Appeal No 1218 of 1968
Appeal from the judgment and order dated November 29 1966 of the Punjab High Court in Civil Writ No 271 of 1966
M C Setalvad and R N Sachthey for the appellant
The respondent did not appear
268 The Judgment of the Court was delivered by Hegde J
On September 12 1963 the Government of Punjab passed the following order  Subject  Reservation for the members of Scheduled Castes Scheduled Tribes and Backward Classes in promotion cases
Sir I am directed to refer you to the subject noted above and to say that at present reservation for Scheduled Castes Scheduled Tribes and other Backward Classes is applicable to new appointments and not to promotions which are governed by consideration of merit and seniority alone
Since those castesclasses are poorly represented in various services in the upper grades under the State Govt it has been under the active consideration of Government that some reservation in higher grade posts as well should be made for them
It has now been decided that except in the case of All India Services 10 per cent of the higher posts to be filled by promotion should be reserved for the members of Scheduled Castes Scheduled Tribes and Backward Classes 9 per cent for the  members of Scheduled Castes and Scheduled Tribes and 1 per cent for the Backward Classes subject to the following conditions  a the persons to be considered must possess the minimum necessary qualification and b they should have at least a satisfactory record I of service Up till that date reservation for Scheduled Castes
Scheduled Tribes and Backward Classes was confined to initial recruitment
The first out of every five initial recruitments was reserved for Scheduled Castes Scheduled Tribes or other Backward Classes
On January 14 1964 the Government clarified its order dated September 12 1963
In this case we are not concerned with the first paragraph of that clarification
The second paragraph of that clarification reads thus  Government have since been receiving references from several quarters seeking clarification in regard to the implementation of the said decision
After careful consideration of the matter it has now been decided that  a The said decision should be applied to all promotion posts already vacant on 12th September 1963 or falling vacant thereafter
269 b The reservation should not imply that 10 per cent of the total posts reserved for promotion in any cadre have to be filled by Scheduled Castes personnel in the sense that all existing future vacancies will be filled up by Scheduled CastesTribes and other Backward Classes candidates until their share in higher services comes up to 1 0 per cent
c This provision of reservation applies to all State
services including Class 1 II III and IV posts the only exception being All India Services
d This reservation should apply even in the case of short term leave vacancies unless it is likely to involve unnecessary dislocation of work in different offices and avoidable expenditure and inconvenience due to mid year transfers etc
e So far as Scheduled CastesTribes are concerned the very first vacancy existing onarising after the 12th September 1963 should retreated as reserved for them and only if no such official is available for promotion against the vacancy reserved for them in the first block of 10 vacancies a candidate belonging to other Backward Classes may be selected in preference to the remaining officials against one such post only out of one hundred since the reservation for other Backward Classes may not exceed I per cent
However if Sheduled Castes Tribes candidates are available to fill one out of every ten vacancies the specific reservation in favour of other Backward Classes should be the 51st vacancy
f One reserved vacancy should be carried over to the next block of ten vacancies in case it cannot be filled up within any block of ten posts
Thus if no Scheduled CastesTribesBackward Classes candidate is promoted against any of the first 10 vacancies the number of vacancies available to such candidates in the following block will betwo
g In case an out of turn promotion has already been given to a candidate belonging to Scheduled CastesTribes or Backward Classes against a reserved vacancy and then in the same block it happens to be the turn of a candidate belonging 270 to the said castesclasses for promotion such candidate should not be ignored on the ground that 10 per cent reservation has already been exhausted Thereafter by another letter of March 18 1964 the Government issued further clarification of their aforementioned com munications
That clarification reads To illustrate the above point if there is an official of the Scheduled Castes placed at a position say 73rd in a list prepared for promotion to the higher parts and a vacancy arises therein he would have precedence over the other 72 officials to benefit out of the first vacancy that occurs on or after 12th September 1963
Ms turn would not be withheld merely for the fact that his number on the select list is not in the first ten Respondents Nos 1 and 3 to this appeal were both working in the Forest Department of the Government as Head Assistants
Respondent No 1 was senior to Respondent No 3 Respondent No 3 belonged to a Scheduled Caste
Hence in view of the order of the Government Respondent No 3 was promoted tem porarily as Superintendent ignoring the claim of Respondent No 1 Aggrieved by that order Respondent No 1 moved the High Court of Punjab to quash the promotion of Respondent No 3 and direct the Government to promote him as Superin tendent in the place of Respondent No 3
The High Court has quashed the promotion of Respondent No 3
The State of Punjab now substituted by the State of Haryana has brought this appeal after obtaining a certificate from the High Court under article 1331c of the Constitution
In the opinion of the High Court reservation made for the Scheduled Castes Scheduled Tribes and Barckward Classes is not impermissible under the Constitution in view of article 164 of the Constitution as interpreted by this Court in The General Manager Southern Railway vs Rangachari1 But the Government has violated article 161 by reserving the first out of a group of 10 posts for the Scheduled Castes Scheduled Tribes and Backward Classes
