SOCIAL JUSTICE AND Reservation IN GOVERNMENT

JOBS

SUBMITTED TO

Mr. SANJEEV KUMAR CHOUDHARY

ASSISTANT PROFESSOR OF LAW

ADITYA SUBBA BASAWA PRASAD KUNALE

12A011 12A032

SEMESTER VIII, 4TH YEAR SEMESTER VIII, 4TH YEAR

adityas12@gnlu.ac.in basawap12@gnlu.ac.in

1
 ACKNOWLEDGMENT

It is a great opportunity for us to write a paper on Reservation in jobs. At the time of preparing
this term paper we have gone through different books and websites which helped us to get
acquainted with new topics. We are actually focusing on those topics which are important for us
to understand the importance of reservation in jobs.

We acknowledge with gratitude to Assistant Professor of Law, Mr. Sanjeev Kumar Choudhary,
our respective professor, who has always been sincere and helpful in making me understand the
importance of service law.

Apart from us this term paper will certainly be of immense importance for those who are
interested to know about the problems in reservation of jobs. We hope they will find it
comprehensible.

We have tried hard and soul to gather all relevant documents regarding this subject. We don’t
know how far we were able to do that. Furthermore we don’t claim all the information in this
term paper is included perfectly. There may be shortcoming, factual error, mistaken opinion
which are all mine and we alone are responsible for those but we will try to give a better volume
in future.

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 CONTENTS

Page no.
I. Introduction……………………………………………………….………….04

II. Mandal Debate…………………………………………………..……..…….05

A. Equality as a Social Goal and Quotas
B. Social Justice and Merit
C. Under Representation, Social Justice and Democracy

III. Classification of Backward Classes……………………………………….....09

IV. Principles Governing Reservation…………………………………….……..14

V. Conclusion…………………………………………………………………….18

VI. Bibliography………………………………………………………...……..….19

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 SOCIAL JUSTICE AND Reservation IN GOVERNMENT
JOBS

I.INTRODUCTION

The 1990 Mandal debate heralded a new phase in the career of preferential treatment in India.
National quotas in government employment, hitherto limited to the Scheduled Castes and
Scheduled Tribes, were extended for the first time to the larger, more amorphous category of
Other Backward Classes’1. Quotas have since steadily expanded, notably in higher
educational institutions for the OBCs. Like the Shah Bano case, the 1990 Mandal debate also
represented a political watershed: lower caste based political parties would henceforth be a
significant force in Indian politics.

According to my argument, major policy and political change should be accompanied by

shifts in the legitimating vocabulary. What were the discursive changes associated with the
expansion of preferential treatment to the OBCs. Usually, the 1990s are characterized in
terms of the resurgence of identity politics and the retreat of the liberal democratic values of
post-Independence elites. Nevertheless, underneath the rhetoric of a ‘share of state power’ for
the different groups, the shift in the normative basis of group preference inaugurated by the
Constitution makers towards ameliorating disadvantage rather than maintaining distinctness,
survived.

The underlying theory for the provision of reservation by the state is the under-representation
of the identifiable groups as a legacy of the Indian caste system. After India gained
independence, the Constitution of India listed some erstwhile groups as Scheduled Castes
(SC) and Scheduled Tribes (ST). The framers of the Constitution believed that, due to the
caste system, SCs and the STs were historically oppressed and denied respect and equal
opportunity in Indian society and were thus under-represented in nation-building activities.

After introducing the provision for reservation once, it got related to vote bank politics and
the following governments and the Indian Parliament routinely extended this period, without
any free and fair revisions. Later, reservations were introduced for other sections as well.
1
The 1990 Mandal debate was not the first instance of expansion of employment quotas in independent India.
Quotas had been granted to groups designated as backward in most Indian States.

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The Supreme Court ruling that reservations cannot exceed 50% (which it judged would
violate equal access guaranteed by the Constitution) has put a cap on reservations. The
central government of India reserves 27% of higher education, and individual states may
legislate further reservations. Reservation in most states is at 50%, but certain Indian states
like Rajasthan have proposed a 68% reservation that includes a 14% reservation for forward
castes in services and education.

II.MANDAL DEBATE

Equality as a Social Goal and Quotas

The desired goal of giving quotas was for the society to be democratic and just, and where the
equal worth of all citizens was affirmed, and the distribution of power was more equal.
Further, the mechanism whereby quotas were thought to facilitate this goal was not so much
through improving the socio economic conditions of beneficiaries, but by giving them
political power. Thus, the empowerment of the disadvantaged was both a part of how the goal
of equality was defined, as well as the favoured means for its realization. The key to the
removal of injustice was placing the oppressed – the lower castes, the poor in positions of
political power. Quotas no longer can be seen as only one means among others, and
ineffectual in themselves, for ameliorating the vast socio economic disparities in society.

