On the basis of reports that the inhabitants of certain villages were harboring dacoits, the government of Rajasthan sanctioned posting of additional police in those villages.

The expenses were to be borne by the villagers but the Harizan & Muslim inhabitants of these villages were exempted from this liability.

Under the City of Bombay Police Act, while a person born outside Greater Bombay could be extern if he was convicted of any of the offences mentioned in Police Act, none such action could be taken against a person born within Greater Bombay.

The residents of Madhya Bharat were exempted from payment of a capitation fee for admission to the State Medical college, while the non-residents were required to pay the same .

Rule- granting a special allowance to the women principals working in a wing of the Punjab Educational Services was challenged on the ground that their male counterparts were not given the same benefit although both performed identical duties.

The Government of Andhra Pradesh in the year 1984 decided that women were not getting their due share of public employment.

It decided to take certain remedial measures. On 2.1.1984 it issued G.O.Ms. No.2, General

Administration (Services-A) Department stating policy decisions taken by the State Government in respect of reservations for women in public services, to a specified extent.

Pursuant to this policy decision, Rule 22-A was introduced in the Andhra Pradesh State and Subordinate Service Rules under the proviso to Article 309 of the Constitution of India.

It reads as follows:- "22-A: Notwithstanding anything contained in these Rules or Special or Ad-hoc Rules-

(1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women; (G.O..Ms.MNo.472, G.A. dated 11.10.1985):

Provided that such absolute preference to women shall not result in total exclusion of men in any category of posts.

(2) In the matter of direct recruitment to posts for which women and men are equally suited, other things being equal, preference shall be given to women and they shall be selected to an extent of at least 30% of the posts in each category of O.C., B.C., S.C., and S.T. quota.

(3) In the matter of direct recruitment to posts which are reserved exclusively for being filled by women they shall be filled by women only."

Sub-rule (2) of this Rule was challenged before the Supreme Court.

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

Clause 1 prohibits the state form discriminating against citizens on grounds only of religion, race, caste, sex, place of birth or any of them.

The expression ‘discriminate against’ according to Concise Oxford Dictionary, means ‘select of unfavorable treatment’.

Discrimination in this sense involves an element of prejudice.

If prejudice is disclosed and is based on any of the grounds mentioned in Article 15, the law must be struck down.

Article 15 is a facet of Article 14. Like Article 14, Article 15(1) also cover the

entire range of state activities. Scope of Article 15 is narrower than that of

Article 14.1. Article 14 is general in nature in the sense

it applies both to citizens and non citizens. Article 15(1) cover only the Indian

citizens. No non-citizen can claim right under Article 15(1).

2. Article 14 permits any reasonable classification on the basis of any rational criterion

Article 15(1), certain grounds mentioned therein can never form the basis of classification.

On the basis of reports that the inhabitants of certain villages were harboring dacoits, the government of Rajasthan sanctioned posting of additional police in those villages. The expenses were to be borne by the villagers but the Harizan & Muslim inhabitants of these villages were exempted from this liability.

This was quashed as being discriminatory on the ground of ‘caste’ or ‘religion’ as it discriminated against the peace loving villagers other than harizans & Muslims.

State of Rajasthan v. Pratap Singh, AIR 1960 SC 1208

Under the City of Bombay Police Act, while a person born outside Greater Bombay could be extern if he was convicted of any of the offences mentioned in Police Act, none such action could be taken against a person born within Greater Bombay.

This was discrimination on the basis of ‘place of birth’, and so was invalid under Article 15(1).

In re Shaikh Husein Shaik Mahomed AIR 1951 SC Bom 285

The residents of Madhya Bharat were exempted from payment of a capitation fee for admission to the State Medical college, while the non-residents were required to pay the same .

The Supreme Court negatived the plea of discrimination by the non-residents under Article 15(1) because the ground of exemption was ‘residence’ and not ‘place of birth’.

D.P.Doshi v. Madhya Bharat, AIR 1955 SC 334

Article 15(2) contains a prohibition of a general nature and is not confined to the state only.

Article 15(3) Nothing in this article shall prevent the

State from making any special provision for women and children.

Article 16(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.

Rule – Male candidate ineligible for the post of senior Tutor in the school of Nursing.

Held – Violative of Article 16 (2) and was not saved by Article 15(3).

Delhi H.C took the view that the matter relating to employment falls under Article 16 and not under Article 15(3).

Walter Alfred Baid, Sister Tutor (Nursing) Irwin Hospital v. U.O.I, AIR 1976 Del. 302

Rule- granting a special allowance to the women principals working in a wing of the Punjab Educational Services was challenged on the ground that their mail counterparts were not given the same benefit although both performed identical duties.

Constitutional Validity of the rule was challenged under Article 16(2).

Petitioner’s Contention Reservation of posts or appointment for any

backward class is permissible under Article 16(2) but not for women—so no reservation can be made as it would amount to discrimination on the ground of sex in public employment which would be violative of Article 16(2).

Upheld the rule under Article 15(3), holding that even though the discrimination was based on the ground of sex, it was saved by Article 15(3).

Article 15(3) could be invoked for construing & determining the scope of Article 16(2).

Shamsher Singh v. State of Punjab AIR 1970 P&H 372

The Government of Andhra Pradesh in the year 1984 decided that women were not getting their due share of public employment.

It decided to take certain remedial measures. On 2.1.1984 it issued G.O.Ms. No.2, General

Administration (Services-A) Department stating policy decisions taken by the State Government in respect of reservations for women in public services, to a specified extent.

