T. Devadasan Vs. The Union of India
& ANR [1963] INSC 182 (29 August 1963)
29/08/1963 MUDHOLKAR, J.R.
MUDHOLKAR, J.R.
DAS, SUDHI RANJAN (CJ) SUBBARAO, K.
DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 179 1964 SCR (4) 680
CITATOR INFO:
E 1965 SC1430 (1,2,3,5,6) D 1967 SC 52 (7) R
1967 SC 839 (17) R 1968 SC 507 (6) F 1974 SC 532 (15,16,20) R 1974 SC1480 (11)
D 1976 SC 490 (26,56,71,126,161,180,222,227) D 1977 SC 251 (34) D 1978 SC 68
(89) R 1981 SC 298 (28,82,88,89,111,113,114,130) R 1984 SC1291 (29) F 1985
SC1495 (10,148) R 1986 SC 515 (103) R 1988 SC 959 (11,15,16) RF 1989 SC 307 (7)
RF 1992 SC 1 (91,134)
ACT:
Equality-Employment Under State-Reservation
of posts for backward classes-Scheduled Castes and Scheduled TribesUnfilled
vacancies of reserved posts for the year to he carried forward to subsequent
year--"Carry forward rule"--Constitutional validity-Constitution of
India, Arts.
14, 16(l), 16(4), 46, 335.
HEADNOTE:
On February 6, 1960, the Union Public Service
Commission issued a notification to the effect that a limited competitive
examination for promotion to the regular temporary establishment of Assistant
Superintendents of the Central Secretariat Service would be held in June, 1960.
The notification further stated that a reservation
of 121/2% of the vacancies would be made for members of the Scheduled Castes
and 5% for members of Scheduled Tribes. The result of this examination was
announced by the Union 681 Public Service Commission in April, 1961, and the
Government made 45 appointments out of which 29 were from among the candidates
belonging to the Scheduled Castes and Tribes.
The result was that the reservation actually
made in this case came to 65% and was far in excess of that set out in the
notification of the Union Public Service Commission pursuant to which the
competitive examination was held. Had the reservation been limited to 17 IO/
only 8 vacancies could have gone to the members of the Scheduled Castes and
Tribes and the rest to the other candidates according to their merit. The
Government of India and the Public Service Commission sought to justify their
action by relying upon what is known-as "the carry forward rule", as
set out in the office Memorandum of instructions dated May 7 1955, issued by the
Government of India, by which : "If a sufficient number of candidates
considered suitable by the recruiting authorities, are not available from the
communities for whom reservations are made in a particular year, the unfilled
vacancies should be treated as unreserved and filled by the best available
candidates. The number of reserved vacancies thus treated as unreserved will be
added as an additional quota to the number that would be reserved in the
following year in the normal course: and to the extent to which approved
candidates are not available in that year against this additional quota, a
corresponding addition should be made to the number of reserved vacancies in
the second following year". The petitioner, who was an assistant in Grade
IV of the Central Secretariat Service, who expected to become a Section Officer
(Assistant Superintendent) by way of promotion challenged the validity of the
"carry forward rule" on the grounds, inter alia, that the rule
contravened Arts. 14, 16 and 335 of the Constitution of India.
Held, (Subba Rao, J., dissenting), that the
"Carry forward rule", as a result of which applicants belonging to
Scheduled Castes or Tribes could get more than 50% of the vacancies to be filed
in a particular year, is unconstitutional.
Article 14 of the Constitution of India
prohibits the State from denying to any person equality before the law or the equal
protection of laws. This means equality among equals. The Article does not
provide for an absolute equality of treatment to all persons in utter disregard
in every conceivable circumstance of the differences such as age, sex,
education and so on. A provision made by the State for the reservation of a
certain proportion of appointments and posts for backward classes in the public
services of the State in order to provide them with an opportunity equal to
that of the members of the more advanced classes, does not infringe Art. 14 of
the Constitution of India provided that the reservation is not so excessive as
to practically deny a reasonable opportunity for employment to members of other
communities.
Though under Art. 16(4) of the Constitution a
reservation of a reasonable percentage of posts for members of the Scheduled
44---2 SC India/64 682 Castes and Tribes is within the competence of the State,
the method evolved by the Government must be such as to strike a reasonable
balance between the claims of the backward classes and claims of other
employees, in order to effectuate the guarantee contained in Art. 16(1), and
for this purpose each year of recruitment would have to be considered by
itself.
The Manager, Southern Railway v. Rangachari,
[1962] 2 S.C.R.
586 and M. R. Balaji and Others v. The State
of Mysore, [1963] Supp. 1 S.C.R. 439, relied on.
per Subba Rao, J.-The provision for
"Carry forward" is for the reservation of appointments for the
Scheduled Castes and Tribes, and unless it is established that an unreasonably
disproportionate part of the cadre strength is filled up with the said Castes
and Tribes, IL is not possible to contend that the provision is not one of
reservation but amounts to a violation of the fundamental rights. It is
inevitable in the nature of reservation that there will be lowering of
standards to some extent ; but on that account the provision cannot be said to
be bad.
The expression "nothing in this
article" in Art. 16(4) of the Constitution of India is a legislative
device to express its intention in a most emphatic may that the power conferred
thereunder is not limited in any way by the main provision but falls outside it.
It has not really carved out an exception, but has reserved a power untrammeled
by the other provisions of the Article.
The word "any" in the expression
"any provision" inArt.16(4) is of the widest amplitude and leaves the
nature of the provision to be made by the State in. its discretion. Once a class
is a backward class, the question whether it is adequately represented or not
is left to the subjective satisfaction of the State and it is not for this
Court to prescribe the mode of reservation.
