INDRA SA\VHNEY AND ORS. ETC. ETC. v. UNION OF INDIA AND ORS. ETC. ETC.

A backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In B fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it c necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of D Article 16( 4)? Situation may, however, be different, if he rises so high economically as to become - say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs.36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not 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. At G the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of l.A.S. or l.P.S. or any other All India Service, his status in society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. .They are in no way handicapped in

INDRA Si\WHNEY .._ U.0.1. 649

the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the henefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the Respondents that 'one swallow doesn't make the summer', and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that clause (4) or Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes c only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).

Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise - of 'creamy layer'. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression 'back- ward class of citizens') for the purpose of Article 16( 4). The impugned Office Memorandums dated 13th August, 1990 and 25th September, 1991 E shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the 'creamy layer' in accordance with the criteria to be specified by the Government of India and not otherwise. F

(c) Whether a class should be situated similarly to the Scheduled Caste/Scheduled Tribe for being qualified as a Backward Class?

87Copy pinpoint87. In Balaji it was held "that the backward classes for whose im- G provement special provision is contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes." The correctness of this observation is questioned by the counsel for the respondents. Reliance is placed upon the observation..'\ of Chinnappa 'leddy,J. in Vas ant Kumar (at page 406) where, dealing with lhe H

650 SUPREME COURT REPORTS (1992j SUPP. 2 S.C.R.

A above observations in Ba/aji, the learned Judge said:

"We do not think that these observations were meant to lay down any proposition that the socially Backward Classes were those classes of people, whose conditions of life were very nearly the same as those of the Scheduled Castes and B Tribes .....There is no point in attempting to determine the social backwardness of other classes by applying the test of nearness to the conditions of existence of the Scheduled Castes. Such a test would practically nullify the provision for reservation for socially and educationally Backward c Classes other than Scheduled Castes and Tribes."

88Copy pinpoint88. We see no reason to qualify or restrict the meaning of the expression "backward class of citizens" by saying that it means those other backward classes who are situated similarly to Scheduled Castes .and/or D Scheduled Tribes. As pointed out in para 85, the relevant language employed in both the clauses is different. Article 16(4) does not expressly refer to Scheduled Castes or Scheduled Tribes; if so, there is no reason why we should treat their backwardness as the standard backwardness for all those claiming its protection. As a matter of fact, neither the several castes/groups/tribes within the Scheduled Castes and Scheduled Tribes are similarly situated nor are the Scheduled Castes and Scheduled Tribes similarly situated. If any group or class is situated similarly to the Scheduled Castes, they may have a case for inclusion in that class but there seems to be no basis either in fact or in principle for holding that other clas- ses/groups must be situated similarly to them for qualifying as backward classes. There is no warrant to import any such a priori notions into the concept of Other Backward Classes. At the same time, we think it ap- propriate to clarify that backwardness, being a relative term, must in the context be judged by the general level of advancement of the entire population of the country or the State, as the case may be. More than this, it is difficult to say. How difficult is the process of ascertainment of backwardness would be known if one peruses Chapters III and XI of Volume I of the Manda! Commission Report along with Appendixes 12 and 21 in Volume II. It must be left to the Commission/Authority ap- pointed to identify the backward classes to evolve a proper and relevant criteria and test the several groups, castes, classes and sections of people against that criteria. If, in any case, a particular caste or class is wrongly

INDRA SAWHNEY v. U.0.1. 651

designated or not designated a backward class, it can always be questioned before a court of law as well. We may add that relevancy of the criteria evolved by Manda! Commission (Chapter XI) has not been questioned by any of the counsel before us. Actual identification is a different matter, which we shall deal with elsewhere.

B 88A. We may now summarise our discussion under Question No.3.(a) a caste can be an quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Article 16(4). (b) c Neither the constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. If can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be down with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a 11backward class of citizens11 within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to con- sider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. (c) It is not necessary fur a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. ( d) 'Creamy layer' can be, and must be, excluded. ( e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and edcuationally backward classes referred to in Article 15( 4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who in- dubitably fall within the expression 11backv 1ard class of citizens." The accent in Article 16( 4} appears to be on social backwardness. Of course, social, H

652 Slll'RFME COURT REl'ORTS l1992J SUPP. 2 S.C.R.

A educational and economic backwardness arc closely inter-twined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(_4).

Adeqllacy of Representation in the services under the State:

89Copy pinpoint89. Not only should a class be a back\vard class for meriting reserva- tions, it should also be inadequately represented in the services under the State. The language of clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is c evident from the fact that the said requirement is preceded by the words "in the opinion of the State". This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the [) opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within E subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Compa11y Law Board, A.LR. 1967 S.C. 295, which need not be repeated here. Sufficed it to mention that the said principles apply equally in the case of a constitutional provision like Article 16( 4) which expressly places the particular fact (inadequate representation) within the subjective _judgment of the State/executive. F Qllestion 4: (a) Whether backward classes can be identified only a11d exclusively with reference to the econon1ic criterion:

90Copy pinpoint90. It follow from the discussion under Question No.3 that a backward G class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis alongwith and in addition to social backwardness, but it can never be the sole criterion. This is the view uniformly taken by this court and we respectfully agree with the same.

(b). Whether a backward class can be ide11tified 011 the basis of H occupatio11-cun1-inconie without reference to caste?

INDRASAWHNEYv. U.0.1. 653

91Copy pinpoint91. In Chitralekha, this court held that such an identification is permissible. We see no reason to differ with the said view inasmuch as this is but another method to find socially backward classes. Indeed, this test in the Indian context is broadly the same as the one adopted by the Manda! Commission. While answering Question 3(b), we said that identification of backward classes can be done with reference to castes alongwith other occupational groups, communities and classes. We did not say that that is the only permissible method. Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example, agricultural labourers, Rickshawpullers/drivers, street-hawkers etc. may well qualify for being designated as Backward Classes. c Question No.5: Whether Backward Classes can be further divided into backward and more backward categories?

92Copy pinpoint92. In Balaji it was held "that the sub-classification made by the order between Backward Classes and more backward classes does not appear lo be justified under article 15(4). Article 15(4) authorises special provision being made for the really backward classes. In introducing two categories of back- ward classes, what the impugned order, in substance, purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced compared to the more advanced classes in the State and that, in our opinion, is not the scope of Article 15(4). The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of backward and more backward. The classification of the two categories, therefore, is not warranted by Article 15(4)." The correctness of this holding is questioned before us by the counsel for the respondents. It is submitted that in principle there is no justification for the said holding. It is submitted that even among backward classes there are some who are more backward than the others and that the backwardness is not and cannot be uniform throughout the country nor even within a State. In support of this contention, the Respondents rely upon the observations of Chinnappa G Reddy, J. in Vas ant Kumar, where the learned judge said:

"We do not see why on principle there cannot be a clas- sification into Backward Classes and More Backward Clas- ses, if both classes are not merely a little behind, but far H

654 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A far behind the most advanced classes. In fact such a clas- sification would be necessary to help the More Backward Classes; otherwise those of the Backward Classes who might be a little more advanced than the More Backward Classes might walk away with all the seats."

