# THE STATE OF PUNJAB & ORS v. DAVINDER SINGH & ORS

- **Citation:** [2020] 10 S.C.R. 857
- **Court:** Supreme Court of India
- **Decided:** 2020-08-27
- **Case number:** Civil Appeal No. 2317 of 2011
- **Bench:** Arun Mishra, Indira Banerjee, Vineet Saran, M. R. Shah, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-punjab-ors-v-davinder-singh-ors-34495
- **Pages:** 66

## Headnote

Constitution of India - Arts. 14, 15, 16, 338, 341, 342 and
342A - Punjab Scheduled Castes and Backward Classes
(Reservation in Services) Act, 2006 - s. 4(5) - Sub-classification
within a socially and educationally backward class (caste) - The
State Government by a circular provided that out of seats reserved
for Scheduled Castes, fifty per cent of the vacancies would be offered
to Balmikis and Mazhabi Sikhs - The circular was struck down by
the High Court - The Supreme Court dismissed the S.L.P. against
the same - The Punjab Act was notified in 2006 - s.4(5) of the
Punjab Act made similar provisions as made in the circular, which
was struck down - The High Court struck down the provisions
contained in s.4(5) of the Punjab Act relying upon the decision in
E.V. Chinnaiah v. State of A.P. and Ors.- In the Supreme Court, a
three Judges Bench referred the matter to a larger Bench for
consideration opining that the judgment of a 5-Judge Bench in E.V.
Chinnaiah is required to be revisited in the light of Art. 338 of the
Constitution and not correctly following the exposition of the law
in Indra Sawhney and Ors. v. Union of India - It was noted that the
matter involved interpretation and interplay between Arts. 16(1),
16(4), 338 and 341 of the Constitution - Held: In Indra Sawhney, it
was held that it is permissible to make sub-classification within
socially and educationally backward classes - Same would be
applicable for Scheduled Castes and Scheduled Tribes as they
admittedly fall u/Art. 16(4) - The sub-classification was made
u/s.4(5) of the Punjab Act to ensure that the benefit of the reservation
percolate down to the deprived section and do not remain on paper
and to provide benefit to all and give them equal treatment - As far
as its permissibility u/Art.14 is concerned, it would be permissible
on a rationale basis to make such sub-classification to provide
benefit to all to bring equality, and it would not amount to exclusion
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[2020] 10 S.C.R.
from the list as no class (caste) is deprived of reservation in totality
- There are unequals within the list of Scheduled Castes, Scheduled
Tribes and socially and educationally backward classes - Various
reports indicate that Scheduled Castes and Scheduled Tribes do
not constitute a homogenous group - When the reservation creates
inequalities within the reserved castes itself, it is required to be taken
care of by the State making sub-classification and adopting a
distribution justice method so that State Largesse does not
concentrate in few hands and equal justice to all is provided - The
State has the competence to grant reservation benefit to all Scheduled
Castes and Scheduled Tribes in terms of Arts. 15(4), 16(4) and also
Arts. 341(1) and 342(1) - It prescribes the extent/ percentage of
reservation to different classes - The State Government cannot
tamper with the list, it can neither include nor exclude any caste in
the list or make enquiry whether any synonym exists - The State
can provide preference on rational criteria to the class within lists
requiring upliftment - There is no vested right to claim that
reservation should be at a particular percentage - It has to accord
with ground reality as no one can claim the right to enjoy the whole
reservation, it can be proportionate one as per requirement - The
interpretation of Arts.14, 15, 16, 338, 341, 342 and 342A is a matter
of immense public importance, and correct interpretation of binding
precedents in Indra Sawhney and other decisions - Therefore, the
opinion of the 3 Judges Bench is endorsed that E.V. Chinnaiah is
required to be revisited by a larger Bench - The Hon'ble Chief
Justice is requested to place the matters before a Bench of 7 Judges
or more as considered appropriate.
Referring the matter to the larger Bench, the Court
HELD: 1. This Court discussed the concept of socially and
educationally backward classes in Indra Sawhney; however, the
Court observed that Scheduled Castes

## Text

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[2020] 10 S.C.R. 857
857
THE STATE OF PUNJAB & ORS.
v.
DAVINDER SINGH & ORS.
(Civil Appeal No. 2317 of 2011)
AUGUST 27, 2020
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Constitution of India - Arts. 14, 15, 16, 338, 341, 342 and
342A - Punjab Scheduled Castes and Backward Classes
(Reservation in Services) Act, 2006 - s. 4(5) - Sub-classification
within a socially and educationally backward class (caste) - The
State Government by a circular provided that out of seats reserved
for Scheduled Castes, fifty per cent of the vacancies would be offered
to Balmikis and Mazhabi Sikhs - The circular was struck down by
the High Court - The Supreme Court dismissed the S.L.P. against
the same - The Punjab Act was notified in 2006 - s.4(5) of the
Punjab Act made similar provisions as made in the circular, which
was struck down - The High Court struck down the provisions
contained in s.4(5) of the Punjab Act relying upon the decision in
E.V. Chinnaiah v. State of A.P. and Ors.- In the Supreme Court, a
three Judges Bench referred the matter to a larger Bench for
consideration opining that the judgment of a 5-Judge Bench in E.V.
