State of Punjab Vs. Hiralal & Ors
[1970] INSC 257 (18 December 1970)
18/12/1970 HEGDE, K.S.
HEGDE, K.S.
SHAH, J.C. (CJ) GROVER, A.N.
CITATION: 1971 AIR 1777 1971 SCR (3) 267 1970
SCC (3) 567
ACT:
Constitution of India, Art. 16(1) &
(4)-Reservation for backward classes made applicable to initial appointments as
well as promotions Validity of.
HEADNOTE:
The appellant-State issued an Order according
to which reservation of posts for Scheduled castes. tribes and backward classes
was made applicable not only to initial recruitment but also to promotions.
Respondents 1 and 3 were in the 'State Government service and the former was
the senior. But since the latter belonged to a scheduled caste he was promoted
over. the first respondent as per the Order.
The High Court quashed the promotion on the
basis that such reservation might lead to various anomalies.
In appeal to this Court,
HELD : Article 16(1) provides for equality of
opportunity to all citizens in relation to appointment to any office in the
service of the State subject to the exception in Art. 16(4) that the State may
make reservations in favour of backward classes. The reservation contemplated
by Art. 16(4) can be made not merely to initial recruitment but also to Posts
to which promotions are to be made. Every such reservation under Art. 16(4)
does introduce an element of discrimination and promotion of junior officers
over seniors; but the Constitution makers thought fit, in the interests of
society as a whole, that backward classes should be afforded some protection.
If, however, the reservation under Art. 16(4) makes the rule in Art. 16(1)
meaningless the decision of the State would be open to judicial review; but the
burden of establishing that a particular reservation is offensive to Art. 16(1)
is on the person who takes the plea. [271 C, E, 272 D-G, 273 D-F] In the
present case, there was no material from which it could be concluded that the
impugned Order violated Art.
16(1). The reservation could not be struck
down on hypothetical grounds or on imaginary possibilities. [273 H] General
Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586 and A.
Peeriakarupan etc. v. State of Tamil Nadu, [1971] 2 S.C.R. 430, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1218 of 1968.
Appeal from the judgment and order dated
November 29, 1966 of the Punjab High Court in Civil Writ No. 271 of 1966.
M. C. Setalvad and R. N. Sachthey, for the
appellant.
The respondent did not appear.
268 The Judgment of the Court was delivered
by Hegde, J.-On September 12, 1963, the Government of Punjab passed the
following order :
"Subject :-Reservation for the members
of Scheduled Castes, Scheduled Tribes and Backward Classes in promotion cases.
Sir, I am directed to refer you to the
subject noted above and to say that at present reservation for Scheduled
Castes, Scheduled Tribes and other Backward Classes is applicable to new
appointments and not to promotions which are governed by consideration of merit
and seniority alone. Since those castes/classes are poorly represented in
various services in the upper grades under the State Govt.-it has been under
the active consideration of Government that some reservation in higher grade
posts as well should be made for them. It has now been decided that except in the
case of All India Services 10 per cent of the higher posts to be filled by
promotion should be reserved for the members of Scheduled Castes, Scheduled
Tribes and Backward Classes (9 per cent for the' members of Scheduled Castes
and Scheduled Tribes and 1 per cent for the Backward Classes) subject to the
following conditions:
(a) the persons to be considered must possess
the minimum necessary qualification; and (b) they should have at least a
satisfactory record I of service." Up till that date reservation for
Scheduled Castes.
Scheduled Tribes and Backward Classes were
confined to initial recruitment. The first out of every five initial
recruitments was reserved for, Scheduled Castes, Scheduled Tribes or other
Backward Classes.
On January 14, 1964, the Government clarified
its order dated September 12, 1963. In this case we are not concerned with the
first paragraph of that clarification. The second paragraph of that
clarification reads thus :
"Government have since been receiving
references from several quarters seeking clarification in regard to the
implementation of the said decision. After careful consideration of the matter,
it has now been decided that :(a) The said decision should be applied to all
promotion posts already vacant on 12th September, 1963, or falling vacant
thereafter.
269 (b) The reservation should not imply that
10 per cent of the total posts reserved for promotion in any cadre have to be
filled by Scheduled Castes personnel in the sense that all existing/ future
vacancies will be filled up by Scheduled Castes/Tribes and other Backward
Classes candidates until their share in higher services comes up to 1 0 per
cent.
(c) This provision of reservation applies to
all State. Services including Class 1, II, III, and IV posts, the only
exception being All India Services.
(d) This reservation should apply even in the
case of short term leave vacancies unless it is likely to involve unnecessary
dislocation of work in different offices and avoidable expenditure and
inconvenience due to mid-year transfers etc.
(e) So far as Scheduled Castes/Tribes are
concerned, the very first vacancy existing on/arising after the 12th September,
1963, should retreated as reserved for them and only if no such official is
available for promotion against the vacancy reserved for them in the first
block of 10 vacancies, a candidate belonging to other Backward Classes may be
selected in preference to the remaining officials against one such post only
out of one hundred, since the reservation for other Backward Classes may not
exceed I per cent.
However, if Sheduled Castes/ Tribes
candidates are available to fill one out of every ten vacancies, the specific
reservation in favour of other Backward Classes should be the, 51st vacancy.
(f) One reserved vacancy should be carried
over to the next block of ten vacancies in case it cannot be filled up within
any block of ten posts. Thus, if no Scheduled Castes/Tribes/Backward Classes
candidate is promoted against any of the first 10 vacancies the number of
vacancies available to such candidates in the following block will betwo.