ORIGINAL JURISDICTION : Petition No. 87 of
1963.
Under Article 32 of the Constitution of India
for the enforcement of fundamental rights.
R. Gopalakrishnan, for the petitioner.
R. Ganapathy Iyer and R. N. Sachthey, for the
Respondents.
August 29, 1963. The Judgment of S. K. Das,
Acting. C.J., Raghubar Dayal, N. Rajagopala Ayyangar and J. R. Mudholkar, JJ.
was delivered by Mudholkar, J., K. Subba Rao J., delivered a dissenting
opinion.
MUDHOLKAR J.-The petitioner, who is a
graduate, is an Assistant in Grade IV of the Central Secretariat Service,
having been recruited therein in the year 1956. He became permanent on January
1, 1958. The next post 683 which' the petitioner can expect to get is that of
Section Officer (Assistant Superintendent) in the same service.
Recruitment to the post of Section Officer is
made in the following manner :
(i) 40% by direct recruitment from those who
obtained lower ranks in the I.A.S. etc., examination ;
(ii)30% by promotion from Grade IV to Grade
III on the basis of a departmental examination held at intervals by the
U.P.S.C.
(iii)30% by promotion from Grade IV on the
basis of seniority-cum-fitness.
On February 6, 1960 the Union Public Service
Commission issued a notification to the effect that a limited competitive
examination for promotion to the regular temporary establishment of Assistant
Superintendents of the Central Secretariat Service would be held in June,
1.960.
The notification further stated that a
reservation of 121/2% of the vacancies would be made for members of the
Scheduled Castes and 5% for members of Scheduled Tribes.
The result of this examination was announced
by the Union Public Service Commission in April, 1961. The Union Public Service
Commission recommended 16 candidates for being appointed in unreserved
vacancies and 28 candidates in reserved vacancies. Subsequently the U.P.S.C.
recommended 2 more candidates belonging to the Scheduled Castes/Tribes for the
posts. It may be mentioned that the number of vacancies which were expected to
be filled was stated to be 48 out of which 16 were unreserved and the remaining
32 reserved, though in fact the U.P.S.C. recommended the names of only 30
candidates for the latter class of vacancies. The Government, however, made
only 45 appointments out of which 29 were from among the candidates belonging
to the Scheduled Castes and Tribes.
The petitioner points out that the percentage
of marks secured by him at the examination was 61 whereas the percentage of
marks secured by some of the 29 candidates from the Scheduled Castes and Tribes
was as low as 35 and one of his grievances is that it was not competent to the
U.P.S.C. to prescribe one qualifying standard for members of the Scheduled
Castes and Tribes and another for the rest of the candidates.
684 It is the petitioner's case that had the
Union of India and the U.P.S.C. adhered to the quota of 17-1/2% reservations in
favour of Scheduled Castes and Tribes he would have had a fair chance of being
selected to the post of Assistant Superintendent. His grievance is that the
reservation actually made in this case comes to 65% and was far in excess of
that set out in the notification of the U.P.S.C., pursuant to which the
competitive examination was held. Had the reservation been limited to 17-1/2%
only 8 vacancies could have gone to the members of the Scheduled Castes and
Tribes and the rest to other candidates according to their merit.
The petitioner points out that the
respondents, that is, the Union of India and the Union Public Service
Commission seek to justify their action by relying upon what is known as
"the carry forward rule". In order to understand what the aforesaid
rule is it is necessary to refer to certain resolutions of the Government of
India in the Ministry of Home Affairs. On September 13, 1950, the Government of
India published a resolution indicating their policy in regard to communal
representation in the services. There they have stated that the following
reservations would provisionally be made in recruitment to the posts and
services under them :
(a) Scheduled Castes : Reservation of 121/2%
of vacancies by direct recruitment through the Union Public Service Commission
or by means of open competitive tests held by any other authority. Where
recruitment is made otherwise than by open competition the reservation will be
16-2/3%.
(b) Scheduled Tribes: both in recruitment by
open competition and the recruitment made otherwise than by open competition
the reservation shall be to the extent of 500/ of the vacancies filled by
direct recruitment.
Then they refer to the resolution in favour
of Anglo-Indians with which we are not concerned. Incidentally it may be
mentioned that this resolution provides that in all cases a minimum standard of
qualification will be prescribed and that the reservations will be subject to
the over all conditions that candidates of the requisite communities possessing
the prescribed qualifications and suitable in 685 all respects for the
appointments in question are forthcoming in sufficient numbers for the
vacancies reserved for them. These orders were made applicable to all services
under the control of the Government of India. Supplementary instructions with
regard to this subject were issued by the Government of India on January 28,
1952, of which the relevant portions may be quoted 2(a) RECRUITMENT BY OPEN
COMPETITION : If the candidates of Scheduled Castes, Scheduled Tribes and the
Anglo-Indian community obtain by competition less vacancies than are reserved
for them, the difference will be made up by the nomination of duly qualified
candidates of these castes, tribes and communities, i.e., candidates of these
communities etc., who have qualified in the test, selection etc., held for the
purpose, but have secured ranks lower than the candidates of other communities
for whom no reservations have been made.
5(3) If a sufficient number of candidates of
the communities for whom the reservation are made, who are eligible for
appointment to the posts in question and are considered by the recruiting
authorities as suitable in all respects for appointment to the reserved quota
of vacancies, are not available, the vacancies that remain unfilled will be
treated as unreserved and filled by the best available candidates ; but -a
corresponding number of vacancies will be reserved in the following year for
the communities whose vacancies arc thus filled up in addition to such number
as would ordinarily be reserved for them under the orders contained in the
Resolution. (For further clarification please see Rule III in Appendix 'A').
