The goal before the framers of the constitution was to provide equality in all respects to the

citizens. To that end, they kept the "Right to Equality"  as the first among all fundamental rights.
While art 14 gives a general principle of equality to be followed, art 15 and art 16 give specific
examples that illustrate the concept of equality that the framers had in their mind, which was that
"Like should be treated alike". In this context, Art 16 (4), which existed since the unamended
constitution, allows the state to make any provision regarding the reservation of posts or
appointments for backward classes which, in the opinion of the state, are not adequately
represented in the services under the state. It is important to note that art 16(4) only talks about
reservation in employment.  It does not talk about any other avenue such as reservation in
educational institution.

However, art 46, which also existed since the beginning, implores the state to promote with
special care the educational and economic interest of the weaker sections of the society,
specially SCs and STs. On this ground the State of Madras reserved some seats in educational
institutions for backward classes. This was challenged in the case of Champakam Dorairajan
vs State of Madras 1951, in which SC held that such reservation discriminated based on caste,
which is prohibited by art 15 (1). It held that art 46 cannot overbear on art 15 and so such a
provision is unconstitutional.

Due to this decision, the constitution was amended for the first time and clause 15(4) was added
to art 15. This clause says that no provision of Art 15 or 29 (2) shall prevent the state from
making special provisions for socially and educationally backward classes of citizens or for SCs
and STs.  It allowed the states to provide reservation to backward classes in educational
institutes as well.

This clause opened the floodgates of petitions and the courts have wavered on the interpretation
of this clause in several cases. Part of the reason is that the constitution does not define
precisely who are to be covered under "backward classes" and how much reservation can there
be. However, under art 340, it allows the president to set up a commission to investigate into the
condition of people in states and then classify them as backward as required. Further, art 335
says that special provisions for SC/STs should be taken into consideration, consistently with the
efficiency of the services. Thus, the quality of administration could not be diluted.

The following are leading cases that have, from time to time, changed the course of reservations
in India.

1. Balaji vs State of Mysore AIR 1963

In this case, SC held the following:

 reservation cannot be more than 50%. 

 the classification of backward and more backward is invalid.
 caste cannot be the only criteria because art 15(4) talks about class and class is not
synonymous with caste. So other factors such as poverty should also be considered.

2. Devadason vs Union of India AIR 1964

In the case SC held the "carry forward rule" as unconstitutional. This rule meant that posts that
could not be filled due to lack of candidates in backward classes would be filled by regular
candidates but the same number of additional posts would be reserved in the next year.  This
caused the amount of reservation to go above 50%. SC held that power of art 16(4) could not be
used to deny equality of opportunity for non-backward people.

3.  State of Kerela vs N M Thomas AIR 1976

State of Kerala had given 2 yrs relaxation to SC/STs in passing certain test for promotion. SC
held that such a relaxation is valid. It held that the relaxation does not cause reduction in the
efficiency because such people will have to pass the test anyway. It further held that special
provisions for SC/STs could be made even under 16(1) and not only under 16 (4). This is
because the classification has a reasonable nexus with objective, which is the upliftment of
backward classes.

4. A B S K Sangh (Rly) vs Union of India AIR 1981

Building upon the case of N M Thomas, SC upheld that reservation could be done even without
16(4) because art 16(1) has to be read in light of art 14, which permits classification based on
intelligible differentia and a justifiable nexus with the objective.
It further held that "carry forward rule" is valid if the reservation does not become excessive. It
held that exact mathematical calculation of 50% is not required in solving human problems but
reservation should not be excessive. In this particular situation, 64.4% was not considered
excessive. 50% limit was not a strict limit but only a guideline.

5. State of MP vs Nivedita Jain AIR 1981

In this case, SC held that complete relaxation of qualifying marks for SC/STs for admission in
medical colleges is valid. 

6. Indra Sawhney vs Union of India AIR 1993

The following points were held in this case:

 classification of backward and more backward is valid.

 reservation cannot exceed 50%.
 only economic criteria is not valid.
 creamy layer must be excluded.
 reservation if promotion is invalid. - This was nullified by 77th amendment which added
clause 15 (4). This clause permits reservation in promotions with consequential seniority.
 16(4) is not an exception but only an instance of classification. Reservation can done
without 16(4) as well, under the doctrine of reasonable classification.
 Any new parameters on reservation can be added only after consulting the supreme
court.

