PETITIONER:
C. A. RAJENDRAN
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
29/09/1967
BENCH:
RAMASWAMI, V.
WANCHOO, K.N. (CJ)
BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION:
1968 AIR 507 1968 SCR (1) 721
ACT
Constitution of India, Arts. 14 and 16(4)-Whether Art. 16(4) confers a right on scheduled castes and tribes or only an enabling provision-Provision made for no reservation of posts for backward classes in Class I and II posts only in lower class service whether discriminatory.
HEADNOTE
By an office memorandum of the Central Government issued on the 4th January 1957, in respect of posts filled by promotion through competitive examinations limited to departmental candidates, reservations at 12-1/2% and 5-1/2% of vacancies were provided for Scheduled Castes and Scheduled Tribes respectively. By an earlier office memorandum of the 7th May 1955, in regard to promotions on the basis of seniority subject to fitness and those by selection, no reservations were provided but certain concessions were allowed to members of the backward classes. After the decision of the Supreme Court in the case of the General Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586, the matter was reviewed by the Central Government and it was advised that there was no constitutional compulsion to make reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion and the question whether the reservation should be continued or withdrawn was entirely a matter of public policy. Subsequent to the review, by a further office memorandum issued on the 8th November 1963 the Government notified its decision inter alia, that there would be no reservation for Scheduled Castes and Scheduled Tribes in appointments made by promotions to Class I and II services as these required a higher degree of efficiency and responsibility; but that such reservations would continue in certain grades and services in Class III and Class IV. The petitioner was a class III employee of the Railway Board Secretariat Service and claimed promotion to the post of a Section Officer in Class II on the basis of the provision for reservations made in the Government’s Memorandum of January 4, 1957. By a writ petition under Art. 32 of the Constitution he challenged the latest office memorandum of November 8, 1963 and prayed for a restoration with retrospective effect of the office memoranda issued on May 7, 1955 and January 4, 1957. It was contended on his behalf, inter alia (i) that the impugned order violated the guarantee given to the backward classes under Art. 16(4) of the Constitution; Art. 16(4) was not an exception engrafted on Art. 16 but was in itself a fundamental right granted to the Scheduled Castes and Scheduled Tribes. (ii) that the order was discriminatory,, because (a) it made a discrimination by making Provision for reservation in certain types of Class III and Class IV services only and not in Class II and I Services, (b) reservation was kept within Class III and Class IV for appointments for which there was direct recruitment and for promotions made by (1) selection, or (2) on the
722 result of a competitive examination limited to departmental candidates, but no reservation was provided for in respect of appointments made by promotion on the basis of senioritycum-fitness; and (c) there was discrimination between the employees belonging to Scheduled Castes and Scheduled Tribes in the Railway Service and similar employees in the Central Secretariat Service on the ground that a competitive departmental examination for promotion to the grade of Section Officers was not held by the Railway Board for the years 1955-63 but such an examination was held for the Central Secretariat Service and 74 employees belonging to the Scheduled Castes and Scheduled Tribes secured the benefit of the provisions for reservation. Held: (i) Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of a backward class of citizens which, in its opinion, is not adequately represented in the Services of the State [734 B- D]. General Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586, referred. (ii) The impugned order was not discriminatory. (a) In view of the requirement of efficiency in the higher echelons of service it is obvious that the classification made in the impugned order between Classes I and II where no reservation was made and Classes III and IV where reservation was provided for, was reasonable. [735 B, C]. (b) It is well-established that there can be a reasonable classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonable [734 H-735 A]. Mervyn Coutindo v. Collector of Customs, Bombay, [1966] 3 S.C.R 600 and S. G. Jaisinghani v. Union of India, [1967] 2 S.C.R. 703 referred to. (c) The petitioner being an employee of the Railway Board was governed by the rules applicable to the officers in the Service to Which he belonged. The employees of the Central Secretariat Service belonged to a different class and it could not be said that there was any discrimination against the petitioner in violation of Art. 14. [734 F-G].
JUDGMENT
ORIGINAL JURISDICTION: Writ Petition No. 11 of 1967. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. N. C. ChatterJee, K. B. Rohtagi and S. BalakriShnan, for Petitioner. C. K. Daphtary, Attorney-General, A. S. Nambiar, R. H. Dhebar and S. P. Nayar, for the respondents. K. B. Rohtagi, for the interveners.
