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M.R. Balaji And Others Versus State Of Mysore

1962 (9) TMI 83 - SUPREME COURT OF INDIA

Dated:- 28-9-1962 - Gajendragadkar P.B., Sinha Bhuvneshwar P.(CJ), Wanchoo K.N., Gupta K.C. Das And Shah J.C. S. K. Venkataranya Iyengar and R. Gopalakrishnan, for the petitioners. G. Ethirajulu Naidu, Advocate General of the State of Mysore, B. R. L. Iyengar, D. M. Chandrasekhar and P. D. Menon, for the Respondent R. Gopalakrishnan, for the Interveners. JUDGMENT: Gajendragadkar, Since 1958 the Stale of Mysore has been endeavouring to make a special provision for the advancement of the socially .....

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f Mysore on the July 31, 1962, under Art. 15 (4). Out of the twenty-three petitioners, six had applied for admission to the Pre-professional Class in Medicine in the Medical Colleges affiliated either to the Mysore University or to the Karnatak University, and seventeen had applied for admission to the First Year of the 5 Year integrated course leading to the Degree of B. E. in the University of Mysore. According to the petitioners, but for the reservation made by the impugned order, they would .....

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petitioners pray that a writ of mandamus and/or any suitable writ or direction should be issued against respondent No. 1, the State of Mysore (hereinafter called the State), and the two Selection Committees which have been impleaded as respondents 2 & 3. The petitioners' case is that the impugned order which has been passed under Art. 15 (4) is not valid because the basis adopted by the order in specifying and enumerating the socially and educationally backward classes of citizens in th .....

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ssification made is both rational and intelligible and the reservation prescribed by the order is fully justified by Art. 15 (4). The contention that the order is a colourable exercise of the State's power and amounts to a fraud on the Constitution is disputed. As we have just indicated, the impugned order was preceded by four other orders and so, it is necessary to refer to the said orders in their sequence to understand the background of the dispute between the parties. On the 26th,July 19 .....

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sequent orders. The order issued by the State on the 26th July, 1958, was challenged before the Mysore High Court and it appears that the State conceded before the High Court that there was a drafting error in the Government Order and so, it did not press its case that the said order was valid. In the result, the writ petitions filed to challenge the validity of the order succeeded and the impugned order was quashed. In 1959, two separate orders were passed by the State on the 14th May and 22nd .....

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Court upheld the pleas raised by the petitioners and quashed the impugned orders. In the result, the High Court directed that the applications made by the petitioners for admission to the respective colleges should be considered without reference to the said orders, but subject to the reservation for Scheduled Castes and Scheduled Tribes made therein. The State then appointed a Committee called the Mysore Backward Classes Committee with Dr. R. Nagan Gowda as its Chairman, to investigate the prob .....

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what may be conveniently described as the 'merit pool' available to candidates according to their merits. 40% were reserved for the 'reservation pool', 22% of which were reserved for the Backward Classes, 15% for the Scheduled Castes and 3% for the Scheduled Tribes. This order was also challenged before the Mysore High Court in S. A. Partha v. The State of Mysore(A.I.R. 1961 Mysore 220). It appears that, on the whole, the High Court did not feel satisfied that the scheme of the s .....

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Tribes and other Backward Classes should be worked out so as to avoid a successful challenge under Arts. 15 (1) and 29 (2). Thereafter, the Nagan Gowda Committee made its report in 1961 and in the light of the said report and the recommendations made therein, the State proceeded to make an order under Art. 15 (4) on July 10, 1961. This Order begins with the observation that the Nagan Gowda Committee has come to the conclusion that in the present circumstances, the only practicable method of clas .....

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aid down by the report in that behalf. This approach, according to the order, is realistic and practicable. On the question is to the communities which should be treated as backward, the State made some variations in the recommendations made by the Committee. It held that Lingayats and Bhunts who formed part of Vokkaligas, should be treated as backward. In that connection, the State noticed the fact that the recommendation of the Committee in respect of the said two communities was not unanimous .....

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as that of Lingayats is 7. 1) need not be treated as backward. The order then examines the question as to the percentage which should be reserved, and it rejects the Committee's recommendation of reservation of 68% all-told on the ground that such a large percentage of reservation would not be in the larger interests of the State. That is why, according to the order, 48% was fixed as the total reservation in favour of the Backward Classes, the Scheduled Castes and Scheduled Tribes together; .....

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es. The' effect of this order is that it has fixed 50% as the quota for the reservation of seats for Other Backward Classes; 28% out of this is reserved for Backward Classes so-called and 22% for More Backward Classes. The reservation of 15% and 3% for the Scheduled Castes and Scheduled Tribes respectively continues to be the same. The result of this order is that 68% of the seats available for admission to the Engineering and Medical Colleges and to other technical institutions specified in .....