Conclusion
Upon examining the philosophy behind art 14, in can said that art 15 does not go against the
principle of equality. Art 15 gives specific examples on which discrimination is prohibited and it
also list specific cases where a positive discrimination may be done to achieve social equality
and social justice.
Mudholkar, J.— The petitioner, who is a graduate, is an Assistant in Grade
IV of the Central Secretariat Service, having been recruited therein in the
year 1956. He became permanent on January 1, 1958. The next post
which the petitioner can expect to get is that of Section Officer (Assistant
Superintendent) in the same service. Recruitment to the post of Section
Officers is made in the following manner:
(i) 40 per cent by direct recruitment from those who obtained lower ranks in
the IAS etc. Examination;
(ii) 30 per cent by promotion from Grade IV to Grade III on the basis of a
departmental examination held at intervals by UPSC
(iii) 30 per cent by promotion from Grade IV on the basis of seniority-cum-
fitness.
2. On February 6, 1960, the Union Public Service Commission issued a
notification to the effect that a limited competitive examination for promotion
to the regular temporary establishment of Assistant Superintendents of the
Central Secretariat Service would be held in June 1960. The notification
further stated that a reservation of 12½ per cent of the vacancies would be
made for members of the Scheduled Castes and 5 per cent for members of
Scheduled Tribes. The result of this examination was announced by the
Union Public Service Commission in April 1961. The Union Public Service
Commission recommended 16 candidates for being appointed in
unreserved vacancies and 28 candidates in reserved vacancies.
Subsequently UPSC recommended 2 more candidates belonging to the
Scheduled Castes/Tribes for the posts. It may be mentioned that the
number of vacancies which were expected to be filled was stated to be 48
out of which 16 were unreserved and the remaining 32 reserved, though in
fact UPSC recommended the names of only 30 candidates for the latter
class of vacancies. The Government, however, made only 45 appointments
out of which 29 were from among the candidates belonging to the
Scheduled Castes and Tribes.
3. The petitioner points out that the percentage of marks secured by him at
the examination was 61 whereas the percentage of marks secured by
some of the 29 candidates from the Schedule Castes and Tribes was as
low as 35 and one of his grievances is that it was not competent to UPSC
to prescribe one qualifying standard for members of the Scheduled Castes
and Tribes and another for the rest of the candidates.
4. It is the petitioner's case that had the Union of India and the UPSC
adhered to the quota of 17½ per cent reservations in favour of Scheduled
Castes and Tribes he would have had a fair chance of being selected to the
post of Assistant superintendent. His grievance is that the reservation
actually made in this case comes to 65 per cent and was far in excess of
that set out in the notification of UPSC, pursuant to which the competitive
examination was held. Had the reservation been limited to 17½ per cent
only 8 vacancies could have gone to the members of the Scheduled Castes
and Tribes and the rest to other candidates according to their merit.
5. The petitioner points out that the respondents, that is, the Union of India
and the Union Public Service Commission seek to justify their action by
relying upon what is known as “the carry forward rule”. In order to
understand what the aforesaid rule is, it is necessary to refer to certain
resolutions of the Government of India in the Ministry of Home Affairs. On
September 13, 1950 the Government of India published a resolution
indicating their policy in regard to communal representation in the services.
There they have stated that the following reservations would provisionally
be made in recruitment to the posts and services under them:
(a) Scheduled Castes.— Reservation of 12% of vacancies by direct
recruitment through the Union Public Service Commission or by means of
open competitive tests held by any other authority. Where recruitment is
made otherwise than by open competition the reservation will be 16 2/3%.
(b) Scheduled Tribes.— Both in recruitment by open competition and the
recruitment made otherwise than by open competition the reservation shall
be to the extent of 5% of the vacancies filled by direct recruitment.
6. Then they refer to the resolution in favour of Anglo-Indians with which we
are not concerned. Incidentally it may be mentioned that this resolution
provides that in all cases a minimum standard of qualifications will be
prescribed and that the reservations will be subject to the overall condition
that candidates of the requisite communities possessing the prescribed
qualifications and suitable in all respects for the appointments in question,
are forthcoming in sufficient numbers for the vacancies reserved for them.
These orders were made applicable to all services under the control of the
Government of India. Supplementary instructions with regard to this subject
were issued by the Government of India on January 28, 1952, of which the
relevant portions may be quoted:
“2(a) RECRUITMENT BY OPEN COMPETITION.— If the candidates of
Scheduled Castes, Scheduled Tribes and the Anglo-Indian community obtain
by competition less vacanciesthan are reserved for them, the difference will be
made up by the nomination of duly qualified candidates of these castes, tribes
and communities i.e candidates of these communities etc. who have qualified
in the test, selection etc. held for the purpose, but have secured ranks lower
than the candidates of other communities for whom no reservations have
been made.
***
5(3) If a sufficient number of candidates of the communities for whom the
reservations are made, who are eligible for appointment to the posts in
question and are considered by the recruiting authorities as suitable in all
respects for appointment to the reserved quota of vacancies, are not
available, the vacancies that remain unfilled will be treated as unreserved and
filled by the best available candidates; but a corresponding number
of vacancies will be reserved in the following year for the communities
whose vacancies are thus filled up in addition to such number as would
ordinarily be reserved for them under the orders contained in the resolution.
(For further clarification please see Rule III in Appendix ‘A').
(4) If suitably qualified candidates of the communities for whom the
reservations have been made are again not available to fill
the vacancies carried forward from the previous year under clause (3) above,
the vacancies not filled by them will be treated as unreserved and the
reservations made in those vacancies will lapse.
***
APPENDIX ‘A'
III. No gap should be left in the roster in tilling vacancies and if a reserved
vacancy (at, say, the 25th point of the roster) has, for want of a suitable
Scheduled Caste candidate to be treated as unreserved, the candidate
appointed should be shown against that point; but if a Scheduled Castes
candidate cannot be recruited against an unreserved vacancy later in the
year, the reservation should be carried forward to the following year and after
the Scheduled Castes quota for the latter year has been filled, the first
unreserved vacancy in that year (say, the 32nd point) should be treated as
reserved for Scheduled Castes.”
7. These supplementary instructions were given apparently because
sufficient number of qualified candidates from among the Scheduled
Castes and Tribes were not available. However, even
carrying forward the vacancies for one year proved to be inadequate for
giving effect to the policy of the Government of India to give adequate
representation in the services to members of the Scheduled Castes and
Tribes. The Government considered and rejected the holding of separate
