# SECRETARY ON BEHALF OF THE ASSOCIATION v. UNION OF INDIA AND ORS

- **Citation:** [1981] 2 S.C.R. 185
- **Court:** Supreme Court of India
- **Decided:** 1980-11-14
- **Case number:** Writ Petition Nos. 1041-1044 of 1980
- **Bench:** V. R. Krishna Iyer, R. S. Pathak, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/secretary-on-behalf-of-the-association-v-union-of-india-and-ors-8199
- **Pages:** 81

## Headnote

Cvnstztution of India, 1950-Arts. 16, 46 and 335-Scope of-Reseri.·ation
of posts under the St11te in favour of Scheduled Castes and Scheduled TribtsCar1y fonvard of unfilled posts for three years-validity of--
Jn so far as the initial recruitment and later promotion to classes II, III and
IV are concerned, the Railway Administration provided for reservation of certain percentage of vacancies for candidates belonging ito the Scheduled Castes
and Scheduled Tribes. Since, despite the special provision the intake of these
comrnunities into the Railway Services continued to be negligible further conB
c
cessiom and relaxations were offered from time to time to members belonging
D
to the Scheduled Castes and Scheduled Tribes. Even So, in ma.ny cases the
vacancies reserved for them remained unfilled. Yet another step taken by 'he
Railway Administrotion to lteep open the reserved vacancies was to adopt a
policy of "carry forward" of, the unfilled reserved vacancies for at least three
years.
Jn obedience to the policy decisi0n of the Ministry of Home Affairs, the
E
Railway Board issued certain directives designed to protect and promote the
interest of members of the Scheduled Castes and Scheduled rfribes in the matter
of their employment in the· Railway Administration.
The policy directive· of
reserving certain percentage of posts in favour of these communities having not
proved effective, the Railway Board altered the rules "with a view to securing
increased representation of Scheduled Castes and Scheduled Tribes
in
the
Rail\vay Services" (Annexure D). The Railway Board authorised the recruitF
ing bodies to slur over low places obtained by Scheduled Castes and Scheduled
Tribes candidates except where it was fotlnd that the
minimum
standard
~necessary for the maintenance of efficiency 1 of the administration has not been
,-
reached.
The appointing authorities were directed to give additional training
and coaching to the recruits so that they might come up to the standard of
ot~1er recruits appointed alongwith them.
Likewise where direct recruitment,
otherwise than by examination, was provided for, the Railway Board directed
G
the selection of Scheduled Castes and Scheduled Tribes
candidates fulfilling
a lower standard of suitability than from other communities, so Jong as the
canc.Tidates had the prescribed minimum educational and technical qualifiootion111
and the appointing authorities were satisfied that the lowering of standard5
would not unduly affect the maintenance of efficiency of administmtion.
ln the case of selection posts the Railway Board decided that promotions
from class IV to class ID and from class Ill to class II were of the nature of
H
direct recruitment and the prescribed quota of reservation for Scheduled Castes
and Scheduled Tribes should be provided as in direct recmitment. This reser-
A.
B
c
D
E
F
G
186
SUPREME COURT REPORTS
[1981) 2 S.C.R.
vation was confined to 'selection posts'. In regard to filling of "general posts"
in class Ill it was stated that they were in the nature of direct recruitment and
the reservation for Scheduled Castes and Scheduled Tribes as applicable ta
din~...:t recruitment should be applied. (Annexure F).
In 1969 the Railway Beard further revised their policy in regard to the
rescr,,:arion and other concessions to the Scheduled Castes and Scheduled Tribes
candidates in posts filled by promotion (Annexure H).
The circular statt:d
tbnt in promotion by selection from class III to class II, if a member of the
Scheduled Castes and Scheduled Tribes was within the zone of eligibility the
employee would be given one grading higher than the grading otherwise assignable to him on the basis of his record of service.
Jn April, 1970 the percentage of vacancies to be reserved for Scheduled
~--
Castes and Scheduled Tribes was raised from 12-!-% and 5% to 15% and
7to/o reipectively (Annexure I). By the same order the
11carry forward" rule
\.Vas altered from 2 to 3 years.
In 1973 the Railway Board issued

## Text

_Characters 0–39,710 of 215,975. This is a partial read: ask again with offset=39710 for what follows._

185
AKHJL BHARATIYA SOSHIT KARAMCHARI SANGH (RAILA
WAY) REPRESENTED BY ITS ASSISTANT GENERAL
SECRETARY ON BEHALF OF THE ASSOCIATION
v.
UNION OF INDIA AND ORS.
