Supreme Court of India

State Of Kerala & Anr vs N. M. Thomas & Ors on 19 September, 1975

Equivalent citations: 1976 AIR 490, 1976 SCR (1) 906, AIR 1976 SUPREME COURT 490, 1976 LAB. I. C. 395, 1976 (1) SCR 906, 1976 (1) LABLJ 376, 1976 (1) SERVLR 805, 1976 2 SCC 310, 1976 SCWR 207

Author:
A.N. Ray

Bench:
A.N. Ray
,
Hans Raj Khanna
,
Kuttyil Kurien Mathew
,
M. Hameedullah Beg
,
V.R. Krishnaiyer
,
A.C. Gupta
,
Syed Murtaza Fazalali

PETITIONER:
STATE OF KERALA & ANR.

Vs.

RESPONDENT:
N. M. THOMAS & ORS.

DATE OF JUDGMENT19/09/1975

BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
KHANNA, HANS RAJ
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
KRISHNAIYER, V.R.
GUPTA, A.C.
FAZALALI, SYED MURTAZA

CITATION:
1976 AIR 490 1976 SCR (1) 906
1976 SCC (2) 310
CITATOR INFO :
R 1977 SC 251 (34)
F 1978 SC 771 (10,211)
RF 1978 SC1457 (38)
R 1980 SC 452 (57)
E 1980 SC 820 (17,29,30)
RF 1980 SC1230 (15)
RF 1980 SC1896 (45)
RF 1981 SC 212 (33)
R 1981 SC 298 (28,41,72,74,75,76,78,82,83,11
R 1981 SC 588 (13)
R 1981 SC2045 (25)
R 1984 SC 326 (9)
E&R 1985 SC1495 (17,24,51,68,132,149)
R 1987 SC 537 (21)
RF 1988 SC 959 (11,12)
R 1992 SC 1 (88)

ACT:
Kerala State Subordinate Service Rules, 1958, r. 13AA-
Constitutional valiadity of.
Constitution of India, 1950-Arts 16, 46 and 335-Scope
of.
Scheduled Casters and Scheduled Tribes-If a caste-
Exemption granted from passing special departmental tests-If
violative of
Art. 16.

HEADNOTE:
Rule 13(a) of the Kerala State Subordinate Services
Rules 1958, provides that no person shall be eligible for
appointment to any service or any post unless he possessed
such special qualifications and has passed such special
tests as may be prescribed in that behalf in the Special
Rules.
For promotion of a lower division clerk to the next
higher post of upper division clerk, the Government made it
obligatory for an employee to pass the special departmental
tests. Rule 13A which was introduced sometime later, gave
temporaury exemption from passing the departmental tests for
a period of two years. The rule also provided that an
employee who did not pass the unified departmental tests
within the period of two years from the date of introduction
of the test would be reverted to the lower post and further
said that he shall not again be eligible for appointment
under this rule. Proviso 2 to this rule gave temporary
exemption of two years in the case of Scheduled Castes and
Scheduled Tribes candidates. A Harijan Welfare Association
represented to the State Government that a large number of
Harijan employees in the State service were facing immediate
reversion as a result of this rule and requuested the
Government to grant exemption in respect of Scheduled Castes
and Scheduled Tribes employees from passing the obligatory
departmental tests for a period of two years with immediate
effect. Accordingly, the State Government introduced rule
13AA giving further exemption of two years to members
belonging to Scheduled Tribes and Scheduled Castes in the
service from passing the tests referred to in r. 13 or r.
13A
Respondent no. 1 passed the special tests in November,
1971. The other respondents belonging to Scheduled Castes
and Scheduled Tribes were promoted as Upper Division Clerks
even though they had not passed the prescribed tests
Respondent no. 1 who was not promoted in spite of the fact
that he had passed the urequisite tests moved the High Court
under
Art. 226
of the Constitution seeking a declaration
that r. 13AA under which exemption had been granted to the
other respondents in the matter of promotion was violative
of
Art. 16
of the Constitution. The High Court struck down
the imugned rule as violative of
Art. 16(1)
and
(2)
and
Art.
of the Constitution.
Allowing the State's appeal to this Court,
[Per majority, Ray C.J., Mathew, Beg Krishna Iyer, S.
M. Fazal Ali, JJ.; Khanna and Gupta. JJ. dissenting]
^
HELD: (Per Ray C.J.) The classification of employees
belonging to Scheduled Castes and Scheduled Tribes for
allowing them an extended period of two years for passing
the special tests for promotion is a just and reasonable
classification haring rational nexus to the object of
providing equal opportunity for all citizens in matters
relating to employment or appointment to public offices.
[930H]
(1)
Articles 14
, 15
and
form part of a string of
constitutionally guaranteed rights. These rights supplement
each other.
Article 16
is an incident of guarantee of
equality contained in
Art. 14.
Both
Articles 14
and
16(1)

permit reasonable classification having a nexus to the
objects to be achieved. Under
Art. 16
there can be a
reasonable classification of the employees in matters
relating to employment or appointment. [926F]
State of Gujarat and Anr. etc. v. Shri Ambica Mills
Ltd. Ahmedabad etc. A.I.R. 1974 S.C. 1300, referred to.
(2) Equality is violated if it rests on an unreasonable
basis. The concept of equality has an inherent limitation
arising from the very nature of the constitutional
guarantee. Those who are similarly circumstanced are
entitled to equal treatment. Classification is to be founded
on substantial differences which distinguish persons grouped
together from those left out of the groups and such
differential attributes must bear a just and rational
relation to the object sought to be achieved. [927 C]
(3) If there is a rational classification consistent
with the purpose for which such classification is made
equality is not violated. The categories of classification
for purposes of promotion can never be closed on the
contention that they are all members of the same cadre in
service. If classification is made on educational
qualifications for purposes of promotion or if
classification is made on the ground that the persons are
not similarly circumstanced in regard to their entry into
employment such classification can be justified. [927E-F]
C. V. Rajendran v. Union of India [1968] 1 S.C.R. 721,
followed.
(4) Art 1.(1) does not bar a reasonable classification
of employees or reasonable tests for their selection. There
is no denial of equality of opportunity unless the person
who complains of discrimination is equally situated with
the. person or persons who are alleged to have been
favoured. [928 F]
State of Mysore v. V. P. Narasinga Rao [1968] 1 S.C.R.
407, referred to.
(5) Under
Art. 16(1)
equality of opportunity of
employment means equality as between members of the same
class of employees and not equality between. members of
separate, independent class. The present case does not
create separate avenues of promotion for these persons. [928
F]
All India Station Masters and Assistant Station
Masters' Association v. General Manager, Central Railways
[1960] 2 S.C.R. 311, referred to.
(6) The Legislature understands and appreciates the
needs of its own people that its laws are directed to
problems made manifest by experience and that its
discriminations are based upon adequate grounds. The rule of
classification is not a natural and logical corollary of the
rule of equality, but the rule of differentiation is
inherent in the concept of equality. Equality means parity
of treatment under parity of conditions. Equality does not
connote absolute equality. A classification, in order to be
constitutional, must rest upon distinctions that are
substantial and not merely illusory. The test is whether it
has a reasonable basis free from artificiality and
arbitrariness embracing all and omitting none naturally
falling into that category. [929 D]
Govind Dattatray Kelkar v. Chief Controller of Imports,
[1967] 2 S.C.R. 29; Ganga Ram v. Union of India [1970] 1
S.C.C. 377 and Roshan Lal Tandon v Union of India [1968] I
S.C.R. 185, referred to.
(7) The relevant touchstone of validity is to find out
whether the rule of preference secures adequate
representation for the unrepresented backward community or
goes beyond it. [930 G]
(8) The historical background of the rules justifies
the classification of the personnel of the Scheduled Castes
and Scheduled Tribes for the purpose of granting them
exemption from special tests with a view to ensuring them
the
equality of treatment and equal opportunity in matters of
employment having regard to their backwardness and under-
representation in the employment of he State. [931 C]
(9) (a) The Constitution makes a classification of
Scheduled Castes and Scheduled Tribes in numerous provisions
namely Arts. 46, 335, 338 and 341 and gives a mandate to the
State to accord special or favoured treatment to them. [931
D]
(b) The impugned rule and the orders are related to
this constitutional mandate. Without providing for
relaxation of special tests for a temporary period it would
not have been possible to give adequate promotion to the
Lower Division Clerks belonging to the Scheduled Castes and
Scheduled Tribes to the posts of Upper Division Clerks. The
temporary relaxation of test qualification made in favour of
the Scheduled Castes and Scheduled Tribes is warranted by
their inadequate representation in the services and their
overall backwardness. The classification of the members of
the Scheduled Castes and Scheduled Tribes made under r. 13AA
is within the purview of constitutional mandate under
Art.
in consideration of their claims to redress imbalance in
public service and to bring, about parity in the communities
in the. public services. [931H; 932A-B]
(10) Scheduled Castes and Scheduled Tribes are not a
caste within the ordinary meaning of castes. [932 E]
Bhaiyalal v. Harikishan Singh and Ors. [1965] 2 S.C.R.
877, referred to
(11)(a) our Constitution aims at equality of status and
opportunity for all citizens including those who are
socially, economically and educationally backward. The
claims of members of backward classes require adequate
representation in legislative and executive bodies. If
members of Scheduled Castes and Scheduled Tribes who are
said by this Court to be backward classes, can maintain
minimum necessary requirement of administrative efficiency,
not only representation but also preference may be given to
them to enforce equality and to eliminate inequality. [932G-
H]
(b) Equality of opportunity for unequals can only mean
aggravation of inequality. Equality of opportunity admits
discrimination with reason and prohibits discrimination
without reason. Preferential representation for the backward
classes in services with due regard to administrative
efficiency is a permissible object and backward classes are
a rational classification recognised by the Constitution.
Therefore, differential treatment in standards of selection
is within the concept of equality. [933B-C]
(c) The rule in the present case does not impair the
test of efficiency in administration inasmuch a., members of
Scheduled Castes and Tribes who are promoted have to acquire
the qualification of passing the test. The only relaxation
which is done in their case is that they are granted two
years more time than others to acquire the qualification.
[933 D]
(12) (a) Equal protection of laws necessarily involves
classification. The validity of the classification must be
adjusted with reference to the purpose of the law. [933 G]
(b) The classification in the present case is justified
because the purpose of classification is to enable members
of Scheduled Castes and Scheduled Tribes to find
representation by promotion to a limited extent From the
point of view of time a differential treatment is given to
members of Scheduled Castes and Tribes for the purpose of
giving them equality consistent with efficiency. [933 H]
(13) The High Court was wrong in basing its conclusion
that the result of application of the impeached rule and the
orders is excessive and exorbitant. The promotions made in
services as a whole are nowhere near 50% of the total number
of posts. It is correct that r. 13AA and the orders are
meant to implement not only the direction under
Art. 335
but
also the directive principle under
Art. 46.
[932C-D]
Per Mathew, J.
(1) The concept of equality of opportunity is an aspect
of the more comprehensive notion of equality. The idea of
equality has different shades of meaning and connotations.
It has many facets and implications. [948 A]
(2) The notion of equality of opportunity has meaning
only when a limited number of posts as in the present case
should be allocated on grounds which do not a priori exclude
any section of citizens of those that desire it. A priori
exclusion means exclusion on grounds other than those
appropriate or rational for the good in question. The notion
requires not merely that there should be no exclusion from
access on grounds other than those appropriate or rational
for the good in question but the grounds considered
appropriate for the good should themselves be such that
people from all sections of society have an equal chance of
satisfying them. [950A-B]
(3) To give equality of opportunity for employment to
the members of Scheduled Castes and Scheduled Tribes, it is
necessary to take note of their social, educational and
economic environment. Not only is the Directive Principle
embodied in
Art. 46
binding on the law-maker as ordinarily
understood but it should equally inform and illuminate the
approach of the Court when it makes a decision as the Court
also is `State' within the meaning of
Art. 12
and makes law
even though interstitially. [951 E]
His Holiness Kesavananda Bharati Sripadagalayaru v.
State of Kerala and Another, etc. [1973] Supp. S.C.R. 1,
referred to.
(4) Equality of opportunity is not simply a matter of
legal equality. Its existence depends not merely on the
absence of disabilities but on the presence of abilities.
[951 F]
(5) The guarantee of equality before the law or the
equal opportunity in matters of employment is a guarantee of
something more than what is required by formal equality. It
implies differential treatment of persons who are unequal.
Egalitarian principle has, therefore. enhanced the growing
belief that Government has an affirmative duty to eliminate
inequalities and to provide opportunities for the exercise
of human rights and claims. [951 H]
(6) Fundamental Rights as enacted in Part III of the
Constitution are, by and large, essentially negative in
character. They mark off a world it which time Government
should have no jurisdiction. In this realm, it was assumed
that a citizen has no claim upon Government except to be let
alone.[952 A]
(7)(a) But the language of
Art. 16(1)
is in marked
contrast with that of
Art. 14.
Whereas the accent in Art 14
is on the injunction that the State shall not deny to any
person equality before the law or the equal protection of
the laws, that is, on the negative character of the duty of
the State, the emphasis in
Art. 16(1)
is on the mandatory
aspect. [952 B]
(b) If equality of opportunity guaranteed under
Art.
16(1)
means effective material equality, then
Art. 16(4)
is
not an exception to
Art. 16(1).
It is only all emphatic way
of putting the extent in which equality of opportunity could
be carried namely even upto the point of making reservation.
[956]
(c)
Art. 16(1)
is only a part of a comprehensive scheme
to ensure equality in all spheres. It is an instance of the
application of the larger. concept of equaliy under the law
embodied in Arts. 14 and 15.
Article 16(1)
permits of
classification just as
Art. 14
does. But, by the
classification, there can be no discrimination on the ground
only of race, caste and other factor mentioned in
Art.
16(2).
[951 F]
S.C. Jaisighani v. Union of India & Ors. [1967] 2
S.C.R. 703 at 712: State of Mysore & Anr. v. P. Narasing Rao
[1968] 1 S.C.R. 407 at 410 & C. A. Rajendran v. Union of
India & Ors. [1968] 1 S.C.R. 721, at 729 referred to.
(d) The word `caste' in
Art. 16(2)
does not include
Scheduled Castes. The definition of Scheduled Castes' in

Art. 366(24)
shows that it is by virtue of the notification
of the President that the Scheduled Castes come into being.
Though the members of the Scheduled Castes are drawn from
castes, races or tribes, they attain a new status by virtue
of the Presidential notification. Moreover, though the
members of tribe might be included in Scheduled Castes,
tribe as such is not mentioned in
Article 16(2).
[957 A]
(e)
Article 16(1)
and Art 16(2) do not prohibit the
prescription of a reasonable qualification for appointment
or for promotion. Any provision as to qualification for
employment or appointment to are office reasonably fixed and
applicable to all would be consistent with the doctrine of
equality of opportunity under
Art. 16(1).
[957 E]
The General Manager, Southern Railway v. Rangachari
[1962] 3.S.C.R. 586 referred to
(8) Today, the sense that Government has affirmative
responsibility for elimination of inequalities, social,
economic or otherwise, is one of the dominant forces in
constitutional law. [952 E]
(9) The concept of equality of opportunity in matters
of employment is wide enough to include within it
compensatory measures to put the members of the Scheduled
Castes and Scheduled Tribes on par with the members of other
communities which would enable them to get their share of
representation in public service. [954 E]
(10) If reservation is necessary either at the initial
stage or at the stage of promotion or at both to ensure for
the members of the Scheduled Castes and Scheduled Tribes
equality of opportunity in the matter of employment. there
is no reason why that is not permissible under
Art. 16(1)
as
that alone might put them on a parity with the forward
communities in the matter of achieving the result which
equality of opportunity would produce. Equality of result is
the test of equality of opportunity. [954 G-H]
(11) The State can adopt any measure which would ensure
the adequate representation in public service of the members
of the Scheduled Castes and Scheduled Tribes and justify it
as a compensatory measure to ensure equality of opportunity
provided the measure does not dispense with the acquisition
of the minimum basic qualification necessary for the
efficiency of administration.[956 D]
(12) It is a mistake to assume a priori that there can
be no classification within a class, say, the Lower Division
Clerks. If there are intelligible differentia which separate
a group within that class from the rest and that differentia
have nexus with the object of classification, there is no
objection to a further classification within the class. [957
C]
All India Station Masters and Assistant Station Masters
Association v. General Manager Central Railway and others
[1960] 2 S.C.R. 311, S. C. Jaisingjamoi v. Union of India
and others [1967] 2 S.C.R. 703 at 712 & State of Jammu &
Kashmir v. Triloki Nath Khosa & others [1974] 1 S.C.R. 771
held inapplicable.
(13) In the instant case Rule 13AA has been enacted not
with the idea of dispensing with the minimum qualification
required for promotion to a higher category or class, but
only to give enough breathing space to enable the members of
Seheduled Castes and Scheduled Tribes to acquire it. The
purpose of the classification made in r. 13AA is to enable
them to have their due claim of representation in the higher
category without sacrificing the efficiency implicit in the
passing of the test. [958 B]
(14) The classification made in r. 13AA has a
reasonable nexus with the purpose of the law. Rule 13AA is
not intended to give permanent exemption to the members of
Scheduled Castes and Scheduled Tribes from passing the test
but only reasonable time to enable to them to do so. That
the power is liable to be abused is no reason to hold that
the rule itself is bad. [958 E]
Per Beg J.
The only ground given by the High Court for refusing to
give the benefits of the impugned rules and orders to the
backward class Government servants, that they fall outside
the purview of
Art. 16(4)
was not substantiated. The
respondent has not discharged the burden establishing a
constitutionally unwarranted discrimination against him.
[963 H]
(1) When citizens are already employed in a particular
grade as government servant considerations relating to the
sources from which they were drawn lose much of their
importance. Neither as members of a single class nor for
purposes of equality of opportunity which is to be afforded
to this class does the fact that some of them also members
of economically and socially backward class continue to be
material or, even relevant. Their entry into the me relevant
class as others must be deemed to indicate that they no
longer suffer from the handicaps of a backward class. For
purposes of Government service the source from which they
are drawn should cease to matter. As Government servants.
they would form only one class for the purpose of promotion.
[960A-B]
(2) (a) The specified and express mode of realisation
of the objects contained in
Art. 16(4)
, must exclude the
possibility of the methods which could be implied and read
into
Art. 16(1)
for securing them in this field the
applicable maxim being `expressio unius est exclusio
alterius". [960 H]
(2) (b) The purpose of equality of opportunity by means
of tests is only to ensure a fair competition in securing
posts and promotions in Government service, and not the
removal of causes for unequal performances in competitions
for these posts or promotions. [960 H]
(3)
Article 16(4)
is designed to reconcile the
conflicting pulls of
Art. 16 (1)
representing the dynamics
of justice conceived of as equality in conditions under
which candidates actually compete for posts in Government
service and of Arts. 46 and 355 embodying the duties of the
State to promote the interests of the economically
educationally and socially backward so as to release them
from the clutches of social injustice. These encroachments
on the field of
Art. 16(1)
can only be permitted to the
extent they are warraned by
Art. 16(4).
To read broader
concepts of social justice and equality into
Art. 16(1)
may
stultify this provision and make
Art. 16(4)
otiose. [961C-D]
(4) It would be dangerous to extend the limits of
protection against the operation of the principle of
equality of opportunity in this field beyond its express
constitutional authorisation by
Art. 16(4).
[959 G]
(5) But if the impugned rules and orders could be
viewed as an implementation of a policy of qualified or
partial or conditional reservation which could satisfy the
requirements of substantial equality in keeping with
Art.
and meet the demands of equality and justice looked from
the point of view of
Art. 46
of the Constitution, they could
also be justified under
Art. 16(4)
of the Constitution. [963
B-C]
(6) Though the respondent was not promoted in spite of
passing the efficiency test earlier the backward class
employees who were given preference over him, were
discharging their duties in the higher grade quite
satisfactorily and were his seniors in service. Taking and
passing of a written test earlier than another employee
could not be the sole factor to consider in deciding upon a
claim to superiority or to preference on grounds of merit
and efficiency for promotion as a government servant. [962A-
B]
(7) The effect of the relaxation is that a backward
class employee continues in the post temporarily for a
longer period before being either confirmed or reverted. For
this period, the post remains reserved for him. If he does
not satisfy the efficiency tests even within the extended
period he has to revert to the lower grade. If he does
satisfy the special efficiency tests. in this extended
period. he is confirmed in the class of promotees into which
he obtained entry because of a reservation. One of the
dictionary meanings of the word
`reserve' is "to keep back or hold over to a later time or
place for further treatment etc." The result of the rule
therefore is a kind of reservation.
(8) If reservation of posts under Art 16(4) for
employees of backward classes could include complete
reservation of higher posts to which they could he promoted,
there is no reason why it could not be partial or for a part
of the duration of service and hedged round with the
condition that a temporary. promotion would operate as a
complete and confirmed promotion only if the temporary
promotee satisfies some tests within a given time. [963 A]
In the instant cases apart from the fact that it is
only one of partial or temporary and conditional
reservation, it is disputed here that the favoured class of
employees constituted more than 50% of the total number of
Governments servants of this class (Clerks) if the overall
position is taken into account. Furthermore, a large number
of temporary promotions of backward class Government
servants of this grade had taken place in 1972 in the
Department because promotions of this class of employees had
been held up in the past due to want of necessary provision
in the rules. The totality of facts of this case to want of
necessary provision in the rules. The totality of facts of
this case is distinguishable in their effects from those in
T. Devadasan v. Union of India [1964] 4 S.C.R. 680 and M.R.
Balaji & Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439.
[963 D-F]
Per Krishna Iyer. J.
(1) The Indian Constitution is a great social document,
almost revolutionary in its aim of transforming a medieval,
hierarchical society into a modern, egalitarian democracy.
Its provisions can be comprehended only by a specious,
social-science approach, not by pedantic, traditional
legalism. [964 E]
(2) (a) The Preamble to the Constitution silhouettes a
'justice-oriented' community. The Directive Principles of
State Policy, enjoin on the State the promotion with special
care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled
Castes and the Scheduled Tribes and protect them from social
injustice. To neglect this obligation is to play truant with

Art. 46.
Economic interests of a group-as also social
justice to it-are tied up with its place in the services
under the State. [974 A-B]
(b) The unanimous opinion of this Court in Keshavananda
Bharti's case is that the Court must wisely read the
collective Directive Principles of Part IV into the
individual fundamental rights of Part III, neither part
being superior to the other. In this case, the supplementary
theory, treating both Parts as fundamental, gained
supremacy. [977 A]
(c) The upshot is that
Art. 46
has to be given emphatic
expression while interpreting
Art. 16(1)
and
(2).
Indeed

Art. 335
is more specific and cannot be brushed aside or
truncated in the operational ambit vis a vis Arts. 16 (1)
and (2) without hubristic aberration. [977 F-G]
(3) The conclusions that could be drawn from the
provisions of the Constitution are: (1) The Constitution
itself demarcates harijans from others. (2) This is based on
the stark backwardness of this bottom layer of the
community. (3) The differentiation has been made to cover
specifically the area of appointments to posts under the
State. (4) The twin objects blended into one, are claims of
harijans to be considered in such posts and the maintenance
of administrative efficiency. (5) The State has been
obligated to promote the economic interests of harijans and
like backward classes, Arts. 46 and 335 being a testament
and Arts. 14 to 16 being the tool-kit. To blink at this
panchsheel is to be unjust to the Constitution. [975 B-C]
(4) To relax on basic qualifications is to compromise
with minimum administrative efficiency; to relent, for a
time, on additional test qualifications as to take a
calculated but controlled risk, assured of a basic standard
of performance; to encourage the possession of higher
excellence is to upgrade the
efficiency status of the public servant and eventually, of
the department. This is the sense and essence of the
situation arising in the present case, viewed from the angle
of administrative requirements or fair employment criteria.
[967 C-D]
(5) Efficiency means, in terms of good government, not
marks in examinations only, but responsible and responsive
service to the people. [976 C]
(6)(a) A bare reading of Arts. 341 and 342 brings out
the quintessential concept that the Scheduled Castes and
Tribes are no castes in the Hindu fold but an amalgam of
castes, races, groups, tribes, communities or parts thereof
found on investigation to be the lowliest and in need of
massive State aid and notified as such by the President.
[977 H]
(b) The discerning sense of the Indian Corpus Juris has
generally regarded Scheduled Castes and Scheduled Tribes,
not as a caste but as a large backward group deserving of
societal compassion. [978 B]
(7) (a) Given two alternative understandings of the
relevants sub-Articles [Arts. 16(1) and (2)] the Court must
so interpret the language as to remove that ugly
'inferiority' complex which has done genetic damage to
Indian polity and thereby suppress the malady and advance
the remedy, informed by sociology and social anthropology.
The touch-stone is that functional democracy postulates
participation by all sections of the people and fair
representation in administration is an index of such
participation. [971 E-F]
(b) Clause (4) of
Art. 16
if closely examined, is an
illustration of constitutionally sanctified classification.

Art. 16(4)
need not be a saving clause but put in due to the
over anxiety of the draftsman to make matters clear beyond
possibility of doubt. [978 H]
(c) Reservation confers pro tanto monopoly, but
classification grants under
Art. 16(1)
ordinarily a lesser
order of advantage. The former is more rigid, the latter
more flexible, although they may overlap sometimes.
Art.
16(4)
covers all backward classes; but to earn the benefit
of grouping under
Art. 16(1)
based on
Art. 46
and
, the
twin considerations of terrible backwardness of the type
harijans endure and maintenance of adminsistrative
efficiency must be satisfied. [979 C-D]
(d) The fact that better educational prescription for
promotion posts have been upheld by this Court does not rule
out other resonable differentia having a nexus with the
object. The true test is what is the object of the
classification and is it permissible? Further, is the
differentia sound and substantial and clearly related to the
approved object? [980 H]
(e) The genius of Arts. 14 to 16 consists not in
literal equality but in progressive elimination of
pronounced inequality. To treat sharply dissimilar persons
equally is subtle injustice. Equal opportunity is a hope,
not a menace. [981 B]
In the present case the economic advancement and
promotion of the claims of the grossly under-represented and
pathetically neglected classes, otherwise described as
Scheduled Castes and Scheduled Tribes, consistently with the
maintenance of administrative efficiency is the object,
constitutionally sanctioned by
Art. 46
and
, and
reasonably accommodated in
Art. 16(1).
The differentia so
loudly obtrusive, is the dismal social milieu of harijans.
This has a rational relation to the object set out above.
[981 C]
(8) It is a statistically proved social reality in
India that the depressed employment position of harijan is
the master problem in the battle against generations of
retardations and reservation and other solutions have made
no significant impact on their employment in public service.
In such an unjust situation, to maintain mechanical equality
is to prepetuate actual inequality. Relaxation of 'tests'
qualification at the floor level of clerical posts is a part
of this multiform strategy to establish broader though
seemingly differential equality. [983 F]
Per Fazal Ali, J.
Rule 13AA is a valid piece of statutory provision which
is fully justified under
Art. 16(1)
of the Constitution and
does not fall within the purview of
Art. 16(4).
[1007 F]
(1)(a) Equality of opportunity would mean a fair
opportunity not only to one section or the other but to all
sections for removing the handicaps if a particular section
of the society suffers from the same. What
Art. 14
or
Art.
forbids is hostile discrimination and not reasonable
classification. In other words the idea of classification is
implicit in the concept of equality because equality means
equality to all and not merely to the advanced and educated
sections of the society. [992 H; 993 B]
(b) It follows that in order to provide the equality of
opportunity to all citizens, every class of citizens must
have a sense of equal participation in building up an
egalitarian society. [993 C]
(c) The only manner in which the objective of equality
as enshrined in
Art. 14
and
can be achieved is to boost
up the backward classes by giving them concessions,
relaxations, facilities, removing handicaps and making
suitable reservations so that the weaker sections may
compete with the more advanced and in due course become
equals and backwardness is banished for ever. [993 D]
(2)(a) There is complete unanimity of judicial opinion
of this Court that the Directive Principles and the
Fundamental Rights should be construed in harmony with each
other and every attempt should be made by the Court to
resolve apparent inconsistency. [993 H]
(b) The Directive Principles contained in Part IV
constitute the stairs to climb the high edifice of a
socialistic State and the Fundamental Rights are the means
through which one can reach the top of the edifice. [993 H]
In Re The Kerala Education Bill. 1957, [1959] S.C.R.
995; Mohd. Hanif Quareshi & Others v. The State of Bihar,
[1959] S.C.R. 629, 648; I. C. Golak Nath & Others v. State
of Punjab & Anr., [1967] 2 S.C.R. 762, 789-790; Chandra
Bhavan Boarding and Lodging, Bangalore v. The State of
Mysore and Anr., [1970] 2 S.C.R. 600 612, His Holiness
Keshavananda Bharati Sripadagalvaru v. State of Kerala and
Anr., [1973] 4 S.C.C. 225, referred to.
(c) The Directive Principles form the fundamental
feature and the social conscience of the Constitution which
enjoins upon the State to implement these Directive
Principles. The Directives, thus provide the policy, the
guidelines and the end of socio-economic freedom and Arts.
14 and 16 are the means to implement the policy to achieve
the ends sought to be promoted by the Directive Principles.
So far as the Court are concerned where there is no apparent
inconsistency between the Directive Principles contained in
Part IV and the Fundamental Rights mentioned in Part III,
there is no difficulty in putting a harmonious construction
which advances the object of the Constitution. [996 E-F]
(3)(a) The word 'caste' appearing after 'Scheduled' is
really a misnomer and has been used only for the purpose of
identifying this particular class of citizens which has a
special history of several hundred years behind it. The
Scheduled Castes and Scheduled Tribes have been a special
class of citizens who have been so included and described
that they have come to be identified as the most backward
classes of citizens of this country. [997 A-B]
(b) Properly analysed,
Art. 46
contains a mandate to
the State to take special care for the educational and
economic interests of the weaker sections of the people and
as illustrations of the persons who constitute the weaker
sections the provision expressly mentions the Scheduled
Castes and the Scheduled Tribes. [997 F]
(c) A combined reading of
Art. 46
and clauses 24 and 25
of
Art. 366
clearly shows that the members of the Scheduled
Castes and the Scheduled
Tribes must be presumed to be backward classes of citizens
particularly when the Constitution gives the example of the
Scheduled Castes and the Scheduled Tribes as being the
weaker sections of the society. [997 G]
(d) The members of the Scheduled Castes and the Tribes
have been given a special status in the Constitution and
they constitute a class by themselves. That being the
position it follows that they do not fall within the purview
of
Art. 16(2)
of the Constitution which prohibits
discrimination between the members of the same caste. If the
members of the Scheduled Castes and the Scheduled Tribes are
not castes then it is open to the State to make reasonable
classification in order to advance or lift these classes so
that they may be able to be properly represented in the
services under the State. [998 A-B]
(4)(a)
Art. 16
is merely an incident of
Art. 14
and
both these articles form a part of the common system seeking
to achieve the same end. [998 D]
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.,
[1974] 1 S.C.C. 771, 783; Mohammad Shujat Ali and others v.
Union of India and others, [1975] 3 S.C.C. 76, 102; Govind
Dattatray Kelkar and others v. Chief Controller of Imports &
Exports and others, [1967] 2 S.C.R. 29, 33; S.G. Jaisinghani
v. Union of India and others. [1967] 2 S.C.R. 703, 712 and
The General Manager, Southern Railway v. Rangachari, [1962]
2 S.C.R. 586, 597, referred to.
(b)
Art. 16
applies to all classes of appointment
including promotions and selection posts. [999 E]
C.A. Rajendran v. Union of India and Ors., [1968] 1
S.C.R. 721, 728-729, referred to.
(c)
Art. 16
permits a valid classification. [999 H]
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.,
[1974] 1 S.C.R. 771, 789; C.A. Rajendran v. Union of India
and Ors., [1968] 1 S.C.R. 721, 728-729; S.G. Jaisinghani v.
Union of India and others. [1967] 2 S.C.R. 703, 712; The
General Manager, Southern Railway v. Rangachari. [1962] 2
S.C.R. 586, 597 and Mohammad Shujat Ali and others v. Union
of India and others, [1975] 3 S.C.C. 76, 102, referred to.
(d) Equality of opportunity for all citizens envisaged
in
Art. 16(1)
implies that opportunity must be given not
only to a particular section of the society or a particular
class of citizens who may be advanced or otherwise more
affluent but to all classes of citizens. This can be
achieved by making a reasonable classification so that every
class of citizens is duly represented in the service which
will enable equality of opportunity to all citizens. The
classification must, however, be reasonable and must fulfil
the following conditions. [1000 G]
(i) It must have a rational basis; (ii) It must have a
close nexus with the object sought to be achieved and (iii)
It should not select any person for hostile discrimination
at the cost of others. [1000 H]
(5) (a) If the promotees do not belong to a caste as
contemplated by
Art. 16(2)
then they do not fall within the
mischief of
Art. 16(2)
at all. Thus the case of the
promotees squarely falls within the four-corners of
Art.
16(1)
and can be justified as based on reasonable
classification. [1002 B]
(b) Clause (4) of
Art. 16
of the Constitution cannot be
read in isolation but has to be read as part and parcel of

