State of Kerala & ANR Vs. N. M.
Thomas & Ors [1975] INSC 224 (19 September 1975)
RAY, A.N. (CJ) RAY, A.N. (CJ) KHANNA, HANS
RAJ MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH KRISHNAIYER, V.R.
GUPTA, A.C.
FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 490 1976 SCR (1) 906 1976
SCC (2) 310
CITATOR INFO :
R 1977 SC 251 (34) F 1978 SC 771 (10,211) RF
1978 SC1457 (38) R 1980 SC 452 (57) E 1980 SC 820 (17,29,30) RF 1980 SC1230
(15) RF 1980 SC1896 (45) RF 1981 SC 212 (33) R 1981 SC 298
(28,41,72,74,75,76,78,82,83,11 R 1981 SC 588 (13) R 1981 SC2045 (25) R 1984 SC
326 (9) E&R 1985 SC1495 (17,24,51,68,132,149) R 1987 SC 537 (21) RF 1988 SC
959 (11,12) R 1992 SC 1 (88)
ACT:
Kerala State Subordinate Service Rules, 1958,
r. 13AA- Constitutional valiadity of.
Constitution of India, 1950-Arts 16, 46 and
335-Scope of.
Scheduled Casters and Scheduled Tribes-If a
caste- Exemption granted from passing special departmental tests-If violative
of Art. 16.
HEADNOTE:
Rule 13(a) of the Kerala State Subordinate
Services Rules 1958, provides that no person shall be eligible for appointment
to any service or any post unless he possessed such special qualifications and
has passed such special tests as may be prescribed in that behalf in the
Special Rules.
For promotion of a lower division clerk to
the next higher post of upper division clerk, the Government made it obligatory
for an employee to pass the special departmental tests. Rule 13A which was
introduced sometime later, gave temporaury exemption from passing the
departmental tests for a period of two years. The rule also provided that an
employee who did not pass the unified departmental tests within the period of
two years from the date of introduction of the test would be reverted to the
lower post and further said that he shall not again be eligible for appointment
under this rule. Proviso 2 to this rule gave temporary exemption of two years
in the case of Scheduled Castes and Scheduled Tribes candidates. A Harijan
Welfare Association represented to the State Government that a large number of
Harijan employees in the State service were facing immediate reversion as a
result of this rule and requuested the Government to grant exemption in respect
of Scheduled Castes and Scheduled Tribes employees from passing the obligatory
departmental tests for a period of two years with immediate effect.
Accordingly, the State Government introduced rule 13AA giving further exemption
of two years to members belonging to Scheduled Tribes and Scheduled Castes in
the service from passing the tests referred to in r. 13 or r.
13A Respondent no. 1 passed the special tests
in November, 1971. The other respondents belonging to Scheduled Castes and
Scheduled Tribes were promoted as Upper Division Clerks even though they had
not passed the prescribed tests Respondent no. 1 who was not promoted in spite
of the fact that he had passed the urequisite tests moved the High Court under
Art. 226 of the Constitution seeking a declaration that r. 13AA under which
exemption had been granted to the other respondents in the matter of promotion
was violative of Art. 16 of the Constitution. The High Court struck down the
imugned rule as violative of Art. 16(1) and (2) and Art.
335 of the Constitution.
Allowing the State's appeal to this Court,
[Per majority, Ray C.J., Mathew, Beg Krishna Iyer, S.
M. Fazal Ali, JJ.; Khanna and Gupta. JJ.
dissenting] ^
HELD: (Per Ray C.J.) The classification of
employees belonging to Scheduled Castes and Scheduled Tribes for allowing them
an extended period of two years for passing the special tests for promotion is
a just and reasonable classification haring rational nexus to the object of
providing equal opportunity for all citizens in matters relating to employment
or appointment to public offices.
[930H] 907 (1) Articles 14, 15 and 16 form
part of a string of constitutionally guaranteed rights. These rights supplement
each other. Article 16 is an incident of guarantee of equality contained in
Art. 14. Both Articles 14 and 16(1) permit reasonable classification having a
nexus to the objects to be achieved. Under Art. 16 there can be a reasonable
classification of the employees in matters relating to employment or
appointment. [926F] State of Gujarat and Anr. etc. v. Shri Ambica Mills Ltd.
Ahmedabad etc. A.I.R. 1974 S.C. 1300, referred to.
(2) Equality is violated if it rests on an
unreasonable basis. The concept of equality has an inherent limitation arising
from the very nature of the constitutional guarantee. Those who are similarly
circumstanced are entitled to equal treatment. Classification is to be founded
on substantial differences which distinguish persons grouped together from
those left out of the groups and such differential attributes must bear a just
and rational relation to the object sought to be achieved. [927 C] (3) If there
is a rational classification consistent with the purpose for which such
classification is made equality is not violated. The categories of
classification for purposes of promotion can never be closed on the contention
that they are all members of the same cadre in service. If classification is
made on educational qualifications for purposes of promotion or if
classification is made on the ground that the persons are not similarly
circumstanced in regard to their entry into employment such classification can
be justified. [927E-F] C. V. Rajendran v. Union of India [1968] 1 S.C.R. 721,
followed.
(4) Art 1.(1) does not bar a reasonable
classification of employees or reasonable tests for their selection. There is
no denial of equality of opportunity unless the person who complains of
discrimination is equally situated with the. person or persons who are alleged
to have been favoured. [928 F] State of Mysore v. V. P. Narasinga Rao [1968] 1
S.C.R.
407, referred to.
(5) Under Art. 16(1) equality of opportunity
of employment means equality as between members of the same class of employees
and not equality between. members of separate, independent class. The present
case does not create separate avenues of promotion for these persons. [928 F]
All India Station Masters and Assistant Station Masters' Association v. General
Manager, Central Railways [1960] 2 S.C.R. 311, referred to.
(6) The Legislature understands and
appreciates the needs of its own people that its laws are directed to problems
made manifest by experience and that its discriminations are based upon
adequate grounds. The rule of classification is not a natural and logical
corollary of the rule of equality, but the rule of differentiation is inherent
in the concept of equality. Equality means parity of treatment under parity of
conditions. Equality does not connote absolute equality. A classification, in
order to be constitutional, must rest upon distinctions that are substantial
and not merely illusory. The test is whether it has a reasonable basis free
from artificiality and arbitrariness embracing all and omitting none naturally
falling into that category. [929 D] Govind Dattatray Kelkar v. Chief Controller
of Imports, [1967] 2 S.C.R. 29; Ganga Ram v. Union of India [1970] 1 S.C.C. 377
and Roshan Lal Tandon v Union of India [1968] I S.C.R. 185, referred to.
(7) The relevant touchstone of validity is to
find out whether the rule of preference secures adequate representation for the
unrepresented backward community or goes beyond it. [930 G] (8) The historical
background of the rules justifies the classification of the personnel of the
Scheduled Castes and Scheduled Tribes for the purpose of granting them
exemption from special tests with a view to ensuring them the 908 equality of
treatment and equal opportunity in matters of employment having regard to their
backwardness and under- representation in the employment of he State. [931 C]
(9) (a) The Constitution makes a classification of Scheduled Castes and
Scheduled Tribes in numerous provisions namely Arts. 46, 335, 338 and 341 and
gives a mandate to the State to accord special or favoured treatment to them.
[931 D] (b) The impugned rule and the orders are related to this constitutional
mandate. Without providing for relaxation of special tests for a temporary
period it would not have been possible to give adequate promotion to the Lower
Division Clerks belonging to the Scheduled Castes and Scheduled Tribes to the
posts of Upper Division Clerks. The temporary relaxation of test qualification
made in favour of the Scheduled Castes and Scheduled Tribes is warranted by
their inadequate representation in the services and their overall backwardness.
The classification of the members of the Scheduled Castes and Scheduled Tribes
made under r. 13AA is within the purview of constitutional mandate under Art.
335 in consideration of their claims to
redress imbalance in public service and to bring, about parity in the
communities in the. public services. [931H; 932A-B] (10) Scheduled Castes and
Scheduled Tribes are not a caste within the ordinary meaning of castes. [932 E]
Bhaiyalal v. Harikishan Singh and Ors. [1965] 2 S.C.R.
877, referred to (11)(a) our Constitution
aims at equality of status and opportunity for all citizens including those who
are socially, economically and educationally backward. The claims of members of
backward classes require adequate representation in legislative and executive
bodies. If members of Scheduled Castes and Scheduled Tribes who are said by
this Court to be backward classes, can maintain minimum necessary requirement
of administrative efficiency, not only representation but also preference may
be given to them to enforce equality and to eliminate inequality. [932G- H] (b)
Equality of opportunity for unequals can only mean aggravation of inequality.
Equality of opportunity admits discrimination with reason and prohibits
discrimination without reason. Preferential representation for the backward
classes in services with due regard to administrative efficiency is a
permissible object and backward classes are a rational classification
recognised by the Constitution.
Therefore, differential treatment in
standards of selection is within the concept of equality. [933B-C] (c) The rule
in the present case does not impair the test of efficiency in administration
inasmuch a., members of Scheduled Castes and Tribes who are promoted have to
acquire the qualification of passing the test. The only relaxation which is
done in their case is that they are granted two years more time than others to acquire
the qualification.
[933 D] (12) (a) Equal protection of laws
necessarily involves classification. The validity of the classification must be
adjusted with reference to the purpose of the law. [933 G] (b) The
classification in the present case is justified because the purpose of
classification is to enable members of Scheduled Castes and Scheduled Tribes to
find representation by promotion to a limited extent From the point of view of
time a differential treatment is given to members of Scheduled Castes and
Tribes for the purpose of giving them equality consistent with efficiency. [933
H] (13) The High Court was wrong in basing its conclusion that the result of
application of the impeached rule and the orders is excessive and exorbitant.
The promotions made in services as a whole are nowhere near 50% of the total
number of posts. It is correct that r. 13AA and the orders are meant to
implement not only the direction under Art. 335 but also the directive
principle under Art. 46. [932C-D] 909 Per Mathew, J.
(1) The concept of equality of opportunity is
an aspect of the more comprehensive notion of equality. The idea of equality
has different shades of meaning and connotations.
It has many facets and implications. [948 A]
(2) The notion of equality of opportunity has meaning only when a limited
number of posts as in the present case should be allocated on grounds which do
not a priori exclude any section of citizens of those that desire it. A priori
exclusion means exclusion on grounds other than those appropriate or rational
for the good in question. The notion requires not merely that there should be
no exclusion from access on grounds other than those appropriate or rational
for the good in question but the grounds considered appropriate for the good should
themselves be such that people from all sections of society have an equal
chance of satisfying them. [950A-B] (3) To give equality of opportunity for
employment to the members of Scheduled Castes and Scheduled Tribes, it is
necessary to take note of their social, educational and economic environment.
Not only is the Directive Principle embodied in Art. 46 binding on the
law-maker as ordinarily understood but it should equally inform and illuminate
the approach of the Court when it makes a decision as the Court also is `State'
within the meaning of Art. 12 and makes law even though interstitially. [951 E]
His Holiness Kesavananda Bharati Sripadagalayaru v.
State of Kerala and Another, etc. [1973]
Supp. S.C.R. 1, referred to.
(4) Equality of opportunity is not simply a
matter of legal equality. Its existence depends not merely on the absence of
disabilities but on the presence of abilities.
[951 F] (5) The guarantee of equality before
the law or the equal opportunity in matters of employment is a guarantee of
something more than what is required by formal equality. It implies
differential treatment of persons who are unequal.
Egalitarian principle has, therefore.
enhanced the growing belief that Government has an affirmative duty to
eliminate inequalities and to provide opportunities for the exercise of human
rights and claims. [951 H] (6) Fundamental Rights as enacted in Part III of the
Constitution are, by and large, essentially negative in character. They mark
off a world it which time Government should have no jurisdiction. In this
realm, it was assumed that a citizen has no claim upon Government except to be
let alone.[952 A] (7)(a) But the language of Art. 16(1) is in marked contrast
with that of Art. 14. Whereas the accent in Art 14 is on the injunction that
the State shall not deny to any person equality before the law or the equal
protection of the laws, that is, on the negative character of the duty of the
State, the emphasis in Art. 16(1) is on the mandatory aspect. [952 B] (b) If
equality of opportunity guaranteed under Art.
16(1) means effective material equality, then
Art. 16(4) is not an exception to Art. 16(1). It is only all emphatic way of
putting the extent in which equality of opportunity could be carried namely
even upto the point of making reservation.
[956] (c) Art. 16(1) is only a part of a
comprehensive scheme to ensure equality in all spheres. It is an instance of
the application of the larger. concept of equaliy under the law embodied in
Arts. 14 and 15. Article 16(1) permits of classification just as Art. 14 does.
But, by the classification, there can be no discrimination on the ground only
of race, caste and other factor mentioned in Art.
16(2). [951 F] S.C. Jaisighani v. Union of
India & Ors. [1967] 2 S.C.R. 703 at 712: State of Mysore & Anr. v. P.
Narasing Rao [1968] 1 S.C.R. 407 at 410 & C. A. Rajendran v. Union of India
& Ors. [1968] 1 S.C.R. 721, at 729 referred to.
910 (d) The word `caste' in Art. 16(2) does
not include Scheduled Castes. The definition of Scheduled Castes' in Art.
366(24) shows that it is by virtue of the notification of the President that
the Scheduled Castes come into being.
Though the members of the Scheduled Castes
are drawn from castes, races or tribes, they attain a new status by virtue of
the Presidential notification. Moreover, though the members of tribe might be
included in Scheduled Castes, tribe as such is not mentioned in Article 16(2).
[957 A] (e) Article 16(1) and Art 16(2) do not prohibit the prescription of a
reasonable qualification for appointment or for promotion. Any provision as to
qualification for employment or appointment to are office reasonably fixed and
applicable to all would be consistent with the doctrine of equality of
opportunity under Art. 16(1). [957 E] The General Manager, Southern Railway v.
Rangachari [1962] 3.S.C.R. 586 referred to (8) Today, the sense that Government
has affirmative responsibility for elimination of inequalities, social,
economic or otherwise, is one of the dominant forces in constitutional law.
[952 E] (9) The concept of equality of opportunity in matters of employment is
wide enough to include within it compensatory measures to put the members of
the Scheduled Castes and Scheduled Tribes on par with the members of other
communities which would enable them to get their share of representation in
public service. [954 E] (10) If reservation is necessary either at the initial
stage or at the stage of promotion or at both to ensure for the members of the
Scheduled Castes and Scheduled Tribes equality of opportunity in the matter of
employment. there is no reason why that is not permissible under Art. 16(1) as
that alone might put them on a parity with the forward communities in the
matter of achieving the result which equality of opportunity would produce. Equality
of result is the test of equality of opportunity. [954 G-H] (11) The State can
adopt any measure which would ensure the adequate representation in public
service of the members of the Scheduled Castes and Scheduled Tribes and justify
it as a compensatory measure to ensure equality of opportunity provided the
measure does not dispense with the acquisition of the minimum basic
qualification necessary for the efficiency of administration.[956 D] (12) It is
a mistake to assume a priori that there can be no classification within a
class, say, the Lower Division Clerks. If there are intelligible differentia
which separate a group within that class from the rest and that differentia
have nexus with the object of classification, there is no objection to a further
classification within the class. [957 C] All India Station Masters and
Assistant Station Masters Association v. General Manager Central Railway and
others [1960] 2 S.C.R. 311, S. C. Jaisingjamoi v. Union of India and others
[1967] 2 S.C.R. 703 at 712 & State of Jammu & Kashmir v. Triloki Nath
Khosa & others [1974] 1 S.C.R. 771 held inapplicable.
(13) In the instant case Rule 13AA has been
enacted not with the idea of dispensing with the minimum qualification required
for promotion to a higher category or class, but only to give enough breathing
space to enable the members of Seheduled Castes and Scheduled Tribes to acquire
it. The purpose of the classification made in r. 13AA is to enable them to have
their due claim of representation in the higher category without sacrificing
the efficiency implicit in the passing of the test. [958 B] (14) The
classification made in r. 13AA has a reasonable nexus with the purpose of the
law. Rule 13AA is not intended to give permanent exemption to the members of
Scheduled Castes and Scheduled Tribes from passing the test but only reasonable
time to enable to them to do so. That the power is liable to be abused is no
reason to hold that the rule itself is bad. [958 E] 911 Per Beg J.
The only ground given by the High Court for
refusing to give the benefits of the impugned rules and orders to the backward
class Government servants, that they fall outside the purview of Art. 16(4) was
not substantiated. The respondent has not discharged the burden establishing a
constitutionally unwarranted discrimination against him.
[963 H] (1) When citizens are already
employed in a particular grade as government servant considerations relating to
the sources from which they were drawn lose much of their importance. Neither
as members of a single class nor for purposes of equality of opportunity which
is to be afforded to this class does the fact that some of them also members of
economically and socially backward class continue to be material or, even
relevant. Their entry into the me relevant class as others must be deemed to
indicate that they no longer suffer from the handicaps of a backward class. For
purposes of Government service the source from which they are drawn should
cease to matter. As Government servants.
they would form only one class for the
purpose of promotion.
[960A-B] (2) (a) The specified and express
mode of realisation of the objects contained in Art. 16(4), must exclude the
possibility of the methods which could be implied and read into Art. 16(1) for
securing them in this field the applicable maxim being `expressio unius est
exclusio alterius". [960 H] (2) (b) The purpose of equality of opportunity
by means of tests is only to ensure a fair competition in securing posts and
promotions in Government service, and not the removal of causes for unequal
performances in competitions for these posts or promotions. [960 H] (3) Article
16(4) is designed to reconcile the conflicting pulls of Art. 16 (1)
representing the dynamics of justice conceived of as equality in conditions
under which candidates actually compete for posts in Government service and of
Arts. 46 and 355 embodying the duties of the State to promote the interests of
the economically educationally and socially backward so as to release them from
the clutches of social injustice. These encroachments on the field of Art.
16(1) can only be permitted to the extent they are warraned by Art. 16(4). To
read broader concepts of social justice and equality into Art. 16(1) may
stultify this provision and make Art. 16(4) otiose. [961C-D] (4) It would be
dangerous to extend the limits of protection against the operation of the
principle of equality of opportunity in this field beyond its express
constitutional authorisation by Art. 16(4). [959 G] (5) But if the impugned rules
and orders could be viewed as an implementation of a policy of qualified or
partial or conditional reservation which could satisfy the requirements of
substantial equality in keeping with Art.
335 and meet the demands of equality and
justice looked from the point of view of Art. 46 of the Constitution, they
could also be justified under Art. 16(4) of the Constitution. [963 B-C] (6)
Though the respondent was not promoted in spite of passing the efficiency test
earlier the backward class employees who were given preference over him, were
discharging their duties in the higher grade quite satisfactorily and were his
seniors in service. Taking and passing of a written test earlier than another
employee could not be the sole factor to consider in deciding upon a claim to
superiority or to preference on grounds of merit and efficiency for promotion
as a government servant. [962A- B] (7) The effect of the relaxation is that a
backward class employee continues in the post temporarily for a longer period
before being either confirmed or reverted. For this period, the post remains
reserved for him. If he does not satisfy the efficiency tests even within the
extended period he has to revert to the lower grade. If he does satisfy the
special efficiency tests. in this extended period. he is confirmed in the class
of promotees into which he obtained entry because of a reservation. One of the
dictionary meanings of the word 912 `reserve' is "to keep back or hold
over to a later time or place for further treatment etc." The result of
the rule therefore is a kind of reservation.
(8) If reservation of posts under Art 16(4)
for employees of backward classes could include complete reservation of higher
posts to which they could he promoted, there is no reason why it could not be
partial or for a part of the duration of service and hedged round with the
condition that a temporary. promotion would operate as a complete and confirmed
promotion only if the temporary promotee satisfies some tests within a given
time. [963 A] In the instant cases apart from the fact that it is only one of
partial or temporary and conditional reservation, it is disputed here that the
favoured class of employees constituted more than 50% of the total number of
Governments servants of this class (Clerks) if the overall position is taken
into account. Furthermore, a large number of temporary promotions of backward
class Government servants of this grade had taken place in 1972 in the
Department because promotions of this class of employees had been held up in
the past due to want of necessary provision in the rules. The totality of facts
of this case to want of necessary provision in the rules. The totality of facts
of this case is distinguishable in their effects from those in T. Devadasan v.
Union of India [1964] 4 S.C.R. 680 and M.R.
Balaji & Ors. v. State of Mysore [1963]
Suppl. 1 S.C.R. 439.
[963 D-F] Per Krishna Iyer. J.
(1) The Indian Constitution is a great social
document, almost revolutionary in its aim of transforming a medieval,
hierarchical society into a modern, egalitarian democracy.
Its provisions can be comprehended only by a
specious, social-science approach, not by pedantic, traditional legalism. [964
E] (2) (a) The Preamble to the Constitution silhouettes a 'justice-oriented'
community. The Directive Principles of State Policy, enjoin on the State the
promotion 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 protect them from social injustice. To neglect this
obligation is to play truant with Art. 46. Economic interests of a group-as
also social justice to it-are tied up with its place in the services under the
State. [974 A-B] (b) The unanimous opinion of this Court in Keshavananda
Bharti's case is that the Court must wisely read the collective Directive
Principles of Part IV into the individual fundamental rights of Part III,
neither part being superior to the other. In this case, the supplementary
theory, treating both Parts as fundamental, gained supremacy. [977 A] (c) The
upshot is that Art. 46 has to be given emphatic expression while interpreting
Art. 16(1) and (2). Indeed Art. 335 is more specific and cannot be brushed
aside or truncated in the operational ambit vis a vis Arts. 16 (1) and (2)
without hubristic aberration. [977 F-G] (3) The conclusions that could be drawn
from the provisions of the Constitution are: (1) The Constitution itself
demarcates harijans from others. (2) This is based on the stark backwardness of
this bottom layer of the community. (3) The differentiation has been made to
cover specifically the area of appointments to posts under the State. (4) The
twin objects blended into one, are claims of harijans to be considered in such
posts and the maintenance of administrative efficiency. (5) The State has been
obligated to promote the economic interests of harijans and like backward
classes, Arts. 46 and 335 being a testament and Arts. 14 to 16 being the
tool-kit. To blink at this panchsheel is to be unjust to the Constitution. [975
B-C] (4) To relax on basic qualifications is to compromise with minimum
administrative efficiency; to relent, for a time, on additional test
qualifications as to take a calculated but controlled risk, assured of a basic standard
of performance; to encourage the possession of higher excellence is to upgrade
the 913 efficiency status of the public servant and eventually, of the
department. This is the sense and essence of the situation arising in the
present case, viewed from the angle of administrative requirements or fair
employment criteria.
[967 C-D] (5) Efficiency means, in terms of
good government, not marks in examinations only, but responsible and responsive
service to the people. [976 C] (6)(a) A bare reading of Arts. 341 and 342
brings out the quintessential concept that the Scheduled Castes and Tribes are
no castes in the Hindu fold but an amalgam of castes, races, groups, tribes,
communities or parts thereof found on investigation to be the lowliest and in
need of massive State aid and notified as such by the President.
[977 H] (b) The discerning sense of the
Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled
Tribes, not as a caste but as a large backward group deserving of societal
compassion. [978 B] (7) (a) Given two alternative understandings of the
relevants sub-Articles [Arts. 16(1) and (2)] the Court must so interpret the
language as to remove that ugly 'inferiority' complex which has done genetic
damage to Indian polity and thereby suppress the malady and advance the remedy,
informed by sociology and social anthropology.
The touch-stone is that functional democracy
postulates participation by all sections of the people and fair representation
in administration is an index of such participation. [971 E-F] (b) Clause (4)
of Art. 16 if closely examined, is an illustration of constitutionally
sanctified classification.
Art. 16(4) need not be a saving clause but
put in due to the over anxiety of the draftsman to make matters clear beyond possibility
of doubt. [978 H] (c) Reservation confers pro tanto monopoly, but
classification grants under Art. 16(1) ordinarily a lesser order of advantage.
The former is more rigid, the latter more flexible, although they may overlap
sometimes. Art.
16(4) covers all backward classes; but to
earn the benefit of grouping under Art. 16(1) based on Art. 46 and 335, the
twin considerations of terrible backwardness of the type harijans endure and
maintenance of adminsistrative efficiency must be satisfied. [979 C-D] (d) The
fact that better educational prescription for promotion posts have been upheld
by this Court does not rule out other resonable differentia having a nexus with
the object. The true test is what is the object of the classification and is it
permissible? Further, is the differentia sound and substantial and clearly
related to the approved object? [980 H] (e) The genius of Arts. 14 to 16
consists not in literal equality but in progressive elimination of pronounced
inequality. To treat sharply dissimilar persons equally is subtle injustice.
Equal opportunity is a hope, not a menace. [981 B] In the present case the
economic advancement and promotion of the claims of the grossly
under-represented and pathetically neglected classes, otherwise described as
Scheduled Castes and Scheduled Tribes, consistently with the maintenance of
administrative efficiency is the object, constitutionally sanctioned by Art. 46
and 335, and reasonably accommodated in Art. 16(1). The differentia so loudly
obtrusive, is the dismal social milieu of harijans.
This has a rational relation to the object
set out above.
[981 C] (8) It is a statistically proved
social reality in India that the depressed employment position of harijan is
the master problem in the battle against generations of retardations and
reservation and other solutions have made no significant impact on their
employment in public service.
In such an unjust situation, to maintain
mechanical equality is to prepetuate actual inequality. Relaxation of 'tests'
qualification at the floor level of clerical posts is a part of this multiform
strategy to establish broader though seemingly differential equality. [983 F]
914 Per Fazal Ali, J.
Rule 13AA is a valid piece of statutory
provision which is fully justified under Art. 16(1) of the Constitution and
does not fall within the purview of Art. 16(4). [1007 F] (1)(a) Equality of
opportunity would mean a fair opportunity not only to one section or the other
but to all sections for removing the handicaps if a particular section of the
society suffers from the same. What Art. 14 or Art.
16 forbids is hostile discrimination and not
reasonable classification. In other words the idea of classification is
implicit in the concept of equality because equality means equality to all and
not merely to the advanced and educated sections of the society. [992 H; 993 B]
(b) It follows that in order to provide the equality of opportunity to all
citizens, every class of citizens must have a sense of equal participation in
building up an egalitarian society. [993 C] (c) The only manner in which the
objective of equality as enshrined in Art. 14 and 16 can be achieved is to
boost up the backward classes by giving them concessions, relaxations,
facilities, removing handicaps and making suitable reservations so that the
weaker sections may compete with the more advanced and in due course become
equals and backwardness is banished forever. [993 D] (2)(a) There is complete
unanimity of judicial opinion of this Court that the Directive Principles and
the Fundamental Rights should be construed in harmony with each other and every
attempt should be made by the Court to resolve apparent inconsistency. [993 H]
(b) The Directive Principles contained in Part IV constitute the stairs to
climb the high edifice of a socialistic State and the Fundamental Rights are
the means through which one can reach the top of the edifice. [993 H] In Re The
Kerala Education Bill. 1957, [1959] S.C.R.
995; Mohd. Hanif Quareshi & Others v. The
State of Bihar, [1959] S.C.R. 629, 648; I. C. Golak Nath & Others v. State
of Punjab & Anr., [1967] 2 S.C.R. 762, 789-790; Chandra Bhavan Boarding and
Lodging, Bangalore v. The State of Mysore and Anr., [1970] 2 S.C.R. 600 612,
His Holiness Keshavananda Bharati Sripadagalvaru v. State of Kerala and Anr.,
[1973] 4 S.C.C. 225, referred to.
(c) The Directive Principles form the
fundamental feature and the social conscience of the Constitution which enjoins
upon the State to implement these Directive Principles. The Directives, thus
provide the policy, the guidelines and the end of socio-economic freedom and
Arts.
14 and 16 are the means to implement the
policy to achieve the ends sought to be promoted by the Directive Principles.
So far as the Court are concerned where there
is no apparent inconsistency between the Directive Principles contained in Part
IV and the Fundamental Rights mentioned in Part III, there is no difficulty in
putting a harmonious construction which advances the object of the
Constitution. [996 E-F] (3)(a) The word 'caste' appearing after 'Scheduled' is
really a misnomer and has been used only for the purpose of identifying this
particular class of citizens which has a special history of several hundred
years behind it. The Scheduled Castes and Scheduled Tribes have been a special
class of citizens who have been so included and described that they have come
to be identified as the most backward classes of citizens of this country. [997
A-B] (b) Properly analysed, Art. 46 contains a mandate to the State to take
special care for the educational and economic interests of the weaker sections
of the people and as illustrations of the persons who constitute the weaker
sections the provision expressly mentions the Scheduled Castes and the
Scheduled Tribes. [997 F] (c) A combined reading of Art. 46 and clauses 24 and
25 of Art. 366 clearly shows that the members of the Scheduled Castes and the
Scheduled 915 Tribes must be presumed to be backward classes of citizens
particularly when the Constitution gives the example of the Scheduled Castes
and the Scheduled Tribes as being the weaker sections of the society. [997 G]
(d) The members of the Scheduled Castes and the Tribes have been given a
special status in the Constitution and they constitute a class by themselves.
That being the position it follows that they do not fall within the purview of
Art. 16(2) of the Constitution which prohibits discrimination between the
members of the same caste. If the members of the Scheduled Castes and the
Scheduled Tribes are not castes then it is open to the State to make reasonable
classification in order to advance or lift these classes so that they may be
able to be properly represented in the services under the State. [998 A-B]
(4)(a) Art. 16 is merely an incident of Art. 14 and both these articles form a
part of the common system seeking to achieve the same end. [998 D] State of
Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1 S.C.C. 771, 783;
Mohammad Shujat Ali and others v.
Union of India and others, [1975] 3 S.C.C.