Precisely how the transfer of political power would bring about social transformation was not
specified. It appeared to offer, at one stroke, symbolic benefits of respect and agency as well
as enhanced employment and educational opportunities. What was clear was that political
power for the privileged was envisaged as the main agency and motor for the creation of a
just society, and was advocated as the solution for all injustices in society. Oppression the
deprivation of political power was seen as the means through which all forms of injustice
social denigration and economic exploitation alike operated.

The key to the removal of injustice was placing the oppressed, the lower castes, and the poor
in positions of political power. Quotas were no longer seen as only one means among others,
and ineffectual in themselves, for ameliorating the vast socio economic disparities in society.
Rather, quotas became the pre eminent instrument of social justice, because political power
for the backward was now central both to how the desired goal of a just society was denied as
well as the process through which it was to be brought about. By affording representation to
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the marginalised sections in a key decision making institution quotas were already
accomplishing a large part of their purpose.

Social Justice and Merit

Preferential treatment is commonly thought to conflict with the principle of merit, namely
that jobs be assigned to the best qualifies individual. Arguments for why jobs should be
allocated on merit broadly divide into two categories: individual justice arguments, which
claim that the best qualifies applicant deserves the job,2 and utilitarian arguments, which hold
that considerations of utility, in terms of the efficient performance of institutions, for instance
demand that the best qualified person be hired.3

Requirements for bureaucratic positions were redefined in line with preferred social
outcomes, such as making the administration more responsive or better informed about the
needs of disadvantaged groups. Once job requirements were recast in these ways,
membership of a disadvantaged group could become a relevant qualification for positions in
the bureaucracy. Members of such groups could be seen as better qualified for these jobs than
non members, because they served the social function of the job better, and quotas for
‘backward classes’ would no longer compromise merit, but enable the identification and
hiring of the best qualified individuals for the job. The Prime Minister V.P Singh argued
during the Mandal debate that: “But the basic lacuna in the education system which gets
reflected in the administrative system is, what about the social merit of a person? Not how
much knowledgeable he is, but how he relates to the other human beings...what is the
criticism about the administration or bureaucracy today? Not that it is not knowledgeable or
that it is mediocre but that it does not care, A mother is a mother, not because she is an
intellectual but because she cares, and that is what people look for, in the administration.

The social function of the bureaucracy was often defined expansively to include ‘every
consideration of social justice which could be used in favour of hiring members of
disadvantaged groups obscuring the potential conflict between merit and preferential
treatment. A second common merit argument in support of quotas in discourse relied on
considerations of deserving candidates. ‘Merit’ which was measure by performance in

2
See, for instance, Miller 1999. Several theorists disagree with the view that justice demands that jobs be
allocated by merit, because for instance, they reflect the idea of desert.
3
See Rosenfeld 1991:98

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standard tests, it was argues, was the product of favourable educational and socio economic
circumstances.4

Standard merit tests were not a good measure of the abilities or the efforts of these
candidates: they over represented the potential of candidates from privileged backgrounds
and under represented the potential of members of backward classes. Quotas sought to
compensate for inequalities in performance that were the product of unfair social
circumstances, rather than differences in ability. This argument did not contest the notion that
jobs ought to be awarded to those who deserved them on account of their abilities and efforts.
Rather, it was argued that gifted individuals from lower caste backgrounds had historically
been prevented from realizing positions commensurate with their talents.

Under Representation, Social Justice and Democracy

I want to contrast two conceptions of social justice in the Mandal debate, one that focused on
status inequalities and another that emphasized economic inequalities. My characterization of
social equality arguments as a type of social justice claim however can be challenged.
Theorists of group rights in India have contended that quotas have been advocated in recent
times simply as a means of rectifying inequalities in group representation, that group equality
has been interpreted in ways that have little to do with concern for disadvantage5.

In the arguments of proponents of OBC quotas, justice was implicitly identified with a
group’s representation in an arena being roughly proportionate to its share of the population.
It might be recalled that due representation for significant social groups had been a
recognized principle for the allocation of positions in the colonial regime of minority
safeguards but had been rejected as a basis for special treatment by the Constitution makers.
Did the Mandal debate represent a resurrection of this older rationale for reservation as a
means of adjusting the inter communal balance of power, and thereby a break from the
constitutional recasting of preferential treatment.

