TaxTMI 
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1980 (11) TMI 160
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....ally but pragmatically. "The philosophers have only interpreted the world in various ways; the point is to change it" -this was the founding fathers' fighting faith and serves as perspective-setter for the judicial censor. The Backdrop The social backdrop to the forensic problem raised in this litigation is best projected by lines of poetry quoted in Nehru's Autobiography: Bowed by the weight of centuries he leans Upon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world. The Problem The dynamics and dialectics of social justice vis a vis the special provisions of the Constitution calculated to accelerate the prospects of employment of the harijans and the girijans in the civil services with particular emphasis on promotions of these categories in the Indian Railways that, in all these cases, is the cynosure of judicial scrutiny, from the angle of constitutionality in the context of the guarantee of caste-free equality to every person. Petitioners' Challenge The gravamen of the constitutional accusation levelled in this bunch of quasi-class actions under Art. 32 of the Constitution and argued by a battery o....
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....blic by the nightmare of a feudal vivisection of the people-if this picture drawn by some counsel be true, even in part, the basic task of transforming the economic order through social justice will be baulked through destructive communal disputes among the masses. Maybe, this may weaken the social revolution, leave an indelible stain and incurable wound on the body politic and justify the censure by history of the engineers of our political power and electoral processes. Hearing the arguments of the petitioners one wonders, "Is caste the largest political party ?" Has protective discrimination, so necessary in an insufferably unequal society, created a Frankenstein's monster ? Have we no dynamic measures to drown social, economic and educational backwardness of whole masses except the traditional self-perpetuating quasi-apartheidisation called 'reservation' ? Surely, our democratic, secular socialist republic is no wane moon but a creative power rooted in equal manhood, an egalitarian reservoir of vast human potential, a demographic distribution of talent benumbed by brahman centuries of social injustice but now seeking human expression under a new dispensation wher....
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....of caste-war, against birth based 'privileges' for the harijan-girijan millions. Our Approach Of course, judicial independence has one dimension, not fully realised by some friends of freedom. Threats of mob hysteria shall not deflect the court from its true accountability to the Constitution, its spirit and text belighted by all the sanctioned materials The other invisible sacrifice of judicial independence relevant to this case is the unwitting surrender to "the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us (judges) a place. No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties." We quote what the great Justice Cardozo has courageously confessed : I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the....
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....olution' designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about 'a fundamental change in the structure of Indian society'. The Cultural Core of the Constitutional Protection: Let us get some glimpses of history to get a hang of the problem. 'In thy book record their groans' may be the right quote to begin with. We cannot blink at the agony of the depressed classes over the centuries condemned by all social reformers as rank irreligion and social injustice. Swami Vivekananda, for instance, stung by glaring social injustice, argued(2): The same power is in every man, to the one manifesting more, the other less. Where is the claim to privilege. All knowledge is in every soul, even in the most ignorant, he has not manifested it, but, perhaps he has not had the opportunity the environments were not, perhaps, suitable to him. When he gets the opportunity he will manifest it. The idea that one man is born superior to another has no meaning in Vedanta; that between two nations one is superior and the other inferior has no meaning whatsoever........ Men will be born differentiated;....
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....ll come, purity will come, and everything that is excellent will come, when this sleeping soul is roused to self-conscious activity.......... Our proletariat are doing their duty........ is there no heroism in it ? Many turn out to be heroes, when they have some great task to perform. Even a coward easily gives up his life, and the most selfish man behaves disinterestedly when there is a multitude, to cheer them on but blessed indeed is he who manifests the same unselfishness and devotion to duty in the smallest of acts. unnoticed by all-and it is you who are actually doing this, ye ever-trampled labouring classes of India ! I bow to you. There was the Everest presence of Mahatma Gandhi, the Father of the Nation, who staked his life for the harijan cause. There was Baba Saheb Ambedkar-a mahar by birth and fighter to his last breath against the himalayan injustice to the harijan fellow millions stigmatised by their genetic handicap-who was the Chairman of the drafting committee of the Constituent Assembly. There was Nehru, one of the foremost architects of Free India, who stood four square between caste suppression by the upper castes and the socialist egalitarianism implicit ....
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....separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principles of graded inequality which means elevation of some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th 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. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic structure, continue to deny the principle of one man one value. How long....
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....;promises to keep' (over which judges will not legally sleep) before the dalit brethren may break their chains and become at least distant neighbours to the less socially handicapped sector, were highlighted pragmatically, statistically, hierarchically, even desperately, by the proponents of the impugned circulars (Annexures F to O covered by Prayers I to X). These submissions serve as poignant background but the decision on the vires of the Railway Board's directives will depend on constitutional interpretation applied to Indian actualities, not to idealised abstractions or theoretical possibilities. True, the politicisation of casteism its infiltration into unsuspected human territories and the injection of caste- consciousness in schools and colleges via backward class reservation are a canker in the rose of secularism. More positive measures of levelling up by constructive strategies may be the developmental needs. But the judicial process while considering constitutional questions, must keep politics and administrative alternatives as out of bounds except to the extent economics, sociology and other disciplines bear scientifically upon the proposition demanding court p....