76, 102; Govind Dattatray Kelkar and others v. Chief Controller of Imports
& Exports and others, [1967] 2 S.C.R. 29, 33; S.G. Jaisinghani v. Union of
India and others. [1967] 2 S.C.R. 703, 712 and The General Manager, Southern
Railway v. Rangachari, [1962] 2 S.C.R. 586, 597, referred to.
(b) Art. 16 applies to all classes of
appointment including promotions and selection posts. [999 E] C.A. Rajendran v.
Union of India and Ors., [1968] 1 S.C.R. 721, 728-729, referred to.
(c) Art. 16 permits a valid classification.
[999 H] State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1
S.C.R. 771, 789; C.A. Rajendran v. Union of India and Ors., [1968] 1 S.C.R.
721, 728-729; S.G. Jaisinghani v.
Union of India and others. [1967] 2 S.C.R.
703, 712; The General Manager, Southern Railway v. Rangachari. [1962] 2 S.C.R.
586, 597 and Mohammad Shujat Ali and others v. Union of India and others,
[1975] 3 S.C.C. 76, 102, referred to.
(d) Equality of opportunity for all citizens
envisaged in Art. 16(1) implies that opportunity must be given not only to a
particular section of the society or a particular class of citizens who may be
advanced or otherwise more affluent but to all classes of citizens. This can be
achieved by making a reasonable classification so that every class of citizens
is duly represented in the service which will enable equality of opportunity to
all citizens. The classification must, however, be reasonable and must fulfil
the following conditions. [1000 G] (i) It must have a rational basis; (ii) It
must have a close nexus with the object sought to be achieved and (iii) It
should not select any person for hostile discrimination at the cost of others.
[1000 H] (5) (a) If the promotees do not belong to a caste as contemplated by
Art. 16(2) then they do not fall within the mischief of Art. 16(2) at all. Thus
the case of the promotees squarely falls within the four-corners of Art.
16(1) and can be justified as based on
reasonable classification. [1002 B] (b) Clause (4) of Art. 16 of the
Constitution cannot be read in isolation but has to be read as part and parcel
of Art. 16(1) and (2). [1002 E] (c) Clause (4) of Art. 16 is not an exception
of Art.
14 in the sense that whatever classification
can be made can be done only through clause (4) of Art. 16. Clause (4) of Art.
16, however, is an explanation containing an exhaustive and exclusive provision
regarding reservation which is one of the forms of classification. Thus clause
(4) of Art. 16 deals exclusively with reservation and not other forms of
classification which can be made under Art. 16(1) itself.
Since clause (4) is a special provision
regarding reservation, it can safely be held that it overrides Art.
16(1) to that extent and no reservation can
be made under Art. 16(1). [1002 G-H] 916 (d) Art. 16(4) is not a proviso to Art.
16(1) but this clause covers the whole field of Art. 16. Dissenting view of
Subba Rao, J. in T. Devandasan v. Union of India. [1964] 4 S.C.R. 680, applied.
(e) Clause 4 of Art. 16 contains express
provisions empowering the State to make reservations in suitable cases provided
the following conditions are satisfied:
(i) That the class for which reservation is
made must be socially and educationally backward.
(ii) That the class for which reservation is
made is not adequately represented in the services under the State.
[1004 E] (iii) The reservation should not be
too excessive so as to destroy the very concept of equality, and [1005 A] (iv)
Reservation should not be made at the cost of efficiency. [1006 C] (6) In the
instant case what Rule 13AA does is merely to authorise the Government to
exempt for a specified period any member or members of the Scheduled Caste and
Scheduled Tribes from passing the test referred to in Rule 13 and Rule 13A. The
rule does not give complete licence. A Lower Division Clerk who is a member of
the Scheduled Caste or the Scheduled Tribe could not be promoted without
passing any test at all so as to destroy the concept of equality. It merely
gives a special concession or a temporary relaxation to cockward class of
citizens in order to lift them, advance them and enable them to compete with
the stronger sections of the society. Thus, the basis of the rule is
undoubtedly both rational and reasonable. The rule does not grant complete
exemption to the promotees from passing the test.
It only provides for grant of extension of
time to enable them to clear the test. It cannot, therefore be held that the
State's action in incorporating rule 13AA. in any way violates the mandate
contained in Art. 335. The concession given in Rule 13AA amounts to a
reasonable classification which can be made under Art. 16(1) and does not
amount to the selection of the respondent no. 1 for hostile discrimination so
as to be violative of Art. 16(1) of the Constitution. Respondent no. 1 passed
the test necessary for promotion to the Upper Grade on November 2. 1971. He
cannot put forward his claim for being promoted earlier than that date.
Extensions granted by the Government to the clerks belonging to the Scheduled
Castes and Tribes from 1958 to 1972 and thereafter upto 1974 will affect
respondent no. 1 only after November 2, 1971 and not before that date. [1001 C;
F-G; 990 DE] (7) If the carry forward rule is not upheld then backwardness will
be perpetrated and it would result ultimately in a vacuum. The High Court was
in error in holding that the State's action in filling 34 vacancies out of 51
by members of the Scheduled Castes and Tribes was illegal and could not be
justified. [1006 C] (8) A concession or relaxation in favour of a backward
class of citizens particularly when they are senior in experience would not
amount to any impairment of efficiency.
The High Court was in error in holding that
Rule 13AA was ultra vires and was violative of Art. 16 as it thought that this
rule came within the mischief of clause 4 of Art, 16.
[1006 D-E] Per Khanna, J. (dissenting) There
is no infirmity in the finding of the High Court that the impugned promotions
were violative of Article 335 of the Constitution. The Departmental tests are
prescribed to ensure standards of efficiency for the employees. To promote 34
out of 51 persons although they have not passed the Departmental tests and at
the same time not to promote those who have passed the Departmental tests can
hardly be conducive to efficiency. [945 H] (1) It is not permissible to waive
the requirement of the minimum educational qualification and other standards
essential for the maintenance of efficiency of service. The reservation of
seats for the members of the 917 backward class was not to be at the cost of efficiency.
This fact was brought out in Art. 335 according to which the claims of the
members of the Scheduled Castes and Scheduled Tribes shall be taken into
consideration consistently with the maintenance of officiency of administration
in the making of appointment to services and posts in connection with the
affairs of the Union or of a State. [939 B; 938 H] (2) The reservation of posts
for a section of population has the effect of conferring a special benefit on
that section of the population. Such preferential treatment is plainly a
negation of the equality of opportunity for all citizens in matters relating to
employment or appointment to an office under the State. Clause (4) of Art. 16
has been construed as a proviso or exception to cl. (1) of that Article. [939
C] The General Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586 and
T. Devadasan v. The Union of Indian
(3) The provision of preferential treatment
for members of backward classes including Scheduled Castes and Scheduled Tribes
is that contained in cl. (4) of Art. 16. There is no scope for spelling out
such preferential treatment from the language of cl. (1) of Art. 16 because the
language of that clause does not warrant any preference to any citizen against
another citizen. The language of Art. 16(4) indicates that but for this clause
it would not have been permissible to make any reservation of appointments or
posts in favour of any backward class of citizens. [939 H; 940 A] All India
Station Masters' & Asstt. Station Masters Assn. & Ors. v. General
Manager, Central Railway & Ors., [1960] 2 S.C.R. 311; S. G. Jaisinghani v.
Union of India & Ors., [1967] 2 S.C.R. 703; and State of Jammu &
Kashmir v.
Triloki Nath Khosa & Ors., [1974] 1
S.C.R. 771, distinguished.
(4) Equality of opportunity in matters of
employment could be predicated only between persons who were either seeking the
same employment or had obtained the same employment. Equality of opportunity in
matters of promotion must mean equality between members of the same class of
employees and not equality between members of separate, independent classes.
[940 E] All India Station Masters' & Asstt. Station Masters' Assn. &
Ors. v. General Manager. Central Railway & Ors., [1960] 2 S.C.R. 311;
referred to.
(5) The concept of equality in the matter of
promotion can be predicated only when the promotees are drawn from the same
source. If the preferential treatment of one source in relation to the other is
based on the differences between the two sources. and the said differences have
a reasonable relation to the nature of the office, it can legitimately be
sustained on the basis of a valid classification. The reason for the
classification in that case was that the higher echelons of the service should
be filled by experienced officers possessing not only a high degree of ability
but also first rate experience. [1940 H] S. G. Jaisinghani v. Union of India
& Ors., [1967] 2 S.C.R. 703, referred to.
(6) A classification based upon the
consideration that an employee belongs to a particular section of the
population with a view to accord preferential treatment for promotion is clear
violation of equality of opportunity enshrined in cl. (1) of Art. 16. [941 G]
(7) The essential object of various rules dealing with appointment to posts
under the State and promotion to higher posts is to ensure efficiency of
service. Exemption granted to a class of employees even though for a limited
period, from passing the departmental tests which have been prescribed for the
purpose of promotion would obviously be subversive of the object of ensure
efficiency of service. It cannot be disputed that departmental tests are
prescribed with a view to appraise and ensure efficiency of different
employees. To promote employees even though they have not passed such efficiency
test can hardly be consistent with the desideratum of ensuring efficiency in
administration.
[942 B] 918 (8) The fact that exemption from
passing departmental tests granted to members of Scheduled Castes and Scheduled
Tribes is not absolute but only for a limited period would not lend
constitutionality to the impugned rule and orders.
Exemption granted to a section of employees
while being withheld from the remaining employees has obvious element of
discrimination between those to whom it is granted and those from whom it is
withheld. If the passing of departmental tests is an essential condition of
promotion it would plainly be invidious to insist upon compliance with that
condition in the case of one set of employees and not to do so in the case of
others. The basic question is whether exemption is constitutionally
permissible. [942 D] (9)(a) Preferential and favoured treatment for some
citizens in the matter of employment or appointment to any office under the
State would be antithesis of the principle of equality of opportunity. Equality
of opportunity' is one of the corner-stones of our Constitution. It finds a
prominent mention in the preamble to the Constitution and is one of the pillars
which gives support and stength to the social, political and administrative
edifice of the nation.
[942 F-H] (b) Privileges, advantages,
favours, exemptions concessions specially earmarked for sections of population
run counter to the concept of equality of opportunity, they indeed eat into the
very vitals of the concept. To countenance classification for the purpose of
according preferential treatment to persons not sought to be recruited from
different sources and in cases not covered by cl. (4) of Art. 16 would have the
effect of eroding, if not destroying altogether the valued principle of
equality of opporunity enshrined in cl. (1) of Art. 16. [943 A-B] (10)(a) To
introduce fresh notions of classification in Art. 16(1) would necessarily have
the effect of vesting the State under the garb of classification with power of
treating sections of population as favoured classes for public employment. It
may not be difficult to circumvent that clause mentioning grounds other than
those mentioned in cl. (2). [943 C] (b) To expand the frontiers of
classification beyond those which have so far been recognised under cl.(1) of
Art.
16 is bound to result in creation of classes
for favoured and preferrential treatment for public employment and thus erode
the concept of equality of opportunity for all citizens in matters relating to
employment under the State.
[943 D-E] (11) In construing the provisions
of the Constitution, the courts should avoid doctrinaire approach. A
constitution is the vehicle of the life of a nation and deals with practical
problems of the Government. It is, therefore, imperative that the approach to
be adopted by the courts while construing the provisions of the Constitution
should be pragmatic and not one as a result of which the court is likely to get
lost in a maze of abstract theories. The important task of construing the
article of a Constitution is not an exercise in mere syllogism. It necessitates
an effort to find the true purpose and object which underlies that article. The
historical background, the felt necessities of the time, the balancing of the
conflicting interests must all enter into the crucible when the court is
engaged in the delicate task of construin the provisions of a constitution.
[943 E-H] (12) Another thing which must be kept in view while construing the
provisions of the Constitution is to foresee as to what would be the impact of
that construction not merely on the case in hand but also on the future 919
cases which may arise under those provisions. Out of concern for the facts of
one individual case, the courts must not adopt a construction the effect of
which might be to open the door for making all kinds of inroads into a great
ideal and desideratum like that of equality of opportunity.
Likewise, the courts should aviod in the
absence of compelling reason, a course that has the effect of unsettling a
constitutional position which has been settled over a long term of years by a
series of decisions. [941 A- B] (13) The liberal approach that may sometimes
have been adopted in upholding classification under Art. 14 would in the very
nature of things be not apt in the context of Art.
16 when the object underlying Art. 16 is kept
in view. [944 C] (14) The State has ample power to make provision for
safeguarding the interest of backward classes under cl. (4) of Art. 16 which
deals with reservation of appointments or posts for backward classes not
adequately represented in the services under the State. Inaction on the part of
the State under or. (4) of Art. 16 cannot justify strained construction of cl.
(1) of Art. 16. [946 E] Per Gupta J. (dissenting) (1) Rule 13AA and the orders
made there under giving additional opportunity in this regard to some out of
the same class of employee would be obviously void unless the fact that the
favoured members of the class belong to Scheduled Castes or Scheduled Tribes
made and difference in the position. [987 B] There is no force in the
contention that Art. 16(1) should be read in the light of Art. 46 and 335.
Neither Art.
46 and Art. 335 mentions Art. 16(1) nor Art.
16(1) refers to either of them. All the three Articles coexist in the
Constitution and if is correct to say that one of them should be read in the
light of the other two it is equally right to suggest that the two of them
should read in the light of the other. This means that the various parts of an
organie instrument like the Constitution ought to be harmoniously construed but
that is not the same things as suggesting that even where the scope and ambit
of one part is clear it should be abridged, extended or amended to prove its
affinity with another part. Each limb of the body has its own function. and to
try to make one of them do the work of another is both unnecessary and unwise.
This might throw the entire system out of gear. [985 C-D] (2)(a) It is
difficult to see how Art. 46 which requires the State to promote with special
care the economic interests of the weaker sections of the people especially of
the Scheduled Castes and Scheduled Tribes, can serve as an aid to the
construction of Art. 16(1). [985 H] (b) Art. 335 cannot furnish any clue to the
understanding of Art. 16(1). This Article does not create any right in the
members of the Scheduled Castes and Scheduled Tribes which they might claim in
the matter of appointments to services and posts; one has to look elsewhere, to
find out the claims conceded to them. Art. 335 says that such claims shall be
considered consistently with the administrative efficiency. This is a provision
which does not enlarge but qualify such claims as they may have as members of
the Scheduled Castes or Scheduled Tribes. [986 C] (3) Article 14 which
guarantees equality before the law and equal protection of the laws does not
insist on absolute equality of treatment to all persons in disregard of all
differences among them but provides for equality among equals only, Art. 16(1)
contemplates classifications on the basis of eligibility for an appointment;
those who have the qualifications needed for the post form one class. it also
implies that the same class of employees constitute a separate unit. Art. 16(1)
forbids between the members of this class discrimination and denial of equal
opportunity in the matter of promotion. [986 D-E; 987 A] T. Devadasan v. The
Union of India [1964] 4 S.C.R. 680;
General Manager Southern Railway v.
Rangachari. [1962] 2 S.C.R. 586 and Sham Sunder v. Union of India, [1969] 1
S.C.R. 312, referred to.
920 (4) Art. 16(1) in clear terms insists on
equality of opportunity for all employees of the same class, and this
requirement cannot be dispensed with because of anything in Art. 46 or Art. 335
which does not in any way qualify the guarantee in Art. 16(1). The Article, of
course, permits classification, but only such classification as is reasonable,
and the test of reasonableness having regard to the object of the Article, must
be whether the proposed classification helps in achieving this object. Judging
by this test it is not possible to hold that the sub-division of Lower Division
Clerks into two categories, those who belong to the Scheduled Castes and
Scheduled Tribes those who do not, is reasonable. [987 E-F] (5)(a) The special
reference to the Scheduled Castes and Scheduled Tribes does not suggest that
the State should promote the economic interests of these castes and tribes at
the expense of other "weaker sections of the people". [987 H] (b)
There is nothing reasonable in denying to some Lower Division Clerks the same
opportunity for promotion as others have because they do not belong to a
particular caste or tribe. Scheduled Castes and Scheduled Tribes, no doubt,
constitute a well defined class, but a classification valid for one purpose may
not be so for another. In the context of Art. 16(1) the sub-class made by r.
13AA within the same class of employees amounts to discrimination only on
grounds of race and caste which is forbidden by cl. (2) of Art. 16.
[988 B] (6) Picking out employees belonging
to the Scheduled Castes and Scheduled Tribes from the same class of Lower
Division Clerks to give them additional opportunity to be promoted as Upper
Division Clerks is not a measure for the promotion of the economic welfare of
these castes and tribes. Some incidental financial gain to certain individuals,
assuming it results in the welfare of the castes and tribes to which they
belong in some remote and indirect way is not what Art. 46 contemplates. [988
D] (7)(a) In any case, Art. 16 (1) does not permit such classification as made
by r. 13AA. That rule may have been inspired by Art. 46 which requires the
State to take measures to bridge the education and economic gap between the weaker
sections of the people and other citizens, but Art. 46 does not qualify the
provisions of Art. 16(1). Art.
16(1) speaks of equality of opportunity, not
opportunity to achieve equality. [988 E-F] State of Rajasthan & Ors. v,
Thakur Pratap Singh, [1961] 1 S.C.R. 222, followed.
(b) For the same reasons Art. 335 appears to
be even less relevant on the question under consideration. [988 F] (8) The
appalling poverty and backwardness of large sections of the people must move
the State machinery to do everything in its power to better their condition.
Doling out unequal favours to members of the clerical staff does not seem to be
a step in that direction. [988 H] T. Devadasan v. The Union of India, [1964] 4
S.C.R., 680 and M. R. Balaji & Ors. v. State of Mysore, [1963] Supp.
1 S.C.R. 439, referred to.
& CIVIL APPELLATE JURISDICTION : Civil
Appeal No. 1160 of 1974.
From the Judgment and Order dated the 19th
April, 1974 of the Kerala High Court in Original Petition No. 1656 of 1972.
M. M. Abdul Khadir, Advocate General, Kerala
and K. M. K. Nair for the appellants.
T. S. Krishnamoorthy Iyer, P. K. Pillai and
N. Sudhakaran for respondent No. 1.
921 R. K. Garg, V. J. Francis and K. R.
Nambiyr for respondent Nos. 2-4, 6 and 7 and the Intervener Mr.
Surendran.
R. K. Garg and O. P. Rana for the
intervener-State of U.P.
L. N. Sinha, Sol. Gen. P. P. Rao and Girish
Chandra for the Attorney-General for India.
The following Judgments were delivered :
RAY, C.J. This appeal is by certificate from
the judgment dated 19 April, 1974 of the High Court of Kerala.
This appell is concerns the validity of Rule
13AA the Kerala State and Subordinate Services Rules, 1958 hereinafter called
the Rules and two orders which are marked P-2 and P-6.
In order to appreciate Rule 13AA, it is
necessary to refer to Rules 12, 13A, 13AA. These rules were framed in exercise
of the powers conferred by the proviso to Article 309 of the Constitution.
These rules came into existence on 17 December, 1958.
"Promotion" is defined in Rule
2(11) to mean the appointment of a member of any category or grade of a service
or a class of service to a higher category or grade of such service or class.
Rule 12 states that where general educational
qualifications, special qualifications or special tests are prescribed by the
Special Rules of a service for any category, grade or post therein, or in a
class thereof, which are not prescribed for a category or grade in such service
or class carrying a lower rate of pay and no member in the category or grade carrying
the lower rate of pay is eligible for promotion to such category, grade or post
a member in such lower category or grade may be promoted to the category or
grade carrying the higher rate of pay temporarily until a member of the former
category or grade qualified under this rule is available for promotion. A
member temporarily promoted under this rule shall not by reason only of such
promotion, be regarded as a probationer in the category or grade to which he
has been promoted, or be entitled to any preferential claim to future
promotion.
Rule 13 speaks of special qualifications.
Rule 13 does not concern this appeal.
The two rules which are of importance in this
appeal are Rules 13A and 13AA. They are as follows :- "13A. Special and
Departmental Tests-Temporary exemption for promotion.-Notwithstanding anything
contained in rule 13, where a pass in a special or departmental test is newly
prescribed by the Special Rules of a service for any category, grade or post
therein or in any class thereof, a member of a service who has not passed the
said test but is otherwise qualified and suitable for appointment to such
class, category, grade or post may within 2 years of the introduction of the
test be appointed thereto temporarily.
922 If a member so appointed does not pass
the test within two years from the date of introduction of the said test or
when the said test also involves practical training within two years after the
first chance to undergo such training he shall be reverted to the class,
category or grade or post from which he was appointed and shall not again be
eligible for appointment under this rule :
Provided that a person so reverted shall not
by reason only of the appointment under this rule be entitled to any
preferential claim to future appointment to the class, category, grade or post,
as the case may be to which he had been appointed under this rule :
Provided further that the period of temporary
exemption shall be extended by two years in the case of a person belonging to
any of the scheduled castes or scheduled tribes.
Provided also that this rule shall not be
applicable to tests prescribed for purposes of promotion of the executive staff
below the rank of Sub Inspectors belonging to the Police Department".
"13AA. Notwithstanding anything
contained in these Rules, the Government may, by order, exempt for a specified
period, any member or members, belonging to a Scheduled Caste or a Scheduled
Tribe, and already in service, from passing the tests referred to in rule 13 or
rule 13A of the said Rules.
Provided that this rule shall not be
applicable to tests prescribed for purposes of promotion of the executive staff
below the rank of Sub Inspectors belonging to the Police Department".
It is necessary to state here that the third
proviso to Rule 13A and the proviso to Rule 13AA were introduced with effect
from 12 October, 1973. Rule 13AA was introduced with effect from 13 January,
1972. Exhibit P-2 is an order dated 13 January, 1972. The order is made by the
Governor. The order refers to a memorandum dated 19 June, 1971 from the
President, Kerala Harijan Samskarika Kshema Samithy, State Committee.
Trivandrum and a letter dated 13 November, 1971 from the Secretary, Kerala
Public Service Commission. The order is as follows :- "The President, Kerala
Harijan Samskarika Kshema Samithy, Trivandrum has brought to the notice of
Government that a large number of Harijan employees are facing immediate
reversion from their posts for want of test qualifications and has therefore
requested that all Scheduled Castes and Scheduled Tribes emplovees may be
granted temporary exemption from passing the obligatory depart mental tests for
a period of two years with immediate effect.
(2) Government have examined the matter in
consultation with the Kerala Public Service Commission and are pleased to grant
temporary exemption to members already 923 in service belonging to any of the
Scheduled Castes and Scheduled Tribes from passing all tests (unified and
special or departmental tests) for a period of two years.
(3) The benefit of the above exemption well
be available to those employees belonging to Scheduled Castes and Scheduled
Tribes who are already enjoying the benefits of temporary exemption from
passing newly prescribed tests under General Rule 13A. In their case, the
temporary exemption will expire only on the date of expiry of the temporary
exemption mentioned in para (2) above or on the date of expiry of the existing
temporary exemption, whichever is later.
(4) This order will take effect from the date
of the order".
Exhibit P-6 is an order dated 11 January,
1974. It is an order made by the Governor. The order is as follows :-
"Government are pleased to order that the period of temporary exemption
granted to Scheduled Castes and Scheduled Tribes in the G.O. read above from
passing all tests (unified and special or departmental tests) be extended from
13-1-1974 to cover a period during which two tests are held by the Public
Service Commission and results thereof published so that each individual gets
two chances to appear. Government also order that these categories of employees
will not be given any further extension of time to acquire the test
qualifications." Pursuant to Rule 13AA which came into force on 13th
January, 1972 the order Exhibit P-2 was passed on 13 January, 1972 granting
temporary exemption to members already in service belonging to any of the
Scheduled Castes and Scheduled Tribes from passing all tests (unified and
special or departmental tests) for a period of two years.
The exemption granted by Exhibit P-2 in
almost all cases would have expired on 12 January, 1974.
The other impugned order is Exhibit P-6 which
was passed on 11 January, 1974 gave further exemption to members of Scheduled
Castes and Tribes from 13 January, 1974 from passing tests to cover a period
during which two tests would be held by the Public Service Commission and
results thereof published so that each individual would get two chances to
appear within that period. The Government also ordered that these categories of
employees would not be given any further extension of time to acquire the test
qualifications.
On the basis of these exemption orders,
several promotions have been effected. The respondent alleged in the writ
petition that 12 Lower Division Clerks who were members of Scheduled Castes and
Scheduled Tribes were promoted without test qualification. The further
allegation is that by an order dated 15 June, 1972, 19 Lower 924 Division
Clerks belonging to Scheduled Castes and Tribes were promoted as Upper Division
Clerks of which 5 were unqualified Scheduled Castes and Scheduled Tribes
members and 14 were qualified Scheduled Castes and Scheduled Tribes members. By
order dated 19 September, 1972, another 8 promotions of members of Scheduled
Castes and Tribes were ordered of which only two were qualified and the
remaining six were unqualified. By another order dated 31st October, 1972, 7
Scheduled Castes and Scheduled Tribes members were promoted without qualifying
test and one was promoted with the qualifying test. The grievance of the
respondent- petitioner before the High Court was that out of 51 vacancies which
arose in the category of Upper Division Clerks in the year 1972, 34 were filled
up by Scheduled Castes members who did not possess qualifications and only 17 were
given to qualified persons.
The respondent is a Lower Division Clerk
working in the Registration Department. For promotion to Upper Division Clerk
in that Department on the basis of seniority, the Lower Division Clerks have to
pass (1) Account Test (Lower), (2) Kerala Registration Test and (3) Test in the
manual office procedure. The respondent's grievance is that in view of certain
concessions given to members of Scheduled Castes and Scheduled Tribes, they
were able to obtain promotions earlier than the respondent, though the members
of the Scheduled Castes and Scheduled Tribes who were promoted had not passed
the tests.
The respondent in the writ petition filed in
the High Court asked for a declaration that Rule 13AA is unconstitutional and
mandamus for compelling the State to forbear from giving effect to order dated
13 January, 1972 marked Exhibit P-2. The respondent by an affidavit asked for a
similar order that Exhibit P-6 dated 11 January, 1974 be set aside.
The respondents' contentions in the High
Court were that Rule 13AA of the Service Rules and Exhibits P-2, P-6 and
Exhibit P-7 which was another order dated 31 October 1972 and all orders of
promotion made thereunder were violative of Articles 16(1) and 16(2). The High
Court upheld the contentions of respondent No. 1.
The contention of the State is that the
impugned rules and orders are not only legal and valid but also support a
rational classification under Article 16(1).
The contentions on behalf of respondent No. 1
are these. First Article 16 is a specific application of Article 14 in matters
relating to employment or appointment to any service in the State. Clauses (1)
and (2) of Article 16 give effect to equality before law guaranteed by Article
14 and to prohibition against discrimination guaranteed by Article 15(1). In
other words, Article 16(1) is absolute in terms guaranteeing equality of
opportunity to every indivdiual citizen seeking employment or appointment.
Emphasis is placed on similar opportunity and equal treatment for seeking employment
or appointment. Second, matters relating to employment in Article 16(1) in- 925
clude all matters in relation to employment both prior and subsequent to the
employment and form part of the terms and conditions of service. Equal
opportunity is to be given for appointment, promotion, termination of
employment and payment of pension and gratuity. Third, the abridgement of
equality guaranteed by Article 16(1) is only to the extent curtailed by Article
16(4). Apart from Article 16(4), the right guaranteed under Article 16(1)
cannot be curtailed.
Article 16(4) is, in substance, an exception
to rights guaranteed by Article 16(1) and (2). Fourth, Article 16(4) does not
cover the entire field occupied by Article 16(1) and (2). Some of the matters
relating to employment in respect of which equality of opportunity has been
guaranteed by Article 16(1) and (2) do not fall within the mischief of
non-obstante clause in Article 16(4). To illustrate, clauses (1) and (2) of
Article 16 do not prohibit the prescription of reasonable rules for selection
to any employment or appointment in office. Any provision as to the
qualification for employment or appointment in office reasonably fixed and
applicable to all citizens would be consistent with the doctrine of equality of
opportunity in Article 16(1).
Reasonable qualification of employment for
the purpose of efficiency of service is justified. Fifth, rule 13AA is
violative of Article 16(1) and (2). The impeached Exhibits fall within the same
mischief. There is no scope for dealing with Scheduled Castes and Scheduled
Tribes different from other backward classes. Exemption from qualification
necessary for promotion is not conducive to the maintenance of efficiency of
administration and violates not only Article 335 of the Constitution but also
Article 16(1).
Before the introduction of the Kerala State
and Subordinate Services Ruless 1958 on 17 December, 1958 and also the
formation of Kerala State on 1 November, 1956, the Travancore-Cochin Government
had issued orders on 14 June, 1956 directing that the standard of qualification
should be lower for members of Scheduled Castes and Scheduled Tribes than
compared to others in the matter of examinations relating to various tests. By
Government order dated 27 June, 1958, it was directed that the peiod of
exemption from passing tests be extended by two years in the case of Scheduled
Castes and Scheduled Tribes. Again by Government order dated 2 January, 1961.
the period of exemption to Scheduled Castes and Scheduled Tribes was further
extended to 3 years. By another Government order dated 14 January, 1963, a
unified account test (lower) and a test in office procedure were introduced
replacing the old tests and as this was treated as a new test, all persons who
were formerly in Travancore-Cochin or Madras Service were given two years' time
to pass the test and members of the Scheduled Castes and Scheduled Tribes were
given extra time in accordance with the orders earlier mentioned. A circular
was issued on 9 February, 1968 granting 7 years' time from 14 January, 1963 to
members of the Scheduled Castes and Scheduled Tribes to pass the unified tests.
This period was to expire on 14 January, 1970. On 13 January, 1970, an order
was passed extending the time for another year upto 14 January, 1971. On 14
January, 1971 another Government order was issued extending the period by
another year.