(4)If suitably qualified candidates of the
communities for whom the reservations have been made are again not available to
fill the vacancies carried forward from the previous year under clause (3)
above, the vacancies not filled by them will be treated as unreserved and the
reservations made in those vacancies will lapse.
686 APPENDIX 'A' III. No gap should be left
in the roster in filling vacancies and if a reserved vacancy (at, say, the 25th
point of the roster) has, for want of suitable Schedule Caste candidate to be
treated as unreserved, the candidate appointed should be shown against that
point ;
but if a Scheduled Caste Candidate cannot be
recruited against an unreserved vacancy later in the year, the reservation
should be carried forward to the following year and after the Scheduled Castes
quota for the latter year has been filled, the first unreserved vacancy in that
year (say, the 32nd point) should be treated as reserved for Scheduled
Castes." These supplementary instructions were given apparently because
sufficient number of qualified candidates from among the Scheduled Castes and
Tribes were not available.
However, even carrying forward the vacancies
for one year proved to be inadequate for giving effect to the policy of the
Government of India to give adequate representation in the services to members
of the Scheduled Castes and Tribes.
The Government considered and rejected the
holding of separate examinations for Scheduled Castes and Tribes for
recruitment to public services. Then by Office Memorandum No. 2/11/55-RPS,
dated May 7, 1955, the Government of India modified sub-paras (3) and (4) of
paragraph 5 of the Supplementary Instructions dated January 28, 1952, by
substituting the following "3(a) If a sufficient number of candidates
considered suitable by the recruiting authorities, are not available from the
communities for whom reservations are made in a particular year, the unfilled
vacancies should be treated as unreserved and filled by the best available
candidates. The number of reserved vacancies thus treated as unreserved will be
added as an additional quota to the number that would be reserved in the
following year in the normal course; and to the extent to which approved
candidates are not available in that year against this additional quota, a corresponding
addition should be made to the number of reserved vacancies in the second
following year." 687 Thus the number of reserved vacancies of 1954 which
were treated as unreserved for want of suitable candidates in that year will be
added to the normal number of reserved vacancies in 1955. Any recruitment
against these vacancies in 1955 will first be counted against the additional
quota carried forward from 1954.
If however, suitable candidates are not
available in 1955 also a certain number of vacancies are treated accordingly as
'unreserved' in that year, the total number of vacancies to be reserved in 1956
will be the unutilised balance of the quota carried forward from 1954 and 1955
plus the normal percentage of vacancies to be reserved in 1956. The unutilised
quota will not, however, be carried forward in this manner for more than two
years. An annual report of reserved vacancies which were treated as unreserved
for want of suitable candidates from Scheduled Castes or Scheduled Tribes as the
case may be, should be forwarded to the Ministry of Home Affairs in the form
enclosed as Annexure along with the annual communal returns already prescribed.
In addition Ministries themselves will take adequate steps to ensure that any
lapse on the part of subordinate authorities in observing the reservation rules
cannot go unnoticed by a reviewing authority within the Ministry itself at a
sufficiently early date.
(b) In the event of a suitable Scheduled
Castes candidate not being available, a Scheduled Tribe candidate can be
appointed to the reserved vacancy and vice versa subject to adjustment in the
subsequent points of the roster. (For further clarification please see Rule III
in Appendix 'A').
It is these instructions of the Government
of. India which are being challenged by the petitioner in this petition which
he has presented to this Court under Art. 32 of the Constitution. His
contention is that Art. 16(l) of the Constitution provides that there shall be
equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
Mr. Gopalakrishnan, who appears for the
petitioner, concedes that under cl. (4) of Art. 16 it is open to the State to
make provision for reservation of appointments or posts in favour of any
backward class of citizens which in the opinion of the State, is not 688
adequately represented in the services of the State. But his contention is that
this reservation cannot be so extensive as to nullify or destroy the right
conferred by cl. (1) of Art. 16. He points out that according to the previous
decisions of this Court cl. (4) is merely an exception to cl. (1) of Art. 16
which, being subservient to the main provision cannot be so interpreted as to
render the main provision meaningless. His next contention is that cl.
(4) of Art. 16 is to be read with Art. 335 of
the Constitution which while providing for the consideration of the claims of
members of Scheduled Castes and Tribes, reiterates that the efficiency of
administration should be maintained and not allowed to suffer. His next
contention is that as no reservation of posts in favour of members of Scheduled
Castes and Tribes is made in the offices of the Lok Shabha and Rajya Sabha and
the Supreme Court or in the Armed Forces, Art. 14 of the Constitution is
infringed.
Then, according to him, the standard for all
candidates must be the same and the Union Public Service Commission has no
power to recommend for appointment candidates from Scheduled Castes and Tribes
for appointment to the reserved posts even though they have secured far less
marks than the candidates belonging to the more advanced communities. These are
the main points which Mr. Gopalakrishnan has urged.
On behalf of the respondents it is claimed
that the carry forward rule is perfectly valid, that it was a rule in force
before the commencement of the Constitution and that it was decided to continue
it even after the Constitution came into force as a matter of public policy and
for giving effect to the provisions of the Constitution and that that is why
supplementary instructions were issued by the Government in 1952. They further
say that the carry forward rule was extended upto two years because of
inadequacy of representation of Scheduled Castes and Tribes in services regarding
which there was persistent criticism in Parliament and by the Commissioner for
Scheduled Castes and Tribes and by others. It is for this reason that the
revised supplementary instructions of 1955 were issued as a matter of policy.
