CHEBROLU LEELA PRASAD RAO & ORS. v. STATE OF A.P. & ORS.

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A testing of proposed indicators against the tabulated data, the number of tables actually required for the Commission’s work was reduced to 31 (Appendix-21, Volume II). The formulation and refinement of indicators involved testing and validation checks at every stage. B 11.19. In this connection, it may be useful to point out that in social sciences no mathematical formulae or precise bench- marks are available for determining various social traits. A survey of the above type has to tread warily on unfamiliar ground and evolve its own norms and bench-marks. This exercise was full of hidden pitfalls and two simple examples are given below to illustrate C this point. 11.20. In Balaji case the Supreme Court held that if a particular community is to be treated as educationally backward, the divergence between its educational level and that of the State average should not be marginal but substantial. The Court D considered 50% divergence to be satisfactory. Now, 80% of the population of Bihar (1971 Census) is illiterate. To beat this percentage figure by a margin of 50% will mean that 120% members of a caste/class should be illiterates. In fact it will be seen that in this case even 25% divergence will stretch us to the E maximum saturation point of 100%. 11.21. In the Indian situation where vast majority of the people are illiterate, poor or backward, one has to be very careful in setting deviations from the norms as, in our conditions, norms themselves are very low. For example, Per Capita Consumer F Expenditure for 1977-78 at current prices was Rs 991 per annum. For the same period, the poverty line for urban areas was at Rs 900 per annum and for rural areas at Rs 780. It will be seen that this poverty line is quite close to the Per Capita Consumer Expenditure of an average Indian. Now following the dictum of Balaji case, if 50% deviation from this average Per Capita G Consumer Expenditure was to be accepted to identify ‘economically backward’ classes, their income level will have to be 50% below the Per Capita Consumer Expenditure i.e. less than Rs 495.5 per year. This figure is so much below the poverty line both in urban and rural areas that most of the people may die H of starvation before they qualify for such a distinction.

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11.22. In view of the above, ‘Indicators for Backwardness’ A were tested against various cut-off points. For doing so, about a dozen castes well-known for their social and educational backwardness were selected from amongst the castes covered by our survey in a particular State. These were treated as ‘Control’ and validation checks were carried out by testing them against B ‘Indicators’ at various cut-off points. For instance, one of the ‘Indicators’ for social backwardness is the rate of student drop- outs in the age group 5-15 years as compared to the State average. As a result of the above tests, it was seen that in educationally backward castes this rate is at least 25% above the State average. Further, it was also noticed that this deviation of 25% from the C State average in the case of most of the ‘Indicators’ gave satisfactory results. In view of this, wherever an ‘Indicator’ was based on deviation from the State average, it was fixed at 25%, because a deviation of 50% was seen to give wholly unsatisfactory results and, at times, to create anomalous situations.” D (emphasis supplied by us) (a). In Indra Sawhney (supra), the Court held that reservation is not a proportionate representation but adequate, thus:

807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. E 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 F 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 G 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% H

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A 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 B 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%. (b). The expression ‘socially backward’ holds the key to define backward as held in Indra Sawhney (supra): C “774. In our opinion too, the words “class of citizens — not adequately represented in the services under the State” would have been a vague and uncertain description. By adding the word “backward” and by the speeches of Dr Ambedkar and Shri K.M. Munshi, it was made clear that the “class of citizens … not D adequately represented in the services under the State” meant only those classes of citizens who were not so represented on account of their social backwardness.” (c). In Indra Sawhney (supra), the Court further laid down that reservation are not anti-meritarian. Following is the relevant discussion: E “832. In Balaji and other cases, it was assumed that reservations are necessarily anti-meritarian. For example, in Janki Prasad Parimoo, it was observed, “it is implicit in the idea of reservation that a less meritorious person be preferred to another who is more meritorious.” To the same effect is the opinion of Khanna, J in F Thomas, though it is a minority opinion. Even Subba Rao, J, who did not agree with this view, did recognize some force in it. In his dissenting opinion in Devadasan while holding that there is no conflict between Article 16(4) and Article 335, he did say, “it is inevitable in the nature of reservation that there will be a lowering G of standards to some extent,” but, he said, on that account, the provision cannot be said to be bad, inasmuch as in that case, the State had, as a matter of fact, prescribed minimum qualifications, and only those possessing such minimum qualifications were appointed. This view was, however, not accepted by Krishna Iyer, J in Thomas. He said: (SCC p. 366, para 132) H

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“[E]fficiency means, in terms of good government, not marks in examinations only, but responsible and responsive service to the people. A chaotic genius is a grave danger in public administration. The inputs of efficiency include a sense of belonging and of accountability which springs in the bosom of the bureaucracy (not pejoratively used) if its composition takes in also the weaker segments of ‘We, the people of India’. No other understanding can reconcile the claim of the radical present and the hangover of the unjust past.”

833. A similar view was expressed in Vasanth Kumar by Chinnappa Reddy, J. The learned Judge said (SCC p. 739, para 36) C

“[T]he mere securing of high marks at an examination may not necessarily mark out a good administrator. An efficient administrator, one takes it, must be one who possesses among other qualities the capacity to understand with sympathy and, therefore, to tackle bravely the problems of a large segment of population constituting the weaker sections of the people. And, who better than the ones belonging to those very sections? Why not ask ourselves why 35 years after Independence, the position of the Scheduled Castes, etc. has not greatly improved? Is it not a legitimate question to ask whether things might have been different, had the District Administrators and the State and Central Bureaucrats been drawn in larger numbers from these classes? Courts are not equipped to answer these questions, but the courts may not interfere with the honest endeavours of the Government to find answers and solutions. We do not mean to say that efficiency in the civil service is unnecessary or that it is a F myth. All that we mean to say is that one need not make a fastidious fetish of it.”

834. It is submitted by the learned counsel for petitioners that reservation necessarily means appointment of less meritorious persons, which in turn leads to lowering of efficiency of G administration. The submission, therefore, is that reservation should be confined to a small minority of appointments/posts, — in any event, to not more than 30%, the figure referred to in the speech of Dr Ambedkar in the Constituent Assembly. The mandate of Article 335, it is argued, implies that reservations should be so H

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A operated as not to affect the efficiency of administration. Even Article 16 and the directive of Article 46, it is said, should be read subject to the aforesaid mandate of Article 335.

835. The respondents, on the other hand, contend that the marks obtained at the examination/test/interview at the stage of entry into service is not an indicium of the inherent merit of a candidate. They rely upon the opinion of Douglas, J in DeFunis where the learned Judge illustrates the said aspect by giving the example of a candidate coming from disadvantaged sections of society and yet obtaining reasonably good scores — thus manifesting his “promise and potential” — vis-a-vis a candidate from a higher strata obtaining higher scores. (His opinion is referred to in para 716.) On account of the disadvantages suffered by them and the lack of opportunities, — the respondents say — members of backward classes of citizens may not score equally with the members of socially advanced classes at the inception but in course of time, they would. It would be fallacious to presume that nature has endowed intelligence only to the members of the forward classes. It is to be found everywhere. It only requires an opportunity to prove itself. The directive in Article 46 must be understood and implemented keeping in view these aspects, say the respondents.

