TMI Blog1975 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso 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 in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Scheduled Tribes were promoted without test qualification. The further allegation is that by an order dated 15 June, 1972, 19 Lower 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion 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 carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Station Masters and Assistant Station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urview 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory 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 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment 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 weak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Maste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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, concessions specially earmarked for sections of population run counter to the concept of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of equality of opportunity has meaning only when a limited good or, in the present context, a limited numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancy 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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 if we are to avoid heart burning or a sense of injustice or frustration in this class. Neither as members of this single cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficiency 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reservation 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 polit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. 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 selectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly-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 legitimate 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... un 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 suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Government. The Preamble to the Constitution silhouettes a justiceorient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. Public services have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) * * * * * * * ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituation, 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace 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 addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22: 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 `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 comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In State of Jammu Kashmir v. Triloki Nath Khosa and others ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, 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; (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 conces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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 Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt 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 repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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