The General Manager, Southern Railway
Vs. Rangachari  INSC 198 (28 April 1961)
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1962 AIR 36 1962 SCR (2) 586
CITATOR INFO :
R 1963 SC 518 (12) F 1963 SC 649 (37) R 1963
SC 913 (36) R 1964 SC 179 (14,18,19,26) D 1965 SC 280 (6) F 1967 SC 839 (12) R
1967 SC1427 (9) RF 1968 SC 349 (4) F 1968 SC 507 (3,5,6) F 1971 SC1777 (6,9,10)
D 1976 SC 490 (29,56,71,75,109,180,209,212,2 RF 1977 SC1237 (15) R 1979 SC 429
(19) E&R 1981 SC 298 (28,52,53,57,65,69,72,83,84,91 R 1981 SC 588 (12) R
1981 SC1829 (36) RF 1991 SC 101 (238) R 1991 SC2113 (9) R 1992 SC 1 (92)
State Service-Power of State to reserve
appointments and posts for backward classes-Scope of such reservation"Appointments
or Posts", Meaning of -Posts, if include selection posts in the
services-Constitution of India, Arts. 16(4), 335.
This appeal was directed against an order of
the Madras High Court issuing a writ of mandamus at the instance of the
respondent restraining the appellants from giving effect to two circulars
issued by the Railway Board reserving selection posts in Class III of the
Railway service in favour of the members of the Scheduled Castes and Scheduled
Tribes with retrospective operation. It was urged on behalf of the respondent
that the Constitution made a clear distinction between backward classes on the
one hand and Scheduled Castes and Scheduled Tribes on the other, and that Art. 16(4)
applied only to reservation of posts at the stage of appointment and not to
posts for promotions after appointment and, therefore, the circulars which fell
587 outside the scope of Art. i6(4) and contravened Art. i6(1).
This was denied by the appellant who pleaded
The first circular, inter alia, prescribed a
quota of reservation for( selection posts and gave retrospective effect to it
and the second-' gave guidance and directions as to how the first should be
implemented. A subsequent clarification issued by the Board stated that no
reversion of staff already promoted to selection posts was contemplated. The
High Court held that the expression "backward classes" in Art. 16(4)
included members of the Scheduled Castes and Scheduled Tribes, but that the word,
appointments’ did not denote promotion and the word 'posts' meant posts outside
the civil services and thus the impugned circulars were not covered by Art.
i6(4) and were ultra vires.
Held, (per Gajendragadkar, Sarkar, and Das
Gupta, JJ.), that the impugned circulars were well within the ambit of Art.
16(4) Of the Constitution and the appeal must
Articles 16(i) and 16(2) of the Constitution
are intended to give effect to Art. 14 and Art. 15(1) Of the Constitution and
these Articles form parts of the same constitutional code of guarantees and
supplement each other. Article 16(i) should, therefore, be construed in a broad
and general, and not pedantic and technical way. So construed, "matters
relating to employment" cannot mean merely matters prior to the act of
appointment nor can 'appointment to any office' mean merely the initial
appointment but must include all matters relating to employment, whether prior
or subsequent to the employment, that are either incidental to such employment
or form part of its terms and conditions and also include promotion to a
Although Art.16(4), which in substance is an
exception to Arts. 16(1) and 16(2) and should, therefore, be strictly
construed, the court cannot in construing it overlook the extreme solicitude
shown by the Constitution for the advancement of socially and educationally
backward classes of citizens.
The scope of Art. 16(4), though not as
extensive as that of Art. 16(1) and (2),-and some of the matters relating to
employment such as salary, increment, gratuity, pension and the age of
superannuation, must fall outside its nonobstante clause, there can be no doubt
that it must include appointments and posts in the services. To put a narrower
construction on the word 'posts' would be to defeat the object and the
underlying policy' Article 16(4), therefore, authorises the state to provide
for the reservation of appointments as well as selection posts.
It is not correct to say that the legislative
history of the word 'posts' shows that it has invariably been used to mean
posts outside the services, Neither the relevant provisions of the Constitution
nor those of the Constitution Act of 1935 justify such a conclusion. It is the
-context in which that word is used that must determine its meaning.
588 But in exercising its powers under the
Article it should be the duty of the State to harmonise the claims of the
backward classes and those of the other employees consistently with the
maintenance of an efficient administration as contemplated by Art. 335 of the
Per Wanchoo, J.-Article 16(4) which is in the
nature of an exception or proviso to Art. 16(1) cannot be allowed to nullify
equality of opportunity guaranteed to all citizens by that Article.
Article 16(4) implies, as borne out by Art.
335, that the reservation of appointments or posts for backward classes cannot
cover all or even a majority of appointments and posts and the words "not
adequately represented", which provide the key to the interpretation of
Art. 16(4), do not convey any idea of quality but mean sufficiency of numerical
representation in a particular service, taken not by its grades, but as a
Appointments must, therefore, mean initial
appointments, and reservation of appointments, the reservation of a percentage
of initial appointments. Posts refer to the total number of posts in the
service and reservation of posts means reservation of a certain percentage of
posts out of total posts in the service.
Per Ayyangar, J.-Article 16(4), concerned as
it is with the right to State employment, has to be read and construed in the
light of other provisions relating to services contained in Part XIV of the
Constitution and, particularly, Art. 335.
So construed, the word "post" in
that Article must mean posts not in the services but posts outside the
Assuming that was not so, and the word
'posts' meant posts in the services, the inadequacy of representation sought to
be redressed by Art. 16(4) means quantitative deficiency of representation in a
particular service as a whole and not in its grades taken separately, nor in
respect of each single post in the service. Read in the light of Art. 335, Art.
16(4) can only refer to appointments to the
services at the initial stage and not at different stages after the appointment
has taken place.
Article 16(4) contemplates prospective
reservation of appointments and posts and does not authorise retrospective
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 341 of 1960.
Appeal from the judgment and order dated
March 3,1960, of the Madras High Court, in W. P. No. 1051 of 1959.
N. C. Chatterjee, B. R. L. Iyengar and D.
Gupta, for the appellants.
589 S. Mohan Kumaramangalam, M. K.
Ramamurthy, R. K. Garg and T. S. Venkataraman, for the respondent and the
1961. April, 28. The Judgment of
Gajendragadkar, Sarkar and Das Gupta, JJ., was delivered by Gajendragadkar, J.
Wanchoo and Ayyangar, JJ., delivered separate
GAJENDRAGADKAR, J.-On a writ petition filed
by the respondent K. Rangachari in the Madras High Court under Art.
