S.C Somashekarappa And Others v. State Of Karnataka And Others

Jagannatha Shetty, J.:— By these writ petitions, the validity of the State Government Orders dated 22nd February, 1977 and 4th March 1977 classifying citizens as socially and educationally backward classes and reserving for them certain percentage of seats in educational institutions and also posts in the State Civil Services has been challenged.

2. The petitioner in W.P No. 7772 of 1977 is a student who has been denied admission in the Engineering Degree Course for the year 1976-1977. The petitioners in W.P No. 4371 of 1977 are Junior Engineers working in the Public Works Department. They applied for the posts of Assistant Engineers advertised by the Public Service Commission. The petitioner in W.P No. 5925 of 1977 applied to the District Level Recruitment Committee, Bellary for the posts of Primary School teachers. The petitioners in W.P 6741 of 1977 and W.P No. 11603 of 1977 applied for the posts of Geologists and Sub-Registrars advertised by the State Public Service Commission. Their common complaint is that they could not be selected in view of the reservations made by the Government, even though they were otherwise eligible for admission or recruitment.

Hence they challenge the constitutional validity of the said Government Orders.

3. The Government Order dated 22nd February 1977 classifies backward classes for the purpose of Article 15(4) and Article 16(4) of the Constitution. The list of Backward Classes of citizens set out thereunder consists of (a) Backward Communities, (b) Backward Castes (c) Backward Tribes and (d) a Special Group. There are 16 communities categorised as Backward Communities. There are as many as 129 Backward Castes and 62 Backward Tribes. The order provides that only such citizens of these Backward Classes whose income per annum from all sources is Rs. 8,000 and below are entitled to the benefit of reservations. The amount of Rs. 8,000 has since been increased to Rs. 10,000 by Government Order dated 24th November, 1977. The Special Group included among the Backward Classes consists of the following five categories of citizens whose family income is Rs. 4,800 and below:

(i) an actual cultivator;

(ii) an artisan;

(iii) a petty businessman;

(iv) one holding an appointment either in Government service or corresponding services under private employment including casual labour;

(v) any person self employed or engaged in any occupation involving mannual labour.

4. By Order dated 4th March, 1977, made under Article 16(4), the Government directed reservations in appointments and posts in the State Civil Services to Backward Classes of citizens as specified by the Order dated 22nd February, 1977. The said order also provides procedure for selection of candidates by the Karnataka Public Service Commission or other Selecting Authorities. It also provides for filling up the reserved vacancies if suitable candidates from the reserved classes are not available for recruitment.

5. On 18th May, 1977, the Government made a further order under Article 15(4) directing that like reservations should also be made in Government educational institutions and also in institutions receiving aid from the State.

6. In the meantime, the Scheduled Castes and Scheduled Tribes Order (Amendment Act) 1976 came into force with effect from 27th July, 1977. By this amendment, certain castes and communities which have been included amongst backward classes by the Government Order dated 22nd February 1977 have been notified as Scheduled Castes or Scheduled Tribes. Consequently, the State Government made a further order dated 23rd January 1978 deleting those cases in the list of Backward Classes specified under Government Order dated 22nd February, 1977. Accordingly, ‘Meda’ community has been deleted under the heading ‘Backward Communities’. Kaniyan, Kotegar, Mala and Moger are the four castes deleted from the list of Backward Castes and thirteen castes have been deleted from the list of Backward Tribes.

7. By the aforesaid orders, the Government has reserved 15 per cent for Scheduled Castes, 3 per cent for Scheduled Tribes and 40 per cent for Backward Classes with sub-allocation as follows:

Per cent (1) Backward Communities .. 20 (2) Backward Castes .. 10 (3) Backward Tribes .. 5 (4) Special Group .. 5

The total reservation either in educational institutions or in Government services thus comes to 58 per cent and the balance of 42 per cent goes for what is called ‘merit pool’ in which every candidate irrespective of the class to which he belongs could compete and selection is required to be made in the order of relative merits.

The State justifies these reservations on the basis of recommendations of the Karnataka Backward Classes Commission which was constituted by Government Order dated 8th August, 1972.

8. Before we consider the report of the said Commission, it may be useful to refer to the rules of reservations made by the State from time to time and the interdict Courts in the matter. With the reorganisation of States and the formation of the new State of Karnataka, the State made two Orders in 1959 classifying about 164 communities or castes as Backward Classes and making a reservation at 45 per cent of seats in Technical and Professional colleges and 20 per cent for Scheduled Castes and Tribes. By the said Order, except Brahmins, Banias and Kayasthas all other castes of Hindu religion as existing in the State were classified as Backward Classes. The validity of those orders were challenged in this court by several writ petitions. In Ramakrishna Singh Rama Singh v. The State of Mysore(1) this Court quashed the said classification on the ground that they were not in conformity with Article 15(4) of the Constitution.

9. The State then appointed a Committee called the Mysore Backward Classes Committee with Dr. Nagan Gowda as its Chairman, to investigate the problem and advise the Government as to the criteria which should be adopted in determining the educationally and socially Backward Classes and the special provisions which should be made for their advancement. In February 1960, pending detailed investigation and collection of data, the Committee submitted its interim report. The Government after accepting the interim report, issued an order dated 9th June, 1960 reserving 22 per cent of the seats in educational institutions for those categorised as Backward Classes of citizens, besides 15 per cent for Scheduled Castes and 3 per cent for Scheduled Tribes and leaving 60 per cent for ‘merit pool’. The validity of this order was also challenged in this Court in Pajrtha v. State of Mysore(2). This Court while upholding the reservations, indicated a manner in which the reservations should be worked out to avoid its being open to attack on the ground of violation of fundamental rights of citizens. In 1961, the said Committee submitted its final report with a recommendation that 50 per cent of the seats should be reserved for other Backward Classes in addition to 15 per cent and 3 per cent in favour of Scheduled Castes and Scheduled Tribes respectively. The State then did not accept that recommendation. It directed reservation of only 30 per cent of Backward Classes of citizens. But on 31st July 1962, the State had a second look over the problem. While superseding all previous orders regarding reservations, an order was made dividing the Backward Classes into two categories as Backward Classes and More Backward Classes with a total reservation of 50 per cent in their favour, out of which 28 per cent for Backward Classes and 22 per cent for More Backward Classes. The reservations of 15 per cent for the Scheduled Castes and 3 per cent for Scheduled Tribes were also allowed to be continued. The result of this Order was that 68 per cent of the seats available for admission to the Engineering and Medical Colleges and to other technical institutions were reserved. The classification of Backward Classes and reservations made for them were called into question in the Supreme Court in Balaji v. State of Mysore(3). The Supreme Court struck down that classification of Backward Classes and also the reservations made in their favour on the ground, among others, that classification was solely based on castes and therefore, a fraud on the Constitution. It was also observed that a total reservation of 68 per cent was plainly inconsistent with the concept of the special provision authosed by Article 15(4).

10. After the decision of the Supreme Court in Balaji's case, the State again considered the method by which the weaker sections of people could be identified for special treatment. Pending such elaborate study and investigation of the problem, the State made an order dated 26th July, 1963 providing that classes of people whose annual income was Rs. 1,200 or less and who were actual cultivators, artisans, petty businessman, or engaged in occupations involving manual labour, and in inferior services (i.e, Class IV in Government Services and corresponding Services under private employment) should be treated as Backward. For them, 30 per cent of the seats in professional and technical colleges were directed to be reserved. That was in addition to 15 per cent to the Scheduled Castes and 3 per cent to Scheduled Tribes. The validity of the said classification of Backward Classes was also challenged before this Court in Vishwanath v. State of Mysore(4). One of the grounds of attack in that case was that classification was not based on ‘caste’ which was not only relevant but an important basis and therefore it was imperfect and illegal. The Court while conceding that it was a very imperfect classification, nevertheless upheld the same apparently under Article 14 of the Constitution on the ground that it was a rational classification with a nexus between the basis of classification and the policy intended to be implemented and the object sought to be achieved. The Court, accordingly dismissed the petitions with a fond hope “that soon the State would make a more appropriate classification lest its bona fides should be questioned.”

