# George Orihes (P.) Ltd v. State of Madras

- **Citation:** [1962] 2 S.C.R. 586
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 341of1960
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. W Anchoo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/george-orihes-p-ltd-v-state-of-madras-2276
- **Pages:** 33

## Headnote

State Service-Power of Stale to reserve appointments and
posts for backward classes-Scope of such reservation-"Appointments or posts", Meaning of-Posts. if include selection posts in
tlze services-Constitution of India, Arts. 16(4), 335.
This appeal was directed against an order of the Madras
High Court issuing a writ of mandamus at the instance of the
respondent restraining the appellants from giving effect to two
circulars issued by the Railway Board reserving selection posts
in Class Ill of the Railway service in favour of the members of
the Scheduled Castes and Scheduled Tribes with retrospective
operation. It was urged on behalf of tbe respondent tl1at the
Constitution made a clear distinction between backward classes
on the one hand and Scheduled Castes and Scheduled Tribes on
the other, and th.at Art. 16(4) applied only to reservation of
posts at the stage of appointment and not to posts for promotions after appointment and, therefore, the circulars which fell
2 S.C.R. SUPREME COURT REPORTS
587
outside the scope of Art. 16(4) and contravened Art. 16(1). This
r96r
was denied by the appellant who pleaded the contrary. The
first circular, inter alia, prescribed a quota of reservation for General Man.ager,
selection posts and gave retrospective effect to it and the second S"uthern Railway
gave guidance and directions as to how the first should be imv.
p!emented.
A subsequent clarification issued by the Board
Rangachari
stated that no reversion of staff already promoted to selection
posts was contemplated. The High Court held that the expression "backward classes" in Art. 16(4) included members of the
Scheduled Castes and Scheduled Tribes, but that the word
'appointments' did not denote promotion and the word 'posts'
meant posts outside the civil services and thus the impugned
circulars were not covered by Art. 16(4) and wen' ultra vires.
Held, (per Gajendragadkar, Sarkar, and Das Gupta, JJ.),
that the impugned circulars were well within the ambit of Art.
16(4) of the Constitution and the appeal must succeed.
Articles 16(1) and 16(2) of the Constitution are intended
to give effect to Art. 14 and Art. 15(1) of the Constitution and
these Articles form parts of the same constitutional code of
guarantees and supplement each other. Article 16(1) should,
therefore, be construed in a broad and general, and not pedantic and technical way. So construed, "matters relating to employment" cannot mean merely matters prior to the act of
appointment nor can 'appointment to any office' mean merely
the initial appointment but must include all matters relating to
employment, whether prior or subsequent to the employment,
that are either incidental to such employment or form part of
its terms and conditions and also include promotion to a
selec~
lion post.
Although Art. 16(4), which in substance is an exception to
Arts. 16(1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it overlook the extreme
solicitude shown by the Constitution for the advancement of
socially and educationally backward classes of citizens.
The scope of Art. 16(4), though not as extensive as that of
Art. 16(1) and (2),-and some of the matters relatinr; to employment such as salary, increment, gratuity, pension and the age
of superannuation, must fall outside its non-obstantc clause,
there can be no doubt that it must include appointments and
posts in the services.
To put a narrower construction on the
word 'posts' would be to defeat the object and the underlying
policy. Article 16(4). therefore, authorises the state to provide
for the reservation of appointments as well as selection posts.
It is not correct to say that the legislative history of the
word 'posts' shows that it bas invariably been used to mean
posts outside the services. Neither the relevant provisions
of the Constitution nor those of the Constitution Act of 1935
justify such a conclusion. lt is the context in which that word
is used that must determine its meaning.
58

## Text

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1961
George Orihes
(P.) Ltd.
v.
State of Madras
S. f(, Das j.
196c
April z8.
586
SUPREME COURT REPORTS
[1962]
he may turn it over again and again till he finally
hands it to Government.
There is thus nothing anoma.lous in the law treating it as part of the amount
on which tax must be paid by him. This conception
of a turnover is not new. It is found in England and
America and there is no reason to think that when
the legislatures in India defined 'turnover' to include
tax also, they were striking out into something quite
unknown aud unheard of before.
The only question which has been raised in these
appeals is regarding the validity of the impugned
Act. That question having been decided against the
appellants, the appeals fail and are dismissed with
costs. One hearing foe.
Appeals dismissed.
THE GENERAL MANAGER, SOUTHERN
RAILWAY
v.
RANG A CHARI
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. W ANCHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
State Service-Power of Stale to reserve appointments and
posts for backward classes-Scope of such reservation-"Appointments or posts", Meaning of-Posts. if include selection posts in
tlze services-Constitution of India, Arts. 16(4), 335.