Chinnaiah is required to be revisited in the light of Art. 338 of the
Constitution and not correctly following the exposition of the law
in Indra Sawhney and Ors. v. Union of India - It was noted that the
matter involved interpretation and interplay between Arts. 16(1),
16(4), 338 and 341 of the Constitution - Held: In Indra Sawhney, it
was held that it is permissible to make sub-classification within
socially and educationally backward classes - Same would be
applicable for Scheduled Castes and Scheduled Tribes as they
admittedly fall u/Art. 16(4) - The sub-classification was made
u/s.4(5) of the Punjab Act to ensure that the benefit of the reservation
percolate down to the deprived section and do not remain on paper
and to provide benefit to all and give them equal treatment - As far
as its permissibility u/Art.14 is concerned, it would be permissible
on a rationale basis to make such sub-classification to provide
benefit to all to bring equality, and it would not amount to exclusion
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[2020] 10 S.C.R.
from the list as no class (caste) is deprived of reservation in totality
- There are unequals within the list of Scheduled Castes, Scheduled
Tribes and socially and educationally backward classes - Various
reports indicate that Scheduled Castes and Scheduled Tribes do
not constitute a homogenous group - When the reservation creates
inequalities within the reserved castes itself, it is required to be taken
care of by the State making sub-classification and adopting a
distribution justice method so that State Largesse does not
concentrate in few hands and equal justice to all is provided - The
State has the competence to grant reservation benefit to all Scheduled
Castes and Scheduled Tribes in terms of Arts. 15(4), 16(4) and also
Arts. 341(1) and 342(1) - It prescribes the extent/ percentage of
reservation to different classes - The State Government cannot
tamper with the list, it can neither include nor exclude any caste in
the list or make enquiry whether any synonym exists - The State
can provide preference on rational criteria to the class within lists
requiring upliftment - There is no vested right to claim that
reservation should be at a particular percentage - It has to accord
with ground reality as no one can claim the right to enjoy the whole
reservation, it can be proportionate one as per requirement - The
interpretation of Arts.14, 15, 16, 338, 341, 342 and 342A is a matter
of immense public importance, and correct interpretation of binding
precedents in Indra Sawhney and other decisions - Therefore, the
opinion of the 3 Judges Bench is endorsed that E.V. Chinnaiah is
required to be revisited by a larger Bench - The Hon'ble Chief
Justice is requested to place the matters before a Bench of 7 Judges
or more as considered appropriate.
Referring the matter to the larger Bench, the Court
HELD: 1. This Court discussed the concept of socially and
educationally backward classes in Indra Sawhney; however, the
Court observed that Scheduled Castes and Scheduled Tribes are
admittedly included within the backward classes, as such there
was no need to discuss that. Thus, the discussion was confined
to whether socially and educationally backward classes can be
included in Article 16(4), it was opined that ken of Article 16(4)
is wider than Article 15(4). It was also observed that backward
classes contemplated under Article 16(4) do comprise some
castes. The Scheduled Castes include quite a few castes. Based
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on the aforesaid foundational basis, interpretation was made. In
opinion of this Court, the decision is relevant for interpreting
Article 16(4) provisions in their application to Scheduled Castes,
Scheduled Tribes, and other backward classes. They stand on
the similar footing, and they cannot be treated as different from
other as also fortified by insertion of Article 342A which is pari
materia to Article 341 or 342 and considering the definition in
Article 366(24) and (26C) and classification of backward classes
can be done. The Scheduled Castes and Scheduled Tribes
admittedly are backward, and the same yardstick would apply to
all. In Indra Sawhney, it was held that it is permissible to make
sub-classification within socially and educationally backward
classes. That discussion would be applicable for Scheduled Castes
and Scheduled Tribes as they admittedly fall under Article 16(4).
[Para 36][917-C-G]
2. There is cry, and caste struggle within the reserved class
as benefit of reservation in services and education is being
enjoyed, who are doing better hereditary occupation. The
scavenger class given the name of Balmikis remains more or
less where it was, and so on, disparity within Scheduled Caste is
writ large from various reports. The sub-classification was made
under Section 4(5) of the Punjab Act to ensure that the benefit of
the reservation percolate down to the deprived section and do
not remain on paper and to provide benefit to all and give them
equal treatment, whether it is violative of Article 14? In opinion
of this Court, it would be permissible on rationale basis to make
such sub-classification to provide benefit to all to bring equality,
and it would not amount to exclusion from the list as no class
(caste) is deprived of reservation in totality. In case benefit which
is meant for the emancipation of all the castes, included in the
list of Scheduled Castes, is permitted to be usurped by few castes
those who are adequately represented, have advanced and
belonged to the creamy layer, then it would tantamount to creating
inequality whereas in case of hunger every person is required to
be fed and provided bread. The entire basket of fruits cannot be
given to mighty at the cost of others under the guise of forming a
homogenous class. [Para 40][918-G-H; 919-A-B]
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3. The State's obligation is to undertake the emancipation
of the deprived section of the community and eradicate
inequalities. When the reservation creates inequalities within the
reserved castes itself, it is required to be taken care of by the
State making sub-classification and adopting a distributive justice
method so that State largesse does not concentrate in few hands
and equal justice to all is provided. It involves redistribution and
reallocation of resources and opportunities and equitable access
to all public and social goods to fulfil the very purpose of the
