TMI Blog1963 (8) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... a departmental examination held at intervals by the U.P.S.C. (iii)30% by promotion from Grade IV on the basis of seniority-cum-fitness. On February 6, 1960 the Union Public Service Commision issued a notification to the effect that a limited competitive examination for promotion to the regular tem- porary establishment of Assistant Superintendents of the Central Secretariat Service would be held in June, 1.960. The notification further stated that a reservation of 12- 1/2% of the vacancies would be made for members of the Scheduled Castes and 5% for members of Scheduled Tribes. The result of this examination was announced by the Union Public Service Commission in April, 1961. The Union Public Service Commission recommended 16 candidates for being appointed in unreserved vacancies and 28 candidates in reserved vacancies. Subsequently the U.P.S.C. recommended 2 more candidates belonging to the Scheduled Castes/Tribes for the posts. It may be mentioned that the number of vacancies which were expected to be filled was stated to be 48 out of which 16 were unreserved and the remaining 32 reserved, though in fact the U.P.S.C. recommended the names of only 30 candidates for the latt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Then they refer to the resolution in favour of Anglo-Indians with which we are not concerned. Incidentally it may be mentioned that this resolution provides that in all cases a minimum standard of qualification will be prescribed and that the reservations will be subject to the over all conditions that candidates of the requisite communities possessing the prescribed qualifications and suitable in all respects for the appointments in question are forth- coming in sufficient numbers for the vacancies reserved for them. These orders were made applicable to all services under the control of the Government of India. Supplementary instructions with regard to this subject were issued by the Government of India on January 28, 1952, of which the relevant portions may be quoted 2(a) RECRUITMENT BY OPEN COMPETITION : If the candidates of Scheduled Castes, Scheduled Tribes and the Anglo-Indian community obtain by competition less vacancies than are reserved for them, the difference will be made up by the nomination of duly qualified candidates of these castes, tribes and communities, i.e., candidates of these com- munities etc., who have qualified in the test, selection etc., held for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Office Memorandum No. 2/11/55-RPS, dated May 7, 1955, the Government of India modified sub-paras (3) and (4) of paragraph 5 of the Supplementary Instructions dated January 28, 1952, by substituting the following 3(a) If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a correspoding 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision meaningless. His next contention is that cl. (4) of Art. 16 is to be read with Art. 335 of the Constitution which while providing for the consideration of the claims of members of Scheduled Castes and Tribes, reiterates that the efficiency of administration should be maintained and not allowed to suffer. His next contention is that as no reservation of posts in favour of members of Scheduled Castes and Tribes is made in the offices of the Lok Shabha and Rajya Sabha and the Supreme Court or in the Armed Forces, Art. 14 of the Constitution is infringed. Then, according to him, the standard for all candidates must be the same and the Union Public Service Commission has no power to recommend for appointment candidates from Scheduled Castes and Tribes for appointment to the reserved posts even though they have secured far less marks than the candidates belonging to the more advanced communities. These are the main points which Mr. Gopalakrishnan has urged. On behalf of the respondents it is claimed that the carry forward rule is perfectly valid, that it was a rule in force before the commencement of the Constitution and that it was decided to continue it even after the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental right guaranteed by Art. 16(l) of the consti- tution or because it is violative of the guarantee contained in Art. 14 of the Constitution. If on either of these grounds the carry forward rule is found to be bad no other question need be considered by us. It seems to us that the argument based upon Art. 14 of the Constitution in fact turns on the same considerations as the argument that Art. 16(l) is infringed by the aforesaid rule. What Art. 14 provides is that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. What is meant by equality in this Article is, equality amongst equals. It does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circums- tance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reserved for being filled from amongst candidates belonging to scheduled castes and tribes. It further provides that if in any year suitable candidates are not available from amongst such classes the reserved posts will be dereserved, filled by candidates from other classes and a corresponding number of posts be carried forward to the next year. If in the subsequent year the same thing happens, the posts unfilled by candidates from Scheduled Castes and Tribes can be carried forward to the third year. In the third year the number of posts to be filled from amongst candidates of Scheduled Castes and Tribes would thus be 17-1/2% of the total vacancies to be filled in that year, plus the total unfilled vacancies which have been carried forward from the two previous years. The rule thus permits a perpetual carry forward of unfilled reserved vacancies in the two years preceding the year of recruitment and provides addition to them of 17-1/2% of the total vacancies to be filled in the recruitment year. In order to appreciate better the import of this rule on recruitment let us take an illustration. Supposing in two successive years no candidate from amongst the Scheduled Castes and Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of appointments or posts in favour of such classes. But the difference in the language used in these provisions is not, however, of any significance because this Court has accepted the position that reservation can be made under Art. 15(4). Indeed, at p. 474 this Court has pointed out : ........ what is true in regard to Article 15(4) is equally true in regard to Art. 16(4). There can be no doubt that the Constitution makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4) care would be taken not to provide unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating widespread dissatisfaction amongst the employees, materially effect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. What this Court has laid down there would also apply to the present case. The ratio of this decision appears to be that reservation of more than half the vacancies is per se destructive of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classes and the claims of other employees as well as the important consideration of the efficiency of administration ;.........' It is clear from both these decisions that the problem of giving adequate representation to members of backward classes enjoined by Art. 16(4) of the Constitution is, not to be tackled by framing a general rule without bearing in mind its repercussions from year to year. What precise method should be adopted for this purpose is a matter for the Government to consider. It is enough for us to say that while any method can be evolved by the Government it must strike a reasonable balance between the claims of the backward classes and claims of other employees as pointed out in Balaji's case([1963] Supp. 1 S.C.R. 439). We would like to emphasise that the guarantee contained in Art. 