PART X

CHAPTER – I

EVALUATION OF JUDICIAL RESPONSE THROUGH

LANDMARK JUDGMENTS OF SUPREME COURT AND
HIGH COURTS DEVOTED ON RESERVATION POLICY

One of the important objectives stated in the Preamble of the

Constitution is ‘social justice’. The Court is expected to interpret law in such
a way that this avowed objectives could be made a reality. Justice V.R.
Krishna Iyer emphasizes this aspect of Judicial Activism when he says:

A pragmatic approach to social justice compels us to interpret

constitutional provisions liberally with a view to see that effective policing
of the corridors of power is carried out by the court until other Ombudsman
arrangements are made. Court’s function, of course, is limited to testing
whether administrative action has been fair and free from the taint
unreasonableness and has substantially complied with the procedural norms
set for it by the rules of public administration and the action of the
administration is not malafide.1

Reservation is mainly in the area of admissions in educational

institutions.2 employment in government services3 and seats in the
legislature.4 Regarding reservation of seats in the legislatures including
union parliament, there is practically no dispute. Moreover this reservation
in only for Scheduled Castes and Scheduled Tribes and originally this
reservation was only for 15 years but it has been extended through
348
amendments to the Constitution. Other Backward Classes (OBC) do not
enjoy any reservation of seats in the legislature. But in the sphere of
education and government services OBCs do enjoy reservation. In some
States like Kerala, OBCs have become a dominant force in the bureaucracy.
Thus the transience of backwardness has given rise to clash of interests both
at the political and legal levels.

In this chapter cases that came before the supreme court of India have
been discussed and analyzed by the researcher to get a clear picture of the
nature of judicial activism vis-à-vis social justice.

In State of Madras v. Champakam Dorairajan5, the Court was

unwilling to uphold the validity of the Communal Government Order of
Madras Government, for the impugned Order went against the principle of
‘equality before law’ enshrined in the Constitution. There were two similar
cases of admission to the Medical College and to the Engineering College.6
According to Justice S.R. Das.

The Chapter of Fundamental Rights is sacrosanct and not liable to be

abridged by a legislative or executive act or order except to the extent
provided in the appropriate Article in Part III. The Directive Principles of
State policy have to conform to and run as subsidiary to the chapter of
fundamental rights. In our opinion that is the correct way in which the
provisions found in Part III and IV, have to be understood… However so
long as there is no infringement of any fundamental right to the extent
conferred by provision in Part III there can be no objection to the state acting
in accordance with the directive principles set out in part IV, but subject

349
again to the legislative and executive powers and limitations conferred on
the state under different provision of the Constituion.7

The Court’s verdict was nullified by the legislative action, for the
Parliament came with an amendment to the Constitution and introduce
Clause 4 to Article 15. This amendment is described as ‘a crushing response
to the challenge (the decision of the Court).8 This indeed marked a
portentous trend of the beginning of a subtle conflict between Legislature
and Judiciary.9 In CR Srinivasan v. state of Madras;10 the court rejected the
caste as the only criterion for reservation. This judgment also reflected the
spirit of ‘equality’ as envisaged in Article 14. In a similar vein Andhra High
Court held11 that any provision that prohibits backward classes to compete
with others was held to be violative of Article 15 and 29 (2)(b). It was also
directed that a minimum percentage for reservation should be fixed.

In Kesava v. State of Mysore12 the issue involved was whether the

decision of the State to identify backward classes was valid, as State
Government had declared every community except Brahmin as Backward
Community. The High Court held that State was doubtless the sole authority
to classify the communities as ‘backward classes’.13

In M.R. Balaji and others v. State of Mysore and other14 the Court
was trying to keep a just balance between the conflicting interests of those
who would like to have as much reservation as possible and those might lose
their chance even if they are the deserving ones. The issue in this case is
about the admission to the Medical course. “According to the petitioners, but
for the reservations made by the impugned order, they would have been
entitled to the admission in the respective colleges for which they had

350
applied.” The impugned Order was issued on 31-07-1962 and it reserved
seats for candidates belonging to the backward classes whose average of
student population was the same or just below State average. This resulted in
68 percent of seats available for admissions to the Engineering and Medical
Colleges and to the other technical institutions is reserved for backward
classes, more backward classes, Scheduled Castes and Scheduled Tribes.
The classification of the socially backward classes of citizens made by the
State, proceeds on the consideration only of their castes without regard to
other factors, which are undoubtedly relevant. It was argued that this might
lead to a virtual reservation for nearly 90 per cent of the population, which
might come under different categories of backwardness. This would be at
the expense of those classes of people whose members may perform well but
may not get an opportunity.

After analyzing facts and probing the legal nuances, the Court came to
the conclusion that caste alone could not be the criterion for backwardness.
The Court also observed that reservation should not go beyond 50 per cent.
The Court said:

‘When it is said about an executive action that it is a fraud on the

Constitution it does not necessarily mean that the action is actuated by
malafides. An executive action which is patently and plainly outside the
limits of Constitutional authority conferred on the State in that behalf is
struck down as being ultra vires the State’s authority. If on the other hand,
the executive action does not patently or overtly transgress the authority
conferred on it by the Constitution, but the transgression is covert and latent,
the said action is struck down as being fraud on the relevant constitutional
power… We have already noticed that the impugned order in the present
351
case has categorized the Backward classes on the sole basis of caste which,
in our opinion, is not permitted by Article 15 (4) and we have also held that
the reservation of 68 per cent made by the impugned order is plainly
inconsistent with the concept of special provision authorized by Article 15
(4). Therefore it follows that the impugned order is a fraud on the
Constitutional power conferred on the State by Article 15 (4).’

On the whole the apex court succeeded in giving a well-balanced

judgment. Caste could not be the sole criterion for identifying social
backwardness. But castes, poverty, occupation, place of habitation are some
of the relevant factors for determining social backwardness. It is
unconstitutional to classify backward classes into backward and the most
backward. Above all the court observed that the upper limit for reservation
could only be 50per cent. It is open to question whether by fixing the upper
limit, Court was not interfering in matters of policy, encroaching thereby the
domain of legislature. Moreover fixing a limit in such a question would
become inappropriate when the socio-economic changes become more
manifestly rapid. The Court changed its observations in accordance with the
provisions in the first amendment to the Constitution namely, Article 15(4)
is held to valid and not contradictory to Article 15(1).A reasonable extent of
discrimination was to be permitted by law. But the honorable Court did not
go into the essential social data regarding the proportional strength of the
communities in the whole of the population, the educational progress made
by each community and the standard of life enjoyed by them. The Court
simply went on to pronounce the judgment based on the recent amendment
to the Constitution and the philosophy behind the amendment. Perhaps the
honorable Court took the stand that was politically correct at that time.

352
 In Chtiralekha v. State of Mysore15 the Supreme Court gave some
leeway to caste by saying that caste could be considered as one of the
relevant factors in determining social and educational backwardness. But at
the same time it was made clear that that terms ‘caste’ and ‘class’ are not
synonymous. The Court observed:

We do not intend to lay down any inflexible rule for the Government
to follow. The laying down of criteria for ascertainment of social and
educational backwardness of a class is complex problem depending upon
many circumstances, which may vary from state to state and even from place
to place in a State. But what we intend to emphasize is that under no
circumstance a ‘class’ can be equated to a ‘caste’ though the caste of an
individual or a group of individuals may be considered along with other
relevant factors in putting him in particular class. We would also like to
make it clear that if in a given situation caste is excluded in ascertaining a
class within the meaning of Art. 15 (4) of the Constitution, it does not vitiate
the classification if it satisfied other tests.

In P. Rajendran v. State of Madras16 the Supreme Court upheld the

ratio in Hariharan Pillai’s case. The question was whether caste could be
considered the sole criterion for determining socially and educationally
backward class. The Court observed that if the caste as a whole was socially
and educationally backward reservation could be made in favor of such caste
within the meaning of Article 15 (4) The Court also struck down district-
wise distribution of seats in the Medical Colleges on the basis of population
in each district to that total population of the State. This could not be
permitted under Article 14. But at the same time in Nishi Maghu v. State of J
& K17 the classification of ‘social castes’ made with reference to the nature
353
of occupations and the classification based on areas adjoining actual line of
control and ‘bad pockets in Jammu and Kashmir being really backward
areas’ and residents of these areas being socially and educationally
backward were valid.