B 92A. We are of the opinion that there is no constitutional or legal bar to a State categorizing the backward classes as backward and more backward. We are not saying that it ought to be done. Wc are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Manda! c Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored identical points. There may be some cas- tes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It D cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes. To give an illustration, take two occupational groups viz., gold-smiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that gold-smiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitably result would be that gold-smiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub-classification is, however, a matter for the Commission and the State - and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group-A comprises of 'Aboriginal tribes. Vimukta jatis. Nomadic and semi-nomadic 1

tribes etc.". Group-B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group-C pertains to "Scheduled Castes converts to Christianity and their progency", while Group-D comprises of all other classes/communities/groups, which are not included in groups A,B and C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This categorisation was justified in Bairam, (1972] 3 S.C.R. 247

INDRA SAWHNEY v. U.O.L 655

AT 286. This is merely to show that even among backward classes, there can be a sub·classification on a reasonable basis.

There is another way of looking at this issue. Article 16(4) recognises only one class viz., "backward class of citizens". It does speak separately of • Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes arc also included in the expression "backward class of citizens" and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, O.B.Cs. will take away all the vacancies leaving C Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say - we may reiterate - that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.

PART - V (QUESTION NOS.6. 7 AND 8) D

Question 6: To what extent can the reservation be made?

(a) Whether the 50% mle enunciated in Balaji a binding rule or only a mle of caution or mle of pmdence? E (b) Whether the 50% mle, if any, is confined to reservations made under clause (4) of Article I 6 or whether it takes in all types of reservations that can be provided under Article 16?

(c} Further while applying 50% mle, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to? F

-· 93. In Balaji, a Constitution Bench of this Court rejected the argu- ment that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the court on the extent of reservation. It observed that a provision under Article 15(4) being a "special provision" must be within reasonable limits. It may be appropriate to quote the G

relevant holding from the judgment:

"When Art.15( 4) refers to the special provision for the advancement of certain classes or Scheduled Castes or Scheduled Tribes, it must not be ignored that the provision H

656 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A which is authorised to be made is a special provision; it is not a provision which is exhaustive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advan- B cement of the weaker elements in the society that Art.15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Art.15(4). It would be extremely unreasonable to assume c that in enacting Art.15(4) the Parliament intended to pro- vide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ig- nored .... A Special provision contemplated by Art.15(4) D like reservation for posts and appointments contemplated by Art.16(4) must be within reasonable limits. The interests of weaker1 sections of society which are a first charge on the State and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be adverting the object of Art.15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case."

In De»adasan this rule of 50% was applied to a case arising under G Article 16(4) and on that basis the carry-forward rule was struck down. In Thomas, however the correctness of this principle was questioned. Fazal Ali, J. observed:

"This means that the reservation should be within the permissible limits and should not be a cloak to fill all the

INDRA SAWHNEY v. U.O.l. 657

posts belonging to a particular class of citizens and thus violate Art.16(1) of the Constitution indirectly. At the same time clause (4) of Art.16 does not fix any limit on the power •• of the government to make reservation. Since clause (4) is a part of Art.16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Art.16(1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have c no doubt laid down that the percentage of reservation should not exceed 50%. As I read the authorities, this is however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward class of citizens which constitute 80% of the D population and the Government, in order to give them proper representation, reserves 80% of the jobs for them can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Art.16? The answer must necessarily be in the negative. The dominant object to this provision is to take steps to make inadequate E 11 representation adequate.

Krishna Iyer, J. agreed with the view taken by Fazal Ali, J. in the following words: F "I agree with my learned brother Fazal Ali, J. in the view that the arithmatical limit of 50% in any one year set by some earlier rulings cannot perhaps be pressed too far. Overall representation in a department does not depend on recruitment in a particular year, but the total strength of a cadre. I agree with his construction of Art.16(4) and G his view about the carry forward' rule."

Mathew, J. did not specifically deal with this aspect but from the principles of 'proportional equality' and 'equality of results' espoused by the.learned Judge, it is argued that he did not accept the 50% rule. Beg,J. H

658 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A also did not refer to this rule but the following sentence occurs in his judgment at pages 962 and 963:

"If a reservation of posts under Article 16(4) for employees of backward classes could include complete reservation of higher posts to which they could be promoted, about which B there could be no doubt now, I fail to see why it cannot be partial or for a part of the duration of service and hedged round with the condition that a temporary promotion would operate as a complete and confirmed promotion only if the temporary promotee satisfies some tests within 11

c a given time.

Ray, C.J., did not dispute the correctness of the 50% rule but at the same time he pointed out that this percentage should be applied to the entire service as a whole.

D After the decision in Thomas, controversy arose whether the 50% rule enunciated in Ba/aji stands overruled by Thomas or does it continue to be valid. In Vasant Kumar, two learned judges came to precisely op- posite conclusions on this question. Chinnappa Reddy, J, held that Thomas has the effect of undoing the 50% rule in Ba/aji whereas Venkataramiah, E J. held that it does not.

94Copy pinpoint94. It is argued before us that the observations on the said question in Thomas were obiter and do not constitute a decision so as to have the effect of overruling Ba/aji. Reliance is also placed upon the speech of Dr. Ambedkar in the Constituent Assembly, where he said that reservation must be confined to a minority of seats (See para 28). It is also pointed out that Krishna Iyer, J. who agreed with Fazal Ali, J. in Thomas on this aspect, came back to, and affirmed, the 50% rule in Karamchari Sangh (at pp. 241 and 242). On the other hand, it is argued for the respondents that when the population of the other backward classes is more than 50% of the total population, the reservation in their favour (excluding Scheduled Castes and Scheduled Tribes) can also be 50%.

94A. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate repre- sentation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of

INDRA SAWHNEY v. U.O.l. 659

the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits - and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in Narayan Rao v.State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The D said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.

It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but E a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - concieved in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (See his speech in Constituent As- sembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires Us to depart from that concept.

From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not H

660 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A exceed 50%.

While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being B out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

C In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.

95Copy pinpoint95. We are also of the opinion that this rule ef 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour uf Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically hand- icapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations · that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (0.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations; the percentage of reservations in favour of backward class of citizens remains - and should remain the same. This is how these reservations are worked w

H out in several States and there is no reason not to continue that procedure.

INDRA SAWHNEY 1·. U.0.1. 661

It is, however, made clear that the rule of 50% shall be applicable only to reservations proper: they shall not be - indeed cannot be - ap- plicable to exemptions, concessions or relaxations, if any provided to 'Backward Class of Citizens' under Article 16(4).

96Copy pinpoint96. The next aspect of this question is whether an year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji does not deal with this aspect but Devadasan (majority opinion) does. Mudholkar, J. speaking for the majority says:

"We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for c all citizens relating to employment, and to appointments to any office under the State. This means that on every oc- casion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employ- D ment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communitics. 11

On the other hand is the approach adopted by Ray, C.J. in 77wmas. While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, C.J. would not be consistent with Article 16. True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imblance in one go, i.e., in a year or two. The position can be better explained by taking an illustration. Take G a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e., 270 by other backward classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the H

662 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A number of members of O.B.Cs. in the unit/service/category is only 50, a short fall of 220. Similarly the number of members of Scheduled Caste' and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked al- together for a number of years until the number of members of all back- B ward classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competi- tion category would become age barred and ineligible. Equality of oppor- tunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each in- dividual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we· hold that for the purpose of applying the rule of 50% an year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.