226 of the Constitution a writ of mandamus
has been issued by the said High Court restraining the appellants, the General
Manager, Southern Railway, and the Personnel Officer (Reservation), Southern
Railway, from giving effect to the directions of the Railway Board ordering
reservation of selection posts in Class III of the railway service in favour of
the members of the Scheduled Castes and Scheduled Tribes and in particular the
reservation of selection posts among the Court Inspectors in Class III one of
which is held by the respondent. After the writ was thus issued the appellant
applied for and obtained a certificate from the said High Court under Art.
132(1) of the Constitution as it involved a substantial question of law,
namely, the scope of Art. 16(4) of the Constitution. It is with this
certificate that the appeal has been brought to this court, and the.
only question which it raises for our
decision is about the scope and effect of Art. 16(4). This question is of
considerable public importance though the dispute raised by it lies within a
very narrow compass.
In the railway services there are four grades
of Court Inspectors included in Class III, (1) Court Inspectors on Rs. 200-300,
(2) Court Inspectors on Rs. 260-350, (3) Chief Court Inspectors on Rs. 300400,
and (4) Chief Court Inspectors on Rs. 360-500. It appears that Inspectors of
the first category are recruited partly directly and partly by selection from
other categories of railway services. To the remaining three grades
appointments are made by promotion and they are classified as selection posts..
Selection to 75 590 these grades is made by a
committee of officers constituted for the purpose. In respect of non-selection
posts seniority in service is the qualification but in regard to selection
posts seniority is only one of the qualifications for promotion to such posts;
suitability to promotion is considered on other relevant grounds .as well.
The respondent was initially recruited to the
grade of Rs. 200-300 and was confirmed in that, grade on November 21, 1956.
Between May 23, 1958, and August 22, 1958 as well as between December 8, 1958
and December 31, 1958, he was promoted to officiate in the grade of Rs.
260-350. He got a chance of another similar promotion to officiate on April 8,
1959. These promotions were in the nature of ad hoc promotions and were
consequently of temporary duration. Later, on June 16, 1959, he was interviewed
by the selection committee and his promotion to the said higher grade was
regularised and an order was passed in that behalf on June 30, 1959. By this
order lie was allowed to continue to officiate in the said grade. Since then he
has been officiating in that grade.
On April 27, 1959, and on June 12, 1959, the
two impugned circulars were issued by the Railway Board and addressed to the
General Managers. As a result of the said circulars the selection committee
decided to consider the case of Hiriyanna for promotion to the grade of Rs.
260-350, Hiriyanna being a member of the Scheduled Castes. The record shows
that at the time when the respondent was interviewed and selected he was placed
as Number One by the selection committee and one Partliasarathy was placed as
Number Two. On the said occasion Hiriyanna was not selected and put in the
panel. The selection committee desired to examine the case of Hiriyania in
order to decide whether he was suitable for promotion to higher grade in the
light of the two directives issued by the Railway Board and so a meeting of the
selection committee was called on November 18, 1959. The respondent thought
that the proceedings of the said proposed meeting may result -prejudicially to
his interest and so on November 16, 1959, he filed the 591 present Writ Petition
No. 1051 of 1959. In this petition he applied for a writ in the nature of
mandamus and also prayed for an interim injunction restraining the holding of
the meeting of the selection committee proposed to be held on November 18,
1959. An interim injunction as prayed for by the respondent was issued by the
High Court and in consequence the proposed meeting has not been held.
According to the respondent the two
directives issued by the appellants under the two impugned circulars were ultra
vires, illegal, inoperative and unconstitutional in that they were not
justified by Art. 16(4). He alleged that a reading of Arts. 16, 335, 338 and
339 would show that the Constitution draws a clear distinction between
Scheduled Castes or Tribes on the one hand and backward classes on the other
and so it was urged by him that the impugned circulars were illegal. The
petition further urged that the safeguard provided by Art. 16(4) applied only
to reservation Of posts at the stage of appointment and not for reservation of
posts for promotion after appointment and so the circulars were outside the
provisions of Art. 16(4) and as such contravened Art. 16(1). The petition
expressed the apprehension that if the circulars are implemented the respondent
would be reverted and that would cause great loss both financially and in
status to him. It is on these allegations that the respondent prayed for the
issue of a writ in the nature of mandamus directing the appellants to forbear
from implementing the two impugned circulars.
These pleas were denied by the appellants. It
was alleged by them that the expression "backward class" appearing in
Art. 16(4) would include not only the Scheduled Castes and Scheduled Tribes but
all backward communities who could not stand on their own legs. Therefore the
reservations made by the impugned circulars were fully covered by Art. 16(4).
The appellants' case was that the safeguards
provided by Art. 16(4) would extend not only to initial appointment but also to
promotions made by selection and that clearly brought the impugned circulars
within the 592 protection of Art. 16(4). The appellants categorically denied
that the respondent would suffer any loss or because persons who had already
been promoted on the basis of earlier regular selections were not intended to
be reverted as a consequence of the implementation of the impugned circulars.
According to the appellants the petition filed by the respondent was permature
and on the merits no case had been made out for the issue of a writ of
At this stage it would be material to set out
the relevant portions of the impugned circulars. The circular issued by the
Railway Board on April 27, 1959, contained, inter alia, the following
"There are different grades of Class III
posts. Some of these posts are 'non-selection' posts, promotion to which is
made on 'seniority-cum-suitability' basis, while, in the case of others which
are 'Selection' posts, promotion is made by a positive act of selection. There
will be no quota for Scheduled Castes and Scheduled Tribes candidates in
respect of promotion to 'non-selection' posts.
For promotion to 'Selection' posts, however,
there will be the prescribed quota of reservation. The field of consideration
in the case of Scheduled Castes and Scheduled Tribes candidates should be four
times the number of posts reserved without any condition of qualifying period
of service in their case, subject to the condition that consideration should
not normally extend to such staff beyond two grades immediately below the grade
for which selection is held." There is one more direction given by the
said circular which must be read. The decision of the Railway Board providing
reservation for Scheduled Castes and Scheduled Tribes in promotion vacancies as
laid down above comes into effect from January 4, 1957. It will, therefore, be
necessary to calculate the number of posts that should have been made available
to the Scheduled Castes and Scheduled Tribes during 1957 and 1958 and these
should be carried forward to be filled in 1959. Thus it would be noticed that
the effect of this circular was to prescribe a quota of reservation for
selection posts and to give effect to this reservation retrospectively from
January 4, 593 1957. In a sense it is this retrospective operation of the
circular which appears to be the main cause of the present dispute.