This appeal was directed against an order of the Madras
High Court issuing a writ of mandamus at the instance of the
respondent restraining the appellants from giving effect to two
circulars issued by the Railway Board reserving selection posts
in Class Ill of the Railway service in favour of the members of
the Scheduled Castes and Scheduled Tribes with retrospective
operation. It was urged on behalf of tbe respondent tl1at the
Constitution made a clear distinction between backward classes
on the one hand and Scheduled Castes and Scheduled Tribes on
the other, and th.at Art. 16(4) applied only to reservation of
posts at the stage of appointment and not to posts for promotions after appointment and, therefore, the circulars which fell
2 S.C.R. SUPREME COURT REPORTS
587
outside the scope of Art. 16(4) and contravened Art. 16(1). This
r96r
was denied by the appellant who pleaded the contrary. The
first circular, inter alia, prescribed a quota of reservation for General Man.ager,
selection posts and gave retrospective effect to it and the second S"uthern Railway
gave guidance and directions as to how the first should be imv.
p!emented.
A subsequent clarification issued by the Board
Rangachari
stated that no reversion of staff already promoted to selection
posts was contemplated. The High Court held that the expression "backward classes" in Art. 16(4) included members of the
Scheduled Castes and Scheduled Tribes, but that the word
'appointments' did not denote promotion and the word 'posts'
meant posts outside the civil services and thus the impugned
circulars were not covered by Art. 16(4) and wen' ultra vires.
Held, (per Gajendragadkar, Sarkar, and Das Gupta, JJ.),
that the impugned circulars were well within the ambit of Art.
16(4) of the Constitution and the appeal must succeed.
Articles 16(1) and 16(2) of the Constitution are intended
to give effect to Art. 14 and Art. 15(1) of the Constitution and
these Articles form parts of the same constitutional code of
guarantees and supplement each other. Article 16(1) should,
therefore, be construed in a broad and general, and not pedantic and technical way. So construed, "matters relating to employment" cannot mean merely matters prior to the act of
appointment nor can 'appointment to any office' mean merely
the initial appointment but must include all matters relating to
employment, whether prior or subsequent to the employment,
that are either incidental to such employment or form part of
its terms and conditions and also include promotion to a
selec~
lion post.
Although Art. 16(4), which in substance is an exception to
Arts. 16(1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it overlook the extreme
solicitude shown by the Constitution for the advancement of
socially and educationally backward classes of citizens.
The scope of Art. 16(4), though not as extensive as that of
Art. 16(1) and (2),-and some of the matters relatinr; to employment such as salary, increment, gratuity, pension and the age
of superannuation, must fall outside its non-obstantc clause,
there can be no doubt that it must include appointments and
posts in the services.
To put a narrower construction on the
word 'posts' would be to defeat the object and the underlying
policy. Article 16(4). therefore, authorises the state to provide
for the reservation of appointments as well as selection posts.
It is not correct to say that the legislative history of the
word 'posts' shows that it bas invariably been used to mean
posts outside the services. Neither the relevant provisions
of the Constitution nor those of the Constitution Act of 1935
justify such a conclusion. lt is the context in which that word
is used that must determine its meaning.
588
SUPREME COURT REPORTS
[1962]
r96 r
But in exercising its pow< rs under the Article it should be
-
the duty of the State to harmonise the claims of the backward
General Man.ager, classes and those of the other employees consistently with the
Southern Railway maintenance of an efficient administration as contemplated by
v.
Art. 335 of the Constitution.
Rangackari
Per Wanchoo, J.-Article 16(4) which is in the nature of
an exception or proviso to Art. 16(1) cannot be allowed to
nullify equality of opportunity guaranteed to all citizens by
that Article.
Article i6(4) implies, as borne out by Art. 335, that the
reservation of appointments or posts for backward classes
cannot cover all or even a majority of appointments and posts
and the words "not adequately represented", which provide
the key to the interpretation of Art. 16(4). do not convey any
idea of quality but mean sufficiency of numerical representation in a particular service, taken not by its grades, but as a
whole.
Appointments must, therefore, mean initial appointments,
and reservation of appointments, the reservation of a percentage
of initial appointments. Posts refer to the total number of posts
in the service and reservation of posts means reservation of a
certain percentage of posts out of total posts in the service.
Per Ayyangar, ].-Article 16(4), concerned as it is with the
right to State employment, has to be read and construed in the
light of other provisions relating to services contained in Part
XIV of the Constitution and, particularly, Art. 335. So construed, the word "post" in that Article must mean posts not in
the services but posts outside the services.
Assuming that was not so, and the word 'posts' meant posts
in the services, the inadequacy of representation sought to be
redressed by Art. 16(4) means quantitative deficiency of representation in a particular service as a whole and not in its grades
taken separately, nor in respect of each single post in the service.
Read in the light of Art. 335, Art. 16(4) can only refer
to appointments to the services at the initial stage and not at
different stages after the appointment has taken place.
