indira sahni [Sawhney] and other judjment on reservation and interpretation

all the judjment which are given here some relevant point of judjement will be given here because whole judjement is too lenthy any one can verify because paragraph of judjement is also written

special note relevant point of judjement is given paragraphe numer of judjement is also written any one can check this paragraphe since judjement are too lenthy so only relevant paragraphs only are posted

Supreme Court of India

Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992

Equivalent citations: AIR 1993 SC 477, 1992 Supp 2 SCR 454

Author: B J Reddy

Bench: M Kania, M Venkatachaliah, S R Pandian, . T Ahmadi, K Singh, P Sawant, R Sahai, B J Reddy

indira sahney judjment is most important it toched every aspect of reservation and was deliverd by 9 judjes bench so any dispute or difference of opinion of any other judjment if arises in any other judjement then this only will be effictive

relevent point of order is given and is disscussed

ORDER

1. Judgment of The Chief Justice, M.N. Venkatachallah, A.M. Ahmadi and B.P. Jeevan Reddy, JJ. Delivered by B.P. Jeevan Reddy, J.

B.P. Jeevan Reddy, J. reservation was given due to oppresion of shudra centuries after centuries by higher caste in view of supreme court judjes

actualy this judjment was based on mandal commision report which was prepared by b p mandal a casteist politician and former chief minister of bihar

main features of judgment

2 The Constituent Assembly, though elected on the basis of a limited franchise, was yet representative of all sections of society. Above all, it was composed of men of vision, conscious of the historic but difficult task of carving an egalitarian society from out of a bewildering mass of religions, communities, castes, races, languages, beliefs and practices. They knew their country well. They understood their society perfectly. They were aware of the historic injustices and inequities afflicting the society. They realised the imperative of redressing them by constitutional means, as early as possible - for the alternative was frightening. Ignorance, illiteracy and above all, mass poverty, they took note of. They were conscious of the fact that the Hindu religion - the religion of the overwhelming majority - as it was being practiced, was not known for its egalitarian ethos. It divided its adherents into four watertight compartments. Those outside this fourtier system (chaturvarnya) were the outcastes (Panchamas), the lowliest. They did not even believed all the caste system - ugly as its face was. The fourth, shudras, were no better, though certainly better than the Panchamas. The lowliness attached to them (Shudras and Panchamas) by virtue of their birth in these castes, unconnected with their deeds. There was to be no deliverance for them from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them. In the rural life, they had no alternative but to follow these occupations, generation after generation, century after century. It was their 'karma', they were told, the penalty for the sins they allegedly committed in their previous birth. Pity is, they believed all this. They were conditioned to believe it. This mental blindfold had to be removed first. This was a phenomenon peculiar to this country. Poverty there has been - and there is - in every country. But none had the misfortune of having this social division - or as some call it, degradation - super-imposed on poverty. Poverty, low social status in Hindu caste system and the lowly occupation constituted - and do still constitute - a vicious circle. The founding fathers were aware of all this - and more.

entire caste and every member of the caste must be backward to call it as backward class so creamy layer was applied by court

207. Further, this judgment reaffirms that view in Minor P. Rajendran's case to the effect that if the members of an entire caste or community at a given time are socially, economically and educationally backward that caste on that account be treated as a backward class. This is not because they are members of that caste or community but because they form a class

about entire population of muslim was kept in obc

225 As per the statistics given in the Report of the Second Backward Classes Commission, in Tamil Nadu out of 27,05,960 people belonging to Muslim minorities 25,60,195 are included in the backward list which works out to 94.61% of the total Muslim population of the State. Similarly, among Christians, out of 31, 91, 988 of the total population, 25, 48, 148 are included in the backward list which works out to 79.83%.

226. The Nav. Budhists, and Neo Budhists the majority of whom are converts from Scheduled Castes enjoy the reservation on the ground that their low status in that community have not become advanced equal to the status of others and their social backwardness is not changed in spite of change of their religion.

blame on upper caste by court

240. Though the Government both on the Central and State level have taken and are taking positive steps through law and other reformative measures to eradicate this social evil, it is heart- rending to note that in many circumstances, the caste system is being perpetuated instead of being banished for the reasons best known to those perpetratOrs.

241. It is common knowledge that in Hindu society, if a person merely mentions the name of a traditional occupation, another by his empirical knowledge can immediately identify the caste by the said traditional occupation. To illustrate, the traditional occupation of washing clothes is identified with washerman (Dhobi), caste, traditional occupation of haircutting is identified with Barber (Nai) - caste, traditional occupation of pottery is identified with Potter (Kumhar's caste), and so on. Of course in modern times, persons belonging to any particular caste might have shifted over to other occupation leaving their traditional occupation but generally speaking, the occupation is identified with the caste and vice-versa. Many backward castes have taken 'agricultrure' as their profession. In such an unquestionable situation, in my opinion, there can be no justification in saying that caste in Hindu society cannot serve as a primary criterion even at the starting point in ascertaining its social, economic and educational backwardness. To say that in the effort of ascertaining social backwardness, caste should be considered only at the end point, is a misnomer and fallacious. Because after identifying and classifying a group of persons belonging to a particular caste by testing with the application of the relevant criteria other than the caste criterian, the identification of the caste of that class of persons is no more required as in the case of identification of casteless society as a backward class. In fact, this Court in a number of decisions has held that a caste may become a 'backward class' provided that caste satisfies the test of backwardness.

again blaming of hindu religion

236. Does not the very mention of the caste named 'purada vannans' indicate that the people belonging to that community were so backward, both socially, economically as well as educationally beyond comprehension? Would the children of those people who were not allowed to come out during day time have gone to any school? Does not the very fact that those people were treated with contempt and disgrace as if they were vermin in the human form freeze our blood? Alas! What a terrible and traumatic experience it was for them living in their hide-outs having occasional pot-luck under pangs of misery, all through mourning over their perilous predicament on account of this social ostracism. When people placed at the base level in the hierarchical caste system are living like mutes, licking their wounds - caused by the deadening weight of social customs and mourning their fate for having been born in lower castes - can it be said by any stretch of imagination that caste can never be the primary criterion in identifying the social, economic and educational backwardness? Are not the social and economic activities of Shudras and Panchamas (untouchables) severely influenced by their low caste status?

blaming hindu religion for caste system on muslim christians by court on the basis of mandal report

229. Though in India, caste evil originated from Hindu religion that evil has taken its root so deep in the social structure of all the Indian communities and spread its tentacles far and wide thereby leaving no community from being influenced by the caste factor. In other words, it cannot be authoritatively said the some of the communities belonging to any particular religion are absolutely free from casteism or at least from its shadow. The only difference being that the rigour of caste varies from religion to religion and from region to region. Of course, in some of the communities, the influence of the caste factor may be minimal. So far as the Hindu society is concerned, it is most distressing to note that it receives sanction from the Hindu religion itself and perpetuated all through.

230. Reference may be made to paragraphs 12.11 to 12.16 of Chapter XII of the Report.

illustrating wrong example of a horse race infact obc sc who are studying in better school how can they come in this criteria given by court based on mandal report given below

286. The question whether the candidates, belonging to the SEBCs should be given a preferential treatment in matters of public employment to such time as it is necessary, receives a fitting reply in Devadasan wherein Subba Rao, J. (as the learned Chief Justice then was) has observed, by citing an illustration as to how the manifest imbalance and inequality will occur otherwise, thus:

To make my point clear, take the illustration of a horse race. Two horses are set down to run a race - one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced Clause (4) in Article 16.

287. It will be befitting, in my opinion, to extract a passage from the book, Bakke, Defunis and Minority Admissions (The Quest for Equal Opportunity) by Allan P. Sindler wherein at page 9, the unequal competition is explained by an analogy which is as follows:

A good way to appreciate the "something more" quandary is to consider the metaphor of the shackled runner, an analogy frequently advanced by spokesmen for minorities:

'Imagine two runners at the starting line, readying for the 100-yeard dash. One has his legs shackled, the other not. The gun goes off and the race begins. Not surprisingly, the unfettered runner immediately takes the lead and then rapidly increases the distance between himself and his shackled competition. Before the finish line is crossed, over the judging official blows his whistle, calls off the contest on the grounds that the unequal conditions between the runners made it an unfair competition, and orders removal of the shackles.' Surely few would deny that pitting a shackled runner against an unshackled one is inequitable and does not provide equality of opportunity. Hence, cancelling the race and freeing the disadvantaged runner of his shackles seem altogether apporpriate. Once beyond this point, however, agreement fades rapidly. The key question becomes: what should be done so that the two runners can resume the contest on a basis of fair competition? Is it enough after removing the shackles, to place both runners back at the starting point? Or is "something more" needed, and if so, what? Should the rules of the running be altered, and if so, how? Should the previously shackled runner be given a compensatory edge, or should the other runner be handicapped in some way? How much edge or handicap?

318. It was for the first time that this Court in Balaji has indicated broadly that the reservation should be less than 50% and the question how much less than 50% would depend on the relevant prevailing circumstances in each case. Though in Balaji, the issue in dispute related only to the reservation prescribed for admissions in the medical college from the educationally and socially backward classes, scheduled caste and scheduled tribes as being violative of Article 15(4), this Court after expressing its view that it should be less than 50% observed further that "the provisions of Article 15(4) are similar to those of Article 16(4).... Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16(4)...reservation made under Article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution." This decision has gone further holding that the reservation of 68% seats made in that case was offending Article 15(4) of the Constitution. To say in other words, Balaji has fixed that the maximum limit of reservation all put together should not exceed 50% and if it exceeds, it is nothing but a fraud on the Constitution. Even at the threshold, I may emphatically state that I am unable to agree with the proposition fixing the reservation for SEBCs at 50% as the maximum limit.

rickshwala can be backward

91. In Chiwardtralekha, this Court held that such an identification is permissible. We see no reason to differ with the said view inasmuch as this is but another method to find socially backward classes. Indeed, this test in the Indian context is broadly the same as the one adopted by the Mandal Commission. While answering Question 3(b), we said that identification of backward classes can be done with reference to castes alongwith other occupational groups, communities and classes. We did not say that that is the only permissible method. Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example, agricultural labourers, Rickshawpullers/drivers, street-hawkers etc. may well qualify for being designated as Backward

reservation adequate not population basis striking down 44percent obc reservation in andhra and extra ordinary condition

94A. We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits - and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%. It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (See his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates

50 percent for article 16[ 4] only

95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure. It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be - indeed cannot be - applicable to exemptions, concessions or relaxations, if any provided to 'Backward Class of Citizens' under Article 16(4)

96. The next aspect of this question is whether an year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji does not deal with this aspect but Devadasan (majority opinion) does. Mudholkar, J. speaking for the majority says: We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. On the other hand is the approach adopted by Ray, C.J. in Thomas. While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, C.J. would not be consistent with Article 16. True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go, i.e., in a year or two. The position can be better explained by taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e., 270 by other backward classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of O.B.Cs. in the unit/service/category is only 50, a short fall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by Clause (1) is to each individual citizen of the country while Clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992 Indian Kanoon - http://indiankanoon.org/doc/1363234/ 79 eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% an year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.

certain condition excluded from reservation

112. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations. It may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialties in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable. As a matter of fact, the impugned Memorandum dated 13th August, 1990 applies the rule of reservation to "civil posts and services under the Government of India" only, which means that defence forces are excluded from the operation of the rule of reservation though it may yet apply to civil posts in defence services. Be that as it may, we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are: (1) Defence Services including all technical posts therein but excluding civil posts. (2) All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defence equipment; (3) Teaching posts of Professors - and above, if any. (4) Posts in super-specialities in Medicine, engineering and other scientific and technical subjects. (5) Posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. It is for the Government of India to consider and specify the service and posts to which the Rule of reservation shall not apply but on that account the implementation of the impugned Office Memorandum dated 13th August, 1990 cannot be stayed or withheld. We may point out that the services/posts enumerated above, on account of their nature and duties attached, are such as call for highest level of intelligence, shill and excellence, some of them are second level and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may not be consistent with "efficiency of administration" contemplated by Article 335. We may add that we see no particular relevance of Article 38(2) in this context. Article 16(4) is also a measure to ensure equality of status besides equality of opportunity

periodic review of obc list

117. We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefor. Even it any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquirey. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under Clause (4) of Article 16 itself - or under Article 16(4) read with Article 340 - as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chandrachud, CJ. in Vasant Kumar, there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be.