11. Two of the aggrieved petitioners in Vishwanath's case appealed to the Supreme Court against the decision of this Court. The Supreme Court also dismissed the appeals reiterating the principles observed in Balaji's case that the caste could be a relevant faction in the classification of socially and educationally backward classes and not a dominant factor. The decision of the Supreme Court is reported in R. Chitralekha v. State of Mysore.(5)

12. On 8th August 1972, the State appointed the Mysore Backward Classes Commission, (“the Commission”) with Sri L.G Havanur as its Chairman.

(1) To suggest the criteria to be adopted for determining whether any classes of persons in the State other than the Scheduled Castes and the Scheduled Tribes may be treated as socially and educationally backward classes;

(2) To investigate into the living and working conditions of all such classes of persons with Special reference to the difficulties under which they may be labouring and to make recommendation as to the special provisions which are necessary to be made by the Government for their advancement and for the promotion of their social, educational and economic interests generally;

(3) To make a list of all classes which may be regarded as backward classes in the State;

(4) To suggest what reservations should be made for such classes in the educational institutions maintained by the State or receiving aid out of the State funds;

(5) To suggest what other concessions like scholarships, etc., may be given to such classes by way of assistance;

(6) To determine to what extent such classes are represented in the services under the State and to recommend what reservations of posts in such services may be made for them; and

(7) To generally advise the Government about the steps to be taken to ensure adequate safeguards for the backward classes of citizens in the State.

13. The Commission prepared a lengthy questionnaire for eliciting public opinion of the various aspects of the problem before it. The Commission later thought that it could not effectively function and collect the required information without powers under the Commissions of Enquiry Act, 1952 (Central Act 60 of 1952). It approached the Government with a request to confer that statutory power. The Government acceded to the request and issued a Notification dated 9th October, 1973, appointing the Commission under Section 3 of the Commission of Enquiry Act. Thereafter, the Commission conducted socio-economic survey for deciding the backwardness of castes and communities and prepared two lists of Backward Classes, one for the purposes of Article 15(4) and another for Article 16(4). In the first list, the Commission has included (i) fifteen backward communities, (ii) one hundred and twenty eight backward castes and sixty two backward tribes. In the other, it has enlisted nine backward communities, one hundred and fifteen backward, castes and sixty one backward tribes.

14. The total percentage of population treated as Backward Classes under Article 15(4) was about 45 per cent for whom the Commission recommended 32 per cent for reservation, and the total percentage of population treated as Backward Classes under Article 16(4) was about 42 per cent for whom also the commission sub-allocation as follows:

Under Article 15(4)

Percentage of population Quota of allotment, percent (i) Backward Communities .. 22.03 16 (ii) Backward Castes .. 14.49 10 (iii) Backward Tribes .. 8.00 6

Under Article 16(4)

Percentage of population Quota of allotment, percent (i) Backward Communities .. 19.20 16 (ii) Backward Castes .. 14.47 10 (iii) Backward Tribes .. 8.00 6

15. The Commission stated that the Muslims cannot be treated as Backward Class although generally they are backward. It, however, recommended their classification as a religious minority under Article 14. The Commission has stated thus:

“In view of the fact that the Constituent Assembly did not think of religious minorities as coming within the meaning of the expression ‘Backward Classes’, our Commission cannot designate them as educationally a ‘backward class ‘. So far as the social level of the Muslim community is concerned, applying the economic test, it is also a way impoverished compared with the Hindus Castes which the Commission has treated as socially and economically backward.”

16. Regarding Christians also, the Commission observed that they are not covered by the expression “Backward Classes”. But they are found to have educational level higher than the State average, with adequate representation in Government Services. The Commission, therefore, refused to recommend their case even for consideration under Article 14. It also refused to accept the plea of the Harijan converts to Christianity to classify them as Backward Classes for want of appropriate data regarding them.

17. The State after considering the recommendation of the Commission, accepted its Report with certain modifications. It also classified a special group consisting of five categories of citizens and included them in the list of Backward Classes. It adopted a common list of Backward Classes for purposes of reservation both under Article 15(4) and Article 16(4). The net result is that the list prepared by the Commission under Article 15(4) became the list approved by the State even for the purpose of Article 16(4) besides the addition of Muslims in both the lists. The addition of some other castes except perhaps the converts to Christianity does not appear to be of much consequence.

18. The most important decision taken by the State was that only such citizens of the Backward Classes (i.e, Backward Communities, Backward Castes and Backward Tribes) whose annual income from all sources is Rs. 8,000 and below (since raised to Rs. 10,000) are entitled to the benefit of reservations. Likewise, the citizens belonging to the said special group whose family income is Rs. 4,800 and below are only to take the benefit of reservations.

19. For the aforesaid Backward Classes, the Government reserved seats and posts in the following manner:

(i) Backward Communities .. 20 per cent (ii) Backward Castes .. 10 per cent (iii) Backward Tribes .. 5 per cent (iv) Special Group .. 5 per cent

These reservations will be in addition to the reservations of 15 per cent for the Scheduled Castes and 3 per cent for Scheduled Tribes.

20. Before we examine the validity of the classification of Backward Classes and legality of the reservations made, it may be useful to have the bio data of the State of Karnataka with its economic profile. The State has an area of about 1,92,000 kilometres; it has a coastline of about 300 kilometres; population is about 29.3 million (provisional figures of 1971 population census). That represents some 5.5 per cent of the total population of India. About 76 per cent of the population live in rural areas, that is in 29,500 villages. The remaining 24 per cent live in the State's 245 towns and about one-half of them (12 per cent) remain in the 11 principal centres of over 1,00,000 people. Some 6.7 million persons are engaged in agriculture(6). These statistics reveal that about 76 per cent of the population of the State live in rural areas, and 65 per cent of the total working population are engaged in agriculture.

21. According to a recent estimate of the Planning Commission using norms of caloric consumption, the percentage of population in our country below the poverty line in 1977-1978 has been found to be at 48 per cent in rural areas, and 41 per cent in urban areas. An estimated 29 per cent of the persons below the poverty line are severe destitutes and that severe destitutes taken together account for as much as 86 per cent of the population below the poverty line.(7) The poverty profile of Karnataka on the basis of the data collected by the National Council of Applied Economic Research, the State Planning Department worked out in 1973 was at 45 per cent of the total population of the State, On the basis of income it was estimated that 47 per cent of the total population in the rural areas and 35 per cent of the population in the urban areas are below the poverty line.(8)

22. This is how the social unfairness looms large in our society. It is not because of the unequal characteristics of human beings or due to a result of innate inferiority or superiority. It is mostly due to unequal environment into which men are born and must live.