926 It was brought to the notice of the
Government that large number of Government servants belonging to Scheduled
Casts and Scheduled Tribes were unable to get their promotion because of want
of test qualifications. In order to give relief to the Scheduled Castes and
Scheduled Tribes, the Government incorporated Rule 13AA which enabled the
Government to grant exemption to members of Scheduled Castes and Scheduled
Tribes for a specified period. On 13 January, 1972 exemption from passing the
tests was granted to members of Scheduled Castes and Scheduled Tribes for two
years. On 11 January, 1974 order was made under Rule 13AA giving members of
Scheduled Castes and Scheduled Tribes exemption from passing the tests for the
period of two tests to be conducted after the order dated 11 January, 1974.
The criterion for promotion of Lower Division
Clerks to Upper Division Clerks is seniority-cum-merit qualification.
For want of test qualification a large number
of Lower Division Clerks belonging to Scheduled Castes and Scheduled Tribes
were passed over. It is because of the aforesaid Government order dated 13
January, 1972 marked exhibit P-2 that promotions were made according to
seniority-cum-merit qualification. The larger share went to the members of the
Scheduled Castes and Scheduled Tribes because they were senior hands. After the
issue of the order dated 13 January, 1972, 34 out of 51 Lower Division Clerks who
were promoted belonged to the Scheduled Castes and Scheduled Tribes. These 34
persons were given temporary exemption from passing the departmental tests. It
also appears that these 34 members of Scheduled Castes and Scheduled Tribes
have become senior most in the lower cadre.
Articles 14, 15 and 16 form part of a string
of constitutionally guaranteed rights. These rights supplement each other.
Article 16 which ensures to all citizens equality of opportunity in matters
relating to employment is an incident of guarantee of equality contained in
Article
14. Article 16(1) gives effect to Article 14.
Both Articles 14 and 16(1) permit reasonable classification having a nexus to
the objects to be achieved. Under Article 16 there can be a reasonable
classification of the employees in matters relating to employment or
appointment.
This Court in the State of Gujarat and Anr.
etc. v. Shri Ambica Mills Ltd. Ahmedabad etc.(1) said "The equal
protection of the laws is a pledge of the protection of equal laws. But laws
may classify. And the very idea of classification is that of inequality. In
tackling this paradox the Court has neither abandoned the demand for equality
nor denied the legislative right to classify. It has taken a middle course. It
has resolved the contradictory demands of legislative specialization and
constitutional generality by a doctrine of reasonable classification. (See
Joseph Tussman and Jacobus ten Breck, "The Equal Protection of the
Laws", 37 California Rev. 341.)" 927 In the Ambica Mills case (supra)
this Court explained reasonable classification to be one which includes all who
are similarly situated and none who are not. The question as to who are
similarly situated has been answered by stating that one must look beyond the
classification to the purpose of law. "The purpose of a law may be either
the elimination of a public mischief or the achievement of some positive public
good." Discrimination is the essence of classification.
Equality is violated if it rests on
unreasonable basis. The concept of equality has an inherent limitation arising
from the very nature of the constitutional guarantee. Those who are similarly
circumstanced are entitled to an equal treatment. Equality is amongst equals.
Classification is, therefore, to be founded on substantial differences which
distinguish persons grouped together from those left out of the groups and such
differential attributes must bear a just and rational relation to the object
sought to be achieved.
The crux of the matter is whether Rule 13AA
and the two orders Exhibits P-2 and P-6 are unconstitutional violating Article
16(1). Article 16(1) speaks of equality of opportunity in matters relating to
employment or appointment under the State. The impeached Rule and orders relate
to Promotion from Lower Division Clerks to Upper Division Clerks. Promotion
depends upon passing the test within two years in all cases and exemption is
granted to members of Scheduled Castes and Scheduled Tribes for a longer period
namely, four years. If there is a rational classification consistent with the
purpose for which such classification is made equality is not violated. The
categories of classification for purposes of promotion can never be closed on
the contention that they are all members of the same cadre in service. If
classification is made on educational qualifications for purposes of promotion
or if classification is made on the ground that the persons are not similarly
circumstanced in regard to their entry into employment, such classification can
be justified.
Classification between direct recruits and
promotees for purposes of promotion has been held to be reasonable in C.
A. Rajendran v. Union of India(1).
The respondent contended that apart from
Article 16(4) members of Scheduled Castes and Scheduled Tribes were not
entitled to any favoured treatment in regard to promotion.
In T. Devadasan v. The Union of India &
Anr.(2) reservation was made for backward classes. The number of reserved seats
which were not filled up was carried forward to the subsequent year. On the
basis of "carry forward" principle it was found that such reserved
seats might destroy equality. To illustrate, if 18 seats were reserved and for
two succesive years the reserved seats were not filled and in the third year
there were 100 vacancies the result would be that 54 reserved seats would be
occupied out of 100 vacancies. This would destroy equality. On that ground
"carry forward" principle was not sustained in Devadasan's case
(supra). The same view was taken in the case of M. R. Bajali and Others v.
State of Mysore(3). It was said that not 928 more than 50 per cent should be
reserved for backward classes. This ensures eqalality. Reservation is not a
constitutional compulsion but is discretionary according to the ruling of this
Court in Rajendran's case (supra).
There is no denial of equality of opportunity
unless the person who complains of discrimination is equally situated with the
person or persons who are alleged to have been favoured. Article 16(1) does not
bar a reasonable classification of employees or reasonable tests for their
selection State of Mysore v. V. P. Narasinga Rao(1).
This equality of opportunity need not be
confused with absolute equality. Article 16(1) does not prohibit the
prescription of reasonable rules for selection to any employment or appointment
to any office. 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 Article 16(1) guarantees is equality of
opportunity to all citizens. Articles 16(1) and (2) give effect to equality
before law guaranteed by Article 14 and to the prohibition of discrimination
guaranteed by Article 15(1). Promotion to selection post is covered by Article
16(1) and (2).
The power to make reservation, which is
conferred on the State, under Article 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. In providing for reservation of
appointments or posts under Article 16(4) the State has to take into
consideration the claims 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. (General Manager, S. Rly. v. Rangachari. The present case is
not one of reservation of posts by promotion.
Under Article 16(1) equality of opportunity
of employment means equality as between members of the same class of employees
and not equality between members of separate, independent class. The Roadside
Station Masters and Guards are recruited separately, trained separately and
have separate avenues of promotion. The Station Mas ers claimed equality of
opportunity for promotion vis-a-vis the guards on the ground that they were
entitled to equality of opportunity. It was said he concept of equality can
have no existence except with reference to matters which are common as between
individuals, between whom equality is predicated.
The Road-side Station Masters and Guards were
required separately. Therefore, the two form distinct and separate classes and
there is no scope for predicating equality or inequality of opportunity in
matters of promotion. See All India 929 Station Masters and Assistant Station
Masters' Association v. General Manager, Central Railways(1). The present case
is not to create separate avenues of promotion for these persons.
The rule of parity is the equal treatment of
equals in equal circumstances. The rule of differentiation is enacting laws
differentiating between different persons or things in different circumstances.
The circumstances which govern one set of persons or objects may not
necessarily be the same as those governing and her set of persons or objects so
that the question of unequal treatment does not really arise between persons
governed by different conditions and different sets of circumstances. The
principle of equality does not mean that every law must have universal
application for all persons who are not by nature, attainment or circumstances
in the same position and the varying needs of different classes of persons
require special treatment. The legislature understands and appreciates the need
of its own people, that its laws are directed to problems made manifest by
experience and that its discriminations are based upon adequate grounds. The
rule of classification is not a natural and logical corollary of the rule of
equality, but the rule of differentiation is inherent in the concept of
equality. Equality means parity of treatment under parity of conditions.
Equality does not connote absolute equality. A classification in order to be
constitutional must rest upon distinctions that are substantial and not merely
illusory.
The test is whether it has a reasonable basis
free from artificiality and arbitrariness embracing all and omitting none
naturally falling into that category.
The following decisions illustrate how
classification for promotion has been upheld within the content of Article 16.
There can be cases where the differences between
the two groups of recruits may not be sufficient to give any preferential
treatment to one against the other in the matter of promotions, and in that
event a Court may hold that there is no reasonable nexus between the
differences and the recruitment. [Govind Dattatray Kelkar v. Chief Controller
of Imports(2)].
The equality of opportunity takes within its
fold all stages of service from initial appointment to its termination
including promotion but it does not prohibit the prescription of reasonable
rules for selection and promotion, applicable to all members of a classified
group.
Ganga Ram v. Union of India(3).
When the petitioner and the direct recruits
were appointed to Grade `D', there was one class of Grade `D' formed of direct
recruits and the promotees from the grade of artisans. The recruits from both
930 the sources to Grade `D' were integrated into one class and no
discrimination could thereafter be made between them.
There was only one rule of promotion for both
the departmental promotees and the direct recruits. Roshan Lal Tandon v. Union
of India(1).
In State of Jammu & Kashmir v. Triloki
Nath Khosa & Ors.(2) this Court said that dealing with practical exigencies
a rule making authority may be guided by realities just as the legislature
"is free to recognise degrees of harm and it may confine its restrictions
to those classes of cases where the need is deemed to be the clearest".
Educational qualifications in that case were recognised as criteria for
determining the validity of classification. The discrimination is not in
relation to the source of recruitment unlike in Roshan Lal's case (supra).
The rule of equality within Articles 14 and
16(1) will not be violated by a rule which will ensure equality of
representation in the services for unrepresented classes after satisfying the
basic needs of efficiency of administration. Article 16(2) rules out some basis
of classification including race, caste, descent, place of birth etc. Article
16(4) clarifies and explains that classification on the basis of backwardness
does not fall within Article 16(2) and is legitimate for the purposes of
Article 16(1). If preference shall be given to a particular under-represented
community other than a backward class or under-represented State in an All India
Service such a rule will contravene Article 16(2). A similar rule giving
preference to an underrepresented backward community is valid and will not
contravene Articles 14, 16(1) and 16(2).
Article 16(4) removes any doubt in this
respect.
The principle of equality is applicable to
employment at all stages and in all respects, namely, initial recruitment,
promotion, retirement, payment of pension and gratuity. With regard to
promotion the normal principles are either merit-cum-seniority or seniority-cum-merit.
Seniority-cum-merit means that given the
minimum necessary merit requisite for efficiency of administration, the senior
though the less meritorious shall have priority. This will not violate Articles
14, 16(1) and 16(2). A rule which provides that given the necessary requisite
merit, a member of the backward class shall get priority to ensure adequate
representation will not similarly violate Article 14 or Article 16(1) and (2).
The relevant touchstone of validity is to find out whether the rule of
preference secures adequate representation for the unrepresented backward
community or goes beyond it.
The classification of employees belonging to
Scheduled Castes and Scheduled Tribes for allowing them an extended period of
two years for passing the special tests for promotion is a just and reasonable
classification having rational nexus to the object of providing equal
opportunity for all citizens in matters relating to employment or appointment
to public office. Granting of temporary exemptions from 931 special tests to
the personnel belonging to Scheduled Castes and Scheduled Tribes by executive
orders has been an integral feature of the service conditions in Kerala from
its very inception on 1 November, 1956. That was the pattern in Travancore-Cochin
State. The special treatment accorded to the Scheduled Castes and Scheduled
Tribes in Government service which had become part and parcel of the conditions
of service over these long periods amply justify the classification of the
members of the Scheduled Castes and Scheduled Tribes as a whole by the impugned
rule and orders challenged. What was achieved by the Government orders is now
given a statutory basis by Rule 13AA. The historical background of these rules
justifies the classification of the personnel of the Scheduled Castes and
Scheduled Tribes in service for the purpose of granting them exemption from
special tests with a view to ensuring them the equality of treatment and equal
opportunity in matters of employment having regard to their backwardness and
under representation in the employment of the State.
The Constitution makes a classification of
Scheduled Castes and Scheduled Tribes in numerous provisions and gives a
mandate to the State to accord special or favoured treatment to them. Article 46
contains a Directive Principle of State Policy-fundamental in the governance of
the country enjoining the State to promote with special care educational and
economic interests of the Scheduled Castes and Scheduled Tribes and to protect
them from any social injustice and exploitation. Article 335 enjoins that the
claims of the members of the Scheduled Castes and Scheduled Tribes to the
services and posts in the Union and the States shall be taken into
consideration. Article 338 provides for appointment by the President of a
Special officer for the Scheduled Castes and Scheduled Tribes to investigate
all matters relating to the safeguards provided for them under the
Constitution. Article 341 enables the President by public notification to
specify castes, races or tribes which shall be deemed to be Scheduled Castes in
the States and the Union Territories. Article 342 contains provision for
similar notification in respect of Scheduled Tribes. Article 366(24) and (25)
defines Scheduled Castes and Scheduled Tribes. The classification by the
impugned rule and the orders is with a view to securing adequate representation
to Scheduled Castes and Scheduled Tribes in the services of the State as
otherwise they would stagnate in the lowest rung of the State services.
Article 335 of the Constitution states that
claims of members of the Scheduled Castes and Scheduled Tribes shall be taken
into consideration in the making of appointments to the services and posts in
connection with affairs of the State consistent with the maintenance of
efficiency of administration. The impugned rule and the impugned orders are
related to this constitutional mandate. Without providing for relaxation of
special tests for a temporary period it would not have been possible to give
adequate promotion to the Lower Division Clerks belonging to Scheduled Castes
and Scheduled Tribes to the posts of Upper Division Clerks. Only those Lower
Division Clerks who were senior in service will get the benefit of the
relaxation con- 932 templated by Rule 13AA and the impeached orders. Promotion
to Upper Division from Lower Division is governed by the rule of seniority
subject only to passing of the qualified test. The temporary relaxation of test
qualification made in favour of Scheduled Castes and Scheduled Tribes is
warranted by their inadequate representation in the services and their overall
backwardness. The classification of the members of the Scheduled Castes and
Scheduled Tribes already in service made under Rule 13AA and the challenged
orders for exempting them for a temporary period from passing special tests are
within the purview of constitutional mandate under Article 335 in consideration
of their claims to redress imbalance in public service and to bring about
parity in all communities in public services.
The High Court was wrong in basing its
conclusion that the result of application of the impeached Rule and the orders
is excessive and exorbitant namely that out of 51 posts, 34 were given to the
members of the Scheduled Castes and Scheduled Tribes. The promotions made in
the services as a whole are nowhere near 50% of the total number of posts.
The Scheduled Castes and Scheduled Tribes
constitute 10% of the State's population. Their share in the gazetted services
of the State is said to be 2% namely 184 out of 8,780. Their share in the
non-gazetted appointments is only 7% namely 11,437 out of 1,62,784. It is
therefore, correct that Rule 13AA and the orders are meant to implement not
only the direction under Article 335 but also the Directive Principle under
Article 46.
Scheduled Castes and Scheduled Tribes are not
a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh
and Ors.(1) this Court held that an enquiry whether the appellant there
belonged to the Dohar caste which was not recognised as a Scheduled Caste and
his declaration that he belonged to the Charmar caste which was a Scheduled
Caste could not be permitted because of the provisions contained in Article
341. No Court can come to a finding that any caste or any tribe is a Scheduled
Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article
366(25). A notification is issued by the President under Article 341 as a
result of an elaborate enquiry. The object of Article 341 is to provide
protection to the members of Scheduled Castes having regard to the economic and
educational backwardness from which they suffer.
Our Constitution aims at equality of statuts
and opportunity for all citizents including those who are socially,
economically and educationally backward. The claims of members of backward
classes require adequate representation in legislative and executive bodies. If
members of Scheduled Castes and Tribes, who are said by this Court to be
backward classes, can maintain minimum necessary requirement of administrative
efficiency, not only representation but also preference may be given to them to
enforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring
out the position of backward classes to merit equality. Special provisions are
made for the advancement of backward classes and reservations of appointments
and posts for them to secure adequate representation. These provisions will
bring 933 out the content of equality guaranteed by Articles 14, 15(1) and
16(1). The basic concept of equality is equality of opportunity for
appointment. Preferential treatment for members of backward classes with due
regard to administrative efficiency alone can mean equality of opportunity for
all citizens. Equality under Article 16 could not have a different content from
equality under Article 14. Equality of opportunity for unequals can only mean
aggravation of inequality. Equality of opportunity admits discrimination with
reason and prohibits discrimination without reason. Discrimination with reasons
means rational classification for differential treatment having nexus to the
constitutionally permissible object.
Preferential representation for the backward
classes in services with due regard to administrative efficiency is permissible
object and backward classes are a rational classification reconginsed by our
Constitution. Therefore, differential treatment in standards of selection are
within the concept of equality.
A rule in favour of an under-represented
backward community specifying the basic needs of efficiency of administration
will not contravene Articles 14, 16(1) and 16(2). The rule in the present case
does not impair the test of efficiency in administration inasmuch as members of
Scheduled Castes and Tribes who are promoted have to acquire the qualification
of passing the test. The only relaxation which is done in their case is that
they are granted two years more time than others to acquire the qualification.
Scheduled Castes and Tribes are descriptive
of backwardness.
It is to the aim of our Constitution to bring
them up from handicapped position to improvement. If classification is
permissible under Article 14, it is equally permissible under Article 16,
because both the Articles lay down equality. The quality and concept of equality
is that if persons are dissimilarly placed they cannot be made equal by having
the same treatment. Promotion of members of Scheduled Castes and Tribes under
the impeached rules and orders is based on the classification with the object
of securing representation to members of Scheduled Castes and Tribes.
Efficiency has been kept in view and not
sacrificed.
All legitimate methods are available for
equality of opportunity in services under Article 16(1). Article 16(1) is
affirmative whereas Article 14 is negative in language.
Article 16(4) indicates one of the methods of
achieving equality embodied in Article 16(1). Article 16(1) using the
expression "equality" makes it relatable to all matters of employment
from appointment through promotion and termination to payment of pension and
gratuity. Article 16(1) permits classification on the basis of object and
purpose of law or State action except classification involving discrimination
prohibited by Article 16(2). Equal protection of laws necessarily involves
classification. The validity of the classification must be adjudged with
reference to the purpose of law. The classification in the present case is
justified because the purpose of classification is to enable members of
Scheduled Castes and Tribes to find representation by promotion to a limited
extent. From the point of view of time a differential treatment is given to
members of Scheduled Castes and Tribes for the purpose of giving them equality
consistent with efficiency.
934 For the foregoing reasons, I uphold the
validity of Rule 13AA and Exhibits P-2 and P-6. The appeal is accepted.
The judgment of the High Court is set aside.
Parties will pay and bear their own costs.
KHANNA, J. Whether the State Government can
grant exemption for specified period to employees belonging only to the
scheduled castes or scheduled tribes from passing departmental test for the
purpose of promotion under clause (1) of article 16 of the Constitution is the
important question which arises for determination in this appeal filed on
certificate by the State of Kerala and the Inspector General of Registration
against the judgment of the Kerala High Court. The High Court answered the
question in the negative in a petition filed by N. M. Thomas, lower division
clerk of the Registration Department of the Kerala State, respondent No. 1,
under article 226 of the Constitution.
According to clause (a) of rule 13 in Part II
of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred
to as the rules) framed under article 309 of the Constitution, no person shall
be eligible for appointment to any service, class, category or grade or any
post borne on the cadre thereof unless he possesses such special qualifications
and has passed such special tests as may be prescribed in that behalf in the
Special Rules. In January 1963 a unified test was prescribed by the Kerala
Government for lower division clerks for promotion to the upper division. A
pass in the test in the Manual of Office Procedure, Account Test and the
Registration Test was obligatory for promotion of lower division clerks as
upper division clerks in the Registration Department. Rule 13A, however,
provided for temporary exemption from passing a newly prescribed special or
departmental test for a period of two years. Rule 13A reads as under :
"Notwithstanding anything contained in
rule 13, where a pass in a special or departmental test is newly prescribed by
the Special Rules of a service for any category, grade or post therein or in
any class thereof, a member of a service who has not passed the said test but
is otherwise qualified and suitable for appointment to such class, category,
grade or post may within 2 years of the introduction of the test be appointed
thereto temporarily. If a member so appointed does not pass the test within two
years from the date of introduction of the said test or when the said test also
involves practical training, within two years after the first chance to undergo
such training he shall be reverted to the class, category or grade or post from
which he was appointed and shall not again be eligible for appointment under
this rule :
Provided that a person so reverted shall not
by reason only of the appointment under this rule be entitled to any
preferential claim to future appointment to the class, category, grade or post,
as the case may be to which he had been appointed under this rule :
935 Provided further that the period of
temporary exemption shall be extended by two years in the case of a person
belonging to any of the scheduled castes or scheduled tribes.
Provided also that this rule shall not be
applicable to tests prescribed for purposes of promotion of the executive staff
below the rank of Sub Inspectors belonging to the Police Department." On
January 13, 1972 rule 13AA was inserted in the rules. It reads as under :
"13A Notwithstanding anything contained
in these rules, the Government may, by order, exempt for a specified period,
any member or members, belonging to a Scheduled Caste or a Scheduled Tribe, and
already in service, from passing the tests referred to in rule 13 or rule 13A
of the said Rules.
Provided that this rule shall not be
applicable to tests prescribed for purposes of promotion of the executive staff
below the rank of Sub Inspectors belonging to the Police Department." The
following order was issued by the State Government on January 13, 1972 :
"The President, Kerala Harijan
Samaskarika Kshema Samithy, Trivandrum has brought to the notice of Government
that a large number of Harijan employees are facing immediate reversion from
their posts for want of test qualifications and has therefore requested that
all Scheduled Castes and Scheduled Tribes employees may be granted temporary
exemption from passing the obligatory departmental tests for a period of two years
with immediate effect.
(2) Government have examined the matter in
consultation with the Kerala Public Service Commission and are pleased to grant
temporary exemption to members already in service belonging to any of the
Scheduled Castes and Scheduled Tribes from passing all tests (unified and
special or departmental tests) for a period of two years.
(3) The benefit of the above exemption will
be available to those employees belonging to Scheduled Castes and Scheduled
Tribes who are already enjoying the benefits of temporary exemption from
passing newly prescribed tests under General Rule 13A. In their case the
temporary exemption will expire only on the date of expiry of the temporary
exemption mentioned in para (2) above or on the date of expiry of the existing
temporary exemption, whichever is later.
(4) This order will take effect from the date
of the order." 936 During the pendency of the writ petition in the High
Court, a further order was issued by the State Government on July 11, 1974 for
extending the period of exemption as under :
"1. G.O. (NS) No. 22/PD dated 13-1-1972.
.....................
.....................
.....................
ORDER Government are pleased to order that
the period of temporary exemption granted to Scheduled Castes and Scheduled
Tribes in the G.O. read above from passing all tests (unified and special or
departmental tests) be extended from 13-1-1974 to cover a period during which
two tests are held by the Public Service Commission and results thereof
published so that each individual gets two chances to appear. Government also
order that these categories of employees will not be given any further
extension of time to acquire the test qualifications." Respondent No. 1
passed all the tests by November 2, 1971. The other respondents, who are
members of scheduled castes and scheduled tribes and who too were lower
division clerks working in the Registration Department of the State, were
promoted as upper division clerks even though they had not passed the tests
mentioned above. Respondent No. 1 was not, however, promoted despite the fact
that he had passed the requisite tests. In 1972 out of 51 lower division clerks
promoted as upper division clerks, 34 belonged to scheduled castes and tribes.
Respondent No. 1 thereupon filed petition under article 226 on March 15, 1972
for a declaration that rule 13AA under which exemption had been granted to the
other respondents in the matter of promotion was violative of article 16 of the
Constitution. Prayer was also made for quashing order dated January 13, 1972
reproduced above by which exemption was actually granted to scheduled castes
and scheduled tribes employees from passing the obligatory departmental test
for a period of two years.
The petition was resisted by the appellants
and the other respondents and it was averred on their behalf that the impugned
rule and order were not violative of article
16. The High Court held that rule 13AA was
void being violative of clauses (1) and (2) of article 16 of the Constitution.
Orders dated January 13, 1972 and January 11, 1974 as well as other orders
promoting members of Scheduled Castes and scheduled Tribes who had not passed
the prescribed test were quashed. The High Court also expressed the view that
the promotion of 34 out of 51 persons even though they had not passed the
necessary test was not conducive to the maintenance of efficiency of
administration. The order in this respect was stated to be violative of article
335 of the Constitution.
In appeal before us the learned Advocate-General
on behalf of the appellants has contended that the impugned rule and orders are
cons- 937 titutionally valid under clause (1) of article 16. He has in this
context invited our attention to articles 46 and 335 of the Constitution. It
has, however, been frankly conceded by the Advocate-General that he does not
rely upon clause (4) of article 16 of the Constitution for sustaining the
validity of the impugned rule and orders. The stand taken on behalf of the
appellants has also been supported by the learned Solicitor-General as well as
by Mr. Garg on behalf of respondents other than respondent No. 1. As against
the above, Mr. Krishnamurthy Iyer on behalf of respondent No. 1 has canvassed
for the correctness of the view taken by the High Court and has contended that
the validity of the impugned rule and orders cannot be justified under clause
(1) of article 16.
It may be apposite at this stage to reproduce
articles 16, 46 and 335 of the Constitution :
"16. (1) There shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
(2) 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.
(3) Nothing in this article shall prevent
Parliament from making 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.
(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.
(5) Nothing in this article shall affect the
operation of any law which provides that the incumbent of any office in
connection with the affairs of any religious or denominational institution or
any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
46. The State shall promote with special care
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.
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." Article 14 of the Constitution enshrines the
principle of equality before the law. Article 15 prohibits discrimination
against citizens on grounds only of religion, race, caste, sex, place of birth
or any of them. Article 16 represents one fact of the guarantee of equality.
According to this article, there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under
the State. No citizen, it is further provided, 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. Articles 14, 15 and 16 underline the importance which
the framers of our Constitution attached to ensuring equality of treatment.
Such equality has a special significance in
the matter of public employment. It was with a view to prevent any
discrimination in that field that an express provision was made to guarantee
equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
At the same time the framers of the
Constitution were conscious of the backwardness of large sections of the population.
It was also plain that because of their backwardness those sections of the
population would not be in a position to compete with advanced sections of the
community who had all the advantages of affluence and better education. The
fact that the doors of competition were open to them would have been a poor
consolation to the members of the backward classes because the chances of their
success in the competition were far too remote on account of the inherent
handicap and disadvantage from which they suffered.
The result would have been that, leaving
aside some exceptional cases, the members of backward classes would have hardly
got any representation in jobs requiring educational background. It would have
thus resulted in virtually repressing those who were already repressed. The
framers of the Constitution being conscious of the above disadvantage from
which backward classes were suffering enjoined upon the State in article 46 of
the Constitution to promote with special care educational and economic interests
of the weaker sections of the people, in particular of the Scheduled Castes and
Scheduled Tribes, and also protect them from social injustice and all forms of
exploitation. To give effect to that objective in the field of public
employment, a provision was made in clause (4) of article 16 that nothing in
that article would 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, was not adequately represented in
the services under the State. Under the above clause, it is permissible for the
State, in case it finds the representation of any backward class of citizens in
the State services to be not adequate, to make provision for the reservation of
appointments or posts in favour of that backward class of citizens. The
reservation of seats for the members of the backward classes was not, however,
to be at the cost of efficiency. This fact was brought out in article 335, 939
according to which 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.
In view of that it is not permissible to waive the requirement of minimum
educational qualification and other standards essential for the maintenance of
efficiency of service.
It is further plain that the reservation of posts
for a section of population has the effect of conferring a special benefit on
that section of the population because it would enable members belonging to
that section to get employment or office under the State which otherwise in the
absence of reservation they could not have got. Such preferential treatment is
plainly a negation of the equality of opportunity for all citizens in matters
relating to employment or appointment to an office under the State.
Clause (4) of article 16 has, therefore, been
construed as a proviso or exception to clause (1) of that article (see The
General Manager, Southern Railway v. Rangachari(1) and T.
Devadasan v. The Union of India & Anr.
(2).
It has been argued on behalf of the
appellants that equality of treatment does not forbid reasonable
classification. Reference in this context is made to the well accepted
principle that article 14 of the Constitution forbids class legislation but
does not forbid classification. Permissible classification, it is equally well
established, must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group
and the differentia must have a rational relation to the object sought to be
achieved by the statute in question. It is urged that the same principle should
apply when the court is concerned with the equality of opportunity for all
citizens in matters relating to employment or appointment to any office under
the State. In this respect I may observe that this Court has recognized the
principle of classification in the context of clause (1) of article 16 in
matters where appointments are from two different sources, e.g., guards and
station masters, promotees and direct recrits, degree holder and diploma holder
engineers (see All India Station Masters & Asstt. Station Masters' Assn.
& Ors. v. General Manager, Central Railway & Ors.,(3) S. G. Jaisnghani
v. Union of India & Ors.(1) and State of Jammu & Kashmir v. Triloki
Nath Khosa & Ors.(5). The question with which we are concerned, however, is
whether we can extend the above principle of classification so as to allow
preferential treatment to employees on the ground that they are members of the
scheduled castes and scheduled tribes. So far as this question is concerned I
am of the view that the provision of preferential treatment for members of
backward classes, including scheduled castes and scheduled tribes, is that
contained in clause (4) of article 16 which permits reservation of posts for
them. There is 940 no scope for spelling out such preferential treatment from
the language of clause (1) of article 16 because the language of that clause
does not warrant any preference to any citizen against another citizen. The
opening words of clause (4) of article 16 that "nothing in this article
shall prevent the State from making any provision for the reservation of
appointments or posts in favour of backward class of citizens" indicate
that but for clause (4) it would not have been permissible to make any reservation
of appointments or posts in favour of any backward class of citizens.
In the case of All India Station Masters'
& Asstt.
Station Masters' Association (supra) the
Roadside Masters of the Central Railway Challenged the constitutionality of
promotion of guards to higher grade station masters' posts.