Pursuant to this policy decision, Rule 22-A was introduced in the Andhra Pradesh State and Subordinate Service Rules under the proviso to Article 309 of the Constitution of India.

It reads as follows:- "22-A: Notwithstanding anything contained in these Rules or Special or Ad-hoc Rules-

(1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women; (G.O..Ms.MNo.472, G.A. dated 11.10.1985):

Provided that such absolute preference to women shall not result in total exclusion of men in any category of posts.

(2) In the matter of direct recruitment to posts for which women and men are equally suited, other things being equal, preference shall be given to women and they shall be selected to an extent of at least 30% of the posts in each category of O.C., B.C., S.C., and S.T. quota.

(3) In the matter of direct recruitment to posts which are reserved exclusively for being filled by women they shall be filled by women only."

Sub-rule (2) of this Rule was challenged before the Supreme Court.

Petitioner filed a writ petition before the Andhra Pradesh High Court challenging rule 22-A (2).

Ground of challenge Rule is violative of Articles 14 and 16(4) of the

Constitution and had seriously affected all male unemployed persons in the State of Andhra Pradesh.

Single Judge A single Judge of the Andhra Pradesh High Court

upheld the validity of Rule 22-A. Division Bench In appeal before the High Court, however, a

Division Bench struck down a portion of Rule 22-A(2) as unconstitutional while upholding sub-rules (1) and (3) of Rule 22-A.

The portion of sub-rule (2) which is struck down is the last portion of that sub-rule containing the words "and they shall be selected to an extent of at least 30% of the posts in each category of O.C., B.C., S.C., and S.T. quota".

Issue before the Supreme Court Does sub-rule (2) of Rule 22-A violate Articles 14 or

16(4)? Respondents arguments:- If Article 16(2) is read with Article 16(4) it is clear

that 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 is expressly permitted.

But there is no such express provision in relation to reservation of appointments or posts in favour of women under Article 16.

Therefore State cannot make any reservation in favour of women in relation to appointments or posts under the State.

This would amount to discrimination on the ground of sex in public employment or appointment to posts under the State and would violate Article 16(2).

Supreme Court’s Observations- Article 15(1) would prevent a State from

making any discriminatory law on the ground of sex alone.

The State, by virtue of Article 15(3), is permitted, despite Article 15(1), to make special provisions for women, thus clearly carving out a permissible departure from the rigours of Article 15(1).

Interrelation between Articles 14, 15 and 16 Article 15 deals with every kind of State action

in relation to the citizens of this country. Every sphere of activity of the State is

controlled by Article 15(1). There is, therefore, no reason to exclude from

the ambit of Article 15(1) employment under the State.

In dealing with employment under the State, it has to bear in mind both Articles 15 and 16 - the former being a more general provision and the latter, a more specific provision.

Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3).

The power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State.

The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped.

As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality.

It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15.

Its object is to strengthen and improve the status of women.

An important limb of this concept of gender equality is creating job opportunities for women.

To say that under Article 15(3), job opportunities for women cannot be created would be to out at the very root of the underlying inspiration behind this Article.

Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3).

This power conferred under Article 15(3), is not whittled down in any manner by Article 16.

Summary S.C rejected the argument and ruled that Posts can be reserved for women under

Article15 (3) as it is much wider in scope and covers all state activities.

Making special provision for women in respect of employment or posts under the state is an integral part of Article 15(3).

Power conferred by Article 15(3) is not whittled down in any manner by Article 16.

Under Article 15(3), the State may fix a quota for appointment of women in government services.

In this case court upheld an order of Orissa Government reserving 30% quota for women in the allotment of 24 hours medical stores as part of self employment scheme.

Reservation of 50% seats for women teachers in the selection of primary school teachers in UP was upheld.

An agreement reached between the employees and management of airlines that while all male and female employees may serve up to the age of 58 years , the female will be relieved of flying duties after the age of 50 and will be assigned ground duties while, male employees may continue in flying duties until their retirement at the age of 58.

It was upheld by the Court on the ground

that the difference was made on the basis of an agreement to which female were party and that it was a special provision for women favouring them.

Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article 29(2)-No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 16(4) Nothing in this article shall prevent the State/

from making any provision/ for the reservation of appointments or posts/ in favour of any backward class of citizens/ which, in the opinion of the state/ is not adequately represented in the services under the state.

Article 15(4) – added by the Constitution (First Amendment) Act, 1951.

State of Madras v. Champakam Dorairajan AIR 1951 SC 226

Facts-Madras Government issued a Communal G.O.

Object - to help the backward classes Order fixed the proportion of students of each

community that could be admitted into the State medical & engineering colleges.

Article 46- lays down that the state should promote with special care the educational & economic interests of the weaker sections of the people & protect – them from social injustice.

Court held- “DPSP have to conform to and run as subsidiary to the Chapter of F.R.” –

Struck down the G.O. Now Clause 4 enables the state to make special

provisions.

Historical Aspect 1850s these communities were loosely referred to

as the "Depressed Classes". The Morley-Minto Reforms Report, Montagu-

Chelmsford Reforms Report, and the Simon Commission were some of the initiatives that happened in this context.

Reservation of seats for the Depressed Classes was incorporated into the Government of India Act 1935 act, which came into force in 1937.

The Act brought the term "Scheduled Castes" into use, and defined the group as including "such castes, races or tribes or parts of groups within castes, races or tribes, which appear to His Majesty in Council to correspond to the classes of persons formerly known as the 'Depressed Classes', as His Majesty in Council may prefer."