In P. Sagar v. State of A.P.18 the High Court reiterated the stand that
caste should not be the sole criterion for measuring backwardness. The
questions was whether the list of backward classes based solely on caste was
legal. The Court answered this question in the negative. It observed that the
impugned order infringed Article15(1).In B. Sayeed Ahamad v. State of
Mysore,19 the High Court felt that the occupation and income of the parent
fell very much within the category of backwardness. The same Court ruled
that family income could be the basis for deciding backwardness in Shetty v.
State of Mysore.20

A Periya Karuppan v. State of Tamil Nadu21 was indeed a landmark

case in respect of the issue of reservation. The candidates challenged the
unit-wise selection of Medical Colleges including the reservation for
backward classes. Another significant question was the determination of
backwardness on the sole basis of caste. Hegde J. observed that ‘a caste has
always been recognized as a class’. The learned Judge perhaps was not
aware of the consequences of such observations. The pertinent question,
here is, will it help abolish caste. The question whether 41% reservation for
Scheduled Caste, Scheduled Tribes and Other Backward classes could be
valid. The apex Court declared that the unit-wise reservation for SCs, STs
and OBCs was vaiolative of Articles 14 and 15. But the classification of
backward classes on the basis of caste was held to be within Article 15 (4).
The Court also observed that 41% reservation was not excessive.
354
Commenting on this aspect of the judgment Anirudh Prasad (1991) writes.
“Rajendran, Balaram and Periyakaruppan appear to present a ‘retreat’ from
judicial efforts to search secular and rational criterion.”22

The Bombay High Court held that the proportion of population of

backward classes, SCs and STs to the total population of the state being the
basis for determining the quantum of reservation, valid and reasonable. The
provision for the carry forward of vacant reserved seats of the one of the
sub-groups of backward class to that of the other sub-group was held to be
valid.23 The adoption of criteria of income and occupation for identifying
backward classes was not against Article 15 (4) and 16 (4). Notification to
this effect was held valid by the High Court in G.N. Guidigar v. State of
Mysore.24

In Paravatnalini v. State of Orissa and Others25 it was held that

reservation under Article 16(4) be read along with Article 355. Reservation
under Article 16(4) was not binding on the state. It may be left to the
discretion of subject to the satisfaction to the satisfaction of a minimum
standard of suitability. How this discretion is exercised by the state depends
on the political situation that warrants that the party in power uses the power
of discretion in such a way as to satisfy the ‘vote bank’. This is one of the
fallouts of the ‘majoritarian principle’ that governs the working of
parliamentary democracy.

The Supreme Court favored the decision of the state to use caste as
the basis for determining backwardness. It observed that if the entire caste
was socially and educationally backward, caste could be taken as the basis

355
for identification of Backward Class and this is not violative of Article
15(4).

In Subash Chandra v. State of U.P.,26 the Allahabad High Court held

that people of rural areas, hill area and Uttarakand division belong to
socially and educationally backward classes under Article 15(4) but the
same court in Dilip Kumar v. State of U.P.27 held that the number of
candidates from reserved areas appearing in the Pre-medical test and also the
shortage of Higher secondary schools in that area were not adequate reasons
for classifying all the residents of that area as belonging to educationally
backward.

In State of A.P v. U.S.V. Balram28 the Supreme Court heard three

appeals together. The State of A.P. was the first appellant. The appeals were
directed against the judgment of the High Court of Andhra Pradesh that
struck down Rule 9 in the Rules relating to the selection of candidates for
admission to the Government Medical Colleges. One aspect of the impugned
Rules was about reservation of seats in the professional colleges, for
Backward Classes. Incidentally the conclusions arrived at by the Backward
Classes Commission of Andhra Pradesh was also challenged. Observation of
the Supreme Court in this regard is significant. “In fact the Commission has
categorically stated that information received from various schools showed
that the percentage of education was slightly higher than the state average in
respect of some small groups but in view of the fact that their living
conditions were deplorably poor, the slightly higher percentage of literacy
should not operate to their disadvantage.” Indirectly at least the Court has
acknowledged the economic factor in backwardness. The Court in this
regard has said:
356
 No doubt our attention was drawn to a decision of the Kerala High
Court, which has held that reservations is irrespective of some of the
candidates belonging to the backward classes getting admission on their own
merit. The Andhra Pradesh High Court has taken a slightly different view. If
a situation arises wherein the candidates belonging to the groups included in
the list of Backward Classes, are able to obtain more seats on the basis of
their own merit, we can only state that it is the duty of the Government to
review the question of further reservation of seats for such groups. This has
to be emphasized because the Government should not act on the basis that
once a class is considered as a Backward Class it should not continue to be
backward for all time.

In Pradip Tandon v. State of U.P.29 the Supreme Court held that

reservations in favor of rural areas were not justified under the reservations
for socially and educationally backward class of citizens. In the present case
the relevant Government Order that reserved seats for candidates from rural,
hill and Uttarakhand areas. This was held unconstitutional.30 The Court by
way of interpretation of Article 15(4) said:

The backwardness contemplated under Article 15(4) is both social and

educational. Article 15(4) speaks of backwardness of classes of citizens. The
accent is on classes of citizens. Article 15(4) also speaks of Scheduled
Castes and Scheduled Tribes. Therefore socially and educationally backward
classes of citizens in Article 15(4) could not be equated with castes. In M.R.
Balaji v. State of Mysore and State of A.P. v. Sagar this Court held that
classification of backwardness on the basis of castes, would violate both
Article 15(1) and 15(4).

357
 In Kumari K.S. Jayasree v. State of Kerala31 the Supreme Court went
into the merit of the State Government’s Order dated 2 May 1966, that those
OBC candidates seeking admission to Medical Colleges and whose parent’
income is above Rs. 10,000 per annum would not come under reservation
benefits. The Court said:

‘The problem of determining who are socially and educationally

backward classes is undoubtedly not simple. Sociological and economic
considerations come into play in evolving proper criteria for its
determination. This is the function of the State. The Court’s jurisdiction is to
decide whether the tests applied are valid. It appears that the tests applied are
proper and valid the classification of socially and educationally backward
classes based on the test will have to be consistent with the requirement of
Article 15 (4).’

The Court in its judgment upheld the validity of the Kerala

Government Order and thereby indirectly recognized the economic factor in
deciding backwardness.

The question in Aari Gupta v. State of Punjab32 whether the

Government could make relaxation in mark for the Scheduled Caste and
Scheduled Tribe candidates. According to the first notification of the Punjab
Government SC/ST candidates had to secure only 35 per cent of marks in
the competitive exam to qualify for medical admission. Yet for 100 reserved
seats only 32 qualified. The general candidates claimed those reserved seats.
However the Government issued a notification reducing the minimum
percentage to 25. This was challenged by the general candidates before the

358
High Court, which dismissed the petition. Hence they approached the
Supreme Court.

The Supreme Court rejected the argument that the Medical Council of
India prescribed 40% as the minimum and Universities could not reduce it
further. But the Court did not accept the argument. Citing earlier decisions,
the court observed that how the selection has to be made out of the eligible
candidates is a matter, which depends upon circumstances prevailing in a
particular state. In an earlier case M.P. v. Nivedita Jain.33 The State
Government fully deleted the prescription of the percentage of marks in the
selection examination. Through the case was worse than the present one the
Court upheld the Government decision. Here too, therefore, the Court upheld
the Order of the Government, which was in favour of reservation that could
not be encroached upon by general candidates.

In state of Punjab v. Dayanand Medical College and Hospital34 it was

held that though in a sense the Medical Council of India could also be a
‘State’ for certain purpose, such a body would not be suited to make the
necessary reservation in respect of socially and educationally backward
classes in terms of Art. 15(4) of the Constitution because of the need or the
necessity for prescription, taking into account several considerations such as
different levels of social, economic and educational development of the State
or different regions in the State. Such considerations arise in the context of
Article 16 as well. It is well known that the States often do appoint
Backward Classes Commission to identify the socially and educationally
backward classes of India, though in the context of fixing the standards and
the extent of backward classes and the manner in which their backwardness
have to be ameliorated. These vital aspects of policy necessitated equally by
359
great public and general importance can be properly appreciated by the
Government, Central or State, rather than the Medical Count to which the
difference in standards have to be maintained between the general category
and the reserved category must be left to Medical Council of India. Thus,
proper balance will have to be struck both by the Medical Council of India
and by the Government, Central and State exercise of their respective
powers. The Medical Council of India, a creature of a statute, cannot be
ascribed with such powers to reduce the state Government to nothing on and
in respect of areas over which the States have constitutional mandate and
goal assigned to them to be performed.