constitutional mandate of equal justice to all. [Para 42][919-E-F]
4. Providing a percentage of the reservation within
permissible limit is within the powers of the State legislatures. It
cannot be deprived of its concomitant power to make reasonable
classification within the particular classes of Scheduled Castes,
Scheduled Tribes, and socially and educationally backward classes
without depriving others in the list. To achieve the real purpose
of reservation, within constitutional dynamics, needy can always
be given benefit; otherwise, it would mean that inequality being
perpetuated within the class if preferential classification is not
made ensuring benefit to all. [Para 43][919-G-H; 920-A]
5. The sub-classification is to achieve the very purpose, as
envisaged in the original classification itself and based thereupon
evolved the very concept of reservation. Whether the subclassification would be a further extension of the principle of said
dynamics is the question to be considered authoritatively by the
Court. [Para 44][920-B]
6. The Scheduled Castes as per Presidential List are not
frozen for all the time, and neither they are a homogenous group
as evident from the vast anthropological and statistical data
collected by various Commissions. The State law of preferential
treatment to a limited extent, does not amend the list. It adopts
the list as it is. The State law intends to provide reservation for
all Scheduled Castes in a pragmatic manner based on statistical
data. It distributes the benefits of reservations based on the needs
of each Scheduled Caste. [Para 45][920-C]
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7. The State has the competence to grant reservation
benefit to the Scheduled Castes and Scheduled Tribes in terms
of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1). It
prescribes the extent/percentage of reservation to different
classes. The State Government can decide the manner and
quantum of reservation. As such, the State can also make subclassification when providing reservation to all Scheduled Castes
in the list based on the rationale that would conform with the
very spirit of Articles 14, 15, and 16 of the Constitution providing
reservation. The State Government cannot temper with the list;
it can neither include nor exclude any caste in the list or make
enquiry whether any synonym exists as held in Milind.
[Para 46][920-D-F]
8. The State Government is conferred with the power to
provide reservation and to distribute it equitably. The State
Government is the best judge as to the disparities in different
areas. In opinion of this Court, it is for the State Government to
judge the equitable manner in which reservation has to be
distributed. It can work out its methodology and give the
preferential treatment to a particular class more backward out of
Scheduled Castes without depriving others of benefit. [Para
47][920-F-G]
9. Apart from that, the other class out of Scheduled Castes/
Scheduled Tribes/socially and educationally backward classes,
who is not denied the benefit of reservation, cannot claim that
whole or a particular percentage of reservation should have been
made available to them. The State can provide such preference
on rational criteria to the class within lists requiring upliftment.
There is no vested right to claim that reservation should be at a
particular percentage. It has to accord with ground reality as no
one can claim the right to enjoy the whole reservation, it can be
proportionate one as per requirement. The State cannot be
deprived of measures for upliftment of various classes, at the
same time, which is the very purpose of providing such measure.
The spirit of the reservation is the upliftment of all the classes
essential for the nation's progress. [Para 48][920-H; 921-A-B]
10. In the federal structure, the State, as well as the
Parliament, have a constitutional directive for the upliftment of
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS.
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Scheduled Castes, Scheduled Tribes, and socially and backward
classes. Only inclusion or exclusion in the Presidential notification
is by the Parliament. The State Government has the right to
provide reservation in the fields of employment and education.
There is no constitutional bar to take further affirmative action
as taken by the State Government in the cases to achieve the
goal. By allotting a specific percentage out of reserved seats and
to provide preferential treatment to a particular class, cannot be
said to be violative of the list under Articles 341, 342, and 342A
as no enlisted caste is denied the benefit of reservation.
[Para 49][921-C-D]
11. The "inadequate representation" is the fulcrum of the
provisions of Article 16(4). In opinion of this Court, it would be
open to the State to provide on a rational basis the preferential
treatment by fixing reasonable quota out of reserved seats to
ensure adequate representation in services. Reservation is a very
effective tool for emancipation of the oppressed class. The benefit
by and large is not percolating down to the neediest and poorest
of the poor. [Para 50][921-E-F]
12. The interpretation of Articles 14, 15, 16, 338, 341, 342,
and 342A is a matter of immense public importance, and correct
interpretation of binding precedents in Indra Sawhney and other
decisions. Though this Cout has full respect for the principle of
stare decisis, at the same time, the Court cannot be a silent
spectator and shut eyes to stark realities. The constitutional goal
of social transformation cannot be achieved without taking into
account changing social realities. [Para 51][921-F-G]
Indra Sawhney and Ors. v. Union of India & Ors.,
(1992) 3 Suppl. SCC 217 : [1992] 2 Suppl. SCR 454;
Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.,
(2018) 10 SCC 396 : [ 2018] 10 SCR 663; K. C.
Vasanth Kumar & Anr. v. State of Karnataka, (1985)
Suppl. SCC 714 : [1985] Suppl. SCR 352; State of
Kerala & Anr. v. N. M. Thomas & Ors. (1976) 2 SCC
310 : [1976] 1 SCR 906; Jagdish Negi, President,
Uttarakhand Jan Morcha & Anr. v. State of U.P. & Anr.,
(1997) 7 SCC 203 : [ 1997] 3 Suppl. SCR 477; State
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of Maharashtra v. Milind & Ors.,(2001) 1 SCC 4 :
[2000] 5 Suppl. SCR 65; GVK. Industries Limited& Anr.
v. Income Tax Officer & Anr., (2011) 4 SCC 36 : [2011]
3 SCR 366 - relied on.
E. V. Chinnaiah v. State of A.P. and Ors. (2005) 1 SCC
394 : [1992] 2 Suppl. SCR 454; M. R. Balaji & Ors. v.
