PETITIONER:
STATE OF PUNJAB
Vs.
RESPONDENT:
HIRALAL & ORS.
DATE OF JUDGMENT:
18/12/1970
BENCH:
HEGDE, K.S.
SHAH, J.C. (CJ)
GROVER, A.N.
CITATION:
1971 AIR 1777 1971 SCR (3) 267
1970 SCC (3) 567
ACT
Constitution of India, Art. 16(1) & (4)-Reservation for backward classes made applicable to initial appointments as well as promotions Validity of.
HEADNOTE
The appellant-State issued an Order according to which reservation of posts for Scheduled castes. tribes and backward classes was made applicable not only to initial recruitment but also to promotions. Respondents 1 and 3 were in the ’State Government service and the former was the senior. But since the latter belonged to a scheduled caste he was promoted over. the first respondent as per the Order. The High Court quashed the promotion on the basis that such reservation might lead to various anomalies. In appeal to this Court, HELD : Article 16(1) provides for equality of opportunity to all citizens in relation to appointment to any office in the service of the State subject to the exception in Art. 16(4) that the State may make reservations in favour of backward classes. The reservation contemplated by Art. 16(4) can be made not merely to initial recruitment but also to Posts to which promotions are to be made. Every such reservation under Art. 16(4) does introduce an element of discrimination and promotion of junior officers over seniors; but the Constitution makers thought fit, in the interests of society as a whole, that backward classes should be afforded some protection. If, however, the reservation under Art. 16(4) makes the rule in Art. 16(1) meaningless the decision of the State would be open to judicial review; but the burden of establishing that a particular reservation is offensive to Art. 16(1) is on the person who takes the plea. [271 C, E, 272 D-G, 273 D-F] In the present case, there was no material from which it could be concluded that the impugned Order violated Art. 16(1). The reservation could not be struck down on hypothetical grounds or on imaginary possibilities. [273 H] General Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586 and A. Peeriakarupan etc. v. State of Tamil Nadu, [1971] 2 S.C.R. 430, followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1218 of 1968. Appeal from the judgment and order dated November 29, 1966 of the Punjab High Court in Civil Writ No. 271 of 1966. M. C. Setalvad and R. N. Sachthey, for the appellant. The respondent did not appear. 268 The Judgment of the Court was delivered by Hegde, J.-On September 12, 1963, the Government of Punjab passed the following order :
"Subject :-Reservation for the members of
Scheduled Castes, Scheduled Tribes and
Backward Classes in promotion cases.
Sir,
I am directed to refer you to the subject
noted above and to say that at present
reservation for Scheduled Castes, Scheduled
Tribes and other Backward Classes is
applicable to new appointments and not to
promotions which are governed by consideration
of merit and seniority alone. Since those
castes/classes are poorly represented in
various services in the upper grades under the
State Govt.-it has been under the active
consideration of Government that some
reservation in higher grade posts as well
should be made for them. It has now been
decided that except in the case of All India
Services 10 per cent of the higher posts to be
filled by promotion should be reserved for the
members of Scheduled Castes, Scheduled Tribes
and Backward Classes (9 per cent for the’
members of Scheduled Castes and Scheduled
Tribes and 1 per cent for the Backward
Classes) subject to the following conditions :
(a) the persons to be considered must possess
the minimum necessary qualification; and
(b) they should have at least a satisfactory
record I of service." Up till that date reservation for Scheduled Castes. Scheduled Tribes and Backward Classes was confined to initial recruitment. The first out of every five initial recruitments was reserved for, Scheduled Castes, Scheduled Tribes or other Backward Classes. On January 14, 1964, the Government clarified its order dated September 12, 1963. In this case we are not concerned with the first paragraph of that clarification. The second paragraph of that clarification reads thus :
"Government have since been receiving
references from several quarters seeking
clarification in regard to the implementation
of the said decision. After careful
consideration of the matter, it has now been
decided that :-
(a) The said decision should be applied to
all promotion posts already vacant on 12th
September, 1963, or falling vacant thereafter.
269
(b) The reservation should not imply that 10
per cent of the total posts reserved for
promotion in any cadre have to be filled by
Scheduled Castes personnel in the sense that
all existing/ future vacancies will be filled
up by Scheduled Castes/Tribes and other
Backward Classes candidates until their share
in higher services comes up to 1 0 per cent.
