Full Judgment Text
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PETITIONER:
THE GENERAL MANAGER, SOUTHERN RAILWAY
Vs.
RESPONDENT:
RANGACHARI
DATE OF JUDGMENT:
28/04/1961
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
CITATION:
1962 AIR 36 1962 SCR (2) 586
CITATOR INFO :
R 1963 SC 518 (12)
F 1963 SC 649 (37)
R 1963 SC 913 (36)
R 1964 SC 179 (14,18,19,26)
D 1965 SC 280 (6)
F 1967 SC 839 (12)
R 1967 SC1427 (9)
RF 1968 SC 349 (4)
F 1968 SC 507 (3,5,6)
F 1971 SC1777 (6,9,10)
D 1976 SC 490 (29,56,71,75,109,180,209,212,2
RF 1977 SC1237 (15)
R 1979 SC 429 (19)
E&R 1981 SC 298 (28,52,53,57,65,69,72,83,84,91
R 1981 SC 588 (12)
R 1981 SC1829 (36)
RF 1991 SC 101 (238)
R 1991 SC2113 (9)
R 1992 SC 1 (92)
ACT:
State Service-Power of State to reserve appointments and
posts for backward classes-Scope of such reservation-
"Appointments or Posts", Meaning of -Posts, if include
selection posts in the services-Constitution of India, Arts.
16(4), 335.
HEADNOTE:
This appeal was directed against an order of the Madras High
Court issuing a writ of mandamus at the instance of the
respondent restraining the appellants from giving effect to
two circulars issued by the Railway Board reserving
selection posts in Class III of the Railway service in
favour of the members of the Scheduled Castes and Scheduled
Tribes with retrospective operation. It was urged on behalf
of the respondent that the Constitution made a clear
distinction between backward classes on the one hand and
Scheduled Castes and Scheduled Tribes on the other, and that
Art. 16(4) applied only to reservation of posts at the stage
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of appointment and not to posts for promotions after
appointment and, therefore, the circulars which fell
587
outside the scope of Art. i6(4) and contravened Art. i6(1).
This was denied by the appellant who pleaded the contrary.
The first circular, inter alia, prescribed a quota of
reservation for( selection posts and gave retrospective
effect to it and the second-’ gave guidance and directions
as to how the first should be implemented. A subsequent
clarification issued by the Board stated that no reversion
of staff already promoted to selection posts was
contemplated. The High Court held that the expression
"backward classes" in Art. 16(4) included members of the
Scheduled Castes and Scheduled Tribes, but that the word
,appointments’ did not denote promotion and the word ’posts’
meant posts outside the civil services and thus the impugned
circulars were not covered by Art. i6(4) and were ultra
vires.
Held, (per Gajendragadkar, Sarkar, and Das Gupta, JJ.), that
the impugned circulars were well within the ambit of Art.
16(4) Of the Constitution and the appeal must succeed.
Articles 16(i) and 16(2) of the Constitution are intended to
give effect to Art. 14 and Art. 15(1) Of the Constitution
and these Articles form parts of the same constitutional
code of guarantees and supplement each other. Article 16(i)
should, therefore, be construed in a broad and general, and
not pedantic and technical way. So construed, "matters
relating to employment" cannot mean merely matters prior to
the act of appointment nor can ’appointment to any office’
mean merely the initial appointment but must include all
matters relating to employment, whether prior or subsequent
to the employment, that are either incidental to such
employment or form part of its terms and conditions and also
include promotion to a selection post.
Although Art.16(4), which in substance is an exception to
Arts. 16(1) and 16(2) and should, therefore, be strictly
construed, the court cannot in construing it overlook the
extreme solicitude shown by the Constitution for the
advancement of socially and educationally backward classes
of citizens.
The scope of Art. 16(4), though not as extensive as that of
Art. 16(1) and (2),-and some of the matters relating to
employment such as salary, increment, gratuity, pension and
the age of superannuation, must fall outside its non-
obstante clause, there can be no doubt that it must include
appointments and posts in the services. To put a narrower
construction on the word ’posts’ would be to defeat the
object and the underlying policy’ Article 16(4), therefore,
authorises the state to provide for the reservation of
appointments as well as selection posts.
It is not correct to say that the legislative history of
the word ’posts’ shows that it has invariably been used to
mean posts outside the services, Neither the relevant
provisions of the Constitution nor those of the Constitution
Act of 1935 justify such a conclusion. It is the -context
in which that word is used that must determine its meaning.
588
But in exercising its powers under the Article it should be
the duty of the State to harmonise the claims of the
backward classes and those of the other employees
consistently with the maintenance of an efficient
administration as contemplated by Art. 335 of the
Constitution.
Per Wanchoo, J.-Article 16(4) which is in the nature of an
exception or proviso to Art. 16(1) cannot be allowed to
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nullify equality of opportunity guaranteed to all citizens
by that Article.
Article 16(4) implies, as borne out by Art. 335, that the
reservation of appointments or posts for backward classes
cannot cover all or even a majority of appointments and
posts and the words "not adequately represented", which
provide the key to the interpretation of Art. 16(4), do not
convey any idea of quality but mean sufficiency of numerical
representation in a particular service, taken not by its
grades, but as a whole.
Appointments must, therefore, mean initial appointments, and
reservation of appointments, the reservation of a percentage
of initial appointments. Posts refer to the total number of
posts in the service and reservation of posts means
reservation of a certain percentage of posts out of total
posts in the service.
Per Ayyangar, J.-Article 16(4), concerned as it is with the
right to State employment, has to be read and construed in
the light of other provisions relating to services contained
in Part XIV of the Constitution and, particularly, Art. 335.
So construed, the word "post" in that Article must mean
posts not in the services but posts outside the services.
Assuming that was not so, and the word ’posts’ meant posts
in the services, the inadequacy of representation sought to
be redressed by Art. 16(4) means quantitative deficiency of
representation in a particular service as a whole and not in
its grades taken separately, nor in respect of each single
post in the service. Read in the light of Art. 335, Art.
16(4) can only refer to appointments to the services at the
initial stage and not at different stages after the
appointment has taken place.
Article 16(4) contemplates prospective reservation of
appointments and posts and does not authorise retrospective
reservation.
JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 341 of 1960.
Appeal from the judgment and order dated March 3,1960, of
the Madras High Court, in W. P. No. 1051 of 1959.
N. C. Chatterjee, B. R. L. Iyengar and D. Gupta, for the
appellants.
589
S. Mohan Kumaramangalam, M. K. Ramamurthy, R. K. Garg
and T. S. Venkataraman, for the respondent and the
intervener.
1961. April, 28. The Judgment of Gajendragadkar, Sarkar
and Das Gupta, JJ., was delivered by Gajendragadkar, J.
Wanchoo and Ayyangar, JJ., delivered separate Judgments.
