# Kharkan and others v. The State

- **Citation:** [1964] 4 S.C.R. 680
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** S. K. Das Acting C.J, K. Sobba Rao, Raghubar Dayal, N. Rajagopala Ayyangar, J. R. MonHoLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kharkan-and-others-v-the-state-3182
- **Pages:** 29

## Headnote

Equality-Employment under
State-Reservation
of
posts
for backward classes-Scheduled
Castes
and
Scheduled
Tribes-Unfilled vacancies of reserved posts for the year to be carried forward to subsequent
year-"Carryforward
rule"-Constitutional validity-Constitution of India, Arts. 14, 16(1 ), 16( 4 ), 46,
335.
On February 6, 1960, the Union Public Service Commission
issued a notification to the effect that a limited co:rripetitive examination for promotion to the regular· temporary establishment
of
Assistant Superintendents of the Central Secretariat Service would
be held in June, 1960. The notification further stated that a reservation of 12!% of the vacancies would be made for members
of the Scheduled Castes and 5°!'. for members of Scheduled Tribe.s.
The result of this examination was announced by the Union
l(' ........
-
-
-
-
4 S.C.R.
SUPREME COURT REPORTS
681
Public Service Commission in April, 1961, and the Govern·
ment made 45 appointments out of which 29 were from among
the candidates belonging to the Scheduled Castes and Tribes. The
result was that the reservation actually m<'l.de in this case came
to 65% and was far in excess of that set out in the notification of
the Union Public Service Commission pursuant to which the com·
petitive examination was held.
Had the reservation been Ii·
mited to
17-~o;,_ only 8 vacancies could have gone to the members of the Scheduled Castes and Tribes and the rest to the other
candidates according to their merit.
The Government of India
and the Public Service Commission sought to justify their action
by relying upon \vhat is known as "the carry forward rule", as
set out in th'e office Memorandum of instructions dated May
7,
1955, issued by the Government of India, by which : "If a suffic
cient number of candidates considered suitable by the recruiting
authorities, arc not available from the communities for whom reservations are made in a particular year, the
unfilled
vacancies
should be treated as unreserved and filled by the best available
candidates.
The number of reserved vacancies thus treated
as
unreserved will be added as an additional quota to the number
that would be reserved in the following year in the normal course;
and to
the extent to which
approved candidates
are
not
available· in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies
in the second following ycar'
1
•
The petitioner, who was an assistant in Grade IV of the Central Secretariat Service, who expected
to become a Section Officer (Assistant Superintendent) by way ot
promotion challenged the validity of the "carry forward rule" on
the grounds, inter alia, that the rule contravened Arts. 14. 16 and
335 of the Constitution of India .
. Held, (Subba Rao, J., dissenting), that the "Carry forward
rule", as a mult of which applicants belonging to Scheduled Castes or Tribes could get more than 5001,, of the vacancies to be fil.
Jed in a particu1<ll' year, is unconstitutional.
Article H of the Constitution of India prohibits the Sta!J<
from denying to any person equality before the law or the equal
protection of laws. This means equality among equals. The Article does not provide for an absolute equality of treatment to all
persons in utter disregard in every conceivable circumstance of
tJ;e differences such as age, sex, education and so on. A provis~on made ~y the State for the reservation of a certain propornon of appomtments and posts for backward classes in the public
services of the State in order to provide them with an opportunity equal to that of the members of the more advanced classes.
docs not infrin~e Art. 14 of the Constitution of India provided
that the reservation 1s not so excessive as to practically deny a reasonable opportunity for employment to members of other communities.
Though under Art. 16(4) of the Constitution a reservation
of a reasonable percentage of posts for members of the Scheduled
44--2 SC India/64
1963
T. Devadasan
v.
The Union

## Text

_Characters 0–39,939 of 68,341. This is a partial read: ask again with offset=39939 for what follows._

1963
Kharkan and
others
v.
The State
of U.P.
Hidayatullah, f.
1963
August 29
• 680
SUPREME COURT REPORTS
[1964]
considered. The eye witnesses in this ca.se are five
in
number, while in the other case there were only two, but
that apart, the earlier judgment can only be relevant if it
fulfils the conditions laid down by the Indian Evidence
Act in ss. 40-43. The earlier judgment is no doubt admissible to show the parties and the decision but it is not
admissible for the purpose of relying upon the appreciation of evidence.
Since the bar under s. 403
Criminal
Procedure Code rlirl not operate, the earlier judgment is
not relevant for the interpretation .of evidence in the present
case.