Art. 16(1)
and
(2).
[1002 E]
(c) Clause (4) of
Art. 16
is not an exception of
Art.
in the sense that whatever classification can be made can
be done only through clause (4) of
Art. 16.
Clause (4) of

Art. 16
, however, is an explanation containing an exhaustive
and exclusive provision regarding reservation which is one
of the forms of classification. Thus clause (4) of
Art. 16

deals exclusively with reservation and not other forms of
classification which can be made under
Art. 16(1)
itself.
Since clause (4) is a special provision regarding
reservation, it can safely be held that it overrides
Art.
16(1)
to that extent and no reservation can be made under

Art. 16(1).
[1002 G-H]
(d)
Art. 16(4)
is not a proviso to
Art. 16(1)
but this
clause covers the whole field of
Art. 16.
Dissenting view of
Subba Rao, J. in T. Devandasan v. Union of India. [1964] 4
S.C.R. 680, applied.
(e) Clause 4 of
Art. 16
contains express provisions
empowering the State to make reservations in suitable cases
provided the following conditions are satisfied:
(i) That the class for which reservation is made must
be socially and educationally backward.
(ii) That the class for which reservation is made is
not adequately represented in the services under the State.
[1004 E]
(iii) The reservation should not be too excessive so as
to destroy the very concept of equality, and [1005 A]
(iv) Reservation should not be made at the cost of
efficiency. [1006 C]
(6) In the instant case what Rule 13AA does is merely
to authorise the Government to exempt for a specified period
any member or members of the Scheduled Caste and Scheduled
Tribes from passing the test referred to in Rule 13 and Rule
13A. The rule does not give complete licence. A Lower
Division Clerk who is a member of the Scheduled Caste or the
Scheduled Tribe could not be promoted without passing any
test at all so as to destroy the concept of equality. It
merely gives a special concession or a temporary relaxation
to cockward class of citizens in order to lift them, advance
them and enable them to compete with the stronger sections
of the society. Thus, the basis of the rule is undoubtedly
both rational and reasonable. The rule does not grant
complete exemption to the promotees from passing the test.
It only provides for grant of extension of time to enable
them to clear the test. It cannot, therefore be held that
the State's action in incorporating rule 13AA. in any way
violates the mandate contained in
Art. 335.
The concession
given in Rule 13AA amounts to a reasonable classification
which can be made under
Art. 16(1)
and does not amount to
the selection of the respondent no. 1 for hostile
discrimination so as to be violative of
Art. 16(1)
of the
Constitution. Respondent no. 1 passed the test necessary for
promotion to the Upper Grade on November 2. 1971. He cannot
put forward his claim for being promoted earlier than that
date. Extensions granted by the Government to the clerks
belonging to the Scheduled Castes and Tribes from 1958 to
1972 and thereafter upto 1974 will affect respondent no. 1
only after November 2, 1971 and not before that date. [1001
C; F-G; 990 DE]
(7) If the carry forward rule is not upheld then
backwardness will be perpetrated and it would result
ultimately in a vacuum. The High Court was in error in
holding that the State's action in filling 34 vacancies out
of 51 by members of the Scheduled Castes and Tribes was
illegal and could not be justified. [1006 C]
(8) A concession or relaxation in favour of a backward
class of citizens particularly when they are senior in
experience would not amount to any impairment of efficiency.
The High Court was in error in holding that Rule 13AA was
ultra vires and was violative of
Art. 16
as it thought that
this rule came within the mischief of clause 4 of Art, 16.
[1006 D-E]
Per Khanna, J. (dissenting)
There is no infirmity in the finding of the High Court
that the impugned promotions were violative of
Article 335

of the Constitution. The Departmental tests are prescribed
to ensure standards of efficiency for the employees. To
promote 34 out of 51 persons although they have not passed
the Departmental tests and at the same time not to promote
those who have passed the Departmental tests can hardly be
conducive to efficiency. [945 H]
(1) It is not permissible to waive the requirement of
the minimum educational qualification and other standards
essential for the maintenance of efficiency of service. The
reservation of seats for the members of the
backward class was not to be at the cost of efficiency. This
fact was brought out in
Art. 335
according to which the
claims of the members of the Scheduled Castes and Scheduled
Tribes shall be taken into consideration consistently with
the maintenance of officiency of administration in the
making of appointment to services and posts in connection
with the affairs of the Union or of a State. [939 B; 938 H]
(2) The reservation of posts for a section of
population has the effect of conferring a special benefit on
that section of the population. Such preferential treatment
is plainly a negation of the equality of opportunity for all
citizens in matters relating to employment or appointment to
an office under the State. Clause (4) of
Art. 16
has been
construed as a proviso or exception to cl. (1) of that
Article. [939 C]
The General Manager, Southern Railway v. Rangachari,
[1962] 2 S.C.R. 586 and T. Devadasan v. The Union of Indian
JUDGMENT:

(3) The provision of preferential treatment for members
of backward classes including Scheduled Castes and Scheduled
Tribes is that contained in cl. (4) of
Art. 16.
There is no
scope for spelling out such preferential treatment from the
language of cl. (1) of
Art. 16
because the language of that
clause does not warrant any preference to any citizen
against another citizen. The language of
Art. 16(4)

indicates that but for this clause it would not have been
permissible to make any reservation of appointments or posts
in favour of any backward class of citizens. [939 H; 940
A]
All India Station Masters' & Asstt. Station Masters
Assn. & Ors. v. General Manager, Central Railway & Ors.
,
[1960] 2 S.C.R. 311;
S. G. Jaisinghani v. Union of India &
Ors.
, [1967] 2 S.C.R. 703; and
State of Jammu & Kashmir v.
Triloki Nath Khosa & Ors.
, [1974] 1 S.C.R. 771,
distinguished.

(4) Equality of opportunity in matters of employment
could be predicated only between persons who were either
seeking the same employment or had obtained the same
employment. Equality of opportunity in matters of promotion
must mean equality between members of the same class of
employees and not equality between members of separate,
independent classes. [940
E]
All India Station Masters' & Asstt. Station Masters'
Assn. & Ors. v. General Manager
.
Central Railway & Ors.,
[1960] 2 S.C.R. 311; referred to.

(5) The concept of equality in the matter of promotion
can be predicated only when the promotees are drawn from the
same source. If the preferential treatment of one source in
relation to the other is based on the differences between
the two sources. and the said differences have a reasonable
relation to the nature of the office, it can legitimately be
sustained on the basis of a valid classification. The reason
for the classification
in that case
was that the higher
echelons of the service should be filled by experienced
officers possessing not only a high degree of ability but
also first rate experience.
[1940 H]
S. G. Jaisinghani v. Union of India & Ors., [1967] 2
S.C.R. 703, referred to.

(6) A classification based upon the consideration that
an employee belongs to a particular section of the
population with a view to accord preferential treatment for
promotion is clear violation of equality of opportunity
enshrined in cl. (1) of
Art. 16.
[941 G]
(7) The essential object of various rules dealing with
appointment to posts under the State and promotion to higher
posts is to ensure efficiency of service. Exemption granted
to a class of employees even though for a limited period,
from passing the departmental tests which have been
prescribed for the purpose of promotion would obviously be
subversive of the object of ensure efficiency of service. It
cannot be disputed that departmental tests are prescribed
with a view to appraise and ensure efficiency of different
employees. To promote employees even though they have not
passed such efficiency test can hardly be consistent with
the desideratum of ensuring efficiency in administration.
[942 B]
(8) The fact that exemption from passing departmental
tests granted to members of Scheduled Castes and Scheduled
Tribes is not absolute but only for a limited period would
not lend constitutionality to the impugned rule and orders.
Exemption granted to a section of employees while being
withheld from the remaining employees has obvious element of
discrimination between those to whom it is granted and those
from whom it is withheld. If the passing of departmental
tests is an essential condition of promotion it would
plainly be invidious to insist upon compliance with that
condition in the case of one set of employees and not to do
so in the case of others. The basic question is whether
exemption is constitutionally permissible. [942 D]
(9)(a) Preferential and favoured treatment for some
citizens in the matter of employment or appointment to any
office under the State would be antithesis of the principle
of equality of opportunity. Equality of opportunity' is one
of the corner-stones of our Constitution. It finds a
prominent mention in the preamble to the Constitution and is
one of the pillars which gives support and stength to the
social, political and administrative edifice of the nation.
[942 F-H]

(b) Privileges, advantages, favours, exemptions
concessions specially earmarked for sections of population
run counter to the concept of equality of opportunity, they
indeed eat into the very vitals of the concept. To
countenance classification for the purpose of according
preferential treatment to persons not sought to be recruited
from different sources and in cases not covered by cl. (4)
of
Art. 16
would have the effect of eroding, if not
destroying altogether the valued principle of equality of
opporunity enshrined in cl. (1) of
Art. 16.
[943 A-B]
(10)(a) To introduce fresh notions of classification in

Art. 16(1)
would necessarily have the effect of vesting the
State under the garb of classification with power of
treating sections of population as favoured classes for
public employment. It may not be difficult to circumvent
that clause mentioning grounds other than those mentioned in
cl. (2). [943 C]

(b) To expand the frontiers of classification beyond
those which have so far been recognised under cl.(1) of
Art.
is bound to result in creation of classes for favoured
and preferrential treatment for public employment and thus
erode the concept of equality of opportunity for all
citizens in matters relating to employment under the State.
[943 D-E]
(11) In construing the provisions of the Constitution,
the courts should avoid doctrinaire approach. A constitution
is the vehicle of the life of a nation and deals with
practical problems of the Government. It is, therefore,
imperative that the approach to be adopted by the courts
while construing the provisions of the Constitution should
be pragmatic and not one as a result of which the court is
likely to get lost in a maze of abstract theories. The
important task of construing the article of a Constitution
is not an exercise in mere syllogism. It necessitates an
effort to find the true purpose and object which underlies
that article. The historical background, the felt
necessities of the time, the balancing of the conflicting
interests must all enter into the crucible when the court is
engaged in the delicate task of construin the provisions of
a constitution. [943 E-H]
(12) Another thing which must be kept in view while
construing the provisions of the Constitution is to foresee
as to what would be the impact of that construction not
merely on the case in hand but also on the future
cases which may arise under those provisions. Out of concern
for the facts of one individual case, the courts must not
adopt a construction the effect of which might be to open
the door for making all kinds of inroads into a great ideal
and desideratum like that of equality of opportunity.
Likewise, the courts should aviod in the absence of
compelling reason, a course that has the effect of
unsettling a constitutional position which has been settled
over a long term of years by a series of decisions. [941 A-
B]
(13) The liberal approach that may sometimes have been
adopted in upholding classification under
Art. 14
would in
the very nature of things be not apt in the context of
Art.
when the object underlying
Art. 16
is kept in view. [944
C]
(14) The State has ample power to make provision for
safeguarding the interest of backward classes under cl. (4)
of
Art. 16
which deals with reservation of appointments or
posts for backward classes not adequately represented in the
services under the State. Inaction on the part of the State
under or. (4) of
Art. 16
cannot justify strained
construction of cl. (1) of
Art. 16.
[946 E]
Per Gupta J. (dissenting)
(1) Rule 13AA and the orders made thereunder giving
additional opportunity in this regard to some out of the
same class of employee would be obviously void unless the
fact that the favoured members of the class belong to
Scheduled Castes or Scheduled Tribes made and difference in
the position. [987 B]
There is no force in the contention that
Art. 16(1)

should be read in the light of
Art. 46
and
335.
Neither
Art.
and
Art. 335
mentions
Art. 16(1)
nor
Art. 16(1)
refers to
either of them. All the three Articles coexist in the
Constitution and if is correct to say that one of them
should be read in the light of the other two it is equally
right to suggest that the two of them should read in the
light of the other. This means that the various parts of an
organie instrument like the Constitution ought to be
harmoniously construed but that is not the same things as
suggesting that even where the scope and ambit of one part
is clear it should be abridged, extended or amended to prove
its affinity with another part. Each limb of the body has
its own function. and to try to make one of them do the work
of another is both unnecessary and unwise. This might throw
the entire system out of gear. [985 C-D]
(2)(a) It is difficult to see how
Art. 46
which
requires the State to promote with special care the economic
interests of the weaker sections of the people especially of
the Scheduled Castes and Scheduled Tribes, can serve as an
aid to the construction of
Art. 16(1).
[985 H]

(b)
Art. 335
cannot furnish any clue to the
understanding of
Art. 16(1).
This Article does not create
any right in the members of the Scheduled Castes and
Scheduled Tribes which they might claim in the matter of
appointments to services and posts; one has to look
elsewhere, to find out the claims conceded to them.
Art. 335

says that such claims shall be considered consistently with
the administrative efficiency. This is a provision which
does not enlarge but qualify such claims as they may have as
members of the Scheduled Castes or Scheduled Tribes. [986 C]
(3)
Article 14
which guarantees equality before the law
and equal protection of the laws does not insist on absolute
equality of treatment to all persons in disregard of all
differences among them but provides for equality among
equals only,
Art. 16(1)
contemplates classifications on the
basis of eligibility for an appointment; those who have the
qualifications needed for the post form one class. it also
implies that the same class of employees constitute a
separate unit.
Art. 16(1)
forbids between the members of
this class discrimination and denial of equal opportunity in
the matter of promotion. [986 D-E; 987
A]
T. Devadasan v. The Union of India
[1964] 4 S.C.R. 680;

General Manager Southern Railway v. Rangachari
.
[1962] 2
S.C.R. 586 and Sham Sunder v. Union of India, [1969] 1
S.C.R. 312, referred to.
(4)
Art. 16(1)
in clear terms insists on equality of
opportunity for all employees of the same class, and this
requirement cannot be dispensed with because of anything in

Art. 46
or
Art. 335
which does not in any way qualify the
guarantee in
Art. 16(1).
The Article, of course, permits
classification, but only such classification as is
reasonable, and the test of reasonableness having regard to
the object of the Article, must be whether the proposed
classification helps in achieving this object. Judging by
this test it is not possible to hold that the sub-division
of Lower Division Clerks into two categories, those who
belong to the Scheduled Castes and Scheduled Tribes those
who do not, is reasonable. [987 E-F]
(5)(a) The special reference to the Scheduled Castes
and Scheduled Tribes does not suggest that the State should
promote the economic interests of these castes and tribes at
the expense of other "weaker sections of the people". [987
H]

(b) There is nothing reasonable in denying to some
Lower Division Clerks the same opportunity for promotion as
others have because they do not belong to a particular caste
or tribe. Scheduled Castes and Scheduled Tribes, no doubt,
constitute a well defined class, but a classification valid
for one purpose may not be so for another. In the context of

Art. 16(1)
the sub-class made by r. 13AA within the same
class of employees amounts to discrimination only on grounds
of race and caste which is forbidden by cl. (2) of
Art. 16.

[988 B]
(6) Picking out employees belonging to the Scheduled
Castes and Scheduled Tribes from the same class of Lower
Division Clerks to give them additional opportunity to be
promoted as Upper Division Clerks is not a measure for the
promotion of the economic welfare of these castes and
tribes. Some incidental financial gain to certain
individuals, assuming it results in the welfare of the
castes and tribes to which they belong in some remote and
indirect way is not what
Art. 46
contemplates. [988 D]
(7)(a) In any case,
Art. 16 (1)
does not permit such
classification as made by r. 13AA. That rule may have been
inspired by
Art. 46
which requires the State to take
measures to bridge the education and economic gap between
the weaker sections of the people and other citizens, but

Art. 46
does not qualify the provisions of
Art. 16(1).

Art.
16(1)
speaks of equality of opportunity, not opportunity to
achieve equality. [988
E-F]
State of Rajasthan & Ors. v, Thakur Pratap Singh
,
[1961] 1 S.C.R. 222, followed.

(b) For the same reasons
Art. 335
appears to be even
less relevant on the question under consideration. [988 F]
(8) The appalling poverty and backwardness of large
sections of the people must move the State machinery to do
everything in its power to better their condition. Doling
out unequal favours to members of the clerical staff does
not seem to be a step in that direction. [988
H]
T. Devadasan v. The Union of India
, [1964] 4
S.C.R.,
680 and M. R. Balaji & Ors. v. State of Mysore
, [1963] Supp.

1 S.C.R. 439, referred to.

&
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1160 of
1974.

From the Judgment and Order dated the 19th April, 1974
of the Kerala High Court in Original Petition No. 1656 of
1972.

M. M. Abdul Khadir, Advocate General, Kerala and K. M.
K. Nair for the appellants.

T. S. Krishnamoorthy Iyer, P. K. Pillai and N.
Sudhakaran for respondent No. 1.
R. K. Garg, V. J. Francis and K. R. Nambiyr for
respondent Nos. 2-4, 6 and 7 and the Intervener Mr.
Surendran.

R. K. Garg and O. P. Rana for the intervener-State of
U.P.
L. N. Sinha, Sol. Gen. P. P. Rao and Girish Chandra for
the Attorney-General for India.

The following Judgments were delivered :

RAY, C.J. This appeal is by certificate from the
judgment dated 19 April, 1974 of the High Court of Kerala.

This appell is concerns the validity of Rule 13AA the
Kerala State and Subordinate Services Rules, 1958
hereinafter called the Rules and two orders which are marked
P-2 and P-6.

In order to appreciate Rule 13AA, it is necessary to
refer to Rules 12, 13A, 13AA. These rules were framed in
exercise of the powers conferred by the proviso to
Article
of the Constitution. These rules came into existence on
17 December, 1958.

"Promotion" is defined in Rule 2(11) to mean the
appointment of a member of any category or grade of a
service or a class of service to a higher category or grade
of such service or class.

Rule 12 states that where general educational
qualifications, special qualifications or special tests are
prescribed by the Special Rules of a service for any
category, grade or post therein, or in a class thereof,
which are not prescribed for a category or grade in such
service or class carrying a lower rate of pay and no member
in the category or grade carrying the lower rate of pay is
eligible for promotion to such category, grade or post a
member in such lower category or grade may be promoted to
the category or grade carrying the higher rate of pay
temporarily until a member of the former category or grade
qualified under this rule is available for promotion. A
member temporarily promoted under this rule shall not by
reason only of such promotion, be regarded as a probationer
in the category or grade to which he has been promoted, or
be entitled to any preferential claim to future promotion.

Rule 13 speaks of special qualifications. Rule 13 does
not concern this appeal.

The two rules which are of importance in this appeal
are Rules 13A and 13AA. They are as follows :-
"13A. Special and Departmental Tests-Temporary
exemption for promotion.-Notwithstanding anything
contained in rule 13, where a pass in a special or
departmental test is newly prescribed by the Special
Rules of a service for any category, grade or post
therein or in any class thereof, a member of a service
who has not passed the said test but is otherwise
qualified and suitable for appointment to such class,
category, grade or post may within 2 years of the
introduction of the test be appointed thereto
temporarily.
If a member so appointed does not pass the test within
two years from the date of introduction of the said
test or when the said test also involves practical
training within two years after the first chance to
undergo such training he shall be reverted to the
class, category or grade or post from which he was
appointed and shall not again be eligible for
appointment under this rule :

Provided that a person so reverted shall not by
reason only of the appointment under this rule be
entitled to any preferential claim to future
appointment to the class, category, grade or post, as
the case may be to which he had been appointed under
this rule :

Provided further that the period of temporary
exemption shall be extended by two years in the case of
a person belonging to any of the scheduled castes or
scheduled tribes.

Provided also that this rule shall not be
applicable to tests prescribed for purposes of
promotion of the executive staff below the rank of Sub
Inspectors belonging to the Police Department".

"13AA. Notwithstanding anything contained in these
Rules, the Government may, by order, exempt for a
specified period, any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in
service, from passing the tests referred to in rule 13
or rule 13A of the said Rules.

Provided that this rule shall not be applicable to
tests prescribed for purposes of promotion of the
executive staff below the rank of Sub Inspectors
belonging to the Police Department".

It is necessary to state here that the third proviso to
Rule 13A and the proviso to Rule 13AA were introduced with
effect from 12 October, 1973. Rule 13AA was introduced with
effect from 13 January, 1972. Exhibit P-2 is an order dated
13 January, 1972. The order is made by the Governor. The
order refers to a memorandum dated 19 June, 1971 from the
President, Kerala Harijan Samskarika Kshema Samithy, State
Committee. Trivandrum and a letter dated 13 November, 1971
from the Secretary, Kerala Public Service Commission. The
order is as follows :-

"The President, Kerala Harijan Samskarika Kshema
Samithy, Trivandrum has brought to the notice of
Government that a large number of Harijan employees are
facing immediate reversion from their posts for want of
test qualifications and has therefore requested that
all Scheduled Castes and Scheduled Tribes emplovees may
be granted temporary exemption from passing the
obligatory depart mental tests for a period of two
years with immediate effect.

(2) Government have examined the matter in
consultation with the Kerala Public Service Commission
and are pleased to grant temporary exemption to members
already
in service belonging to any of the Scheduled Castes and
Scheduled Tribes from passing all tests (unified and
special or departmental tests) for a period of two
years.

(3) The benefit of the above exemption well be
available to those employees belonging to Scheduled
Castes and Scheduled Tribes who are already enjoying
the benefits of temporary exemption from passing newly
prescribed tests under General Rule 13A. In their case,
the temporary exemption will expire only on the date of
expiry of the temporary exemption mentioned in para (2)
above or on the date of expiry of the existing
temporary exemption, whichever is later.
(4) This order will take effect from the date of
the order".

Exhibit P-6 is an order dated 11 January, 1974. It is
an order made by the Governor. The order is as follows :-

"Government are pleased to order that the period
of temporary exemption granted to Scheduled Castes and
Scheduled Tribes in the G.O. read above from passing
all tests (unified and special or departmental tests)
be extended from 13-1-1974 to cover a period during
which two tests are held by the Public Service
Commission and results thereof published so that each
individual gets two chances to appear. Government also
order that these categories of employees will not be
given any further extension of time to acquire the test
qualifications."

Pursuant to Rule 13AA which came into force on 13th
January, 1972 the order Exhibit P-2 was passed on 13
January, 1972 granting temporary exemption to members
already in service belonging to any of the Scheduled Castes
and Scheduled Tribes from passing all tests (unified and
special or departmental tests) for a period of two years.
The exemption granted by Exhibit P-2 in almost all cases
would have expired on 12 January, 1974.

The other impugned order is Exhibit P-6 which was
passed on 11 January, 1974 gave further exemption to members
of Scheduled Castes and Tribes from 13 January, 1974 from
passing tests to cover a period during which two tests would
be held by the Public Service Commission and results thereof
published so that each individual would get two chances to
appear within that period. The Government also ordered that
these categories of employees would not be given any further
extension of time to acquire the test qualifications.

On the basis of these exemption orders, several
promotions have been effected. The respondent alleged in the
writ petition that 12 Lower Division Clerks who were members
of Scheduled Castes and Scheduled Tribes were promoted
without test qualification. The further allegation is that
by an order dated 15 June, 1972, 19 Lower
Division Clerks belonging to Scheduled Castes and Tribes
were promoted as Upper Division Clerks of which 5 were
unqualified Scheduled Castes and Scheduled Tribes members
and 14 were qualified Scheduled Castes and Scheduled Tribes
members. By order dated 19 September, 1972, another 8
promotions of members of Scheduled Castes and Tribes were
ordered of which only two were qualified and the remaining
six were unqualified. By another order dated 31st October,
1972, 7 Scheduled Castes and Scheduled Tribes members were
promoted without qualifying test and one was promoted with
the qualifying test. The grievance of the respondent-
petitioner before the High Court was that out of 51
vacancies which arose in the category of Upper Division
Clerks in the year 1972, 34 were filled up by Scheduled
Castes members who did not possess qualifications and only
17 were given to qualified persons.

The respondent is a Lower Division Clerk working in the
Registration Department. For promotion to Upper Division
Clerk in that Department on the basis of seniority, the
Lower Division Clerks have to pass (1) Account Test (Lower),
(2) Kerala Registration Test and (3) Test in the manual
office procedure. The respondent's grievance is that in view
of certain concessions given to members of Scheduled Castes
and Scheduled Tribes, they were able to obtain promotions
earlier than the respondent, though the members of the
Scheduled Castes and Scheduled Tribes who were promoted had
not passed the tests.

The respondent in the writ petition filed in the High
Court asked for a declaration that Rule 13AA is
unconstitutional and mandamus for compelling the State to
forbear from giving effect to order dated 13 January, 1972
marked Exhibit P-2. The respondent by an affidavit asked for
a similar order that Exhibit P-6 dated 11 January, 1974 be
set aside.

The respondents' contentions in the High Court were
that Rule 13AA of the Service Rules and Exhibits P-2, P-6
and Exhibit P-7 which was another order dated 31 October
1972 and all orders of promotion made thereunder were
violative of
Articles 16(1)
and
16(2).
The High Court upheld
the contentions of respondent No. 1.

The contention of the State is that the impugned rules
and orders are not only legal and valid but also support a
rational classification under
Article 16(1).

The contentions on behalf of respondent No. 1 are
these. First
Article 16
is a specific application of
Article
in matters relating to employment or appointment to any
service in the State. Clauses (1) and (2) of
Article 16
give
effect to equality before law guaranteed by
Article 14
and
to prohibition against discrimination guaranteed by
Article
15(1).
In other words,
Article 16(1)
is absolute in terms
guaranteeing equality of opportunity to every indivdiual
citizen seeking employment or appointment. Emphasis is
placed on similar opportunity and equal treatment for
seeking employment or appointment. Second, matters relating
to employment in Article 16(1) in-
clude all matters in relation to employment both prior and
subsequent to the employment and form part of the terms and
conditions of service. Equal opportunity is to be given for
appointment, promotion, termination of employment and
payment of pension and gratuity. Third, the abridgement of
equality guaranteed by
Article 16(1)
is only to the extent
curtailed by
Article 16(4).
Apart from
Article 16(4)
, the
right guaranteed under
Article 16(1)
cannot be curtailed.

Article 16(4)
is, in substance, an exception to rights
guaranteed by
Article 16(1)
and
(2).
Fourth,
Article 16(4)

does not cover the entire field occupied by
Article 16(1)

and
(2).
Some of the matters relating to employment in
respect of which equality of opportunity has been guaranteed
by
Article 16(1)
and
(2)
do not fall within the mischief of
non-obstante clause in
Article 16(4).
To illustrate, clauses
(1) and (2) of
Article 16
do not prohibit the prescription
of reasonable rules for selection to any employment or
appointment in office. Any provision as to the qualification
for employment or appointment in office reasonably fixed and
applicable to all citizens would be consistent with the
doctrine of equality of opportunity in
Article 16(1).

Reasonable qualification of employment for the purpose of
efficiency of service is justified. Fifth, rule 13AA is
violative of
Article 16(1)
and
(2).
The impeached Exhibits
fall within the same mischief. There is no scope for dealing
with Scheduled Castes and Scheduled Tribes different from
other backward classes. Exemption from qualification
necessary for promotion is not conducive to the maintenance
of efficiency of administration and violates not only

Article 335
of the Constitution but also
Article 16(1).

Before the introduction of the Kerala State and
Subordinate Services Ruless 1958 on 17 December, 1958 and
also the formation of Kerala State on 1 November, 1956, the
Travancore-Cochin Government had issued orders on 14 June,
1956 directing that the standard of qualification should be
lower for members of Scheduled Castes and Scheduled Tribes
than compared to others in the matter of examinations
relating to various tests. By Government order dated 27
June, 1958, it was directed that the peiod of exemption from
passing tests be extended by two years in the case of
Scheduled Castes and Scheduled Tribes. Again by Government
order dated 2 January, 1961. the period of exemption to
Scheduled Castes and Scheduled Tribes was further extended
to 3 years. By another Government order dated 14 January,
1963, a unified account test (lower) and a test in office
procedure were introduced replacing the old tests and as
this was treated as a new test, all persons who were
formerly in Travancore-Cochin or Madras Service were given
two years' time to pass the test and members of the
Scheduled Castes and Scheduled Tribes were given extra time
in accordance with the orders earlier mentioned. A circular
was issued on 9 February, 1968 granting 7 years' time from
14 January, 1963 to members of the Scheduled Castes and
Scheduled Tribes to pass the unified tests. This period was
to expire on 14 January, 1970. On 13 January, 1970, an order
was passed extending the time for another year upto 14
January, 1971. On 14 January, 1971 another Government order
was issued extending the period by another year.
It was brought to the notice of the Government that
large number of Government servants belonging to Scheduled
Casts and Scheduled Tribes were unable to get their
promotion because of want of test qualifications. In order
to give relief to the Scheduled Castes and Scheduled Tribes,
the Government incorporated Rule 13AA which enabled the
Government to grant exemption to members of Scheduled Castes
and Scheduled Tribes for a specified period. On 13 January,
1972 exemption from passing the tests was granted to members
of Scheduled Castes and Scheduled Tribes for two years. On
11 January, 1974 order was made under Rule 13AA giving
members of Scheduled Castes and Scheduled Tribes exemption
from passing the tests for the period of two tests to be
conducted after the order dated 11 January, 1974.

