Justice Kuldeep Singh[1]
373. The next question for consideration is whether Article 16(4) provides reservation of appointments or posts at the stage of initial entry to Government services or even in’ the process of promotion. As at present the question is not res integra. A Constitution Bench of this Court, in The General Manager, Southern Railway v. Rangachari, (1962) 2 SCR 586, by a majority of three to two, has held that promotion to a selection post is covered by Article 16(4) of the Constitution of India.[2] This Court has also referred to Rangachari’s case in various other judgments. The reasoning of the majority in Rangachari’s case has, however, been followed in the subsequent judgments of this Court without adding any further reason. Mr. Venugopal and Ms. Shyamla Pappu, learned counsel for the petitioners have contended that majority judgment in Rangachari’s case* does not laydown correct law.
378. The point in dispute in Rangachari’s case was “is promotion to a selection post which is included in Article 16(1) and (2) covered by Article 16(4) or is it not ? ” The majority in Rangachari’s case interpreted Articles 16(1), 16(2) and 16(4) as under :
(1)The matters relating to employment must include all matters in relation to employment both prior and subsequent to the appointment which are incidental to the employment and form part of the terms and conditions of such employment. Thus promotion to selection posts is included both under Articles 16(1) and (2) Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and (2) do not fall within the mischief of Article 16(4). For instance the conditions of service relating to employment such as salary, increment, gratuity, pension and the age of superannuation are matters relating to employment and as such they do not form the subject matter of Article 16(4).
(3) Both “appointments” and “posts” to which the operative part of Article 16(4) refers to and in respect of which the power to make reservation has been conferred on the State must necessarily be appointments and posts in the service. The word “posts” in Article 16(4) cannot mean ex-cadre posts in the context.
(4) The condition precedent for the exercise of the powers conferred by Article 16(4) is the inadequate representation of any backward class in the State services. The inadequacy may be numerical or qualitative. In the context the expression “adequately represented” imports considerations of “size” as well as “values”, numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved.
(5) The word “Posts’ under Article 16(4) includes selection posts and as. such reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which may be filled by promotion thereafter.
375. The first three findings of the majority in Rangachari’s case (AIR 1962 Supreme Court 36) reproduced above are unexceptionable, how-ever, findings 4 and 5, with utmost respect, do not flow from the plain language of Article 16(4) of the Constitution of India.
376. There is no doubt that the backward classes should not only have adequate re-presentation in the lowest cadres of services but they should also aspire to secure adequate representation in the higher services as well. Article 16(4) permits reservation for backward classes by way of direct recruitment to any of the cadres in the State services. Reservation can be made in direct recruitment to any cadre or service from Class-IV to Class-I of the State services. The majority in Rangachari’s case has read in Article 16(4), what is not there, to support the element of qualitative representation.
377. The reservation permissible under Article 16(4) can only be ‘in favour of any backward class of citizens” and not for individuals. Article 16(1) guarantees a right to an individual citizen whereas Article 16(4) permits protective discrimination in favour of a class. It is, therefore, mandatory that the opportunity to compete for the reserve posts has to be given to a class and not to the individuals. When direct recruitment to a service is made the ‘backward class’ as a whole is given an opportunity to be considered for the reserve posts. Every member of the said class has a right to compete. But that is not true of the process of promotion. The backward class as a collectivity is nowhere in the picture; only the individuals, who have already entered the service against reserved posts, are considered. In the higher echelons of State services – cadre strength being small – there may be very few or even a single ‘backward class’ candidate to be considered for promotion to the reserve post. An individual citizen’s right guaranteed under Article 16(1) can only be curtailed by providing reservations for a ‘backward class and not for backward individuals. The promotional posts are not offered to the backward class. Only the individuals are benefitted. The object, context and the plain language of Article 16(4) make it clear that the job reservation can be done only in the direct recruitment and not when the higher posts are filled by way of promotion.