(c) This provision of reservation applies to
all State. services including Class 1, II,
III, and IV posts, the only exception being
All India Services.
(d) This reservation should apply even in
the case of short term leave vacancies unless
it is likely to involve unnecessary
dislocation of work in different offices and
avoidable expenditure and inconvenience due to
mid-year transfers etc.
(e) So far as Scheduled Castes/Tribes are
concerned, the very first vacancy existing
on/arising after the 12th September, 1963,
should retreated as reserved for them and only
if no such official is available for promotion
against the vacancy reserved for them in the
first block of 10 vacancies, a candidate
belonging to other Backward Classes may be
selected in preference to the remaining
officials against one such post only out of
one hundred, since the reservation for other
Backward Classes may not exceed I per cent.
However, if Sheduled Castes/ Tribes candidates
are available to fill one out of every ten
vacancies, the specific reservation in favour
of other Backward Classes should be the, 51st
vacancy.
(f) One reserved vacancy should be carried
over to the next block of ten vacancies in
case it cannot be filled up within any block
of ten posts. Thus, if no Scheduled
Castes/Tribes/Backward Classes candidate is
promoted against any of the first 10 vacancies
the number of vacancies available to such
candidates in the following block will betwo.
(g) In case an out of turn promotion has
already been given to a candidate belonging to
Scheduled Castes/Tribes or Backward Classes
against a reserved vacancy and then in the
same block it happens to be the turn of a
candidate belonging
270
to the said castes/classes for promotion, such
candidate should not be ignored on the ground
that 10 per cent reservation has already been
exhausted."
Thereafter by another letter of March 18,
1964, the Government issued further
clarification of their aforementioned com-
munications. That clarification reads
"To illustrate the above point if there is an
official of the Scheduled Castes placed at a
position say 73rd in a list prepared for
promotion to the higher parts and a vacancy
arises therein, he would have precedence over
the other 72 officials to benefit out of the
first vacancy that occurs on or after 12th
September, 1963. Ms turn would not be
withheld merely for the fact that his number
on the select list is not in the first ten." Respondents Nos. 1 and 3 to this appeal were both working in the Forest Department of the Government as Head Assistants. Respondent No. 1 was senior to Respondent No. 3 Respondent No. 3 belonged to a Scheduled Caste. Hence in view of the order of the Government, Respondent No. 3 was promoted temporarily as Superintendent ignoring the claim of Respondent No. 1. ’Aggrieved by that order Respondent No. 1 moved the High Court of Punjab to quash the promotion of Respondent No. 3 and direct the Government to promote him as Superintendent in the place of Respondent No. 3. The High Court has quashed the promotion of Respondent No. 3. The State of Punjab (now substituted by the State of Haryana) has brought this appeal after obtaining a certificate from the High Court under Art. 133(1)(c) of the Constitution. In the opinion of the High Court reservation made for the .Scheduled Castes, Scheduled Tribes and Barckward Classes is not impermissible under the Constitution in view of Art., 16(4) of the Constitution as interpreted by this Court in The General Manager, Southern Railway v. Rangachari.(1) But the Government has violated Art. 16(1) by reserving the first out of a group of 10 posts for the Scheduled Castes, Scheduled Tribes and Backward Classes. The High Court was persuaded by the Counsel for the first respondent to visualise various hypothetical cases under which reservation of the type impugned in the present case could lead to various anomalies such as the person getting the ’benefit of the reservation may jump over the heads of several of his Seniors not only in his own grade but even in the higher grades.. They visualised the possibility of Head Assistant leaping ,over the heads of several seniors of his in the grade of Head (1) [1962] 2.S.C.R.586. 271 Assistants and thereafter in the grade of Superintent; subsequently in the grade of Under-Secretaries, Deputy Secretaries and so on and so forth. It is not the finding of the High Court that in any of the grades to which the impugned orders apply, the possibilities visualised by the High Court are imminent or even likely. Art. 16(1) is an extension of Art. 14. It provides
"There shall be equality of opportunity for
all citizens in matters relating to employment
or appointment to any office under the State." But the equality contemplated by this clause is not an embodied equality. It is subject to several exceptions and one of the exceptions is that provided in Art. 16(4) which says :
"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." In Rangachari’s case(1) this Court ruled that the reservation contemplated by Art. 16(4) can be made not merely to initial recruitment but also to posts to which the promotions are to be made. This is what Gajendragadkar J. (as he then was) speaking for the majority observed (at pp. 604 & 605) :
"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 appointments. On this
argument reservation of appointments means re-
servation of certain percentage in the initial
appointments and reservation of posts means
reservation of initial posts which may be
adopted in order to expedite and make more
effective the reservation of appointments
themselves. On this construction the use of
the word posts appears to be wholly redundant.