723 Ramaswami, J. In this case the petitioner, C. A. Rajendran has obtained rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under Art. 32 of the Constitution should not be issued for quashing the office Memorandum dated November 8, 1963 which is Annexure C’ to the Writ Petition, and for directing respondent No. 1 to restore the orders passed by it in Office Memorandum No. 2 /11/ 55-RPS dated May 7, 1955 and No. 5/4/55-SCT-(1) dated January 4, 1957. Cause has been shown by the Attorney-General on behalf of the respondents to whom notice of the rule was ordered to be given. The petitioner is a permanent Assistant in Grade IV (Class 11, non-gazetted-ministerial) of the Railway Board Secretariat Service. He was initially appointed as Accounts Clerk on February 6, 1953 in Southern Railway. He was appointed as an Assistant on October 22, 1956 in the Railway Board and confirmed as Assistant on April 1, 1960. The payscale of the Assistant’s grade is Rs. 210-530. The next post to which the petitioner claims promotion is that of the Section Officer in the same service. The post of Section Officer is classified as Class II, Grade 11, Gazetted and it carries a pay-scale of Rs. 350-900. The Railway Board Secretariat Service (Reorganisation and Reinforcement) Scheme was drawn up in consultation with the Ministry of Home Affairs and introduced with effect from December 1, 954 with the approval of the Union Public Service Commission. According to the new Scheme the Railway Board Secretariat Service consists of the following grades: "Grade IV-Assistants in the scale of Rs. 210-530
(Class III non-gazetted) (to which Petitioner
belongs). Grade III-Section Officers in the scale of Rs. 350-
900 (Class II gazetted)-with effect from 1-7-1959. (Section Offcers grade). Grade II-Amalgamated with effect from 1-7-1959 as Section
Officers grade. Grade I-Assistant Directors/Under Secretaries in the scale of Rs. 900-1,250. (Grade III was called, before 1-7-59, Assistant Superintendent in the scale of Rs. 275-500 and the scale of Grade II Superintendents was Rs. 530--800)." L/P(N)7SCI-7 724 Recruitment to permanent vacancies of Grade III of the Railway Board Secretariat Service are made by the following three methods as per para 18 of the Railway Board Secretariat Service Scheme:
"(a) 33-1/3% by direct recruitment on the
results of the combined Examinations held by
the UPSC for the IAS, IPS & other Central
Services Class I and Class 11.
(b) 33-1/3% by promotion on the basis of
seniority subject to the rejection of the
unfit.
(c) 33-1/3% by limited competitive
examination on the basis of a test to be
prescribed and conducted, by the UPSC for
Assistants/Stenographers Grade 11 between 5
years and 10 years of service in the grade in
the Board’s office.
Note-For the years 1961-65 only 1/4 of the
substantive vacancies were to be filledby
direct recruitment on the results of the
competitive examination under item (a) above.
In 1955 the Government issued Office
Memorandum dated May 7, 1955 (Annexure ’E’ to
the Writ Petition) whereby it reaffirmed its
decision that there will be no reservation for
Scheduled Castes and Scheduled Tribes in posts
filled by promotion but that certain
concessions were to be given to Scheduled
Castes and Scheduled Tribes in the matter of
promotion. The concessions were as follows:
"(i) While there would be no reservation for
Scheduled Castes and Scheduled Tribes in
regard to vacancies filled by promotion, where
the passing of tests or examinations had been
laid down as a condition for promotion, the
authority prescribing the rules for the tests
or examinations might issue suitable
instructions to ensure that the standard of
qualification in respect of members of
Scheduled Castes and Scheduled Tribes was not
unduly high.
(ii) Where promotions were made on the basis
of seniority subject to fitness, cases of
persons belonging to Scheduled Castes and
Scheduled Tribes were to be judged in a
sympathetic manner without applying too rigid
a standard and cases of supersession of
Scheduled Castes and Scheduled Tribes
employees reviewed at a high level viz., if a,
Scheduled Caste/Scheduled Tribes employee was
superseded in the matter of promotion to Class
I and II posts filled on the basis of
seniority subject to fitness, the prior orders
of the Minister or
725
Deputy Minister concerned were to be taken.
