M.R. BALAJI AND OTHERS versus STATE OF MYSORE

1~§,Q,R .. .. SUl,lll:&ME, ,COURT.~ '.'J?ORtS

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which can be tried in courts. If the State contends (h,aJ the :responden.ts have lost their citizenship ;M India under s. 9 ( 2) of the Citizenship · Act, it is . open., to the appellant to move the Central Government to consider and determine the matter.. and if the deci-sion of the Central Government goes against the res-• p6ndents, it -may be competent to the appellant td tak~ app_ropriate a,cti?n against tpe respondents,. So, far as . the appellants case agamst the respondents under Art. 7 is concerned, the High Court was right in 'holding that the· respondents were not foreigners Within the ·meaning of c.l: 7' of the Order and call.flcit; thetefore, be prosecuted .under s. 14 of the .Act. '.(be appeal accordingly fails and is dismissed.. . • ' '

Appeal dismissed:

M.· R. BALAJI . AND OTHERS .

STATE. OF MYSORE

(B. P. SniIIA, c. ]., P. B. GAJE~DRAGADKAR,~

K, N. WANCHOO, K. C. DAS GUPTA and

]. C. SHAH, JJ.)

. , , . . . Admission into O~lleges~Reservation of seats for ·socially 1<114:. educationally . bachurard c/,asses gnd Sohedukd Castes· and ·Schedukd. Tribes~Scope of~Directive Principles-Supr.ern• (Jourt not to fix pe<~tage-Oonstit'!'tion of India, Arts. 15. (4), )6.(4),29>(2),46,340. '.·' . '·•. · .. · · ·· On July 26, 1958, the State of Mysore . fasued an order tl:!at ·all the· communities excepting the Brahm in community; fell within the definition of educationally and socially backward !'la.ss(!S _aI\d Scheduled Castes _and Schedul_ed Tribes _'and 75% of ,~~J~ in ,~du~atio_nal_-institutio1:1-~· -~er~ J..:~~eryed for t\1.em ... ,_;~irpjJ11r 9(ders}"eservmg seats, V{ere .. 1_s':ued . on. May 14, 1,959 ,JU!~ ,4~, ~:.'\. .. "r':'.\' It . ..-. ~·.o·.--. ~·~ -.· ~;, _,·._ .. ~ '.i

.~tate ~/Madhya Priilleih i<··~,~-.:~v.~·-, . ·, i_ Pe_er Xtfohd. -,~_;;_p._.:·:.:·-Gajendragadkar, J.

·September, 28.

1i6Z M. R. Blll1ji v. State of MJ""

44o SUPREME COURTREPORtS [1963) StJPP.

1959,June 9, 1960 andJuly IO, 1961. The percentage of scats reserved varied in various orders, but all of them were set aside when challenged.

On July 31, 1962, the State of Mysore passed another order which superseded all previous orders made by the State under Art. 15 (4) for reservation of seats. Under that order, the backward classes were divided into two categories, backward classes and more backward classes. The order reserved 68% of the seats in the engineering and medical colleges and other te~nical institutions for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent seats for the merit pool. The order was challenged by 23 petitioners by writ petition w1der Art. 32. The petitioners contended that but for the reservations made by the impugned order, they would have been entitled to admission in the respective colleges for which they had applied. They contended that the classification made under the order was irrational and the reservation of 68% seats made by the order was•· fraud on Art. 15 (4) of the Constitution.

Held, that the impugned order was fraud on the consti-tutional power conferred on the State by Art. 15 (4) and the 'ame be quashed. The impugned order categorises the backward classes on the sole basis of caste which is not permitted by Art. 15 (4). The reservation of 68% seats is inconsistent with the concept of the special provision authorised by Art. 15 (4). However, this Court would not attempt to Jay down definitely and in an inflexible manner as to what should be the proper percentage for reservation.Reservation should and must be adopted to advance the prospects of weaker sections of society, but while doing so, care should be taken not to exclude admission to higher educational centres of deserving and qualified candidates of other com· munities. Reservations under Arts. 15 (4) and 16 f4) ltt"St be within reasonable limits. The interests of weaker ~Hoos of society, which are first caarge on the States and the dentrc, have to be adjusted with the interests of thr. community as whole. Speaking generally and in broad way, 11 special provislon should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case.

The object of Art. 15 (4) ls to advance the intereits of the society as whole by looking after the interests of tHc weaker clements in 1ociety. If provision under Art. 15 ( 4) ignores the intereotl of society, that is clearly outside the acope of

i. S.C.1t SUPRJU& COUil T R!POR tS

Art. 15 (4). It is extremely unreasonable to assume that in f!llacting'Art. 15 (4), Parliament intended to provide that where the advancement of :the backward. classes or the Scheduled Castes and Tribes were concerned, the fundamental righ!S of the. citizens constituting, the, rest of the society were to .. be completely and absolutely ignored. Considerations of national interest and the interests of the community and the sC1ciety as whole have already to be kept in mind.

. ·Article 15 was amended and Art. 15 (4) was added.in view of: the judgment of this Court in the Stat• of. Ma.dras v. Smt. Onampakam Dorairajan and The Stak of Madr1JA v. 0 .. R. Srinivasan[1951] S. C.R .. 525. Article 15 (4) is proviso or an exception to Arts. 15 (1) arid 29 (2). Ifan order is justifiec! bythe provisions of·Art. 15 (4),.its validity cannot be.ques-tioned on·the,ground that it violates.Art. 15 (~)or Art. 29 (2).

It is true that the Constitution contemplates the appoint-ment.•of commission whose · report and recolnmendations can be of assistance to.the authorities conce~ned for taking adequate mps.fot the· advancement of backward classes, but . this does not mean that the appointment of the commission and the subse· quent steps that would follow it ar~ coµditiori precedent to any action being taken under Art. 15 ( 4). The specia.1 provisions contemplated uµder Art. 15 ( 4) can be made by the Union or the States by· an executive order. · It cannot be said that the PreSident alone:.can make speCial provision for the advancement of the· backward classes.

Article 15 · (4) aiithorises the State to make special pro-vision for the advancement of socially and educationally back-ward· classes· of· citizens as distinguished from· the Scheduled Castes-and Scheduled Tribes. · Some backward cl"'8ses may, by presidential order, be included in Scheiluled Castes and '.Tribes; and i!IJ that .sense the backward da8'es for whose improvement ptovi•ion.is made itt Att. 15 (4) are comparable to Scheduled Ca•tes and Scheduled Tribe8. ·

The backwardne~s under Art. 15 (4) must be social and educational.. It is not· either. social or educatiorull, but it is both- social and 'educational. Though caste in relatfon to Hindus inay be relevant factor to consider in. determining the If "SoCial backwardness of groups, or classes of ~itizeris, it. cannot be rilade the sole dr dominant test. There are CC\"tain seGtions Of Indian society such as Christians,Jains, Muslirris, etc., Who do not J;eHeve in caste system, and the test of caste ii~• not a'PJ?lY t<Y them, MoteOvcr, social backWardness IS iii .tht ultunate analyii:s the result of poverty to very lar&e stent.