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...., save where the breach is brazen, the transgression is plain or the effective co-existence of the fundamental right and the administrative scheme is illusory. This Court has, on former occasions, upheld executive and legislative action hovering "perilously near" but not plunging into unconstitutionality (see In re: Kerala Education Bill (1959 SCR 995 at 1064). It is a constant guideline which we must vigilantly remember, as we have stated earlier, that our Constitution is a dynamic document with destination social revolution. It is not anaemic nor neutral but vigorously purposeful and value-laden as they very descriptive adjectives of our Republic proclaim. Where ancient social injustice freezes the 'genial current of the soul' for whole human segments our Constitution is not non-aligned. Activist equalisation, as a realistic strategy of producing human equality, is not legal anathema for Arts. 14 and 16. To hold otherwise is constitutional obscurantism and legal literalism, allergic to sociologically intelligent interpretation. The Preamble which promises justice, liberty and equality of status and opportunity within the framework of Secular, Socialist Republic project....
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....kward-most people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular State. The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labour, the hungry, hard-working half-slave, whose liberation was integral to our Independence. To interpret the Constitution rightly we must understand the people for whom it is made- the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities. This synthesis of ends and means, of life's maladies and law's remedies is a part of the know-how of constitutional interpretation if alienation from the people were not to afflict the justicing process. A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean. These broader observations are necessary to set our sights right, to appreciate that our Constitution lays the gravestone on the old unjust order and the cornerstone of the new humane order. This constitutional consciousness is ba....
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....y the petitioners as 'reverse discrimination', if we may use that expression popularised in American legalese. These directives were designed to protect and promote the interests of members of the SC & ST in the matter of their employment under the Indian Railway Administration and they specially related to the softer criteria for promotion. The Railway Board acted, as is discernible from the relevant orders, in obedience to the policy decisions of the Ministry of Home Affairs. Some argument was addressed on the validity of the Railway Board's orders on procedural and other technical grounds. We see no substance in them. The Board was bound to carry out the Central Government's directives under Art. 16(4) and did it. The broader issue of 'benign discrimination' deserves close study. The meat of the matter, to put it that way, is the gross discrimination alleged to be implicit in the several Circulars of the Railway Board and the non-applicability of Art. 16(4) to save these circulars. The focus of this litigation must primarily turn on that issue and the court must navigate towards egalitarian justice at the level of promotion posts in the public services....
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.... State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life. (2) The State shall in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. (emphasis added) The learned Attorney General, while emphasising the egalitarian commitment of the Constitution over the whole range of public services throughout their career, defended the impugned orders by law and logic, pragmatics and statistics, and countered the hypotheticals of the petitioners by the actual furnished by official facts and figures. He also relied on a few precedents, in particular, Rangachari's case(1) and Thomas's case(2) both of which bind this Bench. He also sought to explain away the effect of Balaji's case(3) and Devadason's case(4) on which the other side had heavily relied to nullify some of the circulars. The Uni....
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....of opportunity in matters of State employment is a constitutional guarantee and no citizen can be discriminated against on the score only of sex, caste, descent, place of birth or residence. So, one point pressed before us is that Scheduled Castes cannot be a favoured class in the public services because they are 'castes' and cannot claim preference qua castes unless specially saved by Art. 16(4). And Art. 16(4) speaks of class, not caste and the two are different, however, politically convenient the confusion may be. Another vital contention put forward by counsel for the petitioners was that Art. 16(4) could not apply to promotional levels. A third basic plea was that efficiency of administration was a constitutional consideration under Art. 335 and could not be a sacrificial goat to propitiate the backward class Kali. The impugned circulars offended against efficiency, both by fomenting frustration among the Civil Services indirectly producing inefficiency and by manning higher posts which demand higher skills with men of lower competitive calibre and less experience in service thus posting 'efficiency risks' in strategic positions violating Art. 335. The cont....
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....be chronically niggardly. To increase the rate of absorption of SC&ST into the services, further facilities, concessions and relaxations were offered from time to time. Despite these seemingly attractive employment opportunities the dismal backwardness in the matter of representation in administration from among the SC&ST was such that the vacancies reserved for them remained, in many cases, unfilled by SC & ST candidates. Lest the overall representation of the members of the SC&ST should continue deplorably negligible Government adopted a policy of "carry forward", for upto three recruitment years, of reserved vacancies if enough number of candidates from the said groups did not get selected. The "carry forward" rule was calculated to keep open reserved vacancies for at least three years so that the under representation could be made up at least in part. Homogenisation of the dalits into the national mainstream was regarded as vital to our democracy by the State and these positive strategies of special opportunities vis a vis SC&ST had, as its raison d'etre, only the imperative need to exercise the haunting spectre of the socially and economically suppressed species and to abo....