State of Mysore & Ors., [1963] 1 Suppl. SCR 439; Bir
Singh v. Delhi Jal Board & Ors., (2018) 10 SCC 312 :
[2018] 10 SCR 513; M. Nagaraj & Ors. v. Union of
India & Ors. (2006) 8 SCC 212 : [2006] 7 Suppl.
SCR 336; I. R. Coelho v. State of T. N., (2007) 2 SCC 1
: [2007] 1 SCR 706; Indra Sawhney and R. K.
Sabharwal & Ors. v. State of Punjab & Ors., (1995) 2
SCC 745 : [1995] 2 SCR 35; State of Tripura & Ors. v.
Jayanta Chakraborty & Ors., (2018) 1 SCC 146 :
[2017] 11 SCR 247; B. K. Pavitra & Ors. v. Union of
India & Ors., (2019) 16 SCC 129 : [ 2019] 7 SCR 1086;
Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical
College & Ors., (1990) 3 SCC 130 : [ 1990] 2 SCR
843; Dr. Pradeep Jain & Ors. v. Union of India & Ors.,
(1984) 3 SCC 654 : [1984] 3 SCR 942; Union of India
& Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC 50 :
[2010] 1 SCR 483; Dega Venkata Harsha Vardhan &
Ors. v. Akula Ventaka Harshavardhan & Ors., (2019)
12 SCC 735; S. R. Chaudhuri v. State of Punjab &
Ors. AIR 2001 SC 2707; T. M. A. Pai Foundation &
Ors. v. State of Karnataka & Ors. (2002) 8 SCC 481 :
[2002] 3 Suppl. SCR 587; Sobha Hymavathi Devi v.
Setti Gangadhara Swamy & Ors. AIR 2005 SC 800 :
[2005] 1 SCR 848; Ashoka Kumar Thakur v. Union of
India and Ors., (2008) 6 SCC 1 : [2008] 4 SCR 1;
B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR
316; Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877;
Srish Kumar Choudhury v. State of Tripura & Ors.,
(1990) Supp. SCC 220 : [1990] SCR 576; Palghat Jilla
Thandan Samudhaya Samrakshna Samithi & Anr. v.
State of Kerala & Anr., (1994) 1 SCC 359 : [1993] 3
 Suppl. SCR 872; Heikham Surchandra Singh & Ors.
v. Representatives of "Lois" Kakching, Manipur (A
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS.
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scheduled caste uplift body) & Ors., (1997) 2 SCC 523
: [1996] 7 Suppl. SCR 371; Shree Surat Valsad Jilla
K.M.G. Parishad v. Union of India & Ors. (2007) 5
SCC 360 : [2007] 6 SCR 257; Punit Rai v. Dinesh
Chaudhary (2003) 8 SCC 204 : [2003] 2 Suppl.
SCR 743; Subhash Chandra v. Delhi Subordinate
Services Selection Board, (2009) 15 SCC 458 : [2009]
12 SCR 978; Sambhu Nath Sarkar v. State of West
Bengal & Ors., (1973) 1 SCC 856 : [1974] 1 SCR 1;
Bengal Immunity Company Limited v. State of Bihar &
Ors. [1955] 2 SCR 603; Keshav Mills Co. Ltd. v.
Commissioner of Income Tax, [1965] 2 SCR; Union of
India & Anr. v. Raghubir Singh (dead) by LRs. etc.,
(1989) 2 SCC 754 : [1989] 3 SCR 316; Goodyear
India Ltd. & Ors. v. State of Haryana & Anr., (1990) 2
SCC 71 : [1989] 1 Suppl. SCR 510; Chebrolu Leela
Prasad Rao & Ors. v. State of A.P. & Ors., (2020) SCC
OnLine SC 383; Indra Sawney and Union of India &
Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC 50 : [2010]
1 SCR 483 - referred to.
State of Washington v. Dawson & Co., 264 U.S. 219;
David Burnet v. Colorado Oil & Gas Company 285 U.S.
393; Graves v. People of the State of New York 306
U.S. 466; Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.)
304; 4 L. Ed. 97, 102 - referred to.