Mr. Tewatia attempted to argue on the facts of this
case but we did not permit him to do so because this
Court, in the absence of special circumstances, does not
'review for the third time, evidence, which has been accepted in the High Court and the Court below. No such
circumstance has been pointed out to us to make us depart from the settled practice. The appeal therefore fails
and is dismissed.
T. DEV ADASAN
v.
Appeal dismissed.
THE UNION OF INDIA AND ANOTHER
(S. K. DAS ACTING C.J., K. SOBBA RAO, RAGHUBAR DAYAL,
N. RAJAGOPALA AYYANGAR AND J. R. MonHoLKAR, JJ.)
Equality-Employment under
State-Reservation
of
posts
for backward classes-Scheduled
Castes
and
Scheduled
Tribes-Unfilled vacancies of reserved posts for the year to be carried forward to subsequent
year-"Carryforward
rule"-Constitutional validity-Constitution of India, Arts. 14, 16(1 ), 16( 4 ), 46,
335.
On February 6, 1960, the Union Public Service Commission
issued a notification to the effect that a limited co:rripetitive examination for promotion to the regular· temporary establishment
of
Assistant Superintendents of the Central Secretariat Service would
be held in June, 1960. The notification further stated that a reservation of 12!% of the vacancies would be made for members
of the Scheduled Castes and 5°!'. for members of Scheduled Tribe.s.
The result of this examination was announced by the Union
l(' ........
-
-
-
-
4 S.C.R.
SUPREME COURT REPORTS
681
Public Service Commission in April, 1961, and the Govern·
ment made 45 appointments out of which 29 were from among
the candidates belonging to the Scheduled Castes and Tribes. The
result was that the reservation actually m<'l.de in this case came
to 65% and was far in excess of that set out in the notification of
the Union Public Service Commission pursuant to which the com·
petitive examination was held.
Had the reservation been Ii·
mited to
17-~o;,_ only 8 vacancies could have gone to the members of the Scheduled Castes and Tribes and the rest to the other
candidates according to their merit.
The Government of India
and the Public Service Commission sought to justify their action
by relying upon \vhat is known as "the carry forward rule", as
set out in th'e office Memorandum of instructions dated May
7,
1955, issued by the Government of India, by which : "If a suffic
cient number of candidates considered suitable by the recruiting
authorities, arc not available from the communities for whom reservations are made in a particular year, the
unfilled
vacancies
should be treated as unreserved and filled by the best available
candidates.
The number of reserved vacancies thus treated
as
unreserved will be added as an additional quota to the number
that would be reserved in the following year in the normal course;
and to
the extent to which
approved candidates
are
not
available· in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies
in the second following ycar'
1
•
The petitioner, who was an assistant in Grade IV of the Central Secretariat Service, who expected
to become a Section Officer (Assistant Superintendent) by way ot
promotion challenged the validity of the "carry forward rule" on
the grounds, inter alia, that the rule contravened Arts. 14. 16 and
335 of the Constitution of India .
. Held, (Subba Rao, J., dissenting), that the "Carry forward
rule", as a mult of which applicants belonging to Scheduled Castes or Tribes could get more than 5001,, of the vacancies to be fil.
Jed in a particu1<ll' year, is unconstitutional.
Article H of the Constitution of India prohibits the Sta!J<
from denying to any person equality before the law or the equal
protection of laws. This means equality among equals. The Article does not provide for an absolute equality of treatment to all
persons in utter disregard in every conceivable circumstance of
tJ;e differences such as age, sex, education and so on. A provis~on made ~y the State for the reservation of a certain propornon of appomtments and posts for backward classes in the public
services of the State in order to provide them with an opportunity equal to that of the members of the more advanced classes.
docs not infrin~e Art. 14 of the Constitution of India provided
that the reservation 1s not so excessive as to practically deny a reasonable opportunity for employment to members of other communities.
Though under Art. 16(4) of the Constitution a reservation
of a reasonable percentage of posts for members of the Scheduled
44--2 SC India/64
1963
T. Devadasan
v.
The Union
of India and
Anot!ter
1963
T. Devadasan
v.
The Union
of India and
· Another
682
SUPREME COURT REPORTS
[1%4]
Castes and Tribes is within the competence of the State, the method evolved by the Government must be such as to strike
a
reasonable balance bctwen the claims of the backward classes and
claims of other employees, in order to effectuate
the
guarantee
mntained in Art. 16(1), and for this purpose each iear of recruitment would have to be considered by itself.
The Manager, Southern Railway v. Rangachari, [1962]
2
S.C.R. 586 and M. R. Balaji and Others v. The State of Mysore,
[1963] Supp. 1 S.C.R. 439, rdied on.
per Subba Rao, J .-The provision for "Carry forward"
is
for the reservation of appointments for the Scheduled Castes and
Tribes, and unless it is established that an unreasonably disproportionate part of the cadre strength is filled up with the
said
Castes and Tribes, it is not IX>SSible to contend that the provision
is not one of reservation but amounts to a violation of the
fundamental rights.
