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1965 (3) TMI 102

..... Pleader (for Nos. 1 and 2) in W.A. and (for No. 1) in W.P. and Adv. General for Respondent No. 2 in W.P. JUDGMENT Gopal Rao Ekbote, J. 1. This writ appeal and the writ petition involve a common question as to the interpretation of Art. 16(4) and Art. 15(4) of the Constitution of India. They can therefore be conveniently disposed of under one common judgment. 2. The writ appeal is from the order of our learned brother, Gopalakrishnan Nair J., given on 26-11-1964 by which he dismissed the writ petition in limine. 3. The writ petition 1475/64 is filed under Art. 226 of the Constitution for the issue of a writ of certiorari for bringing up the record relating to the Government of India communications Nos. 15/5/61-SCT-IV dated 14-8-1961 and F. 5-3-63-SCH-IV dated 5/4/1963 and to quash the same and to issue a direction to the respondent to continue the list of backward classes which was in vogue upto the year 1959-60. 4. The material facts in regard to the writ appeal are that the two petitioner filed an application for the issue of a writ of Mandamus for declaring the notification issued by the Andhra Pradesh Public Service Commission dated 29-10-1964 inviting applications for competiti .....

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..... s and those communities also can be extended the same benefits. He contended that the State Government in cancelling the list of backward classes even for the purposes of Art. 16(4) committed an error as they did not understand the implications of the Supreme Court decision in regard to Art. 15(4). In his submission, that decision does not apply to a case falling under Art. 16(4). He also contended that the Governor was not competent to issue the impugned G.O. and questioned the action of the Government in withdrawing the concessions in view of the instructions given by the President in the Memorandum on the report of the Backward classes Commission which was submitted to the Parliament under Art. 340. 7. Any answer to the questions raised can be given only after understanding the scheme of the Constitution and the purpose in extending special benefits to the backward classes. From the preamble to the Constitution we get the outlines of the social philosophy which governs all our institutions, whether political or economic. It presents to the citizens an idea of a social order which they should prepare for themselves. The citizens would be engaged in a quest for democracy through t .....

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..... human society will gradually come into being. It is an outlook founded on the demand of equality of personal status for all men and women, what is called an equalities society which recognises the doctrine that all men are born equal and should be regarded as equal in dignity, privileges, rights, power etc., in other words, the opposite of the hierarchical principles in the social sense. Under this pattern of society it is postulated that there would be no classes by which power and place would descend to the families, but all status will equally be within the grasp of each member of the body politic. 9. When we talk of equality it means equality of various kinds. It means civil equality, political equality, social equality, natural equality as well as economic equality. 10. The content of equality therefore is both of negative and positive character. In its negative aspect it means first of all that special privileges of all kinds should be abolished. All barriers of birth, wealth, caste, creed and color should be removed so that no one suffers from any kind of social or political disabilities. In short, there should be no difference between a man and a man. Laski puts it 'wha .....

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..... essarily implies a certain levelling process in order to reduce the inequalities and disparities. It must be recognised that in ultimate analysis the real roots of social inequality are mainly economic. Equal opportunity, however, does not mean identical opportunity for all. After all, as stated earlier, some natural features cannot be ignored. The inherent worth of an individual cannot be ignored. Democracy in fact affirms that each individual is a unique adventure of life. 15. These then are the great principles embodied in our Constitution. These are the purposes for which various declarations are made and these are the ends to which their enunciation is directed. 16. The Constitution gave political equality on the basis of adult franchise. The two other fields in which the principle of equalities to be enforced, are the social and the economic. Viewed in this way, it will be noticed that part from the preamble the rights bring out in bold prominence certain features which must be kept in view while dealing with the special privileges conferred on the backward communities in order to advance them. While declaring the ideal of a welfare State the constitutional provisions also em .....

