Mahendra Kumar Mitra vs The Secretary To The Government Of India & Ors.

INDEX

INTRODUCTION

PREFATORY FACTS

"Residual Parent Cadre - 92 posts

Reservation

Women

Rural

Ex-Servicemen

Physically Challenged

Physically Challenged

Kannada Medium

Transgender

Total

SC 2 6 4 1 1* 1 - 15 ST 2 2 2 - 1* - - 7 Cat-1 1 1 1 - 1* - - 4 2A 2 5 4 1 1* - - 14 2B 1 1 1 - 1 - - 4 3A 1 1 1 - - - - 3 3B 1 1 1 - 1* - - 4

GM

9

13

10

4

1* 1*

2

1

41

Total 19 30 24 6 8 4 1 92 As per Notification No.:WCD 118 PHP 2020 dated: 13-01-2022:-* For Low Vision candidates, ** For OA, OL, Lc, Dw, AAV candidates"

SUBMISSIONS

Submissions on behalf of the petitioners

Submissions on behalf of the State

REASONS

The 50% Ceiling Rule

“15. Prohibition of discrimination on grounds of relig-

ion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2)

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a)

access to shops, public restaurants, hotels and places of public entertainment; or

(b)

the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3)

Nothing in this article shall prevent the State from making any special provision for women and children.

²⁶[(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provi-sion for the advancement of any socially and education-ally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]

²⁷[(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from mak-ing any special provision, by law, for the advancement of any socially and educationally backward classes of citi-zens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions re-ferred to in clause (1) of Article 30.]

²⁸[(6) Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making,—

(a)

any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b)

any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1)

Explanation.—For the purposes of this article and Ar-ticle 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the ba-sis of family income and other indicators of economic disadvantage.]

16. Equality of opportunity in matters of public

employment.—(1) There shall be equality of opportunity for all citizens in matters relating to employment or ap-pointment to any office under the State.

(2)

No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3)

Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office ^{2929.Subs. by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Sch. (w.e.f. 1-}[un-der the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4)

Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately rep-resented in the services under the State.

³⁰[(4-A) Nothing in this article shall prevent the State from making any provision for reservation^{3131.Subs. by the Constitution (Eighty-fifth Amendment) Act, 2001, S. 2 (w.r.e.f. 17-6-1995). Prior to substitution it read as: “in matters of promotion to any class”}[in matters of promotion, with consequential seniority, to any class] or

³²[(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on to-tal number of vacancies of that year.]

(5)

Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denomina-tional institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

³³[(6) Nothing in this article shall prevent the State from making any provision for the reservation of ap-pointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and sub-ject to a maximum of ten per cent of the posts in each category.]

The Constituent Assembly Debates

“(3)

Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any class of citizens who, in the opinion of the State, are not adequately represented in the services under the State.”

“Now, Sir, to come to the other question which has been agitating the members of this House, viz., the use of the word "backward" in clause (3) of Article 10, I should like to begin by making some general observations so that members might be in a position to understand the exact import, the significance and the necessity for using the word "backward" in this particular clause. If members were to try and exchange their views on this subject, they will find that there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality of opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative and it ought to be operative in their judgment to its fullest extent there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. If honourable Members will bear these facts in mind the three principles, we had to reconcile, they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of Article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now for historical reasons-been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 percent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word 'backward' which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly. But I think honourable Members will realise that the Drafting Committee which has been ridiculed on more than one ground for producing sometimes a loose draft, sometimes something which is not appropriate and so on, might have opened itself to further attack that they produced a Draft Constitution in which the exception was so large, that it left no room for the rule to operate. I think this is sufficient to justify why the word 'backward' has been used.” [emphasis added]

The early decisions

“7.

Clause (4) expressly permits the State to make provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services of the State. Reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional. The Communal G.O. itself makes an express reservation of seats for Harijans and Backward Hindus. The other categories, namely, Muslims, Christians, Non-Brahmin Hindus and Brahmins must be taken to have been treated as other than Harijans and Backward Hindus. Our attention was drawn to a Schedule of Backward Classes set out in Schedule III to Part I of the Madras Provincial and Subordinate Service Rules. It was, therefore, argued that Backward Hindus would mean Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans and Backward Hindus can be called Backward Classes. As regards the posts reserved for Harijans and Backward Hindus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste, etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petitioner for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. 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 those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed 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 to us to be sanctioned by clause (4) of Article 16 and it is an infringement of the fundamental right guaranteed to the petitioner as an individual citizen under Articles 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. This, in our opinion, is sufficient to dispose of this application and we do not consider it necessary to consider the effect of Article 14 or 15 of the Constitution on the case of the respondents.”

“27.

.. It is also true that the reservation which can be made under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Article 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration.” [emphasis added]

M.R. Balaji and the genesis of the rule

“33.

We have already noticed that the Central Government in its communication to the State has suggested that reservation for backward classes, Scheduled Castes and Scheduled Tribes may be up to 25% with marginal adjustments not exceeding 10% in exceptional cases.

34.

The learned Advocate-General has suggested that reservation of a large number of seats for the weaker sections of the society would not affect either the depth or efficiency of scholarship at all, and in support of this argument, he has relied on the observations made by the Backward Classes Commission that it found no complaint in the States of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades. The Committee further observed that the representatives of the upper classes did not complain about any lack of efficiency in the offices recruited by reservation (p.135). This opinion, however, is plainly inconsistent with what is bound to be the inevitable consequence of reservation in higher university education. If admission to professional and technical colleges is unduly liberalised, it would be idle to contend that the quality of our graduates will not suffer. That is not to say that reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States 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 subverting the object of Article 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 present prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its order on 10-7-1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be in the larger interests of the State. What happened between 10-7-1961, and 31-7-1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Article 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Article 15(4).

35.

The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Article 15(4). This argument is well-founded, and must be upheld. 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 mala fides. An executive action which is patently and plainly outside the limits of the 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 or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised 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% made by the impugned order is plainly inconsistent with the concept of the special provision authorised 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).” [emphasis added]

Divergent views: T. Devadasan to K.C. Vasanth Kumar

“17.

We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion 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 employment 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 communities.

18.

Further, this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to clause (1). A proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under clause (4) would in effect efface the guarantee contained in clause (1) or at best make it illusory. No provision of the Constitution or of any enactment can be so construed as to destroy another provision contemporaneously enacted therein. It is true, as pointed out by Mr Ganapathy Iyer on behalf of the respondent that effect must be given to the express words of Article 16(4): ‘Nothing in this article shall prevent the State from making any provision for the reservation of appointments….etc.’ but that does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the article, particularly clauses (1) and (2) thereof. The overriding effect of clause (4) on clauses (1) and (2) could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances, that is all.”

“16.