On June 12,1959, another circular was issued
giving guidance and directions as to how the earlier circular should be
implemented. This circular directed, inter alia, by paragraphs 2(ii) and 2(iii)
"2(ii). The Special Rosters in force for
S. C. & S. T. in direct recruitment categories are to be followed to work
out the number of posts to be reserved for S. C. & S. T. in promotions made
in Selection Grades and for promotion from Class IV to Class 111.
2(iii). As the Board's orders have
retrospective effect from 4th January, 1957, it is necessary that the
promotions made in each selection grade on your Division/Office from 4th
January, 1957, are reviewed and the number of posts due to S. C. & S. T.
worked out applying the Roster referred to in item (ii) above." It appears
certain doubts were raised in regard to the manner in which the reservation
circulars had to be implemented and so on September 11, 1959, the Railway Board
issued a letter clarifying the doubts raised. One of the points thus clarified
was whether the instructions issued in the Board's letter contemplated
reversion of staff already promoted to selection posts after January 4, 1957,
to accommodate S. Cs. and S. Ts. (which stand for Scheduled Castes and
Scheduled Tribes) according to percentage basis.
The clarification issued was that the said
orders did not contemplate such reversion. It was, however, desired that the
shortfalls should be made good against the existing as well as the future
vacancies. It is by virtue of this clarification that the -respondent was
assured by the appellants during the proceedings before the High Court that he
need not entertain any apprehension of reversion as a result of the implementation
of the impugned circulars.
We would now briefly summarise the findings
and conclusions of the High Court on the points raised before it by the
contentions of the parties in the 595 whether Art. 16(1) and (2) refer to
promotion or whether they are confined to the initial appointment to any post
in civil service. In the appeal before us the s, appellants and the respondent
both conceded that cases of promotion fell within Art. 16(1) and (2) though
they differed as to whether they were included in Art. 16(4). It would be
immediately noticed that the respondent's petition postulates the inclusion of
promotion in Art. 16(1) and (2) for it is on that assumption that he challenges
the validity of the impugned circulars. Similarly, the appellants' defence postulates
that Art. 16(1) and (2) as well as Art.
16(4) refer to cases of promotion for it is
on the basis that Art. 16(4) includes promotion that they seek to support the
validity of the impugned circulars. When this appeal was argued before the
Constitution Bench on the first occasion it became clear that neither party was
interested in contending that the guarantee afforded by Art. 16(1) and (2) is
confined only to initial appointment and does not extend to promotion, and so
notice was ordered to be issued to the Attorney General. In response to the
notice the Attorney-General has appeared and is represented by Mr. Sen.
He has also taken the same stand as the
appellants have done and so in the result nobody before us is interested in
challenging the inclusion of promotion within Art. 16(1) and (2). However, we
would briefly indicate our reasons for accepting the concession made by the
parties that promotion is included in Art. 16(1) and (2).
Article 16(1) reads thus:
"There shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any office
under the State." In deciding the scope and ambit of the fundamental right
of equality of opportunity guaranteed by this Article it is necessary to bear
in mind that in construing the relevant Article a technical or pedantic
approach must be avoided.
We must have regard to the nature of the
fundamental right guaranteed and we must seek to ascertain the intention of the
Constitution by construing the material words in a broad 596 and general way.
If the words used in the Article are wide in their import they must be
liberally construed in all their amplitude. Thus construed it would be clear
that matters relating to employment cannot be confined only to the. initial
matters prior to the act of employment. The narrow construction would confine
the application of Art.
16(1) to the initial employment and nothing
else; but that clearly, is only one of the matters relating to employment.
The other matters relating to employment would
inevitably be the provision as to the salary and periodical increments therein,
terms as to leave, as to gratuity, as to pension and as to the age of
superannuation. These are all matters relating to employment and they are, and
must be, deemed to be included in the expression "matters relating to
employment" in Art. 16(1). Similarly, appointment to any office which
means appointment to an office like that of the Attorney-General or Comptroller
and Auditor-General must mean not only the initial appointment to such an
office but all the terms and conditions of service pertaining to the said
office. What Art. 16(1) guarantees is equality of opportunity to all citizens
in respect of all the matters relating to employment illustrated by us as well
as to an appointment to any office as explained by us.
This equality of opportunity need not be
confused with absolute equality as such. What is guaranteed is the equality of
opportunity and nothing more. Article 16(1) or (2) does not prohibit the
prescription of reasonable rules for selection to any employment or appointment
to any office. Any provision as to the qualifications for the employment or the
appointment to office reasonably fixed and applicable to all citizens would
certainly be consistent with the doctrine of the equality of opportunity; but
in regard to employment, like other terms and conditions associated with and
incidental to it, the promotion to a selection post is also included in the
matters relating to employment, and even in regard to such a promotion to a
selection post all that Art. 16(1) guarantees is equality of opportunity to all
citizens who enter service.
597 If the narrow construction of the
expression "matters relating to employment" is accepted it would make
the fundamental right guaranteed by Art. 16(1), illusory. In that case it would
be open to the State' to comply with the formal requirements of Art. 16(1) by
affording equality of opportunity to all citizens in the matter of initial
employment and then to defeated its very aim and object by introducing
discriminatory provisions in respect of employees soon after their employment.
Would it, for instance, be open to the State to prescribe different scales of
salary for the same or similar posts, different terms of leave or superannuation
for the same or similar post? On the narrow construction of Art. 16(1) even if
such a discriminatory course is adopted by the State in respect of its
employees that would not be violative of the equality of opportunity guaranteed
by Art. 16(1). Such a result could not obviously have been intended by the
Constitution. In this connection it may be relevant to remember that Art.
16(1) and (2) really give effect to the
equality before law guaranteed by Art. 14 and to the prohibition of
discrimination guaranteed by Art. 15(1). The three provisions form part of the
same constitutional code of guarantees and supplement each other. If that be
so, there would be no difficulty in holding that the matters relating to
employment must include all matters in relation to employment both prior, and
subsequent, to the employment which are incidental to the employment and form
part of the terms and conditions of such employment.
Article 16(2) provides that no citizen shall,
on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State. This sub-Article
emphatically brings out in a negative form what is guaranteed affirmatively by
Art. 16(1). Discrimination is a double edged weapon; it would operate in favour
of some persons and against others; and Art. 16(2) prohibits discrimination and
thus assures the effective enforcement of the fundamental right of equality of
76 598 opportunity guaranteed by Art. 16(1). The words "in respect of any
employment" used in Art. 16(2) must, therefore, include all matters
relating to employment as specified in Art. 16(1). Therefore, we are satisfied
that Mr. Sen is right when on behalf of the Attorney General he conceded that
promotion to selection Posts 'is included both under Art. 16(1) and (2).