(d) Was Devadasan co"ectly decided?

97Copy pinpoint97. The rule (providing for carry forward of unfilled reserved vacan- cies as modified in 1955) struck down in Devadasan read as follows: E "3( a) If a sufficient number of candidate considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a G corresponding addition should be made to the number of reserved vacancies in the second following year."

The facts of the case relevant for our purpose are the following:

H (i) Reservation in favour of Scheduled Castes and

INDRA SAWHNEY v. U.0.I. 663

Scheduled Tribes was 12Vz% and 5% respectively; A (ii) In 1960, U.P.S.C. issued a notification proposing to hold a limited competitive examination for promotion to the category of Assistant Superintendents in Central Secretariat Services. 48 vacancies were to be filled, out of which 16 were unreserved while 32 were reserved for Scheduled B Castes/Scheduled Tribes, because of the operation of the carry forward Rule: 28 vacancies were actually carried forward;

(iii) U.P.S.C. recommended 16 for unreserved and 30 for reserved vacancies - a total of 46; c (iv) the Government however appointed in all 45 persons, out of whom 29 belonged to Scheduled Castes/Scheduled Tribes. D The said Rule and the appointments made on that basis were ques- tioned mainly on the ground that they violated the 50% rule enunciated in Balaji. It was submitted that by virtue of the carry forward Rule, 65% of the vacancies for the year in question came to be reserved for Scheduled Castes/Scheduled Tribes. E The majority, speaking through Mudholkar,J. upheld the contention of the petitioners and struck down the Rule purporting to apply the principle of Ba/aji. The vice of the Rule was pointed out in the following wards: F "In order to appreciate better the import of this rule on recruitment, let us take an illustration. Supposing in two successive years no candidate from amongst the Scheduled Castes and Tribes is found to be qualified for filling any of the reserved posts. Supposing also that in each of those two years the number of vacaneies to be filled in a particular service was 100. The reserved vacancies for each of those years would, according to the Govermnent resolution, be 18 for each year. Now, since these vacancies were not filled in those years a total of36 vacancies will be carried forward to the third year. Supposing in the third year also the H

664 Slll'RFMF COURT Rl·:J'ORTS 11992] SUPP. 2 S.C.R.

A number of vacancies to he filled is 100. Then 18 vacancies out of these will also have to he reserved for members of the Scheduled Castes and Tribes. By operation of the carry forward rule the vacancies to be filled by persons from amongst the Scheduled Castes and Tribes would be 54 as against 46 by persons from amongst the more advanced classes. The reservation would thus be more than 50%."

98Copy pinpoint98. We are of the respectful opinion that on its own reasoning, the decision in so far as it strikes down the Rule is not sustainable. The most that could have been done in that case was to quash the appointments in excess of 50%, inasmuch as, as a matter of fact, more than 50% of the vacancies for the year 1960 came to be reserved by virtue of the said Rule. But it would not be correct to presume that that is the necessary and the only consequence of that rule. Let us take the very illustration given at pp. 691-2, - namely 100 vacancies arising in three successive years and 18% D being the reservation quota · and examine. Take a case, where in the first year, out of 18 reserved vacancies 9 are filled up and 9 are carried forward. Similarly, in the second year again, 9 are filled up and another 9 are carried forward. Result would be that in the third year, 9+9+18=36 (out of a total of lOO) would be reserved which would be far less than 50%; the rule in Balaji is not violated. But by striking down the Rule itself, carrying E forward of vacancies even in such a situation has become impermissible, which appears to us indefensible in principle. We may also point out that the premise made in Balaji and reiterated in Devadasan, to the effect that clause (4) is an exception to clause (1) is no longer acceptable, having been given up in Thomas. It is for this reason that in Karamchari Sangh, Krishna F Iyer, J. explained Devadasan in the following words:

''In Devadasan's case the court went into the actuals, not into the hypothcticals. This is most important. The Court actually ve1 ified the degree of deprivation of the 'equal opportunity' right.. ...

...... What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right. ..... Mathcmatical calculations, departing fro1n

INDRA SAWHNEY v. U .0.1. 665

realitir.s of the case, may startle us without justification, the apprehension being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC&ST candidates be actually appointed to substantially more than 50% of the promo- tional posts. Some excess will not affect as mathematical precision is different in human affairs, but substantial ex- B cess will void the selection. Subject to this rider or condition that the 'carry forward' rule shall not result, in any given year, in the selection of appointments of SC&ST candidates considerably in excess of 50% we uphold Annexure !".

We are in respectful agreement with the above statement of law. c Accordingly, we over-rule the decision in Devadasan. We have already discussed and explained the 50% rule in paras 93 to 96. The same position would apply in the case of carry forward rule as well. We, however, agree that an year should be taken as the unit or basis, as the case may be, for applying the rule of 50% and not the entire cadre strength. D

99Copy pinpoint99. We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50% rule.

Question No.7: Whether clause (4) of Article 16 provides reservation only in the matter of initial appointments/direct recntit1nent or does it con- template and provide for reservations being made in the matter of promotion as well?**

100Copy pinpoint100. The petitioner's submission is that the reservation of appoint- G ments or posts contemplated by clause (4) is only at the stage of entry into .. One of us, Ahmadi. J. is of the opinion that this question does not arise for considera- tion in these writ p~litions and hence need not be answered. Accordingly. the opinions e..pressed and conclusion rel'orded on rhi.s question are those of the Chief Justice. M.N. Venkatachaliah. and B.P. Jeevan Reddy. JJ. only. H

666 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A State service, i.e., direct recruitment. It is submitted that providing for reservation thereafter in the matter of promotion amounts to a double reservation and if such a provision is made at each successive stage of promotion it would be a case of reservation being provided that many times. It is also oubmitted that by providing reservation in the matter of promotion, the member of a reserved category is enabled to frog- leap over B his compatriots, which was bound to generate acute heart - burning and may well lead to inefficiency in administration. The members of the open competition category would come to think that whatever be their record and performance, the members of reserved categories would steal a march over them, irrespective of their performance and competence. Examples c are given how two persons (A) and (B), one belonging to O.C. category and the other belonging to reserved category, having been appointed at the same time, the member of the reserved category gets promoted earlier and how even in the promoted category he jumps over the members of the O.C. category already there and gains a further promotion and so on. This would generate, it is submitted, a feeling of dis-heartening which kills the spirit of competition and develops a sense of dis-interestedness among the members of O.C. category. It is pointed out that once persons coming from different sources join a category or class, they must be treated alike thereafter in all matters including promotions and that no distinction is permissible on the basis of their "birth-mark". It is also pointed out that even the Constituent Assembly debates on draft Article 10(3) do not indicate in any manner that it was supposed to extend to promotions as well. It is further submitted that if Article 16(4) is construed as warranting reservation even in the matter of promotion it would be contrary to the mandate of Article 335 viz., maintenance of efficiency in administration. It is submitted that such a provision would amount to putting a premium upon in-efficiency. The members of the reserved category would not work hard since they do not have to compete with all their colleagues but only within the reserved category and further because they are assured of promotion ;-vhether they work hard and efficiently or not. Such a course would also militate against the goal of excellence referred to in clause (J) G of Article 51A (Fundamental Duties).