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....rts. 14 to 16; but it is a notorious fact of our cultural heritage that the Scheduled Castes and the Scheduled Tribes have been in unfree Indian nearly dehumanised, and a facet of the struggle for Freedom has been the restoration of full personhood to them together with the right to share in the social and economic development of the country. Article 46 is a Directive Principle contained in Part IV. Every Directive Principle is fundamental in the governance of the country and it shall be the duty of the State to apply that principle in making law. Article 46, in emphatic terms, obligates the State. "to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Reading Art. 46 together with Art. 16(4) the luscent intent of the Constitution-framers emerges that the exploited lot of the harijan girijan groups in the past shall be extirpated with special care by the State. The inference is obvious that administrative participation by SC&ST shall be promoted with special care by the State. Of cours....
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....te may not be. It is the socioeconomic backwardness of a social bracket, not mere birth in a caste, that is decisive. Conceptual errors creep in when traditional obsessions obfuscate the vision. This aspect has been referred to in the State of Kerala v. N. M. Thomas by me, and dealt with at more length by Ray, C.J.: Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Hari kishan Singh and Ors.(2) this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any Caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 361 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer. T....
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....nd services made, on an all-India basis by open competition, i.e. through the Union Public Service Commission or by means of open competitive test held by any other authority. Where recruitment is made otherwise than by open competition the reservation for Scheduled Castes will be 16-2/3 as at present. (b) Scheduled Tribes:-Both in recruitment by open competition and in recruitment made otherwise than by open competition there will be a reservation in favour of members of Scheduled Tribes of 5% of the vacancies filled by direct recruitment. .Under the Constitution all citizens of India are eligible for consideration for appointment to posts and services under the Central Government irrespective of their domicile or place of birth and there can be no recruitment to any Central Service which is confined by rule to the inhabitants of any specified area. In practice however recruitment to class I and II services and posts is likely to attract candidates from all over India and will be on a truly all-India basis, while for the majority of Class III services & posts which are filled otherwise than through the Union Public Service Commission only those residing in the area or locali....
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....ct the maintenance of the efficiency of administration.' Here again, obsession with 'efficiency' is manifest. Then comes what is called the 'carry forward' rule: (3)(a) if a sufficient number of candidates considered suitable by the recruiting authorities, are not available for the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course, and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year. * * * * (b) In the event of suitable Scheduled Caste candidate not being available, a Scheduled Tribe candidate can be appointed in the subsequent reserved vacancy and vice versa subject to adjustment in the subsequent points of the roster. The quota for two years, if carried forward, would not materially affect t....
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.... great retarding force, the vis inertiae of history;' and so, heroic measures of progressive thrust, the Railway Board realised, alone could effect the break-through and bring the harijan-girijan groups into the higher brackets of Administration Annexure was promulgated providing for reservation in promotions. This has been challenged before us. The tepid provision opening up promotion posts for 'reserved' categories was first confined to Class III and Class II, Class I being too sacrosanct to be soiled by meritless members. Annexure F reads: Sub: Reservation for members of Scheduled Castes and Scheduled Tribes in posts filled by promotion in Railways. Reference is invited to Board's letter No. E55CMI/3 dated 5-10-55. The Railway Board have, in partial modification of para IV of the above letter, decided as follows:- (a) Promotion from Class IV to Class III and from Class III to Class II. The Railway Board have decided that promotions from Class IV to Class III and from Class III to Class II service are of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in d....
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.... progress of human rights or surprise reversal of constitutional fundamentals has happened. We find the question discussed, decided and consistently followed since Rangachari and see no reason to open the Pandora's box. So it was that we rejected the plea for reconsideration. Even so, the alternative method of containing Art, 16(4) within the contours of Rangachari was open to counsel and that has been done in argument as will be evident from the discussion on the vires of the subsequent orders of the Board. All the fire was turned by petitioners' counsel on promotion 'excesses' through Railway Board circulars. Annexure H of August 27, 1979 is one such: Annexure H The Railway Board have now revised their policy in regard to reservation and other concessions to Scheduled Castes and Scheduled Tribes in posts filled by promotion.... The particular concessions are concretised thus: (B) Promotion by selection method (i) Class II appointments: In promotion by selection from Class III to Class II, as a measure of improving representation of Scheduled Castes/ Scheduled Tribes, it has now been decided that, if they are within the zone of eligibility the Scheduled....
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....d standards of fitness. Article 335 has been honoured, making a margin on merit inevitable when choosing the second best. The next Order assailed by counsel is that of 20th April 1970 (Annexure I) and its highlights are revealed by relevant excerpts: ANNEXURE I The policy of the Government of India in regard to reservations for Scheduled Castes and Scheduled Tribes in posts and services under the Government of India was laid down in the Ministry of Home Affairs Resolution No. 42/21/49/NGS dated 13th September, 1950 circulated with Railway Board's letter No. E47CMI/49/3 dated 23rd December, 1950. The question of revising the percentages of reservation for Scheduled Castes and Scheduled Tribes in post and services under the Government of India in the light of the population of these communities as shown in the 1961 census has been under consideration of the Government for some time. It has now been decided in modification of the decisions contained in paras 2 and 4(1) of the Ministry of Home Affairs' Resolution dated 13th September 1950, that the following reservations will hereafter be made for the Scheduled Castes and Scheduled Tribes in posts and services which are f....
