Appeal No 341 of 1960
Appeal from the judgment and order dated March 31960 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 section Mohan Kumaramangalam M K Ramamurthy R K Garg and T section Venkataraman for the respondent and the intervener
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 article 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 article 1321 of the Constitution as it involved a substantial question of law namely the scope of article 164 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 article 164
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 75 590 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
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 article 164
He alleged that a reading of articles 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 article 164 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 article 164 and as such contravened article 161
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 article 164 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 article 164
The appellants  case was that the safeguards provided by article 164 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 article 164
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 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 121959 another circular was issued giving guidance and directions as to how the earlier circular should be implemented
This circular directed inter alia by paragraphs 2ii and 2iii as follows 2ii
The Special Rosters in force for section C  section T in direct recruitment categories are to be followed to work out the number of posts to be reserved for section C  section T in promotions made in Selection Grades and for promotion from Class IV to Class 111
2iii
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 DivisionOffice from 4th January 1957 are reviewed and the number of posts due to section C  section 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 section Cs
and section 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 article 161 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 article 161 and 2 though they differed as to whether they were included in article 164
It would be immediately noticed that the respondent s petition postulates the inclusion of promotion in article 161 and 2 for it is on that assumption that he challenges the validity of the impugned circulars
Similarly the appellants  defence postulates that article 161 and 2 as well as article 164 refer to cases of promotion for it is on the basis that article 164 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 in contending that the guarantee afforded by article 161 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 article 161 and 2
However we would briefly indicate our reasons for accepting the concession made by the parties that promotion is included in article 161 and 2
Article 161 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 article 161 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 article 161
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 article 161 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 161 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 article 161 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 article 161 illusory
In that case it would be open to the State  to comply with the formal requirements of article 161 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 article 161 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 article 161
Such a result could not obviously have been intended by the Constitution
In this connection it may be relevant to remember that article 161 and 2 really give effect to the equality before law guaranteed by article 14 and to the prohibition of discrimination guaranteed by article 151
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 162 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 article 161
Discrimination is a double edged weapon it would operate in favour of some persons and against others and article 162 prohibits discrimination and thus assures the effective enforcement of the fundamental right of equality of 76 598 opportunity guaranteed by article 161
The words in respect of any employment used in article 162 must therefore include all matters relating to employment as specified in article 161
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 article 161 and 2
Broadly stated the Bombay and the Patna High Courts sup  port the concession made by Mr Sen Vide Pandurang Kashinath More vs The Union of India1 Sukh nandan vs State 2  whereas the Allahabad High Court is against it vide Moinuddin vs 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 article 161 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 article 161 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 163 provides for one exception to the provisions of article 161 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 ILR 2 Pat
3 AIR 1960 All 484
4 Union of India vs Pandurang Kashinath More
599 That takes us to article 164
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 article 164 the respondent is no doubt entitled to contend that this sub Article in substance provides for an exception to the fundamental rights guaranteed by article 161 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 154 which provides inter alia for an exception to the prohibition of discrimination on grounds specified in article 151 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 article 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 article 164
On one point in relation to the construction of article 164 the parties are in agreement
It is common ground that article 164 does not cover the entire field covered by article 161 and 2
Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by article 161 and 2 do not fall within the mischief of non obstantive 600 clause in article 164
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 article 164
That is why we have just observed that part of the ground covered by article 161 and 2 is admittedly outside the scope of article 164
The point in dispute is Is promotion to a selection post which is included in article 161 and 2 covered by article 164 or is it not It is on this point that there is a sharp controversy between the parties
Before construing article 164 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 article 164 ignores the fact that there can be no legislative history for the provisions of article 164 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 article 3101 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 article 3111 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 article 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 section 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 article 164 indicate That is the next question which we must consider
Article 164 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 article 164 and so the power to make reservation as contemplated by article 164 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 article 164 refers and in respect of which 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 article 164 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 article 164 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 article 164
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 article 164
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 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 article 164 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 article 164
604 The condition precedent for the exercise of the powers conferred by article 164 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 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 article 164
Therefore we are disposed to take the view that the power of reservation which is conferred on the State under article 164 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 article 164
It is true that in providing for the reservation of appointments or posts under article 164 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 article 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 article 164 is intended merely to give adequate representation to backward communities
It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees
In exercising the powers under article 164 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 article 164 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
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 article 161 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 article 164 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 article 164 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 article 164 I may state that I am not unmindful of the fact that article 164 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 article 164 is in the nature of an exception or a proviso to article 161 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 article 164 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 article 164 cannot ignore this aspect of the matter
I now read article 164 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 article 164 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 article 164 it would mean complete destruction of the fundamental right guaranteed under article 161
It could not be the intention of the Constitution makers that the proviso or exception in article 164 should be so used as to destroy completely the fundamental right enshrined in article 161
Nor do I think that it is permissible under article 164 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 article 161 will certainly make it practically illusory
Again it could not be the intention of the Constitution makers that article 164 should be so interpreted as to make the fundamental right guaranteed under article 161 illusory
I may in this connection refer to article 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 article 164
Therefore in considering the claims of at any rate a part of those included in article 164 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 article 164 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 article 164 is borne out also by the provision in article 335
It is in this background that the interpretation of article 164 falls to be considered
Turning now to the words in article 164 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 article 164
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 article 164 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 article 164 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 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
article 164 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 1000 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 ie the reserva tion of posts and suppose it is decided to reserve ten per centum of the posts ie 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 article 164 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 article 164 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 article 161 to which article 164 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 article 164
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 article 164 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 article 164 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 article 164 would have been different
I may in this connection refer to article 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 article 335 along with article 164 which to my mind is permissible on the principle of harmonious construction see Pandit M section M Sharma vs Shri Sri Krishna Sinha 1 it could not be the intention of the Constitution makers that reservation in article 164 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 article 164 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 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 article 164 as liberal an interpretation as is possible without destroying or making illusory the fundamental right guaranteed in article 161 to which article 164 is in the nature of an exception or a proviso article 164 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  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 article 161 and of sub article
4 thereof were identical and that if article 161 guaranteed by the use of the wide expression matters relating to employment equality of opportunity in relation to promotions also article 164 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 article 164 is not co extensive with the freedom guaranteed by article 161
The only question therefore is in what respect is article 164 narrower than article 161
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 article 164 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 article 164 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 article 164 have really to be read as appointments to services and appointments to posts on the ground that the words used in article 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 article 164 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 articles 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 article 164 notwithstanding that article 16 dealt with equality of opportunity for employment in the services of the State and sub article
4 was concerned with the reservation of appointments in Services under the State
His submission was that article 164 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 article 16 and Part XIV dealing with Services because article 335 forms as it were the link between Part XIV and the provisions for reservation in favour of the backward communities in article 164 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 article 164
article 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 article 164 throws light on and explains the meaning of the expression posts  in article 164
It is only necessary to add that article 3204 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 that articles 164 and 335 have to be read together and not as if the posts  referred to in article 335 indicated a different idea or connoted a different concept from the same word used in article 164
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 article 164 and which form as it were 617 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 article 164 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 article 164 properly construed in the light of article 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 618 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 article 164 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 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


Summary:
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 article 164 applied only to reservation of posts at the stage of appointment and not to posts for promotions after appointment and therefore the circulars which fell 587 outside the scope of article i64 and contravened article i61
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 article 164 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 article i64 and were ultra vires
Held per Gajendragadkar Sarkar and Das Gupta JJ that the impugned circulars were well within the ambit of article 164 Of the Constitution and the appeal must succeed
Articles 16i and 162 of the Constitution are intended to give effect to article 14 and article 151 Of the Constitution and these Articles form parts of the same constitutional code of guarantees and supplement each other
Article 16i 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 Art164 which in substance is an exception to articles 161 and 162 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 article 164 though not as extensive as that of article 161 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 164 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 article 335 of the Constitution
Per Wanchoo J Article 164 which is in the nature of an exception or proviso to article 161 cannot be allowed to nullify equality of opportunity guaranteed to all citizens by that Article
Article 164 implies as borne out by article 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 article 164 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 164 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 article 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 article 164 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 article 335 article 164 can only refer to appointments to the services at the initial stage and not at different stages after the appointment has taken place
Article 164 contemplates prospective reservation of appointments and posts and does not authorise retrospective reservation