Broadly stated the Bombay and the Patna High Courts sup-, port the concession
made by Mr. Sen (Vide:
Pandurang Kashinath More v. The Union of
India(1); Sukhnandan v. State (2) ) whereas the Allahabad High Court is against
it (vide: Moinuddin v. State of Uttar Pradesh (3) ).
In this connection we ought to add that Civil
Appeal No. 579 of 1960 (4) in which the Union of India challenged the
correctness of the Bombay decision was set down for hearing along with this
appeal, and in the judgment which we are pronouncing in the said appeal today
we are accepting the appellants' contention that the question about the
invasion of the fundamental right guaranteed by Art. 16(1) was not properly
raised by the respondent in his plaint in that case and had in fact not been
proved; accordingly we are holding that 'the High Court was in error in
proceeding to deal with the dispute on the basis that violation of Art. 16(1) had
been admitted by the Union. In the result we are allowing the said appeal and
setting aside the decision of the High Court on this narrow ground.
Article 16(3) provides for one exception to
the provisions of Art. 16(1) and (2) in that it authorises Parliament to make
any law prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to residence
within that State or Union territory prior to such employment or appointment.
We are not concerned with this provision in
the present appeal.
(1) I.L.R.  Bom. 1266.
(2) (1956) I.L.R. 35 Pat.
(3) A.I.R. 1960 All. 484.
(4) Union of India v. Pandurang Kashinath
599 That takes us to Art. 16(4). It reads
"Nothing in this article shall prevent
the State, from making any provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State." In
construing Art. 16(4) the respondent is no doubt entitled to contend that this
sub-Article in substance provides for an exception to the fundamental rights
guaranteed by Art.
16(1) and (2) and as such it must be strictly
construed. On the other hand, the appellants may well urge that in construing
its provisions the Court should not lose sight of the fact that the
Constitution has, if we may say so wisely, showed very great solicitude for the
advancement of socially and educationally backward classes of citizens. Article
15(4) which provides, inter alia, for an exception to the prohibition of
discrimination on grounds specified in Art.
15(1) lays down that nothing contained in the
said Article 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. Similarly, Art. 335 requires
that the claims of the members of the Scheduled Castes and the Scheduled Tribes
shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State. For historical
reasons which are well known the advancement of socially and educationally
backward classes has been treated by the Constitution as a matter of paramount
importance and that may have to be borne in mind in construing Art. 16(4).
On one point in relation to the construction
of Art. 16(4) the parties are in agreement. It is common ground that Art.
16(4) does not cover the entire field covered
by Art. 16(1) and (2). Some of the matters relating to employment in respect of
which equality of opportunity has been guaranteed by Art. 16(1) and (2) do not
fall within the mischief of non-obstantive 600 clause in Art. 16(4). For
instance, it is not denied by the appellants that the conditions of service
relating 'to employment such as salary, increment, gratuity, y pension and the
age of superannuation there can be no exception even in regard to the backward
classes of citizens. In other words, these matters relating to employment are
absolutely protected by the doctrine of equality of opportunity and they do not
form the subject-matter of Art. 16(4). That is why we have just observed that
part of the ground covered by Art. 16(1) and (2) is admittedly outside the
scope of Art.
16(4). The point in dispute is: Is promotion
to a selection post which is included in Art. 16(1) and (2) covered by Art.
16(4) or is it not? It is on, this point that
there is a sharp controversy between the parties.
Before construing Art. 16(4) it would be
convenient to deal with the question as to whether posts specified by it are
posts inside the services or outside them. As we have already seen the High
Court has taken the view that the posts in the context must necessarily mean
posts outside the services and that in fact is the sole basis of the decision
of the High Court against the appellants. The High Court has held that the
legislative history of the words "appointments" and "Posts"
justifies the conclusion that "posts" are ex-cadre posts. Is that
really so? In our opinion, the answer to this question must be in the negative.
The argument that legislative history about the use of the relevant words is
decisively in favour of excluding service posts from the purview of Art. 16(4)
ignores the fact that there can be no legislative history for the provisions of
Art. 16(4) which have found a place in the Constitution for the first time.
Besides, it is not correct to assume that even the legislative history shows
that "posts" always and inevitably meant posts outside services
though it may be conceded that in the majority of corresponding constitutional
provisions they do refer to ex-service posts.
Let us look at the relevant provisions of the
Constitution itself. Article 309 empowers the appropriate Legislature to
regulate the recruitment and conditions of service of persons appointed to
public services and 601 posts in connection with the affairs of the Union or of
any State. In the context "posts" means posts outside services.
Similarly Art. 310(1) refers to every person
'who is a member of a defence service or of a civil service of the Union or of
an all-India service or holds any post connected with defence or any civil post
under the Union. The word "post" in the context means an ex-cadre
post. Likewise the expression "civil post" in Art. 311(1) means a
civil post outside the services. Article 335 to which we have referred uses the
word "posts" in the same sense. But, when we go to Art. 336 the word
"posts" in the context means posts in the services therein
enumerated. The position disclosed by the corresponding provisions of the
Constitution Act of 1935 is substantially the same. Sections 240 and 241 for
instance use the word "posts" in the sense of ex-service posts;
whereas s. 246 refers to civil posts in the
sense of posts inside the services. In our opinion, it would, therefore, be
unreasonable to treat the word "posts" as a term of art and to clothe
it inexorably with the meaning of excadre posts. It is the context in which the
word "posts" is used which must determine its denotation.
What does the context of Art. 16(4) indicate?
That is the next question which we must consider. Article 16(4) clearly shows
that the power conferred by it can be exercised in cases where the State is of
the opinion that any backward class of citizens is not adequately represented
in the services under it. In other words, the opinion formed by the State that
the representation available to the backward class of citizens in any of the
services is inadequate is a condition precedent for the exercise of the power
conferred by Art. 16(4), and so the power to make reservation as contemplated
by Art. 16(4) can be exercised only to make the inadequate representation in
the services adequate. If that be so, both "appointments" and
"posts" to which the operative part of Art. 16(4) refers and in
respect of which the power to make reservation has been conferred on the State
must necessarily be appointments and posts in the service. It would be
illogical and unreasonable to 602 assume that for making the representation
adequate in the services under the State a power should 'be given to the State
to reserve posts outside the cadre of services. If the word "posts"
means excadre posts reservation of such posts cannot possibly cure the
imbalance which according to the State is disclosed in the representation in
services under it. Therefore, in our opinion, the key clause of Art.