Nearly every political speech advocating quotas for a group cited it’s under representation in
the bureaucracy in support of its case. The statistics cited referred to the representation of

4
In public debates on reservations in India and elsewhere, merit is usually equated with success in competitive
examinations. For a critique, see, for instance, Galanter 1984:555; Satish Deshpande 2006: 2443
5
Mahajan 1998:121,152-4

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group members as a percentage of the total number of administrative positions, or of
positions at a particular level of the administration, in proportion to the demographic weight
of the group, and relative to other groups, most notably the upper castes. The central
normative claim here was that the under representation of the group in the administration
constituted an injustice.

Eighty five per cent population of India live in villages but their representation in Indian
Administrative Service is only 27 per cent. Fifteen per cent population of India live in urban
areas but their representation is 72 per cent. Now while the under representation of certain
categories of people is often so stark that its injustice seems beyond question6, the general
claim that disproportional group presence in the administration represents an injustice can
easily be challenged.7First, a group might be under represented in the bureaucracy because
the population in the group that has the education and skills for bureaucratic jobs is low
compared to groups that are better represented in the bureaucracy. Under representation here
would result even in the absence of direct discrimination against the group. Second, the belief
that a group’s representation in the bureaucracy must approximate its demographic
percentage seems to assume that people equally desire bureaucratic jobs.

Members of different social groups however may differ in their disposition to seek
bureaucratic jobs, because all cultures do not place an equal value on such jobs. In such a
situation, disproportions in group presence in the bureaucracy might reflect differences in
preferences in preferences between social groups, rather than injustice.8 Third, it might be
argues that as the bureaucracy comprises mainly middle class jobs, the social composition of
the bureaucracy is going to mirror the demographic profile only if all major social
stratification system9, If this does not obtain, disproportional group representation in the
bureaucracy would occur even in the absence of any discrimination against members of the
group.

Each of these objections, however, can be countered from a standpoint of social justice. First,
the lack of a pool of qualified candidates from a group, as well as the unequal distribution of
groups along the stratification system, could indicate the absence of fair equality of
opportunity in education and employment. Fair equality of opportunity requires, in Rawls

6
Philips 1995: 21
7
This discussion draws Rosenbloom 1977; Philips 1995; Gutmann and Thompson 1996
8
For the Argument along these lines, see Barry 2001:90
9
Rosenbloom 1977: 38

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well known formulation, in all parts of society there are to be roughly the same prospects of
culture and achievement for those similarly motivated and endowed. On this, more
demanding version of equality of opportunity the under representation of a group in the
bureaucracy could constitute evidence of injustice even in the absence of direct
discrimination, for it would suggest that there are inequalities in opportunities for education
and training along group lines. Second, there is the issue of adaptive preferences as Sunstein
notes; people adapt their preferences to excessive limitations in opportunities or unjust
background conditions.

III.CLASSIFICATION OF BACKWARD CLASSES

It is open to the State to classify and declare as to the classes of citizens who belong to the
‘backward classes’. The backwardness for such classification must be social and educational
and not wither social or educational. In dealing with the question as to whether any class of
citizens is socially backward or not, it may not be irrelevant to consider the caste of the said
group of the citizens. While classification cannot be made on the ground of caste only, there
is nothing wrong in classification of a group of persons belonging to a particular caste as
backward if they were are as a class socially and educationally backward. Hence, in
determining whether a class of citizens is backward, caste is not irrelevant, but cannot be sole
or dominant ground.

Social backwardness is in the ultimate analysis the result of poverty to a very large extent.
The classes of citizens who are deplorably poor automatically become socially backward.
The occupation of citizens may also contribute to make classes of citizens socially backward.
The problem of determining, who belongs to socially backward class undoubtedly very
complex are. Sociologically and economic considerations come into play in solving the
problem and evolving proper criteria for determining which classes are socially backward.
This is obviously a very difficult task to be performed by the State which purports to act
under Article 15(4). If the tests applied by the State in determining the backward classes are
improper and invalid, then the classification will be inconsistent with the requirement of
article 15(4).10

10
M.R.Balaji v. State of Mysore AIR 1963 SC 649

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In State of A.P v. U.S.V. Balaram11 before the Supreme Court, the issue was regarding the
backward classification made by the State Government on the basis of the recommendations
made by a high powered commission appointed by it which collected the relevant materials
and submitted its report. The Hon’ble Court held that the classification cannot be held to be
invalid on the ground that some of the castes are declared as backward classes. It was
observed that, if an entire caste is a matter of fact found to be socially and educationally its
inclusion in the list of backward class by its caste name is not violative of article 15(4). The
determination of educational average of the caste based on the student pollution in the last
three high school classes and only castes whose average is below the State average to
determine the backwardness is, the Court held, is not arbitrary and valid. The broad principles
laid down by the Supreme Court in Balaji were no basis for holding that the classification of
backward class cannot be made on the basis of educational average in the high school classes.

