TaxTMI 
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1961 (4) TMI 121
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....l question of law, namely, the scope of Art. 16(4) of the Constitution. It is with this certificate that the appeal has been brought to this court, and the only question which it raises for our decision is about the scope and effect of Art. 16(4). This question is of considerable public importance though the dispute raised by it lies within a very narrow compass. 2. In the railway services there are four grades of Court Inspectors included in Class III, (1) Court Inspectors on ₹ 200 - 300, (2) Court Inspectors on ₹ 260 - 350, (3) Chief Court Inspectors on ₹ 300 - 400, and (4) Chief Court Inspectors on ₹ 360 - 500. It appears that Inspectors of the first category are recruited partly directly and partly by selection from other categories of railway services. To the remaining three grades appointments are made by promotion and they are classified as selection posts. Selection to these grades is made by a committee of officers constituted for the purpose. In respect of non-selection posts seniority in service is the qualification but in regard to selection posts seniority is only one of the qualifications for promotion to such posts; suitability to promotion i....
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....operative and unconstitutional in that they were not justified by Art. 16(4). He alleged that a reading of Arts. 16, 335, 338 and 339 would show that the Constitution draws a clear distinction between Scheduled Castes or Tribes on the one hand and backward classes on the other and so it was urged by him that the impugned circulars were illegal. The petition further urged that the safeguard provided by Art. 16(4) applied only to reservation of posts at the stage of appointment and not for reservation of posts for promotion after appointment and so the circulars were outside the provisions of Art. 16(4) and as such contravened Art. 16(1). The petition expressed the apprehension that if the circulars are implemented the respondent would be reverted and that would cause great loss both financially and in status to him. It is on these allegations that the respondent prayed for the issue of a writ in the nature of mandamus directing the appellants to forbear from implementing the two impugned circulars. 6. These pleas were denied by the appellants. It was alleged by them that the expression "backward class" appearing in Art. 16(4) would include not only the Scheduled Castes an....
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.... and 1958 and these should be carried forward to be filled in 1959. Thus it would be noticed that the effect of this circular was to prescribe a quota of reservation for selection posts and to give effect to this reservation retrospectively from January 4, 1957. In a sense it is this retrospective operation of the circular which appears to be the main cause of the present dispute. 9. On June 12, 1959, another circular was issued giving guidance and directions as to how the earlier circular should be implemented. This circular directed, inter alia, by paragraphs 2(ii) and 2(iii) as follows : "2(ii). The Special Rosters in force for S.C. & S.T. in direct recruitment categories are to be followed to work out the number of posts to be reserved for S.C. & S.T. in promotions made in Selection Grades and for promotion from Class IV to Class III. (iii). As the Board's orders have retrospective effect from 4th January, 1957, it is necessary that the promotions made in each selection grade on your Division/Office from 4th January, 1957, are reviewed and the number of posts due to S.C. & S.T. worked out applying the Roster referred to in item (ii) above." 10. It appears ....
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....word "appointments" and "posts" were outside service posts, and so promotion to posts inside the service could not be said to be covered by Art. 16(4). It appears from the judgment of the High Court that if the word "posts" had been construed by the High Court as including posts in civil services then it might have come to a different conclusion on the question about the validity of the impugned circulars. It, however, held that the word "posts" was a term of art and it definitely excluded the posts in civil services. That is how the High Court felt that the impugned circulars which authorised reservation of posts falling inside civil services were not covered by Art. 16(4). Since they were not covered by Art. 16(4) they clearly contravened Art. 16(1) and (2) and as such ultra vires. That in brief is the result of the findings recorded by the High Court. 12. The first question which falls to be considered is whether Art. 16(1) and (2) refer to promotion or whether they are confined to the initial appointment to any post in civil service. In the appeal before us the appellants and the respondent both conceded that cases of promotion fell with....
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....yment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression "matters relating to employment" in Art. 16(1). Similarly, appointment to any office which means appointment to an office like that of the Attorney-General or Comptroller and Auditor-General must mean not only the initial appointment to such an office but all the terms and conditions of service pertaining to the said office. What Art. 16(1) guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us. 15. This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more. Article 16(1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointme....