November 14, 1980
[V. R. KRISHNA IYER, R. S. PATHAK AND 0. CHINNAPPA REDDY, JJ.J
Cvnstztution of India, 1950-Arts. 16, 46 and 335-Scope of-Reseri.·ation
of posts under the St11te in favour of Scheduled Castes and Scheduled TribtsCar1y fonvard of unfilled posts for three years-validity of--
Jn so far as the initial recruitment and later promotion to classes II, III and
IV are concerned, the Railway Administration provided for reservation of certain percentage of vacancies for candidates belonging ito the Scheduled Castes
and Scheduled Tribes. Since, despite the special provision the intake of these
comrnunities into the Railway Services continued to be negligible further conB
c
cessiom and relaxations were offered from time to time to members belonging
D
to the Scheduled Castes and Scheduled Tribes. Even So, in ma.ny cases the
vacancies reserved for them remained unfilled. Yet another step taken by 'he
Railway Administrotion to lteep open the reserved vacancies was to adopt a
policy of "carry forward" of, the unfilled reserved vacancies for at least three
years.
Jn obedience to the policy decisi0n of the Ministry of Home Affairs, the
E
Railway Board issued certain directives designed to protect and promote the
interest of members of the Scheduled Castes and Scheduled rfribes in the matter
of their employment in the· Railway Administration.
The policy directive· of
reserving certain percentage of posts in favour of these communities having not
proved effective, the Railway Board altered the rules "with a view to securing
increased representation of Scheduled Castes and Scheduled Tribes
in
the
Rail\vay Services" (Annexure D). The Railway Board authorised the recruitF
ing bodies to slur over low places obtained by Scheduled Castes and Scheduled
Tribes candidates except where it was fotlnd that the
minimum
standard
~necessary for the maintenance of efficiency 1 of the administration has not been
,-
reached.
The appointing authorities were directed to give additional training
and coaching to the recruits so that they might come up to the standard of
ot~1er recruits appointed alongwith them.
Likewise where direct recruitment,
otherwise than by examination, was provided for, the Railway Board directed
G
the selection of Scheduled Castes and Scheduled Tribes
candidates fulfilling
a lower standard of suitability than from other communities, so Jong as the
canc.Tidates had the prescribed minimum educational and technical qualifiootion111
and the appointing authorities were satisfied that the lowering of standard5
would not unduly affect the maintenance of efficiency of administmtion.
ln the case of selection posts the Railway Board decided that promotions
from class IV to class ID and from class Ill to class II were of the nature of
H
direct recruitment and the prescribed quota of reservation for Scheduled Castes
and Scheduled Tribes should be provided as in direct recmitment. This reser-
A.
B
c
D
E
F
G
186
SUPREME COURT REPORTS
[1981) 2 S.C.R.
vation was confined to 'selection posts'. In regard to filling of "general posts"
in class Ill it was stated that they were in the nature of direct recruitment and
the reservation for Scheduled Castes and Scheduled Tribes as applicable ta
din~...:t recruitment should be applied. (Annexure F).
In 1969 the Railway Beard further revised their policy in regard to the
rescr,,:arion and other concessions to the Scheduled Castes and Scheduled Tribes
candidates in posts filled by promotion (Annexure H).
The circular statt:d
tbnt in promotion by selection from class III to class II, if a member of the
Scheduled Castes and Scheduled Tribes was within the zone of eligibility the
employee would be given one grading higher than the grading otherwise assignable to him on the basis of his record of service.
Jn April, 1970 the percentage of vacancies to be reserved for Scheduled
~--
Castes and Scheduled Tribes was raised from 12-!-% and 5% to 15% and
7to/o reipectively (Annexure I). By the same order the
11carry forward" rule
\.Vas altered from 2 to 3 years.
In 1973 the Railway Board issued a directive stating that the quota of 15%
and 7!% for Scheduled Castes and Scheduled Tribes may be provided in prori.1otion to the categories and posts in classes I, II, III and rv filled on the
basis of the seniority:cum-suitability provided the element of direct recntitment
to those grades does not exceed 50% (Annexure K).
In Au,iust, 1974 the Rail11;'RY Board further directed that if the requisite
nan1ber of Scheduled Castes and Scheduled Tribes candidates were not available
for being: placed on the panel in spite of the various relaxations the best among
thetn i.e. those who secure highest marks should be earmarked for being placed
on the panel to the extent vacancies had been reserved in their favour.
The
Scheduled C«stes and Scheduled Tribes candidates so earmarked might be promoted ad hoc for a period of six months against the vacanci~s reserved for
them.
During the period of six months the administration was asked to give
them all facilities for improving their knowledge and for coming
upto the
requisite standard. This procedure \Vas required to be applied in cases of promotion to the posts filled on the· basis of seniority-cum-suite.bility (Annexurc
Nl.
A further modification to the then existing rules was made by Annextue--.
'O' which stated that "restrvations in posts filled by promotion under
the
existing scheme would be applicable to all grades or services where the element
of direct recruitment, if any, does not exceed 66 2/3% as against 50% as at
present".
It \.Vas contended on behalf of the petitioners the.t Scheduled Castes cannot
be a favoured class in the public services because (i) they are "castes"
and
cannot claim preference qua castes unless specially saved by Article 16(4)
which speaks of "class" and not "castes", (ii) tho.t Article 16(4) could not
apply to promotional levels and (iii) efficiency of administration envisaged
H
by Article 335 had been jeopardised by the impugned circulars which fomented
frustration atnong the civil services and produced inefficiency by placing men
of lower efficiency and less experience in higher posts.