If, however, the supersession was in a Class
III or IV post filled on the basis of
seniority subject to fitness, the matter was
to be reported to the Minister or Deputy
Minister concerned within a month of the
decision. (Ministries were given powers to
modify this procedure to suit their
requirements with the approval of the Minister
in charge)" In 1957 the Government decided that there should be provision for reservations for Scheduled Castes and Scheduled Tribes in all grades of services filled by promotion through competitive examination limited to departmental candidates, the quantum of reservation being 12-1/2% for Scheduled Castes and 5% for Scheduled Tribes. The order of the Government is contained in Office Memorandum dated January 4, 1957, Annexure ’D’ to the Writ Petition. In April, 1959 the Ministry of Railways issued an order laying down that in the case of any promotion from Class IV to Class III and from Class III to Class 11 and for any promotion from one grade to another in Class 111, where such promotions were made by "selection" and not on the basis of " seniority-cum-fitness", there should be reservation for the Scheduled Castes and Scheduled Tribes on the same scale as in the direct recruitment. This order was challenged by Rangachari by a Writ Petition under Art. 226 of the Constitution which was allowed by the Madras High Court and a writ in the nature of mandamus was granted restraining the Railway Authorities from giving effect to the order of the Railway Board directing reservation of selection posts in Class III of the Railway service in favour of the members of the Scheduled Castes and Scheduled Tribes. An appeal was brought to this Court by the General Manager, Southern Railway (The General Manager, Southern Railway v. Rangachari)(1) against the judgment of the Madras High Court and it was held in the majority judgment of this Court that the impugned circulars of the Railway Board were within the ambit of Art. 16(4) of the Constitution and the appeal must succeed. Consequent upon the judgment in this case the matter was reviewed by the Union Government and it was advised that there was no constitutional compulsion to make reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion and the question whether the reservation should be continued or withdrawn Was entirely a matter of public policy. The Union Government came to the conclusion that there should not be any special treatment of Government servants belonging to Scheduled Castes and- Scheduled Tribes in the matter of promotions particularly in promotion to Class I and Class II services which require higher degree of efficiency and (1) [1962] 2 S.C.R. 586. L/P(W)78CI-7(a) 726 responsibility. As a result of this review of the matter the Central Government issued a memorandum dated November 8, 1963 (Annexure ’C’ to the Writ Petition) which reads as follows:
"In posts filled by promotion through
competitive examinations limited to
departmental candidates, reservations at 12-
1/2 per cent and 5-1/2 per cent of vacancies
were provided for Scheduled Castes and
Scheduled Tribes respectively vide this
Ministry’s O.M. No. 5/4/ 55-SCT(1) dated 4th
January, 1957 and para 3(iii) of the Brochure
issued with O.M. No. 1/2/61-SCT(1) dated 27th
April, 1962. In regard to promotions on the
basis of seniority subject to fitness, and
those by selection no reservations were
provided, but certain concessions were allowed
to persons belonging to scheduled ca stes and
scheduled tribes vide Ministry of Home Affairs
Office Memorandum No. 2/11/55-RPS dated 7th
May, 1955 (as amended from time to time), No.
1/1/59-RPS dated 17th March, 1958 and No.
1/4/60-RPS dated 5th March 1960 and paras 20
and 21 of the aforesaid brochure.
2. The Government of India have reviewed
their policy in regard to reservations and
other concessions granted to scheduled castes
and scheduled tribes in posts filled by
promotion and have, in supersession of all
previous orders in this regard, decided as
follows:-
(1) Class I and Class II appointments:
(a) There will be no reservation for
Scheduled Castes and Scheduled Tribes in
appointments made by promotion to a Class 11
or a higher service of post whether on the
basis of seniority-cum-fitness, selection, or
competitive examination limited to
departmental candidates.
(b) In the case of promotions made in or to
Class I or Class II on the basis of seniority
subject to fitness, cases involving
supersession of Scheduled Castes and Scheduled
Tribe Officers, will, however, continue to be
submitted for prior approval of the Minister
or Dy. Minister concerned.
(2) Class III and Class IV appointments:
(a) In the cases of Class III and Class IV
appointments, in grades or services to which
there is no direct recruitment whatever, there
will be reservation at 121 and, 5 per cent
vacancies for Scheduled Castes and Scheduled
tribes respectively in promotions made by (i)
selection or (ii) on the results of
competitive examinations limited to
departmental candidates.
727
(b) Lists of Scheduled Castes and Scheduled
Tribes Officers should be drawn up separately
to fill the reserved vacancies; officers
belonging to these classes will be adjudged
separately and not along with other officers
and if they should be included in the list
irrespective of their merit as compared to
that of the other officers’. Promotions
against reserved vacancies will continue to be
subject to the candidates satisfying the
prescribed minimum standards.