examination for Scheduled Castes and Tribes for recruitment to public
services. Then by Office Memorandum No. 2/11/55-RPS dated May 7,
1955 the Government of India modified sub-paras (3) and (4) or para 5 of
the supplementary instructions dated January 28, 1952, by substituting the
following:
“3. (a) If a sufficient number of candidates considered suitable by the
recruiting authorities, are not available from the communities for whom
reservations are made in a particular year, the unfilled vacancies should be
treated as unreserved and filled by the best available candidates. The number
of reserved vacancies thus treated as unreserved will be added as an
additional quota to the number that would be reserved in the following year in
the normal course; and to the extent to which approved candidates are not
available in that year against this additional quota, a corresponding addition
should be made to the number of reserved vacancies in the second following
year.
Thus the number of reserved vacancies of 1954 which were treated as
unreserved for want of suitable candidates in that year will be added to the
normal number of reserved vacancies in 1955. Any recruitment against
these vacancies in 1955 will first be counted against the additional quota
carried forward from 1954. If, however, suitable candidates are not available in
1955 also a certain number of vacancies are treated accordingly as
‘unreserved' in that year, the total number of vacancies to be reserved in 1956
will be the unutilised balance of the quota carried forward from 1954 and 1955
plus the normal percentage of vacancies to be reserved in 1956. The
unutilised quota will not, however, be carried forward in this manner for more
than two years.
An annual report of reserved vacancies which were treated as unreserved for
want of suitable candidates from Scheduled Castes or Scheduled Tribes as
the case may be, should be forwarded to the Ministry of Home Affairs in the
form enclosed as annexure along with the annual communal returns already
prescribed. In addition Ministries themselves will take adequate steps to
ensure that any lapse on the part of subordinate authorities in observing the
reservation rules cannot go unnoticed by a reviewing authority within the
Ministry itself at a sufficiently early date.
(b) In the event of a suitable Scheduled Castes candidate not being available,
a Scheduled Tribe candidate can be appointed to the reserved vacancy and
vice versa subject to adjustment in the subsequent points of the roster. (For
further clarification please see Rule III in Appendix ‘A').”
8. It is these instructions of the Government of India which are being
challenged by the petitioner in this petition which he has presented to this
Court under article 32 of the constitution. His contention is that article
16(1) of the constitution provides that there shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State. Mr Gopalakrishnan, who appears for the
petitioner, concedes that under clause (4) of Article 16 it is open to the
State to make provision for reservation of appointments or posts in favour
of any backward class of citizens which in the opinion of the State, is not
adequately represented in the services of the State. But his contention is
that this reservation cannot be so extensive as to nullify or destroy the right
conferred by clause (1) of Article 16. He points out that according to the
previous decisions of this Court, clause (4) is merely an exception to clause
(1) of Article 16, which, being subservient to the main provision cannot be
so interpreted as to render the main provision meaningless. His next
contention is that clause (4) of Article 16 is to be read with article 335 of
the constitution which, while providing for the consideration of the claims
of members of Scheduled Castes and Tribes, reiterates that the efficiency
of administration should be maintained and not allowed to suffer. His next
contention is that as no reservation of posts in favour of members of
Scheduled Castes and Tribes is made in the offices of the Lok Sabha and
Rajya Sabha and the Supreme Court or in the armed forces, article 14 of
the constitution is infringed. Then, according to him, the standard for all
candidates must be the same and the Union Public Service Commission
has no power to recommend for appointment candidates from Scheduled
Castes and Tribes for appointment to the reserved posts even though they
have secured far less marks than the candidates belonging to the more
advanced communities. These are the main points which Mr
Gopalakrishnan has urged.
9. On behalf of the respondents it is claimed that the carry forward rule is
perfectly valid, that it was a rule in force before the commencement of the
Constitution and that it was decided to continue it even after the
Constitution came into force as a matter of public policy and for giving
effect to the provisions of the Constitution and that is why supplementary
instructions were issued by the Government in 1952. They further say that
the carry forward rule was extended up to two years because of
inadequacy of representation of Scheduled Castes and Tribes in services
regarding which there was persistent criticism in Parliament and by the
Commissioner for Scheduled Castes and Tribes and by others. It is for this
reason that the revised supplementary instructions of 1955 were issued as
a matter of policy. The respondents relied upon the provisions of article
16(4) and article 335 in support of these instructions.
10. It was contended on behalf of the respondents that having regard to the
prayers in the petition the petition was unsustainable in law because the
persons who would be adversely affected have not been joined as
respondents. It is also contended that the petition does not disclose any
justiciable issue. The right to promotion cannot, according to the
respondents, be the subject of a complaint in a court of law. Nor again,
questions of policy could be agitated before a court of law. The
respondents denied that the petitioner has any right, much less a
fundamental right. The respondents also deny that the carry forward rule
was a negation of equality before law and equal opportunity in the matter of
appointment to posts under the State. The infringement of the alleged
fundamental right could not thus furnish a cause of action to sustain a
petition under Article 32.
11. While replying in detail paragraph by paragraph to the petition, the
respondents admitted that at the competitive examination held in
pursuance of the notification of March 1961, 28 vacancies which had been
filled in the two previous years from amongst candidates who belong to
communities other than the Scheduled Castes and Tribes because suitable
candidates from the latter classes were not available and stated that by
operation of the carry forward rule those vacancies were, therefore,
earmarked for being filled at the competitive examination held in the year
1961 in addition to 17½% to the total vacancies to be filled that year.
12. The main question for consideration thus is whether
the carry forward rule as modified in 1955 is unconstitutional either
because its operation will practically destroy the fundamental right
guaranteed by article 16(1) of the constitution or because it is violative of
the guarantee contained in article 14 of the constitution. If on either of
these grounds the carry forward rule is found to be bad no other question
need be considered by us.
13. It seems to us that the argument based upon article 14 of the
constitution in fact turns on the same considerations as the argument that
Article 16(1) is infringed by the aforesaid rule. What Article 14 provides is
that the State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India. What is meant by
equality in this article is, equality amongst equals. It does not provide that
