Summary
In 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 to the Scheduled Castes and Scheduled Tribes. Since, despite the special provision the intake of these communities into the Railway Services continued to be negligible further concessions and relaxations were offered from time to time to members belonging to the Scheduled Castes and Scheduled Tribes. Even so, in many cases the vacancies reserved for them remained unfilled. Yet another step taken by the Railway Administration to keep open the reserved vacancies was to adopt a policy of "carry forward" of the unfilled reserved vacancies for at least three years.
In obedience to the policy decision of the Ministry of Home Affairs, the Railway Board issued certain directives designed to protect and promote the interest of members of the Scheduled Castes and Scheduled Tribes 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 Railway Services" (Annexure D). The Railway Board authorised the recruiting bodies to slur over low places obtained by Scheduled Castes and Scheduled Tribes candidates except where it was found that the minimum standard necessary for the maintenance of efficiency of the administration had 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 other recruits appointed alongwith them.Likewise where direct recruitment, otherwise than by examination, was provided for, the Railway Board directed the selection of Scheduled Castes and Scheduled Tribes candidates fulfilling a lower standard of suitability than from other communities, so long as the candidates had the prescribed minimum educational and technical qualifications and the appointing authorities were satisfied that the lowering of standards would not unduly affect the maintenance of efficiency of administration.In the case of selection posts the Railway Board decided that promotions from class IV to class III and from class III to class II were of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recruitment. This reser- 186vation was confined to 'selection posts'. In regard to filling of "general posts" in class III it was stated that they were in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable to direct recruitment should be applied.(Annexure F).In 1969 the Railway Board further revised their policy in regard to the reservation and other concessions to the Scheduled Castes and Scheduled Tribes candidates in posts filled by promotion (Annexure H). The circular stated that 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.In April, 1970 the percentage of vacancies to be reserved for Scheduled Castes and Scheduled Tribes was raised from 121/2% and 5% to 15% and 71/2% respectively (Annexure I). By the same order the "carry forward" rule was altered from 2 to 3 years.In 1973 the Railway Board issued a directive stating that the quota of 15% and 71/2% for Scheduled Castes and Scheduled Tribes may be provided promotion to the categories and posts in classes I, II, III and IV filled on the basis of the seniority-cum-suitability provided the element of direct recruitment to those grades does not exceed 50% (Annexure K).In August, 1974 the Railway Board further directed that if the requisite number 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 them 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 Castes and Scheduled Tribes candidates so earmarked might be promoted ad hoc for a period of six months against the vacancies 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. The procedure was required to be applied in cases of promotion to the posts filled on the basis of seniority- cum-suitability (Annexure N).A further modification to the then existing rules was made by Annexure 'O' which stated that "reservations 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 was contended on behalf of the petitioners that 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) that Article 16(4) could not apply to promotional levels and (iii) efficiency of administration envisaged by Article 335 had been jeopardised by the impugned circulars which fomented frustration among the civil services and produced inefficiency by placing men of lower efficiency and less experience in higher posts.187A preliminary objection was raised that since the first petitioner was an 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 illegal or unconstitutional in the impugned orders.[Per Krishna Iyer, J]The argument that since the first petitioner was an unrecognized association the petition is not sustainable must be overruled because whether the petitioners belonged to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they approached this Court under Article 32. Our current processual jurisprudence is broad-based and people oriented and envisions access to justice through "class actions","public interest litigation" and "representative proceedings". The narrow concept of cause of action and person aggrieved and individual litigation is becoming obsolescent in some jurisdictions. [224 G-H]The well settled position in law is that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily spell 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 and treated separately. [232 B-C]The fundamental right of equality of opportunity has to be read as justifying the categorisation of Scheduled Castes and Scheduled Tribes separately for 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-H]Apart from Article 16(1), Article 16(2) expressly forbids discrimination on the ground of caste and here the question arises as to whether the Scheduled Castes and Tribes are castes within the meaning of Article 16(2).Assuming that there is discrimination, Article 16(2) cannot be invoked unless it is predicated that the Scheduled Castes are "castes". 