher educational centres to deserving and qualified candidates
of other communities. A special provision contemplated by Art. 15(4) like
reservation of posts and appointments contemplated by Art. 16(4 must be within
reasonable limits. The interests of weaker sections of society which are, a
first charge on the states and the Centre have to be adjusted with the
interests of the community as a whole. The adjustment of these competing claims
is undoubtedly a difficult matter, but if under the guise of making a special
provision, a State reserves practically all the seats available in all the
colleges, that clearly would be subverting the object of Art. 15 (4).
In this matter again.. we arc reluctant to
say definitely what would be a proper provision to make. Speaking generally and
in a ];road way, a special provision should be less than 50%; how much less
than 50% would depend upon the relevant prevailing circumstances in each case.
In this particular case it is remarkable that when the State issued its order
on July 10, 1961, it emphatically expressed its opinion that the reservation of
68% recommended by the Nagan Gowda Committee would not be in the larger
interests of the State. What happened between July 10, 1961, and July 31, 1962,
does not appear on the record. But the State changed its mind and adopted the
recommendation of the Committee ignoring its earlier decision that the said
recommendation was contrary to the larger interests of the State. In our
opinion, when the State makes a special provision for the advancement of the
weaker sections of society specified in Art. 15(4), it has to approach its task
objectively and in a rational manner. Undoubtedly, it has to take reasonable
and even generous steps to help the advancement of weaker elements; the extent
of the problem must be weighed, the requirements of the community at large must
be borne in mind and a formula must be evolved which would strike a reasonable
balance 471 between the several relevant considerations. Therefore, we are
satisfied that the reservation of 68% directed by the impugned order is plainly
inconsistent with Art. 15 (4). The petitioners contend that having regard to
the infirmities in the impugned order, action of the State in issuing the said
order amounts to a fraud on the Constitutional power conferred on the State by
Art. 15(4). This argument is well-founded, and must be upheld. When it is said
about an executive action that it is a fraud on the Constitution, it does not
necessarily mean that the action is actuated by mala fides. An executive action
which is patently and plainly outside the limits of the constitutional
authority conferred on the State in that behalf is struck down as being ultra,
vires the State's authority. If, on the other hand, the executive action does
not patently or overtly transgress the authority conferred oil it by the
Constitution, but the transgression is covert or latent, the said action is
struck down as being a fraud on the relevant constitutional power. It is in
this connection that courts often consider the substance of the matter and not
its form and in ascertaining the substance of the matter, the appearance or the
cloak, or the veil of the executive action is carefully scrutinized and if it
appears that notwithstanding the appearance, the cloak or the veil of the
executive action, in substance and in truth the constitutional power has been
transgressed, the impugned action is struck down as a fraud on the
Constitution. We have already noticed that the impugned order in the present
case has categorised the Backward Classes on the sole basis of caste which, in
our opinion, is not 'permitted by Art.
15(4); and we have also held that the
reservation of 68% made by the impugned order is plainly inconsistent with the
concept of the special provision authorised by Art. 15(4).
Therefore, it follows that the impugned order
is a fraud on the 472 Constitutional power conferred on the State by Art.
The learned Advocatc-General has made an
earnest and strong plea before us that we should not strike. Down the order,
but should strike down only such portions of the order which appear to us to be
unconstitutional on the doctrine of severability. He has urged that since 1938,
the State has had to make five orders to deal with the problem of advancing.the
lot of the Backward Classes and the State is anxious that the implementation of
the impugned order should not be completely prohibited or stopped. We do not
see how it would be possible to sever the invalid provisions of the impugned
order. If the categorisation of the Backward Classes is invalid, this Court
cannot and would not attempt the task of enumerating the said categories; and
if the percentage of reservation is improper and outside Art.