16(l) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said scheme is not before us and we are not called upon to express any opinion on it. However, we may observe that it any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward communities can claim to proceed on a rational, broad and scientific approach which is consistent with, and true to, the noble ideal of a secular welfare democratic State set up by the Constitution of this country. Such an approach can be supplemented. if necessary by providing special provision by way of reservation to aid the backward classes and Scheduled Castes and Tribes. It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order that the goal may be reached in a comparatively shorter period of time, the Article also provides for the method of reservation of posts. The view of Wanchoo, J., stands by itself and does not seem to have been accepted by the majority of the Court. The validity of the carry forward rule was not challenged in that case and, therefore, this Court had no occasion to say anything concerning it. Apart from that we may point out that the Government resolution does not con-template reservation of any posts in the service cadre but merely provides for reservation of vacancies. Even if the Government had provided for the reservation of posts for Scheduled Castes and Tribes a cent. per cent. reservation of vacancies to be filled in a particular year or reservation of vacancies in excess of 50% would, according to the decision in Balajis case), not be constitutional. Considerable argument was advanced before us by Mr. Gopalakrishnan on the basis of Art. 335 of the Constitution which reads thus The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntments to services and posts in connection with the affairs of the Union or of a State. These three Articles, along with the others with which we are not now concerned, are designed to uplift the said castes and tribes. There is no conflict between these three provisions. Article 46 is a directive principle of State policy ; and, though not justiciable, it is fundamental in the governance of the country. Article 335 is a mandatory direction given to the State to take the claims of the Scheduled Castes and the Scheduled Tribes into consideration in the making of appointments to the said services and posts. Article 16(4) empowers the State to make a provision for the reservation of posts and appointments for the backward classes, which certainly include. the said Castes and Tribes. While Art. 335 is mandatory in character, Art. 16(4) is directory and permissive. The State may or may not make such reservations for such Castes and Tribes, if it thinks that the implementation of Art. 335 meets a given situation. In my view, Art. 335 has no bearing in the matter, of construing Art. 16(4) of the Constitution. We have, therefore, to fall back upon Art. 16(4) alone to ascertain the vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointments ,(2) in favour of any backward class of citizens , and (3) in the opinion of the State, is not ade- quately 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 satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r carry forward is not for the reservation of appointments for the said Castes and Tribes. The reservation of appointments can be made in different ways. It is not for this Court to prescribe the mode of reservation. In the context of a permissible provision that can be made by a State under Art. 16(4) of the Constitution, some observa- tions of Wanchoo, J. in his judgment in The General Manager, Southern Railway v. Rangachari([1962] 2 S.C.R. 586to) may be extracted usefully. The learned Judge observed at p. 610 thus : Suppose there are 1,000 posts in a particular service and the backward classes have no representation at all in that service, The State considers it necessary that they should have adequate representation in that service. Suppose also that the annual appointments be made to, the, service in. order to keep it at full strength is thirty. Now the State if it chooses the method of reservation of appointments will reserve a percentage of appointments each year for backward classes. Now suppose that the percentage is fixed at ten per centum of the total number of posts in the service by the method of reservation of appointments, the period taken would be roughly 34 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Castes and Tribes do not come upto the percentage reserved for them in aparticular year, the State may provide that the vacanciesnot filled up shall be carried over to the next selection.(4) In the same contingency, instead of providing for thecarrying over of the said vacancies to the next selection, the said vacancies may be filled up by candidates belonging to castes other than the Scheduled Castes and the Scheduled Tribes ; but the seats reserved to the Scheduled Castes and Tribes but not filled up by them may be added to those reserved for them in the next selection. (5) The State, instead of applying the principle of carry forward , may provide that if the applicants belonging to the said Castes and Tribes are not sufficient in the first selection to come up to the percentage reserved, a larger percentage ,of candidates belonging to the Scheduled Castes and the Scheduled Tribes shall be selected in the next year or the year after. (6) Instead of specifically making any reservation in the cadre strength, the State may adopt one or other of the aforesaid provisions for the reservation till such time the State is satisfied that the said Castes and Tribes have secured a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes belonging to castes other than the Scheduled Castes and the Scheduled Tribes. In the third year the State reserved all the posts or most of the posts for the Scheduled Castes and the Scheduled Tribes, having regard to the actual position of the said Castes and Tribes in the cadre. This is certainly a provision for reservation. The effect of the operation of the principle of carry forward is practically the same. Reservation made in one selection or spread over many selections is only a convenient method of implementing the provision of reservation. Unless it is established that an unreasonably disproportionate part of the cadre strength is filled up with the said Castes and Tribes, it is not possible to contend that the provision is not one of reservation but amounts to an extinction of the fundamental right. There is neither an allegation nor evidence in this case to that effect. If the provision deals with reservation-which I hold it does-I do not see how it will be bad because there will be some deterioration in the standard of service. It is inevitable in the nature of reservation that there will be lowering of standards to some extent; but on that account the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered all the relevant circumstances and held that reservation of 68 per centum in the circumstances of the case was a fraud on the constitutional power conferred on the State by Art. 15(4) of the Constitution. It would, therefore, be seen that the judgment of this Court was based mainly upon two grounds, namely, the State had adopted a wrong criteria for ascertaining who were backward classes and also on the ground that the State committed a fraud on its constitutional power. In the present case it is not disputed that the Scheduled Castes and the Scheduled Tribes are backward classes and there is no material on which I can hold that the Government committed a fraud on the constitutional power conferred on it. The only observations on which learned counsel for the respondent can rely are the following found at p. 470 : The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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