•
AKHIL BHARATIYA SOSHIT KARAMCHAR! v. UNION
187
A preliminary objection was raised that since the first petitioner was
an • A
unrecognised union, it was not a "person aggrieved" and so its petition was
unsustainable.
Dismissing the petitions
[Per majority Krishna Iyer and Chinnappa Reddy, JJ, Pathak J. concurring
in the result with reservation on certain questions]
There is nothing Hlegal or unconstitutional in the impugned orders.
[Per Krishna Iyer, J]
The argument that since the first petitioner was an un-recognised association
B
the petition is not sustainable must be overruled because whether the petitioners
btlonged to a recognised union or not, the fact remains that a large body of
r-crsons with a common grievance exists and they approached this Court under
C
Article 32.
Our current processual jurisprudence is broad-based and peopleoriented and envisions access to justice through "class actions", "public interest
litigation" and "representative proceedings".
The narrow concept of cause of
action and per!on aggrieved and individual litigation is becoming obsolescent
in some jurisdictions. [224 G-HJ
The well settled position in law is that the State may classify, based upon
D
substantial differentia, groups or classes and this process does not necessarily
bfJCll violation of Articles 14 to 16.
Therefore, in the present case if the
Scheduled Castes and Scheduled Tribes stand on a substantially different footing
they may be classified groupwise a.nd treated separately. [232 B-C]
The fundamental right of equality of opportunity has to be read as justifying the categcrisation of Scheduled Castes and Scheduled Tribes separately for
E
the purpose of "adequate representation'' in the services under the State. The
object is constitutionally sanctioned in terms as Article 16(4) and 46 specificate.
The classification is just and reasonable. [233 G-Hl
Apart from Article 16(1), Article 16(2) expressly forbids discrin1ination on
the ground of caste and here the question- nrises as to whether the Scheduled
Castes and Tribes are castes wit'hin the meaning of Article 16 (2). Assuming
rhat there is discrimination, Article 16(2) cannot be invoked unless it is predicate:d that the Scheduled Castes are "castes
1'.
There are sufficient indications
in the Constitution to suggest that the Scheduled Castes are not mere castes.
They may be something less or something more and the time badge is not the
fact that the members belong to a caste but the circumstance that they belong
to an indescribably backward human group. [234 A-CJ
F
.i\rticles 14 to 16 form a Code by thcm5elves and contain a con~titutional
G
fundamental guarantee. The Directive Principles which are fundamental in the
f;JVernance of the country enjoin upon the State the duty to apply that principle in making laws. Article 46 obligates the State to promote with special care
the educational and economic interests of the weaker sections of the peuple
and in particular of the Scheduled Castes and the Scheduled Tribes.
Article
46 read with Article 16(4) makes it clear that the exploited lot of the harijan
gr~ups in the past shall be extirpated v;'ith special care by the State. [210 E;
H
21 J A-€1
J3·--128JSCl/80
A
B
188
SUPREME COURT REPORTS
[1981] 2 S.C.R.
At the s<1n1e time reservations under Article 16(4) and promotional <>tratc
gies under Article 46 should not be used to imperil administrative efficiency in
the name of concessions to backward classes.
The positive accent of Article
335 is that the claims of these communities to equalisation of representation in
se11lices under the State shall be taken into considerarion.
The neg.ative element
of this Article is that measures taken by the State pursuant to the mandate of
Articles 16(4), 46 and 335 shall be consistent with and not subversive of the
maintenanĬ of efficiency of a.drninistration. [211 D-F]
Under Article 341, Scheduled · Castes become such only if the
President
SjJecifies any castes, races or tribes or parts or groups within castes, races
or
tribes for the purpose of the Constitution.
It is the socio-economic backward
ness of a social bracket that is decisive and not mere birth in a caste. [212 A]
C
A nnexurc F relates only to selection posts and has been expressly upheld in
)
Rt˽ny,achari's case.
The quantum of reservation is not excessive; the field of
eligibility is not too unreasonable; the operation of the reservation is limited to
selection posts and no relaxation of qualifications is written into
the
circu1ar
c˼\cept that candidates of the Scheduled Castes and Scheduled Tribes com
munities should be judged in a sympathetic rrmnner.
Moreover administrative
efficiency is secure because there is a direction to give such
staff
additional
D
training and coaching, to bring them upto the standard of others. [239 F-G]
E
F
Thcr.:: is no vice in giving one grade higher than is otherwise assignablĭ t.o
an cmp!oyee. based on the record of bis service rendering
the
promotional
prospects unreasonable because this concession is confined to only 25% of the
t'oĮį1l number of vacancies in a particular grade· or post filled in a year and there
is no rampant vice of every harijan jumping over the heads of others.
More
in1portantly, thi:5 i5 only an administrative device of showing a concession or
furtherance of prospects of selection.