(e) There will be no reservation in
appointments made by promotion on the basis of
seniority subject to fitness; but cases
involving supersession of Scheduled Caste and
Scheduled Tribe Officers, if any, will as at
present be reported within a month to the
Minister or Deputy Minister concerned for
information.
3. The above decisions take effect from the
date
of issue of these orders except where
selections by the Departmental Promotion
Committee under the old orders have already
been made, or rules for a competitive
examination published.
The contention of the petitioner is that this
Office Memorandum (Annexure ’C’ to the Writ
Petition) violates the guarantee given to
backward classes under Art. 16(4) of the
Constitution and is illegal and ultra vires.
It was alleged that the impugned Office
Memorandum (Annexure ’C’) made a
discrimination by making provision for
reservations in certain types of Class III and
IV Services only and not in Class II and I
Services, and the classification was
discriminatory and there was no rational nexus
sought to be achieved by the impugned Office
Memorandum. The argument was also stressed
that, Art’ 16(4) was not an exception
engrafted on Art. 16, but was in itself a
fundamental right granted to Scheduled Castes
and Scheduled Tribes and backward classes and
as such it was untrammeled by any other
provision of the Constitution. The petitioner
accordingly prays for the grant of a writ in
the nature of mandamus quashing the Office
Memorandum (Annexure ’C’) and directing
respondent No. 1 to restore retrospectively
the orders made in its Office Memoranda No. 2/
11/55-R.PS dated May 7, 1955 and No. 5/4/55-
SCT-I dated January 4, 1957 and, to consider
the claim of the petitioner as member of the
Scheduled taste for promotion as Section
Officer in the Railway Board Secretariat
Service.
Article 14 of the Constitution states:
"The State shall not deny to any person
equality before the law or the equal
protection of the laws within the territory of
India."
728
Article 15 provides:
"(1). The State shall not discriminate
against any citizen on grounds only of
religion, race, caste, sex, place of birth or
any of them.
(2)
(3)
(4) Nothing in this article or in clause (2)
of Article 29 shall prevent the State from
making any special provision for the
advancement of any socially and educationally
backward classes of citizens or for the Sche-
duled Castes and the Scheduled Tribes."
Article 16 is to the following effect:
"(1) There shall be equality of opportunity
for all citizens in matters relating to
employment or appointment to any office under
the State.
(2) No citizen shall, on grounds only of
religion, race, caste, sex, descent, place ’of
birth, residence or any of them, be ineligible
for, or discriminated against in respect of,
any employment or office under the State.
(3)
(4) Nothing in this article shall prevent
the State from making any provision for the
reservation of appointments 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.
(5)
Article 335 reads as follows:
"The claims 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." The first question to be considered in this case is whether there is a constitutional duty or obligation imposed upon the Union Government to make reservations for Scheduled Castes and Scheduled Tribes either at the initial stage of recruitment and at the stage of promotion in the Railway Board Secretariat Service Scheme. The relevant law on the subject ’is well-settled,. Under Art. 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Articles 14, 15 and 16 from part of the 729 same constitutional code of guarantees and supplement each other. In other words, Art. 16 of the Constitution is only an incident of the application of the concept of equality enshrined. in Art. 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows therefore that there can be a reasonable classification of the employees for the purpose of appointment and promotion. To put it differently, the equality of opportunity guaranteed by Art. 16(1) means equality as between members of the same class of employees, and not equality between members of separate, independent classes. Dealing with the extent of protection of Art. 16(1) of the Constitution, this Court stated in General Manager, Southern Railway v. Rangachari(1) at pages 596-597 of the Report as follows:
"It would, be clear that matters relating to
employment cannot be confinedonly to the
initial matters prior to the act of
employment. The narrow construction would
confine the application of Art. 16(1) to the
initial employment and nothing else; but that
clearly is only one of the matters relating to
employment. The other matters relating to
employment 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 Article
16(1). What Article 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.
The three provisions Article 16(1), Art. 14
and Art. 15(1) form part of the same constitu-
tional code of guarantees and supplement each
other. If that be so, there would be no
difficulty in holding that the matters
relating to employment must include all
matters in relation to employment both prior
and subsequent, to the employment which are
incidental to the employment and form part of
the terms and conditions of such employment."