GAJENDRAGADKAR, J.-On a writ petition filed by the
respondent K. Rangachari in the Madras High Court under Art.
226 of the Constitution a writ of mandamus has been issued
by the said High Court restraining the appellants, the
General Manager, Southern Railway, and the Personnel Officer
(Reservation), Southern Railway, from giving effect to the
directions of the Railway Board ordering reservation of
selection posts in Class III of the railway service in
favour of the members of the Scheduled Castes and Scheduled
Tribes and in particular the reservation of selection posts
among the Court Inspectors in Class III one of which is held
by the respondent. After the writ was thus issued the
appellant applied for and obtained a certificate from the
said High Court under Art. 132(1) of the Constitution as it
involved a substantial question of law, namely, the scope of
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Art. 16(4) of the Constitution. It is with this certificate
that the appeal has been brought to this court, and the.
only question which it raises for our decision is about the
scope and effect of Art. 16(4). This question is of
considerable public importance though the dispute raised by
it lies within a very narrow compass.
In the railway services there are four grades of Court
Inspectors included in Class III, (1) Court Inspectors on
Rs. 200-300, (2) Court Inspectors on Rs. 260-350, (3) Chief
Court Inspectors on Rs. 300400, and (4) Chief Court
Inspectors on Rs. 360-500. It appears that Inspectors of
the first category are recruited partly directly and partly
by selection from other categories of railway services. To
the remaining three grades appointments are made by
promotion and they are classified as selection posts..
Selection to
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590
these grades is made by a committee of officers constituted
for the purpose. In respect of non-selection posts
seniority in service is the qualification but in regard to
selection posts seniority is only one of the qualifications
for promotion to such posts; suitability to promotion is
considered on other relevant grounds .as well.
The respondent was initially recruited to the grade of Rs.
200-300 and was confirmed in that, grade on November 21,
1956. Between May 23, 1958, and August 22, 1958 as well as
between December 8, 1958 and December 31, 1958, he was
promoted to officiate in the grade of Rs. 260-350. He got a
chance of another similar promotion to officiate on April 8,
1959. These promotions were in the nature of ad hoc promo-
tions and were consequently of temporary duration. Later,
on June 16, 1959, he was interviewed by the selection
committee and his promotion to the said higher grade was
regularised and an order was passed in that behalf on June
30, 1959. By this order lie was allowed to continue to
officiate in the said grade. Since then he has been
officiating in that grade.
On April 27, 1959, and on June 12, 1959, the two impugned
circulars were issued by the Railway Board and addressed to
the General Managers. As a result of the said circulars the
selection committee decided to consider the case of
Hiriyanna for promotion to the grade of Rs. 260-350,
Hiriyanna being a member of the Scheduled Castes. The
record shows that at the time when the respondent was
interviewed and selected he was placed as Number One by the
selection committee and one Partliasarathy was placed as
Number Two. - On the said occasion Hiriyanna was not
selected and put in the panel. The selection committee
desired to examine the case of Hiriyania in order to decide
whether he was suitable for promotion to higher grade in the
light of the two directives issued by the Railway Board and
so a meeting of the selection committee was called on
November 18, 1959. The respondent thought that the
proceedings of the said proposed meeting may result
-prejudicially to his interest and so on November 16, 1959,
he filed the
591
present Writ Petition No. 1051 of 1959. In this petition he
applied for a writ in the nature of mandamus and also prayed
for an interim injunction restraining the holding of the
meeting of the selection committee proposed to be held on
November 18, 1959. An interim injunction as prayed for by
the respondent was issued by the High Court and in
consequence the proposed meeting has not been held.
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According to the respondent the two directives issued by the
appellants under the two impugned circulars were ultra
vires, illegal, inoperative and unconstitutional in that
they were not justified by Art. 16(4). He alleged that a
reading of Arts. 16, 335, 338 and 339 would show that the
Constitution draws a clear distinction between Scheduled
Castes or Tribes on the one hand and backward classes on the
other and so it was urged by him that the impugned circulars
were illegal. The petition further urged that the safeguard
provided by Art. 16(4) applied only to reservation Of posts
at the stage of appointment and not for reservation of posts
for promotion after appointment and so the circulars were
outside the provisions of Art. 16(4) and as such contravened
Art. 16(1). The petition expressed the apprehension that if
the circulars are implemented the respondent would be
reverted and that would cause great loss both financially
and in status to him. It is on these allegations that the
respondent prayed for the issue of a writ in the nature of
mandamus directing the appellants to forbear from
implementing the two impugned circulars.
These pleas were denied by the appellants. It was alleged
by them that the expression "backward class" appearing in
Art. 16(4) would include not only the Scheduled Castes and
Scheduled Tribes but all backward communities who could not
stand on their own legs. Therefore the reservations made by
the impugned circulars were fully covered by Art. 16(4).
The appellants’ case was that the safeguards provided by
Art. 16(4) would extend not only to initial appointment but
also to promotions made by selection and that clearly
brought the impugned circulars within the
592
protection of Art. 16(4). The appellants categorically
denied that the respondent would suffer any loss or because
persons who had already been promoted on the basis of
earlier regular selections were not intended to be reverted
as a consequence of the implementation of the impugned
circulars. According to the appellants the petition filed
by the respondent was permature and on the merits no case
had been made out for the issue of a writ of mandamus.
At this stage it would be material to set out the relevant
portions of the impugned circulars. The circular issued by
the Railway Board on April 27, 1959, contained, inter alia,
the following directions.
"There are different grades of Class III posts. Some of
these posts are ’non-selection’ posts, promotion to which is
made on ’seniority-cum-suitability’ basis, while, in the
case of others which are ’Selection’ posts, promotion is
made by a positive act of selection. There will be no quota
for Scheduled Castes and Scheduled Tribes candidates in
respect of promotion to ’non-selection’ posts.
For promotion to ’Selection’ posts, however, there will be
the prescribed quota of reservation. The field of
consideration in the case of Scheduled Castes and Scheduled
Tribes candidates should be four times the number of posts
reserved without any condition of qualifying period of
service in their case, subject to the condition that
consideration should not normally extend to such staff
beyond two grades immediately below the grade for which
selection is held."
There is one more direction given by the said circular which
must be read. The decision of the Railway Board providing
reservation for Scheduled Castes and Scheduled Tribes in
promotion vacancies as laid down above comes into effect
from January 4, 1957. It will, therefore, be necessary to
calculate the number of posts that should have been made
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available to the Scheduled Castes and Scheduled Tribes
during 1957 and 1958 and these should be carried forward to
be filled in 1959. Thus it would be noticed that the effect
of this circular was to prescribe a quota of reservation for
selection posts and to give effect to this reservation
retrospectively from January 4,
593
1957. In a sense it is this retrospective operation of the
circular which appears to be the main cause of the present
dispute.
