Justice R.M. Sahai [1]
One of us, Ahmadi, J. is of the opinion that this question does not arise for consideration in these writ petitions and hence need not be answered. Accordingly, the opinions expressed and conclusion recorded on this question are those of the Chief Justice, M.N Venkatachaliah. and B. P. Jeevan Reddy .JJ. only.
843. The petitioners’ submission is that the reservation of appointments or posts contemplated by clause (4) is only at the stage of entry into State service, i.e., direct recruitment. It is submitted that providing for reservation thereafter in the matter of promotion amounts to a double reservation and if such a provision is made at each successive stage of promotion it would be a case of reservation being provided that many times. It is also submitted that by providing reservation in the matter of promotion. the member of a reserved category is enabled to frog-leap over his compatriots, which is bound to generate acute heart-burning and may well lead to inefficiency in administration.
The members of the open competition category would come to think that whatever be their record and performance the members of reserved categories would steal a march over them, irrespective of their performance and competence. Examples are given how two persons (A) and (B), one belonging to O.C. category and the other belonging to reserved category, having been appointed at the same time, the member of the reserved category gets Promoted earlier and how even in the promoted category he jumps over the members of the O.C. category already there and gains a further promotion and so on.
This would generate, it is submitted, a reeling of disheartening which kills the spirit of competition and develops a sense of disinterestedness among the members of O.C. category. It is pointed out that once persons coming from different sources join a category or class, they must be treated alike thereafter in all matters including promotions and that no distinction is permissible on the basis of their “birth-mark”.
It is also pointed out, that even the Constituent Assembly debates on draft Article 10(3) do not indicate in any mariner that it was supposed to extend to promotions as well. It is further submitted that if Article 16(4) is construed as warranting reservation even in the matter of promotion it would he contrary to the mandate of Article 335 viz., maintenance of efficiency in administration. It is submitted that such a provision would amount to putting a premium upon in-efficiency. The members of the reserved category would not work hard since they do not have to compete with all their colleagues but only within the reserved category and further because they are assured of promotion whether they work hard and efficiently or not. Such a course would also militate against the goal of excellence referred to in clause (J) of’ Article 51A (Fundamental Duties).
844. Sri K. Parasaran, learned Counsel appearing for the Union of India raised a preliminary objection to the consideration of this question at all. According to him, this question does not arise at present inasmuch as the impugned Memorandums do not provide for reservation in the matter of promotion. They confine the reservation only to direct recruitment. Learned counsel reiterated the well-established principle of Constitutional Law that Constitutional questions should not be decided in vacuum and that they must be decided only if and when they arise properly on the pleadings of a given case and where it is found necessary to decide them for a proper decision of the case.
A large number of decisions of this Court and English Courts are relied upon in support of this proposition. It is this objection, Ahmadi, J. (one of us) upholds : If for any reason this Court decides to answer the said question, says the counsel, the answer can only be one — which is already given by this Court in a number of decisions namely, Rangachari (AIR 1962 Supreme Court 36), Hiralal (AIR 1971 Supreme Court 1777) and Karamchari Sangh (AIR 1981 Supreme Court 298). He submits that an appointment to a post is made either by direct recruitment or by promotion or by transfer.
In all these cases it is but an appointment. If so, Article 16(4) does undoubtedly take in and warrant making a provision for reservation in the matter of promotion as well. Learned counsel commended to us the further reasoning in Rangachari that adequate representation means not merely quantitative representation but also qualitative representation. He says further that adequacy in representation does not mean representation at the lowest level alone but at all levels in the administration.
Regarding the Constituent Assembly debates, his submission is that those debates do not indicate that the said provision was not supposed to apply to promotions. In such a situation, it is argued, plain words of the Constitution should be given their due meaning and that there is no warrant for cutting down their ambit on the basis of certain suppositions with respect to interpretation of clauses (1), (2) and (4). This is also the contention of the other counsel for respondents.
845. With respect to the preliminary objection of Sri Parasaran, there can hardly be any dispute about the proposition espoused by him. But it must be remembered that reference to this larger Bench was made with a view to “finally settle the legal position relating to reservations”. The idea was to have a final look at the said question by a larger Bench to settle the law in an authoritative way. It is for this reason that we have been persuaded to express ourselves on this question. But before we proceed to express ourselves on the question, a few clarifications would be in order.
846. Reservation in the case of promotion is normally provided only where the promotion is by selection i.e., on the basis of merit. For, if the promotion is on the basis of seniority, such a rule may not be called for; in such a case the position obtaining in the lower category gets reflected in the higher category (promotion category) also. Where, however, promotion is based on merit, it may happen that members of backward classes may not get selected in the same proportion as is obtaining in the lower category. With a view to ensure similar representation in the higher category also, reservation is thought of even in the matter of promotion based on selection. This is, of course, in addition to the provision for reservation at the entry (direct recruitment) level.