(g) In case an out of turn promotion has
already been given to a candidate belonging to Scheduled Castes/Tribes or
Backward Classes against a reserved vacancy and then in the same block it happens
to be the turn of a candidate belonging 270 to the said castes/classes for
promotion, such candidate should not be ignored on the ground that 10 per cent
reservation has already been exhausted." Thereafter by another letter of
March 18, 1964, the Government issued further clarification of their
aforementioned communications. That clarification reads "To illustrate the
above point if there is an official of the Scheduled Castes placed at a
position say 73rd in a list prepared for promotion to the higher parts and a
vacancy arises therein, he would have precedence over the other 72 officials to
benefit out of the first vacancy that occurs on or after 12th September, 1963.
Ms turn would not be withheld merely for the fact that his number on the select
list is not in the first ten." Respondents Nos. 1 and 3 to this appeal
were both working in the Forest Department of the Government as Head
Assistants.
Respondent No. 1 was senior to Respondent No.
3 Respondent No. 3 belonged to a Scheduled Caste. Hence in view of the order of
the Government, Respondent No. 3 was promoted temporarily as Superintendent
ignoring the claim of Respondent No. 1. 'Aggrieved by that order Respondent No.
1 moved the High Court of Punjab to quash the promotion of Respondent No. 3 and
direct the Government to promote him as Superintendent in the place of
Respondent No. 3. The High Court has quashed the promotion of Respondent No. 3.
The State of Punjab (now substituted by the State of Haryana) has brought this
appeal after obtaining a certificate from the High Court under Art. 133(1)(c)
of the Constitution.
In the opinion of the High Court reservation
made for the .Scheduled Castes, Scheduled Tribes and Barckward Classes is not
impermissible under the Constitution in view of Art., 16(4) of the Constitution
as interpreted by this Court in The General Manager, Southern Railway v. Rangachari.(1)
But the Government has violated Art. 16(1) by reserving the first out of a
group of 10 posts for the Scheduled Castes, Scheduled Tribes and Backward
Classes.
The High Court was persuaded by the Counsel
for the first respondent to visualise various hypothetical cases under which
reservation of the type impugned in the present case could lead to various
anomalies such as the person getting the 'benefit of the reservation may jump
over the heads of several of his Seniors not only in his own grade but even in
the higher grades.. They visualised the possibility of Head Assistant leaping
,over the heads of several seniors of his in the grade of Head (1) [1962]
2.S.C.R.586.
271 Assistants and thereafter in the grade of
Superintent;
subsequently in the grade of
Under-Secretaries, Deputy Secretaries and so on and so forth. It is not the
finding of the High Court that in any of the grades to which the impugned
orders apply, the possibilities visualised by the High Court are imminent or
even likely.
Art. 16(1) is an extension of Art. 14. It
provides "There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the
State." But the equality contemplated by this clause is not an embodied
equality. It is subject to several exceptions and one of the exceptions is that
provided in Art. 16(4) which says :
"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
Rangachari's case(1) this Court ruled that the reservation contemplated by Art.
16(4) can be made not merely to initial recruitment but also to posts to which
the promotions are to be made. This is what Gajendragadkar J.
(as he then was) speaking for the majority
observed (at pp.
604 & 605) :
"We must in this connection consider an
alternative argument that the word posts must refer not to 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 (1) [1962]
2S.C.R.586.
272 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 find 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 provided 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-markers to make
adequate safeguard for the advancement of backward classes and to secure for
their adequate representation in the services." The extent of reservation
to be made is primarily a matter for the State to decide. By this we do not
mean to say that the decision of the State is not open to judicial. review.
The reservation must be only for the purpose
of giving adequate representation in the services to the Scheduled Castes,
Scheduled Tribes and Backward Classes. The exception provided in Art. 16(4)
should not make the rule embodied in Art. 16(1) meaningless. But the burden of
establishing that a particular reservation made by the State is offensive to Art.
16(1) is on the person who takes the plea. The mere fact that the reservation
made may give extensive benefits to some of the persons who have the benefit of
the reservation does not by itself make the reservation bad. The length of the
leap to be provided depends upon the gap to be covered. As observed by the
majority in Rangachari's case(1) :
"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 (1) [1962] 2 S.C.R. 586.
273 not only that they should have adequate
representation in the lowest rung of services but that they should aspires 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." It is true that every reservation under Art. 16(4) does introduce
an element of discrimination particularly when the question of promotion
arises. It is an inevitable consequence of any reservation of posts that junior
officers are allowed to take a march over their seniors. This circumstance is
bound to displease the senior officers. It may also be that some of them will get
frustrated but then the Constitution makers have thought fit in the interes's
of the society as a whole that the backward class of citizens of this country
should be afforded certain protection as observed by this Court in A.
Peeriakaruppan etc. V. State of Tamil Nadu(1):
"It cannot be denied that unaided many
sections of this country cannot compete with the advanced sections of the
Nation.
Advantages secured due to historical reasons
should not be considered as fundamental rights. Nation's interest will be best
served taking a long range view-if the backward classes are helped to march
forward and take their place in line with the advanced sections of the
people." There was no material before the High Court and there is no
material before us from which we can conclude that the impugned order is
violative of Art. 16(1). Reservation of appointments under Art. 16(4) cannot be
struck down on hypothetical (1) [1971] 2 S.C.R.430.
807Sup.CI/71 274 grounds or on imaginary
possibilities. He who assails the reservation under that Art. must
satisfactorily establish that there has been a violation of. Art. 16(1).
For the reasons mentioned above this appeal
is allowed and the order of the High Court set aside. Respondent No. 1 who was
the petitioner before, the High Court is not represented before this Court. In
the circumstances of this case we make no order as to costs.
V. P. S.
Appeal allowed.
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