The criterion for promotion of Lower Division Clerks to
Upper Division Clerks is seniority-cum-merit qualification.
For want of test qualification a large number of Lower
Division Clerks belonging to Scheduled Castes and Scheduled
Tribes were passed over. It is because of the aforesaid
Government order dated 13 January, 1972 marked exhibit P-2
that promotions were made according to seniority-cum-merit
qualification. The larger share went to the members of the
Scheduled Castes and Scheduled Tribes because they were
senior hands. After the issue of the order dated 13 January,
1972, 34 out of 51 Lower Division Clerks who were promoted
belonged to the Scheduled Castes and Scheduled Tribes. These
34 persons were given temporary exemption from passing the
departmental tests. It also appears that these 34 members of
Scheduled Castes and Scheduled Tribes have become senior
most in the lower cadre.

Articles 14
, 15
and
form part of a string of
constitutionally guaranteed rights. These rights supplement
each other.
Article 16
which ensures to all citizens
equality of opportunity in matters relating to employment is
an incident of guarantee of equality contained in Article

14.
Article 16(1)
gives effect to
Article 14.
Both
Articles
and
16(1)
permit reasonable classification having a nexus
to the objects to be achieved. Under
Article 16
there can be
a reasonable classification of the employees in matters
relating to employment or appointment.

This Court in the State of Gujarat and Anr. etc. v.
Shri Ambica Mills Ltd. Ahmedabad etc.(1) said "The equal
protection of the laws is a pledge of the protection of
equal laws. But laws may classify. And the very idea of
classification is that of inequality. In tackling this
paradox the Court has neither abandoned the demand for
equality nor denied the legislative right to classify. It
has taken a middle course. It has resolved the contradictory
demands of legislative specialization and constitutional
generality by a doctrine of reasonable classification. (See
Joseph Tussman and Jacobus ten Breck, "The Equal Protection
of the Laws", 37 California Rev. 341.)"
In the Ambica Mills case (supra) this Court explained
reasonable classification to be one which includes all who
are similarly situated and none who are not. The question as
to who are similarly situated has been answered by stating
that one must look beyond the classification to the purpose
of law. "The purpose of a law may be either the elimination
of a public mischief or the achievement of some positive
public good."

Discrimination is the essence of classification.
Equality is violated if it rests on unreasonable basis. The
concept of equality has an inherent limitation arising from
the very nature of the constitutional guarantee. Those who
are similarly circumstanced are entitled to an equal
treatment. Equality is amongst equals. Classification is,
therefore, to be founded on substantial differences which
distinguish persons grouped together from those left out of
the groups and such differential attributes must bear a just
and rational relation to the object sought to be achieved.

The crux of the matter is whether Rule 13AA and the two
orders Exhibits P-2 and P-6 are unconstitutional violating

Article 16(1).

Article 16(1)
speaks of equality of
opportunity in matters relating to employment or appointment
under the State. The impeached Rule and orders relate to
Promotion from Lower Division Clerks to Upper Division
Clerks. Promotion depends upon passing the test within two
years in all cases and exemption is granted to members of
Scheduled Castes and Scheduled Tribes for a longer period
namely, four years. If there is a rational classification
consistent with the purpose for which such classification is
made equality is not violated. The categories of
classification for purposes of promotion can never be closed
on the contention that they are all members of the same
cadre in service. If classification is made on educational
qualifications for purposes of promotion or if
classification is made on the ground that the persons are
not similarly circumstanced in regard to their entry into
employment, such classification can be justified.
Classification between direct recruits and promotees for
purposes of promotion has been held to be reasonable in
C.
A. Rajendran v. Union of India
(1).

The respondent contended that apart from
Article 16(4)

members of Scheduled Castes and Scheduled Tribes were not
entitled to any favoured treatment in regard to promotion.

In
T. Devadasan v. The Union of India & Anr.
(2) reservation
was made for backward classes. The number of reserved seats
which were not filled up was carried forward to the
subsequent year. On the basis of "carry forward" principle
it was found that such reserved seats might destroy
equality. To illustrate, if 18 seats were reserved and for
two succesive years the reserved seats were not filled and
in the third year there were 100 vacancies the result would
be that 54 reserved seats would be occupied out of 100
vacancies. This would destroy equality. On that ground
"carry forward" principle was not sustained in Devadasan's
case (supra).
The same view was taken in the case of M. R.
Bajali and Others v. State of Mysore(3). It was said that
not
more than 50 per cent should be reserved for backward
classes. This ensures eqalality.
Reservation is not a
constitutional compulsion but is discretionary according to
the ruling of this Court in
Rajendran
's case (supra).

There is no denial of equality of opportunity unless
the person who complains of discrimination is equally
situated with the person or persons who are alleged to have
been favoured.
Article 16(1)
does not bar a reasonable
classification of employees or reasonable tests for their
selection
State of Mysore v. V. P. Narasinga Rao
(1).

This equality of opportunity need not be confused with
absolute equality.
Article 16(1)
does not prohibit the
prescription of reasonable rules for selection to any
employment or appointment to any office. 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 16(1)
guarantees is equality of opportunity to all
citizens.
Articles 16(1)
and
(2)
give effect to equality
before law guaranteed by
Article 14
and to the prohibition
of discrimination guaranteed by
Article 15(1).
Promotion to
selection post is covered by
Article 16(1)
and
(2).

The power to make reservation, which is conferred on
the State, under
Article 16(4)
can be exercised by the State
in a proper case not only by providing for reservation of
appointments but also by providing for reservation of
selection posts. In providing for reservation of
appointments or posts under
Article 16(4)
the State has to
take into consideration the claims 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. (General Manager,
S. Rly. v. Rangachari. The present case is not one of
reservation of posts by promotion.

Under
Article 16(1)
equality of opportunity of
employment means equality as between members of the same
class of employees and not equality between members of
separate, independent class. The Roadside Station Masters
and Guards are recruited separately, trained separately and
have separate avenues of promotion. The Station Mas ers
claimed equality of opportunity for promotion vis-a-vis the
guards on the ground that they were entitled to equality of
opportunity. It was said he concept of equality can have no
existence except with reference to matters which are common
as between individuals, between whom equality is predicated.
The Road-side Station Masters and Guards were required
separately. Therefore, the two form distinct and separate
classes and there is no scope for predicating equality or
inequality of opportunity in matters of promotion. See
All
India
Station Masters and Assistant Station Masters' Association
v. General Manager, Central Railways
(1). The present case is
not to create separate avenues of promotion for these
persons.

The rule of parity is the equal treatment of equals in
equal circumstances. The rule of differentiation is enacting
laws differentiating between different persons or things in
different circumstances. The circumstances which govern one
set of persons or objects may not necessarily be the same as
those governing and her set of persons or objects so that
the question of unequal treatment does not really arise
between persons governed by different conditions and
different sets of circumstances. The principle of equality
does not mean that every law must have universal application
for all persons who are not by nature, attainment or
circumstances in the same position and the varying needs of
different classes of persons require special treatment. The
legislature understands and appreciates the need of its own
people, that its laws are directed to problems made manifest
by experience and that its discriminations are based upon
adequate grounds. The rule of classification is not a
natural and logical corollary of the rule of equality, but
the rule of differentiation is inherent in the concept of
equality. Equality means parity of treatment under parity of
conditions. Equality does not connote absolute equality. A
classification in order to be constitutional must rest upon
distinctions that are substantial and not merely illusory.
The test is whether it has a reasonable basis free from
artificiality and arbitrariness embracing all and omitting
none naturally falling into that category.

The following decisions illustrate how classification
for promotion has been upheld within the content of Article

16.
There can be cases where the differences between the
two groups of recruits may not be sufficient to give any
preferential treatment to one against the other in the
matter of promotions, and in that event a Court may hold
that there is no reasonable nexus between the differences
and the recruitment. [
Govind Dattatray Kelkar v. Chief
Controller of Imports
(2)].

The equality of opportunity takes within its fold all
stages of service from initial appointment to its
termination including promotion but it does not prohibit the
prescription of reasonable rules for selection and
promotion, applicable to all members of a classified group.

Ganga Ram v. Union of India
(3).

When the petitioner and the direct recruits were
appointed to Grade `D', there was one class of Grade `D'
formed of direct recruits and the promotees from the grade
of artisans. The recruits from both
the sources to Grade `D' were integrated into one class and
no discrimination could thereafter be made between them.
There was only one rule of promotion for both the
departmental promotees and the direct recruits.
Roshan Lal
Tandon v. Union of India
(1).

In
State of Jammu & Kashmir v. Triloki Nath Khosa &
Ors.
(2) this Court said that dealing with practical
exigencies a rule making authority may be guided by
realities just as the legislature "is free to recognise
degrees of harm and it may confine its restrictions to those
classes of cases where the need is deemed to be the
clearest". Educational qualifications
in that case
were
recognised as criteria for determining the validity of
classification.

The discrimination is not in relation to the
source of recruitment unlike in
Roshan Lal
's case (supra).

The rule of equality within
Articles 14
and
16(1)
will
not be violated by a rule which will ensure equality of
representation in the services for unrepresented classes
after satisfying the basic needs of efficiency of
administration.
Article 16(2)
rules out some basis of
classification including race, caste, descent, place of
birth etc.
Article 16(4)
clarifies and explains that
classification on the basis of backwardness does not fall
within
Article 16(2)
and is legitimate for the purposes of

Article 16(1).
If preference shall be given to a particular
under-represented community other than a backward class or
under-represented State in an All India Service such a rule
will contravene
Article 16(2).
A similar rule giving
preference to an underrepresented backward community is
valid and will not contravene
Articles 14
, 16(1)
and
16(2).

Article 16(4)
removes any doubt in this respect.

The principle of equality is applicable to employment
at all stages and in all respects, namely, initial
recruitment, promotion, retirement, payment of pension and
gratuity. With regard to promotion the normal principles are
either merit-cum-seniority or seniority-cum-merit.
Seniority-cum-merit means that given the minimum necessary
merit requisite for efficiency of administration, the senior
though the less meritorious shall have priority. This will
not violate
Articles 14
, 16(1)
and
16(2).
A rule which
provides that given the necessary requisite merit, a member
of the backward class shall get priority to ensure adequate
representation will not similarly violate
Article 14
or

Article 16(1)
and
(2).
The relevant touchstone of validity
is to find out whether the rule of preference secures
adequate representation for the unrepresented backward
community or goes beyond it.

The classification of employees belonging to Scheduled
Castes and Scheduled Tribes for allowing them an extended
period of two years for passing the special tests for
promotion is a just and reasonable classification having
rational nexus to the object of providing equal opportunity
for all citizens in matters relating to employment or
appointment to public office. Granting of temporary
exemptions from
special tests to the personnel belonging to Scheduled Castes
and Scheduled Tribes by executive orders has been an
integral feature of the service conditions in Kerala from
its very inception on 1 November, 1956. That was the pattern
in Travancore-Cochin State. The special treatment accorded
to the Scheduled Castes and Scheduled Tribes in Government
service which had become part and parcel of the conditions
of service over these long periods amply justify the
classification of the members of the Scheduled Castes and
Scheduled Tribes as a whole by the impugned rule and orders
challenged. What was achieved by the Government orders is
now given a statutory basis by Rule 13AA. The historical
background of these rules justifies the classification of
the personnel of the Scheduled Castes and Scheduled Tribes
in service for the purpose of granting them exemption from
special tests with a view to ensuring them the equality of
treatment and equal opportunity in matters of employment
having regard to their backwardness and under representation
in the employment of the State.

The Constitution makes a classification of Scheduled
Castes and Scheduled Tribes in numerous provisions and gives
a mandate to the State to accord special or favoured
treatment to them.
Article 46
contains a Directive Principle
of State Policy-fundamental in the governance of the country
enjoining the State to promote with special care educational
and economic interests of the Scheduled Castes and Scheduled
Tribes and to protect them from any social injustice and
exploitation.
Article 335
enjoins that the claims of the
members of the Scheduled Castes and Scheduled Tribes to the
services and posts in the Union and the States shall be
taken into consideration.
Article 338
provides for
appointment by the President of a Special officer for the
Scheduled Castes and Scheduled Tribes to investigate all
matters relating to the safeguards provided for them under
the Constitution.
Article 341
enables the President by
public notification to specify castes, races or tribes which
shall be deemed to be Scheduled Castes in the States and the
Union Territories.
Article 342
contains provision for
similar notification in respect of Scheduled Tribes.
Article
366(24)
and
(25)
defines Scheduled Castes and Scheduled
Tribes. The classification by the impugned rule and the
orders is with a view to securing adequate representation to
Scheduled Castes and Scheduled Tribes in the services of the
State as otherwise they would stagnate in the lowest rung of
the State services.

Article 335
of the Constitution states that claims of
members of the Scheduled Castes and Scheduled Tribes shall
be taken into consideration in the making of appointments to
the services and posts in connection with affairs of the
State consistent with the maintenance of efficiency of
administration. The impugned rule and the impugned orders
are related to this constitutional mandate. Without
providing for relaxation of special tests for a temporary
period it would not have been possible to give adequate
promotion to the Lower Division Clerks belonging to
Scheduled Castes and Scheduled Tribes to the posts of Upper
Division Clerks. Only those Lower Division Clerks who were
senior in service will get the benefit of the relaxation
con-
templated by Rule 13AA and the impeached orders. Promotion
to Upper Division from Lower Division is governed by the
rule of seniority subject only to passing of the qualified
test. The temporary relaxation of test qualification made in
favour of Scheduled Castes and Scheduled Tribes is warranted
by their inadequate representation in the services and their
overall backwardness. The classification of the members of
the Scheduled Castes and Scheduled Tribes already in service
made under Rule 13AA and the challenged orders for exempting
them for a temporary period from passing special tests are
within the purview of constitutional mandate under
Article
in consideration of their claims to redress imbalance in
public service and to bring about parity in all communities
in public services.

The High Court was wrong in basing its conclusion that
the result of application of the impeached Rule and the
orders is excessive and exorbitant namely that out of 51
posts, 34 were given to the members of the Scheduled Castes
and Scheduled Tribes. The promotions made in the services as
a whole are nowhere near 50% of the total number of posts.
The Scheduled Castes and Scheduled Tribes constitute 10% of
the State's population. Their share in the gazetted services
of the State is said to be 2% namely 184 out of 8,780. Their
share in the non-gazetted appointments is only 7% namely
11,437 out of 1,62,784. It is therefore, correct that Rule
13AA and the orders are meant to implement not only the
direction under
Article 335
but also the Directive Principle
under
Article 46.

Scheduled Castes and Scheduled Tribes are not a caste
within the ordinary meaning of caste.
In
Bhaiyalal v.
Harikishan Singh and Ors.
(1) this Court held that an enquiry
whether the appellant there belonged to the Dohar caste
which was not recognised as a Scheduled Caste and his
declaration that he belonged to the Charmar caste which was
a Scheduled Caste could not be permitted because of the
provisions contained in
Article 341.
No Court can come to a
finding that any caste or any tribe is a Scheduled Caste or
Scheduled Tribe. Scheduled Caste is a caste as notified
under
Article 366(25).
A notification is issued by the
President under
Article 341
as a result of an elaborate
enquiry. The object of
Article 341
is to provide protection
to the members of Scheduled Castes having regard to the
economic and educational backwardness from which they
suffer.

Our Constitution aims at equality of statuts and
opportunity for all citizents including those who are
socially, economically and educationally backward. The
claims of members of backward classes require adequate
representation in legislative and executive bodies. If
members of Scheduled Castes and Tribes, who are said by this
Court to be backward classes, can maintain minimum necessary
requirement of administrative efficiency, not only
representation but also preference may be given to them to
enforce equality and to eliminate inequality.
Articles 15(4)

and
16(4)
bring out the position of backward classes to
merit equality. Special provisions are made for the
advancement of backward classes and reservations of
appointments and posts for them to secure adequate
representation. These provisions will bring
out the content of equality guaranteed by
Articles 14
, 15(1)

and
16(1).
The basic concept of equality is equality of
opportunity for appointment. Preferential treatment for
members of backward classes with due regard to
administrative efficiency alone can mean equality of
opportunity for all citizens. Equality under
Article 16

could not have a different content from equality under

Article 14.
Equality of opportunity for unequals can only
mean aggravation of inequality. Equality of opportunity
admits discrimination with reason and prohibits
discrimination without reason. Discrimination with reasons
means rational classification for differential treatment
having nexus to the constitutionally permissible object.
Preferential representation for the backward classes in
services with due regard to administrative efficiency is
permissible object and backward classes are a rational
classification reconginsed by our Constitution. Therefore,
differential treatment in standards of selection are within
the concept of equality.

A rule in favour of an under-represented backward
community specifying the basic needs of efficiency of
administration will not contravene
Articles 14
, 16(1)
and

16(2).
The rule in the present case does not impair the test
of efficiency in administration inasmuch as members of
Scheduled Castes and Tribes who are promoted have to acquire
the qualification of passing the test. The only relaxation
which is done in their case is that they are granted two
years more time than others to acquire the qualification.
Scheduled Castes and Tribes are descriptive of backwardness.
It is to the aim of our Constitution to bring them up from
handicapped position to improvement. If classification is
permissible under
Article 14
, it is equally permissible
under
Article 16
, because both the Articles lay down
equality. The quality and concept of equality is that if
persons are dissimilarly placed they cannot be made equal by
having the same treatment. Promotion of members of Scheduled
Castes and Tribes under the impeached rules and orders is
based on the classification with the object of securing
representation to members of Scheduled Castes and Tribes.
Efficiency has been kept in view and not sacrificed.

All legitimate methods are available for equality of
opportunity in services under
Article 16(1).

Article 16(1)

is affirmative whereas
Article 14
is negative in language.

Article 16(4)
indicates one of the methods of achieving
equality embodied in
Article 16(1).

Article 16(1)
using the
expression "equality" makes it relatable to all matters of
employment from appointment through promotion and
termination to payment of pension and gratuity.
Article
16(1)
permits classification on the basis of object and
purpose of law or State action except classification
involving discrimination prohibited by
Article 16(2).
Equal
protection of laws necessarily involves classification. The
validity of the classification must be adjudged with
reference to the purpose of law. The classification in the
present case is justified because the purpose of
classification is to enable members of Scheduled Castes and
Tribes to find representation by promotion to a limited
extent. From the point of view of time a differential
treatment is given to members of Scheduled Castes and Tribes
for the purpose of giving them equality consistent with
efficiency.
For the foregoing reasons, I uphold the validity of
Rule 13AA and Exhibits P-2 and P-6. The appeal is accepted.
The judgment of the High Court is set aside. Parties will
pay and bear their own costs.

KHANNA, J. Whether the State Government can grant
exemption for specified period to employees belonging only
to the scheduled castes or scheduled tribes from passing
departmental test for the purpose of promotion under clause
(1) of
article 16
of the Constitution is the important
question which arises for determination in this appeal filed
on certificate by the State of Kerala and the Inspector
General of Registration against the judgment of the Kerala
High Court. The High Court answered the question in the
negative in a petition filed by N. M. Thomas, lower division
clerk of the Registration Department of the Kerala State,
respondent No. 1, under
article 226
of the Constitution.

According to clause (a) of rule 13 in Part II of the
Kerala State and Subordinate Services Rules, 1958
(hereinafter referred to as the rules) framed under
article
of the Constitution, no person shall be eligible for
appointment to any service, class, category or grade or any
post borne on the cadre thereof unless he possesses such
special qualifications and has passed such special tests as
may be prescribed in that behalf in the Special Rules. In
January 1963 a unified test was prescribed by the Kerala
Government for lower division clerks for promotion to the
upper division. A pass in the test in the Manual of Office
Procedure, Account Test and the Registration Test was
obligatory for promotion of lower division clerks as upper
division clerks in the Registration Department. Rule 13A,
however, provided for temporary exemption from passing a
newly prescribed special or departmental test for a period
of two years. Rule 13A reads as under :

"Notwithstanding anything contained in rule 13,
where a pass in a special or departmental test is newly
prescribed by the Special Rules of a service for any
category, grade or post therein or in any class
thereof, a member of a service who has not passed the
said test but is otherwise qualified and suitable for
appointment to such class, category, grade or post may
within 2 years of the introduction of the test be
appointed thereto temporarily. If a member so appointed
does not pass the test within two years from the date
of introduction of the said test or when the said test
also involves practical training, within two years
after the first chance to undergo such training he
shall be reverted to the class, category or grade or
post from which he was appointed and shall not again be
eligible for appointment under this rule :

Provided that a person so reverted shall not by
reason only of the appointment under this rule be
entitled to any preferential claim to future
appointment to the class, category, grade or post, as
the case may be to which he had been appointed under
this rule :
Provided further that the period of temporary
exemption shall be extended by two years in the case of
a person belonging to any of the scheduled castes or
scheduled tribes.

Provided also that this rule shall not be
applicable to tests prescribed for purposes of
promotion of the executive staff below the rank of Sub
Inspectors belonging to the Police Department."

On January 13, 1972 rule 13AA was inserted in the
rules. It reads as under :

"13A Notwithstanding anything contained in these
rules, the Government may, by order, exempt for a
specified period, any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in
service, from passing the tests referred to in rule 13
or rule 13A of the said Rules.

Provided that this rule shall not be applicable to
tests prescribed for purposes of promotion of the
executive staff below the rank of Sub Inspectors
belonging to the Police Department."

The following order was issued by the State Government on
January 13, 1972 :

"The President, Kerala Harijan Samaskarika Kshema
Samithy, Trivandrum has brought to the notice of
Government that a large number of Harijan employees are
facing immediate reversion from their posts for want of
test qualifications and has therefore requested that
all Scheduled Castes and Scheduled Tribes employees may
be granted temporary exemption from passing the
obligatory departmental tests for a period of two years
with immediate effect.

(2) Government have examined the matter in
consultation with the Kerala Public Service Commission
and are pleased to grant temporary exemption to members
already in service belonging to any of the Scheduled
Castes and Scheduled Tribes from passing all tests
(unified and special or departmental tests) for a
period of two years.

(3) The benefit of the above exemption will be
available to those employees belonging to Scheduled
Castes and Scheduled Tribes who are already enjoying
the benefits of temporary exemption from passing newly
prescribed tests under General Rule 13A. In their case
the temporary exemption will expire only on the date of
expiry of the temporary exemption mentioned in para (2)
above or on the date of expiry of the existing
temporary exemption, whichever is later.
(4) This order will take effect from the date of
the order."
During the pendency of the writ petition in the High Court,
a further order was issued by the State Government on July
11, 1974 for extending the period of exemption as under :

"1. G.O. (NS) No. 22/PD dated 13-1-1972.

.....................

.....................

.....................

ORDER
Government are pleased to order that the period of
temporary exemption granted to Scheduled Castes and
Scheduled Tribes in the G.O. read above from passing
all tests (unified and special or departmental tests)
be extended from 13-1-1974 to cover a period during
which two tests are held by the Public Service
Commission and results thereof published so that each
individual gets two chances to appear. Government also
order that these categories of employees will not be
given any further extension of time to acquire the test
qualifications."

Respondent No. 1 passed all the tests by November 2,
1971. The other respondents, who are members of scheduled
castes and scheduled tribes and who too were lower division
clerks working in the Registration Department of the State,
were promoted as upper division clerks even though they had
not passed the tests mentioned above. Respondent No. 1 was
not, however, promoted despite the fact that he had passed
the requisite tests. In 1972 out of 51 lower division clerks
promoted as upper division clerks, 34 belonged to scheduled
castes and tribes. Respondent No. 1 thereupon filed petition
under
article 226
on March 15, 1972 for a declaration that
rule 13AA under which exemption had been granted to the
other respondents in the matter of promotion was violative
of
article 16
of the Constitution. Prayer was also made for
quashing order dated January 13, 1972 reproduced above by
which exemption was actually granted to scheduled castes and
scheduled tribes employees from passing the obligatory
departmental test for a period of two years.

The petition was resisted by the appellants and the
other respondents and it was averred on their behalf that
the impugned rule and order were not violative of article

16. The High Court held that rule 13AA was void being
violative of clauses (1) and (2) of
article 16
of the
Constitution. Orders dated January 13, 1972 and January 11,
1974 as well as other orders promoting members of Scheduled
Castes and scheduled Tribes who had not passed the
prescribed test were quashed. The High Court also expressed
the view that the promotion of 34 out of 51 persons even
though they had not passed the necessary test was not
conducive to the maintenance of efficiency of
administration. The order in this respect was stated to be
violative of
article 335
of the Constitution.

In appeal before us the learned Advocate-General on
behalf of the appellants has contended that the impugned
rule and orders are cons-
titutionally valid under clause (1) of
article 16.
He has in
this context invited our attention to
articles 46
and
of
the Constitution. It has, however, been frankly conceded by
the Advocate-General that he does not rely upon clause (4)
of
article 16
of the Constitution for sustaining the
validity of the impugned rule and orders. The stand taken on
behalf of the appellants has also been supported by the
learned Solicitor-General as well as by Mr. Garg on behalf
of respondents other than respondent No. 1. As against the
above, Mr. Krishnamurthy Iyer on behalf of respondent No. 1
has canvassed for the correctness of the view taken by the
High Court and has contended that the validity of the
impugned rule and orders cannot be justified under clause
(1) of
article 16.

It may be apposite at this stage to reproduce
articles
, 46
and
of the Constitution :

"16. (1) There shall be equality of opportunity
for all citizens in matters relating to employment or
appointment to any office under the State.
(2) 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.

(3) Nothing in this article shall prevent
Parliament from making 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.
(4) Nothing in this article shall prevent the
State from making any provision for the reservation of
appointments or posts in favour of any backward class
of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
(5) Nothing in this article shall affect the
operation of any law which provides that the incumbent
of any office in connection with the affairs of any
religious or denominational institution or any member
of the governing body thereof shall be a person
professing a particular religion or belonging to a
particular denomination.

46. The State shall promote with special care
educational and economic interests of the weaker
sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of
exploitation.

335. 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 adminis-
tration, in the making of appointments to services and
posts in connection with the affairs of the Union or of
a State."

Article 14
of the Constitution enshrines the principle
of equality before the law.
Article 15
prohibits
discrimination against citizens on grounds only of religion,
race, caste, sex, place of birth or any of them.
Article 16

represents one fact of the guarantee of equality. According
to this article, there shall be equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State. No citizen, it is
further provided, 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.
Articles 14
,
and
underline the importance which the framers of our
Constitution attached to ensuring equality of treatment.
Such equality has a special significance in the matter of
public employment. It was with a view to prevent any
discrimination in that field that an express provision was
made to guarantee equality of opportunity for all citizens
in matters relating to employment or appointment to any
office under the State.

At the same time the framers of the Constitution were
conscious of the backwardness of large sections of the
population. It was also plain that because of their
backwardness those sections of the population would not be
in a position to compete with advanced sections of the
community who had all the advantages of affluence and better
education. The fact that the doors of competition were open
to them would have been a poor consolation to the members of
the backward classes because the chances of their success in
the competition were far too remote on account of the
inherent handicap and disadvantage from which they suffered.
The result would have been that, leaving aside some
exceptional cases, the members of backward classes would
have hardly got any representation in jobs requiring
educational background. It would have thus resulted in
virtually repressing those who were already repressed. The
framers of the Constitution being conscious of the above
disadvantage from which backward classes were suffering
enjoined upon the State in
article 46
of the Constitution to
promote with special care educational and economic interests
of the weaker sections of the people, in particular of the
Scheduled Castes and Scheduled Tribes, and also protect them
from social injustice and all forms of exploitation. To give
effect to that objective in the field of public employment,
a provision was made in clause (4) of
article 16
that
nothing in that article would 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, was not adequately represented in the
services under the State. Under the above clause, it is
permissible for the State, in case it finds the
representation of any backward class of citizens in the
State services to be not adequate, to make provision for the
reservation of appointments or posts in favour of that
backward class of citizens. The reservation of seats for the
members of the backward classes was not, however, to be at
the cost of efficiency. This fact was brought out in
article
,
according to which 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. In view of that it is not permissible
to waive the requirement of minimum educational
qualification and other standards essential for the
maintenance of efficiency of service.

It is further plain that the reservation of posts for a
section of population has the effect of conferring a special
benefit on that section of the population because it would
enable members belonging to that section to get employment
or office under the State which otherwise in the absence of
reservation they could not have got. Such preferential
treatment is plainly a negation of the equality of
opportunity for all citizens in matters relating to
employment or appointment to an office under the State.
Clause (4) of
article 16
has, therefore, been construed as a
proviso or exception to clause (1) of that article (see
The
General Manager, Southern Railway v. Rangachari
(
1) and T.
Devadasan v. The Union of India & Anr.
(2).

It has been argued on behalf of the appellants that
equality of treatment does not forbid reasonable
classification. Reference in this context is made to the
well accepted principle that
article 14
of the Constitution
forbids class legislation but does not forbid
classification. Permissible classification, it is equally
well established, must be founded on an intelligible
differentia which distinguishes persons or things that are
grouped together from others left out of the group and the
differentia must have a rational relation to the object
sought to be achieved by the statute in question. It is
urged that the same principle should apply when the court is
concerned with the equality of opportunity for all citizens
in matters relating to employment or appointment to any
office under the State.
In this respect I may observe that
this Court has recognized the principle of classification in
the context of clause (1) of
article 16
in matters where
appointments are from two different sources, e.g., guards
and station masters, promotees and direct recrits, degree
holder and diploma holder engineers (see
All India Station
Masters & Asstt. Station Masters' Assn. & Ors. v. General
Manager
, Central Railway & Ors.,(3) S. G. Jaisnghani v.
Union of India & Ors.(
1) and State of Jammu & Kashmir v.
Triloki Nath Khosa & Ors.
(5). The question with which we are
concerned, however, is whether we can extend the above
principle of classification so as to allow preferential
treatment to employees on the ground that they are members
of the scheduled castes and scheduled tribes. So far as this
question is concerned I am of the view that the provision of
preferential treatment for members of backward classes,
including scheduled castes and scheduled tribes, is that
contained in clause (4) of
article 16
which permits
reservation of posts for them. There is
no scope for spelling out such preferential treatment from
the language of clause (1) of
article 16
because the
language of that clause does not warrant any preference to
any citizen against another citizen. The opening words of
clause (4) of
article 16
that "nothing in this article shall
prevent the State from making any provision for the
reservation of appointments or posts in favour of backward
class of citizens" indicate that but for clause (4) it would
not have been permissible to make any reservation of
appointments or posts in favour of any backward class of
citizens.