This discretionary definition was clarified in The Government of India (Scheduled Castes) Order, 1936 which contained a list, or Schedule, of castes throughout the British administered provinces.

After independence, the Constituent Assembly continued the prevailing definition of Scheduled Castes and Tribes, and gave (via articles 341, 342) the President of India and Governors of states responsibility to compile a full listing of castes and tribes, and also the power to edit it later as required.

The actual complete listing of castes and tribes was made via two orders The Constitution (Scheduled Castes) Order, 1950, and The Constitution (Scheduled Tribes) Order, 1950 respectively.

Two contentious issues in the applications of Article 15(4) & Article 16(4) ◦Determination of backward classes◦Extent or quantum of reservation

Schedule Castes & Schedule Tribes –Defined in Article 366 u/clause (24) & (25)

“Schedule Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Schedule Castes for the purpose of this Constitution.

“Schedule Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be schedule tribes for the Purpose of this Constitution.

THE CONSTITUTION (SCHEDULED CASTES) ORDER, 1950] 

In exercise of the powers conferred by clause (1) of article 341 ofthe Constitution of India, the President, after consultation with theGovernors and Rajpramukhs of the States concerned, is pleased to makethe following Order, namely:-

1. This Order may be called the Constitution (Scheduled Caste) Order,1950.

2. Subject to the provisions of this Order, the castes, races ortribes or parts of, or groups within, castes or tribes specified in2[Parts to 3[XXII] 7{XXIII}8XXIV of the Schedule to this Order shall, in relationto the States to which those Parts respectively relate, be deemed tobe Scheduled Castes so far as regards member thereof resident in thelocalities specified in relation to them in those Parts of thatSchedule.

THE CONSTITUTION (SCHEDULED TRIBES) ORDER, 1950

In exercise of the powers conferred by clause (1) of article 342 ofthe Constitution of India, the President, after consultation with theGovernors and Rajpramukhs of the States concerned, is pleased to makethe following Order, namely:--

1. This Order may be called the Constitution (Scheduled Tribes)Order, 1950.

2. The Tribes or tribal communities, or parts of, or groups within,tribes or tribal communities, specified in 2[Parts I 3[XIX]6[XX]7[XXI]8[XXIIof the Schedule to this Orders Shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof residents in the localities specified in relation to them respectively in those Parts of that Schedule.

Backward Classes- Not defined anywhere in the constitution

Article 340 – Appointment of a commission to investigate the conditions of backward classes.

President exercised his power u/article 340 twice First in 1953 under the Chairmanship of Kaka

kalelkar Second in 1978 u/ the Chairmanship of B.P.Mandal Both these commissions have taken caste as the

dominant, if not the sole factor in determining the backwardness – no agreed formula has yet been found.

As a matter of fact each state is experimenting with different tests influenced by social & political consideration as well as judicial decisions.

Until 1985, the affairs of Backward Classes were looked after by the Backward Classes Cell (BCC) in the Ministry of Home Affairs. With the creation of a separate Ministry of Welfare in 1985 (renamed as Ministry of Social Justice and Empowerment on 25th May 1998) the matters relating to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBCs) and Minorities were transferred to the new Ministry.

The Backward Classes Division in the Ministry looks after the policy, planning and implementation of programmes relating to social and economic empowerment of OBCs. It also looks after matters relating to two institutions set up for the welfare of OBCs : National Backward Classes Finance and Development Corporation (NBCFDC) and the National Commission for Backward Classes (NCBC).

The First Backward Classes Commission was set up by a presidential order on January 29, 1953 under the chairmanship of Kaka Kalelkar.

The commission submitted its report on March 30, 1955.

It had prepared a list of 2,399 backward castes or communities for the entire country and of which 837 had been classified as the "most backward".

Some of the most notable recommendations of the commission were:

Undertaking caste-wise enumeration of population in the census of 1961;

Relating social backwardness of a class to its low position in the traditional caste hierarchy of Hindu society;

Treating all women as a class as "backward"; Reservation of 70 per cent seats in all technical

and professional institutions for qualified students of backward classes.

Reservation of vacancies in all government services and local bodies for other backward classes.

The commission in its final report recommended "caste as the criteria" to determine backwardness.

But this report was not accepted by the government as it feared that the backward classes excluded from the caste and communities selected by the commission may not be considered and the really needy would be swamped by the multitude and would hardly receive special attention.

The decision to set up a second backward classes commission was made official by the president on January 1, 1979. The commission popularly known as the Mandal Commisssion, its chairman being B. P. Mandal. It submitted the report in December 1980.

The recommendations of the commission were: The population of OBCs which includes both Hindus

and non-Hindus is around 52 per cent of the total population. However only 27 per cent of reservation was recommended owing to the legal constraint that the total quantum of reservation should not exceed 50 percent.

States which have already introduced reservation for OBC exceeding 27 per cent will not be affected by this recommendation. With this general recommendation the commission proposed the following over-all scheme of reservation for OBC:

Candidates belonging to OBC recruited on the basis of merit in an open competition should not be adjusted against their reservation quota of 27 per cent.

The above reservation should also be made applicable to promotion quota at all levels.

Reserved quota remaining unfilled should be carried forward for a period of three years and de-reserved thereafter.

Relaxation in the upper age limit for direct recruitment should be extended to the candidates of OBC in the same manner as done in the case of SCs and STs.

A roster system for each category of posts should be adopted by the concerned authorities in the same manner as presently done in respect of SC and ST candidates.