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....to the number of reserved vacancies are not found suitable for promotion even with relaxed standard, the reserved vacancies may be dereserved after following the procedure prescribed for dereservation as in the case of selection categories. The quota so dereserved will be carried forward to three subsequent recruitment years; the year in which no panel is formed is not to be taken into account for this purpose. This order has been fiercely attached as unconstitutional. The order attached in Rangachari's case (supra) related to selection posts at the promotion level but Annexure K (11-1- 1973) covers promotion to non-selection posts. The whole gamut of promotions in Classes II, III and IV areas thus comes under the reservation formula. Annexure I extended the principle of reservation to lower ranks of Class I services (i.e. Junior Class I scale). The 'carry forward' project, calculated to ensure adequate representation by broadening the time zone to three years, was applicable to all cases of reservations in promotion posts. One of the major broadside attacks made on the validity of the Railway Board's circulars was the serious peril to administrative effici....
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....all facilities for improving their knowledge and coming upto the requisite standard, if necessary by organising special coaching classes. At the end of the six months period, a special report should be obtained on the working of these candidates and the case put up by the Department concerned to the General Manager through SPO(RP) for a review. The continuance of the Scheduled Caste and Scheduled Tribe candidates in the higher grades would depend upon this review. If the candidates are found to have come upto the requisite standard, their names would be included in the panel and the vacancies dereserved and filled in the usual manner by candidates from other communities. The procedure indicated in the preceding para would also apply to promotion to the posts filled on the basis of seniority-cum-suitability, with the only difference that the Review at the end of the six months period would be carried out by the authority competent to approve the Select List. This directive takes good care of harijan-girijan obtuseness, if any. We move on to Annexure N of February 21, 1976 which relates to carrying forward of reserved vacancies remaining unfilled. We need not go into its detail....
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....it to discontent among supervisors inter alia on account of the procedure of reservation of posts for SC&ST. It is true that the Report has a slant against the SC&ST promotion policy notwithstanding the assurance given by the Railway Board to the Committee that instructions had been issued not to relax standards in favour of SC&ST members where safety was involved. We need hardly say that it is straining judicial gullibility to breaking point to go that far. This is an argumentum an absurdum though urged by petitioners with hopeful ingenuity. Nor are we concerned with certain newspaper items and representations about frustration and stagnation. On the other hand, the plea, forcefully put forward that economic backwardness should be the touchstone of any reservation policy in a secular, socialist republic may merit better examination. Surely, extraneous factors, however passionately projected, cannot shake or shape judicial conclusions which must be founded on constitutional criteria and relevant facts only. What then is the defence of the Union to the charge of departure from equal treatment for all citizens alike ? What is the principle derivable from the precedents on the points ....
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....f a given service or state of affairs. The stand of the State is that- .once the Government have decided after reviewing the overall position of representation of Scheduled Castes/Scheduled Tribes in Government Services that the reservation principles should continue in certain types of appointments, the reservation of a certain number of vacancies have to be provided, irrespective of whether Scheduled Castes/Scheduled Tribes are already duly represented or not in specific cadres of the Services. Although Rangachari's case covered only selection posts, the Union of India took the view that the same principle held good for nonelection posts also. In fact, if at all the prospects of SC&STs in Government Service were to be improved, it had to begin with non-selection posts. They are the lower categories where the members of the SC&ST have a chance. Provision of reservation in Class I services would be theoretically attractive to SC&STs but not so much in practice. reservation in promotional appointments made by means of seniority-cum-suitability is necessary because the Scheduled Castes/Scheduled Tribes who generally occupy the lower positions in the recruitment/promotion....
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....rvations are the need if equality and excellence are the creed. Reservation is but one strategy and historically has established itself. More must be done by a complex of processes by which harijans/girijans will get boosted in 'capabilities', and mainstreamed to share in the Civil Service cake. The poor annual assimilation into the public employment sector of the weakest social segments makes a tragic mockery of the statistical jugglery of harijan monopoly. Any theory or formula is best tested by how it works, not by how it is worded. Nikita Kruschev once remarked: "...a theory isolated from practice, is dead, and practice which is not illumined by ....theory is blind". The theoretical attack on over representation flowing from the reservation rule must be tried out in practice, as the figures for the last 10 years show; and the justification for more facilities and higher percentage in public employment must be validated by the thesis of social justice. Assertions either way end in a blind alley. That is why we have been at pains to project the constitutional theory and resultant representation of SC and ST reservations under Art. 16(4). Percentage of reservations made....