The startling effect of the carry forward rule as modified in 1955 would be apparent if in the illustration which we have taken there were in the third year 50 total vacancies instead of 100. Out of these 50 vacancies 9 would be reserved for the Scheduled Castes and Tribes, adding to that, the 36 carried forward from the two previous years, we would have a total of 45 reserved vacancies out of 50, that is, a percentage of 90. In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to about 64.4% of reservation. Such being the result of the operation of the carry forward rule we must, on the basis of the decision in Balaji case hold that the rule is bad. Indeed, even in General Manager Southern Railway v. Rangachari which is a case in which reservation of vacancies to be filled by promotion was upheld by this Court, Gajendragadkar, J., who delivered the majority judgment observed:

‘It is also true that the reservation which can be made under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Article 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration;….’

It is clear from both these decisions that the problem of giving adequate representation to members of backward classes enjoined by Article 16(4) of the Constitution is not to be tackled by framing a general rule without bearing in mind its repercussions from year to year. What precise method should be adopted for this purpose is a matter for the Government to consider. It is enough for us to say that while any method can be evolved by the Government it must strike ‘a reasonable balance between the claims of the backward classes and claims of other employees’ as pointed out in Balaji case.”

“26.

Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race -one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Article 16. The expression ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.” [emphasis added]

“33.

…These general observations made in the context of admissions to colleges cannot, in my view, be applied in the case of a reservation of appointments in the matter of recruitment to a cadre of particular service. The doctrine of ‘destruction’ of the fundamental right depends upon the entire cadre strength and the percentage reserved out of that strength. Further, the expression used in the observations viz. ‘generally’ and ‘broadly’, show that the observations were intended only to be a workable guide but not an inflexible rule of law even in the case of admissions to colleges.”

"179.

Coming now to Article 16 it may be analysed into three separate categories so far as the facts of the present case are concerned: “Category I—clause (1) of Article 16 Category II—clause (2) of Article 16. Category III—clause (4) of Article 16.”

180.

Clause (1) of Article 16 clearly provides for equality of opportunity to all citizens in the services under the State. It is important to note that the Constitution uses the words “equality of opportunity for all citizens”. This inherently implies that the opportunity must be given not only to a particular section of the society or a particular class of citizens who may be advanced or otherwise more affluent but to all classes of citizens. This, therefore, can be achieved by making a reasonable classification so that every class of citizens is duly represented in services which will enable equality of opportunity to all citizens. The classification, however, must be a reasonable one and must fulfil the following conditions:

(i)

It must have a rational basis;

(ii)

it must have a close nexus with the object sought to be achieved;

(iii)

it should not select any person for hostile discrimination at the cost of others.

** ** **

182.

Category II refers to clause (2) of Article 16 which may be reproduced as follows: “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

In view of my findings and the various provisions of the Constitution regarding the status of the members of the scheduled castes and the scheduled tribes, it is obvious that the members of the scheduled castes and the scheduled tribes are not a “caste” but a special class of backward citizens whose backwardness cannot be doubted. In these circumstances, therefore, if the promotees do not belong to a caste as contemplated by Article 16(2) then they do not fall within the mischief of Article 16(2) at all. Thus the case of the promotees squarely falls within the four corners of Article 16(1) and can be justified as based on reasonable classification.

183.

Before leaving Categories I and II it might be mentioned that the Court has to apply strict scrutiny to the classification made by the Government and to find out that it does not destroy or fructify the concept of equality. In other words, the State cannot be permitted to invoke favouritism or nepotism under the cloak of equality. Having considered the matter in all its comprehensive aspects I am satisfied that in this particular case the classification made by the Government by virtue of Rule 13-AA is fully justified by Article 16 of the Constitution.

184.

This brings us to the consideration of Category III which is clause (4) of Article 16. Clause (4) may be extracted as under:

“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” Clause (4) of Article 16 of the Constitution cannot be read in isolation but has to be read as part and parcel of Article 16(1) and (2). Suppose there are a number of backward classes who form a sizeable section of the population of the country but are not properly or adequately represented in the services under the State the question that arises is what can be done to enable them to join the services and have a sense of equal participation. One course is to make a reasonable classification under Article 16(1) in the manner to which I have already adverted in great detail. The other method to achieve the end may be to make suitable reservations for the backward classes in such a way so that the inadequate representation of the backward classes in the services is made adequate. This form of classification which is referred to as reservation, is, in my opinion, clearly covered by Article 16(4) of the Constitution which is completely exhaustive on this point. That is to say clause (4) of Article 16 is not an exception to Article 14 in the sense that whatever classification can be made can be done only through clause (4) of Article 16. Clause (4) of Article 16, however, is an explanation containing an exhaustive and exclusive provision regarding reservation which is one of the forms of classification. Thus clause (4) of Article 16 deals exclusively with reservation and not other forms of classification which can be made under Article 16(1) itself. Since clause (4) is a special provision regarding reservation, it can safely be held that it overrides Article 16(1) to that extent and no reservation can be made under Article 16(1). It is true that there are some authorities of this Court that clause (4) is an exception to Article 16(1) but with due respect I am not in a position to subscribe to this view for the reasons that I shall give hereafter.

185.

In the first place if we read Article 16(4) as an exception to Article 16(1) then the inescapable conclusion would be that Article 16(1) does not permit any classification at all because an express provision has been made for this in clause (4). This is, however, contrary to the basic concept of equality contained in Article 14 which implicitly permits classification in any form provided certain conditions are fulfilled. Furthermore, if no classification can be made under Article 16(1) except reservation contained in clause (4) then the mandate contained in Article 335 would be defeated.

186.

I have already observed that the fundamental guarantees provided by the Constitution have to be read in harmony with the directive principles contained in Part IV. Again if Article 16(4) is deemed to be the only mode of classification, then it would follow that the Constitution permits only one form of classification, namely, reservation and no other form so far as the services are concerned. This will render the concept of equality nugatory and defeat the very purpose which is sought to be achieved by Article 16(1). Equality of opportunity to all citizens does not mean equality to some and inequality to others. As I have already pointed out that in our country there are a large number of backward classes of citizens who have to be granted certain concessions and facilities in order to be able to compete with others. Does it mean that such citizens should be denied these facilities which may not fall under the term “reservation”? Let us take a few instances. A notification provides that all candidates for a particular post must apply before a specified date. A person belonging to a backward class of citizens living in a very remote area gets information late. The Government, however, in case of such a backward class candidate makes a relaxation and extends the date. Can it be said that this has resulted in violation of Article 16(1) because it does not fall within the reservation contemplated by clause (4) of Article 16? It is obvious that the intention of the Government is merely to help the backward class of citizens to apply for the job along with others by condoning the delay for special reasons. Another instance may be where the State makes a relaxation regarding the age in case of backward classes of citizens in view of the farfetched and distant area to which that class of citizens belongs. Lastly let us take the instance of the present case. The clerks belonging to the scheduled castes and tribes were given a further extension of time to pass the test because of their backwardness. They were not exempted from passing the test. This could only be done under Article 16(1) and not under clause (4) of Article 16.