101Copy pinpoint101. Sri K.Parasaran, learned counsel appearing for the Union of India raised a preliminary objection to the consideration of this question at all. According to him, this question does not arise at present inasmuch H as the impugned Memorandums do not provide for reservation in the

INDRA SAWHNEY v. U.O.L 667

matter of promotion. They confine the reservation only to direct recruit- A ment. Learned counsel reiterated the well-established principle of Con- stitutional Law that Constitutional questions should not be decided in vaccum and that they must be decided only if and when they arise properly on the pleadings of a given case and where it is found necessary to decide them for a proper decision of the case. A large number of decisions of this court and English courts are relied upon in support of this proposition.•• B If for any reason this court decides to answer the said question, says the counsel, the answer can only be one - which is already given by this court in a number of decisions namely, Rangachari, Hirata/ and Karamchari Sangh. He submits that an appointment to a post is made either by direct recruitment or by promotion or by transfer. In all these cases it is but an c appointment. If so, Article 16(4) does undoubtedly take in and warrant making a provision for reservation in the matter of promotion as well. Learned counsel commended to us the further reasoning in Rangachari that adequate representation means not merely quantitative representation but also qualitative representation. He says further that adequacy in repre- D sentation does not mean representation at the lowest level alone but at all levels in the administration. Regarding the Constituent Assembly debates, his submission is that those debates do not indicate that the said pn;wision was not supposed to apply to promotions. In such a situation, it is argued, plain words of the Constitution should be given their due meaning and that there is no warrant for cutting down their ambit on the basis of certain E suppositions with respect to interpretation of clauses (1), (2) and ( 4). This is also the contention of the other counsel for respondents.

102Copy pinpoint102. With respect to the preliminary objection of Sri Parasaran, there can hardly be any dispute about the proposition espoused by him. But it must be remembered that reference to this larger Bench was made with a F view to "finally settle the legal position relating to reservations". The idea was to have a final look at the said question by a larger Bench to settle the law in an authoritative way. It is for this reason that we have been per- suaded to express ourselves on this question. But before we proceed to express ourselves on the question, a few clarifications would be in order. G

103Copy pinpoint103. Reservation in the case of promotion is normally provided only where the promotion is by selection, i.e., on the basis of merit. For, if the .. It is this objection, Ahmadi, J. (one of us) upholds: H

668 SUPREME COURT REPORTS 11992] SUPP. 2 S.C.R.

A promotion is on the basis of seniority, such a rule may not be called for; in such a case the position obtaining-in the lower category gets reflected in the higher category (promotion category) also. Where, however, promotion is based on merit, it may happen that members of backward classes may not get selected in the same proportion as is obtaining in the lower category. With a view to ensure similar representation in the higher category also, reservation B is thought of even in the matter of promotion based on selection. This is, of course, in addition to the provision for reservation at the entry (direct recruitment) level. This was the position in Rangachari. Secondly, there may be a service/class/category, to which appointment is made partly by direct recruitment and partly by promotion (i.e., promotion on the basis of merit). c If no provision is made for reservation in promotions, the backward class members may not be represented in this category to the extent prescribed. We may give an illustration to explain what we are saying. Take the category of Assistant Engineers in a particular service where 50% of the vacancies arising in a year are filled up by direct recruitment and 50% by promotion (by selection i.e., on merit basis) from among Junior Engineers. If provision for reservation is made only in the matter of direct recruitment but not in promotions, the result may be that members of backward classes (where quota, let us say, is 25%) would get in to that extent only in the 50% direct recruitment quota but may not get in to that extent in the balance 50% promotion quota. It is for this reason that reservation is thought of even in the matter of promotions, particularly where promotions are on the basis of merit. The question for our consideration, however, is whether Article 16(4) contemplates and permits reservation only in the matter of direct recruit- ment or whether it also warrants provision being made for reservation in the matter of promotions as well. For answering this question, it would be appropriate, in the first instance, to t.:xamine the facts of and dicta in Ran- F gachari, Hirata/ and Karamchari Sangh.

104Copy pinpoint104. In Rangachari, validity of the circulars issued by the Railway administration providing for reservation in favour of Scheduled Cas- tes/Scheduled Tribes in promotions (by selection) was questioned. The G contention was that Article 16(4) does not take in or comprehend reserva- tion in the matter of promotions as well and that it is confined to direct recruitment only. The Madras High Court agreed with this contention. It held that the word '"appointments'" in clause (4) did not denote promotion and further that the word "posts" in the said clause referred to posts outside H the cadre concerned. ( )n appeal, this Court reversed by a majority of 3:2.

INDRA SAWHNEY v. U.O.l. 669

Gajendragadkar, .I. speaking for the majority enunciated certain proposi- A tions, of which the following are relevant for our discussion:

"(a) matters relating to employment [in clause (1)] 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 condi- B tions of such employment.

(b) in regard to employment, like other terms and condi- tions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a c selection post all that Article 16(1) guarantees is equality of opportunity to all citizens who enter service."

(c) "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 rep- resented 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 repre· sentation. The advancement of the socially and education- ally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate repre- sentation 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 11 F as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one."

(b) "in providing for the reservation of appointments or posts under Art.16(4), the State has to take into considera- tion the claims of the members of the backward classes G consistently with the maintenance of the efficiency of ad- ministration. It must not be forgotten that the efficiency of administration is of sucli paramount importance that it Y.'Ould be unwise and impermissible to make any reserva- tion at the cost of efficiency of administration. That un- H

670 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A doubtedly is the effect of Art.335. Reservation of appoint- ments or posts may theoritically 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 of posts." B

105Copy pinpoint105. In State of Punjab v. Hira/al, validity of an order made by the Government of Punjab providing for reservation in promotion (in addition to initial recruitment) was questioned. Though the High Court upheld the challenge, this Court (Shah, Hegde and Grover,JJ.) reversed and upheld C the validity of the Government order following Rangachari.

106Copy pinpoint106. Validity of a number of circulars issued by the Railway Ad- ministration was questioned in Karamchari Sangh, a petition under Article

32. The experience gained over the years disclosed that reservation of ap- D pointments/posts in favour ofSC/STs, though made both at the stage of initial recruitment and promotion was not achieving the intended results, inasmuch as several posts meant for them remained unfilled by them. Accordingly, the Administration issued several circulars from time to time tending further concessions and other measures to ensure that members of these categories avail of the posts reserved for them fully. (The original circular is referred to in the judgment as Ann.-F, whose validity was upheld in Rangachari itself. The other circulars are referred to as Annexures 1,H,J and K). These cir- culars contemplated (i) giving one grade higher to SC/ST candidates than is assignable to an employee (ii) carrying forward vacancies for a period of three years and (iii) provision for in-service training and coaching (after promotion) to raise .the level of efficiency of SC/ST employees who were directed to be promoted on a temporary basis for a specified period, even if they did not obtain the requisite places. The contention of the writ petitioners was that these circulars, being inconsistent with the mandate of Article 335, are bad. Rangachari was sought to be reopened by arguing that Article 16(4) does not take in reservation in the matter of promotion. The Division Bench G (Krishna Iyer, Pathak and Chinnappa Reddy,JJ.) not only refused to re-open Rangachari but also repelled the attack upon the circulars. It was held that no dilution of efficiency in administration resulted from the implementation of the circulars inasmuch as they preserved the criteria of eligibility and mini- mum efficiency required and also provided for in-service training and coach- H ing to correct the deficiencies, if any. The carry forward rule was also upheld

INDRA SAWHNEY "· U.0.1. 671

subject to the condition that the operation of the rule shall not result, in any A given year, scloction/appointment of Scheduled Caste/Scheduled Tribe can- didates in excess of 50%.