In Rajesh Kumar Verma v. State of M.P.35 a Government Order

relaxing the minimum mark requirement was the issue. Admission to
Medical Courses was governed by Rules made by the State Government.
The State Government provided reservation for Scheduled castes and
Scheduled Tribe candidates. The Rule also provided that in case eligible
candidates to the extent of reservation in any category are not available, the
vacancies of the reserved category will be filled from the waiting list of
candidates in general category. There was also relaxation of marks. For
English minimum mark prescribed is 25%, but that will not be included in
the aggregate. In the present case it so happened that out of 87 seats
available to Scheduled Caste candidates only 40 students qualified for and
mission and regarding Scheduled Tribes only 30 students qualified and the
number of seats was 87. This resulted in the fact that out of 174 seats
reserved 94 fell vacant. In the ordinary course these should have gone for
general candidates. But the State Government in the meanwhile by an Order
reduced the minimum qualifying marks in English to 15% for Scheduled

360
Caste candidates and 10% for Scheduled Tribe candidates. This Order was
challenged through a Writ petition before the Division Bench of the High
Court. The contention was that those unfilled seats should go to general
candidates and Order was no justifiable. The High Court accepted the
argument and ordered so. But in appeal the Supreme Court pointed out that
in the absence of any law to the contrary it was open to the State
Government to relax the rule prescribing the minimum qualifying marks to
ensure the interests of these category of students was protected and they
receive protection to the extent it was necessary for their upliftment.

In Ritesh R. Sah v. Dr. Y.L. Yamul.36 The Court observed that if a

candidate belonging to the backward class got admission to a course on
merit-in the instant case admission in the Medical College-it could not be
considered to be admitted against reserved category. The ape Court
instructed the Maharashtra Government that the ‘above said directions
should be borne in mind and the rules should be made accordingly’.

In Dr. Sadhana Devi v. State of U.P.37 The Government of U.P. issued

a circular dispensing with the requirement of minimum mark for the
admission to Postgraduate course in Medicine for the Scheduled Castes and
Scheduled Tribes candidates. The Supreme Court held:

The importance of merit being the only criterion for admission to

post-graduate medical courses viz. MD, MS and the like was also
emphasized in Dr. Pradeep Jain v. Union of India. (1984) 3 SCC 654: (AIR
1980 SC 1420).

But this line of inquiry need not detain us here in this case because the
case of the petitioners is not that there should be no reservation for the

361
candidates belonging to the three special categories mentioned hereinabove
at the post-graduate level. Their contention is that candidates belonging to
the three special categories must be able to secure the minimum qualifying
marks in the admission tests in order to gain admission to post-graduate
medical courses. If they fail to secure even the minimum qualifying marks,
then the seats reserved for them should not be allowed to go waste but
should be made available to the candidates belonging to general category.
This contention must he upheld. Otherwise, to borrow the language used in
Dr. Jagdish Saran case (AIR 1980 SC 820), this will be a “national loss.”

Before we part with this case, we may refer to another judgment of

this Court in Mohan Bir Singh Chawla v. Punjab University. Chandigarh,
1996 (9) SCALE 351, in which it was observed after a review of the case
law “the higher you go, in any discipline, lesser should be the reservation-of
whatever kind.”

In that view of the matter, this writ petition succeeds. This decision
contained in the letter dated 31-8-1995 addressed by the Principal Secretary.
Uttar Pradesh government to the Director General, Medical Education and
Training, Uttar Pradesh directing that there shall be no minimum qualifying
marks for Scheduled Castes/Scheduled Tribes/Other Backward Classes
candidates in the written examination for admission to postgraduate and
diploma courses is quashed. It is directed that if the seats reserved for
SC/SC/OBC candidates cannot be filled up on account of failure of the
candidates belonging to these categories to obtain the minimum qualifying
marks, then such seats should be made available to the candidates belonging
to the general category.

362
 Admission to Medical Colleges again became an issue in Rajiv
Mittal v. Maharshi Dayanand University.38 There were 49 seats in the open
category and 11 seats for reserved category for M.B.B.S. at Rohtak Medical
College. In the first counseling there were a few vacant seats in the general
category and hence second and third counseling were held and candidate
with serial number 60 was admitted. Sunil Yadav who belonged to the
backward community came with the rank of 62 in the merit list. There was
again one seat vacant in the general category. As candidates with 61, 62, 63,
64, and 65 did not join the general candidate with 66th rank was offered the
seat.

Respondent No. 3 who belonged to the reserved category could not

get admission in the Rohtak Medical College inasmuch as his merit position
in the reserved category was at serial No. 12 while the number of seats in
this category in that college was only 11 and all those seats has been filled.
He thereupon filed a writ petition in the Punjab and Haryana High Court
contending that Sunil Yadav should have been adjusted against the general
category seat which had been allotted to the appellant herein in the second
counseling held on 26-09-1966.

The High Court, allowed the writ petition filed by respondent No. 3 as
it held that it was “settled principle of law that a candidate from the reserved
class, if is entitled to get admission to a course of his own merit in the
general list, he must be treated on his merit and not accommodated against
the reserved vacancy”. It thereupon came to the conclusion that Sunil Yadav
should have been adjusted against the one seat in the general category which
had been offered to the appellant at the time of second counseling and that

363
the reserved seat, which would be so vacating by Sunil Yadav, should be
offered and admission granted to respondent No.3.

But the Supreme Court did not agree with the finding of the High Court. The
apex Court observed:

On behalf of the appellant, it has been contended that the High Court
could not direct that Sunil Yadav should be considered as having been given
the general category seat in the second counseling when he had already
secured admission in the first counseling in the reserved category.

The Court, thus, set aside the judgment of the High Court, the result of
which would be that writ petition filed before the High Court would stand
dismissed.

In Dr. Preethi Srivastava v. State of M.P.39 the Supreme Court

considered six petitions together. The issue was whether there could be
provisions for reservation of seats in specialty and super specialty courses in
Medicine. The state of U.P. fixed the cut off percentage of 20 per cent marks
for reserved candidates as against 45 per cent for the general candidates. The
State of M.P. fixed 20% for Scheduled Castes and 15% for Scheduled Tribes
and 40% for other backward classes. According to the Court “The disparity
of qualifying marks being 20 per cent for the reserved category and 45 per
cent for general category is too great a disparity to sustain public interest at
the level of post graduate medial training and education.”

In K.Duraisamy and another v. State of T.N. and others.40 The

Government Order that provided 50 per cent quota for in-service and 50 per
cent for non-services candidates for admission in the specialty and super
specialty courses in Medicine was challenged. The Court held the Order

364
valid. According to the Court ‘quota’ and ‘reservation’ are different
concepts. Therefore the matter does not come under Article 15(4).

A case came before the Supreme Court where a similar notification of

the Punjab Government was challenged. In State of Punjab v. Dayanand
Medical College and Hospital41 the impugned notification fixed the quota of
60 per cent for in-service candidates and 40 per cent for non-service. The
Court held the notification valid. But the Court observed that with regard to
marks in the tests the State could not make any relaxation.

But the apex Court would quash any unreasonable fixing of quota.
This happened in the case of A.I.I.M.S. Student Union v. A.I.I.M.S.42 the rule
regarding admission to Post-Graduate Course in AIIMS was based on the
quota of Institutional reservation of 33 per cent coupled with 50 per cent
reservation discipline-wise. This was held super reservation and hence it
infringed the equality principle to Article 14.