In the case of
All India Station Masters' & Asstt.
Station Masters' Association
(supra) the Roadside Masters of
the Central Railway Challenged the constitutionality of
promotion of guards to higher grade station masters' posts.
The petitioners' contention was that the channel of
promotions amounted to a denial of equal opportunity as
between Roadside Station Masters and guards in the matter of
promotion and thus contravened clause (1) of
article 16
of
the Constitution. It was urged that taking advantage of this
channel of promotions, guards became station masters at a
much younger age than Roadside Station Masters who reached
the scale when they were much older. According to the
petitioners, Roadside Station Masters and guards really
formed one and the same class of employees. This Court
rejected that contention and held that the Roadside Station
Masters belonged to a wholly distinct and separate class
from guards and so there could be no question of equality of
opportuntiy in matters of promotions as between Roadside
Station Masters and guards. It was further laid down that
the question of denial of equal opportunity required serious
consideration only as between the members of the same class.
The concept of equal opportunity in matters of employment
did not apply as between members of different classes of
employees under the State. Equality of opportunity in
matters of employment could be predicated only between
persons who were either seeking the same employment, or had
obtained the same employment. Equality of opportunity in
matters of promotion must mean equality between members of
the same class of employees and not equality between members
of separate, independent classes.

In the case of
Jaisinghani

(supra) the dispute was about seniority between two classes
of income-tax service, the direct recruits to class I grade
II and promotees from class II to class I grade II. For the
purpose of promotion, the Government fixed a ratio of 2 to 1
for direct recruits and promotees. It was in that context
and on those facts that this Court laid down that it is not
correct to say that all officers appointed to class I, grade
II service formed one class and that after the officers have
been once recruited there could be no distinction between
direct recruits and promotees. It is really a case of
recruitment to the service from two different sources and
the adjustment of seniority between them. The concent of
equality in the matter of promotion can be predicated only
when the promotees are drawn from the same source. If the
preferential treatment of one source in relation to the
other is based on the differences between the two sources,
and the said differences have a reasonable relation to the
nature of the office it can legitimately be sustained on the
basis of a valid classification. The reason for the
classification
in that case
was that the higher echelons of
the service should be filled by experienced officers
possessing not only a high degree of ability but also first-
rate experience.

In the case of
Triloki Nath Khosa
(supra)
the question before the Court was with regard to the
validity of a rule which provided that only those assistant
engineers would be eligible for promotion as executive
engineers who possessed a degree in engineering. The
validity of this rule was challenged by assistant engineers
who were diploma-holders and did not possess the degree in
engineering. This Court held that though persons appointed
directly and by promotion were integrated into a common
class of assistant engineers, they could for purposes of
promotion to the cadre of executive engineers be classified
on the basis of educational qualifications. The rule
providing that graduates shall be eligible for such
promotion to the exclusion of diploma-holders was held to be
not violative of
articles 14
and
of the Constitution. It
would thus appear that in each of the above cases the Court
was concerned with two categories of employees, each one of
which category constituted a separate and distinct class.
Differential treatment for those classes was upheld in the
context of their educational and other qualifications and
because of the fact that they constituted distinct and
separate classes. Not much argument is needed to show that a
rule requiring that an official must possess a degree in
engineering before he can be promoted to the post of
executive engineer is conceived in the interest of
efficiency of service. A classification based upon that
consideration is obviously valid. Likewise, classification
based upon the consideration that one category of employees
are direct recruits while others are promotes, is
permissible classification because the two categories of
employees constitute two separate and distinct classes. The
same is true of roadside station masters and guards.
Classification of employees in each of these cases was
linked with the nature of their initial employment or
educational qualifications and had nothing to do with the
fact that they belonged to any particular section of the
population. A classification based upon the first two
factors was upheld because it was conceived in the interest
of efficiency of service and because they constituted two
different classes in view of the fact that they were
initially appointed to posts of different categories. Such
classification does not impinge upon the rule of equality of
opportunity. As against that, a classification based upon
the consideration that an employee belongs to a particular
section of the population with a view to accord preferential
treatment for promotion is clear violation of equality of
opportunity enshrined in clause (1) of
article 16.
In no
case has the Court ever accepted and upheld under
article
16(1)
classification and differential treatment for the
purpose of promotion among employees who possessing the same
educational qualifications were initially appointed as in
the present case to the same category of posts, viz., that
of lower division clerks.

The present case falls squarely
within the dictum
laid down in
the case of
Station Masters'
& Asstt. Station Masters' Association
(supra) that equaliy
of opportunity in matters of employment could be predicated
between persons who were either seeking the same
employment or had obtained the same employment. The
essential object of various rules dealing with appointment
to posts under the State and promotion to higher posts is to
ensure efficiency of service. Classification upheld under
clause (1) of
article 16
subserved and in no case militated
against the attainment of that object. Exemption granted to
a class of employees, even though for a limited period from
passing the departmental tests which have been prescribed
for the purpose of promotion would obviously be subversive
of the object to ensure efficiency of service. It cannot be
disputed that departmental tests are prescribed with a view
to appraise and ensure efficiency of different employees. To
promote employees even though they have not passed such
efficiency test can hardly be consistent with the
desideratum of ensuring efficiency in administation.

Much has been made of the fact that exemption from
passing departmental tests granted to members of scheduled
castes and scheduled tribes is not absolute but only for a
limited period. This fact, in our opinion, would not lend
constitutionality to the impugned rule and orders. Exemption
granted to a section of employees while being withheld from
the remaining employees has obvious element of
discrimination between those to whom it is granted and those
from whom it is withheld. If the passing of departmental
tests is an essential condition of promotion, it would
plainly be invidious to insist upon compliance with that
condition in the case of one set of employees and not to do
so in the case of other. The basic question is whether
exemption is constitutionally permissible. If the answer to
that question be in the negative, the fact that exemption is
for a limited period would not make any material difference.
In either event the vice of discrimination from which
exemption suffers would contaminate it and stamp it with
unconstitutionality. Exemption for a limited period to be
constitutionally valid cannot be granted to one set of
employees and withheld from the other.

What clause (1) of
article 16
ensures is equality of
opportunity for all citizens as individuals in matters
relating to employment or appointment to any office under
the State. It applies to them all, the least deserving as
well as the most virtuous. Preferential and favoured
treatment for some citizens in the matter of employment or
appointment to any office under the State would be
antithesis of the principle of equality of opportunity.
Equality of opportunity in matters of employment guaranteed
by clause (1) of
article 16
is intended to be real and
effective. It is not something abstract or illusory. It is a
command to be obeyed, not one to be defied or circumvented.
It cannot be reduced to shambles under some cloak. Immunity
or exemption granted to a class, however limited, must
necessarily have the effect of according favoured treatment
to that class and of creating discrimination against others
to whom such immunity or exemption is not granted. Equality
of opportunity is one of the corner-stones of our
Constitution. It finds a prominent mention in the preamble
to the Constitution and is one of the pillars which gives
support and strength to the social, political and
administrative edifice of the nation. Privileges,
advantages, favours, exemptions,
concessions specially earmarked for sections of population
run counter to the concept of equality of opportunity, they
indeed eat into the very vitals of that concept. To
countenance classification for the purpose of according
preferential treatment to persons not sought to be recruited
from different sources and in cases not covered by clause
(4) of
article 16
would have the effect of eroding, if not
destroying altogether, the valued principle of equality of
opportunity enshrined in clause (1) of
article 16.

The proposition that to overdo classification is to
undermine equality is specially true in the context of

article 16(1).
To introduce fresh notions of classification
in
article 16(1)
, as is sought to be done in the present
case, would necessarily have the effect of vesting the State
under the garb of classification with power of treating
sections of population as favoured classes for public
employment. The limitation imposed by clause (2) of
article
may also not prove very effective because, as has been
pointed out during the course of arguments, that clause
prevents discrimination on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any of
them. It may not be difficult to circumvent that clause by
mentioning grounds other than those mentioned in clause (2).

To expand the frontiers of classification beyond those
which have so far been recognized under clause (1) of

article 16
is bound to result in creation of classes for
favoured and preferential treatment for public employment
and thus erode the concept of equality of opportunity for
all citizens in matters relating to employment under the
State.

In construing the provisions of the Constitution we
should avoid a doctrinaire approach. A Constitution is the
vehicle of the life of a nation and deals with practical
problems of the government. It is, therefore, imperative
that the approach to be adopted by the courts while
construing the provisions of the Constitution should be
pragmatic and not one as a result of which the court is
likely to get lost in a maze of abstract theories. Indeed,
so far as theories are concerned, human thinking in its full
efforescence, free from constraints and inhibitions, can
take such diverse forms that views and reasons apparently
logical and plausible can be found both in favour of and
against a particular theory. If one eminent thinker supports
one view, support for the opposite view can be found in the
writings of another equally eminent thinker. Whatever indeed
may be the conclusion, arguments not lacking in logic can be
found in support of such conclusion. The important task of
construing the articles of a Constitution is not an exercise
in mere syllogism. It necessitates an effort to find the
true purpose and object which underlies that article. The
historical background, the felt necessities of the time, the
balancing of the conflicting interests must all enter into
the crucible when the court is engaged in the delicate task
of construing the provisions of a Constitution. The words of
Holmes that life of law is not logic but experience have a
direct relevance in the above context.

Another thing which must be kept in view while
construing the provisions of the Constitution is to foresee
as to what would be the
impact of that construction not merely on the case in hand
but also on the future cases which may arise under those
provisions. Out of our concern for the facts of one
individual case, we must not adopt a construction the effect
of which might be to open the door for making all kinds of
inroads into a great ideal and desideratum like that of
equality of opportunity. Likewise, we should avoid, in the
absence of compelling reason, a course that has the effect
of unsettling a constitutional position, which has been
settled over a long-term of years by a series of decisions.

The liberal approach that may sometimes have been
adopted in upholding classification under
article 14
would
in the very nature of things be not apt in the context of

article 16
when we keep in view the object underlying

article 16.

Article 14
covers a very wide and general field
of equality before the law and the equal protection of the
laws. It is, therefore, permissible to cover within its
ambit manifold classifications as long as they are
reasonable and have a rational connection with the object
thereof. As against that,
article 16
operates in the limited
area of equality of opportunity for all citizens in matters
relating to employment or appointment to an office under the
State. Carving out classes of citizens for favoured
treatment in matters of public employment, except in cases
for which there is an express provision contained in clause
(4) of
article 16
, would as already pointed out above in the
very nature of things run counter to the concept underlying
clause (1) of
article 16.

The matter can also be looked at from another angle. If
it was permissible to accord favoured treatment to members
of backward classes under clause (1) of
article 16
, there
would have been no necessity of inserting clause (4) in

article 16.
Clause (4) in
article 16
in such an event would
have to be treated as wholly superfuous and redundant. The
normal rule of interpretation is that no provision of the
Constitution is to be treated as redundant and superfuous.
The Court would, therefore, be reluctant to accept a view
which would have the effect of rendering clause (4) of

article 16
redundant and superfuous.

This Court in the case of State of Madras v. Shrimati
Champakkam Dorairajan(1) unequivocally repelled the argument
the effect of which would have been to treat clause (4) of

article 16
to be wholly unnecessary and redundant. Question
which arose for consideration in that case was whether a
Communal G.O. fixing percentage of seats for different
sections of population for admission in the engineering and
medical colleges of the State of Madras contravened the
fundamental rights. It was held that the Communal G.O. by
which percentage of seats was apportioned contravened

article 29(2)
of the Constitution. A seven-Judge Bench of
this Court in that case referred to clause (4) of
article 16

of the Constitution and observed:

"If the argument founded on
article 46
were sound
then clause (4) of
article 16
would have been wholly
unnecessary
and redundant. Seeing, however, that clause (4) was
inserted in
article 16
, the omission of such an express
provision from
article 29
cannot but be regarded as
significant. It may well be that the intention of the
Constitution was not to introduce at all communal
considerations in matters of admission into any
educational institution maintained by the State or
receiving aid out of State funds. The protection of
backward classes of citizens may require appointment of
members of backward classes in State services and the
reason why power has been given to the State to provide
for reservation of such appointments for backward
classes may under those circumstances be understood.
That consideration, however, was not obviously
considered necessary in the case of admission into an
educational institution and that may well be the reason
for the omission from
article 29
of a clause similar to
clause (4) of
article 16."

After the above decision of this Court, clause (4) of

article 15
was added in the Constitution by the
Constitution
(First Amendment) Act, 1951
and the same reads as under:

"Nothing in this article or in clause (2) of

article 29
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."

If the power of reservation of seats for backward
classes was already contained in clause (1) of
article 15
,
the decision in the above mentioned case would in the very
nature of things have been different and there would have
been no necessity for the introduction of clause (4) in

article 15
by means of the
Constitution (First Amendment)
Act
. The fact that clause (4) of
article 15
is similar to
clause (4) of
article 16
was also emphasised by this Court
in the case of
M. R. Balaji & Ors. v. State of Mysore
(1).

It has been argued that there are observations in the
case of Champakam (supra) relating to the Directive
Principles of State Policy which should be deemed to have
been overruled by the decision of this Court in the case of
Kesavananda Bharati(2). It is, in our opinion, not necessary
to express an opinion on this aspect. Whatever view one may
take with regard to those observations, they would not
detract from the correctness of the unanimous decision of
the seven-Judge Bench of this Court in that case that, in
the absence of provision like clause (4) of
article 15
, it
was not permissible to make reservation of seats for
admission to engineering and medical colleges on the ground
of backwardness.

The matter can also be looked at from another angle.
Departmental tests are prescribed to ensure standards of
efficiency for the employees. To promote 34 out of 51
persons although they have not
passed the departmental tests and at the same time not to
promote those who have passed the departmental tests can
hardly be conducive to efficiency. There does not,
therefore, appear to be any infirmity in the finding of the
High Court that the impugned promotions are also violative
of
article 335
of the Constitution.

I may state that there is no dispute so far as the
question is concerned about the need to make every effort to
ameliorate the lot of backward classes, including the
members of the scheduled castes and the scheduled tribes. We
are all agreed on that. The backwardness of those sections
of population is a stigma on our social set up and has got
to be erased as visualized in
article 46
of the
Constitution. It may also call for concrete acts to atone
for the past neglect and exploitation of those classes with
a view to bring them on a footing of equality, real and
effective, with the advanced sections of the population. The
question with which we are concerned, however, is whether
the method which has been adopted by the appellants is
constitutionally permissible under clause (1) of
article 16.

The answer to the above question, in my opinion, has to be
in the negative. Apart from the fact that the acceptance of
the appellants' contention would result in undermining the
principle of equality of opportunity enshrined in clause (1)
of
article 16
, it would also in effect entail overruling of
the view which has so far been held by this Court in the
cases of
Champakam, Rangachari and Devadasan
(supra). It
find no sufficient ground to warrant such a course. The
State, in my opinion, has ample power to make provision for
safeguarding the interest of backward classes under clause
(4) of
article 16
which deals with reservation of
appointments or posts for backward classes not adequately
represented in the services under the State. Inaction on the
part of the State under clause (4) of
article 16
cannot in
my opinion, justify strained construction of clause (1) of

article 16.
We have also to guard against allowing our
supposed zeal to safeguard the interests of members of
scheduled castes and scheduled tribes to so sway our mind
and warp our judgment that we drain off the substance of the
contents of clause (1) of
article 16
and whittle down the
principle of equality of opportunity in the matter of public
employment enshrined in that clause in such a way as to make
it a mere pious wish and teasing illusion. The ideals of
supremacy of merit, the efficiency of services and the
absence of discrimination in sphere of public employment
would be the obvious casualties if we once countenance
inroads to be made into that valued principle beyond those
warranted by clause (4) of
article 16.

The appeal is dismissed with costs.

MATHEW, J.-The facts of the case have been stated in
the judgment of the learned Chief Justice and it is not
necessary to repeat them. The point which arises for
consideration is whether rule 13AA made by Ex. P-1 amendment
to the Kerala State and Subordinate Services Rules, 1958,
and Exhibits P-2 and P-6 the orders passed by government in
the exercise of their power under that rule, were valid. The
rule reads:
"13AA. Notwithstanding anything contained in these
rules, the Government may, by order exempt for a
specified period, any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in
service, from passing the test referred to in Rule 13
or Rule 13A of the said Rules."

Rule 13AA came into force on 13-1-1972 and on the same
day Ex. P-2 Order was passed granting temporary exemption to
members already in service belonging to any of the Scheduled
Castes and Scheduled Tribes from passing any of two the
tests (unified and special or departmental tests) for a
period of two years. Thereafter another order was passed
(Ex. P-6) on 11-1-1974 granting exemption for a period of
another two years.

The High Court was of the view that rule 13AA violated

Article 16(1)
and that
Article 16(4)
which provides for
making reservation of appointments or posts in favour of
backward classes of citizens which, in the opinion of the
State, is not adequately represented in the service under
the State has no application. The Court relied on the
decision of this Court in
General Manager, Southern Railway
v. Rangachari
(1) where it was held that
Article 16(4)
is an
exception to
Article 16(1)
and that it does not take in all
the matters covered by
Article 16(1)
as it is concerned only
with reservation of appointments and posts in favour of
backward classes and that but for
Article 16(4)
there could
be no reservation of posts in favour of backward classes
under the guarantee of equality of opportunity in the matter
of employment.

The learned Advocate General of Kerala submitted that
the Constitution has enjoined a favoured treatment to the
members of Scheduled Castes and Scheduled Tribes by
Article
and that rule 13AA which empowers the government to
exempt for a specified period any member or members of the
Scheduled Castes or Scheduled Tribes already in service from
passing the tests referred to in Rules 13 and 13A of the
Rules is only a law passed by the 'State' in pursuance to
its fundamental obligation to advance the interest of the
weakest section of the community. He said that the
implementation of the directive in
Article 46
will not be
inconsistent in any manner with the principle of equality of
opportunity guaranteed under
Article 16(1)
and that a rule
which dispenses with the passing of a test or tests for a
specified period in the case of members of Scheduled Castes
and Scheduled Tribes will not in any way run counter to the
equality of opportunity guaranteed to the other sections of
the community.
Article 46
provides:

"46. The State shall promote with special care the
educational and economic interests of the weaker
sections of the people and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of
exploitation."

Justice Brandeis has said the knowledge must precede
understanding and that understanding must precede judgment.
It will therefore be in the interest of clarity of thought
to begin with an understanding
of just what equality of opportunity means.
Article 16(1)

provides for equality of opportunity for all citizens in the
matter of employment and there can be no doubt that the
equality guaranteed is an individual right. The concept of
equality of opportunity is an aspect of the more
comprehensive notion of equality. The idea of equality has
different shades of meaning and connotations. It has many
facets and implications. Plato's remark about law is equally
applicable to the concept of equality: "a perfectly simple
principle can never be applied to a state of things which is
the reverse of simple.(1)" Different writers tend to
emphasize some forms of equality rather than others as of
overriding importance- equality before the law, equality of
basic human rights, economic equality, equality of
opportunity or equality of consideration for all persons.

Formal equality is achieved by treating all persons
equally: "Each man to count for one and no one to count for
more than one." But men are not equal in all respects. The
claim for equality is in fact a protest against unjust,
undeserved and unjustified inequalities. It is a symbol of
man's revolt against chance, fortuitous disparity, unjust
power and crystallised privileges. Although the decision to
grant equality is motivated prima facie by the alleged
reason that all men are equal yet, as soon as we clear up
the confusion between equality in the moral sense and
equality in the physical sense, we realise that the opposite
is the truth; for, we think that it is just to promote
certain equalities precisely to compensate for the fact that
men are actually born different. We, therefore, have to
resort to some sort of proportionate equality in many
spheres to achieve justice.

The principle of proportional equality is attained only
when equals are trated equally and unequals unequally. This
would raise the baffling question. Equals and unequals in
what ? The principle of proportional equality therefore
involves an appeal to some criterion in terms of which
differential treatment is justified. If there is no
significant respect in which persons concerned are
distinguishable, differential treatment would be
unjustified. But what is to be allowed as a significant
difference such as would justify differential treatment?

In distributing the office of a state, not any sort of
personal equality is relevant; for, unless we employ
criteria appropriate to the sphere in question, it would
turn out that a man's height or complexion could determine
his eligibility or suitability for a post. As Aristotle
said, claims to political office cannot be based on prowess
in athletic contests. Candidates for office should possess
those qualities that go to make up an effective use of the
office. But this principle also does not give any
satisfactory answer to the question when differential
treatment can be meted out. As I said, the principle that if
two persons are being treated or are to be treated
differently there should be some relevant difference between
them is, no doubt, unexceptionable. Otherwise, in the
absence of some differentiating feature what is sauce for
the goose is sauce for the gander. The real difficulty
arises in finding out what constitutes a relevant
difference.
If we are all to be treated in the same manner, this
must carry with it the important requirement that none of us
should be better or worse in up bringing, education, than
any one else which is an unattainable ideal for human beings
of anything like the sort we now see. Some people maintain
that the concept of equality of opportunity is an
unsatisfactory concept. For, a complete formulation of it
renders it incompatible with any form of human society. Take
for instance, the case of equality of opportunity for
education. This equality cannot start in schools and hence
requires uniform treatment in families which is an evident
impossibility. To remedy this, all children might be brought
up in state nurseries, but, to achieve the purpose, the
nurseries would have to be run on vigorously uniform lines.
Could we guarantee equality of opportunity to the young even
in those circumstances ? The idea is well expressed by
Laski:

"Equality means, in the second place, that
adequate opportunities are laid open to all. By
adequate opportunities we cannot imply equal
opportunities in a sense that implies identity of
original chance. The native endowments of men are by no
means equal. Children who are brought up in an
atmosphere where things of the mind are accounted
highly are bound to start the race of life with
advantages no legislation can secure. Parental
character will inevitably affect profoundly the quality
of the children whom it touches. So long, therefore, as
the family endures-and there seems little reason to
anticipate or to desire its disappearance-the varying
environments it will create make the notion of equal
opportunities a fantastic one."(1)
Though complete inentity of equality of opportunity is
impossible in this world, measures compensatory in character
and which are calculated to mitigate surmountable obstacles
to ensure equality of opportunity can never incur the wrath
of
Article 16(1).

The notion of equality of opportunity is a notion that
a limited good shall in fact be allocated on the grounds
which do not a priori exclude any section of those that
desire it(2). All sections of people desire and claim
representation in the public service of the country, but the
available number of posts are limited and therefore, even
though all sections of people might desire to get posts, it
is practically impossible to satisfy the desire. The
question therefore is: On what basis can any citizen or
class of citizens be excluded from his or their fair share
of representation?
Article 335
postulates that members of
Scheduled Castes and Scheduled Tribes have a claim to
representation in the public service both of the Union and
the States and that the claim has to be taken into
consideration consistently with the maintenance of
efficiency of administration in the making of appointments
to services of the Union and the States. As I said, the
notion
of equality of opportunity has meaning only when a limited
good or, in the present context, a limited number of posts,
should be allocated on grounds which do not a priori exclude
any section of citizens of those that desire it.

What, then, is a priori exclusion ? It means exclusion
on grounds other than those appropriate or rational for the
good (posts) in question. The notion requires not merely
that there should be no exclusion from access on grounds
other than those appropriate or rational for the good in
question, but the grounds considered appropriate for the
good should themselves be such that people from all sections
of society have an equal chance of satisfying them.

Bernard A. O. Williams, in his article "The Idea of
Equality" (supra) gives an illustration of the working of
the principle of equality of opportunity:

"Suppose that in a certain society great prestige
is attached to membership of a warrior class, the
duties of which require great physical strength. This
class has in the past been recruited from certain
wealthy families only; but egalitarian reformers
achieve a change in the rules, by which warriors are
recruited from all sections of the society, on the
result of a suitable competition. The effect of this,
however, is that the wealthy families still provide
virtually all the warriors, because the rest of the
populace is so undernourished by reason of poverty that
their physical strength is inferior to that of the
wealthy and well nourished. The reformers protest that
equality of opportunity has not really been achieved;
the wealthy reply that in fact it has, and that the
poor now have the opportunity of becoming warriors- -it
is just bad luck that their characteristics are such
that they do not pass the test. "We are not", they
might say, "excluding anyone for being poor; we exclude
people for being weak, and it is unfortunate that those
who are poor are also weak."

This is not a satisfactory answer though it may sound
logical. The supposed equality of opportunity is quite
empty. One knows that there is a causal connection between
being poor and being under-nourished and between being
under-nourished and being physically weak. One supposes
further that something should be done subject to whatever
economic conditions obtain in the society to alter the
distribution of wealth. All this being so, the appeal by the
wealthy to bad luck of the poor must appear rather
disingenuous.

It is clear that one is not really offering equality of
opportunity to X and Y if one contents oneself with applying
the same criteria to X and Y. What one is doing there is to
apply the same criteria to X as affected by favourable
conditions and to Y as affected by unfavourable but curable
conditions. Here there is a necessary pressure to equal up
the conditions. To give X and Y equality of opportunity
involves regarding their conditions, where curable, as
themselves part of what is done to X and Y and not part of X
and Y themselves. Their identity for this purpose does not
include their curable environment, which is itself unequal
and a contributor of inequality [see Williams, "The Idea of
Equality" (supra)].

In Ahmedabad St. Xavier's
College Society and Another
v. The State of Gujarat and Another
(1), in the judgment on
behalf of Chandrachud, J. and myself, I said at p. 798:

"The problem of the minorities is not really a
problem of the establishment of equality because, if
taken literally, such equality would mean absolute
identical treatment of both the minorities and the
majorities. This would result only in equality in law
but inequality in fact"

and that
"It is obvious that equality in law precludes
discrimination of any kind; whereas equality in fact
may involve the necessity of differential treatment in
order to attain a result which establishes an
equilibrium between different situations."
It would follow that if we want to give equality of
opportunity for employment to the members of the Scheduled
Castes and Scheduled Tribes, we will have to take note of
their social, educational and economic environment. Not only
is the directive principle embodied in
Article 46
binding on
the law-maker as ordinarily understood but it should equally
inform and illuminate the approach of the Court when it
makes a decision as the Court also is 'state' within the
meaning of
Article 12
and makes law even though
"interstitially from the molar to the molecular". I have
explained at some length the reason why Court is 'state'
under
Article 12
in my judgment in
His Holiness Kesavananda
Bharati Sripadagalavaru v. State of Kerala and Another
, etc.
(2).

Equality of opportunity is not simply a matter of legal
equality. Its existence depends, not merely on the absence
of disabilities, but on the presence of abilities. It
obtains in so far as, and only in so far as, each member of
a community, whatever his birth or occupation or social
position, possesses in fact, and not merely in form, equal
chances of using to the full his natural endowments of
physique, of character, and of intelligence(3).

The guarantee of equality before the law or the equal
opportunity in matters of employment is a guarantee of
something more than what is required by formal equality. It
implies differential treatment of persons who are unequal.
Egalitarian principle has therefore enhanced the growing
belief that government has an affirmative duty to eliminate
inequalities and to provide opportunities for the exercise
of human rights and claims. Fundamental rights as enacted in
Part III of the Constitution are, by and large, essentially
negative in character.
They mark off a world in which the government should have no
jurisdiction. In this realm, it was assumed that a citizen
has no claim upon government except to be let alone. But the
language of
Article 16(1)
is in marked contrast with that of

Article 14.
Whereas the accent in
Article 14
is on the
injunction that the State shall not deny to any person
equality before the law or the equal protection of the laws,
that is, on the negative character of the duty of the State,
the emphasis in
Article 16(1)
is on the mandatory aspect,
namely, that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
any office under the State implying thereby that affirmative
action by Government would be consistent with the Article if
it is calculated to achieve it. If we are to achieve
equality, we can never afford to relax. "While inequality is
easy since it demands no more than to float with the
current, equality is difficult for it involves swimming
against it. (1)".

Today, the political theory which acknowledges the
obligation of government under Part IV of the Constitution
to provide jobs, medical care, old age pension, etc. extends
to human rights and imposes an affirmative obligation to
promote equality and liberty. The force of the idea of a
state with obligation to help the weaker sections of its
members seems to have increasing infuence in constitutional
law. The idea finds expression in a number of cases in
America involving racial discrimination and also in the
decisions requiring the state to offset the effects of
poverty by providing counsel, transcript of appeal, expert
witnesses, etc. Today the sense that government has
affirmative responsibility for elimination of inequalities,
social, economic or otherwise, is one of the dominant forms
in constitutional law. While special concessions for the
underprivileged have been easily permitted, they have not
traditionally been required. Decisions in the areas of
criminal procedure, voting rights and education in America
suggest that the traditional approach may not be completely
adequate. In these areas, the inquiry whether equality has
been achieved no longer ends with numerical equality; rather
the equality clause has been held to require resort to a
standard of proportional equality which requires the state,
in framing legislation, to take into account the private in
equalities of wealth, of education and other
circumstances(2).

The idea of compensatory state action to make people
who are really unequal in their wealth, education or social
environment, equal, in specified areas, was developed by the
Supreme Court of the United States. Rousseau has said: "It
is precisely because the force of circumstances tends to
destroy equality that force of legislation must always tend
to maintain it (3)."
In Griffin v. Illinois(1), an indigent defendant was
unable to take advantage of the one appeal of right granted
by Illinois law because he could not afford to buy the
necessary transcript. Such transcripts were made available
to all defendants on payment or a similar fee; but in
practice only non-indigents were able to purchase the
transcript and take the appeal. The Court said that "there
can be no equal justice where the kind of trial a man gets
depends on the amount of money he has" and held that the
Illinois procedure violated the equal protection clause. The
state did not have to make appellate review available at
all; but if it did, it could not do so in a way which
operated to deny access to review to defendants solely
because of their indigency. A similar theory underlies the
requirement that counsel be provided for indigents on
appeal. In Douglas v. California(2), the case involved the
California procedure which guaranteed one appeal of right
for criminal defendants convicted at trial. In the case of
indigents the appellate court checked over the record to see
whether it would be of advantage to the defendant or helpful
to the appellate court to have counsel appointed for the
appeal. A negative answer meant that the indigent had to
appeal pro se if at all. The Court held that this procedure
denied defendant the equal protection of the laws. Even
though the state was pursuing an otherwise legitimate
objective of providing counsel only for non-frivolous
claims, it had created a situation in which the well-to-do
could always have a lawyer-even for frivolous appeals-
whereas the indigent could not.

Justice Harlan, dissenting in both Griffin and Douglas
cases (supra) said that they represented a new departure
from the traditional view that numerically equal treatment
cannot violate the equal protection clause. He concluded
that the effect of the decisions was to require state
discrimination. He said:

"The Court thus holds that, at least in this area
of criminal appeals, the Equal Protection Clause
imposes on the States an affirmative duty to lift the
handicaps flowing from differences in economic
circumstances. That holding produces the anomalous
result that a constitutional admonition to the States
to treat all persons equally means in this instance
that Illinois must give to some that it requires others
to pay for....It may accurately be said that the real
issue in this case is not whether Illinois has
discriminated but whether it has a duty to
discriminate."