E 836. We do not think it necessary to express ourselves at any length on the correctness or otherwise of the opposing points of view referred to above. (It is, however, necessary to point out that the mandate — if it can be called that — of Article 335 is to take the claims of members of SC/ST into consideration, consistent with the maintenance of efficiency of administration. It would be F a misreading of the article to say that the mandate is maintenance of efficiency of administration.) Maybe, efficiency, competence and merit are not synonymous concepts; maybe, it is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of the efficiency of an administrator. G Even so, the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an H

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opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with — and may, in some cases, excel — members of open competition. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and that what is required is an opportunity to prove it. It may not, therefore, be said that reservations are anti- meritarian. Merit there is even among the reserved candidates and the small difference, that may be allowed at the stage of initial recruitment is bound to disappear in course of time. These members too will compete with and improve their efficiency along with others. C

837. Having said this, we must append a note of clarification. In some cases arising under Article 15, this Court has upheld the removal of minimum qualifying marks, in the case of Scheduled Caste/Scheduled Tribe candidates, in the matter of admission to medical courses. For example, in State of M.P. v. Nivedita Jain D admission to medical course was regulated by an entrance test (called Pre-Medical Test). For general candidates, the minimum qualifying marks were 50% in the aggregate and 33% in each subject. For Scheduled Caste/Scheduled Tribe candidates, however, it was 40% and 30% respectively. On finding that Scheduled Caste/Scheduled Tribe candidates equal to the number E of the seats reserved for them did not qualify on the above standard, the Government did away with the said minimum standard altogether. The Government’s action was challenged in this Court but was upheld. Since it was a case under Article 15, Article 335 had no relevance and was not applied. But in the case of Article F 16, Article 335 would be relevant and any order on the lines of the order of the Government of Madhya Pradesh (in Nivedita Jain) would not be permissible, being inconsistent with the efficiency of administration. To wit, in the matter of appointment of Medical Officers, the Government or the Public Service Commission cannot say that there shall be no minimum qualifying marks for Scheduled G Caste/Scheduled Tribe candidates, while prescribing a minimum for others. It may be permissible for the Government to prescribe a reasonably lower standard for Scheduled Castes/Scheduled Tribes/Backward Classes — consistent with the requirements of efficiency of administration — it would not be permissible not to H

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A prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature of duties attached to the post and the interest of the general public should also be kept in mind.

838. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists D and Technicians in nuclear and space application, provision for reservation would not be advisable.” (emphasis supplied by us) This Court observed that some relaxation has to be granted consistent with the requirement of administration, to do social justice, it would not be permissible not to prescribe any minimum standard at all. This Court also observed that as to specialty in technical posts and research development, medical engineering, defence services, physics, and mathematics, provision for reservation would not be advisable. (d). In Indra Sawhney (supra), the Court held that reservation could be provided by executive order, thus: “735. Shri K.K. Venugopal learned counsel for the petitioner in writ petition No. 930 of 1990 submits that the “provision” contemplated by clause (4) of Article 16 can be made only by and should necessarily be made by the legislative wing of the State G and not by the executive or any other authority. He disputes the correctness of the holding in Balaji negativing an identical contention. He submits that since the provision made under Article 16(4) affects the fundamental rights of other citizens, such a provision can be made only by the Parliament/Legislature. He submits that if the power of making the “provision” is given to the H

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executive, it will give room for any amount of abuse. According A to the learned counsel, the political executive, owing to the degeneration of the electoral process, normally acts out of political and electoral compulsions, for which reason it may not act fairly and independently. If, on the other hand, the provision is to be made by the legislative wing of the State, it will not only provide an opportunity for debate and discussion in the legislature where several shades of opinion are represented but a balanced and unbiased decision free from the allurements of electoral gains is more likely to emerge from such a deliberating body. Shri Venugopal cites the example of Tamil Nadu where, according to him, before every general election a few communities are added to the list of backward classes, only with a view to winning them over to the ruling party. We are not concerned with the aspect of what is ideal or desirable but with what is the proper meaning to be ascribed to the expression ‘provision’ in Article 16(4) having regard to the context. The use of the expression ‘provision’ in clause (4) of Article 16 appears to us to be not without design. According to the definition of ‘State’ in Article 12, it includes not merely the Government and Parliament of India and Government and Legislature of each of the States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and other authorities referred to in Article 12. The expression ‘Local Authority’ is defined in Section 3(31) of the General Clauses Act. It takes in all municipalities, F Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive attention from the court. It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for G reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/ State Government? This aspect would become clearer if we notice the definition of “Law” in Article 13(3)(a). It reads: H

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A “13(3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; …”

736. The words “order”, “bye-law”, “rule” and “regulation” in this definition are significant. Reading the definition of “State” in Article 12 and of “law” in Article 13(3)(a), it becomes clear that a measure of the nature contemplated by Article 16(4) can be provided not only by the Parliament/Legislature but also by the executive in respect of Central/State services and by the local bodies and “other authorities” contemplated by Article 12, in respect of their respective services. Some of the local bodies and some of the statutory corporations like universities may have their own legislative wings. In such a situation, it would be unreasonable and inappropriate to insist that reservation in all these services should be provided by Parliament/Legislature. The situation and circumstances of each of these bodies may vary. The rule regarding reservation has to be framed to suit the particular situations. All this cannot reasonably be done by Parliament/ Legislature.

737. Even textually speaking, the contention cannot be accepted. E The very use of the word “provision” in Article 16(4) is significant. Whereas clauses (3) and (5) of Article 16 — and clauses (2) to (6) of Article 19 — use the word “law”, Article 16(4) uses the world “provision”. Regulation of service conditions by orders and rules made by the executive was a well-known feature at the time of the framing of the Constitution. Probably for this reason, a deliberate departure has been made in the case of clause (4). Accordingly, we hold, agreeing with Balaji, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the Union or of the State, as the case may be, as has been done in the present case.Balaji has been followed recently in Comptroller and Auditor-General of India v. Mohan Lal Mehrotra. With respect to the argument of abuse of power by the political executive, we may say that there is adequate safeguard against misuse by the political executive of the power under Article 16(4) in the provision itself. Any H determination of backwardness is not a subjective exercise nor a

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matter of subjective satisfaction. As held herein — as also by earlier judgments — the exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power. Question 1(b): Whether an executive order making a ‘provision’ under Article 16(4) is enforceable forthwith?

738. A question is raised whether an executive order made in terms of Article 16(4) is effective and enforceable by itself or whether it is necessary that the said “provision” is enacted into a law made by the appropriate legislature under Article 309 or is incorporated into and issued as a Rule by the President/Governor under the proviso to Article 309 for it to become enforceable? Mr D Ram Jethmalani submits that Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is not a source of power by itself. He submits that unless made into a law by the appropriate legislature or issued as a rule in terms of the proviso to Article 309, the “provision” so made by the executive does not become enforceable. At the same time, he submits that the E impugned Memorandums must be deemed to be and must be treated as Rules made and issued under the proviso to Article 309 of the Constitution. We find it difficult to agree with Shri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it must necessarily follow that such a F provision is effective the moment it is made. A Constitution Bench of this Court in B.S. Yadav, (Y.V. Chandrachud, CJ, speaking for the Bench) has observed: “Article 235 does not confer upon the High Court the power to make rules relating to conditions of service of judicial G officers attached to district courts and the courts subordinate thereto. Whenever it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has stated so in express terms. See for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3), 176(2), H

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A 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2).”

