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2018 (9) TMI 2087
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....al Nos.4878-4879 of 2017, Special Leave Petition (Civil) No.31191 of 2015, Civil Appeal Nos.4876-4877 of 2017, Civil Appeal No.4881 of 2017, Special Leave Petition (Civil) No.33688 of 2015, Civil Appeal No.4882 of 2017, Contempt Petition (Civil) No.314 of 2016 In Special Leave Petition (Civil) No.4831 of 2012, Civil Appeal No.5247 of 2016, Civil Appeal No.11817 of 2016, Civil Appeal No.11816 of 2016, Civil Appeal No.11820 of 2016, Transfer Petition (Civil) Nos.608-609 of 2017, Civil Appeal No.4833 of 2017, Civil Appeal Nos.701-704 of 2017, Civil Appeal Nos.11822-11825 of 2016, Civil Appeal Nos.11837-11840 of 2016, Civil Appeal Nos.11842-11845 of 2016, Civil Appeal Nos.11829-11832 of 2016, Civil Appeal Nos.11847-11850 of 2016, Civil Appeal No.11828 of 2016, Contempt Petition (Civil) No.11 of 2017 In Special Leave Petition (Civil) No.19765 of 2015 @ Special Leave Petition (Civil) Nos.19765-19767 of 2015, Contempt Petition (Civil) No.13 of 2017 In Special Leave Petition (Civil) No.19767 of 2015 @ Special Leave Petition (Civil) Nos.19765-19767 of 2015, Special Leave Petition (Civil) No.10638 of 2017, Special Leave Petition (Civil) No....... Cc No.6821 of 2017, Special Leave Petition (C....
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....K.N. Rai, AOR, Mr. Pradeep Aggarwal, Adv., Mr. Vivya Nagpal, Adv., Mr. Karan Khanna, Adv., Mr. Arjun Aggarwal, Adv., Ms. Ruchi Kohli, AOR, Ms. Niranjana Singh, Adv., Mrs. Anil Katiyar, AOR, Mr. Rajesh Ranjan, Adv., Mr. B.V. Balram Das, Adv., Mr. Mukesh Kumar Maroria, AOR, Mr. Arvind Kumar Sharma, AOR, Mr. Dinesh Dwivedi, Sr. Adv., Mr. Krishnan Misra, Adv., Mr. Yasharth Kant, Adv., Mr. Nishant Singh, Adv., Mr. Subodeep Roy, AOR, Mr. Rituraj Biswas, Adv., Mr. Somnath Banerjee, Adv., Mr. P.S. Patwalia, Sr. Adv., Mr. Manan Kumar Mishra, Adv., Mr. Shuvodeep Roy, AOR, Mr. Rituraj Biswas, Adv., Ms. Natasha Dalmia, Adv., Ms. Harshika Verma, Adv., Mr. Sayooj Mohan Das, Adv., Dr. Ashutosh Garg, Adv., Mr. Dinesh Rattan Bhardwaj, AOR, Mr. P.S. Patwalia, Sr. Adv., Ms. Abha R. Sharma, AOR, Mr. D.S. Parmar, Adv., Ms. Sujeeta Srivastava, Adv., Mr. Ankit Mishra, Adv., Mr. Mahendra Singh, Adv., Mr. A. Mariarputham, Sr. Adv., Ms. Aruna Mathur, Adv., Mr. Avneesh Arputham, Adv., Ms. Anuradha Arputham, Adv., Mr. Yusuf Khan, Adv., M/s. Arputham Aruna and Co., Mr. Som Raj Choudhury, AOR, Mr. Krishan Singh Chauhan, AOR, Mr. Ajit Kumar Ekka, Adv., Mr. Ravi Prakash, Adv., Mr. Murari Lal, Adv., Mr. K.C. Lamba....