These recommendations in total are applicable to all recruitment to public sector undertakings both under the central and state governments, as also to nationalised banks. All private sector undertakings which have received financial assistance from the government in one form or other should also be obliged to recruit personnel on the aforesaid basis. All universities and affiliated colleges should also be covered by the above scheme of reservation. Although education is considered an important factor to bring a desired social change, "educational reform" was not within the terms of reference of this commission.

To promote literacy the following measures were suggested:

An intensive time-bound programme for adult education should be launched in selected pockets with high concentration of OBC population;

Residential schools should be set up in these areas for backward class students to provide a climate specially conducive to serious studies.

All facilities in these schools including board and lodging should be provided free of cost to attract students from poor and backward homes;

Separate hostels for OBC students with above facilities will have to be provided;

Vocational training was considered imperative. It was recommended that seats should be

reserved for OBC students in all scientific, technical and professional institutions run by the central as well as state governments. The quantum of reservation should be the same as in the government services, i e, 27 per cent. [1]

Since 1958 the State of Mysore has been endeavouring to make a special provision for the advancement of its socially and educationally backward classes of citizens under Article 15(4) of the Constitution, and every time when an order is passed in that behalf, its validity has been challenged by writ proceedings.

On July 26, 1958, the State issued an order that all the communities, excepting the Brahmin community, fell within the definition of educationally and socially Backward Classes and Scheduled Castes and Tribes, and provided for the said communities and tribes reservation of 75% of seats in educational institutions.

In 1959, two separate orders were passed by the State on the 14th May and 22nd July respectively.

By the first order, all communities, excepting Brahmins, Baniyas and Kayasts among the Hindus and Muslims, Christians and Jains, were classified as socially and educationally Backward Classes. It appears that 65% of the seats were reserved for these socially and educationally Backward Classes and Scheduled Castes Tribes.

State then appointed a Committee called the Mysore Backward Classes Committee with Dr. R. Nagen Gowda as its Chairman, to investigate the problem and advise the Government as to the criteria which should be adopted in determining the educationally and socially Backward classes, and the special provisions which should be made for their advancement.

The Committee made an interim report, and in the light of the said report, the State passed an order on the 9th June, 1960 regulating admissions for that year into the professional and technical colleges. Broadly stated, the effect of this order was that 60% of the seats were left open for what may be conveniently described as the 'merit pool' available to candidates according to their merits, 40% were reserved for the 'reservation pool', 22% of which were reserved for the Backward Classes, 15% for the Scheduled Castes and 3% for the Scheduled Tribes.

High Court indicated the manner in which the reservation in favour of the Scheduled Castes and Scheduled Tribes and other Backward Classes should be worked out so as to avoid a successful challenge under Arts. 15(1) and 29(2).

Therefore, the Nagen Gowda Committee made its report in 1961 and in the light of the said report and the recommendations made therein; the State proceeded to make an order under Art. 15(4) on the 10th July, 1961.

On the 31st July, 1962, the State, passed the impugned order which supersedes all previous orders made by the State under Art. 15(4) for reservation of the seats in favour of the Scheduled Castes and Scheduled Tribes as well as the Backward Classes.

Under this order, the Backward Classes are divided into two categories

(1) Backward Classes and (2) More Backward Classes.

The effect of this order is that it has fixed 50% reservation of seats for Other Backward Classes; 28% out of this is reserved for Backward Classes so-

called and 22% for More Backward Classes. The reservation of 15% and 3% for the Scheduled

Castes and Scheduled Tribes respectively continues to be the same.

The result of this order is that 68% of the seats available for admission to the Engineering and Medical Colleges and to other technical institutions specified in the order passed on the 10th July, 1961, is reserved, and only 32% is available to the merit pool.

In other words, the percentage of reservation to the extent of 68%, which, according to the order of July 10, 1961, would have been against the larger interests of the State, has, by the impugned order, been accepted.

The petitioners contend that the classification made by this order is irrational and the reservation of 68% made by it is a fraud on Art. 15(4).

The petitioner’s grievance and they urge that the impugned order which has denied them the facility of

admission in the respective colleges is void under Art. 15(1) and 29(2) and should not be enforced against them.

Accordingly, the petitioners pray that a writ of mandamus and/or any suitable writ or direction should be issued against respondent No.1, the State of Mysore , and the two Selection Committees which have been impleaded as respondents 2 and 3.

The petitioners' case is that the impugned order which has been passed under Art. 15(4) is not valid because the basis adopted by the order in specifying and enumerating the socially and educationally backward classes of citizens in the State is unintelligible and irrational, and the classification made on the said basis is inconsistent with and outside the provisions of Article 15(4).

It is also urged by them that the extent of reservation prescribed by the said order is so unreasonable and extravagant that the order, in law, is not justified by Art. 15(4), in substance, is a fraud on the power conferred by the said Article on the State.

Caste- not sole or even predominant factor though it may be a relevant test.

Backwardness u/A 15(4) must be social & educational & the social backwardness is, in the ultimate analysis, the result of poverty.

One’s occupation & place of habitation could be other relevant factors.

Sub-Classification between ‘backward classes’ and ‘more backward classes’ not justified.

Reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4)

Cl. (4) of Article 15 enables the state to make special provision & not exclusive provisions.

State would not be justified ignoring altogether advancement of the rest of the society in its zeal to promote the welfare of backwardness classes.

National interest would suffer if qualified & competent students were excluded from admissions in institutions of higher education.

Facts The Government of Mysore laid down

classification of socially and educationally backward classes on the following basis:

Economic Conditions (less than Rs.1,200 per year)&

Occupations

Petitioner’s Contention-◦ Order of Government did not take into

consideration the caste of the applicant.