The issue of classification on occupation-cum-income basis arose in Vishwanath v. Chief

Secretary12. The Court held that where the state makes a classification on the basis of income
and occupation test and declares that families of persons who pursue specified occupations
such as 1) actual cultivation 2) artisan 3) petty business 4) employment in inferior services
and 5) any other occupation involving manual labour and having an annual income of Rs.
1,200 which is below the average income of a family in the state, belong to the category of
educationally and socially backward classes, such a classification is valid. It was observed
that it is the state that has to determine who the socially and educationally backward class of
citizens are.

The Court also observed that the decision of the state should always be open for judicial
review. The Court finally observed that there is always a presumption that the state has acted
in the interest of the society. Unless a person challenging such reservation is able to
demonstrate that the order of the state is ultra vires or a fraud on the Constitution,
classification of backward class made by the state govt. on the basis of occupation and
income cannot be held invalid.13

The Hon’ble Supreme Court in Janaki Prasad Parimoo Case14 observed that the
classification made by the state must be proper and should not be vague and defective. The

11
State of A.P v. U.S.V. Balaram AIR 1972 SC 1375
12
Vishwanath v. Chief Secretary, 1963 (2) Mys LJ 302
13
Chitralekha v State of Mysore, AIR 1964 SC 1823
14
Janaki Prasad Parimoo v. State of J.K, AIR 1973 SC 930

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Court observed that Article 15 (4) speaks about socially and educationally backward classes
of citizens, while article 16 (4) speaks only of backward class citizens. The expression
‘backward class of citizens’ in article 16 (4) means the same this as expression “socially and
educationally class of citizens” in article 15(4). In order to qualify for being called a
backward class citizen, one must be a member of a socially and educationally backward class.
It is social and educational backwardness of a class which is material for the purpose of both
articles 15(4) and article 16(4).

In another case the Supreme Court held that poverty cannot be the sole test to determine the
backward class. The Court observed that it is not merely the educational backwardness or the
social backwardness which makes a class of citizens backward. The class identified as a
class, namely, a homogeneous section of the people grouped together because of certain
likeness or common traits and who are identified by some common attributes such as status,
rank occupation, residence in a locality, race, religion and the like, must be both
educationally and socially backwardness, an untenable situation may arise as such a
classification will include even sections of the people who are recognised as socially and
educationally advanced. The Court observed that in the country, except for a small
percentage of the population the people are generally poor, some being poorer and others less
poor.

Therefore, when a social investigator tries to identify socially and educationally backward
classes, his chief concern should be to determine whether a class or group is socially and
educationally backward. Though the two words “social” and “educational” are used
cumulatively for the purpose of describing the backwardness, one may find that if a class as a
whole is educationally advanced is generally also socially advanced because of the
reformative effect of education on that class. The Court held that the term “advanced” and
“backward” are only relative terms there being several layers or classes closely hovering
between “advanced” and “backward” classes and the difficult task is to find out which class
can be recognised out of these several layers as being socially and educationally backward.
The failure to grasp this fundamental requirement results in reservations for class can be
recognised out of several layers as being socially and educationally backward. This faluire to
understand will lead to reservations for classes which comprise both the advanced and
backward groups.

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In Arti Sapru v. State of J&K15, the Supreme Court held that the Classification of the
population residing in large number of specified villages without any intelligible data, as
educationally and socially backward class is, violative of article 14 and not saved by clause
(4) of Article 15.

The Hon’ble Court in K.C. Vasant Kumar v. State of Kerala16 considered the question of the
valid basis to be adopted for the purpose of making special provisions in favour of backward
classes under clause (4) of Article 15 and clause (4) of article 16. All the judge expressed
their opinion on this important matter, following is the decision given by the 5 Judges Bench:

The then Chief Justice of India, Chandrachud J. opined in this case that the means test, i.e. the
test of backwardness should be applied to identify the classes or castes of citizens as
belonging to backward classes and observed that the SC/ST should continue to get the
benefits of special provision without application of means test for next 15 years of the
judgment and after this 15 years, even the benefits given to the SC/ST should be based on
means test.

Sen J., observed that the classification made by the state caste oriented though the
requirement is that the policy should be economically based which alone would help the
removing of caste element in making reservation and economic backwardness is only one of
the tests to determine social and educational backwardness. The Hon’ble Judge finally held
that the State should give due importance and effect to the dual constitutional mandates of
maintenance of efficiency and equality of opportunity to all persons. The nature and extent of
reservation must be reasonable.

