An Excerpt from Indira Sawhney Judgement
Meaning of Reservation
Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words in Section 16 are “any provision for the reservation of appointments or posts.” The question is whether the said words contemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, concessions and exemptions.
In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The Constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration – the admonition of Article 335.
The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementay, incidental and ancilliary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour.
The other type of measure is the one in Thomas. There was no provision for reservation in favour of Scheduled Castes/Scheduled Tribes in the matter of promotion to the category of Upper Division Clerks. Certain tests were required to be passed before a Lower Division Clerk could be promoted as Upper Division Clerk. A large number of Lower Division Clerks belonging to S.C./S.T. were not able to pass those tests, with the result they were stagnating in the category of L.D.Cs.
Rule 13AA was accordingly made empowering the government to grant exemption to members of S.C./S.T. from passing those tests and the Government did exempt them, not absolutely, but only for a limited period. This provision for exemption was a lesser form of special treatment than reservation. There is no reason why such a special provision should not be held to be included within the larger concept of reservation. It is in this context that the words “any provision for the reservation of appointments and posts” assume significance. The word “any” and the associated words must be given their due meaning.
Article 16(4) is exhaustive in favour of Backward Class
They are not a mere surplusage. It is true that in Thomas it was assumed by the majority that Clause (4) permits only one form of provision namely reservation of appointments/posts and that if any concessions or exemptions are to be extended to backward classes it can be done only under Clause (1) of Article 16. In fact the argument of the writ petitioners (who succeeded before the Kerala High Court) was that the only type of provision that the State can make in favour of the backward classes is reservation of appointments/posts provided by Clause (4) and that the said clause does not contemplate or permit granting of any exemptions or concessions to the backward classes. This argument was accepted by Kerala High Court.
This (Supreme) Court, however, by a majority (Ray, C.J., Mathew, Krishna Iyer and Fazal Ali, JJ.) reversed the view taken by Kerala High Court, holding that such exemptions/concessions can be extended under Clause (1) of Article 16. Beg, J. who joined the majority in exemption provided by impugned notification was indeed a kind of reservation and was warranted by and relatable to Clause (4) of Article 16 itself. This was because – according to the learned Judge – Clause (4) was exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment.
We are inclined to agree with the view taken by Beg, J. for the reasons given hereinabove.
In our opinion, therefore, where the State finds it necessary – for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under Clause (4) itself.
In other words, all supplemental and ancilliary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself.
Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under Clause (4) itself. In this sense, Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of “the backward class of citizens“.
Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Clause (4) of Article 16.
Whether Clause (4) is exhaustive of the very concept of reservations?
In other words, the question is whether any reservations can be provided outside Clause (4) i.e., under Clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that Clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone.
Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in Clause (1) is exhausted thereby.
To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, and not for all and sundry reasons – that any further reservations, of whatever kind, should be provided under Clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation.
The very presence of Clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under Clause (4) as well as under Clause (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do.
Whether Clause (1) of Article 16 does not permit any reservations?
For the reasons given in the preceding paragraphs we must reject the argument that Clause (1) of Article 16 permits only extending of preferences, concessions and exemptions, but does not permit reservation of appointments/posts.
In principle, we see no basis for acceding to the said contention. What kind of special provision should be made in favour of a particular class is a matter for the State to decide, having regard to the facts and circumstances of a given situation – subject, of course, to the observations in the preceding paragraph.
Reference
Indira Sawhney v. Union of India (1992)