In “Dr. Narayan Sharma v. Dr. Pankaj Kr. Lehkar43 the questions

before the Court were, 1. Whether reserving seats in the Assam Medical
College for the postgraduate course to candidates form North Eastern
Council area. 2. Whether there could be reservation for the teachers in
medicine for the postgraduate course. The Court held both these reservations
were constitutionally valid. The impugned law in this case was Assam
Medical Colleges (Regulation of Admission to Post-Graduate Course) Rules
(1997).

In Ashok Thakur v. Union of India and others44 hailed as Mandal II,

the Supreme Court’s constitution Bench has passed the way for social justice
in higher education. In four separate judgements running to 369 pages, five

365
judges of the Supreme Court have attempted to answer about 25 questions
on India’s pursuit of affirmative action in higher educational institutions.
The Bench was disposing of certain public interest petitions challenging the
constitutionality of 93rd Constitution Amendment Act, enacted in 2005
inserting Article 15(5) of the Constitution. The petitioners also challenged
the validity of Central Educational Institutions (Reservation in Admission)
Act, 2006, which provides reservation in admission to certain Central
Government run educational institution for students belonging to SC, ST and
other OBC categories.

Hearing the arguments from both the sides the Court pronounced this
monumental judgement on 10th April, 2008 which provides for the
following:

The 93rd Constitutional Amendment Act, inserting Article 15(5), does

not violate the basic structure of the Constitution so far as it relates to aided
educational institutions. As far as private unaided educational institutions are
concerned, four out of five judges have left the question open in the absence
of challenge by such institutions, while Dalveer Bhandari J. has held that it
violates the basic structure.

The Central Educational Institution (Reservation in Admission) Act,

2006, is constitutionally valid subject to the exclusion of creamy layer.

The quantum of 27% reservation for OBC’s is not illegal.

The 2006 Act is not illegal merely because a time limit is not
prescribed for reservation.

There should be a review of the lists of socially and educationally

backward classes every five years.
366
 In the judgement of Ashok Kumar Thakur45 case, the Supreme Court
rightly excluded creamy layer from the list of other backward classes. It also
vehemently negated the policy of reservation regarding promotions.

Employment

Probably, the first case where Constitutional provision for 'protective

discrimination' for weaker sections, was tested on the touchstone of
Fundamental Right of equality of treatment, is the one concerning 'equality
of opportunity in employment'. This was B. Venkitaramana v. State of
Madras46 where the aggrieved party namely a Brahmin candidate for the
post of Munsif approached the Court for he was alleged to have been
discriminated, against by the Public Service Commission. The Supreme
Court held that this discrimination was illegal and unconstitutional. He
suffered from this discriminatory treatment because of the rules of
reservation envisaged in the Communal G.O. of the government of Madras.
The Court observed:

‘For instance the petitioner may be far better qualified

than a Muslim or a Christian or a non-Brahmin candidate
and if all the posts reserved for those communities were
open to him, he would be eligible for appointment, as is
conceded by the learned Advocate-General of Madras,
but, nevertheless he .cannot expect to get any of these
posts reserved for those different categories only because
he happens to be a Brahmin. His ineligibility for any of
the post reserved for the other communities, although he
may have far better qualifications than those possessed

367
 by members falling within those categories, is brought
about only because he is a Brahmin and does not belong
to any of those categories. This ineligibility created by
the Communal G.O. does not appear us to be sanctioned
by cl. (4) of Article 16 and is an infringement of the
fundamental right guaranteed to the petitioner as an
individual citizen under Article 16 (1) and (2). The
Communal G.O., in our opinion, is repugnant to the
provisions of Article 16 and is as such void and illegal.’

Again the Court in this case directed the government to “consider and
dispose of the petitioner's application for the post after taking it on file on its
merits and without applying the rule of communal rotation."

The Supreme Court gave a favourable verdict in the case of

reservation of selection posts in the railway service in Rangachari v. G.M
Southern Railways.47 The Supreme Court held that the very term 'Backward
Classes' included Scheduled castes and Scheduled Tribes. The Court
interpreted Article 16(4) thus:

Article 16(4) clearly shows that the power conferred by it

can be exercised in cases where the State is of the
opinion that any backward class of citizens is not
adequately represented in the service under it. In other
words opinion formed by the State that the representation
available to the backward class of citizens in any of the
services is inadequate is a condition precedent for the
exercise of the power conferred by Article 16(4) and so

368
the power to make reservation as contemplated by Article
16 (4) can be exercised only to make the inadequate
representation in the services adequate. If that be so both
"appointments" and "posts" to which the operative part of
Article 16 (4) refers and in respect of which the power to
make reservation has been conferred on the State must
necessarily be appointments and posts in the services. It
would be illogical and unreasonable to assume that for
making the representation adequate in the services under
the State a power should be given to the State to reserve
posts outside the cadre of services. Again the Court went
on to elaborate:

The condition precedent may refer either to the numerical

inadequacy of representation in the services or even to the
qualitative inadequacy of representation. The
advancement of socially and educationally 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 representation in
selection posts in the services as well. In the context of the
expression 'adequately represented imports considerations
of "size" as well as "values", numbers as well as the nature
of appointments held and so it involves not merely the
numerical test but also the qualitative one. Thus the Court
arrived at the conclusion that;

... and if that be so, it would not be reasonable to hold

369
 that the inadequacy of representation can and must be
cured only by reserving proportionately higher
percentage of appointments at the initial stage.

In T. Devadasan v. Union of India, where the Court invalidated the

unreasonable 'carry forward rule' is another landmark judgement.

The central issue in Prem Prakash and others v. Union of India48 is

the refusal of appointment to certain Scheduled Caste candidates because of
lack of reserved vacancies. They had to be accommodated. In January 1980
the Delhi High Court held art examination for recruiting officers to the Delhi
Judicial Service. It was stated that out of 16 vacancies 2 were reserved for
Scheduled castes and 1 for Scheduled Tribes. In addition there were two
carry forward vacancies for members of Scheduled Tribe. If Scheduled
Caste candidates were not available they might be transferred as reserved
vacancies for Scheduled Caste candidates. After the written examination and
viva voce test only 11 candidates passed. Seven out of these 11 had
competed for open seats while four had competed for seats reserved for the
Scheduled Castes. In normal course vacancies, which are intended to be
filled by holding an examination in any particular year are filled from
amongst candidates who had appeared for that examination. But the matter
was made complicated by the fact that two Scheduled Caste candidates who
had passed the tests in 1979 and had not been appointed due mainly to the
official error, were accommodated in 1980 vacancies as a result of the writ
petition they had filed. But in doing justice to them (and delayed justice for
that matter) justice was denied to the Scheduled Caste candidates who
passed the tests in 1980. The apex Court observed:

370
 The error from which the calculation of the High Court
suffers is that the number of vacancies available for the
Scheduled caste candidates was fixed according to the
number of candidates who qualified for the general seats.
The counter affidavit states expressly that the availability
of vacancies for reserved category was determined on the
basis that only seven candidates had qualified for the
general seats. This according to us is neither justified by
the Rules and administrative instructions nor indeed does
such a method of fixation of reserved vacancies disclose
any acceptable basis. 16 vacancies were advertised in the
first instance out of which 11 were for general candidates
and 5 for reserved candidates. Administration is not
found to fill all the vacancies, which are advertised. But
the availability of vacancies for the reserved categories
cannot be made to depend upon the accidental
circumstances of how many candidates have qualified for
general seats. In the first place that would be contrary to
the instructions ... Secondly such a method will lead to
the absurd and undesirable consequence that no candidate
of the reserved category will be appointed at all if only
one or two candidates from general category qualify in
the examination.

And the Court allowed the writs.

Again the one-post issue came up in Chakradhar Paswan v. State of

Bihar49 and the Supreme Court has held that if there is only one post, it
371
could not be reserved because reservation under Article 16(4) does not
permit the creation of monopoly of certain class on certain category of posts.