“beneath the surface differences that we find in dress and food, and little details of manners, man is man all the world over; and the same wonderful human nature is everywhere represented. ……… The man is divine, that all this which we see around us in the outcome of that consciousness of the Division.”(9)

23. We have got a complex society with traditional institutions and social inheritance which more often defy even the role of law. Julius Stone describes it.(10)

“The very central notion of a struggle of competing demands, and therefore of the necessary role of law in dynamic adjustment, stands ill with the traditional ideals of the peasants of India. Tradition indicates rather acceptance of the inherited lot, the permanance of existing social arrangements, the reliance on the family rather than on officials for social and economic security, the making do with subsistence rather than a struggle for abundance. It implies also the normality of group rather than individual activity, of mediation and negotiation rather than litigious strife, and that officialdom and its law are hostile elements to be shunned. Behind all this lies also perhaps a view of society's material endowment as fixed and stable, a static pie divided up in a manner sanctified by both authority and tradition among the various institutions, castes, classes and families. Equally basic, and complementary to this, is the hope and belief for the oppressed and the dispossessed (similarly accredited) that in the endless Samsara the sufferings and frustrations of one existence will be compensated (for those who bear themselves worthily) by the serene blessings of a latter incarnation. It is still the Sadhu, the intinerant saint, rather than the member of the Lok Sabha, or the industrialist of Bombay or Calcutta, who symbolises human achievement for three quarters of the people of India. And no doubt it is partly a reflection of these attitudes that it has as yet proved so difficult to promote the striving for material welfare in peasant India much beyond the lethargic customary rhythm of work, amounting in the villages to an average of but two or three hours daily. The great Hindu epics, the Gita, the Ramayan and the Mahabharata, are still central in any social inheritance that is common to the masses of India; and these underpin (when they are not the very source of) the attitudes here perforce so briefly sketched.”

24. It is for these millions and millions of people who suffered misery, Swami Vivekananda pleaded.(11)

“……..Do you feel? Do you feel that millions and millions of the descendants of gods and of sages have become next door neighbours to brutes? Do you feel that millions are starving today, and millions have been starving for ages? Do you feel that ignorance has come over the land as a dark cloud? Does it make you restless? Does it make you sleepless? Has it gone into your blood, coursing through your veins, becoming constant with your heartbeats? Has it made you almost mad? Are you seized with that one idea of the misery of ruin, and have you forgotten all about your name, your fame, your wives, your children, your property, even your own bodies? Have you done that? That is the first step to become a patriot, the very first step.”

25. On behalf of the same people who suffered oppression, Dr. Ambedkar raised his voice in the Constituent Assembly and struck a note of warning:(12)

“The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject proverty. On the 26th January, 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principles of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principles of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we win do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

(underlining is ours)

The above words of Dr. Ambedkar seem to have been echoed in the American Supreme Court in Illinois v. Allen(13), where Justice Brennan, uttered similar words although in a different context.

“Lincoln said this Nation was ‘conceived in liberty and dedicated to the proposition that all men are created equal’. The Founders' dream of a society where all men are free and equal has not been easy to realise. The degree of liberty and equality that exists today has been the product of unceasing struggle and sacrifice. Much remains to be done so much that the very institutions of our Society have come under challenge. Hence, today, as in Lincoln's time a man may ask ‘whether (this) nation or any nation so conceived and so dedicated can long endure’. It cannot endure if the Nation falls short on the guarantees of liberty, justice and equality embodied in our founding documents. But it also cannot endure if our precious heritage of ordered liberty be allowed to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty, equality and the order essential to both will be lost.”

This reflects, in part at least, the true dimensions of this entire crisis of the time. Strangely, education as conceived and imparted in the country seems to be anti-thetical in its effect. Instead of inspiring social commitment it has created a social and cultural elite unmindful of the social responsibility that carries with the education. E.F Schumacher, commenting on the contemporary Indian scene said:(14)

“The first road takes the educated young person into a fashionable district of Bombay, where a lot of other highly educated people have already gone and where he can join a mutual admiration society, a ‘trade union of the privileged’, to see to it that his privileges are not eroded by the great masses of his contemporaries who have not been educated. This is one way. The other way would be embarked upon in a different spirit and would lead to a different destination. It would take him back to the people who, after all, directly or indirectly had paid for his education by 150 peasant-work-years; having consumed the fruits of their work, he would feel in honour bound to return something to them.”

“The problem is not new. Leo Tolstroy referred to it when he wrote: ‘I sit on a man's back, choking him, and making him carry me, and yet assure myself and others that I am very sorry for him and wish case his lot by any means possible, except getting off his back. So this is the first question I suggest we have to face. Can we establish an ideology, or whatever you like to call it, which insists that the educated have taken upon themselves an obligation and have not simply acquired a ‘passport to privilege’? This ideology is of course well supported by all the higher teachings of mankind. As a Christian, I may be permitted to quote from St. Luke: ‘Much will be expected of the man to whom much has been given. More will be asked of him because he was entrusted with more’. It is, you might well say, an elementary matter of justice.”

26. It is for these teeming millions, our Constitution promises justice, social, economic and political and assures among others, equality of status and of opportunity with the dignity of the individual. The salvation of the weakest among the weaker sections, i.e, Harijans was the first charges on the Constitution and the advancement of socially and educationally Backward Classes was the second charge. The Constitutional commitment for these classes is reflected in Article 38 which directs that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Article 46 directs that the State shall 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, and shall protect them from social injustice and all forms of exploitation. Article 25 of the Universal Declaration of Human Rights also assures every one, the right to a standard of living adequate for the health and well being of himself and also ancillary protection in the event of unforeseen circumstances like sickness, disability, widowhood, old age, etc. By the equality clauses of Article 14, 15 and 16 of our Constitution, the founders of the Constitution have chartered the path by which among others, the objectives and goals of Articles 38 and 48 are to be reached.

27. According to the decision in Keshavananda Bharati v. State of Kerala(15), the Court must read the collective Directive Principles of Part IV into the individual fundamental rights of Part III, as both parts are fundamental and neither part is superior to the other. The Directive Principles of State policy should remain fundamental in the governance of the country and they enjoin on the State the promotion with special care the educational and economic interests of the weaker sections of the people. Khanna, J., while dealing with the scope, of the Directive Principles, said:(16)

“The Directive Principles embody a commitment which was imposed by the Constitution makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate a pledge to the coming generations of what the State would strive to usher in.”

28. The rule of law, to be worthy of our great nation must rise with higher degree of purpose for socio-economic justice to these weaker sections affording them an opportunity for developing their full human potential. These classes due to accident of birth and trammelled by unfavourable traditions and circumstances cannot by themselves develop their capabilities through a dynamic discovery as Ekalavya did for himself. A hunter by birth, Ekalavya acquired astounding competence in archery without any instruction directly from his Guru Dronacharya and became a challenge to Arjuna, the master's pet pupil. How many in our weaker sections left to themselves, could rise in this manner? With the encumbrances of the past it would well nigh, be in possible without a head start in these days of acute competition in all walks of life.

29. A modern State, therefore, has to undertake the challenging task of social engineering with the object of eradication of poverty uplift of the down-trodden, and raising the standards of the vast masses of people so as to ensure social equilibrium. For these purposes, a proper identification of Backward Classes is as much important as providing an infrastructure for their all round betterment, or otherwise, the special provisions intended for the weaker sections would be devoured by the more ‘creamy layers’ forward classes. The classification of Backward Classes is undoubtedly very complex. It will need an elaborate investigations and collection of data; employment of proper statistical tools; and collection of the socio-economic data in a rational and scientific way. The problem in particular in Hindu social structure with its entrenched traditional institutions is still more complex—where caste appears to be a curse and “hewers of wood and drawers of water” are still not alive to the winds of social change sweeping the world over.

In Balaji's case, Gajendragadkar, J. (as he then was) speaking for the Constitution Bench observed:

“…… In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens.”

The learned Judge however cautioned:

“Though the caste of the group of citizens may be relevant, its importance should not be exaggerated and no classification of Backward Classes of citizens should therefore be based solely on the caste of the citizens.”

It was also observed that social backwardness of groups or classes of citizens is in the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward, because they do not enjoy a status in society and have to be content with a backward seat. The occupations of citizens with place of habitation may also contribute to make classes of citizens socially backward.

In R. Chitralekha v. State of Mysore Subba Rao, J. (as he then was) speaking for the majority view of the Court, reiterated the principles stated in Balaji's case and said that caste cannot be the sole or dominant test to determine the social backwardness of a class of citizens.