740. It would, therefore, follow that until a law is made or rules are issued under Article 309 with respect to reservation in favour of backward classes, it would always be open to B the Executive Government to provide for reservation of appointments/posts in favour of Backward Classes by an executive order. We cannot also agree with Shri Jethmalani that the impugned Memorandums should be treated as Rules made under the proviso to Article 309. There is nothing in them suggesting even distantly that they were issued under the proviso to Article

C 309. They were never intended to be so, nor is that the stand of the Union Government before us. They are executive orders issued under Article 73 of the Constitution read with clause (4) of Article

16. The mere omission of a recital “in the name and by order of the President of India” does not affect the validity or enforceability of the orders, as held by this Court repeatedly.” (emphasis supplied by us) (e). What is sought to be achieved by Articles 14 and 16 is equality and equality of opportunity. In Indra Sawhney (supra), this Court emphasised that founding fathers never envisaged reservation of all seats, and 50% shall be the rule. Some relaxation may become imperative, but extreme caution is to be exercised, and a special case is to be made for exceeding reservation more than 50%. This Court held: “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 F (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 G 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 H

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Assembly, set out in para 693). No other member of the Constituent A 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 far-flung 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 characteristically 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. D

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.” (emphasis supplied by us)

105Copy pinpoint105. It is apparent that despite more than 72 years of attaining independence, we are not able to provide benefits to the bottom line, i.e., down-trodden and oppressed classes. Benefits meant to such classes are not reaching them. The question is writ large how to trickle down the benefits. Panchayat, Gram Sabha has been empowered, but still, benefits are not reaching as envisaged. The right to information system has to be strengthened at the village level. They must know how the money meant for development has been utilised. Transparency of administration is vital for the removal of corruption. They are required to be motivated. They must know what is allocated to them and how it is spent. There is a need to improve the system, ensuring the implementation of beneficial measures. H

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106Copy pinpoint106. It was envisaged that social disparities, economic and backwardness should be wiped out within a period of 10 years, but gradually, amendments have been made, and there is no review of the lists nor the provisions of the reservation have come to an end. Instead, there is a demand to increase them and to provide reservations within the reservation. It is very hard for any elected government to have the political will to meet with the challenges arising out of the aforesaid scenario. By grant of privileges and amenities, it was felt that the aspirations of socially and economically backward classes would be met, and inequalities would diminish.

107Copy pinpoint107. Reservation provided to scheduled tribes and constitution of scheduled areas is for the reason as systems concerning way of life are different. They were in isolation, differed in various aspects from common civilisation such as the delivery of justice, as regards legal system, the culture, way of life differs from the ordinary people, their language and their primitive way of life makes them unfit to put up with the mainstream and to be governed by the ordinary laws. It was intended by the protective terms granted in the constitutional provisions that they will one day be the part of the mainstream and would not remain isolated for all time to come. The Scheduled Tribes Order, 1950 was promulgated to include groups and communities which were not part of social society, based on characteristic and culture, which developed by that time. The formal education, by and large, failed to reach them, and they remained a disadvantaged class, as such required a helping hand to uplift them and to make them contribute to the national development and not to remain part of the primitive culture. The purpose of the constitutional provisions is not to keep them in isolation but to make them part of the mainstream. F They are not supposed to be seen as a human zoo and source of enjoyment of primitive culture and for dance performances. The benefits of developments have not reached them, and they remain isolated in various parts of the country. The social and economic upliftment and education are necessary for tribals to make them equal.

108Copy pinpoint108. Question emanating in the case is how to balance the rights of scheduled castes and scheduled tribes. Whether providing 100% reservation in favour of any particular class is permissible?”

109Copy pinpoint109. The High Court referred to the Constituent Assembly Debates. What was stated by Dr. Ambedkar in an answer concerning backward community;

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“A backward community is a community which is backward in the opinion of the Government. My honourable friend Mr.T.T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally, I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats; I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the Court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.” C (emphasis supplied)

110Copy pinpoint110. In M.R. Balaji & Ors. v. State of Mysore & Ors., (1963) Supp 1 SCR 439, this Court held that total reservations in favour of disadvantaged sections of the society could not exceed 50% thus: D “16. It now remains to consider the report made by the Nagan Gowda Committee appointed by the State. This report proceeds on the basis that higher social status has generally been accorded on the basis of caste for centuries; and so, it takes the view that the low social position of any community is, therefore, mainly due to the caste system. According to the Report, there are ample reasons to conclude that social backwardness is based mainly on racial, tribal, caste and denominational differences, even though economic backwardness might have contributed to social backwardness. It would thus be clear that the Committee approached its problem of enumerating and classifying the socially and educationally backward communities on the basis that the social backwardness depends substantially on the caste to which the community belongs, though it recognised that economic condition may be a contributory factor. The classification made by the Committee and the enumeration of the backward communities which it adopted shows that the Committee virtually equated the classes with the castes. According to the Committee, the entire Lingayat community was socially forward, and that all sections of Vokkaligas, excluding Bhunts, were socially backward. With regard to the Muslims, the majority of the Committee agreed that the Muslim community as a whole should be classified as H

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A socially backward. The Committee further decided that amongst the backward communities two divisions should be made (i) the backward and (ii) the More Backward. In making this distinction, the Committee applied one test. It enquired: “Was the standard of education in the community in question less than 50% of the State average? If it was, the community should be regarded as more backward; if it was not, the community should be regarded as backward.” As to the extent of reservation in educational institutions, the Committee’s recommendation was that 28% should be reserved for backward and 22% for more backward. In other words, 50% should be reserved for the whole group of backward communities besides 15% and 3% which had already been reserved for the Scheduled Castes and Scheduled Tribes respectively. That is how according to the Committee, 68% was carved out by reservation for the betterment of the Backward Classes and the Scheduled Castes and Tribes. It is on the basis of these recommendations that the Government proceeded to make its impugned order.”

111Copy pinpoint111. In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, the Court observed that the rule evolved in Balaji (supra) that reservations cannot exceed 50% is merely a rule of caution.