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the present petitions involves the consideration of sociological, social and economic factors, and so, before dealing with the contentions raised by the parties before us, it is necessary to set out briefly the material which has been adduced before us. On January 29, 1953, the President appointed the Backward Classes Commission by virtue of the power conferred on him under Art. 340 (1) of the Constitution. This Commission made its report on March 30, 1955. The Commission was required "to .....

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he general educational advancement made by them; the estimated population of the community, and the distribution of the various communities throughout the State or their concentration in certain areas. The Commission also thought that the social position which a community occupies in the caste hierarchy would also have to be considered, as well as its representation in Government service or in the industrial sphere. (p. 47). According to the Commission., the causes of educational backwardness am .....

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rs to educate their- children; and 7. Defective educational system which does not train students for appropriate occupations and professions. (p.- 107). The Committee realised that, in substance, the problem of the Backward Classes is really the problem of Rural India (p. 55). It appears that having considered several criteria which may be relevant in determining which classes are backward, the Committee ultimately decided to treat the status of caste as an important factor in that behalf, and i .....

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ion continues to be a pre- requisite to Government service, it was not easy to prevent the rush at the doors of the Universities, and so, the Committee proceeded to recommend that in all Science, Engineering, Medicine, Agriculture, Veterinary and other technical institutions, a reservation of 70% of the seats should be made for qualified students of Backward Classes till such time as accommodation can be provided for all students eligible for admission. (pp. 119 & 125). That, in brief, is th .....

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s when I discovered that it is going to have a most unhealthy effect on the Muslim and Christian sections of the nation," and he added that the said consciousness gave him a rude shock and drove him to the conclusion that the remedies suggested by the Commission were worse than the evil it was out to combat. According to the Chairman, "if we eschew the principle of caste, it would be possible to help the extremely poor and deserving from all communities. Care, however, being taken to g .....

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entral Government apparently did not feel satisfied about the approach adopted by the Commission in determining as to who should be treated as Backward Classes under Article 15(4). The Memorandum issued by the Government of India on the Report of the Commission points out that it cannot be denied that the caste system is the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of' the specified castes as backward may serve to maintain and even per .....

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dequate assistance, nor would such dispensation fulfill the conditions laid down in Art. 340 of the Constitution. The memorandum, therefore, emphasised that action on a systematic and elaborate basis can be proceeded with only after the necessary positive tests and criteria have been laid down for determining which classes or sections are really entitled to get special relief and assistance. To that end, further investigation was obviously indicated. Even so, instructions were issued by the Cent .....

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ject of reservation of seats under Article 15(4). In this communication it was observed that the Central Government had considered the said question and was of opinion that a uniform policy should be followed all over the country at least in non-Government institutions. It was then added that the All-India Council for Technical Education had recommended that the reservation for Scheduled Castes and Scheduled Tribes and other backward communities may be up to 25 % with marginal adjustments not ex .....

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rvey was made with the help of material collected at the time of 1951 Census with a view to find out whether occupations could be adopted as suitable basis for deter- mining social and educational backwardness. A preliminary analysis of the data collected indicated that it would be possible to draw up a list of socially and educationally backward occupations on the basis of:- (a) any non-agricultural occupations in any State in India in which 500% or more of the persons belong to the Scheduled C .....

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asis of caste for centuries; and so, it takes the view that the low social position of any community is, therefore, mainly due to the caste system. According to the Report, there are ample reasons to conclude that social backwardness is based mainly on racial, tribal, caste and denominational differences, even though economic backwardness might have contributed to social backwardness. It would thus be clear that the Committee approached its problem of enumerating and classifying the socially and .....

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tions of Vokkaligas,'excluding Bhunts, were socially backward. With regard to the Muslims, the majority of the Committee agreed that the Muslim community as a whole should be classified as socially backward. The Committee further decided that amongst the backward communities two divisions should be made (i) the Backward and (ii) the More Backward. In making this distinction, the Committee applied one test. It enquired: "Was the standard of education in the community in question less tha .....

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Tribes respectively. That is how according to the Committee, 68% was carved out by reservation for the betterment of the Backward Classes and the Scheduled Castes an Tribes' It is on the basis of these recommendations that the Government proceeded to make its impugned order. Article 15(4) provides that nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward Classes of citi .....

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es in the State should be admitted, was challenged. The said Government Order was on the face of it a communal order fixing the admissions in the Stated proportion by reference to the communities of. the candidates. This order was struck down by the Madras High Court and the decision of the Madras High Court was confirmed by this Court in appeal, on the ground that the fundamental rights guaranteed by Articles 15(1) and 29(2) were not controlled by any exception, and that since there was no prov .....