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....rd, and, in any case, is inevitable where reservation is permissible. Furthermore the Ministry of Railways, having regard to Art. 335 had taken special care to give training, coaching and the like, to prevent inefficiency and to promote competency of SC&ST members in service. The deponent on behalf of the Union of India has explained the position thus: I submit that the Ministry of Railways, in 1974 after reviewing the position of intake of Scheduled Castes and Scheduled Tribes in groups of posts filled by promotion in Railway Services, and on the basis of a recommendation made by the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, introduced a scheme of training of the Scheduled Castes/Scheduled Tribes employees on the jobs of the posts to which they are to be promoted. According to this scheme, if, during selection proceedings, it is found that the Scheduled Castes/ Scheduled Tribes of requisite standards are not available for being placed on the panel, the best among them numbering to the extent of reserved vacancies i.e. who secure the highest marks, are provided with in-service training. For this purpose, such candidates are promoted a....
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....s violative of Art. 335 ? (5) Do the ten circulars reduce the fundamental right under Art. 16(1) to a husk or cipherise it altogether ? We must state certain constitutional fundamentals and societal elementals before we make a dialectical study of the basic issues thrown up by these cases. Most of the submissions made by counsel for petitioners cannot survive Rangachari and Thomas (supra) and our task is simplified by abiding by the propositions laid down therein, because these twin rulings bind us being of benches of five and seven judges. Even though we would, we could not and even though we could, we would, not depart from the holdings in these twin land-mark cases which set the gravestone on many of the contentions. What are the constitutional fundamentals bearing on egalite vis a vis backward classes, especially the SC&STs ? What are the social essentials afflicting the life-style of the SCs&STs ? What is economic backwardness as distinct from social injustice and how does the Constitution strike the path of remedial jurisprudence harmonising the demands of both categories? A luminous preface to the constitutional values nullified by social realities is found....
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....quality between members of separate, independent class.... The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation in enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances.... A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category. The learned Chief Justice relied upon earlier decisions to substantiate this proposition. In Triloki Nath Khosa v. State of J & K(1) this Court had held that the State may make rules 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 cle....
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....to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration. I had made similar observations in the same case: The Directive Principles of State Policy, fundamental in the governance of the country, enjoin on the State the promotion '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 protect them from social injustice'. To neglect this obligation is to play truant with Art. 46. Undoubtedly, economic interests of a group-as also social justice to it-are tied up with its place in the services under the State. Our history, unlike that of some other countries, has found a zealous pursuit of government jobs as a mark of share in State power and economic position. Moreover, the biggest-and expanding, with considerable State undertaking, employer is Government, Central and State, much so appointments in the public services matter increasingly in the prosperity of backward segments. The Scheduled Castes and Scheduled Tribes have earned special mention in Art. 46 and other weaker section' in ....
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....e field of public employment ? Let us be sure of the social facts. Mark Twain cynically remarked once: "Get your facts first, and them you can distort them as much as you please." By that token, let us scan the status of the SC&STs, the result of reservations in habilitating them into State services and the depressment impact on efficiency by supersession of meritorious seniors. It is a fact of our social history and a blot on our cultural heritage that 135 million men and women, described as SC&STs, have been suffering as "suppressed classes", denied human dignity and languishing as de facto bonded labour. They still are, in several places, "worse than the serf and the slave" and "their social standard is lower than the social standard of ordinary human beings" (Ambedkar). Tortured, violated and even murdered, the saga of the SC&STs is not only one of economic exploitation but of social ostracisation. Referring to the sorrows of the suppressed shudras (what I prefer to call the panchama proletariat) Swami Vivekananda demanded shudra raj and refuted the incapabilities of the groaning untouchables: "Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of ....
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.... picture of under-representation in administration as if harijans and girijans were still untouchable and unapproachable, vis-a-vis Services under the State. Once we realise with John Tyndall that "It is as fatal as it cowardly to blink facts because they are not to our taste", the wind is taken out of the sails of the case of the petitioners. For, in truth and actual life whatever the Railway Board's orders may say the representation of the SC&STs remains substantially below the sanctioned level although fair representation, at least in proportion to their population is what is demographically just, ignoring for the moment the neutralisation of the iniquitions past. We must remember that Art. 14 speaks of equality before the law and Art. 16 vouchsafes equality of opportunity. The social dynamics of equality involve the strategy of equalisation in a society of stratification through casteification. One of us did observe : "In a spacious sense, 'equal opportunity' for members of a hierarchical society makes sense only if a strategy by which the under privileged have environmental facilities for developing their full human potential. This consummation is accom....
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....stitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without Adventitious aids till such time when they could stand on their own legs. A strikingly similar strain of justice thinking has been developed in other jurisdictions in the field of equal protection and benign discrimination by Polyvos G. Polyviou in his book "The Equal Protection of the Laws". It may be meaningful to notice the argument : "....focuses on the concepts of equal treatment and equal opportunity, professes to construe them realistically, and declares that '(t) he minority applicant does not have an opportunity "equal" to the white's because the discriminatory denial of educational, professional and cultural opportunities for generations past has severely handicapped him in any contest of early intellectual attainment'. As Professor Cox has well put t....