Article 16(4) contemplates prospective reservation of
appointments and posts and does not authorise retrospective
reservation.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
341of1960.
Appeal from the judgment and order dated March
3, 1960, of the Madras High Court, in W. P. No. 1051
of 1959.
·
>
N. 0. Chatterjee, B. R. L. Iyengar and D. Gupta, for
the appellants.
2 S.O.R. SUPREME COURT REPORTS
589
S. Mohan Kumaramangalam, M. K. Ramamurthy,
196 1
R. K. Garg and T. S. Venkatamman, for the respon.
-·-
d
t
d I
.
Ge11eral Manager,
en an t lC Intervener.
Southern Railway
1961. April, 28. The Judgment of Gajendragadkar,
v.
Sarkar and Da.s Gupta, JJ., was delivered by GajenRangachari
dragadkar, J. Wanchoo and Ayyangar, JJ., delivered separate Judgments.
GAJENDRAGADKAR, J.-On a writ petition filed by Gajendragadkar ].
the respondent K. Raugachari in the Madras High
Court under Art. 226 of the Constitution a writ of
mandamus has been issued by the said High Court
restraining the appellants, the General Manager,
Southern Railway, and the Personnel Officer (Reser.
vation}, Southern Railway, from giving effect to the
directions of the Rail.way Board ordering reservation
of selection posts in Class III of the railway service in
favour of the members of the Scheduled Castes and
Scheduled Tribes and in particular the reservation of
selection posts among the Court Inspectors in Class
III one of which is held by the respondent. After
the writ was thus issued the appellant applied for and
obtained a certificate from the said High Court under
Art. 132(1) of the Constitution as it involved a sub.
stantial question of law, namely, the scope of Art. 16(4)
of the Constitution. It is with this certificate that
the appeal has been brought to this court, and the
only question which it raises for our decision is about
the scope and effect of Art. 16( 4).
This question is of
considerable public importance though the dispute
raised by it lies within a very narrow compass.
In the railway services there are four grades of
Court Inspectors included in Class III, (1) Court
Inspectors on Rs. 200-300, (2) Court Inspectors on
Rs. 260-350, (3) Chief Court Inspectors on Rs. 300400, and (4) Chief Court Inspectors on Rs. 360-500.
It appears that Inspectors of the first category are
recruited partly directly and partly by selection from
other categories of railway services. To the remaining
three grades appointments are made by promotion
and they are classified as selection posts. Selection to
75
590
SUPREME COURT REPORTS
[1962]
'96'
these grades is made by a committee of officers constiG'"""'-;••• " tuted for the purpose. In respect of non-selection
soulh•m Rail~.; posts seniority in service is the qualification but in
v.
regard to selection posts seniority is only one of the
Ra>1gacha>i
qualifications for promotion to such posts; suitability
-
to promotion is considered on other relevant grounds
Gajendragadkar ] • as well.
The respondent was initially recruited to the grade
of Rs. 200-300 and was confirmed in that grade on
November 21, 1956.
Between May 23, 1958, and
August 22, 1958 as well as between December 8, 1958
and Dccen.ber 31, 1958, he was promoted to officiate
in the grade of Rs. 260-350. He got a chance of
another similar promotion to officiate on April 8, 1959.
These promotions were in the nature of ad hoc promotions and were consequently of temporary duration.
Later, on June 16, 1959, he was interviewell by the
selection committee and his promotion to the said
higher grade was regularised and an order was passed
in that behalf on June 30, HJ59.
By this order he
was allowed to continue to officiate in tho said grade.
Since then he has been officiating in that grade.
On April 27, 1959, and on June 12, 1959, the two
impugned circulars were issued by the Railway Board
and addressed to the General Managers.
As a result
of the said circulars the selection committee decided to
consider the case of Hiriyanna for promotion to the
grade of Rs. 260-350, Hiriyanna being a member of
the Scheduled Ca.stes.
The record shows that at the
time when the respondent was interviewed and select.
ed he was placed as Number One by the select.ion
committee and one Parthasarathy was placed as
Number Two. Ou the said occasion Hiriyanna was
not selected and put in the panel. The seiection
committee desired to examine the case of Hiriyanua
in order to decide whether he was suitable for promotion to higher grade in the light of the two directives
issued by the H.ail way Board and so a meeting of the
selection committee was called on November 18, 1959.
The respondent thought that the proceedings of the
said proposed meeting may result prejudicially to his
interest and so on November 16, 1959, he tiled the
...
2 S.C.R. SUPREME COURT REPORTS
591
present Writ Petition No. 1051 of 1959. In this
1961
Petition he applied for a writ in the nature of manda- G
1
d 1
d f
.
.
. .
t'
t .
enera
Manager,
mus an a so praye
or an mtenm lllJUllC 10n res ram- SouthJTn Railway
ing the holding of the meeting of the selection comv.
mittee proposed to be held on November 18, 1959. An
Rangachari
interim injunction as prayed for by the respondent
.