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-C]Articles 14 to 16 form a Code by themselves and contain a constitutional fundamental guarantee. The Directive Principles which are fundamental in the governance of the country enjoin upon the State the duty to apply that principle in making laws. Article 46 obligates the State the promote with special care the educational and economic interests of the weaker sections of the people 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 groups in the past shall be extirpated with special care by the State. [210 F; 211 A-C]188 At the same time reservations under Article 16(4) and promotional strategies 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 services under the State shall be taken into consideration. The negative 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 maintenance of efficiency of administration. [211 D-F]Under Article 341, Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. It is the socioeconomic backwardness of a social bracket that is decisive and not mere birth in a caste. [212 A]Annexure F relates only to selection posts and has been expressly upheld in Rangachari'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 circular except that candidates of the Scheduled Castes and Scheduled Tribes communities should be judged in a sympathetic manner.Moreover administrative efficiency is secure because there is a direction to give such staff additional training and coaching, to bring them upto the standard of others. [239 F-G]There is no vice in giving one grade higher than is otherwise assignable to an employee. based on the record of his service rendering the promotional prospects unreasonable because this concession is confined to only 25% of the total 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 importantly, this is only an administrative device of showing a concession or furtherance of prospects of selection. Even as under Articles 15(4) and 16(4) lesser marks are prescribed as sufficient for these communities or extra marks are added to give them an advantage, the regrading is one more method of boosting the chances of selection of these communities. The prescribed minimum qualification and standard of fitness are continued even for Scheduled Castes and Scheduled Tribes under Annexure H. [240 B-D]Annexure I is unexceptionable since all that it does is to readjust the proportion of reservation in conformity with the latest census. [240 E-F]Similarly "carry forward" raised from two years to three years cannot be struck down. There is no prospect, even if the vacancies are carried forward, of sufficient number of Scheduled Castes and Scheduled Tribes candidates turning out to fill them. Moreover, there is a provision that if a sufficient number of candidates from these communities are not found, applicants from the unreserved communities would be given appointment provisionally. After three years these vacancies cease to be reserved. [240 G-A]Even in Devadasan's case, this Court has laid down the proposition that under Article 16(4) reservation of a reasonable percentage of posts for member of the Scheduled Castes and Scheduled Tribes is within the competence of the State. What was struck down was that the reservations should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. By this rule there is no danger of the total vacancies 189being gobbled up by the harijan/girijan groups virtually obliterating Article 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 the need for a reasonable balance between the rival claims. [241B-F]Subject to the condition that the carry forward rule shall not result in any given year in the selection or appointment of Scheduled Castes and Scheduled Tribes candidates considerably in excess of 50%, the Annexure I is upheld. [242 E]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]Annexure K is beyond reproach. As between selection and non-selection posts the role of merit is functionally more relevant in the former than in the latter. 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 part that efficiency plays is far more in the case of higher posts than in the appointments to the lower posts. [243 D]Dilution of efficiency caused by the minimal induction of a small percentage of reserved candidates cannot affect the over-all administrative efficiency significantly.Moreover, care has been taken to give in-service training and coaching to correct the deficiencies. [244 B-C][Chinnappa Reddy, J 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 individual. The right to equality before the law and equality of opportunity in the matter of public employment are guaranteed as fundamental 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 opportunities and special provisions have been made, in particular, for the protection and advancement of the Scheduled Castes and Scheduled Tribes in recognition of their low social and economic status and their failure to avail themselves of any opportunity of self-advancement. In short the constitutional goal is the establishment of a socialist democracy in which justice-economic, social and political is secure and all men are equal and have equal opportunity. Inequality whether of status, facility or opportunity is to end, privilege is to cease and exploitation is to go. The under-privileged, the deprived and the exploited are to be 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-F]A Constitution, such as ours, must receive generous interpretation so as to give an its citizens the full measure of justice so proclaimed. While interpreting the Constitution the expositors must concern themselves not so much with words 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]190 