.\f, R. Ba!aji v. StaU of M,ysore

The classes of citizens who are deplorably poor automatically become socially backward. Moreover, the occupation of citizens and the place of their habitation also result in social back-wardness. The problem of determining who are socially backward classes, undoubtedly very complex, but the classi-fication of socially backward citizens on the basis of their castes alone is not permissible under Art. 15 (4).

In determining the educational backwardness of class of citizens, the literacy test supplied by the Census Report> is not adequate. It is doubtful if the test of the average of the student population in the last three high school classes is appropriate in deter.mining educational backwardness. Jn. a.ny case, the State is not justified in including in the list of back-ward classe~ castes or communities whose average of Student population per thousand is slightly above or very near or just below the State average. The legitimate view to take is that the classes of citizens whose average is well or substantially below the State average can be treated as educationally back-ward. It is not for this Court to lay down any hard and fast rule in this matter. It is the duty of the State to decide the matter in manner which is consistent with the requirements of Art. 15 (4).

The division of backward classes into two categories of backward classes and more backward classes is not warranted by Art. 15 (4). Art. 15 (4) authorises special provision being made for the really backward classes but by introducing two categories, what is intended is to devise measures for all classes of citizens who are less advanced as compared to the most advanced classes in the State. That is not the scope of Art. 15 (4).

The object of making special provision for the advance-ment of castes or com,munities is to carry out the Directive Principle enshrined in Art, 46. Unless the educational and economic interests of the weaker sections of the people arc promoted quickly and liberally, the ideal of establishing social and economic equality cannot be attained. Article 15 (4) authorises the State to take adequate steps to achieve the object. While making adequate reservation under Art. l 6 ( 4), care should be taken not to provide for unreasonable, excessive or extravagant reservation because that would by eliminating general cor:ipetition in large field and by cre~ting widesprea.d dissatisfacuon am.ong the employees, materially affect their efficiency. Like the special provision improperly made under An. 15 (4), reservation made under Arl. 16 (4) beyond the permissible and legitimate limits is fraud on !he Constitution.

RartMkrilihna Singh Ram Singh v. State of Mysore, A. I. R. 1960 Mysore 338, S. A. Partha v. The State of Mysore, A. I. R. 1961 Mysore 220, The State of Madras v. Shrimathi Ohampakam Dorairajan, [1951] S. C.R. 525 and General Manager, Southern Rsilway v. Rangachari, [1962] 2 S. C. R. 586, referred to

ORIGINAL JURISDICTION : Writ Petitions Nos. 90 to 112 of 1962.

Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.

S. K. Venkataranga Iyengar and R. Gopala-kri&hna,n, for the petitioners.

G. Ethirajulu Naidu, Advocate General of the

State of Mysore, B. R. L. Iyengar, D. M. Chandra-sekhar and P. D. Menon, for the Respondent No. 1.

R. Gopakt,krishna,n, for the Interveners.

1962. September 28. The Judgment of the Court was delivered by

GAJENDRAGADKAR, ].-Since 1958 the State of Mysore has been endeavouring to make special provision for the advancement of the socially and educationally backward classes of citizens in the State of Mysore under Article 15 ( 4) of the Constitution, and every time when an order is passed in that behalf, its validity has been challenged by writ proceedings. Four previous orders passed in that behalf were challenged by writ proceedings taken against the State under Art. 226 in the High Court of Mysore. The present petitions filed by the respective petitioners under Art. 32 dispute the validity of the last order pai!lied by the State of Mysore on the July 31, 1962, under Art. 15 (4).

Out of the twenty-three petitioners, six had applied for admission to the Pre-professional Class in Medicine in the Medical Colleges affiliated either

M. R. Bll.j

St•t1 •f Mp1rr

G•faoi1t11Uk••, J

to the Mysore University or to the Kamatak Univer·· sity; and seventeen had applied· for admission to the· First' Year of' the 5 Year integrated COUl~e leading to the Degree of B. E. in the University Qf M>"sore. According to the petitioners, but for the· reservation made by the impugned order, they' woukl;have beel'J entitled to the admission in the respective "colleges for which they had. applied. 'As re5ult ·qfthtl'escr· vation ''inade' oy the said order/ stttdcnts whb &ave secureq less percentage of marks have been ·admitted, but notthe petitioners. That, in brief, is the- peti'. tioners' grievance and they urge that the imp'U#li:~ order which has denied them the facility ofadmiMiCll'l . in the respective colleges is void under Artsr 15 .(l) and 29 (2) and sho.uld hot be enforced ~inst them. . Accordingly, the petitioners pray that writ . of mandamus ar1.d/or• [1 ]any suitable wr.it or directian should be issued against respondent ·No. I, the State of ' Mysbre·· · '(hereinafter · ca1led the State), and the two Selection Committees which· have ·beat impleaded as respondents 2 & 3. The petitioner$' case is' that •the· Impugned order which ·has• been passed under Art• 15 (4) is not valid because the·~ ad6ptea· by the order in specifying and erj:umerating tlie socially and' educationally ·backwat;d--;classcs:.of citizens . in the State is unintelligible :and irratio4ill, and· the dassificathm made on the said basis''is in-e6tt·· sistent with and outSide the provisions of ,Art, 15.(4.}. Ifis also urged by thern thatthe extent of:ttescrvatiorl prescribed' by the · said order is so unreasonable;and eXtravagant that the order, in law, is net justified:by Art~ Ill (4) atid, in substance, is fraud 01rthe'•po'We? conferred by the said' Article on the·State. • · .•

M. R. Balaji .. v.~ S14tt of M_.,sort CUjidrlp.Jkar, J.

These allegations are denied by the State tttd it is urged on its behalf that the. classification m'llde is both -rational and intelligible and the -rservation p.resc:rib~ by the order Ml fully justified.by Art;;l5 (')· -The contention that tke order iS coldara:ble ftei'eise·

. I S.C.R.

of the State's power and amounts to fraud 01> the Constitution is disputed.

M.11. lt.Uji

... Sm11 •f MJ""

As we have just indicated, the impugned order was preceded by four other orders and so, it is neces-sary to refer to the said orders in their sequence to understand the background of the dispute between the parties. On the 26th July, 1958, the State issued an order that all the communities, excepting the Brahmin community, fell within the definition of educationally and socially Backward Classes and Scheduled Castes and Tribes, and provided for the said communities and tribes reservation of 75% of seats in edprational institutions. For the Scheduled Castes and the Scheduled Tribes, the percentage of reservation was 15% and 3% respectively. This percentage for the Scheduled Castes & Tribes has bei-n "1aintained in 11 the subseauent orders. The order is;ucd by the State on the 26th July, .1958, w~ challenged before the Mysore High Court and it appears that the State conceded before the High Court that there was drafting error in the Govern'' , ment Order and so, it did not press its case that the said order was valid. In the result, the writ petitions filed to challenge the validity of the order succeeded and the impugned order was quashed.