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....hobhit Tiwari, Adv., Mr. Umesh Pratap Singh, Adv., Ms. N. Annapoorani, AOR, Ms. Ruchi Kohli, AOR, Mrs. Anil Katiyar, AOR, Mr. A. Subba Rao, AOR, Mr. Krishan Singh Chauhan, AOR, Mr. Ajit Kumar Ekka, Adv., Mr. Ravi Prakash, Adv., Mr. Chand Kiran, Adv., Mr. Manoj Gorkela, Adv., Mr. Alok Singh, Adv., Mr. Sunil Mallan, Adv., Ms. Shashi Kiran, AOR, Mr. Anuj Saxena, Adv., Mr. Prakash Sharma, Adv., Mr. Satpal Singh, AOR, Mr. S.N. Bhat, AOR, Mr. Prashant Bhushan, AOR, Mr. Mukesh Kumar Maroria, AOR, Mr. Amit Anand Tiwari, AOR, Mr. Chandra Bhushan Prasad, AOR, Mr. Sushil Karanjkar, Adv., Mr. K.N. Rai, AOR, Mr. Kuldip Singh, AOR, Mr. Dinesh Dwivedi, Sr. Adv., Mr. P. Soma Sundaram, AOR, Mr. Chandan Kumar, Adv., Mr. Rituraj Choudhary, Adv., Ms. Sujaya Bardhan, Adv., Mr. Krishnam Mishra, Adv., Mr. Nishant Singh, Adv., Mr. Yasharth Kant, Adv., Mr. Yash Kapoor, Adv., Mr. Aniruddha P. Mayee, AOR, Ms. Kiran Suri, Sr. Adv., Mr. S.J. Amith, Adv., Ms. Aishwarya Kumar, Adv., Mrs. Vipin Gupta, AOR, Mr. Sailash Madiyal, AOR, Mr. Sudhanshu Prakash, Adv., Mr. V. Laxminarayan, Sr. Adv., Mr. Dinesh K. Garg, Adv., Mr. abhishek Garg, Adv., Mr. Dhananjay Garg, AOR, Mr. Deepak Mishra, Adv., Mr. Anil Kumar Mishra, ....
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....ent group of cases arises out of two reference orders - the first by a two-Judge Bench referred to in a second reference order, dated 15.11.2017, which is by a three-Judge Bench, which has referred the correctness of the decision in M. Nagaraj v. Union of India, (2006) 8 SCC 212, ("Nagaraj"), to a Constitution Bench. 2. The controversy in these matters revolves around the interpretation of the following Articles of the Constitution of India: "16. Equality of opportunity in matters of public employment.--- xxx xxx xxx (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class ....
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.... or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." 3. We have heard wide-ranging arguments on either side for a couple of days, raising several points. However, ultimately, we have confined arguments to two points which require serious consideration. The learned Attorney General for India, Shri K.K. Venugopal, led the charge for reconsideration of Nagaraj (supra). According to the learned Attorney General, Nagaraj (supra) needs to be revisited on these two points. First, when Nagaraj (supra) states that the State has to collect quantifiable data showing backwardness, such observation would be contrary to the nine-Judge Bench in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, ("Indra Sawhney (1)"), as it has been held therein that the Scheduled Castes and the Scheduled Tribes are the most backward among backward classes and it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 ....
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....rcise of reading down a constitutional amendment to make it valid, conducted in Nagaraj (supra), was constitutionally impermissible. Shri P.S. Patwalia, learned senior advocate, appearing on behalf of the State of Tripura, reiterated some of the submissions and added that Nagaraj (supra) and Chinnaiah (supra) cannot stand together, which is why Nagaraj (supra) is per incuriam as it does not refer to the judgment in Chinnaiah (supra) at all. 4. On the other hand, Shri Shanti Bhushan has defended Nagaraj (supra) by stating that when Nagaraj (supra) speaks about backwardness of the "class", what is referred to is not Scheduled Castes and Scheduled Tribes at all, but the class of posts. Hence, it is clear that backwardness in relation to the class of posts spoken of would require quantifiable data, and it is in that context that the aforesaid observation is made. He also argued, relying upon Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, Bombay North, (1965) 2 SCR 908, ("Keshav Mills"), that a Constitution Bench judgment which has stood the test of time, ought not to be revisited, and if the parameters of Keshav Mills (supra) are to be applied, it is clear that Nagaraj (supra)....