The respondents relied upon the provisions of
Art. 16(4) and Art. 335 in support of these instructions.
689 It was contended on behalf of the
respondents that having regard to the prayers in the petition, the petition was
unsustainable in law because the persons who would be adversely affected have
not been joined as respondents. It is also contended that the petition does not
disclose any justiciable issue. The right to promotion cannot, according to the
respondents, be the subject of a complaint in a court of law. Nor again,
questions of policy could be agitated before a court of law. The respondents
denied that the petitioner has any right, much less a fundamental right.
The respondents also deny that the carry
forward rule was a negation of equality before law and equal opportunity in the
matter of appointment to posts under the State. The infringement of the alleged
fundamental right could not thus furnish a cause of action to sustain a
petition under Art.
While replying in detail paragraph by
paragraph to the petition, the respondents admitted that at the competitive
examination held in pursuance Of the notification of March, 1961, 28 vacancies
which had been filled in the two previous years from amongst candidates who
belong to communities other than the Scheduled Castes and Tribes because
suitable candidates from the latter classes were not available and stated that
by operation of the carry forward rule those vacancies were, therefore,
earmarked for being filled at the competitive examination held in the year 1961
in addition to 17-1/2% of the total vacancies to be filled that year.
The main question for consideration thus is
whether the carry forward rule as modified in 1955 is unconstitutional either
because its operation will practically destroy the fundamental right guaranteed
by Art. 16(l) of the constitution or because it is violative of the guarantee
contained in Art. 14 of the Constitution. If on either of these grounds the
carry forward rule is found to be bad no other question need be considered by
us.
It seems to us that the argument based upon
Art. 14 of the Constitution in fact turns on the same considerations as the
argument that Art. 16(l) is infringed by the aforesaid rule.
What Art. 14 provides is that the state shall
not deny to any person equality before the law or the equal protection of the
laws within the territory of India. What is meant 690 by equality in this
Article is, equality amongst equals. It does not provide for an absolute
equality of treatment to all persons in utter disregard in every conceivable
circumstance of the differences such as age, sex, education and so on and so
forth as may be found amongst people in general.
Indeed, while the aim of this Article is to
ensure that invidious distinction or arbitrary discrimination shall not be made
by the State between a citizen and a citizen who answer the same description
and the differences which may obtain between them are of no relevance for the
purpose of applying a particular law reasonable classification is permissible.
It does not mean anything more.
It is an accepted fact that members of the
Scheduled Castes and Tribes are by and large backward in comparison with other
communities in the country. This is the result of historical causes with which
it is not necessary for us to deal here. The fact, however, remains that they
are backward and the purpose of Art. 16(4) is to ensure that such people,
because of their backwardness should not be unduly handicapped in the matter of
securing employment in the various services of the State. This provision,
therefore, contemplates reservation of appointments or posts in favour of
backward classes who are not adequately represented in the services under the
State. Where, therefore, the State makes a rule providing for the reservation
of appointments and posts for such backward classes it cannot be said to have
violated Art. 14 merely because members of the more advanced classes will not
be considered for appointment to these posts even though they may be equally or
even more meritorious than the members of the backward classes, or merely
because such reservation is not made in every kind of service under the State.
Where the object of a rule is to make reasonable allowance for the backwardness
of members of a class by reserving certain proportion of appointments for them
in public services of the State what the State would in fact be doing would be
to provide the members of backward classes with an opportunity equal to that of
the members of the more advanced classes in the matter of appointments to
public services. If the reservation is so excessive that it practically denies
a reasonable opportunity for employment to members of other communities the
position may well be different and it would be open when for a 691 member of a
more advanced class to complain that he has been denied equality by the State.
That is precisely the point which we must
consider in dealing with the argument of learned counsel that the rule violates
the guarantee contained in Art. 16(l) of the Constitution because the excessive
reservation permitted by it almost destroys the guarantee contained in the
provision.
In order to appreciate the argument it is
necessary to consider the operation of the rule. Now, the rule provides that
17-1/2% of the total vacancies in a year will be reserved for being filled from
amongst candidates belonging to scheduled castes and tribes. It further
provides that if in any year suitable candidates are not available from amongst
such classes the reserved posts will be dereserved, filled by candidates from
other classes and a corresponding number of posts be carried forward to the
next year. If in the subsequent year the same thing happens, the posts unfilled
by candidates from Scheduled Castes and Tribes can be carried forward to the
third year. In the third year the number of posts to be filled from amongst
candidates of Scheduled Castes and Tribes would thus be 17-1/2% of the total
vacancies to be filled in that year, plus the total unfilled vacancies which
have been carried forward from the two previous years. The rule thus permits a
perpetual carry forward of unfilled reserved vacancies in the two years
preceding the year of recruitment and provides addition to them of 17-1/2% of
the total vacancies to be filled in the recruitment year. In order to
appreciate better the import of this rule on recruitment let us take an
illustration.
Supposing in two successive years no
candidate from amongst the Scheduled Castes and Tribes is found to be qualified
for filling any of the reserved posts. Supposing also that in each of those two
years the number of vacancies to be filled in a particular service was 100. The
reserved vacancies for each of those years would, according to the Government
resolution, be 18 for each year. Now, since these vacancies were not filled in
those years a total of 36 vacancies will be carried forward to the third year.
Supposing in the third year also the number of vacancies to be filled is 100.
Then 18 vacancies out of these will also have
to be reserved for members of the Scheduled Castes and Tribes.