The High Court was persuaded by the Counsel for the first respondent to visualise various hypothetical cases under which reservation of the type impugned in the present case could lead to various anomalies such as the person getting the benefit of the reservation may jump over the heads of several of his Seniors not only in his own grade but even in the higher grades
They visualised the possibility of Head Assistant leaping over the heads of several seniors of his in the grade of Head 1 1962 2SCR586
271 Assistants and thereafter in the grade of Superintent subsequently in the grade of Under Secretaries Deputy Secretaries and so on and so forth
It is not the finding of the High Court that in any of the grades to which the impugned orders apply the possibilities visualised by the High Court are imminent or even likely
article 161 is an extension of article 14
It provides There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State But the equality contemplated by this clause is not an embo died equality
It is subject to several exceptions and one of the exceptions is that provided in article 164 which says  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 Rangachari s case1 this Court ruled that the reservation contemplated by article 164 can be made not merely to initial recruitment but also to posts to which the promotions are to be made
This is what Gajendragadkar J as he then was speaking for the majority observed at pp 604  605  We must in this connection consider an alternative argument that the word posts must refer not to selection posts but to posts filled by initial appointments
On this argument reservation of appointments means re servation 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 1 1962 2SCR586
272 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 re gard to appointments which are initial appointments but also in regard to selection posts which may fall to be find 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 provided 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 markers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services
 The extent of reservation to be made is primarily a matter for the State to decide
By this we do not mean to say that the decision of the State is not open to judicial
review
The reservation must be only for the purpose of giving adequate representation in the services to the Scheduled Castes Scheduled Tribes and Backward Classes
The exception provided in article 164 should not make the rule embodied in article 161 meaningless
But the burden of establishing that a particular reservation made by the State is offensive to article 161 is on the person who takes the plea
The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad
The length of the leap to be provided depends upon the gap to be covered
As observed by the majority in Rangachari s case1  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 1  273 not only that they should have adequate representation in the lowest rung of services but that they should aspires 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
 It is true that every reservation under article 164 does in troduce an element of discrimination particularly when the question of promotion arises
It is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors
This circumstance is bound to displease the senior officers
It may also be that some of them will get frustrated but then the Constitution makers have thouht fit in the interes s of the society as a whole that the backward class of citizens of this country should be afforded certain protection as observed by this Court in A Peeriakaruppan etc
V State of Tamil Nadu1 It cannot be denied that unaided many sections of this country cannot compete with the advanced sections of the Nation
Advantages secured due to historical reasons should not be considered as fundamental rights
Nation s interest will be best served taking a long range view if the backward classes are helped to march forward and take their place in line with the advanced sections of the people
 There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of article 161
Reservation of appointments under article 164 cannot be struck down on hypothetical 1 1971 2 SCR430
807Sup
CI71 274 grounds or on imaginary possibilities
He who assails the reservation under that article must satisfactorily establish that there has been a violation of
article 161
For the reasons mentioned above this appeal is allowed and the order of the High Court set aside
Respondent No 1 who was the petitioner before the High Court is not represented before this Court
In the circumstances of this case we make no order as to costs
V P section Appeal allowed


Summary:
The appellant State issued an Order according to which reservation of posts for Scheduled castes
tribes and backward classes was made applicable not only to initial recruitment but also to promotions
Respondents 1 and 3 were in the State Government service and the former was the senior
But since the latter belonged to a scheduled caste he was promoted over
the first respondent as per the Order
The High Court quashed the promotion on the basis that such reservation might lead to various anomalies
In appeal to this Court HELD  Article 161 provides for equality of opportunity to all citizens in relation to appointment to any office in the service of the State subject to the exception in article 164 that the State may make reservations in favour of backward classes
The reservation contemplated by article 164 can be made not merely to initial recruitment but also to Posts to which promotions are to be made
Every such reservation under article 164 does introduce an element of discrimination and promotion of junior officers over seniors but the Constitution makers thought fit in the interests of society as a whole that backward classes should be afforded some protection
If however the reservation under article 164 makes the rule in article 161 meaningless the decision of the State would be open to judicial review but the burden of establishing that a particular reservation is offensive to article 161 is on the person who takes the plea
271 C E 272 D G 273 D F In the present case there was no material from which it could be concluded that the impugned Order violated article 161
The reservation could not be struck down on hypothetical grounds or on imaginary possibilities
273 H General Manager Southern Railway vs Rangachari  and A Peeriakarupan etc
vs State of Tamil Nadu 1971 2 SCR 430 followed