In State of Andhra Pradesh v. P. Sagar,(17) Shah, J. (as he then was) while considering the validity of a list of socially and educationally backward classes prepared by the Andhra Pradesh Government after referring to the principles stated in the aforesaid decisions, said that clause (4) of Article 15 is in the nature of an exception engrafted upon the guarantee of freedom in clause (1), and that being the nature of an exception, the conditions which justified departure must be strictly shown to exist in determining the social and educational backwardness of the classes of citizens.

In P. Rajendran v. State of Madras,(18) Wanchoo, Chief Justice, further said:

“……It must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4).”

In that case the classification made by the State of Tamil Nadu on occupations pursued by the caste was upheld on the ground that the castes included in the list of socially and educationally backward classes were only a compendious indication of the class of people in those castes.

In Triloki Natfa Tiku v. State of Jammu and Kashmir(19) Shah, J. while considering the validity of the classification made by the State of Jammu and Kashmir and reservation in the services of the State under Article 16(4), observed:

“…The expression ‘backward class’ is not used as synonymous with backward caste’ or ‘backward community’. The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation the expression “class” means a homogenous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. But for the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.”

In A. Periakaruppan v. State of Tamilnadu(20), Hegde, J., after referring to the principles enunciated in the aforesaid cases, quoted with approval the observation of Wassoodew, J., in Narayana Vasudev v. Emperor(21).

“In my opinion, the expression ‘classes of His Majesty's subjects’ in Section 153A of the Code is used in restrictive sense as denoting a collection of individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their origin, race or religion, and that the term ‘class’ within that section carries with it the idea of numerical strength so large as could be grouped in a single homogeneous community.”

The learned Judge also said that a caste has always been recognised as a class.

In State of Andhra Pradesh v. U.S.V Balaram,(22) Vaidialingam, J., while considering the validity of the classification of Backward Classes made by the State of Andhra Pradesh, explained that social and educational backwardness of classes of persons contemplated under Article 15(4) or 16(4) need not be exactly similar in all respects to that of the Scheduled Castes and Scheduled Tribes although the conditions which justify the departures from Article 15(1) and 16(1) must be strictly shown to exist. The learned judge went further and said that it would be legitimate for the Commission charged with the duty to identify Backward Classes to use its personal knowledge or impressions to augment the various other materials gathered as a result of detailed investigation. He also said that the actual living condition or habitation could be very satisfactorily judged and found out only on personal visit to the areas which are giving a very accurate picture of their living conditions and their surroundings.

In Janki Prasad Parimoo v. State of Jammu and Kashmir(23) Palekar, J., while dealing with a problem of classification of Backward Classes and reservation of posts under Article 16(4) observed that poverty cannot be the exclusive test for identifying socially and educationally Backward Classes and if reservations are made on poverty basis, a very large proportion of the population in India would have to be regarded as socially and educationally backward and an untenable situation may arise because even in sectors which are recognised as socially and educationally advanced there are large pockets of poverty. The learned Judge also observed:

“… Though the two words ‘socially’ and ‘educationally’ are used cumulatively for the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced, it is generally also socially advanced because of the reformative effect of education on that class. The words ‘advanced’ and ‘backward’ are only relative terms-there being several layers of strata of classes, hovering between ‘advanced’ and ‘backward and the difficult task is which class can be recognised out of these several layers as being socially and educationally backward.”

In State of Uttar Pradesh v. Pradip Tandon,(24) A.N Ray, the Chief Justice while examining the validity of the reservation of seats in Medical Colleges in Uttar Pradesh for candidates hailing from Rural Areas, Hill and Uttrakhand Areas also observed to the same effect:

“the expression ‘classes of citizens’ indicates a homogeneous section of the people who are grouped together because of certain likeliness and a common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens.”

The learned Chief Justice also said that poverty cannot be a determining factor of social backwardness and rural element does not make it a class and to suggest that the rural areas are socially and educationally backward is to have reservation for the majority which is impermissible. The same learned Chief Justice, in Kumari K.S Jayasree v. The State of Kerala(25) while upholding the classification made by the State of Kerala based on the family income criteria upto 10,000 per annum, has however, accepted the poverty as a relevant factor in determining the social backwardness. He said:

“In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test. Social backwardness is in the ultimate analysis the result of poverty to a large extent. Social backwardness which results from poverty is likely to be aggravated by considerations of their caste. This shows the relevance of both caste and poverty in determining the backwardness of citizens. Poverty by itself is not the determining factor of social backwardness. Poverty is relevant in the context of social backwardness……….Social backwardness is the result of poverty to a very large extent. Caste and poverty are both relevant for determining the backwardness. But neither caste alone nor poverty alone will be the determining tests.”

30. The principles stated in the above cases may briefly be summaried as follows:

(i) Socially and educationally backward classes is a part of weaker sections of people envisaged in Article 46. The class or communities envisaged as backward, in the concept in which it has been used in the Constitution, cannot cover a bulk of State's population. It must necessarily cover only the lower layers of the strata with their degree of backwardness comparable to backwardness of the Scheduled Castes and Scheduled Tribes. But that social and educational backwardness need not be exactly similar in all respects to that of the Scheduled Castes and Scheduled Tribes.

(ii) Articles 15(4) and 16(4) do not speak of Castes, but only speak of classes. But caste is not an irrelevant factor to determine whether any class of citizens is socially backward. However, its importance should not be exaggerated and no classification of backward classes should be based solely on the caste of the citizens. The social backwardness of groups or classes of citizens may, in the ultimate analysis, be the result of poverty to a very large extent, but poverty by itself is not the determining factor of social backwardness. Caste and poverty are both relevant for determining the backwardness.

(iii) Though Backward Class is not synonymous with backward caste or backward community, the members of an entire caste or community may in the social, economic, educational and occupational scale of values, may on that account be treated as a Backward Class, but that is not because they are members of a caste or community, but because they by sharing some common characteristics, form a distinct class.

(iv) Articles 15(4) and 16(4) are in the nature of exceptions and therefore the conditions which justify the departure from Articles 15(1) and 16(1) must be strictly shown to exist, in justification of special provisions for the advancement of backward class of citizens.

This last principle of rule and exception so far as Articles 16(1) and 16(4) are concerned, although consistently accepted by the Supreme Court in a string of decisions cannot, however, be said to be valid after the decision in State of Kerala v. N.M Thomas.(26)

31. Thomas case, of course, was not a case dealing with any reservation for Backward Classes, but the principles stated therein are instructive on some of the questions agitated before us. The case, in essence, involved the validity of promotion for a specified period of 34 persons belonging to Scheduled Castes and Scheduled Tribes as against the available 51 posts, without insisting on a pass in the prescribed examinations. Thomas, who was not so promoted, challenged the validity of the said promotion before the Kerala High Court. The High Court accepted the contention of the petitioner and held that the promotion of 34 out of 51 posts was not conducive to the maintenance of efficiency of administration as envisaged under Article 335 of the Constitution and Rule 13AA of the Kerala State and Subordinate Services Rules, 1958, which enabled such promotion made an unreasonable discrimination between the members of the same service and therefore was invalid.

32. In the appeal preferred by the State of Kerala, the Supreme Court by a split decision, upheld the validity of the rule and the said promotion. The majority further took the view that Article 16(1) permits reasonable classification just as Article 14 does and Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1). A.N Ray, Chief Justice said:(27)

“All the legitimate methods are available for equality of opportunity in services under Article 16(1). Article 16(1) is affirmative whereas Article 14 is negative in language. Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1).”

Mathew, J., said(28):

“I agree that Article 16(4) is capable of being interpreted as an exception to Article 16(1) if the equality of opportunity visualised in Article 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of Scheduled Castes and Scheduled Tribes. If equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even upto the point of making reservation.”