In Comptroller and Auditor General v. KS. Jagannathan, (1986] 2 S.C.R. 17, it was held: B It is now well settled by decisions of this court that the 11

reservation in favour of backward classes of citizens includ· ing the members of the Scheduled Castes and the Scheduled Tribes, as contemplated by Art.16( 4) can be made not merely in respect of initial recruitment but also c in respect of posts to which promotions are to be made. (See for instance: (1971] 3 SCR 267 and Akhil Bhartiya Soshit Karamchari Sangh v. U.0.1., (1981] 1 S.C. 246.]"

107Copy pinpoint107. We find it difficult to agree with the view in Rangachari that D Article 16(4) contemplates or permits reservation in promotions as well. It is true that the expression 11 appointmentn takes in appointment by direct recruitment, appointment by promotion and appointment by transfer. It may also be that Article 16(4) contemplates not merely quantitative but also qualitative support to backward class of citizens. But this question has not to be answered on a reading of Article 16(4) alone but on a combined reading of Article 16( 4) and Article 335. In Rangachari this fact was acknowledged but explained away on a basis which, with great respect to · the learned Judges who constituted the majority - does not appear to be acceptable. The propositions emerging from the majority opinion in Ran- gachari have been set out in Para 104. Under proposition (d) (as set out in para 104), the majority does say that "in providing for the reservation of appointments or posts under Art.16(4), the State has to take into con- sideration the claims of the members of the back-ward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount impor- tance 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 theoratically and conceivably means some impairment of efficiency;" but then it explains it away by saying 11but the risk involved in sacrificing efficiency of administra· tion must always be borne in mind when any State sets about making a H

672 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A provision for reservation of appointments of posts." We see no justification to multiply 'the risk', which would be the consequence of holding that reservation can be provided even in the matter of promotion. While it is certainly just to say that a handicap should be given to backward class of citizens at the stage of initial appointment, it would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such B a handicap should be provided at every stage of promotion throughout their career. That would mean creation of a permanent separate category apart from the mainstream - a vertical division of the administrative ap- paratus. The members of reserved categories need not have to compete with others but only among themselves. There would be no will to work, c compete and excel among them. Whether they work or nvt, they tend to think, their promotion is assured. This in turn is bound to generate a feeling of despondence and 'heart-burning' among open competition members. All this is bound to affect the efficiency of administration. Putting the members of backward classes on a fast-track would necessarily result in leap-frogging and the deleterious effects of "leap-frogging" need no illustration at our " hands. At the initial stage of recruitment reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that these members too compete with others and earn promotion like all others; no further distinction can be made there- after with reference to their "birth-mark", as one of the learned Judges of this Court has said in another connection. They are expected to operate on equal footing with others. Crutches cannot be provided throughout one's career. That would not be in the interest of efficiency of administra- tion nor in the larger interest of the nation. It is wrong to think that by holding so, we are confining the backward class of citizens to the lowest cadres. It is well-known that direct recruitment takes place at several higher levels of administration and not merely at the level of Class-IV and Class-III. Direct recruitment is provided even at the level of All India Services. Direct recruitment is provided at the level of District Judges, to give an example nearer home. It may also be noted that during the debates in the Constituent Assembly, none referred to reservation in promotions; it c!oes not appear to have been within their contemplation.

It is true that Rangachari has been the law for more than 30 years and that attempts to re-open the issue were repelled in Karamchari Sangh. It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the Central and

INDRA SAWHNEY i·. U.0.1. 673

State services but we are convinced that the majority opinion in Rangachari, A to the extent it holds, that Article 16(4) permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking into consideration all the circumstances, we direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever B reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any corpora- tion, authority or body falling under the definition of 'State' in Article 12- such reservations shall continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities c to revise modify or reissue the relevant Rules to ensure the achievement of the objective of Article 16{4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. D A purist or a legal theoretician may find this direction a little illogical. We can only answer them in the words of Lord Roskill. In h_is presidential address to the Bentham Club at University College of London on February 29, 1984 on the subject 11 Law Lords, Reactionaries or Reformers?", the learned Law Lord said: E

"Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the develop- ment by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves "this case requires a policy decision - what is the right policy 01 decision? The answer is, and I hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue .to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism. But much of the com- mon law and virtually all criminal law, distasteful as ii may be to some to have to ackno~l~dge it, is a blunt instrument H

674 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellec- tually or otherwise. By definition they operate bluntly and not sharply."

B We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in Thomas and the con- cessions namely carrying forward of vacancies and provisions for in-service coaching/training in Karamchari Sangh are instances of such concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the O.B.Cs., S.Cs. and S.Ts. - consistent with the efficiency of administration and the nature of duties attaching to the office concerned - in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded hereinabove.

E Question No.8: Whether Reservations are anri-meritarian?

108Copy pinpoint108. In Ba/aji and other cases, it was assumed that reservations are necessarily anti-meritarian. For example, in Janaki Prasad Parimoo it was observed, 11 it is in1plicil in the idea of reservation that a less meritorious person be preferred to another who is more meritorious." To the same effect is the opinion of Khanna,J. in Thomas, though it is a minority opinion. Even Subba Rao, J. who did not agree with this view did recognize some force in it. In his dissenting opinion in Devadasan , While holding that there is no conflict between Article 16(4) and Article 335, he did say, "it is inevitable in the nature of reservation that there will be a lowering of standards to some extent", but, he said, on that account the provision cannot be said to be bad, inasmuch as in that case, the State had, as a matter of fact, prescribed minimum qualifications, and only those possess- ing such minimum qualifications were appointed. This view was, however, not accepted by Krishna Iyer,J. in Thomas. He said "efficiency means, in terms of good government, not marks in examinations only, but responsible

INDRA SAWllNEY v. U.0.1. 675

and responsive service to the people. A chaotic genius is a grave danger to public administration. The inputs of efficiency rule include a sense of belonging and of accountability (not pejoratively used) if its composition takes in also the weaker segments of "We, the people of India". No other understanding can reconcile the claim of a radical present and the hang- over of the unjust past. 11 A similar view was expressed in Vasant Kumer by Chinnappa Reddy, J. The learned judge said "the mere securing of high marks at an examination may not necessarily mark out a good ad- ministrator. An efficient administrator, one takes it, must be one who possesses among other qualities the capacity to understand with sympathy and, therefore, to tackle bravely the problems of a large segment of population constituting the weaker sections of the people. And, who better c than the ones belonging to those very sections? Why not ask ourselves why 35 years after Independence, the position of the Scheduled Castes etc. has not greatly improved? Is it not a legitimate question to ask whether things might have been different, had the district administrators and the State and Central Bureaucrats been drawn in larger numbers from these classes? D Courts are not equipped to answer these questions, but the courts may not interfere with the honest endeavours of the Government to find answers and solutions. We do not mean to say that efficiency in the civil service is unnecessary or that it is a myth. All that we mean to say is that one need not make a fastidious fetish of it." E

