T. DEVADASAN versus THE UNION OF INDIA AND ANOTHER

considered. The eye witnesses in this ca.se are five in number, while in the other case there were only two, but that apart, the earlier judgment can only be relevant if it fulfils the conditions laid down by the Indian Evidence Act in ss. 40-43. The earlier judgment is no doubt admis-sible to show the parties and the decision but it is not admissible for the purpose of relying upon the apprecia-tion of evidence. Since the bar under s. 403 Criminal Procedure Code rlirl not operate, the earlier judgment is not relevant for the interpretation .of evidence in the present case.

Kharkan and others v. The State of U.P.

Hidayatullah, f.

Mr. Tewatia attempted to argue on the facts of this case but we did not permit him to do so because this Court, in the absence of special circumstances, does not 'review for the third time, evidence, which has been ac-cepted in the High Court and the Court below. No such circumstance has been pointed out to us to make us de-part from the settled practice. The appeal therefore fails and is dismissed.

Appeal dismissed.

T. DEV ADASAN v.

August 29

THE UNION OF INDIA AND ANOTHER

(S. K. DAS ACTING C.J., K. SOBBA RAO, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R. MonHoLKAR, JJ.)

Equality-Employment under State-Reservation of posts for backward classes-Scheduled Castes and Scheduled Tri-bes-Unfilled vacancies of reserved posts for the year to be carri-ed forward to subsequent year-"Carryforward rule"-Constitu-tional validity-Constitution of India, Arts. 14, 16(1 ), 16( 4 ), 46, 335.

On February 6, 1960, the Union Public Service Commission issued notification to the effect that limited co:rripetitive exami-nation for promotion to the regular· temporary establishment of Assistant Superintendents of the Central Secretariat Service would be held in June, 1960. The notification further stated that re-servation of 12!% of the vacancies would be made for members of the Scheduled Castes and 5°!'. for members of Scheduled Tribe.s. The result of this examination was announced by the Union

l(' ........

Public Service Commission in April, 1961, and the Govern· ment made 45 appointments out of which 29 were from among the candidates belonging to the Scheduled Castes and Tribes. The result was that the reservation actually m<'l.de in this case came to 65% and was far in excess of that set out in the notification of the Union Public Service Commission pursuant to which the com· petitive examination was held. Had the reservation been Ii· mited to 17-~o;,_ only 8 vacancies could have gone to the mem-bers of the Scheduled Castes and Tribes and the rest to the other candidates according to their merit. The Government of India and the Public Service Commission sought to justify their action by relying upon \vhat is known as "the carry forward rule", as set out in th'e office Memorandum of instructions dated May 7, 1955, issued by the Government of India, by which : "If suffic cient number of candidates considered suitable by the recruiting authorities, arc not available from the communities for whom re-servations are made in particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available· in that year against this additional quota, correspond-ing addition should be made to the number of reserved vacancies 1in the second following ycar'• The petitioner, who was an assis-tant in Grade IV of the Central Secretariat Service, who expected to become Section Officer (Assistant Superintendent) by way ot promotion challenged the validity of the "carry forward rule" on the grounds, inter alia, that the rule contravened Arts. 14. 16 and 335 of the Constitution of India .. Held, (Subba Rao, J., dissenting), that the "Carry forward rule", as mult of which applicants belonging to Scheduled Cast-es or Tribes could get more than 5001,, of the vacancies to be fil. Jed in particu1<ll' year, is unconstitutional.

Article of the Constitution of India prohibits the Sta!J< from denying to any person equality before the law or the equal protection of laws. This means equality among equals. The Arti-cle does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circumstance of tJ;e differences such as age, sex, education and so on. provi-s~on made ~y the State for the reservation of certain propor-non of appomtments and posts for backward classes in the public services of the State in order to provide them with an opportu-nity equal to that of the members of the more advanced classes. docs not infrin~e Art. 14 of the Constitution of India provided that the reservation 1s not so excessive as to practically deny rea-sonable opportunity for employment to members of other com-munities.

Though under Art. 16(4) of the Constitution reservation of reasonable percentage of posts for members of the Scheduled 44--2 SC India/64

T. Devadasan v. The Union of India and Anot!ter

T. Devadasan v.

The Union of India and · Another

Castes and Tribes is within the competence of the State, the me-thod evolved by the Government must be such as to strike reasonable balance bctwen the claims of the backward classes and claims of other employees, in order to effectuate the guarantee mntained in Art. 16(1), and for this purpose each iear of rec-ruitment would have to be considered by itself.

The Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586 and M. R. Balaji and Others v. The State of Mysore, [1963] Supp. 1 S.C.R. 439, rdied on. per Subba Rao, J .-The provision for "Carry forward" is for the reservation of appointments for the Scheduled Castes and Tribes, and unless it is established that an unreasonably dispro-portionate part of the cadre strength is filled up with the said Castes and Tribes, it is not IX>SSible to contend that the provision is not one of reservation but amounts to violation of the fundamental rights. It is inevitable in the nature of reservation !Rat there will be lowering of standards to some extent ; but on that account the provision cannot be said to be bad.

The expression "nothing· in this article" in Art. 16( 4) of the Constitution of India is legislative device to express its intention in most emphatic may that the power sonferred there-~nder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has reserved :1 power untrammelled by the other provisions of the Article. -

The word "any" in the expr~Ssion · "any provision" in Art. 16( 4) is of the widest amplitude ·and leaves the nature of the pro-visioQ t~ be made· by the- State in itS discretion. Once class is backward class, the question· whether it is adequately repre-sented or _not is left to the subj.ective . satisfaction of the State and it is not for _ thi? Court to preScribe -the mode of reservation.

ORIGINAL }UR!smcTroN : Petition No. 87 of 1963.

, Under Article 32 of .the Constitution of India for the enforcement of fundamental rights. ·

R. Gopalakrishnan, for the petitioner.

R. Ganapathy Iyer and R. N. Sachthey, for the Res-pondents.

·. August 29, 1963. The J udgnient of S. K. Das, Acting C.J., Raghubar Dayal, N. Rajagopala Ayyangar and J. R. Mudholkar, JJ. was delivered by Mudholkar, J., K. Subba Rao J., delivered dissenting opinion.