Even a5 under Articles 15(4) and 16(4)
!c˻<>c-r marks are prescribed a:5 sufficient for these communities or extra marks
ate ndded to give them an advantage, the regrading is one more method uf
bocİting the chances of selection of these communities.
The prescribed mini1num qualification and standard of fitness are continued even for Scheduled
Castes and Scheduled Tribes under Annexure H. [240 B-D]
A.nncxurc I is un-exceptionable since all that it does is to readjust the pro
pcrtion of reservation in conformity with the latest census. [240 E-F]
Simi1<1rly "c:1rry forw-ard" raised from two years to three years cannot be
'i.._ruck down.
There is no prospect, even if the vacancies are carried forward,
of sufficient nun1bcr of Scheduled Castes and Scheduled Tribes candidates turn-
·G
ing out to fill them.
Moreover, there is a provision that if a sufficient number
of cnndidate:5 from these communities are not found, applioonts from the un
;eserved communities \Vould be given appointment provisionafly.
After !bree
years these vac<l<ncies. cease to be reserved. [240 G-A]
EYen in Dýva.dasan's case, this Court hM laid down the proposition that
llnder Article 16(4) reservation of n reasonable percentage of posts for mem
H
hers of the Scheduled
Castes and Scheduled
Tn'bles is within the
competence
of the State. What was struck down was that the reservations should not be
so e^cessive as to create a monopoly or to disturb unduly the legitimate claims
'
o! otner communities.
By this rule there is no danger of the total vacancies
I
-
-
AKHIL BHARATIYA SOSHIT KARAMCHARI V. UNION
189
being gobbled up by the harijan/girijan groups virtually obliterating Article
A
16(1).
The problem of giving adequate representation to backward classes
under Article 16(4) is a matter for the Government to consider, bearing
in
mind lhe need for a reasonable balance between the rival claims. [241 B-F]
Su.bject t'o the condition that the carry forward rule shall not result in .-ny
given year in the selection or appointment of Scheduled Castes and Scheduled
·rribes; candidates considerably in excess of 50%, the Annexure I is upheld.
B
[242 El
There is nothing unreasonable or wrong in Annexure J.
Once the parameters of reservation are within the framework of the
fundamental
rights,
minute 'Scrutiny of every administrative measure is not permissible. [242 F]
1.1.nnexure K is beyond reproach.
As between seleotion and non-selecti,in
po~ts the role of merit is functionally more relevant in the former than in the C
IJ.Uer.
If in selecting top officers, posts could be reserved for Scheduled Castes
and Scheduled Tribes with lesser merit it cannot rationally be argued that for
the posts of peons, or lower division clerks reservation would spell calamity.
The port that efficiency plays is far more in the case of higher posts than in
the appointments to the lower posts. [243 DJ
Dilution of efficiency caused by the minimal induction of a small percentage
D
of reserved candidates cannot affect the over-all administrative efficiency significantly.
Moreover, care has been ta.ken to give in-service training and coaching
1o correct the deficiencies. [244 B-C]
[Cninnappa Reddy, l concurring]
The preamble to the Constitution of India proclaims the resolution of the
people to secure to all its citizens justice, social, economic and political, equality
of status and opportunity and to promote fraternity assuring the dignity of the
inC!.ividual.
The right to equality before the law and equality of opportunity
in the n1atter of public employment are guaranteed as fundament::il rights.
The
State is enjoined upon by the Directive Principles to promote the welfare of the
people, to endeavour to eliminate inequalities in status, facilities and opportunitie~ and special provisions have been made, in particular~ for the protection
and advancement of the Scheduled Castes and Scheduled Tribes in recognition
.
of their Jow social and economic status and their failure to avail themselves of
~ny opportunity of self-advancement.
Jn short the constitutional goal is the
estab~ishment of a socialist democracy in which justice-economic, social and
politiool is secure and all men are equal and have equal opportunity. InequaJitY
whetl.er of status, facility or opportunity is to end, privilege is to cease and
exploHation is to go.
The under-privileged, the deprived and the exploited are
10 he protected and nourished so as to take their place in an egalitarian society.
State action is to be towards those ends.
It is in this context that Article 16
has to be interpreted when State action is questioned as contravening Article
16. [255 A-Fl
A. Constitution, such as ours, must receive generous interpretation so as to
give alt its citizens the full measure of justice so proclaimed. While interpreting tile Constitution the expositors must concern themselves not so much with
-.vord' as with the spirit and sense of the Constitution which could be found in
the Preamble the Directive Principles and other such provisions.
[256 G]
E
F
G
H
A
B
c
D
E
F
G
190
SUPREME COURT REPORTS
[1981] 2 S.C.R.
At one time it W..s assumed that because the fuAdamental rights are enforce·
obJe in a court of law while Directive Principles are not, the
former
were
superior to the latter, that way of thinking has become obsolete. The current
thin king is that while Fundamental Rights are primarily aimed at assuring political freedom to the citizens against excessive State action, the Directive Princi·
ples nre aimed at securing social and economic freedoms by appropriate State
action.