112Copy pinpoint112. In M. Nagaraj and Ors. v. Union of India and Ors., (2006) 8 SCC 212, it was held that the ceiling limit of the reservation is 50% without which structure of equality of opportunity in Article 16 would collapse. This Court held: “122.We reiterate that the ceiling limit of 50%, the concept of F creamy layer and the compelling reasons, namely, backwardness, the inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.” (emphasis supplied by us)

113Copy pinpoint113. Reliance has also been placed on Union of India & Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC 50 on behalf of the respondents, which related to a reservation in Panchayats. Considering the provisions of Articles 243, 243D, 15(4), 16(4) and the Fifth Schedule of the Constitution and under Part IX to extend Panchayati Raj system to scheduled areas, it was held that post of Chairperson of Panchayat, H

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Scheduled Tribes in the scheduled areas cannot be put into a disadvantaged A position. Because of the peculiar conditions in those areas, it is permissible that chairpersons of scheduled areas should be exclusively from scheduled tribes only. It was also held that Article 243D envisages proportionate representation and is distinct and an independent constitutional basis of reservation in Panchayati Raj institutions. The reservation under Article B 243D cannot be compared with affirmative action measures under Articles 15(4) and 16(4), where a balance is to be maintained between affirmative action measures and merits. This Court pointedout though Articles 14, 15, and 16 provide for affirmative action measures; however, there is a need for periodical review keeping in view the changing social and economic conditions. C (a). The difference between Article 243D and Article 16(4) was pointed out in Rakesh Kumar (supra) thus: “42. Especially on the unviability of the analogy between Article 16(4) and Article 243-D, we are in agreement with a decision of the Bombay High Court, reported as Vinayakrao Gangaramji D Deshmukh v. P.C. Agrawal, AIR 1999 Bom 142. That case involved a fact situation where the Chairperson position in a panchayat was reserved in favour of a Scheduled Caste woman. In the course of upholding this reservation, it was held: (AIR p. 143, para 4) E “4. … Now, after the seventy-third and seventy-fourth constitutional amendments, the constitution of local bodies has been granted a constitutional protection and Article 243-D mandates that a seat be reserved for the Scheduled Castes and Scheduled Tribes in every Panchayat and sub-article (4) F of the said Article 243-D also directs that the offices of the Chairpersons in the panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may, by law, provide. Therefore, the reservation in the local bodies like the Village Panchayat is not governed by Article G 16(4), which speaks about the reservation in the public employment, but a separate constitutional power directs the reservation in such local bodies.”

43. For the sake of argument, even if an analogy between Article 243-D and Article 16(4) was viable, a close reading of Indra H

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A Sawhney, 1992 Supp (3) SCC 217, decision will reveal that even though an upper limit of 50% was prescribed for reservations in public employment, the said decision did recognise the need for exceptional treatment in some circumstances. This is evident from the following words (at paras 809-10): (SCC p. 735) B “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 far-flung 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.” (b). The departure from adequate and proportionate representation has been considered in Rakesh Kumar (supra) thus: “48. There is of course a rational basis for departing from the norms of “adequate representation” as well as “proportionate representation” in the present case. This was necessary because it was found that even in the areas where Scheduled Tribes are in a relative majority, they are under-represented in the governmental machinery and hence vulnerable to exploitation. Even in areas where persons belonging to Scheduled Tribes held public positions, it is a distinct possibility that the non-tribal population will come to dominate the affairs. The relatively weaker position of the Scheduled Tribes is also manifested through problems suchas land grabbing by non-tribals, displacement on account of private as well as governmental developmental activities, and the destruction of environmental resources. In order to tackle such social realities, the legislature thought it fit to depart from the norm of “proportional representation.” In this sense, it is not our job to second guess such policy choices.

56. In the context of reservations in panchayats, it can be reasoned that the limitation placed on the choices available to voters is an H

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incidental consequence of the reservation policy. In this case, the compelling State interest in safeguarding the interests of weaker sections by ensuring their representation in local self-government clearly outweighs the competing interest in not curtailing the choices available to voters. It must also be reiterated here that the 50% reservations in favour of STs as contemplated by the first proviso to Section 4(g) of the PESA Act were not struck down in the impugned judgment. Even though it was argued before this Court that this provision makes a departure from the norm of “proportionate representation” contemplated by Article 243-D(1), we have already explained how Article 243-M(4)(b) permits “exceptions” and “modifications” in the application of Part IX to C Scheduled Areas. Sections 17(B)(1), 36(B)(1) and 51(B)(1) of JPRA merely give effect to the exceptional treatment that is mandated by the PESA Act.” (c). This Court in Rakesh Kumar (supra) held that State of Jharkhand was also under an obligation to account for the interests of D the other backward classes as contemplated in the Panchayati Raj Act, thus : “57. However, in addition to the 50% reservations in favour of Scheduled Tribes, the State of Jharkhand is also under an obligation to account for the interests of Scheduled Castes and Other E Backward Classes. The same has been contemplated in Sections 17(B)(2), 36(B)(2) and 51(B)(2) of JPRA which incorporate the standard of “proportionate representation” for Scheduled Castes and Backward Classes in such a manner that the total reservations do not exceed 80%. This does not mean that reservations will reach the 80% ceiling in all the Scheduled Areas. Since the allocation of seats in favour of Scheduled Castes and Backward Classes has to follow the principle of proportionality, the extent of total reservations is likely to vary across the different territorial constituencies identified for the purpose of elections to the panchayats. Depending on the demographic profile of a particular constituency, it is possible that the total reservations could well fall short of the 80% upper ceiling. However, in Scheduled Areas where the extent of the population belonging to the Scheduled Castes and Backward Classes exceeds 30% of the total population, the upper ceiling of 80% will become operative. H

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A 58. Irrespective of such permutations, the legislative intent behind the impugned provisions of JPRA is primarily that of safeguarding the interests of persons belonging to the Scheduled Tribes category. In the light of the preceding discussion, it is our considered view that total reservations exceeding 50% of the seats in panchayats located in Scheduled Areas are permissible on account of the B exceptional treatment mandated under Article 243-M(4)(b). Therefore, we agree with the appellants and overturn the ruling of the High Court of Jharkhand on this limited point.” (emphasis supplied by us) C (d). The decision has been rendered in the context of reservation in Panchayat for which special provisions have been made in Article 243-M(4)(b), and this Court held that the provisions of Article 243D are distinguishable from the provisions contained in Article 16(4). It has also been emphasised that the State cannot ignore the other backward and scheduled caste classes. D

114Copy pinpoint114. In K. Krishna Murthy (Dr.) &Ors. v. Union of India &Anr., (2010) 7 SCC 202, this Court observed thus: “53. In this respect, we are in partial agreement with one of the submissions made by Shri M. Rama Jois that the nature of disadvantages that restrict access to education and employment cannot be readily equated with disadvantages in the realm of political representation. To be sure, backwardness in the social and economic sense does not necessarily imply political backwardness. However, the petitioner’s emphasis on the distinction between “selection” (in case of education and employment) and “election” (in case of political representation) does not adequately reflect the complexities involved. It is, of course, undeniable that in determining who can get access to education and employment, due regard must be given to considerations of merit and efficiency which can be measured in an objective manner. Hence, admissions to educational institutions and the recruitment to government jobs is ordinarily done through methods such as examinations, interviews or assessment of past performance. Since it is felt that the applicants belonging to the SC/ST/OBC categories among others are at a disadvantage when they compete through these methods, a level playing field is sought to be created by way of conferring reservation benefits.