The petitioners' contention was that the
channel of promotions amounted to a denial of equal opportunity as between
Roadside Station Masters and guards in the matter of promotion and thus
contravened clause (1) of article 16 of the Constitution. It was urged that
taking advantage of this channel of promotions, guards became station masters
at a much younger age than Roadside Station Masters who reached the scale when
they were much older. According to the petitioners, Roadside Station Masters
and guards really formed one and the same class of employees. This Court
rejected that contention and held that the Roadside Station Masters belonged to
a wholly distinct and separate class from guards and so there could be no
question of equality of opportuntiy in matters of promotions as between
Roadside Station Masters and guards. It was further laid down that the question
of denial of equal opportunity required serious consideration only as between
the members of the same class.
The concept of equal opportunity in matters
of employment did not apply as between members of different classes of
employees under the State. Equality of opportunity in matters of employment
could be predicated only between persons who were either seeking the same
employment, or had obtained the same employment. Equality of opportunity in
matters of promotion must mean equality between members of the same class of
employees and not equality between members of separate, independent classes. In
the case of Jaisinghani (supra) the dispute was about seniority between two
classes of income-tax service, the direct recruits to class I grade II and
promotees from class II to class I grade II. For the purpose of promotion, the
Government fixed a ratio of 2 to 1 for direct recruits and promotees. It was in
that context and on those facts that this Court laid down that it is not
correct to say that all officers appointed to class I, grade II service formed
one class and that after the officers have been once recruited there could be
no distinction between direct recruits and promotees. It is really a case of
recruitment to the service from two different sources and the adjustment of
seniority between them. The concent of equality in the matter of promotion can be
predicated only when the promotees are drawn from the same source. If the
preferential treatment of one source in relation to the other is based on the
differences between the two sources, and the said differences have a reasonable
relation to the nature of the office it can legitimately be sustained on the
941 basis of a valid classification. The reason for the classification in that
case was that the higher echelons of the service should be filled by
experienced officers possessing not only a high degree of ability but also
first- rate experience. In the case of Triloki Nath Khosa (supra) the question
before the Court was with regard to the validity of a rule which provided that
only those assistant engineers would be eligible for promotion as executive engineers
who possessed a degree in engineering. The validity of this rule was challenged
by assistant engineers who were diploma-holders and did not possess the degree
in engineering. This Court held that though persons appointed directly and by
promotion were integrated into a common class of assistant engineers, they
could for purposes of promotion to the cadre of executive engineers be
classified on the basis of educational qualifications. The rule providing that
graduates shall be eligible for such promotion to the exclusion of
diploma-holders was held to be not violative of articles 14 and 16 of the
Constitution. It would thus appear that in each of the above cases the Court
was concerned with two categories of employees, each one of which category constituted
a separate and distinct class.
Differential treatment for those classes was
upheld in the context of their educational and other qualifications and because
of the fact that they constituted distinct and separate classes. Not much
argument is needed to show that a rule requiring that an official must possess
a degree in engineering before he can be promoted to the post of executive
engineer is conceived in the interest of efficiency of service. A
classification based upon that consideration is obviously valid. Likewise,
classification based upon the consideration that one category of employees are
direct recruits while others are promotes, is permissible classification
because the two categories of employees constitute two separate and distinct
classes. The same is true of roadside station masters and guards.
Classification of employees in each of these
cases was linked with the nature of their initial employment or educational
qualifications and had nothing to do with the fact that they belonged to any
particular section of the population. A classification based upon the first two
factors was upheld because it was conceived in the interest of efficiency of
service and because they constituted two different classes in view of the fact
that they were initially appointed to posts of different categories. Such
classification does not impinge upon the rule of equality of opportunity. As
against that, a classification based upon the consideration that an employee
belongs to a particular section of the population with a view to accord
preferential treatment for promotion is clear violation of equality of
opportunity enshrined in clause (1) of article 16. In no case has the Court
ever accepted and upheld under article 16(1) classification and differential treatment
for the purpose of promotion among employees who possessing the same
educational qualifications were initially appointed as in the present case to
the same category of posts, viz., that of lower division clerks. The present
case falls squarely within the dictum laid down in the case of Station Masters'
& Asstt. Station Masters' Association (supra) that equaliy of opportunity
in matters of employment could be predicated between persons who were either
seeking the same 942 employment or had obtained the same employment. The
essential object of various rules dealing with appointment to posts under the
State and promotion to higher posts is to ensure efficiency of service.
Classification upheld under clause (1) of article 16 subserved and in no case
militated against the attainment of that object. Exemption granted to a class
of employees, even though for a limited period from passing the departmental
tests which have been prescribed for the purpose of promotion would obviously
be subversive of the object to ensure efficiency of service. It cannot be
disputed that departmental tests are prescribed with a view to appraise and
ensure efficiency of different employees. To promote employees even though they
have not passed such efficiency test can hardly be consistent with the
desideratum of ensuring efficiency in administation.
Much has been made of the fact that exemption
from passing departmental tests granted to members of scheduled castes and
scheduled tribes is not absolute but only for a limited period. This fact, in
our opinion, would not lend constitutionality to the impugned rule and orders.
Exemption granted to a section of employees while being withheld from the
remaining employees has obvious element of discrimination between those to whom
it is granted and those from whom it is withheld. If the passing of
departmental tests is an essential condition of promotion, it would plainly be
invidious to insist upon compliance with that condition in the case of one set
of employees and not to do so in the case of other. The basic question is
whether exemption is constitutionally permissible. If the answer to that
question be in the negative, the fact that exemption is for a limited period
would not make any material difference.
In either event the vice of discrimination
from which exemption suffers would contaminate it and stamp it with
unconstitutionality. Exemption for a limited period to be constitutionally
valid cannot be granted to one set of employees and withheld from the other.
What clause (1) of article 16 ensures is
equality of opportunity for all citizens as individuals in matters relating to
employment or appointment to any office under the State. It applies to them
all, the least deserving as well as the most virtuous. Preferential and
favoured treatment for some citizens in the matter of employment or appointment
to any office under the State would be antithesis of the principle of equality
of opportunity.
Equality of opportunity in matters of
employment guaranteed by clause (1) of article 16 is intended to be real and
effective. It is not something abstract or illusory. It is a command to be
obeyed, not one to be defied or circumvented.
It cannot be reduced to shambles under some
cloak. Immunity or exemption granted to a class, however limited, must
necessarily have the effect of according favoured treatment to that class and
of creating discrimination against others to whom such immunity or exemption is
not granted. Equality of opportunity is one of the corner-stones of our
Constitution. It finds a prominent mention in the preamble to the Constitution
and is one of the pillars which gives support and strength to the social,
political and administrative edifice of the nation. Privileges, advantages,
favours, exemptions, 943 concessions specially earmarked for sections of
population run counter to the concept of equality of opportunity, they indeed
eat into the very vitals of that concept. To countenance classification for the
purpose of according preferential treatment to persons not sought to be recruited
from different sources and in cases not covered by clause (4) of article 16
would have the effect of eroding, if not destroying altogether, the valued
principle of equality of opportunity enshrined in clause (1) of article 16.
The proposition that to overdo classification
is to undermine equality is specially true in the context of article 16(1). To
introduce fresh notions of classification in article 16(1), as is sought to be
done in the present case, would necessarily have the effect of vesting the
State under the garb of classification with power of treating sections of
population as favoured classes for public employment. The limitation imposed by
clause (2) of article 16 may also not prove very effective because, as has been
pointed out during the course of arguments, that clause prevents discrimination
on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them. It may not be difficult to circumvent that clause by
mentioning grounds other than those mentioned in clause (2).
To expand the frontiers of classification
beyond those which have so far been recognized under clause (1) of article 16
is bound to result in creation of classes for favoured and preferential
treatment for public employment and thus erode the concept of equality of
opportunity for all citizens in matters relating to employment under the State.
In construing the provisions of the
Constitution we should avoid a doctrinaire approach. A Constitution is the
vehicle of the life of a nation and deals with practical problems of the
government. It is, therefore, imperative that the approach to be adopted by the
courts while construing the provisions of the Constitution should be pragmatic
and not one as a result of which the court is likely to get lost in a maze of
abstract theories. Indeed, so far as theories are concerned, human thinking in
its full efforescence, free from constraints and inhibitions, can take such
diverse forms that views and reasons apparently logical and plausible can be
found both in favour of and against a particular theory. If one eminent thinker
supports one view, support for the opposite view can be found in the writings
of another equally eminent thinker. Whatever indeed may be the conclusion,
arguments not lacking in logic can be found in support of such conclusion. The
important task of construing the articles of a Constitution is not an exercise
in mere syllogism. It necessitates an effort to find the true purpose and
object which underlies that article. The historical background, the felt
necessities of the time, the balancing of the conflicting interests must all
enter into the crucible when the court is engaged in the delicate task of
construing the provisions of a Constitution. The words of Holmes that life of
law is not logic but experience have a direct relevance in the above context.
Another thing which must be kept in view
while construing the provisions of the Constitution is to foresee as to what
would be the 944 impact of that construction not merely on the case in hand but
also on the future cases which may arise under those provisions. Out of our
concern for the facts of one individual case, we must not adopt a construction
the effect of which might be to open the door for making all kinds of inroads
into a great ideal and desideratum like that of equality of opportunity.
Likewise, we should avoid, in the absence of compelling reason, a course that
has the effect of unsettling a constitutional position, which has been settled
over a long-term of years by a series of decisions.
The liberal approach that may sometimes have
been adopted in upholding classification under article 14 would in the very
nature of things be not apt in the context of article 16 when we keep in view
the object underlying article 16. Article 14 covers a very wide and general
field of equality before the law and the equal protection of the laws. It is,
therefore, permissible to cover within its ambit manifold classifications as
long as they are reasonable and have a rational connection with the object
thereof. As against that, article 16 operates in the limited area of equality
of opportunity for all citizens in matters relating to employment or
appointment to an office under the State. Carving out classes of citizens for
favoured treatment in matters of public employment, except in cases for which
there is an express provision contained in clause (4) of article 16, would as
already pointed out above in the very nature of things run counter to the
concept underlying clause (1) of article 16.
The matter can also be looked at from another
angle. If it was permissible to accord favoured treatment to members of
backward classes under clause (1) of article 16, there would have been no
necessity of inserting clause (4) in article 16. Clause (4) in article 16 in
such an event would have to be treated as wholly superfuous and redundant. The
normal rule of interpretation is that no provision of the Constitution is to be
treated as redundant and superfuous.
The Court would, therefore, be reluctant to accept
a view which would have the effect of rendering clause (4) of article 16
redundant and superfuous.
This Court in the case of State of Madras v.
Shrimati Champakkam Dorairajan(1) unequivocally repelled the argument the
effect of which would have been to treat clause (4) of article 16 to be wholly
unnecessary and redundant. Question which arose for consideration in that case
was whether a Communal G.O. fixing percentage of seats for different sections
of population for admission in the engineering and medical colleges of the
State of Madras contravened the fundamental rights. It was held that the
Communal G.O. by which percentage of seats was apportioned contravened article
29(2) of the Constitution. A seven-Judge Bench of this Court in that case referred
to clause (4) of article 16 of the Constitution and observed:
"If the argument founded on article 46
were sound then clause (4) of article 16 would have been wholly unnecessary 945
and redundant. Seeing, however, that clause (4) was inserted in article 16, the
omission of such an express provision from article 29 cannot but be regarded as
significant. It may well be that the intention of the Constitution was not to
introduce at all communal considerations in matters of admission into any
educational institution maintained by the State or receiving aid out of State
funds. The protection of backward classes of citizens may require appointment
of members of backward classes in State services and the reason why power has
been given to the State to provide for reservation of such appointments for
backward classes may under those circumstances be understood.
That consideration, however, was not
obviously considered necessary in the case of admission into an educational
institution and that may well be the reason for the omission from article 29 of
a clause similar to clause (4) of article 16." After the above decision of
this Court, clause (4) of article 15 was added in the Constitution by the
Constitution (First Amendment) Act, 1951 and the same reads as under:
"Nothing in this article or in clause
(2) of article 29 shall prevent the State from making any special provision for
the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes." If the power of
reservation of seats for backward classes was already contained in clause (1)
of article 15, the decision in the above mentioned case would in the very
nature of things have been different and there would have been no necessity for
the introduction of clause (4) in article 15 by means of the Constitution
(First Amendment) Act. The fact that clause (4) of article 15 is similar to
clause (4) of article 16 was also emphasised by this Court in the case of M. R.
Balaji & Ors. v. State of Mysore(1).
It has been argued that there are
observations in the case of Champakam (supra) relating to the Directive
Principles of State Policy which should be deemed to have been overruled by the
decision of this Court in the case of Kesavananda Bharati(2). It is, in our
opinion, not necessary to express an opinion on this aspect. Whatever view one
may take with regard to those observations, they would not detract from the
correctness of the unanimous decision of the seven-Judge Bench of this Court in
that case that, in the absence of provision like clause (4) of article 15, it
was not permissible to make reservation of seats for admission to engineering
and medical colleges on the ground of backwardness.
The matter can also be looked at from another
angle.
Departmental tests are prescribed to ensure
standards of efficiency for the employees. To promote 34 out of 51 persons
although they have not 946 passed the departmental tests and at the same time
not to promote those who have passed the departmental tests can hardly be
conducive to efficiency. There does not, therefore, appear to be any infirmity
in the finding of the High Court that the impugned promotions are also
violative of article 335 of the Constitution.
I may state that there is no dispute so far
as the question is concerned about the need to make every effort to ameliorate
the lot of backward classes, including the members of the scheduled castes and
the scheduled tribes. We are all agreed on that. The backwardness of those
sections of population is a stigma on our social set up and has got to be
erased as visualized in article 46 of the Constitution. It may also call for
concrete acts to atone for the past neglect and exploitation of those classes
with a view to bring them on a footing of equality, real and effective, with
the advanced sections of the population. The question with which we are
concerned, however, is whether the method which has been adopted by the
appellants is constitutionally permissible under clause (1) of article 16.
The answer to the above question, in my
opinion, has to be in the negative. Apart from the fact that the acceptance of
the appellants' contention would result in undermining the principle of
equality of opportunity enshrined in clause (1) of article 16, it would also in
effect entail overruling of the view which has so far been held by this Court
in the cases of Champakam, Rangachari and Devadasan (supra). It find no
sufficient ground to warrant such a course. The State, in my opinion, has ample
power to make provision for safeguarding the interest of backward classes under
clause (4) of article 16 which deals with reservation of appointments or posts
for backward classes not adequately represented in the services under the
State. Inaction on the part of the State under clause (4) of article 16 cannot
in my opinion, justify strained construction of clause (1) of article 16. We
have also to guard against allowing our supposed zeal to safeguard the
interests of members of scheduled castes and scheduled tribes to so sway our mind
and warp our judgment that we drain off the substance of the contents of clause
(1) of article 16 and whittle down the principle of equality of opportunity in
the matter of public employment enshrined in that clause in such a way as to
make it a mere pious wish and teasing illusion. The ideals of supremacy of
merit, the efficiency of services and the absence of discrimination in sphere
of public employment would be the obvious casualties if we once countenance
inroads to be made into that valued principle beyond those warranted by clause
(4) of article 16.
The appeal is dismissed with costs.
MATHEW, J.-The facts of the case have been
stated in the judgment of the learned Chief Justice and it is not necessary to
repeat them. The point which arises for consideration is whether rule 13AA made
by Ex. P-1 amendment to the Kerala State and Subordinate Services Rules, 1958,
and Exhibits P-2 and P-6 the orders passed by government in the exercise of
their power under that rule, were valid. The rule reads:
947 "13AA. Notwithstanding anything
contained in these rules, the Government may, by order exempt for a specified
period, any member or members, belonging to a Scheduled Caste or a Scheduled
Tribe, and already in service, from passing the test referred to in Rule 13 or
Rule 13A of the said Rules." Rule 13AA came into force on 13-1-1972 and on
the same day Ex. P-2 Order was passed granting temporary exemption to members
already in service belonging to any of the Scheduled Castes and Scheduled
Tribes from passing any of two the tests (unified and special or departmental
tests) for a period of two years. Thereafter another order was passed (Ex. P-6)
on 11-1-1974 granting exemption for a period of another two years.
The High Court was of the view that rule 13AA
violated Article 16(1) and that Article 16(4) which provides for making
reservation of appointments or posts in favour of backward classes of citizens
which, in the opinion of the State, is not adequately represented in the
service under the State has no application. The Court relied on the decision of
this Court in General Manager, Southern Railway v. Rangachari(1) where it was
held that Article 16(4) is an exception to Article 16(1) and that it does not
take in all the matters covered by Article 16(1) as it is concerned only with
reservation of appointments and posts in favour of backward classes and that
but for Article 16(4) there could be no reservation of posts in favour of
backward classes under the guarantee of equality of opportunity in the matter of
employment.
The learned Advocate General of Kerala
submitted that the Constitution has enjoined a favoured treatment to the
members of Scheduled Castes and Scheduled Tribes by Article 46 and that rule
13AA which empowers the government to exempt for a specified period any member
or members of the Scheduled Castes or Scheduled Tribes already in service from
passing the tests referred to in Rules 13 and 13A of the Rules is only a law
passed by the 'State' in pursuance to its fundamental obligation to advance the
interest of the weakest section of the community. He said that the
implementation of the directive in Article 46 will not be inconsistent in any
manner with the principle of equality of opportunity guaranteed under Article
16(1) and that a rule which dispenses with the passing of a test or tests for a
specified period in the case of members of Scheduled Castes and Scheduled
Tribes will not in any way run counter to the equality of opportunity
guaranteed to the other sections of the community. Article 46 provides:
"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." Justice Brandeis has said the knowledge must precede
understanding and that understanding must precede judgment.
It will therefore be in the interest of
clarity of thought to begin with an understanding 948 of just what equality of
opportunity means. Article 16(1) provides for equality of opportunity for all
citizens in the matter of employment and there can be no doubt that the
equality guaranteed is an individual right. The concept of equality of
opportunity is an aspect of the more comprehensive notion of equality. The idea
of equality has different shades of meaning and connotations. It has many
facets and implications. Plato's remark about law is equally applicable to the
concept of equality: "a perfectly simple principle can never be applied to
a state of things which is the reverse of simple.(1)" Different writers
tend to emphasize some forms of equality rather than others as of overriding
importance- equality before the law, equality of basic human rights, economic equality,
equality of opportunity or equality of consideration for all persons.
Formal equality is achieved by treating all
persons equally: "Each man to count for one and no one to count for more
than one." But men are not equal in all respects. The claim for equality
is in fact a protest against unjust, undeserved and unjustified inequalities.
It is a symbol of man's revolt against chance, fortuitous disparity, unjust
power and crystallised privileges. Although the decision to grant equality is
motivated prima facie by the alleged reason that all men are equal yet, as soon
as we clear up the confusion between equality in the moral sense and equality
in the physical sense, we realise that the opposite is the truth; for, we think
that it is just to promote certain equalities precisely to compensate for the
fact that men are actually born different. We, therefore, have to resort to
some sort of proportionate equality in many spheres to achieve justice.
The principle of proportional equality is
attained only when equals are trated equally and unequals unequally. This would
raise the baffling question. Equals and unequals in what ? The principle of
proportional equality therefore involves an appeal to some criterion in terms
of which differential treatment is justified. If there is no significant
respect in which persons concerned are distinguishable, differential treatment
would be unjustified. But what is to be allowed as a significant difference
such as would justify differential treatment? In distributing the office of a
state, not any sort of personal equality is relevant; for, unless we employ
criteria appropriate to the sphere in question, it would turn out that a man's
height or complexion could determine his eligibility or suitability for a post.
As Aristotle said, claims to political office cannot be based on prowess in
athletic contests. Candidates for office should possess those qualities that go
to make up an effective use of the office. But this principle also does not
give any satisfactory answer to the question when differential treatment can be
meted out. As I said, the principle that if two persons are being treated or
are to be treated differently there should be some relevant difference between
them is, no doubt, unexceptionable. Otherwise, in the absence of some
differentiating feature what is sauce for the goose is sauce for the gander.
The real difficulty arises in finding out what constitutes a relevant
difference.
949 If we are all to be treated in the same
manner, this must carry with it the important requirement that none of us
should be better or worse in up bringing, education, than any one else which is
an unattainable ideal for human beings of anything like the sort we now see.
Some people maintain that the concept of equality of opportunity is an
unsatisfactory concept. For, a complete formulation of it renders it
incompatible with any form of human society. Take for instance, the case of
equality of opportunity for education. This equality cannot start in schools
and hence requires uniform treatment in families which is an evident
impossibility. To remedy this, all children might be brought up in state
nurseries, but, to achieve the purpose, the nurseries would have to be run on
vigorously uniform lines.
Could we guarantee equality of opportunity to
the young even in those circumstances ? The idea is well expressed by Laski:
"Equality means, in the second place,
that adequate opportunities are laid open to all. By adequate opportunities we
cannot imply equal opportunities in a sense that implies identity of original
chance. The native endowments of men are by no means equal. Children who are
brought up in an atmosphere where things of the mind are accounted highly are
bound to start the race of life with advantages no legislation can secure. Parental
character will inevitably affect profoundly the quality of the children whom it
touches. So long, therefore, as the family endures-and there seems little
reason to anticipate or to desire its disappearance-the varying environments it
will create make the notion of equal opportunities a fantastic one."(1)
Though complete inentity of equality of opportunity is impossible in this
world, measures compensatory in character and which are calculated to mitigate
surmountable obstacles to ensure equality of opportunity can never incur the
wrath of Article 16(1).
The notion of equality of opportunity is a
notion that a limited good shall in fact be allocated on the grounds which do
not a priori exclude any section of those that desire it(2). All sections of people
desire and claim representation in the public service of the country, but the
available number of posts are limited and therefore, even though all sections
of people might desire to get posts, it is practically impossible to satisfy
the desire. The question therefore is: On what basis can any citizen or class
of citizens be excluded from his or their fair share of representation? Article
335 postulates that members of Scheduled Castes and Scheduled Tribes have a
claim to representation in the public service both of the Union and the States
and that the claim has to be taken into consideration consistently with the
maintenance of efficiency of administration in the making of appointments to
services of the Union and the States. As I said, the notion 950 of equality of
opportunity has meaning only when a limited good or, in the present context, a
limited number of posts, should be allocated on grounds which do not a priori
exclude any section of citizens of those that desire it.
What, then, is a priori exclusion ? It means
exclusion on grounds other than those appropriate or rational for the good
(posts) in question. The notion requires not merely that there should be no
exclusion from access on grounds other than those appropriate or rational for
the good in question, but the grounds considered appropriate for the good
should themselves be such that people from all sections of society have an
equal chance of satisfying them.
Bernard A. O. Williams, in his article
"The Idea of Equality" (supra) gives an illustration of the working
of the principle of equality of opportunity:
"Suppose that in a certain society great
prestige is attached to membership of a warrior class, the duties of which
require great physical strength. This class has in the past been recruited from
certain wealthy families only; but egalitarian reformers achieve a change in
the rules, by which warriors are recruited from all sections of the society, on
the result of a suitable competition. The effect of this, however, is that the
wealthy families still provide virtually all the warriors, because the rest of
the populace is so undernourished by reason of poverty that their physical
strength is inferior to that of the wealthy and well nourished. The reformers
protest that equality of opportunity has not really been achieved;
the wealthy reply that in fact it has, and
that the poor now have the opportunity of becoming warriors- -it is just bad
luck that their characteristics are such that they do not pass the test.
"We are not", they might say, "excluding anyone for being poor;
we exclude people for being weak, and it is unfortunate that those who are poor
are also weak." This is not a satisfactory answer though it may sound
logical. The supposed equality of opportunity is quite empty. One knows that
there is a causal connection between being poor and being under-nourished and
between being under-nourished and being physically weak. One supposes further
that something should be done subject to whatever economic conditions obtain in
the society to alter the distribution of wealth. All this being so, the appeal
by the wealthy to bad luck of the poor must appear rather disingenuous.
It is clear that one is not really offering
equality of opportunity to X and Y if one contents oneself with applying the
same criteria to X and Y. What one is doing there is to apply the same criteria
to X as affected by favourable conditions and to Y as affected by unfavourable
but curable conditions. Here there is a necessary pressure to equal up the
conditions. To give X and Y equality of opportunity involves regarding their
conditions, where curable, as 951 themselves part of what is done to X and Y
and not part of X and Y themselves. Their identity for this purpose does not
include their curable environment, which is itself unequal and a contributor of
inequality [see Williams, "The Idea of Equality" (supra)].
In Ahmedabad St. Xavier's College Society and
Another v. The State of Gujarat and Another(1), in the judgment on behalf of
Chandrachud, J. and myself, I said at p. 798:
"The problem of the minorities is not
really a problem of the establishment of equality because, if taken literally,
such equality would mean absolute identical treatment of both the minorities
and the majorities. This would result only in equality in law but inequality in
fact" and that "It is obvious that equality in law precludes
discrimination of any kind; whereas equality in fact may involve the necessity
of differential treatment in order to attain a result which establishes an
equilibrium between different situations." It would follow that if we want
to give equality of opportunity for employment to the members of the Scheduled
Castes and Scheduled Tribes, we will have to take note of their social,
educational and economic environment. Not only is the directive principle
embodied in Article 46 binding on the law-maker as ordinarily understood but it
should equally inform and illuminate the approach of the Court when it makes a
decision as the Court also is 'state' within the meaning of Article 12 and
makes law even though "interstitially from the molar to the
molecular". I have explained at some length the reason why Court is
'state' under Article 12 in my judgment in His Holiness Kesavananda Bharati
Sripadagalavaru v. State of Kerala and Another, etc.
(2).
Equality of opportunity is not simply a
matter of legal equality. Its existence depends, not merely on the absence of
disabilities, but on the presence of abilities. It obtains in so far as, and
only in so far as, each member of a community, whatever his birth or occupation
or social position, possesses in fact, and not merely in form, equal chances of
using to the full his natural endowments of physique, of character, and of
intelligence(3).
The guarantee of equality before the law or the
equal opportunity in matters of employment is a guarantee of something more
than what is required by formal equality. It implies differential treatment of
persons who are unequal.
Egalitarian principle has therefore enhanced
the growing belief that government has an affirmative duty to eliminate
inequalities and to provide opportunities for the exercise of human rights and
claims. Fundamental rights as enacted in Part III of the Constitution are, by
and large, essentially negative in character.
952 They mark off a world in which the
government should have no jurisdiction. In this realm, it was assumed that a
citizen has no claim upon government except to be let alone. But the language
of Article 16(1) is in marked contrast with that of Article 14. Whereas the
accent in Article 14 is on the injunction that the State shall not deny to any
person equality before the law or the equal protection of the laws, that is, on
the negative character of the duty of the State, the emphasis in Article 16(1)
is on the mandatory aspect, namely, that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any office
under the State implying thereby that affirmative action by Government would be
consistent with the Article if it is calculated to achieve it. If we are to
achieve equality, we can never afford to relax. "While inequality is easy
since it demands no more than to float with the current, equality is difficult
for it involves swimming against it. (1)".
Today, the political theory which
acknowledges the obligation of government under Part IV of the Constitution to
provide jobs, medical care, old age pension, etc. extends to human rights and
imposes an affirmative obligation to promote equality and liberty. The force of
the idea of a state with obligation to help the weaker sections of its members
seems to have increasing infuence in constitutional law. The idea finds
expression in a number of cases in America involving racial discrimination and
also in the decisions requiring the state to offset the effects of poverty by
providing counsel, transcript of appeal, expert witnesses, etc. Today the sense
that government has affirmative responsibility for elimination of inequalities,
social, economic or otherwise, is one of the dominant forms in constitutional
law. While special concessions for the underprivileged have been easily
permitted, they have not traditionally been required. Decisions in the areas of
criminal procedure, voting rights and education in America suggest that the
traditional approach may not be completely adequate. In these areas, the
inquiry whether equality has been achieved no longer ends with numerical
equality; rather the equality clause has been held to require resort to a
standard of proportional equality which requires the state, in framing
legislation, to take into account the private in equalities of wealth, of
education and other circumstances(2).
The idea of compensatory state action to make
people who are really unequal in their wealth, education or social environment,
equal, in specified areas, was developed by the Supreme Court of the United
States. Rousseau has said: "It is precisely because the force of
circumstances tends to destroy equality that force of legislation must always tend
to maintain it (3)." 953 In Griffin v. Illinois(1), an indigent defendant
was unable to take advantage of the one appeal of right granted by Illinois law
because he could not afford to buy the necessary transcript. Such transcripts
were made available to all defendants on payment or a similar fee; but in
practice only non-indigents were able to purchase the transcript and take the
appeal. The Court said that "there can be no equal justice where the kind
of trial a man gets depends on the amount of money he has" and held that
the Illinois procedure violated the equal protection clause. The state did not
have to make appellate review available at all; but if it did, it could not do
so in a way which operated to deny access to review to defendants solely because
of their indigency. A similar theory underlies the requirement that counsel be
provided for indigents on appeal. In Douglas v. California(2), the case
involved the California procedure which guaranteed one appeal of right for
criminal defendants convicted at trial. In the case of indigents the appellate
court checked over the record to see whether it would be of advantage to the
defendant or helpful to the appellate court to have counsel appointed for the
appeal. A negative answer meant that the indigent had to appeal pro se if at
all. The Court held that this procedure denied defendant the equal protection
of the laws. Even though the state was pursuing an otherwise legitimate
objective of providing counsel only for non-frivolous claims, it had created a situation
in which the well-to-do could always have a lawyer-even for frivolous appeals-
whereas the indigent could not.