It is inevitable in the nature of reservation
!Rat there will be lowering of standards to some extent ; but on that
account the provision cannot be said to be bad.
The expression "nothing· in this article" in Art. 16( 4) of
the Constitution of India is a legislative device to express
its
intention in a most emphatic may that the power sonferred there-
~nder is not limited in any way by the main provision but falls
outside it.
It has not really carved out an exception, but has
reserved
:1 power untrammelled by the other provisions of the
Article.
-
The word "any" in the expr~Ssion · "any provision"
in
Art.
16( 4) is of the widest amplitude ·and leaves the nature of the provisioQ
t~ be made· by the- State in itS discretion.
Once a
class
is a backward class, the question· whether it is adequately represented or _not is left to the subj.ective . satisfaction of the
State
and it is not for _ thi? Court to preScribe -the mode of reservation.
ORIGINAL }UR!smcTroN : Petition No. 87 of 1963.
,
Under Article 32 of .the Constitution of India for the
enforcement of fundamental rights.
·
R. Gopalakrishnan, for the petitioner.
R. Ganapathy Iyer and R. N. Sachthey, for the Respondents.
·.
August 29, 1963. The J udgnient of S. K. Das, Acting
C.J., Raghubar Dayal, N. Rajagopala Ayyangar and J. R.
Mudholkar, JJ. was delivered by Mudholkar, J., K. Subba
Rao J., delivered a dissenting opinion.
MuoHOLKAR J.-The petitioner, who is a graduate,
is an· Assistant in Grade IV of the Central Secretariat Service, having been recruited therein in the year 1956. He
became permanent on January 1, 1958.
The next post
-
-
-
-
4 S.C.R.
SUPREME COURT REPORTS
683
which the petitioner can expect to get is that of Section
Officer (Assistant Superintendent) in the same service. Recruitment to the post of Section Officer is made in the following manner :
(i) 40% by direct recruitment from those who obtained lower ranks in the I.A.S. etc., examination ;
(ii) 30% by promotion from Grade IV to Grade III
on the basis of a departmental examination held
at intervals by the U.P.S.C.
(iii) 30"/o by promotion from Grade IV on the basis of
seniority-cum-fitness.
On February 6, 1960 the Union Public Service Commision issued a notification to the effect that a limited
~ompetitive examination for promotion to the regular temporary establishment of Assistant Superintendents of the
Cenrtal Secretariat Service would be held in June, 1960.
The notification further stated that a reservation
of
12t% of the vacancies would be made for members of the
Scheduled Castes and 5% for me111bers of Scheduled Tribes.
The result of this examination was announced by
the Union Public Service Commission in April, 1961. The
Union
Public Service
Commission recommended
16
candidates for bein,:; appointed in unreserved vacancies
and 28 candidates in reserved vacancies. Subsequently the
U.P.S.C. recorpmended 2 more candidates belonging to the
Scheduled Castes/Tribes for the posts. It may be mentioned that the number of vacancies which were expected to be filled was stated to be 48 out of which
16 were unreserved and the remaining 32 reserved, though
in fact the U.P.S.C. recommended the names of only
30 candidates for the latter class of vacancies. The Government, however, made only 45 appointments out of
which 29 were from among the candidates belonging to
the Scheduled Castes and Tribes.
The petitioner points out that the percentage of marks
secured by him at the examination was 61 whereas the
percentage of marks secured by some of the 29 candidates
from the Scheduled Castes and Tribes was as low as 35
and one of his grievances is that it was not competent to
the U.P.S.C. to prescribe one qualifying standard for members of the Scheduled Castes and Tribes and another for
the rest of the candi<lJt~s.
1963
T. Devadasan
v.
The Union
of India and
Anoth1:r
Mudholkar, /.
1963
T. Devadasan
v.
The Union
of India and
Another
Mudholkar, /.
684
SUPREME COURT REPORTS
[1964]
It is the petitioner's case that had the Union of Indja
and the U.P.S.C. adhered to the quota of 171% reservations in favour of Scheduled Castes and Tribes he would
have had a fair chance of being selected to the post of
Assistant Superintendent. His grievance is that the reservation actually made in this case comes to 65% and was
far in excess of that set out in the notification of the
U.P.S.C., pursuant to which the competitjve examination
was held. Had the reservation been limited to 1n% only
8 vacancies could have gone to the members of the Scheduled Castes and Tribes and the rest to other candidates
according to their merit.