G1jm,rq<lli., ,J.

· In 1959, two separate orders were passed by the State on the 14th May and 22nd July respectively. By the first order, all communities, excepting Brahmins, Baniyas and Kayasts among the Hindus and Muslims, Christians and J ains, were classified as socially and educationally Backward Classes. It appears that 65 % of the seats were reserved for these socially and educationally Backward Classes and Scheduled Castes and Tribes. These orders were challenged before the Mysore High Court in the case of Ramakrishna Singh Ram Singh v. Stat,e oJ Mysore ('). The High Court upheld the pleas raised by the petitioners and quashed the impugned (I) A.I.R. 1960 MylOl'e 338,

1'62 M. /I. Balaji v. SW• ef Myso"

orders. In the result, ·the High Court directeci that the applications made by the petitioners for admission to the respective colleges should be consi-dered without reference to the said orders, but subject to the reservation for Scheduled Castes and Scheduled Tribes made therein.

The State then appointed Committee called the Mysore Backward Classes Committee with Dr. R. Nagan Gowda as its Chairman, to investigate the problem and advise the Government as to the criteria which should be adopted in determining the educa-tionally and socially Backward Classes, and the special provisions which should be made for their advance-ment. The Committee made an interim report, and in the light of the said report, the State passed an order on the 9th June, 1960 regulating admissions for that year into the professional and technical colleges. Broadly stated, the effect of this order was that 60% of the seats were left open for what may be conve-niently described as the 'merit pool' available to candidates according to their merits. 40% were reser-ved for the 'reservation pool', 22 % o:!' which were reserved for the Backward Classes, 15% for the Sche-duled Castes and 3% for the Scheduled Tribes. This order wa• also challenged before the Mysore High Court in S. A. Partha v. The St;ate of Mysore('). It appears that, on the whole, the High Court did not feel satisfied that the scheme of the special provision made by the impugned order was invalid, but it thought that the allotment of seats under the provisions ot the said order in favour of the other Backward Classes in excess of 22 % reserved for them otherwise than by open competition amoun-ted to an unreasonable restraint on the fundamental right of other citizens and, therefore, was invalid. Having reached this decision, the High Court indi-cated the manner in which the reservation in favour of the Scheduled Castes and Scheduled Tribes and other Backward Classes should be worked out so as to

(I) A.I.II.. 19111 Myoore 220;

1 S.C.R.

avoid successful challenge under Arts. 15 ( 1) and 29 (2).

Thereafter, the Nagan Gowda Committee made its report in 1961 and in the light of I he said report and the recommendations made therein, the State proceeded to make an order under Art. 15 (4) on July 10, 1961. This Order begins with the obser-vation that the Nagan Gowda Committee has come to the conclusion that in the present circumstances, the only practicable method of classifying the Back-ward Classes in the State is ori the basis of castes and communities, and it has specified the crit<:ria which should be adopted for determining the educational and social backwardness of the communities. The two criteria specified in the report arc then set out. The order then expresses the State's concurrence with the proposal made bv the Committee that the Backward Classes should be sub-divided into two cate-gories-Backward and the More Backward, and it adopts the test laid down by the report in that behalf. This approach, according to the order, is re~listic and practicable. On the qnestion as to the communities which shonld be treated as backward, the State made some variations in the recommendations made by the Committee. It held that Lingayats, and Bhunts who formed part of Vokkaligas, should be treated as back-ward. In that connection, the State noticed the fact that the recommendation of the Committee in respect of the said two communities was not unanimous, and it observed that large percentage of Lingayat popu-lation lives in rural areas and most of them are enga-ged in agriculture and manual labour and suffer from all the conseqnenccs of illiteracy and poverty. In regard to the Bhunts, the State thought that they could not be distinguished from the rest of the Vokka-ligas. The order then adds th 1t Satanis, Nayars and Zoreastrians whme averag-~ according to the ~duca­tional lest prescribed by the Committee was i per thousand of population (whereas that of Lingayats i'o

Af. R. Ba.aj v. State of Myvor1,,

Gajeridragadkm , J

J962 M. R. 8'/aji .v. -Sate of Mys~1 .;aj,.,,.,,,,,,.,, /,

7. 1) need not be treated as backward. The order then examines the question as to the percentage which should be reserved, and it rejects the Committee's recommendation of reservation of 68% all-told on. the ground that such large percentage of reservation would not be in the larger interests of the State. That is why, :tccording to the order, 48 % was fixed as the total reservation in favour of the Backward Classes, the Scheduled Castes and Scheduled Tribes together; that means, 30% was reserved for the Backward Classes. Annexure I to this order gives list of 81 Classes and 135 More Backward Classes.

On July 31, Hl62, the State passed the impugned order which supersedes all previous orders made by the State under Art. 15(4) for reservation. of the seats in favour of the Scheduled Castes and Sche-duled Tribes as well as the Backward Classes. Under this order, the Backward Classes are_ divided into two categories (1) Backward Classes and (2) More Back-ward Classes. The effect of this order is that it has fixed 50% as the quota for the reservation of seats for Other Backward Classes; 28% out of this is reserved for Backward Classes so-called and 22% for More Backward Classes. The reservation of 15% and 3% for the Scheduled Castes and Scheduled Tribes respec-tively continues to be the same. The result of this order is that 68% of the seats available for admission to the Engineering and Medical Colleges and to other techniciil institutions specified in the order passed on July 10, 1961 is reserved, and only 32% is avai-lable to the merit pool. In other words, the percen-tage of reservation to the extent of 68%, which, according to the order of July 10, 1961, would have been against the larger interests of the State, haf!; by the impugned order, been accepted. The petitioners contend that the classification made by this order is irrational and the reservation of 68% made by it is fraud on Article 15 (4),

1 $.C.R. SUPREME COURT REPORTS.

The problem raised for our decision by the present petitions involves the consideration of socio-logical, social and economic factors, and so, before dealing with the contentions raised by the parties before us, it is necessary to set out briefly the material which has been adduced before us. On January 29, 1953, the President appointed the Backward Classes Commission by virtue of the power conferred on him under Art. 340 (1) of the Constitution. This Commission made its report on March 30, 1955. The Commission was required "to investigate the conditions of socially and educationally backward classes within the territory of India and the difficul-ties under which they labour, and to make recommen-dations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition." [Art. 340 (l)]. According to the Commission, the relevant factors to consider in classifying Backward Classes would be their traditional occupation or profession; the percentage of literacy or the general educational advancement made by them; the estimated population of the community, and the distribution of the various communities throughout the State or their concentration in certain areas. The Commission also thought that the social position which community occupies in the caste hierarchy would also have to be considered, as well as its representation in Government service or in the industrial sphere. (p. 4 7). According to the Commission, the causes of educational backwardness amongst the educationallv and socially backward communities were:-·

1. Traditional apathy for education on account of social and environmental conditions or occupational handicaps.

2. Poverty and lack of educational il)stitutions in rural areas.

3. Living in inaccessible areas.

M. R. Balaji v. State of MyJo"

Gajmdragadkar 1 J

iW". R. Balaji v Sir.le of Mys01e

Gaju1dragadlcar, J.