The Directive Principles are made un..enforceabte in a limited sense,
because no Court can compel a Legislature to make laws.
But that does not
mean that they are less important than Fundamental Rights or that they are
not binding on the various organs of the State.
They are all the same funda·
mental in the governance of the country and it shall be the duty of the State
to npply these principles in making laws. The Directive Principles should serve
lbe Courts as a Code of Interpretation. Every law attacked on the ground of
infringement of Fundamental Right should be examined to see if the impugned
law does not advance one or other of the Directive Principles or if it is not
in the discharge of some of the undoubted obligations of the State towards its
citizens flowing out of the Preamble, the Directive Principles and other provisions of the Constitution. [257 A-0]
Reservation of posts and all other measures designed to promote the parti·
cipation of the Scheduled Castes and Scheduled Tribes in public services at
an levels are a necessary consequence flowing from the Fundamental Rights
r,110ranteed by Article 16 (I). This very idea is emphasized further by Article
lt(4) which is not in the nature of an exception to Article 16(1) but a facet
of that Article. In the State of Kerala v. NM. Thomas the court has repudia·
ted the theory propounded in earlier cases that Article 16(4) is in the nature
of an exception to Article 16(1). It is no longer correct to say
that laws
aimed at achieving equality as permissible exceptions.
Such laws are neceMary
incidents of equality. [258 D-F]
Minister of Home Affairs v. Fisher [1979]3 All E.R. 21, State of Kerala &
Anr. v. N.M. Thomas & Ors. [19761 1 S.C.R. 906 @ 930-933 and The General
Manager, Southern Railway v. Rangachari [1962]2 S.C.R. 586 referred to.
The fignres quoted from the report of the Commissioner of Scheduled Castes
and Scheduled Tribes for the year 1977-78 reveal how slow and insignificant
the progress achieved by the members of these
communities in the matter of
participation in the Railway Administration had been. Far from acquiring any --1
monopolistic or excessive representation over any category of posts these communities are nowhere near being adequately represented.
Neither the reserva~
tion rule nor the "carry forward" rule for these years has resulted in any ~ucb
disastrous consequence.
Therefore, the complaint of the petitioners that the
circulars had resulted in excessive representation of these communities is without
foundation generally or with reference to any particular year. [246 D-G]
There is no substance in the argument that efficiency
of administration
would suffer if the Railway Board's directives were followed in the matter of
re!lervations and promotions.
The Railway Board had stated that minimum
H
standards were insisted upon for every appointment and in the case of candidates
wanting in requisite standards of efficiency those with higher marks were given
special intensive training to enable them to come up to the requisite standards.
In the case of posts which involved safety of movement of trains there was no
- ' . ,..,_,,,,_
~-
-
•
AKHIL BHARATIYA SOSHIT KARAMCHARJ; V. UNION
191
relaxation of standards in favour of candidates belonging to Scheduled Castes
A
and Scheduled Tribes and they were required to pass the same rigid tests as
others. [265 A·Bl
There is no fixed ceiling to reservation or preferential treatment in favour
uf ;he Scheduled Castes and Scheduled Tribes though generally reservation
may not be far in excess of 50% about which there is no rigidity. Every caso
must be decided on its own facts. [265 E]
B
There is nothing illegal or unconstitutional in any one of the
impugned
orders and circulars. [265 G]
,, < [Pathak J concurring in the result '~rith reservation on certain questions.]
Article 46 of the Constitution enjoins upon fhe State to treat with special
care the educational and economic interest of the weaker sections of the people
and in particular the Scheduled Castes and Scheduled Tribes. One
of tho
modes in which the economic interest of these communities can be promoted
is by reservation of appointments or posts in their favour in services
under
the State where they are not adequately represented. By virtue of Article
16(4), when the State intends to ma.ke reservation of appointments or posts
in favour of these
communities in services
under it nothing in
Article 16
prevents it from doing so. Article 335 provides that claims of the membera
of these communities
shall be taken into
consideration in the making
of
appoir.t111ents to services and posts in connection with the affairs of the Union or
a State.
But such consideration must be consistent with the maintenance of
efficiency of administration which is regarded as paramount. It is dictated by
the common good and not of a mere section of the people. Therefore, whatever is done in considering the claims of Scheduled Castes
and Scheduled
Tribes must be consistent with the need for maintenance of efficiency of administration. This Article contains a single principle, namely, the advancement
of Scheduled Castes and Scheduled Tribes but through modes and avenues
which must not detract from the maintenance
of an efficient administration. [250 B-H]
For securing an efficient administration the governing criterion in the me.tter
~
of appointments to posts under the State is:
excellence and the emphasis is
5olely on quality. The selection is made regardless of religion, race, caste,
sex, descent, place of birth or residence. However, a quota of the
posts
may be reserved in favour of backwe.rd citizens. But the interests of efficient
administration require that
at least half the total number of posts be
kept
open to attract the best of the nation's talent. If it was otherwise an excess
of the reserved quota would convert the State service into a collective membership predominantly of backward classes. The maintenance of efficiency of
administration is bound to be adversely affected if general candidates of high
merit are correspondingly excluded from recruitment. Viewed in that light the
maximum of 50% for
reserved quota appears fair and reasonable,
just
and equit•ble violation of which would contravene Article 335. [251 B-D]
M. R. Balajf v. State of Mysore [1963] Supp. I S.C.R. 439, 470, T. Devadasan v. Union of lndia [1964]4 S.C.R. 680 and State of Kera/a v. N. M.