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....uled Castes and the Scheduled Tribes" in Article 16(4-A) would be read as "the Scheduled Castes and the Scheduled Tribes employees", this would become even clearer. Therefore, according to the learned senior advocate, continued social backwardness of the Scheduled Castes/Scheduled Tribes employees has necessarily to be assessed. While making promotions to higher level posts, it becomes clear that a Scheduled Caste/Scheduled Tribe employee may have cast off his backwardness when he/she reaches a fairly high stage in a service, for example, the post of Deputy Chief Engineer, at which stage, it would be open for the State to say that having regard to the absence of any backwardness of the Scheduled Caste/Scheduled Tribe employee at this stage, it would be expedient not to reserve anything further in posts above this stage. Shri Naphade, Shri Gopal Sankaranarayanan and other counsel followed suit and broadly supported the arguments of Shri Dhavan and Shri Dwivedi. 6. Since we are asked to revisit a unanimous Constitution Bench judgment, it is important to bear in mind the admonition of the Constitution Bench judgment in Keshav Mills (supra). This Court said: "[I]n reviewing....
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....ecisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court." (at pp. 921-922) 7. We may begin with the nine-Judge Bench in Indra Sawhney (1) (supra). In this case, the lead judgment is of B.P. Jeevan Reddy, J., speaking on behalf of himself and three other learned Judges, with Pandian and Sawant, JJ., broadly concurring in the result by their separate judgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented. The bone of contention in this landmark judgment was the Mandal Commission Report of 1980, which was laid before Parliament on two occasions - once in 1982, and again in 1983. However, no action was taken on the basis of this Report until 13.08.1990, when an Office Memorandum stated that after considering the said Report, 27% of the vacancies in civil posts and services under the Government of India shall be reserved for the Socially and Economically Backward Classes. This was followed by an Office Memorandum of 25.09.1991, by which, within the 27% of vacancies, preference was to be given to candidates belonging to the poorer sections of the Socially and Econo....
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....mmarized the judgments in Indra Sawhney (1) (supra), on the aspect of creamy layer as follows: "13. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] on the question of exclusion of the "creamy layer" from the backward classes, there was agreement among eight out of the nine learned Judges of this Court. There were five separate judgments in this behalf which required the "creamy layer" to be identified and excluded. 14. The judgment of Jeevan Reddy, J. was rendered for himself and on behalf of three other learned Judges, Kania, C.J. and M.N. Venkatachaliah, A.M. Ahmadi, JJ. (as they then were). The said judgment laid emphasis on the relevance of caste and also stated that upon a member of the backward class reaching an "advanced social level or status", he would no longer belong to the backward class and would have to be weeded out. Similar views were expressed by Sawant, Thommen, Kuldip Singh, and Sahai, JJ. in their separate judgments. 15. It will be necessary to refer to and summarise briefly the principles laid down in these five separate judgments for that would provide the basis for decision on Points 2 to 5. ....
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....n the case of agriculturists, the line is to be drawn with reference to the agricultural landholding. While fixing income as a measure, the limit is not to be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. There are again some offices in various walks of life - the occupants of which can be treated as socially advanced, without further inquiry", such as IAS and IPS officers or others in All India services. In the case of these persons, their social status in society rises quite high and the person is no longer socially disadvantaged. Their children get full opportunity to realise their potential. They are in no way handicapped in the race of life. Their income is also such that they are above want. It is but logical that children of such persons are not given the benefits of reservation. If the categories or sections above-mentioned are not excluded, the truly disadvantaged members of the backward class to which they belong will be deprived of the benefits of reservation. The Central Government is, therefore, directed (para 793) to identify and notify the "creamy layer" within fou....
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....level posts" or at least "near those levels", he has reached such a state. 19. Thommen, J. (paras 287, 295, 296, 323) observed that if some members in a backward class acquire the necessary financial strength to raise themselves, the Constitution does not extend to them the protection of reservation. The creamy layer has to be "weeded out" and excluded, if it has attained a "certain predetermined economic level". 20. Kuldip Singh, J. (para 385) referred to the "affluent" section of the backward class. Comparatively "such (sic rich) persons in the backward class - though they may not have acquired a higher level of education - are able to move in the society without being discriminated socially". These persons practise discrimination against others in that group who are comparatively less rich. It must be ensured that these persons do not "chew up" the benefits meant for the true backward class. "Economic ceiling" is to be fixed to cut off these persons from the benefits of reservation. In the result, the "means-test" is imperative to skim off the "affluent" sections of backward classes. 21. Sahai, J. (para 629) observed that the individuals among the coll....