The petitioner points out that the respondents, that
is, the Union of India and the Union Pubilc Service Commission seek to justify their action by relying upon what
is known as "the carry forward rule". In order to understand what the aforesaid rule is it is necessary to refer
to certain resolutions of the Government of India in the
Ministry of Home Affairs. On September 13, 1950, the
Government of India published a resolution indicating
their policy in regard to communal representation in the
services. There they have stated that the following reservations would provisionally be made in recruitment to
the posts and services under them :
.
(a) Scheduled Castes : Reservation of 121% of vacancies by direct recruitment through the
Union
Public Service Commission or by means of open
competitive tests held by any
otherauthority.
Where recruitment is made otherwise than by
open competition the reservation will be 16-2/3"/o.
(b) Scheduled Tribes : both in recruitment by open
competition and the recruitment made otherwise
than by open competition the reservation shall be
to the extent of 50% of the vacancies filled by direct recruitment.
Then they refer to the resolution in favour of Anglo-Indians with which we are not concerned. Incidentally. it
may be mentioned that this resolution provides that in all
cases a minimum standard of qualification will be prescribed and that the reservations will be subject to the overall conditions that candidates of the requisite communities possessing the prescribed qualifications and suitable in
-
-
-
-
4 S.C.R.
SUPREME COURT REPORTS
685
all respects for the appointments in question are forthcommg m sufficient numbers for the vacancies reserved
for them. These orders were made applicable to all services under the control of the Government of India. Supplementary instructions with regard to this subject were
issued by the Government of India on January 28, 1952, of
which the relevant portions may be quoted :
"2(a)
RECRUITMENT BY
OPEN
COMPETITION : If the candidates of Scheduled Castes, Scheduled Tribes and the Anglo-Indian community obtain by competition less vacancies than are reserved
for them, the difference will be made up by the nomination of duly qualified candidates of these castes,
tribes ·and communities, i.e., candidates of these communities etc., who have qualified in the test, selection
etc., held for the purpose, but have secured ranks lower
than the candidates of other communities for whom
no reservations have been made.
..
*
..
..
..
5(3) If a sufficient number of candidates of the communities for whom the reservation are made, who
are eligible for appointment to the posts in question
and are considered by the recruiting authorities
as
suitable in all respects for appointment to the reserved quota of vacancies, are not available, the vacancies that remain unfilled will be treated as unreserved
and filled by the best available candidates ; but a corresponding number of vacancies will be reserved in the
following year for the communities whose vacancies
are thus filled up in addition to such number as would
ordinarily be reserved for them under the orders contained in the Resolution.
(For further clarification
please see Rule III in Appendix 'A').
( 4) If suitably qualified candidates of the communities for whom the reservations have been made are
again not available to fill the vacancies carried forward from the previous year under clause (3) above,
the vacancies not filled by them will be treated as unreserved and the reservations made in those vacancies
will lapse.
..
I
1963
T. Devadasan
v.
The Union
of India and
Another
Mudholkar, f.
1963
T. Devadasan
v.
The Union
of India and
Another
Mudholkar, T.
686
SUPREME COURT REPORTS
[19641
APPENDIX 'A'
III. No gap should be left in the roster in filling vacancies and if a reserved vacancy (at, say, the 25th
point of the roster) has, for want of suitable Schedule Caste candidate to be treated as unreserved, the
candidate appointed should be shown against that
point ; but if a Scheduled Caste Candidate cannot be
recruited against an unreserved vacancy later in the
year, the reservation should be carried forward to
the following year and after the Sch<;duled Castes quota
for the latter year has been filled, the first unreserved
vacancy in that year (say, the 32nd point) should be
treated as reserved for Scheduled Castes.''
These supplementary instructions were given apparently
because sufficient number of qualified candidate"s from
among the Scheduled Castes and Tribes were not available.
However, even carrying forward the vacancies for
one year proved to be inadequate for giving effect to the
policy of the Government of India to give adequate representation in the services to members of the Scheduled
Castes and Tribes. The Government considered and reiected the holding of separate examinations for Scheduled
Castes and Tribes for recruitment to public services.
Then by Office Memorandum No. 2/11/55-RPS, dated
May 7, 1955, the Government of India modified sub-paras
(3) and ( 4) of paragraph 5 of the Supplementary Instructions dated January 28, 1952, by substituting the following:
"3(a) If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities. for whom reservations are
made in a particular year, the unfilled vacancies
should be treated as unreserved and filled by the best
available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be rese(ved
in the following year in the normal course; and
to the extent to which approved candidates are not
available in that year against this additional quota, a
correspoding addition should be made to the number
of reserved vacancies in the second following year."
r
-
-
4 S.C.R.
SUPREME COURT REPORTS
6'(f!