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aranteed by the said two provisions do not affect the validity of the special provision which it is permissible to 'make under Art. 15(4). This position is not and cannot be in dispute. The petitioners contend that the impugned order is invalid because it is not justified by Art. 15(4). The first argument which has been urged by Mr. Iyyangar on behalf of the petitioners is that it is not competent to the State to make an order under Art. 15(4) unless a Commission has been appointed under Art .....

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port together with the memorandum explaining the action taken thereon to be laid before each House of Parliament [Art. 340(3)]. It is the President who is to take action on the Report and then lay it before the House of Parliament and it is only the President who can, therefore, make special provision for the advancement of the Backward Classes. That is the effect of reading Articles 340 and 15(4) together. In our opinion, this contention is misconceived. It is true that the Constitution contemp .....

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by the Commission as to the steps that should be taken by the union or any State, inter alia, to improve the condition of the Backward Classes ; and that means that the recommendations were to be made which would be implemented in their discretion by the Union and the State Government and not by the President. Thus Art. 340(1) itself shows that it is the Union or the State that has to take action in pursuance of the recommendations made, and so, the argument that the President alone has to act .....

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hat a certain action should be taken by legislation and not by executive action, it has adopted suitable phraseology in that behalf. Article 16(3) and (5) are illustrations in point. Both the said subclauses of Art. 16, in terms, refer to the making of the law by the Parliament in respect of the matters covered by them. Similarly, Articles 341 (2) and 342 (2) expressly refer to a law being made by Parliament as therein contemplated. Therefore, when Art. 15(4) contemplates that the State can make .....

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) of Art. 366 define Scheduled Castes and Scheduled Tribes respectively, but there is no clause defining socially and educationally, backward classes of citizens, and so, in determining the question as to whether a particular provision has been validly made under Art. 15 (4),or not, the first, question which falls to be determined is whether the State has validly, determined who should .be included in those Backward Classes. It seems fairly clear that the back and classes of citizens,, for whom .....

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s and it was thought that some special provision ought to be made even for them. Article 341 provides for the issue of public notification specifying the castes, races or tribes which shall, for the purposes of this Constitution, be deemed to be Scheduled Castes either in the State or the Union territory as the case may be. Similarly,' Art. 342 makes a provision for the issue of public notification in respect of Scheduled Tribes. Under Article 338 (3), it' is provided that references to .....

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ment special provision is contemplated, by Art. 15 (4) are in the matter of their,, backwardness comparable to Scheduled Castes and Scheduled Tribe In considering the scope and extent of the expression "'backward classes' under Art. 15(4), it is necessary to remember that the concept of backwardness is not intended to be relative in the sense that any classes who arc backward in relation to the most advanced classes of the society should be included in it. If such relative tests wer .....

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e determined. Let us take the question of social backwardness first. By what test should it be decided whether a particular class is socially backward or not ? The group of citizens to whom Article 15(4) applies -ire described as 'classes of citizens', not as castes of citizens.A class, according to the dictionary meaning, shows division of society according to status, rank or caste. I In the Hindu social structure, caste unfortunately plays an important part in determining the status of .....

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create a feeling of superiority and inferiority and to foster narrow caste loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection, it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be rel .....

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conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or jains, or even Lingayats are socially backward or not ? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Art. 15(4). It is not unlikely that in some States some Muslims or Christians or jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may .....

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from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows The relevance of both caste and poverty in determining the backwardness of citizens. The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of .....

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proper criteria for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Art. 15(4). All that this Court is called upon to do in dealing with the present petitions is to decide whether the tests applied by the impugned order are valid under Art. 15(4). If it appears that the test .....

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mittee has no doubt incidentally referred to the general economic condition of the community as a contributory factor; but the manner in which it has enumerated the backward any more backward classes leaves no room for doubt that the predominant, if not the sole, test that weighed in their minds was the test of caste. When we consider the impugned order itself. the position becomes absolutely clear. The impugned order has adopted the earlier order of July 10, 1961, with some changes as to the qu .....

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, on the order as it stands there can be no room for doubt that the classification of backward and more backward classes was made by the State Government only on the basis of their castes which basis was regarded as a practicable method. It is true that in support of the inclusion of the Lingayats amongst the Backward Classes the order refers to some other factors, but neither the Report of the Nagan Gowda Committees, nor the orders passed by the State Government on July 10, 1961, and July 31, 1 .....

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t of the Report' and the recommendations made by the Nagan Gowda Committee and we are satisfied that the classification of the socially backward classes of citizens made by the State proceeds on the only consideration of their castes without regard to the other factors which are undoubtedly relevant. If that be so, the social backwardness of the communities to whom the impugned order applies has been determined in a manner which is not permissible under Art. 15(4) and that itself would intro .....