“That is why the makers of the Constitution introduced clause (4) in Article 16. The expression ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.”

“It is common ground that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and (2) do not fall within the mischief of non-obstantive clause in Article 16(4).

188.

Now analysing clause (4) of Article 16 it appears that it contains express provisions empowering the State to make reservations in suitable cases provided the following conditions are satisfied:

“(i)

That the class for which reservation is made must be socially and educationally backward.”

189.

I might mention that so far as the members of the scheduled castes and tribes are concerned, in view of the constitutional provisions referred to above, this fact will have to be presumed and it was also so held in Rangachari case.

“(ii)

That the class for which reservation is made is not adequately represented in the services under the State.”

** ** **

190.

..

“(iii)

The reservation should not be too excessive so as to destroy the very concept of equality.”

** ** **

191.

This means that the reservation should be within the permissible limits and should not be a cloak to fill all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since clause (4) is a part of Article 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 Article 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 no doubt laid down that the percentage of reservation should not exceed 50 per cent. 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 classes of citizens which constitute 80 per cent of the population and the Government, in order to give them proper representation, reserves 80 per cent 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 Article 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make inadequate representation adequate. [emphasis added]”

"87.

Even going by the majority, Devadasan case [(1964) 4 SCR 680, 695] lays down the proposition that under Article 16(4) “reservation of a reasonable percentage of posts for members of the Scheduled Castes and Tribes is within the competence of the State. What the percentage ought to be must necessarily depend upon the circumstances obtaining from time to time”. Mudholkar, J. speaking for the majority has struck down only one restriction. “In order to effectuate the guarantee each year of recruitment will have to be 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 communities.” (emphasis added) Unlimited reservation of appointments may be impermissible because it renders Article 16(1) nugatory. At the same time, Article 16(4), calculated to promote social justice and expressive of the deep concern of the Constitution for the limping bracket of Indians, must be given full play. That is why the only restraint imposed by Mudholkar, J. is that an exercise of power under Article 16(4) “does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the article, particularly clauses (1) and (2) thereof.” [(1964) 4 SCR 680, 700] By the three-year “carry forward” rule one is unable to see how, in practice, the total vacancies will be gobbled up by the harijan/girijan groups “virtually obliterating” Article 16(1). The court has made it very clear that the problem of giving adequate representation to backward classes under Article 16(4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims as pointed out in Balaji case.

88.

It is true that in Balaji case and Devadasan case “the carry forward” rule for backward classes far exceeded 50 per cent and was struck down. We must remember that the percentage of reservation for backward classes including SC & ST was rather high in both the cases. In Devadasan case the court went into the actuals, not into the hypotheticals. This is most important. The court actually verified the degree of deprivation of the “equal opportunity” right and discovered: [ Ibid, pp. 693-94]

“In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to about 64.4 per cent of reservation. Such being the result of the operation of the carry forward rule we must, on the basis of the decision in Balaji case hold that the rule is bad.”

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. On that footing, the petitioners have not demonstrated that in any particular year, virtually and in actual terms of promotion, there has been a substantial excess over 50 per cent in favour of the SC & ST promotees. Mathematical calculations, departing from realities 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 per cent of the promotional posts. Some excess will not affect as mathematical precision is difficult in human affairs, but substantial excess 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 or appointments of SC & ST candidates considerably in excess of 50 per cent, we uphold Annexure ‘I’." [emphasis added]

"130.

Another case upon which the petitioners placed reliance was M.R. Balaji v. State of Mysore. In that case the percentage of seats reserved in the engineering and medical colleges for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes came to 68 per cent leaving only 32 per cent of the seats for the merit pool. The Court held that generally and broadly reservation should not exceed 50 per cent. The actual percentage was to depend upon the relevant prevailing circumstances in each case. As the reservation in that case far exceeded what was generally and broadly permissible, the reservation was held to be bad. There again the Court was concerned directly with the immediate, actual, practical result of the reservation rule.

*** *** ***

135.

Therefore, we see that when posts whether at the stage of initial appointment or at the stage of promotion are reserved or other preferential treatment is accorded to members of the Scheduled Castes, Scheduled Tribes and other socially and economically backward classes, it is not a concession or privilege extended to them; it is in recognition of their undoubted fundamental right to Equality of Opportunity and in discharge of the constitutional obligation imposed upon the State to secure to all its citizens “Justice, social, economic and political” and “Equality of status and opportunity”, to assure “the dignity of the individual” among all citizens, to “promote with special care the educational and economic interests of the weaker section of the people”, to ensure their participation on equal basis in the administration of the affairs of the country and generally to foster the ideal of a “Sovereign, Socialist, Secular, Democratic Republic”. Every lawful method is permissible to secure the due representation of the Scheduled Castes and Scheduled Tribes in the Public Services. There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty per cent. There is no rigidity about the fifty per cent rule which is only a convenient guideline laid down by Judges. Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future. Judged in the light of this discussion I am unable to find anything illegal or unconstitutional in anyone of the impugned orders and circulars. Each order and circular has been individually discussed by my Brother Krishna Iyer, J., with whose reasoning and conclusions I agree and to which I wish to add no more." [emphasis added]

"111.

It seems to me that apart from the impact that an excessive reservation in a particular year is bound to have on the general community of citizens, there is the further far-reaching significance this assumes in the context of Article 335. The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment because the large bulk of the vacancies, numbering anything over 50 per cent, is allotted to the reserved quota. In view of a maximum age limit invariably prescribed, some of such meritorious candidates may be lost to the service altogether. Viewed in that light, a maximum of 50 per cent for reserved quotas in their totality is a rule which appears fair and reasonable, just and equitable, and violation of which would contravene Article 335".

"58.

We must repeat here, what we have said earlier, that there is no scientific statistical data or evidence of expert administrators who have made any study of the problem to support the opinion that reservation in excess of 50 per cent may impair efficiency. It is a rule of thumb and rules of the thumb are not for judges to lay down to solve complicated sociological and administrative problems. Sometimes, it is obliquely suggested that excessive reservation is indulged in as a mere vote-catching device. Perhaps so, perhaps not. One can only say “out of evil cometh good” and quicker the redemption of the oppressed classes, so much the better for the nation. Our observations are not intended to show the door to genuine efficiency. Efficiency must be a guiding factor but not a smokescreen. All that a court may legitimately say is that reservation may not be excessive. It may not be so excessive as to be oppressive; it may not be so high as to lead to a necessary presumption of unfair exclusion of everyone else."

“148.

After carefully going through all the seven opinions in the above case, it is difficult to hold that the settled view of this Court that the reservation under Article 15(4) or Article 16(4) could not be more than 50 per cent has been unsettled by a majority on the Bench which decided this case. ...”

Indra Sawhney v. Union of India

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

(a)

Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?