criteria of mandal commission that only shudra can be obc

118A. The first and foremost criticism levecriteria of mandal commission that only shudra be given obc statuslled against the approach and the procedure adopted by Mandal Commission in that the Mandal Commission has adopted caste and caste alone as the basis of its approach throughout. On this count alone, it is argued, the entire report of the Commission is vitiated. It is pointed out that in its very first letter dated 25th April, 1979 (Appendix VII at page 91-Vol. 2) addressed to all the Ministries and Departments of the Central Government, the Commission has prescribed the following test for determining the socially and educationally backward classes: (a) In respect of employees belonging to the Hindu communities (i) an employee will be deemed to be socially backward if he does not belong to any of the three twice-born (Dvij) 'Varnas' i.e., he is neither a Brahmin, nor a Kshatriya/nor a Vaishya; and (ii) he will be deemed to be educationally backward if neither his father nor his grant father has studied beyond the primary level. (b) Regarding the non-Hindu Communities (i) an employee will be deemed to be socially backward if either (1) he is a convert from those Hindu communities which have been defined as socially backward as per para 4(a)(i) above, or (2) in case he is not such a convert, his parental income is below the prevalent poverty line, i.e., Rs. 71 per head per month. (ii) he will be deemed to be educationally backward if neither his father nor his grand father had studied beyond the primary level. Serious objection is taken to the above criteria. Treating all the Hindus not belonging to three upper castes as socially and educationally backward classes, it is submitted, is faulty to the core. In the case of non-Hindus, the prescription of income limit is said to be arbitrary. The criteria for identifying backward classes must be uniform for the entire population; it cannot vary from religion to religion. This shows, says the counsel, the impropriety and impermissibility of adopting the caste as the basis of identification, since castes exist only in the Hindu religion and not in others. On the basis of the statements made in Chapters IV and V, it is submitted that the Commission was obsessed by caste and was blind to all other determinants. It is also pointed out that the Survey done by the Commission is cursory, totally inadequate and faulty. According to the petitioners, the survey must be an exhaustive one like the one done by Venkataswamy Commission in Karnataka, which also forms the basis of Justice Chinnappa Reddy Commission Report. Carrying out the Survey to cover merely two villages and one urban block in each District is not likely to disclose a true picture since Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992 Indian Kanoon - http://indiankanoon.org/doc/1363234/ 94 it does not represent survey of even one percent of the population. Objection is also taken to use of personal knowledge and also to reliance upon lists of backward classes prepared by State Governments. It is repeatedly urged that the survey done by the Commission cannot be called a scientific one, which has led to discovery of as many as 3,743 castes and their identification as socially and educationally backward classes. This is a steep increase over Kaka Kalelkar Commission, according to which, the number of S.E.B.Cs. was only 2,733. It is pointed out further that certain castes which obtained less than 11 points on being tested against the criteria evolved by the Commission are included among the backward classes. Conversely, certain castes which obtained 11 or more points are yet excluded from the list of backward classes. It is urged that the caste based approach adopted by the Commission has practically divided the nation into a forward section and a backward section. If Scheduled Castes and Scheduled Tribes are also added to the Other Backward Classes, more than 81 per cent of the population gets designated as backward. But for the decision in Balaji, it is submitted, the Commission would certainly have recommended reservation of 52 per cent of the appointments/posts in favour of the backward classes. The Commission was actuated by malice towards upper castes and has submitted an unbalanced, unjust and unconstitutional report, it is argued. Respondent's counsel, on the other hand, have refuted each and every contention of the petitioners. According to them, the criteria evolved, the methodology adopted, identification made and lists prepared are all perfectly valid and legal. The Union of India, while justifying the Report, has taken the stand that even if there are any errors or inadequacies in the work and report of the Commission, it is no ground for throwing out the report altogether, more particularly when the Government of India has taken care by 'marrying' the Mandal lists with the State lists. If any errors are brought to the notice of the Government, Sri Parasaran says, the Government will certainly look into them and rectify them, if satisfied about the error. 119. Before we decide to answer the question, it is necessary to point out that each and every defect, if any, in the working and Report of the Mandal Commission does not automatically vitiate the impugned Office Memorandums. It has to be shown further that that particular defect has crept into the Office Memorandum as well. In addition to the above, the following factors must also be kept in mind: (a) The Mandal Commission Report has not been accepted by the Government of India in its fullness, nor has the Government accepted the list of Other Backward Classes Prepared by it in its entirety. What is now in issue is not the validity of the Report but the validity of the impugned Office Memorandums issued on the basis of the Report. The First Memorandum expressly directs that only those classes will be treated as backward classes for the purposes of Article 16(4) as are common to both the Mandal List and the respective State List. (It may be remembered that the Mandal Commission has prepared the lists of Other Backward Classes State-wise). Almost every caste, community and occupational group found in the State lists is also found in the concerned State list prepared by Mandal Commission; Mandal lists contain many more castes/occupational groups than the respective State lists. (It should indeed be rare that a particular caste/group/class is included in the State list and is not included in the Mandal list relating to that State. In such a case, of course, such caste/group/class would not be treated as an O.B.C. under the Office Memorandum dated 13th Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992 Indian Kanoon - http://indiankanoon.org/doc/1363234/ 95 August, 1990). In such a situtation, what the Office Memorandum dated 13th August, 1990 does in effect is to enforce the respective state lists. In other words, the Government of India has, for all practical purposes, adopted the respective State lists, as they obtained on 13th August, 1990. In this sense, the lists prepared by Mandal have no real significance at present. The State lists were prepared both for the purposes of Article 16(4) as well as Article 15(4). The following particulars furnished by the Union of India do establish that these State lists have been prepared after due enquiry and investigation and have stood the test of time and judicial scrutiny:

119 part 1

119 part 1. Andhra Pradesh Reports of the Commission headed by Shri K. M. Anantharaman and Shri Muralidhara Rao (June, 1970 and August, 1982 respectively). State's G.O. based on the report of the Anantharam Commission was upheld by the Supreme Court in Balaram case (AIR 1972 SC 1375). The modified list of OBCs based on the report of Muralidhara Rao Commission was upheld by the A.P. High Court but the increased quantum of reservation from 25% to 44% was struck down (Judgment of 5-9-1986).

50 percent rule in one year

(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. (Para 92) (6)(a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.121 part 5

121 (c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 96)

121 d

d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. (Paras 97 to 99) (7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. (Ahmadi, J. expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. (Paras 100 to 107)

(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. (Paras 108 to 112) (9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between 'poorer sections' and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in para 114 of this Judgment (Para 114). (11) The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservation' made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. (Para 115) (12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992 Indian Kanoon - http://indiankanoon.org/doc/1363234/ 101 (Para 113) (13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor. (Para 117) (14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. It is equally unnecessary to send the matters back to the Constitution Bench of Five Judges. (Paras 118 to 119) 122. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 26. Our answers question-wise are:121 8

121

(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be provided under Clause (1) of Article 16. (2) The expression 'backward class' in Article 16(4) takes in 'Other Backward Classes', S.Cs., S.Ts. and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are inter-twined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to Article 46 do include S.E.B.Cs. referred to in Article 340 and covered by Article 16(4).

121

(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. (Para 85)

(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. (Para 89) (4)(a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. (Para 90)

121

(4) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.

summary of judjement

see below

PART - VII

121. We may summarise our answers to the various questions dealt with and answered hereinabove:

(1)(a) It is not necessary that the 'provision' under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (Para 55)

(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. (Para 56) (2)(a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1). (Para 57)

(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. (Para 58)

(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under Clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens' - as explained in this Judgment. (Para 60) (3)(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectives for the purposes of Article 16(4). (Paras 61 to 82)

(b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. (Paras 83 and 84)

(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (Paras 87 and 88)

(d) 'Creamy layer' can be, and must be excluded. (Para 86)

(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised. (Para 91).

(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 96)

(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. (Paras 97 to 99) (7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. (Ahmadi, J. expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. (Paras 100 to 107).

(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. (Paras 108 to 112) (9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between 'poorer sections' and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in para 114 of this Judgment (Para 114). (11) The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservation' made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. (Para 115) (12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). (Para 113) (13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor. (Para 117) (14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. It is equally unnecessary to send the matters back to the Constitution Bench of Five Judges. (Paras 118 to 119) 122. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 26. Our answers question-wise are:

(2) The expression 'backward class' in Article 16(4) takes in 'Other Backward Classes', S.Cs., S.Ts. and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are inter-twined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to Article 46 do include S.E.B.Cs. referred to in Article 340 and covered by Article 16(4).

(3) Even under Article 16(1), reservations cannot bo made on the basis of economic criteria alone.

For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.

To the extent, Devadasan is inconsistent herewith, it is over-ruled.

(5) There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable - nay, necessary - to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry.

For excluding 'creamy layer', an economic criterion can be adopted as an indicium or measure of social advancement.

(6) A 'provision' under Article 16(4) can be made by an executive order. It is not necessary that it should be made by Parliament/Legislature.

(7) No special standard of judicial scrutiny can be predicated in matters arising under Article 16(4). It is not possible or necessary to say more than this under this question.

(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so.

(As pointed out at the end of the paragraph 101 of this judgment, Ahmadi, J. having upheld the preliminary objection raised by Sri Parasaran and others has not associated himself with the discussion on the question whether reservation in promotion is permissible. Therefore, the views expressed in this judgment on the said point are not the views of Ahmadi. J.) THE FOLLOWING DIRECTIONS ARE GIVEN TO THE GOVERNMENT OF INDIA. THE STATE GOVTS. AND THE ADMINISTRATION OF UNION TERRITORIES.

123. (A). The Government of India, each of the State Governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the Government.

other observation of indira sahney regarding sc st

in a constitunal bench of supreme court they obserced some part of indira sahney that for determining sc st and placing any caste in sc st no any quantifable data is reqired

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011 JARNAIL SINGH & OTHERS … PETITIONERS VERSUS LACHHMI NARAIN GUPTA & OTHERS …RESPONDENTS

7. We may begin with the nine-Judge Bench in Indra Sawhney (1) (supra). In this case, the lead judgment is of B.P. Jeevan Reddy, J., speaking on behalf of himself and three other learned Judges, with Pandian and Sawant, JJ., broadly concurring in the result by their separate judgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented. The bone of contention in this landmark judgment was the Mandal Commission Report of 1980, In arriving at this decision, the judgment of Jeevan Reddy, J., referred to and contrasted Article 16(4) with Article 15(4), and stated that when Article 16(4) refers to a backward class of citizens, it refers primarily to social backwardness (See paragraph 774). Scheduled Castes and Scheduled Tribes, not being the subject matter before the Court, were kept aside as follows:

―781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes.‖

In dealing with the creamy layer concept insofar as it is applicable to backward classes, the last sentence of paragraph 792 also states:

―792. …… (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).‖

In the summary of the discussion contained in paragraphs 796-797, it is stated, ―the test or requirement of social and educational backwardnesscannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression ―backward class of citizens‖.‖ Jeevan Reddy, J. then went on to state that in certain posts, of specialities and super-specialities, provisions for reservation would not be advisable (See paragraph 838). Ultimately, the judgment decided that reservation would apply at the stage of initial entry only and would not apply at the stage of promotion.

21. Thus, we conclude that the judgment in Nagaraj (supra) does not need to be referred to a seven–Judge Bench. However, the conclusion in Nagaraj (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) (supra) is held to be invalid to this extent

vasant kumar case review of obc list which is endorsed in para 117 of this judjement

K.C. Vasanth Kumar & Another vs State Of Karnataka on 8 May, 1985

Equivalent citations: 1985 AIR 1495, 1985 SCR Supl. (1) 352

Author: Y Chandrachud

Bench: Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa (J), Sen, A.P. (J), Venkataramiah, E.S. (J)

After carefully going through all the seven opinions in the above case, it is difficult to held that the settled view of this Court that the reservation under Article 15 (4) or Article 16 (4) could not be more than 50 per cent has been unsettled by a majority of the Bench which decided this case. I do not propose to pursue this point further in this case because if reservation is made only in favour of those backward castes or classes which are comparable to the Scheduled Castes and Scheduled Tribes, it may not exceed 5() per cent (including 18 per cent reserved for the Scheduled Castes and Scheduled Tribes and 15 per cent reserved for 'special group') in view of the total population of such backward classes in the State of Karnataka. The Havanur Commission has taken the number of students passing at S S.L.C. examination in the year 1972 as the basis for determining the backwardness. The average passes per thousand of the total population of the State of Karnataka was 1.69 in 1972. The average in the case of the Scheduled Castes was 0 56 and in the case of Scheduled Tribes was 0.51. Even if we take all the castes, tribes and communities whose average is below 50 per cent of the State average i.e. below .85 per cent for classifying them as backward, large chunks of population which are now treated as backward would have to go out of the list of backward classes. Consequently the necessity for reservation which would take the total reservation under Article 15 (4) and Article 16 (4) beyond 50 per cent of the total number of seats/posts would cases to exist. The present arrangement has been worked for more than five years already. It is now necessary to redetermine the question of backwardness of the various castes, tribes and communities for purposes of Article 15 (4) and Article 16 (4) in the light of the latest figures to be collected on the various relevant factors and to refix the extent of reservation for backward classes. The reservation of 15 per cent now made under Article 15 (4) and Article 16 (4) but which may be traced to Article 14 and Article 16 (1) to 'special group' based on occupation-cum-income can in any event be availed of by members of all communities and castes.

At this stage it should be made clear that if on a fresh determination some castes or communities have to go out of the list of Backward classes prepared for Article 15 (4) and Article 16 (4), the Government may still pursue the policy of amelioration of weaker sections of the population amongst them in accordance with the directive principle contained in Article 46 of the Constitution. There are in all castes and communities poor people who if they are given adequate opportunity and training may be able to compete success fully with persons belonging to richer classes The Government may provide for them liberal grants of scholarships, free studentship, free boarding and lodging facilities, free uniforms, free mid-day meals etc. to make the life of poor students comfortable. The Government may also provide extra tutorial facilities, stationery and books free of cost and library facilities. These and other steps should be taken in the lower classes so that by the time a student appears for the qualifying examination he may be able to attain a high degree of proficiency in his studies.