-
was issued by the High Court and in consequence the Ga1endragadkar f.
proposed meeting has not been held.
According to the respondent the two directives
issued by the appellants under the two impugned
circulars were ultra vires, illegal, inoperative and unconstitutional in that they were not justified by
Art. 16(4). He alleged that a reading of Arts. 16, 335,
338 and 339 would show that the Constitution draws
a clear distinction between Scheduled Castes or Tribes
on the one hand and backward classes on the other
and so it was urged by him that the impugned circulars were illegal. The petition further urged that the
safeguard provided by Art. 16(4) applied only to
reservation of posts at the stage of appointment and
not for reservation of posts for promotion after
appointment and so the circulars were outside the
provisions of Art. 16(4) and as such contravened
Art. 16(1). The petition expressed the apprehension
that if the circulars are implemented the respondent
would be reverted and that would cause great loss
both financially and in status to him. It is on these
allegations that the respondent prayed for the issue of
a writ in the nature of mandamus directing the
appellants to forbear from implementing the two
impugned circulars.
These pleas were denied by the appellants. It was
alleged by them that the expression "backward class"
appearing in Art. 16( 4) would include not only the
Scheduled Castes and Scheduled Tribes but all backward communities who could not stand on their own
legs. Therefore the reservations made by the impugned circulars were fully covered by Art. 16(4). The
appellants' case was that the safeguards provided by
Art. 16(4) would extend not only to initial appointment but also to promotions made by selection and
that clearly brought the impugned circulars within the
592
SUPREME COURT REPORTS
[1962]
'96'
protection of Art. 16(4). The appellants categorically
G
l M
denied that the respondent would suffer any loss or
enera
anager,
• d'
b
h
d
southern Railway pre JU 10e
ccause persons w o ha
already been
v.
promoted on the basis of earlier regular selections
Rangaohari
were not intended to be reverted as a consequence of
. --
the implementation of the impugned circulars. AccordGa1endragadkar J. ing to the appellants the petition filed by the respondent was permature and on the merits no case had
been made out for the issue of a writ of mandamu~.
At this stage it would be material to set out the
relevant portions of the impugned circulars. The
circular issued by the Railway Board on April 27,
1959, contained, inter alia, the following directions.
"There are different grades of Class III posts: Some
of these posts are 'non-selection' posts, promotion to
which is made on 'seniority-cum-suitability' basis,
while, in the case of others which are 'Selection' posts,
promotion is made by a positive act of selection. There
will be no quota for Scheduled Castes and Scheduled
Tribes candidates in respect of promotion to 'nonselection' posts.
For promotion to 'Selection' posts, however, there
will be the prescribed quota of reservation. The field
of consideration in the case of Scheduled Castes and
Scheduled Tribes ca.ndidates should be four times the
number of posts reserve<l without any condition of
qualifying period of service in their case, subject to
the condition that consideration should not normally
extend to such staff beyond two grades immediately
below the grade for which selection is held."
There is one more direction given by the said circular which must be read. The decision of the Railway
Board providing reservation for Scheduled Castes and
Scheduled Tribes in promotion vacancies as laid
down above comes into effect from January 4, 1957.
It will, therefore, be necessary to calculate the number of posts that should have been made available to
the Scheduled Castes and Scheduled Tribes during
1957 and 1958 and these should be carried forward to
be filled in 1959. Thus it would be noticed that the
effect of this circular was to prescribe a quota of
reservation for selection posts and to give effect to
this reservation retrospectively from January 4,
2 S.C.R. SUPREME COURT REPORTS
593
1957. In a sense it is this retrospective operation of
r96i
the circular which appears to be the main cause ofG
1-M-
.
enera
anager.
the present dispute.
Southern Railway
On June 12, 1959, another circular was issued giving
v.
guidance and directions as to how the earlier circular
Ranga,ha•i
should be implemented; This circular directed, inter
. ---·
alia, by paragraphs 2(ii) and 2(iii) as follows:
Ga1endragadkar f.
"2( ii). The Special Rosters in force for S. C. &
S. T. in direct recruitment categories are to be
followed to work out the number of posts to be
reserved for S. C. & S. T. in promotions made in
Selection Grades and for promotion from Class IV
to Class III.
2(iii). As the Board's orders have retrospective
effect from 4th January, 1957, it is necessary that
the promotions made in each selection grade on
your Division/Office from 4th January, 1957, are
reviewed and the number of posts due to S. C. &
S. T. worked out applying the Roster referred to in
item (ii) above."