MuoHOLKAR J.-The petitioner, who is graduate, is an· Assistant in Grade IV of the Central Secretariat Ser-vice, having been recruited therein in the year 1956. He became permanent on January 1, 1958. The next post

which the petitioner can expect to get is that of Section Officer (Assistant Superintendent) in the same service. Rec-ruitment to the post of Section Officer is made in the fol-lowing manner :

(i) 40% by direct recruitment from those who ob-tained lower ranks in the I.A.S. etc., examination ; (ii) 30% by promotion from Grade IV to Grade III on the basis of departmental examination held at intervals by the U.P.S.C.

(iii) 30"/o by promotion from Grade IV on the basis of seniority-cum-fitness.

On February 6, 1960 the Union Public Service Com-mision issued notification to the effect that limited ~ompetitive examination for promotion to the regular tem-porary establishment of Assistant Superintendents of the Cenrtal Secretariat Service would be held in June, 1960. The notification further stated that reservation of 12t% of the vacancies would be made for members of the Scheduled Castes and 5% for me111bers of Scheduled Tri-bes. The result of this examination was announced by the Union Public Service Commission in April, 1961. The Union Public Service Commission recommended 16 candidates for bein,:; appointed in unreserved vacancies and 28 candidates in reserved vacancies. Subsequently the U.P.S.C. recorpmended 2 more candidates belonging to the Scheduled Castes/Tribes for the posts. It may be men-tioned that the number of vacancies which were ex-pected to be filled was stated to be 48 out of which 16 were unreserved and the remaining 32 reserved, though in fact the U.P.S.C. recommended the names of only 30 candidates for the latter class of vacancies. The Go-vernment, however, made only 45 appointments out of which 29 were from among the candidates belonging to the Scheduled Castes and Tribes.

The petitioner points out that the percentage of marks secured by him at the examination was 61 whereas the percentage of marks secured by some of the 29 candidates from the Scheduled Castes and Tribes was as low as 35 and one of his grievances is that it was not competent to the U.P.S.C. to prescribe one qualifying standard for mem-bers of the Scheduled Castes and Tribes and another for the rest of the candi<lJt~s.

T. Devadasan v. The Union of India and Anoth1:r

Mudholkar, /.

T. Devadasan v. The Union of India and Another Mudholkar, /.

It is the petitioner's case that had the Union of Indja and the U.P.S.C. adhered to the quota of 171% reserva-tions in favour of Scheduled Castes and Tribes he would have had fair chance of being selected to the post of Assistant Superintendent. His grievance is that the reser-vation actually made in this case comes to 65% and was far in excess of that set out in the notification of the U.P.S.C., pursuant to which the competitjve examination was held. Had the reservation been limited to 1n% only 8 vacancies could have gone to the members of the Sche-duled Castes and Tribes and the rest to other candidates according to their merit.

The petitioner points out that the respondents, that is, the Union of India and the Union Pubilc Service Com-mission seek to justify their action by relying upon what is known as "the carry forward rule". In order to under-stand what the aforesaid rule is it is necessary to refer to certain resolutions of the Government of India in the Ministry of Home Affairs. On September 13, 1950, the Government of India published resolution indicating their policy in regard to communal representation in the services. There they have stated that the following reser-vations would provisionally be made in recruitment to the posts and services under them : .(a) Scheduled Castes : Reservation of 121% of vacan-cies by direct recruitment through the Union Public Service Commission or by means of open competitive tests held by any other-authority. Where recruitment is made otherwise than by open competition the reservation will be 16-2/3"/o.

(b) Scheduled Tribes : both in recruitment by open competition and the recruitment made otherwise than by open competition the reservation shall be to the extent of 50% of the vacancies filled by di-rect recruitment.

Then they refer to the resolution in favour of Anglo-In-dians with which we are not concerned. Incidentally. it may be mentioned that this resolution provides that in all cases minimum standard of qualification will be pres-cribed and that the reservations will be subject to the over-all conditions that candidates of the requisite communi-ties possessing the prescribed qualifications and suitable in

all respects for the appointments in question are forth-commg m sufficient numbers for the vacancies reserved for them. These orders were made applicable to all ser-vices under the control of the Government of India. Sup-plementary instructions with regard to this subject were issued by the Government of India on January 28, 1952, of which the relevant portions may be quoted :

"2(a) RECRUITMENT BY OPEN COMPETI-TION : If the candidates of Scheduled Castes, Sche-duled Tribes and the Anglo-Indian community ob-tain by competition less vacancies than are reserved for them, the difference will be made up by the no-mination of duly qualified candidates of these castes, tribes ·and communities, i.e., candidates of these com-munities etc., who have qualified in the test, selection etc., held for the purpose, but have secured ranks lower than the candidates of other communities for whom no reservations have been made. .. * .. .. ..

5(3) If sufficient number of candidates of the com-munities for whom the reservation are made, who are eligible for appointment to the posts in question and are considered by the recruiting authorities as suitable in all respects for appointment to the reser-ved quota of vacancies, are not available, the vacan-cies that remain unfilled will be treated as unreserved and filled by the best available candidates ; but cor-responding number of vacancies will be reserved in the following year for the communities whose vacancies are thus filled up in addition to such number as would ordinarily be reserved for them under the orders con-tained in the Resolution. (For further clarification please see Rule III in Appendix 'A').

( 4) If suitably qualified candidates of the communi-ties for whom the reservations have been made are again not available to fill the vacancies carried for-ward from the previous year under clause (3) above, the vacancies not filled by them will be treated as un-reserved and the reservations made in those vacancies will lapse. .. I

T. Devadasan v.

The Union of India and Another

Mudholkar, f.

T. Devadasan v. The Union of India and Another

Mudholkar, T.

APPENDIX 'A'

III. No gap should be left in the roster in filling va-cancies and if reserved vacancy (at, say, the 25th point of the roster) has, for want of suitable Sche-dule Caste candidate to be treated as unreserved, the candidate appointed should be shown against that point ; but if Scheduled Caste Candidate cannot be recruited against an unreserved vacancy later in the year, the reservation should be carried forward to the following year and after the Sch<;duled Castes quota for the latter year has been filled, the first unreserved vacancy in that year (say, the 32nd point) should be treated as reserved for Scheduled Castes.''These supplementary instructions were given apparently because sufficient number of qualified candidate"s from among the Scheduled Castes and Tribes were not avail-able. However, even carrying forward the vacancies for one year proved to be inadequate for giving effect to the policy of the Government of India to give adequate re-presentation in the services to members of the Scheduled Castes and Tribes. The Government considered and reiec-ted the holding of separate examinations for Scheduled Castes and Tribes for recruitment to public services. Then by Office Memorandum No. 2/11/55-RPS, dated May 7, 1955, the Government of India modified sub-paras (3) and ( 4) of paragraph 5 of the Supplementary Instruc-tions dated January 28, 1952, by substituting the fol-lowing:

"3(a) If sufficient number of candidates consider-ed suitable by the recruiting authorities, are not avail-able from the communities. for whom reservations are made in particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacan-cies thus treated as unreserved will be added as an ad-ditional quota to the number that would be rese(ved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, correspoding addition should be made to the number of reserved vacancies in the second following year."

