Justice Kuldeep Singh[1]
383. Article 16(1) provides equality of opportunity for all citizens in matters relating to State-services. Equals have to be treated equally whereas the unequals ought not to be treated equally. For effective implementation of the right guaranteed under Article 16(1) classification is permissible. Such classification has to be reasonable having regard to the object of the right. Article 16(4) is another facet of Article 16(1). It exclusively provides for reservation which is one of the forms of classification. Article 16(4)being a special provision regarding reservation it completely takes away such classification from the purview of Article 16(1). Thus the State power to, provide job reservations is wholly exhausted under Article 16(4). No reservation of any kind is permissible under Article 16(1). Article 16(4) completely overrides Article 16(1) in the matter of job-reservations.
384. Article 16(4) thus exclusively deals, with reservation and it cannot be invoked for any other form of classification. Article 16(1), however, permits protective discrimination, short of reservation, in-the matters relating to employment in the State-services. On these issues I entirely agree and adopt the reasoning and the conclusions reached by R. M. Sahai, J. and hold as under :
1. Articles 16(1) and 16(4) operate in the same field.
2. Article 16(4) is exhaustive of the State power to provide reservations in State-services.
3. Protective discrimination, short of reservations, which satisfy the tests of reasonableness, is permitted under Article 16 (1).
385. I have carefully read the reasoning and the conclusions reached by R. M. Sahai, J. on this issue. Agreeing with him I hold as hold :
(i) that the reservations under Article 16(4) must remain below 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitutionally invalid.
(ii) It is for the State to adopt the methodology of providing reservations below 50%. The State may provide the said reservation id respect of the substantive vacancies arising in a year or in the cadre or service. It would be permissible to carry forward the reserve vacancies of one year to the next year. It is reiterated that the vacancies reserved in a year including those which are carried forward shall not exceed 50%.
(iii) No reservation of any kind can be made for any class or category whether backward or non backward under Article 16(1).
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448