15(4), this Court would not attempt to lay
down definitely and in an inflexible manner as to what would be the proper
percentage to reserve. In this connection, it may be relevant to refer to one
fact on which the petitioners have strongly relied. It is urged for them that
the method adopted by the Government of Maharashtra in exercising its powers
under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra
Government has decided to afford financial assistance, and make monetary grants
to students seeking higher education where it is shown that the annual income
of their families is below a prescribed minimum. The said scheme is not before
us and We are not called upon to express any opinion on it. However, we may
observe that if any State adopts such a measure, it may afford relief to and
assist the advancement of the Backward Classes in the State, because
backwardness, social and educational, is ultimately and primarily due to
poverty. An attempt can also be made to start newer and more educational
institutions, polytechnics, vocational institutions and even rural 473
Universities and thereby create more opportunities for higher education. This
dual attack on the problem posted by the weakness of backward communities can
claim to proceed on a rational, broad and scientific approach which is
consistent with, and true to, the noble ideal of a secular welfare democratic
State set up, by the Constitution of this country. Such an approach can be
supplemented, if necessary by providing special provision by way of reservation
to aid, the Backward classes and Scheduled castes and Tribes. It may well be
that there may be other ways and means of achieving the same result. In our
country where social and economic conditions differ from State to State, it
would be idle to expect absolute uniformity of approach; but in taking
executive action to implement the policy of Art.
15(4). It necessary for the States to
remember that the policy which is intended to be implemented is the policy
which has been declared by Art. 46 and the preamble of the Constitution. It is
for the attainment of social and economic justice that Art. 15(4) authorises
the making of special provisions for the advancement of the communities there
contemplated even if such provisions may be inconsistent with the fundamental;
rights, guaranteed tinder Art. 15 or 29(2). The context, therefore, requires
that the executive action taken by the State must be based on an objective
approach, free from all extraneous pressures. The said action is intended to do
social and economic justice and must be taken in a manner that justice is and
should be done.
Whilst we are dealing with this question, it
would be relevant to add that the provisions of Art. 15(4) are similar to those
of Art. 16(4) which fell to be considered in the case of The General Manager,
Southern Railway v.
Rangoon(1). In that case, the majority
decision of this Court held that the power of reservation which is conferred on
the State under Art. 16(4) can be exercised by the State, in a proper (1)
(1962) 2 S. C. R. 586, 474 case not only by providing for reservation of
appointments, but also by providing for reservation of selection posts.
This conclusion was reached on the basis that
it served to give effect to the intention of the Constitution-makers to make
adequate safeguards for the advancement of Backward Classes and to secure their
adequate representation in the Services. The judgment shows that the only point
which was raised for the decision of this Court in that case was whether the
reservation made was outside Art. 16(4) and that posed the bare question about
the construction of Art.
16(4). The propriety, the reasonableness or
the wisdom of the impugned order was not questioned because it was not the
respondents case that if the order was justified under Art.
16(4), it was a fraud on the Constitution.
Even so, it was pointed out in the judgment that the efficiency of
administration is of such a paramount importance that it would be unwise and
impermissible to make any reservation at the cost of efficiency of
administration; that, it was stated, was undoubtedly the effect of Art. 335.
Therefore, what is true in regard to Art. 15(4) is equally true in regard to
Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they
were entitled to, that while adequate reservation under Art. 16(4), care would
be taken not to provide for unreasonable, excessive or extravagant reservation,
for that would, by eliminating general competition in a large field and by
creating widespread dissatisfaction amongst the employees, materially affect
efficiency. Therefore, like the special provision improperly made under Art.
15(4), reservation made under Art: 16(4) beyond the permissible and legitimate
limits would be liable to be challenged as a fraud on the Constitution. In this
connect ion it is necessary to emphasis that Art. 15 (4) is an enabling
provision; it does not impose an obligation, but merely leaves it to the
discretion of the appropriate government to take suitable action, if necessary.
475 In the result, we allow the writ
petitions and direct, that an appropriate writ or order or direction should, be
issued restraining the three respondents from giving effect to the impugned
order in terms of the prayer made in clauses (i) and (ii) of paragraph 38 of
the petitions. The petitioners would be entitled to their costs, one set of