Thus the number of reserved vacancies of 1954 which were treated as unreserved for want of suitable candi-:lates in that year will be_added to the normal number of reserved vacancies in 1955. Any recruitment against these vacancies in 1955 will first be counted against the additional quota carried forward from 1954. If how-ever, suitable candidates are not available in 1955 also certain number of vacancies are treated accordingly as 'unreserved' in that year, the total number of vacan-cies to be reserved in 1956 will be the unutilised ba-lance of the quota carried forward from 1954 and 1955 plus the normal percentage of vacancies to be reserved in 1956. The unutilised quota will not, however, be car-ried forward in this manner for more than two years. An annual report of reserved vacancies which were treated as unreserved for want of suitable candidates from Scheduled Castes or Scheduled Tribes as the case may be, should be forwarded to the Ministry of Home Affairs in the form enclosed as Anne)lure along with the annual communal returns already prescribed. In addition Ministries themselves will take adequate steps to ensure that any lapse on the part of subordinate authorities in observing the reservation rules cannot go unnoticed by reviewing authority within the Ministry itself at sufficiently early date. (b) In the event of suitable Scheduled Castes can-didate not being available, Scheduled Tribe candi-date can be appointed to the reserved vacancy and vice versa subject to ;i.djustment in the subsequent points of the roster. (For further clarification please see Rule III in Appendix 'A').

It is these instructions of the Government of India which are being challenged by the petitioner in this petition which he has presented to this Court under Art. 32 of the Consti-tution. His contention is that Art. 16(1) of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Mr. Gopalakrishnan, who appears for the petitioner, concedes that under cl. ( 4) of Art. 16 it is open to the State to make provision for reserva-tion of appointments or posts in favour of any backward class of citizens which in· the opinion of the State, is not

T. Devadasan v. The Union of India and Another Mudholkar, f.

T., Devada<an v.

The Union of India· and Another

. Mudholkar, /.

adequately represented in the services of the State. ilut his contention is that this reservation cannot be so extensive as to nullify or destroy the right conferred by cl. ( 1) of Art. 16. He points out that according to the previous decisions of this Court cl. · ( 4) is merely an ex-ception to cl. ( 1) of Art. 16, which, being subc servient to the main provision cannot be so inter-preted as to render the main provision meaningless. His next contention is that cl. ( 4) of Art. 16 is to be read with Art. 335 of the Constitution which, while providing for the consideration of the claims of members of Scheduled Castes and Tribes, reiterates that the efficiency of administra-tion should be maintained and not allowed to suffer. His next contention is that as no reservation .of posts in favour of members of Scheduled Castes and Tribes is made in the offices of the Lok Shabha a~d Rajya Sabha and the Supreme Court or in the Armed Forces, Art. 14 of the Constitution is infringed. Then, according to him, the standard for all candidates must be the same and the Union Public Service Commission has no power to recommend for appointment candidates from Scheduled Cates and Tribes for appoint-ment to the reserved posts even though they have secured far less marks than the candidates belonging to the more advanced communities. These are the main points which Mr. Gopalakrishnan has urged.

On behalf of the respondents it is claimed that the carry forward rule is perfectly valid, that it was rule in force before the commencement of . the Constitution and that it was decided to continue it even after the Constitution came into force as matter of public policy and for giving effect to the provisions of the Constitution and that that is why supplementary instructions were issued by the Govern-ment in 1952. They further say that the carry forward rule was extended upto two years because of inadequacy of repre-sentation of Scheduled Castes and Tribes in services regard-ing which there was persistent criticism in Parliament and by the Commissioner for Scheduled Castes and Tribes and by others. It is for this reason that the revised supplemen-tary instructions of 1955 were issued as matter of policy. The respondents relied upon the provisions of Art. 16( 4) and Art. 335 in support of these instructions.

\.• I -

It was contended on behalf of the respondents that having regard to the prayers in the petition, the petition was unsustainable in law because the persons who would be adversely affected have not been joined as respondents. It is also contended that the petition does not disclose any justiciable issue. The right to promotion cannot, according to the respondents, be the subject of complaint in court of law. Nor again, questions of policy could be agitated before court of law. The respondents denied that the petitioner has any right, much less fundamental right. The respondents also deny that the carry forward rule was negation of equality before law and equal opportunity in the matter of appointment to posts under the State. The infringement of the alleged fundamental right could not thus furnish cause of action to sustain petition under Art. 32.

While replying in detail paragraph by paragraph to the petition, the respondents admitted that at the competi-tive examination held in pursuance of the notification of March, 1961, 28 vacancies which had been filled in the two previous years from amongst candidates who belong to communities other than the Scheduled Castes and Tribes because suitable candidates from the latter classes were not available and stated that by operation of the carry forward rule those vacancies were, therefore, earmarked for being filled at the competitive examination held in the year 1961 in addition to 17}% of the total vacancies to be filled that vear.The ~in question for consideration thns is whether the carry forward rule as modified in 1955 is unconstitu-tional either because its operation will practically destroy the fundamental right guaranteed by Art. 16 ( 1) of the consti-tution or because it is violative of the guarantee contained in Art. 14 of the Constitution. If on either of these grounds the carry forward rule is found to be bad no other question need be considered by us.

It seems to us that the argument based upon Art. 14 of the Constitution in fact turns on the same considerations as the argument that Art. 16(1) is infringed by the aforesaid rule. What Art. 14 provides is that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. What is meant

T. Devadasan

The Union of India and Another

Mudholkar, /.

T. Devadasan v. The Union of India and Another

Mudholkar, ].

by equality in thi~ Article is, equality amongst equals. It does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circums-tance of the differences such as age, sex, education and so on and so forth as may be found amongst people in general. Indeed, while the aim of this Article is to ensure that invi-dious distinction or arbitrary discrimination shall not be made by the State between citizen and citizen who answer the same description and the differences which may obtain between them are of no relevance for the pur-pose of applying· particular law reasonable classification is permissible. It does not mean anything more.