Case Law Reference
[1992] 2 Suppl. SCR 454
relied on
Para 1
[2018] 10 SCR 663
relied on
Para (7) (e)
[1985] Suppl. SCR 352
relied on
Para (7)(f)
[1963] 1 Suppl. SCR 439
referred to
Para (7) (f)
[1976] 1 SCR 906
relied on
Para (7) (f)
[2000] 5 Suppl. SCR 65
relied on
Para (7) (g)
[2018] 10 SCR 513
referred to
Para (7) (g)
[2006] 7 Suppl. SCR 336
referred to
Para (9) (a)
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[2007] 1 SCR 706
referred to
Para (9) (b)
[1997] 3 Suppl. SCR 477
relied on
Para (10) (d)
[1995] 2 SCR 35
referred to
Para 16
[2017] 11 SCR 247
referred to
Para 16
[2019] 7 SCR 1086
referred to
Para 16
[1990] 2 SCR 843
referred to
Para (20) (i)
[1984] 3 SCR 942
referred to
Para (20) (ii)
[2010] 1 SCR 483
referred to
Para(20) (iii)
(2019) 12 SCC 735
referred to
Para (20) (iv)
AIR 2001 SC 2707
referred to
Para 21
[2002] 3 Suppl. SCR 587
referred to
Para 21
[2005] 1 SCR 848
referred to
Para 21
[2008] 4 SCR 1
referred to
Para 24
[1965] 1 SCR 316
referred to
Para (31) (i)
[1965] 2 SCR 877
referred to
Para 31 (ii)
[1990] SCR 576
referred to
Para 31 (iii)
[1993] 3 Suppl. SCR 872
referred to
Para 31 (iv)
[1996] 7 Suppl. SCR 371
referred to
Para 31 (viii)
[2007] 6 SCR 257
referred to
Para 31 (viii)
[2003] 2 Suppl. SCR 743
referred to
Para 31 (ix)
[2009] 12 SCR 978
referred to
Para 31 (x)
[1974] 1 SCR 1
referred to
Para 32 (a)
[1955] 2 SCR 603
referred to
Para 32 (f)
[1965] 2 SCR 908
referred to
Para 33 (a)
[1989] 3 SCR 316
referred to
Para 33 (b)
[2011] 3 SCR 366
relied on
Para 34
[1989] 1 Suppl. SCR 510
referred to
Para 35
[2010] 1 SCR 483
referred to
Para 39
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2317
of 2011.
From the Judgment and Order dated 29.03.2010 of the High Court
of Punjab and Haryana at Chandigarh in C.W.P. No. 18290 of 2009.
With
Civil Appeal Nos. 5586, 5597, 5589, 5593, 5600, 5598, 5587, 5595-
-5596 of 2010, 2324, 2318 of 2011, 289 of 2014, 6936 of 2015,
Special Leave Petition (Civil) Nos. 30766 of 2010, 5454-5459, 8701,
36500-36501 of 2011, Transferred Case (Civil) Nos. 37, 38 of 2011,
Transfer Petition (Civil) No. 464 of 2015 and Writ Petition (Civil)
No. 1477 of 2019.
Vikramjit Banerjee, ASG, Arun Bhardwaj, AAG, (Haryana), Jayant
Muthraj, AAG, Ranjit Kumar, Rakesh Kumar Khanna, Manoj Swarup,
M.S. Ganesh, Shekhar Naphade, Nidhesh Gupta, Colin Gonsalves,
R. Venkatramani, Sanjay Hegde, Sr. Advs., Ms. Uttara Babbar,
Ms. Bhavana Duhoon, Manan Bansal, Anshuman Singh, O. P. Bhadani,
Aditya P. Khanna, Ramya Khanna, Ankit Swarup, Neelmani Pant,
Ms. Vidisha Swarup, Rohit Kumar Singh, K. Seshachari, Anant Kumar
Vatsya, Vinay Kumar Misra, Devendra Singh, Dr. Monika Gusain, Sanjay
Kumar Visen, Abhishek Sharma, Anandh Kannan N., Kamal Mohan
Gupta, Satyendra Kumar, S.C. Paul, Ms. Roopa Paul, R.K. Singh,
Mrs. Neeraj Singh, Kumar Gaurav, Ritu Reniwal, P.S. Baghath Singh,
V. Subramanian Maduri, Robin Khokhar, Kuldip Singh, R.K. Kapoor,
Gurbhajan Singh, Shoaib Ahmad Khan, Anis Ahmed Khan, Rohit Sharma,
Rounak Nayak, Atul Agrawal, Kumar Dushyant Singh, Anmol Chandan,
Saurabh Mishra, Ms. Shruti Agarwal, Prashant Rawat, Raj Bahadur
Yadav, Gurmeet Singh Makker, Balaji Srinivasan, M. Yogesh Kanna,
Ms. Japneet Kaur, Ms. S. Janani, Siddharth Seem, P. Venkatesan,
Ms. Jyoti Mendiratta, G. Balaji, Bankey Bihari Sharma, Parmanand
Pandey, Kuldip Singh, R. V. Kameshwaran, Vipin Kumar Jai, Tushar
Bakshi, Pranjal Kishore, Shovit Singh, Shiva Pujan Singh, Shekhar Kumar,
Dr. K.S. Chauhan, Ravi Prakash, Ajit Kumar, Sandeep Malik, Mrs. Rekha
Pandey, P. Soma Sundaram, Ajit Kumar Ekka, R.S.M. Kalky, Sunil
Kumar, Rahul Gupta, Naresh Bakshi, Kamal Mohan Gupta, Sanjay
Kumar Visen, Satyendra Kumar, S.C. Paul, Ms. Roopa Paul, Aabhas
Kshetarpal, Siddhartha Jha, Rakesh Dahiya, S. Gowthaman, Anand
Sanjay M. Nuli, Suraj Kaushik, Dharam Singh (for M/s. Nuli & Nuli),
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K. Paari Vendhan, A. Subba Rao, Mrs. Niranjana Singh, Deepak Anand,
Sanjay Jain, Brij Bhushan,Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. A Bench of three Judges vide order dated 20.8.2014 referred
the matter to a larger Bench for consideration opining that the judgment
of a 5-Judge Bench in E.V. Chinnaiah v. State of A.P. and Ors., (2005)
1 SCC 394,is required to be revisited in the light of Article 338 of the
Constitution of India, and not correctly following the exposition of the
law in Indra Sawhney and Ors. v. Union of India & Ors., 1992 Suppl.
