Justice P.B. Sawant[1]
501. It is seen earlier that 50 per cent rule was propounded in Balaji. The rule was propounded in the context of Article 15(4), but, while propounding it, this Court stated among other things, as follows:
” …… 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%; how much less than 50% would depend upon the relevant prevailing circumstances in each case.”
502. A reference to Article 16(4) there, therefore, unmistakably shows that it is presumed that the same rule will apply to Article 16(4) as well. This rule, however, did not see uniform acceptance in all the decisions that followed. The case which immediately followed — Devasan – applied this rule to the “carry forward rule” and struck down the same in its entirety, since 65 per cent of the vacancies for the year in question, came to be reserved for the SCs/STs by virtue of that rule. With respect, even on the application of the 50 per cent rule, it was not necessary to strike down the “carry forward rule” itself. All that was necessary was to confine the carry forward vacancies for the year in question to 50 per cent. Be that as it may. In Thomas (AIR 1976 Supreme Court 490), the correctness of 50 per cent rule was questioned by Fazal Ali, J. who stated that although clause (4) of Article 16 does not fix any limit on reservations, the same being part of Article 16, the State cannot be allowed to indulge in excessive reservation so as to defeat the policy of Article 16(1). The learned Judge, however, added that as to what would be a suitable reservation within permissible limits will depend on 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. The learned Judge then went on to say that although the decided cases till that time, had laid down that the percentage of reservation should not exceed 50, it was a rule of caution and did not exhaust all categories. He then gave an illustration of a State in which backward classes constituted 80 per cent of the total population, and stated that in such cases, reservation of 80 per cent of the jobs for them, can be justified. The learned Judge justified reservation to the said extent on the ground that the dominant object of the provision of Article 16(4) is to take steps to make inadequate representation of backward classes adequate. Of the other learned Judges constituting the Bench, Krishna Iyer, J. agreed with Fazal Ali, J. and stated that the arithmetical limit of 50 per cent in one year set by earlier rulings cannot “perhaps be pressed too far “. He added that over-representation in a department does not depend on recruitment in a particular year but on the total strength of the cadre. (Emphasis supplied)
503. In Vasanth Kumar (AIR 1985 Supreme Court 1495) Chinnappa Reddy, J. held that Thomas (AIR 1976 Supreme Court 490) had undone the 50 per cent rule laid down in the earlier cases, while Vekataramiah, J. disagreed with the learned Judge on that point.
504. It does not appear further than Justice Iyer’s support to Justice Fazal Ali’s view in Thomas was unqualified or remained unchanged. For in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India ((1981) 2 SCR 185), after referring to Balaji (AIR 1963 Supreme Court 649) and Devasan (AIR 1964 Supreme Court 179), he stated as follows :
“All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC & ST candidates be actually appointed to substantially more than 50 per cent of the promotional posts. Some excess will not affect as mathematical precision is different in human affairs, but substantial excess will void the selection. Subject to this rider or condition that the ‘carry forward’ rule shall not result, in any given year, in the selection or appointments of SC & ST candidates considerably in excess of 50 per cent, we uphold Annexure I.”
505. The learned Judge has supported this conclusion by the observations made by him in the earlier paragraph of his judgment which show that according to him the reservations made under Article 16(4) should not have the effect of virtually obliterating the rest of the Article – clauses (1) and (2) thereof.
506. It is necessary in this connection, to point out that not only Article 16(4) but for that matter, Article 335 also does not speak of giving proportional representation to the backward classes and SCs/STs respectively. Article 16(4), as repeatedly pointed out earlier, in terms, speaks of “adequate” representation to the backward classes, while Article 335 speaks of the “claims” of the members of the SCs/STs. However, it cannot be disputed that whether it is the appointments of SCs/STs or other backward classes, both are to be made consistently with the maintenance of the efficiency in administration. Since the reservations contemplated under both the Articles include also the giving of concessions in marks, exemptions etc., it is legitimate to presume that the Constitution-framers being aware of the level of backwardness, did envisage that the inadequacy in the representation of the backward classes cannot be made up in one generation consistently with the maintenance of efficiency in the administration. In fact, as pointed out earlier, if the backward classes can provide candidates for filling up the posts in all fields and at all levels of administration in one generation, they would cease to be backward classes. What was in the mind of the Constitution framers was the removal of the inadequacy in representation over a period of time, on each occasion balancing the interests of the backward classes and the forward classes so as not to affect the provisions of equality enshrined in Articles 14 and 16(1) as also the interests of the society as a whole. As pointed out earlier, Dr. Ambedkar was not only not in favour of proportional representation but was on the contrary, of the firm view that the reservations under Article 16(4) should be confined to the minority of the posts/appointments. In fact, as the debate in the Constituent Assembly shows nobody even suggested that the reservations under Article 16(4) should be in proportion to the population of the backward classes.
507. While deciding upon a particular percentage of reservations, what should further not be forgotten is that between the backward and the forward classes, there exists a sizeable section of the population, who being socially not backward are not qualified to be considered as backward. At the same time they have no capacity to compete with the forwards being educationally and economically not as advanced. Most of them have only the present generation acquaintance with education. They are, therefore, left at the mercy of chance-crumbs that may come their way. They have neither the benefit of the statutory nor of the traditional in-built reservations on account of the unequal social advantages. It is this section sandwiched between the two which is most affected by the reservation policy. The reservation-percentage has to be adjusted to meet their legitimate claims also.
508. In this connection, one more fact need to be considered from a realistic angle. A mechanical approach in keeping reservations in all fields and at all levels of administration and that too at a uniform percentage is unrealistic. There is no reason why the authorities concerned should not apply their mind and evolve a realistic policy in this behalf. There are fields and levels of administration where either there may be no candidates from backward classes available or may not be available in adequate number. In such cases, either no reservations should be kept or reservations kept should be at an appropriate percentage. On the other hand, in fields and at levels where the candidates from the backward classes are available in suitable number, the maximum permissible reservations can be kept. The adjustment of the reservations and their percentages, field and grade-wise as well as from time to time, as per the availability of the candidates from the backward classes, is not only implicit in the constitutional provisions but is also warranted for purposeful and effective implementation of the spirit of those provisions.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448