This was the position in Rangachari (AIR 1962 Supreme Court 36). Secondly, there may be a service/class/category, to which appointment is made partly by direct recruitment and partly by promotion (i.e., promotion on the basis of merit). If no provision is made for reservation in promotion, the backward class members may not be represented in this category to the extent prescribed. We may give an illustration to explain what we are saying.
Take the category of Assistant Engineers in a particular service where 50% of the vacancies arising in a year are filled up by direct recruitment and 50% by promotion (by selection i.e., on merit basis) from among junior Engineers. If provision for reservation is made only in the matter of direct recruitment but not in promotions, the result may be that members of backward classes (where quota, let us say, is 25%) would get in to that extent only in the 50% direct recruitment quota but may not get in to that extent in the balance 50% promotion quota.
It is for this reason that reservation is thought of even in the matter of promotions, particularly where promotions are on the basis of merit. The question for our consideration, however, is whether Article 16(4) contemplates and permits reservation only in the matter of direct recruitment or whether it also warrants provision being made for reservation in the matter of promotions as well. For answering this question, it would be appropriate, in the first instance, to examine the facts of and dicta in Rangachari, Hiralal and Karamchari Sangh.
847. In Rangachari (AIR 1962 Supreme Court 36), validity of the circulars issued by the Railway administration providing for reservation in favour of Scheduled Castes/Scheduled Tribes in promotions (by selection) was questioned. The contention was that Article 16(4) does not take in or comprehend reservation in the matter of promotions as well and that it is confined to direct recruitment only.
The Madras High Court agreed with this contention. It held that the word “appointments” in clause (4) did not denote promotion and further that the word “posts” in the said clause referred to posts outside the cadre concerned. On appeal, this Court reversed by a majority of 3 : 2. Gajendragadkar, J. speaking for the majority enunciated certain propositions, of which the following are relevant for our discussion
(a) matters relating to employment (in clause (i)) must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment.
(b) in regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens who enter service.”
(c) “The condition precedent for the exercise of the powers conferred by Article 16(4) is that the State ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of : the socially and educationally backward classes requires not only that they should have adequate, representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. 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.”
(d) “in providing for the reservation of appointments or posts under Article 16(4), the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration.
That undoubtedly is the effect of Article 335. Reservation of appointments or posts may theoretically and conceivably mean some impairment of efficiency, but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments of posts.”
848. In State of Punjab v. Hiralal (AIR 1971 Supreme Court 1777), validity of an order made by the Government of Punjab providing for reservation in promotion (in addition to initial recruitment) was questioned. Though the High Court upheld the challenge, this Court (Shah, Hegde and Grover, JJ.) reversed and upheld the validity of the Government order following Rangachari (AIR 1962 Supreme Court 36).
849. Validity of a number of circulars issued by the Railway Administration was questioned in Karamchari Sangh (AIR 1981 Supreme Court 298), a petition under Article 32. The experience gained over the years disclosed that reservation of appointments/posts in favour of SC/STs, though made both at the stage of initial recruitment and promotion was not achieving the intended results, inasmuch as several posts meant for them remained unfilled by them.
Accordingly, the Administration issued several circulars from time to time extending further concessions and other measures to ensure that members of these categories avail of the posts reserved for them fully. (The original circular is referred to in the judgment as Ann.-F, whose validity was upheld in Rangachari (AIR 1962 Supreme Court 36) itself. The other circulars are referred to as Annexures I, H, J and K). These circulars contemplated (i) giving one grade higher to SC/ST candidates than is assignable to an employee; (ii) carrying forward vacancies for a period of three years; and (iii) provision for in-service training and coaching (after promotion) to raise the level of efficiency of SC/ST employees who were directed to be promoted on a temporary basis for a specified period, even if they did not obtain the requisite places. The contention of the writ petitioners was that these circulars, being inconsistent with the mandate of Article 335, are bad.
Rangachari was sought to be reopened by arguing that Article 16(4) does not take in reservation in the matter of promotion. The Division Bench (Krishna Iyer, Pathak and Chinnappa Reddy, JJ.) not only refused to re-open Rangachari but also repelled the attack upon the circulars. It was held that no dilution of efficiency in administration resulted from the implementation of the circulars inasmuch as they preserved the criteria of eligibility and minimum efficiency required and also provided for in-service training and coaching to correct the deficiencies, if any. The carry forward rule was also upheld subject to the condition that the operation of the rule shall not result, in any given year, selection/appointment of Scheduled Caste/Scheduled Tribe candidates in excess of 50%.