4. Lack of adequate educational aids, such as free studentships, scholar~hips and monetary grant;;.

5. Lack of residential hostel facilities.

6. Unemployment among the educated which acts as damper on the desire of the mem-bers to educate their children; and

7. Defective educational system which does not train students for appropriate occupa-tions and professions. (p. 107).

The Committee realised that, in substance, the prob-lem of the Backward Classes is really the problem of Rural India (p. 55). It appears that having consi-dered several criteria which may be relevant in deter-mining which classes are backward, the Committee ultimately decided to treat the status of caste as an important factor in that behalf, and it is on that basis that it proceeded to make list of Backward Commu-nities which were specified in Volume II of the Report.

Dealing with the problem of university education, the Committee observed that the present rush of students to the Universities should be prevented in the larger interests of the country and that could be done only by training students in various occupations and professions at the secondary stage itself. But the Committee noticed that so long as University Degree qualification continues 10 be pre-requisite to Govern-ment service, it was not easy to prevent the rush at the doors of the Universities, and so, the Committee proceeded to recommend that in all Science, Engineer-ing, Medicine, Agriculture, Veterinary and other technical institutions, reservation of 70% of the seats should be made for[1 ]qualified students of Backward Classes till such time as accommodation can be provided for all students eligible for admission. (pp. 119 & 125).

That, in brief, is the nature of the meterial available from the Commission's Report.

It is, however, significant that the Chairman of the Commission who signed the Reporl, confrsteL to feeling of grave dissatisfaction with the approach adopted in the Report in determining the question as to which communities could be regarded as back-ward under Art. 15(4). "My eyes were however opened," says the Chairman in his covering letter to the President, "to the dangers of suggesting remedies on caste basis when I discovered that it is going to have most unhealthy effect on the Muslim and Christian sections of the nation," and he added that the said consciousness gave him rude shock and drove him to the conclusion that the remedies suggested by the Commission were worse than the evil it was out to combat. According to the Chairman, "if we eschew the principle of caste, it would be possible to help the extremely poor and deserving from all communities. Care, however, being taken to give preference to those who come from the traditiona-lly neglected social classes." Even though the 0hairman thus expressed his distress in very strong language over the basis adopted by the Commission, he ultimately agreed to the proposal of the Commission for the reservation of seats for Backward Classes to the extent· of 70 per cent.

The Report made by the Backward Classc; C0mmissiop along with the Chairman's covering letter was considered by the Central Government in due course. The Centrr' Government apparently did not feel satisfied abouc the approach adopted by the Commission in determining as to who should be treated as Backward Classes under Article Li(-i ). The Memorandum issued by the Government of India on the Report of the Commission points out that it cannot be denied that the caste svstem is the greatest hindrance in the way of our pr .. igress towards an egalitarian society, and the recognition of

M. R. Ba.'a1 1•

Stat1 of MJJori:

.Gajmdra1adlc11r, .I

1962 .\£. R. Baiaji v. State o} 1\fy~ore ien /rflgadka1, j.

the specified castes as backward may serve to main-tain and even perpetuate the existing distinctions on the basis of castes. Besides, the IT.emorandum goes on to add that some of the tests applied by the Commission were more or less of an individual character, and even if they were accepted, they would encompass large majority uf the country's population. If the entire community, says, the memorandum, barring few exceptions, has thus tu be regarded as backward, the really needy would be swamped by the multitude and hardly receive any special attention or adequate assistance, nor would such dispensation fol-fil the conditions laid down in Art. 3JO of the Constitu-tion. The memorandum, therefore, emphasised that action on systematic and elaborate basis can be proceeded with only after the necessary positive tests and criteria have been laid down for determining which classes or sections are really entitled to get special relief and assistance. To that end, further investi-gation was obviously indicated. Even so, instructions were issued by the Central Government to the State Governments . requesting them to render every possible assistance and to give all reasonable facilities to the people who come within the category of Back-ward Classes in accordance with their existing lists and also to such others who in their opinion deserve to be considered as socially and educationally back-ward in the existing circumstances.

On April 24, 1962, the Central Govern-mrnt wrote to the Secretary of Education Department of the Government of Mysore on the subject of reser-vation of seats under Arucle l •3( 4). In this communi-cation it was observed that tlte Central Government had considered the said question and was of opinion that uniform policy should be followed all over the country at least in non-Govermncnl institutions. It was then added that the All-India Council for Techni-cal Education had rec@mmendcd that the reservation for Scheduled Castes and Schrdukd Tribes and other

1 S.C.R. SUPREME COURT REPORTS

backward communities may be up to 25% with margi-nal adjustments not exceeding 10% in exceptional cases. The Central Government, therefore, suggested that in all non-Government institutions in the State, the reservations under Art. 15 (4) should not in any case exceed 35%.

In this connection, it would be interesting to

refer to the report made by the Commissioner for Scheduled Castes and Scheduled Tribes in 1959. In this Report, the Commissioner refers to the pilot survey made by the Dy. Registrar General of India at the request of the Government of India. This survey was made with the help of material collected at the time of 1951 Census with view to find out whether occu-pations could be adopted as suitable basis for deter-mining social and educational backwardness. preli-minary analysis of the data collected indicated that it would be possible to draw up list of socially and educationally backward occupations on the basis of:-

( a) any non-agricultural occupat10ns in any State in India in which 50% or more of the persons belong to the .Scheduled Castes or the Scheduled Tribes; or

(b) any non-agricultural occupations in which literacy percentage of the persons depending thereon is less than .50°/1 of the general literacy in the State.

In his Report, the Corr.missioner has adversely com-mented on the classification made by the State in the impugned order.

It now remains t0 consider the report made by

the Nagan Gowda Committee appointed by the Stale. This Report proceeds on the basis that higher social status has generally been accorded on the basis of caste for centuries; and so, it takes the view that the \9w social position of any community is, therefore1

M. R. Balaji . v. State of Mysore Gajendr.1gadkar, j.

M. R. Balaji v. ~·'ale n.f Mysore Gajendragadkar, J.

mainly due to the caste system. According to the Report, there are ample reasons to conclude that social backwardness is based mainly on racial, tribal, caste and denominational differences, even though economic backwardness might have contributed to social backwardness. It would thus be clear that the Committee approached its problem of enumerating and classifying the socially and educationally back-ward communities on the basis that the social back-wardness depends substantially on the caste to which the community belongs, though it recognised that economic condition may be contributory factor. The classification made by the Committee and the enume-ration of the backward communities which it adopted shows that the Committee virtually equated the classes with the castes. According to the Committee, the entire Lingayat community was socially forward; and that all sections of Vokkaligas, excluding Bhunts, were socially backward. With regard to the Muslims, the majority of the Committee agreed that the Muslim community as whole should be classified as socially backward. The Committee further decided that amongst the backward communities two divisions should be made (i) the Backward and (ii) the More Backward. In making this distinction, the Committee applied one test. It enquired: "Was the standard of education in the community in question less than 50% of the State average? If it was, the community should be regarded as more backward; if it was not, the community should be regarded as backward." As to the extent of reservation in educational institutions, the Committee's recommendation was that 28% should be reserved for backward and 22% for more back-ward. In other words, 50% should be reserved for the whole group of backward communities besides 15% and 3% which had already been reserved for the Scheduled Castes and Scheduled Tribes respecti-vely. That is how according to the Committee, 68°/r, was carved out by reservation for the betterment of the Backward Classes and the Scheduled Castes anc:)

1 S.C.R. SUPREME COURT REPORTS

Tribes. It is on the basis of these recommendations that the Government proceeded to make its impugned order.