It is an accepted fact that members of the Scheduled Castes and Tribes are by and large backward in comparison with other communities in the country. This is the result of historical causes with which it is not necessary for us to deal here. The fact, however, remains that they are back-ward and the purpose of Art. 16 ( 4) is to ensure that such people, because of their backwardness should not be unduly handicapped in the matter of securing employment in the various services of the State. This provision, therefore, contemplates reservation of appointments or posts in favour of backward classes who are not adequately represen-ted in the services under the State. Where, therefore, the State makes rule providing for the reservation of appoint-ments and posts for such backward classes it cannot be said to have violated Art. 14 merely because members of the more advanced classes will not be considered for appointment to these posts even though they may be equally or even more meritorious than the members of the backward classes, or merely because such reservation is not made in every kind of service under the State. Where the object of rule is to make reasonable allowance for the backwardness of mem-bers of class by reserving certain proportion of appoint-ments for them in public services of the State what the State would in fact be doing would be to provide the mem-bers of backward classes with an opportunity equal to that of the members of the more advanced classes in the matter · of appointments to public services. If the reservation is so excessive that it practically denies reasonable opportunity for employment to members of other communities the posi-tion may well be different and it would be open when for

member of more advanced class to complain that he has been denied equality by the State.

That is precisely the point which we must consider in dealing with the argument of learned counsel that the rule violates the guarantee contained in Art. 16(1) of the Constitution because the excessive reservation permitted by it almost destroys the guarantee contained in the provi-sion. In order to appreciate the argument it is necessary to consider the operation of the rule. Now, the rule pro-vides that in% of the total vacancies in year will be reserved for being filled from amongst candidates be-longing to scheduled castes and tribes. It further provi-des that if in any year suitable candidates are not avail-:1bk from amongst such classes the reserved posts will be dere:;erved, filled by candidates from other classes and corresponding number of posts be carried forward to the next year. If in the subsequent year the same thing happens, the posts unfilled by candidates from Scheduled Castes and Tribes can be carried forward to the third year. In the third year the number of posts to be filled from amongst candidates of Scheduled Castes and Tribes would thus be 17±% of the total vacancies to be filled in that year, plus the total unfilled vacancies which have been carried forward from the two previous years. The rule thus permits perpetual carry forward of unfilled re-served vacancies in the two years preceding the year of recruitment and provides addition to them of 17 t % of the total vacancies to be filled in the recruitment year. In order to appreciate better the import of this rule on re-cruitment let us take an illustration. Supposing in two successive years no candidate from amongst the Schedu-led Castes and Tribes is found to be qualified for filling any of the reserved posts. Supposing also that in each of those two years the number of vacancies to be filled in particular service was 100. The reserved vacancies for each of those years would, according to the Government resolution, be 18 for each year. Now, since these vacan-cies were not filled in those years total of 36 vacancies will be carried forward to the third year. Supposing in the third year also the number of vacancies to be filled is 100. Then 18 vacancies out of these will also have to be reserved for members of the Scheduled Castes and Tribes.

T. Devadasan

The Union of India and Another

Mudholkar, f.

T. Devadasan v. The Union of India and Another

Mudholkar, J.

By operation of the carry forward rule the vacancies to be filled by persons from amongst the Scheduled Castes and Tribes wquld be 54 as against 46 by persons from amongst the more advanced classes. The reservation would thus be more than 50%. It has been held by this Court in M. R. Balaji & Ors. v. The State of Mysore(') that the resen:ation of more than half of the seats in an educational institution for being filled from members of the backward classes is unconstitutional. Speaking for the Court Gajendragadkar, J., has observed therein :

"Speaking generally and in broad way special provision should be less than 50 per cent ; how much less than 50 per cent. would depend upon the rele-vant prevailing circumstances in each case ........ .". In our opinion, when the State makes special pro-vision for the advancement of the weaker sections of society specified in Article 15(4) it has to approach its task objectively and in rational manner. Un-doubtedly, it has to take reasonable and even gene-rous steps to hefp the advancement of weaker ele-ments ; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and formula must be evolved which would strike reasonable balance between the several relevant considerations."In that case the reservation was to the extent of 68% and it was struck down by this Court. No doubt, what was challenged was the reservation of seats in an educa-tional institution in favour of members of "backward communities" under Art. 15(4) which permits the State to make special provision for the advancement of any socially and educationally backward classes or for the Sche-duled Castes and Tribes while Art. 16( 4) in specific terms provides for the reservation of appointments . or posts in favour of such classes. But the difference in the language used in these provisions is not, however, of any significance because this Court has accepted the position that reservation can be made under Art. 15 ( 4). Indeed, at .p. 474 this Court has pointed out :

" ........ what is true in regard to Article 15(4) ts

( [1]) [1963] Supp. 1 S.C.R. 439.

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 re-servation under Art. 16(4) care would be taken not to provide unreasonable, excessive or extrava-gant reservation, for that would, by eliminating gene-ral competition in large field and by creating wide-spread dissatisfaction amongst. the employees, ma-terially effect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reser-vation made under Art. 16(4) beyond the permissi-ble and legitimate limits would be liable to be challen-ged as fraud on the Constitution."

What this Court has laid down there would also apply to the present case. The ratio of this decision appears to be that reservation of more than half the vacancies is per se destructive of the provisions of Art. 15 ( 1) which is to the effect that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Adverting to the effect of such reservation this Court has observed at p. 467 :

"But if provision which is in the nature of an ex-ception completely excludes the rest of the society, that clearly is outside the scope of Art. 15(4). It would be extremly unreasonable to assume that in en-acting Art. 15 ( 4) the Constitution Intended to provide that where the advancement of the Backward Class~ of the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolute-ly ignored."