Justice Harlan, dissenting in both Griffin
and Douglas cases (supra) said that they represented a new departure from the
traditional view that numerically equal treatment cannot violate the equal
protection clause. He concluded that the effect of the decisions was to require
state discrimination. He said:
"The Court thus holds that, at least in
this area of criminal appeals, the Equal Protection Clause imposes on the
States an affirmative duty to lift the handicaps flowing from differences in
economic circumstances. That holding produces the anomalous result that a
constitutional admonition to the States to treat all persons equally means in
this instance that Illinois must give to some that it requires others to pay
for....It may accurately be said that the real issue in this case is not
whether Illinois has discriminated but whether it has a duty to
discriminate." Though in one sense Justice Harlan is correct, when one
comes to think of the real effect of his view, one is inclined to think that
the opinion failed to recognise that there are several ways of looking at
equality, and treating people equally in one respect always results in unequal
treatment in some other respects. For Mr. Justice Harlan, the only type of
equality that mattered was numerical equality in the terms upon which
transcripts were offered to defendants. The maiority, on the other hand, took a
view which would bring about equality 954 in fact, requiring similar
availability to all of criminal appeals in Griffin's case and counsel-attended
criminal appeals in Douglas' case. To achieve this result, the legislature had
to resort to a proportional standard of equality. These cases are remarkable in
that they show that the kind of equality which is considered important in the
particular context and hence of the respect in which it is necessary to treat
people equally(1).
Look at the approach of the Supreme Court of
United States of America in Harper v. Virginia Board of Elections(2). The Court
there declared as unconstitution a Virginia poll tax of $ 1.50 per person which
had been applied to all indiscriminately. As in Griffin and Douglas, the state
had treated everyone numerically alike with respect to the fee. Whatever
discrimination existed was the result of the state's failure to proportion the
fee on the basis of need or, what is the same thing, to employ a numerically
equal distribution with respect to the vote itself. The result again is a
requirement that the legislature should take note of difference in private
circumstances in formulating its policies.
There is no reason why this Court should not
also require the state to adopt a standard of proportional equality which takes
account of the differing conditions and circumstances of a class of citizens
whenever those conclusions and circumstances stand in the way of their equal
access to the enjoyment of basic rights or claims.
The concept of equality of opportunity in
matters of employment is wide enough to include within it compensatory measures
to put the members of the Scheduled Castes and Scheduled Tribes on par with the
members of other communities which would enable them to get their share of
representation in public service. How can any member of the so called forward
communities complain of a compensatory measure made by government to ensure the
members of Scheduled Castes and Scheduled Tribes their due share of
representation in public services ? It is said that Article 16(4) specifically
provides for reservation of posts in favour of backward classes which according
to the decision of this Court would include the power of the State to make
reservation at the stage of promotion also and therefore Article 16(1) cannot
include within its compass the power to give any adventitious aids by
legislation or otherwise to the backward classes which would deregate from
strict numerical equality. If reservation is necessary either at the initial
stage or at the stage of promotion or at both to ensure for the members of the
Scheduled Castes and Schedu'ed Tribes equality of opportunity in the matter of
employment. I see no reason why that is not permissible under Article 16(1) as
that alone might put them on a parity with the forward communities in the
matter of achieving the result which equality of opportunity would produce.
Whether there is equality of opportunity can be gauged only by the equality 955
attained in the result. Formal equality of opportunity simply enables people
with more education and intelligence to capture all the posts and to win over
the less fortunate in education and talent even when the competition is fair.
Equality of result is the test of equality of
opportunity.
Daniel P. Moynihan, one of America's leading
urban scholars, spelled out the problem in a widely publicized study that he
prepared while he was Assistant Secretary of Labour. The Moynihan Report, as it
came to be known, made the point in a passage that deserves full quotation:
"It is increasingly demanded that the
distribution of success and failure within one group be roughly comparable to
that within other groups. It is not enough that all individuals start out on
even terms, if the members of one group almost invariably end up well to the
fore and those of another far to the rear. This is what ethnic politics are all
about in America, and in the main the Negro American demands are being put
forth in this new traditional and established framework.
"Here a point of semantics must be
grasped. The demand for equality of opportunity has been generally perceived by
White Americans as a demand for liberty, a demand not to be excluded from the
competitions of life- at the polling place, in the scholarship examinations, at
the personnel office, on the housing market. Liberty does, of course, demand
that everyone be free to try his luck, or test his skill in such matters. But
those opportunities do not necessarily produce equality: On the contrary, to
the extent that winners imply losers, equality of opportunity almost insures
inequality of results.
"The point of semantics is that equality
of opportunity now has a different meaning for Negroes than it has for Whites.
It is not (or at least no longer) a demand for liberty alone, but also for
equality-in terms of group results. In Bayard Rustin's terms, 'It is now
concerned not merely with removing the barriers to full opportunity but with
achieving the fact of equality.' By equality Rustin means a distribution of
achievements among Negroes roughly comparable to that among Whites."(1)
Beginning most notably with the Supreme Court's condemnation of school
segregation in 1954, the United States has finally begun to correct the
discrepancy between its ideals and its treatment of the black man. The first steps,
as refected in the decisions of the courts and the civil rights laws of
Congress, merely removed the legat and quasi-legal forms of racial
discrimination. These actions while not 956 producing true equality, or even
equality of opportunity, logically dictated the next step: positive use of
government power to create the possibility of a real equality. In the words of
Professor Lipset: "Perhaps the most important fact to recognise about the
current situation of the American Negro is that (legal) equality is not enough
to insure his movement into larger society."(1) I agree that Article 16(4)
is capable of being interpreted as an exception to Article 16(1) if the
equality of opportunity visualized in Article 16(1) is a sterile one geared to
the concept of numerical equality which takes no account of the social,
economic, educational background of the members of Scheduled Castes and
Scheduled Tribes. If equality of opportunity guaranteed under Article 16(1)
means effective material equality, then Article 16(4) is not an exception to
Article 16(1). It is only an emphatic way of putting the extent to which
equality of opportunity could be carried viz., even upto the point of making
reservation.
The State can adopt any measure which would
ensure the adequate representation in public service of the members of the
Scheduled Castes and Scheduled Tribes and justify it as a compensatory measure
to ensure equality of opportunity provided the measure does not dispense with
the acquisition of the minimum basic qualification necessary for the efficiency
of administration.
It does not matter in the least whether the
benefit of rule 13AA is confined only to those members of Scheduled Castes and
Scheduled Tribes in service at the time and that it is not extended to all members
of the backward classes.
The law-maker should have liberty to strike
the evil where it is felt most.
Article 16(1) is only a part of a
comprehensive scheme to ensure equality in all spheres. It is an instance of
the application of the larger concept of equality under the law embodied in
Articles 14 and 15. Article 16(1) permits of classification just as Article 14
does [see S. G.
Jaisinghani v. Union of India & ors.(2),
State of Mysore & Anr. v. P. Narasing Rao(3) and C. A. Rajendran v. Union
of India & Ors.(4).]. But, by the classification, there can be no
discrimination on the ground only of race, caste and other factors mentioned in
Article 16(2).
The word 'caste' in Article 16(2) does not
include 'Scheduled Caste'. The definition of 'scheduled castes' in Article 366
(24) means: "such castes, races or tribes or parts of or groups within
such castes, races, or tribes as are deemed under Article 341 to be Scheduled
Castes for the purposes of this Constitution." This shows that it is by virtue
of the notification of the President that the Scheduled 957 Castes come into
being. Though the members of the Scheduled Castes are drawn from castes, races
or tribes, they attain a new status by virtue of the Presidential notification.
Moreover, though the members of tribe might
be included in Scheduled Castes, tribe as such is not mentioned in Article
16(2).
A classification is reasonable if it includes
all persons who are similarly situated with respect to the purpose of the law.
In other words, the classification must be founded on some reasonable ground
which distinguishes persons who are grouped together and the ground of
distinction must have rational relation to the object sought to be achieved by
the rule or even the rules in question. It is a mistake to assume a priori that
there can be no classification within a class, say, the Lower Division Clerks.
If there are intelligible differentia which separate a group within that class
from the rest and that differentia have nexus with the object of classification,
I see no objection to a further classification within the class. It is no doubt
a paradox that though in one sense classification brings about inequality, it
is promotive of equality if its object is to bring those who share a common
characteristic under a class for differential treatment for sufficient and
justifiable reasons. In this view, I have no doubt that the principle laid down
in All-India Station Masters' and Assistant Station Masters' Association v.
General Manager, Central Railway and Others(1),
S. G.
Jaisinghani v. Union of India and Others
(supra) and State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.(2)
has no application here.
Article 16(1) and Article 16(2) do not
prohibit the prescription of a reasonable qualification for appointment or for
promotion. Any provision as to qualification for employment or appointment to
an office reasonably fixed and applicable to all would be consistent with the
doctrine of equality of opportunity under Article 16(1) [see The General
Manager, Southern Railway v. Rangachari(3)].
Rule 13 provides that no person shall be
eligible for appointment to any service unless he possesses the special
qualification and has passed such special tests as may be prescribed in that
behalf by special rules or possesses such special qualification as he
considered to be equivalent to the said special qualification or special tests.
The material provision in rule 13A provides
that notwithstanding anything contained in rule 13, where a pass in a special
or departmental test is newly prescribed by the Special Rules of a service for
any category, grade or post therein or in any class thereof, a member of a
service who has not passed the said test but is otherwise qualified and
suitable for appointment to such class, category, grade or post may within two
years of the introduction of the test be appointed thereto temporarily.
958 Rule 14 provides for reservation of
appointments to members of Scheduled Castes and Scheduled Tribes.
Rule 13AA has been enacted not with the idea of
dispensing with the minimum qualification required for promotion to a higher
category or class, but only to give enough breathing space to enable the
members of Scheduled Castes and Scheduled Tribes to acquire it. The purpose of
the classification made in rule 13AA viz., of putting the members of Scheduled
Castes and Scheduled Tribes in one class and giving them an extension of time
for acquiring the test qualification prescribed by rule 13 and rule 13A is to
enable them to have their due claim of representation in the higher category
without sacrificing the efficiency implicit in the passing of the test. That
the passing of some of these tests does not spell in the realm of minimum basic
requirement of efficiency is clear from rule 13A. That rule, at any rate,
contemplated passing of the test by all the employees within two years of its
introduction showing thereby that acquisition of the test qualification was not
a sine qua non for holding the posts. Rule 13(b) which provides for exemption
from passing the test would also indicate that passing of the test is not
absolutely essential for holding the post. The classification made in rule 13AA
has a reasonable nexus with the purpose of the law, namely, to enable the
members of Scheduled Castes and Scheduled Tribes to get their due share of
promotion to the higher grade in the service without impairing the efficiency
of administration. Rule 13AA is not intended to give permanent exemption to the
members of Scheduled Castes and Scheduled Tribes from passing the test but only
reasonable time to enable them to do so. The power to grant exemption under the
rule, like every other power, is liable to be abused. If the power is abused
and the members of the Scheduled Castes and Scheduled Tribes are given favoured
treatment to the extent not warranted by their legitimate claim, the courts are
not rendered helpless. That the power is liable to be abused is no reason to
hold that the rule itself viz., rule 13AA, is bad.
The ultimate reason for the demand of
equality for the members of backward classes is a moral perspective which
affirms the intrinsic value of all human beings and call for a society which
provides those conditions of life which men need for development of their
varying capacities. It is an assertion of human equality in the sense that it
manifests an equal concern for the well being of all men. On the one hand it
involves a demand for the removal of those obstacles and impediments which
stand in the way of the development of human capacities-that is it is a call
for the abolition of unjustifiable inequalities. On the other hand, the demand
itself gets its sense and moral driving force from the recognition that 'the
poorest he that is in England hath a life to live, as the greatest he'(1).
959 I agree with the conclusion of my Lord
the Chief Justice that the appeal should be allowed.
BEG, J : I share the conclusion reached by
the learned Chief Justice and my learned brethren Mathew, Krishna Iyer, and
Murtaza Fazal Ali. I would, however, like to add, with great respect, that a
view which though not pressed in this Court by the Advocate General of Kerala,
perhaps because it had been repelled by the Kerala High Court, seems to me to
supply a more satisfying legal justification for the benefits conferred, in the
form of an extended period granted to Government employees of a backward class
to pass a qualifying test for promotion to a higher grade of service, that is
to say, from that of the Lower Division Clerks to that of the Upper Division
Clerks in the State of Kerala. I think that we have to, in such a case,
necessarily consider whether the manner in which Scheduled Caste and Scheduled
Tribe Government employees are treated by the rules and orders under
consideration falls within Article 16(4) of the Constitution.
Strictly speaking, the view adopted by my
learned brother Khanna, that the ambit of the special protection of
"equality of opportunity in matters relating to public service",
which can be made available to members of backward classes of citizens, is
exhausted by Article 16(4) of the Constitution, seems inescapable. Article 16
is after all, a facet of the grand principles embraced by Article 14 of our
Constitution. It guarantees : "Equality of opportunity in matters of
public appointment". It does so in absolute terms. It is a necessary
consequence and a special application of Article 14 in an important field where
denial of equality of opportunity cannot be permitted. While Article 16(1) sets
out the positive aspect of equality of opportunity in matters relating to
employment by the State, Article 16(2) negatively prohibits discrimination on
the grounds given in Article 16(2) in the area covered by Article 16(1) of the
Constitution. If Scheduled Castes do not fall within the ambit of Article
16(2), but, as a "backward class" of citizens, escape the direct
prohibition it is because the provisions of Article 16(4) make such an escape
possible for them. They could also avoid the necessary consequences of the
positive mandate of Article 16(1) if they come within the only exception
contained in Article 16(4) of the Constitution. I respectfully concur with my
learned brother Khanna and Gupta that it would be dangerous to extend the
limits of protection against the operation of the principle of equality of opportunity
in this field bevond its express constitutional authorisation by Article 16(4).
When citizens are already employed in a
particular grade, as Government servants, considerations relating to the
sources from which they are drawn lose much of their importance. As public
servants of that grade they could, quite reasonably and logically, be said to
belong to one class, atleast for purposes of promotion in public service for
which there ought to be a real "equality of opportunity" 960 if we are
to avoid heart burning or a sense of injustice or frustration in this class.
Neither as members of this single class nor for purposes of the equality of
opportunity which is to be afforded to this class does the fact that some of
them are also members of an economically and socially backward class continue
to be material, or, strictly speaking, even relevant. Their entry into the same
relevant class as others must be deemed to indicate that they no longer suffer
from the handicaps of a backward class. For purposes of Government service the
source from which they are drawn should cease to matter. As Government servants
they would, strictly speaking, form only one class for purposes of promotion.
As has been pointed out by Mylord the Chief
Justice, the protection of Article 16(1) continues throughout the period of
service. If Article 16(1) is only a special facet or field, in which an
application of the general principles of Article 14 is fully worked out or
stated, as it must be presumed to be, there is no room left for importing into
it any other or further considerations from Article 14. Again the express
provisions of Article 16(4) would be presumed to exhaust all exceptions made in
favour of backward classes not contained there if we apply the maxim expressio
unius est exclusio alterius". It is true that the principle of reasonable
classification may still claim recognition or be relevant for working out the
exact significance of "equality of opportunity" even within Article
16(1) in some aspect or context other than the one indicated by Article 16(4).
But, in view of Article 16(4), that aspect or context must be different from
one aimed at realizing the objects of Articles 46 and 335 in the sphere of
Government service. The specified and express mode of realization of these
objects contained in Article 16(4), must exclude the possibility of other
methods which could be implied and read into Article 16(1) for securing them in
this field. One could think of so many other legally permissible and possibly
better, or, atleast more direct, methods of removing socio-economic
inequalities by appropriate legislative action in other fields left open and
unoccupied for purposes of discrimination in favour of the backward.
In relation to promotions, "equality of
opportunity" could only mean subjection to similar conditions for
promotion by being subjected uniformly to similar or same kind of tests. This
guarantee was, in fact, intended to protect the claims of merit and efficiency
as against incursions of extraneous considerations. The guarantee contained in
Article 16(1) is not, by itself, aimed at removal of backwardness due to
socio-economic and educational disparties produced by past history of social
oppression, exploitation, or degradation of a class of persons. In fact, efficiency
tests, as parts of a mechanism to provide equality of opportunity, are meant to
bring out and measure actually existing inequalities in competence and capacity
or potentialities so as to provide a fair and rational basis for justifiable
discrimination between candidates. Whatever may be the real causes of unequal
performances which imposition of tests may disclose, the purpose of equality of
opportunity by means of tests is only to ensure a fair competition in securing
posts and promotions in Government service, and not the removal of causes for
unequal performances in 961 competitions for these posts or promotions. Thus,
the purposes of Articles 46 and 335, which are really extraneous to the objects
of Article 16(1), can only be served in such a context by rules which secure
preferential treatment for the backward classes and detract from the plain
meaning and obvious implications of Article 16(1) and 16(2). Such special
treatment mitigates the rigour of a strict application of the principle contained
in Article 16(1). It constitutes a departure from the principle of absolute
equality of opportunity in the application of uniform tests of competence.
Article 16(4) was designed to reconcile the conflicting pulls of Article 16(1),
representing the dynamics of justice, conceived of as equality in conditions
under which candidates actually compete for posts in Government service, and of
Articles 46 and 335, embodying the duties of the State to promote the interests
of the economically, educationally, and socially backward so as to release them
from the clutches of social injustice. These encroachments on the field of
Article 16(1) can only be permitted to the extent they are warranted by Article
16(4).
To read broader concepts of social justice
and equality into Article 16(1) itself may stultify this provision itself and
make Article 16(4) otiose.
Members of a backward class could be said to
be discriminated against if severer tests were prescribed for them. But, this
is not the position in the case before us.
All promotees, belonging to any class, caste,
or creed, are equally subjected to efficiency tests of the same type and
standard. The impugned rules do not dispense with these tests for any class or
group. Indeed, such tests could not be dispensed with for employees from
Scheduled Castes, even as a backward class, keeping in view the provisions of
Article 335 of the Constitution. All that happens here is that the backward
class of employees is given a longer period of time to pass the efficiency
tests and prove their merit as determined by such tests. It has been,
therefore, argued that, in this respect, there is substantial equality.
In other words, the argument is that if
Article 16(1) could be interpreted a little less rigidly and more liberally the
discrimination involved here will not fall outside it. Even if this was a
tenable view. I would, for all the reasons given here, prefer to find the
justification if this is possible, in the express provisions of Article 16(4)
because this is where such a justification should really lie.
In the case before us, it appears that
respondent petitioner's grievance was that certain members of the Scheduled
Castes, as a backward class, had been given preference over him inasmuch as he
was not promoted despite having passed the efficiency test, but certain members
of the backward class were allowed to remain in the higher posts as temporary
promotees, without having passed the efficiency tests, because they had been
given an extended period of time to satisfy the qualifying tests. The
petitioner thus claimed priority on the ground of merit judged solely by taking
and passing the efficiency test earlier. Apparently, he was not even promoted,
whereas the backward class employees said to have been given preference over him
962 were, presumably quite satisfactorily, discharging their duties in the
higher grade in which they were already working as temporary promotees. He also
admits that the respondents, over whom he claims preference for promotion, were
his seniors in service who had put in longer terms of total service before
their conditional promotions temporarily into the grade of the Upper Division
Clerks. It seems to me that the taking and passing of a written test earlier
than another employee could not be the sole factor to consider in deciding upon
a claim to superiority or to preference on grounds of merit and efficiency for
promotion as a Government servant.
The relevant rule 13A shows that a person who
is allowed temporarily to work in the cadre of promotees, even without having
passed the special efficiency test, must, nevertheless, have satisfied the test
of being "otherwise qualified and suitable for appointment". Thus, an
employee from a Scheduled Caste has also to be "otherwise qualified"
before he is given an opportunity to work with others similarly promoted
temporarily. The only difference is that, whereas the others get only two years
from the introduction of the new test within which to qualify according to the
newly introduced test, an employee of a Scheduled Caste or a Scheduled Tribe,
similarly placed, gets two more years under the second proviso. The impugned
rule 13AA, however, gives power to the Government to specify a longer period of
exemption if it considers this to be necessary. The Governor passed the
impugned order of 13-1-1972 under rule 13AA, extending the period still more.
This order and the relevant rules 13A and 13AA are already set out above in the
judgment of Mylord the Chief Justice. I need not, therefore, reproduce them
here.
What is the effect of the provisions of Rules
13A and 13AA and the order of 13-1-1972 ? Is it not that a person who is in the
position of the respondent petitioner must wait for a place occupied by or
reserved for a person from a Scheduled Caste or Tribe, treated as backward
class, until it is shown that the employee from the backward class has failed
to take and pass the new test despite the extended period given to him. The
effect of the relaxation is that the backward class employee continues in the
post temporarily for a longer period before being either confirmed or reverted.
For this period, the post remains reserved for him. If he does not satisfy the
efficiency tests even within this extended period he has to revert to the lower
grade. If he does satisfy the special efficiency test, in this extended period,
he is confirmed in the class of promotees into which he obtained entry because
of a reservation. Among meanings of the term "reserve", given in the
Oxford Dictionary, are "To keep back or hold over to a later time or place
for further treatment; to set apart for some purpose or with some end in
view". In the Webster's New International Dictionary IInd Edn. (at p.
2118), the following meanings are given: "To keep back; to retain or hold
over to a future time or place; not to deliver, make over or disclose it at
once". The result of the above mentioned rules and orders does seem to me
to be a kind of reservation. If a reservation of posts under Article 16(4) for
employees of backward classes could include complete re- 963 servation of
higher posts to which they could be promoted, about which there could be no
doubt now, I fail to see why it cannot be partial or for a part of the duration
of service and hedged round with the condition that a temporary promotion would
operate as a complete and confirmed promotion only if the temporary promotee
satisfies some tests within a given time.
If the impugned rules and orders could be
viewed as an implementation of a policy of qualified or partial or conditional
reservation, in the form indicated above, which could satisfy the requirements
of substantial equality, in keeping with Article 335, and meet the demands of
equity and justice looked at from the broader point of view of Article 46 of
the Constitution, they could, in my view, also be justified under Article 16(4)
of the Constitution.
It may be that the learned Advocate General
for the appellant State did not press the ground that the impugned rules and
orders are governed by Article 16(4) because of the tests required for complete
or absolute reservation dealt with in T. Devadasan v. the Union of India &
Anr.(1) and M. R. Balajli & Ors. v. State of Mysore(2), where it was held
that more than 50% reservations for a backward class would violate the requirement
of reasonableness inasmuch as it would exclude too large a proportion of
others. Apart from the fact that the case before us is distinguishable as it is
one of only a partial or temporary and conditional reservation, it is disputed
here that the favoured class of employees really constituted more than fifty
per cent of the total number of Government servants of this class (i.e.
Clerks) if the overall position and picture,
by taking the number of employees in all Govt. Departments, is taken into
account. Furthermore, it is pointed out that a large number of temporary
promotions of backward class Government servants of this grade had taken place
in 1972 in the Registration Department, in which the petitioning respondent
worked, because promotions of backward class employees had been held up in the
past due to want of necessary provisions in rules which could enable the
Government to give effect to a policy of a sufficient representation of
backward class employees of this grade in Government service. The totality of
facts of this case is distinguish able in their effects from those in cases
cited before us. No case was cited which could fully cover the position we have
before us now.
I am not satisfied that the only ground given
by the High Court for refusing to give the benefits of impugned rules and
orders to the backward class Government servants, that they fall outside the
purview of Article 16(4), was substantiated. It was for the respondent
petitioner to discharge the burden of establishing a constitutionally unwarranted
discrimination against him. His petition ought in my opinion, to have been
dismissed on the ground that he had failed to discharge this initial burden.
Accordingly, I would allow this appeal and
set aside the judgment and order of the High Court and leave the parties to
bear their own costs throughout.
964 KRISHNA IYER, J.-A case which turns the
focus on the political philosophy pervading the Constitution and affects a
large human segment submerged below the line of ancient social penury, naturally
prompts me to write a separate opinion substantially concurring with that of
the learned Chief Justice. Silence is not always golden.
The highlight of this Civil Appeal against
the High Court's judgment striking down a State Subordinate Service rule,
thereby adversely affecting lower rung officials belonging to the Scheduled
Castes and Scheduled Tribes, is the seminal issue of admissibility and criteria
of classification within the 'equal opportunity' rule in Art.
16(1) and the lethal effect of the built-in
inhibition against caste-based classification contained in Art 16(2) in
relation to these frightfully backward categories. In a large sense, the
questions are res integra and important and cannot be dismissed easily on the
remark of Justice Holmes that the equal protection clause is 'the last resort
of constitutional arguments' (274 U.S. 200, 208).
Law, including constitutional law, can no
longer 'go it alone' but must be illumined in the interpretative process by
sociology and allied fields of knowledge. Indeed, the term 'constitutional law'
symbolizes an intersection of law and politics, wherein issues of political
power are acted on by persons trained in the legal tradition, working in
judicial institutions, following the procedures of law, thinking as lawyers
think.(1) So much so, a wider perspective is needed to resolve issues of
constitutional law. May be, one cannot agree with the view of an eminent jurist
and former Chief Justice of India: 'the judiciary as a whole is not interested
in the policy underlying a legislative measure' (Mr. Hidayatullah-'Democracy in
India and Judicial Process'-1965-p. 70). Moreover, the Indian Constitution is a
great social document, almost revolutionary in its aim of transforming a
medieval, hierarchical society into a modern, egalitarian democracy.
Its provisions can be comprehended only by a
spacious, social-science approach, not by pedantic, traditional legalism. Here
we are called upon to delimit the amplitude and decode the implications of Art.
16(1) in the context of certain special concessions relating to employment,
under the Kerala State (the appellant), given to Scheduled Castes and Scheduled
Tribes (for short, hereinafter referred to as harijans) whose social lot and
economic indigence are an Indian reality recognized by many Articles of the
Constitution. An overview of the decided cases suggests the need to
re-interpret the dynamic import of the 'equality clauses' and, to stress again,
beyond reasonable doubt, that the paramount law, which is organic and regulates
our nation's growing life, must take in its sweep 'ethics, economics, politics
and sociology'. Equally pertinent to the issue mooted before us is the lament
of Friedman:
"It would be tragic if the law were so
petrified as to be unable to respond to the unending challenge of evolutionary
or revolutionary changes in society."(2) 965 The main assumptions which
Friedman makes are:
"first, the law is, in Holmes' phrase,
not a 'brooding omnipotence in the sky', but a flexible instrument of social order,
dependent on the political values of the society which it purports to
regulate...."(1) Naturally surges the interrogation, what are the
challenges of changing values to which the guarantee of equality must respond
and how? To pose the problem with particular reference to our case, does the
impugned rule violate the constitutional creed of equal opportunity in Art. 16
by resort to a suspect classification or revivify it by making the less equal
more equal by a legitimate differentiation ? Chief Justice Marshall's classic
statement in Mc Culloch v Maryland(2) followed by Justice Brennan in Kazenbach
v. Morgan(3) remains a beacon light:
"Let the end be legitimate, let it be
within the scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional." The
background facts may be briefly set out in the elemental form. The Kerala State
and Subordinate Services Rules, 1958 (for short, the rules) regulate the
conditions of service of the State employees of the lower order. We are
concerned with the prescription of qualifications for promotion of the lower
division clerks to upper division posts in the Registration Department. Rule 13
insists on passing certain tests for promotional eligibility. When tests were
newly introduced, r. 13A gave 2 years from their introduction for passing them,
to all hands-harijan and non- harijan, but the former enjoyed an extra two year
grace period. Rule 13B totally exempted pentagenarians from passing these
tests. Rule 13AA, which is impugned as violative of Art. 16(1) and (2) of the
Constitution, was promulgated on January 13, 1972 and it reads:
"13AA. Notwithstanding anything
contained in these rules, the Government may, by order, exempt for a specified
period any member or members, belonging to a Scheduled Caste or a Scheduled
Tribe, and already in service, from passing the tests referred to in rule 13 or
rule 13A of the said Rules.
Provided that this rule shall not be
applicable to tests prescribed for purposes of promotion of the executive staff
below the rank of Sub-Inspectors belonging to the Police Department." 966
A Note appended to the rule gives the raison d' etre of the rule:
"It has been brought to the notice of
Government that a large number of Harijan employees in Public Service are
facing immediate reversion from their posts for want of test qualifications. So
it is considered necessary to incorporate an enabling provision in the Kerala
State and Subordinate Services Rules, 1958 to grant by order temporary
exemption to members already in service belonging to Scheduled Castes and
Scheduled Tribes from passing all tests for a specified period.
This notification is intended to achieve the
above object." A break-up of r. 13AA of the rules certainly gives power to
Government to extend the time to harijan officials of 'subordinate services'
for passing tests prescribed for occupying promotional posts. But it does not
for ever exempt these hands but only waive for a specified, presumably, short
term. Nor does it relax the minimal qualifications held necessary for these
posts from the point of view of basic administrative efficiency. The subsidiary
need of passing certain new tests, for which all employees get some period
(from the time of their introduction) is relaxed for a longer period in the
case of harijan hands under r. 13A and still more under r. 13AA. We must expect
that Government will, while fixing the longer grace time for passing tests,
have regard to administrative efficiency. You can't throw to the winds
considerations of administrative capability and grind the wheels of Government
to a halt in the name of 'harijan welfare'. The Administration runs for good
government, not to give jobs to harijans. We must accept the necessary import
of the rule as a limited concession to this weaker group and test its vires on
this basis.
One significant factor must be remembered to
guard against exaggerating the bearing of these tests as a coefficient of
efficiency. Certainly, they were not so important as all that because r.