16(4) which prescribes a condition precedent
for invoking the power conferred by it itself unambiguously indicates that the
word "posts" cannot mean ex-cadre posts in the context. In fairness
to Mr. Kumaramangalam, who appeared for the respondent, we ought to add that he
did not resist the contention of Mr. Chatterjee, for the appellants, that the
context requires that "Posts" should be deemed to be posts inside
services and not outside them. Therefore, the main, if not the sole, reason
given by the High Court in support of its conclusion does not appear to us to
be well founded, and so Art. 16(4) must be construed on the basis that both
"appointments" and "posts" to which its operative clause
refers are appointments and posts in the services under the State.
Incidentally, we may repeat what we have already pointed out that the tenor of
the judgment under appeal shows that if the High Court had construed the word
"posts" as posts inside the services it would not have issued the
writ in favour of the respondent.
Having in substance conceded that
"posts" does not mean posts outside services Mr. Kumaramangalam
presented a very plausible argument in support of his case that the impugned circulars
fall outside Art. 16(4). He contends that the key clause on which Mr.
Chatterjee relies in construing the word "posts" as meaning posts in
the services itself shows that direct promotion to selection posts by
reservation is not permissible under Art. 16(4). His argument is that if it is
discovered that any backward class of citizens is not adequately represented in
the services under the State the State may no doubt seek to introduce the
balance by giving adequate representation to the backward class by making
reservations for initial 603 appointments. It may decide the proportion of the
said reservation in order to introduce the balance and then give effect to it
by making adequate number of appointments by reservation at the initial stage.
If' this process by itself appears to the State to be slow and tardy it may
even reserve selection posts but this reservation can be given effect to again
by promoting( suitable backward candidates to the said posts after they fall
vacant and making a proportionately larger number of appointments at the
initial stage. In any case reservation must work from the bottom and
reservation cannot be permitted to allow direct appointment to selection posts
as the impugned circulars seek to do. It may be conceded that reservation of
appointments or posts maybe made in the manner suggested by Mr. Kumaramangalam.
It may also be assumed that giving retrospective effect to reservations may
well cause heartburning or dissatisfaction amongst the general class of
employees and in that sense it would be an act of wisdom not to give effect to
reservation retrospectively. But, with the propriety or the wisdom of the
policy underlying the circulars We are not directly concerned. Even if it be
assumed that it would be open to the State to adopt the method suggested by Mr.
Kumaramangalam to give effect to the power of reservation in order to make the
representation of the backward classes adequate in its services does it follow
that it is the only method permissible under Art. 16(4)? We are inclined to
hold that the answer to this question cannot be in favour of the respondent. If
it is conceded that selection posts can be reserved it is difficult to see how
it would be open to the respondent to contend that these reserved selection posts
must be filled only prospectively and not retrospectively. The concession that
selection posts can be reserved on which the argument is based itself provides
the answer to the argument that if the said posts can be reserved the reserved
posts can be filled either prospectively or retrospectively. In adopting the
latter course there can be no violation of the constitutional provision
contained in Art. 16(4).
604 The condition precedent for the exercise
of the powers conferred by Art. 16(4) is that the state ought to be satisfied
that any backward class of citizens is not adequately represented in its
services. This condition precedent may refer either to the numerical inadequacy
of representation in the services or even to the qualitative inadequacy of representation.
The advancement of the socially and educationally backward classes requires not
only that they should have adequate representation in the lowest rung of
services but that they should aspire to secure adequate representation in
selection posts in the services as well. In the context the expression
'adequately represented' imports considerations of "size" as well as
"values", numbers as well as the nature of appointments held and so
it involves not merely the numerical test but also the qualitative one. It is
thus by the operation of the numerical and a qualitative test that the adequacy
or otherwise of the representation of backward classes in any service has to be
judged; and if that be so, it would not be reasonable to hold that the
inadequacy of representation can and must be cured only by reserving a
proportionately higher percentage of appointments at the initial stage. In a
given case the state may well take the view that a certain percentage of
selection posts should also be reserved, for reservation of such posts may make
the representation of backward classes in the services adequate, the adequacy
of such representation being considered qualitatively. If it is conceded that
"posts" in the context refer to posts in the services and that selection
posts may be reserved but should be filled only in the manner suggested by the
respondent then we see no reason for holding that the reservation of selection
posts cannot be implemented by promoting suitable members of backward class of
citizens to such posts as the circulars intend to do.
We must in this connection consider an
alternative argument that the word "posts" must refer not to 605
selection posts but to posts filled by initial appointments.
On this argument reservation of appointments
means reservation of certain percentage in the initial appointments and
reservation of posts means reservation of initial posts which may be adopted in
order to expedite and make more effective the reservation of appointments
themselves. On this construction the use of the word "posts" appears
to be wholly redundant. In our opinion, having regard to the fact that we are
construing the relevant expression "reservation of appointments" in a
constitutional provision it would be unreasonable to assume that the reservation
of appointments would not include both the methods of reservation, namely,
reservation of appointments by fixing a certain percentage in that behalf as
well as reservation of certain initial posts in order to make the reservation
of appointments more effective. That being so, this alternative argument which
confines the word "posts" to initial posts seems to us to be entirely
unreasonable. On the other hand, under the construction by which the word
"posts" includes selection posts the use of the word
"posts" is not superfluous but serves a very important purpose. It
shows that reservation can be made not only in regard to appointments which are
initial appointments but also in regard to selection posts which may fall to be
filled by employees after their employment. This construction has the merit of
interpreting the words "appointments" and "posts" in their
broad and liberal sense and giving effect to the policy which is obviously the
basis of the provisions of Art. 16(4). Therefore, we are disposed to take the
view that the power of reservation which is conferred on the State under Art.
16(4) can be exercised by the State in a proper case not only by providing for
reservation of appointments but also by providing for reservation of selection
posts. This construction, in our opinion, would serve to give effect to the
intention of the Constitution-makers to make adequate safeguard for the
advancement of backward classes and to secure for their adequate representation
in the services. Our 77 06 conclusion, therefore, is that the High Court was in
error in holding that the impugned circulars do not all within Art. 16(4).
It is true that in providing for the
reservation of appointments or posts under Art. 16(4) the State has to take
into consideration the claims of the members of the backward classes
consistently with the maintenance of the efficiency of administration. It must
not be forgotten that the efficiency of administration is of such paramount
importance that it would be unwise and impermissible to make any reservation at
the cost of efficiency of administration.