The Court further observed in that case:
"Article 16(2) prohibits discrimination and
thus assures the effective enforcement of the
fundamental right of equality of opportunity
guaranteed by Article 16(1). The words, in
respect of any employment used in Article
16(2) must, therefore, include all matters
relating to employment as specified in Article
16(1). There fore, we are satisfied that
promotion to selection posts is included both
under Article 16(1) and (2)". (1) [1962] 2 S.C.R. 586, 730 It is manifest that the scope of cl. (4) of Art. 16 is not co-extensive with the guarantee of equality offered to all citizens by cl. (1) of that Article. In other words, cl. (4) of Art. 16 does not cover the entire field covered by cls. (1) and (2) of that Article. For instance, some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by cls. (1) and (2) do not fall within the mischief of the exception cl. (4). As regards the conditions of service relating to employment such as salary, increment, gratuity, pension and age of superannuation, there can be no exception even in regard to the backward classes of citizens. The only matter which cl. (4) covers is a provision for the reservation of appointments in favour of a backward, class of citizens. It is well-settled that cl. (4) of Art.16 is an exception clause and is not an independent provision and it has to be strictly construed (See the judgment of this Court in General Manager, Southern Railway v. Rangachari)(2). It is also apparent that the language of Art. 16(4) has to be interpreted in the context and background of Art. 335 of the Constitution. In other words, in making a provision for reservation of appointments or posts the Government has to take into consideration not only the claims of the members of the backward classes but also the maintenance of efficiency of administration which is a matter of paramount importance. In this connection, GaJendragadkar, J., as he then was, speaking for the majority in General Manager, Southern Railway v. Rangachari,(1) observed at page 606 of the Report as follows:
"It is true that in providing for the
reservation of appointments or posts under
Art. 16(4) the State has 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 back-ward class of
citizens must be fairly and
(1) [1962) 2 S.C.R. 586.
731
objectively considered and an attempt must
always be made to strike a reasonable balance
between the claims of backward classes and the
claims of other employees as well as the
important consideration of the efficiency of
administration."
The same view has been reiterated in a later
case, M. R. Balaji and Others v. State of
Mysore(1), in which Gajendragadkar, J., as he
then was, speaking for the unanimous Court
stated as follows:
"Whilst we are dealing with this question, it
would be relevant to add that the provisions
of Art. 15(4) are similar to those of Art.
16(4) which fell to be considered in the case
of The General Manager, Southern Railway v.
Rangachari ([1962] 2 S.C.R. 586). In that
case, the majority decision of this Court held
that the power of reservation which is
conferred on the State under Art. 16(4) can be
exercised by the State in a proper case not
only by providing for reservation of
appointments, but also by providing for
reservation of selection posts. This
conclusion was reached on the basis that it
served to give effect to the intention of the
Constitution-makers to make adequate
safeguards for the advancement of Backward
Classes and to securer their adequate repre-
sentation in the Services. The judgment shows
that the only point which was raised for the
decision of this Court in that case was
whether the reservation made was outside Art.
16(4) and that posed the bare question about
the construction of Art. 16(4). The
propriety, the reasonableness or the wisdom of
the impugned order was not questioned, because
it was not the respondent’s case that if the
order was justified under Art. 16(4), it was a
fraud on the Constitution. Even so, it was
pointed out in the judgment that the
efficiency of administration is of such a
paramount importance that it would be unwise.
and impermissible to make any reservation at
the cost of efficiency of administration;
that, it was stated, was undoubtedly the
effect of Art. 335. Therefore, what is true
in regard to Art. 15(4) is equally true in
regard to Art. 16(4). There can be no doubt
that the Constitution-makers assumed, as they
were entitled to, that while making adequate
reservation under Art. 16(4), care would be
taken not to provide for unreasonable,
excessive or extravagant reservation, for that
would, by eliminating general competition in a
large filed and by creating wide-spread
dissatisfaction amongst the employees,
materially affect efficiency. Therefore,
(1) [1963] Supp. 1 S.C.R. 439.
732
like the special provision improperly made
under Art. 15(4), reservation made under Art.
16(4) beyond the permissible and legitimate
limits would be liable to be challenged as a
fraud on the Constitution."
In the present case the respondents have
alleged in the counteraffidavit that after the
decision of Rangachari’s(1) case the Union
Government reviewed the whole position and
decided that there should not be any special
treatment to Government servants belonging to
the Scheduled Castes and Scheduled Tribes in
the matter of promotion to Class I and Class
II Services which require higher degree of
efficiency and responsibility. It was stated
in the counter-affidavit that the Union
Government was satisfied that reservation
quotas of promotion were harmful from the
point of view of efficiency of Railway Service
and therefore the Government issued the
memorandum dated November 8, 1963 withdrawing
the reservation quotas for Scheduled Castes
and Scheduled Tribes officers made in the
previous Government orders. On behalf of the
petitioner Mr. N. C. Chatterjee submitted the
argument that the provision contained in Art.