what is aimed at is an absolute equality of treatment to all persons in utter
disregard in every conceivable circumstance of the differences such as
age, sex, education and so on and so forth as may be found amongst
people in general. Indeed, while the aim of this article is to ensure that
invidious distinction or arbitrary discrimination shall not be made by the
State between a citizen and a citizen who answer the same description and
the differences which may obtain between them are of no relevance for the
purpose of applying a particular law reasonable classification is
permissible. It does not mean anything more.
14. It is an accepted fact that members of the Scheduled Castes and Tribes
are by and large backward in comparison with other communities in the
country. This is the result of historical causes with which it is not necessary
for us to deal here. The fact, however, remains that they are backward and
the purpose of Article 16(4) is to ensure that such people, because of their
backwardness should not be unduly handicapped in the matter of securing
employment in the various services of the State. This provision, therefore,
contemplates reservation of appointments or posts in favour of backward
classes who are not adequately represented in the services under the
State. Where, therefore, the State makes a rule providing for the
reservation of appointments and posts for such backward classes it cannot
be said to have violated Article 14 merely because members of the more
advanced classes will not be considered for appointment to these posts
even though they may be equally or even more meritorious than the
members of the backward classes, or merely because such reservation is
not made in every kind of service under the State. Where the object of a
rule is to make reasonable allowance for the backwardness of members of
a class by reserving certain proportion of appointments for them in the
public services of the State what the State would in fact be doing would be
to provide the members of backward classes with an opportunity equal to
that of the members of the more advanced classes in the matter of
appointments to public services. If the reservation is so excessive that it
practically denies a reasonable opportunity for employment to members of
other communities the position may well be different and it would be open
then for a member of a more advanced class to complain that he has been
denied equality by the State.
15. That is precisely the point which we must consider in dealing with the
argument of learned counsel that the rule violates the guarantee contained
in article 16(1) of the constitution because the excessive reservation
permitted by it almost destroys the guarantee contained in the provision. In
order to appreciate the argument it is necessary to consider the operation
of the rule. Now, the rule provides that 17½% of the total vacancies in a
year will be reserved for being filled from amongst candidates belonging to
Scheduled Castes and Tribes. It further provides that if in any year suitable
candidates are not available from amongst such classes the reserved posts
will be de-reserved, filled by candidates from other classes and a
corresponding number of posts be carried forward to the next year. If in the
subsequent year the same thing happens, the posts unfilled by candidates
from Scheduled Castes and Tribes can be carried forward to the third year.
In the third year the number of posts to be filled from amongst candidates
of Scheduled Castes and Tribes would thus be 171/2% of the
total vacancies to be filled in that year, plus the total
unfilled vacancies which have been carried forward from the two previous
years. The rule thus permits a perpetual carry forward of unfilled
reserved vacancies in the two years preceding the year of recruitment and
provides addition to them of 17½% of the total vacancies to be filled in the
recruitment year. In order to appreciate better the import of this rule on
recruitment let us take an illustration. Supposing in two successive years
no candidate from amongst the Scheduled Castes and Tribes is found to
be qualified for filling any of the reserved posts. Supposing also that in
each of those two years the number of vacancies to be filled in a particular
service was 100. The reserved vacancies for each of those years would,
according to the government resolution, be 18 for each year. Now, since
these vacancies were not filled in those years a total of 36 vacancies will be
carried forward to the third year. Supposing in the third year also the
number of vacancies to be filled is 100. Then 18 vacancies out of these will
also have to be reserved for members of the Scheduled Castes and Tribes.
By operation of the carry forward rule the vacancies to be filled by persons
from amongst the Scheduled Castes and Tribes would be 54 as against 46
by persons from amongst the more advanced classes. The reservation
would thus be more than 50%. It has been held by this Court in M.R Balaji
v. State of Mysore AIR 1963 SC 649 that the reservation of more than half
of the seats in an educational institution for being filled from members of
the backward classes is unconstitutional. Speaking for the Court
Gajendragadkar, J., has observed therein:
“Speaking generally and in a broad way a special provision should be less
than 50 per cent how much less than 50 per cent. would depend upon the
relevant prevailing circumstances in each case.... In our opinion when the
State makes a special provision for the advancement of the weaker sections
of society specified in Article 15(4) it has to approach its task objectively and
in a rational manner. Undoubtedly, it has to take reasonable and even
generous steps to help the advancement of weaker elements; the extent of
the problem must be weighed, the requirements of the community at large
must be borne in mind and a formula must be evolved which would strike a
reasonable balance between the several relevant considerations.”
In that case the reservation was to the extent of 68% and it was struck down
by this Court. No doubt, what was challenged was the reservation of seats in
an educational institution in favour of members of “backward communities”
under Article 15(4) which permits the State to make a special provision for the
advancement of any socially and educationally backward classes or for the
Scheduled Castes and Tribes while Article 16(4) in specific terms provides for
the reservation of appointments or posts in favour of such classes. But the
difference in the language used in these provisions is not, however, of any
significance because this Court has accepted the position that reservation can
be made under Article 15(4). Indeed, at p. 664 this Court has pointed out:
“… what is true in regard to Article 15(4) is equally true in regard to Article
16(4). There can be no doubt that the Constitution-makers assumed, as they
were entitled to, that while making adequate reservation under Article 16(4)
care would be taken not to provide for unreasonable, excessive or extravagant
reservation, for that would, by eliminating general competition in a large field
and by creating widespread dissatisfaction amongst the employees, materially
affect efficiency. Therefore, like the special provision improperly made under
Article 15(4), reservation made under Article 16(4) beyond the permissible and
legitimate limits would be liable to be challenged as a fraud on the
Constitution.”
What this Court has laid down there would also apply to the present case. The
ratio of this decision appears to be that reservation of more than half
the vacancies is per se destructive of the provisions of article 15(1) which is
to the effect that the State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.
Adverting to the effect of such reservation this Court has observed at p 662:
“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 Article 15(4). It