(b)

Whether the 50% rule, if any, is confined to reservations made under clause(4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?

(c)

Further, while applying 50% rule, if any, whether a year should be taken as a unit or whether the total strength of the cadre should be looked to?

(d)

Was Devadasan correctly decided?"

"807.

We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of 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 reasonable 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 extraordinary 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 V. Narayana Rao v. State of A.P., striking down the enhancement of reservation from 25% to 44% for OBCs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.

808.

It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but 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 re-statements of the principle of equality enshrined in Article 14. The provision under Article 16(4) — conceived 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 Assembly, set out in para 693). 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.

809.

From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%."

"810.

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 farflung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream 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.

811.

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."

“814.

… It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual 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% a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be. …”

“323.

Summary (8) Reservation in all cases must be confined to a minority of available posts or seats so as not to unduly sacrifice merits. The number of seats or posts reserved under Article 15 or Article 16 must at all times remain well below 50% of the total number of seats or posts.

(10)

Once reservation is strictly confined to the constitutionally intended beneficiaries, as aforesaid, there will probably be no need to disappoint any deserving candidate legitimately seeking the benefit of reservation, for there will then be sufficient room well within the 50% limit for all candidates belonging to the backward classes as properly determined on correct principles. In that event, questions such as caste or religion will become merely academic and the competing maddening rush for “backward” label will vanish.

324.

Conclusions: C. Reservation of seats or posts for backward classes of citizens, including those for the Scheduled Castes and the Scheduled Tribes, must remain well below 50% of the total seats or posts.”

"384.

I have carefully read the reasoning and the conclusions reached by R.M. Sahai, J on this issue. Agreeing with him I hold:

(i)

that the reservations under Article 16(4) must remain below 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitutionally invalid.

(ii)

It is for the State to adopt the methodology of providing reservations below 50%. The State may provide the said reservation in respect of the substantive vacancies arising in a year or in the cadre or service. It would be permissible to carry forward the reserve vacancies of one year to the next year. It is reiterated that the vacancies reserved in a year including those which are carried forward shall not exceed 50%.

(iii)

No reservation of any kind can be made for any class or category whether backward or non-backward under Article 16(1)."

"619.

Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not exceed 50 per cent and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50 per cent would liable to be struck down. Reservation under Article 16(4) should in no case exceed 50 per cent."

The decisions after Indra Sawhney

"35.

Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society."

"32.

Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji case, Devadasan cases and Sabharwal case. Even in Indra Sawhney case the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram's and C.A. Rajendran v. Union of India. It has been indicated in Indra Sawhney case that clause (4) of Article 16 is not in the nature of an exception to clauses (1) and (2) of Article 16 but an instance of classification permitted by clause (1). It has also been indicated in the said decision that clause (4) of Article 16 does not cover the entire field covered, by clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality."

"(4A) Nothing in this article shall prevent the State from making provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."

"(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."

"47.

Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalising results with respect to various groups. Both the conceptions constitute "equality of opportunity".

48.

It is the equality "in fact" which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination."

"54.

The question of extent of reservation is closely linked to the issue whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an application of Article 16(1). If Article 16(4) is an exception to Article 16(1) then it needs to be given a limited application so as not to eclipse the general rule in Article 16(1). But if Article 16(4) is taken as an application of Article 16(1) then the two articles have to be harmonised keeping in view the interests of certain sections of the society as against the interest of the individual citizens of the society."

“Maximum limit of reservation possible

55.

Word of caution against excess reservation was first pointed out in G.M., S. Rly. v. Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36] . Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of Backward Classes and claims of other employees as well as the requirement of efficiency of administration.

56.

However, the question of extent of reservation was not directly involved in Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36] . It was directly involved in M.R. Balaji v. State of Mysore [1963 Supp (1) SCR 439 : AIR 1963 SC 649] with reference to Article 15(4). In this case, 60% reservation under Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case.

57.

But in State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] Krishna Iyer, J. expressed his concurrence with the views of Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4). If a State has 80% population which is backward then it would be meaningless to say that reservation should not cross 50%.

58.

However, in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] the majority held that the rule of 50% laid down in Balaji [1963 Supp (1) SCR 439 : AIR 1963 SC 649] was a binding rule and not a mere rule of prudence.

59.

Giving the judgment of the Court in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] Jeevan Reddy, J. [ Speaking on behalf of Kania, C.J. and Venkatachaliah and Ahmadi, JJ. as they then were.] stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of Backward Classes to the total population would certainly be relevant. [Ed.: SCC para 807] He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14. [Ed.: SCC para 808]

“102.

In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catch-up” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is—whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] , Ajit Singh (I) [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239 : AIR 1996 SC 1189] , Ajit Singh (II) [(1999) 7 SCC 209 : 1999 SCC (L&S) 1239] and Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets— “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.

* * *

Tests to judge the validity of the impugned State Acts

110.

As stated above, the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.”

"121.

The impugned constitutional amendments by which Articles 16 (4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal."

"10.

A careful reading of the judgments in Indra Sawhney v. Union of India, clarifies that seven out of nine Judges concurred that there exists a quantitative limit on reservation-spelt out at 50%. In the opinion of four Judges, therefore, per the judgment of B.P.Jeevan Reddy, J., this limit could be exceeded under extraordinary circumstances and in conditions for which separate justification has to be forthcoming by the State or the agency concerned. However, there is unanimity in the conclusion by all seven Judges that an outer limit for reservation should be 50%. Undoubtedly, the other two Judges, Ratnavel Pandian and P.B. Sawant, JJ. indicated that there is no general rule of 50% limit on reservation. In these circumstances, given the general common agreement about the existence of an outer limit i.e., 50%, the petitioner's argument about the incoherence or uncertainty about the existence of the rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments (the dissenting judgments of K. Subba Rao, in T. Devadasan v. Union of India, the judgments of S.M. Fazal Ali and Krishna Iyer. JJ. in State of Kerala v. N.M. Thomas and the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka) is not an argument compelling a review or reconsideration of Indra Sawhney rule."

"25.

A constant and recurring theme in the several judgments of Indra Sawhney was the concept of balance. This expression was used in two senses one, to correct the existing imbalance which existed, due to past discriminatory practices that kept large sections of the society backward; two, the quest for achieving the balance between the guarantee of equality to all and the positive or affirmative discrimination sanctioned by Articles 15(4) and 16(4). B.P. Jeevan Reddy, J. (for himself and four other Judges) held that: (SCC pp. 734-35, para 808)

"808.

It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but 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 re-statements of the principle of equality enshrined in Article 14. The provision under Article 16(4) conceived 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."

"33.

