Case: Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented Vs. Union of India and Others

The Backdrop        3. The social backdrop to the forensic problem raised in this litigation is best projected by lines of poetry quoted in Nehrus Autobiography:"Bowed by the weight of centuries he leans        Upon his hoe and gazes on the ground,        The emptiness of ages on his face,        And on his back the burden of the world."The Problem        4. The dynamics and dialectics of social justice vis a vis the special provisions of the Constitution calculated to accelerate the prospects of employment of the harijans and the girijans in the civil services with particular emphasis on promotions of these categories in the Indian Railways that, in all these cases, is the cynosure of judicial scrutiny, from the angle of constitutionality in the context of the guarantee ofe equality to every person.        Petitioners Challenge        5. The gravamen of the constitutional accusation levelled in this bunch ofs action s under Art. 32 of the Constitution and argued by a battery of counsel led by Shri Shanti Bhushan, with heat and light, passion and reason, is the heartless discrimination shown against vast numbers of members employed by the Railway Administration through its policy directives, by bestowal of unconscionably pampering concessions, at promotion levels, on these social brackets belonging to the historically suppressed SCs &STs, heedless ofoveralladministrative efficiency in the Indian Railways and frustrating the promotional hopes of the larger human segments of economically downtrodden senior members. Thet of this benign discrimination of helping out the weakest sections has been to blow up, out of all proportion to the social realities, the backwardness syndrome so as embrace many politically powerful castes disguised as Backward Classes. This constitutional amulet, rooted largely in caste, the petitioners lament, has been misused and applied in educational and employment fields on an escalating scale. The perverted result is that an nation is a spectre that haunts the land, pushing back the patriotic prospect of a homogenised Indian Society of casteless equality and projecting instead the divisive alternative of a heterogeneous caste map of Bharat. The fundamental failure of this sterile scheme of reservation wise circumvention of the fundamental right to equality, ideologically and pragmatically speaking, has deepened the pathological condition of communalism besetting the Indian polity and split thes into snarlinga consummation disastrously contrary to the constitutional design of abolition of socioeconomic inequality through activist stratagem of equalisation geared to actual attainment of integrated equality.        6. Logically, the argument leads to the formulation that each caste and community is bargaining politically for bigger bites of thet cake so much so merit becomes irrelevant or takes a back seat and backward birth brings a boon. The constitutional stultification of an integrated India through misuse of reservation power provided for in Arts. 15 and 16 meant for the direct dalits the pollution, by the political Executive, of our founding creed of an egalitarian order by playing casteification politics and the morbid dilution of backwardness marring the dream of a secular republic by the nightmare of a feudal vivisection of thef this picture drawn by some counsel be true, even in part, the basic task of transforming the economic order through social justice will be baulked through destructive communal disputes among the masses. Maybe, this may weaken the social revolution, leave an indelible stain and incurable wound on the body politic and justify the censure by history of the engineers of our political power and electoral processes.

Reasoning:
87. One may easily sympathise with holders of nonselection posts. They are many in number in the lower stations of life. They are economically backward and burdened with the drudgery of life. That is why there is a ballyhoo raised by a larger number of people when some categories in far more distressing social situations en ter the arena with preferential treatment. Looking at the problem from the point of view of law and logic and the constitutional justification under Art. 16(4) for reservation in favour of the panchama proletariat there is nothing to strike down in Annexure K. As between the socially, even economically depressed and the economically backward, the Constitution has emphatically cast its preference for the former. Who are we, as Judges to question the wisdom of provisions made by Government within the parameters of Art. 16(4)? The answer is obvious that the writ of the court cannot quash what is not contrary to the Constitution however tearful the consequences for those who may be adversely affected. The progressive trend must, of course, be to classify on thet basis but the SC/ST, category is, generally speaking, not only deplorably poor but also humiliatingly pariah in their lot. Maybe, some of the forward lines of the backward classes have the best of both the words and their electoral muscle qua caste scares away even radical parties from talking secularism to them. We are not concerned with that II dubious brand. In the long run, the recipe for backwardness is not creating a vested interest in backward castes but liquidation of handi caps, social economic, by constructive projects. All this is in another street and we need not walk that way now.Trite arguments about efficiency and inefficiency are a trifle phoney because, after all, at the higher levels the harijan/girijan appointees are a microscopic percentage and even in the case of Classes III and II posts they are negligible. The preponderant majority coming from the well reserved communities are presumably efficient and the dilution of efficiency caused by the minimal induction of a small percentage of reserved candidates cannot affect theoveralladministrative efficiency significantly. Indeed, it will be gross exaggeration to visualise a collapse of the Administration because 5 to 10% of the total number of officials in the various classes happen to be. Moreover, care has been taken to givee training and coaching to correct the deficiency88. It is fashionable tod there is, perhaps, some truth in itthat from generation to generation there is a deterioration in efficiency in all walks of life from politics to pedagogy to officialdom and other professions. Nevertheless, the world ha s been going forward and only parties whose personal interest is affected forecast a doom on account of progressive deficiency in efficiency. We are not impressed with the misfortune predicted about governmental personnel being manned by morons merely because a sprinkling of harijans/girijans happen to find their way