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..... of opportunity for all citizens relating to social and educational problems as well as relating to employment and to appointment to any office in the State. Art. 16(4)(4) is a proviso and an exception to clauses (1) and (2) of that Article. It is obvious that an exception cannot be so interpreted as to nullify or destroy the main provision. This exception is made to accelerate the advancement of backward classes which term includes Scheduled Castes and Scheduled Tribes. It is obvious that unless the essential economic interests of the weaker section of the society are promoted quickly and liberally the ideal set before the society cannot be achieved. Like Art. 15(4), therefore, Art. 16(4) authorises the State Government to take suitable steps to realise the object. It is thus clear that while a guarantee of equal treatments given to all the citizens, backward or not, during the transitional period, that is to say, a along, as the weaker sections are not sufficiently advanced, the State Government is entitled to take appropriate steps under the said exceptions to achieve the object of advancing the socially and educationally backward sections of the society. A judicious balance has .....

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..... essions to be granted under Art. 16(4). Nevertheless while making any provision for backward classes under Art. 15(4) or Art. 16(4), the State must remember that the policy which is intended to be implemented is the policy which has been declared in the Preamble and in Art. 46 of the Constitution. Keeping in view the over-all structure of the society which the Constitution visualises in general to be re-constructed and in particular Arts. 38 and 39, the arrangement for the purposes of Art. 15(4) and Art. 16(4) will have to be made. 19. To give meaning and substance to what is stated above, Art. 340 authorises the President to appoint a Commission to investigate into the conditions of the socially and educationally backward classes and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or the State Governments and to remove such difficulties and to improve their conditions. The Commission, after its investigation, is expected to submit a report to the President. The President under article shall cause a copy of that report together with a Memorandum explaining the action taken thereon to be laid before each House of .....

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..... l of India to conduct at hoc surveys with a view to determine the criteria for defining the socially and educationally backward classes. The Registrar General finalised the report after conducting a survey in three different States. A preliminary analysis of the data collected indicated that it might be possible to draw up a list of socially and educationally backward occupations on the basis of- (a) any non-agricultural occupation in any State in India in which 50 per cent or more of the persons belong to the Scheduled Castes or the Scheduled Tribes, or (b) any non-agricultural occupations in which literacy percentage of the persons depending thereon is less than 50 per cent of the general literacy in the State. In order to ensure that such a list may not include persons who are comparatively well-off and who did not stand in need of special assistance, it was suggested that an income limit of ₹ 1,000 per year per family might be fixed on the ground that per capita income in the country side did not exceed ₹ 200 and that an average family consisted of five members. 21. The conclusions of the said survey were circulated by the Central Government to all the State Governm .....

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..... told that the State Government has appointed a Committee to go into this question and to suggest criteria for determining the list of backward classes on the basis of which facilities under Art. 16(4) could be given . This appears to us to be the conclusion from the material which has been placed before us. 24. While G.O. Ms. 301 dated 3-2-1964 and G.O. 1739 dated 8-7-1964 relate to the provision made for education under Art. 15(4), G.O. Ms. 1899 dated 19-12-1960, G.O. 44 dated 10-1-1961, and G.O. 162 dated 3-2-1961 related to the amendment of rules made in regard to services. G.O. 913 dated 11-8-1964 again relates to the amendment of rules, which withdraws the facilities given to the backward classes under Art. 16(4). 25. It appears that under G.O. Ms. 559 dated 4-5-1961 'carry forward' rule was prescribed in regard to the services, and certain principles in that regard were laid down. Under G.O. 3743 dated 30-9-1963 the said G.O. was reviewed in the light of the situation which then arose. Some appointments under the above said G.O. were made before the special rules in pursuance of that G.O. could be amended. These appointments are both permanent and temporary in charac .....

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..... cheduled Castes and Scheduled tribes are concerned. We have already stated that under the two G.Os. educational facilities which were based on backward classes lists were also withdrawn and instead facilities were granted irrespective of caste to all those whose economic condition according to that order entitled them to get. 26. From the aforesaid it would be almost evident that the action which the State Government has taken is quite in consonance not only with Article 15(4) and 16(4) of the constitution, but is perfectly in accord with the decided cases. We see therefore no force in the contention of the learned Advocate for the petitioners that caste alone can be the basis for determining the backward classes. We see also no substance in the contention that the term 'backward classes' means only Hindu backward classes. The decision relied upon by the learned Advocate for the petitioners in support of this contention does not decide anything of that kind. What all was decided in Venkataramana v. State of Madras, 1951 S.C.J. 318 was that "the reservation of posts in Government service (in this case post of District Munsiff in favour of any backward class of citizens .....