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....firmatively by Art. 16(1). Discrimination is a double-edged weapon; it would operate in favour of some persons and against others; and Art. 16(2) prohibits discrimination and thus assures the effective enforcement of the fundamental right of equality of opportunity guaranteed by Art. 16(1). The words "in respect of any employment" used in Art. 16(2) must, therefore, include all matters relating to employment as specified in Art. 16(1). Therefore, we are satisfied that Mr. Sen is right when on behalf of the Attorney-General he conceded that promotion to selection posts is included both under Art. 16(1) and (2). Broadly stated the Bombay and the Patna High Courts support the concession made by Mr. Sen (Vide : Pandurang Kashinath More v. The Union of India [ MANU/MH/0047/1959 : (1958)IILLJ38Bom .]; Sukhnandan v. State I.L.R(1956) . 35 Pat. 1 whereas the Allahabad High Court is against it (vide : Moinuddin v. State of Uttar Pradesh MANU/UP/0128/1960 : AIR1960All484 ). 18. In this connection we ought to add that Civil Appeal No. 579 of 1960 [Union of India v. Pandurang Kashinath More.] in which the Union of India challenged the correctness of the Bombay decision was set down ....
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.... of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. For historical reasons which are well known the advancement of socially and educationally backward classes has been treated by the Constitution as a matter of paramount importance and that may have to be borne in mind in construing Art. 16(4). 22. On one point in relation to the construction of Art. 16(4) the parties are in agreement. It is common ground that Art. 16(4) does not cover the entire field covered by Art. 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Art. 16(1) and (2) do not fall within the mischief of non-obstante clause in Art. 16(4). For instance, it is not denied by the appellants that the conditions of service relating to employment such as salary, increment, gratuity, pension and the age of superannuation there can be no exception even in regard to the backward classes of citizens. In other words, these matter....
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....ession "civil post" in Art. 311(1) means a civil post outside the services. Article 335 to which we have referred uses the word "posts" in the same sense. But, when we go to Art. 336 the word "posts" in the context means posts in the services therein enumerated. The position disclosed by the corresponding provisions of the Constitution Act of 1935 is substantially the same. Sections 240 and 241 for instance use the word "posts" in the sense of ex-service posts; whereas s. 246 refers to civil posts in the sense of posts inside the services. In our opinion, it would, therefore, be unreasonable to treat the word "posts" as a term of art and to clothe it inexorably with the meaning of ex-cadre posts. It is the context in which the word "posts" is used which must determine its denotation. 25. What does the context of Art. 16(4) indicate ? That is the next question which we must consider. Article 16(4) clearly shows that the power conferred by it can be exercised in cases where the State is of the opinion that any backward class of citizens is not adequately represented in the services under it. In other words, the opinion form....
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....clause on which Mr. Chatterjee relies in construing the word "posts" as meaning posts in the services itself shows that direct promotion to selection posts by reservation is not permissible under Art. 16(4). His argument is that if it is discovered that any backward class of citizens is not adequately represented in the services under the State the State may no doubt seek to introduce the balance by giving adequate representation to the backward class by making reservations for initial appointment. It may decide the proportion of the said reservation in order to introduce the balance and then give effect to it by making adequate number of appointments by reservation at the initial stage. If this process by itself appears to the State to be slow and tardy it may even reserve selection posts but this reservation can be given effect to again by promoting suitable backward candidates to the said posts after they fall vacant and making a proportionately larger number of appointments at the initial stage. In any case reservation must work from the bottom and reservation cannot be permitted to allow direct appointment to selection posts as the impugned circulars seek to do. It m....
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....numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service has to be judged; and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the state may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such posts may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively. If it is conceded that "posts" in the context refer to posts in the services and that selection posts may be reserved but should be filled only in the manner suggested by the respondent then we see no reason for holding that the reservation of selection posts cannot be implemented by promoting suitable members of backward class of citizens to such posts as the circulars intend to do. 28. We must in this connection consider an alternative argument that the word "posts" must refer not to selection posts but to posts filled by initial appo....
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.... to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Art. 335. Reservation of appointments or posts may theoretically and conceivably mean some impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts. It is also true that the reservation which can be made under Art. 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the....
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....ments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State." 34. Before I turn to the actual words used in the Article I must refer to what I consider is implicit in that Article. The Article provides for reservation of appointments or posts and it seems to me obvious that it is implicit in the Article that the reservation of appointments or posts cannot go to the length of reserving all appointments or posts or even to the length of reserving a majority of them. The reason why I say that all appointments or posts cannot be reserved under Art. 16(4) - (though that would be the result if the widest possible interpretation is given to the words used in the Article) - is that if all appointments or posts could be reserved under Art. 16(4) it would mean complete destruction of the fundamental right guaranteed under Art. 16(1). It could not be the intention of the Constitution-makers that the proviso or exception in Art. 16(4) should be so used as to destroy completely the fundamental right enshrined in Art. 16(4). Nor do I think that it is permissible under Art. 16(4) to reserve a m....