Upon examination of the issue from this perspective, the ceiling of 50% with the "extraordinary circumstances" exception, is the just balance-what is termed as the "Goldilocks solution"-i.e. the solution containing the right balance that allows the State sufficient latitude to ensure meaningful affirmative action, to those who deserve it, and at the same time ensures that the essential content of equality, and its injunction not to discriminate on the various proscribed grounds (caste, religion, sex, place of residence) is retained. This Court in M. Nagaraj v. Union of India observed that "a numerical benchmark is the surest immunity against charges of discrimination". To dilute the 50% benchmark further, would be to effectively destroy the guarantee of equality, especially the right not to be discriminated against on the grounds of caste (under Articles 15 and 16)."

"399.

To change the 50% limit is to have a society which is not founded on equality but based on caste rule. Democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, will make it hardly to reduce the same. Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets."

"144.

There were no such extraordinary circumstances to provide a 100% reservation in Scheduled Areas. It is an obnoxious idea that tribals only should teach the tribals. When there are other local residents, why they cannot teach is not understandable. The action defies logic and is arbitrary. Merit cannot be denied in toto by providing reservations.

145.

A reservation that is permissible by protective mode, by making it 100% would become discriminatory and impermissible. The opportunity of public employment cannot be denied unjustly to the incumbents, and it is not the prerogative of few. The citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the Founding Fathers of the Constitution of India. Equality of opportunity and pursuit of choice under Article 51-A cannot be deprived of unjustly and arbitrarily. As per the Presidential Order, the citizens of the locality and outsiders were entitled to 15% of employment in the district cadre in terms of clause (10) of Article 370(1)(d) of the Constitution. Thus, the G.O. does not classify but deals with reservations. It was contrary to the report sent to the President by the Governor, which indicated even the posts which were reserved for Scheduled Tribes Teachers, they were not available as such Tribes Advisory Council decided to fill them from other non-local tribals."

"167.

As a sequel to the quashing of GOMs No. 3 of 2000, the appointments made in excess of the

permissible reservation cannot survive and should be set aside. However, on behalf of the State and

other respondents, it was urged that appointments may not be set aside. In the peculiar circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to the Scheduled Tribes.

168.

We cannot ignore the fact that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed [State of A.P. v. A. Janardhana Rao, Civil Appeal No. 2305 of 1991, order dated 20-3-1998 (SC)] as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again. But instead, it issued GOMs No. 3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible. It is rightly apprehended by the appellants that the State may again by way of misadventure, resort to similar illegal exercise as was done earlier. It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and other decisions holding that the limit of reservation not to exceed 50%. There was no rhyme or reason with the State Government to resort to 100% reservation. It is unfortunate that illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing GOMs No. 3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. We direct the respondents States not to exceed the limits of reservation in future. Ordered accordingly."

"84.

On the basis of materials on record, we are of the opinion that no special case is made out for breaching the reservation ceiling limit of 50% while increasing the reservation to 58%. Inadequacy of representation in services under the State or inadequacy of representation in educational institutions is relevant to the extent reservation is sought to be pegged below 50% but if the ceiling is to be crossed, then inadequacy in representation cannot be the sole determining factor and there has to be exceptional circumstances. Failure to secure a job or a seat in an educational institution by a reserve category candidate competing with candidates belonging to general category cannot be construed as an exceptional circumstance. Tables 4 to 8 seek to project certain disadvantages suffered by SCs, STs and OBCs compared to socially advanced castes. The tables do not explain in any manner why reservation in SCs is to be lowered to 12%, reservation in STs to be increased to 32% and to maintain reservation of 14% in respect of OBCs. No exceptional circumstances is brought on record and no special case is made out. There is no explanation also as to why reservation had to be made to the extent of 76%, 80%, 81%, 66%, 74% in the districts of Surguja, Surajpur, Balrampur-Ramanujganj, Jashpur, Koria and in Surguja Division, respectively."

"83.

Having dealt with the various decisions relied on at the Bar, we have to notice that there is no requirement that a Commission should be appointed or reference made to the already constituted Commission at the National or State level for the purpose of considering reservations, or its percentage; as held in M.R Balaji (supra). But it has to be emphasized that even as early as in M.R Balaji, on ascertaining the backwardness, it spoke of the relevance of various factors and the intermix of aspects like poverty, caste, occupation, location of residence etc; which reflects the social and economic situation, requiring an elaborate investigation by collection of data and in-depth analysis in a rational and scientific manner. We have already found that such an analysis was absent insofar as the enhancement of the quota for reservations. Article 15(4) and Article 16(4) were equated in M.R Balaji (supra) and Devadasan (supra) applied 50% limit even to Article 15(4). Paragraph 814 of Indra Sawhney (supra) approved Devadasan (supra) to the extent of its majority decision regarding the limit of 50% being applied to Article 15(4). N.M. Thomas (supra) was differed from and it was held that to apply the 50%, the year has to be taken as a unit and not the service as a whole. There can be no filling up of the deficiency of service in one single year was the authoritative pronouncement.

84.

That, adequate representation is the core of both Articles 15(4) & 16 (4); was reiterated and the rule of 50% limit in reservations was reaffirmed by the various decisions. That, the exception provided, to exceed the 50% limit, was confined and restricted to extenuating circumstances and characteristically inherent aspects akin to far flung areas thus being kept away from the mainstream of National life, is undisputed. That, these conditions do not exist and was not demonstrated in the instant case is abundantly clear. That, the State attempted no in-depth study or analysis before providing for enhancement of the reservation percentage is established from the records. That, the State proceeded on the mere proportion of population of different categories as against their numerical representation in government services and educational institutions is the admitted position and is the pivotal argument of the State. That, this argument works against the core principles of Articles 15(4) & 16(4) is a given fact. In our judgment hence, the enhancement of reservations beyond the 50% limit is bad in law based on the principles of equality emanating from the Constitution, as laid down by the wealth of precedents discussed in this judgment; binding on us and the State equally. We, hence, set aside the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Amendment Act, 2023 and the Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023 as ultra vires the Constitution and violative of the equality clause under Articles 14, 15 and 16. The Writ Petitions are allowed leaving the parties to suffer their respective costs."

Whether the Constitution (One Hundred and Third Amendment) Act, 2019 has obliterated the 50% rule

“2.

Amendment of article 15.— In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

(a)

any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b)

any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.

Explanation.—For the purposes of this article and article 16, ‘economically weaker sections’ shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’

3.

Amendment of article 16.— In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

‘(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.’”

"171.

Thus, having examined the permissible limits of affirmative action in light of the possible harm of preferential treatment qua other innocent class of competitors i.e. general merit candidates, this Court has expressed the desirability of fifty per cent as the ceiling limit for reservation in education and public employment but, as observed hereinbefore, all such observations are required to be read essentially in the context of the reservation obtaining under Articles 15(4), 15(5) and 16(4) or other areas of affirmative action like that in relation to local self-government (the case of K. Krishna Murthy [K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 : (2010) 2 SCC (L&S) 385]) and cannot be overstretched to the reservation provided for entirely different class, consisting of the economically weaker sections. * * *

173.