On June 12,1959, another circular was issued giving guidance
and directions as to how the earlier circular should be
implemented. This circular directed, inter alia, by
paragraphs 2(ii) and 2(iii) as follows:
"2(ii). The Special Rosters in force for S.
C. & S. T. in direct recruitment categories
are to be followed to work out the number of
posts to be reserved for S. C. & S. T. in
promotions made in Selection Grades and for
promotion from Class IV to Class 111.
2(iii). As the Board’s orders have
retrospective effect from 4th January, 1957,
it is necessary that the promotions made in
each selection grade on your Division/Office
from 4th January, 1957, are reviewed and the
number of posts due to S. C. & S. T. worked
out applying the Roster referred to in item
(ii) above."
It appears certain doubts were raised in regard to the
manner in which the reservation circulars had to be
implemented and so on September 11, 1959, the Railway Board
issued a letter clarifying the doubts raised. One of the
points thus clarified was whether the instructions issued in
the Board’s letter contemplated reversion of staff already
promoted to selection posts after January 4, 1957, to
accommodate S. Cs. and S. Ts. (which stand for Scheduled
Castes and Scheduled Tribes) according to percentage basis.
The clarification issued was that the said orders did not
contemplate such reversion. It was, however, desired that
the shortfalls should be made good against the existing as
well as the future vacancies. It is by virtue of this
clarification that the -respondent was assured by the
appellants during the proceedings before the High Court that
he need not entertain any apprehension of reversion as a
result of the implementation of the impugned circulars.
We would now briefly summarise the findings and conclusions
of the High Court on the points raised before it by the
contentions of the parties in the
595
whether Art. 16(1) and (2) refer to promotion or whether
they are confined to the initial appointment to any post in
civil service. In the appeal before us the s, appellants
and the respondent both conceded that cases of promotion
fell within Art. 16(1) and (2) though they differed as to
whether they were included in Art. 16(4). It would be
immediately noticed that the respondent’s petition
postulates the inclusion of promotion in Art. 16(1) and (2)
for it is on that assumption that he challenges the validity
of the impugned circulars. Similarly, the appellants’
defence postulates that Art. 16(1) and (2) as well as Art.
16(4) refer to cases of promotion for it is on the basis
that Art. 16(4) includes promotion that they seek to support
the validity of the impugned circulars. When this appeal
was argued before the Constitution Bench on the first
occasion it became clear that neither party was interested
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in contending that the guarantee afforded by Art. 16(1) and
(2) is confined only to initial appointment and does not
extend to promotion, and so notice was ordered to be issued
to the Attorney General. In response to the notice the
Attorney-General has appeared and is represented by Mr. Sen.
He has also taken the same stand as the appellants have done
and so in the result nobody before us is interested in
challenging the inclusion of promotion within Art. 16(1) and
(2). However, we would briefly indicate our reasons for
accepting the concession made by the parties that promotion
is included in Art. 16(1) and (2).
Article 16(1) reads thus:
"There shall be equality of opportunity for
all citizens in matters relating to employment
or appointment to any office under the State."
In deciding the scope and ambit of the fundamental right of
equality of opportunity guaranteed by this Article it is
necessary to bear in mind that in construing the relevant
Article a technical or pedantic approach must be avoided.
We must have regard to the nature of the fundamental right
guaranteed and we must seek to ascertain the intention of
the Constitution by construing the material words in a broad
596
and general way. If the words used in the Article are wide
in their import they must be liberally construed in all
their amplitude. Thus construed it would be clear that
matters relating to employment cannot be confined only to
the. initial matters prior to the act of employment. The
narrow construction would confine the application of Art.
16(1) to the initial employment and nothing else; but that
clearly, is only one of the matters relating to employment.
The other matters relating to employment would inevitably be
the provision as to the salary and periodical increments
therein, terms as to leave, as to gratuity, as to pension
and as to the age of superannuation. These are all matters
relating to employment and they are, and must be, deemed to
be included in the expression "matters relating to
employment" in Art. 16(1). Similarly, appointment to any
office which means appointment to an office like that of the
Attorney-General or Comptroller and Auditor-General must
mean not only the initial appointment to such an office but
all the terms and conditions of service pertaining to the
said office. What Art. 16(1) guarantees is equality of
opportunity to all citizens in respect of all the matters
relating to employment illustrated by us as well as to an
appointment to any office as explained by us.
This equality of opportunity need not be confused with
absolute equality as such. What is guaranteed is the
equality of opportunity and nothing more. Article 16(1) or
(2) does not prohibit the prescription of reasonable rules
for selection to any employment or appointment to any
office. Any provision as to the qualifications for the
employment or the appointment to office reasonably fixed and
applicable to all citizens would certainly be consistent
with the doctrine of the equality of opportunity; but in
regard to employment, like other terms and conditions
associated with and incidental to it, the promotion to a
selection post is also included in the matters relating to
employment, and even in regard to such a promotion to a
selection post all that Art. 16(1) guarantees is equality of
opportunity to all citizens who enter service.
597
If the narrow construction of the expression "matters
relating to employment" is accepted it would make the
fundamental right guaranteed by Art. 16(1), illusory. In
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that case it would be open to the State’ to comply with the
formal requirements of Art. 16(1) by affording equality of
opportunity to all citizens in the matter of initial
employment and then to defeated its very aim and object by
introducing discriminatory provisions in respect of
employees soon after their employment. Would it, for
instance, be open to the State to prescribe different scales
of salary for the same or similar posts, different terms of
leave or superannuation for the same or similar post? On
the narrow construction of Art. 16(1) even if such a dis-
criminatory course is adopted by the State in respect of its
employees that would not be violative of the equality of
opportunity guaranteed by Art. 16(1). Such a result could
not obviously have been intended by the Constitution. In
this connection it may be relevant to remember that Art.
16(1) and (2) really give effect to the equality before law
guaranteed by Art. 14 and to the prohibition of
discrimination guaranteed by Art. 15(1). The three
provisions form part of the same constitutional code of
guarantees and supplement each other. If that be so, there
would be no difficulty in holding that the matters relating
to employment must include all matters in relation to
employment both prior, and subsequent, to the employment
which are incidental to the employment and form part of the
terms and conditions of such employment.
Article 16(2) provides that no citizen shall, on grounds
only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or
office under the State. This sub-Article emphatically
brings out in a negative form what is guaranteed
affirmatively by Art. 16(1). Discrimination is a double-
edged weapon; it would operate in favour of some persons and
against others; and Art. 16(2) prohibits discrimination and
thus assures the effective enforcement of the fundamental
right of equality of
76
598
opportunity guaranteed by Art. 16(1). The words "in respect
of any employment" used in Art. 16(2) must, therefore,
include all matters relating to employment as specified in
Art. 16(1). Therefore, we are satisfied that Mr. Sen is
right when on behalf of the Attorney General he conceded
that promotion to selection Posts ’is included both under
Art. 16(1) and (2). Broadly stated the Bombay and the Patna
High Courts sup-, port the concession made by Mr. Sen (Vide:
Pandurang Kashinath More v. The Union of India(1); Sukh-
nandan v. State (2) ) whereas the Allahabad High Court is
against it (vide: Moinuddin v. State of Uttar Pradesh (3) ).