378. Examine from another angle. Article 16(4) provides for reservation of appointments or posts. Promotion is an incident of service which comes after appointment., ‘Appointment’ simpliciter means initial appointment to a service. Even the majority in Rangachari’s case (AIR 1962 Supreme Court 36) did not dispute this proposition of law. But interpreting the word “posts” to include selection posts it has been held that reservation can be made in the initial appointments as well as in regard to selection posts to be filled there- after. With respect, it is not possible to construe the word “posts” in the manner the majority judgment in Rangachari’s case has done. The expression “reservation of …… posts in favour of any backward class of citizens” only means that the posts in any cadre or service can be reserved by the State Government. It is not possible to read in these lines the permissibility of reservation even in the process of promotion. This is the only interpretation which can be given in’ the context and also in conformity with the service jurisprudence.
379. It has been rightly held in Rangachari’s case that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). The conditions of service which are matters relating to employment are protected by the doctrine of equality of opportunity and do not form the subject matter of Article 16(4). It is settled proposition of law that right to promotion is a condition of service. Once a person is appointed he is governed by the conditions of service applicable thereto. Appointment and conditions of service are two separate incidents of service. Conditions of service exclusively come within the expression “matters ‘relating to employment” and are covered by Article 16(1) and not by 16(4). When all other conditions of service fall out-side the purview of Article 16(4) and are exclusively covered by Article 16(1) then where is the justification to bring promotion within Article 16(4) by giving strained-meaning to the expression ‘posts’. The only conclusion by reading Articles 16(1), 16(2) and 16(4) which can be drawn is that all conditions of service including promotion are protected under Articles 16(1) and (2). Article 16(4) makes a departure only to the extent that it permits the State Government to make any provision for the reservation of appointments or posts at the initial stage of appointment and not in the process of promotion.
380. Constitution of India aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. If members of backward classes can maintain minimum necessary requirement of administrative efficiency not only representation but also preference in the shape of reservation may be given to them to achieve the goal of equality enshrined under the Constitution. Article 16(4) is a special provision for reservation of appointments and posts for them in Government services to secure their adequate representation. The entry of backward class candidates to the State services through an easier ladder is, therefore, within the concept of equality. When two persons one belonging to the backward class and another to the general category enter the same service through their respective channels then they are brought at par in the cadre of the service. A backward class entrant cannot be given less privileges because he has entered through easier-ladder and similarly a general class candidate cannot claim better rights because he has come through a ladder. After entering the service through their respective sources they are placed on equal footing and thereafter there cannot be any discrimination in the matter of promotion. Both must be treated equally in the matters of employment after they have been recruited to the service. Any further reservation for the backward class candidate in the process of promotion is not protected by Article 16(4) and would be violative of Article 16(1).
381. Although there is no factual material before us but it would not be hypothetical to assume that the reservation in promotion based on roster points – can lead to various anomalies such as the person getting the benefit of the reservation may jump over the heads of several of his seniors not only in his basic cadre but even in the higher cadres to which he is promoted out of turn. Even otherwise when once a member of the backward class has entered service via reserve post it would not be fair to keep on providing him easier ladders to climb the higher rungs of the State services in preference to the general category. Instead of reserving the higher posts for in-service members of the backward class the same should be filled by direct recruitment so that those members of backward class who are not in the State services may get an opportunity to enter the same.
382. For the reasons indicated above I hold that the interpretation given by the majority in Rangachari’s ‘s case (AIR 1962 Supreme Court 36) to Article 16(4), to the effect that it permits reservations in the process of promotion, is not permissible and as such cannot be sustained. Rangachari’s case to that extent is overruled. I hold that Article 16(4) permits reservation of appointments or posts in favour of any backward class of citizens only at the initial stage of entry into the State services. Article 16(4) does not permit reservation either to the selection posts or in any other manner in the process of promotion.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448
[2] Rangachari’s case has been followed by this Court in State of Punjab v. Hiralal, (1971) 3 SCR 267 and Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, (1981) 2 SCR 185