That undoubtedly is the effect of Art. 335.
Reservation of appointments or posts may theoretically and conceivably mean
some impairment of efficiency; but the risk involved in sacrificing efficiency
of administration must always be borne in mind when any State sets about making
a provision for reservation of appointments or posts. It is also true that the
reservation which can be made under Art. 16(4) is intended merely to give
adequate representation to backward communities. It cannot be used for creating
monopolies or for unduly or illegitimately disturbing the legitimate interests
of other employees. In exercising the powers under Art. 16(4) the problem of
adequate representation of the backward class of citizens must be fairly and
objectively considered and an attempt must always be made to strike a
reasonable balance between the claims of backward classes and the claims of
other employees as well as the important consideration of the efficiency of
but, in the present case, as we have already
seen' the challenge to the validity of the impugned circulars is based on the
assumption that the said circulars are outside Art..
16(4) because the posts referred to in the
said Article are posts outside the cadre of services and in any case, do not
include selection posts. Since, in our opinion, this assumption is not well
founded we must hold that the impugned circulars are not unconstitutional.
In the result the decision of the High Court
under appeal is reversed and the respondent's application 607 for a writ is
dismissed. There would be no order as to costs.
WANCHOO, J.-I have read the judgment just
delivered by my learned brother Gajendragadkar J., and I agree with him as to the
scope of Art. 16(1) of the Constitution. I also agree with him that the
scheduled castes and the scheduled tribes are included in the words
"backward class of citizens" in Art. 16(4) and that the word
"Posts" in that Article refers to posts in the services and not to
posts outside the services. I regret however that I have not been able to
persuade myself that Art. 16(4) permits reservation even in grades within a
particular service in case the service has various grades in its cadre, and
proceed to give my reasons for the same.
Before I construe the words of Art. 16(4), I
may state that I am not unmindful of the fact that Art. 16(4) is a
constitutional provision and that constitutional provisions are not to be
interpreted in any narrow or pedantic sense.
At the same time it cannot be forgotten that
Art. 16(4) is in the nature of an exception or a proviso to Art. 16(1), which
is a fundamental right providing equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.
This aspect of Art. 16(4) in my opinion
inevitably requires that the proviso or the exception should not be interpreted
so liberally as to destroy the fundamental right itself to which it is a
proviso or exception. The construction therefore of Art. 16(4) cannot ignore
this aspect of the matter.
I now read Art. 16(4):
"Nothing in this article shall prevent
the State from making any provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State."
Before I turn to the actual words used in the Article I must refer to what I
consider is implicit in that Article. The Article provides for reservation of 608
appointments or posts and it seems tome obvious that it is implicit in the
Article that the reservation of appointments or posts cannot go to the length
of reserving all appointments or posts or even to the length of reserving a
majority of them. The reason why I say that all appointments or posts cannot be
reserved under Art. 16(4)(though that would be the result if the widest
possible interpretation is given to the words used in the Article)-is that if
all appointments or posts could be reserved under Art. 16(4) it would mean
complete destruction of the fundamental right guaranteed under Art. 16(1). It
could not be the intention of the Constitution-makers that the proviso or
exception in Art. 16(4) should be so used as to destroy completely the fundamental
right enshrined in Art. 16(1).
Nor do I think that it is permissible under
Art. 16(4) to reserve a majority of appointments or posts, for that again, in
my opinion, though it may not completely destroy the fundamental right
guaranteed under Art. 16(1) will certainly make it practically illusory. Again
it could not be the intention of the Constitution-makers that Art. 16(4) should
be so interpreted as to make the fundamental right guaranteed under Art. 16(1)
illusory. I may in this connection refer to Art. 335, which occurs in Part XVI
dealing with Special Provisions relating to certain Classes, which reinforces
what I have said above. That Article provides that "the claims of the
members of the Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State." Now the scheduled
tribes and the scheduled castes are included in the words "backward class
of citizens" used in Art. 16(4). Therefore in considering the claims of,
at any rate, a part of, those included in Art. 16(4)-(and I presume the same
will apply to the whole) the maintenance of efficiency of administration must
be kept in mind, for the reservation provided in Art. 16(4) is to meet the
claims of the members of the 609 scheduled castes and the scheduled tribes.
Reservation, therefore, of all appointments or posts or even a majority of them
is certain to result in the impairment of efficiency of administration and
therefore what I consider as implicit in Art. 16(4) is borne out also by the
provision in Art.
335. It is in this background that the
interpretation of Art. 16(4) falls to be considered.
Turning now to the words in Art. 16(4), it
appears to me that the key words in that Article are "not adequately
represented in the services under the State." Obviously, reservation can
be made under this Article only if the State comes to the conclusion that any
backward class of citizens is not adequately represented in the services under
it. If, for example, the State is of opinion that backward classes are
adequately represented in the services it can make no reservation under Art.
16(4). What then is the meaning of these key words in this Article? What these
words require is that reservation may be made in order to make the
representation of any backward class of citizens adequate in the services. Does
the word "adequate" imply only numerical representation in the
services or does it imply something more than that? The three meanings of the
word "adequate" given in the Shorter Oxford English Dictionary are
(i) equal in magnitude and extent; (ii) commensurate in fitness, sufficient,
suitable; and (iii) fully representing (logic).
It seems to me that it is the second meaning
(namely, sufficient) which properly applies to the words "adequately
represented" as used in this Article. "Sufficient" has two
meanings: (i) Sufficing, adequate, esp. in amount or number to the need, (ii)
enough, adequate quantity. Therefore, when Art. 16(4) says that reservation may
be made in order that any backward class of citizens may be adequately
represented in the services it means that reservation may be made in order to
make the number of any backward class sufficient in the services under the
State. These words do not in my opinion convey any idea of quality and can only
mean sufficient quantitative representation in the services under the State. If
610 the intention of the Constitution-makers was that there may also be
reservation in various grades in a particular service where there are grades in
the service, I should have expected different words being used in Art. 16(4) to
convey that meaning. These key words used in this Article further convey the
idea of representation in the services as a whole, for there are no words which
suggest that the service should be broken up in case there are grades in it for
the purposes of adequate representation. The conclusion therefore at which I arrive
is that these key words convey the idea of adequate numerical representation
for any backward class of citizens in a particular service as a whole and it is
for this purpose alone that reservation can be made of appointments or posts in
This brings me to the question as to bow the
reservation is to be made. Art. 16(4) tells us that it may be made either by
reserving appointments to the services or reserving posts in the services.