Krishna Iyer, J., said(29):

“………………..True, it may be loosely said that Article 16(4) is an exception but, closely examined, it is an illustration of constitutionally sanctified classification …………….”

Fazl Ali, J., said(30):

“……..It is true that there are some authorities of this Court that Clause (4) is an exception to Article 16(1) but with due respect I am not in a position to subscribe to this view for the reasons that I shall give hereafter.”

Thomas case thus discards the old way of thinking that Articles 15(4) and 16(4) are exceptions to the equality guaranteed under Articles 14, 15(1) and 16(1) of the Constitution. It introduced new principles in the concept of equality. Articles 15(4) and 16(4) are themselves aimed at achieving the very concept of equality guaranteed by Articles 14, 15(1) and 16(1) and are no more than mere illustratives of one of the forms of classification. A Full Bench of the High Court of Punjab and Haryana in Jagdish Rai v. State of Haryana(31) has also expressed in similar terms. Chinnappa Reddy, J. (as he then was), speaking for the Full Bench observed:

“The legal position as explained in State of Kerala v. N.M Thomas ((1976) 2 SCC 310 : A.I.R 1976 S.C 490) may now be taken to be settled, that Article 16(4) is not an exception to Article 16(1) but is illustrative of one of the methods of achieving equality, that it is not exhaustive of the classifications necessary, and, therefore, permissible for achieving equality and that the general principles applicable to situations under Article 14 are equally applicable under Article 16(1).”

33. Upon the principles stated by the Supreme Court in Muthulal v. Radhelal(32) and Union of India v. K.S Subramanian(33), amid the diversity of decisions, the proper course for this Court is to follow only the views expressed by a larger Bench of the Supreme Court in preference to those expressed by a smaller Bench.

34. With these principles in mind, we may now proceed to consider the contentions urged for the petitioners. The first question that arises for consideration is whether the classification of Backward Classes—except the special group—was solely based on castes and communities as contended by Sri Venkataranga Iyengar and Sri K. Channabasappa for the petitioners, A casual look at the lists of Backward Classes may, prima-facie, give the first impression that the predominent factors in the classification were castes and communities as such. But on a closer look at the statistics and principles on which the classification is based, it would show that there is no merit in this charge.

35. The Commission on the basis of a socio-economic survey; the statistics collected on educational attainments at the high school level; the evidence of witnesses supported by impressions gained through personal observations, has prepared the lists of Backward Classes. The Commission sought to justify its findings, mainly, on the following grounds:

(i) The majority of the people belonging to castes or communities specified by it resided in rural, isolated and segregated areas;

(ii) Their economic condition is so poor that a majority of the castes and communities are incapable of owning lands, houses or other property;

(iii) Their occupations are considered unclean or inferior and therefore many of them do not get adequate return for their labour.

The Commission has thus gone on and applied multiple tests such as economic, residential and occupational in deciding the social backwardness of the various castes and communities. For ascertaining these factors the Commission selected 200 villages, atleast one village from one Taluk and 204 Blocks from city/town/municipal areas. It had surveyed 193 villages and 185 such Blocks. It has made the socio-economic survey of 63,500 families with a population of about 3,55,000. About 378 Investigators collected the information for more than six months under the supervision of 20 District Statistical Officers. Deputy Secretary of the Commission who was also a Joint Director of the Bureau of Economics and Statistics, supervised the survey work(34). The Survey conducted by the Commission covered about 1.18 per cent of the population although the optimum coverage for such a survey is said to be 1 per cent of the population. It means that the Commission covered 18 per cent more than the prescribed extent of coverage. The Commission also recorded evidence of about 365 persons representing the cross-section of the society. In addition, the Commission undertook intensive tours. The members of the Commission also visited localities, houses and huts in which people of different castes and communities were living and satisfied themselves about the living conditions and the problems of those people(35). It is therefore difficult to hold that the Commission prepared the lists of Backward Classes solely on the basis of castes.

36. The Commission has considered the educational backwardness by applying the State average of students passing S.S.L.C Examination in April 1972. The same has been determined at 1.69 per 1,000 of State Population. It is with reference to this figure that the Commission has classified the educationally backward communities, castes and tribes. It has taken a pass in the S.S.L.C as a criterion for determining the educational backwardness, presumably on the ground that a pass in S.S.L.C is the minimum qualification for entry into Government service of the lowest grade in the Non-Gazetted cadre.

37. It was not shown to us by the petitioners how the criteria with reference to which the socio-economic survey was conducted were neither irrelevant nor unacceptable. No endeavour was made to show with reference to authorities or opinion of experts in the field that either statistical tools employed by the Commission or the method of collection or collection of the socio-economic data was defective or instrinsically bad by accepted standards in statistics. Apart from urging that the very process of such statistical surveys have their own instrinsic limitations and shortcomings, no specific attack was discernible as against the method actually adopted by the Commission. It was not shown how the statistical technique and methodology pressed into service by the Commission was either basically unsuited in the context of the purpose sought to be achieved or that the technique was so geared as to trim results. Nor was it shown that the conclusions and inferences drawn from the data collected by the survey were not supportable by the data.

38. It is for the petitioners to show that it was an arbitrary exercise and unsupportable by accepted standards. In Govind Dartatray Kelkar v. Chief Controller of imports and exports(36), the Supreme Court observed:

“……..unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by placing the necessary material before the court that the said classification is unreasonable and violative of Article 16 of the Constitution.”

Again, in State of Punjab v. Hira Lal(37), it has been observed:

“Reservation of appointments under Article 16(4) cannot be struck down by hypothetical grounds or on imaginary possibilities. He who assails the reservation under that Article must satisfactorily establish that there has been a violation of Article 16(1).”

The Commission appears to have adopted standards and criteria laid down by the Supreme Court for ascertainment of social and educational backwardness. The Commission has not taken caste as the main or dominant factor. It has found, as a fact, that the communities and the castes specified by it as a whole constitute socially and educationally backward class of citizens. Such a classification has been approved by the Supreme Court in Balaram and Rajendran cases, Besides, the Supreme Court has also observed in Perikaruppan's case that “a caste has always been recognised as a class”.

We are, therefore, unable to condemn the classification as a whole in the absence of any credible evidence to the contrary.

39. It was next urged that even on the parameters employed by the Commission for classifying the communities or castes as Backward, the Arasus (Urs) community in particular, cannot be treated as backward since they have been, throughout the ages, occupying a higher social strata in society. In support of the contention, Mr. K. Channabasappa referred to us the following passage from a Text called “Mysore Tribes and Castes”.

Habitat.—

“The pure Arasus are found mostly in Mysore and are to some extent connected with the Royal Family. Many of them have their duties to discharge in the palace of His Highness the Maharaja. They live in decent houses of European pattern, and are provided with decent furniture Habitations or the other divisions are mostly situated in villages, and partake of the character of those possessed by other similar classes or people.”(38)

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Occupation.—

“The members of the community who have received Western education are in the Government service, both Civil and Military. The rest are landholders who have their lands cultivated under their supervision or let out on lease ………… In every village where there is an Arasu he leads the Honeru.”(39)

The dietary of the Caste.—

“The Arasus are strictly vegetarians. Both Arasus proper and Kumara Arasus dine in the houses of Brahmans without distinction; but Bada Arasus do not. All except the Brahmans dine in their house Arasus proper and Kumara Arasus interdine.”

This is, of course, an authoritative text on Tribes and Castes in the State. It is seen therefrom that the Arasus both by their habitat and occupation have had a high degree of social status and when there is one Arasu in any village, he alone leads the ‘Honeru’. The Arasus therefore, occupy a class which cannot be said to be socially backward.