would be extremely unreasonable to assume that in enacting article 15(4) the
constitution intended to provide that where the advancement of the
Backward Classes or the Scheduled Castes and Tribes was concerned, the
fundamental rights of the citizens constituting the rest of the society were to be
completely and absolutely ignored.”
16. The startling effect of the carry forward rule as modified in 1955 would
be apparent if in the illustration which we have taken there were in the third
year 50 total vacanciesinstead of 100. Out of these 50 vacancies 9 would
be reserved for the Scheduled Castes and Tribes, adding to that, the 36
carried forward from the two previous years, we would have a total of 45
reserved vacancies out of 50, that is, a percentage of 90. In the case
before us 45 vacancies have actually been filled out of which 29 have gone
to members of the Scheduled Castes and Tribes on the basis of
reservation permitted by the carryforward rule. This comes to about 64.4%
of reservation. Such being the result of the operation of
the carry forward rule we must, on the basis of the decision in Balaji case
hold that the rule is bad. Indeed, even in General Manager Southern
Railway v. Rangachari 1962 2 SCR 586 which is a case in which
reservation of vacancies to be filled by promotion was upheld by this Court,
Gajendragadkar, J., who delivered the majority judgment observed:
“It is also true that the reservation which can be made under Article 16(4) is
intended merely to give adequate representation to backward communities. It
cannot be used for creating monopolies or for unduly or illegitimately
disturbing the legitimate interests of other employees. In exercising the
powers under Article 16(4) the problem of adequate representation of the
backward class of citizens must be fairly and objectively considered and an
attempt must always be made to strike a reasonable balance between the
claims of backward classes and the claims of other employees as well as the
important consideration of the efficiency of administration;....”
It is clear from both these decisions that the problem of giving adequate
representation to members of backward classes enjoined by article l6(4) of
the constitution is not to be tackled by framing a general rule without bearing
in mind its repercussions from year to year. What precise method should be
adopted for this purpose is a matter for the Government to consider. It is
enough for us to say that while any method can be evolved by the
Government it must strike “a reasonable balance between the claims of the
backward classes and claims of other employees” as pointed out in Balaji
case.
17. We would like to emphasise that the guarantee contained in Article
16(l) is for ensuring equality of opportunity for all citizens relating to
employment, and to appointments to any office under the State. This
means that on every occasion for recruitment the State should see that all
citizens are treated equally. The guarantee is to each individual citizen and,
therefore, every citizen who is seeking employment or appointment to an
office under the State is entitled to be afforded an opportunity for seeking
such employment or appointment whenever it is intended to be filled. In
order to effectuate the guarantee each year of recruitment will have to be
considered by itself and the reservation for backward communities should
not be so excessive as to create a monopoly or to disturb unduly the
legitimate claims of other communities.
18. Further, this Court has already held that clause (4) of Article 16 is by
way of a proviso or an exception to clause (1). A proviso or an exception
cannot be so interpreted as to nullify or destroy the main provision. To hold
that unlimited reservation of appointments could be made under clause (4)
would in effect efface the guarantee contained in clause (l) or at best make
it illusory. No provision of the Constitution or of any enactment can be so
construed as to destroy another provision contemporaneously enacted
therein. It is true, as pointed out by Mr Ganapathy Iyer on behalf of the
respondent that effect must be given to the express words of Article 16(4):
“Nothing in this article shall prevent the State from making any provision for
the reservation of appointments....etc.” but that does not mean that the
provision made by the State should have the affect of virtually obliterating
the rest of the article, particularly clauses (1) and (2) thereof. The overriding
effect of clause (4) on clauses (1) and (2) could only extend to the making
of a reasonable number of reservation of appointments and posts in certain
circumstances, that is all.
19. Going back on his earlier concession, it was contended by Mr
Gopalakrishnan on behalf of the petitioner, that there can possibly be no
reservation whatsoever in favour of members of Scheduled Castes or
Tribes or any of the backward classes and that the proper way of
discharging the duty laid upon the State by article 16(4) of the
constitution would be to adopt a method of the kind which has appealed
to the Government of Maharashtra in exercising its powers under Article
15(4). In this connection he has referred us to the following passage from
the judgment of this Court in Balaji case:
“It appears that the Maharashtra Government has decided to afford financial
assistance, and make monetary grants to students seeking higher education
where it is shown that the annual income of their families is below a
prescribed minimum. The said scheme is not before us and we are not called
upon to express any opinion on it. However, we may observe that if any State
adopts such a measure, it may afford relief to and assist the advancement of
the Backward Classes in the State, because backwardness, social and
educational, is ultimately and primarily due to poverty. An attempt can also be
made to start newer and more educational institutions, polytechnics,
vocational institutions and even rural universities and thereby create more
opportunities for higher education. This dual attack on the problem posed by
the weakness of backward communities can claim to proceed on a rational,
broad and scientific approach which is consistent with, and true to, the noble
ideal of a secular welfare democratic State set up by the Constitution of this
country. Such an approach can be supplemented, if necessary by providing
special provision by way of reservation to aid the Backward classes and
Scheduled Castes and Tribes. It may well be that there may be other ways
and means of achieving the same result. In our country where social and
economic conditions differ from State to State, it would be idle to expect
absolute uniformity of approach; but in taking executive action to implement
the policy of Article 15(4) it is necessary for the States to remember that the
policy which is intended to be implemented is the policy which has been
declared by Article 46 and the Preamble of the Constitution. It is for the
attainment of social and economic justice that Article 15(4) authorises the
making of special provisions for the advancement of the communities there
contemplated even if such provisions may be inconsistent with the
fundamental rights guaranteed under article 15 or 29(2). The context,
therefore, requires that the executive action taken by the State must be based
on an objective approach free from all extraneous pressures. The said action
is intended to do social and economic justice and must be taken in a manner
that justice is and should be done.” (p. 664)
It may well be that what the Government of Maharashtra has done is one of
the ways of discharging the duty which Article 15(4) casts upon the State but
in a case like the one before us we must have regard to the express language
of Article 16(4). Under this provision it is clear that reservation of a reasonable
percentage of posts for members of the Scheduled Castes and Tribes is within