109Copy pinpoint109. It is submitted by the learned counsel for petitioners that reser- vation necessarily means appointment of less meritorious persons, which in turn leads to lowering of efficiency of administration. The submission, therefore, is that reservation should be confined to a small minority of appointments/posts, . in any event, to not more than 30%, the figure F referred to in the speech of Dr. Ambedkar in the Constituent Assembly. The mandate of Article 335, it is argued, implies that reservations should be so operated as not to affect the efficiency of administration. Even Article 16 and the directive of Article 46, it is said, should be read subject to the aforesaid mandate of Article 335. G

110Copy pinpoint110. The respondents, on the other hand, contend that the marks obtained at the examination/test/interview at the stage of entry into service is not an indicia of the inherent merit of a candidate. They rely upon the opinion of Douglas,J. in Defunis where the learned Judge illustrates the said aspect by giving example of a candidate coming from disadvantaged H

676 SUPREME COURT REPORTS [1992[ SUPP. 2 S.C.R.

A sections of society and yet obtaining reasonably good scores - thus manifesting his "promise and potcntiaJI' - vis-a-vis a candidate from a higher strata obtaining higher scores. (His opinion is referred to in para 44). On account of the disadvantages suffered by them and the lack of oppor- tunities, - the Respondents say - members of backward classes of citizens may not score equally with the members of socially advanced classes at the inception but in course of time, they would. It would be fallacious to presume that nature has endowed intelligence only to the members of the forward classes. It is to be found everywhere. It only requires an oppor- tunity to prove itself. The directive in Article 46 must be understood and implemented keeping in view these aspects, say the Respondents.

111Copy pinpoint111. We do not think it necessary to express ourselves at any length on the correctness or otherwise of the opposing points of view referred to above. (It is, however, necessary to point out that the mandate - if it can be called that - of Article 335 is to take the claims of members of SC/ST D into consideration, consistent with the maintenance of efficiency of ad- ministration. It would be a misreading of Article to say that the mandate is maintenance of efficiency of administration.) May be, efficiency, com- petence and merit are not synonymous concepts; May be, it is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of the efficiency of an administrator. Even so, the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with - and may, in some cases, excel - members of open competitor candidates. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and that what is required is an opportunity to prove it. It may noti therefore, be said that reservations are anti meritian. Merit there is even among the reserved candidates and the small difference, that may be allowed at the stage of initial recruitment is bound to disappear in course of time. These members too will compete with and improve their efficiency alongwith others.

INDRASAWHNEY v. U.0.1. 677

·Having said this, we must append a note of clarification. In some cases arising under Article 15, this court has upheld the removal of minimum qualifying marks, in the case of Scheduled Caste/Scheduled Tribe , candidates, in the matter of admission to medical courses. For example, in State of M.P. v. Nivedita Jain, [1982] 1 S.C.R. 759 admission to medical /course was regulated by an entrance test (called Pre-Medical Test). For B general candidates, the minimum qualifying marks were 50% in the ag- gregate and 33% in each subject. For Scheduled Caste/Scheduled Tribe candidates, however, it was 40% and 30% respectively. On finding that Scheduled Cast/Schedule Tribe candidates equal to the number of the seats reserved for them did not qualify on the above standard, the Government did away with the said minimum standard altogether. The Government's C action was challenged in this court bnt was upheld. Since it was a case under Article 15, Article 335 had no relevance and was not applied. But in the case of Article 16, Article 335 would be relevant and any order on the lines of the order of the Government of M.P. (in Nivedita Jain) would not be permissible, being inconsistent with the efficiency of administration. D To wit, in the matter of appointment of Medical Officers, the Government or the Public Service Commission cannot say that there shall be no mini- mum qualifying marks for Scheduled Castes/Scheduled Tribes candidates, while prescribing a minimum for others. It may be permissible for the Government to prescribe a reasonably lower standard for Scheduled Cas- tes/Scheduled Tribes/Backward Classes - consistent with the requirements E of efficiency of administration - it would not be permiss'ible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature of duties attached to the .post and the interest of the general public should also be kept in mind. F

112Copy pinpoint112. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hcreinabove, alone counts. In such situations. It may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in spe- G cialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, H

678 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A provision for reservation would not be advisable.

As a matter of fact, the impugned Memorandum dated 13th August, 1990 applies the rule of reservation to "civil posts and services under the Government of India" only, which means that defence forces are excluded from the operation of the rule of reservation though it may yet apply to civil posts in defence services. Be that as it may, we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are: ( 1) Defence Services including all technical posts therein but excluding civil posts. (2) All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defence equipment; (3) Teaching posts of Professors - and above, if any. (4) Posts in super-specialities in Medicine, engineering and other scientific and technical subjects. (5) Posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. D It is for the Government of India to consider and specify the service and posts to which the Rule of reservation shall not apply but on that account the implementation of the impugned Of'.:ce Memorandum dated 13th August, 1990 cannot be stayed or withheld.

We may point out that the services/posts enumerated above, on E account of their nature and duties attached, are such as call for highest level of intelligence, shill and excellence. some of them are second level and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may not be consistent with "efficiency of ad- ministration" contemplated by Article 335. F We may add that we see no particular relevance of Article 38(2) in this context. Article 16(4) is also a measure to ensure equality of status besides equality of opportunity.

PART- VI G (QUESTIONS 9,10 & 11 AND OTHER MISCELLANEOUS QUESTIONS).

Question No.9: Will the extent of judicial review be limited or restricted in regard to the identification of Backward Classes and the percentage of

INDRA SAWHNEY v. U.0.1. 679

reservations made for such classes, to a demonstrably perverse identification or a demonstrably unreasonable percentage?

113Copy pinpoint113. It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally extend due deference to the judgment and discretion of the Executive - a co- equal wing - in these matter<. The political executive, c drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed. D Question No. JO: Whether the distinction made in the second Memoran- dum between 'poorer sections' of the backward classes and others permissible under Article 16?

