E. V. CHINN AI AH v. STATE OF ANDHRA PRADESH AND ORS.

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the benefit of Clause (4) of Article 15 or Article 16 must consist of a I L"'

homogeneous group - the element of homogeneity being the backwardness characterizin~ the class. The link or the thread holding the class together, thus, should be the backwardness of its members which can never be supplemented by castes. Classification, thus, may be justified on the ground that it is a backward class but the same may not stand the scrutiny or the equality clause when classification is made on the basis of a backward caste or a section of a backward caste.

Furthermore, Article 16(4) must be read with Article 335 of the Constitution which emphasizes the fact that efficiency of administration cannot be sacrificed which would lead to the conclusion that the same cannot be done to favour less weak sections, i.e., some castes out of the homogeneous class of Scheduled Castes.

The decision of this Court in State of J and K v. Triloki Nath Khosa and Ors. [1974] 1 SCC 19 to which a detailed reference has been made in the accompanying judgment of Brother Hegde', J. we may notice that the ration thereof has distinctly been noticed and factually differentiated in Food Corporation of India and Ors. v. Om Prakash Sharma and Ors., [1998] 7 SCC 676, K.R. Lakshman and Ors. v. Karnataka Electricity Board and Ors., [2001] 1 SCC 442; Ku/deep Kumar Gupta and Ors. v. H.P. State Electricity Board and Ors., [2001] 1 SCC 457. E In Om Prakash Sharma (supra), this Court noticed that the Constitution Bench in Triloki Nath Khosa (supra) while deciding the case took care to add that one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. F In Ku/deep Kumar Gupta (supra), Pattanaik, J. (as the learned Chief Justice then was ) in no uncertain terms observed that in Triloki Nath Khosa (supra) a word o{ caution has been indicated that the right to classify is hedged in with salient restraints stating:

"5 ... Classification must be truly founded on substantial differences G which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just . and rational relation to the object sought to be achieved and judicial scrutiny extends only to the consideration whether the classification rests on a reasonable basis and whether it bean, a nexus w_i!b- the object in H

E. V. CHINNAl AH v. ST ATE OF ANDHRA PRADESH [SANTO SH HEGDE, J.] } Q15

view. It cannot extend to embarking upon a nice or mathematical evaluation on the basis of classification."

In K.R. Lakshman (supra), Pattanaik, J. again observed:

"5 ... It is no doubt true that in Tri/oki Nath Chandrachud, J. had observed that the classification should not be carried too far lest it may subvert, perhaps submerge the precious guarantee of equality ... "

In Vijay Lakshmi (supra), M.B. Shah, J. while holding that reservation for women is permissible in terms of Clause (3) of Article 15 of the Constitution stated:

"8(a). For the policy decision of classification we would straightaway c refer to the decision rendered by this court in State of Jammu and Kashmir v. Shri Tri/oki Nath Khosa, [1974] 1 SCC 19, wherein the Court [Chandrachud, J. (as he then was] succinctly held thus:- " ........ The challenge, at best, reflects the respondent's opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories tom;hing the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the Legislature or for the statutory authority charged with the duty of framing ti1e terms and conditions of service; and if looked at from the standpoint of the authority making it, the classification is found to rest on F a reasonable basis, it has to be upheld." (p ... 30)

It was also observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and it was for the respondents to establish that classification was unreasonable and bears no rational nexus with its purported object. Further, dealing with the right to G equality, the Court (in paras 29 & 30 ) held thus:-

29 .......... But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are H

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. \ )....... A entitled to an equal treatment.

30. Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class." {p.33) B Applying the aforementioned principles, the Court is require to interpret the provisions of the impugned act on the touchstone of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution of India.

The Constitution provides for declaration of certain castes and tribes as c Scheduled Castes and Scheduled Tribes in terms of Articles 341 and 342 of the Constitution of India. The object of the said provisions is to provide for grant of protection to the backwards class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having regard to the economic and educationally backwardness wherefrom they suffer. The President of India alone in terms of Article 341(1) of the Constitution of .D India is authorized to issue an appropriate notification therefor. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is exhaustive.

