Justice P.B. Sawant[1]
512. The other aspect of the question is whether for the purposes of the percentage limit of the reservations under Article 16, the reservations made under clause (1) should be taken into consideration together with those made under clause (4) of the Article.
513. As has already been pointed out above, the reservations on the basis of economic criterion alone would be impermissible under clause (1). Assuming, however, that they are legal, they cannot cut into the reservations made for the backward classes under clause (4) which are for the specific purpose of making up the adequacy in representation in the services.
514. However, reservations for individuals are permissible under clause (1) on a ground other than economic, provided of course, the ground is not hit by Article 16(2). Instances of such individuals have been given earlier which need not be repeated here. There is, however, no need to make additional reservations for such individuals over and above those made under clause (4). The individuals can be accommodated in the quota reserved for the backward, or in the unreserved or general category depending upon the class to which they belong. For example, the defence personnel and the freedom fighters or their dependents, physically handicapped, etc., can be accommodated in the reserved quota under Article 16(4) if they belong to the backward classes, and in the unreserved posts/appointments if they belong to the unreserved categories. This is so because in their respective classes, they will be more disadvantaged than others belonging to those classes. Such a classification need not hit either clause (1) or clause (2) of Article 16 but would be justifiable. If this is done, there would be no occasion to keep extra posts/appointments reserved for them under clause (1).
515. It is necessary to add here a word about reservations for women. Clause(2) of Article 16 bars reservation in services on the ground of sex. Article 15(3) cannot save the situation since all reservations in the services under the State can only be made under Article 16. Further, women come from both backward and forward classes. If reservations are kept for women as a class under Article 16(1), the same inequitous phenomenon will emerge. The women from the advanced classes will secure all the posts, leaving those from the backward classes without any. It will amount to indirectly providing statutory reservations for the advanced classes as such, which is impermissible under any of the provisions of Article 16. However, there is no doubt that women are a vulnerable section of the society, whatever the strata to which they belong. They are more disadvantaged than men in their own social class. Hence reservations for them on that ground would be fully justified, if they are kept in the quota of the respective class, as for other categories of persons, as explained above. If that is done, there is no need to keep a special quota for women as such and whatever the percentage limit on the reservations under Article 16, need not be exceeded.
516. Yet another aspect of the matter is whether the extent of reservations should be determined (i) on the basis of the total strength of the particular cadre or service, or on the basis of the appointments made for that cadre in a particular year and (ii) without determining the inadequacy of representation of each class indifferent categories and grades of the services under the State.
517. Both to avoid arbitrariness in appointments and to ensure the availability of the expected number of seats every year, for the reserved as well as the unreserved categories as per the pre-defined known norms, it is necessary that the reservations in appointments/posts are made yearwise. Any other practice would give the authorities complete freedom as to when and at what percentage the reservations should be kept. It may happen that in some years, they may not keep reservations at all whereas in other years, they may reserve all or majority of the posts. Secondly, the periodicity of reservations may also vary depending upon the will of the authorities which may be influenced by several unpredictable considerations. This would spell out uncertainties in the matter of appointments both for the reserved and unreserved categories. Hence the reservations will have to be kept and calculated on yearwise basis [See : C.A. Rajendran v. Union of India, [(1968) 1 SCR 721 at 732-33] and better still, on the basis of the roster system with suitable. number of points to correspond the average vacancies. To permit calculation, further, of the percentage of reservations on the basis of the total strength of the cadre and to enable the authorities concerned, as stated earlier, to keep either all the posts or a majority of them reserved from year to year till there is adequate representation of the reserved categories, will in the process deny to the unreserved categories completely or near completely, their due share in the appointments yearwise, thus obliterating clause (1) of Article 16 totally over a given period of time. Hence as pointed out earlier, the extent of the percentage of the reservation should be calculated yearwise with due allowance to the operation of the rule with regard to the backlog, if any. Still better method is to regulate and calculate the appointments on the roster basis as stated earlier.
518. As regards point (ii), since the provisions of Article 16(4) are meant for providing adequate representation in the services to the backward classes, the representation has to be in all categories and grades in the services. The adequacy does not mean a mere proportionate numerical or quantitative strength. It means effective voice or share in power in running the administration. Hence, the extent of reservations will have to be estimated with reference to the representation in different grades and categories. [See : The General Manager, Southern Railway v. Rangachari [(1962) 2 SCR 5861 alone or under clause (4) and clause (1) of Article 16 together, exceeding 50%. However, validity of the extent of excess of reservations over 50% would depend upon the facts and circumstances of each case including the field in which and the grade or level of administration for which the reservation is kept. Although, further, legally and theoretically the excess of reservations over 50% may be justified, it would ordinarily be wise and nothing much would be lost, if the intentions of the framers of the Constitution and the observations of Dr. Ambedkar, on the subject in particular, are kept in mind. The reservations should further be kept category and gradewise at appropriate percentages and for practical purposes the extent of reservations should be calculated category and gradewise.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448