The State Government shall now proceed to redetermine the whole question of reservation of seats/posts under Article 15 (4) and Article 16 (4) of the Constitution in this judgment.

2 sabarwal case

R. K. Sabharwal And Ors vs State Of Punjab And Ors on 10 February, 1995

Equivalent citations: 1995 AIR 1371, 1995 SCC (2) 745

Author: K Singh

Bench: Kuldip Singh (J), Mohan, S. (J), Mukherjee M.K. (J), Hansaria B.L. (J), Majmudar S.B. (J)

all members of caste eighther they selected from reserve or open will be counted to calculate adequate representation and adequately represented caste shoulb be excluded from obc list

5. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a con- clusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the per- centage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been ap- pointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/ Rules providing certain percentage of reservations for the backward classes are op- erative the same have to be followed. Despit any number of appointment/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition.

We, therefore, see no force in the first contention raised by the learned counsel and reject the same.

making of a roaster and when vacency full of that class then no reservation

6 We see considered force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts......are reserved for members of the Scheduled Caste and Backward Classes. In a lot of100 posts those falling at serial numbers 1,7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for-the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards upto 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed per- centage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate based on the proportion worked out in relation to their populations The numerical quota of posts is not shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster. The operation of the roster and the running account" must come to an end thereafter.The vacancies arising in the cadre, after the initial posts arc filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster - points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category By following this procedure them shall neither be short-fall nor excess in the percentage of reservation.

3 MARATHA reservation JUDJEMENT

46. The impugned judgment of the Bombay High Court is liable to be set aside as it is contrary to the clear principle laid down in the Indra Sawhney's case. The High Court has not given any reason as to how extra-ordinary situations as mentioned in paragraph 810 in Indra Sawhney case is made out in the context of reservation for the Maratha caste/community in Maharashtra. Exception and certain extra-ordinary situations to the 50% principle carved out in Indra Sawhney does not cover the case of Maratha since such “rule is confined to 47 far flung and remote areas, where they are out of main stream of national life”. Indra Sawhney has also mandated extreme caution for going beyond 50%. The reservation limit of 50% has also been applied in the decisions rendered in the context of Article 243D and 243T of the Constitution of India relating to Panchayats and Municipalities. The earlier reports of National Commission for Backward Classes has rejected claim of Maratha to be included in backward class. The opinion of National Commission for Backward Classes cannot be disregarded by the State and in the event it had any grievance remedy of review was provided

85. We may now notice the Grounds which have been emphasized by Shri Mukul Rohtagi for referring the judgment of Indra Sawhney to a larger Bench. (5)The 10 grounds urged for referring Indra Sawhney judgment to a larger Bench. i) In the judgment of Indra Sawhney, there is no unanimity, in view of different reasoning adopted in six separate judgments delivered in the case. He submits that the judgments are in three groups – one containing the judgment of Justice Jeevan Reddy, which is for himself and three other judges, which held that while 50 percent is the rule but in certain extraordinary situations, it can be breached. Shri Rohtagi submits that Justice Pandian and Justice Sawant have held that 50 percent can be breached, hence, the majority opinion is that 50 percent can be breached. It is only Justice Thommen, Justice Kuldip Singh and Justice R.M. Sahai who have held that 50 percent cannot be breached. He submits that the judgment of majority opinion in Indra Sawhney is being wrongly read as holding that 50 percent is the ceiling limit for reservation

analysis of indira sahney judjement for 50 percent rule

123. We now revert back to the judgment of Indra Sawhney to find out what is the greatest common measures of the agreement between the Judges with regard to the reservation to the extent of 50%. Justice B.P. Jeevan Reddy for himself, M.H. Kania, 109 CJ, M.N.Venkatachaliah, A.M. Ahmadi, JJ., has elaborately dealt with the extent of the reservation under Article 16(4). In paragraph 809 conclusion was recorded by the Court that reservations contemplated under Article 16(4) should not exceed 50%. In paragraph 810 it was observed that in certain extraordinary circumstances, some relaxation in this strict rule of 50% may become imperative. Paragraphs 809 and 810 are to following effect: “809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%. 810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.” 124. Justice S. Ratnavel Pandian while delivering a separate judgment has expressed his disagreement with the proposition of fixing the reservation for socially and educationally backward classes at 50% as a maximum limit. In paragraph 243(9) following was laid down by Justice Pandian: "243(9) No maximum ceiling of reservation can be fixed under Article 16(4) of the Constitution for reservation of appointments or posts in favour of any backward class of citizens “in the services under the State”. The decisions fixing the percentage of reservation only up to the maximum of 50% are unsustainable.” 125. Justice Thommen, Justice Kuldip Singh and Justice R.M. Sahai took the view that reservation in all cases should remain below 50% of total number of seats. Paragraph 323(8) of Justice Thommen's opinion is as follows: "323(8) Reservation in all cases must be confined to a minority of available posts or seats so as not to unduly sacrifice merits. The number of seats or posts reserved under Article 15 or Article 16 must at all times remain well below 50% of the total number of seats or posts.

126. Justice Kuldip Singh also in paragraph 384(i) expressed his opinion in accord with Justice R.M. Sahai which is as follows: "384(i) that the reservations under Article 16(4) must remain below 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitutionally invalid.” 127. Justice R.M. Sahai in paragraph 619(i) held that reservation should in no case exceed 50%. Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai delivered dissenting opinion. 128. Now, we come to the judgment delivered by Justice P.B. Sawant who delivered concurring opinion. Two paragraphs of the judgment of Justice Sawant are relevant to notice. In paragraph 518 justice Sawant observed that there is no legal infirmity in keeping the reservations under clause(4) alone or under clause (4) and clause (1) of Article 16 together, exceeding 50%. However, validity of the extent of excess of reservations over 50% would depend upon the facts and circumstances of each case. In the same paragraph 112 Justice Sawant, however, observed that it would ordinarily be wise and nothing much would be lost, if the intentions of the Framers of the Constitution and the observations of Dr. Ambedkar, on the subject be kept in mind. Justice Sawant obviously referred to speech of Dr. Ambedkar dated 30.11.1948 where Dr. Ambedkar has categorically stated that reservation under Article 16(4) shall be confined to minority of seats. However, in paragraph 552 justice Sawant has recorded his answers and in answer to Question No.4 following was stated: “552........ Question 4: Ordinarily, the reservations kept both under Article 16(1) and 16(4) together should not exceed 50 per cent of the appointments in a grade, cadre or service in any particular year. It is only for extraordinary reasons that this percentage may be exceeded. However, every excess over 50 per cent will have to be justified on valid grounds which grounds will have to be specifically made out.” 129. The above opinion of Justice Sawant is completely in accord with the opinion expressed by Justice B.P. Jeevan Reddy in paragraphs 809 and 810. 113 The opinion of Justice Sawant expressed in the above paragraph is that ordinarily, the reservations under Article 16(1) and 16(4) should not exceed 50% and it is only in extra-ordinary circumstances that this percentage may be exceeded which is also the opinion expressed by Justice B.P. Jeevan Reddy. Applying the principle of Constitution Bench of this Court in Rajnarain Singh (supra), the opinion embodies the greatest common measure of agreement between the opinions expressed. Thus, the majority opinion, the ratio of judgment of Indra Sawhney as expressed by the majority is one which is expressed in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy. The submission of Shri Mukul Rohtagi cannot be accepted that majority opinion of Indra Sawhney is that 50% can be breached. The majority opinion as noted above is that normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%. What can be the extra-ordinary circumstances have been indicated in paragraph 810

130. Alternatively if we again look to the opinion in all six judgments, we notice : (a) Justice B.P. Jeevan Reddy (for himself and three other Judges) held in paragraph 809 that the reservation contemplated in clause (4) of Article 16 should not exceed 50%. (b) Justice Thommen, Justice Kuldip Singh and Justice Sahai in their separate opinion held that reservation under Article 16(4) should not exceed 50%. 131. Thus greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is that: (i) Reservation under Article 16(4) should not exceed 50%. (ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised. 132. The above is the ratio of Indra Sawhney judgment. 115 133. We, thus, do not find any good ground to revisit Indra Sawhney or to refer the same to a larger Bench on the above ground urged.

138.The next Constitution Bench judgment which noted the judgment in M.R. Balaji (supra) and applied the 118 percentage of 50% on the carry forward rule is T. Devadasan. The first judgment in which a discordant note with regard to 50% limit of reservation was expressed is the judgment of this Court in State of Kerala and another vs. N.M. Thomas and others, 1976 (2) SCC 310, In the above case the Constitution Bench had occasion to examine Rule 13-AA of Kerala State and Subordinate Services Rules, 1958 which empower the State to grant exemption for a specific period to any member or member belonging to Scheduled Castes and Scheduled Tribes from passing the test referred to in Rule 13 and Rule 13-A. The State of Kerala granted exemption to member of SC and ST from passing of the test, N.M. Thomas, respondent had filed writ petition in the High Court asking for declaration that the Rule 13-AA as unconstitutional. The grievance of the respondent was that by virtue of exemption granted to members of the SC they have been promoted earlier than the respondent, although they had not passed the test. The High Court allowed the writ petition against which judgment the State of Kerala had come up in 119 appeal. The appeal was allowed and Rule 13-AA was held to be valid. The Constitution Bench judgment of the Court was delivered by Chief Justice, A.N. Ray with whom Justice K.K. Mathew, Justice M.H. Beg, Justice V.R. Krishna Iyer and Justice S. Murtaza Fazal Ali concurred by delivering separate opinions. Two Judges, namely, Justice H.R. Khanna and Justice A.C. Gupta delivered dissenting opinion. With regard to extent of reservation upto 50% only two Judges, namely, Justice Fazal Ali and Justice Krishna Iyer has expressed the opinion. Justice Beg noticed the Constitution Bench judgments of this Court in M.R. Balaji and T.Devadasan, which had held that more than 50% reservation for backward class would violate the principle of reasonableness. No opinion of his own was expressed by Justice Beg. Justice Fazal Ali also in his judgment had noted 50% ceiling of reservation but observed that the above is only rule of caution and does not exhaust all categories. In paragraph 191 Justice Fazal Ali considered the question and following was laid down:

142. In the above case Justice Subba Rao has expressed dissenting opinion. Justice Subba Rao observed that what was held in M.R. Balaji cannot be applied in the case of reservation of appointment in the matter of recruitment. Following observation was made by Justice Subba Rao in paragraph 30: “30. In the instant case, the State made a provision; adopting the principle of “carry forward”. Instead of fixing a higher percentage in the second and third selections based upon the earlier results, it directed that the vacancies reserved in one selection for the said Castes and Tribes but not filled up by them but filled up by other candidates, should be added to the quota fixed for the said Castes and Tribes in the next selection and likewise in the succeeding selection. As the posts reserved in the first year for the said Castes and Tribes were filled up by non-Scheduled Caste and nonScheduled Tribe applicants, the result was that in the next selection the posts available to the latter was proportionately reduced. This provision certainly caused hardship to the individuals who applied for the second or the third selection, as the case may be, though the non-Scheduled Castes and nonScheduled Tribes, taken as one unit, were benefited in the earlier selection or selections. This injustice to individuals, which is inherent in any scheme of 125 reservation cannot, in my view, make the provision for reservation nonetheless a provision for reservation.”