40. The Commission has found(40) that the percentage of population of Arasus in the year 1972 was 21,245 in the State. The total number of families surveyed by the Commission among the Arasus in the villages and towns was 14 families consisting of 44 males and 29 females. In all 73 persons were covered by the survey. The inference drawn by the Commission on this material that the entire Arasus population is socially backward cannot, in our opinion, out-weigh the authoritative text above referred to.

41. It was next contended that the citizens for being classified as Backward Classes for the purpose of special treatment must in the matter of their backwardness be comparable and similar to the scheduled castes and tribes. But this principle, as we have earlier noticed, has been explained by the Supreme Court in Balaram case. After referring to the earlier decisions, the Supreme Court observed:

“…… It must be pointed out that none of the above decisions lay down that social and educational backwardness must be exactly similar in all respects to that of the Scheduled Castes and Scheduled Tribes. Those decisions also lay down that Article 15(4) being in the nature of an exception, the conditions which justify the departure from Article 15(1), must be strictly shown to exist.”

We may also point out that if the conditions of the Backward Classes or their backwardness are identical or similar to that of the Scheduled Castes and Tribes, then they cease to be Backward Classes and they automatically become entitled to be included in the list of the Scheduled Castes and Scheduled Tribes. Apart from that, after the decision in THOMAS case, we have to construe Article 15(4) or 16(4) as illustrative of one of the forms of classification aimed at achieving the very concept of equality of law guaranteed by Articles 14, 15(1) and 16(1). If, therefore, the State makes a reasonable classification of certain classes of citizens who have no proper opportunity for education or who have not yet been adequately represented in the State services and reserves a few seats or posts for their advancement, the Court cannot now strike down such a classification solely on the ground that their condition is not similar to the plight of the Scheduled Castes and Scheduled Tribes. That, according to us, appears to be a legitimate extension of the doctrine enunciated in Thomas case.

42. In that view, the other contention of the petitioners that there can not be a sub-classification among the Backward Classes as backward communities, backward castes and backward tribes, based on degree of backwardness cannot also be accepted.

43. The next contention to be considered is in regard to the classification of backward communities, backward castes, and backward tribes by a reference to the State average of student population in the High School Class. The impugned orders providing for such classification are based on the report of the Commission. The Commission proceeded to classify the categories as follows:

“The said three categories whose student population is below the State average are;

(i) Backward Communities (whose student average per thousand of population is below State average, but above 50 per cent of the State average)—Statement 7, Vol. II.

(ii) Backward Castes, whose student average per thousand of population is below 50 per cent of the State average)—Statement 8, Vol. II.

(iii) Backward Tribes, (whose student average is below 50 per cent of State average, except Dombars and Voddars and who are Nomadic and Denotified Tribes)—Statement 9, Vol. II.”

Relying upon the above finding of the Commission, it was urged that some of the communities listed as Backward cannot properly be regarded as educationally backward classes of citizens since their average of students population per thousand was very near or just below the State average. This contention was evidently based on the observation of the Supreme Court in BALAJI's case wherein it was said:

“……Therefore, we are not satisfied that the State was justified in making the view that communities or castes whose average of student population was the same, as or just below, the State average, should be treated as educationally backward classes of citizens. If the test has to be applied by a reference to the State average of student population, the legitimate view to take would be that the classes of citizens whose average is well or substantially below the State average can be treated as educationally backward. On this point again, we do not propose to lay down any hard and fast rule; it is for the State to consider the matter and decide it in a manner which is consistent with the requirements of Article 15(4).”

According to the statistics collected by the Commission, the average pass per thousand of Devadiga, Rajput and Satani communities is just below the State average. But we do not think that the inclusion of these communities would run counter to the above observation of the Supreme Court in Balaji's case. The said observation was again considered by the Supreme Court in Balaram's case and has been explained as follows—

“……Even in respect of educational State average it was observed in the said decision that the legitimate view to take would be that classes of citizens whose average is well below the State average can be treated as educationally backward. But here again it was emphasised that the court does not propose to lay down any hard and fast rule as it is for the State to consider the matter and decide it in a manner which is consistent with the requirements of Article 15(4). These observations made by this Court in the above decisions have, in our opinion, been misapplied by the High Court to the case on hand. It has proceeded on the basis that it is aximatic that the educational average of the class should not be calculated on the basis of the student population in the last three high school classes and that only those classes whose average is below the State average, that can be treated as educationally backward. This Court has only indicated the broad principles to be kept in view when making the provision under Article 15(4).”

44. From these observations, it is apparent that the Supreme Court in Balaji's case only indicated the broad principles to be kept in view while classifying the citizens as Backward leaving liberty to the State to decide the matter consistent with the equality classes. We may incidentaly point out that in Balaram's case, the Supreme Court has even upheld the validity of the classification of certain classes of citizens whose educational average was slightly above the State average.

45. It shows clearly, that in matters like this, the Judges could move with less assurance in spite of their training and full sense of the seamless web of life. We cannot lay down a hard and fast rule in this vast ocean of myriad social problems. We must, however, endeavour to feel the pulse of the masses and know the conscience of the community and then shape the categories through which life could flow and flourish.

46. This takes us to the next question which is of vital importance. The question is as to the extent to which the State could reserve for the benefit of the Backward Classes, the Scheduled Castes and Scheduled Tribes within the compass of Articles 15 and 16 of the Constitution. This was examined in Balaji's ease as follows:

“……..The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation of seat in all technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question ………………….

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…………….If admission to professional and technical colleges is unduly liberalised, it would be idle to contend that the quality of our graduates will not suffer. That is not to say that reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Article 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case …….”

(Underlining is ours)

Dealing with the scope of reservation under Article 16(4) it was further observed (3):

“…….. Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Article 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating widespread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Article 15(4), reservation made under 16(4), beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasise that Article 15(4) like Article 16(4) is an enabling provision; it does not impose an obligation but merely leaves it to the discretion of the appropriate Government to take suitable action, if necessary.”

These conclusions largely depended on the acceptance of and was a corollary to the proposition that Articles 15(4) and 16(4) were in the nature of exceptions. The question that inevitably follows from that conclusion is 50 per cent of what? Is it in relation to the cadre strength or to the available vacancies at each time of recruitment? The obscurity, if any, has been cleared in T. Devadasan v. Union of India(41) wherein Mudholkar, J. speaking for the majority view said:

“We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or ta disturb unduly the legitimate claims of other communities.”

47. The learned Advocate General urged, that the above doctrine was again based on the premise that Article 15(4) or 16(4) was an exception to Article 15(1) or 16(1) and since that principle has been dislodged by the decision in Thomas case, there can no longer be any limitation on the lower of the State to reserve posts for the benefit of weaker sections upon reasonable classifications. But Mr. Venkataranga Iyengar, learned Senior Advocate for the petitioners urged that this aspect of the matter in Balaji and Devadasan cases has not been over-ruled by Thomas case, and that therefore the principles constituting the limitation on the State's power in regard to reservations ought not to be ignored.

48. The problem requires a careful analysis. It is said that to understand the affluent it will be necessary to study the poor. The contrast brings out the point in great clarity. So also, to apprehend the majority view in Thomas case, it will be useful to have a look at the minority view. Khanna, J. who shared the minority view said:

“……..I am of the view that the provision of preferential treatment for members of backward classes, including scheduled castes and scheduled tribes is that contained in Clause (4) of Article 16 which permits reservation of posts for them. There is no scope for spelling out such preferential treatment from the language of clause (1) of Article 16 because the language of that clause does not warrant any preference to any citizen against another citizen. The opening words of clause (4) of Article 16 that ‘nothing in this article shall prevent the State from making any provision for the reservation of appointments of posts in favour of backward class of citizens’ indicate that but for clause (4) it would not have been permissible to make any reservation of appointments or posts in favour of any backward class of citizens.”

