S. Ratnavael Pandian. J.[1]

194. The most important pivotal and crucial issue that I would now like to ponder over relates to the intent of para 2 (i) of the OM dated 25th September 1991 whereunder it is declared that “within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, Preference will be given to the candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates is not available, unfilled vacancies shall be filled by the other SEBC candidates”.

195. To say in other words, the Government intends to prescribe an income ceiling for determination of ‘poorer sections’ of the SEBCs who will be eligible to avail of the preference of reservation of appointments or posts in the Services under the State. It is an admitted fact that the Government so far has not laid down any guideline or test for identifying and ascertaining the ‘poorer sections’ among the identified SEBCs.

196. The OM has specifically used the expression, ‘poorer sections’ but not ‘weaker sections’ as contemplated under Article 46 of the Constitution. Though the expressions ‘poorer sections’ and ‘weaker sections’ may connote in general ‘the disadvantaged position of a section of the people’ they do not convey one and the same meaning and they are not synonymous. When the OM deliberately uses the expression ‘poorer sections’, it has become incumbent to examine what that expression means and whether there can be any sub-classification as ‘poorer’ and ‘non-poorer’ among the same category of potential backward class of citizens on the anvil of economic criterion.

197. The word ‘poor’ lexically means “having little or no money, goods or other means of support” (Webster’s Encyclopedic Unabridged Dictionary) or “lacking financial or other means of subsistence” (Collins English Dictionary).

198. The OM uses the expression ‘poorer’ in its comparative term for the word ‘poor’. It is common knowledge that the superlative term for the word ‘poor’ is ‘poorest’. The very usage of the word ‘poorer’ is in comparison with the positive word ‘poor’. Therefore, it necessarily follows that the OM firstly considers all the identified SEBCs in general as belonging to ‘poor sections’ from and out of which the ‘poorer sections’ are to be culled out by applying a test to be yet formulated by the Government evidently on economic criterion or by application of poverty test based on the ceiling of income. After the segregation of ‘poorer sections’ of the SEBCs, the left out would be the ‘poor sections’. By the use of the word ‘poorer’, the Government is superimposing a relative poverty test for identifying and determining a preferential class among the identified SEBCs. It is stated that the preference will be given first to the ‘poorer sections’ and only in case there are unfilled vacancies, those vacancies will be filled by the left out SEBCs, namely, those other than the poorer sections. In other words, it means that all the identified SEBCs do not belong to affluent sections but to poor and poorer sections, that the expression ‘poorer sections’ denotes only the economically weaker sections of SEBCs compared with the remaining same category of SEBCs and that those, other than the ‘poorer sections’ although socially and educationally backward are economically better off compared with the ‘poorer sections’. The view that all the identified SEBCs are considered as ‘poor’ or ‘poorer’ is fortified by the fact that there is an inbuilt explanation in the amended OM itself to the effect that those who do not fall within the category of ‘poorer sections’ also will be entitled for the benefit of reservation but of course subject to the availability of unfilled vacancies.

199. An argument was advanced that for identifying ‘poorer sections’, the ‘means test’ signifying an imposition of outer income limit should be applied and those who are above the cut off income limit should be excluded so that the better off sections of the SEBCs may be prevented from taking the benefit earmarked for the less fortunate brethren, and the only genuine and truly members of ‘poorer sections’ of SEBCs may avail the benefit of reservation. In support of this argument, an attempt has been made to draw strength on two decisions of this Court rendered in Jayashree (AIR 1976 Supreme Court 2381) and Vasanth Kumar (AIR 1985 Supreme Court 1495).

200. Chief Justice Ray in Jayashree seems to have been inclined to take the view that reservation of seats in educational institutions should not be allowed to be enjoyed by the rich people suffering from the same communal disabilities.

201. Chinnappa Reddy, J. in Vasanth Kumar recognises this ‘means test’ saying that “an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserved it”, with which view Venkataramiah, J. (as the learned’ Chief Justice then was) has agreed.

202. Thus the above argument based on ‘means test’ though seems to be plausible at the first sight is, in my opinion, not well founded and must be rejected on the ground that the identified category of SEBCs, having common characteristics or attributes – namely the potential social backwardness cannot be bisected or further classified by applying the economic or poverty test.

203. A doubt has been created as to whether the word ‘poorer’ connotes economic status or social status or is to be understood in any other way.