Appointments in my opinion clearly mean the initial appointments to a service,
for a person is appointed only once in a service and thereafter there is no
further appointment. Therefore, when the Article speaks of reservation of
appointments it means reservation of a percentage of initial appointments to
the service. Posts refer to the total number of posts in the service and when
reservation is by reference to posts it means reservation of a certain
percentage of posts out of the total number of posts in the service. The reason
why these two methods are mentioned in this Article is also to my mind plain.
The method of reservation of appointments would mean that the goal of adequate
representation may be reached in a long time. Therefore, in order that the
goal. may be reached in a comparatively shorter period of time, the Article
also provides for the method of reservation of posts. This will be clear from
an example which I may give. Suppose there are 1,000 posts in a particular
service and the backward classes have no representation at all in that service.
The State considers it necessary that they should have adequate representation
in that 611 service. Suppose also that the annual appointments to be made to
the service in order to keep it at full strength is thirty. Now the State if it
chooses the method of reservation of appointments will reserve a percentage of
appointments each year for backward classes. Now suppose that percentage is
fixed at ten per century. In order therefore to reach the ten per centum of the
total number of posts in the service by the method of reservation of
appointments, the period taken would be roughly 34 years.
This period may be considered too long and
therefore the State may decide to adopt the other way, i.e., the reservation of
posts; and suppose it is decided to reserve ten per centum of the posts, i.e.,
100 in all. It will then be open to the State having reserved 100 posts in this
particular service for backward classes to say that till these 100 posts are
filled up by backward classes all appointments will go to them provided the
minimum qualifications that may be prescribed are fulfilled. Suppose further
that it is possible to get annually the requisite number of qualified members
of backward classes equal to the annual appointments, the representation of the
backward classes will be made adequate in about four years. Once the
representation is adequate there will be no power left for making further
reservation. Thus by the method of reservation of appointments the
representation is made adequate in a long period of time while by the method of
reserving posts the representation is made adequate in a much shorter period.
That seems to be the reason why the Article speaks of reservation of
appointments as well as of posts.
It is however said that this construction of
Art. 16(4) makes the use of the word "posts" therein superfluous, and
that the same result of making the representation adequate quickly could have
been achieved if the word "appointments" only had been used therein.
I am of opinion that this is not so and the use of the word
"appointments" only in Art.
16(4) would not have made it possible for the
State to make the representation of backward classes adequate in a short space
of time. In the example I have given the 612 representation of backward classes
was made adequate in four years by the method of reservation of posts; it would
however not have been possible to make the representation adequate in this
hypothetical case in such a short time if the Article only provided for
reservation of appointments.
I have already said that it is implicit in
the Article that reservation cannot be of all appointments or even of a
majority of them, for that would completely destroy the fundamental right
enshrined in Art. 16(1) to which Art.
16(4) is in the nature of a proviso or an
exception or at any rate make it practically illusory. Therefore, it would not
be open to the State to reserve all or even a majority of the appointments for
backward classes, if the word "appointments" only had been used in
Art. 16(4). Even if a larger percentage than ten per centum were reserved for
backward classes in the matter of appointments in the hypothetical case given
by me it would not be possible to reach the total of 100 posts for the backward
classes in the service in less than twice or thrice the time taken by the
method of reservation of posts, for the State could not reserve all or even the
majority of appointments in any particular year, in view of what is implicit in
Art. 16(4), if the word " a appointments" only had been there. It
seems to me therefore that the use of the word "posts" in that
Article was with a purpose, namely, that by the method of reservation of posts
the inadequate representation may be made adequate within a short space of time
and the objection that could be raised to the reservation of all appointments,
if only the word "appointments" had been used in the Article, would
no longer be available. It cannot therefore be said that on the interpretation
I have placed on Art.
16(4) the use of the word "posts"
therein becomes superfluous.
I have already said that if the intention was
not only to make reservation in the service as a whole whether by the method of
reserving appointments or by the method of reserving posts but also to include
reservation in various grades in which a service may be divided, the words of
16(4) would have been different. I may in
this connection refer to Art. 335 613 again, which lays down that the claims of
the scheduled castes and the scheduled tribes (which are part of backward classes
of citizens) shall be considered So,., consistently with the maintenance of
efficiency of administration. It seems to me that reservation of posts in
various grades in the same service is bound to result, for obvious reasons, in
deterioration in the efficiency of administration; and reading Art. 335 along
with Art. 16(4) which to my mind is permissible on the principle of harmonious
construction (see Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha (1)), it
could not be the intention of the Constitution-makers that reservation in Art.
16(4), for at any rate a part of those comprised therein, should result in the
impairment of the efficiency of administration. It also seems to me equally
obvious that what applies to a part of those comprised in the words "any
backward class of citizens" also applies to the whole. Therefore, in the
absence of clear words in Art.
16(4) which would compel one to hold that
reservation was meant to apply not only to the service taken as a whole but
also to various grades in which the service might be divided, I feel that an
interpretation should not be given which would result in the impairment of
efficiency of administration, which is jealously safeguarded even when
considering the claims of the scheduled castes and the scheduled tribes. I am
therefore of opinion that giving the words used in Art. 16(4) as liberal an
interpretation as is possible without destroying or making illusory the
fundamental right guaranteed in Art. 16(1) to which Art.
16(4) is in the nature of an exception or a
16(4) can only mean that the State has the
power there under to reserve numerically a certain percentage of appointments
or posts in the manner I have indicated above and it has no power to split the
service into various grades which might exist in it and make reservation in
each grade because of the use of the word "posts" therein. I would
therefore dismiss the appeal but for different reasons.
(1)  1 S. C. R. 806, 859-60 78 614
AYYANGAR, J.-I regret that I cannot share the view of my learned brethren
expressed by Gajendragadkar, J. that the appeal should be allowed and I agree
with Wanchoo, J. that the appeal should be dismissed and the order of the High
The facts of the case have been set out in
great detail in the judgments already delivered and it is unnecessary to repeat
Mr. Chatterji when he opened the appeal
appeared to claim that the scope and content of Art. 16(1) and of sub-Art. (4)
thereof were identical and that if Art. 16(1) guaranteed by the use of the wide
expression "matters relating to employment", "equality of
opportunity" in relation to promotions also, Art. 16(4) should be
construed to have the same width. But this argument however he abandoned at a
later stage. The point therefore does not call for any consideration and the
judgments now delivered proceed on the basis that the scope of the limitation
on the equality of opportunity which is provided in Art. 16(4) is not coextensive
with the freedom guaranteed by Art. 16(1). The only question therefore is in
what respect is Art. 16(4) narrower than Art. 16(1). In considering this the
rule of construction should be borne in mind that a restriction on a guaranteed
freedom should be narrowly construed so as to afford sufficient scope for the
The judgment of the learned Judge now under
appeal proceeds on the basis that the expression "Posts" in Art.