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54. In the domain of political participation, there can be no objective parameters to determine who is more likely to get elected to representative institutions at any level. The choices of voters are not guided by an objective assessment of a candidate’s merit and efficiency. Instead, they are shaped by subjective factors such as the candidate’s ability to canvass support, past service record, professed ideology and affiliations to organised groups among others. In this context, it is quite possible that candidates belonging to the SC/ST/OBC categories could demonstrate these subjective qualities and win elections against candidates from the relatively better-off groups. However, such a scenario cannot be presumed in all circumstances. It is quite conceivable that in some localised settings, backwardness in the social and economic sense can also act as a barrier to effective political participation and representation. When it comes to creating a level playing field for the purpose of elections to local bodies, backwardness in the social and economic sense can indeed be one of the criteria for conferring reservation benefits.

63. As noted earlier, social and economic backwardness does not necessarily coincide with political backwardness. In this respect, the State Governments are well advised to reconfigure their reservation policies, wherein the beneficiaries under Articles 243- D(6) and 243-T(6) need not necessarily be coterminous with the E Socially and Educationally Backward Classes (SEBCs) [for the purpose of Article 15(4)] or even the backward classes that are underrepresented in government jobs [for the purpose of Article 16(4)]. It would be safe to say that not all of the groups which have been given reservation benefits in the domain of education F and employment need reservations in the sphere of local self- government. This is because the barriers to political participation are not of the same character as barriers that limit access to education and employment. This calls for some fresh thinking and policy-making with regard to reservations in local self-government. G

64. In the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self-government, the rule of thumb is that of proportionate reservation. However, we must lay stress on the fact that the upper ceiling of 50% (quantitative limitation) with respect to vertical H

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A reservations in favour of SCs/STs/OBCs should not be breached. On the question of breaching this upper ceiling, the arguments made by the petitioners were a little misconceived since they had accounted for vertical reservations in favour of SCs/STs/ OBCs as well as horizontal reservations in favour of women to assert that the 50% ceiling had been breached in some of the States. This was clearly a misunderstanding of the position since the horizontal reservations in favour of women are meant to intersect with the vertical reservations in favour of SCs/ STs/OBCs, since one-third of the seats reserved for the latter categories are to be reserved for women belonging to the same. This means that seats earmarked for women belonging to the general category are not accounted for if one has to gauge whether the upper ceiling of 50% has been breached.

65. Shri Rajeev Dhavan has contended that since the context of local self-government is different from education and employment, the 50% ceiling for vertical reservations which was prescribed in Indra Sawhney, 1992 Supp (3) SCC 217, cannot be blindly imported since that case dealt with reservations in government jobs. It was further contended that the same decision had recognised the need for exceptional treatment in some circumstances, which is evident from the following words: (SCC p. 735, paras 809-10) “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%.

F 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 far-flung 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 G 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.”

66. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political H

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representation. For instance, the Legislative Assemblies of the A States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and Sikkim have reservations that are far in excess of the 50% limit. However, such a position is the outcome of exceptional considerations in relation to these areas. Similarly, vertical reservations in excess of 50% are permissible in the composition B of local self-government institutions located in the Fifth Schedule Areas.

67. In the recent decision reported as Union of India v. Rakesh Kumar, (2010) 4 SCC 50, this Court has explained why it may be necessary to provide reservations in favour of the Scheduled Tribes that exceed 50% of the seats in panchayats located in the C Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SCs/STs/OBCs cannot exceed D the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favour of OBCs.”

115Copy pinpoint115. The decision of Bombay High Court in Vinayakrao E Gangaramji Deshmukh v. P C Agrawal, AIR 1999 Bom. 142 regarding the distinction between Articles 243D and 16(4) was affirmed. This Court observed that some decisions in past examined validity of reservations in local self-Government applying principles evolved about employment and education. It was also observed that for scheduled castes, scheduled tribes and other backward classes categories, the level playing field is sought to be created by conferring reservation benefits. In K. Krishna Murthy (supra), this Court also emphasised that socio-economic backwardness does not necessarily coincide with political backwardness, which need not necessarily be envisaged under Articles 15(4) and 16(4). Barriers to political participation are not of the same character as barriers that limit access to education and employment. Concerning vertical reservations, it was said that they have to be made in the upper ceiling of 50%. The 100% reservation would amount to unreasonable and unfair and cannot be termed except as unfair and unreasonable. Thus, we are H

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A of the considered opinion that providing 100% reservation to the scheduled castes and scheduled tribes were not permissible. The Governor in the exercise of the power conferred by para 5(1) of the Fifth Schedule of the Constitution, cannot provide a 100% reservation.

116Copy pinpoint116. In R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, it B was laid down that reservation should not exceed 50 percent; however, a little relaxation is permissible with great care. Reservation is an exception to the general rule. The quantum of reservation should not be excessive and societally injurious.

117Copy pinpoint117. In AIIMS Students Union v. A.I.I.M.S., JT 2001 (7) SC 12, C the Court observed: “Reservation, as an exception, maybe justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped – the reservation geared up to getting over the handicap. The rationale of reservation D in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there, the quantum of reservation should not be excessive of societally injurious. The higher the level of the specially the lesser the role of reservation.”

118Copy pinpoint118. Reliance has been placed on Lingappa Pochanna Appelwar E & Ors. v. State of Maharashtra & Ors. (1985) 1 SCC 479 in which the Court held that it is a Constitutional duty on the State to take positive and stem measures to ensure dignity and right to life of Scheduled Tribes. There is no quarrel with the proposition mentioned above; however, Constitutional duty has to be discharged from a Constitutional perspective and not in violation thereof. F

119Copy pinpoint119. It was argued on behalf of the respondents that the scope of judicial review is very limited in such cases. The court may observe due deference to the opinion of State if the material exists to support the opinion that is formed. The decision in Indra Sawhney (supra) has been relied upon, in which this Court considered the question and held: G “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 of whether a backward class of citizens is not adequately represented in the services under the State is a H matter within the subjective satisfaction of the State. This is evident

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from the fact that the said requirement is preceded by the words A “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. B 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 Board37 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.” (emphasis supplied by us)

120Copy pinpoint120. In Indra Sawhney (supra), it was observed that each situation could not be visualised and must be left to appropriate authorities. There can be various tests for identifying backward classes. The Court can lay down only general guidelines. If the approach adopted by the State is fair and adequate, then the Court has no say in the matter. The Court held: F “780. Now, we may turn to the identification of a “backward class of citizens.” How do you go about it? Where do you begin? Is the method to vary from State to State, region to region, and from rural to urban? What do you do in the case of religions where caste-system is not prevailing? What about other classes, groups, and communities which do not wear the label of caste? Are the G people living adjacent to cease-fire line (in Jammu and Kashmir) or hilly or inaccessible regions to be surveyed and identified as backward classes for the purpose of Article 16(4)? And so on and so forth are the many questions asked of us. We shall answer them. But our answers will necessarily deal with generalities of H

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A the situation and not with problems or issues of a peripheral nature which are peculiar to a particular State, district or region. Each and every situation cannot be visualised and answered. That must be left to the appropriate authorities appointed to identify. We can lay down only general guidelines.