Article 15( 4) provides that nothing in this

Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally back-ward Classes of citizens or for the Scheduled Castes and the Scheduled Tribes. This Article was added by the Constitution (First Amendment) Act, 1951. The object of this amendment was to bring Articles 15 and 29 in line with Art. 16( 4 ). It will be recalled that in the case of The State of 1lfadras v. Srimathi Champakam Domirajan(') the validity of the Government order issued by the Madras Government fixing certain proportions in which students seeking for admissions to the Engineering and Medical Colleges in the State should be admitted, was challenged. The said Government Order was on the face of it communal order fixing the admissions in the Stated. proportion by reference to the communities of the candidates. This order was struck down by the Madras High Court and the decision of the Madras High Court was confirmed by' this Co.urt in appeal, on the ground that the fundamental r [1]ghts guaranteed by Articles 15(1) and 29(2) were not controlled by aQ.y exception, and that since there was no provision under Art. 15 corresponding to Art. 16(4), the impugned order could not be sustained. It was directly as result of this decision that Art. 15 was amended and Art. 15(4) was added. Thus, there is no doubt that Art. J5(4) has to be read as proviso or an exception to Articles 15(1) and 29(2). In other words, if the impugned order is justified by the provisions of Art. 15(4), its validity cannot be impeached on the ground that it violates Art. 15(1) or Art. 29(2). The fundamel'l:tal rights guaranteed by the said two provi-sions do not affect the validity of the special provision which it is permissible to make under Art. 15(4). (I) (1951] S.C.R. 525.

M. R. B•l•ji v. Slate of AfyJort Gajendrag•dkar, J.

M. R. Balaji v. State of Mysore Gajentfragodkar1 J.

This position is not and cannot be in dispute. The petitioners contend that the impugned order is invalid because it is not justified by Art. 15(4).

The first argument which has been urged by Mr. Iyyangar on behalf of the petitioners is that it is not competent to the State to make an order under Art. 15(4) unless Commission has been appointed under Art. 340 ( 1) and copy of the report of the said Commission is laid before the House of Parlia· ment under Art. 340(3). The argument is that Art. 340 provides for the appointment of Commi· ssion to investigate the conditions of Backward Classes. The Commission so appointed is required to make report recommending what steps should be taken to improve the conditions of the Backward Classes [Art. 340(2)]. When the Report is received by the President, the President is required to cause copy of the Report together with the memorandum explaining the action taken thereon to be laid before each House of Parliament [Art. 340(3)]. It is the President who is to take action on the Report and then lay it before the Home of Parliament and it is only the President who can, therefore, make special provision for the advancement of the Backward Classes. That is the effect of reading Articles 340 and 15( 4) together. In our opinion, this contention is mis-conceived. It is true that the Constitution contemplated the appoint-ment of Commission whose report and recommenda· tions, it was thought, would be of assistance to the authorities concerned to take adequate steps for the advancement of Backward Classes; but it would be erroneous to assume that the appointment of the Commission and the subsequent steps that were to follow it constituted condition precedent to any action being taken under Art. 15(4). Besides, it would be noticed that Art. 340(1) provides that recommendations had to be made by the Commission as to the steps that should be taken by the union or any State, inter alia, to improve the condition of the

Backward Classes ; and that means that the recom-mendations were to be made which would be implemented in their discretion by the Union and the State Government and not bv the President. Thus Art. 340(1) ·itself shows that' it is the Union or the State that has to take action in pursuance of the recommendations made, and so, the ar.~ument that the President alone has to act in this matter cannot be accepted.

Then it is urged that even if special provision cari be made by the State under Art. 15( 4 ), the said provision must be made not by an executive order but by legislation. This argument is equally mis-conceived. Under Art. 12, the State includes the Government and the Legislature of each of the States, and so, it would be unreasonable to suggest that the State must necessarily mean the Legislature and not the Government. Besides, where the Constitution intended that certain action should be taken by legislation and not by executive action, it has adopted suitable phraseology in that behalf. Article 16(3) and (5) are illustrations in point. Both the said sub-clauses of Art. .16, in terms, refer to the making of the law by the Parliament in respect of the matters covered by them. Similarly, Articles 341 (2) and 342 (2) expressly refer to law being made by Parlia-ment as therein contemplated. Therefore, when Art. 15( 4) contemplates that the State can make the special provision in question, it is clear that the said provision can be made by an executive order.Art. 15(4) authorises the State to make special provision for the advancement of any socially and educationally backward classes of citizens, as distin-guished from the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be made for both categories of citizens, but in specifying the cate-gories, the first category is distinguished from the second. Sub-clauses (24). and (25) of Art. 366 define Scheduled Castes and Scheduled Tribes respectively,

Jf. R, Bala} i v. Sta:t ~f Afysore

Gajer1Jra.t:adkar, J.

M. R. B1tlaji v. St•te of Mysore G'l.jentlra:atikar, J.

~ut there is no clause defining socially and .educa-t1onally backward . . classes of citizens and , so } in deter-mmmg the question as to whether particular provi-sion has been validly made under Art. 15 ( 4) or not, the first question which falls to be determined is whether the State has validly determined who should be included in those Backward Classes. It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Art. 15( 4) itself, treated as being similar to the Sche-duled Castes and Scheduled Tribes. Scheduled Castes and Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt no doubt that special provision had to be made for their advancement. It was realised that in the Indian society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Ca~tes and Tribes and it was thought that some special pro-vision ought to be made even for them. Article 341 provides for the issue of public notification specifying the castes, races or tribes which shall, for the purposes of this Constitution, be deemed to be Scheduled Castes either in the State or the Union territory as the case may be. Similarly, Art. 342 makes provision for the issue of public notification in respect of Scheduled Tribes. Under Article 338 (3), it is provided that references to the Scheduled Castes and Scheduled Tribes shall be construed as including references to such other Backward Classes as the President may, on receipt of the report of Commission appointed under Art. 340(1), by order, specify and also to the Anglo-Indian communitv. It would thus be seen that this provision contemplates that some Backward Classes may by the Presidential order be included in Sche-duled Castes and Tribes. That helps to bring out the point that the Backward Classes for whose improve-ment special provision is contemplated by Art. 15 ( 4) are in the matter of their backwardness comparable to Scheduled Castes aud S:iheduled Tribes

l S.C.R. SUPREME COURT REPORTS

In considering the scope and extent of the expression "backward classes" under Art. 15( 4). it is necessary to remember that the concept of backward-ness is not intended to be relative in the sense that any classes who are backward in relation to the most advanced classes of the society should be included in it. If such relative tests were to be applied by reason of the most advanced classes, there would he several layers or strata of backward classes and each one of them may claim to be included under Art. 15(4). This position is not disputed before us by the learned Advocate-General for the State. The backwardness under Art. 15( 4) must be social and educational. It is not either social or educational, but it is both social and educational; and that takes us to the question as to how social and educational backwardness has to be determined.