204. The word ‘poorer’ when examined in the context in which it is deployed both syntactically and etymologically, in my view, may not convey any other meaning except relative poverty or comparative economic status. If any other meaning is imported which the Government evidently appears to have not contemplated, virtually one will be rewriting the second OM.

205. An order of a Constitution Bench dated 1st October 1991 clearly spells out that Bench was of the view that ‘poorer sections’ are to be identified by the economic criterion. The relevant portion of the above Order reads as follows :

“The matters are adjourned to 31st October 1991 when learned Additional Solicitor General will tell us how and when Government would be able to give the list of the economic criteria referred to in the notification of 25th September 1992.”

206. The same view is reflected in a subsequent Order dated 4th December 1991 made by this nine-Judges Bench, the relevant part of which reads thus:

“Learned Additional Solicitor General states that the Government definitely expects to be able to fix the economic criteria by January 28,1992 ………….. …. As far as the question of stay granted by us earlier is concerned, we see no reason to pass any order at this stage as the petitions are posted for hearing on January 28, 1992 and in view of the economic criterion not being yet determined and other relevant circumstances, no question of immediate implementation of the notification arises.”

207. The above Order of this Court supports my view that the Government has to identify the ‘poorer sections’ only by the economic criteria or by the application of poverty test otherwise called ‘means test’. It appears that this Court has all along been given to understand that ‘poorer sections will be tested by the Government on economic criterion.

208. The above view is further fortified by the very fact that the second OM providing 10% of the reservation for economically backward sections of the people not covered by any other scheme of the reservation’ indicates that the Government has taken only the economic criteria in making the classification of the various sections of the people (Emphasis supplied). Therefore, I proceed on the basis that the second OM identifies the ‘poorer sections’ only on the basis of economic status.

209. When the ‘means test’ is analysed in depth so as to explore its merits and demerits, one would come to an inevitable conclusion that it is not a decisive test but on the other hand it will serve as a protective umbrella for many to get into this segregated section by adopting all kinds of illegal and unethical methods. Further, this test will be totally unworkable and impracticable in the determination of “getting somebody in and getting somebody out” from among the same identified SEBCs. If this ‘means test’ argument is accepted and put into action by scanning the identified SEBCs by applying a super-imposition test, the very object and purpose of reservation, intended for the socially backward class would reach only a include sac and the identified SEBCs would be left in a maze. In my considered opinion, it will be a futile exercise for the courts to find out the reasons in support of the division between and among the group of SEBCs and make rule therefor, for multiple reasons, a few of which I am enumerating hereunder.

(1) The division among the identified and ascertained SEBCs having common characteristics and attributes – the primary of which being the potential social backwardness, as ‘poorer sections’ and ‘non-poorer sections’ on the anvil of economic criterion or by application of a super-imposition test of relative poverty is impermissible as being opposed to the scope and intent of Article 16 (4).

(2) If this apex Court puts its seal of approval to part 2 (i) of the second OM whereunder a section of the people under the label of ‘poorer sections’ is carved out from among the SEBCs, it becomes a law declared by this Court for the entire nation under Article 141 of the Constitution and is binding on all the Courts within the territory of India and that the decision of this Court on a constitutional question cannot be over-ridden except by the constitutionally recognised norms. When such is the legal position, the law so declared should be capable of being effectively implemented in its full measure, in the generality of cases and not confined in its applicability to some rare or freakish cases. The law should not be susceptible of being abused or misused and leave scope for manipulation which can remain undetected. If the law so declared by this Court is indecisive and leaves perceivable loopholes, by the aid of which one can defeat or circumvent or nullify that law by adopting an insidious, tricky, fraudulent and strategic device to suit one’s purpose then that law will become otiose and remain as a dead letter.

210. I would like to indicate the various reasons in support of my opinion that this process of elimination or exclusion of a section of people from and out of the same category of SEBCs cannot be sustained leave apart the authority of the Government to take any decision and formulate its policy in its discretion or opinion provided that the policy is not violative of any constitutional or legal provisions or that discretion or opinion is not vitiated by non-application of mind, arbitrariness, formulation of collateral grounds or consideration of irrelevant and extraneous material etc.

a) If the annual gross income of a government servant derived from all his sources during a financial year is taken as a test for identifying the ‘poorer sections’, that test could be defeated by reducing the income below the ceiling limit by a Government servant voluntarily going on leave on loss of pay for few months during that financial year so that he could bring his annual income within the ceiling limit and claim the benefit of reservation meant for ‘poorer sections’. Similarly, a person owning extensive land also may lay a portion of his land fallow in any particular year or dispose of a portion of his land so as to bring his agricultural income below the ceiling limit so that he may fall within the category of ‘poorer sections’.