Thus the number of reserved vacancies of 1954 which
were treated as unreserved for want of suitable candi-
:lates in that year will be_added to the normal number
of reserved vacancies in 1955. Any recruitment against
these vacancies in 1955 will first be counted against the
additional quota carried forward from 1954. If however, suitable candidates are not available in 1955 also
a certain number of vacancies are treated accordingly
as 'unreserved' in that year, the total number of vacancies to be reserved in 1956 will be the unutilised balance of the quota carried forward from 1954 and 1955
plus the normal percentage of vacancies to be reserved
in 1956. The unutilised quota will not, however, be carried forward in this manner for more than two years.
An annual report of reserved vacancies which were
treated as unreserved for want of suitable candidates
from Scheduled Castes or Scheduled Tribes as the case
may be, should be forwarded to the Ministry of
Home Affairs in the form enclosed as Anne)lure
along with the annual communal returns already
prescribed. In addition Ministries themselves will take
adequate steps to ensure that any lapse on the part of
subordinate authorities in observing the reservation
rules cannot go unnoticed by a reviewing authority
within the Ministry itself at a sufficiently early date.
(b) In the event of a suitable Scheduled Castes candidate not being available, a Scheduled Tribe candidate can be appointed to the reserved vacancy and
vice versa subject to ;i.djustment in the subsequent
points of the roster.
(For further clarification please
see Rule III in Appendix 'A').
It is these instructions of the Government of India which
are being challenged by the petitioner in this petition which
he has presented to this Court under Art. 32 of the Constitution. His contention is that Art. 16(1) of the Constitution
provides that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment
to any office under the State. Mr. Gopalakrishnan, who
appears for the petitioner, concedes that under cl. ( 4) of
Art. 16 it is open to the State to make provision for reservation of appointments or posts in favour of any backward
class of citizens which in· the opinion of the State, is not
1963
T. Devadasan
v.
The Union
of India and
Another
Mudholkar, f.
1963
T., Devada<an
v.
The Union
of India· and
Another
. Mudholkar, /.
68S
SUPREME COURT REPORTS.
[1964}
adequately represented in the services of the State. ilut his
contention is that this reservation cannot be so extensive as
to nullify or destroy the right conferred by cl. ( 1) of Art.
16.
He points out that according to the previous
decisions of this Court cl. · ( 4)
is merely an exception to cl. ( 1)
of Art.
16, which, being subc
servient to the main provision cannot be so interpreted as to render the main provision meaningless.
His next contention is that cl. ( 4) of Art. 16 is to be read
with Art. 335 of the Constitution which, while providing
for the consideration of the claims of members of Scheduled
Castes and Tribes, reiterates that the efficiency of administration should be maintained and not allowed to suffer. His
next contention is that as no reservation .of posts in favour
of members of Scheduled Castes and Tribes is made in the
offices of the Lok Shabha a~d Rajya Sabha and the Supreme
Court or in the Armed Forces, Art. 14 of the Constitution
is infringed. Then, according to him, the standard for all
candidates must be the same and the Union Public Service
Commission has no power to recommend for appointment
candidates from Scheduled Cates and Tribes for appointment to the reserved posts even though they have secured
far less marks than the candidates belonging to the more
advanced communities. These are the main points which
Mr. Gopalakrishnan has urged.
On behalf of the respondents it is claimed that the carry
forward rule is perfectly valid, that it was a rule in force
before the commencement of . the Constitution and that
it was decided to continue it even after the Constitution
came into force as a matter of public policy and for giving
effect to the provisions of the Constitution and that that is
why supplementary instructions were issued by the Government in 1952. They further say that the carry forward rule
was extended upto two years because of inadequacy of representation of Scheduled Castes and Tribes in services regarding which there was persistent criticism in Parliament and
by the Commissioner for Scheduled Castes and Tribes and
by others. It is for this reason that the revised supplementary instructions of 1955 were issued as a matter of policy.
The respondents relied upon the provisions of Art. 16( 4)
and Art. 335 in support of these instructions.
•
1-
\.•
I -
...
-
•
. '(
-
-
' ,
4 S.C.R.
SUPREME COURT REPORTS
689
It was contended on behalf of the respondents that
having regard to the prayers in the petition, the petition
was unsustainable in law because the persons who would
be adversely affected have not been joined as respondents.
It is also contended that the petition does not disclose any
justiciable issue. The right to promotion cannot, according
to the respondents, be the subject of a complaint in a court
of law. Nor again, questions of policy could be agitated
before a court of law. The respondents denied that the
petitioner has any right, much less a fundamental right.