114Copy pinpoint114. While dealing with Question No.3(d), we held that that exclusion E of 'creamy layer' must be no the basis of social advancement (such advan- cement as renders them misfits in the backward classes) and not on the basis of mere economic criteria. At the same time, we held that income or the extent of property held by a person can be taken as a measure of social advancement and on that basis 'creamy layer' of a given caste/com- F munity/occupational group can be excluded to arrive at a true backward class. Under Question No.5, we held that it is not impermissible for the State to categories backward classes into backward and more backward on the basis of their relative social backwardness. We had also given the illustration of two occupational groups, viz., gold-smiths and vaddes (tradi- tional stone-cutters in Andhra Pradesh); both are included within 'other G backward classes'. If these two groups are lumped together and a common reservation is made, the gold-smiths would walk away with all the vacancies leaving none for vaddes. From the said point of view, it was observed, such classification among the designated backward classes may indeed serve to help the more backward among them to get their due. But the question H

680 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A ·now is whether clause (i) of the Office Memorandum dated 25th Septem- ber, 1991 is sustainable in la~. The said clause provides for a preference in favour of "poorer sections11 of the backward classes over other members of the backward classes. On first impression, it may appear that backward classes are classified into two sub-groups on the basis of economic criteria alone and a preference provided in favour of the poorer sections of the B backward classes. In our considered opinion, however, such an interpreta- tion would not be consistent with the context in which the said expression is used and the spirit underlying the clause nor would it further the objective it seeks to achieve. The object of the clause is to provide a preference in favour of more backward among the "socialy and education- c ally backward classes". In other words, the expression 'poorer sections' was meant to refer to those who are socially and economically more backward. The use of the word 'poorer', in the context, is meant only as a measure of social backwardness. (Of course, the Govermnent is yet to notify which classes among the designated backward classes are more socially backward, D i.e., 'poorer sections'). Understood in this sense, the said classification is not and cannot be termed as invalid either constitutionally speaking or in law. The next question that ;rrises is: what is the meaning and context of the expression 'preference'? Having regard to the fact the backward classes are sought to be divided into two sub-categories, viz., backward and more backward, the expression 'preference' must be read down to mean an E equaitable apportionment of the vacancies reserved (for backward classes) among them. The object evidently could not have been to deprive the 'backward' altogether from benefit of reservation, which could be the result if word 'preference' is read literally - if the 'more backward' take away all the available vacancies/posts reserved for O.B.Cs., none would remain for F 'backward' among the 0.B.Cs. It is for this reason that we are inclined to read down the expression to mean an equitable apportionment. This, in our opinion, is the proper and reasonable way of understanding the expres- sion preference in the context in which it occurs. By giving the above interpretation, we would be effectuating the underlying purpose and the true intertion behind the clause. G It shall be open to the Government to notify which classes among the several designated other backward classes are more backward for the purM poses of this clause and the apportionment of reserved vacancies/posts among 'backward' and '1more backward11 • On such notification the clause will H become operational.

INDRA SAWHNEY v. U.0.1. 681

Question No.11: Whether the reservation of 10% of the posts in favour of A 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservations' made by the Office Memoran-

.. dum dated 25.9.1991 permissible under Article 16?

115Copy pinpoint115. This clause provides for a 10% reservation (in appoint- ments/posts) in favour of economically backward sections among the open B competition (non-reserved) category. Though the criteria is not yet evolved by the Government of India, it is obvious that the basis is either the income of a person and/or the extent of property held by him. The impugned Memorandum does not say whether this classification is made under clause (4) or clause (1) of Article 16. Evidently, this classification among a C category outside clause (4) of Article 16 is not and cannot be related to clause (4) of Article 16. If at all, it is relatable to clause (1). Even so, we find it difficult to sustain. Reservation of 10% of the vacancies among open competition candidates on the basis of income/property-holding means exclusion of those above the demarcating line from those 10% seats. The D \ question is whether this is constitutionally permissible? We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property-holding. Since the employment under the State is really con- ceived to serve the people (that it may also be a source of Livelihood is secondary) no such bar can be created. Any such bar would be inconsistent E with the guarantee of equal opportunity held out by clause ( 1) of Article

16. On this ground alone, the said clause in the Office Memorandum dated 25.5.1991 fails and is accordingly declared as such.

"THE CONCEPT OF POSITIVE ACTION AND POSI- F TIVE DISCRIMINATION"

- 116. Dr. Rajiv Dhawan describes Article 15(4) as a provision envisag- ing programmes of positive action and Article 16(4) as a provision war- ranting programmes of positive discrimination. We are afraid we may not be able to fit these provisions into this kind of compartmentalisation in the G context and scheme of our const:tutional provisions. By now, it is well settled that reservations in educational institutions and other walks of life can be provided under Article 15(4) just as reservations can be provided in services under Article 16(4). If so, it would not be correct to confine Article 15(4) to programmes of positive action alone. Article 15(4) is wider H

682 SUPREME COURT REPORTS IJ992j SUPP. 2 S.C.R. _, A than Article 16( 4) inasmuch as several kinds of positive action programmes can also be evolved and implemented thereunder (in addition to reserva- tions) to improve the conditions of SEBCs., Scheduled Castes and Scheduled Tribes, whereas Article 16( 4) speaks only of one type of remedial measure, namely, reservation of appointments/posts. But it may not be entirely right to say that Article 15(4) is a provision envisaging B programmes of positive action. Indeed, even programmes of positive action may sometimes involve a degree of discrimination. For example, if a special residential school is established for Scheduled Tribes or Scheduled Castes at State expense, it is a discrimination against other students, upon whose education a far lesser amount is being spent by the State. Or for that c matter, take the very American cases - Fullilove or Metro Broadcasting - Can it be said that they do not involve any discrimination? They do. It is another matter that such discrimination is not unconstitutional for the reason that it is designed to achieve an important governmental objective.

DESIRABILITY OF A PERMANENT STATUTORY D BODY TO EXAMINE COMPLAINTS OF OVER IN- CLUSION/UNDER INCLUSION.

117Copy pinpoint117. We are of the considered view that there ought to be a per- manent body, in the nature of a Commission or Tribunal, to which com- E plaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon the Govern- ment. Where, however, the Government does not agree with its recommen- F dation, it must record its reasons therefor. Even it any new class/group is

- proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquirey. It is equally G desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under clause (4) of Article 16 itself - or under Article 16(4) read with Article 340 - as a concomitant of the power to identify and specify back- ward class of citizens, in whose favour reservations are to be provided. We H direct that such a body be constituted both at Central level and at the level

INDRA SAWHNEY 1·. U.0.1. 683

of the States within four months from today. They should become imme- A diately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chandrachud; CJ. in Vasant B Kumar, there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be.

SHOULD THE MATTER GO BACK TO CONSTITU- c TION BENCH TO GO INTO .THE DEFECTS OF THE MANDAL COMMISSION REPORT.

118Copy pinpoint118. Now that we have answered all the questions raised for our consideration, question new arises, whether in view of the answers given D and directions being given by us, is it necessary to send back the matter to the Five-Judge Bench to consider whether the investigation and survey done, and conclusions arrived at, by the Mandal Commission are contrary to law and if so, whether the impugned Office Memorandums, based as they are on the report of the said Commission, can be sustained? We think not. This is not a case where the Five-Judge Bench framed certain ques- E lions and referred them to this Bench. All the matters as such were placed before this Bench for disposal. During the course of hearing, · however, when some counsel wanted to take us into details of castes/groups/classes which, according to them, have been wrongly included or excluded, as the case may be, we refused to go into those details saying that those details F can be gone into before the Five-Judge Bench later. Otherwise, we heard the counsel fully on the alleged illegalities in the approach and methodol- ogy adopted by the Commission. The written arguments bear them out. We shall notice the criticism first and then answer the question posed at the inception of this para. G 118A. The first and foremost criticism levelled against the approach and the procedure adopted by Manda! Commission in that the Manda! Commission has adopted caste and caste alone as the basis of its approach throughout. On this count alone, it is argued, '.he entire report of the Commissio_n is vitiated. It is pointed out that in its very first letter dated H

684 SUPREME COURT REPORTS j 1992) SUPP. 2 S.C.R.

A 25th April, 1979 (Appendix VII at page 91-Vol.2) addressed to all the Ministries and Departments of the Central Government, the Commission has prescribed the following lest for determining the socially and educa- tionally backward classes:

"(a) In respect of employees belonging to the Hindu com- B munities

(i) an employee will be deemed to be socially backward if he does not belong to any of the three twice-born (Dvij) 'Varnas' i.e., he is neither a Brahmin, nor a Kshatriya/nor a Vaishya; and c (ii) he will be deemed to be educationally backward if neither his father nor his grant father has studied beyond the primary level.