In another view of the matter, the prescription of ceiling limit of fifty per cent, being apparently for the benefit of general merit candidates, does not provide any justified cause to the candidates standing in the bracket of already available reservation to raise any grievance about extra ten per cent reservation for the benefit of another section of society in need of affirmative action. In any case, there is no question of violation of any such basic feature of the Constitution that the entire structure of equality of opportunity in Article 16 would collapse by this EWS reservation."

Whether the challenge is outside the scope of judicial review

“4.

Subsequent to the filing of the above writ petitions, Articles 15 and 16 of the Constitution have been amended vide the Constitution (Ninety-third Amendment) Act, 2005, and the Constitution (Eighty-first Amendment) Act, 2000, respectively, which Amendment Acts have been the subject-matter of subsequent decisions of this Court in M. Nagaraj v. Union of India [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1] in which, inter alia, it has been laid down that if a State wants to exceed fifty per cent reservation, then it is required to base its decision on the quantifiable data. In the present case, this exercise has not been done.”

“107.

It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between “equality in law” and “equality in fact” (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred. * * *

117.

The test for judging the width of the power and the test for adjudicating the exercise of power by the State concerned are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply “the width test”. In applying “the width test” we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the State concerned has identified and valued the circumstances justifying it to make reservation. This question has to be decided casewise. There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on the facts of each case. The judgment in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.”

“31.

The respondents' submission regarding inadequacy of representation of Scheduled Castes/Scheduled Tribes in the Tamil Nadu Highways Engineering Service by itself is not sufficient to uphold the inadequacy of representation of SCs/STs in the said service. Even after the Eighty-fifth Amendment, the State is duty-bound to collect data so as to assess the adequacy of representation of the Scheduled Caste candidates in the service and based on the same the State should frame a policy/rules for consequential seniority. No material is placed on record that the State of Tamil Nadu has ever undertaken such exercise of collecting data of adequacy of representation of the SC/ST candidates in the Tamil Nadu Highways Engineering Service. In the absence of any rule conferring consequential seniority in the State of Tamil Nadu the “catch-up rule” is applicable even amongst Junior Engineers promoted as ADEs following rule of reservation and also for their inter se seniority amongst AEs promoted as ADEs and JEs promoted as ADEs following rule of reservation.”

“29.

It is clear from the above discussion in S. Panneer Selvam case [S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] that exercise for determining “inadequacy of representation”, “backwardness” and “overall efficiency”, is a must for exercise of power under Article 16(4-A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at the same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4-A), it is the “catch-up” rule which fully applies. It is not necessary to go into the question whether the Corporation concerned had adopted the rule of consequential seniority.”

“75.

The foundation of the decision in B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] is the principle enunciated in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] that in order to sustain the exercise of the enabling power contained in Article 16(4-A), the State is required to demonstrate a “compelling necessity” by collecting quantifiable data on : (i) inadequacy of representation; (ii) backwardness; and (iii) overall efficiency. The judgment in B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] held that no such exercise was undertaken by the State of Karnataka before providing for reservation in promotion and providing for consequential seniority. On the ground that the State had not collected quantifiable data on the three parameters enunciated in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , the Reservation Act, 2002 was held to be unconstitutional. The Constitution Bench in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] upheld the validity of Article 16(4-A) on the basis that before taking recourse to the enabling power the State has to carry out the exercise of collecting quantifiable data and fulfilling the three parameters noted above. B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] essentially held that there was a failure on the part of the State to undertake this exercise, which was a precondition for the exercise of the enabling power to make reservations in promotions and to provide for consequential seniority.

76.

The decision in B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] did not restrain the State from carrying out the exercise of collecting quantifiable data so as to fulfil the conditionalities for the exercise of the enabling power under Article 16(4-A). The legislature has the plenary power to enact a law. That power extends to enacting a legislation both with prospective and retrospective effect. Where a law has been invalidated by the decision of a constitutional court, the legislature can amend the law retrospectively or enact a law which removes the cause for invalidation. A legislature cannot overrule a decision of the court on the ground that it is erroneous or is nullity. But, it is certainly open to the legislature either to amend an existing law or to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review. Curative legislation is constitutionally permissible. It is not an encroachment on judicial power. In the present case, the State Legislature of Karnataka, by enacting the Reservation Act, 2018, has not nullified the judicial decision in B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] , but taken care to remedy the underlying cause which led to a declaration of invalidity in the first place. Such a law is valid because it removes the basis of the decision. * * *

106.

We are of the view that once an opinion has been formed by the State Government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj [M.Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] , the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record.”

“798.

Not only should a class be a backward class for meriting reservations, 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 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 subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Company Law Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need not be repeated here. Suffice 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.”

“30.

In fact, the tests laid down in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] for judging whether a constitutional amendment violates basic structure have been expressly approved by a nine-Judge Bench of this Court in I.R. Coelho v. State of T.N. [I.R. Coelho v. State of T.N., (2007) 2 SCC 1] (see paras 61, 105, and 142). The entirety of the decision, far from being clearly erroneous, correctly applies the basic structure doctrine to uphold constitutional amendments on certain conditions which are based upon the equality principle as being part of basic structure. Thus, we may make it clear that quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] on the inadequacy of representation, which can be tested by the courts. We may further add that the data would be relatable to the cadre concerned.”

“123.

However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

“383.

The observation was made in para 4, as noted above, that the Constitution Bench in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has laid down that if a State wants to exceed 50% reservation, then it is required to base its decision on a quantifiable data, which is clear misreading of the judgment of the Constitution Bench in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . In M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , the Constitution Bench has not laid down any proposition to the effect that if a State wants to exceed 50% reservation, then it is required to base its decision on the quantifiable data. To the contrary the Constitution Bench of this Court in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has reiterated the numerical benchmark like 50% rule in Indra Sawhney case.”

“462.

After noticing the above proposition of law the Commission proceeded to deal with the subject. In Para 234 the Commission has noted the Constitution Bench judgment in M. Nagaraj v. Union of India [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] observing that this Court has again considered the aspect of ceiling of 50% reservation. The Commission, however, proceeded with an assumption that in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] this Court has ruled that for relaxation i.e. 50%, there should be quantifiable and contemporary data. We may notice the exact words of the Commission in Para 234 which is to the following effect:

“234.

The Honourable the Supreme Court has again considered this aspect of ceiling of 50% reservation in its next decision in M. Nagaraj v. Union of India [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , wherein the Honourable the Supreme Court considered the validity of inserted clauses (4-A) and (4-B) by way of amendment to Article 16 of the Constitution. However, in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , the Honourable the Supreme Court has ruled that for the relaxation i.e. a ceiling of 50% there should be quantifiable and contemporary data.”

463.

The above view has again been reiterated by the Commission in Para 235 to the following effect:

“235.