the competence of the State. What the percentage ought to be must
necessarily depend upon the circumstances obtaining from time to time.
20. In supporting the impugned rule reliance was placed on behalf of the
respondents upon the passage from the judgment of Wanchoo, J., in
Rangachari case:
“Article 16(4) tells us that it may be made either by reserving appointments to
the services or reserving post in the services. Appointments in my opinion
clearly mean the initial appointments to a service, for a person is appointed
only once in a service and thereafter there is no further appointment.
Therefore, when the article speaks of reservation of appointments it means
reservation of a percentage of initial appointments to the service. Posts refer
to the total number of posts in the service and when reservation is by
reference to posts it means reservation of a certain percentage of posts out of
the total number of posts in the service. The reason why these two methods
are mentioned in this article is also to my mind plain. The method of
reservation of appointments would mean that the goal of adequate
representation may be reached in a long time. Therefore, in order that the goal
may be reached in a comparatively shorter period of time, the article also
provides for the method of reservation of posts.”
The view of Wanchoo, J., stands by itself and does not seem to have been
accepted by the majority of the Court. The validity of the carry forward rule
was not challenged in that case and, therefore, this Court had no occasion to
say anything concerning it. Apart from that we may point out that the
government resolution does not contemplate reservation of any posts in the
service cadre but merely provides for reservation of vacancies. Even if the
Government had provided for the reservation of posts for Scheduled Castes
and Tribes a cent per cent reservation of vacancies to be filled in a particular
year or reservation of vacancies in excess of 50% would, according to the
decision in Balaji case not be constitutional.
21. Considerable argument was advanced before us by Mr Gopalakrishnan
on the basis of article 335 of the constitution which reads thus:
“The claims of the members of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State.”
The need for the maintenance of efficiency of administration, even when
giving effect to the provisions of article 16(4) has been emphasised in
Rangachari case. It is, therefore, not necessary for us to say anything more on
the point.
22. Having held that the carry forward rule as modified in 1955 is
unconstitutional, the question which arises is as to the relief which we
should grant to the petitioner. Mr Gopalakrishnan made it clear that all that
he wants is a declaration about the invalidity of the rule and that he hopes
that the department concerned will implement the decision of this Court in
an appropriate way. Indeed, no further relief can be given to him because
the persons who have been appointed and who may be affected by this
decision have not been joined as respondents in this petition.
23. In the result the petition succeeds partially and the carry forward rule as
modified in 1955 is declared invalid. Costs of the petition will be paid by the
State.
Subba Rao, J.— I regret my inability to agree. The short but difficult
question is whether the impugned provision of reservation of posts made
by the Government of India in favour of Scheduled Castes and Scheduled
Tribes offends article 16(4) of the constitution.
25. The facts are fully stated in the judgment of my learned Brother and I
need not restate them. The relevant provisions may now be read:
“16. (1) There shall be equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the State.
***
(4) Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in the
services under the State.
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.
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 of a State.”
These three articles along with others with which we are not now concerned,
are designed to uplift the said castes and tribes. There is no conflict between
these three provisions. Article 46 is a directive principle of state policy; and,
though not justiciable, it is fundamental in the governance of the country.
Article 335 is a mandatory direction given to the State to take the claims of the
Scheduled Castes and the Scheduled Tribes into consideration in the making
of appointments to the said services and posts. Article 16(4) empowers the
State to make a provision for the reservation of posts and appointments for
the backward classes, which certainly include the said Castes and Tribes.
While Article 335 is mandatory in character, Article 16(4) is directory and
permissive. The State may or may not make such reservations for such
Castes and Tribes, if it thinks that the implementation of Article 335 meets a
given situation. In my view, Article 335 has no bearing in the matter of
construing article 16(4) of the constitution. We have, therefore, to fall back
upon Article 16(4) alone to ascertain the validity of the provisions made by the
Government.
26. Article 14 lays down the general rule of equality. Article 16 is an
instance of the application of the general rule with special reference to
opportunity of appointments under the State. It says that there shall be
equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State. If it stood alone, all the backward
communities would go to the wall in a society of uneven basic social
structure; the said rule of equality would remain only an utopian conception
unless a practical content was given to it. Its strict enforcement brings
about the very situation it seeks to avoid. To make my point clear, take the
illustration of a horse race. Two horses are set down to run a race —one is
a first class race horse and the other an ordinary one. Both are made to run
from the same starting point. Though theoretically they are given equal
opportunity to run the race, in practice the ordinary horse is not given an
equal opportunity to compete with the race horse. Indeed, that is denied to
it. So a handicap may be given either in the nature of extra weight or a start
from a longer distance. By doing so, what would otherwise have been a
farce of a competition would be made a real one. The same difficulty had
confronted the makers of the Constitution at the time it was made.
Centuries of calculated oppression and habitual submission reduced a
considerable section of our community to a life of serfdom. It would be well
nigh impossible to raise their standards if the doctrine of equal opportunity
was strictly enforced in their case. They would not have any chance if they
were made to enter the open field of competition without adventitious aids
till such time when they could stand on their own legs. That is why the
makers of the Constitution introduced clause (4) in Article 16. 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.
27. Now let us give a close look to its provisions to ascertain its ambit.
Three expressions stand out in bold relief, namely, (1) “any provision for
the reservation of appointments”, (2) “in favour of any backward class of
citizens”, and (3) “in the opinion of the State, is not adequately represented
in the services under the State”. The word “any” in the expression “any
provision”, is of the widest amplitude and leaves the nature of the provision
to be made by the State in its discretion. But the limitation on the provision
is found in the words “for the reservation of appointments or posts”. It
follows that if a provision is for the reservation of appointments or posts, the
clause does not further circumscribe the power of the State to make any
provision to achieve that object. That reservation must be in favour of any
backward class of citizens. “Backward class” is not defined; whether a