Though in one sense Justice Harlan is correct, when one
comes to think of the real effect of his view, one is
inclined to think that the opinion failed to recognise that
there are several ways of looking at equality, and treating
people equally in one respect always results in unequal
treatment in some other respects. For Mr. Justice Harlan,
the only type of equality that mattered was numerical
equality in the terms upon which transcripts were offered to
defendants. The maiority, on the other hand, took a view
which would bring about equality
in fact, requiring similar availability to all of criminal
appeals in Griffin's case and counsel-attended criminal
appeals in Douglas' case. To achieve this result, the
legislature had to resort to a proportional standard of
equality. These cases are remarkable in that they show that
the kind of equality which is considered important in the
particular context and hence of the respect in which it is
necessary to treat people equally(1).

Look at the approach of the Supreme Court of United
States of America in Harper v. Virginia Board of
Elections(2). The Court there declared as unconstitution a
Virginia poll tax of $ 1.50 per person which had been
applied to all indiscriminately. As in Griffin and Douglas,
the state had treated everyone numerically alike with
respect to the fee. Whatever discrimination existed was the
result of the state's failure to proportion the fee on the
basis of need or, what is the same thing, to employ a
numerically equal distribution with respect to the vote
itself. The result again is a requirement that the
legislature should take note of difference in private
circumstances in formulating its policies.

There is no reason why this Court should not also
require the state to adopt a standard of proportional
equality which takes account of the differing conditions and
circumstances of a class of citizens whenever those
conclusions and circumstances stand in the way of their
equal access to the enjoyment of basic rights or claims.

The concept of equality of opportunity in matters of
employment is wide enough to include within it compensatory
measures to put the members of the Scheduled Castes and
Scheduled Tribes on par with the members of other
communities which would enable them to get their share of
representation in public service. How can any member of the
so called forward communities complain of a compensatory
measure made by government to ensure the members of
Scheduled Castes and Scheduled Tribes their due share of
representation in public services ?

It is said that
Article 16(4)
specifically provides for
reservation of posts in favour of backward classes which
according to the decision of this Court would include the
power of the State to make reservation at the stage of
promotion also and therefore
Article 16(1)
cannot include
within its compass the power to give any adventitious aids
by legislation or otherwise to the backward classes which
would deregate from strict numerical equality. If
reservation is necessary either at the initial stage or at
the stage of promotion or at both to ensure for the members
of the Scheduled Castes and Schedu'ed Tribes equality of
opportunity in the matter of employment. I see no reason why
that is not permissible under
Article 16(1)
as that alone
might put them on a parity with the forward communities in
the matter of achieving the result which equality of
opportunity would produce. Whether there is equality of
opportunity can be gauged only by the equality
attained in the result. Formal equality of opportunity
simply enables people with more education and intelligence
to capture all the posts and to win over the less fortunate
in education and talent even when the competition is fair.
Equality of result is the test of equality of opportunity.

Daniel P. Moynihan, one of America's leading urban
scholars, spelled out the problem in a widely publicized
study that he prepared while he was Assistant Secretary of
Labour. The Moynihan Report, as it came to be known, made
the point in a passage that deserves full quotation:

"It is increasingly demanded that the distribution
of success and failure within one group be roughly
comparable to that within other groups. It is not
enough that all individuals start out on even terms, if
the members of one group almost invariably end up well
to the fore and those of another far to the rear. This
is what ethnic politics are all about in America, and
in the main the Negro American demands are being put
forth in this new traditional and established
framework.

"Here a point of semantics must be grasped. The
demand for equality of opportunity has been generally
perceived by White Americans as a demand for liberty, a
demand not to be excluded from the competitions of
life- at the polling place, in the scholarship
examinations, at the personnel office, on the housing
market. Liberty does, of course, demand that everyone
be free to try his luck, or test his skill in such
matters. But those opportunities do not necessarily
produce equality: On the contrary, to the extent that
winners imply losers, equality of opportunity almost
insures inequality of results.

"The point of semantics is that equality of
opportunity now has a different meaning for Negroes
than it has for Whites. It is not (or at least no
longer) a demand for liberty alone, but also for
equality-in terms of group results. In Bayard Rustin's
terms, 'It is now concerned not merely with removing
the barriers to full opportunity but with achieving the
fact of equality.' By equality Rustin means a
distribution of achievements among Negroes roughly
comparable to that among Whites."(1)
Beginning most notably with the Supreme Court's
condemnation of school segregation in 1954, the United
States has finally begun to correct the discrepancy between
its ideals and its treatment of the black man. The first
steps, as refected in the decisions of the courts and the
civil rights laws of Congress, merely removed the legat and
quasi-legal forms of racial discrimination. These actions
while not
producing true equality, or even equality of opportunity,
logically dictated the next step: positive use of
government power to create the possibility of a real
equality. In the words of Professor Lipset: "Perhaps the
most important fact to recognise about the current situation
of the American Negro is that (legal) equality is not enough
to insure his movement into larger society."(1)
I agree that
Article 16(4)
is capable of being
interpreted as an exception to
Article 16(1)
if the equality
of opportunity visualized in
Article 16(1)
is a sterile one
geared to the concept of numerical equality which takes no
account of the social, economic, educational background of
the members of Scheduled Castes and Scheduled Tribes. If
equality of opportunity guaranteed under
Article 16(1)
means
effective material equality, then
Article 16(4)
is not an
exception to
Article 16(1).
It is only an emphatic way of
putting the extent to which equality of opportunity could be
carried viz., even upto the point of making reservation.

The State can adopt any measure which would ensure the
adequate representation in public service of the members of
the Scheduled Castes and Scheduled Tribes and justify it as
a compensatory measure to ensure equality of opportunity
provided the measure does not dispense with the acquisition
of the minimum basic qualification necessary for the
efficiency of administration.

It does not matter in the least whether the benefit of
rule 13AA is confined only to those members of Scheduled
Castes and Scheduled Tribes in service at the time and that
it is not extended to all members of the backward classes.
The law-maker should have liberty to strike the evil where
it is felt most.

Article 16(1)
is only a part of a comprehensive scheme
to ensure equality in all spheres. It is an instance of the
application of the larger concept of equality under the law
embodied in
Articles 14
and
15.

Article 16(1)
permits of
classification just as
Article 14
does [see
S. G.
Jaisinghani v. Union of India
& ors.(
2), State of Mysore &
Anr. v. P. Narasing Rao
(
3) and C. A. Rajendran v. Union of
India & Ors.
(4).]. But, by the classification, there can be
no discrimination on the ground only of race, caste and
other factors mentioned in
Article 16(2).

The word 'caste' in
Article 16(2)
does not include
'Scheduled Caste'. The definition of 'scheduled castes' in

Article 366 (24)
means: "such castes, races or tribes or
parts of or groups within such castes, races, or tribes as
are deemed under
Article 341
to be Scheduled Castes for the
purposes of this Constitution." This shows that it is by
virtue of the notification of the President that the
Scheduled
Castes come into being. Though the members of the Scheduled
Castes are drawn from castes, races or tribes, they attain a
new status by virtue of the Presidential notification.
Moreover, though the members of tribe might be included in
Scheduled Castes, tribe as such is not mentioned in
Article
16(2).

A classification is reasonable if it includes all
persons who are similarly situated with respect to the
purpose of the law. In other words, the classification must
be founded on some reasonable ground which distinguishes
persons who are grouped together and the ground of
distinction must have rational relation to the object sought
to be achieved by the rule or even the rules in question. It
is a mistake to assume a priori that there can be no
classification within a class, say, the Lower Division
Clerks. If there are intelligible differentia which separate
a group within that class from the rest and that differentia
have nexus with the object of classification, I see no
objection to a further classification within the class. It
is no doubt a paradox that though in one sense
classification brings about inequality, it is promotive of
equality if its object is to bring those who share a common
characteristic under a class for differential treatment for
sufficient and justifiable reasons.
In this view, I have no
doubt that the principle
laid down in

All-India Station
Masters' and Assistant Station Masters' Association v.
General Manager, Central Railway and Others
(
1), S. G.
Jaisinghani v. Union of India and Others
(
supra) and State
of Jammu & Kashmir v. Triloki Nath Khosa & Ors.
(2) has no
application here.

Article 16(1)
and
Article 16(2)
do not prohibit the
prescription of a reasonable qualification for appointment
or for promotion. Any provision as to qualification for
employment or appointment to an office reasonably fixed and
applicable to all would be consistent with the doctrine of
equality of opportunity under
Article 16(1) [
see
The General
Manager, Southern Railway v. Rangachari
(3)].

Rule 13 provides that no person shall be eligible for
appointment to any service unless he possesses the special
qualification and has passed such special tests as may be
prescribed in that behalf by special rules or possesses such
special qualification as he considered to be equivalent to
the said special qualification or special tests.

The material provision in rule 13A provides that
notwithstanding anything contained in rule 13, where a pass
in a special or departmental test is newly prescribed by the
Special Rules of a service for any category, grade or post
therein or in any class thereof, a member of a service who
has not passed the said test but is otherwise qualified and
suitable for appointment to such class, category, grade or
post may within two years of the introduction of the test be
appointed thereto temporarily.
Rule 14 provides for reservation of appointments to
members of Scheduled Castes and Scheduled Tribes.

Rule 13AA has been enacted not with the idea of
dispensing with the minimum qualification required for
promotion to a higher category or class, but only to give
enough breathing space to enable the members of Scheduled
Castes and Scheduled Tribes to acquire it. The purpose of
the classification made in rule 13AA viz., of putting the
members of Scheduled Castes and Scheduled Tribes in one
class and giving them an extension of time for acquiring the
test qualification prescribed by rule 13 and rule 13A is to
enable them to have their due claim of representation in the
higher category without sacrificing the efficiency implicit
in the passing of the test. That the passing of some of
these tests does not spell in the realm of minimum basic
requirement of efficiency is clear from rule 13A. That rule,
at any rate, contemplated passing of the test by all the
employees within two years of its introduction showing
thereby that acquisition of the test qualification was not a
sine qua non for holding the posts. Rule 13(b) which
provides for exemption from passing the test would also
indicate that passing of the test is not absolutely
essential for holding the post. The classification made in
rule 13AA has a reasonable nexus with the purpose of the
law, namely, to enable the members of Scheduled Castes and
Scheduled Tribes to get their due share of promotion to the
higher grade in the service without impairing the efficiency
of administration. Rule 13AA is not intended to give
permanent exemption to the members of Scheduled Castes and
Scheduled Tribes from passing the test but only reasonable
time to enable them to do so. The power to grant exemption
under the rule, like every other power, is liable to be
abused. If the power is abused and the members of the
Scheduled Castes and Scheduled Tribes are given favoured
treatment to the extent not warranted by their legitimate
claim, the courts are not rendered helpless. That the power
is liable to be abused is no reason to hold that the rule
itself viz., rule 13AA, is bad.

The ultimate reason for the demand of equality for the
members of backward classes is a moral perspective which
affirms the intrinsic value of all human beings and call for
a society which provides those conditions of life which men
need for development of their varying capacities. It is an
assertion of human equality in the sense that it manifests
an equal concern for the well being of all men. On the one
hand it involves a demand for the removal of those obstacles
and impediments which stand in the way of the development of
human capacities-that is it is a call for the abolition of
unjustifiable inequalities. On the other hand, the demand
itself gets its sense and moral driving force from the
recognition that 'the poorest he that is in England hath a
life to live, as the greatest he'(1).
I agree with the conclusion of my Lord the Chief
Justice that the appeal should be allowed.

BEG, J : I share the conclusion reached by the learned
Chief Justice and my learned brethren Mathew, Krishna Iyer,
and Murtaza Fazal Ali. I would, however, like to add, with
great respect, that a view which though not pressed in this
Court by the Advocate General of Kerala, perhaps because it
had been repelled by the Kerala High Court, seems to me to
supply a more satisfying legal justification for the
benefits conferred, in the form of an extended period
granted to Government employees of a backward class to pass
a qualifying test for promotion to a higher grade of
service, that is to say, from that of the Lower Division
Clerks to that of the Upper Division Clerks in the State of
Kerala. I think that we have to, in such a case, necessarily
consider whether the manner in which Scheduled Caste and
Scheduled Tribe Government employees are treated by the
rules and orders under consideration falls within
Article
16(4)
of the Constitution.

Strictly speaking, the view adopted by my learned
brother Khanna, that the ambit of the special protection of
"equality of opportunity in matters relating to public
service", which can be made available to members of backward
classes of citizens, is exhausted by
Article 16(4)
of the
Constitution, seems inescapable.
Article 16
is after all, a
facet of the grand principles embraced by
Article 14
of our
Constitution. It guarantees : "Equality of opportunity in
matters of public appointment". It does so in absolute
terms. It is a necessary consequence and a special
application of
Article 14
in an important field where denial
of equality of opportunity cannot be permitted. While

Article 16(1)
sets out the positive aspect of equality of
opportunity in matters relating to employment by the State,

Article 16(2)
negatively prohibits discrimination on the
grounds given in
Article 16(2)
in the area covered by

Article 16(1)
of the Constitution. If Scheduled Castes do
not fall within the ambit of
Article 16(2)
, but, as a
"backward class" of citizens, escape the direct prohibition
it is because the provisions of
Article 16(4)
make such an
escape possible for them. They could also avoid the
necessary consequences of the positive mandate of
Article
16(1)
if they come within the only exception contained in

Article 16(4)
of the Constitution. I respectfully concur
with my learned brother Khanna and Gupta that it would be
dangerous to extend the limits of protection against the
operation of the principle of equality of opportunity in
this field bevond its express constitutional authorisation
by
Article 16(4).

When citizens are already employed in a particular
grade, as Government servants, considerations relating to
the sources from which they are drawn lose much of their
importance. As public servants of that grade they could,
quite reasonably and logically, be said to belong to one
class, atleast for purposes of promotion in public service
for which there ought to be a real "equality of opportunity"
if we are to avoid heart burning or a sense of injustice or
frustration in this class. Neither as members of this single
class nor for purposes of the equality of opportunity which
is to be afforded to this class does the fact that some of
them are also members of an economically and socially
backward class continue to be material, or, strictly
speaking, even relevant. Their entry into the same relevant
class as others must be deemed to indicate that they no
longer suffer from the handicaps of a backward class. For
purposes of Government service the source from which they
are drawn should cease to matter. As Government servants
they would, strictly speaking, form only one class for
purposes of promotion.

As has been pointed out by Mylord the Chief Justice,
the protection of
Article 16(1)
continues throughout the
period of service. If
Article 16(1)
is only a special facet
or field, in which an application of the general principles
of
Article 14
is fully worked out or stated, as it must be
presumed to be, there is no room left for importing into it
any other or further considerations from
Article 14.
Again
the express provisions of
Article 16(4)
would be presumed to
exhaust all exceptions made in favour of backward classes
not contained there if we apply the maxim expressio unius
est exclusio alterius". It is true that the principle of
reasonable classification may still claim recognition or be
relevant for working out the exact significance of "equality
of opportunity" even within
Article 16(1)
in some aspect or
context other than the one indicated by
Article 16(4).
But,
in view of
Article 16(4)
, that aspect or context must be
different from one aimed at realizing the objects of

Articles 46
and
in the sphere of Government service. The
specified and express mode of realization of these objects
contained in
Article 16(4)
, must exclude the possibility of
other methods which could be implied and read into
Article
16(1)
for securing them in this field. One could think of so
many other legally permissible and possibly better, or,
atleast more direct, methods of removing socio-economic
inequalities by appropriate legislative action in other
fields left open and unoccupied for purposes of
discrimination in favour of the backward.

In relation to promotions, "equality of opportunity"

could only mean subjection to similar conditions for
promotion by being subjected uniformly to similar or same
kind of tests. This guarantee was, in fact, intended to
protect the claims of merit and efficiency as against
incursions of extraneous considerations. The guarantee
contained in
Article 16(1)
is not, by itself, aimed at
removal of backwardness due to socio-economic and
educational disparties produced by past history of social
oppression, exploitation, or degradation of a class of
persons. In fact, efficiency tests, as parts of a mechanism
to provide equality of opportunity, are meant to bring out
and measure actually existing inequalities in competence and
capacity or potentialities so as to provide a fair and
rational basis for justifiable discrimination between
candidates. Whatever may be the real causes of unequal
performances which imposition of tests may disclose, the
purpose of equality of opportunity by means of tests is only
to ensure a fair competition in securing posts and
promotions in Government service, and not the removal of
causes for unequal performances in
competitions for these posts or promotions. Thus, the
purposes of
Articles 46
and
, which are really extraneous
to the objects of
Article 16(1)
, can only be served in such
a context by rules which secure preferential treatment for
the backward classes and detract from the plain meaning and
obvious implications of
Article 16(1)
and
16(2).
Such
special treatment mitigates the rigour of a strict
application of the principle contained in
Article 16(1).
It
constitutes a departure from the principle of absolute
equality of opportunity in the application of uniform tests
of competence.
Article 16(4)
was designed to reconcile the
conflicting pulls of
Article 16(1)
, representing the
dynamics of justice, conceived of as equality in conditions
under which candidates actually compete for posts in
Government service, and of
Articles 46
and
, embodying
the duties of the State to promote the interests of the
economically, educationally, and socially backward so as to
release them from the clutches of social injustice. These
encroachments on the field of
Article 16(1)
can only be
permitted to the extent they are warranted by
Article 16(4).

To read broader concepts of social justice and equality into

Article 16(1)
itself may stultify this provision itself and
make
Article 16(4)
otiose.

Members of a backward class could be said to be
discriminated against if severer tests were prescribed for
them. But, this is not the position in the case before us.
All promotees, belonging to any class, caste, or creed, are
equally subjected to efficiency tests of the same type and
standard. The impugned rules do not dispense with these
tests for any class or group. Indeed, such tests could not
be dispensed with for employees from Scheduled Castes, even
as a backward class, keeping in view the provisions of

Article 335
of the Constitution. All that happens here is
that the backward class of employees is given a longer
period of time to pass the efficiency tests and prove their
merit as determined by such tests. It has been, therefore,
argued that, in this respect, there is substantial equality.
In other words, the argument is that if
Article 16(1)
could
be interpreted a little less rigidly and more liberally the
discrimination involved here will not fall outside it. Even
if this was a tenable view. I would, for all the reasons
given here, prefer to find the justification if this is
possible, in the express provisions of
Article 16(4)
because
this is where such a justification should really lie.

In the case before us, it appears that respondent
petitioner's grievance was that certain members of the
Scheduled Castes, as a backward class, had been given
preference over him inasmuch as he was not promoted despite
having passed the efficiency test, but certain members of
the backward class were allowed to remain in the higher
posts as temporary promotees, without having passed the
efficiency tests, because they had been given an extended
period of time to satisfy the qualifying tests. The
petitioner thus claimed priority on the ground of merit
judged solely by taking and passing the efficiency test
earlier. Apparently, he was not even promoted, whereas the
backward class employees said to have been given preference
over him
were, presumably quite satisfactorily, discharging their
duties in the higher grade in which they were already
working as temporary promotees. He also admits that the
respondents, over whom he claims preference for promotion,
were his seniors in service who had put in longer terms of
total service before their conditional promotions
temporarily into the grade of the Upper Division Clerks. It
seems to me that the taking and passing of a written test
earlier than another employee could not be the sole factor
to consider in deciding upon a claim to superiority or to
preference on grounds of merit and efficiency for promotion
as a Government servant.

The relevant rule 13A shows that a person who is
allowed temporarily to work in the cadre of promotees, even
without having passed the special efficiency test, must,
nevertheless, have satisfied the test of being "otherwise
qualified and suitable for appointment". Thus, an employee
from a Scheduled Caste has also to be "otherwise qualified"

before he is given an opportunity to work with others
similarly promoted temporarily. The only difference is that,
whereas the others get only two years from the introduction
of the new test within which to qualify according to the
newly introduced test, an employee of a Scheduled Caste or a
Scheduled Tribe, similarly placed, gets two more years under
the second proviso. The impugned rule 13AA, however, gives
power to the Government to specify a longer period of
exemption if it considers this to be necessary. The Governor
passed the impugned order of 13-1-1972 under rule 13AA,
extending the period still more. This order and the relevant
rules 13A and 13AA are already set out above in the judgment
of Mylord the Chief Justice. I need not, therefore,
reproduce them here.

What is the effect of the provisions of Rules 13A and
13AA and the order of 13-1-1972 ? Is it not that a person
who is in the position of the respondent petitioner must
wait for a place occupied by or reserved for a person from a
Scheduled Caste or Tribe, treated as backward class, until
it is shown that the employee from the backward class has
failed to take and pass the new test despite the extended
period given to him. The effect of the relaxation is that
the backward class employee continues in the post
temporarily for a longer period before being either
confirmed or reverted. For this period, the post remains
reserved for him. If he does not satisfy the efficiency
tests even within this extended period he has to revert to
the lower grade. If he does satisfy the special efficiency
test, in this extended period, he is confirmed in the class
of promotees into which he obtained entry because of a
reservation. Among meanings of the term "reserve", given in
the Oxford Dictionary, are "To keep back or hold over to a
later time or place for further treatment; to set apart for
some purpose or with some end in view". In the Webster's New
International Dictionary IInd Edn. (at p. 2118), the
following meanings are given: "To keep back; to retain or
hold over to a future time or place; not to deliver, make
over or disclose it at once". The result of the above
mentioned rules and orders does seem to me to be a kind of
reservation. If a reservation of posts under Article 16(4)
for employees of backward classes could include complete re-
servation of higher posts to which they could be promoted,
about which there could be no doubt now, I fail to see why
it cannot be partial or for a part of the duration of
service and hedged round with the condition that a temporary
promotion would operate as a complete and confirmed
promotion only if the temporary promotee satisfies some
tests within a given time.

If the impugned rules and orders could be viewed as an
implementation of a policy of qualified or partial or
conditional reservation, in the form indicated above, which
could satisfy the requirements of substantial equality, in
keeping with
Article 335
, and meet the demands of equity and
justice looked at from the broader point of view of
Article
of the Constitution, they could, in my view, also be
justified under
Article 16(4)
of the Constitution.

It may be that the learned Advocate General for the
appellant State did not press the ground that the impugned
rules and orders are governed by
Article 16(4)
because of
the tests required for complete or absolute reservation
dealt with in
T. Devadasan v. the Union of India & Anr.
(
1)
and M. R. Balajli & Ors. v. State of Mysore
(2), where it was
held that more than 50% reservations for a backward class
would violate the requirement of reasonableness inasmuch as
it would exclude too large a proportion of others. Apart
from the fact that the case before us is distinguishable as
it is one of only a partial or temporary and conditional
reservation, it is disputed here that the favoured class of
employees really constituted more than fifty per cent of the
total number of Government servants of this class (i.e.
Clerks) if the overall position and picture, by taking the
number of employees in all Govt. Departments, is taken into
account. Furthermore, it is pointed out that a large number
of temporary promotions of backward class Government
servants of this grade had taken place in 1972 in the
Registration Department, in which the petitioning respondent
worked, because promotions of backward class employees had
been held up in the past due to want of necessary provisions
in rules which could enable the Government to give effect to
a policy of a sufficient representation of backward class
employees of this grade in Government service. The totality
of facts of this case is distinguish able in their effects
from those in cases cited before us. No case was cited which
could fully cover the position we have before us now.

I am not satisfied that the only ground given by the
High Court for refusing to give the benefits of impugned
rules and orders to the backward class Government servants,
that they fall outside the purview of
Article 16(4)
, was
substantiated. It was for the respondent petitioner to
discharge the burden of establishing a constitutionally
unwarranted discrimination against him. His petition ought
in my opinion, to have been dismissed on the ground that he
had failed to discharge this initial burden.

Accordingly, I would allow this appeal and set aside
the judgment and order of the High Court and leave the
parties to bear their own costs throughout.
KRISHNA IYER, J.-A
case which turns the focus on the
political philosophy pervading the Constitution and affects
a large human segment submerged below the line of ancient
social penury, naturally prompts me to write a separate
opinion substantially concurring with that of the learned
Chief Justice. Silence is not always golden.

The highlight of this Civil Appeal against the High
Court's judgment striking down a State Subordinate Service
rule, thereby adversely affecting lower rung officials
belonging to the Scheduled Castes and Scheduled Tribes, is
the seminal issue of admissibility and criteria of
classification within the 'equal opportunity' rule in
Art.
16(1)
and the lethal effect of the built-in inhibition
against caste-based classification contained in Art 16(2) in
relation to these frightfully backward categories. In a
large sense, the questions are res integra and important and
cannot be dismissed easily on the remark of Justice Holmes
that the equal protection clause is 'the last resort of
constitutional arguments' (274 U.S. 200, 208).

Law, including constitutional law, can no longer 'go it
alone' but must be illumined in the interpretative process
by sociology and allied fields of knowledge. Indeed, the
term 'constitutional law' symbolizes an intersection of law
and politics, wherein issues of political power are acted on
by persons trained in the legal tradition, working in
judicial institutions, following the procedures of law,
thinking as lawyers think.(1) So much so, a wider
perspective is needed to resolve issues of constitutional
law. May be, one cannot agree with the view of an eminent
jurist and former Chief Justice of India: 'the judiciary as
a whole is not interested in the policy underlying a
legislative measure' (Mr. Hidayatullah-'Democracy in India
and Judicial Process'-1965-p. 70). Moreover, the Indian
Constitution is a great social document, almost
revolutionary in its aim of transforming a medieval,
hierarchical society into a modern, egalitarian democracy.
Its provisions can be comprehended only by a spacious,
social-science approach, not by pedantic, traditional
legalism. Here we are called upon to delimit the amplitude
and decode the implications of
Art. 16(1)
in the context of
certain special concessions relating to employment, under
the Kerala State (the appellant), given to Scheduled Castes
and Scheduled Tribes (for short, hereinafter referred to as
harijans) whose social lot and economic indigence are an
Indian reality recognized by many Articles of the
Constitution. An overview of the decided cases suggests the
need to re-interpret the dynamic import of the 'equality
clauses' and, to stress again, beyond reasonable doubt, that
the paramount law, which is organic and regulates our
nation's growing life, must take in its sweep 'ethics,
economics, politics and sociology'. Equally pertinent to the
issue mooted before us is the lament of Friedman:

"It would be tragic if the law were so petrified
as to be unable to respond to the unending challenge of
evolutionary or revolutionary changes in society."(2)
The main assumptions which Friedman makes are:

"first, the law is, in Holmes' phrase, not a
'brooding omnipotence in the sky', but a flexible
instrument of social order, dependent on the political
values of the society which it purports to
regulate...."(1)
Naturally surges the interrogation, what are the
challenges of changing values to which the guarantee of
equality must respond and how? To pose the problem with
particular reference to our case, does the impugned rule
violate the constitutional creed of equal opportunity in

Art. 16
by resort to a suspect classification or revivify it
by making the less equal more equal by a legitimate
differentiation ? Chief Justice Marshall's classic statement
in Mc Culloch v Maryland(2) followed by Justice Brennan in
Kazenbach v. Morgan(3) remains a beacon light:
"Let the end be legitimate, let it be within the
scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional."

The background facts may be briefly set out in the
elemental form. The Kerala State and Subordinate Services
Rules, 1958 (for short, the rules) regulate the conditions
of service of the State employees of the lower order. We are
concerned with the prescription of qualifications for
promotion of the lower division clerks to upper division
posts in the Registration Department. Rule 13 insists on
passing certain tests for promotional eligibility. When
tests were newly introduced, r. 13A gave 2 years from their
introduction for passing them, to all hands-harijan and non-
harijan, but the former enjoyed an extra two year grace
period. Rule 13B totally exempted pentagenarians from
passing these tests. Rule 13AA, which is impugned as
violative of
Art. 16(1)
and
(2)
of the Constitution, was
promulgated on January 13, 1972 and it reads:

"13AA. Notwithstanding anything contained in these
rules, the Government may, by order, exempt for a
specified period any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in
service, from passing the tests referred to in rule 13
or rule 13A of the said Rules.

Provided that this rule shall not be applicable to
tests prescribed for purposes of promotion of the
executive staff below the rank of Sub-Inspectors
belonging to the Police Department."
A Note appended to the rule gives the raison d' etre of the
rule:

"It has been brought to the notice of Government
that a large number of Harijan employees in Public
Service are facing immediate reversion from their posts
for want of test qualifications. So it is considered
necessary to incorporate an enabling provision in the
Kerala State and Subordinate Services Rules, 1958 to
grant by order temporary exemption to members already
in service belonging to Scheduled Castes and Scheduled
Tribes from passing all tests for a specified period.
This notification is intended to achieve the above
object."

A break-up of r. 13AA of the rules certainly gives
power to Government to extend the time to harijan officials
of 'subordinate services' for passing tests prescribed for
occupying promotional posts. But it does not for ever exempt
these hands but only waive for a specified, presumably,
short term. Nor does it relax the minimal qualifications
held necessary for these posts from the point of view of
basic administrative efficiency. The subsidiary need of
passing certain new tests, for which all employees get some
period (from the time of their introduction) is relaxed for
a longer period in the case of harijan hands under r. 13A
and still more under r. 13AA. We must expect that Government
will, while fixing the longer grace time for passing tests,
have regard to administrative efficiency. You can't throw to
the winds considerations of administrative capability and
grind the wheels of Government to a halt in the name of
'harijan welfare'. The Administration runs for good
government, not to give jobs to harijans. We must accept the
necessary import of the rule as a limited concession to this
weaker group and test its vires on this basis.

One significant factor must be remembered to guard
against exaggerating the bearing of these tests as a
coefficient of efficiency. Certainly, they were not so
important as all that because r. 13A-not challenged all
these years-gave 2 years' qualifying period for all and 4
years for harijans. Also those above 50 years of age did not
have to pass the tests at all (r. 13B). The nature of the
tests vis a vis the nature of work of upper division clerks,
and their indispensability for official capability have not
been brought out in the writ petition and, absent such
serious suggestions, we have to assume that Government (the
author of r.13) would have granted varying periods of
exemption only because of their desirability, not their
precedent necessity. To expatiate a little more, it is not
unusual to fix basic qualifications for eligibility to a
post. Their possession is a must, having regard to the
functions of the office. A second and secondary category of
qualifications is insisted on as useful to discharge the
duties of the post e.g., accounts test, or civil and
criminal judicial tests and the like, depending on the
department where he is to work. After all here he is a pen-
pushing clerk, not a magistrate, accounts officer, forest
officer, sub-registrar, space scientist or too administrator
or one on whose initiative the wheels of a department speed
up or slow down. Even so, it makes his clerical work more
understanding and efficient. These
tests are, therefore, demanded for better performance, not
basic proficiency, but relaxation is also allowed in
suitable class of cases, their absence not being fatal to
efficiency. A third class of virtues which will make the
employee ultra efficient, but is not regarded as cardinal,
is listed as entitled to preference. A doctorate in business
management, or LL.M. where the basic degree is the essential
requisite, social service or leadership training, sports
distinction and a host of other extra attainments which will
improve the aptitude and equipment of the officer in his
speciality but are, in no sense, necessary-these are welcome
additives, are good and may even get the employee a salary
raise but are not insisted on for initial appointment to the
post either as a direct recruit or as a promotee. This
trichotomy of qualifications makes pragmatic meaning to any
employer and is within anyone's ken if he turns over the
advertisements in newspapers. To relax on basic
qualifications is to compromise with minimum administrative
efficiency; to relent, for a time, on additional test
qualifications is to take a calculated but controlled risk,
assured of a basic standard of performance; to encourage the
possession of higher excellence is to upgrade the efficiency
status of the public servant and, eventually of the
department. This is the sense and essence of the situation
arising in the present case, viewed from the angle of
administrative requirements or fair employment criteria.