It appears certain doubts were raised in regard to
the manner in which the reservation circulars had to
be implemented and so on Septem.ber 11, 1959, the
Railway Board issued a letter clarifying the doubts
raised. One of the points thus clarified was whether the
instructions issued in the Board's letter contemplated
.reversion of staff already promoted to selection posts
after January 4, 1957, to accommodate S. Cs. and
S. Ts. (which stand for Scheduled Castes and Scheduled Tribes) according to percentage basis. The
clarification issued was that the said orders did not
contemplate such reversion. It was, however, desired
that the shortfalls should be made good against the
existing as well as the future vacancies. It is by
virtue of this clarification that the respondent was
assured by the appellants during the proceedings before the High Court that he need not entertain any
apprehension of reversion as a result of the implementation of the impugned circulars.
We would now briefly summarise the findings and
conclusions of the High Court on the points raised
before it by the content.ions of the parties in the
594
SUPREME COURT REPORTS
[1962]
I96I
present writ proceedings. The High Court has found
General Manag,,, that the equality ~f. ~pportu~ity gu.ara~t~ed ?Y Art.
Southern Railway 16(1) and the proh1b1t10n agamst d1scr1mmat10n em.
v.
bodied in Art. 16(2) apply also to promotions of civil
Rangachad
servants from one post to another when both are
.
-
included in the same service. It was clearly of opiGa;endragadkar J. nion that promotions are within the ambit of els. ( 1)
and (2) of Art. 16. The High Court rejected the reRpondent's contention that the Schedulec;! Castes and
Tribes did not belong to backward classes and so it
held that the expression "backward class" in Art. 16
(4) includes members of the Scheduled Castes and
Scheduled Tribes. The High Court, however, was inclined to take the view that the expressions "appointments" or "posts" are virtually terms of art which
have to be interpreted and understood in the light of
the legislative history of the constitutional enactments
that preceded the Constitution, and thus construed it
came to the conclusion that "posts" in Art. 16( 4) are
confined to civil posts other than civil posts included
in any of the civil services. Appointment to a specified service, according to the High Court, can take
place only once in the case of every person and so
promotions could not be denoted by the word "appointments" and "posts" were outside service posts,
and so promotion to posts inside the service could not
be said to be covered by Art. 16(4). It appears from
the judgment of the High Court that if the word
"posts" had been construed by the High Court as
including posts in civil services then it might have
come to a different conclusion on the question about
the validity of the impugned circulars. It, however,
held that the word "posts" was a tel'm of art and it
definitely excluded the posts in civil services. That
is how the High Court felt that the impugned circulars which authorised reservation of posts falling
inside civil services were not covered by Art. 16(4).
Since they were not covered by Art. 16(4) they clearly
contravened Art. 16(1) and (2) and as such ultra vires.
That in brief is the result of the findings recorded by
the High Court.
The first question ·which falls to be considered is
2 S.C.R. SUPREME COURT REPORTS
595
whether Art. 16(1) and (2) refer to promotion or wheI96r
thcr they are confined to the initial appointment to .
1-;,-1
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'
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1 b "
h (, "'"" " anaga,
an:y J-10:-)t 111 ClVl SCl'VlCC.
- rl t le 3.l)pea
ClOI'C US t C Sou!hcrn Hailway
appellants a11d the respondent both conceded that
v.
caBes of promotion foll within Art. 16(1) and (2)
<<angacha'i
though they differed as to whether they were inclnd-
.
-- -
ed in Art. 16(4). It would be immediately noticed Ga1rnd1agadkar f.
that the respondent's petition postulates the incln&ion
of promotion in Art. 16(1) and (2) for it is on that
assumption th:1t he challenges lhe validity of the impugned circulars. Similarly, the a.ppellants' defence
postulates that Art. 16(1) and (2) as well a~ Art. 16(4)
refer to cases of promotion for it is on Lhe basis that
Art. 16(4) includes promotion that they seek t.o support the validity of the impugned circulars.
\Vhen
this <tppcal was argued before the Constitution Bench
on the first occ<>sion it became clear that neither
party was interested in contending that tho guarantee
afforded by Art. 16(1) and (2) is confined only to initial
appointment and does not extend to prumotion, awl
so notice was ordered to be issued lo tho AttornevGeneral. In response to the notice the Attomey-(j,,1;,,_
ral has n.ppeared and is represented by Mr. Sen.
He
has also taken the same stand as the appellants have
done and so in the result nobody before us is interested in challenging the inclusion of promotion within
Art. 16(1) and (2).
However, we would briefly indicate our reasons fo« accepLing the concession made
by the parties that promotion is included in Art. 16(1)
and (2).
Article 16(1) reads thus:
"There shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State."
In deciding the scope n.nd ambit of the fundamental
right of equality of opportunity guaranteed by this
Article it is necessary to bear in mind that in construing the relevant Article a technical or pedantic
approach must be avoided.
We must have regard to
the nature of the fundamental right guaranteed and
we must seek to ascertain the intention of the Constitution by construing the material words in a broad
596
SUPREME COURT REPORTS
[1962]
'96'
and general way. If the words used in the Article are
G
l-;--1
wide in their import they must be liberally construed
'""" " anager..