B 783. We do not mean to suggest — we may reiterate — that the procedure indicated hereinabove is the only procedure or method/ approach to be adopted. Indeed, there is no such thing as a standard or model procedure/approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the court has no say in the matter. The only object of the discussion in the preceding para is to emphasise that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward. *** *** ***

854. (b) Strictly speaking, appointment of a Commission under Article 340 is not necessary to identify the other backward classes. F Article 340 does not say so. According to it, the Commission is to be constituted ‘to investigate the conditions of socially and educationally backward classes … and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties ….” The Government could have, even without appointing a Commission, specified the OBCs, on the basis of such material as it may have had before it (e.g., the lists prepared by various State Governments) and then appointed the Commission to investigate their conditions and to make appropriate recommendations. It is true that Mandal Commission was constituted “to determine the criteria for defining the socially and

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educationally backward classes” and the Commission did determine the same. Even so, it is necessary to keep the above constitutional position in mind, — more particularly in view of the veto given to State lists over the Mandal lists as explained in the preceding sub-para. The criteria evolved by Mandal Commission for defining/identifying the Other Backward Classes cannot be said to be irrelevant. Maybe there are certain errors in actual exercise of identification, in the nature of over-inclusion or under- inclusion, as the case may be. But in an exercise of such magnitude and complexity, such errors are not uncommon. These errors cannot be made a basis for rejecting either the relevance of the criteria evolved by the Commission or the entire exercise of identification. It is one thing to say that these errors must be rectified by the Government of India by evolving an appropriate mechanism and an altogether different thing to say that on that account, the entire exercise becomes futile. There can never be a perfect report. In human affairs, such as this, perfection is only an ideal D — not an attainable goal. More than forty years have passed by. So far, no reservations could be made in favour of OBCs for one or the other reason in Central services though in many States, such reservations are in force. Reservations in favour of OBCs are in force in the States of Kerala, Tamil Nadu, Karnataka, Andhra Pradesh, Maharashtra, Orissa, Bihar, Gujarat, Goa, Uttar Pradesh, E Punjab, Haryana and Himachal Pradesh among others. In Madhya Pradesh, a list of OBCs was prepared on the basis of the Mahajan Commission Report but it appears to have been stayed by the High Court.” (emphasis supplied by us) F It was also observed that strictly speaking, the appointment of a Commission is not necessary to identify the other backward classes.

121Copy pinpoint121. Reliance has also been placed on Barium Chemicals v. Company Law Board AIR 1967 SC 295 to argue that the scope of judicial review is limited. It is not for the court to find sufficiency. It is G not open to the court to adjudge the accuracy of the material to conclude.

122Copy pinpoint122. Dr. Rajeev Dhawan, learned Senior Counsel has relied upon Treatise on Constitutional Law (Fifth Edition) by Ronald D. Rotunda, in which it has been observed that law should be tested on traditional rational H

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A standards and Court need not review seriously suspect classification. Following observations have been made: “The Court, in an opinion by Justice White, found that the retirement classification should be tested by general equal protection principles, but that it did not violate the equal protection guarantee. B Although the parties agreed that the law should be tested under the traditional rational basis standard, Justice White’s opinion stressed that the federal judiciary is not to review seriously those classifications that do not involve fundamental rights or suspect classifications: C The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or D persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Applying the traditional rational standard, the position is worsened to support the impugned G.O. E

123Copy pinpoint123. Reliance has also been placed on Jarnail Singh &Ors. v. Lachhmi Narain Gupta &Ors.,2018 (10) SCC 396, in which it was observed: “23. This brings us to whether the judgment in M. Nagaraj v. Union of India, (2006) 8 SCC 212needs to be revisited on the other grounds that have been argued before us. Insofar as the State having to show quantifiable data as far as backwardness of the class is concerned, we are afraid that we must reject Shri Shanti Bhushan’s argument. The reference to “class” is to the Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that Nagaraj, (2006) 8 SCC 212, has, in unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes. We are afraid that this portion of the judgment is directly contrary to the nine-Judge Bench in Indra Sawhney (1), 1922 Supp (3) H

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SCC 217. Jeevan Reddy, J., speaking for himself and three other A learned Judges, had clearly held: “[t]he test or requirement of social and educational backwardness cannot be applied to the Scheduled Castes and the Scheduled Tribes, who indubitably fall within the expression “backward class of citizens”.” (See SCC p. 727, paras 796 to B 797.) Equally, Dr Justice Thommen, in his conclusion at para 323(4), had held as follows: (SCC pp. 461-62) “323. Summary C * * * (4) Only such classes of citizens who are socially and educationally backward are qualified to be identified as Backward Classes. To be accepted as Backward Classes for the purpose of reservation under Article 15 or Article 16, their backwardness must have been either recognised by means of a notification by the President under Article 341 or Article 342 declaring them to be Scheduled Castes or Scheduled Tribes, or, on an objective consideration, identified by the State to be socially and educationally so backward by reason of identified prior discrimination and its continuing ill effects as to be comparable to the Scheduled Castes or the Scheduled Tribes. In the case of the Scheduled Castes or the Scheduled Tribes, these conditions are, in view of the notifications, presumed to be satisfied.”

124Copy pinpoint124. In Jarnail Singh (supra), this Court considered the decision of M. Nagaraj (supra), which dealt with the promotional aspect. In that context, the aforesaid observations were made by this Court. In the instant case, the question involved is different. This case does not pertain to quantifying data for promotional avenues. The question to quantify data showing the backwardness of scheduled castes or scheduled tribes is not germane. The decision has no application. The question involved in the instant case is whether reservation for scheduled tribes is permissible, but to what extent. The decision in Jarnail Singh (supra) concerning quantifying data for reservation and promotion does not apply to provisions of Para 5 of Schedule V of the Constitution of India. H

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125Copy pinpoint125. Dr. Rajeev Dhawan, learned Senior Counsel, has made available the Annual Report of the Governor on the Administration of Scheduled Areas in Andhra Pradesh for the year 1999-2000, in which question of the amendment and bringing a fresh notification in place of G.O. 275, Social Welfare (E) Dept. dated 5.11.1986 for reservation of all teacher vacancies in the educational institutions within the Scheduled B Areas in favour of local Scheduled Tribes, was considered. It was resolved that as against the vacant posts reserved for the local tribals in the Scheduled Areas, if the local tribals are not available, it may be filled by non-local tribals. The relevant agenda item no.3 and resolution thereupon, which form part of the report sent to the President, is reproduced C hereunder: “Agenda Item: 3 The amendment and bringing a fresh notification in place of G.O.275, Social Welfare (E) Dept. dt. 5.11.1986 for reservation of all teacher vacancies in the Educational Institutions within the D Scheduled Areas in favour of Local Scheduled Tribes. The Commissioner of Tribal Welfare explain the above item in detail: Resolution: E It is decided that the vacant posts reserved for local tribals in scheduled areas. If the local tribals are not available, the posts may be filled by non-local tribals.” Thus, it is apparent that the Andhra Pradesh Tribes Advisory Council took the decision described above. It is pertinent to mention that F the G.O.275 dated 5.11.1986 was struck down by the High Court/Tribunal. The civil appeal filed in this Court was withdrawn. It is also apparent that there were vacant posts reserved for the local tribals in the Scheduled Areas, as they could not be filled; thus, it was decided to fill the posts by local-non tribals. G The reservation of 100 per cent posts was irrational and arbitrary and violative of Article 14 of the Constitution of India. On the one hand, local tribals were not available, and the posts were vacant, thereby a decision was taken to fill those posts by non-local tribals, and on the other hand, a decision was taken to fill these posts by incumbents who were residing in the area since 26.1.1950. The minutes of the Andhra H

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Pradesh Tribes Advisory Council formed part of the report of the A Governor, which was sent to the President under Para Three of the Fifth Schedule.