The respondents also deny that the carry forward rule was
a negation of equality before law and equal opportunity
in the matter of appointment to posts under the State. The
infringement of the alleged fundamental right could not
thus furnish a cause of action to sustain a petition under
Art. 32.
While replying in detail paragraph by paragraph to
the petition, the respondents admitted that at the competitive examination held in pursuance of the notification of
March, 1961, 28 vacancies which had been filled in the two
previous years from amongst candidates who belong to
communities other than the Scheduled Castes and Tribes
because suitable candidates from the latter classes were
not available and stated that by operation of the carry
forward rule those vacancies were, therefore, earmarked
for being filled at the competitive examination held in the
year 1961 in addition to 17}% of the total vacancies to be
filled that vear.
The ~in question for consideration thns is whether
the carry forward rule as modified in 1955 is unconstitutional either because its operation will practically destroy the
fundamental right guaranteed by Art. 16 ( 1) of the constitution or because it is violative of the guarantee contained
in Art. 14 of the Constitution. If on either of these grounds
the carry forward rule is found to be bad no other question
need be considered by us.
It seems to us that the argument based upon Art. 14 of
the Constitution in fact turns on the same considerations as
the argument that Art. 16(1) is infringed by the aforesaid
rule. What Art. 14 provides is that the state shall not deny
to any person equality before the law or the equal protection
of the laws within the territory of India. What is meant
1963
T. Devadasan
T,
The Union
of India and
Another
Mudholkar, /.
1963
T. Devadasan
v.
The Union
of India and
Another
Mudholkar, ].
690
SUPREME COURT REPORTS
(1964]
by equality in
thi~ Article is, equality amongst equals.
It does not provide for an absolute equality of treatment to
all persons in utter disregard in every conceivable circumstance of the differences such as age, sex, education and so
on and so forth as may be found amongst people in general.
Indeed, while the aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall not be
made by the State between a citizen and a citizen who
answer the same description and the differences which
may obtain between them are of no relevance for the purpose of applying· a particular law reasonable classification
is permissible. It does not mean anything more.
It is an accepted fact that members of the Scheduled
Castes and Tribes are by and large backward in comparison
with other communities in the country. This is the result
of historical causes with which it is not necessary for us to
deal here. The fact, however, remains that they are backward and the purpose of Art. 16 ( 4) is to ensure that such
people, because of their backwardness should not be unduly
handicapped in the matter of securing employment in the
various services
of the State. This provision, therefore,
contemplates reservation of appointments or posts in
favour of backward classes who are not adequately represented in the services under the State. Where, therefore, the
State makes a rule providing for the reservation of appointments and posts for such backward classes it cannot be said
to have violated Art. 14 merely because members of the more
advanced classes will not be considered for appointment to
these posts even though they may be equally or even more
meritorious than the members of the backward classes, or
merely because such reservation is not made in every kind
of service under the State. Where the object of a rule is to
make reasonable allowance for the backwardness of members of a class by reserving certain proportion of appointments for them in public services of the State what the
State would in fact be doing would be to provide the members of backward classes with an opportunity equal to that
of the members of the more advanced classes in the matter
· of appointments to public services. If the reservation is so
excessive that it practically denies a reasonable opportunity
for employment to members of other communities the position may well be different and it would be open when for a
r -
-
•
-
-
\
4 S.C.R.
SUPREME COURT REPORTS
691
member of a more advanced class to complain that he has
been denied equality by the State.
That is precisely the point which we must consider in
dealing with the argument of learned counsel that the rule
violates the guarantee contained in Art. 16(1) of the
Constitution because the excessive reservation permitted by
it almost destroys the guarantee contained in the provision. In order to appreciate the argument it is necessary
to consider the operation of the rule. Now, the rule provides that in% of the total vacancies in a year will be
reserved for being filled from amongst candidates belonging to scheduled castes and tribes. It further provides that if in any year suitable candidates are not avail-
:1bk from amongst such classes the reserved posts will be
dere:;erved, filled by candidates from other classes and
a corresponding number of posts be carried forward to
the next year. If in the subsequent year the same thing
happens, the posts unfilled by candidates from Scheduled
Castes and Tribes can be carried forward to the third year.
In the third year the number of posts to be filled
from amongst candidates of Scheduled Castes and Tribes
would thus be 17±% of the total vacancies to be filled in
that year, plus the total unfilled vacancies which have
been carried forward from the two previous years. The
rule thus permits a perpetual carry forward of unfilled reserved vacancies in the two years preceding the year of
recruitment and provides addition to them of 17 t % of
the total vacancies to be filled in the recruitment year.