into the Services. Their apathy and backwardness are such that in spite of these favourable provisions, the unfortunates have neither the awareness nor qualified members to take their rightful place in the Administration of the country. The malady of modern India lies elsewhere, and thes are greater risks in many respects than the naive tribals and the slightly better off low castes. Nor does the specious plea that because a few harijans are better off, therefore, the bulk at the bottom deserves nop provisions merit scrutiny. A swallow does not make a summer. Maybe, the State may, when social conditions war rant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethrenWe have adverted to Annexure M earlier in this judgment which shows the determination of Government to imparte training to those SC&T candidates who are found to be below par. Even temporary promotions on an ad hoc basis are limited to six months only to give training and experience than the spoil permanently the efficiency of the system. The Annexure has come under attack because the reservation quota has been raised thereby from 50 to. We have earlier discussed this aspect and pointed out that what is important is not so much the figures mentioned on paper but the facts and circumstances in real life. We have also entered a caveat that in any particular year there shall not, as a fact, be a substantial increase upon 50% of induction of reserved candidates. It is true that Shri Venugopal, counsel for some of the petitioners tried to demonstrate that on account of reservation percentages coupled with the carry forward rule it is perfectly within the realm of possibility that in some years a monopoly may be conferred on the SC&T candidates f or certain categories or classes of posts. The mystic "maybe" do not scare us. The actual "must be" will alert us. The Constitution deals with social realities, not speculative possibilities. I have limited the physical operation of reservation in any particular year in such a manner that there will be a real opportunity for the exercise of the right under Art. 16(1) for every candidate of the unreserved communities89. Certain minor attacks such as that a candidate o f the SC&T communities who has failed may still be tried if other successful candidates from those communities are not forthcoming. This may seem strange disbelief in examinations as measure of merit. But to read stray provisions in isolation may be unfair to the scheme. Look at the desperate State in which Government is trying to give fair representation to harijans/girijans in Administration. These miserables suppressed by centuries of trampling are still slumbering despite inducements to awaken. It is a genetic calumny and unscientific assertion to castigate the SC&T communities as possessed of less intellectual potential what with Valmiki and Vyasa to Baba Sahib Ambedkar. The darkening and be numbing environment of ages in which shudras and panchamas have suffered their mental powers to be chained accounts for their seeming, retardation. Once brighter atmosphere and better opportunity enliven their talent their contribution to the Indian treasury will raise the human resources and democratic status of Bharat. A democracy of talent is an inarticulate major premise of our culture. The fundamental question arises as to what is "merit" and "suitability". Elitists whose sympathies with the masses have dried up are, from the standards of the Indian people, least suitable to run Government and least meritorious to handle state business, if we envision a Service State in which the millions are the consumers. A sensitized heart and a vibrant head, tuned to the tears of the people, will speedily quicken the developmental needs of the country, including its rural stretches and slum squalour. Sincere dedication and intellectuale are some of the major components of "merit" andt degrees from Oxford or Cambridge, Harvard or Stanford or simian, though Indian, institutions. Unfortunately, the very orientation of our selection process is distorted and those like the candidates from the SC&T who, from their birth, have had a traumatic understanding of the conditions of agrestic India have, in one sense, more capability than those who have lived under affluent circumstances and are calIous to the human lot of the sorrowing masses. Moreover, our examination system makes memory the master of merit and banishes creativity into exile. We need not enter these areas where a fundamental transformation and a radicaln even in the assessment of the qualities need ed by the personnel in the Administration and the socialist values to be possessed by the echelons in office is a consummation devoutly to be wished. This may have to be subjected to a national debate. The colonial hangover still clings to our selection processes with superstitious tenacity and narrower concepts of efficiency and merit are readily evolved to push out Gandhis and J.Ps, Ambedkars and Nehrus, to mention but a few who knew thes of the people. I diva gate and make these observations only to debunk the exaggerated argument about harijans and girijans being. We may put aside this angle of vision and approach the problem traditionally because every new idea has resistance to encounter before acceptance, every original thought has been branded a hearsay. Be that as it may, the constitutional merits of the various Board Circulars now discussed do not warrant their judicialt to certain cautionary limitation s already indicated.The argument that there are rich and influential harijans who rob all the privileges leaving thel sufferers as suppressed as ever. The Administration may well innovate and classify to weed out the creamy layer of SC&T but the court cannot force the State in that behalf90. For a comparative thought we may glance at Polyvious The Equal protection of the laws: (The equal protection of the laws by G. Polyviou p. 360.)"A third argument traditionally employed against the use of preferential discrimination is that affirmative measures of the kind discussed here may significantly curtail efficiency. It does indeed stand to reason that the immediate result of benignity in admission and selection process will almost certainly be the selection of those who are not as competent or as able as some of those left out. Special admission programmes, almost by definition, operate to in sure that students are placed in schools for which they are not qualified ! The same objection applies with equal, if not more, force to the area of employment and elsewhere. One possible answer is that the importance of efficiency must be compared with and ultimately set against the significance of integration or the prevention of discrimination, and that integration and the rectification of socially harmful deprivation are the mo re pressing