(b) Regarding the non-Hindu Communities D • (i) an employee will be deemed to be socially backward if either

(1) he is a convert from those Hindu communities E which have been defined as socially backward as per para 4(a)(i) above, or

(2) in case he is not such a convert, his parental income is below the prevalent poverty line, i.e., Rs.71 per head per month. F (ii) he will he deemed to be educationally backward if neither his father nor his grand father had studied beyond the primary level."

Serious objection is taken to the above criteria. Treating all the G Hindus not belonging to three upper castes as socially and educationally backward classes, it is submitted, is faulty to the core. In the case of non-Hindus, the prescription of income limit is said to be arbitrary. The criteria for identifying backward classes must be uniform for the entire population; it cannot vary from religion to religion. This shows, says the counsel, the impropriety and impennissiblity of adopting the caste as the

., INDRA SAWHNEY i·. U.0.1. 685

basis of identification, since castes exist only in the Hindu religion and not in others. On the basis of the statements made in Chapters IV and V, it is submitted that the Commission was obsessed by caste and was blind to all other determinants. It is also pointed out that the Survey done by the Commission is cursory, totally inadequate and faulty. According to the petitioners, the survey must be an exhaustive one like the one done by B Venkataswamy Commission in Karnataka, which also forms the basis of Justice Chinnappa Reddy Commsission Report. Carrying out the Survey to cover merely two villages and one urban block in each District is not likely to disclose a true picture since it does not represent survey of even one percent of the population. Objection is also taken to use of personal knowledge and also to reliance upon lists of backward classes prepared by C State Governments. It is repeatedly urged that the survey done by the Commission cannot be called a scientific one, which has led to discovery of as many as 3,743 castes and their identification as socially and educa- tionally backward classes. This is a steep increase over Kaka Kalelkar Commission, according to which, the number of S.E.B.Cs. was only 2,733. D It is pointed out further that certain castes which obtained less than 11 points on being tested against the criteria evolved by the Commission are included among the backward classes. Conversely, certain castes which obtained 11 or more points are yet excluded from the list of backward classes. It is urged that the castebased approach adopted by the Commis- E sion has practically divided the nation into a forward section an.d a back- ward section. If Scheduled Castes and Scheduled Tribes are also added to the Other Backward Classes, more than 81 per cent of the population gets designated as backward. But for the decision in Balaji, it is submitted, the Commission would certainly have recommended reservation of 52 per cent of the appointments/posts in favour of the backward classes. The Commission was actuated by malice towards upper castes and has sub- mitted an unbalanced, unjust and unconstitutional report, it is argued

Respondent's counsel, on the other hand, have refuted each and every contention of the petitioners. According to them, the criteria evolved, the methodology adopted, identification made and lists prepared are all perfactly valid and legal. The Union of India, while justifying the Report, has taken the stand that even if there are any errors or inadequacies in the work and report of the Commission, it is no ground for throwing out the report altogether, more particularly when the Government of India has H

686 SUPREME COURT REPORTS 11992) SUPP. 2 S.C.R.

A taken care by 'marrying' the Manda! lists with the State lists. If any errors are brought to the notice of the Government, Sri Parasaran says, the Government will certainly look into them and rectify them, if satisfied about the error.

119Copy pinpoint119. Before we decide to answer the question, it is necessary to point out that each and every defect, if any, in the working and Report of the Manda! Commission does not automatically vitiate the impugned Office Memorandums. It has to be shown further that that particular defect has crept into the Office Memorandum as well. In addition to the above, the following factors must also be kept in mind: c (a) The Manda! Commission Report has not been accepted by the Government of India in its fullness, nor has the Government accepted the list of Other Backward Classes Prepared by it in its entirety. What is now D in issue is not the validity of the Report but the validity of the impugned Office Memorandums issued on the basis of the Report. The First Memorandum expressly directs that only those classes will be treated as backward classes for the purposes of Article 16(4) as are common to both the Manda! List and the respective State List. (It may be remembered that the Manda! Commision has prepared the lists of Other Backward Classes E State-wise). Almost every caste, community and occupational group found in the State lists is also found in the concerned State list prepared by Mandal Commission; Mandal lists contain many more castes/occupational groups than the respective State lists. (H should indeed be rare that a particular caste/group/class is included in the State list and is not included in the Manda! list relating to that State. In such a case, of course, such caste/group/class would not be treated as an O.B.C. under the Office Memorandum dated 13th August, 1990). In such a situtation, what the Office Memorandum dated 13th August, 1990 does in effect is to enforce , the respective state lists. In other words, the Government of India has, for all practical purposes, adopted the respective State lists, as they obtained on 13th August, 1990. In this sense, the lists prepared by Manda! have no real significance at present. The State lists were prepared both for the purposes of Article 16(4) as well as Article 15(4). The following particulars furnished by the Union of India do establish that these State lists have been prepared after due enquiry and investigation and have stood the test of time and judicial scrutiny:

INDRA Si\ WHNEY i·. U.O.l. 687

Basis of identification of SEBCs/OBCs in the States covered by 0.M. of 13.8. 1990.

S. No. Name of Whether State's list, is Status States based on report of commission/Committee B

1. Andhra Reports of the State's G.O. based on Prndesh Commission headed by the report of the Shri K.M. Ananth- Anantharam Commi- araman and Shri ssion was upheld by the Muralidhara Rao (June ~uprcmc Court m c 1970 and Angus~ 1982 Balaram case (AIR 1972 respectively). SC 1375). The modified list of OBCs based on the report of Murali- dhara Rao Commission D was upheld by the AP. High Court but the increased quantum of reservation from 25% to 44% was struck down E (Judgment of 5-9-1986).

2. Bihar Commission set up in N0t challenged. 1971 under the chair- manship of Sri Mungeri Lal.

3. Gujarat Commission headed by F Shri AR.Bakshi, Retd. High Court Judge (Report of Feb, 1976).

4. Goa No The list was challenged in Commission/Cammi- the High Court in 1986 G ttee State Government for quashing the G.O. have notified 4 and instead declare all communities as OBC the 19 communities reco- on their own. mmended by the Manda! Commission as OBCs. H

688 Slll'REMF COURT REPORTS 119921 SUPP. 2 S.C.R.

A The High Court rejected the petitioner's claim on I 0.3.88. The malt er is now before the Supreme Court through SLP No. B 9813 of 1988.

5. Haryana Committees of 1951 and 1965. (In 1990 Gurnam Singh Commission was also set up and its report c accep-ted by State Govern·ment.