Back now to the rule of exemption and its vires.
Frankly, here the respondents who have passed the 'tests'
are stalled in their promotion because of the new rule of
harijan exemption. As individuals, their rights vis a vis
their harijan brethren are regarded unequally. In a strictly
competitive context or narrowly performance-oriented
standard, r. 13AA discriminates between a harijan and a non-
harijan. The question is whether a perceptive sensitivity
sees on 'equal opportunity' a critical distinction between
distribution according to 'merit' of individuals and
distribution according to 'need' of depressed groups,
subject to broad efficiency criteria. We enter here 'a
conceptual disaster area'.

Factual contexts dictate State action. The differential
impact of a law on a class will influence judicial
evaluation of the reasonableness of a classification and its
relation to a purpose which is permissible. Courts, however,
adopt a policy of restrained review where the situation is
complex and is intertwined with social, historical and other
substantially human factors. Judicial deference-not
abdication-is best expressed by Justice Holmes in his
dissent in Louisvilla Gas & Elec. Co. v. Coleman
"But when it is seen that a line or a point there
must be, and that there is no mathematical and logical
way of fixing it precisely, the decision of the
legislature must be accepted unless we can say that it
is very wide of any reasonable mark."
In Buck v. Bell Holmes J. observed:

"The law does all that is needed when it does all
that it can, indicates a policy, applies it to all
within the lines, and seeks to bring within the lines
all similarly situated so far and so fast as its means
allow".

Given a legitimate over-riding purpose for selectivity the
Court passes, leaving it to the law-maker the intricate
manner of implementation. Faced with a suspect
classification based on a quasi-caste differentia and
apparently injuring administrative quality, the Court turns
activist. Conceptual equilibrium between these two lines is
the correct guideline.

The operational technique may vary with time and
circumstance but the goal and ambit must be constitutionally
sanctioned. In the instant case, the State has taken a
certain step to advance the economic interests of harijans.
What-if we break down the rule into its components-have
Government done ? Have they transgressed the rights under

Art. 16(1)

& (2) ?
If they have, the Court, as
constitutional invigorator interdicts, after making
permissible presumptions in favour of State actions and
importing the liberal spirit of effective equality into the
mandate of Arts. 14 and 16. Otherwise, the hammer does not
fall.

Why was this second 'holiday' under rule 13AA to
harijans granted ? The hapless circumstance which compelled
this course was, according to the State, the need to help
this class, acting within the constitutional bounds, to
avert mass reversion to lower posts, without abandoning
insistence on passing 'tests'. The Note to r. 13AA is
explanatory. The State viewed this disturbing situation with
concern, and, having regard to their backward condition,
made r. 13AA which conferred power on Government to grant
further spells of grace time to get through these tests.
Simultaneously, a period within which two opportunities for
passing tests would be available was afforded by a G.O.
issued under r. 13AA. The consequence was their immediate
reversion was averted and the promotion prospects of the
non-harijan writ petitioners, who were test-qualified, stood
postponed. This grievance of theirs drove them to the High
Court where the rule of temporary exemption from passing
tests for promotional eligibility in favour of harijans was
held ultra vires Arts. 16(1) and 335.

I shall focus on the basis because my learned brethren
have dilated on the necessary details of facts and, more
importantly, because confusion on fundamentals deflects the
construction of constitutional clauses-all this against the
admitted backdrop of die-hard harijan bondage, sometimes
subtle, sometimes gross. The learned Advocate General fairly
conceded-and I think rightly-that r. 13AA was not a
'reservation' under
Art. 16(4)
and yet the favoured
treatment to harijan clerks was valid, being based on
reasonable classification under a constitutionally
recognised differentia which had a relation to the legi-
timate end of promoting the advancement of this handicapped
class, subject to administrative efficiency. The learned
Solicitor General, appearing on notice by the Court to the
Attorney General, stated the law on a broader basis and
urged that the grouping of classes of socially and
educationally downtrodden people especially the Scheduled
Castes and Tribes, was good and did not offend
Art. 16(1)
or
(2). Shri R. K. Garg, for some of the respondents and for
the interveners, spread out the social canvas, focussed on
the age-old suppression and consequential utter backwardness
of those societal brackets and the State's obligation to
wipe out the centuries of deprivation by making a concerted
effort to bring them up to the same level as the other
classes so that, after this levelling up, the whole nation
could march forward on terms of democratic equality.
Discrimination on the ground of caste did not arise,
according to counsel, Scheduled Castes and Tribes being not
a caste but an amalgam of the socially lowly and the lost,
including groups with a caste savour. Shri Krishnamoorthy
Iyer, for the respondents, naturally disputed all these
propositions. The cornerstone of his case was that in the
field of State employment caste-wise compassion to harijans
flew in the face of
Art. 16(1)
and
(2)
and separate but
special treatment was permissible only under
Art. 16(4)

which was expressly designed as benignant discrimination
devoted to lifting backward classes to the level of the rest
through the constitutional technology of 'reservation'. To
travel beyond this special clause and evolve a general
doctrine of backward classification was to over-power the
basic concept of equality and to bring in, by a specious
device, a back-door casteism subverting the scheme of a
casteless society set as one of the goals of our
constitutional order. Efficiency of administration, an
important desideratum of public service, would also suffer.

I will examine these contentions in depth and detail
later in this judgment.

Let us proceed to assess the constitutional merit of
the State's ex facie 'unequal' service rule favouring in-
service harijan employees in a realist socio-legal
perspective. But before that, some memorable facts must be
stated. The Father of the National adopted, as his fighting
faith, the uplift of the bhangi and his assimilation, on
equal footing, into Hindu society, and the Constitution,
whose principal architect was himself a militant mahar, made
social justice a founding faith and built into it humanist
provisions to lift the level of the lowly scheduled castes
and tribes to make democracy viable and equal for all.
Studies in social anthropology tell us how cultural and
material suppression has, over the ages, crippled their
personality, and current demography says that nearly every
fifth Indian is a harijan and his social milieu is steeped
in squalour. The conscience of the Constitution found
adequate expression on this theme, in Dr. Ambedkar's words
of caution and premonition in the Constituent Assembly:

"We must begin by acknowledging first that there
is complete absence of two things in Indian society.
One of
these is equality. On the social plane, we have in
India a society based on privilege of graded inequality
which means elevation for some and degradation of
others. On the economic plane, we have a society in
which there are some who have immense wealth as against
the many who are living in abject poverty. On the 26th
of January, 1950, we are going to enter into a life of
contradictions. In politics we will have equality and
in social and economic life we will have inequality...
We must remove this contradiction at the earliest
possible moment, or else those who suffer from
inequality will blow up the structure of political
democracy which this Assembly has so laboriously built
up."

(Speeches, Vol. II, pp. 184-187).

Judges may differ in constitutional construction but,
without peril of distorting the substance, cannot discard
the activism of the equal justice concept in the setting of
deep concern for the weaker sections of the community. What
I endeavour to emphasize, as I will elaborate later, is that
equal justice is an aspect of social justice, the salvation
of the very weak and down-trodden, and the methodology for
levelling them up to a real, not formal, equality, being the
accent.

The Kerala State, the appellant, has statistically
shown the yawning gap between what number of posts in
Government service harijans are entitled to, population-
ratio wise, and the actual number of posts occupied by them.
Their 'official' fate is no less ominous elsewhere in India
and would have been poorer on the competitive market method
of selection unaided by 'reservation'. The case for social
equality and economic balance, in terms of employment under
the State, cries for more energised administrative effort
and a Government that fails to repair this depressed lot,
fools the public on harijan welfare. Indeed, an aware mass
of humanity, denied justice for generations, will not take
it lying down too long but may explode into Dalit Panthers,
as did the Black Panthers in another country, -a theme on
which Shri Gajendragadkar, a former Chief Justice of India,
has laid disturbing stress in two Memorial Lectures
delivered recently. Jurists must listen to real life and,
theory apart, must be alert enough to read the writing on
the wall ! Where the rule of law bars the doors of
collective justice, the crushed class will seek hope in the
streets! The architects of our Constitution were not
unfamiliar with direct action where basic justice was long
withheld and conceived of 'equal opportunity' as inclusive
of equalising opportunity. Only a clinical study of organic
law will yield correct diagnostic results.

Social engineering-which is Law in action- must adopt
new strategies to liquidate encrusted group injustices or
surrender society to traumatic tensions. Equilibrium, in
human terms, emerges from
release of the handicapped and the primitive from persistent
social disadvantage, by determined creative and canny legal
manouvres of the State, not by hortative declaration of arid
equality. 'To discriminate positively in favour of the weak
may sometimes be promotion of genuine equality before the
law' as Anthony Lester argued in his talk in the B.B.C. in
1970 in the series: 'What is wrong with the Law'. 'One law
for the Lion and Ox is oppression'. Or, indeed as was said
of another age by Anatole France, 'The law in its majestic
equality forbids the rich as well as the poor to sleep under
bridges, to beg in the streets and to steal bread'.
Redistributive justice to harijan humanity insists on
effective reforms, designed to produce equal partnership of
the erstwhile 'lowliest and the lost', by State action,
informed by short-run and long-run sociologically potent
perspective planning and implementation. An uneven socio-
economic landscape hardly gives the joy or equal opportunity
and development or draw forth their best from manpower
resources now wallowing in the low visibility areas of
discontented life.

The domination of a class generates, after a long night
of sleep or stupor of the dominated, an angry awakening and
protestant resistance and this conflict between thesis,
i.e., the status quo, and anti-thesis i.e., the hunger for
happy equality, propels new forces of synthesis i.e., an
equitable constitution order or just society. Our founding
fathers, possessed of spiritual insight and influenced by
the materialist interpretation of history, forestalled such
social pressures and pre-empted such economic upsurges and
gave us a trinity of commitments-justice : social, economic
and political. The 'equality Articles' are part of this
scheme. My proposition is, given two alternative
understandings of the relevant sub-Articles [Arts. 16(1) and
(2)], the Court must so interpret the language as to remove
that ugly 'inferiority' complex which has done genetic
damage to Indian polity and thereby suppress the malady and
advance the remedy, informed by sociology and social
anthropology. My touch-stone is that functional democracy
postulates participation by all sections of the people and
fair representation in administration is an index of such
participation.

Justice Brennen, in a somewhat different social milieu,
uttered words which may not be lost on us:

"Lincoln said this Nation was 'conceived in
liberty and dedicated to the proposition that all men
are created equal'. The Founders' dream of a society
where all men are free and equal has not been easy to
realize. The degree of liberty and equality that exists
today has been the product
of unceasing struggle and sacrifice. Much remains to be
done-so much that the very institutions of our society
have come under challenge. Hence, today, as in
Lincoln's time, a man may ask 'whether (this) nation or
any nation so conceived and so dedicated can long
endure'. It cannot endure if the Nation falls short on
the guarantees of liberty, justice, and equality
embodied in our founding documents. But it also cannot
endure if our precious heritage of ordered liberty be
allowed to be ripped apart amid the sound and fury of
our time. It cannot endure if in individual cases the
claims of social peace and order on the one side and of
personal liberty on the other cannot be mutually
resolved in the forum designated by the Constitution.
If that resolution cannot be reached by judicial trial
in a court of law, it will be reached elsewhere and by
other means, and there will be grave danger that
liberty, equality, and the order essential to both will
be lost."

The Note to r. 13AA explains the immediate motivation
behind the rule but the social backdrop set out by me helps
us appreciate its constitutionality. However, we are under a
Consitution and mere social anthropology cannot override the
real words used in the Constitution. For, Judges may read,
not reconstruct. Plainly harijans enjoy a temporary
advantage over their non-harijan brethern by virtue of r.
13AA and this, it is plausibly urged by counsel for the
contestants, is violative of the merciless mandate of
equality 'enshrined' dually in
Art. 16(1)
and
(2).
It
discriminates without constitutional justification and
imports the caste differentia in the face of a contrary
provision. The learned Advocate General seeks to meet it
more by a legal realist's(approach and, in a sense, by
resort to functional jurisprudence. What is the
constitutional core of equality ? What social philosophy
animates it ? What luminous connotation does the pregnant,
though terse, phrase 'equality of opportunity for all
citizens in matters of employment' bear ? What excesses of
discrimination are banned and what equalitarian implications
invite administrative exploration ? Finally, what light do
we derive from precedents of this Court on these facets of

Art. 16 ?
I will examine these contentious issues presently.

The Solicitor General, in his brief but able
submissions, has offered a harmonious and value-based
construction of the constitutional code guaranteeing
equality (Arts. 14 to 16). Sri Garg has swung to extreme
positions, some of which spill over beyond the specific
issue arising in this case. Even so, I agree that a
quickened social vision is needed to see in the Constitution
what a myopic glimpse may not reveal.

A word of sociological caution. In the light of
experience, here and elsewhere, the danger of 'reservation',
it seems to me, is three-fold. Its benefits, by and large,
are snatched away by the top creamy layer of the 'backward'
caste or class, thus keeping the weakest among the weak
always weak and leaving the fortunate layers to consume the
whole cake. Secondly, this claim is over-played
extravagantly in democracy by large and vocal groups whose
burden of backwardness has been
substantially lightened by the march of time and measures of
better education and more opportunities of employment, but
wish to wear the 'weaker section' label as a means to score
over their near-equals formally categorised as the upper
brackets. Lastly, a lasting solution to the problem comes
only from improvement of social environment, added
educational facilities and cross-fertilisation of castes by
inter-caste and inter-class marriages sponsored as a massive
State programme, and this solution is calculatedly hidden
from view by the higher 'backward' groups with a vested
interest in the plums of backwardism. But social science
research, not judicial impressionism, will alone tell the
whole truth and a constant process of objective re-
evaluation of progress registered by the 'under-dog'
categories is essential lest a once deserving 'reservation'
should be degraded into 'reverse discrimination'.
Innovations in administrative strategy to help the really
untouched, most backward classes also emerge from such
socio-legal studies and audit exercises, if dispassionately
made. In fact, research conducted by the A. N. Sinha
Institute of Social Studies, Patna, has revealed a dual
society among harijans, a tiny elite gobbling up the
benefits and the darker layers sleeping distances away from
the special concessions. For them, Arts. 46 and 335 remain a
noble romance' the bonanza going to the 'higher' harijans. I
mention this in the present case because lower division
clerks are likely to be drawn from the lowest levels of
harijan humanity and promotion prospects being accelerated
by withdrawing, for a time, 'test' qualifications for this
category may perhaps delve deeper. An equalitarian break-
throug in a hierarchical structure has to use many weapons
and r. 13AA perhaps is one.

The core conclusion I seek to emphasize is that every
step needed to achieve in action, actual, equal, partnership
for the harijans, alone amounts to social justice-not
enshrinement of great rights in Part III and good goals in
Part IV. Otherwise, the solemn undertakings in Arts. 14 to
16 read with Arts. 46 and 335 may be reduced to a 'teasing
illusion or promise of unreality'. A clear vision of the
true intendment of these provisions demands a deep
understanding of the Indian spiritual-secular idea that
divinity dwells in all and that ancient environmental
pollution and social placement, which the State must
extirpate, account for the current socio-economic
backwardness of the blacked-out human areas described
euphemistically as Scheduled Castes and Scheduled Tribes.
The roots of our constitutional ideas-at least some of them-
can be traced to our ancient culture. The noble Upanishadic
behest of collective acquisition of cultural strength is in
volved in and must evolve out of 'equality', if we are true
to the subtle substance of our finer heritage.

Let me now turn to the essential controversy. Is rule
13AA valid as protective discrimination to the harijans ?
The Advocate General drew our attention to the Articles of
the Constitution calculated to overcome the iniquitous
alienation of harijans from the three branches of
Government. The Preamble to the Constitution silhouettes a
"justiceoriented' community. The Directive Principles of
State Policy, fundamental in the governance of the country,
enjoin on the State the promotion 'with special care the
educational and economic interests of the weaker sections of
the people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes, ... and protect them from social
injustice'. To neglect this obligation is to play truant
with
Art. 46.
Undoubtedly, economic interests of a group-as
also social justice to it-are tied up with its place in the
services under the State. Our history, unlike that of some
other countries, has found a zealous pursuit of government
jobs as a mark of share in State power and economic
position. Moreover, the biggest-and expanding, with
considerable State undertakings,-employer is Government,
Central and State, so much so appointments in the public
services matter increasingly in the prosperity of backward
segments. The Scheduled Castes and Scheduled Tribes have
earned special mention in
Art. 46
and other 'weaker
sections', in this context, means not every 'back-ward
class' but those dismally depressed categories comparable
economically and educationally to Scheduled Castes and
Scheduled Tribes. To widen the vent is to vitiate the equal
treatment which belongs to all citizens, many of whom are
below the poverty line. Realism reveals that politically
powerful castes may try to break into equality, using the
masterkey of backwardness but leaving aside
Art. 16(4)
, the
ramparts of
Art. 16(1)
and
(2)
will resist such oblique
infiltration.

Even so, does
Art. 46
at all authorise the breach of
uniform equality of opportunity guaranteed by
Art. 16(1) ?

Can a favoured treatment to harijans, by way of temporary
concessions in passing tests, be founded on
Art. 46
as a
basis for rational classification? Is such a benign
discrimination a caste-oriented legislation contravening

Art. 16(2) ?
Before I consider these vital questions, I may
as well glance at some of the important pro-harijan
provisions in the Constitution.

The Constitution itself makes a super-classification
between harijans and others, grounded on the, fundamental
disparity in our society and the imperative social urgency
of raising the former's sunken status. Apart from
reservation of seats in the Legislatures for harijans, which
is a deliberate departure, taking note of their utter
backwardness (
Art. 330
and
, a special officer to
investigate and report to the President upon the working of
special constitutional safeguards made to protect harijans
has to be appointed under
Art. 338.
Gross inadequacy of
representation in public services is obviously one subject
for investigation and report. More importantly,
Art. 335
,
which Shri Garg relied on to hammer home his point, reads:

"335, Claims of Scheduled Castes and Scheduled
Tribes to services and posts.-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."
This provision directs pointedly to (a) the claims of-not
compassion towards-harijans to be given special
consideration in the making of appointments to public
services; and (b) lest this extra-attention should run riot
and ruin administrative efficiency, a caution is uttered
that maintenance of efficiency in administration should not
suffer mayhem.

Now we may deduce from these and other like Articles,
unaided by authority, certain clear conclusions of great
relevance to the present case: (1) The Constitution itself
demarcates harijans from others. (2) This is based on the
stark backwardness of this bottom layer of the community.
(3) The differentiation has been made to cover specifically
the area of appointments to posts under the State. (4) The
twin objects, blended into one, are the claims of harijans
to be considered in such posts and the maintenance of
administrative efficiency. (5) The State has been obligated
to promote the economic interests of harijans and like
backward classes, Arts. 46 and 335 being a testament and
Arts. 14 to 16 being the tool-kit, if one may put it that
way. To blink at this panchsheel is to be unjust to the
Constitution.

Sri Krishnamoorthy Iyer, for the contesting
respondents, argued that harijans may have been grouped
separately for protective care by the Constitution but its
expression, in the matter of employment under the State, has
to be subject to the fundamental right of every citizen like
his clients to the enjoyment of equal opportunity and non-
discrimination on the score of caste. His proposition is
that, in the name of harijan welfare, dilution of
Art. 16(1)

and
(2)
is impermissible under the scheme of Part III which
is paramount and contains enforceable guaranteed rights.
Secondly, 'scheduled castes' are castes all the same and
preferment shown to them is plainly opposed to
Art. 16(2).

Thirdly, even
Art. 335
insists on administrative tone, so
essential to good government, and prolonged exemption from
tests prescribed by the impugned rule, from the point of
view of official efficiency, undermines this pertinent
criterion. This Court has all along struck down measures of
'reserved' representation for backward classes in
educational institutions and public services when a high
proportion has been so ear-marked, escalating the risk of
making the Administration itself backward. Finally, the
Constitution has set apart an exclusive exception to the
equal opportunity rule in
Art. 16(4)
, so much so
Art. 46
and
must be projected through that provision only and cannot
spill over into
Art. 16(1)
and
(2).
Fundamental rights are
fundamental and cannot be cut back upon or insidiously
eroded by the classificatory technique.

Both the presentations have a flawless look, the
controlling distinction being between two visions of the
mood and message of the supreme law we call the
Constitution, the dynamic and the static, the sociological
and the formal. It is unexceptional to say that any
insightful construction must opt for the former methodology
and also seek a good fellowship among the various
provisions, conventionally called 'harmonious construction'.
In an elevating and organic instrument, antagonisms cannot
exist. If that be the lodester to help interpret the suprema
lex we have to discover a note of unison in Arts. 16(1), (2)
and (4) as well as Arts. 46 and 335, the background tune
being
one of profound effort first to equalise and then to march
together without class-creed distinction. The social
engineering know-how of our constitution, viz., levelling up
the groups buried under the debris by a generous
consideration and thereafter enforcing strict equality among
all-this two-tier process operating symbiotically, is the
life of the law and the key to the 'equal opportunity'
mechanism. Equally emphatic is the grave concern shown for a
casteless and classless society-not in a magic instant but
through a careful striving-and for the standards of
performance of the Administration, noted from Curzon's days
for drowsiness.

Efficiency means, in terms of good government, not
marks in examinations only, but responsible and responsive
service to the people. A chaotic genius is a grave danger in
public administration. The inputs of efficiency include a
sense of belonging and of accountability which springs in
the bosom of the bureaucracy (not pejoratively used) if its
composition takes in also the weaker segments of 'We, the
people of India'. No other understanding can reconcile the
claim of the radical Present and the hangover of the unjust
Past.

Now to the precedential guidelines. I am alive to the
correctly reluctant attitude of this Court to depart from
precedent lest an unstable and uncertain situation be
created. Stare decisis et non quieta movere. Khanna J. has
rightly emphasized this great need but also quoted Brandeis
and Cardozo JJ.:

"As observed by Brandeis, 'stare decisis is always a
desideratum, even in these constitutional cases. But in
them, it is never a command'.

x x x x x
"As observed by Cardozo):
... ... But I am ready

to concede that the rule of adherence to precedent,
though it ought not to be abandoned, ought to be in
some degree relaxed. I think that when a rule, after it
has been duly tested by experience, has been found to
be inconsistent with the sense of justice or with the
social welfare, there should be less hesitation in
frank avowal and full abandonment. We have had to do
this sometimes in the field of constitutional law'.
Anyway, here no case is being over-ruled because no
case has said Scheduled Castes and Tribes are a caste nor
that advancement of sunken sections of society consistently
with administrative efficiency cannot be a rational object
linked with outrageous backwardness of a class as the
intelligible differentia within an official cadre.

Keshavananda Bharati has clinched the issue of primacy
as between Part III and Part IV of the Constitution. The
unanimous
ruling there is that the Court must wisely read the
collective Directive Principles of Part IV into the
individual fundamental rights of Part III, neither Part
being superior to the other! Since the days of Dorairajan
judicial opinion has hesitatingly tilted in favour of Part
III but in
Keshvananda Bharati
(supra) the supplementary
theory, treating both Parts as fundamental, gained
supremacy. Khanna J spoke with a profound sense of depth (if
I may say so with respect) at p. 1878:

"The Directive Principles embody a commitment
which was imposed by the Constitution makers on the
State to bring about economic and social regeneration
of the teeming millions who are steeped in poverty,
ignorance and social backwardness. They incorporate a
pledge to the coming generations of what the State
would strive to usher in."

*********************************************
"There should be no reluctance to abridge or
regulate the fundamental rights to property if it was
felt necessary to do so for changing the economic
structure and attaining the objective contained in the
Directive Principles."

(at p. 1880)
Chandrachud J. has (again, I quote with deference) set the
judicial singhs straight in this passage (at p. 2050):

"What is fundamental in the governance of the
country cannot surely be less significant than what is
fundamental in the life of an individual. The freedoms
of a few have to be abridged in order to ensure the
freedom of all. If State fails to create conditions in
which the Fundamental freedoms could be enjoyed by all,
the freedom of the few will be at the mercy of the many
and then all freedoms will vanish. In order, therefore,
to preserve their freedom, the privileged few must part
with a portion of it."

The upshot,, after
Bharati
, (supra), is that
Art. 46
to be
given emphatic expression while interpreting
Art. 16(1)
and

(2).
Indeed,
Art. 335
is more specific and cannot be brushed
aside or truncated in the operational ambit vis-a-vis
Art.
16(1)
and
(2)
without hubristic aberration.

We may clear the clog of
Art. 16(2)
as it stems from a
confusion about caste in the terminology of Scheduled Castes
and Scheduled Tribes. This latter expression has been
defined in Arts. 341 and 342 A bare reading brings out the
quintessential concept that they are no castes in the Hindu
fold but an amalgam of castes, races, groups, tribes,
communities or parts thereof found on investigation to be
the lowliest and in need of massive State aid and notified
as such by the President. The confuse this backward-most
social composition with
castes is to commit a constitutional error, misled by a
compendious appellation. So that, to protect harijans is not
to prejudice any caste but to promote citizen solidarity.

Art. 16(2)
is out of the way and to extend protective
discrimination to this mixed bag of tribes, races, groups,
communities and non-castes outside the four-fold Hindu
division is not to compromise with the acceleration of
castelessness enshrined in the sub-Article. The discerning
sense of the Indian Corpus Juris has generally regarded
Scheduled Castes and Scheduled Tribes, not as caste but as a
large backward group deserving of societal compassion. The
following provisions of the
Income Tax Act, 1961
are
illustrative of this principle:

"13.
Section 11
not to apply in certain cases:

(1) (b) Nothing contained in
s. 11
or
s. 12
shall
operate so as to exclude from the total income of the
previous year of the person in receipt thereof

(a) .....

(b) in the case of a trust for charitable purposes or
a charitable institution created or established
after the commencement of this Act, any income
thereof if the trust or institution is created or
established for the benefit of any particular
religious community or caste;

*********************************************
Explanation 2.-A trust or institution created or
established for the benefit of Scheduled Castes,
backward classes, Scheduled Tribes or women and
children shall not be deemed to be a trust or
institution created or established for the benefit of a
religious community or caste within the meaning of
clause (b) of sub-s. (1)."

The next hurdle in the appellant's path relates to
Art.
16(4).
To my mind, this sub-Article serves not as an
exception but as an emphatic statement, one mode of
reconciling the claims of backward people and the
opportunity for free competition the forward sections are
ordinarily entitled to. In the language of Subba Rao, J. (as
he then was), in Devadasan(1):

"The expression 'nothing in this article' is a
legislative device to express its intention in a most
emphatic way that the power conferred thereunder is not
limited in any way by the main provision but falls
outside it. It has not really carved out an exception,
but has preserved a power untrammelled by the other
provisions of the Article."

True, it may be loosely said that
Art. 16(4)
is an exception
but, closely examined, it is an illustration of
constitutionally sanctified classification.
Public services have been a fascination for Indians even in
British days, being a symbol of State power and so a special
Article has been devoted to it.
Art. 16(4)
need not be a
saving clause but put in due to the over-anxiety of the
draftsman to make matters clear beyond possibility of doubt
(see, for instance, 59 I.A. 206).

'Reservation' based on classification of backward and
forward classes, without detriment to administrative
standards (as this Court has underscored) is but an
application of the principle of equality within a class and
grouping based on a rational differentia, the object being
advancement of backward classes consistently with
efficiency. Arts. 16(1) and (4) are concordant. This Court
has viewed
Art. 16(4)
as an exception to
Art. 16(1).
Does
classification based on desparate backwardness render
Art.
16(4)
redundant? No. Reservation confers pro tanto monopoly,
but classification grants under
Art. 16(1)
ordinarily a
lesser order of advantage. The former is more rigid,, the
latter more flexible, although they may overlap sometimes.

Art. 16(4)
covers all backward classes; but to earn the
benefit of grouping under
Art. 16(1)
based on
Art. 46
and
as I have explained, the twin considerations of terrible
backwardness of the type harijans endure and maintenance of
administrative efficiency must be satisfied.

The surviving, but substantial, controversy centres
round the 'equal opportunity' rule and its transgression, if
any, by r. 13AA. The learned Advocate General fairly and
rightly agreed that the impugned rule falls outside
Art.
16(4).
Therefore he sought to salvage the temporary
exemption from passing tests by urging that a
constitutionally valid classification was all that had been
done and cited Indian rulings and American juridical
writings in support of his stand.

It is platitudinous constitutional law that Arts. 14 to
16 are a common code of guaranteed equality, the first
laying down the broad doctrine, the other two applying it to
sensitive areas historically important and politically
polemical in a climate of communalism and jobbery.

We need not tarry to consider whether
Art. 16
applies
to appointments on promotion. It does. Nor need we worry
about administrative calamities if test qualifications are
not acquired for time by some hands. For one thing, these
tests are not so telling on efficiency as explained earlier
by me. And, after all, we are dealing with clerical posts in
the Registration Department where aiert quailldriving and a
smattering of special knowledge will make for smoother turn-
out of duties. And the Government is only postponing, not
foregoing, test qualification. As for the bearing of 'tests'
on basic efficiency, everything depends on the circumstances
of a case and the post.

The basic question thus is one of social dynamics
implied in
Art. 16(1).
Let us go to the fundamentals and
ignore the frills. In a spacious sense, 'equal opportunity'
for members of a hierarchical society makes sense only if a
strategy by which the underprivileged
have environmental facilities for developing their full
human potential. This consummation is accomplished only when
the utterly depressed groups can claim a fair share in
public life and economic activity, including employment
under the State, or when a classless and casteless society
blossoms as a result of positive State action. To help the
lagging social segments, by special care, is a step towards
and not against a larger and stabler equality. I had
occasion to observe in J & K State v. T. N. Khosa(1).

"In this unequal world the proposition that all
men are equal has working limitations, since absolute
equality leads to Procrustean cruelty or sanctions
indolent inefficiency. Necessarily, therefore, an
imaginative and constructive modus vivendi between
commonness and excellence must be forged to make the
equality clauses viable. This pragmatism produced the
judicial gloss of 'classification' and differentia',
with the by-products of equality among equals and
dissimilar things having to be treated differently. The
social meaning of arts. 14 to 16 is neither dull
uniformity nor specious 'talentism'. It is a process of
producing quality out of larger areas of equality
extending better facilities to the latent capabilities
of the lowly. It is not a methodology of substitution
of pervasive and slovenly mediocrity for activist and
intelligent-but not snobbish and uncommitted-cadres.
However, if the State uses classification casuistically
for salvaging status and elitism, the point of no
return is reached for arts. 14 to 16 and the Court's
jurisdiction awakens to dadden such manouvres. The soul
of
art. 16
is the promotion of the common man's
capabilities, over-powering environmental adversities
and opening up full opportunities to develop in
official life without succumbing to the sophistic
argument of the elite that talent is the privilege of
the few and they must rule, wriggling out of the
democratic imperative of arts. 14 and 16 by theory of
classified equality which at its worst degenerates into
class domination."