In this connection we ought to add that Civil Appeal No. 579
of 1960 (4) in which the Union of India challenged the
correctness of the Bombay decision was set down for hearing
along with this appeal, and in the judgment which we are
pronouncing in the said appeal today we are accepting the
appellants’ contention that the question about the invasion
of the fundamental right guaranteed by Art. 16(1) was not
properly raised by the respondent in his plaint in that case
and had in fact not been proved; accordingly we are holding
that ’the High Court was in error in proceeding to deal with
the dispute on the basis that violation of Art. 16(1) had
been admitted by the Union. In the result we are allowing
the said appeal and setting aside the decision of the High
Court on
this narrow ground.
Article 16(3) provides for one exception to the provisions
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of Art. 16(1) and (2) in that it authorises Parliament to
make any law prescribing, in regard to a class or classes of
employment or appointment to an office under the Government
of, or any local or other authority within, a State or Union
territory, any requirement as to residence within that State
or Union territory prior to such employment or appointment.
We are not concerned with this provision in the present
appeal.
(1) I.L.R. [1958] Bom. 1266.
(2) (1956) I.L.R. 35 Pat.
(3) A.I.R. 1960 All. 484.
(4) Union of India v. Pandurang Kashinath More.
599
That takes us to Art. 16(4). It reads thus:
"Nothing in this article shall prevent the
State, from making any provision for the
reservation of appointments or posts in favour
of any backward class of citizens which, in
the opinion of the State, is not adequately
represented in the services under the State."
In construing Art. 16(4) the respondent is no doubt entitled
to contend that this sub-Article in substance provides for
an exception to the fundamental rights guaranteed by Art.
16(1) and (2) and as such it must be strictly construed. On
the other hand, the appellants may well urge that in
construing its provisions the Court should not lose sight of
the fact that the Constitution has, if we may say so wisely,
showed very great solicitude for the advancement of socially
and educationally backward classes of citizens. Article
15(4) which provides, inter alia, for an exception to the
prohibition of discrimination on grounds specified in Art.
15(1) lays down that nothing contained in the said Article
shall prevent the State from making any special provision
for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes. Similarly, Art. 335 requires that the
claims of the members of the Scheduled Castes and the
Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of
administration, in the making of appointments to services
and posts in connection with the affairs of the Union or of
a State. For historical reasons which are well known the
advancement of socially and educationally backward classes
has been treated by the Constitution as a matter of
paramount importance and that may have to be borne in mind
in construing Art. 16(4).
On one point in relation to the construction of Art. 16(4)
the parties are in agreement. It is common ground that Art.
16(4) does not cover the entire field covered by Art. 16(1)
and (2). Some of the matters relating to employment in
respect of which equality of opportunity has been guaranteed
by Art. 16(1) and (2) do not fall within the mischief of
non-obstantive
600
clause in Art. 16(4). For instance, it is not denied by the
appellants that the conditions of service relating ’to
employment such as salary, increment, gratuity, y pension
and the age of superannuation there can be no exception even
in regard to the backward classes of citizens. In other
words, these matters relating to employment are absolutely
protected by the doctrine of equality of opportunity and
they do not form the subject-matter of Art. 16(4). That is
why we have just observed that part of the ground covered by
Art. 16(1) and (2) is admittedly outside the scope of Art.
16(4). The point in dispute is: Is promotion to a selection
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post which is included in Art. 16(1) and (2) covered by Art.
16(4) or is it not? It is on, this point that there is a
sharp controversy between the parties.
Before construing Art. 16(4) it would be convenient to deal
with the question as to whether posts specified by it are
posts inside the services or outside them. As we have
already seen the High Court has taken the view that the
posts in the context must necessarily mean posts outside the
services and that in fact is the sole basis of the decision
of the High Court against the appellants. The High Court
has held that the legislative history of the words
"appointments" and "Posts" justifies the conclusion that
"posts" are ex-cadre posts. Is that really so? In our
opinion, the answer to this question must be in the
negative. The argument that legislative history about the
use of the relevant words is decisively in favour of
excluding service posts from the purview of Art. 16(4)
ignores the fact that there can be no legislative history
for the provisions of Art. 16(4) which have found a place in
the Constitution for the first time. Besides, it is not
correct to assume that even the legislative history shows
that "posts" always and inevitably meant posts outside
services though it may be conceded that in the majority of
corresponding constitutional provisions they do refer to ex-
service posts.
Let us look at the relevant provisions of the Constitution
itself. Article 309 empowers the appropriate Legislature to
regulate the recruitment and conditions of service of
persons appointed to public services and
601
posts in connection with the affairs of the Union or of any
State. In the context "posts" means posts outside services.
Similarly Art. 310(1) refers to every person ’who is a
member of a defence service or of a civil service of the
Union or of an all-India service or holds any post connected
with defence or any civil post under the Union. The word
"post" in the context means an ex-cadre post. Likewise the
expression "civil post" in Art. 311(1) means a civil post
outside the services. Article 335 to which we have referred
uses the word "posts" in the same sense. But, when we go to
Art. 336 the word "posts" in the context means posts in the
services therein enumerated. The position disclosed by the
corresponding provisions of the Constitution Act of 1935 is
substantially the same. Sections 240 and 241 for instance
use the word "posts" in the sense of ex-service posts;
whereas s. 246 refers to civil posts in the sense of posts
inside the services. In our opinion, it would, therefore,
be unreasonable to treat the word "posts" as a term of art
and to clothe it inexorably with the meaning of excadre
posts. It is the context in which the word "posts" is used
which must determine its denotation.
What does the context of Art. 16(4) indicate? That is the
next question which we must consider. Article 16(4) clearly
shows that the power conferred by it can be exercised in
cases where the State is of the opinion that any backward
class of citizens is not adequately represented in the
services under it. In other words, the opinion formed by
the State that the representation available to the backward
class of citizens in any of the services is inadequate is a
condition precedent for the exercise of the power conferred
by Art. 16(4), and so the power to make reservation as
contemplated by Art. 16(4) can be exercised only to make the
inadequate representation in the services adequate. If that
be so, both "appointments" and "posts" to which the
operative part of Art. 16(4) refers and in respect of which
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the power to make reservation has been conferred on the
State must necessarily be appointments and posts in the ser-
vice. It would be illogical and unreasonable to
602
assume that for making the representation adequate in the
services under the State a power should ’be given to the
State to reserve posts outside the cadre of services. If
the word "posts" means excadre posts reservation of such
posts cannot possibly cure the imbalance which according to
the State is disclosed in the representation in services
under it. Therefore, in our opinion, the key clause of Art.