Thomas [1976]1 S.C.R. 906 referred to.
c
D
E
F
G
H
A
192
SUPREME COURT REPORTS
[1981] 2 S.C.R.
ORIGINAL JURISDICTION: Writ Petition Nos. 1041-1044 of 1980.
(Under Article 32 of the Constitution)
Shanti Bhushan, K. K. Venugopal, A. T. M.
Sampath,
P.
N.
Ramalingam and R. Satish for the Petitioner.
B
Lal Narain Sinha, Att. General of India, M. K. Banerjee,
Addi.
c
D
Sol. Genl. and Miss A. Subhashini for Respondents Nos. 1-5.
P. R. Mridul, P. H. Parekh, C. B. Singh, B. L. Verma, Rajan
Karanjawal and Miss Vineeta Caprihan for the Intervener.
K. B. Rohtagi and Praveen Jain for the Intervener.
R. K. Garg and P. K. Jain for the Intervener.
S. K. Bagga for the Intervener.
Alta/ Ahmed for the Intervener.
S. Ba/akrishnan for the Intervener.
P. Ii. Parekh for Respondent No. 6 in W.P. No. 1042/79.
The following judgments were delivered :
KRISHNA IYER, J.
E
The Root Thought
The abolition of slavery has gone on for a long time.
Rome
abolished slavery, America abolished it, and we did, but only the words
were abolished. not the thing.(')
This agonising gap between hortative hopes and
human dupes
F
vis a vis that serf-like sector of Indian society, strangely described as
Scheduled Castes and Scheduled Tribes (SCs and STs, for short), and
the administrative exercises to bridge this big hiatus by processes like
_...,
reservations and other concessions in the field of public employment,
is the broad issue: that demands constitutional examination in the Indian
setting of competitive equality before the law and tearful inequality in
G
life.
A fasciculus of directions of the Railway :Soard
has
been
attacked as ultra vires and the court has to pronounce on it, not philo·
sophically but pragmatically.
"The philosophers have only interpreted the world in various ways; the point is to change it"( 2)-this was
the founding fathers' fighting faith and serves as perspective-setter for
the judicial censor.
H
(I} Leo N. Tolstoy.
(2) Theses on Feuerbach (1888) xi.
•
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AKHIL BHARATIYA SOSHIT KARAMCHARI v. UNION (Krishna Iyer, !.) 19 3
The Backdrop
The social backdrop to the forensic problem raised in this litigation is best projected by lines of poetry quoted in Nehru's Autobiography : (')
Bowed by the weight of centuries he leans
Upon his hoe and gazes on the ground,
The emptiness of ages on his face,
And on his back the burden of the world.
The Problem
The dynamics and dialectics of social justice vis a vis the specia~
provisions of the Constitution calculated to accelerate the prospects of
employment of the harijans and the girijans in the civil services with
particular emphasis on promotions of these categories! in the Indian
Railways-that, in all these cases, is the cynosure ofl judicial scrutiny,
from the angle of constitutionality in the context ofl the guarantee of
caste-free equality to every person.
Petitioners' Challenge
The gravamen of the constitutional accusation levelled in this bunch
of quasi-class actions under Art. 32 of the Constitution and argued
by a battery of counsel led by Shri Shanti Bhushan, with heat and
light, passion and reason, is the heartless discrimination shown against
vnst numbers of members employed by the Railway Administrati011,
through its policy directives, by bestowal of unconscionably 'pampering' concessions, at promotion levels, on these social brackets belonging to the historically suppressed SCs & STs, .heedless
o-f
over-all
administrative efficiency in the Indian Railways and frustrating
the
promotional hopes of the larger human segments of economically downtrodden senior members.
The fall-out of this 'benign Ji>crimination'
.
of helping out the weakest sections has been to blow up, out of all
~, proportion to the social realities, the' 'backwardness' syndrome so as to
embrace many politically powerful castes disguised as Backward
Classes.
This constitutional amulet, rooted largely in ~aste, the petitioners lament, has heen misused and applied
in educational
and
employment fields 0'11 an escalating scale.
The perverted result is that
a caste-riven nation is a spectre that haunts the land, pushing back
the patriotic prospect of a homogenised Indian Society of casteless
equality and projecting instead the divisive alternative cf a heterogeneous caste map of Bharat.