Let us take the question of social backwardness

first. By what test should it be decided whether particular class is socially backward or not ? The group of citizens to whom Article 15(4) applies are described as 'classes of citizens', not as castes of citizens. class, according to the dictionary meaning. shows division of society according to status, rank or caste. In the Hindu social structure, caste un-fortunately plays an important part in determining the status of the citizen. Though according to sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led to its ramifica-tions which introduced infiexibilitv and rigidity. This artificial growth inevitably tended to create feel-ing of superiority and inferiority ar.rl to foster mi.n-ow caste loyalties. Therefore, in d:aling with the question as to whether an;- class of citizens is soddly

M. R. Bafoji v. State of Mysore

Gajendrtttadkar, J.

M. R. Ba/aji v. State of MJsore G•fendrazadkar, J.

backward or not, it may not he irrelevant to consider the caste of the said group of citizens. In this connec-tion, it is, however, necessary to bear in mind that the spedal provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the caste themselves.

Besides, if the caste of the group of citizens was made the sole basis for determining the social back-wardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conven-tional sense known 10 Hindu society. How is one going to decide whether Muslims, Christians or J ains, or even Lingayats are socially backward or not ? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion ·of these groups in toto from the operation of Art. 15(4). It is not unlikely that in some States some Muslims or Christians or .J aim forming groups may be socially backward. That is why we think that though castes in relation to Hindus mav be relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty, to very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy status in society and have, therefore, to be content to take backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relev;mce of

b&th caste and poverty in dete1mining the backward-Htis nf citizens.

The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not minor part in determining the backward-ness of community of persons. In sense, the problem of social bacl.wardness is the problem of Rural India and in that behalf, classes of citizens occupying socially backward position in rural area fall within the purview of Art. 15(4). The problem of determin-ing who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problem and evolving proper criteria for determining which classes are socially backward is obviously very difficult task; it will need an elaborate investigation and collection of data and examining the said data in rational and scientific way. That is the function of the State which purports to act under Art. 15( 4). All that this Court is called upon to do in dealin~ with the present petitions is to decide whether the tests applied by the impugned ord"r are valid under Art. 15( 4). If it appears that the test applied by the order in that behalf is improper and invalid, then the classification of socially backward classes based on that test will have to be held to be inconsistent with the requirements of Art. 15(4).

What then is the test applied by the State in passing the impugned order? We have already seen that the Nagan Gowda Committee appointed by the State was inclined to treat the caste as almost the sole basis in determining the question about the social backwardness of any community. The Committee has no doubt incidentally referred to the general

M. R. Bsia}i v. Stat1 of Afysor Gajendrazatlkar, J.

U. R. B•l•ji v. -tall of Myso1e iendragadkar1 J.

economic condition of the community as contributory factor; but the maqper in which it has enumerated the backward and more backward classes leaves no room for doubt that the predominant, if not the sole, test that weighed in their minds was the test of caste. When we consider the impugned order itself, the position becomes absolutely clear. The impugned order has adopted the earlier order of July 10, 1961, with some changes as to the quantum of reserva-tion, and so, it is necessary to examine the earlier order in order to see what test was applied by the State in classifying the backward Classes. In its preamble, the order of July 10, 1961, clearly and unambiguously states that the Committee had come lo the conclusion that in the present circumstances, the only practicable metbod of classifying the Back-ward Classes in the State is on the basis of castes and communities and the State Government accepts this test. In other words, on the order as it stands there can be no room for doubt that the classification of backward and more backward classes was made by the State Government only on the basis of their castes which basis was regarded as practicable method. It is true that in support of the inclusion of the Lingayats amongst the Backward Classes the order refers to some other factors, but neither the Report of the Nagan Gowda Committee, nor the orders passed by the State Government on July 10, 1961, and July 31, 1962, afford any indication as to how any test other than that of the caste was applied in deciding the question. The learned Advocate-General has contended that the statement in the preamble of the order of July IO, 1961 should not be literally construed and he has argued that the words used in the rdevant portion are inartistic and he has suggested that the order is not based on the sole basis of castes. We are not impressed by this argument. We have considered both the orders in the light of the Report and the recommendations made by the Nagan Gowda Committee and we are satisfied that the classification

of the socially backward classes of citizens made by the State proceeds on the only consideration of their castes without regard to the other factors which are undoubtedly relevant. If that be so, the social back-wardness of the communities to whom the impugned order applies has been determined in manner which is not permissible under Art. 15(4) and that itself would introduce an infirmity which is fatal to the validity of the said classification.

The next question to consider is in regard to the educational backwardness of the classes of citizens. The Nagan Gowda Report and the impugned order proceed to deal with this question on the basis of the average of student population in the last three High School classes of all High Schools in the State in rela-tion to thousand citizens of that community. On the figures supplied to the Committee which admittedly are approximate and not fully accurate, the Commi-ttee came to the conclusion that the State average of student population in the last three High School classes of all High Schools in the State was 6·9 per thou-sand. The Committee decided that all Castes whose average was less than the State average of 6.9 per thousand should be regarded as backward communi-ties, and it further held that if the average of any community was less than 50% of the State average, it should be regarded as constituting the more back-ward classes. It may be conceded that in determin-ing the educational backwardoess of class of citizens the literacy test supplied by the Census Reports ma~ not be adequate; but it is doubtful if the test of the average of student pepulation in the last three High School classes is appropriate in determining the edu-cational backwardness. Having regard to the fact that the test is intended to determine who are educa-tionally backward classes, it may not be necessary or proper to put the test as high as has been done bv the Committee. · But even assuming that the trs't applied is rational and permissible under Art. 16(4),

M. R. &loji v.

State of Mysor1 Gajendratadk•, J.