16(4) was a reference to what are termed in service parlance 'ex-cadre posts'
and not posts in the service. Mr. Chatterji's submission was that the learned
Judge had no basis for importing the nomenclature and the classifications to be
found in Part XIV into Part III dealing with fundamental rights. In particular,
Mr. Chatterji quarrelled with the statement by the learned Judge that the
expression appointments and posts' occurring in Art. 16(4) were "virtually
terms of art which had to be interpreted and understood in the light of the
legislative history of the constitutional enactments that 615 preceded the
Constitution, and in consonance with the scheme that underlies the provisions
of the Constitution, which have reference to the civil services' and civil
servants in this country." Mr. Chatterji' further pointed out that the
learned Judge went wrong in observing that "The expressions appointments
and posts in Art. 16(4) have really to be read as appointments to services and
appointments to posts" on the ground that the words used in Art. 16'4)
were merely "appointments and posts" and not "appointments to
services" etc., the latter occurring only in Part XIV. It was,, however,
common ground that if the learned Judge was right in considering that
"appointments" in Art. 16(4) meant "appointments to
services," the notification now impugned should be held to be
Mr. Chatterji did not dispute that when the
expressions 'appointments to services and appointments to posts' occurred in
Ch. XIV vide for instance in Arts. 309, 311, etc., being phrases borrowed from
statutory provisions of the Government of India Act, 1935, the expression
'appointment to a post' designated an 'ex-cadre post'. The submission, however,
of learned Counsel was that there was no justification for importing the
phraseology employed in Part XIV in Art. 16(4), notwithstanding that Art. 16
dealt with equality of opportunity for employment in the services of the State
and sub-Art. (4) was concerned with the reservation of appointments in Services
under the State.
His submission was that Art. 16(4) had no
legislative precedent in the previous constitutional enactments to justify the
importation of service rules and service jargon as an aid to its construction.
My learned Brothers have acceded to this
submission of Mr. Chatterji. With great respect to them I consider that the
view of the learned Judge of the High Court is correct. In the first place, the
Article being one concerning the right to be employed in the Services of the
State, one has necessarily to turn on the relevant provisions in relation to
the Services to discover the precise import of the expressions used in relation
to the Services. Besides, we are not left in 616 doubt as to the
inter-connection between Art. 16 and Part XIV dealing with Services, because
Art. 335 forms, as it were, the link between Part XIV and the provisions for reservation
in favour of the backward communities in Art.
16(4) Betting out as it does the principles
that should guide the State in the matter of reservation in the Services which
could obviously be only a reference to that provided for by Art. 16(4). Art.
"The claims of the members of the
Scheduled Castes and Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of administration, in the
making of appointments to services and posts in connection with the affairs of
the Union or of a State." In this Article, at any rate, it cannot be
contended, and I did not understand Mr. Chatterji to contend, that 'Posts' had
any reference to 'posts in the services.' If it were so then in my judgment it
would follow that the phraseology employed in this Article which deals with the
same subject as that dealt with by Art. 16(4) throws light on and explains the
meaning of the expression 'posts' in Art.
16(4). It is only necessary to add that Art.
320(4) which runs:
"Nothing in clause (3) shall require a
Public Service Commission to be consulted as respects the manner in which any
provision referred to in clause (4) of article 16 may be made or as respects
the manner in which effect may be given to the provisions of article 335."
to which learned Counsel for the respondent drew our attention indicates, if
other indication were necessary., that Arts. 16(4) and 335 have to be read
together and not as if the 'posts' referred to in Art. 335 indicated a
different idea or connoted a different concept from the same word used in Art.
Even if the above view were wrong and the
expression 'Posts' were intended to designate not 'ex-cadre posts' but 'posts
in the service,' I am unable to hold that the appellant derives any advantage.
As my learned Brother Wanchoo, J.
has pointed out, the crucial words in Art.
16(4), and which form as it were 617 the key to its interpretation, from which
the power of the State to make the reservation stems, are that a class of
citizens "is not adequately represented in the Services of the
State." The action permitted to be taken to redress this inadequacy is by
reservation of appointments and posts. If by the expression 'posts' are meant
'posts in the service.
itself' I feel unable to attribute to the
expression 'posts' any special significance beyond an appointment to the
service. Every appointment in a service must be to "a post" in a
service, because there cannot be an appointment in the air but can only be to a
"post" in a service. In that sense, in my view, the expression 'post'
would be really redundant unless, of course, as I have said earlier, it meant
not posts in a service but ex-cadre posts.
There is also one other aspect to which I
might advert. In some of the top grades there are single posts in the Service.
If at any point of time the incumbent is not a member of the backward class, it
would certainly be a case of inadequate representation as regards that post
which would mean that such posts which are single may be reserved for all time
to be held by members of the backward classes, because if at any moment such a
person ceases to hold the post there would be inadequate representation in
regard to that post. I have drawn attention to this because it pointedly
demonstrates that the correct view is that when "inadequacy of
representation" is referred to in Art. 16(4) as justifying a reservation,
the only rational and reasonable construction of the words are that it refers
to a quantitative deficiency in the representation of the backward classes in
the service taken as a whole and not to an inadequate representation at each
grade of service or in respect of each post in the service.
Besides, even on the footing that
"posts" mean posts in the Services, Art. 16(4) properly construed in the
light of Art.
335 of the Constitution whose inter. action
has been discussed in great detail by Wanchoo, J. in the judgment just now
pronounced with which entirely agree, contemplates and permits 618 reservation
only in respect of appointments to Services at the initial stage and not at
each stage even after the appointment has taken place.
There is one other matter also which I
consider relevant in this context. Under Art. 16(4) the State is enabled to
make provision for the reservation of appointments if in their opinion certain
backward classes of citizens are not adequately represented in the Service. The
Article therefore contemplates action in relation to and having effect in the
future when once the State forms the opinion about the inadequacy of the
Service. If an inadequacy exists today, to give retrospective effect to the
reservation, as the impugned notification has done, would be to redress an
inadequate representation which took place in the past by an order issued
today. In my judgment that is not contemplated by the power conferred to
reserve which can only mean for the future. As this point however has not been
argued I do not desire to rest my judgment on it, but have mentioned it to draw
attention to another feature of the notification which deserves consideration.
I would therefore dismiss the appeal with
By COURT: In accordance with the opinion of
the majority the appeal is