The fundamental failure of this sterile
scheme of reservation-wise circumvention of the fundamental right to •
equality, ideologically and pragmatically speaking, has deepened the
pathological cc 1ndition of communalism besetting the Indian
polity
(I) Allied Publishers Pvt. Ltd. 1962 Edn., p. 439.
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and split the have.nots into snarling camps-a consummation disastrously contrary to the constitutional design of abolition
of socioeconomic inequality through activist stratagem of equalisation geared
to actual attainment of integrated equality.
Logically. the argument leads to the formulation that each caste
and community is bargaining politically for bigger bites of the educational-and-employment cake so much so merit becomes irrelevant or
takes a back seat and 'backward' birth brings1 a boon.
The constitutional stultification of an integrated India through misuse of 'reservation' power provided for in' Arts. 15 and 16 meant for the direct 'dalits',
the pollution, by the political Executive, of our founding creed o~ an
egalitarian order by playing casteification politics and the morbid dilution of 'hackwardness' marring the dream of a secular republic by the
nightmare of a feudal vivisection of the people--if this picture drawn:
by some counsel be true, even in part, the basid task of transforming
the economic order through social justice will be baulked through destructive communal disputes among the masses.
Maybe,
this
may
weaken the social revolution, leave an indelible stain and incurablel
wound on the body politic and justify the censure by history of the
engineers of our political power and electoral processes.
Hearing the
arguments of the petitioners one wonders, "Is caste the largest political
party T' Has protective discrimination, so necessary in an insufferably unequal society, created a Frankenstein's monster?
Have we no dynamic measures to drown social,
e~onomic and
educational backwardness of whole masses except the traditional selfperpetuating qnasi-apartheidisation called 'reservation'? Surely, our
democratic, secular socialist republic is no wane moon but a creative
power rooted in equal manhood, an egalitarian reservoir of vast human
potential, a demographic distribution of talent benumbed by brahman
centuries of soda! injustice but now seeking human expression under
a new dispensat;on where 'chill penury' shall no longer 'repress their
noble rage'.
Caste, undoubtedly, in a deep-seated pathology to eradicate which
G
the Constitution took care to forbid discrimination based on caste,
especially in the field of education and services under the State. The
rulings of this court, Interpreting the relevant Articles, have hammered
home the point that it is not constitutional to base identification of
backward classes on caste alone qua caste. If a large nnmber of castes
masquerade as backward classes and perpetuate that division Jn eduH cational campuses and public offices, the whole process1 of a caste.free
sodety will be reversed.
We are not directly concerned '>'ith backward classes as such, hut with the provisions ameliorative of
~he
AKHIL BHARATIYA SOSHIT KARAMCHARI v. UNION (Krishna Iyer, J.) 19 5
~cheduled Castes and the Scheduled Tribes.
Nevertheless, we have!
to consider seriously the social consequences of our interrretation of
Art. 16 in the light of the submission of counsel that a vested interest
in the caste system is being created and perpetuated by over-indulgent
concessions, even at promotional levels, to the Scheduled Castes and
the Scheduled Tribes, which are only a species of castes.
"Each
according to his ability" is being substituted by "each according to hi$
caste", argue the writ petitioners and underscore the unrighteous march
of the officials belonging to the SCs & STs over the humiliated head~
of their senior and more meritorious brothers in service.
The aftermath of the caste-based operation of promotional preferences is stated
to be deterioration in the over-all efficiency and frustration in the ranks'.
. of members not fortunate enough to be born SCs & STs.
Indeed, the
'inefficiency' bogie was so luridly presented that even the railway accidents and other operational cala~ities and managerial failures were
attributed to the only villain of the .piece viz., the policy of re9~rvation
in promotions.
A constitutionally progressive policy of advantage in
educational and ofljcial career based upon economic rather than social
backwardness was commended before us by counsel as more in keep·
i'ng with the anti-caste, pro--egalitarian tryst with our constitutional
destiny.
And, Shri Shanti Bhushan, at one stage, helped the court
realise the consequences of its verdict if it upheld the pampering
package of promotional preferences by warning us of running battles
in the streets, a sort of caste-war, against birthbased 'privileges' for the
harijan-girijan millions.
Our Approach
Of course, judicial independence has one
dimension, not fully
realised by some friends of freedom.
Threats of mob hysteria shall
not deflect the court from its true accountability to the Constitution,,
its spirit and text belighted by all the sanctioned materials
The other
invisible sacrifice of judicial independence relevant to this case is the.
unwitting surrender ta "the spirit of the group in which the accidents
of birth or education or occupation or fellowship have given us (judges)
a place.
No effort or revolution of the mind will overthrow utterly
and at all times the empire of these subconscious loyaltiea." (')
We
quote what the great Justice Cardozo has courageously confessed : (2)
~ ;--
I have spoken of the forces of which judges avowedly
avml to shape the form and content of their judgments.
Even these forces are seldom fully in consciousnesG.
They
he so near the surface, however, that their existence
and
(1) Benjamin N. Cardozo, The Nature of the Judicial Process p., 175.
(2) Ibid p. 167, 169, 173-74.