149. The observation was made in paragraph 4, as noted above, that the Constitution Bench in M. Nagaraj has laid down that if a State wants to exceed 50% reservation, then it is required to base its decision on a quantifiable data, which is clear misreading of judgment of the Constitution Bench in M. Nagaraj. In M. Nagaraj, the Constitution Bench has not laid down any proposition to the effect that 131 if a State wants to exceed 50% reservation, then it is required to base its decision on the quantifiable data. To the contrary the Constitution Bench of this Court in M. Nagaraj has reiterated the numerical bench mark like 50% rule in Indra Sawhney's case. Following observation was made by the Constitution Bench in paragraphs 120 and 122: “120......In addition to the above requirements this Court in Indra Sawhney [1992 Supp (3) SCC 217] has evolved numerical benchmarks like ceiling limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination. 122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

ambedkar about reservation less than 50 percent

156. Dr. Ambedkar referred to Article 10(1) as a generic principle. Dr. Ambedkar observed that if the reservation is to be consistent on the sub-clause (1) of Article 10 it must confine to the reservation of minority of seats. Following are the part of speech of Dr. B.R. Ambedkar in the Constituent Assembly: “ If honourable Members will bear these facts in mind--the three principles, we had to reconcile,--they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now--for historical reasons--been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen 137 is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent. of the total posts under the State and only 30 per cent. are retained as the unreserved. Could anybody say that the reservation of 30 per cent. as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation.”

equal opportunity is right of citizen but reservation not

155. Articles 15 and 16 of the Constitution which are facets of right of equality were incorporated as fundamental rights to translate the ideals and objectives of the Constitution and to give 135 opportunities to the backward class of the society so as to enable them to catch up those who are ahead of them. Article 15(1) and Article 16(1) of the Constitution are the provisions engrafted to realise substantive equality where Articles 15(4) and 16(4) are to realise the protective equality. Articles 15(1) and 16(1) are the fundamental rights of the citizens whereas Articles 15(4) and 16(4) are the obligations of the States. Justice B.P. Jeevan Reddy in Indra Sawhney in paragraph 641 has said that the equality has been single greatest craving of all human beings at all points of time. For finding out the objectives and the intention of the framers of the Constitution we need to refer to Constituent Assembly debates on draft Article 10 (Article 16 of the Constitution) held on 30.11.1948 (Book 2 Volume No,VII), Dr. Ambedkar's reply on draft Article 10 has been referred to and quoted in all six judgments delivered in Indra Sahwney case. What was the objective of Article 10, 10(1) and 10(3) has been explained by Dr. Ambedkar which speech has been time and again referred to remind us the objective of the above fundamental right.

doing more than 50 percent reservation will end democracy and will make caste rule

164. To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.

OTHER MEASURES THAN RESERVATION

170. The constitutional measures of providing reservation, giving concessions and other benefits to backward classes including socially and educationally backward class are all affirmative measures. We have completed more than 73 years of independence, the Maharashtra is one of the developed States in the country which has highest share in the country's GST i.e. 16%, higher share in Direct Taxes-38% and higher contribution to country's GDP, 38.88%. The goal of the Constitution framers was to bring a caste-less society. The directive principles of the State Policy cast onerous obligation on the States to promote welfare of the people by securing and protecting as effectively as it may social order in which social justice, economic and political shall inform all the institutions of the national life. Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educationalfacilities to the members of backward class free of cost, giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self reliant.

TENDENCY OF BACHWARDNESS people are declaring backward in greed of reservation

171. We recall the observation made by Justice R.V. Raveendran in Ashoka Kumar Thakur vs. Union of India and others, 2008(6) SCC 1, where His Lordship held that any provision for reservation is a temporary crutch, such crutch by unnecessary prolonged use, should not become a permanent liability. In words of Justice Raveendran paragraph 666 is as follows: Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be realisation of a noble dream. To start with, the effect of reservation may appear to perpetuate caste. The immediate effect of caste-based reservation has been rather unfortunate. In the pre-reservation era people wanted to get rid of the backward tag—either social or economical. But post reservation, there is a tendency even among those who are considered as “forward”, to seek the “backward” tag, in the hope of enjoying the benefits of reservations. When more and more people aspire for “backwardness” instead of “forwardness” the country itself stagnates. Be that as it may. Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently. Instead of developing a united society with diversity, we will end up as a fractured society forever suspicious of each other. While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that the Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society

172. We have no doubt that all Governments take measures to improve the welfare of weaker sections of the society but looking to the increased requirement of providing education including higher education to more and more sections of society other means and measures have to be forged. In view of the privatisation and liberalisation of the economy public employment is not sufficient to cater the needs of all. More avenues for providing opportunities to members of the weaker sections of the society and backward class to develop skills for employment not necessary the public service. The objectives engrafted in our Constituted and ideals set by the Constitution for the society and the Governments are still not achieved and have to be pursued. There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.

COURT IS GUARDIAN OF CONSTITUTION

176. The Constitution enjoins a constitutional duty to interpret and protect the Constitution. This Court is guardian of the Constitution.

179. This Court again in Nand Kishore vs. State of Punjab, 1995(6) SCC 614, laid down that under Article 141 law declared by this Court is of a binding character and as commandful as the law made by legislative body or authorized delegate of such body. In paragraph 17 following was laid down: “17. …Their Lordships' decisions declare the existing law but do not enact any fresh law”, is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is. Patently the High Court fell into an error in its appreciation of the role of

180. When the Constitution Bench in Indra Sawhney held that 50% is upper limit of reservation underthis Court.”Article 16(4), it is the law which is binding under Article 141 and to be implemented.181. The submission of Shri Kapil Sibal that the judgment of Indra Sawhney is shackle to the legislature in enacting the law does not commend us. When the law is laid down by this Court that reservation ought not to exceed 50% except in extraordinary circumstances all authorities including legislature and executive are bound by the said law. There is no question of putting any shackle. It is the law which is binding on all.

RESERVATION SHOULD

NOT BE IN CERTAIN INSTITUTUE

183. What has been laid down by the Constitution Bench in Indra Sawhney in paragraphs 839, 840 and 859(8) is law declared by this Court and is to be implemented also by all concerned. The Parliament has passed the Central Educational Institutions Reservation and Appointment Act, 2006 providing for reservation- 15% for SC, 7-1/2%, 15%, 27% for other classes in Central Educational Institutions (Reservation in Admission) Act, 2006. Section 4 provides that Act not to apply in certain cases which is to the following effect:

“Section 4 of the Act specifically says that the provisions of Section 3 shall (sic/not) apply to certain institutions. Section 4 reads as under: “4. Act not to apply in certain cases.— The provisions of Section 3 of this Act shall not apply to— (a) a Central Educational Institution established in the tribal areas referred to in the Sixth Schedule to the Constitution; (b) the institutions of excellence, research institutions, institutions ofnational and strategic importance specified in the Schedule to this Act: Provided that the Central Government may, as and when considered necessary, by notification in the Official Gazette, amend the Schedule; (c) a Minority Educational Institution as defined in this Act; (d) a course or programme at high levels of specialisation, including at the post-doctoral level, within any branch or study or faculty, which the Central Government may, in consultation with the appropriate authority, specify.”

MINORTIY INSTITUTION

description in maratha judjement

why some minority institute are excluded from 50 percent reservation rule because they run pre school also

Ground NO.7

199. Shri Rohtagi submits that an Eleven-Judge Bench of this Court in T.M.A. Pai foundation and others versus State of Karnataka and others, (2002) 8 SCC 481, has struck down the law laid down by this Court in St. Stephen’s College case, (1992) 1 SCC 558 which had held that aided minority educational institutions although entitled to preferably admit their community candidate but intake should not be more than 50 percent. Shri Rohtagi submits that St. Stephen's College case has put a cap of 50 percent which was nothing but recognition of Indra Sawhney Principle. Shri Rohtagi submits that the ElevenJudge Bench in T.M.A. Pai Foundation case has set aside the aforesaid cap of 50 percent. Mr. Rohtagi relies on paragraph 151 of Kirpal,C.J. and paragraph 338 by Rumapal, J. of the judgment, which is to the following effect: -

“151. The right of the aided minority institution to preferably admit students of its community, when Article 29(2) was applicable, has been clarified by this Courtover a decade ago in the St. Stephen's College case. While upholding the procedure for admitting students, this Court also held that aided minority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the state may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen's endeavoured to strike a balance between the two Articles. Though we accept the ratio of St. Stephen's, which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established. 388. I agree with the view as expressed by the Learned Chief Justice that there is no question of fixing a percentage when the need may be variable. I would only add that in fixing a percentage, the Court in St. Stephens in fact "reserved" 50% of available seats in a minority institution for thegeneral category ostensibly under Article 29(2). pertains to the right of an individual and is not a class right. It would therefore apply when an individual is denied admission into any educational institution maintained by the State or receiving aid from the State funds, solely on the basis of the ground of religion, race, caste, language or any of them. It does not operate to create a class interest or right in the sense that any educational institution has to set apart for nonminorities as a class and without reference to any individual applicant, a fixed percentage of available seats. Unless Articles 30(1) and 29(2) are allowed to operate in their separate fields then what started with the voluntary 'sprinkling' of outsiders, would become a major inundation and a large chunk of the right of an aided minority institution to operate for the benefit of the community it was set up to serve, would be washed away.”

203. The 50 percent ceiling as put by this Court in St. Stephen’s College case was struck off by T.M.A. Pai Foundation case to give effect to content and meaning of Article 30. The striking of the cap of 50 percent with regard to minority institutions is an entirely different context and can have no bearing with regard to 50 percent cap which has been approved in the reservation under Article 16(4) in the Indra Sawhey’s case.

INDIRA SAHNEY NOW HAS CONSTITUNAL VALIDITY BY constitunal AMMENDMENT

[REFRENCE MARATHA JUDJEMENT]

Ground – 8

205. Shri Rohtagi relying on Constitutional 77th and 81st Amendment Acts submits that these amendments have the effect of undoing in part the judgment ofIndra Sawhney which necessitates revisiting of the judgment. By the 77thConstitutional Amendment Act, 1995, sub-clause (4A) was inserted in Article 16 of the Constitution. The above Constitutional Amendment was brought to do away the law laid down by this Court in Indra Sawhney that no reservation in promotion can be granted. By virtue of sub-clause 4A of Article 16 now, the reservation in promotion is permissible in favour of Scheduled Caste, Scheduled Tribe. The ratio of Indra Sawhney to the above effect no longer survives and the Constitutional provisions have to be give effect to. There can be no case for revisiting the Indra Sawhney judgment on this ground. Now coming to 81stConstitutional Amendment Act, 2000, by which sub-clause (4B) was inserted in Article 16. The above provision was also to undo the ratio laid down by the Indra Sawhney judgment regarding carry forward vacancies. The Constitutional Amendment laid down that in unfilled vacancies of year which was reserved shall be treated as separate class of vacancies to be filled up in any succeeding year or years and such class ofvacancies shall not be considered together with the vacancies of the year in which they are being filled up for determine the ceiling of 50 percent. Article (4B) is for any reference is quoted as below: -

“16(4B). Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

206. The above Constitutional Amendment makes it very clear that ceiling of 50 percent “has now received Constitutional recognition.” Ceiling of 50 percent is ceiling which was approved by this Court in Indra Sawhney’s case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case and onthe basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney.

WHATS IS EXCEPTIONAL CASE OF INDIRA SAHNEY where can be breached [panchayat election in scedule area only ]

Ground– 10

209. Shri Rohtagi submits that in paragraph 810 of judgment of Indra Sawhney, certain extraordinary circumstances have been referred to which cannot be said to be cast in stone. The extra-ordinary circumstances provided in paragraph 810 i.e. of farflung and remote area cannot be cast in stone and forever unchanging. He submits that the same was given only by way of example and cannot be considered exhaustive. Morever, it is geographical test which may not apply in every State. In paragraph 810 of Indra Sawhney, Justice Jeevan Reddy provided: -

210. We fully endorse the submission of Shri Rohtagi that extraordinary situations indicated in paragraph 810 were only illustrative and cannot be said to be exhaustive. We however do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The use of expression “on being out of the main stream of national life”, is a social test, which also needs to be fulfilled for a case to be covered by exception.

239. This Court in several judgments has noticed that what can be the extra-ordinary situations as contemplated in paragraph 810 in few other cases. We have referred above the three-Judge Bench judgment in Union of India and others vs. Rakesh Kumar and others, (2010) 4 SCC 50, where three-Judge Bench held that exceptional case of 50% ceiling can be in regard to Panchayats in scheduled areas. The above three-Judge Bench has also been approved and reiterated by the Constitution Bench of this Court in K.K. Krishnamurthi (supra). In the above cases this Court was examining the reservation in Panchayats. In the context of Part IX of the Constitution, 50% ceiling principle was applied but exception was noticed.

QUANITATATIVE DATA IS FOR GIVING RESERVATION NOT FOR BERACHING 50%

232. The above observation regarding quantifiable data was in relation to enabling power of the State to grant reservation in promotion to the Scheduled Caste and Scheduled Tribes. It is further relevant to notice that in the last sentence of paragraph 123 it is stated: "It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely”.

233. The Constitution Bench, thus, in the above case clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. The Commission has completely erred in understandingthe ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached. There is no such ratio laid down by this Court in M. Nagaraj. Hence, the very basis of the Commission to proceed to examine quantifiable data for exceeding the limit of 50% is unfounded. 234. Paragraph 236 of the Report of the Commission contains a heading “QUANTIFIABLE DATA”. It is useful to extract the entire paragraph 236 which is to the following effect:

POPULATION BASIS does not stand to breach 50 percent

236. It is clear that the entire basis of the Commission to exceed 50% limit is that since the population of backward class is between 80% to 85%, reservation to them within the ceiling 50% will be injustice to them.

238. Shri Rohtagi had submitted that the test laid down in paragraph 810 is only geographical test which was an illustration. It is true that in Indra Sawhney the expression used was “far flung and remote areas” but the social test which was a part of the same sentence stated “the population inhabiting those areas might, on account of theirbeing out of the main stream of national life and in view of conditions peculiar to and characteristical to them”. Thus, one of the social conditions in paragraph 810 is that being within the main stream of National Life, the case of Maratha does not satisfy the extra-ordinary situations as indicated in paragraph 810 of Indra Sawhney . The Marathas are in the main stream of the National Life. It is not even disputed that Marathas are politically dominant caste.