particular class is backward or not is a question of fact in each case and it
must satisfy certain objective tests. But it is admitted in this case that the
Scheduled Castes and the Scheduled Tribes are backward classes. The
third condition is that, in the opinion of the State they are not adequately
represented in the services under it. Once a class is a backward class, the
question whether it is adequately represented or not is left to the subjective
satisfaction of the State. The result of the analysis of the article is that to
invoke clause (4). (i) there shall be a backward class of citizens, and (ii) the
said class, in the opinion of the State is not adequately represented in the
services of the state. If these two conditions are complied with, the State is
at liberty to make any provision for the reservation of appointments or posts
in favour of the said class of citizens. In the present case it is not disputed
that the two conditions have been satisfied and, therefore, the only
question is whether the provision made is for the reservation of
appointments or posts for the said backward classes of citizens.
28. Learned counsel for the petitioner contends that Article 16(1) confers
an individual right on a citizen and clause (4) of the said article, which
embodies the principle of social justice is an exception to the said right;
and, therefore, the question has to be decided in the context of every
selection whether the provision made is one of reservation or in effect one
of destruction of the fundamental right. He further elaborates that, as every
citizen has an individual right to apply for appointments whenever
applications are called for, he cannot be deprived of his right on the ground
that in a previous selection the community to which that individual belongs
had more than its share. It is further contended that the concept of
reservation for a community implies the carving of a part of the entire field,
and that if the provision covers the entire field or a major part of it, it ceases
to be a reservation and, therefore, not protected by clause (4). He says that
the principle of “carry forward”, if logically extended, will result, after some
time, in the destruction of the right itself. Finally, he argues that Article 16
and Article 335 must be read together and that, if so read, they indicate that
reservation could not be made at the expense of efficiency.
29. We are only concerned with the interpretation of the constitutional
provisions, but not with the policy underlying it. The makers of the
Constitution laid down that provision shall be made for the reservation of
appointments and posts in favour of such Castes and Tribes. The only
question, therefore, is whether in the instant case the State did not provide
for the reservation of appointments or posts. I find it difficult to say that the
provision for “carry forward” is not for the reservation of appointments for
the said Castes and Tribes. The reservation of appointments can be made
in different ways. It is not for this Court to prescribe the mode of
reservation. In the context of a permissible provision that can be made by a
State under article 16(4) of the constitution, some observations of
Wanchoo, J. in his judgment in General Manager, Southern Railway v.
Rangachiri may be extracted usefully. The learned Judge observed at p.
610 thus:
“Suppose there are 1000 posts in a particular service and the backward
classes have no representation at all in that service. The State considers it
necessary that they should have adequate representation in that service.
Suppose also that the annual appointments to be made to the service in order
to keep it at full strength is thirty. Now the State if it chooses the method of
reservation of appointments will reserve a percentage of appointments each
year for backward classes. Now suppose that percentage is fixed at ten per
centum of the total number of posts in the service by the method of
reservation of appointments, the period taken would be roughly 34 years. This
period may be considered too long and therefore the State may decide to
adopt the other way i.e the reservation of posts; and suppose it is decided to
reserve ten per centum of the posts i.e 100 in all. It will then be open to the
State having reserved 100 posts in this particular service for backward classes
to say that till these 100 posts are filled up by backward classes all
appointments will go to them provided the minimum qualifications that may be
prescribed are fulfilled. Suppose further that it is possible to get annually the
requisite number of qualified members of backward classes equal to the
annual appointments, the representation of the backward classes will be made
adequate in about four years. Once the representation is adequate there will
be no power left for making further reservation. Thus by the method of
reservation of appointments the representation is made adequate in a long
period of time while by the method of reserving posts the representation is
made adequate in a much shorter period. That seems to be the reason why
the article speaks of reservation of appointments as well as of posts.”
No doubt these observations were made in a different context, but they show
that reservation can be made in the posts i.e in the cadre strength, or in the
annual appointments to be made in the service in order to keep it at full
strength. They also show that the provision for reservation can be
implemented in diverse methods, such as, by providing for the recruitment
only from the Scheduled Castes and the Scheduled Tribes till the percentage
reserved for them is reached or by providing a percentage for recruitment from
the said Castes and Tribes every year till the reserved percentage is reached
in the cadre. The following may be some of the methods of implementing the
provision for reservation: (1) The cadre strength of a particular service is 1000;
the State may reserve 100 posts out of them for the Scheduled Castes and
the Scheduled Tribes and make appointments solely from the said Castes and
Tribes till the percentage reserved is reached. (2) In the same situation the
State may direct that a specified percentage of the 100 vacancies for which
applications were called for shall be filled up by candidates from the said
Castes and Tribes; by this process, 100 will be reached in some years, (3) If
the applicants from the said Castes and Tribes do not come upto the
percentage reserved for them in a particular year, the State may provide that
the vacancies not filled up shall be carried over to the next selection. (4) In the
same contingency, instead of providing for the carrying over of the
said vacancies to the next selection, the said vacancies may be filled up by
candidates belonging to castes other than the Scheduled Castes and the
Scheduled Tribes; but the seats reserved to the Scheduled Castes and Tribes
but not filled up by them may be added to those reserved for them in the next
selection. (5) The State, instead of applying the principle of “carryforward”,
may provide that if the applicants belonging to the said Castes and Tribes are
not sufficient in the first selection to come up to the percentage reserved, a
larger percentage of candidates belonging to the Scheduled Castes and the
Scheduled Tribes shall be selected in the next year or the year after. (6)
Instead of specifically making any reservation in the cadre strength, the State
may adopt one or other of the aforesaid provisions for reservation till such
time the State is satisfied that the said Castes and Tribes have secured a
proper representation in a particular service. The above provisions for
reservation are only illustrative; there may be more effective and equitable
methods other than the said provisions. Any one of the said provisions,
however reasonably framed, would inevitably cause hardship to some
candidates from the non-Scheduled Castes and non-Scheduled Tribes in the