Supreme Court held- ◦ Though caste of a group of citizens might be

relevant circumstances for ascertaining their social backwardness, it could not be the sole or dominant or even essential test in that behalf.

◦ Identification or classification of backward classes on the basis of occupation-cum-income, without reference to caste is not bad and would not offend Art. 15(4).

Judicial view has undergone some change- and caste as a factor to access backwardness has been given somewhat more importance than Balaji & Chitralekha.

Petitioner’s Contention Rule 5, which provides for reservation

for socially and educationally backward classes, is bad, as it violates Art. 15 of the Constitution on the ground that it is based entirely on consideration of caste.

If the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15 (1).

S.C held A caste is also a class of citizens and if the

caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15 (4).

S.C looked into the history as to how the list had come to be formulated.

The Court felt satisfied that caste was not taken as the sole basis of backwardness.

The main criterion for inclusion in the list was social and educational backwardness of the castes based on their occupations.

Supreme Court invalidated an Andhra notification, apparently based on exclusive caste criterion with the observation that the expression ‘class’ in Article 15(4) means a homogeneous section of the people grouped together because of certain likeness or common traits in the determination of which caste cannot be excluded together.

“But in the determination of a class a test solely based upon the caste or community cannot also be accepted.”

Supreme Court upheld a caste based test of backwardness with the observation that it was permissible so long as such castes were socially and educationally backward though it warned against vested interests being created in favour of castes and asked for constant revision of the test.

A list prepared by the Backward Commission appointed by the Andhra Government was held valid even though backward classes were enumerated mainly by their caste names because the Court found that the Commission had prepared the list after a detailed enquiry and applying several tests like general poverty, occupations, caste and educational backwardness.

The court felt satisfied that the Commission had enough material before it to be satisfied that the persons included in the list were really socially and educationally backward.

S.C held that – “a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data, it is found that the caste as a whole is socially & educationally backward……. the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in the group may be both socially & educationally above the general average.”

Admissions to medical colleges in U.P in favour of candidates from

(a) rural areas, (b) hill areas and (c) Uttarakhand areas was challenged. The classification was based on

geographical or territorial considerations. Candidates from these areas constituted

socially and educationally backward classes of citizens.

Supreme Court held The place of habitation and its environment

could be a determining factor in judging the social & educational backwardness.

The court upheld reservations for persons from hill and Uttarakhand areas.

It was found that absence of means of communication, technical processes and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward.

However, reservation of seats for rural areas was invalidated because the division of the people on the ground that the people in the rural areas were poor and those in the urban were not, was not supported by the facts.

Further, the rural population was heterogeneous and not all of them were educationally backward.

Facts A government order excluded the candidates

belonging to socially and educationally backward classes from claiming the benefit of reservation of the aggregate annual family income was Rs. 10,000 or over.

The order was challenged by the candidate belonging to the backward class, but who was denied the privilege of preferential admission to medical college because her family income exceeded Rs. 10,000 annually.

The S.C emphasized that Social backwardness is the result of caste and poverty. Poverty or economic standard is a relevant factor in

determining backwardness, but cannot be the sole determining factor.

Caste cannot be the sole or dominant test for the purpose.

“Caste and poverty are both relevant for determining the backwardness. But neither caste alone nor poverty alone will be the determining tests”.

Both of these factors are relevant to determine backwardness.

Occupations, place of habitation may also be relevant factors for the purpose.

With the improvement in economic position of the family, social backwardness disappears.

To allow these persons to take advantage of the privileges meant for backward person, will result in depriving the real backward persons of their chance to make progress.

From these and some other decisions of the Supreme Court as well as of the High Courts,

no clear and uniform policy, guidelines or test of determining backwardness for purposes of Articles (15(4) and 16(4) emerges.

Tired with this judicial vacillation, perhaps, the State of Karnataka asked the Supreme Court to give clear guidelines on this vexed question in

K.C Vasanth Kumar v. State of Karnataka.

Chandrachud, C.J- Reservation in employment and education in

favour of S.C & S.T should continue for another period of 15 YEARS. Thereafter, the test of economic backwardness ought to be made applicable to them.

For identifying the other backward classes for the purposes of reservations, the following TWO TESTS should be applied:

They should be COMPARABLE TO THE S.C & S.T in the matter of backwardness.

They should satisfy the MEANS TEST i.e., the test of backwardness such as the state Government may lay down in the context of prevailing economic conditions.

Policy of reservation should be reviewed EVERY FIVE years.

Desai,J. Root cause of social & educational

backwardness lies in economic backwardness.

Reservation must have a time span otherwise concessions tend to become vested interest.

Chinnappa Reddy, J. No universal, exclusive or conclusive test to

identify backward classes & it may be futile to apply any rigid tests. The generality & the totality of the situation have to be seen.

Courts are not necessarily the most competent to identify the back ward classes or to lay down guidelines for their identification except in broad & very general way.

Poverty is the primary test to identify the SEBC. But class poverty, not individual poverty should be the real test.

Sen,J. ‘The predominant and the only factor for

making special provisions under Article 15(4) or for reservation of posts and appointments under Article 16(4) should be poverty ,and castes or a sub-caste or a group should be used only for purposes of identification of persons comparable to Schedule Castes or Schedule Tribes.’

Venkataramiaha,J. Lowest among the castes similar to SC and

ST , the means or economic condition and the occupation

may all be counted in making a determination of backwardness.