16(4) which prescribes a condition precedent for invoking
the power conferred by it itself unambiguously indicates
that the word "posts" cannot mean ex-cadre posts in the
context. In fairness to Mr. Kumaramangalam, who appeared
for the respondent, we ought to add that he did not resist
the contention of Mr. Chatterjee, for the appellants, that
the context requires that "Posts" should be deemed to be
posts inside services and not outside them. Therefore, the
main, if not the sole, reason given by the High Court in
support of its conclusion does not appear to us to be well
founded, and so Art. 16(4) must be construed on the basis
that both "appointments" and "posts" to which its operative
clause refers are appointments and posts in the services
under the State. Incidentally, we may repeat what we have
already pointed out that the tenor of the judgment under
appeal shows that if the High Court had construed the word
"posts" as posts inside the services it would not have
issued the writ in favour of the respondent.
Having in substance conceded that "posts" does not mean
posts outside services Mr. Kumaramangalam presented a very
plausible argument in support of his case that the impugned
circulars fall outside Art. 16(4). He contends that the key
clause on which Mr. Chatterjee relies in construing the word
"posts" as meaning posts in the services itself shows that
direct promotion to selection posts by reservation is not
permissible under Art. 16(4). His argument is that if it is
discovered that any backward class of citizens is not
adequately represented in the services under the State the
State may no doubt seek to introduce the balance by giving
adequate representation to the backward class by making
reservations for initial
603
appointments. It may decide the proportion of the said
reservation in order to introduce the balance and then give
effect to it by making adequate number of appointments by
reservation at the initial stage. If’ this process by
itself appears to the State to be slow and tardy it may even
reserve selection posts but this reservation can be given
effect to again by promoting( suitable backward candidates
to the said posts after they fall vacant and making a
proportionately larger number of appointments at the initial
stage. In any case reservation must work from the bottom
and reservation cannot be permitted to allow direct
appointment to selection posts as the impugned circulars
seek to do. It may be conceded that reservation of
appointments or posts maybe made in the manner suggested by
Mr. Kumaramangalam. It may also be assumed that giving
retrospective effect to reservations may well cause heart-
burning or dissatisfaction amongst the general class of
employees and in that sense it would be an act of wisdom not
to give effect to reservation retrospectively. But, with
the propriety or the wisdom of the policy underlying the
circulars We are not directly concerned. Even if it be
assumed that it would be open to the State to adopt the
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method suggested by Mr. Kumaramangalam to give effect to the
power of reservation in order to make the representation of
the backward classes adequate in its services does it follow
that it is the only method permissible under Art. 16(4)? We
are inclined to hold that the answer to this question cannot
be in favour of the respondent. If it is conceded that
selection posts can be reserved it is difficult to see how
it would be open to the respondent to contend that these
reserved selection posts must be filled only prospectively
and not retrospectively. The concession that selection
posts can be reserved on which the argument is based itself
provides the answer to the argument that if the said posts
can be reserved the reserved posts can be filled either
prospectively or retrospectively. In adopting the latter
course there can be no violation of the constitutional
provision contained in Art. 16(4).
604
The condition precedent for the exercise of the powers
conferred by Art. 16(4) is that the state ought to be
satisfied that any backward class of citizens is not
adequately represented in its services. This condition
precedent may refer either to the numerical inadequacy of
representation in the services or even to the qualitative
inadequacy of representation. The advancement of the
socially and educationally backward classes requires not
only that they should have adequate representation in the
lowest rung of services but that they should aspire to
secure adequate representation in selection posts in the
services as well. In the context the expression ’adequately
represented’ imports considerations of "size" as well as
"values", numbers as well as the nature of appointments held
and so it involves not merely the numerical test but also
the qualitative one. It is thus by the operation of the
numerical and a qualitative test that the adequacy or
otherwise of the representation of backward classes in any
service has to be judged; and if that be so, it would not be
reasonable to hold that the inadequacy of representation can
and must be cured only by reserving a proportionately higher
percentage of appointments at the initial stage. In a given
case the state may well take the view that a certain
percentage of selection posts should also be reserved, for
reservation of such posts may make the representation of
backward classes in the services adequate, the adequacy of
such representation being considered qualitatively. If it
is conceded that "posts" in the context refer to posts in
the services and that selection posts may be reserved but
should be filled only in the manner suggested by the
respondent then we see no reason for holding that the
reservation of selection posts cannot be implemented by
promoting suitable members of backward class of citizens to
such posts as the circulars intend to do.
We must in this connection consider an alternative argument
that the word "posts" must refer not to
605
selection posts but to posts filled by initial appointments.
On this argument reservation of appointments means
reservation of certain percentage in the initial
appointments and reservation of posts means reservation of
initial posts which may be adopted in order to expedite and
make more effective the reservation of appointments
themselves. On this construction the use of the word
"posts" appears to be wholly redundant. In our opinion,
having regard to the fact that we are construing the
relevant expression "reservation of appointments" in a
constitutional provision it would be unreasonable to assume
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that the reservation of appointments would not include both
the methods of reservation, namely, reservation of
appointments by fixing a certain percentage in that behalf
as well as reservation of certain initial posts in order to
make the reservation of appointments more effective. That
being so, this alternative argument which confines the word
"posts" to initial posts seems to us to be entirely
unreasonable. On the other hand, under the construction by
which the word "posts" includes selection posts the use of
the word "posts" is not superfluous but serves a very
important purpose. It shows that reservation can be made
not only in regard to appointments which are initial
appointments but also in regard to selection posts which may
fall to be filled by employees after their employment. This
construction has the merit of interpreting the words
"appointMents" and "posts" in their broad and liberal sense
and giving effect to the policy which is obviously the basis
of the provisions of Art. 16(4). Therefore, we are disposed
to take the view that the power of reservation which is
conferred on the State under Art. 16(4) can be exercised by
the State in a proper case not only by providing for
reservation of appointments but also by providing for
reservation of selection posts. This construction, in our
opinion, would serve to give effect to the intention of the
Constitution-makers to make adequate safeguard for the
advancement of backward classes and to secure for their
adequate representation in the services. Our
77
06
conclusion, therefore, is that the High Court was in error
in holding that the impugned circulars do not all within
Art. 16(4).
It is true that in providing for the reservation of
appointments or posts under Art. 16(4) the State has to take
into consideration the claims of the members of the backward
classes consistently with the maintenance of the efficiency
of administration. It must not be forgotten that the
efficiency of administration is of such paramount importance
that it would be unwise and impermissible to make any
reservation at the cost of efficiency of administration.