Mr. Venugopal has strongly relied on a decision in NTR University of Health Sciences, Vijayawada v. G.Babu Rajendra Prasad and Anr;, [2003] E 5 sec 350 for the proposition that the question as to how and in what manner the reservation should be made is a matter of policy of the State and such a policy decision normally would not be open to challenge, but the said observation must be understood in the context of the Presidential Order made under Article 371-D application to the State of Andhra Pradesh. Under the F . Presidential Order, 1974, 85% of the seats were reserved in favour of the local candidates within the University area only and the remaining 15% were reserved for candidates of non-local area. In the instant case, it is not the extent of reservation, but competence of the State Legislature to make a sub- classification of Scheduled Castes notified initially by the President and subsequently amended by Parliament by law, is in question. G The power of State Legislature to decide as regard grant of benefit of reservation in jobs or in educational institutions to the backward classes is not in dispute. It is furthermore not in dispute that if such a decision is made that State can also lay down a legislative policy as regard extent of reservation to be made for different members of the backward classes including Scheduled "

E.V. CHJNNAIAH v. STATE OF ANDHRA PRADESH [H.K. SEMA, J.) 1017

Caste. But it cannot take away the said benefit on the premise that one or the other group amongst the members of the Scheduled Castes has advanced and, thus, is not entitled to the entire benefit of reservation. The impugned legislation, thus, must be held to be unconstitutional.

WHAT JS THE REMEDY? B There is one practical aspect of the matter which may not also be lost sight of. The chart produced before us clearly shows that the members belonging to Relli and Adi-Andhra are hardly educated. What was necessary in the situation was to provide to them scholarships, hostel facilities, special coaching, etc., so that they may be brought on the same platform with the member of other Scheduled Tribes, viz., Madiga and Mala, if not with the other backward classes. It is not in dispute that members belonging to Relli . are hardly educated. Only 2% of the members of the said community have studied in secondary school. No one has ever been admitted in any engineering discipline or other professional disciplines. The said facts clearly go to show that providing reservation for them in engineering or medical discipline or in public service would not solve their problem. Without such basic education, the members belonging to the said community would not be getting admission either in the engineering or medical colleges or other professional courses and as such the question of their joining public service may not arise at all. Now, even for the post of Class IV employees, qualification of passing matriculation examination is provided. Unless children of the said community are educated, the provision for both for education as also public service would be a myth for them and ultimately in view of the impugned Iegisla.ion for all intent and purport, the benefit thereof would go to other categories. The State, in our opinion, should take positive steps in this behalf. F I entirely agree with the opinion of Brother, N.Santosh Hegde, J. that the appeals be allowed.

H.K. SEMA, J. I had the privilege of going through the erudite judgment prepared by my learned Brother Hegde, J and I respectfully agree with him. However, having regard to the substantial question of law involving as to the G interpretation of the Constitution, I thought of putting a few lines of my own in one aspect of the matter.

Article 366(24) defines "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed H

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A under Article 341 to be Scheduled Castes for the purposes of this Constitution. This would go to show that by virtue of the Notification of the President the Scheduled Castes come into being as one class of persons regardless of members drawn from castes, races or tribes etc. They attain a homogeneous group by virtue of the President Notification.

B In Indra Sawhney and Ors. v. Union of India and Ors., [1992] Supp 3 SCC 217 this Court observed at page 725(SCC) that the discussion of creamy layer is confined to other backward classes only and has no relevance in the case of Scheduled Castes and Scheduled Tribes.

In the case of State of Maharashtra v. Mi/ind and Ors., [2001] 1 SCC C 4, it was pointed out by the Constitution Bench of this Court at page 15 SCC:-

"By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or D part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to E Article 342. The laudable object of the said articles is to provide additional protection to the members of the Scheduled Castes and Sche"duled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words "castes" or "tribes" in the expression "Scheduled Castes" and "Scheduled Tribes" are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25)."

Thus, the pious object for issuing the Presidential Notification is to afford them special protection having regard to social and educational backwardness. The Presidential Notification under Article 341 of the Constitution as well as the benefits of reservation of appointments or posts which in the opinion of the State, is not adequately represented in the services under the State, is afforded to a class of persons specified in Presidential Notification under Article 341 of the Constitution. The backward class of citizens enshrined in Article 16(4) of the Constitution includes Scheduled H

E.V. CHINNAIAH v. STATE OF ANDHRA PRADESH [H.K. SEMA, J.) 1019

Castes and Scheduled Tribes. The whole basis ef reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes as a class of persons who have been suffering since a considerable length of time due to social and educational backwardness. The protection and reservation is afforded to a homogeneous group. Further classification and/or regrouping the homogeneous groups by State Legislature would tinker with the Presidential Notification issued under Article 341, which is constitutionally impermissible. By the impugned legislation, the State has sought to re-group the homogeneous group specified in Presidential

-· Notification for the purposes of reservation and appointments. It would tantamount to· discrimination. It is a trite law that justice must be equitable. Justice to one group at the costs of injustice to other group is another way of perpetuating injustice.

K.K.T. Appeals allowed.