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.... of some places for members of disadvantaged minority groups cannot (in a case like the one set out above) successfully complain, the reason being that they do not have a right to equal treatment in the assignment of places, but they do have the right to be treated as equals, that is, with equal respect, concern and sympathy, in the making of decisions as to which admissions standards should be used. More specifically, this right is viewed by Dworkin as meaning that each candidate for admission has a right that his interests should be looked at 'as fully and sympathetically' as the interests of any others when decisions are being taken as to which of the many possible criteria for admission to elevate to the status of the pertinent ones. But if this condition is satisfied, rejected white applicants will fail in their contention that the particular admissions program was unfair and unconstitutional (even if they had been effectively excluded from consideration as a result of the adoption of racial criteria in determining the allocation of some of the available places). The simple question Dworkin would ask in these cases is whether the particular admissions program serves a ....
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....hing shady about it. If there is advancement of prospects of SC&ST by addition of marks or prescribing lesser minimum marks or by relaxing other qualifications, I see no particular outrage in re- categorisation which is but a different mode of conferring an advantage for the plain and understandable reason that SC&STs do need some extra help. It is important to note that the prescribed minimum qualifications and standards of fitness are continued even for SC&STs under Annexure H. The other vice pointed out against Annexure H is that the qualifying marks in respect of SC&ST candidates is somewhat less than is applicable to candidates of unreserved groups. There is no merit in this objection and no good ground exists which militates against the constitutionality of Annexure H. Annexure I is also unexceptionable since all that it does: is to readjust the proportion of reservation in conformity with the latest Census. Posts for which recruitment, realistically speaking, takes place on a regional basis are subjected to reservation taking into account the percentage of SC&ST population in the concerned State. This is also reasonable. Likewise, the carry forward rule being raised fr....
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....y the three-year 'carry forward' rule one is unable to see how, in practice, the total vacancies will be gobbled up by the harijan/girijan groups "virtually obliterating" Art. 16(1). The court has made it very clear that the problem of giving adequate representation to backward classes under Art. 16(4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims as pointed out in Balaji's case.( [1963] Supp. 1 SCR 439) It is true that in Balaji's case and Devadasans case(l) 'the carry forward' rule for backward classes for exceeded 50% and was struck down. We must remember that the percentage of reservation for backward classes including SC&ST was rather high in both the cases. In Devadasan's case the court went into the actuals, not into the hypothetical. This is most important. The Court actually verified the degree of deprivation of the 'equal opportunity' right and discovered: (ORDER ) In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled (1) [1964] 4 SCR 680 at 695. Castes and Tribes on the basis of reservation permitted ....
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....ssions also are granted under it to SC/ST candidates. But the maximum mayhem inflicted by Annexure K is in the extension of the operation of promotional reservation to non-selection posts. It was urged that Rangachari (supra) did not cover non-selection posts and, there fore, could not be an authority to sustain its validity. There is no force in this submission. The sting of the argument against reservation is that it promotes inefficiency in administration by choosing sub- standards candidates in preference to those with better mettle. Competitive skill is more relevant in higher posts, especially those where selection is made by competitive examinations. Lesser classes of posts, where promotion is secured mechanically by virtue of seniority except where the candidate is unfit, do not require a high degree of skill as in the case of selection posts. (See 1968 1 SCR p. 721 at 734). It is obvious that as between selection and non- selection posts the role of merit is functionally more ` relevant in the former than in the latter. And if in Rangachari reservation has been held valid in the case of selection posts, such reservation in non-selection posts is an afortiori case. If....
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....ties are presumably efficient and the dilution of efficiency caused by the minimal induction of a small percentage of 'reserved' candidates cannot affect the over-all administrative efficiency significantly. Indeed, it will be gross exaggeration to visualise a collapse of the Administration because 5 to 10% of the total number of officials in the various classes happen to be sub-standard. Moreover, care has been taken to give in-service training and coaching to correct the deficiency. It is fashionable to say-and there is, perhaps, some truth in it- that from generation to generation there is a deterioration in efficiency in all walks of life from politics to pedagogy to officialdom and other professions. Nevertheless, the world has been going forward and only parties whose personal interest is affected forecast a doom on account of progressive deficiency in efficiency. We are not impressed with the misfortune predicted about governmental personnel being manned by morons merely because a sprinkling of harijans/girijans happen to find their way into the Services. Their apathy and backwardness are such that in spite of these favourable provisions, the unfortunates have nei....
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.... of merit. But to read stray provisions in isolation may be unfair to the scheme. Look at the desperate State in which Government is trying to give fair representation to harijans/girijans in Administration. These miserables suppressed by centuries of trampling are still slumbering despite inducements to awaken. It is a genetic calumny and unscientific assertion to castigate the SC&ST communities as possessed of less intellectual potential what with Valmiki and Vyasa to Baba Sahib Ambedkar. The darkening and be numbing environment of ages in which shudras and panchamas have suffered their mental powers to be chained accounts for their seeming, retardation. Once brighter atmosphere and better opportunity enliven their talent their contribution to the Indian treasury will raise the human resources and democratic status of Bharat. A democracy of talent is an inarticulate major premise of our culture. The fundamental question arises as to what is "merit" and "suitability". Elitists whose sympathies with the masses have dried up are, from the standards of the Indian people, least suitable to run Government and least meritorious to handle state business, if we envision a Service State in....