… However, it is seen from Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness as required by clause (4) of Article 15 and clause (4) of Article 16 of the Constitution.”

464.

From the above, it is clear that the Commission read the Constitution Bench judgment of this Court in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] laying down that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to the backwardness. The above reading of the Constitution Bench judgment by the Commission was wholly incorrect. We may again notice the judgment of M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] in the above respect. M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] was a case where the Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) was challenged on the ground that the said provision is unconstitutional and violative of basic structure. Article 16(4-A) which was inserted by the above Amendment provides:

“16.

(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

465.

The Constitution Bench proceeded to consider the submission raised by the petitioner challenging the Constitutional validity of the Constitutional provision. The Constitution Bench in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has noticed the maximum limit of reservation in paras 55 to 59. The Constitution Bench held that the majority opinion in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] has held that rule of 50% was a binding rule and not a mere rule of prudence. Para 58 of the Constitution Bench judgment in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is as follows : (Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC p. 251)

“58.

However, in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] the majority held that the rule of 50% laid down in Balaji [M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 : AIR 1963 SC 649] was a binding rule and not a mere rule of prudence.”

466.

In para 107, the Constitution Bench observed : (Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC pp. 270-71)

“107.

… If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335.”

467.

The Constitution Bench noted its conclusion in paras 121, 122 and 123. In para 123 the following has been laid down : (Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC p. 278)

“123.

However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

468.

The Constitution Bench in para 123 held that provision of Article 16(4-A) is an enabling provision and the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in the matters of promotion and however, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation.

469.

The above observation regarding quantifiable data was in relation to enabling power of the State to grant reservation in promotion to the Scheduled Caste and Scheduled Tribes. It is further relevant to notice that in the last sentence of para 123 it is stated : (Nagaraj case [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , SCC p. 278)

“123.

… It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

470.

The Constitution Bench, thus, in the above case clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. The Commission has completely erred in understanding the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached. There is no such ratio laid down by this Court in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . Hence, the very basis of the Commission to proceed to examine quantifiable data for exceeding the limit of 50% is unfounded.”

Whether a special case of extraordinary circumstances is made out

The Ratnaprabha Committee Report

The Nagamohan Das Commission Report

“a. Examine and report whether the reservation limit can be enhanced to Scheduled Castes and Scheduled Tribes in Karnataka, in proportion to their population as per 2011 census: i.e., from 15% to 17% for Scheduled Castes and from 3% to 7% for Scheduled Tribes.

b. Whether there is adequate representation in education and employment of Scheduled Castes and Scheduled Tribes when compared to their population.

c. Other recommendations

d. The Commission has to submit the report within two months.”

“Thus, the reservation for SC and ST has to be given from the general category reservation. The reduction of the reservation quota to general category and transferring it to SC and ST leads to realization and actualization of the constitutional philosophy of social justice.”

Table 8.2. Growth of Population in Karnataka: Total, SC and ST Population; 1961-2011

Sl. No.

Years

Total Population of the State

Population of SC

Per cent of SC population in the State

Population of ST

Per cent of ST population in the State

1 1961 23586772 3117203 13.21 192096 0.81 2 1971 29299014 3850043 13.14 231084 0.78 3 1981 37135714 5595353 15.06 1822081 4.90 4 1991 44977201 7369000 16.38 1915691 4.25 5 2001 52850562 8562930 16.20 3463986 6.55 6 2011 61095297 10474992 17.15 4248987 6.95 Source: Census of India Various Years, Director of Census Operations, Karnataka, Bengaluru

Table 8.3. Projected Population of Karnataka 2015 and 2020; Total Population, SC and ST Population

Sl. No.

Years

Total Population in the State

SC Population

Per cent of SC Population

ST Population

Per cent of ST Population

1 2012 62048535 10696507 17.24 4342835 6.99 2 2015 65072230 11399748 17.52 4646001 7.14 3 2020 70717272 12713639 17.98 5236581 7.41 Source: Government of Karnataka, Directorate of Economics and Statistics, Bengaluru

“The total projected population of Karnataka in 2020 is 707.72 lakh. The SC account for 17.98 per cent and ST accounts for 7.41 per cent in the total state population. Based on the proportion of the population, it is desirable to provide reservation of 18 per cent to SC and 7.5 per cent to ST. However, in the terms of reference, the government has instructed to investigate and report whether reservation to SC can be enhanced from 15 per cent to 17 per cent and that of ST from 3 per cent to 7 per cent based on census 2011 population data. Therefore, the Commission has to give its recommendations based on the terms of references. It cannot go beyond the terms of references while making recommendations.”

Table 8.15(a). The Representation of SC in Government Services

Year	Sanctioned posts	Filled in posts	Number of SC in filled in posts	Expected number of posts for SC as per 15 per cent mandate	Disparity (5-6)	Percent age of SC in sanctioned posts	Percent age of inadequacy
1	2	3	5	6	7	8	9
As per K. Ratnaprabha Committee report (GoK)
1990	455948	401926	55061	68392	46274	12.07	2.93
2000	573062	489212	67189	85959	18770	11.72	3.28
2010	667756	546691	92675	100163	77488	13.87	1.13
2015	740653	541289	97022	111098	14076	13.09	1.91
2016	745593	523574	79401	111839	32438	10.65	4.35
As per data of the Directorate of Economics and Statistics, (GoK) 2017 and 2018
2017	742370	516268	81318	111356	30038	10.95	4.05
2018	765859	526393	85427	114879	29452	11.15	3.85

Table 8.15(b). The Representation of ST in Government Services

“1.

The reservation in Karnataka for Scheduled Caste (SC) can be increased from 15 per cent to 17 per cent and that of Scheduled Tribes (ST) from 3 per cent to 7 per cent.

2.

In Karnataka state, the representation of SC and ST is not in proportion to their respective population.

3.

The government has to take steps to protect reservation by incorporating the increase in reservation as recommended in No 1, in 9th Scheduled of the Constitution.

4.

Of the allocation made to Scheduled Caste Sub-plan and Scheduled Tribe Sub-plan, at least 10 per cent of it is to be earmarked for the development of education of SC and ST children.

5.

For the improvement of level of skill and knowledge of the children of SC and ST, the government has to develop qualitative education by adopting the education model followed in Kerala and Telangana.

6.

A separate Development Corporation is to be established for the development of Nomadic, Semi-Nomadic and Primitive Tribe communities in the state.

7.

In the interests of deprived communities within SC and ST, internal reservation is to be implemented. For this, measures are to be taken to overcome the legal hurdles, scientific classification of sub-castes and reservation is to be provided to the most deserving section on priority basis. In this regard a detailed study is necessary and based on such a report the Government to take decision about this issue.”

Adequate representation

“807.

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

“541.