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....next judgment with which we are directly concerned is the judgment in Chinnaiah (supra). In this case, the validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, was challenged, and dismissed by a five-Judge Bench of the Andhra Pradesh High Court by a majority of 4:1. The 15% reservation that was made in favour of the Scheduled Castes was further apportioned among four groups in varying percentages - Group A to the extent of 1%; Group B to the extent of 7%; Group C to the extent of 6%; and Group D to the extent of 1%. In the lead judgment on behalf of the Constitution Bench, Hegde, J. set out three questions for consideration as follows: "12. From the pleadings on record and arguments addressed before us three questions arise for our consideration: (1) Whether the impugned Act is violative of Article 341(2) of the Constitution of India? (2) Whether the impugned enactment is constitutionally invalid for lack of legislative competence? (3) Whether the impugned enactment creates subclassification or micro-classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?" Article 341....
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.... them either in public service or for obtaining admission in educational institutions. In our opinion, such a class cannot be subdivided so as to give more preference to a minuscule proportion of the Scheduled Castes in preference to other members of the same class. 40. Furthermore, the emphasis on efficient administration placed by Article 335 of the Constitution must also be considered when the claims of Scheduled Castes and Scheduled Tribes to employment in the services of the Union are to be considered." Finally, the Court held: "43. The very fact that the members of the Scheduled Castes are most backward amongst the backward classes and the impugned legislation having already proceeded on the basis that they are not adequately represented both in terms of clause (4) of Article 15 and clause (4) of Article 16 of the Constitution, a further classification by way of micro-classification is not permissible. Such classification of the members of different classes of people based on their respective castes would also be violative of the doctrine of reasonableness. Article 341 provides that exclusion even of a part or a group of castes from the Presidential List ....
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....f this judgment is the judgment in Nagaraj (supra). In this case, the addition of Articles 16(4-A) and 16(4-B) were under challenge on the ground that they violated the basic structure of the Constitution. After referring to the arguments of counsel for both sides, the Court held that equality is the essence of democracy and accordingly, part of the basic structure of the Constitution (See paragraph 33). The working test in the matter of application of this doctrine was then applied, referring to Chandrachud, J.'s judgment in Indira Nehru Gandhi v. Raj Narain & Anr., 1975 Supp SCC 1 (See paragraphs 37 and 38). After dealing with reservation and its extent, the Court then went into the nitty-gritty of the constitutional amendments and held as follows: "Whether the impugned constitutional amendments violate the principle of basic structure? 101. The key question which arises in the matter of the challenge to the constitutional validity of the impugned amending Acts is - whether the constitutional limitations on the amending power of Parliament are obliterated by the impugned amendments so as to violate the basic structure of the Constitution. 102. In the matter of a....
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....was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813], Ajit Singh (I) [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239 : AIR 1996 SC 1189], Ajit Singh (II) [(1999) 7 SCC 209 : 1999 SCC (L&S) 1239] and Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the "right". The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation w....
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....ation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385], the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481]. 122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 123. However, in this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State concerned will have to show in each ....
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.... xxx xxx xxx "633. In Indra Sawhney (1) [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385], creamy layer exclusion was only in regard to OBC. Reddy, J. speaking for the majority at SCC p. 725, para 792, stated that " [t]his discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes". Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes......" Raveendran, J., in a separate judgment, while referring to Nagaraj (supra), held as follows: "665. The need for exclusion of creamy layer is reiterated in the subsequent decisions of this Court in Ashoka Kumar Thakur v. State of Bihar [(1995) 5 SCC 403 : 1995 SCC (L&S) 1248 : (1995) 31 ATC 159], Indra Sawhney v. Union of India [(1996) 6 SCC 506 : 1996 SCC (L&S) 1477] and M. Nagaraj v. Union of India [(2006) 8 SCC 212]. When Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] has held that creamy layer should be excluded for....
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....ve of Article 14 as the same would amount to tinkering with the List, which, as was held, could be done only by Parliament and not by State Legislatures. In our opinion, the true ratio of the judgment flows from a construction of Article 341. It is true that the Andhra Pradesh Act in question was also found to be violative of Article 14. We may only state that Chinnaiah (supra) dealt with a completely different problem, apart from dealing with a State statute and not a constitutional amendment, as was dealt with in Nagaraj (supra). 14. This brings us to whether the judgment in Nagaraj (supra) needs to be revisited on the other grounds that have been argued before us. Insofar as the State having to show quantifiable data as far as backwardness of the class is concerned, we are afraid that we must reject Shri Shanti Bhushan's argument. The reference to "class" is to the Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that Nagaraj (supra) has, in unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes. We are afraid....