In our opinion, having regard to the fact that
we are construing the relevant expression
’reservation of appointments’ in a
constitutional provision it would be
unreasonable to assume that the reservation of
appointments would not include both the
methods of reservation, namely, reservation of
appointments by fixing a certain percentage in
that behalf as well as reservation of certain
initial posts in order to make the reservation
of appointments more effective. That being
so, this alternative argument which confines
the word ’posts’ to initial posts
(1) [1962] 2S.C.R.586.
272
seems to us to be entirely unreasonable. On
the other hand under the construction by which
the word ’posts’ includes selection posts the
use of the word ’posts’ is not superfluous but
serves a very important purpose. It shows
that reservation can be made not only in re-
gard to appointments which are initial
appointments but also in regard to selection
posts which may fall to be find by employees
after their employment. This construction has
the merit of interpreting the words ’
appointments’ and ’posts’ in their broad and
liberal sense and giving effect to the policy
which is obviously the basis of the provisions
of Art. 16(4). Therefore, we are disposed to
take the view 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 provided for
reservation of appointments but also by
providing for reservation of selection posts.
This construction, in our opinion, would serve
to give effect to the intention of the
Constitution-markers to make adequate
safeguard for the advancement of backward
classes and to secure for their adequate
representation in the services." 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. review. The reservation must be only for the purpose of giving adequate representation in the services to the Scheduled Castes, Scheduled Tribes and Backward Classes. The exception provided in Art. 16(4) should not make the rule embodied in Art. 16(1) meaningless. But the burden of establishing that a particular reservation made by the State is offensive to Art. 16(1) is on the person who takes the plea. 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. As observed by the majority in Rangachari’s case(1) :
"The condition precedent for the exercise of
the powers conferred by Art. 16(4) is that the
State ought to be satisfied that any backward
class of citizens is not adequately
represented in its services. This condition
precedent may refer either to the numerical
inadequacy of representation in the
services or even to the qualitative inadequacy
of representation. The advancement of the
socially and educationally backward classes
requires
(1) [1962] 2 S.C.R. 586.
273
not only that they should have adequate
representation in the lowest rung of services
but that they should aspires to secure
adequate representation in selection posts in
the services as well. In the context the
expression ’adequately represented’ imports;
considerations of ’size’ as well as ’values’,
numbers as well as the nature of appointments
held and so it involves not merely the
numerical test but also the qualitative one.
It is thus by the operation of the 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." It is true that every reservation under Art. 16(4) does introduce an element of discrimination particularly when the question of promotion arises. It is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors. This circumstance is bound to displease the senior officers. It may also be that some of them will get frustrated but then the Constitution makers have thouht fit in the interes’s of the society as a whole that the backward class of citizens of this country should be afforded certain protection as observed by this Court in A. Peeriakaruppan etc. V. State of Tamil Nadu(1):
"It cannot be denied that unaided many
sections of this country cannot compete with
the advanced sections of the Nation.
Advantages secured due to historical reasons
should not be considered as fundamental
rights. Nation’s interest will be best served
taking a long range view-if the backward
classes are helped to march forward and take
their place in line with the advanced sections
of the people." 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 (1) [1971] 2 S.C.R.430. 807Sup.CI/71 274 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). For the reasons mentioned above this appeal is allowed and the order of the High Court set aside. Respondent No. 1 who was the petitioner before, the High Court is not represented before this Court. In the circumstances of this case we make no order as to costs. V. P. S. Appeal allowed. 275