In this case, the State Govt. of Bihar directed that separate Directorate
should be created each for Indigenous Medicines; the Director being from
one of the systems of ,medicines namely Ayurvedic, Unani and
Homeopathic. When separate Directorate was created the Government
sanctioned the posts of two Deputy Directors for each of the two remaining
systems. The State Government had in accordance with the decision of the
Supreme Court prescribed a 50-point roster to implement the policy of
reservation to posts and appointments for members of the backward classes
under Art. 16(4). It was laid down that “if in any grade, there is only one
vacancy for the first time, then it will be deemed to be unreserved and for
the second time also, if there be only one vacancy, then it will be deemed to
be reserved”. Acting upon the roster the Joint Secretary to the Government,
General Administration Department (Personnel) made a proposal for
reservation of the post of Deputy Director (Homeopathic) for members of
the scheduled castes. He said that in the Directorate of Indigenous
Medicines, three posts had been sanctioned - (1) Director of Indigenous
Medicines' (2) Deputy Director (Homeopathic) and (3) Deputy Director
(Unani). All these Posts were Class I posts. He suggested that according to
the roster of appointments, out of these three posts the first, namely, that of
Director be treated as unreserved, the second should be treated as reserved
for scheduled caste candidate and the third should be unreserved. According
to him, all the posts could be grouped together from the point of view of
reservation.

The Supreme Court did not accept the arguments of the Bihar
372
Government. The Court observed that though the Directorate of Indigenous
Medicines comprises of four posts, namely, that of the Director and three
Deputy Directors, which were Class I posts, the posts of Deputy Directors
would not constitute one “cadre”. They are members of the same Service but
do not belong to the same cadre. According to the 50 point roster, if in a
particular grade a single post falls vacant should, in the case of first vacancy,
be considered as unreserved i.e. general and on the second occasion when It
single post again falls vacant, the same must be treated as reserved.
Admittedly, the post of the Director is the highest post in the Directorate of
Indigenous Medicine with a higher pay scale while the posts of the Deputy
Directors carried a lower pay scale. The posts of the Director and those of
the Deputy Directors constitute different cadres of the Service, It is manifest
that the Post of the Director of Indigenous Medicines, which is the highest
post in the Directorate carried a higher grade or scale, could not possibly be
equated with those of the Deputy Directors on a lower grade or scale. In
view of this, according to the 50-point roster, if in a particular cadre, a single
post falls vacant, it should, in the case of first vacancy, be considered as
general. That being so, the State Government could not have directed
reservation of the Post of Deputy Director (Homeopathic) which was the
first vacancy in a particular cadre i.e. that of the Deputy Directors, for
candidates belonging to the Scheduled Castes. Such reservation was not in
conformity with the principles laid down in the 50-point roster and was
impermissible under Art. 16(4) of the Constitution and clearly violative of
the guarantee enshrined in Art.l6 (1), Clause (4) of Art. 16 is by way of an
exception of the proviso to Art.16 (1). The reservation of the post of Deputy
Director (Homeopathic) would amount to 100% reservation which was

373
impermissible under Art. 16(4) as otherwise it would render the guarantee of
equal opportunity in the matter of public employment under Art. 16(1)
wholly elusive and meaningless. If there is only one post in the cadre, there
can be no reservation under Art.16 (4) of the Constitution. The whole
concept of reservation for application of the 50-point roster is that there are
more than one post, and the reservation as laid down by the Supreme Court
can be up to 50 per cent. The three posts of Deputy Directors of
Homeopathic, Unani and Ayurvedic are distinct and separate as they pertain
to different disciplines and each one is an isolated post by itself carried in
the same cadre. There can be no grouping of isolated posts even if they· are
carried on the same scale.

In P. Rajendran v. State of Madras50 the Supreme Court uphold the

ratio in Hariharan Pillai. The question was whether caste could be
considered the sole criterion for determining socially and educationally
backward classes. The Court observed that if the caste as a whole was
socially and educationally backward reservation could be made in favor of
such caste within the meaning of Article 15(4). The Court also struck down
district-wise distribution of seats in the Medical Colleges on the basis of
population in each district to the total population of the State. This could not
be permitted under Article 14. But at the same time in Nishi Maghu v. State
of J&K51 the classification of 'social castes' made with reference to the nature
of occupations and the classification based on areas adjoining actual line of
control and bad pockets in Jammu and Kashmir being really backward areas
and residents of these areas being socially and educationally backward were
valid.

Posts and Telegraphs Department undermined the policy of

374
reservation by introducing a common norm for reservation or its personnel.
In 1983 an agreement was arrived at between the Ministry of
Communications and certain associations of employees working in the Posts
and Telegraphs Department. Consequently a fresh order relating to the
policy of promotion to be adopted in the Posts and Telegraphs Department
was issued in suppression of the scheme of reservation followed till then.
Under the said new policy-irrespective of the fact whether an employee
belonged to the general category or to the category of the Scheduled Caste
and the Scheduled Tribes he would be able to get promotion to the higher
cadre on the completion of 16-years. Thereby the comparative advantages
which the members belonging to the Scheduled Castes and the Scheduled
Tribes were enjoying were taken away and all the employees, namely, the
employees belonging to the Scheduled Castes, the 'Scheduled Tribes and to
the other categories were placed at par.

In P and T Scheduled caste/Tribe Employees Welfare Association

(Regd.) v. Union of India52 the Court held that this order deprived the right
of the Scheduled Caste/Scheduled Tribes for they had been enjoying the
advantages of 'protective discrimination'. This also violated the equality
clause of the Constitution. Persons belonging to the Scheduled Castes and
the Scheduled Tribes in other Departments were enjoying similar advantage
and only the employees of P. and T. Department had been deprived of it.
The Court observed that it could not issue writ on this matter for Article 16
(4) was only an enabling provision. Justice Venkataramaiah pointed out the
significance of Article 46 of the Constitution. It provides that the State shall
promote with special care the educational and economic interests of the
weaker sections of the people, and in particular of the Scheduled Castes and

375
the Scheduled Tribes, and shall protect them from social injustice and all
forms of exploitation.

In State of Karnataka v. K.B. Urushabendra Kumar53 the question is

whether a person could claim appointment on the basis of the income of his
adoptive family. In August 1987, applications were invited by the State of
Karnataka for appointment of Sericulture Extension Officers. Two posts
were shown reserved for members of the backward classes Group 'D'.
Regarding one post there is no dispute. Regarding the other there arose
dispute between respondents 1 and 2. It appears that these respondents on
the basis that they were members of the backward classes of the kind applied
for the post and rubbed shoulders before-the Karnataka Public Service
Commission. The Commission rejected the candidature of respondent No. 1
on the basis that he did not fulfill the income criteria inasmuch as his natural
family had income above Rs. 10,000/- per annum making him ineligible
even though his adoptive family had income less than Rs. 10,000/- per
annum. The adoption of respondent No. 1 as such was never disputed. The
Commission on rejecting the candidature of respondent No. 1 in the
backward class category treated him as a candidate in general category and
did not show him in the order of merit for appointment in the later category.
Consequently No. 2 was selected and recommended for appointment on that
basis. The Government accordingly appointed him somewhere in the year
1989 and he has continued in the post thereafter. In the meanwhile
Respondent No. I challenged the view of the Commission in rejecting his
candidature before the Administrative Tribunal, Bangalore. The Tribunal
took the view that since adoption was valid evidence as it was by a
registered deed of the year 1979, there had been severance of relationship of

376
respondent No. 1 with his natural family and consequently he stood uprooted
from that family and transplanted in his adoptive family whose income alone
could be taken into account.

The Court observed:

When the factum of adoption and its legality remains

unquestionable the law of the Hindus on the subject must
necessarily have its consequences. Having gone to his
new family, respondent No. 1 rightfully acquired their
economic status. It is just a matter of fate that in his
adopted fami1y he has comparatively been worse off but
it could be the other way had his adoptive family been
affluent. The view of the Tribunal in these circumstances
appears to us reasonable requiring no interference at our
end.

Thus the Court agreed with the Tribunal and thereby restored the
claim of respondent No.1 in P.S. Ghalaut v. State of Haryana and others.54
The Court was concerned with the Constitution of India, Art.16 (4) vis-a-vis
the Haryana Medical Education Service Rules (1965) regarding inter se
seniority. Public Service Commission showed general candidate as more
meritorious than reserved candidate. He shall be senior to reserved candidate
but applying roster points made the appointment. Thus the reserved
candidate steals seniority over general class candidate. The Supreme Court
observed that this was not arbitrary.