The startling effect of the carry forward rule as modi-fied in 1955 would be apparent if in the illustration which we have taken there were in the third year 50 total vacancies instead of 100. Out of these 50 vacancies 9 would be reserved for the Scheduled Castes and Tribes. Adding to that the 36 carried forward from the two previous years, we would have total of 45 reserved vacancies out of 50, that is, percentage of 90. In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled Castes and Tribes on the basis of reservation permitted by the carry forward

T. Devadasan v. The Unio• of India and Another Mudholkar, /.

1963 T. Devadasan v. The Union of Indio and Another Mudholkar, /.

rule. This comes to about 64.4% of reservation. Such being the result of the operation of the carry forward rule we must, on the basis of the decision in Balaji' s case(') hold that the rule is bad. Indeed, even in The General Manager, Southern Railway v. Rangachari(') which is case in which reservation of vacancies to be filled by promotion was upheld by this Court, Gajendra-gadkar, J., who delivered the majority judgment obser-ved:

"It is also true that the reservation which can be made under Art. 16(4) is intended merely to give adequate representation to backward communities. It can-· not be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objec-tivdy considered and an attempt must always be made to strike reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration ; ........ "

It is clear from both these decisions that the problem of giving adequate representation to members of backward classes enjoined by Art. 16( 4) of the Constitution is not to .be· tackled by framing general rule without bearing in mind its repercussions from year to year. What precise method should be adopted for this purpose is matter for the Government to consider. It is enough for us to say that while any method can be evolved by the Government it must strike "a reasonable balance between the claims of the backward classes and claims of other employees" as pointed out in Balaji' s case(').

. We would like to emphasise that the guarantee con-tained in Art. 16 ( 1) is for ensuring equality of opportu-nity for all citizens relating to employment, and to ap-pointments to· any office under the State. Tills means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who

(1) [1963] Supp. I S.C.R. 439. (•) [ 1962 J 2 S.C.R. 536.

is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seek-ing su<:h employment or appointment wli.enever it is in-tended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create monopoly or to disturb unduly the legitimate claims of other communi-ties.

Further, this Court has already held that cl. (4) of Art. 16 is by way of proviso or an exception to cl. (1). proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. To hold that un-limited reservation of appointments could be made under cl. ( 4) would in effect efface the guarantee contained in cl. (1) or at best make it illusory. No provision of the Constitution or of any enactment can be so construed as to destroy another provision contemporaneously enacted therein. It is true, as pointed out by Mr. Ganapathy Iyer on behalf of the respondent, that effect must be given to the express words of Art. 16(4). "Nothing in this Arti-cle shall prevent the State from making any provision for the reservation of appointments . . . . . . . . etc.," but that does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the Arti-cle, particularly els. (1) and (2)' thereof. The over-riding effect of cl. (4) on els. (1) and (2) could only ex-ten~ to the making of reasonable number of reservation of appointments and posts in certain circumstances. That is all.. Going back on his earlier concession, it was contend-ed ,by Mr. Gopalakrishnan on behalf of the petitioner, that there can possibly be no reservation whatsoever in favour of members of Scheduled Castes or Tribes or any of the backward classes and that the proper way of discharging the duty laid upon the State by Art. 16( 4) of the Consti-tution would be to adopt method of the kind which has . appealed to the Government of Mahara.shtra in exercising its powers under Art. 15( 4). In this connection he has referred us to the following passage from the judgment of this Court in Balaji's case(') :

(1) [1963 J Supp. I S.C.R. 439.

T. Devad'1SMn

v. The Union of India and Another Mudholkar, f.

T. Devadasan v. The Union of India •nd Another

Mudholl(ar, /.

"It appears that the Maharashtra Government has decided to afford financial assistance, and make mo-netary grants to students seeking higher education 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 observe that if any State adopts such measure, it may atton1 relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to pover-ty. 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 ra-tional, broad· and scientific approach which is consis-tent with, and true to, the noble ideal of secular wel-fare democratic State set up _by the Constitution of this country. Such an approach can be suppkmented. if necessary by providing special provision by way of. reservation to aid. the backward classes and Sche-duled 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 ta-king executive action. to implement the policy of Art.. 15 ( 4) it is necessary for the States to remember that the poficy which is intendea to be implemen-ted is the policy which has been declared by Art. '16 and the preamble of the Constitution. It is for the attainment of social and economic justice .that Art. 15 ( 4) authorises the making of special provisions for the advancement of the communities there con-templated even if sucli provisions· may be inconsistent 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 objective approach free. from· all extraneous pres-sures. The iaid action is intended to do· social and

etonomic justice and must be taken in manner that justice is and should be done." (p. 472-473). It may well be that what the Government' of Maharashtra has done is one of the ways of discharging the duty which Art. 15(4) casts upon the State but in case like the one before us we must regard to the express language of Art. 16(4). Under this provision it is clear that reserva-tion of reasonable percentage of posts for members of the Scheduled Castes and Tribes is within the competence of the State. What the percentage ought to he must' neces-sarily depend upon the circumstances obtaining from time to time.

In supporting the impugned rule reliance was placed on behalf of the respondents upon passage from the judgment of Wanchoo J., in Rangachari's case(') :

"Art. 16( 4) tells us that it may be made either by reserving appointments to the services or reserving posts in the services. Appointments in my opinion clearly mean the initial appointments to service,-for person is appointed only once in service and thereafter there is no further appointment. There-fore, when the article speaks of reservation of appoint-ments it means reservation of percentage of initial appointments to the service. Posts refer to the total number of posts in the service and when reservation is by reference to posts it means reservation of cer-tain percentage of posts out of the total number of posts in the service. The reason why these two methods are mentioned in this Article is also to my mind plain. The method of reservation of appoint-ments would mean that the goal of adequate repre-sentation may be reached in long time. Therefore, in order that the goal may be reached in compara-tively shorter period of time, the Article also provi-des for the method of reservation of posts." The view of Wanchoo, J., stands Dy itself and does not seem to have been accepted by the majority of the Court. The validity of the carry forward rule was not challenged in that case and, therefore, this Court had no occasion to say anything concerning it. Apart from that we may point out that the Government resolution does not con---(1) [1962] 2 S.C.R. 586. ~5-2 S. C. India/65

T. Dt:ttdaslJn v. The Union of India anti Another Mudholkar, [.

T. Devarlaran v. Tne Union of lnJia and Anoih.r Mudholk_ar, /.

SublHZ Rao f.

template teservation of any posts in the service cadre but merely provides for reservation of vacancies. liven if the Government had provided for the reservation of posts for Scheduled Castes and Tribes cent. per cent. re-servation of vacancies to be filled in particular year or reservation of vacancies in excess of 50% would, accord-ing to the decision in Balaji' s case('), not be constitu-tional.