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.... in the services. Does the word "adequate" imply only numerical representation in the services or does it imply something more than that ? The three meanings of the word "adequate" given in the Shorter Oxford English Dictionary are (i) equal in magnitude and extent; (ii) commensurate in fitness, sufficient, suitable; and (iii) fully representing (logic). It seems to me that it is the second meaning (namely, sufficient) which properly applies to the words "adequately represented" as used in this Article. "Sufficient" has two meanings : (i) Sufficing, adequate, esp. in amount or number to the need, (ii) enough, adequate quantity. Therefore, when Art. 16(4) says that reservation may be made in order that any backward class of citizens may be adequately represented in the services it means that reservation may be made in order to make the number of any backward class sufficient in the services under the State. These words do not in my opinion covey any idea of quality and can only mean sufficient quantitative representation in the services under the State. If the intention of the Constitution-makers was that there may also be reservation in vario....
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.... centum. In order therefore to reach the ten per centum of the total number of posts in the service by the method of reservation of appointments, the period taken would be roughly 34 years. This period may be considered too long and therefore the State may decide to adopt the other way, i.e., the reservation of posts; and suppose it is decided to reserve ten per centum of the posts, i.e., 100 in all. It will then be open to the State having reserved 100 posts in this particular service for backward classes to say that till these 100 posts are filled up by backward classes all appointments will go to them provided the minimum qualifications that may be prescribed are fulfilled. Suppose further that it is possible to get annually the requisite number of qualified members of backward classes equal to the annual appointments, the representation of the backward classes will be made adequate in about four years. Once the representation is adequate there will be no power left for making further reservation. Thus by the method of reservation of appointments the representation is made adequate in a long period of time while by the method of reserving posts the representation is made adequat....
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....e, would no longer be available. It cannot therefore be said that on the interpretation I have placed on Art. 16(4) the use of the word "posts" therein becomes superfluous. 38. I have already said that if the intention was not only to make reservation in the service as a whole whether by the method of reserving appointments or by the method of reserving posts but also to include reservation in various grades in which a service may be divided, the words of Art. 16(4) would have been different. I may in this connection refer to Art. 335 again, which lays down that the claims of the scheduled castes and the scheduled tribes (which are part of backward classes of citizens) shall be considered consistently with the maintenance of efficiency of administration. It seems to me that reservation of posts in various grades in the same service is bound to result, for obvious reasons, in deterioration in the efficiency of administration; and reading Art. 335 along with Art. 16(4) which to my mind is permissible on the principle of harmonious construction (see Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha [MANU/SC/0021/1958 : [1959] 1 S.C.R.806.]), it could not be the intention of th....
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....delivered proceed on the basis that the scope of the limitation on the equality of opportunity which is provided in Art. 16(4) is not co-extensive with the freedom guaranteed by Art. 16(4). The only question therefore is in what respect is Art. 16(4) narrower than Art. 16(4). In considering this the rule of construction should be borne in mind that a restriction on a guaranteed freedom should be narrowly construed so as to afford sufficient scope for the freedom guaranteed. 42. The judgment of the learned Judge now under appeal proceeds on the basis that the expression "posts" in Art. 16(4) was a reference to what are termed in service parlance 'ex-cadre posts' and not posts in the service. Mr. Chatterji's submission was that the learned Judge had no basis for importing the nomenclature and the classifications to be found in Part XIV into Part III dealing with fundamental rights. In particular, Mr. Chatterji quarrelled with the statement by the learned Judge that the expression 'appointments and posts' occurring in Art. 16(4) were "virtually terms of art which had to be interpreted and understood in the light of the legislative history of the con....
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....ween Part XIV and the provisions for reservation in favour of the backward communities in Art. 16(4) setting out as it does the principles that should guide the State in the matter of reservation in the Services which could obviously be only a reference to that provided for by Art. 16(4). Art. 335 runs : "The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State." 45. In this Article, at any rate, it cannot be contended, and I did not understand Mr. Chatterji to contend, that 'posts' had any reference to 'posts in the services'. If it were so then in my judgment it would follow that the phraseology employed in this Article which deals with the same subject as that dealt with by Art. 16(4) throws light on and explains the meaning of the expression 'posts' in Art. 16(4). It is only necessary to add that Art. 320(4) which runs : "Nothing in clause (3) shall require a Public Service Commission to be consulted as respects....