That undoubtedly is the effect of Art. 335. Reservation of
appointments or posts may theoretically and conceivably mean
some impairment of efficiency; but the risk involved in
sacrificing efficiency of administration must always be
borne in mind when any State sets about making a provision
for reservation of appointments or posts. It is also true
that the reservation which can be made under Art. 16(4) is
intended merely to give adequate representation to backward
communities. It cannot be used for creating monopolies or
for unduly or illegitimately disturbing the legitimate
interests of other employees. In exercising the powers
under Art. 16(4) the problem of adequate representation of
the backward class of citizens must be fairly and
objectively considered and an attempt must always be made to
strike a reasonable balance between the claims of backward
classes and the claims of other employees as well as the
important consideration of the efficiency of administration;
but, in the present case, as we have already seen’ the
challenge to the validity of the impugned circulars is based
on the assumption that the said circulars are outside Art..
16(4) because the posts referred to in the said Article are
posts outside the cadre of services and in any case, do not
include selection posts. Since, in our opinion, this
assumption is not well founded we must hold that the
impugned circulars are not unconstitutional.
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In the result the decision of the High Court under appeal is
reversed and the respondent’s application
607
for a writ is dismissed. There would be no order as to
costs.
WANCHOO, J.-I have read the judgment just delivered by my
learned brother Gajendragadkar J., and I agree with him as
to the scope of Art. 16(1) of the Constitution. I also
agree with him that the scheduled castes and the scheduled
tribes are included in the words "backward class of
citizens" in Art. 16(4) and that the word "Posts" in that
Article refers to posts in the services and not to posts
outside the services. I regret however that I have not been
able to persuade myself that Art. 16(4) permits reservation
even in grades within a particular service in case the
service has various grades in its cadre, and proceed to give
my reasons for the same.
Before I construe the words of Art. 16(4), I may state that
I am not unmindful of the fact that Art. 16(4) is a
constitutional provision and that constitutional provisions
are not to be interpreted in any narrow or pedantic sense.
At the same time it cannot be forgotten that Art. 16(4) is
in the nature of an exception or a proviso to Art. 16(1),
which is a fundamental right providing equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
This aspect of Art. 16(4) in my opinion inevitably requires
that the proviso or the exception should not be interpreted
so liberally as to destroy the fundamental right itself to
which it is a proviso or exception. The construction
therefore of Art. 16(4) cannot ignore this aspect of the
matter.
I now read Art. 16(4):
"Nothing in this article shall prevent the
State from making any provision for the
reservation of appointments or posts in favour
of any backward class of citizens which, in
the opinion of the State, is not adequately
represented in the services under the State."
Before I turn to the actual words used in the Article I must
refer to what I consider is implicit in that Article. The
Article provides for reservation of
608
appointments or posts and it seems tome obvious that it is
implicit in the Article that the reservation of
appointments or posts cannot go to the length of reserving
all appointments or posts or even to the length of reserving
a majority of them. The reason why I say that all
appointments or posts cannot be reserved under Art. 16(4)-
(though that would be the result if the widest possible
interpretation is given to the words used in the Article)-is
that if all appointments or posts could be reserved under
Art. 16(4) it would mean complete destruction of the
fundamental right guaranteed under Art. 16(1). It could not
be the intention of the Constitution-makers that the proviso
or exception in Art. 16(4) should be so used as to destroy
completely the fundamental right enshrined in Art. 16(1).
Nor do I think that it is permissible under Art. 16(4) to
reserve a majority of appointments or posts, for that again,
in my opinion, though it may not completely destroy the
fundamental right guaranteed under Art. 16(1) will certainly
make it practically illusory. Again it could not be the
intention of the Constitution-makers that Art. 16(4) should
be so interpreted as to make the fundamental right
guaranteed under Art. 16(1) illusory. I may in this
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connection refer to Art. 335, which occurs in Part XVI
dealing with Special Provisions relating to certain Classes,
which reinforces what I have said above. That Article
provides that "the claims of the members of the Scheduled
Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments
to services and posts in connection with the affairs of the
Union or of a State." Now the scheduled tribes and the
scheduled castes are included in the words "backward class
of citizens" used in Art. 16(4). Therefore in considering
the claims of, at any rate, a part of, those included in
Art. 16(4)-(and I presume the same will apply to the whole)
the maintenance of efficiency of administration must be kept
in mind, for the reservation provided in Art. 16(4) is to
meet the claims of the members of the
609
scheduled castes and the scheduled tribes. Reservation,
therefore, of all appointments or posts or even a majority
of them is certain to result in the impairment of efficiency
of administration and therefore what I consider as implicit
in Art. 16(4) is borne out also by the provision in Art.
335. It is in this background that the interpretation of
Art. 16(4) falls to be considered.
Turning now to the words in Art. 16(4), it appears to me
that the key words in that Article are "not adequately
represented in the services under the State." Obviously,
reservation can be made under this Article only if the State
comes to the conclusion that any backward class of citizens
is not adequately represented in the services under it. If,
for example, the State is of opinion that backward classes
are adequately represented in the services it can make no
reservation under Art. 16(4). What then is the meaning of
these key words in this Article? What these words require
is that reservation may be made in order to make the
representation of any backward class of citizens adequate in
the services. Does the word "adequate" imply only numerical
representation in the services or does it imply something
more than that? The three meanings of the word "adequate"
given in the Shorter Oxford English Dictionary are (i) equal
in magnitude and extent; (ii) commensurate in fitness,
sufficient, suitable; and (iii) fully representing (logic).
It seems to me that it is the second meaning (namely,
sufficient) which properly applies to the words "adequately
represented" as used in this Article. "Sufficient" has two
meanings: (i) Sufficing, adequate, esp. in amount or number
to the need, (ii) enough, adequate quantity. Therefore,
when Art. 16(4) says that reservation may be made in order
that any backward class of citizens may be adequately
represented in the services it means that reservation may be
made in order to make the number of any backward class
sufficient in the services under the State. These words do
not in my opinion convey any idea of quality and can only
mean sufficient quantitative representation in the services
under the State. If
610
the intention of the Constitution-makers was that there may
also be reservation in various grades in a particular
service where there are grades in the ser vice, I should
have expected different words being used in Art. 16(4) to
convey that meaning. These key words used in this Article
further convey the idea of representation in the services as
a whole, for there are no words which suggest that the
service should be broken up in case there are grades in it
for the purposes of adequate representation. The conclusion
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therefore at which I arrive is that these key words convey
the idea of adequate numerical representation for any
backward class of citizens in a particular service as a
whole and it is for this purpose alone that reservation can
be made of appointments or posts in the services.