Considerable argument was advanced before us by Mr. Gopalakrishnan on the basis of Art. 335 of the Cons-titution which reads thus :

"The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consi-deration, consistently with the maintenance of effi-ciency of administration, in the making of appoint-ments to services and posts in connection with the affairs of the Union or of State."

The need for the maintenance of efficiency of administra-tion, even when giving effect to the provisions of Art. 16(4) has been emphasised in Rangachari's case([2]). It is therefore, not necessary for us to say anything more on the point. •

· · .Having held that the carry forn;ard rule as modified in 1955 is unconstitutional, the question which arises is as to the relief which we should grant to the petitioner. Mr. Gopalakrishnan made it clear that all that he wants is declaration about the invalidity of the rule and that he hopes that the department concernicl will implement the decision of this Court in an appropriate way. Indeed, no further relief can be given to him because the persons who have been appointed and who may be affected by this decision have not been joined as respondents in this petition.

In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid. Costs of the petition will be paid by the State.

SuBBA RAo J.-I regret my inability to agree. The short but difficult question is whether the impugned pro-vision of reservation of posts made by the Government of India in favour of Scheduled Castes and Scheduled Tribes offends Art. 16(4) of the Constitution.

( [1]) [1963] Supp. 1 S.C~R. 439.

4 S.C.R. SUPREME COURT REPORTS

The facts are fully stated in the judgment of my learn-ed brother and I need not restate them. The relevant provisions may now be read :

Article 16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

appointment to any • • •

State. • •

( 4) Nothing in this article shall prevent the State from making any provision for the reservation of ap-pointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Article 46. The State shall promote with special care the educational and economic inlerests of the weaker sections of the people, and, in particular, of the Sche-duled Castes and the Scheduled Tribes, and shall pro-tect them from social injustice and all forms of ex-ploitation.

Article 335. The claims of the members of the Sche-duled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of ·tfficiency of administration, in the making of ap-pointments to services and posts in connection with the affairs of the Union or of State.

These three Articles,· along with the others with which we are not now concerned, are designed to uplift the said castes and tribes. There is no conflict between these three prov1S1ons. Article 46 is directive principle of State policy ; and, though not justiciable, it is fundamental in the governance of the country. Article 335 is man-datory direction given to the State to take the claims of the Scheduled Castes and the Scheduled Tribes into con-sideration irl the making of appointments to the said ser-vices and posts. Article 16( 4) empowers the State to make provision for the reservation of posts and appoint-ments for the backward classes, which certainly include. the said Castes and Tribes. While Art. 335 is mandatory in character, Art. 16(4) is directory and permissive. The State may or may not make such reservations for such Castes and Tribes, if it thinks that the implementation of Art. 335 meets given situation. In my view, Art. 335 has no bearing in the matter of construing Art. 16( 4) of

T. Devai/asan

v. The Union &/ India and Another

SNbbo Rao/.

T, Devadasan v. The Union of India and Another

. Subba Rao f.

the Constitution. We have, therefore, to fall back upon Art. 16(4) alone to ascertain the validity of the provisions ·made by the Government.

Article 14 lays down the general rule of · equality.

Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of op-portunity for all citizens in matters relating to employ-ment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in society of uneven basic social structure ; the said rule of equality would remain only an utopian conception unless practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid; To make my point clear, take the illustration of ·horse race. Two horses arc set down to run race-<lne is first class race horse and the other an or-dinary one. Both are made to run from the same starting point. Though theoretically they are given equal oppor-tunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So handicap may be given either in the nature of extra weight or start from longer distance. By doing so, what would other-wise have been farce of competition would be made real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced considerable section of our community to life of serf-dom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strict-ly enforced in their case. They would not have any chan-ce if they were made to enter the open field of com-petition without adventitious aids till such time when . they could staq.d on their own legs. That is why the ma-kers of the Constitution introduced cl. ( 4) in Art. 16. The expression "nothing in this article" is legislative ·. device to express its intention in most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved power untrammelled by the other provisions of the Article.

4 S.C.R.

Now let us give close look to its provisions to ascer-tain its ambit. Three expressions stand out in bold relief, namely, (1) "any provision for the reservation of appointments", (2) "in favour of any backward class of citizens", and (3) "in the opinion of the State, is not ade-quately represented in the services under the State". The word "any" in the expression "any provision" is of the widest amplitude and leaves the nature of the provision to be made by the State in its discretion. But the limitation on the provision is found in the words "for the reserva-tion of appointments or posts". It follows that if provi-sion is for the reservation of appoi_ntments or posts, the clause does not further circumscribe the power of the State to make any provision to achieve that object. That reservation must be in favour of any backward class of citizens. "Backward class" is not defined ; whether par-ticular class is backward or not is question of fact in each case and it must satisfy certain objective tests. But it is admitted in this case that the Scheduled Castes and the -Scheduled Tribes are backward classes. The third condition is that, in the opinion of the State they are not adequately represented in the services under it. Once class is backward class, the question whether it is adequately represented or not is left to the subjective satisfaction of the State. The result of the analysis of the Article is that to invoke cl. ( 4), (i) there shall be back-ward class of citizens, and (ii) the said class, in the opinion of the State, is not adequately represented in the services of the State. If these two conditions are complied with, the State is at liberty to make any provision for the reservation of appointments or posts in favour of the said class of citizens. In the present case it is not disputed that the two conditions have been satisfied, and, therefore, the only question is whether the provision made is for the reservation of appointments or posts for the said backward classes of citizens. . .

Learned counsel for the petitioner contends that Art. 16(1) confers an individual right on citizen and cl. (4) of th_e _sai~ ~rticle, which embodies the principle of social 1ust1ce 1s an exception to the said right ; and, therefore, the question has to be decided in the con-text of every selection whether the provision made is

T. Devadasaa v. The Unioa of India and Another

Subba Rao/.