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....la & Anr. v. N.M. Thomas and Ors., (1976) 2 SCC 310. This case was concerned with a test-relaxation rule in promotions from lower division clerks to upper division clerks. By a 5:2 majority judgment, the said rule was upheld as a rule that could be justified on the basis that it became necessary as a means of generally giving a leg-up to backward classes. In paragraph 124, Krishna Iyer, J. opined: "124. A word of sociological caution. In the light of experience, here and elsewhere, the danger of "reservation", it seems to me, is threefold. Its benefits, by and large, are snatched away by the top creamy layer of the "backward" caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the "weaker section" label as a means to score over their near-equals formally categorised as the upper brackets. Lastly, a lasting solution to the problem comes only fro....
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....hability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation. 16. We do not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342. Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that Constitutional Courts, applying Articles 14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group or sub-group in the Presidential List may be kept out by Parliament on application of the creamy layer principle. One of the most important principles that has been frequently applied in constitutional law is t....
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....dia & Ors., (2017) 4 SCC 620 (two-Judge Bench) (See paragraphs 17 to 22). Further, Nagaraj (supra) has been approved by larger Benches of this Court in: a. General Categories Welfare Federation v. Union of India, (2012) 7 SCC 40 (three-Judge Bench) (See paragraphs 2 and 3). b. Rohtas Bhankar v. Union of India, (2014) 8 SCC 872 (five-Judge Bench) (See paragraphs 6 and 7). In fact, the tests laid down in Nagaraj (supra) for judging whether a constitutional amendment violates basic structure have been expressly approved by a nine-Judge Bench of this Court in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and Ors., (2007) 2 SCC 1 (See paragraphs 61, 105, and 142). The entirety of the decision, far from being clearly erroneous, correctly applies the basic structure doctrine to uphold constitutional amendments on certain conditions which are based upon the equality principle as being part of basic structure. Thus, we may make it clear that quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj (supra) on the inadequacy of representation, which can be tested by the Courts. We may further add that the data would be relatable....
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....wo things that are different from Article 16(4-A) as already enacted. First and foremost, it clarifies that the Scheduled Castes and the Scheduled Tribes that are notified under Articles 341 and 342 shall be deemed to be backward, which makes it clear that no quantifiable data is necessary to determine backwardness. Secondly, instead of leaving it to the States to determine on a case to case basis whether the Scheduled Castes and the Scheduled Tribes are adequately represented in any class or classes of posts in the services under the State, the substituted provision does not leave this to the discretion of the State, but specifies that it shall be to the extent of the percentage of reservation provided to Scheduled Castes and Scheduled Tribes in the services of the State. This amendment was necessitated because a Division Bench of this Court in U.P. Power Corporation Ltd. (supra) had struck down Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Rule 8A of the U.P. Government Servants Seniority Rules, 1991, which read as under: "3. Reservation in favour of Scheduled Castes, Schedu....
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....A) as enacted, which must be contrasted with Article 330. We may only add that Article 46, which is a provision occurring in the Directive Principles of State Policy, has always made the distinction between the Scheduled Castes and the Scheduled Tribes and other weaker sections of the people. Article 46 reads as follows: "46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.-The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation." This being the case, it is easy to see the pattern of Article 46 being followed in Article 16(4) and Article 16(4-A). Whereas "backward classes" in Article 16(4) is equivalent to the "weaker sections of the people" in Article 46, and is the overall genus, the species of Scheduled Castes and Scheduled Tribes is separately mentioned in the latter part of Article 46 and Article 16(4-A). This is for the reason, as has been pointed out by us earlier, that the Scheduled Castes and t....
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....lity test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (1) (supra), there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question. For this purpose, the contrast of Article 16(4-A) and 16(4-B) with Article 330 of the Constitution is important. Article 330 reads as follows: "330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People.-(1) Seats shall be reserved in the House of the People for- (a) the Scheduled Castes; (b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and] (c) the Scheduled Tribes in the autonomous districts of Assam. ....