1962 .it. R. Bala.ii State of '" JI ysort 'JaJtndragadkar, J.

the question still remains as to whether it would be legitimate to treat castes or communities which are just below the State average as educationally back-ward classes. If the State average is 6.9 per thou-sand, community which satisfies the said test or is just below the said test cannot be regarded as back-ward. It is only communities which are well below the State average that can properly be regarded as educationally backward classes of citizens. Classes of citizens whose average of student population works below 50'/"o of the State average are obviously educa-tionally backward classes of citizens. Therefore, in our opinion, the State was not justified in including in the list of Backward Classes, castes or communities whose average of student population per thousand was slightly above, or very near, or just below the State average.It wilJ be recalled that the Nagan Gowda Com-mittee had recommended that the Lingayats should not be treated as Backward Classes. The State has decided otherwise, and in doing so, the State has taken the view that the figures arrived at by the Committee should be corrected to the nearest integer as, in the nature of things, says the order of July 10, Hl60, it is not possible to attain absolute mathemati-cal precision in making such assessments. That is how the State average was raised from 6.9 to 7 per thousand. Evrn after increasing the State average to 7, the position with regard to Lingayat community was that its average of student population was 7.1 per thousand according to the Committee's calcula-tions and according to the decision of the State 7, and yet the Lingayats as community have been held to be an educationally backward class of citizens under the State order. This result has been achieved by adding, I to the State average and deducting ,l from the Lingayats' average. The Ganiga~ whose average of student. population is 7 per thousand are likewise included in the list of Backward Classes. If the State

average is 6.9 or 7, it would, we think, be manifestly erroneous to regard those communities as educa· tionally backward whose student population ratio works at the same level as the State average.

In regard to the Muslims, the majority view in the Committee was that the Muslim community as whole should be treated as socially backward. This conclusion is stated merely as conclusion and no data or reasons are cited in support of it. The average of student population in respect of this community works at 5 per thousand and that, in our opinion, is not so below the State average that the community could be treated as educationally backward in the State of M ysure. Therefore, we are n&t satisfied that the State was justified in taking the view that com-munities or castes whose average of student popula-tion was the same as, or just below, the State average, should. be treated as educationally backward classes of citizens. If the test has to be applied by refe-rence to the State average of student population, the legitimate view to take would be that the classes of citizens whose average is well or substantiallv below the State average can be treated as educationally backward. On this point again, we do not propqse to lay down any hard and fast rule; it is for the State to consider the matter and decide it in manner which is consistent with the requirements of Art. 15 (4).

In this connection. it is necessary to add that the sub·dassification made by the order between Backward Cl;mt> .ancl More Backward Classes does not appear to be justified under Art. 15(-1). Art. 15( 4) authorises sp.:cial provision being made for the really backward classes. In introducing two categories of Backward Classes, what the impugned order, in substance, pllrporls to do is to devise measures for the benefit of all the classes of citizens who are less advanced, com pared to the most advanced classes in the State, and that, in our opinion; is not the scope

Slot. of Myw•

of Art. 15(4). The result of the method adopted by the impugned order is that nearly 90% of the popula-tion of the State is treated as backward, and that illustrates how the order in fact divides the popula-tion of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Art. 15(4).

1962 M. R. Ba/aji v. St•lt of Mysare Ga.fendragadkar, J.

That takes us to the question about the extent of the special provision which it would be competent to the State to make under Art. l5(4). Article 15(4) authorises the State to make any special provision for the advancement of the Backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes. The learned Advocate-General contends that this Article must be read in the light of Art. 46, and he argues that Art. 15( 4) has deliberately and wisely placed no limitation on the State in respect of the extent of special provision that it should make. Art. 46 which contains directive principle, provides that the State shall promote with special care the educational and economic interests of the weaker .sections of the people, and in particular., of the Scheduled Castes and the Scheduled Tribes. and shall protect them from social in justice and all forms of exploitation. There can be no doubt that the object of making. special provision for the advancement of the castes or communities, there specified, is to carry out the dirP,ctive principle enshrined in Art. 46. It is obvious that unless the educational and economic interests of the weaker sections of the people are pro-moted quickly and liberally, the ideal of establishin' social and economic equality will not be attained, and so, there can be no doubt that Art. 15(-i) authorises the State to take adequate steps to achieve the object which it has in view. No one can dispute the pro-position that political freedom and even fundamental rights can have very little meaning or significance for the Backward Classes and the Scheduled Castes and

Scheduled Tribes unless the backwardness and inequality from which they suffer are immediately redressed. The l~arned Advocate-General, however, suggests that the absence of any limitation on the State's power to make an adequate special provision indicates that if the problem of backward classes of citizens and Scheduled Caste and Tribes in any given State is of such magnitude that it }'equires the reservation of all seats in higher educational institu-tions, it would be open to the State to take that course. His argument is that the only test which can be applied is whether or not having regard to the problem which the State is called upon to meet, the provision made is reasonably adequate or not. Thus presented, the argument is, no doubt, prima facie attractive, and so, it must be carefully examined.

When Art. 15( 4) refers to the special provision for the advancement of certain classes or scheduled castes or scheduled tribes, it must not be ignored that the provision which is authorised to be made is special provision ; it is not provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15( 4) authorises special provision to be made. But if provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the ~cope of Art. 15(4). It would be extremely unreasonable to assume that in enacting Art. 15(4) the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be com-pletely and absolutely ignored,

M. R. lJ•l•}i

... St1l1 •f Mysart

GajendragUkar, J,

1962 M. R. B•laji v. State •f Mysort ia}tn~ratadkar, J.

In this connection, it is necessary to remember that the reservation made by the impugned order is in regard to admission in the seats 'of higher education in the State. It is well-known that as result of the awakening caused by political freedom, all classes of citizens are showing growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necessary that the demand for higher education which is thus increasing from year to year must be adequately met and properly channelised, we cannot overlook the fact that in meeting that demand standards of higher education in Universities must not be lowered. The large demand for education may be met by starting larger number of educational institutions vocational school, and polytechnics. But it would be against the national interest to exclude from the portals of our Universities qualified and competent students on the ground that all the seats in the Universities are reserv~d for weaker elements in society. As has been observed by the University Education Commission, "he indeed must be blind who does not see that mighty as are the political changes, far deeper are the fundamental questions which will be decided by what happens in the universities" (p. 32). Therefore, in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for techni-cians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by whole-sale reservation of seats in all Technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as whole cannot be ignored in determining the question as to whether the special provision

1 S.C.R. SUPREME COURT RF.~ORTS

contemplated by Art. 15( 4) can be special provision which excludes the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission which considered the problem ·of the assistance to back ward communi-ties, has observed that the percentage of reservation shall not exceed third of the total number of seats, and it has added that the principle of reservation may be adopted for period of ten years. (p. 53).

M. R .. Ba!flji v. Statt of Mysore GaJendr.agad~ ar: . J.

We have already noticed that the Central Government in its communication to the State has suggested that reservation for backward classes, Sche-duled Castes and Scheduled Tribes may be up to 25% with marginal adjustments not exceeding 10% in exceptional cases.