At one time it was assumed that because the fundamental rights are enforce able 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 thinking is that while Fundamental Rights are primarily aimed at assuring political freedom to the citizens against excessive State action, the Directive Principles are aimed at securing social and economic freedoms by appropriate State action. The Directive Principles are made unenforceable 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 fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The Directive Principles should serve the 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-G]Reservation of posts and all other measures designed to promote the participation of the Scheduled Castes and Scheduled Tribes in public services at all levels are a necessary consequence flowing from the Fundamental Rights guaranteed by Article 16(1). This very idea is emphasized further by Article 16(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. N.M. Thomas the court has repudiated 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 necessary 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. [1976] 1 S.C.R.906 @ 930-933 and The General Manager, Southern Railway v.Rangachari [1962]2 S.C.R. 586 referred to.The figures 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 monopolistic or excessive representation over any category of posts these communities are nowhere near being adequately represented. Neither the reservation rule nor the "carry forward" rule for these years has resulted in any such 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 reservations and promotions. The Railway Board had stated that minimum 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 191relaxation of standards in favour of candidates belonging to Scheduled Castes and Scheduled Tribes and they were required to pass the same rigid tests as others.[265 A-B]There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of 50% about which there is no rigidity. Every case must be decided on its own facts. [265 E]There is nothing illegal or unconstitutional in any one of the impugned orders and circulars. [265 G][Pathak J concurring in the result with reservation on certain questions.]Article 46 of the Constitution enjoins upon the 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 the 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 make 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 members of these communities shall be taken into consideration in the making of appointments 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 matter of appointments to posts under the State is excellence and the emphasis is solely 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 backward 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 equitable violation of which would contravene Article 335.[251 B-D]M. R Balaji v. State of Mysore [1963] Supp. 1 S.C.R.439, 470, T. Devadasan v. Union of India [1964]4 S.C.R. 680 and State of Kerala v. N. M. Thomas [1976]1 S.C.R. 906 referred to.192See the full content of this document
Extract
Akhil Bharatiya Soshit Karamchari Sangh (Railway)represente VS. Union Of India And Ors.
PETITIONER: AKHIL BHARATIYA SOSHIT KARAMCHARI SANGH (RAILWAY)REPRESENTED Vs.RESPONDENT: UNION OF INDIA AND ORS.DATE OF JUDGMENT14/11/1980BENCH: KRISHNAIYER, V.R.BENCH: KRISHNAIYER, V.R.PATHAK, R.S.REDDY, O. CHINNAPPA (J)CITATION: 1981 AIR 298 1981 SCR (2) 185 1981 SCC (1) 246CITATOR INFO : E&R 1985 SC1495 (19,75)F 1987 SC 537 (22)RF 1987 SC 990 (16)RF 1988 SC 959 (12)RF 1991 SC1902 (36)R 1991 SC2288 (12)RF 1992 SC 1 (90,125)ACT: Constitution of India, 1950-Arts. 16, 46 and 335-Scope of-Reservation of posts under the State in favour of Scheduled Castes and Scheduled Tribes-Carry forward of unfilled posts for three years-validity of-JUDGMENT: 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.Lal Narain Sinha, Att. General of India, M. K.Banerjee, Addl. 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.Altaf Ahmed for the Intervener.S. Balakrishnan for the Intervener.P. H. Parekh for Respondent No. 6 in W.P. No. 1042/79.The following judgments were delivered: KRISHNA IYER. J.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 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 life. A fasciculus of directions of the Railway Board has been attacked as ultra vires and the court has to pronounce on it, not philosophically but pragmatically. "The philosophers have only interpreted the world in various ways; the point is to change it" -this was the founding fathers' fighting faith and serves as perspective-setter for the judicial censor.193 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 special 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 of judicial scrutiny, from the angle of constitutionality in the context of 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 vast numbers of members employed by the Railway Administration 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 of 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 discrimination' of helping out the weakest sections has been to blow up, out of all proportion to the social realities, the 'backwardness' syndrome so as embrace many politically powerful castes disguised as Backward Classes. This constitutional amulet, rooted largely in caste, the petitioners lament, has been misused and applied in educational and employment fields on 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 of 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 condition of communalism besetting the Indian polity 194and split the have-nots into snarling camps-a consummatio...
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