This observation was approved later by this Court in
Mohd.
Shujat Ali v. Union of India
(2).

Sri Krishnamoorthy Iyer pressed before us, backed by a
catena of cases, that this Court has frowned upon a
classification for promotion from within a homogeneous group
except when it is based on qualification for higher
functional efficiency, and to inject a new ground for
grouping within the class for promotion was constitutional
anathema. I think not. The fact that better educational
prescriptions for promotion posts have been upheld by this
Court does not rule out other reasonable differentia, having
a nexus with the object. The true test is, what is the
object of the classification and is it permissible ?
Further, is the differentia sound and substantial and
clearly related to the approved object ? I agree this is
virgin ground, but does not, for that reason alone, violate,
equality. My conclusion is that the genius of Arts. 14 to 16
consists not in literal equality but in progressive
elimination of pronounced inequality. Indeed, to treat
sharply dissimilar persons equally is subtle injustice.
Equal opportunity is a hope, not a menace.

If
Art. 14
admits of reasonable classification, so does

Art. 16(1)
and this Court has held so. In the present case,
the economic advancement and promotion of the claims of the
grossly under-represented and pathetically neglected
classes, otherwise described as Scheduled Castes and
Scheduled Tribes, consistenly with the maintenance of
administrative efficiency, is the object, constitutionally
sanctioned by Arts. 46 and 335 and reasonably accommodated
in
Art. 16(1).
The differentia, so loudly obtrusive, is the
dismal social milieu of harijans. Certainly this has a
rational relation to the object set out above. I must repeat
the note of caution earlier struck. Not all caste
backwardness is recognised in this formula. To do so is
subversive of both
Art. 16(1)
and
(2).
The social disparity
must be so grim and substantial as to serve as a foundation
for benign discrimination. If we search for such a class, we
cannot find any large segment other than the Scheduled
Castes and Scheduled Tribes. Any other caste, securing
exemption from
Art. 16(1)
and
(2)
, by exerting political
pressure or other influence, will run the high risk of
unconstitutional discrimination. If the real basis of
classification is caste masked as backward class, the Court
must strike at such communal manipulation. Secondly, the
Constitution recognizes the claims of only harijans (Art.

335) and not of every backward class. The profile of
Art. 46

is more or less the same. So, we may readily hold that
casteism cannot come back by the backdoor and, except in
exceptionally rare cases, no class other than harijans can
jump the gauntlet of 'equal opportunity' guarantee. Their
only hope is in
Art. 16(4).
I agree with my learned brother
Fazal Ali J. in the view that the arithmetical limit of 50%
in any one year set by some earlier rulings cannot perhaps
be pressed too far. Overall representation in a department
does not depend on recruitment in a particular year, but the
total strength of a cadre. I agree with his construction of

Art. 16(4)
and his view about the 'carry forward' rule.

The American jurisprudential response to the problem of
repairing the handicaps of the coloureds in public
employment and education is similar, although equal
protection of the laws to all is assured by the 14th
Amendment to the U.S. Constitution.

Jurisprudence, to be living law, must respond to the
bhangi colony and the black ghetto intelligently enough to
equalise opportunities within the social, political and
economic orders, by making up for long spells of
deprivation. Hence, if a court is convinced that the purpose
of a measure using a suspect classification is truly benign,
that is, that the measure represents an effort to use the
classification
as part of a programme designed to achieve an equal position
in society for all tribes and groups and communities, then
it may be justified in permitting the State to choose the
means for doing so, so long as the means chosen are
reasonably related to achieving that end. The distinction
would seem to be between handicaps imposed accidentally by
nature and those resulting from societal arrangements such
as caste structures and group suppression. Society being, in
a broad sense, responsible for these latter conditions, it
also has the duty to regard them as relevant differences
among men and to compensate for them whenever they operate
to prevent equal access to basic, minimal advantages enjoyed
by other citizens. In a sense, the theory broadens the
traditional concept of 'state action' to require government
attention to those inequalities for which it is not directly
responsible, but which nevertheless are concomitant features
of the existence of the organized state. I quote from
Harvard Law Review-1968-69. Vol. 82, excerpts from
'Developments in the Law-Equal Protection':

"A state might, for example, decide to give some
racial groups an exemption from qualification
examinations or establish a racial credit on such
examinations to that often given to veterans"

(p. 1105-06) (emphasis, mine)
* * * * * * * * * * *
"Where racial classifications are being used
ostensibly to remedy deprivations arising from past and
continuing racial discrimination, however a court might
think it proper to judge the measures by a less
stringent standard of review, possibly even the
permissive or rationality standard normally used in
constitutional appraisal of regulatory measures"

(p. 1107)
* * * * * * * * * * * * *
Moreover, even if racial classifications do have
some negative educative effects, the classifications
may be so effective that they should be instituted
despite this drawback. If the measures succeed in
aiding blacks to obtain opportunities within the
social, political and economic orders that have
formerly been denied to them, they may be worth the
cost of emphasizing men's differences. It may be that
the actual participation of blacks in positions
alongside whites will ultimately prove to have the most
important and longlasting educative effect against
discrimination."

(p. 1113)
"Hence, if a court is convinced that the purpose
of a measure using a racial classification is truly
benign, that is, that the measure represents an effort
to use the classification as part of a program designed
to achieve as equal position in society for all races,
then it may be justified in permitting the state to
choose the means for doing so, so long as the means
chosen are reasonably related to achieving that end."

(p. 1115)
Illustrative of an allied type of State action to
eliminate gross group inequality for attaining general
equality is a recent ruling of the U.S. Supreme Court. The
good omen for American women in Schlessinger v. Ballard(1)
is indicative of high judicial hunch in understanding the
classificatory clue to promotion of employment equality. The
case related to a male challenge of a provision entitling
women officers in the U.S. Navy to longer years of
commissioned service. The Court remarked, upholding the
unequal step to promote eventual gender equality, that:

"in enacting and retaining of Sec. 6401 Congress
may thus quite rationally have believed that women line
officers had less opportunity for promotion than did
their male counterparts and that a longer period of
tenure for women officers would therefore be consistent
with the goal to provide women officers with fair and
equitable career advancement programs"

The key thought is the broader test of constitutional
classification and this reinforces my line of thinking.

It is a statistically proved social reality in India
that the depressed employment position of harijans is the
master problem in the battle against generations of
retardation, and 'reservation' and other solutions have made
no significant impact on their employment in public
services. In such an unjust situation, to maintain
mechanical equality is to perpetuate actual inequality. A
battery of several programmes to fight down this fell
backwardness must be tried out by the State. Relaxation of
'tests' qualification at the floor level of clerical posts
(lower or upper division) is a part of this multiform
strategy to establish broader, though seemingly
'differential' equality.

If the Court has its listening posts on raw Indian
earth, its assessment of 'equal opportunity' cannot remain
legalistic or individualistic but should see the age-old
inequality to mend which is also the means to real equality,
a demanding command of our Constitution. The poignant and
ominous words of Sterling Tucker, in his book 'For Blacks.
Only'(1) will awaken the judicial vision to the harijan
situation and so I quote:

"If white Americans had learned to see us as we
are, human beings, like themselves without individual
burdens of hope,
or fear, they could have understood our rage and our
defiance. They might have wished to accommodate to it,
but they could have comprehended it. They could have
under stood our need for pride and grasped what black
power meant to us. But as Ralph Ellison potently
expressed, they never really saw us:

I am an invisible man. . I am a man of substance,
of flesh and bone, fiber and liquids,-and I might even
be said to possess a mind. I am invisible, understand,
simply be cause people refuse to see me.. When they
approach me they see only my surrounding, themselves or
figments of their imgaination-indeed, everything and
anything except me.

That invisibility to which I refer occurs because
of a peculiar disposition of the eyes of those with
whom I come in contact. A matter of the construction of
their inner eyes, those eyes with which they look
through their physical eyes upon reality .... You
wonder whether you aren't simply a phantom in other
people's minds....You ache with the need to convince
yourself that you do exist in the real world, that
you're a part of all the sound and anguish, and you
strike out with your first, you course and you swear to
make them recognize you. And, alas, it is seldom
successful."

I end my opinion of concurrence with the learned Chief
Justice with the admonition, induced by apprehension and for
reasons already given, that no caste, however seemingly
backward, or claiming to be derelict, can be allowed to
breach the dykes of equality of opportunity guaranteed to
all citizens. To them the answer is that, save in rare cases
of 'chill penury repressing their noble rage', equality is
equality-nothing less and nothing else. The heady upper
berth occupants from 'backward' classes do double injury.
They beguile the broad community into believing that
backwardness is being banished. They rob the need-based bulk
of the backward of the 'office' advantages the nation, by
classification, reserves or proffers. The constitutional
dharma, however, is not an unending deification of
'backwardness' and showering 'classified' homage, regardless
of advancement registered, but progressive exorcising of the
social evil and gradual withdrawal of artificial crutches.
Here the Court has to be objective resisting mawkish
politics. But, by that standard, as statistically shown to
us in this case, harijan have'nots have 'miles to go' and so
long, the Administration has 'promises to keep'.

GUPTA, J. I agree with brother Khanna J. that this
appeal should be dismissed, and for the reasons given by
him. I only wish to add a few words on one aspect of the
question that arises for decision in this case.

The lower division clerks working in the Registration
Department of the State of Kerala have to pass within a
fixed time certain departmental tests to be eligible for
promotion as upper division clerks. For
some of these lower division clerks who happen to belong to
Scheduled Castes or Scheduled Tribes, the time for passing
the tests has been extended by successive orders made by the
Government in exercise of the power conferred by Rule 13AA
of the Kerala State and Subordinate Services Rules, 1958.
The High Court of Kerala held that Rule 13AA was violative
of
Article 16(1)
and
(2)
of the Constitution and set aside
the orders made under that Rule. On behalf of the appellant.
State of Kerala, and some of the respondents and
interveners, validity of Rule 13AA is sought to be justified
on a construction of
Article 16(1)
which, it is claimed, is
based on the provisions of
Articles 46
and
of the
Constitution. It is contended that
Article 16(1)
should be
read in the light of the other two Articles. I am not clear
as to what exactly that means; neither
Article 46
and

Article 335
mention
Article 16(1)
, nor
Article 16(1)
refers
to either of them. All the three Articles co-exist in the
Constitution which we, the People of India, have given to
ourselves, and if it is correct to say that one of them
should be read in the light of the other two, it is equally
right to suggest that the two of them should be read in the
light of the other. This means that the various parts of an
organic instrument like the Constitution ought to be
harmoniously construed, but that is not the same thing as
suggesting that even where the scope and ambit of one part
is clear, it should be abridged, extended or amended to
prove its affinity with another part. Each limb of the body
has its own function, and to try to make one of them do the
work of another is both unnecessary and unwise; this might
throw the entire system out of gear.

Article 16(1)
declares a right which is one of the
Fundamental rights guaranteed in Part III of the
Constitution, and
Article 13(1)
invalidates all laws
inconsistent with such rights.
Article 16(1)
lays down:

"There shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State."

Article 46
is in Part IV of the Constitution containing
the 'Directive Principles of State Policy'
Article 46
reads:

"The State shall promote with special care the
educational and economic interests of the weaker
sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes and shall
protect them from social injustice and all forms of
exploitation."

Article 37
states that the provisions contained in Part IV
shall not be enforceable by the courts but the principles
embodied in them are "fundamental in the governance of the
country and it shall be the duty of the State to apply these
principles in making laws". It is difficult to see how

Article 46
which, so far as relevant for the present
purpose, requires the State to promote with special care the
economic interests of the weaker sections of the people,
especially of the Scheduled Castes and Scheduled Tribes, can
serve as an aid to the construction of
Article 16(1).
Article 335
occurs in Part XVI of the Constitution
which contains some 'Special Provisions Relating to Certain
Classes'.
Article 335
provides:

"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."

This Article does not create any right in the members of the
Scheduled Castes and the Scheduled Tribes which they might
claim in the matter of appointments to services and posts;
one has to look elsewhere,
Article 16(4)
for instance, to
find out the claims conceded to them.
Article 335
says that
such claims shall be considered consistently with
administrative efficiency; this is a provision which does
not enlarge but qualify such claims as they may have as
members of the Scheduled Castes or Scheduled Tribes.
Article
, it seems clear, cannot furnish any clue to the
understanding of
Article 16(1).

Article 16(1)
which ensures equality of opportunity for
all citizens in matters relating to employment or
appointment has been described as an instance or incident of
the general guarantee of equality contained in Article 14
(see
State of Jammu & Kashmir v. T. N. Khosa & Ors.
(1).

Article 14
which guarantees equality before the law and
equal protection of the laws, it has been held, does not
insist on absolute equality of treatment to all persons in
disregard of all differences among them but provides for
equality among equals only.

This court observed in
T.
Devadasan v. The Union of India
(2) that "while the aim of
this Article is to ensure that invidious distinction or
arbitrary discrimination shall not be made by the State
between a citizen and a citizen who answer the same
description and the differences which may obtain between
them and of no relevance for the purpose of applying a
particular law, reasonable classification is permissible".
Reasonable classification is thus permissible, and often
necessary, to achieve this equality.
Article 16(1)
which is
an instance of the application of the general rule of
equality with special reference to opportunity for
appointments under the State also does not require "......
absolute equality as such. What is guaranteed is the
equality of opportunity and nothing more.
Article 16(1)
or
(2) does not prohibit the prescription of reasonable rules
for selection to any employment or appointment to any
office.

Any provision as to the qualifications for the
employment or the appointment to office reasonably fixed and
applicable to all citizens would certainly be consistent
with the doctrine of the equality of opportunity; but in
regard to employment, like other terms and conditions
associated with and incidental to it, the promotion to a
selection post is also included in the matters relating to
employment, and even in regard to such a promotion to a
selection post all that
Article 16(1)
guarantees is equality
of opportunity to all citizens who enter service"
-General
Manager, Southern Railway v. Rangachari
(3).
Article 16(1)

thus contemplates classification on the basis of eligibility
for an appointment; those who have
the qualifications needed for the post form one class; it
also implies that the same class of employees constitute a
separate unit.

In
Sham Sunder v. Union of India
(1), this
Court explained that "
Article 16(1)
means equality as
between members of the same class of employees" and forbids
between the members of this class discrimination and denial
of equal opportunity in the matter of promotion.

The lower division clerks in the Registration
Department of the State of Kerala belong to the same class
as employees.
Article 16(1)
ensures to all of them equality
of opportunity in the matter of promotion. Rule 13AA and the
orders made thereunder giving additional opportunity in this
regard to some out of the same class of employees would be
obviously void unless the fact that the favoured members of
the class belong to Seheduled Castes or Scheduled Tribes
made any difference in the position, as contended. It is
argued that Scheduled Castes and Scheduled Tribes constitute
a well-recognized class of citizens and, as
Article 16(1)

permits classification, employees belonging to these castes
and tribes may be treated as a separate unit for promotion.
It is claimed that
Article 46
and
Article 335
encourage such
further classification within the same class which should
therefore be regarded as valid for the purpose of
Article
16(1).
Two assumptions are implicit in this argument: first,
that
Article 16(1)
is subservient to
Article 46
and
Article
and has no requirements of its own and, secondly, that
these two Article justify the discrimination made by Rule
13AA. I do not consider either of those assumptions to be
correct. I have stated already that neither
Article 46
nor

Article 335
is of any assistance in interpreting
Article
16(1).

Article 16(1)
in clear terms insists on equality of
opportunity for all employees of the same class, and this
requirement cannot be dispensed with because of anything in

Article 46
or
Article 335
which do not in any way qualify
the guarantee in
Article 16(1).
The Article of course
permits classification, but only such classification as is
reasonable, and the test of reasonableness, having regard to
the object of the Article, must be whether the proposed
classification helps in achieving this object. Judging by
this test, is it possible to hold the sub-division of lower
division clerks into two categories, those who belong to the
Scheduled Castes and Scheduled Tribes and those who do not,
as reasonable ? I do not think so; such classification is
not relevent to the object of the Article and, therefore,
not reasonable.

Scheduled Castes and Scheduled Tribes are castes and
tribes specified by the President under
Articles 341
and
of the Constitution to be known as such for the purposes of
the Constitution. It is accepted that generally speaking
these castes and tribes are backward in educational and
economic fields. It is claimed that the expression
"Scheduled Castes" does not refer to any caste of the Hindu
Society but connotes a backward class of citizens. A look at

Article 341
however will show that the expression means a
number of existing social castes listed in a schedule;
castes do not cease to be castes being put in a schedule
though backwardness has come to be associated with them.

Article 46
requires the State to promote the economic
interests of the weaker sections of the people and, in
particular, of the Scheduled Castes and the Scheduled
Tribes. The special reference to
the Scheduled Castes and the Scheduled Tribes does not
suggest that the State should promote the economic interests
of these castes and tribes at the expense of other "weaker
sections of the people". I do not find anything reasonable
in denying to some lower division clerks the same
opportunity for promotion as others have because they do not
belong to a particular caste or tribe. Scheduled Castes and
Scheduled Tribes no doubt constitute a well-defined class,
but a classification valid for one purpose may not be so for
another; in the context of
Article 16(1)
the sub-class made
by Rule 13AA within the same class of employees amounts to,
in my opinion, discrimination only on grounds of race and
caste which is forbidden by clause (2) of
Article 16.

In the

State of Rajasthan & Ors. v. Thankur Pratap Singh
(1) this
Court struck down a notification under
section 15
of the
Police Act issued by the State of Rajasthan exempting the
Harijan inhabitants of certain villages from payment of the
cost of additional police force stationed in those villages.
It was held that the notification discriminated against the
law-abiding members of the other communities on the basis
only of caste. I do not find it possible to accept that
picking out employees belonging to the Scheduled Castes and
Scheduled Tribes from the same class of lower division
clerks to give them additional opportunity to be promoted as
upper division clerks is a measure for the promotion of
economic welfare of these castes and tribes.

Some incidental
financial gain to certain individuals assuming it results in
the welfare of the castes and tribes to which they belong in
some remote and indirect way, is not in my view, what

Article 46
contemplates; the other view of
Article 46
would
justify as valid the exemption granted to the Harijan
villagers of
Thakur Pratap Singh
's case from payment of the
cost of additional police force. In any case,
Article 16(1)
,
as I have sought to explain earlier, does not permit such
classifcation as made by Rule 13AA. That Rule may have been
inspired by
Article 46
which requires the State to take
measures to bridge the educational and economic gap between
the weaker sections of the people and other citizens, but

Article 46
does not qualify the provisions of
Article 16(1).

Article 16(1)
speaks of equality of opportunity, not
opportunity to achieve equality. For reasons I have stated
already,
Article 335
appears to be even less relevant on the
question under consideration.

All I have said above relates to the scope of
Article
16(1)
only, because counsel for the appellant has built his
case on this provision alone. Clause (4) of
Article 16

permits reservation of appointments or Posts in favour of
backward classes of citizens notwithstanding
Article 16(1);

I agree with the views expressed by Khanna J. On
Article
16(4)
which comes in for consideration incidentally in this
case. The appalling poverty and backwardness of large
sections of the people must move the State machinery to do
everything in its power to better their condition but doling
out unequal favours to members of the clerical staff does
not seem to be a step in that direction: tilting at the
windmill taking it to be a monster serves no useful purpose.
It may be pertinent in this connection to refer to the
observations of Gajendragadkar J. (as he then was) in
M. R.
Balaji & Ors. v. State of Mysore
,(1) which, though made in
the context of
Article 15(4)
, has relevance for this case
also:

"When Art 15(4) refers to the special provision
for the advancement of certain classes or scheduled
castes or scheduled tribes, it must not be ignored that
the provision which is authorised to be made is a
special provision; it is not a provision which is
exclusive in character, so that in looking after the
advancement of those classes, the State would be
justified in ignoring altogether the advancement of the
rest of the society. It is because the interests of the
society at large would be served by promoting the
advancement of the weaker elements in the society that

Art. 15(4)
authorises special provision to be made. But
if a provision which is in the nature of an exception
completely excludes the rest of the society, that
clearly is outside the scope of
Art. 15(4).
It would be
extremely unreasonable to assume that in enacting
Art.
15(4)
the Parliament intended to provide that where the
advancement of the Backward Classes or the Scheduled
Castes and Tries was concerned, the fundamental rights
of the citizens constituting the rest of the society
were to be completely and absolutely ignored."

More recently in the
State of Jammu & Kashmir v. T. N. Khosa
& Ors.
(supra) this Court has sounded a note of caution:

" ... let us not evolve, through imperceptible
extensions, a theory of classification which may
subvert, perhaps submerge, the precious guarantee of
equality. The eminent spirit of an ideal society is
equality and so we must not be left to ask in
wonderment: what after all is the operational residue
of equality and equal opportunity ?"

I believe these words are not just so much rhetoric, but
mean to be taken seriously.

I concur with the order proposed by Khanna J.
FAZAL ALI J. I agree with the lucid judgment proposed
by my Lord the Chief Justice, but I would like to add a few
lines of my own highlighting some of the important aspects
which arise in this appeal.

The facts of this appeal lie within a very narrow
compass. This appeal by certificate is directed against the
judgment of the Kerala High Court dated April 19, 1974. The
judgment has struck down r. 13-A.A. of the Kerala State and
Subordinate Service Rules, 1958. The impugned rule was
substituted by Government Order (P) 21/PD dated January 13,
1972. It appears that the main dispute between the
appellants and respondent No. 1 centres round the promotion
of some Lower Division Clerks to the grade of Upper Division
Clerks.
The grievance of respondent No. 1 before the High Court was
that some of the Lower Division Clerks who were members of
scheduled castes or scheduled tribes were shown a
preferential treatment in that they had been promoted to the
higher grade of Upper Division Clerks in spite of the fact
that they had not cleared the test prescribed for reaching
the said grade. The Government of Kerala selected the
respondent for hostile discrimination as against these
persons by granting extension after extension to the members
belonging to the scheduled castes or tribes so as to enable
them to pass the test. The series of such extensions
culminated into the order creating r. 13-A.A. which was
wholly discriminatory and violative of
Art. 16
of the
Constitution of India. The plea of respondent No. 1 appears
to have found favour with the High Court which held that r.
13-A.A. was discriminatory and was clearly violative of
Art.
16(1)
of the Constitution and was also beyond the
reservation permitted by clause (4) of
Art. 16.

It may be necessary here to mention a few admitted
facts. In the first place it is not disputed that respondent
No. 1 himself passed the test necessary for promotion to the
Upper grade on November 2, 1971. It is, therefore, manifest
that whatever grievance the respondent No. 1 may have
against the other clerks, he cannot put forward his claim
for being promoted earlier than November 2, 1971 i.e. before
the time he passed the test. In these circumstances
extensions granted by the Government to the clerks belonging
to the scheduled castes or tribes from 1958 to 1972 and
thereafter upto 1974 will affect the respondent No. 1 only
after November 2, 1971 and not before that. Secondly it is
also not denied that the Lower Division Clerks belonging to
the scheduled castes and tribes were undoubtedly senior to
the respondent No. 1 and had been promoted on the express
condition that unless they passed the test prescribed by the
Government they would have to be reverted. This was
obviously done to advance and lift the members of the
scheduled castes and tribes who were backward class of
citizens so that they may be able to compete with the other
stronger sections of the society. It may also be mentioned
here that the promotees were not completely exempted from
the test but they were given extension of time for passing
the test. Thus it is obvious that but for the passing of the
test the respondent No. 1 could not have any other claim to
promotion as Upper Division Clerk. The respondent No. 1 was
previously serving as a Lower Division Clerk in the
Registration Department at Kottayam but is at present
serving in Chitty Auditor's Office at Kottayam. Lastly it is
also admitted that the promotees against whom the respondent
No. 1 has a grievance were undoubtedly members of the
scheduled castes or tribes and such Lower Division Clerks
belonging to the scheduled castes or tribes will hereafter
be referred as 'the promotees' for the purpose of brevity.

In the background of these admitted facts, we have now
to see whether r. 13-A.A. violates
Art. 16(1)
of the
Constitution in any way. The High Court has struck down r.
13-A.A. on three grounds:

(1) that it is beyond the permissible limits of
clause (4) of
Art. 16;
(2) that by virtue of the carry-forward rule the
Government has promoted more than 62% of the
clerks belonging to the scheduled castes and
tribes and have thereby destroyed the concept
of equality; and
(3) that the rule is discriminatory inasmuch as
it makes an uncalled for distinction between
the members of the same service and
classification made by the Government is
neither reasonable nor rational.

It may be mentioned here that the High Court has not
disputed that the members of the scheduled castes and tribes
were not adequately represented in the services under the
State of Kerala which is the positive case of the appellants
before us. The High Court has traced the history of the
various orders passed by the Government of Kerala from 1951
to 1972 granting extensions for two years, three years and
so on, to the promotees a fact which was not at all germane
for the purpose of this case-because the respondent No. 1
who was the petitioner before the High Court himself
admitted that he had passed the test held on November 2,
1971. Thus the conduct of the Government in granting
extensions prior to November 2, 1971 was wholly irrelevant
in order to decide the question of discrimination as
canvessed by respondent No. 1.

Mr. M. M. Abdul Khader, Advocate General of Kerala
appearing for the appellants submitted two points before us.
In the first place he argued that r. 13-A.A. did not provide
for reservation as contemplated by clause (4) of
Art. 16
of
the Constitution and the High Court was, therefore, in error
in striking down the rule because it exceeded the
permissible limits of clause (4) of
Art. 16.
Secondly it was
submitted that the members of the scheduled castes and
tribes were not only members of one caste but for historical
reasons they are a special class by themselves and they have
been given an exalted status under the Constitution itself.
There is thus nothing in
Art. 16(1)
of the Constitution to
prevent the State from making reasonable classification in
order to boost up the members of the scheduled castes and
tribes by giving concessions without imperilling the
efficiency of the services. The State action in the instant
case was, therefore, justified by the Advocate General of
Kerala on the ground that it had only implemented the
directive principles contained in Part IV of the
Constitution. Mr. L. N. Sinha, Solicitor-General appearing
for the Attorney General of India and Mr. R. K. Garg
appearing for the intervener State of U.P. also more or less
supported the stand taken by the Advocate General of Kerala.

Mr. T. S. Krishnamoorthy Iyer appearing for the
respondent No. 1, however, submitted that classification
could only be made under clause (4) of
Art. 16.
In the
instant case even if the provisions contained in r. 13-A.A.
be deemed a reservation within the meaning of clause (4) of

Art. 16
they exceed the permissible limits and destroy the
concept of equality. Secondly it was argued that as the
respondent No. 1 and the promotees were members of the same
class of service they were equally circumstanced and any
discrimination made in favour of the promotees was clearly
hit by
Art. 16(1)
of the Consti-
tution. It was also faintly suggested by him that there was
no reliable evidence to show that the members of the
scheduled castes and tribes were not adequately represented
in the services under the State so as to justify any
classification being made in their favour.

In order to understand the arguments put forward by the
parties it may be necessary to examine the nature and extent
of the provisions of
Art. 16
of the Constitution of India.

Article 16
may be extracted as follows:

"16 .(1) There shall be equality of opportunity
for all citizens in matters relating to employment or
appointment to any office under the State.
(2) 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.

(3) Nothing in this article shall prevent
Parliament from making 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.
(4) Nothing in this article shall prevent the
State from making any provision for the reservation of
appointments or posts in favour of any backward class
of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
(5) Nothing in this article shall affect the
operation of any law which provides that the incumbent
of an office in connection with the affairs of any
religious or denominational institution or any member
of the governing body thereof shall be a person
professing a particular religion or belonging to a
particular denomination."

It is no doubt true that
Art. 16(1)
provides for
equality of opportunity for all citizens in the services
under the State. It is, however, well-settled that the
doctrine contained in
Art. 16
is a hard and reeling reality,
a concrete and constructive concept and not a rigid rule or
an empty formula. It is also equally well-settled by several
authorities of this Court that
Art. 16
is merely an incident
of
Art. 14
,
Art. 14
being the genus is of universal
application whereas
Art. 16
is the species and seeks to
obtain equality of opportunity in the services under the
State. The theory of reasonable classification is implicit
and inherent in the concept of equality for there can hardly
be any country where all the citizens would be equal in all
respects. Equality of opportunity would naturally mean a
fair opportunity not only to one section or
the other but to all sections by removing the handicaps if a
particular section of the society suffers from the same. It
has never been disputed in judicial pronouncements by this
Court as also of the various High Courts that
Art. 14

permits reasonable classification. But what
Art. 14
or
Art.
forbid is hostile discrimination and not reasonable
classification. In other words, the idea of classification
is implicit in the concept of equality because equality
means equality to all and not merely to the advanced and
educated sections of the society. It follows, therefore,
that in order to provide equality of opportunity to all
citizens of our country, every class of citizens must have a
sense of equal participation in building up an egalitarian
society, where there is peace and plently, where there is
complete economic freedom and there is no pestilence or
poverty, no discrimination and oppression, where there is
equal opportunity to education, to work, to earn their
livelihood so that the goal of social justice is achieved.
Could we, while conferring benefits on the stronger and the
more advanced sections of the society, ignore the more
backward classes merely because they cannot come upto the
fixed standards ? Such a course, in my opinion, would lead
to denial of opportunity to the backward classes resulting
in complete annihilation of the concept of equality
contained in Arts. 14 and 16. The only manner in which the
objective of equality as contemplated by the founding
fathers of our Constitution and as enshrined in Arts. 14 and
16 can be achieved is to boost up the backward classes by
giving them concessions, relaxations, facilities, removing
handicaps, and making suitable reservations so that the
weaker sections of the people may compete with the more
advanced and in due course of time all may become equals and
backwardness is banished for ever. This can happen only when
we achieve complete economic and social freedom. In our vast
country where we have diverse races and classes of people,
some of whom are drowned in the sea of ignorance and
illiteracy, the concept of equality assumes very important
proportions. There are a number of areas in some States like
Kashmir, Sikkim, hilly areas of U.P., Bihar and the South,
where due to lack of communication or transport, absence of
proper educational facilities or because of old customs and
conventions and other environmental reasons, the people are
both socially and educationally backward. Could we say that
the citizens hailing from these areas should continue to
remain backward merely because they fall short of certain
artificial standards fixed by various institutions ? The
answer must be in the negative. The directive principles
enshrined in our Constitution contain a clear mandate to
achieve equality and social justice. Without going into the
vexed question as to whether or not the directive principles
contained in Part IV override the fundamental rights in Part
III there appears to be a complete unanimity of judicial
opinion of this Court that the directive principles and the
fundamental rights should be construed in harmony with each
other and every attempt should be made by the Court to
resolve any apparent inconsistency. The directive principles
contained in Part IV constitute the stairs to climb the high
edifice of a socialistic State and the fundamental rights
are the means through which one can reach the top of the
edifice. I am fortified in my view by several decisions of
this Court to which I will refer briefly.
In Re. The Kerala Education Bill, 1957(1) this Court
observed at p. 1022:

"Nevertheless, in determining the scope and ambit
of the fundamental rights relied on by or on behalf of
any person or body the court may not entirely ignore
these directive principles of State policy
laid down in

Art IV of the Constitution but should adopt the
principle of harmonious construction and should attempt
to give effect to both as much as possible."