241. The High Court has endorsed the opinion of the Commission that when the population of backward class is 85% if they would get only 50%, it would not be valid. In paragraph 165 of the impugned judgment following is the opinion of the High Court:

242. Again at page 453 of the judgment, the High Court reiterated that extra-ordinary situations have been culled out by the report since backward class is 85%, Maratha being 30%. Treating above to be extra-ordinary situation following observations have been made in paragraph 170:

“...The extra-ordinary situations have been culled out as the report has declared that Maratha community comprise 30% of the population of the State and this figure is derived on the basis of quantifiable data. The extra-ordinary situation is therefore carved out for awarding an adequate representation to the Maratha community who is now declared socially, educationally and economically backward. Based on the population of 30%, Commission has arrived at a conclusion that the total percentage of State population which is entitled for the constitutional benefits and advantages as listed under Article 15(4) and Article 16(4) would be around 85% and this is a compelling extra-ordinary situation demanding extra-ordinary solution within the constitutional framework.

243. From the above, it is clear that both the Commission and the High Court treated the extraordinary situations with regard to exceeding 50% for granting separate reservation to Maratha, the fact that population of backward class is 85% and reservation limit is only 50%. The above extraordinary circumstances as opined by the Commission and approved by the High Court is not extra-ordinary situation as referred to in paragraph 810 of Indra Sawhney judgment. The Marathas are dominant forward class and are in the main stream of National life. The above situation is not an extra-ordinary situation contemplated by Indra Sawhney judgment and both Commission and the High Court fell in error in accepting the above circumstances as extra-ordinary circumstance for exceeding the 50 % limit. At this stage, we may notice that what was said by Dr. Ambedkar in the Constituent Assembly debates dated 30.11.1948 while debating draft Article 10/3 (Article 16(4) of the Constitution). Dr. Ambedkar by giving an illustration said

244. The illustration given by Dr. Ambedkar that supposing 70% posts are reserved and 30% may retain as unreserved, can anybody say that 30% as open to general competition would be satisfactory from point of view of giving effect to the first principle of equality, the answer given by Dr. Ambedkar was in negative. Thus, Constituent Assembly by giving illustration has already disapproved principle which is now propounded by the High Court. We cannot approve the view of the High court based on the same view taken by the Commission.

adequate representation is a relative term not on basis of propornate population propornate was for article 330 and for limited period

277. The Constitution Bench of this Court in Indra Sawhney while elaborating on Article 16(4) has held that clause (4) of Article 16 speaks of adequate representation and not proportionate representation in paragraph 807: -

“807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Article 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to thetotal population would certainly be relevant...”

281. The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in main stream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the Society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services. The Maratha community is only one community among the numerous castes and communities in the State of Maharashtra. The principal caste and communities in the State of Maharashtra consists of Scheduled Castes/Scheduled Tribes, de-notified tribes, nomadic tribes (B, C and D), special backward category and other backward classes, general categories and the minorities.

only higher post less representation cant decide backwardness

325. In the Higher Academic posts and posts like IAS, IPS and IFS, there cannot be any basis to contend that since Maratha community is not occupying posts according to their proportion of population, they are socially and educationally backward classes. The above are the data and figures on the basis of which the Commission concluded that the Marathas are socially and educationally backward class. When we look into the aforesaid details regarding Maratha students occupying Engineering, Medical and other streams, Maratha officers occupying Central posts of IAS, IPS and IFS and are occupying posts of Higher Academic in Universities, mere fact that their occupation of posts is not equivalent to the proportion of their population cannot lead to the conclusion that they are socially and educationally backward. We are conscious that the Commission has conducted sample survey collected representations and other information, data and has allotted marks on social and educational and economic backward class and in the marking Marathas were found to be backward. However, data and facts which have been collected by the Commission noted above clearly indicate that Marathas are neither socially nor educationally backward and the conclusion recorded by the Gaikwad Commission on the basis of its marking system, indicator and marking is not sufficient to conclude that Marathas are socially and educationally backward

why jat case dismissed

327. We have completed more than 70 years of independence, all governments have been making efforts and taking measures for overall developments of all classes and communities. There is a presumption unless rebutted that all communities and castes have marched towards advancement. This Court in Ram Singh versus Union of India and others (Supra) has made such observations in paragraph 52:- “52...This is because one may legitimately presume progressive advancement of all citizens on every front i.e. social, economic and educational. Any other view would amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a governmental affirmation of such negative governance inasmuch as decade old decisions not to treat the Jats as backward, arrived at on due consideration of the existing ground realities, have been reopened, in spite of perceptible all-round development of the nation. This is the basic fallacy inherent in the impugned governmental decision that has been challenged in the present proceedings...”

more and more people are being backward

328. We are constrained to observe that when more people aspire for backwardness instead of forwardness, the country itself stagnates which situation is not in accord with constitutional objectives.

4 cheborulila vs andhrapradesh

79. It was argued on behalf of the appellants that Article 371D was promulgated in view of geographical disparity in public employment within the State of Andhra Pradesh. The candidates from certain districts/areas of the State capturing a disproportionately large number of public posts. Article 371D requires the State Government to reorganise class or classes of posts in the State into different local cadres for different parts of the State. The Presidential Order of 1975 was issued providing district/zone as a unit for the local cadre. Whereas, G.O. provided that all the posts of teachers in the schools situated in Scheduled Areas in the State of Andhra Pradesh shall be filled in with the local Scheduled Tribes candidates only. A district or zone is the unit for the local cadre. Whereas on the other hand, the impugned G.O.Ms. No.3 of 2000 provided that all the posts of teachers in the Scheduled Area, forming part of a district, to be filled up by local Scheduled Tribe candidates only. The impugned G.O. reserved all the posts in the Scheduled Area; thus, aspiring candidates in a district/zone in the Scheduled Areas cannot apply for the post of teachers in the district or zone as all the posts have been reserved for local Scheduled Tribe candidates and "they cannot apply outside the district or zone" because of the restrictions under Article 371D of the Constitution.

merit on initial stage cant be ignored

836. We do not think it necessary to express ourselves at any length on the correctness or otherwise of the opposing points of view referred to above. (It is, however, necessary to point out that the mandate — if it can be called that — of Article 335 is to take the claims of members of SC/ST into consideration, consistent with the maintenance of efficiency of administration. It would be a misreading of the article to say that the mandate is maintenance of efficiency of administration.) Maybe, efficiency, competence and merit are not synonymous concepts; maybe, it is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of the efficiency of an administrator. Even so, the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with — and may, in some cases, excel — members of open competition. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and that what is required is an opportunity to prove it. It may not, therefore, be said that reservations are anti-meritarian. Merit there is even among the reserved candidates and the small difference, that may be allowed at the stage of initial recruitment is bound to disappear in course of time. These members too will compete with and improve their efficiency along with others.

minimum qualifying mark is necessary

837. Having said this, we must append a note of clarification. In some cases arising under Article 15, this Court has upheld the removal of minimum qualifying marks, in the case of Scheduled Caste/Scheduled Tribe candidates, in the matter of admission to medical courses. For example, in State of M.P. v. Nivedita Jain admission to medical course was regulated by an entrance test (called Pre-Medical Test). For general candidates, the minimum qualifying marks were 50% in the aggregate and 33% in each subject. For Scheduled Caste/Scheduled Tribe candidates, however, it was 40% and 30% respectively. On finding that Scheduled Caste/Scheduled Tribe candidates equal to the number of the seats reserved for them did not qualify on the above standard, the Government did away with the said minimum standard altogether. The Government’s action was challenged in this Court but was upheld. Since it was a case under Article 15, Article 335 had no relevance and was not applied. But in the case of Article 16, Article 335 would be relevant and any order on the lines of the order of the Government of Madhya Pradesh (in Nivedita Jain) would not be permissible, being inconsistent with the efficiency of administration. To wit, in the matter of appointment of Medical Officers, the Government or the Public Service Commission cannot say that there shall be no minimum qualifying marks for Scheduled Caste/Scheduled Tribe candidates, while prescribing a minimum for others. It may be permissible for the Government to prescribe a reasonably lower standard for Scheduled Castes/Scheduled Tribes/Backward Classes — consistent with the requirements of efficiency of administration — it would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature of duties attached to the post and the interest of the general public should also be kept in mind.

resevation should not be in medical technichzal and in other

838. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.” (emphasis supplied by us) This Court observed that some relaxation has to be granted consistent with the requirement of administration, to do social justice, it would not be permissible not to prescribe any minimum standard at all. This Court also observed that as to specialty in technical posts and research development, medical engineering, defence services, physics, and mathematics, provision for reservation would not be advisable.

50 percent celling must

809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.

more than 50% only political reservation

66. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political representation. For instance, the Legislative Assemblies of the States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and Sikkim have reservations that are far in excess of the 50% limit. However, such a position is the outcome of exceptional considerations in relation to these areas. Similarly, vertical reservations in excess of 50% are permissible in the composition of local self-government institutions located in the Fifth Schedule Areas.

67. In the recent decision reported as Union of India v. Rakesh Kumar, (2010) 4 SCC 50, this Court has explained why it may be necessary to provide reservations in favour of the Scheduled Tribes that exceed 50% of the seats in panchayats located in the Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SCs/STs/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favour of OBCs.”

merit cant be denied

133. There were no such extraordinary circumstances to provide a 100 percent reservation in Scheduled Areas. It is an obnoxious idea that tribals only should teach the tribals. When there are other local residents, why they cannot teach is not understandable. The action defies logic and is arbitrary. Merit cannot be denied in toto by providing reservations.

definition of st

107. Reservation provided to scheduled tribes and constitution of scheduled areas is for the reason as systems concerning way of life are different. They were in isolation, differed in various aspects from common civilisation such as the delivery of justice, as regards legal system, the culture, way of life differs from the ordinary people, their language and their primitive way of life makes them unfit to put up with the mainstream and to be governed by the ordinary laws. It was intended by the protective terms granted in the constitutional provisions that they will one day be the part of the mainstream and would not remain isolated for all time to come. The Scheduled Tribes Order, 1950 was promulgated to include groups and communities which were not part of social society, based on characteristic and culture, which developed by that time. The formal education, by and large, failed to reach them, and they remained a disadvantaged class, as such required a helping hand to uplift them and to make them contribute to the national development and not to remain part of the primitive culture. The purpose of the constitutional provisions is not to keep them in isolation but to make them part of the mainstream. They are not supposed to be seen as a human zoo and source of enjoyment of primitive culture and for dance performances. The benefits of developments have not reached them, and they remain isolated in various parts of the country. The social and economic upliftment and education are necessary for tribals to make them equal.

RELIEF:

As a sequel to the quashing of G.O. Ms. No.3 of 2000, the appointments made in excess of the permissible reservation cannot survive and should be set aside. However, on behalf of State and other respondents, it was urged that appointments may not be set aside. In the peculiar circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to Scheduled Tribes.

We cannot ignore the fact that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again. But instead, it issued G.O. Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible. It is rightly apprehended by appellants that the State may again by way of misadventure, resort to similar illegal exercise as was done earlier. It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney (supra) and other decisions holding that the limit of reservation not to exceed 50%. There was no rhyme or reason with the State Government to resort to 100% reservation. It is unfortunate that illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. We direct the respondentsStates not to exceed the limits of reservation in future. Ordered accordingly.

Resultantly, we allow the appeals, and save the appointments made so far conditionally with the aforesaid riders. The cost of appeal is quantified at Rupees Five Lakhs and to be shared equally by the States of Andhra Pradesh and Telangana.

..……………………….J.

(Arun Mishra) ..……………………….J.

(Indira Banerjee) ..……………………….J.

(Vineet Saran) …..…………………….J.

                             (M.R. Shah)

 5   justice sudhir agrawal  allahabad  high court

delivered on 3/10/2013

civil Misc. Stay Application No. 247959 of 2013
In
Case : WRIT  A No.  46249 of 2013
Petitioner : Sumit Kumar Shukla And 3 Ors.
Respondent : State Of U.P.& 2 Ors.
Counsel for Petitioner : Agnihotri Kumar Tripathi,Anil Singh
Bishen
Counsel for Respondent : C.S.C.

Court No. 34

Civil Misc. Stay Application No. 247959 of 2013
In
Case : WRIT  A No.  46249 of 2013
Petitioner : Sumit Kumar Shukla And 3 Ors.
Respondent : State Of U.P.& 2 Ors.
Counsel for

 what  is  adequate  representation

26 Exclusion of classes which are now well represented in service would also help the other groups in reserved category, who are not able to compete intra class with those groups which are much advanced, well represented and excel over the other groups, so as not to allow them to compete them at par. The exclusion of well represented groups will increase available vacancies to left over groups and will give them a boost in getting more seats in reserved quota which will be conducive to the objective of providing speedier better representation to them.

27 The Apex Court has also repeated and reiterated that the reservation under Article 16(4) can continue only if particular class is not "adequately represented" in service. In these facts and circumstances, prima facie, in my view, the State Government deserves to be restrained from continuing with reservation in respect of such classes which are now adequately represented in service in the recruitment in question.