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..... basis of caste Gajendragadkar, J., as he then was, in: AIR 1963 SC 649 elaborately considered the social as well as educational aspects for determining backwardness. His Lordship observed: Therefore in dealing with the question s 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 relevant, its importance should not be exaggerate. If the classification of backward classes of citizens was based solely on the caste of the citizens, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves. His Lordship continued: Besides, if the caste of the Group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide wheth .....

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..... they belong. It is thus clear that the term 'backward classes' is not confined to Hindu backward classes, nor does, it mean the castes amongst Hindus only, Determination of backward classes on the basis of castes would therefore bent only derogatory to Arts. 15(4) and 16(4) but would also go quite contrary to the avowed principles enunciated in the Constituted as discussed above. 27. We also see no force in the contention that economic consideration cannot be the sole basis for extending facilities under Art. 15(4) of the Constitution. Once it is decided that the list of backward classes cannot be prepared solely or predominantly on the basis of caste, the State Government was left to find out other criteria to determine as to which section deserves assistance to advance socially and educationally. In the criteria previously adopted apart from the vice of caste some of its feature were academically unsound. Reservation of seats in various educational institutions including the Medical, the Engineering and the Technological Institutions, fixing the minimum marks for admission at a lower level than what is fixed for the general candidate, could not be said to be academically .....

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..... opinion of the State is not adequately represented on the services of the State Reservation can be made only when these two conditions are complied with. Excessive reservation, the above said cases decide, would be bad in law, as it will be derogatory to the main clauses of Art. 16(4). On the same analogy if castes are to be the sole criteria, when the other castes are denied what they are guaranteed under the main clauses of Art. 16(4) while therefore even for the purposes of Art. 16(4) caste may be one of the several factors when can be taken into consideration for determining the criteria for backwardness under Art. 16(4) it cannot form the sole or the predominant basis. In this respect we see absolutely no difference between Art. 15(4) and Art. 16(4). We have already said that absence of some words in Art. 16(4) hardly makes any difference. The reasoning on which the Supreme Court has found the lists of backward classes prepared on the basis of castes bad under Art. 15(4), holds equally good for the purposes of Art. 16(4). 29. It may be that the economic consideration now accepted as the basis for the purpose of extending facilities under Art. 15(4) may not fully apply to any r .....

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..... . Under Art. 309 it is the Governor who can make rules regulating the recruitment and the conditions of service until provision in that behalf is made by the legislature. Admittedly no legislative measure so far has been enacted. The Governor therefore continues to have the power of amending service rules. It is only under that power that the Governor has issued the impugned G.O. and no fault can therefore be found in his action. Jayantilal Amratlal v. F.N. Rama [1964] 5 SCR 294 . The power to promulgate Ordinances under Art. 123, to suspend the provisions of Arts. 268 to 279 during an emergency, to declare failure of the Constitutional machinery in States under Art. 356, to declare a financial emergency under Art. 360, to make rules regulating the recruitment and conditions of services of persons appointed to posts and services in connection with the affairs of the Union under Article 309 - to enumerate a few out of the various powers - are not powers of the Union Government; these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Art. 258(1)." 32. We see also no force in the contentio .....

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..... es or omits so to do. He may be orders by mandamus to perform the duty on pain of liability for contempt of Court. It is obvious that Mandamus is not applicable to that which is purely discretionary. It lies in respect of ministerial acts but certainly does not lie in cases of discretionary acts. Even otherwise Mandamus is discretionary remedy and cannot be sought as a matter of course or as a matter of right. It must be remembered that Art. 15(4) and Art. 16(4) are not mandatory, but are merely enabling provisions. The State Government, therefore, may or may not make any rule or issue any executive direction for the purposes of reserving some posts for or extending other concessions to backward classes. It is also not in dispute that when the State Government can in its discretion make such rule or issue administrative instructions, it can also cancel or modify it. It was not incumbent upon the State Government to prepare any list of backward classes, nor is it incumbent upon the State Government to prepare any list of backward classes, nor is it incumbent on it now to prepare any list. Both the Articles enable the State Government to make provision for extending help to socially .....

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