sense that some of them would have been selected but for the reservation,
but nonetheless it cannot be said that the provisions are not provisions for
reservation of seats for the Scheduled Castes and the Scheduled Tribes.
30. In the instant case, the State made a provision; adopting the principle of
“carryforward”. Instead of fixing a higher percentage in the second and third
selections based upon the earlier results, it directed that
the vacancies reserved in one selection for the said Castes and Tribes but
not filled up by them but filled up by other candidates, should be added to
the quota fixed for the said Castes and Tribes in the next selection and
likewise in the succeeding selection. As the posts reserved in the first year
for the said Castes and Tribes were filled up by non-Scheduled Caste and
non-Scheduled Tribe applicants, the result was that in the next selection
the posts available to the latter was proportionately reduced. This provision
certainly caused hardship to the individuals who applied for the second or
the third selection, as the case may be, though the non-Scheduled Castes
and non-Scheduled Tribes, taken as one unit, were benefited in the earlier
selection or selections. This injustice to individuals, which is inherent in any
scheme of reservation cannot, in my view, make the provision for
reservation anytheless a provision for reservation.
31. There are no merits in the contention that, the principle of
“carry forward” has resulted in the third year in the selection of candidates
belonging to the Scheduled Castes and the Scheduled tribes to a tune of
80 per centum of the total applicants for that year and, therefore, the
selection amounted to destruction of the fundamental right. If reservation
was within the competence of the State, I do not see how the said
fortuitous circumstance would affect the reservation so made. Suppose for
two selections there were no candidates from the Scheduled Caste and the
Scheduled Tribes and the vacanciesreserved for them were filled up by
candidates belonging to castes other than the Scheduled Castes and the
Scheduled Tribes. In the third year the State reserved all the posts or most
of the posts for the Scheduled Castes and the Scheduled Tribes, having
regard to the actual position of the said Castes and Tribes in the cadre.
This is certainly a provision for reservation. The effect of the operation of
the principal of “carry forward” is practically the same. Reservation made in
one selection or spread over many selections is only a convenient method
of implementing the provision of reservation. Unless it is established that an
unreasonably disproportionate part of the cadre strength is filled up with the
said Castes and Tribes, it is not possible to contend that the provision is not
one of reservation but amounts to an extinction of the fundamental right.
There is neither an allegation nor evidence in this case to that effect.
32. If the provision deals with reservation which I hold it does — I do not
see how it will be bad because there will be some deterioration in the
standard of service. It is inevitable in the nature of reservation that there will
be lowering of standards to some extent; but on that account the provision
cannot be said to be bad. Indeed, the State laid down the minimum
qualifications and all the appointments were made from those who had the
said qualifications. How far the efficiency of the administration suffers by
this provision is not for me to say, but it is for the State, which is certainly
interested in the maintenance of standards of its administration.
33. Strong reliance is placed by the Petitioner on the decision in M.R Balaji
v. State of Mysore in support of the contention that, whenever a State
makes a reservation for backward classes of over 50 per centum of the
posts in a single selection, such a provision is not one of reservation but of
destruction of the fundamental right. If that decision decided to that effect, I
would be bound by it. A careful perusal of that judgement discloses that this
Court did not lay down any such proposition. In that case 68 per centum of
seats in colleges were reserved for backward communities. It was
contended before this Court on behalf of the petitioners therein that the
impugned order, which had been passed under article 15(4) of the
constitution, was not valid, because the basis adopted by the order in
specifying and enumerating the socially and educationally backward
classes of citizens in the State was unintelligible and irrational and that the
classification made was inconsistent with, and outside, the provisions of
article 15(4). It was also urged by them that the extent of reservation
prescribed by the said order was so unreasonable and extravagant that the
order was a fraud on the constitutional power conferred on the State.
Gajendragadkar, J., speaking for the Court, gave the following reasons for
holding that the provisions so made were contrary to Article 15(4) of the
Constitution: (1) The concept of backwardness is not intended to be relative
in the sense that any classes who are backward in relation to the most
advanced classes of the society should be included in it; the test of
backwardness must be social and educational. (2) The criteria adopted by
the State in ascertaining the social backwardness of a community and its
educational backwardness were neither correct nor sound. (3) The sub-
classification made by the order between backward classes and more
backward classes does not appear to be justified under Article 15(4). The
learned Judge traced the history of the order, considered all the relevant
circumstances and held that reservation of 68 per centum in the
circumstances of the case was a fraud on the constitutional power
conferred on the State by Article 15(4) of the Constitution. It would,
therefore, be seen that the judgment of this Court was based mainly upon
two grounds, namely, the State had adopted a wrong criteria for
ascertaining who were backward classes and also on the ground that the
State committed a fraud on its constitutional power. In the present case it is
not disputed that the Scheduled Castes and Scheduled Tribes are
backward classes and there is no material on which I can hold that the
Government committed a fraud on the constitutional power conferred on it.
The only observations on which learned counsel for the respondent can
rely are the following found at p. 663:
“The adjustment of these competing claims is undoubtedly a difficult matter,
but if under the guise of making a special provision, a State reserves
practically all the seats available in all the colleges, that clearly would be
subverting the object of Article 15(4). In this matter again, we are reluctant to
say definitely what would be a proper provision to make. Speaking generally
and in a broad way, a special provision should be less than 50 per cent.; how
much less than 50 per cent, would depend upon the relevant prevailing
circumstances in each case.”
These general observations made in the context of admissions to colleges
cannot, in my view, be applied in the case of a reservation of appointments in
the matter of recruitment to a cadre of particular service. The doctrine of
“destruction” of the fundamental right depends upon the entire cadre strength
and the percentage reserved out of that strength. Further, the expression used
in the observations viz. “generally” and “broadly”, show that the observations
were intended only to be a workable guide but not an inflexible rule of law
even in the case of admissions to colleges.
34. I cannot, therefore, hold that in the present case the provision made by
the State was not for reservation but for a purpose not sanctioned by the
Constitution. In the result, the writ petition is dismissed with costs.
Order
In accordance with the majority opinion the writ petition is allowed with
costs.