Chandrachud, C.J COMPARABLE TO THE S.C & S.T They should satisfy the MEANS TEST Desai,J. economic backwardness. Chinnappa Reddy, J. Poverty is the primary test. But class poverty,

not individual poverty should be the real test. Sen,J. Poverty Venkataramaiha,J. Lowest among the castes similar to SC and

ST , means or economic condition and occupation

One of the contention before the Supreme Court was that the first memorandum was based on the Mandal Commission Report which took caste as a dominant, rather sole, criterion for determining the SEBCs.

Supreme Court rejected the contention of the Petitioners

Supreme Court held that- Class or classes in Articles 15(4) and 16(4)

respectively are not to be construed in the Marxist sense.

The constitution does not define these classes nor does it lay down any methodology for their determination.

The court could also not devise any method for their determination.

The central idea and overall objective should be to consider all available groups, sections and classes in the society.

Since caste represented an existing, identifiable social group/class encompassing an overwhelming majority of the country’s population, one could well begin with it and then go to other groups, sections and classes.

Caste, however, was not an essential factor for determining the social and educational backwardness.

It is also not necessary that SEBCs should be similarly situated as SCs and STs.

Within SEBCs classification between the backward and more backwardis permissible.

To maintain the cohesiveness and character of a class the ‘creamy layer’ can must be excluded from SEBCs.

The economic criterion alone cannot be the basis of backwardness although it may be a consideration along with or in addition to social backwardness.

The court also suggested CREATION OF A PERMANENT BODY at the central and state levels to look into the complaints of over and under-inclusion as well as to revise the lists of SEBCs periodically.

Following courts directions the Centre and the States have appointed backward class commissions for constant revision of such classes and for the exclusion of creamy layer from amongst them.

Wherever any government has failed to implement the requirement of appointing a commission and exclusion of creamy layer it has issued necessary directions compelling them to do so.(Indra Sawhney v. UOI,(2000) 1SCC 168)

With this larger Bench decision, the matter seems to have settled that caste could be an important or ever sole factor in determining the social backwardness and that poverty alone could not be such a criterion.

Court was required to adjudge the validity of the ‘Carry forward’ Rule.

The ‘Carry Forward’ rule envisaged that in a year, 17.5 percentage posts were to be reserved for schedule Castes/Tribes; of all the reserved posts were not filled in a year for want of suitable candidates from those classes, then the shortfall was to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years.

The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the reserved quota & only 16 posts were left for others.

This meant reservation up to 65% in the third year, & while candidates with low marks from the S.C & S.T were appointed, Candidates with higher marks from other were not taken.

Supreme Court held- More than 50% reservation of posts in a single

year would be unconstitutional as it per se destroys Article 16(1).

In the name of advancement of Backward Communities, the F.Rs of other Communities should not be completely annihilated.

Article 16(4) is an exception to Article 16(1). Article 16(4) should not be interpreted so as

to nullify or destroy the main provision. Reservation for backward communities should

not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.

State cannot ignore the F.Rs of the rest of the Citizens.

Facts Promotion from the cadre of lower division clerks

to the higher cadre of upper division clerks depended on passing a test within two years.

For S.C & S.T extension could be granted for a longer period.

These classes were given two extra years to pass the test.

This exemption was challenged as discriminatory under Article 16(1).

The ground of challenge was that ◦ Article 16 permitted only reservation in favour

of backward classes but it was not a case of reservation of posts for S.C & S.T under Article 16(4) & that these persons were not entitled to any favoured treatment in promotion outside Article 16(4).

The majority accepted the view of Subba Rao,J. (Dissenting opinion in Devadasan).

Article 16(4) is not in the nature of an exception to Article 16(1).

“It is a facet of Article 16(1) which fosters & further the idea of equality of opportunity with special reference to an under privileged & deprived class of citizens.”

Article 16(1) itself permits reasonable classification for attaining equality of opportunity assured by it.

Article 16(4) should be read along, and in harmony with article 16(1).

Indeed even without Article 16(4), the State could have reserved posts for backward classes.

Article 16(4) merely puts the matter beyond any doubt or controversy in specific terms.

S.C reiterated the Thomas proposition that under Article 16(1) itself, the State may classify, “based upon substantial differentia, groups or classes” for recruitment to public services, and “this process does not necessarily spell violation of Article 14 & 16.

Article 16(2) expressly forbids discrimination on the basis of ‘caste’. S.Cs & S.Ts are not castes within the ordinary meaning of caste. These are backward human groups.

The “carry forward” rule for three years was not held bad.

• Also known as Mandal Commission Case.• On January1, 1979 under the Chairman ship of

B.P.Mandal, the second Backward Class Commission under Article 340 was appointed by the Union Government headed by Prime Minister Morarji Desai.

• One of the major recommendation made by the commission was that, besides the SCs and STs, for other backward classes which constitute nearly 52% component of the population, 27% government jobs be reserved so that that total reservation for all, SC,ST and OBCs, amount to 50%.

• No action was taken on the basis of the Mandal Report for long after it was submitted, except that it was discussed in the Houses of Parliament twice, once in 1982and again in 1983.

• On August 13, 1990, the V.P.Singh Government at the Centre issued an office memorandum accepting the Mandal Commission recommendation and announcing 27% reservation for the socially and educationally backward classes in vacancies in civil posts and services under the Government of India.

This memorandum led to widespread disturbances in the country.