In State of U.P. v. Dr. Dina Nath Shukla55 the question whether

Faculty wise or Discipline wise reservation is ultra vires. The confusion was

377
mainly in the advertisement. The Court observed that if the subject wise is·
adopted in each service or post in each cadre in each faculty, discipline,
specialty or super-specialty, it not only be clear to the candidates who seek
recruitment but also there would be no overlapping in application of the rule
of reservation to the service or posts as specified and made applicable by the
relevant Act ... If there is any single post of professor or Reader or Lecturer
in each faculty, discipline, specialty or super-specialty, which can not be
reserved for reserved candidates, it should be clubbed and roster applied and
be made available to the reserved candidates in terms of the Section-3(5) of
U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes
and Other Backward Classes) Act(1 of 1994) The Court said such an
interpretation would sub serve and elongate Constitutional objective and
public policy of socio-economic justice ... mandated and envisaged in
Articles 335 and 16 (4) read with Articles 14and 16(1), Preamble, Article 38
and 46 of the Constitution and all other cognate provisions.

In. S.R. Murthy v State of Karnataka56 the question is promotion in

single promotional post. In the Government Polytechnic in Karnataka
though the appellant was the senior most person eligible for promotion, he
was not promoted because in accordance with the roster point a Scheduled
Caste candidate was to be appointed and thus a junior person got promoted,
citing previous decisions the Supreme Court held that the application for the
purpose, of promotion was not permissible.

In Ajit Singh v. State of Punjab57 the Court went into the question of
seniority of reserved candidates and general candidates. The Court was not
concerned with the reservation policy of the State' or with the validity of any
procedure fixing roster points for purpose of promotion of reserved
378
candidates. The Court was dealing only with a limited question relating
mainly to seniority of the reserved candidates promoted at roster points.
According to the Court Articles 16 (4) and 16 (4A) open with a non-
obstinate clause for it begins, "Nothing in this Article shall prevent the State
from making any provision for reservation ... "and hence these Articles do
not confer any fundamental right. Hence they do not impose any
Constitutional duty and writ of mandamus could not be issued to provide for
reservation or for relaxation

In State of Punjab v. G.S. Gill58 the respondent was appointed as

Junior Technical assistant in the Department of Industries of the state of
Punjab. The next promotional cadre was Assistant Superintendent Quality
Marking Center (Textile). But this post was reserved for Scheduled Caste
candidate. The respondent's contention was that the in the case of solitary
post reservation would amount to 100 per cent reservation and hence it
would be a violation of Articles 14 and 16(1). But the Court did not agree
with this argument. When the respondent approached the High Court. it had
agreed with the contention and said that in a single post cadre there could
not be any reservation at all. Thus the government appealed before the
Supreme Court. The Court pointed out that the reservation was made
according to the rule that is in accordance with the roster. Focusing on
similar cases the Court arrived at the conclusion that the decision of the High
Court was wrong because 'reservation provided to single post on the basis of
rule of rotation is not unconstitutional'.

The above decision was reiterated in Union of India v. Brij Lal

Thakur.59 The post of E.C.G. Technician in the Grade became vacant on
November 30, 1993 in the Central Hospital, Northern Railway due to
379
retirement of the incumbent. For promotion of Theater Assistants to the said
post, trade test was conducted in which Smt. Prakash Kaur belonging to
Scheduled Castes and two others were called. The vacancy to be filled up
was reserved for Scheduled Castes in a Garry forward post as per the
rotation of the roster. In the trade test Smt. Prakash Kaur was found suitable
and she was accordingly promoted as E.C.G. Technician w.e.f. December 9,
1994. The respondent an unsuccessful candidate filed O.A. in the Tribunal
contending that since the post of E.C.G. Technician is the solitary post,
reservation as per roster is unconstitutional, as it would lead to 100%
reservation. The contention found favour with the Tribunal. Accordingly, it
set aside the appointment by promotion of Smt. Prakash Kaur and gave
direction to treat it as unreserved post and to consider the case of the
respondent for appointment to the post according to Rules. The controversy
is no longer res integra. The Court in Union of India v. Madhav s/o Gajanan
Chaubal60 by a Bench of three-Judges considered the entire case law
following the Constitution Bench judgment in A. R. Choudhury v. Union of
India,61 Commr. of Commercial Taxes v. D. Sethu Madhava Rao,62
Venkateswarlu v. Govt. of A.P63. and State of Bihar v. Bageshwarki
Prasad.64 It was held that "even though there is a single post, if the
Government have applied the rule of rotation and roster point to the
vacancies that had arisen in the single point post and were sought to be filled
up by the candidate belonging to the reserved categories at the point on
which they were eligible to be considered, such a rule is not violative of
Articles 14 and 16(1) of the Constitution". In that case the post of Secretary
in the National Savings Scheme Service was a single point post to which 40
point roster was maintained to the vacancy in the said post. When the

380
Scheduled Tribes candidate was selected for promotion on the basis of the
rule of rotation, it was held by the Tribunal that the promotion was violative
of Articles 14 and 16(1) of the Constitution. Reversing that order it was held
that:

Thus, the Government has adhered to the rule of rotation

to a single post and the 40 point roster to the single post
was applied and the vacancy reserved for the Scheduled
Castes and Scheduled Tribes as and when had arisen, was
sought to be filled up, when the candidates were
available. Thus, we hold that the roster point No. 4 in
the-vacancy of the Secretary reserved for the Scheduled
Tribes was valid and constitutional. When the officer
available and was eligible to be considered, he was
entitled to he considered in accordance with the rules and
be promoted as Secretary. The Tribunal, therefore, was
not right in directing that the rule of rotation to the single
post could not be applied. It is brought to our notice that
the original promotee died pending the proceedings and,
therefore, as and when vacancy arises as per rule of
rotation as per roster the same would be filled up in
accordance with law.

In Jatinder Pal Singh v. State of Punjab65 the single post reservation

was again challenged. Reversing the decision of the High Court, the
Supreme Court reiterated its earlier stand that a single post could be
reserved.

381
 The Supreme Court has categorically held in 'Mandal case' that a
person, who belongs to a backward class and who becomes member of IAS,
IPS or any other All, India Service, his children cannot avail the benefit of
reservation. The States of Bihar and Uttar Pradesh have added further
conditions such as salary of rupees ten thousand or more per men sum, the
wife or husband to be graduate and one of them owning a house in an urban
area. So far as the professionals are concerned, an income of, Rs, 10 lakhs
per annum has been fixed as the criterion. It is further provided that the wife
or husband is at least a graduate and the family owns immovable property of
the value of at least rupees twenty lakhs. Similarly, the criteria regarding
traders, industrialists, agriculturists and others is wholly arbitrary apart from
being contrary to the guidelines laid down by Supreme Court in 'Mandal
case'.

Multiple conditions have been provided in all the categories. With

almost every category the conditions like the 'spouse' being a graduate and
holding property in urban area, are attached. 'These conditions have no
nexus with the object sought to be achieved. Since the conditions are not
severable the two criteria as a whole have to be struck-down. Thus the
criteria laid down by Bihar Reservation of Vacancies in Posts and Services
(for Scheduled Castes, Scheduled Tribes and Other Backward Classes)
(Amendment)-Ordinance, 1995 and S. 3(b) of the U.P. Public Services
Reservation of Scheduled Castes and Scheduled Tribes and Other Backward
Classes Act, 1994, for identification of "creamy-layer", would be violative of
Article 16(4), wholly arbitrary - violative of Article 14 and against the law
laid down by Supreme Court in 'Mandal case'.

Thus the Division bench declared that the creamy layer formula of
382
both the states as invalid for being against the norms indicated by the Court
in Mandal case.

Though the Government appointed a Commission to determine

'creamy layer', it went on to amend the Constitution so that reservation could
be made available to the concerned communities in promotion also.66

Sometimes the executive makes rules in such a way that this sabotage
the spirit of reservation. A case in point is Scheduled Castes and Scheduled
Tribes Officers Welfare Council v. State of U.P.67 The issue was the validity
of the memo prescribing norms for promotion in State Medical Health
Department. It was alleged that Department relaxed the criteria only when
general candidates were to be promoted. Separate list of candidates as per
roster was not prepared. Moreover it increased the minimum length of
services for promotion and the selection would be subject to efficiency test.
The Court held that the impugned Memo was issued malafide to deprive
SC/ST candidates of their chance of promotion. Hence the Memo was
quashed.