28 The next question would be, what is the dividing line of adequate representation. For the said purpose, at this stage, I find it expedient to follow the proportionate representation. Those, whose proportionate representation in service (individual or collective) is 50% and above, can safely be taken as adequately represented.
Sumit Kumar Shukla and Others v. State of Uttar Pradesh and Others

sanjeev kumar singh judjement

allahabad high court

Sanjeev Kumar Singh Son Of Sri Amar ... vs State Of U.P. Through Its ... on 22 December, 2006

Author: S Agarwal

Bench: S R Alam, S Agarwal

JUDGMENT Sudhir Agarwal, J.

key point of this judjement

british convenance to give reservation to divide country initial percentage and limited time

23. Britishers were successful in ruling this vast country for decades by following the well know trick "divide and rule". The objective was advanced by them in the form of communal representation on the political front. The seeds of this division sought to be continued in the field of public employment by identifying masses on caste basis and providing a kind of reservation in one or the other way to the class of masses, which were ex-facie extremely downtrodden, poor and virtually unrepresented in public employment. The Britishers though shielded their motive behind a laudable objective of upliftment but the very idea was division amongst the various classes. However, in independent India we thought to carry on with the laudable objective and means to achieve it, leaving the other part with the clear intention that it would continue for a limited duration so that the hidden motive, as conceived by rulers in pre-independence era, may not persist. Unfortunately, the duration is going on extension and the apprehension of our forefathers at the time of framing of the Constitution is proving itself on account of frequent class clashes we have witnessed in the recent past. To trace out the history of reservation, for the purpose of present case, we need not go too far and restrict ourselves to the stage commencing from the period, in vicinity of, independence. Various GOs. on reservation issued from time to time are compiled by the State Government in the 'Manual of Government Orders on Reservation' and we have taken these Orders therefrom. On 24.7.1947, a G.O. was issued providing representation to the members of depressed classes to the extent of 10% in direct recruitment. The aforesaid reservation based on the data available with the then Government pursuant to 1931 census, the last census, which was prepared taking into account social and other conditions of the people in India and their number. After achieving independence on 15.8.1947, the Constituent Assembly formed a Committee under the Chairmanship of Dr. B.R. Ambedkar to consider shape of our constitution. Constituent Assembly Debate, Vol-7 page 672-704, shows that Dr. Ambedkar incorporated provisions for reservation in service pursuant to 1932 Puna Act which was accepted by all the parties. On 26.1.1550 the people of India gave to themselves 'Constitution', which contain provisions for reservation, which we have already referred above. On 9th June, 1950 a G.O. was issued stating that preference to backward classes shall be extended in order to recruit them in adequate number in public service. Though under G.O. dated 24.7.1947, reservation was provided to "depressed classes", in the subsequent G.O. dated 9.6.1950 they were termed "Backward Classes" since Article 16(4) of the Constitution provides reservation for Backward Class of Citizens. Thus all the depressed classes were treated to be enbloc backward class and were given reservation under the said provision. Subsequently on 26.8.1950 the G.O. provided 10% reservation for scheduled castes with further caution that due attention shall be paid to the existing provisions of Article 16(4) and 335 of the Constitution of India. By first Constitution Amendment of 1951, Clause (4) inserted in Article 15 empowering "the State" to make special provision for advancement of any "socially and educationally backward classes of citizens" and for "scheduled castes and scheduled tribes".

first time reservation in university

25 On 19.5.1976, the G.O. provided reservation in teaching and non-teaching service in Government aided technical education institutes receiving grant in aid. On 30.9.1976 the University Grants Commission laid down certain guidelines for recruitment of Scheduled Castes and Scheduled Tribes in teaching staff of universities and the State Government by G.O. dated 11.10.1976 applied the aforesaid U.G.C. recommendations to universities and degree colleges in State of U.P. The State Government also constituted a Commission known as "Sathi Commission" for identifying most backward class of citizens. The Commission consisted of Sri Chhedi Lal Sathi, Chairman, and Sitaram Nishad and Sri Malkhan Singh Saini as Members. The "Sathi Commission" submitted its report on 17.5.1977 and on many aspects it followed the pattern, particularly for calculating most backward's population, as was dealt with by Kalelkar Commission, and based on 1931 census, assuming an average increase of 25% per decade, estimated their population as 51.4%. For the first time the State Government by G.O. dated 20.8.1977 extended 15% reservation in direct recruitment to backward class candidates referring to the list of Other Backward Class (in short 'O.B.C.') as was already published by G.O. dated 17.9.1958. The G.O. dated 14.11.1977 provided reservation in all voluntary organizations receiving grant from the State. The G.O. dated 13.1.1978 extended reservation of OBC in promotions also. The State Government by G.O. dated 17.1.1978 informs that the representation of scheduled castes in class I and 11 posts is 3.1% and 3.6% respectively. G.O. dated 23.1.1978 extended reservation for O.B.Cs. in Public Sector Undertakings and G.O. dated 17.2.1978 extended reservation to all teaching posts in medical colleges, G.O. dated 22.2.1978 extended reservation in local bodies, G.O. dated 29.4.1978 extended reservation in Zila Parishads and G.O. dated 12.7.1978 to Non-Government aided Higher Secondary Colleges.

do a study and exclude some caste from obc

38. At this stage, learned Counsel for the appellant urged that it is wholly impossible for the individuals to get this information and relevant material since the only authority who can makes it available is the State and presently even the State has no concrete facts and figures compiled since no such study has been undertaken at all. Therefore to expect from individuals to plead and place such material before the Court is nothing but placing an onus upon them which is just impossible to discharge. The apprehension expressed by the learned Counsel does not appear to be totally unfounded, particularly in view of the inability of the learned Advocate General in placing any information before the Court showing representation of respective class of backward citizens in public office and services. It appears that exercising enabling provisions the reservation has been made but extent to which it has served its purpose or if not, what is the deficiency etc., no attempt has been made by the State to have an indepth study. There may be reasons more than one for ignoring to collect such details, may be political or otherwise, but we cannot forget that pre-condition for invoking Article 16(4) and 16(4A) is the opinion formed by the State that backward class of citizens are not adequately represented in service and the same apply for continuance thereof. The opinion must be shown to have been formed on objective considerations and for continuance of provisions of reservation, the pre-condition must continue to exist. If at any particular point of time, one or more backward class of citizens in the list of said classes gets representation which cannot be said to be inadequate, then onward, reservation to such class would be impermissible under Article 16(4) and 16(4A) of the Constitution. This review will also help in advancement of other backward class of citizens inasmuch as it may happen that availing concessions, relaxations and reservations one or more backward class of citizen may be able to improve its conditions and get a good number of entry in the public service increasing its representation which may not be said to be inadequate. If such class is excluded, it would leave open larger share to remaining categories which will then augment opportunity to others to improve their representation in service and will help in achieving the constitutional objective at the better pace and within reasonable time. On the contrary, if without any objective consideration, and in a mechanical manner, provisions of reservation continue to operate, this may lead to disastrous consequences and may cause a totally unexpected and unwarranted consequences resulting in lions share to one category and virtually no benefit to some others disturbing the equilibrium and mutual harmony amongst various class of citizens. This is neither contemplated the Constitution nor otherwise legally and constitutionally permissible. Therefore, at this stage we find it expedient to direct the State Government of U.P. to undertake an indepth study to find out respective representation of various class of backward citizens in public services and to find out as to whether any backward class of citizen has achieved the constitutional goal of adequate representation in service or not and thereafter to take further action by reviewing the policy in the light of the facts, figures and information received pursuant to such study. We intent to remind the State of U.P. that continuance of reservation under Article 16(4) and 16(4A) is preceded by a condition that the backward class of citizens are not adequately represented in service and once such representation is there, continuance of reservation to such class would not be constitutionally permissible. This exercise shall be undertaken by the State of U.P. within six months and a compliance report shall be submitted to this Court.

right of unreserved candidate

41. In M.R. Balaji and Ors. v. The State of Maysore and Ors. , the Constitution Bench said that interest of reserved class must be balanced against the interest of other segments of the society. In Indra Sawhney (Supra), Hon'ble B.P. Jeevan Reddy, J explained as to how the fundamental right of citizens under Article 16(1) has to be balanced against the claim of reserve candidates in Article 16(4) and said:It needs no emphasis to say that the principal aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provision have to be harmonized keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. If is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (See his speech in constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is thus, clear that reservation of a majority of seats was never envisaged by the founding Fathers. Nor are we salisfied that the present context requires us to depart from that concept.

42. In P.G.I. M.E.R. v. Faculty Association (Supra) in para 32 the same principle was reiterated as under:

32. Article 14 , 15 and 16 including Articles 16(4), 16(4A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji case, Devendasan case and Sabharwal case. Even in Indra Sawhney case the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to he appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram and C.A. Rajendran v. Union of India . It has been indicated in Indra Sawhney case that Clause (4) of Article 16 is not in the nature of an exception to Clauses (I) and (2) of Article 16 but an instance of classification permitted by Clause (1). It has also bean indicated in the said decision that Clause (4) of Article 16 does not cover the entire field covered by Clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in Clause (1) of Article 16 is to be reconciled in favour of backward classes under Clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.

43. In Ajit Singh Januja Second v. State of Punjab in the context of seniority for roster point of promotees the Court observed in para 15:

for attracting meritorious and talented persons to the public services, a balance has to be struck, while making provisions for reservation in respect of a section of the society. This court from time to time has been issuing directions to maintain that balance.

reverse discrimination is not allowed

44. The Constitution Bench in Ajit Singh and Ors. (II) (Supra) while reiterating all the aforesaid principles observed that affirmative action and steps should not result in reverse discrimination and reminded the caution expressed by Hon'ble V.R. Krishna Iyar, J. in Akhil Bhartiya Soshit Karmachari Sangh (Railway) v. Union of India and Ors. where in para 73 the Court observed:

care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse.

dnt kill other from reservatiom

45. In para 102 of Akhil Bhartiya Soshit Karmachari Sangh (Supra), the Court also expressed the same sentiments as under:

The remedy of 'reservations' to correct inherited imbalances must not be an overkill....

ambedkar also said right of unreserved

46. The Court also quoted the following speech of Dr. Ambedkar in Constituent Assembly in para 37, Ajit Singh and Ors. (II) (Supra):

Supposing for instance we were to consider in full the demands of these communities who have not been so far employed in public services to the fullest extent, what would really happen is we shall be completely destroying the first proposition upon which we all are agree that there shall be equality in opportunity.

article 15 [4] different from 16[4] since no resevation word is incuded in artcle 15[4] and employ ment reservation is for individual only so equality of every individual should be preserved

47. In M. Nagraj (Supra), the Court observed that the concept of reservation under Article 16(4) is different from the general concept of reservation. In para 39 of the judgment, the Court noticed that the word "reservation" has been incorporated under Article 16(4) but not in Article 15(4) of the Constitution and therefore the word "reservation" as subject of Article 16(4) is different from the word "reservation" as a general concept. It further held that public employment is a scarce commodity in economic terms. Since the supply is wanting, demand is chasing the commodity, which is reality of the life. The concept of 'public employment' unlike right to property is socialistic and falls within the preamble to the Constitution which states that "WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC." It also observed that the concept of 'equality of opportunity' in public employment concerns an individual, whether that individual belongs to general category or backward class. However the conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. The question is of optimization of the conflicting interests and claims since both the claims have a particular object to be achieved.

48. While adjusting these equalities the only further rider available is "maintenance of efficiency in public administration" i.e. keeping the merit intact. Fortunately the Apex Court has also an occasion to consider this aspect of the matter in M. Nagraj (Supra) and in para 44 of the judgment the Court has dealt with the term "merit" as under:

Merit is not a fixed absolute concept. Amartya Sen, in a book, Meritocracy and Economic Inequality, edited by Kenneth Arrow, points out that merit is a dependent idea and its meaning depends on how a society defines a desirable act. An act of merit in one society may not be the same in another, The difficulty is that there is no natural order of 'merit' independent of our value system. The content of merit is concept-specific. It derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on 'merit' depends on how that policy is designed. Unfortunately, in the present case, the debate before us on this point has taken place in an empirical vacuum. The basis presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways they consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of "extent of

adequate representation counting total selection of caste candidates maatters irrespective of category he selected and if more reserved candidate selected then exclude castte but exclusion is not from one result 183 selection in open category in 600 seat is high

59. Learned Counsel for the petitioner-appellants raised a serious apprehension that if such a course is permitted, it would result in reverse discrimination inasmuch as recruitment of reserve category candidates would excel the general category candidates and the later would get selection in minority. It would defeat the very purpose and objective of providing reservation under Article 16(4) of the Constitution. We are not impressed by the submission. No doubt, in the case in hand, the number of reserve category candidates who are successful against unreserved seats is impressively high i.e. 183 against 600 and odd unreserved seats but a single instance ox one selection would not be sufficient to fortify such apprehension. It is another way of achieving the goal of providing adequate representation to backward class of citizens in a speedier manner without compromising with the constitutional scheme. However to find out as to whether a particular backward class of citizen is adequately represented in service or not the total population or representation in service irrespective of the manner of his selection whether it has come in open merit against unreserved seat or against reserve seat would be relevant and has to be counted but for the purpose of giving benefit of reservation such methodology is not permissible. The idea of providing reservation under Article 16(4) of the Constitution is based on the precondition of inadequate representation of backward class of citizens in public employment. If such representation has reached the stage of adequacy, from that stage and onwards such reservation would be impermissible. Therefore to find out as to whether a particular backward class is adequately represented in service or not its total population may be considered irrespective of the fact whether it has come against unreserved seat or reserve seat but so long as a particular backward class is inadequately represented, then for the purpose of implementing the policy of reservation, the candidate who qualify against unreserved seat is not to be adjusted against reserved seats. We are supported in taking this view by a Constitution Bench judgment of the Apex Court in R.K. Sabharwal (Supra) where the Court held:

It is, therefore, incumbent on the State Government to reach a conclusion that the backward class classes for which the reservation is made is not adequately represented in (he State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the backward class then the percentage has to be followed strictly. The prescribe percentage cannot be varied or changed simply because some of the members of the backward. class have already been appointed promoted against the general seats.... The fact that considerable number of members of backward class have been appointed promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed.

direction of court to to find which class or caste is had adequate representation now

61. At this stage we direct the State Government of U.P. to observe the above principles while considering representation of respective classes in service and to find out whether the respective classes are adequately represented in service or not.