The learned Advocate-General has suggested that reservation of large number of seats for the weaker sections of the society would not affect either the depth or efficiency of scholarship at all, and in support of this argument, he has relied on the obser-vations made by the Backward Classes Commission that it found no complaint in the States of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades. The Committee further observed that the representatives of the upper classes did not complain about any lack of efficiency in the offices recruited by reservation (p. 135). This opinion, however, is plainly inconsistent with what is bound to be the inevitable consequence of reservation in higher university education. If admission to profes-sional and technical colleges is undulf liberalised it would be idle to contend that the quality of our graduates will not suffer. That is not to say that -reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special

That is not to say that -

1962 M. R. B•l•ji v. State of Mysore GojmJraiU/c•r, J.

measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other commu-nities. special provision contemplated by Art. 15( 4) like reservation of posts and appointments contemp-lated by Art. lti( 4) must be within reasonable limits. The interests of weaker sections of society which are first charge on the states and the Centre have to be adjusted with the interests of the community as whole. The adjustment of these competing claims is undoubtedly difficult matter, but if under the guise of making special provision, State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15 (4). In this matter again, we are reluctant to say definitely what would be proper provision to make. Speaking generally and in broad way, special provision should be less than 50%; how much less than 50% would depend upon the relevant pre-vailing circumstances in each case. In this parti-cular case it is remarkable that when the State issued its order on July 10. 1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be in the larger interests of the State. What happened between July JO, 1961, and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommen-dation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion; when the State makes special provision for the advance-ment of the weaker sections of society specified in Art. 15(4), it has to approach .its task objectively and in rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advan-cement of weaket elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind a11d formula must be evolved which would strike reasonable balance

between the several relevant considerations. There-fore, we arc satisfied that the reservation of 68 % diriCted by the impugned order is plainly inconsis-tent with Art. 15 ( 4).

The petitioners contend that having regard to

the infirmities in the impugned order, action of the State in issuing the said order amounts to fraud on the Constitutional power conferred on the State by Art. 15(4). This argument is well-founded, and must be upheld. When it is said about an executive action that it is fraud on the Constitution, it does not necessarily mean that the action is actuated by mala-fides. An executive action which is patently and plainly outside the limits of the constitutional autho-rity conferred on the St'ltC in that behalf is struck down as being ultra virts the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being fraud on the relevant constitutional power. It is in this connec-tion that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as fraud on the Constitution. We l;iave already noticed that the impugned order in the present case has categorised the Backward Classes on the s~le basil: )f caste which, in our opinion, is not perrrutted by Art. 15(4); and we have also held that ~e re;;erv~tion o.f 68% ~ade by the impugned order IS pl~1!1ly mconsIS_tent with the concept of the special provmon authonsed by Art. 15(4). Therefore it follows that the impugned order is fraud on 'the

M. R. &ll!i v. State of MJrore

Gajentir•gatlkar, J.

M. R. Bal•]i v. St11.fe •f Mysore Gt1.jtrriuJgatlkar, J.

Constitutional power conferred on the State by Art. 15( 4).

The learned Advocate-General has made an earnest and strong plea before us that we should not strike down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1938, the State has had to make five orders to deal with the problem of advancing the lot of the Backward Classes and the State is anxious that the implementation of the impugned order should not be completely prohibited or stopped. We do not see how it would be possible to sever the invalid provisions of the impugned order. If the categorisa-tion of the Backward Classes is invalid, this Court cannot and would not attempt the task of enumerating the said categories; and if the percentage of reserva-tion is improper and outside Art. 15( 4), this Court would not attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its powers under Art. 15( 4) is proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make :'llonetary grants to students seeking higher mucation where it is shown that the annual income of their families is below prescribed minimum. The said scheme is not before us and we are not called upon to express any opinion on it. However, we may ebserve that if any State adopts such measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural

Universities and thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward communities can claim to proceed on rational, broad and scientific approach which is consistent with, and true to, the noble ideal of secular welfare democratic State set up by the Constitution of this country. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid the Backward classes and Scheduled castes and Tribes. It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15( 4). It is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attain-ment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistant with the fundamental rights guaranteed under Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objec-tive approach, free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in manner that justice is and should be done.Whilst we are dealing with this question, it would be relevant to add that the provisions of Art. 15( 4) are similar to those of Art. 16( 4 l which fell to be considered in the case of The General Manager, Southern Railway v. Rangachari(1). In that case, the majority decision of this Court held that the power of reservation which is conferred on the State tmder Art. 16(4) can be exerCised by the State in proper (I) [1962] 2 S. C. R. !186,

1962 M. R. B•lcji ... Stole ~J Mysn1 Gaj1nirt1ptlkar, J

19(;2 M R. Balt1ji v. Stcte of Mysar1 GtJjtntlrtttatlktir, J.

case not only by providing for reservation of appoint-ments, but also by providing for reservation of selec-tion posts. This conclusion was reached on the basis that it served to give effect to the intention of the Constitution-makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. The judgment shows that the only point which was raised for the decision of this Court in that case was whether the reservation made was outside Art. 16( 4) and that posed the bare question about the construction of Art. 16( 4). The propriety, the reasonableness or the wisdom of the impugned order was not questioned because it was not the respondent's case that jf the order was justified under Art. 16( 4), it was fraud on the Constitution. Even so, it was pointed out in the judgment 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 adminis-tration; that, it was stated, was undoubtedly the effect of Art. 335. Therefore, what is true in regard to Art. 15(4) is equally true in regard to Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminat-ing general competition in large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible · and legitimate limits would be liable to be challenged as fraud on the Constitution. In this connection it is necessary to emphasise that Art. 15 ( 4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary. ·

1 s.c.R.

In the result, we allow the writ petitions and direct that an appropriate writ or order or direction should be issued restraining the three respondents from giving effect to the impugned order in terms of the prayer made in clauses (i) and (ii) of paragrap? 38 of the petitions. The petitioners would be entitled to their costs, one set of hearing fees.

Petitions aUowed.

HEGGADE JANARDHAN SUBBARYE

THE STATE OF MYSORE AND ANOTHER (And connected petition)

(B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N.

WANCHCO, K. C. DAS GUPTA and J.C. SHAH, JJ.)

Oolkg• Admiiision-Reservation of seats for socially and educationally backward cl<l8su struck down-Reservation for Schtdultd Castes and Tri/Ju uphel4-0onstitution of India, Ari. 15( 4).

The petitioners challenged the validity of the orders issued by the State of Mysore under Art. 15(4) of the Constitu-tion on July 10, 1961, and July 31, 1962. The petitioners contended that they had applied for admission to the Pre-Professional Class in Medicine in the Karnatak Medical College, Hubli and they would have secured admiision to the said medical college but for the reservation directed to be made by the orders mentioned above. They contended that the al/ove-mentioned orders were ultra viru. They prayed for an appropriate writ or order restraining the respondents from giving effect to those orders and requiring them to deal with their applications for admission on merits.

H•ld, that the petitioners were entitled to an appropriate writ or order as claimed by tbem and the respondents were restrained from giving effect .to the above-mentioned orders. JI. R. Balaji v. Statt of Jlysor• [1963] Supp. l S.C.R. 439, followed.

The impugned orders we.e quashed only with reference

impugned orders we.e quashed only with reference to the additional reservation made in favour of the socially ana

M. R. B•l•ji v.

St.I< •f Mysor• G«jeninlt«ik•r, J,