The Supreme Court reiterated that the application of roster for single
post cadre an appointment to carry forward rule is valid and constitutional
with a view to give adequate representation in public service to the reserved
category candidates, the opportunity given to them is not violative of
Articles 14 and 16(1).

The questions involved in Chatter Singh v. State of Rajasthan68

whether it was legal that the Rajasthan State and Subordinate Services
(Direct Recruitment by Combined Competitive Examinations) Rules
(1962C), R.13 does not prescribe any minimum of lowest range of marks for

383
admission to main exam. It was argued that the object of R. 13 is only to
eliminate unduly long list of candidates. Rule 13 provides that the Public
Service Commission shall conduct competitive examination in two stages,
namely, Preliminary Examination and Main Examination. As per the
Scheme specified in Rule 7 and Schedule III, Preliminary Examinations are
conducted on the subjects as per the syllabus and aggregate marks are taken
into consideration to call the candidates for Main Examination. Marks
obtained in the Preliminary Examination by a candidate would not be
counted for the purpose of Main Examination to .determine the final order of
merit. The Rule provides that if the candidates belonging to the Scheduled
Caste/Scheduled Tribe could not reach the prescribed range of marks, there
could be 5% cut off from the last range worked out for the general
candidates and make the Scheduled Caste/Scheduled Tribe candidates
qualified for the Main examination. The writ petition was to get this
concession for the Other Backward Classes (OBCs). The argument was that
the reservation applicable to the Scheduled Caste/Scheduled Tribe
candidates should be made available to OBCs and the latter be treated on par
with the former. The Court did not accept the argument. It held:

Though OBCs are socially and educationally not

forward, they do not suffer the same social handicaps
inflicted upon Schedu1ed Castes and Scheduled Tribes.
Articles 15(2) and 17 furnish historical and social
dissatisfaction inflicted on them. The object of
reservation for the Scheduled Castes and Scheduled
Tribes is to bring them into the mainstream of national
life, while the objective in respect of the Backward

384
 Classes is to remove their social and educational
handicaps. Therefore, they are always treated dissimilar
and they do not form an integrated class with Dalits and
Tribes for the purpose of Article 16(4) or l5(4).
Obviously, therefore, proviso to Rule 13 confines the 5%
further cut-off marks in the Preliminary Examination
from the lowest range fixed for general candidates. So, it
is confined only to the Scheduled Castes and Scheduled
Tribes who could not secure total aggregate marks on par
with the general candidates. The Rule expressly confines
the benefit of the proviso to Scheduled Castes and
Scheduled Tribes. By process of interpretation, OBCs,
cannot be declared alike the Scheduled Castes and
Scheduled Tribes. Therefore, the contention, that the
doctrine of fusing "any Backward Class of citizen" in
Article 16(4), further classification of Scheduled Castes
and Scheduled Tribunes and OBCs, as distinct classes for
the purpose of reservation and omission to extent the
same benefits to OBCs violates Articles 14 is devoid of
substance.

In Superintending Engineer, Public health, U. T. Chandigarh v.

Kuldeep Singh69, the Court held that the reserved posts between Scheduled
Caste and Scheduled Tribes are interchangeable. It means that in a vacancy,
which has been reserved for Scheduled Tribe, in accordance with the roster
and the Scheduled Tribe candidate is not available, the claim of Scheduled
Caste candidate could be considered.

385
 In Suresh Chandra v. J.B. Agarwal it was held that In case of a
solitary isolated post on the basis of rule of rotation, the benefits and.
facilities should be extended to the reserved candidates, namely, Scheduled
Castes and Scheduled Tribes.

In P.G. Institute of Medical Education and Research etc., v. K.L.

Narasimhan70 the Supreme Court held that reservation to single post,
applying the rule of roster, was constitutionally valid. To another question
whether Court could give direction to throw open the reserved vacancies to
the general candidates by a writ of mandamus, the Court expressed its
inability to do so. The Court has observed that it cannot give mandamus to
disobey the Constitution and the principle of reservation enshrined in Article
15(4) and 16(4). The Court is not competent to direct authorities to disobey
the constitutional mandate. It would be manifestly illegal to seek a
mandamus or a direction and the Court would not be justified to issue such
mandamus or direction to the appropriate Government to dereserve the
vacancy.

The Supreme Court has observed that the fusion of posts are
constitutional arid permissible and also that the rules of rotation and roster
are to be applied. The advertisements are required to be issued so that the
reserved and the general category candidates would apply for the
consideration of their claims for recruitment in accordance therewith and sub
serve the socio-economic justice as envisaged in and mandated by Article 14
and 16(1) 16(4), 38, 46, 335, Preamble and other cognate provisions.

In P.G. Institute of Medical Education and Research Chandigarh, v.

Faculty Association71 Reversing many previous decisions the Supreme Court

386
declared that a single post could not be reserved. The Court observed:

We ... approve the view taken in Chakradhar's case that

there cannot be any reservation in a single post cadre and
we do trot approve the reasoning in Madhav's case (1997
AIR SCW 3113); Brij Lal Thakur's case and Bageswari
Prasad's case (1995 Supp (1) SCC 432) upholding
reservation in a single post cadre either directly or by
device of rotation of roster point. Accordingly, the
impugned decision in the case of Postgraduate Institute of
Medical Education and Research cannot also be sustained.
The Review Petition made in Civil Appeal No. 3175 of
1997 in the case of Post-Graduate Institute of Medical
Education and Research, Chandigarh, is therefore, allowed
and the judgment dated May 2, 1997 passed in Civil
Appeal No: 3 175 of 1997 is set aside.

In State of Bihar v. Bal Mukund Sah72 the Supreme Court held that,
appropriate Legislature or Governor can regulate the recruitment and
conditions of service of persons appointed to public services and posts in
connection with the affairs of the State concerned. Proviso to that Article
permits the Governor of the State to fill up the gap, if there is no such
statutory provision governing the aforesaid topics. For that purpose, the
Governor may make rules regulating the recruitment and the conditions of
service of persons appointed to such services and posts until provision in that
behalf is made by or under an Act of the competent legislature, which may
intervene and enact appropriate statutory provisions for the same.
Independently of general provisions of Article 309, the Constitution has
387
made special provisions for certain Services. Even if they may be part of
public services, still separate Constitutional schemes are envisaged for
regulating recruitment and conditions of services of officers governed by
such Services. Chapter VI of Part VI deals with the subordinate Courts. It is
in Chapter VI dealing with the Subordinate Courts provision is made for
appointment of District Judges under Article 233, recruitment of persons
other than the District Judges to the Judicial Services under Article 234 and
also Control of the High Court over the Subordinate Courts as laid down by
Article 235. Article 236 deals with the topic of 'Interpretation' and amongst
others, defines by sub-Article (b) the expression "judicial service" to mean a
service consisting exclusively of persons intended to fill the post of District
Judge and other civil judicial posts inferior to the post of District Judge. It
becomes, therefore, obvious that the framers of the Constitution separately
dealt with ‘Judicial Service’ of the State and made exclusive provisions
regarding recruitment to the posts of District Judges and other civil judicial
posts inferior to the posts of the District Judge. Thus these provisions found
entirely in a different part of the Constitution stand on their own and quite
independent of Part XIV dealing with Services in general under the 'State'.
Therefore, Article 309, which, on its express terms, is made subject to other
provisions of the Constitution, does get circumscribed to the extent to which
from its general field of operation is carved out a separate and exclusive field
for operation by the relevant provisions of Articles dealing with Subordinate
Judiciary as found in Chapter VI of Part VI of the Constitution. The Court
further observed that a particular category of post forming the judicial wings
has been carved out in Chapter VI in Articles 233 to 235 so far as the
question of recruitment is concerned. When Article 309 itself uses the

388
expression "subject to the provisions of this Constitution" it necessarily
means that if in the Constitution there is any other provision specifically
dealing with the topics mentioned in said Article 309, then Article 309 will
be subject to those provisions of the Constitution. Thus the judicial services
of the State is concerned Articles 233 to 237, would override any law made
by the appropriate legislature in exercise of power under Article 309 of the
Constitution. Appointment to the judicial service is carved out in the
Constitution itself.