692 By operation of the carry forward rule
the 'vacancies to be filled by persons from amongst the Scheduled Castes and
Tribes would be 54 as against 46 by persons from amongst the more advanced
classes. The reservation would thus be more than 50%. It has been held by this
Court in M. R. Balaji & Ors. v. The State of Mysore(1) that the reservation
of more than half of the seats in an educational institution for being filled
from members of the backward classes is unconstitutional. Speaking for the
Court Gajendragadkar, J., has observed therein "Speaking generally and in
a broad way a special provision should be less than 50 per cent ; how much less
than 50 per cent. would depend upon the relevant prevailing circumstances in
each case.......... In our opinion, when the State makes a special provision
for the advancement of the weaker sections of society specified in Article
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 between the several relevant
considerations." In that case the reservation was to the extent of 68% and
it was struck down by this Court. No doubt, what was challenged was the
reservation of seats in an educational institution in favour of members of
"backward communities" under Art. 15(4) which permits the State to
make a special provision for the advancement of any socially and educationally
backward classes or for the Scheduled Castes and Tribes while Art. 16(4) in
specific terms provides for the reservation of appointments or posts in favour
of such classes. But the difference in the language used in these provisions is
not, however, of any significance because this Court has accepted the position
that reservation can be made under Art. 15(4). Indeed, at p. 474 this Court has
pointed out :
"........ what is true in regard to
Article 15(4) is (1) [1963] Supp. 1 S.C.R. 439.
693 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 making adequate reservation under Art. 16(4) care would be taken
not to provide 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 effect 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." What this Court has laid down there would also apply to
the present case. The ratio of this decision appears to be that reservation of
more than half the vacancies is per se destructive of the provisions of Art.
15(1) which is to the effect that the State shall. not discriminate against any
citizen on grounds only of religion, race, caste, sex, place of birth or any of
them. Adverting to the effect of such reservation this Court has observed at p.
467 :
"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 extremly unreasonable to assume
that in enacting Art.
15(4) the Constitution -intended to provide
that where the advancement of the Backward Classes of 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." The
startling effect of the carry forward rule as modified in 1955 would be
apparent if in the illustration which we have taken there were in the third
year 50 total vacancies instead of 100. Out of these 50 vacancies 9 would be
reserved for the Scheduled Castes and Tribes. Adding to that the 36 carried
forward from the two previous years, we would have a total of 45 reserved
vacancies out of 50, that is, a percentage of 90. In the case before us 45
vacancies have actually been filled out of which 29 have gone to members of the
Scheduled Castes and Tribes on the basis of reservation permitted by the carry
forward 694 rule. This comes to about 64.4% of reservation. Such being the
result of the operation of the carry forward rule we must, on the basis of the
decision in Balaj's case(1) hold that the rule is bad. indeed, even in The
General Manager, Southern Railway v. Rangachari'(2) which is a case in which
reservation of vacancies to be filled by promotion was upheld by this Court,
Gajendragadkar, J., who delivered the majority judgment observed:
"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
administration ;.........' It is clear from both these decisions that the
problem of giving adequate representation to members of backward classes enjoined
by Art. 16(4) of the Constitution is, not to be tackled by framing a general
rule without bearing in mind its repercussions from year to year. What precise
method should be adopted for this purpose is a matter for the Government to
consider. It is enough for us to say that while any method can be evolved by
the Government it must strike "a reasonable balance between the claims of
the backward classes and claims of other employees" as pointed out in
Balaji's case(1).
We would like to emphasise that the guarantee
contained in Art. 16(l) is for ensuring equality of opportunity for all
citizens relating to employment, and to appointments to any office under the
State. This means that on every occasion for recruitment the State should see
that all citizens are treated equally. The guarantee is to each individual
citizen and, therefore, every citizen who (2) [1962] 2 S.C.R. 536.
(1) [1963] Supp. I S.C.R. 439.
695 is seeking employment or appointment to
an office under the State is entitled to be afforded an opportunity for seeking
such employment or appointment whenever it is intended to be filled. In order
to effectuate the guarantee each year of recruitment will have to be considered
by itself and the reservation for backward communities should not be so
excessive as to create a monopoly or to disturb unduly the legitimate claims of
other communities.
Further, this Court has already held that cl.
(4) of Art. 16 is by way of a proviso or an exception to cl. (1). A proviso or
an exception cannot be so interpreted as to nullify or destroy the main
provision. To hold that unlimited reservation of appointments could be made
under cl. (4) would in effect efface the guarantee contained in cl. (1) or at
best make it illusory. No provision of the Constitution or of any enactment can
be so construed as to destroy another provision contemporaneously enacted
therein. It is true, as pointed out by Mr. Ganapathy lyer on behalf of the
respondent, that effect must be given to the express words of Art. 16(4).
"Nothing in this Article shall prevent the State from making any provision
for the reservation of appointments........ etc.," but that does not mean
that the provision made by the State should have the effect of virtually
obliterating the rest of. the Article, particularly cls. (1) and (2) thereof.
The overriding effect of cl. (4) on cls. (1) and (2) could only extend to the
making of a reasonable number of reservation of appointments and posts in
certain circumstances. That is all.
Going back on his earlier concession, it was
contended by Mr. Gopalakrishnan on behalf of the petitioner, that there can
possibly be no reservation whatsoever in favour of members of Scheduled Castes
or Tribes or any of the backward classes and that the proper way of discharging
the duty laid upon the State by Art. 16(4) of the Constitution would be to
adopt a method of the kind which has appealed to the Government of Maharashtra
in exercising its powers under Art. 15(4). In this connection he has referred
us to the following passage from the judgment of this Court in Balaji's case(1)
:
(1) [1963] Supp. 1 S.C.R. 439.