(3) SCC 217. It was noted that matter involved interpretation and interplay
between Articles 16(1), 16(4), 338 and 341 of the Constitution of India.
2. We, in order to consider the constitutional validity of Section
4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation
in Services) Act, 2006 (for short, 'the Punjab Act') in the matter referred,
framed the following issues on 4.2.2020:
"i) Whether the provisions contained under Section 4(5) of The
Punjab Scheduled Castes and Backward Classes (Reservation in
Services) Act, 2006 are constitutionally valid?
ii) Whether the State had the legislative competence to enact the
provisions contained under Section 4(5) of the Act?
iii) Whether the decision in E.V. Chinnaiah Vs. State of A. P. &
Ors. reported in (2005) 1 SCC 394 is required to be revisited?"
3. The background facts are that the Punjab Government by
Circular No.1818-SW-75/10451 dated 5.5.1975 provided that out of seats
reserved for Scheduled Castes, fifty per cent of the vacancies would be
offered to Balmikis and Mazhabi Sikhs. The Circular was struck down
by a Division Bench of the Punjab and Haryana High Court vide judgment
dated 25.7.2006.This Court dismissed the S.L.P. against the same on
10.3.2008.
4. The Punjab Act was notified on 5.10.2006. Section 4(5) of the
Punjab Act made similar provisions as were made in the Circular, which
was struck down. It stipulated that fifty per cent of the vacancies of the
quota reserved for Scheduled Castes in direct recruitment shall be offered
to Balmikis and Mazhabi Sikhs, subject to their availability, by providing
first preference from amongst the Scheduled Castes candidates.
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5. A Division Bench of the Punjab and Haryana High Court struck
down the provisions contained in Section 4(5) of the Punjab Act vide
judgment dated 29.3.2010, relying upon the decision in E.V. Chinnaiah.
6. The constitutional validity of Section 4(5) of the Punjab Act
depends upon whether any such classification can be made within the
class of Scheduled Castes or Scheduled Tribes or are to be treated as a
homogenous class.Whether it is not permissible to provide any further
reservation to the weakest out the weak, particularly when it has not
been possible to trickle down the benefit of reservation to the weakest
and the same is utilised by the upper class within the group, who enjoy
the benefit of reservation to the maximum creating disparities within its
class.
Submissions:
7. Shri Ranjit Kumar, learned senior counsel appearing for the
State of Punjab raised the following arguments:
(a) The decision in E.V. Chinnaiah erroneously proceeded on
the premise that affirmative action taken by the States by giving preference
to certain Scheduled Castes under Article 16(4) tinkers with the
Presidential List under Article 341. Merely giving of preference does
not tinker, rearrange, sub-classify, disturb or interfere with the list in any
manner whatsoever since there is no inclusion or exclusion of any caste
in the list as notified under the meaning of Article 341. The Punjab Act
has been enacted under Article 16(1) and 16(4) read with Articles 245
and 246. The provisions of Section 4(5) of the Punjab Act are within the
legislative competence of the State.
(b) The Court in E.V. Chinnaiah erred in correctly interpreting
the majority ratio in Indra Sawney on the question of sub-classification
within a class.At least five out of nine Judges in Indra Sawney held that
amongst the backward, there may be some more backward, and when
State chooses to make such classification, it would be permissible in
law.Unequivocally in the majority, it was held that backward classes
can be classified into more backward and less backward classes.The
Scheduled Castes and Scheduled Tribes fall within backward classes.
There is no warrant for the submission that there cannot be a classification
within the Scheduled Castes.
(c) Article 16(4) covers all backward classes, including Scheduled
Castes and Scheduled Tribes. The expression used in Article 16(4) is
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"any backward class of citizens". The expression "not adequately
represented" covers all socially and educationally backward classes,
who, on account of their backwardness, are inadequately represented in
the State's services. The scope of Article 16(4) is wider in its ambit than
Article 15(4). The expression "backward class of citizens"used in Article
16(4) covers in its ambit the Scheduled Castes and Scheduled Tribes
and other backward classes, including the socially and educationally
backward class.
(d) The preferential treatment is a facet of equality under Article
14. Any enactment by the State giving preference to more backward
amongst the backward fulfils the object of Article 16(4). Six out of nine
Judges in Indra Sawney held that Article 16(4) is not an exception to
Article 16(1). The preferential treatment given to certain Scheduled
Castes/Scheduled Tribes does not violate Article 14. It intends to provide
proportional equality. The classification is based on intelligible differentia.
The differentia bears a reasonable nexus with the object, which is sought
to be achieved, of equitable representation of all Scheduled Castes in
the Government service. The specific reservations are required to bring
about real equality of opportunity between unequals and must be ensured
by the State.
(e) A new concept has been applied by this Court to Scheduled
Castes also. While considering Indra Sawney inrecent judgment by this
Court in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.,
(2018) 10 SCC 396, it was held that the object of Article 16(4) is to
ensure that all backward classes march forward hand in hand and that
will not be possible if only selective few get selected in all the coveted
services of the Government.It was opined that the application of the
'creamy layer concept' to Articles 341 and 342 does not tinker with the
Presidential List.