13A-not challenged all these years-gave 2 years' qualifying period for all and
4 years for harijans. Also those above 50 years of age did not have to pass the
tests at all (r. 13B). The nature of the tests vis a vis the nature of work of
upper division clerks, and their indispensability for official capability have
not been brought out in the writ petition and, absent such serious suggestions,
we have to assume that Government (the author of r.13) would have granted
varying periods of exemption only because of their desirability, not their
precedent necessity. To expatiate a little more, it is not unusual to fix basic
qualifications for eligibility to a post. Their possession is a must, having
regard to the functions of the office. A second and secondary category of
qualifications is insisted on as useful to discharge the duties of the post
e.g., accounts test, or civil and criminal judicial tests and the like, depending
on the department where he is to work. After all here he is a pen- pushing
clerk, not a magistrate, accounts officer, forest officer, sub-registrar, space
scientist or too administrator or one on whose initiative the wheels of a
department speed up or slow down. Even so, it makes his clerical work more
understanding and efficient. These 967 tests are, therefore, demanded for
better performance, not basic proficiency, but relaxation is also allowed in
suitable class of cases, their absence not being fatal to efficiency. A third
class of virtues which will make the employee ultra efficient, but is not
regarded as cardinal, is listed as entitled to preference. A doctorate in
business management, or LL.M. where the basic degree is the essential
requisite, social service or leadership training, sports distinction and a host
of other extra attainments which will improve the aptitude and equipment of the
officer in his speciality but are, in no sense, necessary-these are welcome
additives, are good and may even get the employee a salary raise but are not
insisted on for initial appointment to the post either as a direct recruit or
as a promotee. This trichotomy of qualifications makes pragmatic meaning to any
employer and is within anyone's ken if he turns over the advertisements in
newspapers. To relax on basic qualifications is to compromise with minimum
administrative efficiency; to relent, for a time, on additional test
qualifications is to take a calculated but controlled risk, assured of a basic
standard of performance; to encourage the possession of higher excellence is to
upgrade the efficiency status of the public servant and, eventually of the
department. This is the sense and essence of the situation arising in the
present case, viewed from the angle of administrative requirements or fair
employment criteria.
Back now to the rule of exemption and its
vires.
Frankly, here the respondents who have passed
the 'tests' are stalled in their promotion because of the new rule of harijan
exemption. As individuals, their rights vis a vis their harijan brethren are
regarded unequally. In a strictly competitive context or narrowly
performance-oriented standard, r. 13AA discriminates between a harijan and a
non- harijan. The question is whether a perceptive sensitivity sees on 'equal
opportunity' a critical distinction between distribution according to 'merit'
of individuals and distribution according to 'need' of depressed groups,
subject to broad efficiency criteria. We enter here 'a conceptual disaster
area'.
Factual contexts dictate State action. The
differential impact of a law on a class will influence judicial evaluation of
the reasonableness of a classification and its relation to a purpose which is
permissible. Courts, however, adopt a policy of restrained review where the
situation is complex and is intertwined with social, historical and other
substantially human factors. Judicial deference-not abdication-is best
expressed by Justice Holmes in his dissent in Louisvilla Gas & Elec. Co. v.
Coleman "But when it is seen that a line or a point there must be, and
that there is no mathematical and logical way of fixing it precisely, the
decision of the legislature must be accepted unless we can say that it is very
wide of any reasonable mark." 968 In Buck v. Bell Holmes J. observed:
"The law does all that is needed when it
does all that it can, indicates a policy, applies it to all within the lines,
and seeks to bring within the lines all similarly situated so far and so fast
as its means allow".
Given a legitimate over-riding purpose for
selectivity the Court passes, leaving it to the law-maker the intricate manner
of implementation. Faced with a suspect classification based on a quasi-caste
differentia and apparently injuring administrative quality, the Court turns activist.
Conceptual equilibrium between these two lines is the correct guideline.
The operational technique may vary with time
and circumstance but the goal and ambit must be constitutionally sanctioned. In
the instant case, the State has taken a certain step to advance the economic
interests of harijans.
What-if we break down the rule into its
components-have Government done ? Have they transgressed the rights under Art.
16(1) & (2) ? If they have, the Court, as constitutional invigorator
interdicts, after making permissible presumptions in favour of State actions
and importing the liberal spirit of effective equality into the mandate of
Arts. 14 and 16. Otherwise, the hammer does not fall.
Why was this second 'holiday' under rule 13AA
to harijans granted ? The hapless circumstance which compelled this course was,
according to the State, the need to help this class, acting within the
constitutional bounds, to avert mass reversion to lower posts, without
abandoning insistence on passing 'tests'. The Note to r. 13AA is explanatory.
The State viewed this disturbing situation with concern, and, having regard to
their backward condition, made r. 13AA which conferred power on Government to
grant further spells of grace time to get through these tests.
Simultaneously, a period within which two
opportunities for passing tests would be available was afforded by a G.O.
issued under r. 13AA. The consequence was
their immediate reversion was averted and the promotion prospects of the
non-harijan writ petitioners, who were test-qualified, stood postponed. This
grievance of theirs drove them to the High Court where the rule of temporary
exemption from passing tests for promotional eligibility in favour of harijans
was held ultra vires Arts. 16(1) and 335.
I shall focus on the basis because my learned
brethren have dilated on the necessary details of facts and, more importantly,
because confusion on fundamentals deflects the construction of constitutional
clauses-all this against the admitted backdrop of die-hard harijan bondage,
sometimes subtle, sometimes gross. The learned Advocate General fairly
conceded-and I think rightly-that r. 13AA was not a 'reservation' under Art.
16(4) and yet the favoured treatment to harijan clerks was valid, being based
on reasonable classification under a constitutionally recognised differentia
which had a relation to the legi- 969 timate end of promoting the advancement
of this handicapped class, subject to administrative efficiency. The learned
Solicitor General, appearing on notice by the Court to the Attorney General,
stated the law on a broader basis and urged that the grouping of classes of
socially and educationally downtrodden people especially the Scheduled Castes
and Tribes, was good and did not offend Art. 16(1) or (2). Shri R. K. Garg, for
some of the respondents and for the interveners, spread out the social canvas,
focussed on the age-old suppression and consequential utter backwardness of
those societal brackets and the State's obligation to wipe out the centuries of
deprivation by making a concerted effort to bring them up to the same level as
the other classes so that, after this levelling up, the whole nation could
march forward on terms of democratic equality.
Discrimination on the ground of caste did not
arise, according to counsel, Scheduled Castes and Tribes being not a caste but
an amalgam of the socially lowly and the lost, including groups with a caste
savour. Shri Krishnamoorthy Iyer, for the respondents, naturally disputed all
these propositions. The cornerstone of his case was that in the field of State
employment caste-wise compassion to harijans flew in the face of Art. 16(1) and
(2) and separate but special treatment was permissible only under Art. 16(4)
which was expressly designed as benignant discrimination devoted to lifting
backward classes to the level of the rest through the constitutional technology
of 'reservation'. To travel beyond this special clause and evolve a general
doctrine of backward classification was to over-power the basic concept of
equality and to bring in, by a specious device, a back-door casteism subverting
the scheme of a casteless society set as one of the goals of our constitutional
order. Efficiency of administration, an important desideratum of public
service, would also suffer.
I will examine these contentions in depth and
detail later in this judgment.
Let us proceed to assess the constitutional
merit of the State's ex facie 'unequal' service rule favouring in- service
harijan employees in a realist socio-legal perspective. But before that, some
memorable facts must be stated. The Father of the National adopted, as his
fighting faith, the uplift of the bhangi and his assimilation, on equal
footing, into Hindu society, and the Constitution, whose principal architect
was himself a militant mahar, made social justice a founding faith and built
into it humanist provisions to lift the level of the lowly scheduled castes and
tribes to make democracy viable and equal for all.
Studies in social anthropology tell us how
cultural and material suppression has, over the ages, crippled their
personality, and current demography says that nearly every fifth Indian is a
harijan and his social milieu is steeped in squalour. The conscience of the
Constitution found adequate expression on this theme, in Dr. Ambedkar's words
of caution and premonition in the Constituent Assembly:
"We must begin by acknowledging first
that there is complete absence of two things in Indian society.
One of 970 these is equality. On the social
plane, we have in India a society based on privilege of graded inequality which
means elevation for some and degradation of others. On the economic plane, we
have a society in which there are some who have immense wealth as against the
many who are living in abject poverty. On the 26th of January, 1950, we are
going to enter into a life of contradictions. In politics we will have equality
and in social and economic life we will have inequality...
We must remove this contradiction at the
earliest possible moment, or else those who suffer from inequality will blow up
the structure of political democracy which this Assembly has so laboriously
built up." (Speeches, Vol. II, pp. 184-187).
Judges may differ in constitutional
construction but, without peril of distorting the substance, cannot discard the
activism of the equal justice concept in the setting of deep concern for the
weaker sections of the community. What I endeavour to emphasize, as I will
elaborate later, is that equal justice is an aspect of social justice, the
salvation of the very weak and down-trodden, and the methodology for levelling
them up to a real, not formal, equality, being the accent.
The Kerala State, the appellant, has
statistically shown the yawning gap between what number of posts in Government
service harijans are entitled to, population- ratio wise, and the actual number
of posts occupied by them.
Their 'official' fate is no less ominous
elsewhere in India and would have been poorer on the competitive market method
of selection unaided by 'reservation'. The case for social equality and
economic balance, in terms of employment under the State, cries for more
energised administrative effort and a Government that fails to repair this
depressed lot, fools the public on harijan welfare. Indeed, an aware mass of humanity,
denied justice for generations, will not take it lying down too long but may
explode into Dalit Panthers, as did the Black Panthers in another country, -a
theme on which Shri Gajendragadkar, a former Chief Justice of India, has laid
disturbing stress in two Memorial Lectures delivered recently. Jurists must
listen to real life and, theory apart, must be alert enough to read the writing
on the wall ! Where the rule of law bars the doors of collective justice, the
crushed class will seek hope in the streets! The architects of our Constitution
were not unfamiliar with direct action where basic justice was long withheld
and conceived of 'equal opportunity' as inclusive of equalising opportunity.
Only a clinical study of organic law will yield correct diagnostic results.
Social engineering-which is Law in action-
must adopt new strategies to liquidate encrusted group injustices or surrender
society to traumatic tensions. Equilibrium, in human terms, emerges from 971
release of the handicapped and the primitive from persistent social
disadvantage, by determined creative and canny legal manouvres of the State,
not by hortative declaration of arid equality. 'To discriminate positively in
favour of the weak may sometimes be promotion of genuine equality before the
law' as Anthony Lester argued in his talk in the B.B.C. in 1970 in the series:
'What is wrong with the Law'. 'One law for the Lion and Ox is oppression'. Or,
indeed as was said of another age by Anatole France, 'The law in its majestic
equality forbids the rich as well as the poor to sleep under bridges, to beg in
the streets and to steal bread'.
Redistributive justice to harijan humanity
insists on effective reforms, designed to produce equal partnership of the
erstwhile 'lowliest and the lost', by State action, informed by short-run and
long-run sociologically potent perspective planning and implementation. An
uneven socio- economic landscape hardly gives the joy or equal opportunity and
development or draw forth their best from manpower resources now wallowing in
the low visibility areas of discontented life.
The domination of a class generates, after a
long night of sleep or stupor of the dominated, an angry awakening and
protestant resistance and this conflict between thesis, i.e., the status quo,
and anti-thesis i.e., the hunger for happy equality, propels new forces of
synthesis i.e., an equitable constitution order or just society. Our founding
fathers, possessed of spiritual insight and influenced by the materialist
interpretation of history, forestalled such social pressures and pre-empted
such economic upsurges and gave us a trinity of commitments-justice : social,
economic and political. The 'equality Articles' are part of this scheme. My
proposition is, given two alternative understandings of the relevant
sub-Articles [Arts. 16(1) and (2)], the Court must so interpret the language as
to remove that ugly 'inferiority' complex which has done genetic damage to
Indian polity and thereby suppress the malady and advance the remedy, informed
by sociology and social anthropology. My touch-stone is that functional
democracy postulates participation by all sections of the people and fair
representation in administration is an index of such participation.
Justice Brennen, in a somewhat different
social milieu, uttered words which may not be lost on us:
"Lincoln said this Nation was 'conceived
in liberty and dedicated to the proposition that all men are created equal'.
The Founders' dream of a society where all men are free and equal has not been
easy to realize. The degree of liberty and equality that exists today has been
the product 972 of unceasing struggle and sacrifice. Much remains to be done-so
much that the very institutions of our society have come under challenge.
Hence, today, as in Lincoln's time, a man may ask 'whether (this) nation or any
nation so conceived and so dedicated can long endure'. It cannot endure if the
Nation falls short on the guarantees of liberty, justice, and equality embodied
in our founding documents. But it also cannot endure if our precious heritage
of ordered liberty be allowed to be ripped apart amid the sound and fury of our
time. It cannot endure if in individual cases the claims of social peace and
order on the one side and of personal liberty on the other cannot be mutually
resolved in the forum designated by the Constitution.
If that resolution cannot be reached by
judicial trial in a court of law, it will be reached elsewhere and by other
means, and there will be grave danger that liberty, equality, and the order
essential to both will be lost." The Note to r. 13AA explains the
immediate motivation behind the rule but the social backdrop set out by me
helps us appreciate its constitutionality. However, we are under a Consitution
and mere social anthropology cannot override the real words used in the
Constitution. For, Judges may read, not reconstruct. Plainly harijans enjoy a
temporary advantage over their non-harijan brethern by virtue of r.
13AA and this, it is plausibly urged by
counsel for the contestants, is violative of the merciless mandate of equality
'enshrined' dually in Art. 16(1) and (2). It discriminates without
constitutional justification and imports the caste differentia in the face of a
contrary provision. The learned Advocate General seeks to meet it more by a
legal realist's(approach and, in a sense, by resort to functional
jurisprudence. What is the constitutional core of equality ? What social
philosophy animates it ? What luminous connotation does the pregnant, though
terse, phrase 'equality of opportunity for all citizens in matters of
employment' bear ? What excesses of discrimination are banned and what
equalitarian implications invite administrative exploration ? Finally, what
light do we derive from precedents of this Court on these facets of Art. 16 ? I
will examine these contentious issues presently.
The Solicitor General, in his brief but able
submissions, has offered a harmonious and value-based construction of the
constitutional code guaranteeing equality (Arts. 14 to 16). Sri Garg has swung
to extreme positions, some of which spill over beyond the specific issue
arising in this case. Even so, I agree that a quickened social vision is needed
to see in the Constitution what a myopic glimpse may not reveal.
A word of sociological caution. In the light
of experience, here and elsewhere, the danger of 'reservation', it seems to me,
is three-fold. Its benefits, by and large, are snatched away by the top creamy
layer of the 'backward' caste or class, thus keeping the weakest among the weak
always weak and leaving the fortunate layers to consume the whole cake.
Secondly, this claim is over-played extravagantly in democracy by large and
vocal groups whose burden of backwardness has been 973 substantially lightened
by the march of time and measures of better education and more opportunities of
employment, but wish to wear the 'weaker section' label as a means to score
over their near-equals formally categorised as the upper brackets. Lastly, a
lasting solution to the problem comes only from improvement of social
environment, added educational facilities and cross-fertilisation of castes by
inter-caste and inter-class marriages sponsored as a massive State programme,
and this solution is calculatedly hidden from view by the higher 'backward'
groups with a vested interest in the plums of backwardism. But social science
research, not judicial impressionism, will alone tell the whole truth and a
constant process of objective re- evaluation of progress registered by the
'under-dog' categories is essential lest a once deserving 'reservation' should
be degraded into 'reverse discrimination'.
Innovations in administrative strategy to
help the really untouched, most backward classes also emerge from such
socio-legal studies and audit exercises, if dispassionately made. In fact,
research conducted by the A. N. Sinha Institute of Social Studies, Patna, has
revealed a dual society among harijans, a tiny elite gobbling up the benefits
and the darker layers sleeping distances away from the special concessions. For
them, Arts. 46 and 335 remain a noble romance' the bonanza going to the
'higher' harijans. I mention this in the present case because lower division
clerks are likely to be drawn from the lowest levels of harijan humanity and
promotion prospects being accelerated by withdrawing, for a time, 'test'
qualifications for this category may perhaps delve deeper. An equalitarian
break- throug in a hierarchical structure has to use many weapons and r. 13AA
perhaps is one.
The core conclusion I seek to emphasize is
that every step needed to achieve in action, actual, equal, partnership for the
harijans, alone amounts to social justice-not enshrinement of great rights in
Part III and good goals in Part IV. Otherwise, the solemn undertakings in Arts.
14 to 16 read with Arts. 46 and 335 may be reduced to a 'teasing illusion or
promise of unreality'. A clear vision of the true intendment of these
provisions demands a deep understanding of the Indian spiritual-secular idea
that divinity dwells in all and that ancient environmental pollution and social
placement, which the State must extirpate, account for the current
socio-economic backwardness of the blacked-out human areas described
euphemistically as Scheduled Castes and Scheduled Tribes.
The roots of our constitutional ideas-at
least some of them- can be traced to our ancient culture. The noble Upanishadic
behest of collective acquisition of cultural strength is in volved in and must
evolve out of 'equality', if we are true to the subtle substance of our finer
heritage.
Let me now turn to the essential controversy.
Is rule 13AA valid as protective discrimination to the harijans ? The Advocate
General drew our attention to the Articles of the Constitution calculated to
overcome the iniquitous alienation of harijans from the three branches of 974
Government. The Preamble to the Constitution silhouettes a
"justiceoriented' community. The Directive Principles of State Policy,
fundamental in the governance of the country, enjoin on the State the promotion
'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 protect them from social injustice'. To neglect this
obligation is to play truant with Art. 46. Undoubtedly, economic interests of a
group-as also social justice to it-are tied up with its place in the services
under the State. Our history, unlike that of some other countries, has found a
zealous pursuit of government jobs as a mark of share in State power and
economic position. Moreover, the biggest-and expanding, with considerable State
undertakings,-employer is Government, Central and State, so much so
appointments in the public services matter increasingly in the prosperity of
backward segments. The Scheduled Castes and Scheduled Tribes have earned
special mention in Art. 46 and other 'weaker sections', in this context, means
not every 'back-ward class' but those dismally depressed categories comparable
economically and educationally to Scheduled Castes and Scheduled Tribes. To
widen the vent is to vitiate the equal treatment which belongs to all citizens,
many of whom are below the poverty line. Realism reveals that politically
powerful castes may try to break into equality, using the masterkey of backwardness
but leaving aside Art. 16(4), the ramparts of Art. 16(1) and (2) will resist
such oblique infiltration.
Even so, does Art. 46 at all authorise the
breach of uniform equality of opportunity guaranteed by Art. 16(1) ? Can a
favoured treatment to harijans, by way of temporary concessions in passing
tests, be founded on Art. 46 as a basis for rational classification? Is such a
benign discrimination a caste-oriented legislation contravening Art. 16(2) ?
Before I consider these vital questions, I may as well glance at some of the
important pro-harijan provisions in the Constitution.
The Constitution itself makes a
super-classification between harijans and others, grounded on the, fundamental
disparity in our society and the imperative social urgency of raising the
former's sunken status. Apart from reservation of seats in the Legislatures for
harijans, which is a deliberate departure, taking note of their utter
backwardness (Art. 330 and 332, a special officer to investigate and report to
the President upon the working of special constitutional safeguards made to
protect harijans has to be appointed under Art. 338. Gross inadequacy of
representation in public services is obviously one subject for investigation
and report. More importantly, Art. 335, which Shri Garg relied on to hammer
home his point, reads:
"335, Claims of Scheduled Castes and
Scheduled Tribes to services and posts.-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." 975 This provision directs pointedly to (a) the
claims of-not compassion towards-harijans to be given special consideration in
the making of appointments to public services; and (b) lest this
extra-attention should run riot and ruin administrative efficiency, a caution
is uttered that maintenance of efficiency in administration should not suffer mayhem.
Now we may deduce from these and other like
Articles, unaided by authority, certain clear conclusions of great relevance to
the present case: (1) The Constitution itself demarcates harijans from others.
(2) This is based on the stark backwardness of this bottom layer of the
community.
(3) The differentiation has been made to
cover specifically the area of appointments to posts under the State. (4) The
twin objects, blended into one, are the claims of harijans to be considered in
such posts and the maintenance of administrative efficiency. (5) The State has
been obligated to promote the economic interests of harijans and like backward
classes, Arts. 46 and 335 being a testament and Arts. 14 to 16 being the
tool-kit, if one may put it that way. To blink at this panchsheel is to be
unjust to the Constitution.
Sri Krishnamoorthy Iyer, for the contesting
respondents, argued that harijans may have been grouped separately for
protective care by the Constitution but its expression, in the matter of
employment under the State, has to be subject to the fundamental right of every
citizen like his clients to the enjoyment of equal opportunity and non-
discrimination on the score of caste. His proposition is that, in the name of
harijan welfare, dilution of Art. 16(1) and (2) is impermissible under the
scheme of Part III which is paramount and contains enforceable guaranteed
rights.
Secondly, 'scheduled castes' are castes all
the same and preferment shown to them is plainly opposed to Art. 16(2).
Thirdly, even Art. 335 insists on
administrative tone, so essential to good government, and prolonged exemption
from tests prescribed by the impugned rule, from the point of view of official
efficiency, undermines this pertinent criterion. This Court has all along struck
down measures of 'reserved' representation for backward classes in educational
institutions and public services when a high proportion has been so ear-marked,
escalating the risk of making the Administration itself backward. Finally, the
Constitution has set apart an exclusive exception to the equal opportunity rule
in Art. 16(4), so much so Art. 46 and 335 must be projected through that
provision only and cannot spill over into Art. 16(1) and (2). Fundamental
rights are fundamental and cannot be cut back upon or insidiously eroded by the
classificatory technique.
Both the presentations have a flawless look,
the controlling distinction being between two visions of the mood and message
of the supreme law we call the Constitution, the dynamic and the static, the
sociological and the formal. It is unexceptional to say that any insightful
construction must opt for the former methodology and also seek a good
fellowship among the various provisions, conventionally called 'harmonious
construction'.
In an elevating and organic instrument,
antagonisms cannot exist. If that be the lodester to help interpret the suprema
lex we have to discover a note of unison in Arts. 16(1), (2) and (4) as well as
Arts. 46 and 335, the background tune being 976 one of profound effort first to
equalise and then to march together without class-creed distinction. The social
engineering know-how of our constitution, viz., levelling up the groups buried
under the debris by a generous consideration and thereafter enforcing strict
equality among all-this two-tier process operating symbiotically, is the life
of the law and the key to the 'equal opportunity' mechanism. Equally emphatic
is the grave concern shown for a casteless and classless society-not in a magic
instant but through a careful striving-and for the standards of performance of
the Administration, noted from Curzon's days for drowsiness.
Efficiency means, in terms of good
government, not marks in examinations only, but responsible and responsive
service to the people. A chaotic genius is a grave danger in public
administration. The inputs of efficiency include a sense of belonging and of
accountability which springs in the bosom of the bureaucracy (not pejoratively
used) if its composition takes in also the weaker segments of 'We, the people
of India'. No other understanding can reconcile the claim of the radical
Present and the hangover of the unjust Past.
Now to the precedential guidelines. I am
alive to the correctly reluctant attitude of this Court to depart from
precedent lest an unstable and uncertain situation be created. Stare decisis et
non quieta movere. Khanna J. has rightly emphasized this great need but also
quoted Brandeis and Cardozo JJ.:
"As observed by Brandeis, 'stare decisis
is always a desideratum, even in these constitutional cases. But in them, it is
never a command'.
x x x x x "As observed by Cardozo):
... ... But I am ready to concede that the
rule of adherence to precedent, though it ought not to be abandoned, ought to
be in some degree relaxed. I think that when a rule, after it has been duly
tested by experience, has been found to be inconsistent with the sense of
justice or with the social welfare, there should be less hesitation in frank
avowal and full abandonment. We have had to do this sometimes in the field of
constitutional law'.
Anyway, here no case is being over-ruled
because no case has said Scheduled Castes and Tribes are a caste nor that
advancement of sunken sections of society consistently with administrative
efficiency cannot be a rational object linked with outrageous backwardness of a
class as the intelligible differentia within an official cadre.
Keshavananda Bharati has clinched the issue
of primacy as between Part III and Part IV of the Constitution. The unanimous
977 ruling there is that the Court must wisely read the collective Directive
Principles of Part IV into the individual fundamental rights of Part III,
neither Part being superior to the other! Since the days of Dorairajan judicial
opinion has hesitatingly tilted in favour of Part III but in Keshvananda
Bharati (supra) the supplementary theory, treating both Parts as fundamental,
gained supremacy. Khanna J spoke with a profound sense of depth (if I may say
so with respect) at p. 1878:
"The Directive Principles embody a
commitment which was imposed by the Constitution makers on the State to bring
about economic and social regeneration of the teeming millions who are steeped
in poverty, ignorance and social backwardness. They incorporate a pledge to the
coming generations of what the State would strive to usher in."
********************************************* "There should be no
reluctance to abridge or regulate the fundamental rights to property if it was
felt necessary to do so for changing the economic structure and attaining the
objective contained in the Directive Principles." (at p. 1880) Chandrachud
J. has (again, I quote with deference) set the judicial singhs straight in this
passage (at p. 2050):
"What is fundamental in the governance
of the country cannot surely be less significant than what is fundamental in
the life of an individual. The freedoms of a few have to be abridged in order
to ensure the freedom of all. If State fails to create conditions in which the
Fundamental freedoms could be enjoyed by all, the freedom of the few will be at
the mercy of the many and then all freedoms will vanish. In order, therefore,
to preserve their freedom, the privileged few must part with a portion of
it." The upshot,, after Bharati, (supra), is that Art. 46 to be given emphatic
expression while interpreting Art. 16(1) and (2). Indeed, Art. 335 is more
specific and cannot be brushed aside or truncated in the operational ambit
vis-a-vis Art.
16(1) and (2) without hubristic aberration.
We may clear the clog of Art. 16(2) as it
stems from a confusion about caste in the terminology of Scheduled Castes and
Scheduled Tribes. This latter expression has been defined in Arts. 341 and 342
A bare reading brings out the quintessential concept that they are no castes in
the Hindu fold but an amalgam of castes, races, groups, tribes, communities or
parts thereof found on investigation to be the lowliest and in need of massive
State aid and notified as such by the President. The confuse this backward-most
social composition with 978 castes is to commit a constitutional error, misled
by a compendious appellation. So that, to protect harijans is not to prejudice
any caste but to promote citizen solidarity.
Art. 16(2) is out of the way and to extend
protective discrimination to this mixed bag of tribes, races, groups,
communities and non-castes outside the four-fold Hindu division is not to
compromise with the acceleration of castelessness enshrined in the sub-Article.
The discerning sense of the Indian Corpus Juris has generally regarded
Scheduled Castes and Scheduled Tribes, not as caste but as a large backward
group deserving of societal compassion. The following provisions of the Income
Tax Act, 1961 are illustrative of this principle:
"13. Section 11 not to apply in certain
cases:
(1) (b) Nothing contained in s. 11 or s. 12
shall operate so as to exclude from the total income of the previous year of
the person in receipt thereof (a) .....
(b) in the case of a trust for charitable
purposes or a charitable institution created or established after the
commencement of this Act, any income thereof if the trust or institution is
created or established for the benefit of any particular religious community or
caste;
*********************************************
Explanation 2.-A trust or institution created or established for the benefit of
Scheduled Castes, backward classes, Scheduled Tribes or women and children
shall not be deemed to be a trust or institution created or established for the
benefit of a religious community or caste within the meaning of clause (b) of
sub-s. (1)." The next hurdle in the appellant's path relates to Art.
16(4). To my mind, this sub-Article serves
not as an exception but as an emphatic statement, one mode of reconciling the
claims of backward people and the opportunity for free competition the forward
sections are ordinarily entitled to. In the language of Subba Rao, J. (as he
then was), in Devadasan(1):
"The expression 'nothing in this
article' is a legislative device to express its intention in a most emphatic
way 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 preserved a power untrammelled by the other provisions of the
Article." True, it may be loosely said that Art. 16(4) is an exception
but, closely examined, it is an illustration of constitutionally sanctified
classification.
979 Public services have been a fascination
for Indians even in British days, being a symbol of State power and so a
special Article has been devoted to it. Art. 16(4) need not be a saving clause
but put in due to the over-anxiety of the draftsman to make matters clear
beyond possibility of doubt (see, for instance, 59 I.A. 206).
'Reservation' based on classification of
backward and forward classes, without detriment to administrative standards (as
this Court has underscored) is but an application of the principle of equality
within a class and grouping based on a rational differentia, the object being
advancement of backward classes consistently with efficiency. Arts. 16(1) and
(4) are concordant. This Court has viewed Art. 16(4) as an exception to Art.
16(1). Does classification based on desparate backwardness render Art.
16(4) redundant? No. Reservation confers pro
tanto monopoly, but classification grants under Art. 16(1) ordinarily a lesser
order of advantage. The former is more rigid,, the latter more flexible,
although they may overlap sometimes.
Art. 16(4) covers all backward classes; but
to earn the benefit of grouping under Art. 16(1) based on Art. 46 and 335 as I
have explained, the twin considerations of terrible backwardness of the type
harijans endure and maintenance of administrative efficiency must be satisfied.
The surviving, but substantial, controversy
centres round the 'equal opportunity' rule and its transgression, if any, by r.
13AA. The learned Advocate General fairly and rightly agreed that the impugned
rule falls outside Art.
16(4). Therefore he sought to salvage the
temporary exemption from passing tests by urging that a constitutionally valid
classification was all that had been done and cited Indian rulings and American
juridical writings in support of his stand.
It is platitudinous constitutional law that
Arts. 14 to 16 are a common code of guaranteed equality, the first laying down
the broad doctrine, the other two applying it to sensitive areas historically
important and politically polemical in a climate of communalism and jobbery.
We need not tarry to consider whether Art. 16
applies to appointments on promotion. It does. Nor need we worry about
administrative calamities if test qualifications are not acquired for time by
some hands. For one thing, these tests are not so telling on efficiency as
explained earlier by me. And, after all, we are dealing with clerical posts in
the Registration Department where aiert quailldriving and a smattering of
special knowledge will make for smoother turn- out of duties. And the
Government is only postponing, not foregoing, test qualification. As for the
bearing of 'tests' on basic efficiency, everything depends on the circumstances
of a case and the post.