696 "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 it 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 Universities
and thereby create more opportunities for higher education. This dual attack on
the problem posed 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 is 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 under 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 697
economic justice and must be taken in a manner that justice is and should be
done." (p. 472473).
It may well be that what the Government of
Maharashtra has done is one of the ways of discharging the duty which Art.
15 (4) casts upon the State but in a case
like the one before us we must regard to the express language of Art. 16 (4).
Under this provision it is clear that reservation of a reasonable percentage of
posts for members of the Scheduled Castes and Tribes is within the competence
of the State.
What the percentage ought to be must necessarily
depend upon the circumstances obtaining from time to time.
In supporting the impugned rule reliance was
placed on behalf of the respondents upon a passage from the judgment of Wanchoo
J., in Rangachari's case(1) "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 *hen 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." The view of Wanchoo, J., stands
by itself and does not seem to have been accepted by the majority of the Court.
The validity of the carry forward rule was not challenged in that case and,
therefore, this Court had no occasion to say anything concerning it. Apart from
that we may point out that the Government resolution does not con(1) [1962] 2
S.C. R. 586 45-2 S. C. India/65 698 template reservation of any posts in the
service cadre but merely provides for reservation of vacancies. Even if the
Government had provided for the reservation of posts for Scheduled Castes and
Tribes a cent. per cent. reservation of vacancies to be filled in a particular
year or reservation of vacancies in excess of 50% would, according to the
decision in Balajis case(1), not be constitutional.
Considerable argument was advanced before us
by Mr. Gopalakrishnan on the basis of Art. 335 of the Constitution which reads
thus "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." The need
for the maintenance of efficiency of administration, even when giving effect to
the provisions of Art.
16(4) has been emphasised in Rangachari's
case(1). It is therefore, not necessary for us to say anything more on the
point.
Having he-Id that the carry forward rule as
modified in 1955 is unconstitutional, the question which arises is as to the
relief which we should grant to the petitioner. Mr. Gopalakrishnan made it
clear that all that he wants is a declaration about the invalidity of the rule
and that he hopes that the department concerned will implement the decision of
this Court in an appropriate way. Indeed, no further relief can be given to him
because the persons who have been appointed and who may be affected by this
decision have not been joined as respondents in this petition.
In the result the petition succeeds partially
and the carry forward rule as modified in 1955 is declared invalid. Costs of
the petition will be paid by the State.
SUBBARAO J.-I regret my inability to agree.
The short but difficult question is whether the impugned provision of reservat
ion of posts made by the Government of India in favour of Scheduled Castes and
Scheduled Tribes offends Art. 16(4) of the Constitution.
[1963] Supp. I S.C.R. 439.
699 The facts are fully stated in the
judgment of my learned brother and I need not restate them. The relevant provisions
may now be read :
Article 16. (1) There shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
(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.
Article 46. 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 forms of
exploitation.
Article 335. 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.
These three Articles, along with the others
with which we are not now concerned, are designed to uplift the said castes and
tribes. There is no conflict between these three provisions. Article 46 is a
directive principle of State policy ; and, though not justiciable, it is
fundamental in the governance of the country. Article 335 is a mandatory
direction given to the State to take the claims of the Scheduled Castes and the
Scheduled Tribes into consideration in the making of appointments to the said
services and posts. Article 16(4) empowers the State to make a provision for
the reservation of posts and appointments for the backward classes, which
certainly include. the said Castes and Tribes. While Art. 335 is mandatory in
character, Art.
16(4) is directory and permissive. The State
may or may not make such reservations for such Castes and Tribes, if it thinks
that the implementation of Art. 335 meets a given situation. In my view, Art.
335 has no bearing in the matter, of construing Art. 16(4) of 700 the Constitution.
We have, therefore, to fall back upon Art. 16(4) alone to ascertain the
validity of the provisions made by the Government.
Article 14 lays down the general rule of
equality. Article 16 is an instance of the application of the general rule with
special reference to opportunity of appointments under the State. It says that
there shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State. If it stood alone, all
the backward communities would go to the wall in a society of uneven basic
social structure ; the said rule of equality would remain only an utopian
conception unless a practical content was given to it. Its strict enforcement
brings about the very situation it seeks to avoid. To make my point clear, take
the illustration of a horse race. Two horses arc set down to run a race--one is
a first class race horse and the other an ordinary one. Both are made to run
from the same starting point. Though theoretically they are given equal
opportunity to run the race' in practice the ordinary horse is not given an
equal opportunity to compete with the race horse. Indeed that is denied to it.
So a handicap may be given either in the nature of extra weight or a start from
a longer distance. By doing so, what would otherwise have been a farce of a
competition would be made a real one. The same difficulty had confronted the
makers of the Constitution at the time it was made. Centuries of calculated
oppression and habitual submission reduced a considerable section of our
community to a life of serfdom.
It would be well nigh impossible to raise
their standards if the doctrine of equal opportunity was strictly enforced in
their case. They would not have any chance if they were made to enter the open
field of competition without adventitious aids till such time when they could
stand on their own legs. That is why the makers of the Constitution introduced
cl. (4) in Art. 16. The expression "nothing in this article" is a
legislative device to express its intention in a most emphatic way that the
power conferred there under is not limited in any way by the main provision but
falls outside it. It has not really carved out an exception, but has preserved
a power untrammelled by the other provisions of the Article.