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oximate and not fully accurate, the Committee came to the conclusion that the State average of student population in the last three High School classes of all High Schools in the State was 69 per thousand. The Committee decided that all Castes whose average was less than the State average of 6.9 per thousand should be regarded as backward communities, and it further held that if the average of any community was less than 50% of the State average, it should be regarded as constituting the more ba .....

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as high as has been done by the Committee. But even assuming that the test applied is rational and permissible under Art. 15(4), the question still remains as to whether it would be legitimate to treat castes or communities which are just below the State average as educationally backward classes. If the State average is 6.9 per thousand, a community which satisfies the said test or is just below the said test cannot be regarded as backward. It is only communities which are well below the State .....

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at the Nagan Gowda Committee had recommended that the Lingayats should not be treated as Backward Classes. The State has decided otherwise, and in doing so, the State has taken the view that the figures arrived at by the Committee should be corrected to the nearest integer as, in the nature of things, says the order of July 10, 1960, it is not possible to attain absolute mathematical precision in making such assessments. That is how the State average was raised from (6.9 to 7 per thousand. Even .....

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average of student population is 7 per thousand are likewise included in the list of Backward Classes. If the State average is 6.9 or 7, it would, we think, be manifestly erroneous to regard those communities as educationally backward whole student population ratio works at the same level as the State average. In regard to the Muslims, the majority view in the Committee was that the Muslim community as a whole should be treated as socially backward. This conclusion is stated merely as a conclus .....

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as educationally backward classes of citizens. If the test has to be applied by a reference to the State average of student population, the legitimate view to take would be that the classes of citizens whose average is well or substantially below the State average can be treated as educationally backward. On this point again, we do not propose to lay down any hard and fast, rule; it is for the State to consider the matter and decide it in a manner which is consistent with the requirements of Art .....

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most advanced classes in the State, and that, in our opinion, is not the scope of Art. 15(4). The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Art. 15(4). That take .....

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f the extent of special provision that it should make. Art. 46 which contains a directive principle, provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all form,% of exploitation. There can be no doubt that the object of making a special provision for the advancement of the castes or communities, th .....

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amental rights can have very little meaning or significance for the Backward Classes and the Scheduled Castes Scheduled Tribes unless the backwardness and inequality from which they suffer are immediately redressed. The teamed Advocate-General, however, suggests that the absence of any limitation on the State's power to make an adequate special provision indicates that if the problem of backward classes of citizens and Schedule a Caste and Tribes in any given State is of such a magnitude tha .....

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certain classes or scheduled castes or scheduled tribes, it must not be ignored that the provision which is authorised to be made is a special provision ; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society .....

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to be completely and absolutely ignored, In this connection, it is necessary to remember that the reservation made by the impugned order is in regard to admission in the seats of higher education in the State. It is well-known that as a result of the awakening caused by political freedom, all classes of citizens are showing a growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necess .....

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petent students on the ground that all the seats in the Universities are reserved for weaker elements in society. As has been observed by the University Education Commission, "he indeed must be blind who does not see that mighty as are the political changes, far deeper are the fundamental questions which will be decided by what happens in the universities" (p. 32). Therefore, in considering the question about the propriety of the reservation made by the impugned order, we cannot lose s .....

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est and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Art. 15(4) can be special provision which excludes the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission which considered the problem of the assistance to backward communities, has observed that the percentage of reservation shall not exceed a third of the total num .....

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should not affect either the depth or efficiency of scholarship at all, and in support of this argument, he has relied on the observations made by the Backward Classes Commission that it found no complaint in the States- of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades. The Committee further observed that the representatives of the upper classes did not complain about .....

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he weaker section's of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Art. 15(4) like reservation of posts and appointments contemplated by Art. 16(4 must be within reasonable limits. The interests of weaker sections of society which are, a first charge on the states and the Centre have to be adjusted with t .....

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less than 50% would depend upon the relevant prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be in the larger interests of the State. What happened between July 10, 1961, and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Commit .....

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at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15 (4). The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Art. 15(4). This argu .....

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ferred oil it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action .....

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4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4). The learned Advocatc-General has made an earnest and strong plea before us that we should not strike.down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1938, the State has had to make five orders to deal with the problem of advancing.the lot of the Backw .....

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an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its powers under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking- higher education where it is shown t .....

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cational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posted 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 .....

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e preamble of the Constitution. It is for the attainment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental; rights, guaranteed tinder Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach, free from all extraneous pressures. The said action is intended to .....

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a proper (1) (1962) 2 S. C. R. 586, case not only by providing for reservation of appointments, but also by providing for reservation of selection posts. This conclusion was reached on the basis that it served to give effect to the intention of the Constitution-makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. The judgment shows that the only point which was raised for the decision of this Court in that case w .....

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