There is one more fundamental error which has been committed by the Commission. the Constitutional precondition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in the public services. The Commission laboured under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented. We may notice what has been said by the Commission in Para 219 while recording its conclusion emerging from the analysis of information contained in Tables A, B, C and D. In Para 219(C), the Commission states:

“219(C). … The obvious conclusion that emerges from the above information is that in none of the four grades the strength of Maratha class employees is touching the proportion to their population in the State which is based on various sources is estimated at an average 30%. So also, their presence in administration is more at the lower grades of “C” and “D” and have a comparatively lesser existence and role in decision-making levels of State administration in “A” and “B” grades.…”

542.

Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation. The Commission thus proceeds to examine the entitlement under Article 16(4) on the concept of proportionate representation in the State services which is a fundamental error committed by the Commission.”

“40.

In M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , this Court was of the considered view that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case. The attempt of the learned Attorney General for India to impress upon this Court that the proportion of SCs and STs in the population of India should be taken as the test for determining whether they are adequately represented in promotional posts, did not yield results.

41.

This Court in Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] found no fault with M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] regarding the test for determining the adequacy of representation in promotional posts in the State. While emphasising the contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, this Court declined the invitation of the learned Attorney General for India to hold that the proportion of SCs and STs to the population of India should be the test for determining inadequacy of representation in promotional posts. Therefore, we are not persuaded to express any opinion on this aspect. It is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors.”

“185.3.

The qualifier of inadequate representation in Article 16(4) is not mutually exclusive of the requirement of backwardness. The inadequate representation of the class in the services of the State must be because of social backwardness; and

185.4.

The adequacy of representation must be determined based on the standard of effective representation and not numerical representation.” [emphasis added]

“4. Representation of Scheduled Castes and Scheduled Tribes:

4.1

As of 31.03.2023, the total number of Scheduled Caste employees in the state government service is 99,337 (18.65%), and the total number of Scheduled Tribe employees is 26,871 (5.05%). 4.2 In the group-wise classification, the percentage of Scheduled Castes in the total posts of Groups A, B, C, and D is 18.55, 19.46, 17.99, and 25.58, respectively. Similarly, the percentages for Scheduled Tribes are 4.86, 4.98, 4.79, and 8.18, respectively.”

“Number of departments with representation as prescribed by the Government:

Percentage Category	Zero 0%	Up to 10%	10-15%	15-17%	>19%	Total
Number Departments/Organizat ions	0	0	2	2	29	33

7.2

Analyzing the table above, out of the 33 departments for which data was collected, 2 departments have a Scheduled Caste proportion of less than 15%, and 2 departments have representation in the 15% to 17% range. The remaining 29 departments have representation of more than 19%. This means that in 89% of the departments, the representation in filled posts is higher than 17%.”

“Number of departments with representation as prescribed by the Government:

Percentage Category	Zero 0%	Up to 1%	1-3%	3-7%	>7%	Total
Number Departments/Organizations	0	0	0	25	8	33

8.2

Analyzing the table above, it is found that the representation of Scheduled Tribes in 25 departments is in the 3% to 7% range. In 8 departments, Scheduled Tribes have more than 7% representation in filled posts.”

“84.

It is relevant to note that Justice Janarthanam in his Report relied upon the population figures of the Vanniakula Kshatriyas from the year 1985. His recommendation was on the basis of the figures taken from the Report of the Ambasankar Commission, submitted in 1985. Reference made to admissions to engineering colleges and appointment to public posts pertained to the years 2006-2007 to 2010-2011 and 2010, respectively. A decision taken for providing reservation which would impact the rights of members of as many as 115 communities should be on the basis of contemporaneous inputs and not outdated and antiquated data [Ram Singh v. Union of India, (2015) 4 SCC 697] . Any study by the Commission should be with regard to the present status since the object is to take affirmative actions in present or in future to address the needs of a particular community [Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1] . In this particular case, the data that was relied on for the purpose of recommending internal reservation to the VanniakulaKshatariyas is from 1985. The State Government, at the time of appointing the Kulasekaran Commission to collect quantifiable data on castes, communities and tribes in the State of Tamil Nadu, including migrants domiciled therein, expressly recognised the need for collection of such data as the data collected by the Ambasankar Commission had become more than three decades old. We are in agreement with the objection of the respondents, that there was no contemporaneous data available to Justice Thanikachalam or even Justice Janarthanamon the basis of which recommendations for internal reservation could have been made.” [emphasis added]

“520.

The word “adequate” is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in mainstream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services.”

“480.

From the above, it is clear that both the Commission and the High Court treated the extraordinary situations with regard to exceeding 50% for granting separate reservation to Marathas, the fact that population of backward class is 85% and reservation limit is only 50%. The above extraordinary circumstances as opined by the Commission and approved by the High Court is not extraordinary situation as referred to in para 810 of Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] judgment. The Marathas are dominant forward class and are in the mainstream of national life. The above situation is not an extraordinary situation contemplated by Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] judgment and both the Commission and the High Court fell in error in accepting the above circumstances as extraordinary circumstance for exceeding the 50% limit…..”

Whether the principles applicable to Article 16(4) of the Constitution apply equally to Article 15(4) of the Constitution

“757.

Though Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] was not a case arising under Article 16(4), what it said about Article 15(4) came to be accepted as equally good and valid for the purpose of Article 16(4). The formulations enunciated with respect to Article 15(4) were, without question, applied and adopted in cases arising under Article 16(4). …”

Consultation with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes

“102.

Given the language of the provision and its interpretation in Jaishri Laxmanrao Patil [Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1] , there need not be a detailed discussion about Article 338-B(9) being mandatory. The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision. However, non-consultation by the State Government with the National Commission would not take away the competence of the State Government to enact the 2021 Act. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself [M.P. Cement Manufacturers' Assn. v. State of M.P., (2004) 2 SCC 249] and Article 338-B(9) does not stop the State from enacting a legislation in furtherance of a major policy matter but states that the State Government shall consult the Commission on such matters.” [emphasis added]

“637.

When the Constitutional provision uses the expression “consultation” which “consultation” is to be undertaken by a constitutional authority like National Commission for Backward Classes in the present case, the “consultation” has to be meaningful, effective with all relevant materials and information placed before the Commission. As observed above, the National Commission for Backward Classes has been given constitutional status under Article 338-B, has now been entrusted with numerous functions regarding the backward classes. The Commission is now to advice not only the Union Government but the State Government also and various measures as enumerated in clause (5). The objective of clause (9) of Article 338-B is to ensure that even the States did not take any major policy decision without consulting the Commission which is competent to provide necessary advice and solution keeping in view the larger interest of backward class. We thus are of the considered opinion that the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per clause (9) of Article 338-B which mandatory requirement cannot be bypassed by any State while the State takes any major policy decision.

638.

It is true that the expression “consultation” in clause (4) of Article 338-B is not to be read as concurrence but as held above, “consultation” has to be effective and meaningful. The object of consultation is that “consultee” shall place the relevant material before the person from whom “consultation” is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation.”

CONCLUSION