701 Now let us give a close look to its
provisions to ascertain its ambit. Three expressions stand out in bold relief,
namely,(1) "any provision for the reservation of appointments",(2)
"in favour of any backward class of citizens", and (3) "in the
opinion of the State, is not adequately represented in the services under the
State". The word "any" in the expression "any
provision" is of the widest amplitude and leaves the nature of the
provision to be made by the State in its discretion. But the limitation on the
provision is found in the words "for the reservation of appointments or
posts". It follows that if a provision is for the reservation of
appointments or posts, the clause does not further circumscribe the power of
the State to make any provision to achieve that object. That reservation must
be in favour of any backward class of citizens. "Backward class" is
not defined ; whether a particular class is backward or not is a question of
fact in each case and it must satisfy certain objective tests. But it is
admitted in this case that the Scheduled Castes and the Scheduled Tribes are
backward classes. The third condition is that, in the opinion of the State they
are not adequately represented in the services under it. Once a class is a backward
class, the question whether it is adequately represented or not is left to the
subjective satisfaction of the State. The result of the analysis of the Article
is that to invoke cl. (4), (i) there shall be a backward class of citizens, and
(ii) the said class, in the opinion of the State, is not adequately represented
in the services of the State. If these two conditions are complied with, the
State is at liberty to make any provision for the reservation of appointments
or posts in favour of the said class of citizens. In the present case it is not
disputed that the two conditions have been satisfied, and, therefore, the only
question is whether the provision made is for the reservation of appointments
or posts for the said backward classes of citizens.
Learned counsel for the petitioner contends
that Art. 16(1) confers an individual right on a citizen and cl. (4) of the
said Article, which embodies the principle of social justice is. an exception
to the said right ; and, therefore, the question has to be decided in the
context of every selection whether the provision made is 702 one of reservation
or in effect one of destruction of the fundamental right. He further elaborates
that, as every citizen has an individual right to apply for appointments whenever
applications are called for, he cannot be deprived of his right on the ground
that in a previous selection the community to which that individual belongs had
more than its share. It is further contended that the concept of reservation
for a community implies the carving of a part of the entire field, and that if
the provision covers the entire field or a major part of it, it ceases to be a
reservation and, therefore, not protected by cl. (4). He says that the
principle of "carry forward", if logically extended, will result,
after some time, in the destruction of the right itself. Finally, he argues
that Art. 16 and Art.
335 must be read together and that, if so
read, they indicate that reservation could not be made at the expense of
efficiency.
We are only concerned with the interpretation
of the constitutional provisions, but not with the policy underlying it, The
makers of the Constitution laid down that provision shall be made for the
reservation of appointments and posts in favour of such Castes and Tribes. The
only question" therefore, is whether in the instant case the State did not
provide for the reservation of appointments or posts. I find it difficult to
say that the provision for "carry forward" is not for the reservation
of appointments for the said Castes and Tribes. The reservation of appointments
can be made in different ways. It is not for this Court to prescribe the mode
of reservation. In the context of a permissible provision that can be made by a
State under Art. 16(4) of the Constitution, some observations of Wanchoo, J. in
his judgment in The General Manager, Southern Railway v. Rangachari(1) may be
extracted usefully.
The learned Judge observed at p. 610 thus :
"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 service.
Suppose also that the annual appointments (1)
[1962] 2 S.C.R. 586.
703 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 the percentage is fixed at
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." No doubt these
observations were made in a different context, but they show that reservation
can be made in the posts, i.e., in the cadre strength, or in the annual appointments
to be made in the service in order to keep it at full strength. They also show
that the provision for reservation can be implemented in diverse methods, such
as, by providing for the recruitment only from the Scheduled Castes and the
Scheduled Tribes till the percentage reserved for them is reached or by
providing a percentage for recruitment from the said Castes and Tribes every
year till the reserved percentage is reached in the cadre. The following may be
some of the704 methods of implementing the provision for reservation : (1) The
cadre strength of a particular service is 1,000 ; the State may reserve 100
posts out of them for the Scheduled Castes and the Scheduled Tribes and make
appointments solely from the said Castes and Tribes till the percentage
reserved is reached. (2) In the same situation the State may direct that a
specified percentage of the 100 vacancies for which applications were called
for shall be filled up by candidates from the said Castes and Tribes : by this
process, 100 will be reached in some years. (3) If the applicants from the said
Castes and Tribes do not come upto the percentage reserved for them in a particular
year, the State may provide that the vacancies not filled up shall be carried
over to the next selection.(4) In the same contingency, instead of providing
for the carrying over of the said vacancies to the next selection, the said
vacancies may be filled up by candidates belonging to castes other than the
Scheduled Castes and the Scheduled Tribes ;
but the seats reserved to the Scheduled
Castes and Tribes but not filled up by them may be added to those reserved for
them in the next selection. (5) The State, instead of applying the principle of
"carry forward", may provide that if the applicants belonging to the
said Castes and Tribes are not sufficient in the first selection to come up to
the percentage reserved, a larger percentage ,of candidates belonging to the
Scheduled Castes and the Scheduled Tribes shall be selected in the next year or
the year after. (6) Instead of specifically making any reservation in the cadre
strength, the State may adopt one or other of the aforesaid provisions for the
reservation till such time the State is satisfied that the said Castes and
Tribes have secured a proper representation in a particular service. The above
provisions for reservation are only illustrative there may be more effective
and equitable methods other than the said provisions. Any one of the said
provisions, however reasonably framed, would inevitably cause hardship to some
candidates from the non-Scheduled Castes and non-Scheduled Tribes in the sense
that some of them would have been selected but for the reservation, but
nonetheless it cannot be said that the provisions are not provisions for
reservation of seats for the Scheduled Castes and the Scheduled Tribes.