The basic question thus is one of social
dynamics implied in Art. 16(1). Let us go to the fundamentals and ignore the
frills. In a spacious sense, 'equal opportunity' for members of a hierarchical
society makes sense only if a strategy by which the underprivileged 980 have
environmental facilities for developing their full human potential. This
consummation is accomplished only when the utterly depressed groups can claim a
fair share in public life and economic activity, including employment under the
State, or when a classless and casteless society blossoms as a result of
positive State action. To help the lagging social segments, by special care, is
a step towards and not against a larger and stabler equality. I had occasion to
observe in J & K State v. T. N. Khosa(1).
"In this unequal world the proposition
that all men are equal has working limitations, since absolute equality leads
to Procrustean cruelty or sanctions indolent inefficiency. Necessarily,
therefore, an imaginative and constructive modus vivendi between commonness and
excellence must be forged to make the equality clauses viable. This pragmatism
produced the judicial gloss of 'classification' and differentia', with the
by-products of equality among equals and dissimilar things having to be treated
differently. The social meaning of arts. 14 to 16 is neither dull uniformity
nor specious 'talentism'. It is a process of producing quality out of larger
areas of equality extending better facilities to the latent capabilities of the
lowly. It is not a methodology of substitution of pervasive and slovenly
mediocrity for activist and intelligent-but not snobbish and
uncommitted-cadres.
However, if the State uses classification
casuistically for salvaging status and elitism, the point of no return is
reached for arts. 14 to 16 and the Court's jurisdiction awakens to dadden such
manouvres. The soul of art. 16 is the promotion of the common man's
capabilities, over-powering environmental adversities and opening up full
opportunities to develop in official life without succumbing to the sophistic
argument of the elite that talent is the privilege of the few and they must
rule, wriggling out of the democratic imperative of arts. 14 and 16 by theory
of classified equality which at its worst degenerates into class
domination." This observation was approved later by this Court in Mohd.
Shujat Ali v. Union of India(2).
Sri Krishnamoorthy Iyer pressed before us,
backed by a catena of cases, that this Court has frowned upon a classification
for promotion from within a homogeneous group except when it is based on
qualification for higher functional efficiency, and to inject a new ground for
grouping within the class for promotion was constitutional anathema. I think
not. The fact that better educational prescriptions for promotion posts have
been upheld by this Court does not rule out other reasonable differentia,
having a nexus with the object. The true test is, what is the object of the
classification and is it permissible ? 981 Further, is the differentia sound
and substantial and clearly related to the approved object ? I agree this is
virgin ground, but does not, for that reason alone, violate, equality. My
conclusion is that the genius of Arts. 14 to 16 consists not in literal
equality but in progressive elimination of pronounced inequality. Indeed, to
treat sharply dissimilar persons equally is subtle injustice.
Equal opportunity is a hope, not a menace.
If Art. 14 admits of reasonable
classification, so does Art. 16(1) and this Court has held so. In the present
case, the economic advancement and promotion of the claims of the grossly
under-represented and pathetically neglected classes, otherwise described as
Scheduled Castes and Scheduled Tribes, consistenly with the maintenance of
administrative efficiency, is the object, constitutionally sanctioned by Arts.
46 and 335 and reasonably accommodated in Art. 16(1). The differentia, so
loudly obtrusive, is the dismal social milieu of harijans. Certainly this has a
rational relation to the object set out above. I must repeat the note of
caution earlier struck. Not all caste backwardness is recognised in this
formula. To do so is subversive of both Art. 16(1) and (2). The social disparity
must be so grim and substantial as to serve as a foundation for benign
discrimination. If we search for such a class, we cannot find any large segment
other than the Scheduled Castes and Scheduled Tribes. Any other caste, securing
exemption from Art. 16(1) and (2), by exerting political pressure or other
influence, will run the high risk of unconstitutional discrimination. If the
real basis of classification is caste masked as backward class, the Court must
strike at such communal manipulation. Secondly, the Constitution recognizes the
claims of only harijans (Art.
335) and not of every backward class. The
profile of Art. 46 is more or less the same. So, we may readily hold that
casteism cannot come back by the backdoor and, except in exceptionally rare
cases, no class other than harijans can jump the gauntlet of 'equal
opportunity' guarantee. Their only hope is in Art. 16(4). I agree with my
learned brother Fazal Ali J. in the view that the arithmetical limit of 50% in
any one year set by some earlier rulings cannot perhaps be pressed too far.
Overall representation in a department does not depend on recruitment in a
particular year, but the total strength of a cadre. I agree with his
construction of Art. 16(4) and his view about the 'carry forward' rule.
The American jurisprudential response to the
problem of repairing the handicaps of the coloureds in public employment and
education is similar, although equal protection of the laws to all is assured
by the 14th Amendment to the U.S. Constitution.
Jurisprudence, to be living law, must respond
to the bhangi colony and the black ghetto intelligently enough to equalise
opportunities within the social, political and economic orders, by making up
for long spells of deprivation. Hence, if a court is convinced that the purpose
of a measure using a suspect classification is truly benign, that is, that the
measure represents an effort to use the classification 982 as part of a
programme designed to achieve an equal position in society for all tribes and
groups and communities, then it may be justified in permitting the State to
choose the means for doing so, so long as the means chosen are reasonably
related to achieving that end. The distinction would seem to be between
handicaps imposed accidentally by nature and those resulting from societal
arrangements such as caste structures and group suppression. Society being, in
a broad sense, responsible for these latter conditions, it also has the duty to
regard them as relevant differences among men and to compensate for them
whenever they operate to prevent equal access to basic, minimal advantages
enjoyed by other citizens. In a sense, the theory broadens the traditional
concept of 'state action' to require government attention to those inequalities
for which it is not directly responsible, but which nevertheless are
concomitant features of the existence of the organized state. I quote from
Harvard Law Review-1968-69. Vol. 82, excerpts from 'Developments in the
Law-Equal Protection':
"A state might, for example, decide to
give some racial groups an exemption from qualification examinations or
establish a racial credit on such examinations to that often given to
veterans" (p. 1105-06) (emphasis, mine) * * * * * * * * * * * "Where
racial classifications are being used ostensibly to remedy deprivations arising
from past and continuing racial discrimination, however a court might think it
proper to judge the measures by a less stringent standard of review, possibly
even the permissive or rationality standard normally used in constitutional
appraisal of regulatory measures" (p. 1107) * * * * * * * * * * * * *
Moreover, even if racial classifications do have some negative educative
effects, the classifications may be so effective that they should be instituted
despite this drawback. If the measures succeed in aiding blacks to obtain
opportunities within the social, political and economic orders that have
formerly been denied to them, they may be worth the cost of emphasizing men's
differences. It may be that the actual participation of blacks in positions
alongside whites will ultimately prove to have the most important and
longlasting educative effect against discrimination." (p. 1113) 983
"Hence, if a court is convinced that the purpose of a measure using a racial
classification is truly benign, that is, that the measure represents an effort
to use the classification as part of a program designed to achieve as equal
position in society for all races, then it may be justified in permitting the
state to choose the means for doing so, so long as the means chosen are
reasonably related to achieving that end." (p. 1115) Illustrative of an
allied type of State action to eliminate gross group inequality for attaining
general equality is a recent ruling of the U.S. Supreme Court. The good omen
for American women in Schlessinger v. Ballard(1) is indicative of high judicial
hunch in understanding the classificatory clue to promotion of employment
equality. The case related to a male challenge of a provision entitling women
officers in the U.S. Navy to longer years of commissioned service. The Court
remarked, upholding the unequal step to promote eventual gender equality, that:
"in enacting and retaining of Sec. 6401
Congress may thus quite rationally have believed that women line officers had
less opportunity for promotion than did their male counterparts and that a
longer period of tenure for women officers would therefore be consistent with
the goal to provide women officers with fair and equitable career advancement
programs" The key thought is the broader test of constitutional
classification and this reinforces my line of thinking.
It is a statistically proved social reality
in India that the depressed employment position of harijans is the master
problem in the battle against generations of retardation, and 'reservation' and
other solutions have made no significant impact on their employment in public
services. In such an unjust situation, to maintain mechanical equality is to
perpetuate actual inequality. A battery of several programmes to fight down
this fell backwardness must be tried out by the State. Relaxation of 'tests'
qualification at the floor level of clerical posts (lower or upper division) is
a part of this multiform strategy to establish broader, though seemingly 'differential'
equality.
If the Court has its listening posts on raw
Indian earth, its assessment of 'equal opportunity' cannot remain legalistic or
individualistic but should see the age-old inequality to mend which is also the
means to real equality, a demanding command of our Constitution. The poignant
and ominous words of Sterling Tucker, in his book 'For Blacks.
Only'(1) will awaken the judicial vision to
the harijan situation and so I quote:
"If white Americans had learned to see
us as we are, human beings, like themselves without individual burdens of hope,
984 or fear, they could have understood our rage and our defiance. They might
have wished to accommodate to it, but they could have comprehended it. They
could have under stood our need for pride and grasped what black power meant to
us. But as Ralph Ellison potently expressed, they never really saw us:
I am an invisible man. . I am a man of
substance, of flesh and bone, fiber and liquids,-and I might even be said to
possess a mind. I am invisible, understand, simply be cause people refuse to
see me.. When they approach me they see only my surrounding, themselves or
figments of their imgaination-indeed, everything and anything except me.
That invisibility to which I refer occurs
because of a peculiar disposition of the eyes of those with whom I come in
contact. A matter of the construction of their inner eyes, those eyes with
which they look through their physical eyes upon reality .... You wonder
whether you aren't simply a phantom in other people's minds....You ache with
the need to convince yourself that you do exist in the real world, that you're
a part of all the sound and anguish, and you strike out with your first, you
course and you swear to make them recognize you. And, alas, it is seldom successful."
I end my opinion of concurrence with the learned Chief Justice with the
admonition, induced by apprehension and for reasons already given, that no
caste, however seemingly backward, or claiming to be derelict, can be allowed
to breach the dykes of equality of opportunity guaranteed to all citizens. To
them the answer is that, save in rare cases of 'chill penury repressing their
noble rage', equality is equality-nothing less and nothing else. The heady
upper berth occupants from 'backward' classes do double injury.
They beguile the broad community into
believing that backwardness is being banished. They rob the need-based bulk of
the backward of the 'office' advantages the nation, by classification, reserves
or proffers. The constitutional dharma, however, is not an unending deification
of 'backwardness' and showering 'classified' homage, regardless of advancement
registered, but progressive exorcising of the social evil and gradual
withdrawal of artificial crutches.
Here the Court has to be objective resisting
mawkish politics. But, by that standard, as statistically shown to us in this
case, harijan have'nots have 'miles to go' and so long, the Administration has
'promises to keep'.
GUPTA, J. I agree with brother Khanna J. that
this appeal should be dismissed, and for the reasons given by him. I only wish
to add a few words on one aspect of the question that arises for decision in
this case.
The lower division clerks working in the
Registration Department of the State of Kerala have to pass within a fixed time
certain departmental tests to be eligible for promotion as upper division
clerks. For 985 some of these lower division clerks who happen to belong to
Scheduled Castes or Scheduled Tribes, the time for passing the tests has been
extended by successive orders made by the Government in exercise of the power
conferred by Rule 13AA of the Kerala State and Subordinate Services Rules,
1958.
The High Court of Kerala held that Rule 13AA
was violative of Article 16(1) and (2) of the Constitution and set aside the
orders made under that Rule. On behalf of the appellant.
State of Kerala, and some of the respondents
and interveners, validity of Rule 13AA is sought to be justified on a
construction of Article 16(1) which, it is claimed, is based on the provisions
of Articles 46 and 335 of the Constitution. It is contended that Article 16(1)
should be read in the light of the other two Articles. I am not clear as to
what exactly that means; neither Article 46 and Article 335 mention Article
16(1), nor Article 16(1) refers to either of them. All the three Articles
co-exist in the Constitution which we, the People of India, have given to
ourselves, and if it is correct to say that one of them should be read in the
light of the other two, it is equally right to suggest that the two of them
should be read in the light of the other. This means that the various parts of
an organic instrument like the Constitution ought to be harmoniously construed,
but that is not the same thing as suggesting that even where the scope and
ambit of one part is clear, it should be abridged, extended or amended to prove
its affinity with another part. Each limb of the body has its own function, and
to try to make one of them do the work of another is both unnecessary and
unwise; this might throw the entire system out of gear.
Article 16(1) declares a right which is one
of the Fundamental rights guaranteed in Part III of the Constitution, and
Article 13(1) invalidates all laws inconsistent with such rights. Article 16(1)
lays down:
"There shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any office
under the State." Article 46 is in Part IV of the Constitution containing
the 'Directive Principles of State Policy' Article 46 reads:
"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 37 states that the provisions contained in Part IV shall not be
enforceable by the courts but the principles embodied in them are
"fundamental in the governance of the country and it shall be the duty of
the State to apply these principles in making laws". It is difficult to
see how Article 46 which, so far as relevant for the present purpose, requires
the State to promote with special care the economic interests of the weaker
sections of the people, especially of the Scheduled Castes and Scheduled
Tribes, can serve as an aid to the construction of Article 16(1).
986 Article 335 occurs in Part XVI of the
Constitution which contains some 'Special Provisions Relating to Certain
Classes'. Article 335 provides:
"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." This Article does not create any right in the members of
the Scheduled Castes and the Scheduled Tribes which they might claim in the
matter of appointments to services and posts;
one has to look elsewhere, Article 16(4) for
instance, to find out the claims conceded to them. Article 335 says that such
claims shall be considered consistently with administrative efficiency; this is
a provision which does not enlarge but qualify such claims as they may have as
members of the Scheduled Castes or Scheduled Tribes. Article 335, it seems
clear, cannot furnish any clue to the understanding of Article 16(1).
Article 16(1) which ensures equality of
opportunity for all citizens in matters relating to employment or appointment
has been described as an instance or incident of the general guarantee of
equality contained in Article 14 (see State of Jammu & Kashmir v. T. N.
Khosa & Ors.(1).
Article 14 which guarantees equality before
the law and equal protection of the laws, it has been held, does not insist on
absolute equality of treatment to all persons in disregard of all differences
among them but provides for equality among equals only. This court observed in
T.
Devadasan v. The Union of India(2) that
"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 and of no relevance for the purpose of applying a particular law,
reasonable classification is permissible".
Reasonable classification is thus
permissible, and often necessary, to achieve this equality. Article 16(1) which
is an instance of the application of the general rule of equality with special
reference to opportunity for appointments under the State also does not require
"......
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 Article 16(1) guarantees is equality of
opportunity to all citizens who enter service"-General Manager, Southern
Railway v. Rangachari(3). Article 16(1) thus contemplates classification on the
basis of eligibility for an appointment; those who have 987 the qualifications
needed for the post form one class; it also implies that the same class of
employees constitute a separate unit. In Sham Sunder v. Union of India (1),
this Court explained that "Article 16(1) means equality as between members
of the same class of employees" and forbids between the members of this
class discrimination and denial of equal opportunity in the matter of
promotion.
The lower division clerks in the Registration
Department of the State of Kerala belong to the same class as employees. Article
16(1) ensures to all of them equality of opportunity in the matter of
promotion. Rule 13AA and the orders made thereunder giving additional
opportunity in this regard to some out of the same class of employees would be
obviously void unless the fact that the favoured members of the class belong to
Seheduled Castes or Scheduled Tribes made any difference in the position, as
contended. It is argued that Scheduled Castes and Scheduled Tribes constitute a
well-recognized class of citizens and, as Article 16(1) permits classification,
employees belonging to these castes and tribes may be treated as a separate
unit for promotion.
It is claimed that Article 46 and Article 335
encourage such further classification within the same class which should
therefore be regarded as valid for the purpose of Article 16(1). Two
assumptions are implicit in this argument: first, that Article 16(1) is
subservient to Article 46 and Article 335 and has no requirements of its own
and, secondly, that these two Article justify the discrimination made by Rule
13AA. I do not consider either of those assumptions to be correct. I have
stated already that neither Article 46 nor Article 335 is of any assistance in
interpreting Article 16(1). Article 16(1) in clear terms insists on equality of
opportunity for all employees of the same class, and this requirement cannot be
dispensed with because of anything in Article 46 or Article 335 which do not in
any way qualify the guarantee in Article 16(1). The Article of course permits
classification, but only such classification as is reasonable, and the test of
reasonableness, having regard to the object of the Article, must be whether the
proposed classification helps in achieving this object. Judging by this test,
is it possible to hold the sub-division of lower division clerks into two
categories, those who belong to the Scheduled Castes and Scheduled Tribes and
those who do not, as reasonable ? I do not think so; such classification is not
relevent to the object of the Article and, therefore, not reasonable.
Scheduled Castes and Scheduled Tribes are
castes and tribes specified by the President under Articles 341 and 342 of the
Constitution to be known as such for the purposes of the Constitution. It is
accepted that generally speaking these castes and tribes are backward in
educational and economic fields. It is claimed that the expression
"Scheduled Castes" does not refer to any caste of the Hindu Society
but connotes a backward class of citizens. A look at Article 341 however will
show that the expression means a number of existing social castes listed in a
schedule;
castes do not cease to be castes being put in
a schedule though backwardness has come to be associated with them.
Article 46 requires the State to promote the
economic interests of the weaker sections of the people and, in particular, of
the Scheduled Castes and the Scheduled Tribes. The special reference to 988 the
Scheduled Castes and the Scheduled Tribes does not suggest that the State
should promote the economic interests of these castes and tribes at the expense
of other "weaker sections of the people". I do not find anything
reasonable in denying to some lower division clerks the same opportunity for
promotion as others have because they do not belong to a particular caste or
tribe. Scheduled Castes and Scheduled Tribes no doubt constitute a well-defined
class, but a classification valid for one purpose may not be so for another; in
the context of Article 16(1) the sub-class made by Rule 13AA within the same
class of employees amounts to, in my opinion, discrimination only on grounds of
race and caste which is forbidden by clause (2) of Article 16. In the State of
Rajasthan & Ors. v. Thankur Pratap Singh(1) this Court struck down a
notification under section 15 of the Police Act issued by the State of
Rajasthan exempting the Harijan inhabitants of certain villages from payment of
the cost of additional police force stationed in those villages.
It was held that the notification
discriminated against the law-abiding members of the other communities on the
basis only of caste. I do not find it possible to accept that picking out
employees belonging to the Scheduled Castes and Scheduled Tribes from the same
class of lower division clerks to give them additional opportunity to be promoted
as upper division clerks is a measure for the promotion of economic welfare of
these castes and tribes. Some incidental financial gain to certain individuals
assuming it results in the welfare of the castes and tribes to which they
belong in some remote and indirect way, is not in my view, what Article 46
contemplates; the other view of Article 46 would justify as valid the exemption
granted to the Harijan villagers of Thakur Pratap Singh's case from payment of
the cost of additional police force. In any case, Article 16(1), as I have
sought to explain earlier, does not permit such classifcation as made by Rule
13AA. That Rule may have been inspired by Article 46 which requires the State
to take measures to bridge the educational and economic gap between the weaker
sections of the people and other citizens, but Article 46 does not qualify the
provisions of Article 16(1).
Article 16(1) speaks of equality of
opportunity, not opportunity to achieve equality. For reasons I have stated
already, Article 335 appears to be even less relevant on the question under
consideration.
All I have said above relates to the scope of
Article 16(1) only, because counsel for the appellant has built his case on
this provision alone. Clause (4) of Article 16 permits reservation of
appointments or Posts in favour of backward classes of citizens notwithstanding
Article 16(1);
I agree with the views expressed by Khanna J.
On Article 16(4) which comes in for consideration incidentally in this case.
The appalling poverty and backwardness of large sections of the people must
move the State machinery to do everything in its power to better their
condition but doling out unequal favours to members of the clerical staff does
not seem to be a step in that direction: tilting at the windmill taking it to
be a monster serves no useful purpose.
989 It may be pertinent in this connection to
refer to the observations of Gajendragadkar J. (as he then was) in M. R.
Balaji & Ors. v. State of Mysore,(1)
which, though made in the context of Article 15(4), has relevance for this case
also:
"When Art 15(4) refers to the special
provision for the advancement of certain classes or scheduled castes or
scheduled tribes, it must not be ignored that the provision which is authorised
to be made is a special provision; it is not a provision which is exclusive in
character, so that in looking after the advancement of those classes, the State
would be justified in ignoring altogether the advancement of the rest of the
society. It is because the interests of the society at large would be served by
promoting the advancement of the weaker elements in the society that Art. 15(4)
authorises special provision to be made. But if a provision which is in the
nature of an exception completely excludes the rest of the society, that
clearly is outside the scope of Art. 15(4). It would be extremely unreasonable
to assume that in enacting Art.
15(4) the Parliament intended to provide that
where the advancement of the Backward Classes or the Scheduled Castes and Tries
was concerned, the fundamental rights of the citizens constituting the rest of
the society were to be completely and absolutely ignored." More recently
in the State of Jammu & Kashmir v. T. N. Khosa & Ors. (supra) this
Court has sounded a note of caution:
" ... let us not evolve, through
imperceptible extensions, a theory of classification which may subvert, perhaps
submerge, the precious guarantee of equality. The eminent spirit of an ideal
society is equality and so we must not be left to ask in wonderment: what after
all is the operational residue of equality and equal opportunity ?" I
believe these words are not just so much rhetoric, but mean to be taken
seriously.
I concur with the order proposed by Khanna J.
FAZAL ALI J. I agree with the lucid judgment
proposed by my Lord the Chief Justice, but I would like to add a few lines of
my own highlighting some of the important aspects which arise in this appeal.
The facts of this appeal lie within a very
narrow compass. This appeal by certificate is directed against the judgment of
the Kerala High Court dated April 19, 1974. The judgment has struck down r.
13-A.A. of the Kerala State and Subordinate Service Rules, 1958. The impugned
rule was substituted by Government Order (P) 21/PD dated January 13, 1972. It appears
that the main dispute between the appellants and respondent No. 1 centres round
the promotion of some Lower Division Clerks to the grade of Upper Division
Clerks.
990 The grievance of respondent No. 1 before
the High Court was that some of the Lower Division Clerks who were members of
scheduled castes or scheduled tribes were shown a preferential treatment in
that they had been promoted to the higher grade of Upper Division Clerks in
spite of the fact that they had not cleared the test prescribed for reaching
the said grade. The Government of Kerala selected the respondent for hostile
discrimination as against these persons by granting extension after extension
to the members belonging to the scheduled castes or tribes so as to enable them
to pass the test. The series of such extensions culminated into the order
creating r. 13-A.A. which was wholly discriminatory and violative of Art. 16 of
the Constitution of India. The plea of respondent No. 1 appears to have found
favour with the High Court which held that r.
13-A.A. was discriminatory and was clearly
violative of Art.
16(1) of the Constitution and was also beyond
the reservation permitted by clause (4) of Art. 16.
It may be necessary here to mention a few
admitted facts. In the first place it is not disputed that respondent No. 1
himself passed the test necessary for promotion to the Upper grade on November
2, 1971. It is, therefore, manifest that whatever grievance the respondent No.
1 may have against the other clerks, he cannot put forward his claim for being
promoted earlier than November 2, 1971 i.e. before the time he passed the test.
In these circumstances extensions granted by the Government to the clerks
belonging to the scheduled castes or tribes from 1958 to 1972 and thereafter
upto 1974 will affect the respondent No. 1 only after November 2, 1971 and not
before that. Secondly it is also not denied that the Lower Division Clerks
belonging to the scheduled castes and tribes were undoubtedly senior to the
respondent No. 1 and had been promoted on the express condition that unless
they passed the test prescribed by the Government they would have to be
reverted. This was obviously done to advance and lift the members of the
scheduled castes and tribes who were backward class of citizens so that they
may be able to compete with the other stronger sections of the society. It may
also be mentioned here that the promotees were not completely exempted from the
test but they were given extension of time for passing the test. Thus it is
obvious that but for the passing of the test the respondent No. 1 could not
have any other claim to promotion as Upper Division Clerk. The respondent No. 1
was previously serving as a Lower Division Clerk in the Registration Department
at Kottayam but is at present serving in Chitty Auditor's Office at Kottayam.
Lastly it is also admitted that the promotees against whom the respondent No. 1
has a grievance were undoubtedly members of the scheduled castes or tribes and
such Lower Division Clerks belonging to the scheduled castes or tribes will
hereafter be referred as 'the promotees' for the purpose of brevity.
In the background of these admitted facts, we
have now to see whether r. 13-A.A. violates Art. 16(1) of the Constitution in
any way. The High Court has struck down r.
13-A.A. on three grounds:
(1) that it is beyond the permissible limits
of clause (4) of Art. 16;
991 (2) that by virtue of the carry-forward
rule the Government has promoted more than 62% of the clerks belonging to the
scheduled castes and tribes and have thereby destroyed the concept of equality;
and (3) that the rule is discriminatory inasmuch as it makes an uncalled for
distinction between the members of the same service and classification made by
the Government is neither reasonable nor rational.
It may be mentioned here that the High Court
has not disputed that the members of the scheduled castes and tribes were not
adequately represented in the services under the State of Kerala which is the
positive case of the appellants before us. The High Court has traced the
history of the various orders passed by the Government of Kerala from 1951 to
1972 granting extensions for two years, three years and so on, to the promotees
a fact which was not at all germane for the purpose of this case-because the
respondent No. 1 who was the petitioner before the High Court himself admitted
that he had passed the test held on November 2, 1971. Thus the conduct of the
Government in granting extensions prior to November 2, 1971 was wholly
irrelevant in order to decide the question of discrimination as canvessed by
respondent No. 1.
Mr. M. M. Abdul Khader, Advocate General of
Kerala appearing for the appellants submitted two points before us.
In the first place he argued that r. 13-A.A.
did not provide for reservation as contemplated by clause (4) of Art. 16 of the
Constitution and the High Court was, therefore, in error in striking down the
rule because it exceeded the permissible limits of clause (4) of Art. 16.
Secondly it was submitted that the members of the scheduled castes and tribes
were not only members of one caste but for historical reasons they are a
special class by themselves and they have been given an exalted status under
the Constitution itself.
There is thus nothing in Art. 16(1) of the
Constitution to prevent the State from making reasonable classification in
order to boost up the members of the scheduled castes and tribes by giving
concessions without imperilling the efficiency of the services. The State
action in the instant case was, therefore, justified by the Advocate General of
Kerala on the ground that it had only implemented the directive principles
contained in Part IV of the Constitution. Mr. L. N. Sinha, Solicitor-General
appearing for the Attorney General of India and Mr. R. K. Garg appearing for
the intervener State of U.P. also more or less supported the stand taken by the
Advocate General of Kerala.
Mr. T. S. Krishnamoorthy Iyer appearing for
the respondent No. 1, however, submitted that classification could only be made
under clause (4) of Art. 16. In the instant case even if the provisions
contained in r. 13-A.A.
be deemed a reservation within the meaning of
clause (4) of Art. 16 they exceed the permissible limits and destroy the
concept of equality. Secondly it was argued that as the respondent No. 1 and
the promotees were members of the same class of service they were equally
circumstanced and any discrimination made in favour of the promotees was
clearly hit by Art. 16(1) of the Consti- 992 tution. It was also faintly
suggested by him that there was no reliable evidence to show that the members
of the scheduled castes and tribes were not adequately represented in the
services under the State so as to justify any classification being made in
their favour.
In order to understand the arguments put
forward by the parties it may be necessary to examine the nature and extent of
the provisions of Art. 16 of the Constitution of India.
Article 16 may be extracted as follows:
"16 .(1) There shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
(2) 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.
(3) Nothing in this article shall prevent
Parliament from making 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.
(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.
(5) Nothing in this article shall affect the
operation of any law which provides that the incumbent of an office in
connection with the affairs of any religious or denominational institution or
any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination." It is no doubt
true that Art. 16(1) provides for equality of opportunity for all citizens in
the services under the State. It is, however, well-settled that the doctrine
contained in Art. 16 is a hard and reeling reality, a concrete and constructive
concept and not a rigid rule or an empty formula. It is also equally
well-settled by several authorities of this Court that Art. 16 is merely an
incident of Art. 14, Art. 14 being the genus is of universal application
whereas Art. 16 is the species and seeks to obtain equality of opportunity in
the services under the State. The theory of reasonable classification is
implicit and inherent in the concept of equality for there can hardly be any
country where all the citizens would be equal in all respects. Equality of
opportunity would naturally mean a fair opportunity not only to one section or
993 the other but to all sections by removing the handicaps if a particular
section of the society suffers from the same. It has never been disputed in
judicial pronouncements by this Court as also of the various High Courts that
Art. 14 permits reasonable classification. But what Art. 14 or Art.
16 forbid is hostile discrimination and not
reasonable classification. In other words, the idea of classification is
implicit in the concept of equality because equality means equality to all and
not merely to the advanced and educated sections of the society. It follows,
therefore, that in order to provide equality of opportunity to all citizens of
our country, every class of citizens must have a sense of equal participation
in building up an egalitarian society, where there is peace and plently, where
there is complete economic freedom and there is no pestilence or poverty, no
discrimination and oppression, where there is equal opportunity to education,
to work, to earn their livelihood so that the goal of social justice is
achieved.
Could we, while conferring benefits on the
stronger and the more advanced sections of the society, ignore the more
backward classes merely because they cannot come upto the fixed standards ?
Such a course, in my opinion, would lead to denial of opportunity to the
backward classes resulting in complete annihilation of the concept of equality
contained in Arts. 14 and 16. The only manner in which the objective of equality
as contemplated by the founding fathers of our Constitution and as enshrined in
Arts. 14 and 16 can be achieved is to boost up the backward classes by giving
them concessions, relaxations, facilities, removing handicaps, and making
suitable reservations so that the weaker sections of the people may compete
with the more advanced and in due course of time all may become equals and
backwardness is banished for ever. This can happen only when we achieve
complete economic and social freedom. In our vast country where we have diverse
races and classes of people, some of whom are drowned in the sea of ignorance
and illiteracy, the concept of equality assumes very important proportions.