In order to appreciate better the import of this rule on recruitment let us take an illustration. Supposing in two
successive years no candidate from amongst the Scheduled Castes and Tribes is found to be qualified for filling
any of the reserved posts. Supposing also that in each of
those two years the number of vacancies to be filled in a
particular service was 100.
The reserved vacancies for
each of those years would, according to the Government
resolution, be 18 for each year. Now, since these vacancies were not filled in those years a total of 36 vacancies
will be carried forward to the third year. Supposing in
the third year also the number of vacancies to be filled is
100. Then 18 vacancies out of these will also have to be
reserved for members of the Scheduled Castes and Tribes.
1963
T. Devadasan
y.
The Union
of India and
Another
Mudholkar, f.
1963
T. Devadasan
v.
The Union
of India and
Another
Mudholkar, J.
692
SUPREME COURT REPORTS
[1%4]
By operation of the carry forward rule the vacancies
to be filled by persons from amongst the Scheduled Castes
and Tribes wquld be 54 as against 46 by persons from
amongst the more advanced classes. The reservation
would thus be more than 50%. It has been held by this
Court in M. R. Balaji & Ors. v. The State of Mysore(')
that the resen:ation of more than half of the seats in an
educational institution for being filled from members of
the backward classes is unconstitutional. Speaking for
the Court Gajendragadkar, J., has observed therein :
"Speaking generally and in a broad way a special
provision should be less than 50 per cent ; how much
less than 50 per cent. would depend upon the relevant prevailing circumstances in each case ........ .".
In our opinion, when the State makes a special provision for the advancement of the weaker sections of
society specified in Article 15(4) it has to approach
its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to hefp the advancement of weaker elements ; the extent of the problem must be weighed,
the requirements of the community at large must be
borne in mind and a formula must be evolved which
would strike a reasonable balance between the several
relevant considerations."
In that case the reservation was to the extent of 68% and
it was struck down by this Court.
No doubt, what
was challenged was the reservation of seats in an educational institution in favour of members
of
"backward
communities" under Art. 15(4) which permits the State
to make a special provision for the advancement of any
socially and educationally backward classes or for the Scheduled Castes and Tribes while Art. 16( 4) in specific
terms provides for the reservation of
appointments . or
posts in favour of such classes. But the difference in the
language used in these provisions is not, however, of any
significance because this Court has accepted the position
that reservation can be made under Art. 15 ( 4). Indeed,
at .p. 474 this Court has pointed out :
" ........ what is true in regard to Article 15(4) ts
( 1) [1963] Supp. 1 S.C.R. 439.
-
'
-
•
.
\
4 S.C.R.
SUPREME COURT REPORTS
693
equally true in regard to Art. 16(4). There can be
no doubt that the Constitution makers assumed, as
they were entitled to, that while making adequate reservation under Art. 16(4) care would be taken
not to provide unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating widespread dissatisfaction amongst. the employees, materially effect efficiency. Therefore, like the special
provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution."
What this Court has laid down there would also apply to
the present case. The ratio of this decision appears to
be that reservation of more than half the vacancies is
per se destructive of the provisions of Art. 15 ( 1) which
is to the effect that the State shall not discriminate
against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them. Adverting to the effect
of such reservation this Court has observed at p. 467 :
"But if a provision which is in the nature of an exception completely excludes the rest of the society,
that clearly is outside the scope of Art. 15(4). It
would be extremly unreasonable to assume that in enacting Art. 15 ( 4) the Constitution Intended to provide
that where the advancement of the Backward Class~
of the Scheduled Castes and Tribes was concerned, the
fundamental rights of the citizens constituting the rest
of the society were to be completely and absolutely ignored."
The startling effect of the carry forward rule as modified in 1955 would be apparent if in the illustration which
we have taken there were in the third year 50 total
vacancies instead of 100. Out of these 50 vacancies 9 would
be reserved for the Scheduled Castes and Tribes. Adding
to that the 36 carried forward from the two previous
years, we would have a total of 45 reserved vacancies out
of 50, that is, a percentage of 90. In the case before us 45
vacancies have actually been filled out of which 29 have
gone to members of the Scheduled Castes and Tribes on
the basis of reservation permitted by the carry forward
1963
T. Devadasan
v.
The Unio•
of India and
Another
Mudholkar, /.
1963
T. Devadasan
v.
The Union
of Indio and
Another
Mudholkar, /.
694
SUPREME COURT REPORTS
[1964J
rule. This comes to about 64.4% of reservation.