705 In the instant case, the State made a
provision, adopting the principle of "carry forward". Instead of
fixing a higher percentage in the second and third selection based upon the
earlier results, it directed that the vacancies reserved in one selection for
the said Castes and Tribes but not filled up by them but filled up by other
candidates, should be added to the quota fixed for the said Castes and Tribes
in the next selection and likewise in the succeeding selection. As the posts
reserved in the first year for the said Castes and Tribes were filled up by
non-Scheduled Caste and non-Scheduled Tribe applicants, the result was that in
the next selection the posts available to the latter were proportionately
reduced. This provision certainly caused hardship to the individuals who applied
for the second or the third selection, as the case may be, though the non Scheduled
Castes and non-Scheduled Tribes taken as one unit, were benefited in the
earlier selection or selections. This injustice to individuals, which is
inherent in any scheme of reservation, cannot, in my view, make the provision
for reservation any the less a provision for reservation.
There are no merits in the contention that
the principle of "carry forward" has resulted in the -third year in
the selection of candidates belonging to the Scheduled Castes and the Scheduled
Tribes to a tune of 80 per centum of the total applicants for that year and,
therefore, the selection amounted to destruction of the fundamental right. If
reservation was within the competence of the State, I do not see how the said fortuitous
circumstance would affect the reservation so made. Suppose for two selections
there were no candidates from the Scheduled Castes and the Scheduled Tribes and
the vacancies reserved for them were filled up by candidates belonging to
castes other than the Scheduled Castes and the Scheduled Tribes. In the third
year the State reserved all the posts or most of the posts for the Scheduled
Castes and the Scheduled Tribes, having regard to the actual position of the
said Castes and Tribes in the cadre. This is certainly a provision for
reservation. The effect of the operation of the principle of "carry
forward" is practically the same. Reservation made in one selection or
spread over many selections is only a convenient method 706 of implementing the
provision of reservation. Unless it is established that an unreasonably
disproportionate part of the cadre strength is filled up with the said Castes
and Tribes, it is not possible to contend that the provision is not one of
reservation but amounts to an extinction of the fundamental right. There is
neither an allegation nor evidence in this case to that effect.
If the provision deals with reservation-which
I hold it does-I do not see how it will be bad because there will be some deterioration
in the standard of service. It is inevitable in the nature of reservation that
there will be lowering of standards to some extent; but on that account the
provision cannot be said to be bad. Indeed, the State laid down the minimum
qualifications and all the appointments were made from those who had the said
qualifications. How far the efficiency of the administrations suffers by this
provision is not for me to say, but it is for the State, which is certainly
interested in the maintenance of standards of its administration.
Strong reliance is placed by the petitioner
on the decision in M. R. Balaji v. State of Mysore(1) in support of the
contention that, whenever a State makes a reservation for backward classes of
over 50 per centum of the posts in a single selection, such a provision is not
one of reservation but of destruction of the fundamental right. If that
decision decided to that effect, I would be bound by it. A careful perusal of
that judgment discloses that this Court did not lay down any such proposition.
In that case, 68 per centum of seats in colleges were reserved for backward
communities. It was contended before this Court on behalf of the petitioners
therein that the impugned order which had been passed under Art. 15(4) of the
Constitution, was not valid, because the basis adopted by the order in
specifying and enumerating the socially and educationally backward classes of
citizens in the State was unintelligible and irrational and that the
classification made was inconsistent with, and outside, the provisions of Art.
15(4). It was also urged by them that the extent of reservation prescribed by
the said order was so unreasonable and extravagant that the order was A [1963]
Supp, I S.C.R. 439.
707 fraud on the constitutional power conferred
on the State.
Gajendragadkar, J., speaking for the Court,
gave the following reasons for holding that the provisions so made were
contrary to Art. 15(4) of the Constitution: (1) The concept of backwardness is
not intended to be relative in the sense that any classes who are backward in
relation to the most advanced classes of the society should be included in it:
the test of backwardness must be social and
educational. (2) The criteria adopted by the State in ascertaining the social
backwardness of a community and its educational backwardness were neither
correct nor sound. (3) The sub-classification made by the order between
backward classes and more backward classes does not appear to be justified
under Art. 15(4).
The learned Judge traced the history of the
order, considered all the relevant circumstances and held that reservation of
68 per centum in the circumstances of the case was a fraud on the
constitutional power conferred on the State by Art. 15(4) of the Constitution.
It would, therefore, be seen that the judgment of this Court was based mainly
upon two grounds, namely, the State had adopted a wrong criteria for
ascertaining who were backward classes and also on the ground that the State
committed a fraud on its constitutional power. In the present case it is not
disputed that the Scheduled Castes and the Scheduled Tribes are backward
classes and there is no material on which I can hold that the Government
committed a fraud on the constitutional power conferred on it. The only
observations on which learned counsel for the respondent can rely are the
following found at p. 470 :
"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 are reluctant to say
definitely what would be a proper provision to make. Speaking generally and in
a broad way, a special provision should be less than 50 per cent, how much less
than 50 per cent. would depend upon the relevant prevailing circumstances in
each case." 708 These general observations made in the context of
admissions to college cannot, in my view, be applied in the case of a
reservation of appointments in the matter of recruitment to a cadre of
particular service. The doctrine of "destruction" of the fundamental
right depends upon the entire cadre strength and the percentage reserved out of
that strength. Further, the expression used in the observations, Viz.
"generally" and "broadly", show that the observations were
intended only to be a workable guide but not an inflexible rule of law even in
the case of admissions to colleges.
I cannot, therefore, hold that in the present
case the provision made by the State was not for reservation but for a purpose
not sanctioned by the Constitution. In the result, the writ petition is
dismissed with costs.
ORDER BY COURT In accordance with majority
opinion the Writ Petition is allowed with costs.
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