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....Equal protection of the laws': (') "A third argument traditionally employed against the use of preferential discrimination is that affirmative measures of the kind discussed here may significantly curtail efficiency. It does indeed stand to reason that the immediate result of benignity in admission and selection process will almost certainly be the selection of those who are not as competent or as able as some of those left out. 'Special admission programmes, almost by definition, operate to in sure that students are placed in schools for which they are (1) The equal protection of the laws by G. Polyviou p. 360. not qualified ! The same objection applies with equal, if not more, force to the area of employment and elsewhere. One possible answer is that the importance of efficiency must be compared with and ultimately set against the significance of integration or the prevention of discrimination, and that integration and the rectification of socially harmful deprivation are the more pressing needs. Or one can fall back on the very different arguments that traditional admission processes are unfair because these are geared to the usual type of applicant and that prefe....
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....al of the harijans and girijans, on-fifth of the Indian people, goes to thistles and every communal effort to twist the politics of power for promoting chances of getting jobs becomes inevitable caste being a deeprooted pathology in our country. Thus jobbery, politics, casteism and elections make an unholy, though invisible, alliance against national development which alone can liberate Indians from social and economic privation. If democracy itself thus plays into the hands of hostile forces, the jurisprudence of keeping the backward as backward and perpetuation of discrimination as a vested caste right may prevail as a rule of life. The remedy of 'reservations' to correct inherited imbalances must not be an overkill. Backward classes, outside the Scheduled Castes and Tribes, cannot bypass Art. 16(2) save where very substantial cultural and economic disparity stares at society. The dubious obsession with 'backwardness' and the politicking with castes labelled backward classes may, on an appropriate occasion, demand judicial examination. The politics of power cannot sabotage the principles of one man, one value. No sociological explanation for the flood of ruinou....
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....ooperating fruitfully and need not compete destructively. Ultimately harijan/girijan militancy must find fulfillment in effective main-streaming and creative contribution. While they have miles to go, they have promises to keep. The poignant words of the Reverend Jesse Jackson come to my mind (1) "I don't see how, we can survive as a people if we don't have a great push for excellence now....A lot of what we've done in the past will be in vain if we don't. We can make one of the most valid contributions to Western civilization, even more of a contribution than slavery. Because slavery was our great contribution against our will. Now it's time for us to make a great contribution as an act of will." Given the opportunity and the environment, the Indian dalits can make India great and give up crutches. The writ petitions as well as the Special Leave Petitions cannot but be dismissed. PATHAK, J.-My brothers Krishna Iyer and Chinnappa Reddy are agreed that the writ petitions should be dismissed. They have held against the petitioners on the several contentions raised in the (1) M. N. Srinivas, "Changing Attitudes in India Today" Yogana, October I 1961, p. 26. ....
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....erefore, whatever is done in considering the claims of the Scheduled Castes and Scheduled Tribes must be consistent with that supreme need, the maintenance of efficiency of administration. Art. 335, it must be clearly stated, does not contain a positive principle, the advancement of Scheduled Castes and Scheduled Tribes, and a negative principle, the maintenance of efficiency of administration. This analysis of the article does not truly comprehend its contents. - It contains a single principle, the A advancement of Scheduled Castes and Scheduled Tribes, but through modes and avenues which must not detract from the maintenance of an efficient administration. That limitation is imposed as a clear and positive condition. A generally acknowledged and long established principle for securing an efficient administration is throwing open the doors to general recruitment, either directly or by promotion, where the governing criterion is excellence and the emphasis is solely on quality. I he net of selection is spread far and wide, and the competitive best are collected, regardless of religion, race, caste, sex, descent, place of birth or residence. However, a quota of the posts may be r....
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.... applying the 50% rule. Mudholkar, J., on behalf of the majority, said: "We would like to emphasize that the guarantee contained in Art. 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities." It seems to me that apart from the impact that an excessive reservation in a particular year is bound to have on the general community of citizens, there is the further far-reaching significance this assumes in the context of Art. 335. The maintenance of efficiency of admini....
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....f administration. We have been taken through charts and statistics among other documentary material but the material placed before us does not clearly and definitely establish what it seeks to prove. In the circumstances, it is not possible to record a finding in favour of the petitioners on those points. G Accordingly, the writ petitions are dismissed but without any order as to costs. CHINNAPPA REDDY J.-In the name of Equality (of opportunity), we are asked to deny Equality (of opportunity), in these Writ Petitions. That we cannot do and that we will not do. If we do that we will be subverting the spirit and the sense of the Constitution. The (1) [1976] 1 S.C.R. 906. petitioners claim that their Fundamental Right to Equality of Opportunity in the matter of public employment, guaranteed by Art. 16(1) of the Constitution has been flouted by a series of orders and circulars issued by the Railway Board reserving posts at several levels and making various concessions in favour of members of the Scheduled Castes and the Scheduled Tribes. This has been done, it is claimed, at the cost of efficiency, though forbidden by Art. 335 of the Constitution. The plain answer of the responde....