needs. Or one can fall back on the very different arguments that traditional admission processes are unfair because these are geared to the usual type of applicant and that preferential treatment after all only seeks to counteract such inherent bias."91. There is a human problem behind these writ petitions which we clearly appreciate. Most of the Classes II, III and IV employees are economically backward and struggle for survival what with price spirals and other tribulations. They hope, after years of yeomen service, to get some promotion and augment their poor resources in the afternoon of their life. Then they find another class, with which the Constitution shows ultra sympathy, elbowing them out, not on a massive scale, but minimally. Even this marginal push hurts these species living at subsistence level and so they scream. The economically backward and they backward truly belong to the camp and must jointly act to bring about a transformation of the economic order by putting sufficient pressure and make Art. 38 a living reality. Estrangement between the two categories weakens the militancy of a joint operation to inject social justice in the current economic order. The truth is that the employment market is distressingly a musical chair business and when starvation faces men their sympathy for their far weaker brethren vanishes. The true solution for the countrys problems, as reflected in these writ petitions, is in developmental expansion involving the millions, rather than denial to the weakest sector of Indian life the morsel to which it is justly entitled. Even Administration will do well to remember that Indian despair, after infinite patience, may augur danger unless the sorry scheme of things entire is remoulded nearer to Art. 38. Even these observations are made only to emphasise that the legal content of the contentions put forward by the petitioners is less than presentable although their economic grievance may be agonisingly genuine. The Court has its limitations unlike the Administration and can give justice only under the Constitution and not over it.The human pressure behind these writ petitions is the chronic drought of employment opportunities despite talent enough to make deserts bloom. So long as this scarcity persists and power goes with office, the jaundiced politics of snatching the jobs going, initially or at promotion level, by hook or crook, is the only development that takes place, whatever the National Plans proclaim. The vast human potential of the harijans and girijans,h of the Indian people, goes to thistles and every communal effort to twist the politics of power for promoting chances of getting jobs becomes inevitable caste being a deeprooted pathology in our country. Thus jobbery, politics, casteism and elections make an unholy, though invisible, alliance against national development which alone can liberate Indians from social and economic privation. If democracy itself thus plays into the hands of hostile forces, the jurisprudence of keeping the backward as backward and perpetuation of discrimination as a vested caste right may prevail as a rule of life92. The remedy of reservations to correct inherited imbalances must not be an overkill. Backward classes, outside the Scheduled Castes and Tribes, cannot bypass Art. 16(2) save where very substantial cultural and economic disparity stares at society. The dubious obsession with backwardness and the politicking with castes labelled backward classes may, on an appropriate occasion, demand judicial examination. The politics of power cannot sabotage the principles of one man, one value. No sociological explanation for the flood of ruinous writ petitions regarding service conditions can be found except on this basis. Behind the writ petitions we deal with now is caste clamour to keep all the jobs safe from being robbed by reserved communities. It is forward caste versus backward caste, wearing the casteless! And the political process is likewised Gunnar Myrdal write s in his Asian Drama: (Gunnar Myrdal, Asian Drama, Vol. I, pp.)The type of appeal that can be made by politicians has also changed greatly since the liberation movement. They can no longer put the blame for poverty and stagnation on colonial masters, but must explain why there is not great progress now that India is independent93. Thus a key to the understanding of the power of the political bosses is the inherited social stratification of India and, above all, its caste system. At election times the caste groups function as political vote banks whereby the ballots of their members are joined to the candidate with a party label. For this reason alone the local political bosses have a vested interest in preserving the social and economic status quo and exploiting it as a matrix for political actionM. N. Srinivas, the noted sociologist is more than right (1 ) AOne cannot help wondering whether the drive to political maturity is, after all, a good thing in a country which has still not had a proper social revolution. It may well result in premature old age94. We need now, not stagnation wearing the mask of stability and scrambling acrimoniously over the same shrunken cake, but progress by the constructive process of explosive rural development and exploitation of the untapped human potential of the Scheduled Castes and Scheduled Tribes. Sterile reservations will not help us go ahead unless, alongside of it, we have heroic national involvement of the masses in actual action, notd plan exercises. In the last analysis, privation can be banish ed only by production, discontent by distributive justice and litigation by socially relevant Justice. The writ petitions are, regrettably, negative, although the driving force of penury deserves sympathy. This, perhaps, is a materialist interpretation of service litigation and a trime to these writ petitions.Before I conclude, I must strike a futuristic note. Excellence and equality may cooperating fruitfully and need not compete destructively. Ultimately harijan/girijan militancy must find fulfillment in effectivemainstreamingand creative contribution. While they have miles to go, they have promises to keep. The poignant words of the Reverend Jesse Jackson come to my mind (M. N. Srinivas, "Changing Attitudes in India Today" Yogana, October I 1961, p. 26.)"I dont see how, we can survive as a people if we dont have a great push for excellence now....A lot of what weve done in the past will be in vain if we dont. We can make one of the most valid contributions to Western civilization, even more of a contribution than slavery. Because slavery was our great contribution against our will. Now its time for us to make a great contribution as an act of will."95. Given the opportunity and the environment, the Indian dalits can make India great and give up crutches.