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“…….. The question with which we are concerned, however, is whether the method which has been adopted by the appellants is constitutionally permissible under clause (1) of Article 16. The answer to the above question, in my opinion, has to be in the negative. Apart from the fact that the acceptance of the appellants' contention would result in undermining the principle of equality of opportunity enshrined in clause (1) of Article 16, it would also in effect entail over-ruling of the view which has so far been held by this Court in cases of Champakam (A.I.R 1971 S.C 226); Rangachari (A.I.R 1962 S.C 36) and Devadasan (A.I.R 1964 S.C 179) (supra).”

The minority view thus did not favour any preference to any citizen against another citizen under Article 16(1) on the ground that acceptance of any such classificatory technique or compensatory discrimination would undermine the principle of equality of opportunity enshrined in Article 16(1) and also in effect entail overruling of the decision in DEVAPASAN's case.

49. Now, the real effect of the majority view in Thomas case is not far to seek. It runs counter to the decisions referred to by Khanria, J. If Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1), and if they are themselves aimed at achieving the very concept of equality guaranteed to the citizens by Articles 15(1) and 16(1), then the Court cannot restrict the operation of the majority view for a reservation of a minority of seats.

50. Plainly, Article 15(4) or 16(4) do not prescribe any limit on the power of the State to make reservations. The only limitation is that the reservation should not be excessive or extravagant so as to defeat the purpose of Article 15(1) or 16(1). It should not be for personal favour or political patronage. It should be related solely to the very existence of the backwardness. The observation of Fazl Ali, J., in Thomas case would be apposite in this context. The learned Judge observed(*):

“This means that the reservation should be within the permissible limits and should not be a cloak to fill all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since clause (4) is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16(1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50 per cent. As I read the authorities, this is however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward classes of citizens which constitute 80 per cent of the population and the Government, in order to give, them proper representation, reserves 80 per cent of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Article 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make inadequate representation adequate.”

51. The learned counsel for the petitioners referred to us the Constituent Assembly Debates to strengthen their submissions that a minority seats alone could be reserved. While dealing with the draft Article 10(3) (Article 16(4)) providing reservation for Backward Communities or Classes, Dr. Ambedkar made the following observations.(42)

“……..firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities, which have not so far had a ‘proper look-in’ so to say into the administration. If honourable Members will bear these facts in mind the three principles, we had to reconcile, they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is in a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now—for historical reasons-been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public secvices to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of Opportunity? It cannot be in my judgment. Therefore, the seats to be reserved if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats.”

It is true that the above remarks would support the contention of the petitioners and is in consonance with the view taken in Balaji's case. But the Supreme Court in Thomas case thought that was not a correct principle. We are bound by the declaration of law made by the Supreme Court.

52. This discussion, however, will not be complete without reference to another vital aspect of this question. Theoretically, there may not be any constitutional inhibition for providing reservations. The limiting factor, however, is the prevailing social conditions themselves. They are always relative in terms in any given society. Care must, therefore, be taken to isolate the most deserving class instead of classifying a large part of the populations as socially and educationally backward. In other words, the classification should be such that the benefit of reservation reaches the most deserving and no scope should be left for the upper creamy layers to walk away with the cake. Secondly, any reservation provided should progressively diminish and it should not be prejudicial to the interests of the community or nation as a whole.

53. Coming now to the reservation in the Civil Service, we may make a few more observations. The Civil Service is the prime instrument of the Government. A political system which produces a good Civil Service can feel some real assurance about its future. Herman Finer(43) describes Civil Service as follows:

“That the Civil Service is not a temporary camp of prefabricated dwellings to which anyone may easily repair and may shortly leave. It is further like a stately home designed with many wings, housing standards and conscience, and built to last many generations. It incarnates a pattern, a design, a concatenation of values, for living in its entirety, embodying values and graces beyond the materialistics only.”

The Civil Service is built to last many generations. It incarnates a pattern and must have a concatenation of values. It must have a co-ordination and control of ever so many persons. It should be politically “Neutral” but dynamic in outlook. It is required to remain like a thin edge of a cutting machine. Such a Civil Service could be established only on the foundation of merit judged by a common standard. We cannot ignore the fact that candidates selected out of the reserved quota indubitably belong to narrow leaves of efficiency. In the first place, therefore, the power that be apart, it would be for the State to ponder over the question in the interest of good administration whether it is prudent to have large scale reservations.

54. It may be an evil for the people that Government should be the privilege of a few; but it is good for the people that office should be confined to those who have been adjudged by a common standard and not dichotomy of standards. The Civil Service cannot afford to be a curate egg. The reservation to deserving classes in addition to the Scheduled Castes and Scheduled Tribes ought to be made and must be welcomed, but let us not drag down one system of order in the hope of rearing a better one on the ruins.

55. The first principle of Government even in ancient civilisation, in the view of Confucius, is good example, and good appointments are the second. So states WILL DURRENT in his book, “Story of Civilization: Our Oriental Heritage”:(44)

“Employ the upright and put aside the crooked; in this way the crooked can be made to be upright.” “The administration of Government”. says the Doctrine of the Mean, “lies in getting proper men.”

In this context the note of caution struck by the present learned Chief Justice in State of Jammu and Kashmir Triloki Nath Khosa(45) is worth recalling:

“…… Let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment; what after, all is the operational residue of equality and equal opportunity?”

56. The next two contentions were urged without any serious consideration. The first of them relates to the different incomes prescribed for Backward Communities, Backward Castes, Backward Tribes and the Special Group. It may be recalled that the Government has prescribed Rs. 10,000 income for citizens belonging to the former category and Rs. 4,800 for the latter to get benefit of the reservations. It was urged that citizens with Rs. 10,000 income cannot be said to be backward and the prescription of Rs. 4,800 is the only correct standard. We are not impressed by this contention. The citizens belonging to the communities or Castes have not been classified solely on the basis of their family income. They have been first classified as socially and educationally backward class. In order to avoid benefits being cornered by affluent people in such classes, the Government thought that the benefit of reservation should be confined to those whose family income falls below the said ceiling. It appears to be a wise decision, but for which, the classification would have been exposed to justifiable criticism. The ceiling of Rs. 10,000 was prescribed evidently on the ground that the citizens below that income group are not assessable to income-tax. But the citizens falling within the special group altogether belong to a different class. That group has not been classified and recommended by the Commission. The Government apparently thought that the persons even in the forward communities who are pursuing one or the other Occupation set out under the special group with a family income of Rs. 4,800 should also be given the benefit of reservation. That appears to have been intended to eliminate the inequalities even among such forward communities. Of course, it would have been better if a same standard of income had been prescribed both for the special group and also for the other Backward Classes, but the Court cannot substitute its hind sight for the Government's foresight in these matters unless it is shown that prscription is palpably arbitrary or unreasonable.

57. We are equally unimpressed by the contention relating to the Backward Tribes which the State has classified for the purpose of reservation both under Article 15(4) and also under Article 16(4). It was urged that the Backward Tribes cannot be categorised outside the Presidential Order under Article 342. Perhaps the counsel for the petitioners have in their minds “the Scheduled Tribes” which have been notified by the Presidential Order under Article 342. Suffice it to state that the State has not notified those Tribes as the Scheduled Tribes. The Backward Tribes, according to the Commission and the Government are those whose student average is below 50 per cent of the State average and who are more Backward than the Backward Castes.