126Copy pinpoint126. The Governor, as per Para 3 of Schedule V of Constitution, has to submit a report to the President regarding the administration of scheduled areas annually or whenever so required by the President. B The report is required to keep track of the progress in the areas. The report is essential for deciding to make reservations and for its review. However, 100 percent reservation could not have been provided even by amending Act of 1997, at the cost of the scheduled castes, backward classes, open category and the scheduled tribes who might have settled in the areas after 26th January 1950, as reservation had been provided only to the tribal families residing in the district on or before 26th January

1950. Thus, the action is discriminatory vis-à-vis not only concerning open category but also to the disadvantageous sections of the society, totally vanishing the hopes of the incumbents of other classes. The decision to issue G.O. Ms No.3/2000 was taken not on verifiable data, but it was taken on the basis that there was chronic absenteeism of non- tribal teachers in the schools in scheduled areas.

127Copy pinpoint127. By providing 100 percent reservation to the scheduled tribes has deprived the scheduled castes and other backward classes also of their due representation. The concept of reservation is not proportionate but adequate, as held in Indra Sawhney (supra). The action is thus unreasonable and arbitrary and violative of provisions of Articles 14, 15 and 16 of the Constitution of India. It also impinges upon the right of open category and scheduled tribes who have settled in the area after 26th January 1950. The total percentage of reservation provided for Scheduled Tribes in the State is 6%. By providing 100 percent reservation in the scheduled areas, the rights of the tribals, who are not residents of the scheduled areas, shall also be adversely affected. As per Presidential order under Article 371-D, they cannot stake their claim in other areas. The posts in other areas are to be reduced by making a 100% reservation in a particular area. G

128Copy pinpoint128. The population in the scheduled areas not only includes scheduled tribes but also open category, scheduled castes, and other scheduled tribes settled after 26.1.1950, and they are not covered in the notification. In Khammam district, as noted by the High Court, out of 31 mandals notified as scheduled areas, the population of the scheduled H

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A tribes is less than 50 percent, except in 9 mandals. In those 9 mandals, where there is more than 50%, the population of the scheduled tribes’ ranges between 53 percent to 77 percent. The percentage of the scheduled tribes’ students is around 25 percent, and the remaining students belong to other classes. Similarly, in West Godavari district, the population of scheduled tribes as per the 1991 census was 39.31 percent, whereas the population of non-tribals was 60.69 percent.

129Copy pinpoint129. Concerning Kothagudem, the High Court noted that many collieries and industries are belonging to public and private sector undertakings and a large number of the influx of the people from scheduled castes, scheduled tribes and backward classes had taken place to obtain employment.

130Copy pinpoint130. No law mandates that only tribal teachers can teach in the scheduled areas; thus, the action defies the logic. Another reason given is the phenomenal absenteeism of teachers in schools. That could not have been a ground for providing 100 percent reservation to the tribal teachers in the areas. It is not the case that incumbents of other categories are not available in the areas. When a district is a unit for the employment, the ground applied for providing reservation for phenomenal absenteeism is irrelevant and could not have formed the basis for providing 100 percent reservation. The problem of absenteeism could have been taken care of by providing better facilities and other incentives.

131Copy pinpoint131. The reason assigned that reservation was to cover impetus in the scheduled areas in the field of education and to strengthen educational infrastructure is also equally bereft of substance. By depriving opportunity to the others, it cannot be said that any impetus could have been given to the cause of students and effective education, and now that could have been strengthened. The provisions of 100 percent reservation are ignoring the merit. Thus, it would weaken the educational infrastructure and the merit and the standard of education imparted in the schools. Educational development of students cannot be made only by a particular class of teachers appointed by providing reservation, ignoring merit in toto. The ideal approach would be that teachers are selected based on merit.

132Copy pinpoint132. Depriving the opportunity of employment to other categories cannot be said to be a method of achieving social equilibrium. Apart from that, roster points are maintained for appointment by providing 100 H

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percent reservation, there would be a violation of the said provision also, A and it would become unworkable and the action has an effect of taking away the rights available to the tribals settled in the other non-scheduled areas. By providing 100 per cent reservation in the scheduled areas, their right to enjoy reservation to the extent it is available to them had also been taken away by uncalled for distribution of reservation. B

133Copy pinpoint133. There were no such extraordinary circumstances to provide a 100 percent 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. C

134Copy pinpoint134. A reservation that is permissible by protective mode, by making it 100 percent 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 D 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 percent of employment in the district cadre in terms of clause 10 of Article 370(1) E (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. F

135Copy pinpoint135. We find that G.O. Ms. No.3/2000 is wholly impermissible and cannot be said to be legally permissible and constitutionally valid. It can be said that action is not only irrational, but it violates the rights guaranteed under Part III of the Constitution and is not sustainable. In Re: Question No.3: Whether the notification merely G contemplates a classification under Article 16(1) and not reservation under Article 16(4)?

136Copy pinpoint136. Question No.3 is whether notification No.3/2000 contains classification under Article 16(1) and does not provide reservation under Article 16(4) of the Constitution. H

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137Copy pinpoint137. Article 16(1) permit classification being a facet of Article 14. Clause 4 of Article 16 is an instance of classification arising out of Clause 1 of Article 16 of the Constitution. Articles 14, 16 (1) and 16(4) are all facets of equality.In Indra Sawhney (supra), it was held that Article 16(4) is not an exception to Article 16(1) but a part of equality. This Court observed that in certain situations to treat unequal persons equally, B provide them equality: “741. In M.R. Balaji v. State of Mysore, 1963 Supp 1 SCR 439, it was held — “there is no doubt that Article 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2)”. It was observed that Article 15(4) was inserted by the First Amendment C in the light of the decision in State of Madras v. SmtChampakamDorairajan, 1951 SCR 525, with a view to remove the defect pointed out by this court namely, the absence of a provision in Article 15 corresponding to clause (4) of Article

16. Following Balaji it was held by another Constitution Bench D (by majority) in T. Devadasan v. Union of India, (1964) 4 SCR 680 — “further this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to clause (1)”. Subba Rao, J, however, opined in his dissenting opinion that Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of stating the principle inherent in the main provision E itself. Be that as it may, since the decision in Devadasan, it was assumed by this Court that Article 16(4) is an exception to Article 16(1). This view, however, received a severe setback from the majority decision in State of Kerala v. N.M. Thomas (1976) 2 SCC 310. Though the minority (H.R. Khanna and A.C. Gupta, F JJ) stuck to the view that Article 16(4) is an exception, the majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article 16(4) is not an exception to Article 16(1) but that it was merely an emphatic way of stating a principle implicit in Article 16(1). (Beg, J took a slightly different view which it is not necessary to mention here.) The said four learned Judges — whose views have been G referred to in para 713 — held that Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification H

CHEBROLU LEELA PRASAD RAO & ORS. v. 145 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1). The speech of Dr Ambedkar during the debate on draft Article 10(3) C [corresponding to Article 16(4)] in the Constituent Assembly — referred to in para 693 — shows that a substantial number of members of the Constituent Assembly insisted upon a “provision (being) made for the entry of certain communities which have so far been outside the administration”, and that draft clause (3) was put in in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with clause (1). Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/ posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.