11 1 .
l"
.
Southern Railway m a t ie1r amp 1tude. Thus construed It would be
v.
· clear that matters relating to employment cannot be
Rangach,.ri
confined only to the initial matters prior to the act of
. --
employment. The narrow construction would confine
Ga;endragadkar f. the application of Art. 16(1) to the initial employment
and nothing else; but that clearly is only one of the
matters relating to employment. The other matters
relating to employment would inevitably be the provision as to the salary and periodical increments
therein, terms as to leave, as to gratuity, as to pension
and as to the age of superannuation. These are all
matters relating to employment and they are, and
must be, deemed to be included in the expression
"matters relating to employment" in Art. 16(1). Similarly, appointment to any office which means appointment to an office like that of the Attorney.General or
Comptroller and Auditor-General must mean not only
the initial appointment to such an office but all the
terms and conditions of service pertaining to the said
office. What Art. 16(1) guarantees is equality of
opportunity to all citizens in respect of all the matters
relating to employment illustrated by us as well as to
an appointment to any office as explained by us.
This equality of opportunity need not be confused
with absolute equality as such. What is guaranteed
is the equality of opportunity and nothing more.
Article 16(1) or (2) does not prohibit the prescription
of reasonable rules for selection to any employment or
appointment to any office.
Any provision as to the
qualifications for the employment or the appointment
to office reasonably fixed and applicable to all citizens
would certainly be consistent with the doctrine of the
equality of opportunity; but in regard to employment,
like other terms and conditions associated with and
incidental to it, the promotion to a selection post is
also included in the matters relating to employment,
and even in regard to such a promotion to a selection
post all that Art. 16(1) guarantees is equality of opportunity to all citizens who enter service.
•
•
2 S.C.R. SUPREME COURT REPORTS
597
If the narrow construction of the expression "matr96r
ters relating to employment" is accepted it would G
1-M-
. h
b A
enna
anager,
make the fundamental rig t guaranteed Y rt. 16(1) Southern Railway
illusory. In that case it would be open to the State
v.
to comply with the formal requirements of Art. 16(1)
llangachad
by affording equality of opportunity to all citizens in
. --
the matter of initial employment and then to defeat Ga1en<1iagaclkar J.
its very aim and object by introducing discriminatory
provisions in respect of employees soon after their
employment.
Would it, for instance, be open to the
State to prescribe different scales of salar~- for the
same or similar posts, different terms of leave or
superannuation for the same or similar post? On the
narrow construction of Art. 16(1) even if such a discriminatory course is adopted by the State in respect
of its employees that would not be violative of the
equality of opportunity guaranteed by Art. 16(1).
Such a result could not obviously have been intended
by the Constitution. In this connection it may be
relevant to remember that Art. 16(1) and (2) really
give effect to the equality before law guaranteed by
Art. 14 and to the prohibition of discrimination
guaranteed by Art. 15(1). The three provisions form
part of the same constitutional code of guarantees and
supplement each other. If that be so, there would be
no difficulty in holding that the matters relating to
employment must include all matters in relation to
employment both prior, and subsequent, to the employment which are incidental to the employment
and form part of the terms and conditions of such
employment.
Article 16(2) provides that no citizen shall, on
grounds only of religion, race, caste, sex, descent, place
of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment
or office under the State. This sub-Article emphatically brings out in a negative form what is guaranteed affirmatively by Art. 16(1). Discrimination is a
double-edged weapon; it would operate in favour of
some persons and against others; and Art. 16(2) prohibits discrimination and thus assures the effective enforcement of the fundamental right of equality of
76
598
SUPREME COURT RE3PORTS
[1962]
r96r
opportnnity guaranteed by Art. lll(l). The words "in
C
I-;:;-
'"espect of any emplovrnent" used in Art. 16(2) must,
enera
•• ,anagcr,
.
•·
.;
.
south''" l!ad;c·av therefore, rnclude all matters relatrng to employment.
v.
· as specified in Art. 16(1). ThNdore, we arc satisfied
Rangacha•i
that Mr. Sen is right when on behalf of the Attor!lf'j"·
.
-
,
Gene ml he conceded that promotion to selection posi s
Ca;endragad""' f. is included bolh under Art. Hi(l) and (2).
Broatlly
state<l tlw Bombay and the Patna High Courts support the concession made by Mr. Sen (Virk: Pand-urang KaBlu:nath 11Iore v. The Union of India('); S-ukhnandan v. State(')) whereas the Alla.lwbad High Court
is again~t it (vidc: J11oinitddin v. State of Uttar Pradesh(') ).