(f) The decision in E.V. Chinnaiah is contrary to other binding
judgments, such as K. C. Vasanth Kumar & Anr. v. State of Karnataka,
1985 Supp. SCC 714, which was approved in Indra Sawney. In
M. R. Balaji & Ors. v. State of Mysore & Ors., 1963 Supp. (1) SCR
439, it was held that sub-classification between backward and more
backward classes is necessary to help more backward classes. In
E.V. Chinnaiah, the decision in State of Kerala & Anr. v. N.M. Thomas
& Ors., (1976) 2 SCC 310, was not properly appreciated. It was laid
down in N. M. Thomas that there could be no objection to further
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classification within a class. Men are born different, and some sort of
differential treatment is required to achieve proportional equality.
(g) In case it is assumed that all castes are homogeneous by virtue
of being in the List within Article 341, it is only addition, or deletion of
any caste in the list would be impermissible as held by the Constitution
Bench in State of Maharashtra v. Milind & Ors., (2001) 1 SCC 4 and
Bir Singh v. Delhi Jal Board & Ors., (2018) 10 SCC 312. It is
permissible for the State to give preferential treatment within the list
based on the comparative backwardness of any class, there is nothing in
Article 341, which prohibits the same. Article 341 does not take away
the power of the State under Article 16(4) to make provisions for giving
preference. Such preferential treatment is not only permissible but
necessary to bring equality.Thus, the decision in E.V. Chinnaiah, having
been rendered by a Coordinate Bench of five Judges, deserves to be
referred to a larger Bench for reconsideration as the question of
interpretation of various provisions of the Constitution involves the larger
public interest and the decision is contrary to earlier decisions, it is
appropriate to refer to a larger Bench to settle the law.
8. Shri R. Venkataramani, learned senior counsel appearing for
the State of Tamil Nadu argued that:
(a) The decision in E.V. Chinnaiah has and will continue to have
an empirically demonstrable baneful effect on the general interests of
the public and is inconsistent with the legal philosophy of the Constitution
regarding equality and equal opportunity. The decision in E.V.
Chinnaiah,which holds that Scheduled Castes and Scheduled Tribes
once classified are a homogenous class, is removed from social and
economic reality. If the decision continues to operate, a large section of
Scheduled Castes and Scheduled Tribes would be deprived of the
guarantees under Articles 14 to 16. The decision in E.V. Chinnaiah
deserves to be revisited by a larger Bench.
(b) Articles 14 to 16 constitute a triumvirate of citizens' rights and
obligations and conceived as equality and social justice charters. The
State is under corresponding obligations to devise measures and methods,
fashion, policies to promote and protect these rights. There is an interplay
between these rights as held in Indra Sawney. The equality rights under
Article 14 and equal opportunity rights under Articles 15 and 16 have
been mutually reinforcing facets. The State must undertake the
emancipation of the deprived and weaker sections of the community.
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The obligation to eradicate inequalities in status and wealth is complex
obligations involving redistribution and reallocation of resources,
opportunities, and equitable access to all public and social goods.
Education, health, and public employment are all public goods of immense
value. Therefore, the State/States will always need the freedom to carry
out informed experiments without being fettered by undue or
disproportionate claims. The court has to keep social dynamics in mind
and be careful not to chain the State or clamp its hand while interpreting
constitutional provisions. The rule of law demands that the State is able
to harmonise and balance several competing claims and interests.
(c) In Indra Sawney, the word "backward classes" have been
declared to include Scheduled Castes and Scheduled Tribes and what all
consideration involved in dealing with backward classes would also be
attracted to the Scheduled Castes and Scheduled Tribes, i.e., grouping,
classification or sub-classification of castes and tribes for effectuating
the rights under Article 16(1) and 16(4) is permissible. There are interse distinctions and inequalities within Scheduled Castes/Scheduled Tribes
in their ability to access education and employment, afford healthcare,
and enjoy the same social status. They are undeniably classes within a
class. The data documented by the State shows that inter-se inequality
persists. It is open to the State/States to deal with backward classes
based on each group's needs or sub-class and handle the pervading
imbalances.
(d) The decision in E.V. Chinnaiah has frozen all State authorities
under Articles 14 to 16 of the Constitution. E.V. Chinnaiah does not
answer many questions raised. It is based on the premise that all
Scheduled Castes can and must collectively enjoy the benefits of
reservation regardless of inter-se inequality. The broad statement in E.V.
Chinnaiah has no demonstrable truth in empirical terms and is not
supported under the judgment itself. The decision in E.V. Chinnaiah
cannot be said to be absolute to a standard so high based on stare decisis
as to freeze our constitutional understanding permanently and place of
the judicial pronouncement.Shri R. Venkataramani has attracted the
Court's attention to various decisions concerning stare decisis in matters
of its constitutional importance.