The order was challenged in the Supreme Court. A three judge bench refused to interfere on the ground

that the matter was a political one. Public controversy and disturbances continued. The Supreme Court Bar Association moved a petition. In response Supreme Court constituted a 5 Judge

Bench. The early order of the Supreme Court and the O.M

were stayed. In the meanwhile the Government changed after

General Elections. In 1991, the Narsimha Rao Government modified the

above memorandum in two respects: One, the poorer sections among the backward classes

would get preference over the other sections; Two, 10% vacancies would be reserved for other

“economically backward sections” of the people who were not covered by any existing reservation scheme.

The reservations contemplated in clause (4) of Art.16 should not exceed 50%. ◦ Overruled: State of Kerala v. N.M.Thomas AIR 1976 SC 490

K.C. Vasanth Kumar v. State of Karnataka ◦ Approved: Balaji v. State of Mysore AIR 1963 SC 649

Devadsan v. Union of India AIR 1964 SC 649

Creamy layer must be excluded from backward classes.

No reservation in promotions. Reservation of appointments or posts under Art.16(4)

is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion.

Overruled:◦ General Manager, Southern Rly. V. Rangachari AIR 1962 S.C

36◦ State of Punjab v. Hira Lal (1970) 3SCC 567◦ A.B.S.K Sangh (Rly.) v. U.O.I AIR 1981 SC 298◦ Com. & Aud. General of India,Gian Prakash v.

K.S.Jagannathan (1996) 2 SCC 679

Reservation can be made by ‘Executive Order’. A 'provision' under Art.16(4) can be made by an

executive order. It is not necessary that it should be made by Parliament/Legislature.

Carry Forward rule is valid.◦ Overruled: Devadsan v. Union of India AIR 1964 SC 649◦ Approved: A.B.S.K Sangh (Rly) v. U.O.I AIR 1981 SC 298

Article 16(1) permits classification Approved: State of Kerala v. N.M.Thomas AIR

1976 SC 490 Reservations can also be provided under clause

(1) of Art.16. Article 16(1) permits classification & under it

special provisions can be made for handicapped or disadvantaged groups other than the backward classes.

Clause (4) of Art.16 is not an exception to clause (1). It is an instance and an illustration of the classification inherent in clause (1).

Overruled: Balaji v. State of Mysore AIR 1963 SC 649 Approved: State of Kerala v. N.M. Thomas AIR 1976 SC 490

The expression 'backward class' in Art.16 (4) takes in 'Other Backward Classes', SCs, STs and may be some other backward classes as well.

Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Art.16(4).

Even under Art.16(1), reservations cannot be made on the basis of economic criteria alone.

Backward Classes in Article 16(4) are not similar to as socially and educationally backward in Article 15(4).◦ Overruled: Balaji v. State of Mysore AIR 1963 SC 649

Article 16(4) permits classification of backward classes into backward & more backward classes.◦ Overruled: Balaji v. State of Mysore AIR 1963 SC 649◦ Approved: State of Kerala v. N.M. Thomas AIR 1976 SC

490

Not necessary that SEBCs should be similarly situated as SCs and STs.

The government of India, each of the State governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over inclusion and under -inclusion in the lists of other backward classes of citizens.

No reservation in promotions. Overruled:

◦ General Manager, Southern Rly. V. Rangachari AIR 1962 S.C 36

◦ State of Punjab v. Hira Lal (1970) 3SCC 567◦ A.B.S.K Sangh (Rly.) v. U.O.I AIR 1981 SC 298◦ Com. & Aud. General of India, Gian Prakash v.

K.S.Jagannathan (1996) 2 SCC 679Clause 4A was amended by 85th Amendment Act 2001.

State of M.P v. Nivedita Jain, AIR 1981 SC 2045Relaxation of minimum qualifying marks for

admission for SCs & STsDr. Neelima v. Dean of P.G.Studies

A.P.Agricultural niversiity, Hydrabad, AIR 1993 SC 229

High caste girl marrying ST- Not entitled for reservation benefit

Dr. Priti Srivastava v. State of Madhya Pradesh, AIR 1999 SC 2894

Merit, not quota test for admission in Super Speciality courses in Medical and Engineering

Article 15(4) Constitution 1st amendment Act, 1951 Champakam Dorairajan v. State of Madras, AIR

1951 SC 226

Article 15(5) Constitution 93rd Amendment Act, 2006

Article 15(5)Constitution 93rd Amendment Act, 2005

P.A.Inamdar v . State of Maharashtra, (2005) 6SCC 537

T.M.A.Pai Foundation v. State of Karnataka, (2002) 6 SCC 537

Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the SC or the Sts 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) of Article 30.

“neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the state in an unaided educational institution.”

“ the right to establish an educational institution, for charity or for profits , being an occupation, is protected by Article 19(1)(g)”, it went further held that “ imposition of quota of State seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions…which can not be held to be a reasonable restriction within the meaning of Article 19(6) of the Constitution”.

Central Educational Institutions (Reservation in Admission) Act, 2006

Act provides reservation for 15, 7.5 and 27% reservation in Central Institutions of higher education and research for members of SC, ST and SEBC.

Ashok Kumar Thakur v UOI, (2007) 4 SCC 361 Challenge the validity of the Act as well as the

amendment By a majority of 4:1 the Court upheld the

Amendment as well as the act. The court left the validity of the amendment

undecided insofar as it applies to private unaided educational institutions because no such institution came to the court to challenge its validity.

Article 16(4-A) Constitution (Seventy-seventh Amendment) Act, 1995

result of Mandal Commission case. Constitution (Eighty-fifth) Amendment Act, 2001

result of Union of India v. Vipul Singh Chauhan, (1995) 6 SCC 684 & Ajit Singh(II) v. State of Punjab, (1999) 7 SCC 209

Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority (Constitution (85th Amendment) Act, 2001, to any class or classes of posts in the services under the State in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.