In this connection we ought lo add that Civil
Appeal No. 57U of 1960 {') in which the Union of
India ehallenp;ed the correctness of the Bombay decision was set down for hearing along with this appeal,
;i,nd in tho judgment which we are pronouncing in the
said appeal today we are accepting the appellants'
contention that the question abont the invasion of the
fundamental right guaranteed by Art. 16(1) was not
properly raised by the respondent in his plaint in that
case and had in fact not been proved; accordingly we
are holding that ,the High Court was in error in proceeding to deal with the dispute on the basis that
violation of Art. 16(1) had been admitted by the
Union. In the result we arc allowing tho said appeal
and setting aside the decision of the High Court on
this narrow ground.
Article 16(3) provides for one exception to the provisions of Art. 16(1) and (2) in that it authorises
Parliament to make any law prescribing, in regard to
a class or classes of employment or appointment to
an office under the Government of, or any local or
other authority within, a State or Union territory,
any requirement as to residence within that State or
Union territory prior to such employment or appointment. We are not concerned with this provision in
the present appeal.
(r) J.L.R. [1958] Born. 1266.
(2) (195fi) I.L.R. 35 Pat. r
(3) A.l.R. 1960 All. 484.
(.l) Union of India v. Pandurang Kashinatb l\.1ore.
•
2 S.C.R. SUPREME COURT REPORTS
599
That takes us to Art. 16( 4). It reads thus:
196'
"Nothing in this article shall prevent the StateG
1~
f
k'
. .
,,
h
.
f en"a manag,.,
rom ma mg any prov1s10n 1or t e reservat10n o southern Railway
appointments or posts in favour of any backward
v.
class of citizens which, in the opinion of the State,
Rangachari
is not adequately represented in the services under
the State."
Gajend,agadkar ].
In construing Art. 16(4) the respondent is no doubt
entitled to contend that this sub-Article in substance
provides for an exception to the fundamental rights
guaranteed by Art. 16(1) and (2) and as such it must
be strictly construed. On the other hand, the appellants may well urge that in construing its provisions
the Court should not lose sight of the fact that the
Constitution has, if we may say so wisely, showed
very great solicitude for the advancement of socially
and educationally backward classes of citizens. Article 15(4) which provides, inter alia, for an exception
to the prohibition of discrimination on grounds specified in Art. 15(1) lays down that nothing contained in
the said Article shall prevent the State from making
any special provision for the advancement of any
socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes.
Similarly, Art. 335 requires that the claims of the
members of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently
with the maintenance of efficiency of administration,
in the making of appointments to services and posts
in connection with the affairs of the Union or of a
State. For historical reasons which are well known
the advancement of socially and educationally backward classes has been treated by the Constitution as a
matter of paramount importance and that may have
to be borne in mind in construing Art. 16(4).
On one point in relation to the construction of
Art. 16(4) the parties are in agreement. It is common
ground that Art. 16(4) does not cover the entire field
covered by Art. 16(1) and (2).
Some of the matters
relating to employment in respect of which equality
of opportunity has been guaranteed by Art. 16(1) and
-
(2) do not fall within the mischief of non-obatantive
600
SUPREME COURT REPORTS
[1962]
1 961
clause in Art. 16(4). For instance, it is not denied by
G
I-;-:
the appellants that the conditions of service relating
enera
1Y1 anager,
.
.
south"n Railway to employment such as salary, mcrement, gr11tmty,
'"
pension and the age of superannuation there can be
Rangacha•i
no exception even in regard to the backward classes
--
of citizens. In other words, these matters relating to
Gajendrngadkar f· employment are absolutely protected by the doctrine
of equality of opportunity and they do not form the
subject-matter of Art. 16(4). That is why we have
just observed that part of the ground covered by
Art. 16(1) and (2) is admittedly outside the scope of
Art. 16(4). The point in dispute is: Is promotion to a
selection post which is included in Art. 16( l) and (2)
covered by Art. 16(4) or is it not? It is on this point
that there is a sharp controversy between the parties.
Before construing Art. 16(4) it would be convenient
to deal with the question as to whether posts specified by it are posts inside the services or outside them.
As we have already seen the High Court has taken
the view that the posts in the context must necessarily
mean posts outside the services and that in fact is the
sole basis of the decision of the High Court against
the appellants. The High Court has held that the
legislative history of the words "appointments" and
"posts" justifies the conclusion that "posts" are
ex-cadre posts. Is that really so? In our opinion, the
answer to this question must be in the negative. The
argument that legislative history about the use of the
relevant words is decisively in favour of excluding
service posts from the purview of Art. 16( 4) ignores
the fact that there can be no legislative history for the
provisions of Art.16(4) which have found a place in the
Constitution for the first time. Besides, it is not correct
to assume that even the legislative history shows that
"posts'' al ways and inevitably meant posts outside
services though it may be conceded that in the majority of corresponding constitutional provisions they
do refer to ex-service posts.