742. Regarding the view expressed in Balaji (supra) and Devadasan (supra), it must be remembered that at that time it was not yet recognised by this Court that Article 16(1) being a facet of Article 14 does implicitly permit classification. Once this feature was recognised the theory of clause (4) being an exception to clause (1) became untenable. It had to be accepted that clause (4) is an instance of classification inherent in clause (1). Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article 14, clause (2) of Article 16 is also an elaboration of a facet of clause (1). If clause (4) is an exception to clause (1) G then it is equally an exception to clause (2). Question then arises, in what respect if clause (4) an exception to clause (2), if ‘class’ does not means ‘caste’. Neither clause (1) nor clause (2) speak of class. Does the contention mean that clause (1) does not permit H

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A classification and therefore clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no merit.” (emphasis supplied by us)

138Copy pinpoint138. In Indra Sawhney (supra), the Court held that Article 16(4) B aims at group backwardness, thus: “792. In our opinion, it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class — a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line — how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become — say a factory owner himself. In G such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may

CHEBROLU LEELA PRASAD RAO & ORS. v. 147 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the respondents that ‘one swallow doesn’t make the summer’, and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that clause (4) of Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).” G (emphasis supplied by us) (a). Concerning the interpretation of provisions in Articles 15(4) and 16(4), in Indra Sawhney (supra), this Court held that:

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A “787. It is true that no decision earlier to it specifically said so, yet such an impression gained currency and it is that impression which finds expression in the above observation. In our respectful opinion, however, the said assumption has no basis. Clause (4) of Article 16 does not contain the qualifying words “socially and educationally” as does clause (4) of Article 15. It may be remembered that Article 340 (which has remained unamended) does employ the expression ‘socially and educationally backward classes’ and yet that expression does not find place in Article 16(4). The reason is obvious: “backward class of citizens” in Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify for Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the purposes of Article 16(4). It is equally relevant to notice that Article 340 does not expressly refer to services or to reservations in services under the State, though it may be that the Commission appointed thereunder may recommend reservation in appointments/posts in the services of the State as one of the steps for removing the difficulties under which SEBCs are labouring and for improving their conditions. Thus, SEBCs referred to in Article 340 is only of the categories for whom Article 16(4) was enacted: Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward class of citizens’ in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of reservation in appointments/posts in the State services — which may mean, at any level whatsoever — insisting upon educational backwardness may not be quite appropriate.” (emphasis supplied by us) G (b). Article 16(4) applies to much larger classes than is contemplated by Article 340. Thus, it would not be correct to say that the backward class of citizens under Article 16(4) is the same as provided as socially and backward classes in Article 15(4). What is backward community, has been considered in Indra Sawhney (supra) thus: H

CHEBROLU LEELA PRASAD RAO & ORS. v. 149 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

“693. Ultimately Dr. B.R. Ambedkar, the Chairman of the Drafting A Committee, got up to clarify the matter. His speech, which put an end to all discussion and led to adopting of draft Article 10(3), is worth quoting in extenso, since it throws light on several questions relevant herein: “ … [T]here 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; …. 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 H

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A 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 service to the fullest extent, what would really happen is, we B 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% C of the total posts under the State and only 30% are retained as the unreserved. Could anybody say that the reservation of 30% 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 be 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 …. G Somebody asked me: ‘What is a backward community’? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.” (C.A.D., Vol. 7, H p. 701)” (emphasis supplied by us)

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(c). In Indra Sawhney (supra), the Court held that once the A reservation has been provided to other backward classes, scheduled castes and scheduled tribes within the purview of Article 16(4), any further exemption, concession or preference to such class of persons can be extended only under clause (4) of Article 16. Article 16(4) is exhaustive of the special provisions that can be made in favour of a B backward class of citizens, that is, other backward classes, scheduled castes, and scheduled tribes. Under Article 16(1), if the State wants to make any reservation on whatever point, to address a specific situation, Article 16(4) acts as a damper as there would be whittling down of the vacancies for free competition, and that is not a reasonable thing to do. In Indra Sawhney (supra), the Court held: C “743. x x x In our opinion, therefore, where the State finds it necessary — for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. In other words, all supplemental and D ancillary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. E This can be done under clause (4) itself. In this sense, clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of “the backward class of citizens”. Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of clause (4) of Article 16.” (emphasis supplied by us)

744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be, H

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A exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, — and not for all and sundry reasons — that any further reservations, of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be a correspondingly whittled down and that is not a reasonable thing to do. xxx

859. We may summarise our answers to the various questions dealt with and answered hereinabove: E (1) x x x (2) (a) Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of the classification inherent in clause (1). (Paras 741-742)

F (b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. (Para 743) (c) Reservations can also be provided under clause (1) of Article

16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under clause G (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for ‘backward class of citizens’ — as explained in this Judgment. (Para 745)

860. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 681. Our answers question-wise are:

CHEBROLU LEELA PRASAD RAO & ORS. v. 153 STATE OF A.P. & ORS. [ARUN MISHRA, J.]

(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be provided under clause (1) of Article 16. B (2) The expression ‘backward class’ in Article 16(4) takes in ‘Other Backward Classes’, SCs, STs and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are intertwined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to in Article 46 do include SEBCs referred to in Article 340 and covered by Article 16(4). xxx (7) No special standard of judicial scrutiny can be predicated in matters arising under Article 16(4). It is not possible or necessary to say more than this under this question.” E

139Copy pinpoint139. In the instant case, it is not in dispute that the district is a local area and a unit for the appointment of teachers and reservation is provided at the district level and as per the Presidential Order under Article 371D of the Constitution, incumbent of one district cannot stake claim outside the district for an appointment. The reservations for F scheduled tribes are covered within the ken of Article 16(4). Thus, no further preference or classification could have been made under Article 16(1) of the Constitution of India in favour of scheduled tribes as Article 16(4) is exhaustive of the special provisions that can be made in favour of scheduled castes, scheduled tribes, and other backward classes. G Reservation for the other classes can be provided under Article 16(1) and not to scheduled tribes to whom the reservation has been provided under Article 16(4). Thus, as argued on behalf of respondents, it cannot be said to be a case of classification made under Article 16(1) of the Constitution of India. It is a case of tinkering with the percentage of reservation permissible as per the dictum of Indra Sawhney (supra). H