The Court further stated that Article 16 sub-Article (4) of the

Constitution enables the State to make provision for reservation of
appointments or posts in favour of any backward class of citizens, which, in
its. opinion, is not adequately represented in the services under the State.
This provision has to be read with Article 335 which deals with claims of
Scheduled Castes and Scheduled Tribes to services and posts and lays down
that "the claims of the members of the Scheduled Castes and Scheduled
Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State.

The Governor (that is State Government) can make no recruitment to

the post of a District Judge without recommendation from the High Court.
Similarly, appointments to Subordinate Judiciary also cannot be made by the
Governor save and except according to the rules framed by him in
consultation with the High Court and the Public Service Commission. Any
statutory provision bypassing consultation with the High Court and laying
down a statutory fiat as is tried to be done by enactment of Section 4 by the
Bihar Legislature has got to be held to be in direct conflict with the complete
389
Code regarding recruitment and appointment to the posts of District
Judiciary and Subordinate Judiciary as permitted and envisaged by
Articles.233 and 234 of the Constitution. Section 4 of the impugned Act
shall not apply for regulating the recruitment and appointments to the cadre
of District Judges as well as to the cadre of Judiciary subordinate to the
District Judges and such appointments will be strictly governed by the Bihar
Superior Judicial Service Rules, 1951 as well as by the Bihar Judicial
Service (Recruitment) Rules. The plain and grammatical meaning of the
words used in Section 4 reveals that the State Legislature in the garb of
making law in consonance with Article 16(4) encroaches upon Article 234:
The argument that reservation is intended to fulfill the Right of Equality
under Article 16(1) read with 16(4) and the question whether there has been
adequate representation of a particular backward class of citizens has been
left to the satisfaction of the State Government in Article 16(4) and,
therefore, the State Legislature cannot be denuded of its right to make such
law to fulfill the aforesaid Constitutional mandate proceeds on a premises
that the Governor, when frames rules in consultation with the High Court
and the Public Service Commission under Article 234 will not take into
consideration the constitutional mandate under Article 16(1) or Article
16(4). The premises on which the argument is based, is wrong. It is indeed
painful to notice, sometimes law makers unnecessarily feel that the High
Court or the Judges constituting the High Court are totally oblivious to the
Constitutional mandate underlying Article 16 and more particularly, Article
16(4). This indeed is a significant verdict for the policy of reservation at
least in Judicial Service is subject to the 'consultation' with the Judiciary.

390
 The cases pertaining to protective discrimination or reservation that
came up before the Supreme Court reveal following trends.

1. There is an increase in the number of reservational cases, but in the

seventies there wasn’t any apparent increase. This might be due to
tense political situation prevailed in the country culminating in the
proclamation of internal emergency in 1975.

2. The nineties show the highest number of cases. This might be due to
the increasing awareness of the backward communities about their
constitutional rights. This was made possible especially by the impact
of Central Government’s decision to implement the recommendation
of the Mandal Commission Report.

3. Regarding the nature of issues involved in the cases it can be surmised

that the questions of employment and education. It seems that one
(especially one that belongs to any of the depressed classes) believes
that a post in the government service would bring one out of social
backwardness and financial insecurity. Moreover the post in the
government service offers social dignity and sense of sharing power.

4. Cases regarding ‘education’ also show that most of them are

concerned with the admission to Medical Colleges or such other
institutions. No cases has come before the Supreme Court regarding
the basic necessity of providing educational facility for the depressed
classes. The logical conclusion ought to be that ‘elite groups’ among
the depressed classes are trying to assert their ‘rights’ obtained
through the membership of a class or caste, but at the same time these
groups are not moved by the poor condition in which their own

391
 brethren live.

Evolution of reservation jurisprudence has been described as ‘Judicial

Gerrymandering’ The principle of equality, caste-class confusion,
reconceptualization of Article 16, increasing the quota of the reserved seats,
reservation in promotions and the principle of ‘carry forward’ are some of
the major issues upon which the Court is called upon to decide.

Summarizing the evolution of judicial observations, it is clear that:

“The courts have largely followed the lead of the legislature and the
executive and when they did intervene occasionally it was mainly to regulate
and modify, rather than to innovate or redirect policies. Except during a brief
period….the role of the Supreme Court in advancing preferential policies
had been modest. But some judgments, notably Indra Sawhney, may be
heralding of enhanced judicial action in the years to come. What enhanced
judicial action is in store for the future cannot be predicted. But the issue of
reservation has been highly politicized and consequently a judicial
settlement of emerging issues will also be wrought with political paradigms.

392
 REFERENCES

1. A.I.R. 1951 SC 226.

2. AIR 1962 SC 36 This case can also be cited under ‘promotions’.
3. AIR 1984 SC 1831.
4. AIR 1988 SC 925.
5. AIR 1968 SC 1012.
6. AIR 1980 SC 1975.
7. AIR 1989 SC 1528.
8. AIR 1994 SC 1528.
9. AIR 1996 SC 361.
10. AIR 1997 SC 1095.
11. AIR 2009 SC 450 One of the issues in this case was that of
promotion.
12. AIR 1999 SC 3471.
13. (1997) 6 SCC 129.
14. AIR 1997 SC 2101.
15. 1996 (9) JT (SC) 320.
16. (1974) 1 SCC 87, AIR 1974 SC 532.
17. (1996) 7 SCC 512, 1996 AIR SCW 2248.
18. (1996) 5 SCC 167.
19. (1995) Supp (1) SCC 432.
20. AIR 2000 SC 609.
21. By seventy-seventh Amendment (1995) Article 16(4A) was
introduced and Eighty-fifth Amendment (2000) added the phrase ‘in
matters of promotion, with consequential seniority’.

393
22. AIR 1997 SC 1451.
23. AIR 1997 SC 303.
24. AIR 1997 SC 2133.
25. AIR 1997 SC 3687.
26. AIR 1998 SC 1767.
27. AIR 2000 SC 1296.
28. AIR 1973 All 295.
29. AIR 1973 All 592.
30. AIR 1972 SC 1375.
31. AIR 1975 SC 1.
32. Backwardness in law perhaps is different from backwardness in
economic development and educational attainments. Thus a political
solution was found when a new State was carved out of U.P. namely
Uttaranchal, now it is Uttarakhand.
33. AIR 1972 SC 2381.
34. AIR 1988 SC 481.
35. AIR 1981 SC 2945.
36. AIR 2001 SC 3006.
37. AIR 1995 SC 1421.
38. AIR 1996 SC 1378.
39. AIR 1997 SC 1120.
40. AIR 1998 SC 680.
41. AIR 1999 SC 2894.
42. AIR 2001 SC 717.
43. AIR 2001 SC 3006.

394
44. Judgement dated: 29.03.2007 Case: Civil No: Writ Petition (Civil)
265 of 2006.
45. (2008) 6 SCC 1.
46. AIR 2001 SC 3262.
47. AIR 2000 SC 72.
48. AIR 1951 SC 226.
49. AIR 1962 SC 36 This case can also be cited under ‘promotions’.
50. AIR 1984 SC 1831.
51. AIR 1988 SC 925.
52. AIR 1968 SC 1012.
53. AIR 1980 SC 1975.
54. AIR 1989 SC 139.
55. AIR 1994 SC 1528.
56. AIR 1996 SC 351.
57. AIR 1997 SC 1095.
58. AIR 2000 SC 450 One of the issues in this case was that of
promotion.
59. AIR 1999 SC 3471.
60. (1997) 6 SCC 129.
61. AIR 1997 SC 2101.
62. 1996 (9) JT (SC) 320.
63. (1974) 1 SCC 87, AIR 1974 SC 532.
64. (1996) 7 SCC 512, 1996 AIR SCW 2248.
65. (1996) 5 SCC 167.
66. (1995) Supp (1) SCC 432.
67. AIR 2009 SC 609.
395
68. By seventy-seventh Amendment (1995) Article 16 (4A) was
introduced and Eighty-fifth Amendment (2000) added the phrase ‘in
matters of promotion, with consequential seniority’.
69. AIR 1997 SC 1451.
70. AIR 1997 SC 303.
71. AIR 1997 SC 2133.
72. AIR 1997 SC 3687.

396