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ini!uence are not likely to be disclaimed.
But the subjf.ct is
not exhausted with the recognition of their power.
Deep
below consciousness are other forces, the likes and the dislikes, t11: predilections and the prejudices, the, complex of
instincts and emotions and habits and
convictions.
which
make the man whether he be litigant or judge .... The great
tides and currents which engulf the rest of men do not turn
aside in their course and pass the judges by .... We shall
never be able to flatter ourselves, in any system of juJicial
interpretation, that we have eliminated altogether the personal measures of the interpreter.
In the moral
sciences,
there is no method or procedure which entirely supplants that
subjective reason.
We may figure the task of the judge, if
we please, as the task of a translator, the re<iding ot signs
and symbols given from without
None the less, we will not
set men to such a task, unless• they have absorbed the spirit,
and have filled themselves with a love, of the language they
must read.
The British ,echo of this judicial weakness is heard in Prof. Griffith's'
words : (')
These judges have by their education and training and
the pursuit of their profession as barristers, acquired a strikingly homogenous collection of attitudes, beliefs and principles, which to them represents the public interest
The emphasis on the subtle invasions from within upon functional'
autonomy and forensic objectivity mentioned by Cardozo will be evident when we turn lo the pathetic saga of the depressed cl..tsses, even
today, painted by tbe other side.
The learned Attorney General, less.
i'
militant but not less firm in his submissions, called all this :~ caricature
G
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of the poignant facts of life and called upon us to assess the facts with -.t!
cold objectivity and warm humanity casting aside pcssiblc sympathies
suggested by Justice Cardczo and Prof. Griffith.
We. as judges dcoling with a socially charged issue of constitutional
law, must never forget that the Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of
militant values to usher in a democratic, secular, socialist society which
belongs eqUlllly to the masses including the hnrijan-girijan
millions
hungering for a humane deal after feudal colonial history's Jong night.
Granville Austin(') quotes profusely from the Constituent Assembly proceeding' to rrove the goal of the Indian Constitution to
be
(1) The Politics of th~ J~diciary, p. 193.
.
.
.
(2) The Indian Constitution-Cornerstone of a Nation, Granville Austin.
AKHIL BHARATIYA SOSHIT KARAMCHARI v. UNION (Krishna Iyer, J.) 19 7
social revolution.
Radhakrishnan, representing the broad consensus,
said that(')
J;ndia n1ust have a 'socio-econon1ic
revolution'
designell
not only to bring about the real satisfaction of the fundamental needs of the C<'mmon man, but to go' rm;ch dcep;'1 and
bring about '2 tui1dan1enta] change in the ~trlicturc uf Indian
It.
sodety'.
The Cultural Core of the Constitutional Protection :
Let us get some glimpses of history to get a. hang of the problem.
'In thy book record their groans' may be the right quote to begin with.
We cannot blink at the agony of the depressed classes over the centuries condemned by all social reformers as rank irreligion and social
injustice.
Swami Vivekananda, for instance, stung by glaring social
injustice, argued(') :
The same power is in every man, to the one manifesting
more, the other less.
Where is the claim to privilege . All
knowledge is in every soul, even in the most ignorant, he has
not manifested it, but, p~rhaps he has not had the opportunity
the environments were not, perhaps, suitable to him. When
he gets the opportunity he will manifest it.
The idea that
one man is born superior to another has no
meaning in
Vedanta; that between two nations one is
superior and the
other inferior has no meaning whatsoever.
Men will be born differentiated; some will have more
power than others. We cannot stop that. ... but that on
account of this power to acquire wealth they should tyrannise and ride roughshod over those, who cannot acquire so
much wealth, is not a part of the law, and the fight has been
against that. The enjoyment of advantage over another is
privilege, and throughout ages the aim of morality has been
its destruction ....... .
Our aristocratic ancestors went on treading tne common
masses of our country under foot till they became helpless,
till under this torment the poor, poor people nearly forgot
that they were human beings. They have been compelled to
be merely hewers of wood and drawers of water for centuries,
so much so, that they are made to believe that they are born
(I) Ibid p. 27.
(2) Socio-Political Views of Vivekananda by Binoy K. Roy pp. 9, II, 26, 30-31
and 34.
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as slaves, born as hewers of wood and drawers of water.
With all our boasted education of modern times, if anybody
says a kind word for them, I often find our men shrink at
once from the duty of lifting them up, these poor downtrodden
people. Not only so, bnt I also find that all sorts of most
demoniacal and brutal arguments, culled from the crude
ideas of hereditary transmission, and other such gibberish
from the western world are brought forward in order to
brutalise and tyrannise over the poor, all the more ..... .
Aye, Brahrnins, if the Brahrnin has
more aptitude for
learning on the ground of heredity than the Pariah, spend
no more money on the Brahmin's education, but spend all
on the Pariah. Give to the weak, for there all the gift is
needed.
Our poor people, these
down-trodden masses of
India, therefore, require to hear and to
know what they
really are.