16(4) of the Constitution was in itself a
fundamental right of Scheduled Castes and,
Scheduled Tribes and it was not open to the
Government to withdraw the benefits conferred
on Scheduled Castes and Scheduled Tribes by
the Government orders dated May 7, 1955 and
January 4, 1957. The learned Counsel based
his argument on the following observations of
Subba Rao, J., as he then was, in the minority
judgment of this Court in T. Devadasan v. The
Union of India and Another(1):
"The expression ’nothing in this article’ is a
legislative device to express its intention in
a most emphatic way that the power conferred
thereunder is not limited in any way by the
main provision but falls outside it. It has
not really carved out an exception, but has
preserved a power untrammelled by the other
provisions of the Article." But the majority judgment of this Court in that case took the view that Art. 16(4) was an exception and it could not be so construed as to render nugatory or illusory the guarantee conferred by Art. 16(1). It was pointed out that though under Art. 16(4) of the Constitution a reservation of a reasonable percentage of posts for members of the Scheduled Castes and Tribes was within the competence of the State, the method evolved by the Government must be such as to strike a reasonable balance between the claims of the backward classes and claims of other employees, in order to effectuate the guarantee contained in Art. 16(1). and for (1) [1962] 2 S.C.R. 586. (2) [1964] 4 S.C.R, 680, at page 700.
733 this purpose each year of recruitment would have to be considered by itself. Accordingly, the Court struck down the "Carry forward rule" on the ground that it contravened Arts. 14, 16 and 335 of the Constitution. In any case, even the minority judgment of Subba Rao, J. does not support the contention of Mr. N. C. Chatterjee that Art. 16(4) confers a right on the backward classes and not merely a power to be exercised at the discretion of the Government for making a provision for reservation of appointments for backward classes which, in its opinion, are not adequately represented in the Services of the State. Our conclusion therefore is that Art. 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words, Art. 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case. We shall next deal with the contention of the petitioner that there is discrimination between the employees belonging to Scheduled Castes and Scheduled Tribes in the Railway Service and similar employees in the Central Secretariat Service. It was said that the competitive departmental examination for promotion to the grade of Section Officers was not held by the Railway Board for the years 1955-1963. On the contrary, such examinations were held for the Central Secretariat Service and 74 employees belonging to Scheduled Castes and Scheduled Tribes secured the benefit of the provisions of reservation. In our opinion, there is no substance in this contention. The petitioner being an employee of the Railway Board’ is governed by the rules applicable to the officers in the Service to which he belongs. The employees of the Central Secretariat Service belong to a different class and it is not possible to accept the argument that there is any discrimination against the petitioner and violation of the guarantee under Art. 14 of the Constitution. It was also contended by Mr. N. C. Chatterjee that the impugned order, Annexure ’C’, arbitrarily discriminates among Class III employees themselves and Class IV employees themselves. Under the impugned order reservation is kept for appointments for which there is direct recruitment and for promotions made by (1) selection, or (2) on the result of a competitive examination limited to departmental candidates. There is no reservation for appointments made by promotion on the basis of seniority-cum-fitness. In our opinion, there is no justification for this argument as it is wellestablished that there can be a reasonable 734 classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonable (See the decisions of this Court in Mervyn Coutindo v. Collector of Customs(1), Bombay, and in S. G. Jaisinghani v. Union of India(2). A grievance was also made by Mr. N. C. Chatterjee that there is discrimination as between Classes I and II where there is no reservation and Classes III and TV where reservation has been made for Scheduled Castes and Scheduled Tribes. The respondent stated in the counter-affidavit that in Classes I and II posts a higher degree of efficiency and responsibility was required and therefore reservation was considered harmful so far as Classes I and II were concerned. In view of the requirement of efficiency in the higher echelons of Service it is obvious that the classification made in the impugned order is reasonable andthe argument of Mr. Chatterjee on this point must also be rejected as untenable. For the reasons expressed we hold that the petitioner has made out no case for the grant of a writ under Art. 32 of the Constitution. The application accordingly fails but, in the circumstances of the case, we do not propose to make any order as to costs. R.K.P.S. Appeal dismissed. (1) [1966] 3 S.C.R. 600. (2) [1967] 2 S.C.R. 703. 735