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.... promote 'Fraternity, assuring the dignity of the individual", while the Right to Equality before the Law (Art. 14) and Equality of Opportunity n the matter of public employment (Art. 16) are guaranteed as Fundamental Rights and while the State is enjoyed by the Directive Principles of State Policy to promote the welfare of the p people by securing a social order in which justice, social, economic and political shall inform all the institutions of the national life Art. 38(1), to endeavour to eliminate inequalities in status, facilities and opportunities Art. 38 (2), and, to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good Art. 39(b) and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment Art. 39(c), pursuant to the very preamble and the provisions of the Constitution, special provisions have been made. in particular, for the protection and advancement of the Scheduled Castes and the Scheduled Tribes in recognition of their existing, low social and economic status and t....
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....enced by Constitutional instruments, events and r evolutions elsewhere, in search of a better world and wedded to the idea of justice, economic, social and political, to all, must receive a generous interpretation so as to give all its citizens the full measure of justice so proclaimed instead of 'the austerity of tabulated legalism'(1). And so, when the Constitutional instrument to be expounded is a constitution like the Indian Constitution, the expositors are to concern themselves not with words and mere words only, but, as much, with the philosophy or what we may call 'the spirit and the sense' of the Constitution. Here we do not have to venture upon a voyage of discovery to find the spirit and the sense of the Constitution; we do not have to look to any extraneous sources for inspiration and guidance; they may be sought and found in the Preamble to the Constitution, in the Directive Principles of State Policy, and other such provisions. See Minister of Home Affairs : Because Fundamental Rights are justiciable and Directive Principles are not, it was assumed, in the beginning, that Fundamental Rights held a superior position under the Constitution tha....
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....mble. the Directive Principles and other provisions of the Constitution. So, we have it that the Constitutional goal is the establishment of a Socialist Democracy which Justice, economic, social and political is secure and all men are equal and have equal opportunity. Inequality, whether of status, facility or opportunity, is to end, privilege is to cease and exploitation is to go. The under-privileged, the deprived and the exploited are to be protected and nourished so as to take their place in an egalitarian society. State action is to be towards those ends. It is in this context that Art. 16has to be interpreted when State action is questioned as contravening Art. 16. Let us now take a look at Art. 16(1) and Art 16(4). Art. 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. To the class of citizens who are economically and socially backward this guarantee will be no more than mere wishful thinking, and mere 'vanity....wind and confusion", if it is not translated into reality by necessary state action to protect and nurture such class of citizens so as to enable them to shake off the ....
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....positions. If the statement that 'Equality of opportunity must yield Equality of Results' and if the fulfillment of Articles 16(1) in Art. 16(4) ever needed a philosophical foundation it is furnished by Rawls' Theory of Justice and the Redress Principle. The interpretation of Arts. 16(1) and 16(4) came up for consideration in several cases before this Court. Perhaps the most important of them is State of Kerala & Anv. v. N. M. Thomas & Ors.,( [1976] 1 SCR 906 @930-933) which was decided by a Bench of seven Judges. The question was whether a certain rule which gave a longer period of exemption to members belonging to Scheduled Castes and Scheduled Tribes than to others from passing certain departmental tests in order to be eligible for promotion from the Post of Lower Division Clerk to that of Upper Division Clerk was not violative of Art. 16(1) of the Constitution. The Court by a majority of five to two upheld the rule as valid. Ray, C. J., observed: "The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency o....
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....for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone, can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having n nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality". xx xx xx xx "All legitimate methods are available for equality of opportunity in service und....
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....ribes. In other words the reservation Came to 65% which was far in excess of the 177% originally contemplated by the Reservation rule. In those circumstances, a Constitution Bench of this Court (Subba Rao, J. dissenting) declared the carry-forward rule bad. The Court did not strike down the carry-forward rule on the ground that it was inherently vicious or on the hypothetical consideration that it was bound to lead to vicious results in the future if permitted to operate without inhibition. The judgment of the Court was founded upon the viciousness exposed by the actual working of the rule in practice. The learned judges indicated that the repercussions of such a rule would have to be watched from year to year. Another case upon which the petitioners placed reliance was M. R. Balaji & Ors. v. State, of Mysore([1963] Suppl. I SCR 439). In that case the percent age of seats reserved in the Engineering and Medical colleges for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes came to 68% leaving only 32% of the seats for the merit pool. The Court held that generally and broadly reservation should not exceed 50%. The actual percentage was to d....
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....gh Court observing: "The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial re view. The reservation must be only for the purpose of giving adequate representation in the service to the Scheduled Castes, Scheduled Tribes and Backward Classes". "The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered". xx xx xx xx "There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of Art. 16(1). Reservation of appointments under Art. 16(4)cannot be struck down on hypothetical grounds or on imaginary possibilities. He who assails the reservation under that Art. must satisfactorily establish that there has been a violation of Art. 16(1)". The report of the Commissioner for Scheduled Castes and Scheduled Tribes for 1977-78 and the 'Reports on the progress made in the intake of Sche....