Inserted to overcome the decision in Mandal Commission case that no reservation in promotions could be made under clause (4)

Article 16(4-B) Constitution (Eight-first Amendment) Act, 2000

result of Mandal Commission case 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 percent reservation on total number of vacancies of that year.

Mandal Commission case laid down fifty percent upper limit for reservation in a year under clause (4) and upheld forty-nine and half percent reservations, no scope was left to fill in the backlog vacancies and to hold special recruitment drives. To overcome this handicap the Constitution (Eight-first Amendment) Act, 2000 introduced an exception to the fifty per cent limit for the purpose of filling the backlog vacancies.

M. Nagaraj v. Union of India, (2006) 8 SCC 212 a five judge bench of the Court unanimously upheld the validity of the above amendments introducing clauses (4-A) and (4-B) in Article 16.

The Constitution (One Hundred Seventeenth Amendment) Bill, 2012

The Constitution (One Hundred Seventeenth Amendment) Bill, 2012 was introduced in the Rajya Sabha on September 5, 2012 by Mr. V Narayansamy, Minster of State for Personnel, Public Grievances and Pensions.

In 1992, the Supreme Court in the case of Indira Sawhney v Union of India had held reservations in promotions to be unconstitutional.  Subsequently in 1995, the central government had amended the Constitution and inserted Article 16(4A).  This provided for reservation in promotions for Scheduled Castes and Scheduled Tribes which in the opinion of the state are not adequately represented in the services.

Article 16(4-A)Const.(77th Amendment) Act, 1995 & Const.(85th Amendment )Act, 2001

The Constitution (One Hundred Seventeenth Amendment) Bill, 2012

Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority (Constitution (85th Amendment) Act, 2001, to any class or classes of posts in the services under the State in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.

“(4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342,respectively, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for reservation in matters of promotions, 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 to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”

The Constitution (One Hundred Seventeenth Amendment) Bill, 2012

“(4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342,respectively, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for reservation in matters of promotions, 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 to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”

In 2006, the Supreme Court in the case of M. Nagraj v Union of India upheld the constitutional validity of the amendment.  While upholding the validity of the amendment,  the court held that before framing any law on this issue, the state will have to satisfy the test of; (a) backwardness of the particular SC and ST group; (b) inadequate representation of the said group; and (c) efficiency of administration.

In April 2012, the Supreme Court struck down the UP Government Seniority Rules which provided for reservations in promotions.   The court held that the state government had not undertaken any exercise to identify whether there was backwardness and inadequate representation of Scheduled Castes and Scheduled Tribes in the state government.

 

In light of the recent judgment of the Supreme Court, the central government has introduced the present Bill amending the Constitution. The Bill seeks to substitute Article 16(4A) of the Constitution of India. 

The Bill provides that all the Scheduled Castes and Scheduled Tribes notified in the Constitutional shall be deemed to be backward.  

Article 335 of the Constitution states that the claims of the Scheduled Castes and Scheduled Tribes have to be balanced with maintaining efficiency in administration.  The Bill states that provision of the amendment shall override the provision of Article 355.

The Scheduled Castes and the Scheduled Tribes have been provided reservation in promotions since 1955.

This was discontinued following the judgment in the case of Indra Sawhney Vs. Union of India, wherein it was held that it is beyond the mandate of Article 16(4)of the Constitution of India.

Subsequently, the Constitution was amended by the Constitution (Seventy-seventh Amendment) Act, 1995 and a new clause (4A) was inserted in article 16 to enable the Government to provide reservation in promotion in favour of the Scheduled Castes and the Scheduled Tribes.

Subsequently, clause (4A) of article 16 was modified by the Constitution (Eighty-fifth Amendment) Act, 2001 to provide consequential seniority to the Scheduled Castes and the Scheduled Tribes candidates promoted by giving reservation.

The validity of the constitutional amendments was challenged before the Supreme Court.

The Supreme Court while deliberating on the issue of validity of Constitutional amendments in the case of M. Nagaraj Vs. UOI & Ors., observed that the concerned State 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 in promotion.

Relying on the judgment of the Supreme Court in M. Nagaraj case, the High Court of Rajasthan and the High Court of Allahabad have struck down the provisions for reservation in promotion in the services of the State of Rajasthan and the State of Uttar Pradesh, respectively.

Subsequently, the Supreme Court has upheld the decisions of these High Courts striking down provisions for reservation in respective States.

It has been observed that there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise.

Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case, the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are being adversely affected.

Demands for carrying out further amendment in the Constitution were raised by various quarters.

A discussion on the issue of reservation in promotion was held in Parliament on 3-5-2012. Demand for amendment of the Constitution in order to provide reservation for the Scheduled Castes and the Scheduled Tribes in promotion has been voiced by the Members of Parliament.

An All-Party Meeting to discuss the issue was held on 21-08-2012.

There was a general consensus to carry out amendment in the Constitution, so as to enable the State to continue the scheme of reservation in promotion for the Scheduled Castes and the Scheduled Tribes as it existed since 1995.

In view of the above, the Government has reviewed the position and has decided to move the constitutional amendment to substitute clause (4A) of article 16, with a view to provide impediment-free reservation in promotion to the Scheduled Castes and the Scheduled Tribes and to bring certainty and clarity in the matter.

It is also necessary to give retrospective effect to the proposed clause (4A) of article 16 with effect from the date of coming into force of that clause as originally introduced, that is, from the 17th day of June, 1995.