Such
being the result of the operation of the carry forward rule
we must, on the
basis of the decision in Balaji' s
case(') hold that the rule is bad. Indeed, even in The
General Manager,
Southern
Railway v. Rangachari(')
which is a case in which reservation of vacancies to be
filled by promotion was upheld by this Court, Gajendragadkar, J., who delivered the majority judgment observed:
"It is also true that the reservation which can be made
under Art. 16(4) is intended merely to give adequate
representation to backward communities.
It can-·
not be used for creating monopolies or for unduly or
illegitimately disturbing the legitimate interests
of
other employees. In exercising the powers under Art.
16(4) the problem of adequate representation of the
backward class of citizens must be fairly and objectivdy considered and an attempt must always be made
to strike a reasonable balance between the claims
of backward classes and the claims of other employees
as well as the important consideration of the efficiency
of administration ; ........ "
It is clear from both these decisions that the problem of
giving adequate representation to members of backward
classes enjoined by Art. 16( 4) of the Constitution is not
to .be· tackled by framing a general rule without bearing
in mind its repercussions from year to year. What precise
method should be adopted for this purpose is a matter for
the Government to consider. It is enough for us to say
that while any method can be evolved by the Government
it must strike "a reasonable balance between the claims of
the backward classes and claims of other employees" as
pointed out in Balaji' s case(').
.
We would like to emphasise that the guarantee contained in Art. 16 ( 1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to· any office under the State. Tills 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
(1) [1963] Supp. I S.C.R. 439.
(•) [ 1962 J 2 S.C.R. 536.
,
• ,,
-
-
4 S.C.R.
SUPREME COURT REPORTS
695
is seeking employment or appointment to an office under
the State is entitled to be afforded an opportunity for seeking su<:h employment or appointment wli.enever 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.
Further, this Court has already held that cl. (4) of
Art. 16 is by way of a proviso or an exception to cl. (1).
A proviso or an exception cannot be so interpreted as to
nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under
cl. ( 4) would in effect efface the guarantee contained in
cl. (1) or at best make it illusory. No provision of the
Constitution or of any enactment can be so construed as
to destroy another provision contemporaneously enacted
therein. It is true, as pointed out by Mr. Ganapathy Iyer
on behalf of the respondent, that effect must be given to
the express words of Art. 16(4). "Nothing in this Article shall prevent the State from making any provision for
the reservation of appointments . . . . . . . . etc.," but that
does not mean that the provision made by the State should
have the effect of virtually obliterating the rest of the Article, particularly els. (1) and (2)' thereof.
The overriding effect of cl. (4) on els. (1) and (2) could only exten~ to the making of a reasonable number of reservation
of appointments and posts in certain circumstances. That
is all.
. Going back on his earlier concession, it was contended ,by Mr. Gopalakrishnan on behalf of the petitioner, that
there can possibly be no reservation whatsoever in favour
of members of Scheduled Castes or Tribes or any of the
backward classes and that the proper way of discharging
the duty laid upon the State by Art. 16( 4) of the Constitution would be to adopt a method of the kind which has
. appealed to the Government of Mahara.shtra in exercising
its powers under Art. 15( 4). In this connection he has
referred us to the following passage from the judgment of
this Court in Balaji's case(') :
(1) [1963 J Supp. I S.C.R. 439.
1963
T. Devad'1SMn
v.
The Union
of India and
Another
Mudholkar, f.
1963
T. Devadasan
v.
The Union
of India •nd
Another
Mudholl(ar, /.
696
SUPREME COURT REPORTS
[1%4]
"It appears that the Maharashtra Government has
decided to afford financial assistance, and make monetary grants to students seeking higher education
where it is shown that the annual income of their
families is below a prescribed minimum. The said
scheme is not before us and we are not called upon to
express any opinion on it. However, we may observe
that if any State adopts such a measure, it may atton1
relief to and assist the advancement of the Backward
Classes in the State, because backwardness, social and
educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and
more educational institutions, polytechnics, vocational
institutions and even rural Universities and thereby
create more opportunities for higher education. This
dual attack on the problem posed by the weakness of
backward communities can claim to proceed on a rational, broad· and scientific approach which is consistent with, and true to, the noble ideal of a secular welfare democratic State set up _by the Constitution of
this country. Such an approach can be suppkmented.
if necessary by providing special provision by way of.
reservation to aid. the backward classes and
Scheduled Castes and Tribes. It may well be that there
may be other ways and means of achieving the same
result. In our country where social and. economic
conditions differ· from State to State, it would be idle
to expect absolute uniformity of approach ; but in taking executive action. to implement the policy of Art..
15 ( 4) it is necessary for the States to remember
that the poficy which is intendea to be implemented is the policy which has been declared by Art. '16
and the preamble of the Constitution.