58. Nor there is any merit in the next contention urged for the petitioners that a carry forward rule prescribed by the State for filling up the reserved vacancies is violative of Article 16(1). The Government Order dated 4th March 1977 provides that if in a recruitment to a category of posts of service, suitable persons belonging to the Scheduled Castes or Scheduled Tribes are not available for being selected, such vacancies shall be filled up by selection of candidates belonging to the Backward Communities or Backward Castes in the ratio of 2:1 as far as possible. If candidates belonging to the Backward Communities or Backward Castes are not available, the said vacancies are directed to be filled up on the basis of general merit. Likewise, it has also been directed that in such cases when the vacancies reserved for Scheduled Castes or Scheduled Tribes are filled by candidates not belonging to those Castes or Tribes, the vacancies lost to them shall be carried forward to the next occasion of recruitment to the same category of posts or services. This process will continue upto the third occasion and if on the third occasion of recruitment the vacancies reserved for Scheduled Castes and Scheduled Tribes and those carried forward from the first and second occasions cannot be filled by reason of the non-availability of the suitable candidates belonging to the Scheduled Castes and Scheduled Tribes such vacancies shall be filled by selection of suitable persons on the basis of general merit, and there shall be no further carry forward rule to the next occasion of recruitment. Similarly, in the recruitment to a category of posts, if persons belonging to the Backward Tribes or the Special Group are not available for being selected for the vacancies reserved for them, such vacancies shall be filled by selections of candidates on the basis of general merit. We do not find any constitutional infirmity in this carry forward rule. In Thomas case it has been held that the reservation could be made to afford compensatory benefits for the Scheduled Castes and Scheduled Tribes subject to the maintenance of efficiency in administration.

59. An attempt was made at one stage of the argument by Sri Channabasappa that the Commission deliberately over-estimated the population of Vokkaligas and did not give the correct statistics of Lingayats for the purpose of painting a picture of inadequacy of representation to the former and over-representation to the latter. Reference was also made to the Imperial Gazette of India. We are, however, not impressed by the play of statistics and the question was also not seriously pursued.

60. That, however, is not the end of the matter. We have to consider still one other contention. That contention relates to the legality of the inclusion or addition of certain Backward Communities and Castes made by the Government in the list of Backward Classes recommended by the Commission. The list recommended by the Commission under Article 15(4) contained 15 Backward Communities and 128 Backward Castes. The list recommended under Article 16(4) contained 9 Backward Communities and 155 Backward Castes. But the Government adopted one common list both for the purpose of Article 15(4) and Article 16(4). The list recommended by the Commission under Article 15(4) was thus adopted by the Government with a few additions. By the Government Order dated 22nd February 1977 and 18th May 1977, there were 16 Backward Communities, 129 Backward Castes and 62 Backward Tribes. Thereafter, the Government of India amended the list of the Scheduled Castes and Scheduled Tribes with effect from 27th July 1977 and consequently, the State by Order dated 15th March 1978 deleted certain names who have been since reclassified either as the Scheduled Castes or as Scheduled Tribes. The names thus deleted are as follows:—

(1) Backward Communities: (1) Meda. (2) Backward Castes: (1) Kanisan (Kaniyan) (3) Mala. (2) Kotegar. (4) Moger. (3) Backward Tribes: (8) Koracha. (1) Banjara. (9) Koraga. (2) Lambani. (10) Korama. (3) Nayak, Nayaka. (11) Madari. (4) Gantichore. (12) Sudugadusidl (5) Dombar. (13) Bhovi. (6) Handijogi. (7) Killekyatlia

The list of Banckward Classes notified by the State for the purpose of Article 16(4) now contains 15 Backward Communities, out of which the following eight have not been recommended by the Commission:

(1) Arasu (Urs.) (5) Nayinda. (2) Balija. (6) Rajput. (3) Devadiga. (7) Satani. (4) Ganiga. (8) Muslims.

61. The Commission has not recommended the above communities 1 to 7 under Article 16(4) on the ground that they have been adequately represented in the State Civil Services. The statistics collected by the Commission have not been found to be defective, nor the Government has collected any further statistics to justify their inclusion for providing them the reservation in the Civil Service. The learned Advocate General in his usual fairness also frankly submitted that the Government has no other materials apart from those collected by the Commission. It must therefore follow that the Government acted arbitrarily and the inclusion of the said seven communities cannot be justified under Article 16(4).

62. So far as the Muslims are concerned, the Commission was unwise in excluding them from the list of Backward Classes solely on the ground that they belong to a religious minority. The Commission has, however, found that the Muslims are socially and educationally backward and also do not have adequate representation in the Civil Service. The fact that they are a religious minority is no ground to exclude them from the list of Backward Classes. The Government, in our opinion, was perfectly justified in listing the Muslims in the list of Backward Classes.

63. For similar reasons, the addition of thirteen Backward Castes to the list recommended by the Commission under Article 16(4) cannot also be justified and valid since admittedly no investigation was made by the Government in respect of any of those castes. The names of those Backward Castes are as follows:—

Serial Nos. (1) Banna .. (24) (2) Gurkha .. (49) (3) Jat .. (54) (4) Konga .. (70) (5) Kotari .. (71) (6) Koyava .. (74) (7) Malayali .. (82) (8) Maniyani or (Muniyani) .. (85) (9) Padarti .. (98) (10) Padiyar .. (99) (11) Pandavakulam .. (103) (12) Raval .. (112) (13) Rawat .. (113)

But the Government classifying the Scheduled Castes/Scheduled Tribes (Converts to Christianity upto second generation) as a Backward Caste stands on a different footing. The Commission refused to classify the said converts as a Backward Caste for want of their statistics. It seems to us that whatever be the statistical data pertaining to these converts, their position and living conditions would not overnight improve by the mere factum of conversion to Christianity. The gestation period allowed to these converts, in our view, is also reasonable. We, therefore, decline to disturb the decision of the Government in regard to the Scheduled Castes/Scheduled Tribes (converts to Christianity up to second generation).

64. The last in this series is the legality of the classification of Arasus (urs) as a Backward Community even under Article 15(4). It is only those classes which are socially and educationally backward could be given the benefit of reservation under Article 15(4). We have earlier held that Arasus are not socially backward. They, therefore, ought not to have been classified as a Backward Class or community under Article 15(4).

65. It is hardly necessary to state that the classification of the aforementioned communities and castes as backward classes for the purpose of conferring benefits of reservations, has resulted in injustice to one or the other petitioner in these writ petitions.

66. In the view that we have taken, the reservation provided for the backward communities under Article 16(4) cannot be sustained. Consequent on the deletion of the said seven communities there ought to be a proportionate reduction in that reservation. That reservation should also be worked out in proportion to the citizens in those communities falling within the income of Rs. 10,000 per year and not on the basis of their total population. We, however, do not want to disturb the reservation made to the Backward Castes and Backward Tribes under Article 16(4), but leave it to the Government to make changes, if necessary, in the light of this order.

67. In the result, these petitions are allowed in part: The inclusion of the Arasu (Urs) community in the impugned notifications dated 22nd February 1977 and 4th March 1977 issued under Articles 15(4) and 16(4) of the Constitution is quashed. We also quash the inclusion of the Backward Communities viz., (i) Balija, (ii) Devadiga, (iii) Ganiga, (iv) Nayinda, (v) Rajput, (vi) Satani; and Backward Castes viz., (1) Banna, (2) Gurka, (3) Jat, (4) Konga, (5) Kotari, (6) Koyava (7) Malayali, (8) Maniyanani or (Muniyani) (9) Padarti, (10) Padiyar, (11) Pandavakulam, (12) Raval, (13) Rawat in the notification dated 4th March 1977 issued under Article 16(4) of the Constitution. We also quash the 20 per cent reservation made to Backward Communities in the State Civil Service under Article 16(4) of the Constitution reserving liberty to the State to provide appropriate reservation having regard to the principles stated in this order. The classification and reservation in all other respects are kept undisturbed.

68. We also direct that if any of the petitioners is entitled to any individual relief in the light of this order, it shall be worked out by the respondents in accordance with law and be granted forthwith.

69. In the circumstances, we make no order as to costs.