In
Mohd. Hanif Quareshi & others v. The State of
Bihar
(2) this Court observed as follows:

"The directive principles cannot over-ride this
categorical restriction imposed on the legislative
power of the State. A harmonious interpretation has to
be placed upon the Constitution and so interpreted it
means that the State should certainly implement the
directive principles but it must do so in such a way
that its laws do not take away or abridge the
fundamental rights...."

In
I. C. Golak Nath & Others v. State of Punjab &
Anr.
(3) it was observed by this Court:

"At the same time Parts III and IV constituted an
integrated scheme forming a self-contained code. The
scheme is made so elastic that all the Directive
Principles of State Policy can reasonably be enforced
without taking away or abridging the fundamental
rights."

In
Chandra Bhavan Boarding and Lodging, Bangalore v.
The State of Mysore and Anr.
(4) this Court observed:

"It is a fallacy to think that under our
Constitution there are only rights and no duties. While
rights conferred under Part III are fundamental, the
directives given under Part IV are fundamental in the
governance of the country. We see no conflict on the
whole between the provisions contained in Part III and
Part IV....... The mandate of the Constitution is to
build a welfare society in which justice social,
economic and political shall inform all institutions of
our national life. The hopes and aspirations aroused by
the Constitution will be belied if the minimum needs of
the lowest of our citizens are not met."

Finally the matter has been extensively considered by
the Full Court in
His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Anr.
(5) where Shelat and
Grover, JJ., observed: (p. 427)
"While most cherished freedoms and rights have
been guaranteed the Government has been laid under a
solemn
duty to give effect to the Directive Principles. Both
Parts III and IV which embody them have to be balanced
and harmonised-then alone the dignity of the individual
can be achieved."

They further observed: (p. 459)
"Our Constitution-makers did not contemplate any
disharmony between the fundamental rights and the
directive principles. They were meant to supplement one
another. It can well be said that the directive
principles prescribed the goal to be attained and the
fundamental rights laid down the means by which that
goal was to be achieved."

Hegde and Mukherjea, JJ., observed : (p. 503).

"Our founding fathers were satisfied that there is
no antithesis between the Fundamental Rights and the
Directive Principles. One supplements the other. The
Directives lay down the end to be achieved and Part III
prescribes the means through which the goal is to be
reached."

Ray, J., as he then was and now C.J., observed : (p. 580)
"But the Directive Principles are also
fundamental, They can be effective if they are to
prevail over fundamental rights of a few in order to
subserve the common good and not to allow economic
system to result to the common detriment. It is the
duty of the State to promote common good."

He further observed : (p. 589)
"Parts III and IV of the Constitution touch each
other and modify. They are not parallel to each other.
Different legislation will bring in different social
Principles. These will not be permissible without
social content operating in a flexible manner."
Jaganmohan Reddy, J., observed : (p. 640)
"There can be no doubt that the object of the
Fundamental Rights is to ensure the ideal of political
democracy and prevent authoritarian rule, while the
object of the Directive Principles of State Policy is
to establish a welfare State where there is economic
and social freedom without which political democracy
has no meaning. What is implicit in the Constitution is
that there is a duty on the Courts to interpret the
Constitution and the laws to further the Directive
Principles which under
article 37
, are fundamental in
the governance of the country."

Palekar, J., observed : (p. 711)
"The Preamble read as a whole, therefore, does not
contain the implication that in any genuine
implementation of the Directive Principles, a
fundamental right will not suffer any diminution."
Mathew, J., observed : (p. 878)
"I can see no incongruity in holding, when
article
says in its latter part "it shall be the duty of the
State to apply these principles in making laws", that
judicial process is `State action and that the
judiciary is bound to apply the Directive Principles in
making its judgment."

Beg, J., observed : (p. 902)
"Perhaps, the best way of describing the
relationship between the fundamental rights of
individual citizens, which imposed corresponding
obligations upon the State and the Directive
Principles, would be to look upon the Directive
Principles as laying down the path of the country's
progress towards the allied objectives and aims stated
in the Preamble, with fundamental rights as the limits
of that path, ............."

Chandrachud, J., observed : (p. 962)
"Our decision of this vexed question must depend
upon the postulate of our Constitution which aims at
bringing about a synthesis between `Fundamental Rights'
and the `Directive Principles of State Policy', by
giving to the former a pride of place and to the latter
a place of permanence. Together, not individually, they
form the core of the Constitution. Together, not
individually, they constitute its true conscience."
In view of the principles adumbrated by this Court it
is clear that the directive principles form the fundamental
feature and the social conscience of the Constitution and
the Constitution enjoins upon the State to implement these
directive principles. The directives thus provide the
policy, the guidelines and the end of socio-economic freedom
and Arts. 14 and 16 are the means to implement the policy to
achieve the ends sought to be promoted by the directive
principles. So far as the Courts are concerned where there
is no apparent inconsistency between the directive
principles contained in Part IV and the fundamental rights
mentioned in Part III, which in fact supplement each other,
there is no difficulty in putting a harmonious construction
which advances the object of the Constitution. Once this
basic fact is kept in mind, the interpretation of Arts. 14
and 16 and their scope and ambit become as clear as day.

In the instant case one of the main planks of the
argument put forward by Mr. M. M. Abdul Khader, Advocate-
General, Kerala, was that so far as the scheduled castes and
the scheduled tribes were concerned they had been given an
exalted and privileged status under the Constitution and in
the directive principles contained in Part IV which contain
a mandate to the State to consider their claims. It is
necessary to consider this aspect of the matter in a little
detail, because the main argument of Mr. Abdul Khader has
been that the scheduled castes and tribes did not fall at
all within the mischief of clause (2) of
Art. 16
which
prohibits discrimination on the ground of caste etc. The
scheduled caste is not caste as mentioned in
Art. 16(2).
I
am inclined to agree with the argument advanced by the
Advocate General that the word
`caste' appearing after `scheduled' is really a misnomer and
has been used only for the purpose of identifying this
particular class of citizens which has a special history of
several hundred years behind it. The scheduled castes and
scheduled tribes have been a special class of citizens who
have been so included and described that they have come to
be identified as the most backward classes of citizens that
we have in our country.
Article 366
clauses (24) & (25) of
the Constitution read thus :

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

article 341
to be Scheduled Castes for the
purposes of this Constitution;

(25) "Scheduled Tribes" means such tribes or
tribal communities or parts of or groups
within such tribes or tribal communities as
are deemed under
article 342
to be Scheduled
Tribes for the purposes of this
Constitution;"

These constitutional provisions, therefore, create a
presumption in favour of scheduled castes and scheduled
tribes that they are backward classes of citizens. It is not
disputed that the members of the scheduled castes and
scheduled tribes are specified in the notifications issued
under Arts. 341 and 342 of the Constitution and, therefore,
they must be deemed to be scheduled castes and scheduled
tribes for the purposes of the Constitution.

Article 46
of the Constitution runs thus :

"The State shall promote with special care the
educational and economic interests of the weaker
sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of
exploitation."

Properly analysed this article contains a mandate on the
State to take special care for the educational and economic
interests of the weaker sections of the people and as
illustrations of the persons who constitute the weaker
sections the provision expressly mentions the scheduled
castes and the scheduled tribes.

A combined reading of
Art. 46
and clauses (24) & (25)
of
Art. 366
clearly shows that the members of the scheduled
castes and the scheduled tribes must be presumed to be
backward classes of citizens, particularly when the
Constitution gives the example of the scheduled castes and
the scheduled tribes as being the weaker sections of the
society.

Similarly Art. 335 which expressly provides that the
claims of the members of the scheduled castes and the
scheduled tribes shall be taken into consideration runs thus
:

"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."
Thus in view of these provisions the members of the
scheduled castes and the scheduled tribes have been given a
special status in the Constitution and they constitute a
class by themselves. That being the position it follows that
they do not fall within the purview of
Art. 16(2)
of the
Constitution which prohibits discrimination between the
members of the same caste. If, therefore, the members of the
scheduled castes and the scheduled tribes are not castes,
then it is open to the State to make reasonable
classification in order to advance or lift these classes so
that they may be able to be properly represented in the
services under the State. This can undoubtedly be done under

Art. 16(1)
of the Constitution.

Before, however, examining the nature of classification
that can be made by the Government under
Art. 16(1)
of the
Constitution it may be necessary to state three principles
which are supported by abundant authority :

(1) That
Art. 16
is merely an incident of
Art. 14
and
both these articles form a part of the common system seeking
to achieve the same end. I am fortified in my view by
several decisions of this Court. In State of Jammu & Kashmir
v. Triloki Nath Khosa & Ors.(1) this Court observed : (p.

783)
"
Article 16
of the Constitution which ensures to
all citizens equality of opportunity in matters
relating to employment is but an instance or incident
of the guarantee of equality contained in
article 14.

The concept of equal opportunity undoubtedly permeates
the whole spectrum of an individual's employment from
appointment through promotion and termination to the
payment of gratuity and pension."

In
Mohammad Shujat Ali and others v. Union of India and
others
(2) this Court observed:

"
Article 14
ensures to every person equality
before law and equal protection of the laws and
Article
lays down that there shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the
State.
Article 16
is only an instance or incident of
the guarantee of equality enshrined in
Article 14;
it
gives effect to the doctrine of equality in the sphere
of public employment. The concept of equal opportunity
to be found in
Article 16
permeates the whole spectrum
of an individual's employment from appointment through
promotion and termination to the payment of gratuity
and pension and gives expression to the ideal of
equality of opportunity which is one of the great
socio-economic objectives set out in the Preamble of
the Constitution."

In
Govind Dattatray Kelkar and others v. Chief
Controller of Imports & Exports and others
,(3) this Court
observed :
"
Art. 16
of the Constitution is only an incident
of the application of the concept of equality enshrined
in
Art. 14
thereof. It gives effect to the doctrine of
equality in the matter of appointment and promotion. It
follows that there can be a reasonable classification
of the employees for the purpose of appointment or
promotion."

The same view was expressed by this Court in
S.G.
Jaisinghani v. Union of India and Others
.

In
The General Manager, Southern Railway v. Rangachari

this Court observed :

"In this connection it may be relevant to remember
that
Art. 16(1)
and
(2)
really give effect to the
equality before law guaranteed by
Art. 14
and to the
prohibition of discrimination guaranteed by
Art. 15
(1).
The three provisions form part of the same
constitutional code of guarantees and supplement each
other. If that be so, there would be no difficulty in
holding that the matters relating to employment must
include all matters in relation to employment both
prior, and subsequent, to the employment which are
incidental to the employment and form part of the terms
and conditions of such employment."

(2) It is also well-settled that
Art. 16
applies to all
classes of appointment including promotions and selection
posts. It has been observed by this Court in
C. A. Rajendran
v. Union of India and Ors.
(3) :

"The first question to be considered in this case
is whether there is a constitutional duty or obligation
imposed upon the Union Government to make reservations
for Scheduled Castes and Scheduled Tribes either at the
initial stage of recruitment and at the stage of
promotion in the Railway Board Secretariat Service
Scheme.

The relevant law on the subject is well-settled.
Under
Art. 16
of the Constitution there shall be
equality of opportunity for all citizens in matters
relating to employment or appointment to any office
under the State or to promotion from one office to a
higher office thereunder.
Articles 14
, 15
and
form
part of the same constitutional code of guarantees and
supplement each other. In other words,
Art. 16
of the
Constitution is only an incident of the application of
the concept of equality enshrined in
Art. 14
thereof.
It gives effect to the doctrine of equality in the
matter of appointment and promotion. It follows
therefore that there can be a reasonable classification
of the employees for the purpose of appointment and
promotion."
In
State of Jammu & Kashmir v. Triloki Nath Khosa and
others
(supra) it was observed by this Court :

"Since the constitutional code of equality and
equal opportunity is a charter for equals, equality of
opportunity in matters of promotion means an equal
promotional opportunity for persons who fall,
substantively, within the same class. A classification
of employees can therefore be made for first
identifying and then distinguishing members of one
class from those of another."

The same view has been expressed by this Court in
C.A.
Rajendran
's case; in
S. G. Jaisinghani
's case; Rangachari's
case and
Mohammad Shujat Ali
's case, quoted supra.

The concept of equality or equal opportunity as
contained in
Art. 16
does not mean that same laws must be
applicable to all persons under every circumstance. Indeed
if this artificial interpretation is put on the scope and
ambit of
Art. 16
it will lead to channelisation of
legislation or polarisation of rules. Differences and
disparities exist among men and things and they cannot be
treated alike by the application of the same laws but the
law has to come to terms with life and must be able to
recognise the genuine differences and disparities that exist
in human nature. Legislature has also to enact legislation
to meet specific ends by making a reasonable and rational
classification. In Morey v. Doud(1) it was so aptly observed
:

"To recognise marked differences that exist in
fact is living law; to disregard practical differences
and concentrate on some abstract identities is lifeless
logic."

Coming now to
Art. 16
it may be analysed into three
separate categories so far as the facts of the present case
are concerned :

Category I-Clause (1) of
Art. 16.

Category II-Clause (2) of
Art. 16.

Category III-Clause (4) of
Art. 16.

Clause (1) of
Art. 16
clearly provides for equality of
opportunity to all citizens in the services under the State.
It is important to note that the Constitution uses the words
"equality of opportunity for all citizens". This inherently
implies that the opportunity must be given not only to a
particular section of the society or a particular class of
citizens who may be advanced or otherwise more afflunt but
to all classes of citizens. This, therefore, can be achieved
by making a reasonable classification so that every class of
citizens is duly represented in the services which will
enable equality all citizens. The classification, however,
must be a reasonable one and must fulfil the following
conditions:

(i) it must have a rational basis;

(ii) it must have a close nexus with the object
sought to be achieved;
(iii)it should not select any person for hostile
discrimination at the cost of others.

Now let us see whether r. 13-A.A. can be justifiable under
clause (1) of
Art. 16.
Rule 13-A.A. of the Rules reads thus:

"Notwithstanding anything contained in these
rules, the Government may, by order, exempt for a
specified period, any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in
service, from passing the tests referred to in rule 13
or rule 13A of the said Rules."

What the rule does is merely to authorise the Government to
exempt for a specified period any member or members of the
scheduled castes and scheduled tribes from pasing the tests
referred to in r. 13 and r. 13A. It may be noticed that this
rule does not at all give a complete licence. A Lower
Division Clerk who is a member of the scheduled caste or
schedule tribe could not be promoted without passing any
test at all so as to destroy the concept of equality. It
merely gives a special concession or a temporary relaxation
to backward class of citizens in order to lift them, advance
them and enable them to compete with the stronger sections
of the society. Thus the basis of the rule is undoubtedly
both rational and reasonable.

Article 335
of the Constitution contains a mandate to
the State for considering the claims of the members of the
scheduled castes and the scheduled tribes consistently with
the maintenance of efficiency of administration. By giving
the special concessions to the promotees this mandate is
sought to be obeyed by the Government. Mr. T. S. Krishna
moorthy Iyer counsel for the respondent No. 1 submitted that
the mandate given in
Art. 335
is violated because by
granting exemption to the members of the scheduled castes
and tribes the standard of efficiency of the services would
be impaired. We are, however, unable to agree with the
argument. Both the respondent No 1 and the promotees were
members of the same service and had been working as Lower
Division Clerks for a pretty long time. The promotees who
were members of the scheduled castes and tribes are
admittedly senior to respondent No. 1 and have gained more
experience. Further the rule does not grant complete
exemption to the promotees from passing the test; it only
provides for grant of extension of time to enable them to
clear the test. In these circumstances it cannot be held
that the State's action in incorporating r. 13-A.A. in any
way violates the mandate contained in
Art. 335.
In these
circumstances, therefore, I am clearly satisfied that the
concession given in r. 13-A.A. amounts to a reasonable
classification which can be made under
Art. 16(1)
of the
Constitution and does not amount to the selection of the
respondent No. 1 for hostile discrimination so as to be
violative of
Art. 16(1)
of the Constitution of India.

Category II refers to clause (2) of
Art. 16
which may
be reproduced as follows:

"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."
In view of my findings and the various provisions of the
Constitution regarding the status of the members of the
scheduled castes and the scheduled tribes, it is obvious
that the members of the scheduled castes and the scheduled
tribes are not a 'caste' but a special class of backward
citizens whose backwardness cannot be doubted. In these
circumstances, therefore, if the promotees do not belong to
a caste as contemplated by
Art. 16(2)
then they do not fall
within the mischief of
Art. 16(2)
at all. Thus the case of
the promotees squarely falls within the four corners of
Art.
16(1)
and can be justified as based on reasonable
classification.

Before leaving categories I and II it might be
mentioned that the Court has to apply strict scrutiny to the
classification made by the Government and to find out that
it does not destroy or fructify the concept of equality. In
other words, the State cannot be permitted to invoke
favourtism or nepotism under the cloak of equality. Having
considered the matter in all its comprehensive aspects I am
satisfied that in this particular case the classification
made by the Government by virtue of r. 13-A.A. is fully
justified by
Art. 16
of the Constitution.

This brings us to the consideration of Category III
which is clause (4) of
Art. 16.
Clause (4) may be extracted
as under:

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."

Clause (4) of
Art. 16
of the Constitution cannot be read in
isolation but has to be read as part and parcel of
Art.
16(1)

& (2).
Suppose there are a number of backward classes
who form a sizeable section of the population of the country
but are not properly or adequately represented in the
services under the State the question that arises is what
can be done to enable them to join the services and have a
sense of equal participation. One course is to make a
reasonable classification under
Art. 16(1)
in the manner to
which I have already adverted in great detail. The other
method to achieve the end may be to make suitable
reservations for the backward classes in such a way so that
the inadequate representation of the backward classes in the
services is made adequate. This form of classification which
is referred to as reservation, is, in my opinion, clearly
covered by
Art. 16(4)
of the Constitution, which is
completely exhaustive on this point. That is to say clause
(4) of
Art. 16
is not an exception to
Art. 14
in the sense
that whatever classification can be made can be done only
through clause (4) of
Art. 16.
Clause (4) of
Art. 16
,
however, is an explanation containing an exhaustive and
exclusive provision regarding reservation which is one of
the forms of classification. Thus clause (4) of
Art. 16

deals exclusively with reservation and not other forms of
classification which can be made under
Art. 16(1)
itself.

Since clause (1) is a special provision regarding
reservation, it can safely be held that it overrides
Art.
16(1)
to that extent and no reservation can be made under
Art 16(1). It is true that there are some authorities of
this
Court that clause (4) is an exception to
Art. 16(1)
but with
due respect I am not in a position to subscribe to this view
for the reasons that I shall give hereafter.

In the first place if we read
Art. 16(4)
as an
exception to
Art. 16 (1)
then the inescapable conclusion
would be that
Art. 16(1)
does not permit any classification
at all because an express provision has been made for this
in clause (4). This is, however, contrary to the basic
concept of equality contained in
Art. 14
which implicitly
permits classification in any form provided certain
conditions are fulfilled. Furthermore, if no classification
can be made under
Art. 16(1)
except reservation contained in
clause (4) then the mandate contained in
Art. 335
would be
defeated.

I have already observed that the fundamental guarantees
provided by the Constitution have to be read in harmony with
the directive principles contained in Part IV. Again if
Art.
16(4)
is deemed to be the only mode of classification, then
it would follow that the Constitution permits only one form
of classification, namely, reservation and no other form so
far as the services are concerned. This will render the
concept of equality nugatory and defeat the very purpose
which is sought to be achieved by
Art. 16(1).
Equality of
opportunity to all citizens does not mean equality to some
and inequality to others. As I have already pointed out that
in our country there are a large number of backward classes
of citizens who have to be granted certain concessions and
facilities in order to be able to compete with others. Does
it mean that such citizens should be denied these facilities
which may not fall under the term 'reservation' ? Let us
take a few instances. A notification provides that all
candidates for a particular post must apply before a
specified date. A person belonging to a backward class of
citizens living in a very remote area gets information late.
The Government, however, in case of such a backward class
candidate makes a relaxation and extends the date. Can it be
said that this has resulted in violation of
Art. 16(1)

because it does not fall within the reservation contemplated
by clause (4) of
Art. 16 ?
It is obvious that the intention
of the Government is merely to help the backward class of
citizens to apply for the job along with others by condoning
the delay for special reasons. Another instance may be where
the State makes a relaxation regarding the age in case of
backward classes of citizens in view of the far-fetched and
distant area to which that class of citizens belongs. Lastly
let us take the instance of the present case. The clerks
belonging to the scheduled castes and tribes were given a
further extension of time to pass the test because of their
backwardness. They were not exempted from passing the test.
This could only be done under
Art. 16(1)
and not under
clause (4) of
Art. 16.

For these reasons, therefore, I respectfully agree with
the observations of Subba Rao, J., as he then was in
T.
Devadasan v. The Union of India and Anr
(1) where he
observed:

"That is why the makers of the Constitution
introduced cl. (4) in
Art. 16.
The expression "nothing
in this article" is a legislative device to express its
intention in a most
emphatic way that the power conferred thereunder is not
limited in any way by the main provision but falls
outside it. It has not really carved out an exception,
but has preserved a power untrammelled by the other
provisions of the Article."

My view that
Art. 16(4)
is not a proviso to
Art. 16(1)
but
that this clause covers the whole field of
Art. 16
is amply
supported by the decision of this Court in
The General
Manager, Southern Railway v. Rangachari
(supra) where it was
observed: (p. 599)
"It is common ground that
Art. 16(4)
does not cover the
entire field covered by
Art. 16(1)
and
(2).
Some of the
matters relating to employment in respect of which
equality of opportunity has been guaranteed by
Art.
16(1)
and
(2)
do not fall within the mischief of non-
obstant clause in
Art. 16 (4)."

Now analysing clause (4) of
Art. 16
it appears that it
contains express provisions empowering the State to make
reservations in suitable cases provided the following
conditions are satisfied:

(i) that the class for which reservation is made
is must be socially and educationally
backward.

I might mention that so far as the members of the
scheduled castes and tribes are concerned, in view of the
constitutional provisions
referred to above
, this fact will
have to be presumed and it was also so held in Rangachari's
case supra.

(ii) That the class for which reservation is made
is not adequately represented in the services
under the State.

So far as this is concerned it was suggested by Mr.
Krishnamoorthy Iyer appearing for respondent No. 1 that
there is no material on the record to show that the
promotees were not adequately represented in the services
under the State and the Government had not issued any
notification declaring this fact. It, however, appears that
this point was not canvassed before the High Court at all.
Nevertheless the appellants have produced before us
sufficient materials to show that the members of the
scheduled castes and the scheduled tribes were not
adequately and properly represented in the services under
the State and particularly in the Registration Department
with which we are dealing in this appeal. It is clear from
Annexure 'A' of the Appeal Paper Book that there were as
many as 2254 non-gazetted employees in the Registration
Department out of which members of the scheduled castes and
tribes are only 198. It has also been stated in the counter-
affidavit before the High Court that the members of the
scheduled castes and tribes form about 8 per cent. of the
population of the State of Kerala. This, therefore, clearly
shows that the promotees were inadequately represented in
the services under the State and, therefore, they fulfil the
second condition required by clause (4) of
Art. 16.
(iii)The reservation should not be too excessive
so as to destroy the very concept of
equality.

This means that the reservation should be within the
permissible limits and should not be a cloak to fill all the
posts belonging to a particular class of citizens and thus
violate
Art. 16(1)
of the Constitution indirectly. At the
same time clause (4) of
Art. 16
does not fix any limit on
the power of the Government to make reservation. Since
clause (4) is a part of
Art. 16
of the Constitution it is
manifest that the State cannot be allowed to indulge in
excessive reservation so as to defeat the policy contained
in
Art. 16(1).
As to what would be a suitable reservation
within permissible limits will depend upon the facts and
circumstances of each case and no hard and fast rule can be
laid down, nor can this matter be reduced to a mathematical
formula so as to be adhered to in all cases. Decided cases
of this Court have no doubt laid down that the percentage of
reservation should not exceed 50%. As I read the
authorities, this is, however, a rule of caution and does
not exhaust all categories. Suppose for instance a State has
a large number of backward classes of citizens which
constitute 80% of the population and the Government, in
order to give them proper representation, reserves 80% of
the jobs for them, can it be said that the percentage of
reservation is bad and violates the permissible limits of
clause (4) of
Art. 16 ?
The answer must necessarily be in
the negative. The dominant object of this provision is to
take steps to make inadequate representation adequate.

This brings us to the validity of the carry-forward
rule which also has been touched by the High Court. It has
been held by the High Court that as a result of the special
rule adopted by the State 34 out of 51 vacancies have been
filled up by the members of the scheduled castes and tribes,
thus far exceeding the 50 per cent limit which has been
laid
down by
this Court.
It is true that in
T. Devadasan
's case
(supra) the majority judgment of this Court did strike down
a rule which permitted carry-forward of the vacancies. With
respect, however, I am not able to agree with this view
because such a rule some times defeats the ends of
Art. 16

itself. By the carry-forward rule what is meant is that if
suppose there are 50 vacancies in a year, 25 of such
vacancies are set apart for backawrd classes of citizens and
if out of these 25 only 10 such candidates are available,
then the remaining 15 vacancies instead of being kept vacant
which may result in inefficiency and stagnation are filled
up from other classes but the deficiency is sought to be
made up in the next year or in the year next to that. I can
see no objection to this course being adopted which is fully
in consonance with the spirit of clause (4) of
Art. 16.
The
main idea is to give adequate representation to the backward
classes of citizens if they are not adequately represented
in the services. What difference does it make if instead of
keeping the reserved vacancies vacant from year to year as a
result of which work of the Government would suffer they are
allowed to be filled up by other candidates and the number
of vacancies so filled up are kept reserved for the next
year to accommo-
date candidates from backward classes. This does not and
cannot destroy the concept of equality, nor result in
hostile discrimination to one or the other. There can be no
doubt that reservation to the extent of 50% is permissible
and if the candidates to that extent are not available, and
those vacancies could not be filled up by other candidates
then such candidates would not get any appointment at all.
It is only by chance that some of the candidates of the
backward classes not being available that the other
candidates are appointed. In fact if the carry-forward rule
is not allowed to be adopted it may result in inequality to
the backward classes of citizens who will not be able to be
absorbed in public employment in accordance with the full
quota reserved for them by the Government. Thus if the carry
forward rule is not upheld, then backwardness will be
perpetrated and it would result ultimately in a vacuum. For
these reasons, therefore, I am of the opinion that the High
Court was in error in holding that the State's action in
filling 34 vacancies out of 51 by members of the scheduled
castes and tribes was illegal and could not be justified.

(iv) Reservation should not be made at the cost of
efficiency.

This is a very important condition for the application
of clause (4) of
Art. 16.
No reservation can be made at the
cost of efficiency which is the prime consideration. But one
should not take an artificial view of efficiency. A
concession or relaxation in favour of a backward class of
citizens particularly when they are senior in experience
would not amount to any impairment of efficiency. It is,
however, not necessary for me to dilate on this aspect
because in my view the relaxation contained in r. 13-A.A. of
the rules does not fall within clause (4) of
Art. 16
but
falls squarely within clause (1) of
Art. 16
as shown above,
and, therefore, I am of the opinion that the High Court was
in error in holding that r. 13-A.A. was ultra vires and was
violative of
Art. 16
as it thought that this rule came
within the mischief of clause (4) of
Art. 16.

Before closing this judgment I would like to allay a
serious apprehension that has been expressed by learned
counsel for respondent No. 1 that if the Court is to give a
wide and liberal interpretation to
Art. 14
and
Art. 16
, the
guarantees of fundamental right to equality might be
completely eroded in due course of time. I have given my
anxious consideration to this argument and I am clearly of
the opinion that the apprehension expressed by the learned
counsel does not appear to be well founded. This Court has
upheld in several cases classifications graver and more
damaging than the one made in the present case without
affecting the concept of equality. For instance in
Triloki
Nath Khosa
's case (supra) this Court upheld a classification
made by the State between the members of the same service,
recruited from the same source and holding the same posts on
the ground that one set of members having possessed a higher
qualification, namely, a degree in engineering, could
constitute a separate class and could be differently treated
from the other members of the same service who were merely
diploma holders. What had happened
in that case
was that the
service of Engineers was one integrated service consisting
of
Assistant Engineers who were merely diploma holders and
those who were degree holders. The Government passed an
order by which the degree holders could be promoted to
higher grade of service, namely, to the posts of Executive
Engineer or Superintending Engineer, which was however
blocked to those Assistant Engineers who were merely diploma
holders. This rule was struck down by the High Court of
Jammu & Kashmir but the Supreme Court on appeal held that
qualification was a reasonable ground of classification and
by virtue of the qualification the Assistant Engineers who
were degree holders could be shown a preferential treatment.
The position does not appear to be worse in this case and on
a parity of reasoning the Government has merely extended the
time prescribed for departmental tests for the promotees by
treating them as a special class for two reasons-(1) that
they were senior to and more experienced than the respondent
No. 1; and (2), that they belonged to backward classes being
members of the scheduled castes and tribes and for
historical reasons they did not have sufficient opportunity
to develop their genius and intellectual capacity as others
could do. I, therefore, see no reason to hold that this
classification was in any way unreasonable or arbitrary. The
conditions under which classification has to be made, as
pointed out by me, are so strict and stringent that the
apprehension of erosion of the concept of equality appears
to be illusory. We must remember that the Courts are meant
to interpret and not make the law. As Justice Frankfurter
observed.

"A Judge must not re-write a statute, neither to
enlarge nor to contract it."

Finally there can be no doubt that if the State action
in a particular case amounts to an arbitrary classification
or a hostile discrimination which is violative of
Art. 16
of
the Constitution the Court is there to act as sentinel on
the qui vive in order to strike down such an action.

For the reasons given above, I have come to the
conclusion that r. 13-A.A. of the rules is a valid piece of
statutory provision which is fully justified under
Art.
16(1)
of the Constitution of India and does not fall within
the purview of
Art. 16(4).

I would, therefore, allow the appeal, set aside the
judgment of the High Court and direct the status quo ante to
be restored. In the circumstances of this case, I leave the
parties to bear their respective costs.

ORDER
Order by Majority-

The validity of Rule 13AA of the Kerala State and
Subordinate Services Rules, 1958 and two orders, Exhibits P-
2 and P-6 is upheld. The judgment of the High Court is set
aside and the appeal is allowed. Parties will pay and bear
their own costs.

P.B.R.