9. Shri M.S. Ganesh, learned senior counsel appearing on behalf
of Haryana Dhanak Sewa Samiti, while supporting the aforesaid
submissions, additionally argued that:
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(a) the decision in E.V. Chinnaiah suffers from tunnel vision and
lacks acuity, and he has referred to M. Nagaraj & Ors. v. Union of
India & Ors., (2006) 8 SCC 212. The impact test must also be applied
to Article 341 read with the tautologous definition clause of Article 366(24)
of the Constitution. The specification in Article 341 of the castes, races,
and tribes is rendered qua legal fiction. The purpose of legal fiction must
be ascertained, and then it is to be given full effect without letting the
imagination boggle. It cannot be stretched beyond the purposes for which
the legislature has created it. The legal fiction under Article 341 is limited
to the specification. The specification is not disturbed by sub-classification
of the Scheduled Castes mentioned in the List.
(b) The caste given further reservation are not represented in the
services of the State. The decision in E.V. Chinnaiah cannot be said to
be laying down good law in view of the decision in I.R. Coelho v. State
of T.N., (2007) 2 SCC 1. The approach and reasoning in E.V. Chinnaiah
were that for Scheduled Castes, Article 341 was the bedrock of the
rights guaranteed by Articles 15(4) and 16(4) and was dominant tenement
to which Articles 14 to 16 were subservient.
(c) That E.V. Chinnaiahis subject to Occam's Razor entia non
sunt multiplicanda praeter necessitate (entities ought not to be
multiplied except from the necessity), which means that all unnecessary
or constituents in the subject being analysed are to be eliminated. The
inclusion in the list cannot dictate to the enforcement and effectuation
by the State of the rights guaranteed by Articles 15(4) and 16(4) between
those specified castes, races, or group inter-se.The assignment of
important role to ethicalprinciples in behavioural relation of the society
ranges from Aristotle, Aquinas, Ockham, and Arthasastra are referred
to in 'The Idea of Justice' by Amartya Sen.
(d) That Articles 15(4) and 16(4) by themselves are substantive
and enabling provisions. The power conferred is not limited in any way
by the main provision, but falls outside it. It has not carved out an
exception but has preserved the power untrammelled by the other
provisions of the Article. The hands of the State cannot be restrained
under Article 46 as done by E.V. Chinnaiah. In E.V. Chinnaiahhas lost
sight of the nature of Part-XVI of the role of the provisions of that Part.
(e) If E.V. Chinnaiah is a good law, its problematics give rise to
prospects of challenge to the constitutional validity of Article 342A as
inserted by the Constitution (One Hundred and Second Amendment)
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Act, 2018 necessitates revisiting the interpretation of Articles 341 and
342 of the Constitution.
10. Shri Nidesh Gupta, learned senior counsel argued that:
(a) there is no bar to grant a State's preference under Articles
341(2) and 342(2) of the Constitution. The Constitution does not forbid
mere preference. The State Government cannot exercise power
concerning inclusion and exclusion. This Court in Indra Sawneyupheld
a classification of the backward and more backward class under Article
16(4).
(b) In M. Nagaraj and Jarnail Singh,the exclusion of the
Scheduled Castes' creamy layer under Article 16(4) was permitted. The
creamy layer includes economic, social, educational, and other factors;
therefore, the preference given to Balmikis and Mazhabi Sikhs, i.e.,
the most backward amongst the Scheduled Castes, is in substance an
application of the principle of creamy layer.
(c) A reading of Articles 16(4), 16(4A), 335, 341, and 342 makes
it clear that the State(s)has a role to play at every stage of the reservation
process. Therefore, it would be contrary to the constitutional scheme to
deny them a role in merely granting a preference to the most backward
among the Scheduled Castes.
(d) A class of citizens cannot be treated to be socially and
educationally backward till perpetuity. The class is always required to
be judged in the light of the existing fact situation at a given point of time,
as observed in Jagdish Negi, President, Uttarakhand Jan Morcha &
Anr. v. State of U.P.& Anr., (1997) 7 SCC 203.
11. Shri Shekhar Naphade, learned senior counsel, attracted the
attention of the Court to the findings recorded by the Committee based
on which reservation has been provided to more backward of the
Scheduled Castes in the State of Tamil Nadu.He argued that:
(a) the Arunthathiyars communityis the lowest caste. He
attracted the attention of the Court to the representation of the group in
the State Government Departments and educational courses and the
reservation formula recommended by the Committee. The Tamil Nadu
Arunthathiyars (Special Reservation of seats in Educational Institutions
including Private Educational Institutions and appointments or posts in
the services under the State within the Reservation for Scheduled Castes)
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Act, 2009 does not tinker with the Presidential List of Scheduled Castes
in any manner.
(b) Special reservation is a fundamental aspect of Article 14 of
the Constitution. E.V. Chinnaiah requires reconsideration in the light of
the decision of the Constitution Bench in Jarnail Singh. Besides, it
failed to take note of ground realities and is not based upon the statistical
data collected by the State showing disparities amongst the Scheduled
Castes and Scheduled Tribes.
(c) The State's legislative competence in various fieldsfor making
reservation flows from Article 246(2) and 246(3) read with Entry 41 in
List II and Entry 25 in List III. Article 341 does not abrogate the legislative
power of the State to enact a law providing for reservation in the
employment in the State Public Services or State Public Service
Commission. It is open to the State to make law providing reservation in
the admissions to educational institutions.
(d) The restriction under Article 341 is limited, relating to inclusion
and exclusion of castes. The decision in E.V. Chinnaiah treats unequals
as equals.