b) The fluctuating fortunes or misfortunes also will play an important role in determining whether one gets within the area of ‘poorer sections’ or gets out of it.

c) Take a case wherein there are two brothers belonging to the same family of ‘backward class’ of whom one is employed in Government service and another is privately employed or has chosen some other profession. The annual income of the Government employee if slightly exceeds the ceiling limit, his children will not fall within the category of ‘poorer sections’ whereas the other brother can deceitfully show his income within the ceiling limit so that his children can enjoy that benefit.

d) Among the pensioners also, the above anomaly will prevail as pointed out in Janaki Prasad (AIR 1973 Supreme Court 930).

e) Any member of SEBCs who is in Government job and is on the verge of his superannuation and whose income exceeds the ceiling limit, will go out of the purview of ‘poorer sections’ but in the next financial year, he may get into the ‘poorer sections’ if his total pensionary benefits fall within the ceiling limit.

f) A person who is within the definition of ‘poorer sections’ may suddenly go out of its purview by any intervening fortuitous circumstances such as getting a marital alliance in a rich family or by obtaining any wind-fall wealth.

g) If poverty test is made applicable for identifying the ‘poorer sections’ then in a given case wherein a person is socially oppressed and educationally backward but economically slightly advanced in a particular year, he will be deprived of getting the preferential treatment.

211. The above are only by way of illustrations, though this type can be multiplied, for the purpose of showing that a person can voluntarily reduce his income and thereby circumvent the declared law of this Court. In all the above illustrations, enumerated as (a) to (g) the chance of “getting into or getting out of the definition of ‘poorer sections’ will be like a see-saw depending upon the fluctuating fortunes or misfortunes.

(3) The income-test for ascertaining poverty may severally suffer from the vice of corruption and also encourage patronage and nepotism.

(4) When the Government has accepted and approved the lists of SEBCs, identified by the test of social backwardness, educational backwardness and economic backwardness which lists are annexed to the Report, there is no justification by dividing the SEBCs into two groups, thereby allowing one section to fully enjoy the benefits and another on a condition only if there are unfilled vacancies.

(5) The elimination of a section of SEBCs by putting an arbitrary and unnecessary barrier on the basis of economic criterion is absolutely unjustified. This process of elimination or exclusion of a section of SEBCs will be tentamount to pushing those persons into the arena of open competition along with the forward class if there are no unfilled vacancies out of the total 27% meant for SEBCs. This will cause an irretrievable injustice to all the non-poorer sections though they are also theoretically declared as SEBCs.

(6) The second OM providing a scanning test is neither feasible nor practicable. It will be perceptible and effectual only if the entire identified backward class enjoys the benefit of reservation.

(7) The proposed ‘means test’ is highly impressionistic test, the result of which is likely to be influenced by many uncertain and imponderable facts.

(8) It may theoretically sound well but in practice attempts may be made in a underhanded way to get round the problem.

212. What I have indicated above is only the tip of the iceberg and more of it is likely to surface at the time when any scanning process and super-imposition test are put into practice.

213. In this connection, I would like to mention the views of the Tamil Nadu Government as expressed by the Chief Minister of Tamil Nadu in the Chief Ministers’ Conference held in New Delhi (already referred to) stating that the application of income limit on reservation will exclude those people whose income is above the ‘cut-off’ limit and literally, it means that they will come under the open competition quota and if caste is not the sole criterion, income limit cannot also be the decisive and determining factor for social backwardness and that the exclusion of certain people from the benefits of reservation by the application of economic criterion will not bring the desired effect for the advancement and improvement of the backward classes who have suffered deprivation from the time immemorial.

214. Reference also made be made to Balaji (AIR 1963 Supreme Court 649) wherein it has been ruled that backward classes cannot be further classified into backward and more backward and that such a sub-classification “does not appear to be justified under Article 16(4)”. This view, in my opinion, can be equally applied even for sub-classification under Article 16(4).

215. Arguing with the above view of Balaji, I hold that the further sub-classification as ‘poorer sections’ out of the ascertained SEBCs after accepting that group in which the common thread of social backwardness runs through as an identifiable unit within the meaning of the expression ‘backward class’, is violative of Article 16(4).


[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448

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