There are a number of areas in some States like Kashmir, Sikkim, hilly areas of
U.P., Bihar and the South, where due to lack of communication or transport,
absence of proper educational facilities or because of old customs and
conventions and other environmental reasons, the people are both socially and
educationally backward. Could we say that the citizens hailing from these areas
should continue to remain backward merely because they fall short of certain
artificial standards fixed by various institutions ? The answer must be in the
negative. The directive principles enshrined in our Constitution contain a
clear mandate to achieve equality and social justice. Without going into the
vexed question as to whether or not the directive principles contained in Part
IV override the fundamental rights in Part III there appears to be a complete
unanimity of judicial opinion of this Court that the directive principles and
the fundamental rights should be construed in harmony with each other and every
attempt should be made by the Court to resolve any apparent inconsistency. The
directive principles contained in Part IV constitute the stairs to climb the
high edifice of a socialistic State and the fundamental rights are the means
through which one can reach the top of the edifice. I am fortified in my view
by several decisions of this Court to which I will refer briefly.
994 In Re. The Kerala Education Bill, 1957(1)
this Court observed at p. 1022:
"Nevertheless, in determining the scope
and ambit of the fundamental rights relied on by or on behalf of any person or
body the court may not entirely ignore these directive principles of State
policy laid down in Art IV of the Constitution but should adopt the principle
of harmonious construction and should attempt to give effect to both as much as
possible." In Mohd. Hanif Quareshi & others v. The State of Bihar(2)
this Court observed as follows:
"The directive principles cannot
over-ride this categorical restriction imposed on the legislative power of the
State. A harmonious interpretation has to be placed upon the Constitution and
so interpreted it means that the State should certainly implement the directive
principles but it must do so in such a way that its laws do not take away or
abridge the fundamental rights...." In I. C. Golak Nath & Others v.
State of Punjab & Anr.(3) it was observed by this Court:
"At the same time Parts III and IV
constituted an integrated scheme forming a self-contained code. The scheme is
made so elastic that all the Directive Principles of State Policy can
reasonably be enforced without taking away or abridging the fundamental
rights." In Chandra Bhavan Boarding and Lodging, Bangalore v.
The State of Mysore and Anr.(4) this Court
observed:
"It is a fallacy to think that under our
Constitution there are only rights and no duties. While rights conferred under
Part III are fundamental, the directives given under Part IV are fundamental in
the governance of the country. We see no conflict on the whole between the
provisions contained in Part III and Part IV....... The mandate of the
Constitution is to build a welfare society in which justice social, economic
and political shall inform all institutions of our national life. The hopes and
aspirations aroused by the Constitution will be belied if the minimum needs of
the lowest of our citizens are not met." Finally the matter has been
extensively considered by the Full Court in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Anr.(5) where Shelat and Grover, JJ.,
observed: (p. 427) "While most cherished freedoms and rights have been
guaranteed the Government has been laid under a solemn 995 duty to give effect
to the Directive Principles. Both Parts III and IV which embody them have to be
balanced and harmonised-then alone the dignity of the individual can be
achieved." They further observed: (p. 459) "Our Constitution-makers
did not contemplate any disharmony between the fundamental rights and the
directive principles. They were meant to supplement one another. It can well be
said that the directive principles prescribed the goal to be attained and the
fundamental rights laid down the means by which that goal was to be
achieved." Hegde and Mukherjea, JJ., observed : (p. 503).
"Our founding fathers were satisfied
that there is no antithesis between the Fundamental Rights and the Directive
Principles. One supplements the other. The Directives lay down the end to be
achieved and Part III prescribes the means through which the goal is to be
reached." Ray, J., as he then was and now C.J., observed : (p. 580)
"But the Directive Principles are also fundamental, They can be effective
if they are to prevail over fundamental rights of a few in order to subserve
the common good and not to allow economic system to result to the common
detriment. It is the duty of the State to promote common good." He further
observed : (p. 589) "Parts III and IV of the Constitution touch each other
and modify. They are not parallel to each other.
Different legislation will bring in different
social Principles. These will not be permissible without social content
operating in a flexible manner." Jaganmohan Reddy, J., observed : (p. 640)
"There can be no doubt that the object of the Fundamental Rights is to
ensure the ideal of political democracy and prevent authoritarian rule, while
the object of the Directive Principles of State Policy is to establish a
welfare State where there is economic and social freedom without which
political democracy has no meaning. What is implicit in the Constitution is
that there is a duty on the Courts to interpret the Constitution and the laws
to further the Directive Principles which under article 37, are fundamental in
the governance of the country." Palekar, J., observed : (p. 711) "The
Preamble read as a whole, therefore, does not contain the implication that in
any genuine implementation of the Directive Principles, a fundamental right
will not suffer any diminution." 996 Mathew, J., observed : (p. 878)
"I can see no incongruity in holding, when article 37 says in its latter
part "it shall be the duty of the State to apply these principles in
making laws", that judicial process is `State action and that the
judiciary is bound to apply the Directive Principles in making its
judgment." Beg, J., observed : (p. 902) "Perhaps, the best way of
describing the relationship between the fundamental rights of individual citizens,
which imposed corresponding obligations upon the State and the Directive
Principles, would be to look upon the Directive Principles as laying down the
path of the country's progress towards the allied objectives and aims stated in
the Preamble, with fundamental rights as the limits of that path,
............." Chandrachud, J., observed : (p. 962) "Our decision of
this vexed question must depend upon the postulate of our Constitution which
aims at bringing about a synthesis between `Fundamental Rights' and the
`Directive Principles of State Policy', by giving to the former a pride of
place and to the latter a place of permanence. Together, not individually, they
form the core of the Constitution. Together, not individually, they constitute
its true conscience." In view of the principles adumbrated by this Court
it is clear that the directive principles form the fundamental feature and the
social conscience of the Constitution and the Constitution enjoins upon the
State to implement these directive principles. The directives thus provide the
policy, the guidelines and the end of socio-economic freedom and Arts. 14 and
16 are the means to implement the policy to achieve the ends sought to be
promoted by the directive principles. So far as the Courts are concerned where
there is no apparent inconsistency between the directive principles contained
in Part IV and the fundamental rights mentioned in Part III, which in fact
supplement each other, there is no difficulty in putting a harmonious
construction which advances the object of the Constitution. Once this basic
fact is kept in mind, the interpretation of Arts. 14 and 16 and their scope and
ambit become as clear as day.
In the instant case one of the main planks of
the argument put forward by Mr. M. M. Abdul Khader, Advocate- General, Kerala,
was that so far as the scheduled castes and the scheduled tribes were concerned
they had been given an exalted and privileged status under the Constitution and
in the directive principles contained in Part IV which contain a mandate to the
State to consider their claims. It is necessary to consider this aspect of the
matter in a little detail, because the main argument of Mr. Abdul Khader has
been that the scheduled castes and tribes did not fall at all within the mischief
of clause (2) of Art. 16 which prohibits discrimination on the ground of caste
etc. The scheduled caste is not caste as mentioned in Art. 16(2). I am inclined
to agree with the argument advanced by the Advocate General that the word 997
`caste' appearing after `scheduled' is really a misnomer and has been used only
for the purpose of identifying this particular class of citizens which has a
special history of several hundred years behind it. The scheduled castes and
scheduled tribes have been a special class of citizens who have been so
included and described that they have come to be identified as the most
backward classes of citizens that we have in our country. Article 366 clauses
(24) & (25) of the Constitution read thus :
366 "(24) "Scheduled Castes"
means such castes, races ortribes or parts of or groups within such castes,
races or tribes as are deemed under article 341 to be Scheduled Castes for the
purposes of this Constitution;
(25) "Scheduled Tribes" means such
tribes or tribal communities or parts of or groups within such tribes or tribal
communities as are deemed under article 342 to be Scheduled Tribes for the
purposes of this Constitution;" These constitutional provisions,
therefore, create a presumption in favour of scheduled castes and scheduled
tribes that they are backward classes of citizens. It is not disputed that the
members of the scheduled castes and scheduled tribes are specified in the
notifications issued under Arts. 341 and 342 of the Constitution and,
therefore, they must be deemed to be scheduled castes and scheduled tribes for
the purposes of the Constitution.
Article 46 of the Constitution runs thus :
"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." Properly analysed this article contains a mandate on the
State to take special care for the educational and economic interests of the
weaker sections of the people and as illustrations of the persons who
constitute the weaker sections the provision expressly mentions the scheduled
castes and the scheduled tribes.
A combined reading of Art. 46 and clauses
(24) & (25) of Art. 366 clearly shows that the members of the scheduled
castes and the scheduled tribes must be presumed to be backward classes of
citizens, particularly when the Constitution gives the example of the scheduled
castes and the scheduled tribes as being the weaker sections of the society.
Similarly Art. 335 which expressly provides
that the claims of the members of the scheduled castes and the scheduled tribes
shall be taken into consideration runs 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." 998 Thus in view of these provisions the members
of the scheduled castes and the scheduled tribes have been given a special
status in the Constitution and they constitute a class by themselves. That
being the position it follows that they do not fall within the purview of Art.
16(2) of the Constitution which prohibits discrimination between the members of
the same caste. If, therefore, the members of the scheduled castes and the
scheduled tribes are not castes, then it is open to the State to make
reasonable classification in order to advance or lift these classes so that
they may be able to be properly represented in the services under the State.
This can undoubtedly be done under Art. 16(1) of the Constitution.
Before, however, examining the nature of
classification that can be made by the Government under Art. 16(1) of the
Constitution it may be necessary to state three principles which are supported
by abundant authority :
(1) That Art. 16 is merely an incident of
Art. 14 and both these articles form a part of the common system seeking to
achieve the same end. I am fortified in my view by several decisions of this
Court. In State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.(1) this
Court observed : (p.
783) "Article 16 of the Constitution
which ensures to all citizens equality of opportunity in matters relating to
employment is but an instance or incident of the guarantee of equality
contained in article 14.
The concept of equal opportunity undoubtedly
permeates the whole spectrum of an individual's employment from appointment
through promotion and termination to the payment of gratuity and pension."
In Mohammad Shujat Ali and others v. Union of India and others(2) this Court
observed:
"Article 14 ensures to every person
equality before law and equal protection of the laws and Article 16 lays down
that there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State. Article 16
is only an instance or incident of the guarantee of equality enshrined in
Article 14; it gives effect to the doctrine of equality in the sphere of public
employment. The concept of equal opportunity to be found in Article 16
permeates the whole spectrum of an individual's employment from appointment
through promotion and termination to the payment of gratuity and pension and
gives expression to the ideal of equality of opportunity which is one of the
great socio-economic objectives set out in the Preamble of the
Constitution." In Govind Dattatray Kelkar and others v. Chief Controller
of Imports & Exports and others,(3) this Court observed :
999 "Art. 16 of the Constitution is only
an incident of the application of the concept of equality enshrined in Art. 14
thereof. It gives effect to the doctrine of equality in the matter of
appointment and promotion. It follows that there can be a reasonable
classification of the employees for the purpose of appointment or
promotion." The same view was expressed by this Court in S.G.
Jaisinghani v. Union of India and Others.
In The General Manager, Southern Railway v.
Rangachari this Court observed :
"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." (2) It is also well-settled that Art. 16
applies to all classes of appointment including promotions and selection posts.
It has been observed by this Court in C. A. Rajendran v. Union of India and
Ors.(3) :
"The first question to be considered in
this case is whether there is a constitutional duty or obligation imposed upon
the Union Government to make reservations for Scheduled Castes and Scheduled
Tribes either at the initial stage of recruitment and at the stage of promotion
in the Railway Board Secretariat Service Scheme.
The relevant law on the subject is
well-settled.
Under Art. 16 of the Constitution there shall
be equality of opportunity for all citizens in matters relating to employment
or appointment to any office under the State or to promotion from one office to
a higher office thereunder. Articles 14, 15 and 16 form part of the same
constitutional code of guarantees and supplement each other. In other words,
Art. 16 of the Constitution is only an incident of the application of the
concept of equality enshrined in Art. 14 thereof.
It gives effect to the doctrine of equality
in the matter of appointment and promotion. It follows therefore that there can
be a reasonable classification of the employees for the purpose of appointment
and promotion." 1000 In State of Jammu & Kashmir v. Triloki Nath Khosa
and others (supra) it was observed by this Court :
"Since the constitutional code of
equality and equal opportunity is a charter for equals, equality of opportunity
in matters of promotion means an equal promotional opportunity for persons who
fall, substantively, within the same class. A classification of employees can
therefore be made for first identifying and then distinguishing members of one
class from those of another." The same view has been expressed by this
Court in C.A.
Rajendran's case; in S. G. Jaisinghani's
case; Rangachari's case and Mohammad Shujat Ali's case, quoted supra.
The concept of equality or equal opportunity
as contained in Art. 16 does not mean that same laws must be applicable to all
persons under every circumstance. Indeed if this artificial interpretation is
put on the scope and ambit of Art. 16 it will lead to channelisation of
legislation or polarisation of rules. Differences and disparities exist among
men and things and they cannot be treated alike by the application of the same
laws but the law has to come to terms with life and must be able to recognise
the genuine differences and disparities that exist in human nature. Legislature
has also to enact legislation to meet specific ends by making a reasonable and
rational classification. In Morey v. Doud(1) it was so aptly observed :
"To recognise marked differences that
exist in fact is living law; to disregard practical differences and concentrate
on some abstract identities is lifeless logic." Coming now to Art. 16 it
may be analysed into three separate categories so far as the facts of the
present case are concerned :
Category I-Clause (1) of Art. 16.
Category II-Clause (2) of Art. 16.
Category III-Clause (4) of Art. 16.
Clause (1) of Art. 16 clearly provides for
equality of opportunity to all citizens in the services under the State.
It is important to note that the Constitution
uses the words "equality of opportunity for all citizens". This
inherently implies that the opportunity must be given not only to a particular
section of the society or a particular class of citizens who may be advanced or
otherwise more afflunt but to all classes of citizens. This, therefore, can be
achieved by making a reasonable classification so that every class of citizens
is duly represented in the services which will enable equality all citizens.
The classification, however, must be a reasonable one and must fulfil the
following conditions:
(i) it must have a rational basis;
(ii) it must have a close nexus with the
object sought to be achieved;
1001 (iii)it should not select any person for
hostile discrimination at the cost of others.
Now let us see whether r. 13-A.A. can be
justifiable under clause (1) of Art. 16. Rule 13-A.A. of the Rules reads thus:
"Notwithstanding anything contained in
these rules, the Government may, by order, exempt for a specified period, any
member or members, belonging to a Scheduled Caste or a Scheduled Tribe, and
already in service, from passing the tests referred to in rule 13 or rule 13A
of the said Rules." What the rule does is merely to authorise the
Government to exempt for a specified period any member or members of the
scheduled castes and scheduled tribes from pasing the tests referred to in r.
13 and r. 13A. It may be noticed that this rule does not at all give a complete
licence. A Lower Division Clerk who is a member of the scheduled caste or
schedule tribe could not be promoted without passing any test at all so as to
destroy the concept of equality. It merely gives a special concession or a
temporary relaxation to backward class of citizens in order to lift them,
advance them and enable them to compete with the stronger sections of the
society. Thus the basis of the rule is undoubtedly both rational and
reasonable.
Article 335 of the Constitution contains a
mandate to the State for considering the claims of the members of the scheduled
castes and the scheduled tribes consistently with the maintenance of efficiency
of administration. By giving the special concessions to the promotees this
mandate is sought to be obeyed by the Government. Mr. T. S. Krishna moorthy
Iyer counsel for the respondent No. 1 submitted that the mandate given in Art.
335 is violated because by granting exemption to the members of the scheduled
castes and tribes the standard of efficiency of the services would be impaired.
We are, however, unable to agree with the argument. Both the respondent No 1
and the promotees were members of the same service and had been working as
Lower Division Clerks for a pretty long time. The promotees who were members of
the scheduled castes and tribes are admittedly senior to respondent No. 1 and
have gained more experience. Further the rule does not grant complete exemption
to the promotees from passing the test; it only provides for grant of extension
of time to enable them to clear the test. In these circumstances it cannot be
held that the State's action in incorporating r. 13-A.A. in any way violates
the mandate contained in Art. 335. In these circumstances, therefore, I am
clearly satisfied that the concession given in r. 13-A.A. amounts to a
reasonable classification which can be made under Art. 16(1) of the
Constitution and does not amount to the selection of the respondent No. 1 for
hostile discrimination so as to be violative of Art. 16(1) of the Constitution
of India.
Category II refers to clause (2) of Art. 16
which may be reproduced as follows:
"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." 1002 In view of my findings and the various
provisions of the Constitution regarding the status of the members of the
scheduled castes and the scheduled tribes, it is obvious that the members of
the scheduled castes and the scheduled tribes are not a 'caste' but a special
class of backward citizens whose backwardness cannot be doubted. In these
circumstances, therefore, if the promotees do not belong to a caste as
contemplated by Art. 16(2) then they do not fall within the mischief of Art.
16(2) at all. Thus the case of the promotees squarely falls within the four
corners of Art.
16(1) and can be justified as based on
reasonable classification.
Before leaving categories I and II it might
be mentioned that the Court has to apply strict scrutiny to the classification
made by the Government and to find out that it does not destroy or fructify the
concept of equality. In other words, the State cannot be permitted to invoke
favourtism or nepotism under the cloak of equality. Having considered the
matter in all its comprehensive aspects I am satisfied that in this particular
case the classification made by the Government by virtue of r. 13-A.A. is fully
justified by Art. 16 of the Constitution.
This brings us to the consideration of
Category III which is clause (4) of Art. 16. Clause (4) may be extracted as
under:
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." Clause (4) of
Art. 16 of the Constitution cannot be read in isolation but has to be read as
part and parcel of Art.
16(1) & (2). Suppose there are a number
of backward classes who form a sizeable section of the population of the
country but are not properly or adequately represented in the services under
the State the question that arises is what can be done to enable them to join
the services and have a sense of equal participation. One course is to make a
reasonable classification under Art. 16(1) in the manner to which I have
already adverted in great detail. The other method to achieve the end may be to
make suitable reservations for the backward classes in such a way so that the
inadequate representation of the backward classes in the services is made
adequate. This form of classification which is referred to as reservation, is,
in my opinion, clearly covered by Art. 16(4) of the Constitution, which is
completely exhaustive on this point. That is to say clause (4) of Art. 16 is
not an exception to Art. 14 in the sense that whatever classification can be
made can be done only through clause (4) of Art. 16. Clause (4) of Art. 16,
however, is an explanation containing an exhaustive and exclusive provision
regarding reservation which is one of the forms of classification. Thus clause
(4) of Art. 16 deals exclusively with reservation and not other forms of
classification which can be made under Art. 16(1) itself.
Since clause (1) is a special provision
regarding reservation, it can safely be held that it overrides Art.
16(1) to that extent and no reservation can
be made under Art 16(1). It is true that there are some authorities of this
1003 Court that clause (4) is an exception to Art. 16(1) but with due respect I
am not in a position to subscribe to this view for the reasons that I shall
give hereafter.
In the first place if we read Art. 16(4) as
an exception to Art. 16 (1) then the inescapable conclusion would be that Art.
16(1) does not permit any classification at all because an express provision
has been made for this in clause (4). This is, however, contrary to the basic
concept of equality contained in Art. 14 which implicitly permits classification
in any form provided certain conditions are fulfilled. Furthermore, if no
classification can be made under Art. 16(1) except reservation contained in
clause (4) then the mandate contained in Art. 335 would be defeated.
I have already observed that the fundamental
guarantees provided by the Constitution have to be read in harmony with the
directive principles contained in Part IV. Again if Art.
16(4) is deemed to be the only mode of
classification, then it would follow that the Constitution permits only one
form of classification, namely, reservation and no other form so far as the
services are concerned. This will render the concept of equality nugatory and
defeat the very purpose which is sought to be achieved by Art. 16(1). Equality
of opportunity to all citizens does not mean equality to some and inequality to
others. As I have already pointed out that in our country there are a large
number of backward classes of citizens who have to be granted certain
concessions and facilities in order to be able to compete with others. Does it
mean that such citizens should be denied these facilities which may not fall
under the term 'reservation' ? Let us take a few instances. A notification
provides that all candidates for a particular post must apply before a specified
date. A person belonging to a backward class of citizens living in a very
remote area gets information late.
The Government, however, in case of such a
backward class candidate makes a relaxation and extends the date. Can it be
said that this has resulted in violation of Art. 16(1) because it does not fall
within the reservation contemplated by clause (4) of Art. 16 ? It is obvious
that the intention of the Government is merely to help the backward class of
citizens to apply for the job along with others by condoning the delay for
special reasons. Another instance may be where the State makes a relaxation
regarding the age in case of backward classes of citizens in view of the
far-fetched and distant area to which that class of citizens belongs. Lastly
let us take the instance of the present case. The clerks belonging to the
scheduled castes and tribes were given a further extension of time to pass the
test because of their backwardness. They were not exempted from passing the
test.
This could only be done under Art. 16(1) and
not under clause (4) of Art. 16.
For these reasons, therefore, I respectfully
agree with the observations of Subba Rao, J., as he then was in T.
Devadasan v. The Union of India and Anr(1)
where he observed:
"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
1004 emphatic way 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 preserved a power untrammelled by the other provisions of
the Article." My view that Art. 16(4) is not a proviso to Art. 16(1) but
that this clause covers the whole field of Art. 16 is amply supported by the
decision of this Court in The General Manager, Southern Railway v. Rangachari
(supra) where it was observed: (p. 599) "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- obstant clause in Art. 16 (4)." Now analysing clause (4) of Art.
16 it appears that it contains express provisions empowering the State to make
reservations in suitable cases provided the following conditions are satisfied:
(i) that the class for which reservation is
made is must be socially and educationally backward.
I might mention that so far as the members of
the scheduled castes and tribes are concerned, in view of the constitutional
provisions referred to above, this fact will have to be presumed and it was
also so held in Rangachari's case supra.
(ii) That the class for which reservation is made
is not adequately represented in the services under the State.
So far as this is concerned it was suggested
by Mr.
Krishnamoorthy Iyer appearing for respondent
No. 1 that there is no material on the record to show that the promotees were
not adequately represented in the services under the State and the Government
had not issued any notification declaring this fact. It, however, appears that
this point was not canvassed before the High Court at all.
Nevertheless the appellants have produced
before us sufficient materials to show that the members of the scheduled castes
and the scheduled tribes were not adequately and properly represented in the
services under the State and particularly in the Registration Department with
which we are dealing in this appeal. It is clear from Annexure 'A' of the
Appeal Paper Book that there were as many as 2254 non-gazetted employees in the
Registration Department out of which members of the scheduled castes and tribes
are only 198. It has also been stated in the counter- affidavit before the High
Court that the members of the scheduled castes and tribes form about 8 per
cent. of the population of the State of Kerala. This, therefore, clearly shows
that the promotees were inadequately represented in the services under the
State and, therefore, they fulfil the second condition required by clause (4)
of Art. 16.
1005 (iii)The reservation should not be too
excessive so as to destroy the very concept of equality.
This means that the reservation should be
within the permissible limits and should not be a cloak to fill all the posts
belonging to a particular class of citizens and thus violate Art. 16(1) of the
Constitution indirectly. At the same time clause (4) of Art. 16 does not fix
any limit on the power of the Government to make reservation. Since clause (4)
is a part of Art. 16 of the Constitution it is manifest that the State cannot
be allowed to indulge in excessive reservation so as to defeat the policy
contained in Art. 16(1). As to what would be a suitable reservation within
permissible limits will depend upon the facts and circumstances of each case
and no hard and fast rule can be laid down, nor can this matter be reduced to a
mathematical formula so as to be adhered to in all cases. Decided cases of this
Court have no doubt laid down that the percentage of reservation should not
exceed 50%. As I read the authorities, this is, however, a rule of caution and
does not exhaust all categories. Suppose for instance a State has a large
number of backward classes of citizens which constitute 80% of the population
and the Government, in order to give them proper representation, reserves 80%
of the jobs for them, can it be said that the percentage of reservation is bad
and violates the permissible limits of clause (4) of Art. 16 ? The answer must
necessarily be in the negative. The dominant object of this provision is to
take steps to make inadequate representation adequate.
This brings us to the validity of the
carry-forward rule which also has been touched by the High Court. It has been
held by the High Court that as a result of the special rule adopted by the
State 34 out of 51 vacancies have been filled up by the members of the
scheduled castes and tribes, thus far exceeding the 50 per cent limit which has
been laid down by this Court. It is true that in T. Devadasan's case (supra)
the majority judgment of this Court did strike down a rule which permitted
carry-forward of the vacancies. With respect, however, I am not able to agree
with this view because such a rule some times defeats the ends of Art. 16
itself. By the carry-forward rule what is meant is that if suppose there are 50
vacancies in a year, 25 of such vacancies are set apart for backawrd classes of
citizens and if out of these 25 only 10 such candidates are available, then the
remaining 15 vacancies instead of being kept vacant which may result in
inefficiency and stagnation are filled up from other classes but the deficiency
is sought to be made up in the next year or in the year next to that. I can see
no objection to this course being adopted which is fully in consonance with the
spirit of clause (4) of Art. 16. The main idea is to give adequate
representation to the backward classes of citizens if they are not adequately
represented in the services. What difference does it make if instead of keeping
the reserved vacancies vacant from year to year as a result of which work of
the Government would suffer they are allowed to be filled up by other
candidates and the number of vacancies so filled up are kept reserved for the
next year to accommo- 1006 date candidates from backward classes. This does not
and cannot destroy the concept of equality, nor result in hostile
discrimination to one or the other. There can be no doubt that reservation to
the extent of 50% is permissible and if the candidates to that extent are not
available, and those vacancies could not be filled up by other candidates then
such candidates would not get any appointment at all.
It is only by chance that some of the
candidates of the backward classes not being available that the other
candidates are appointed. In fact if the carry-forward rule is not allowed to
be adopted it may result in inequality to the backward classes of citizens who
will not be able to be absorbed in public employment in accordance with the
full quota reserved for them by the Government. Thus if the carry forward rule
is not upheld, then backwardness will be perpetrated and it would result
ultimately in a vacuum. For these reasons, therefore, I am of the opinion that
the High Court was in error in holding that the State's action in filling 34
vacancies out of 51 by members of the scheduled castes and tribes was illegal
and could not be justified.
(iv) Reservation should not be made at the
cost of efficiency.
This is a very important condition for the
application of clause (4) of Art. 16. No reservation can be made at the cost of
efficiency which is the prime consideration. But one should not take an
artificial view of efficiency. A concession or relaxation in favour of a backward
class of citizens particularly when they are senior in experience would not
amount to any impairment of efficiency. It is, however, not necessary for me to
dilate on this aspect because in my view the relaxation contained in r. 13-A.A.
of the rules does not fall within clause (4) of Art. 16 but falls squarely
within clause (1) of Art. 16 as shown above, and, therefore, I am of the
opinion that the High Court was in error in holding that r. 13-A.A. was ultra
vires and was violative of Art. 16 as it thought that this rule came within the
mischief of clause (4) of Art. 16.
Before closing this judgment I would like to
allay a serious apprehension that has been expressed by learned counsel for
respondent No. 1 that if the Court is to give a wide and liberal interpretation
to Art. 14 and Art. 16, the guarantees of fundamental right to equality might
be completely eroded in due course of time. I have given my anxious
consideration to this argument and I am clearly of the opinion that the
apprehension expressed by the learned counsel does not appear to be well
founded. This Court has upheld in several cases classifications graver and more
damaging than the one made in the present case without affecting the concept of
equality. For instance in Triloki Nath Khosa's case (supra) this Court upheld a
classification made by the State between the members of the same service,
recruited from the same source and holding the same posts on the ground that
one set of members having possessed a higher qualification, namely, a degree in
engineering, could constitute a separate class and could be differently treated
from the other members of the same service who were merely diploma holders.
What had happened in that case was that the service of Engineers was one
integrated service consisting of 1007 Assistant Engineers who were merely
diploma holders and those who were degree holders. The Government passed an
order by which the degree holders could be promoted to higher grade of service,
namely, to the posts of Executive Engineer or Superintending Engineer, which
was however blocked to those Assistant Engineers who were merely diploma
holders. This rule was struck down by the High Court of Jammu & Kashmir but
the Supreme Court on appeal held that qualification was a reasonable ground of
classification and by virtue of the qualification the Assistant Engineers who
were degree holders could be shown a preferential treatment.
The position does not appear to be worse in
this case and on a parity of reasoning the Government has merely extended the
time prescribed for departmental tests for the promotees by treating them as a
special class for two reasons-(1) that they were senior to and more experienced
than the respondent No. 1; and (2), that they belonged to backward classes
being members of the scheduled castes and tribes and for historical reasons
they did not have sufficient opportunity to develop their genius and
intellectual capacity as others could do. I, therefore, see no reason to hold
that this classification was in any way unreasonable or arbitrary. The
conditions under which classification has to be made, as pointed out by me, are
so strict and stringent that the apprehension of erosion of the concept of
equality appears to be illusory. We must remember that the Courts are meant to
interpret and not make the law. As Justice Frankfurter observed.
"A Judge must not re-write a statute,
neither to enlarge nor to contract it." Finally there can be no doubt that
if the State action in a particular case amounts to an arbitrary classification
or a hostile discrimination which is violative of Art. 16 of the Constitution
the Court is there to act as sentinel on the qui vive in order to strike down
such an action.
For the reasons given above, I have come to
the conclusion that r. 13-A.A. of the rules is a valid piece of statutory
provision which is fully justified under Art.
16(1) of the Constitution of India and does
not fall within the purview of Art. 16(4).
I would, therefore, allow the appeal, set
aside the judgment of the High Court and direct the status quo ante to be
restored. In the circumstances of this case, I leave the parties to bear their
respective costs.
ORDER Order by Majority- The validity of Rule
13AA of the Kerala State and Subordinate Services Rules, 1958 and two orders,
Exhibits P- 2 and P-6 is upheld. The judgment of the High Court is set aside
and the appeal is allowed. Parties will pay and bear their own costs.
P.B.R.
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