T, D•vada1an v. Th• Union of India and Anoth"' Subba Rao/.

one of reservation or in effect one of destruction of the fundamental right. He further elabqrates that, as every citizen has an individual right to apply for appointments whenever applications are called for, he cannot be deprived of his right on the ground that in previous selection the community to which that individual belongs had more than hs share. It is further contended that the concept of reservation for community implies the carving of part- of the entire field, and that if the. provision covers the entire field or major part pf it, it ceases to be reservation and, therdore, not protected by cl. ( 4). He says that the principle of "carry forward'', if logiplly ex-tended, will result, ;ifter some time, in- the destruction of the right itself. Finally, he argues that Art. 16 and Art, 335 must be read together and. that, if so read, they indi-cate that reservaticm c;ould not be made at the expense of efficiency.We are only concerned with the interpretation of the constitutional provisions, !:mt not with the policy under-lying it. The makers of the Constitution laid down that pr9vision shall be made for the reservation of appointments and posts in favo11r of such Castes and Tribes. The only question, therefore, is whether. in the instant case the:: State_ did not provide for the reservation of appointments or posts. I find it difficult to say that the provision for "carry forward" is not for th~ reservation 9f appoint-ments for the said Castes and Tribes. The reservation of appointments = be made in different ways. It Is not for this Court tq prescribe the mode of reservation. In the context of permissible provision that can be made by State under Art. 16( 4) of the Constitlltion, some. observa-tiqns of W anchoo, J. in his judgment in The General Mianager, Southern J?_ailway v. RangatJhari(') may be extracted usef11lly, The learned Judge observed at p. 610 ~SI •

"Suppose there are 1,000 posts in particular service and the backward classes have no representation at all in that service. The State considers it necessary that they should have adequate representation in that service, Suppose also that the annual appointments

( [1]) (1962] 2 S.C.R. 586.

to be made to the servic(; in ordei: to keep it at full strength is thirty. Now the State if it chooses the !Ilethod of reser'>'.ation of appointmen~ will reserve ·, percentage of appointmen~ each year for backward classes. Now suppose tiiat the percent<ige is fixed at ten per centum of the total nurober of posts in the ser· vice by the. method of reservati(,)11 of :i.ppointments, the period taken wot1ld be r.oughly 34 years, This period !Ilay be considered too long and therefore the State way decide to adopt th~ other way, i.e., the re-servation of posts; and suppose it is decid~d to reserve ten per centu!Il of .the posts, i.e., 100 in all... It will then be open to the State l;i:wing reserved 100 posts in this particular service for backward classes to say that till these 100 posts. are filled up by l)ackward clas-ses an appointments will go to the!Il provided the IIlinililUIIl qualifications that !Ilay be prescribed are fulfilled. Suppose further that it is possible to get an-nually the requisite nUIIlber of qualified members of backward classes equal to the annual appointmen~, the representation of the backward classes will be made adequate in about four years. Once the repre-sentation is adequate there will be no power left for making further reservation. Thus by the method of reservation of appointments the representation is made adequate in long period of time while by the method of reserving pos~ the representation is made adequate in much 'shorter period, That seems to be the reason why the Article speaks of reservation of appointments as well as of posts."

No doubt these observations ~ere ~ade in different context, but they show that reservation can be made in the pos~, i.e., in the cadre strength, or in the annual ap-pointments to be made in the service in order to keep it at full strength. They also show that the provision for reservation can be implemented in diverse methods, such as, by providing for the recruitment only from the Scheduled Castes and the Scheduled Tribes till the percentage reserved for them is reached or by providing percentage for recruitment from the said Castes and Tribes every year till the reserved percentage is reached in the cadre. The following may be some of the

lQ63 ' ) T. Devadasan v. The Union of India and dnqther

Subba Rpo /.

T. 1Ja1adasan v. T.le Union of bulia and. Aoother. S./Jha Rao /.

methods of implementing the provision for reservation : ( 1) The cadre strength of particular service is 1,000 ; the State may reserve 100 posts out of them for the Schedu-led Castes and the Scheduled Tribes and make appoint- , ments solely from the said Castes and Tribes till the per-centage reserved is reached. (2) In the same situation the State may direct that specified percentage of the 100 vacancies for which applications were called for shall be filled up by candidates from the said Castes and Tribes : by this process, 100 will be reached in some years. (3) If the applicants from the said Castes· an<! Tribes do not come upto the percentage reserved for them in .particu-lar year, the State may provide that the vacancies not Iii!,. ed up shall be carried over to the next selection. ( 4) In the same contingency, instead of providing for the carrying over of the said· vacancies to the ·next selection, the said vacancies may be filled up by candidates belonging to castes other than the Scheduled Castes and the Schedu-led Tribes ; but the seats reserved to the Scheduled Cas-tes and Tribes but not filled up by them may be added to those reserved for them in the next selection. (5) The State, instead of applying the principle of "carry for-ward'', may provide that if the applicants belonging to the said Castes and Tribes are not sufficient in the first selection to come up to the percentage reserved, larger percentage of candidates belonging to the Scheduled Castes and the Scheduled Tribes shall be selected in the next year or the year after. ( 6) Instead of specifically making any reser-vation in the cadre strength, the State may adopt one or ·other of the aforesaid provisions for the reservation till such time the State is satisfied that the said Castes and .Tribes have secured proper representation. in. particular ser-vice. The above provisions for reservation are only illm-trative ; there may be .more effective and equitable me-thods other than the said provisions. 'Any ()ne of the said provisions, . however reasonably framed; would inevitably <:a use hardship to. some candidates from the non-Schedu-led Castes and non,Scheduled Tribes in the sense .that some of them would have been selected but for.· the· reser-vation, but nonetheless it cannot be said that the · provi-sions are ·not provisions for ·reservation of seats for · the Scheduled .. Castes and the Scheduled Tribes.

4 S.C.R

In the instant case, the State made provision, adopt" ing the principle of "carry forward". Instead of fixing higher percentage in the second and third selection· ba-sed upon the earlier results, it directed that the vacan-cies reserved in one selection for the said Castes and Tri-bes but not filled up by them but filled up by other can-didates, should be added to the quota fixed for the said Castes and Tribes in the next selection and likewise in the succeeding selection. As the posts reserved in the first year for the said Castes and Tribes were filled up by non-Sche-duled Caste and non-Scheduled Tribe applicants, the re-sult was that in the next selection the posts available to the latter were proportionately reduced. This provision certainly caused hardship to the individuals who applied for the second or the third selection, as the case may be, though the non-Scheduled Castes and non-Scheduled Tri-bes taken as one unit, were benefited in the _ earlier selection or selections. This injustice to individuals, which is inherent in any scheme of reservation, cannot, in my view, make the provision for reservation anytheless pro-vision for reservation.There are no merits in the contention that the prin-ciple of "carry forward" has resulted in the third year in the selection of candidates belonging to the Scheduled Castes and the Scheduled Tribes to tune of 80 per cen-tum of the total applicants for that year and, therefore, the selection amounted to destruction of the fundamental right. If reservation was within the competence of the State, I do not see how the said fortutitous . circumstance would ·affect the reservation so made. Suppose for two selections there were no ca.ndidates from the Scheduled Castes and the Scheduled Tribes and the vacancies re-served for them were filled' .up by candidates belong-ing to castes other than the Scheduled Castes and. the Sche-duled Tribes. In the third year the State ,reserved all the posts or most of the posts for the. Scheduled Castes and the Scheduled Tribes, having. regard to the actual position of the said Castes and Tribes in the cadre. This is certainly provision for reserv.ation. The effect of the .operation of the principle of "qrry forward" is prac-tically the same. Reservation made _in one selection or spread over many selections is only convenient method