This brings me to the question as to bow the reservation is
to be made. Art. 16(4) tells us that it may be made either
by reserving appointments to the services or reserving posts
in the services. Appointments in my opinion clearly mean
the initial appointments to a service, for a person is
appointed only once in a service and thereafter there is no
further appointment. Therefore, when the Article speaks of
reservation of appointments it means reservation of a per-
centage of initial appointments to the service. Posts refer
to the total number of posts in the service and when
reservation is by reference to posts it means reservation of
a certain percentage of posts out of the total number of
posts in the service. The reason why these two methods are
mentioned in this Article is also to my mind plain. The
method of reservation of appointments would mean that the
goal of adequate representation may be reached in a long
time. Therefore, in order that the goal. may be reached in
a comparatively shorter period of time, the Article also
provides for the method of reservation of posts. This will
be clear from an example which I may give. Suppose there
are 1,000 posts in a particular service and the backward
classes have no representation at all in that service. The
State considers it necessary that they should have adequate
representation in that
611
service. Suppose also that the annual appointments to be
made to the service in order to keep it at full strength is
thirty. Now the State if it chooses the method of
reservation of appointments will reserve a percentage of
appointments each year for backward classes. Now suppose
that percentage is fixed at ten per century. In order
therefore to reach the ten per centum of the total number of
posts in the service by the method of reservation of
appointments, the period taken would be roughly 34 years.
This period may be considered too long and therefore the
State may decide to adopt the other way, i.e., the reserva-
tion of posts; and suppose it is decided to reserve ten per
centum of the posts, i.e., 100 in all. It will then be open
to the State having reserved 100 posts in this particular
service for backward classes to say that till these 100
posts are filled up by backward classes all appointments
will go to them provided the minimum qualifications that may
be prescribed are fulfilled. Suppose further that it is
possible to get annually the requisite number of qualified
members of backward classes equal to the annual
appointments, the representation of the backward classes
will be made adequate in about four years. Once the
representation is adequate there will be no power left for
making further reservation. Thus by the method of reserva-
tion of appointments the representation is made adequate in
a long period of time while by the method of reserving posts
the representation is made adequate in a much shorter
period. That seems to be the reason why the Article speaks
of reservation of appointments as well as of posts.
It is however said that this construction of Art. 16(4)
makes the use of the word "posts" therein superfluous, and
that the same result of making the representation adequate
quickly could have been achieved if the word "appointments"
only had been used therein. I am of opinion that this is
not so and the use of the word "appointments" only in Art.
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16(4) would not have made it possible for the State to make
the representation of backward classes adequate in a short
space of time. In the example I have given the
612
representation of backward classes was made adequate in four
years by the method of reservation of posts; it would
however not have been possible to make the representation
adequate in this hypothetical case in such a short time if
the Article only provided for reservation of appointments.
I have already said that it is implicit in the Article that
reservation cannot be of all appointments or even of a
majority of them, for that would completely destroy the
fundamental right enshrined in Art. 16(1) to which Art.
16(4) is in the nature of a proviso or an exception or at
any rate make it practically illusory. Therefore, it would
not be open to the State to reserve all or even a majority
of the appointments for backward classes, if the word
"appointments" only had been used in Art. 16(4). Even if a
larger percentage than ten per centum were reserved for
backward classes in the matter of appointments in the
hypothetical case given by me it would not be possible to
reach the total of 100 posts for the backward classes in the
service in less than twice or thrice the time taken by the
method of reservation of posts, for the State could not
reserve all or even the majority of appointments in any
particular year, in view of what is implicit in Art. 16(4),
if the word " a appointments" only had been there. It seems
to me therefore that the use of the word "posts" in that
Article was with a purpose, namely, that by the method of
reservation of posts the inadequate representation may be
made adequate within a short space of time and the objection
that could be raised to the reservation of all appointments,
if only the word "appointments" had been used in the
Article, would no longer be available. It cannot therefore
be said that on the interpretation I have placed on Art.
16(4) the use of the word "posts" therein becomes
superfluous.
I have already said that if the intention was not only to
make reservation in the service as a whole whether by the
method of reserving appointments or by the method of
reserving posts but also to include reservation in various
grades in which a service may be divided, the words of Art.
16(4) would have been different. I may in this connection
refer to Art. 335
613
again, which lays down that the claims of the scheduled
castes and the scheduled tribes (which are part of backward
classes of citizens) shall be considered So,., consistently
with the maintenance of efficiency of administration. It
seems to me that reservation of posts in various grades in
the same service is bound to result, for obvious reasons, in
deterioration in the efficiency of administration; and
reading Art. 335 along with Art. 16(4) which to my mind is
permissible on the principle of harmonious construction (see
Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha (1)), it
could not be the intention of the Constitution-makers that
reservation in Art. 16(4), for at any rate a part of those
comprised therein, should result in the impairment of the
efficiency of administration. It also seems to me equally
obvious that what applies to a part of those comprised in
the words "any backward class of citizens" also applies to
the whole. Therefore, in the absence of clear words in Art.
16(4) which would compel one to hold that reservation was
meant to apply not only to the service taken as a whole but
also to various grades in which the service might be
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divided, I feel that an interpretation should not be given
which would result in the impairment of efficiency of
administration, which is jealously safeguarded even when
considering the claims of the scheduled castes and the
scheduled tribes. I am therefore of opinion that giving the
words used in Art. 16(4) as liberal an interpretation as is
possible without destroying or making illusory the
fundamental right guaranteed in Art. 16(1) to which Art.
16(4) is in the nature of an exception or a proviso, Art.
16(4) can only mean that the State has the power thereunder
to reserve numerically a certain percentage of appointments
or posts in the manner I have indicated above and it has no
power to split the service into various grades which might
exist in it and make reservation in each grade because of
the use of the word "posts" therein. I would therefore
dismiss the appeal but for different reasons.
(1) [1959] 1 S. C. R. 806, 859-60
78
614
AYYANGAR, J.-I regret that I cannot share the view of my
learned brethren expressed by Gajendragadkar, J. that the
appeal should be allowed and I agree with Wanchoo, J. that
the appeal should be dismissed and the order of the High
Court maintained.
The facts of the case have been set out in great detail in
the judgments already delivered and it is unnecessary to
repeat them.
Mr. Chatterji when he opened the appeal appeared to claim
that the scope and content of Art. 16(1) and of sub-Art. (4)
thereof were identical and that if Art. 16(1) guaranteed by
the use of the wide expression "matters relating to
employment", "equality of opportunity" in relation to
promotions also, Art. 16(4) should be construed to have the
same width. But this argument however he abandoned at a
later stage. The point therefore does not call for any
consideration and the judgments now delivered proceed on the
basis that the scope of the limitation on the equality of
opportunity which is provided in Art. 16(4) is not co-
extensive with the freedom guaranteed by Art. 16(1). The
only question therefore is in what respect is Art. 16(4)
narrower than Art. 16(1). In considering this the rule of
construction should be borne in mind that a restriction on a
guaranteed freedom should be narrowly construed so as to
afford sufficient scope for the freedom guaranteed.