Let us look at th~ relevant provisions of the Constitution itself. Article 309 empowers the appropriate
Le iislature to regulate the recruitment and conditions
of service of persons appointed to public services and
•
•
2 S.C.R. SUPREME COURT REPORTS
601
posts in connection with the affairs of the Union or
'96'
of any State. In the context "posts" means posts c
-Mt "d
.
s·
·1 1 A t 310(1)
,.
t
'"""1
anacer,
ou s1 e services.
1m1 ar y
r .
reiers o every south"" Railway
person who is a member of a defence service or of a
v.
civil service of the Union or of an all-India service or
Rangachari
holds any post connected with defence or any civil
. --
post under the Union. The word "post" in the con- Ga;endragadkar J.
text means an ex-cadre post. Likewise the expression
"civil post" in Art. 311(1) means a civil post outside
the services. Article 335 to which we have referred
uses the word "posts" in the same sense. But, when
we go to Art. 336 the word "posts" in the context
means posts in the services therein enumerated. The
position disclosed by the corresponding provisions of
the Constitution Act of 1935 is substantially the same.
Sections 240 and 241 for instance use the word
"posts" in the sense of ex-service posts; whereas s. 246
refers to civil posts in the sense of posts inside the
services. In our opinion, it would, therefore, be unreasonable to treat the word "posts" as a term of art
and to clothe it inexorably with the meaning of excadre posts. It is the context in which the word
"posts" is used which must determine its denotation.
What does the context of Art. 16(4) indicate? That
is the next question which we must consider. Article
16(4) clearly shows that the power conferred by it
can be exercised in cases where the State is of the
opinion that any backward class of citizens is not
adequately represented in the services under it. In
other words, the opinion formed by the State that the
representation available to the backwa.rd class of citizens in any of the services is inadequate is a condition precedent for the exercise of the power conferred
by Art. 16(4), and so the power to make reservation
as contemplated by Art. 16(4) can be exercised only to
make the inadequate representation in the services
adequate. If that be so, both "appointments" and
"posts" to which the operative part of Art. 16(4)
refers and in respect of which the power to make
reservation has been conferred on the State must
necessarily be appointments and posts in the service.
It would be illogical and unreasonable to
602
SUPREME COURT REPORTS
[1962]
'9" •
assume that for making the representation adequate
G
--
in the services under the State a power should
eneral M anag", b
·
,
h
S
'd th
southern Railway e given to t e
tate to reserve posts outs1 e
e
v.
· cadre of services. If the word "posts" means exRangacha•i
cadre posts reservation of such posts cannot possibly
. --
cure the imbalance which according to the State
Ga;end•agadka• J. is disclosed in the representation in services under
it. Therefore, in our opinion, the key clause of
Art. 16(4) which prescribes a condition precedent for
invoking the power conferred by it itself unambiguously indicates that the word "posts" cc nnot mean
ex-cadre posts in the context. In fairness to Mr.
Kumaramangalam, who appeared for the respondent,
we ought to add that he did not resist the contention
of Mr. Chatterjee, for the appellants, that the context
requires that "posts" should be deemed to be posts
inside services and not outside them. Therefore, the
main, if not the sole, reason given by the High Court
in support of its conclusion does not appear to us to
be well founded, and so Art. 16(4) must be construed
on the basis that both "appointments" and "posts"
to which its operative clause refers are appointments
and posts in the services nuder the State. Incidentally, we illay repeat what we have already pointed
out that the tenor of the judgment under appeal shows
that if the High Court had construed the word "posts"
as posts inside the services it would not have issued
the writ in favour of the respondent.
Having in substance conceded that "posts" does
not moan posts outside services Mr. Kumaramangalam
presented a very plausible argument in support of
his case that the impugned circulars fall outside Art.
16(4).
He eontends that the key clause on which Mr.
Ghat,terjee relies in construing the word "posts" as
meaning posts in the services itself shows that direct
promotion to selection posts by reservation is not permissible under Art. 16( 4).
His argument is that if it
is discovered that any backward class of citizens is not
adequately represented in the services under the
State the State may no doubt seek to introduce the
balance by giving adequate representation to the
hackward class by making reservations for initial
2 S.C.R. SUPREME COURT REPORTS
603
appointments. It may decide the proportion of the
I96I
said reservation in order to introduce the balance and G .
1
h
·
"'
· b
k'
d
t
b
f '""" Manager,
t en give e11ect to it y ma mg a equa e num er o Southern Railway
appointments by reservation at the initial stage. If
v.
this process by itself appears to the State to be slow
Rangachari
and tardy it may even reserve selection posts but this
. -
reservation can be given effect to again by promoting Ga;endragadkar J.
suitable backward candidates to the said posts after
they fall vacant and making a proportionately larger
number of appointments a.t the initial stage. In any
case reservation must work from the bottom and
reservation cannot be permitted to allow direct
appointment to selection posts as the impugned circulars seek to do.