T. Devadasan v. The Union of India and Another Subba Rao/.

T. Devadasan v.

The Union of India and Another ·

Subba Rao /.

of implementing the provision of reBervation. Unless it is established that an unr~onably disproportionate part of the cadre strength is filled up with the said Castes and Tribes, it is not possible to contend that the provision is not one of reservation but amounts to an extlnctjop. of the fundamental right .. There is. neither an allegation nor evidenc;e in this c:i,se to that effo;t. .

If the provision deals with reservation~which I hold it does-I do not see how it wjll be bad because there will be some deterioration in the standard of service. It is inevitable in the nature of reservation that there will be lowering of. standards to some extent; but on that ac-count the provision c;annot be said to be bad. Indeed, the State laid. down the mini.mum qualificatiotl.'! and all the appointments were made from those who had the said qualifications, How far the efficiency of the administra-tions suffers by this provision is not for me to say, but it is for the State, which is certainly interested in the mainten-ance of standards of its administration.

Strong reliance is placed by the petitioner on the de-cision in M. R. Balaji v. State of Mysore(') in support of the contention that, whenever State makes reservation for backward classes of over 50 per. centum of the posts in single selection, such provision . .is not one of reser-vation b1.1t of destruction of the fundamental right. If that decision · decided to that effect, I would be bound by it. careful perusal of that judgment discloses that this Court did not lay down any such proposition. In that case, p8 per centum of, seats in colleges were reserved for bac;kward communities. It was contended before this Oiurt. on behalf of the. petitioners therein that. the impug-ned order, whjch had been passed under Art. 15(4) of the: Constitution, was not valid, because the basis adopted by the order in specifying and enumerating the. social-ly and educationally backward classes of citizens in the State was unintelligible and irrational and that the classi-fication made was inconsistent with, and outside, the pro-visions of .Art. 15(4). It was also urged by them that.the extent of reservation prescribed by the said order was so unreasonable and extravagant that the order was ( [1]) [1963] Supp. I S.C.R. 439.fraud on the constitutional power conferred on the Stat~. Gajendragadkar, J., speaking for the Court, gave the fol-lowing reasons for holding that the provisions so made were contrary to Art. 15(4) of the Constitution: (1) The concept of backwardness is not intended to be rela-tive in the sense that any classes who are backward in re-lation to the most advanced classes of the sociery should be included in it : the test of backwardness must be social and educational. (2) The criteria adopted by the State in ascertaining the social backwardness of commu-nity and its educational backwardness were neither correct nor sound. (3) The sub-classification rnade by the order between backward classes and more backward classes does not appear to be justified under Art. 15( 4). The lear-ned Judge traced the history of the order, considered all the relevant circumstances and held that reservation of 68 per centum in the circumstances of the case was fraud on the- constitutional power conferred on the State by Art. 15( 4) of the Constitution. It would, therefore, be seen that the judgment of this Court was based mainly upon two grounds, namely, the State had adopted wrong criteria for ascertaining who were backward classes and also on the ground that the State committed fraud on its constitutional power. In the present case it is not disputed that the Scheduled Castes and the Scheduled Tri-bes are backward classes and there is no material on which I can hold that the Government committed fraud on the constitutional power conferred on it. The only observa-tions on which learned counsel for the respondent can rely are the following found at p. 470 :

"The adjustment of these competing claims is un-doubted_! y diffic~lt mat~e_r, but if under the guise of makmg special prov1S1on, State reserves practi-cally all the seats availa?le in all the colleges, that clearly would be ~ubvertmg the object of Art. 15(4). In this matter agam, we are reluctant to say definitely what would be .a proper provision to make. Speaking generally and m broad way, special provision should be less than 50 per cent. ; how much less than 50 per cent. would depend upon the relevant prevail-ing circumstances in each case."

T. Devadasarf

The Union of India and Another

Subba Rao 1-

T. Devadasan v. The Union <Jf India and Another

Subba Rao /.

August

These general observations made in the ·context of· admis-sions to college cannot, in my view, be applied in the case of reservation of appointments in ·the matter of recruit-ment to cadre of particular service. The doctrine of "destruction" of the fundamental right depends upon the· entire cadre strength and the percentage reserved olit of that strength. Further, the expression used in the observa· tions, viz., "generally" and "broadly'', show that the· ob-servations were intended only to be workable guide but not an inflexible rule of law even in the case of admis-· sions to colleges.

I cannot, therefore, hold that in the present case the· provision made by the State was not for reservation but for purpose not sanctioned by the Constitution. In the re-sult, the writ petition is dismissed with costs.

ORDER BY COURT

In accordance with majority. opinion .. the Writ Peti-tion is allowed with. costs .

. BUKMA

STATE OF RAJASTHAN

(M. HIDAYATULLAH AND K. C. DAS GUPTA, JJ.)

Sea Customs-Seizure of Gold-furisdictian of" Custom; 'Offi-cer-"Adjoining", meaning of-Proof. ~·.of ·mens ·rea-Sea · Customs Act,·1878 (8 of 1878), ss. 167(81), 178-A-Land Customs Act, 1924 (19 of 1924), els. (e)(g), of"· 2, 3~.Central Excises Rules, ,1944, r. 2(ii)(A)(i). .

The appellant was found carrying 286 tolas of gold in running train between Kerla and P-ali stations .by th~ Sub Inspe~tor of Bar-mer District: After the go1d was seized, crir~inal prOceedings were instiNied against the 'appellant. The tri?l collrt acquitted the· ap-pellant but the High ·Court convitted him. ·The appellan~'s case in this Court .was that.·the· seizure .9£ the gold from -him had not been proved; that the Sub-Inspector was not ·a~ :CU§toms Officer for the place where the seizure was made, and so the