J. Thomman1
306. ‘Reservation of appointments or posts’ mentioned in Article 16(4) is with reference to appointments ‘in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State’. The condition precedent to making any such reservation is the satisfaction of the State as to the inadequate representation of any backward class of citizens in the services under the State. In respect of any such class, it is open to the State to make ‘any provision for the reservation of appointments or posts’.
307. An appointment is necessarily to a post, but every appointment need not necessarily be to a post in a service. An appointment to an ex-cadre post is as much an appointment to a post as it is in the case of a cadre post. The words ‘appointments or posts’ used in the alternative, and in respect of which reservation can be made, indicate that the appointment contemplated in Article 16(4) is not necessarily confined to posts in the services, but can be made to any post whether or not borne on the cadre of a service. Inadequate representation of any backward class of citizens enables the State to make provisions for the reservation of ‘appointments’ or posts’.
308. The word ‘post’ is often used in the Constitution in the wider sense for various purposes (see for example, Articles 309, 310(1) and 335). It is in that sense that the words ‘appointments or posts’ in Article 16(4) should be understood. The reasoning to the contrary in The General Manager, Southern Railway v. Rangachari, (1962) 2 SCR 586 was partly influenced by certain concessions made by the respondents’ counsel as to the nature of the post contemplated in Article 16(4) and the applicability of reservation to selection posts.
309. The object of reservation is to maintain numerical and qualitative or relative equality by ensuring sufficient representation for all classes of citizens. In whichever service a backward class of citizens is inadequately represented, it is open to the State to create sufficient number of posts for direct appointments. No matter whether the appointment is made to a cadre post or an ex-cadre post, the State action is beyond reproach so long as the constitutional objective of numerical and qualitative equality of opportunity is maintained by making direct appointments at the appropriate levels whenever inadequate representation of any backward class in the services is noticed by the State.
310. The initial appointments may be made at various levels or grades of the hierarchy in the service. There is no warrant in Article 16(4) to conclude from the expression ‘reservation of appointments or posts’ that reservation extends not merely to the initial appointment, but to every stage of promotion. Once appointed in a service, any further discrimination in matters relating to conditions of service, such as salary, increments, promotions, retirement benefits, etc. is constitutionally impermissible, it being the very negation of equality, fairness and justice.
311. To Construe the expression ‘post’ so as to make reservation applicable at the stage of promotion by selection or otherwise is to unduly and unfairly discriminate against persons who are already in the service and are senior and no less meritorious in comparison to the reserved candidates. Promotion by selection, though based on merits, is ultimately governed by seniority, for the concerned rules generally provide that, where merits are equal, officers will be ranked according to their seniority. In the case of promotion by seniority subject to fitness, merit, are not entirely disregarded, for even a senior officer can be overlooked in favour of a junior officer, if the former is found to be unfit for promotion. In all promotions, whether by selection or otherwise, merits and seniority are both significantly relevant and reservation of such posts in disregard of these two elements will result in invidious discrimination.
312. In whichever post that a member of a backward class is appointed, reservation provisions are attracted at the stage of his initial appointment and not subsequently. Further promotions must be governed by common rules applicable to all employees of the respective grades. Reasoning to the contrary in decisions, such as The General Manager, Southern Railway v. Rangachari, (1962) 2 SCR 586; State of Punjab v. Hiralal, (1971) 3 SCR 267; Akhil Bharatiya Soshit Karmachari Sang (Railway) v. Union of India, (1981) 2 SCR 185, is not warranted by the language of the Constitution.
313. The Constitution does not permit any citizen to be treated unfairly or unequally. To maintain numerical and qualitative equality and thus ensure adequately effective representation of the backward classes in the services, it is open to the State to make direct appointments at various level or grade of the service, and make appropriate provisions for reservation in respect of such initial appointments. Once appointed to a post, any further discrimination by reservation in regard to conditions of service including promotion is impermissible. Any deviation from this golden rule of justice and equality is unconstitutional.
- This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448 ↩︎