The judgment of the learned Judge now under appeal proceeds
on the basis that the expression "Posts" in Art. 16(4) was a
reference to what are termed in service parlance ’ex-cadre
posts’ and not posts in the service. Mr. Chatterji’s
submission was that the learned Judge had no basis for
importing the nomenclature and the classifications to be
found in Part XIV into Part III dealing with fundamental
rights. In particular, Mr. Chatterji quarrelled with the
statement by the learned Judge that the expression
appointments and posts’ occurring in Art. 16(4) were
"virtually terms of art which had to be interpreted and
understood in the light of the legislative history of the
constitutional enactments that
615
preceded the Constitution, and in consonance with the scheme
that underlies the provisions of the Constitution, which
have reference to the civil services’ and civil servants in
this country." Mr. Chatterji’ further pointed out that the
learned Judge went wrong in observing that "The expressions
appointments and posts in Art. 16(4) have really to be read
as appointments to services and appointments to posts" on
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the ground that the words used in Art. 16’4) were merely
"appointments and posts" and not "appointments to services"
etc., the latter occurring only in Part XIV. It was,,
however, common ground that if the learned Judge was right
in considering that "appointments" in Art. 16(4) meant
"appointments to services," the notification now impugned
should be held to be unconstitutional.
Mr. Chatterji did not dispute that when the expressions
’appointments to services and appointments to posts’
occurred in Ch. XIV vide for instance in Arts. 309, 311,
etc., being phrases borrowed from statutory provisions of
the Government of India Act, 1935, the expression
’appointment to a post’ designated an ’ex-cadre post’. The
submission, however, of learned Counsel was that there was
no justification for importing the phraseology employed in
Part XIV in Art. 16(4), notwithstanding that Art. 16 dealt
with equality of opportunity for employment in the services
of the State and sub-Art. (4) was concerned with the
reservation of appointments in Services under the State.
His submission was that Art. 16(4) had no legislative
precedent in the previous constitutional enactments to
justify the importation of service rules and service jargon
as an aid to its construction.
My learned Brothers have acceded to this submission of Mr.
Chatterji. With great respect to them I consider that the
view of the learned Judge of the High Court is correct. In
the first place, the Article being one concerning the right
to be employed in the Services of the State, one has
necessarily to turn on the relevant provisions in relation
to the Services to discover the precise import of the
expressions used in relation to the Services. Besides, we
are not left in
616
doubt as to the inter-connection between Art. 16 and Part
XIV dealing with Services, because Art. 335 forms, as it
were, the link between Part XIV and the provisions for
reservation in favour of the backward communities in Art.
16(4) Betting out as it does the principles that should
guide the State in the matter of reservation in the Services
which could obviously be only a reference to that provided
for by Art. 16(4). Art. 335 runs:
"The claims of the members of the Scheduled
Castes and Scheduled Tribes shall be taken
into consideration, consistently with the
maintenance of efficiency of administration,
in the making of appointments to services and
posts in connection with the affairs of the
Union or of a State."
In this Article, at any rate, it cannot be contended, and I
did not understand Mr. Chatterji to contend, that ’Posts’
had any reference to ’posts in the services.’ If it were so
then in my judgment it would follow that the phraseology
employed in this Article which deals with the same subject
as that dealt with by Art. 16(4) throws light on and
explains the meaning of the expression ’posts’ in Art.
16(4). It is only necessary to add that Art. 320(4) which
runs:
"Nothing in clause (3) shall require a Public
Service Commission to be consulted as respects
the manner in which any provision referred to
in clause (4) of article 16 may be made or as
respects the manner in which effect may be
given to the provisions of article 335."
to which learned Counsel for the respondent drew our
attention indicates, if other indication were necessary.,
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that Arts. 16(4) and 335 have to be read together and not as
if the ’posts’ referred to in Art. 335 indicated a different
idea or connoted a different concept from the same word used
in Art. 16(4).
Even if the above view were wrong and the expression ’Posts’
were intended to designate not ’ex-cadre posts’ but ’posts
in the service,’ I am unable to hold that the appellant
derives any advantage. As my learned Brother Wanchoo, J.
has pointed out, the crucial words in Art. 16(4), and which
form as it were
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the key to its interpretation, from which the power of the
State to make the reservation stems, are that a class of
citizens "is not adequately represented in the Services of
the State." The action permitted to be taken to redress this
inadequacy is by reservation of appointments and posts. If
by the expression ’posts’ are meant ’posts in the service.
itself’ I feel unable to attribute to the expression ’posts’
any special significance beyond an appointment to the
service. Every appointment in a service must be to "a post"
in a service, because there cannot be an appointment in the
air but can only be to a "post" in a service. In that
sense, in my view, the expression ’post’ would be really
redundant unless, of course, as I have said earlier, it
meant not posts in a service but ex-cadre posts.
There is also one other aspect to which I might advert. In
some of the top grades there are single posts in the
Service. If at any point of time the incumbent is not a
member of the backward class, it would certainly be a case
of inadequate representation as regards that post which
would mean that such posts which are single may be reserved
for all time to be held by members of the backward classes,
because if at any moment such a person ceases to hold the
post there would be inadequate representation in regard to
that post. I have drawn attention to this because it
pointedly demonstrates that the correct view is that when
"inadequacy of representation" is referred to in Art. 16(4)
as justifying a reservation, the only rational and
reasonable construction of the words are that it refers to a
quantitative deficiency in the representation of the
backward classes in the service taken as a whole and not to
an inadequate representation at each grade of service or in
respect of each post in the service.
Besides, even on the footing that "posts" mean posts in the
Services, Art. 16(4) properly construed in the light of Art.
335 of the Constitution whose inter. action has been
discussed in great detail by Wanchoo, J. in the judgment
just now pronounced with which entirely agree, contemplates
and permits
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reservation only in respect of appointments to Services at
the initial stage and not at each stage even after the
appointment has taken place.
There is one other matter also which I consider relevant in
this context. Under Art. 16(4) the State is enabled to make
provision for the reservation of appointments if in their
opinion certain backward classes of citizens are not
adequately represented in the Service. The Article
therefore contemplates action in relation to and having
effect in the future when once the State forms the opinion
about the inadequacy of the Service. If an inadequacy
exists today, to give retrospective effect to the
reservation, as the impugned notification has done, would be
to redress an inadequate representation which took place in
the past by an order issued today. In my judgment that is
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not contemplated by the power conferred to reserve which can
only mean for the future. As this point however has not
been argued I do not desire to rest my judgment on it, but
have mentioned it to draw attention to another feature of
the notification which deserves consideration.
I would therefore dismiss the appeal with costs.
By COURT: In accordance with the opinion of the majority the
appeal is allowed; the decision of the High Court under
appeal is reversed and the respondent’s application for a
writ is dismissed. There will be no order as to costs.
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