Supreme Court of India

7 Ashoka Kumar Thakur vs Union Of India And Ors on 10 April, 2008

Author: . Arijit Pasayat

Bench: Dr. Arijit Pasayat, C.K. Thakker

           CASE NO.:
Writ Petition (civil)  265 of 2006

PETITIONER:
Ashoka Kumar Thakur

RESPONDENT:
Union of India and Ors

DATE OF JUDGMENT: 10/04/2008

BENCH:
Dr. ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

reservation is for appeasement only no caste is excluded

9. One of the major challenges raised by the petitioners is based on the allegation that there is no acceptable data for fixing the percentage of other backward classes. This has been highlighted to show that there is no rational basis for fixing the percentage of reservation at 27% for the other backward classes. It is pointed out that the figures appear to have been culled out from some survey done more than seven decades back i.e. 1931 to be precise. Thereafter, there seems to be no definite data to know the actual percentage. It is pointed out that in Indra Sawhney No.1 (supra) this Court had laid considerable stress on having a Commission to identify and determine the criteria for determining the socially and educationally backward classes. Very little appears to have been done. It is surprising, it was contended, that there has been not even a single case of exclusion but on the other hand more than 250 new castes/sub-castes have been added. This shows that there is really no serious attempt to identify the other backward classes. On the other hand, there has been over-jealous anxiety to include more number of people so that they can get the benefits of reservations/quotas and this has been termed as "vote bank politics". It is highlighted that even when a serious matter relating to adoption of the Act was under consideration there was hardly any discussion and every political party was exhibiting its anxiety to get the Statute passed. Crocodile tears were shed to show lip sympathy for the backwardness of the people. In reality, the object was to give a wrong impression to the people that they were concerned about the backwardness of the people and they were the 'Messiahs' of the poor and the down trodden. In reality, in their hearts the ultimate object was to grab more votes. The lack of seriousness of the debate exhibits that the debate was nothing but a red-herring to divert attention from the sinister, politically motivated design masked by the "tearful" faces of the people masquerading as champions of the poor and down trodden. It is pointed out that contrary to what was being projected by the parties when the discussions were going on, in an impassioned speech by late Rajeev Gandhi who was the leader of opposition at an earlier point of time, the fallacies in adopting the Mandal Report were highlighted. It is surprising, it is submitted, that those very people who were the champions of anti-reservation and anti- quota as members of opposition, have done summersault and were saying just the opposite. It is pointed out that when one member Shri P.C. Alexandar exhibited real courage and highlighted the fallacies in the stand taken, his view appears to have been lightly brushed aside and the Statute hustled through. It is also submitted that the objectivity and sanctity of the report submitted in the Parliament commonly known as "Oversight Committee Report" has been lightly brushed aside. This only indicates that there was no serious debate about the consequences. The foresight of late Rajiv Gandhi in saying that the country will be divided on caste basis and that would lead to disaster has been prophetically proved to be correct and it is a reality. It is submitted that the enactment has created a sharp divide amongst the citizens of the country and it has not even an iota of good results flowing from it. On the contrary, the country will be divided sharply leading to social unrest and caste-wars. It is pointed out that in the recent past such caste wars have resulted in large scale loss of life and destruction of public properties.

 reservation will be op[erative only 10 year after this judjement

47. Learned counsel for the respondents have stated that the measures under challenge are nothing but a much needed leap towards attainment of the objectives. If it is true, the leap has to end somewhere. It cannot hang in the air as there is nothing immortal in this world; much less, a progressive measure purportedly intended to benefit the other backward classes. If after nearly six decades the objectives have not been achieved, necessarily the need for its continuance warrants deliberations. It is to be noted that some of the provisions were intended to be replaced after a decade but have continued. It indirectly shows that backwardness appears to have purportedly increased and not diminished. It would therefore be rational and logical to restrict operation of the impugned Statute for a period of 10 years from its inception.

24 Gujagujrat rane commission who said only economicaly backward are socially backwardrat

Government was forced to appoint a second commission known as Rane Commission. Rane Commission took note of the fact that there was an organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji case that "Social backwardness is on the ultimate analysis the result of poverty to a very large extent". The Commission noticed that some of the castes just for the sake of being considered as socially and educationally backward, have degraded themselves to such an extent that, they had no hesitation in attributing different types of vices to and associating other factors indicative of backwardness, with their castes. The Commission noted that the malaise requires to be remedied. The Commission therefore, devised a method for determining socially and educationally backward classes without reference to caste, beneficial to all sections of people irrespective of the caste to which they belong. The Commission came to an irrefutable conclusion that amongst certain castes and communities or class of people, only lower income groups amongst them are socially and educationally backward. We may recall here a trite observation in case of N.M. Thomas which reads as under (SCC pg.363 para 124): "A word of sociological caution. In the light of experience, here and elsewhere, the danger of 'reservation', it seems to me, is threefold. 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 overplayed 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."

some  caste snatch reservation

28. Reservation in one or other form has been there for decades. If a survey is made with reference to families in various castes considered to be socially and educationally backward, about the benefits of preferred treatment, it would unmistakably show that the benefits of reservations are snatched away by the top creamy layer of the backward castes. This has to be avoided at any cost.

exclusion of caste and taking care not to take forward caste

9. Inclusion of castes in the list of backward classes cannot be mechanical and cannot be done without adequate relevant data. Nor can it be done for extraneous reasons Likewise, periodic examination of a backward class could lead to its exclusion if it ceases to be socially backward or if it is adequately represented in the services. Once backward, always backward is not acceptable. In any case, the "creamy layer" has no place in the reservation system.
10. If forward classes are mechanically included in the list of backward classes or if the creamy layer among backward classes is not excluded, then the benefits of reservation will not reach the really backward among the backward classes. Most of the benefits will then be knocked away by the forward castes and the creamy layer. That will leave the truly backward, backward forever.

reservation by vested interest

60 The implementation of reservations for OBCs set off a furore of protests, including a few suicides, all over the country by those who are considered to be members of forward castes. Many felt that reservations for OBCs were not warranted for two reasons. First, this would make India a caste society by law; and, second, because many of those who are considered as OBCs are really quite powerful and dominant in rural India. The obvious reference was to Jats and Yadavs. A majority of social anthropologists wrote against reservations for OBCs primarily on these grounds. Andre Beteille's criticism of the Mandal Commission recommendations was widely commented upon. He distinguishes between reservations for OBCs following Mandal recommendations and the reservations that were already granted in the Constitution for Scheduled Castes and Tribes. While provisions for Scheduled Castes and Tribes were with the intention of reaching towards greater equality, reservations for OBCs were really to bring about a balance of power on the calculus of caste. The kind of deprivations that ex-untouchables (Scheduled Castes) and Adivasis (Scheduled Tribes) encountered for centuries can in no way be compared to the traditional condition of the OBCs. Besides, many OBCs are quite powerful in rural India, both economically and politically. In fact, the Mandal Commission recommendations were actually giving in to a powerful rural lobby that did not really care for equality of opportunities as much as it did for equality of results.

xx xx xx There are two considerations that escape many uncritical applications of affirmative action. First, affirmative action must resist any tendency whereby its beneficiaries become vested interests. And secondly, it must eventually seek its own dissolution. While the second may be far away, it is by paying attention to the first issue that it is possible for affirmative action to eventually annihilate itself. Paradoxical as it may appear, but when this happens it is then that positive discrimination has finally triumphed.

Affirmative action fails to reach this final destination when it is inconsistently applied, or when its beneficiaries form vested interest bloc within a democratic electoral system on the basis of ascriptive identity alone. The latter poses a stronger practical and intellectual challenge to the policy of affirmative action. As long as historical disprivileges and economic backwardness go together and the relationship between them is statistically very strong, colour or caste membership can act as ready reckoners for targeting beneficiaries of affirmative action. This, however, does not mean that membership in these communities should advantage individuals in perpetuity once they are able to develop the minimum set of resemblances. Therefore, as and when those who belong to targeted categories for affirmative action acquire socially useful talents and attributes, they should contribute them to the society as a whole, and not employ them only for sectional advantages.

observation of indira sahney which directed reservation should be avoided other means should be done

in paragraph of 64 of this judjment

319. Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes and the Scheduled Tribes and other classes of persons in comparable positions. In all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects.

Xx xx xx 323 (16). In the final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation as aforesaid, but by free medical aid, free elementary education, scholarships for higher education and other financial support, free housing, self- employment and settlement schemes, effective implementation of land reforms, strict and impartial operation of the law-enforcing machinery, industrialization, construction of roads, bridges, culverts, canals, markets, introduction of transport, free supply of water, electricity and other ameliorative measures particularly in areas densely populated by backward classes of citizens.

(underlined for emphasis)

if 50 percent seats of open category is bagged by reserve caste candidates then reservation should be reviewed

120. Further, in Minor A. Peeriakaruppan, Sobha Joseph v. State of Tamil Nadu and Ors. (1971 (1) SCC 38) at para 29 it was observed as follows:

"Rajendran's case (1968 (2) SCR 786) is an authority for the proposition that the classification of backward classes on the basis of castes is within the purview of Article 15(4) if those castes are shown to be socially and educationally backward. No further material has been placed before us to show that the reservation for backward classes with which we are herein concerned is not in accordance with Article 15(4). There is no gainsaying the fact the there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts of life. Hence we are unable to uphold the contention that impugned reservation is not in accordance with Article 15(4). But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be allowed to become a vested interest. The fact that candidates of backward classes have secured about 50% of the seats in the general pool does show that the time has come for a de novo comprehensive examination of the question. It must be remembered that the Government's decision in this regard is open to judicial review."

criteria of educational backwardness

124. One of the major issues highlighted by Mr. P.P. Rao was that in several cases the matriculation standard of education was considered to be the measure for measuring backwardness. It is, therefore, submitted that when at least half of the persons belonging to a particular caste have reached the matriculation level of education, they cannot be considered to be educationally backward any longer. It is therefore submitted that if that be taken as a yardstick for measuring backwardness then the reservation of seats for technical education or in higher studies cannot be sustained. It has also been highlighted that the shift of emphasis from primary and basic education to higher education is against the constitutional mandate making education compulsory in terms of Article 21-A of the Constitution. It is not correct to contend that in fixing the priorities the Government is the best Judge as contended by the respondents. It may be correct in matters relating to simple policy decisions but when the constitutional mandate is under consideration the underlying object has also to be kept in view. In this context reference is made to Article 46 of the Constitution. It is in that background pointed out by learned counsel for the petitioners that what cannot be lost sight of is the fact that is the foundation for basic, elementary and primary education. The educational backwardness can be obliterated when at least half of the persons belonging to a particular caste come up to a matriculation level.

125. There is substance in this plea. It is not merely the existence of schemes but the effective implementation of the schemes that is important. It is to be noted that financial constraint cannot be a ground to deny fundamental rights and the provision for the schemes and the utilization of the funds are also relevant factors. It appears that better coordination between the funds provider and the utiliser is necessary. It is suggested that putting stress on cut off limit by shifting from matriculation to Class XII level education as a benchmark of gauging educational backwardness will be a step in the right direction. Though as rightly contended by Mr. P.P. Rao that in several decisions, for example, M.R. Balaji's case (supra), Balram's case (supra) and Kumari K.S. Jayasree's case (supra) the secondary education was taken to be the benchmark, ground reality cannot be lost sight of that with the limited availability of jobs and the spiraling increase in population, secondary or matriculation examination can no longer be considered to be an appropriate bench mark. It has to be at the most graduation. But the question arises whether technical education can be included while considering educational backwardness. A delicate balancing has to be done in this regard. While technical education cannot be the sole criteria for gauging educational backwardness it definitely will form part of 50 per cent norms fixed by this Court. Slightly variable plus or minus would be the appropriate standard to gauge educational backwardness

RESERVATIN IN MD MS

[JUDJEMENT NOT CLEAR ]

136. Thus, the interest of no person, class or region can be higher than that of the nation. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of the constitutional creed. It is, therefore, the best and most meritorious students that must be selected for admission to technical institutions and medical colleges and no citizen can be regarded as outsider in the constitutional set-up without serious detriment to the `unity and integrity' of the nation. The Supreme Court has laid down that so far as admissions to post graduate course such as MS, MD and the like are concerned, it would be imminently desirable not to provide for any reservation based on residence or institutional preference. However, a certain percentage of seats are allowed to be reserved on the ground of institutional preference. But even in this regard, so far as super specialties such as neurosurgery and cardiology are concerned there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on all-India basis. Further, classification made on the basis of super-specialties may serve the interests of the nation better, though interests of individual states may to a small extent, be affected.

resrvation not at phd MD

137. The need of a region or institution cannot prevail at the highest scale of specialty where the best skill or talent must be hand-picked by selecting them according to capability. At the level of Ph.D., M.D. or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations we have expanded upon as important, lose their potency

periodic review after 5 year

138. The inevitable conclusion is that the impugned Statute can be operative only after excluding the creamy layer from identifiable OBCs. There has to be periodic review of the classes who can be covered by the Statute. The periodicity should be five years. To strike constitutional balance there is need for making provision for suitable percentage for socially and economically backward classes in the 27% fixed. I

SUMMARY OF JUDJEMENT

139. To sum up, the conclusions are as follows: (1) For implementation of the impugned Statute creamy layer must be excluded.