850. In Comptroller and Auditor General v. K. S. Jagannathan, (1986(2) SCR 17), it was held :
“It is now well settled by decisions of this court that the reservation in favour of backward classes of citizens including the members of the Scheduled Castes and the Scheduled Tribes, as contemplated by Article 16(4) can be made not merely in respect of initial recruitment but also in respect of posts to which promotions are to be made. (See for instance : 1971(3) SCR 267 and Akhil Bhartiya Soshit Karamchari Sangh v. U.O.I., (1981(1) SCC 246).“
851. We find it difficult to agree with the view in Rangachari (AIR 1962 Supreme Court 36) that Article 16(4) contemplates or permits reservation in promotions as well. It is true that the expression “appointment” takes in appointment by direct recruitment, appointment by promotion and appointment by transfer. It may also be that Article 16(4) contemplates not merely quantitative but also qualitative support to backward class of citizens. But this question has not to be answered on a reading of Article 16(4) alone but on a combined reading of Article 16(4) and Article 335.
In Rangachari this fact was acknowledged but explained away on a basis which, with great respect to the learned Judges who constituted the majority – does not appear to be acceptable. The propositions emerging from the majority opinion in Rangachari have been set out in Para 104. Under proposition (d) (as set out in para 104), the majority does say that “in providing for the reservation of appointments or posts under Article 16(4), the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration.
It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Article 335. Reservation of appointments or posts may theoretically and conceivably means “some impairment of efficiency;” but then it explains it away by saying “but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts”.
We see no justification to multiply ‘the risk’, which would be the consequence of holding that reservation can be provided even in the matter of promotion. While it is certainly just to say that a handicap should be given to backward class of citizens at the stage of initial appointment, it would be serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career.
That would mean creation of a permanent separate category apart from the mainstream – a vertical division of the administrative apparatus. The members of reserved categories need not have to compete with others but only among themselves. There would be no will to work, compete and excel among them. Whether they work or not, they tend to think, their promotion is assured. This in turn is bound to generate a feeling of despondence and ‘heart-burning’ among open competition members. All this is bound to affect the efficiency of administration. Putting the members of backward classes on a fast-track would necessarily result in leap-frogging and the deleterious effects of “leap-frogging” need no illustration at our hands. At the initial stage of recruitment reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that those members too compete with others and earn promotion like all others; no further distinction can be made thereafter with reference to their “birth- mark”, as one of the learned Judges of this Court has said in another connection.
They are expected to operate on equal footing with others. Crutches cannot be provided throughout one’s career. That would not be in the interest of efficiency of administration nor or at in the larger interest of the nation. It is wrong to think that by holding so, we are confining the backward class of citizens to the lowest cadres. It is well-known that direct recruitment takes place at serveral higher levels of administration and not merely at the level of Class-IV and Class-III.
Direct recruitment is provided even at the level of All India Services. Direct recruitment is provided at the level of District Judges, to give an example nearer home. It may also be noted that during the debates in the Constituent Assembly, none referred to reservation in promotions; it does not appear to have been within their contemplation.
852. It is true that Rangachari (AIR 1962 Supreme Court 36) has been the law for more than 30 years and that attempts to re-open the issue were repelled in Karamchari Sangh (AIR 1981 Supreme Court 298). It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the Central and State services but we are convinced that the majority opinion in Rangachari, to the extent it holds, that Article 16(4) permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking into consideration all the circumstances, we direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis.
It is further directed that wherever reservations are already provided in the matter of promotion – be it Central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of ‘State’ in Article 12 – such reservations shall continue in operation For a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant Rules to ensure the achievement of the objective of Article 16(4).
If any authority thinks that for ensuring adequate representation of ‘backward class of citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so.
853. A purist or a legal theoretician may find this direction a little illogical. We can only answer them in the words of Lord Roskill. In his presidential address to the Bentham Club at University College of London on February 29, 1984 on the subject “Law Lords, Reactionaries or Reformers ? “, the learned Law Lord said :
“Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing, the development by the House of Lords of the common law. What direction should this development now take ? I can think of several occasions upon which we have all said to ourselves “this case requires a policy decision – what is the right policy decision ? ” The answer is, and I hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism.
But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply.”
854. We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in Thomas and the concessions namely carrying forward of vacancies and provisions for in-service coaching/training in Karamchari Sangh are instances of such concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration.
We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the 0. B. Cs., S. Cs. and S.Ts. — consistent with the efficiency of’ administration and the nature of duties attaching to the office concerned – in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for reasons recorded hereinabove.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448