(2) There must be periodic review as to the desirability of continuing operation of the Statute. This shall be done once in every five years.

(3) The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs). By way of illustration it can be indicated that five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general categories of students. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories.

(4) So far as determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories.

(5) There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney No.1 has to work more effectively and not merely decide applications for inclusion or exclusion of castes. While determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness.

(6) To strike the constitutional balance it is necessary and desirable to ear-mark certain percentage of seats out of permissible limit of 27% for socially and economically backward classes.

caste is not class only [ vvimp]

(7) In the Constitution for the purposes of both Articles 15 and 16, caste is not synonyms with class and this is clear from the paragraphs 782 and 783 of Indra Sawhney No.1. However, when creamy layer is excluded from the caste, the same becomes an identifiable class for the purpose of Articles 15 and 16.

(8) Stress has to be on primary and secondary education so that proper foundation for higher education can be effectively laid. (9) So far as the constitutional amendments are concerned:

(i) Articles 16(1) and 16(4) have to be harmoniously construed. The one is not an exception to the other.

(ii) Articles 15(4) and 15(5) operate in different fields. Article 15(5) does not render Article 15(4) inactive or inoperative.

(10) While interpreting the constitutional provisions, foreign decisions do not have great determinative value. They may provide materials for deciding the question regarding constitutionality. In that sense, the strict scrutiny test is not applicable and indepth scrutiny has to be made to decide the constitutionality or otherwise, of a statute. (11) If material is shown to the Central Government that the Institution deserves to be included in the Schedule, the Central Government must take an appropriate decision on the basis of materials placed and on examining the concerned issues as to whether Institution deserves to be included in the Schedule.


(12) Challenge relating to private un-aided educational institutions has not been examined because no such institution has laid any challenge. It is to be noted that the petitioners have made submissions in the background of Article 19(6) of the Constitution. Since none of the affected institutions have made any challenge we do not propose to consider it necessary to express any opinion or decide on the question.

140. In view of the above-said conclusions, the writ petitions and the Contempt Petition (Civil) No.112/2007 in W.P. (C) No.265/2006 are disposed of.

AFTER TAKING AGE RELAXATION cant take seat in open merit

APPELLANT(S)/PETITIONERS IN WPC:
--------------------------------
     8

 DEEPA E.V. AGED 31 YEARS  WA.No. 827 of 2015 ()  IN WP(C).14500/20 THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN

                                  &
              THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

        MONDAY, THE 20TH DAY OF JULY 2015/29TH ASHADHA, 193712

final paragraphe of judjement

In view of the foregoing discussions, we are of the view that no error has been committed by the learned Single Judge in dismissing the Writ Petition filed by the appellant. The appellant was clearly not entitled to be considered against the general vacancy, she having appeared in selection after taking relaxation in upper age limit. We do not find any substance in the submissions made by learned counsel for the appellant. The Writ Appeal is dismissed.

judjment which allowed neet obc aiq reservation described below

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No. 961 of 2021
Neil Aurelio Nunes and Ors. … Petitioners
Versus
Union of India and Ors. … Respondents
With
Writ Petition (C) No 967 of 2021
With
Writ Petition (C) No 1002 of 2021
With
Writ Petition (C) No 1021 of 2021
And With
J U D G M E N T
  9    Dr Dhananjaya Y Chandrachud, JWrit Petition (C) No 1105 of 2021

submission of anti reservation councellor he had submitted very important point and some judjment of supreme court regarding mbbs

 part c in judjement

see a important point that in pradeep jain case court held that reservation in medical should be minimum

see all point below

 C. Submissions of Counsel
13 Mr Shyam Divan, learned Senior Counsel appearing for the petitioners
argued that there must be no reservation for the OBC community in the AIQ
quota. In pursuance of this argument, he made the following submissions:
(i) In Pradeep Jain v. Union of India22
, this Court raised serious
concerns about the reservation in PG seats. Once a person is qualified
as a doctor, he cannot be treated as belonging to a backward class
anymore. Therefore, admission in PG seats must be purely based on
merit, without any reservation;
(ii) At the level of PG and super-speciality23, doctors are required to
possess high degree of skill and expert knowledge in specialised
areas. This skill cannot be acquired by everyone. It would be
detrimental to national interest to have reservations at this stage.
Opportunities that are available for such training are minimal and
therefore, it should only be available to the most meritorious;
(iii) This Court in Pradeep Jain (supra) created a right against reservation
in the AIQ seats. The judgment of this Court in Abhay Nath v.
University of Delhi24
 allowing reservations for SC and ST categories
in the AIQ is per incuriam in light of the judgments in Pradeep Jain
(supra), Union of India v. R. Rajeshwaran25 and Union of India v.
Jayakumar26;

(iv) The AIQ scheme was conceived by this Court in Pradeep Jain (supra)
and developed in Dinesh Kumar (I) (supra) and Dinesh Kumar (II)
(supra). Therefore, only this Court can alter the reservation scheme in
the AIQ seats. The Union Government ought to have made an
application to this Court apprising it of its intention to provide
reservation for OBC and EWS categories in AIQ, and this Court could
decide to allow or deny permission;
(v) It has been held by this Court in Dr Preeti Srivastava v. State of
Madhya Pradesh27 and various other cases that reservation in PG
courses must be minimum;
(vi) Even if reservation for the OBC category in the AIQ seats is
constitutionally valid, it ought not to have been introduced for the
academic year of 2021-22 since the notice on reservation for the OBC
category was introduced after the registration window was closed. It is
a settled principle that the rules of the game cannot be changed after
the game has begun;
(vii) The candidates had registered for the exam against a certain seat
matrix, having knowledge of the total number of seats for which they
could compete. The impugned notification alters the seat matrix,
changing the rules of the game after the game had begun;
(viii) The phrase ‗as may be applicable‘ in clause 11.1 of the information
bulletin must be read to mean the reservation applicable as on the dateof registration. The rules of the game were set when the registration
closed; and
(ix) In specific branches of specialisation such as MD Radiology, MD
Dermatology, MD Gynaecology, MS Psychiatry, MD (Chest), MD
Preventive and Social Medicine, MD Forensic Medicine, MS
Microbiology, MS Pathology, MD Biochemistry, MS Anatomy, MS
Orthopedics, and MS ENT, no SS course is offered in India. Therefore,
such courses are the end of the branch and there must be no
reservation in such courses since they are equivalent to SS courses
(Dr. Preeti Srivastava (supra)).

D. Analysis
D. 1 The Merit of Reservation

constitunal assembly member who opposed reservatioN

Shri Damodar Swarup Seth argued that reservation results in the ―very negation
of efficiency and good Government‖ and appointments should be ―made on merit
and qualification‖. However, the Constituent Assembly rejected these claims and
adopted clause (3) of draft Article 10. Although there was debate on the meaning
of ―backward classes‖, it was felt that there must be a provision that enables entry
of those communities into administration since they were deprived of such access
in the past and formal equality of opportunity would not suffice.
31 However, the
view that merit or efficiency in service is distinct from concerns of advancement of
backward classes persisted for some members

Shri k m munshi view

―What we want to secure by this clause [Article 10] are two
things. In the fundamental right in the first clause we want to
achieve the highest efficiency in the services of the State--
highest efficiency which would enable the services to function
effectively and promptly. At the same time, in view of the
conditions in our country prevailing in several provinces, we
want to see that backward classes, classes who are really
backward, should be given scope in the State services; for itis realised that State services give a status and an
opportunity to serve the country, and this opportunity should
be extended to every community, even among the backward
people.‖

court wrong interpretatation that reserved category students are not studying in well scholl only upeer caste are studyin in good schools

[basicaly court gave judjement in favour of obc due to this wrong  fact although jjudje  must know that obc sc students are also reading in good school but perhaps he feared due to high population of obc and victim card]

see his observation below

24 The crux of the above discussion is that the binary of merit and reservation
has now become superfluous once this Court has recognized the principle of
substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1)
and 16(1). An open competitive exam may ensure formal equality where
everyone has an equal opportunity to participate. However, widespread
inequalities in the availability of and access to educational facilities will result in
the deprivation of certain classes of people who would be unable to effectively
compete in such a system. Special provisions (like reservation) enable such
disadvantaged classes to overcome the barriers they face in effectively
competing with forward classes and thus ensuring substantive equality. The
privileges that accrue to forward classes are not limited to having access to
quality schooling and access to tutorials and coaching centres to prepare for a
competitive examination but also includes their social networks and cultural
capital (communication skills, accent, books or academic accomplishments) that
they inherit from their family.
42 The cultural capital ensures that a child is trained
unconsciously by the familial environment to take up higher education or high
posts commensurate with their family‘s standing. This works to the disadvantage
of individuals who are first-generation learners and come from communities
whose traditional occupations do not result in the transmission of necessary skills
required to perform well in open examination. They have to put in surplus effort tcompete with their peers from the forward communities.43 On the other hand,
social networks (based on community linkages) become useful when individuals
seek guidance and advise on how to prepare for examination and advance in
their career even if their immediate family does not have the necessary exposure.
Thus, a combination of family habitus, community linkages and inherited skills
work to the advantage of individuals belonging to certain classes, which is then
classified as ―merit‖ reproducing and reaffirming social hierarchies. In BK
Pavithra v. Union of India44
, a two-judge Bench of this Court, of which one of us
was a part (Justice DY Chandrachud) had observed how apparently neutral
systems of examination perpetuate social inequalities. This Court observed

―134. It is well settled that existing inequalities in society can
lead to a seemingly ―neutral‖ system discriminating in favour
of privileged candidates. As Marc Galanter notes, three broad
kinds of resources are necessary to produce the results in
competitive exams that qualify as indicators of ―merit‖. These
are:
―… (a) economic resources (for prior education, training,
materials, freedom from work, etc.); (b) social and cultural
resources (networks of contacts, confidence, guidance and
advice, information, etc.); and (c) intrinsic ability and hard
work…‖ [ Galanter M., Competing Equalities : Law and the
Backward Classes in India, (Oxford University Press, New
Delhi 1984), cited by Deshpande S., Inclusion versus
excellence : Caste and the framing of fair access in Indian
higher education, 40 : 1 South African Review of Sociology
127-147.]
135. The first two criteria are evidently not the products of a
candidate's own efforts but rather the structural conditions
into which they are borne. By the addition of upliftment of SCs
and STs in the moral compass of merit in government
appointments and promotions, the Constitution mitigates the
risk that the lack of the first two criteria will perpetuate the
structural inequalities existing in society

 obervation of court that medical seat should be filled by merit have been Described in this judjement

Jagdish Saran v.

Union of India

PARAGRAPHE  46 OF THIS JUDJEMENT REFERS JUDJEMENT GIVEN IN JAGDISH SARAN CASE

―10. The philosophy and pragmatism of universal
excellence through equality of opportunity for education
and advancement across the nation is part of our founding
faith and constitutional creed. The effort must, therefore,
always be to select the best and most meritorious students
for admission to technical institutions and medical colleges
by providing equal opportunity to all citizens in the country
and no citizen can legitimately, without serious detriment to
the unity and integrity of the nation, be regarded as an
outsider in our constitutional set-up. Moreover, it would be
against national interest to admit in medical colleges or
other institutions giving instruction in specialities, less
meritorious students when more meritorious students are
available, simply because the former are permanent
residents or residents for a certain number of years in the
State while the latter are not, though both categories are
citizens of India. Exclusion of more meritorious students on
the ground that they are not resident within the State would
be likely to promote substandard candidates and bring
about fall in medical competence, injurious in the long run
to the very region. ―It is no blesaelection of
candidates for admission to the medical colleges must,
therefore, be merit. The object of any rules which may be
made for regulating admissions to the medical colleges
must be to secure the best and most meritorious student

 sad after citing this JUDJEMENT later he said that it will not apply

to obc

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