Desai J., opined that the social backwardness is on the ultimate analysis the result of poverty
to a very large extent. It would be better if the criterion of backwardness is decided on a
principle other than caste. The Judge observed that if the economic criterion for compulsory
discrimination or affirmative action is accepted, it would strike at the root cause of social and
educational backwardness and simultaneously take a vital step in the direction of destruction
of caste structure which in turn would advance the secular character of the nation.

Venkataramiah J., observed that the backwardness contemplated by clause (4) of Article 15
and clause 4 of Article 16 is social and educational backwardness. Therefore, the

15
Arti Sapru v. State of J&K, AIR 1981 SC 1009
16
K.C. Vasant Kumar v. State of Kerala, AIR 1985 SC 1495

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classification cannot be solely based on religion, place, sex, or caste. If caste or groups of
communities which are fairly advanced and caste and groups which are really backward
being at the rock bottom level are classified together as backward class the benefit of
reservation would invariably be eaten up by the more advanced sections and the really
deserving sections would practically go without any benefit. The Judge observed that the
economic condition is the relevant criteria, the state should incorporate “means test” for
identifying the backward classes.

Chinnappa Reddy J., observed that mere poverty is not enough to invite the constitutional
branding as backwardness for, some among them though economically poor are socially and
educationally forward. Class poverty, not individual poverty, he observed, that should be the
primary test. He finally held that the other ancillary tests should be the standard of living, the
place in the social hierarchy, the habits and customs etc., as also occupation or some other
dominant feature.

The Supreme Court finally held that it is for the State to determine the persons who are really
socially and educationally backward classes and its decision based on relevant data has to be
accepted, though judicial review is not excluded. The decision of the Court shows that caste
alone cannot be sole determinant of backwardness, but it is not an irrelevant test either and
can be taken into account alongwith certain other factors. Also, backwardness is something
which is comparable to the position of the SC/ST. Poverty is also a relevant factor to
determine backwardness.

In Indra Sawhney v. Union of India17, the majority observed that in answering the question
who constitutes backward class of citizens one has necessarily to deal with the generalities of
the situation and not with problems or issues of peripheral nature which are peculiar to a
particular state, district or region. The Court recognised that each and every situation could
not be visualised or answered and it must be left to appropriate authorities to carry out the
task of identification according to general guidelines laid down by the court.

The majority in the decision also pointed out that there was no set or recognised method nor
was there any law or statutory instrument prescribing the methodology. It finally observed
that that caste could not be a starting point in the process of identification but one could not
wind up the process of identification with castes. Besides castes, there might be other

17
Indra Sawhney v. Union of India, AIR 1993 SC 477

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communities, groups, classes, and denominations which may qualify as backward class of
citizens. Having started with castes, the authority might take up for consideration other
occupational groups, communities and classes.

In the decision of the Indira Sawhney18 case the Supreme Court approved the validity and
relevancy of the criteria adopted by the Mandal Commission. The decision of the state to
recognise or de-recognise a particular community as one of the backward classes should be
exercised for good reasons and after application of mind to all relevant factors.

In MCD v. Verma19, the Supreme Court held that merely because a given caste is specified in
one state as belonging to the same nomenclature in another state, a person belonging to that
group would be entitled to the rights, privileges and benefits admissible to the members of the
caste.

IV. PRINCIPLES GOVERNING RESERVATION

In providing for reservation of appointments or posts under clause (4) of Article 16 the state
has to take into consideration the claims of the members of the backward classes consistently
with the maintenance of the efficiency of administration. It must not be forgotten that the
efficiency of the administration is such paramount importance that it would be unwise and
impermissible to make any reservation importance that it would be unwise and impermissible
to make any reservation at the cost of efficiency of administration. That is effect of Article
335.

Reservation of appointment or posts may theoretically and conceivably mean some

impairment of efficiency; but the risk involved in sacrificing efficiency of administration
must always be determined when any state sets about making a reservation for appointments
or posts. The reservation contemplated under clause (4) of article 16 is merely to give
adequate representation to backward classes. It cannot be used for creating monopolies or for
unduly or illegitimately disturbing the legitimate interests of other employees in making
reservations in favour of the backward classes. The matter should be considered objectively
and attempts must always be made to strike a reasonable balance between the claims of the

18
Indra Sawhney v. Union of India,AIR 1993 SC 477
19
MCD v. Verma AIR 2001 SC 2475

14
backward classes and claims of others as well as the important consideration of efficiency of
administration.20

The issue, before the Supreme Court in Indra Sawhney case21, was whether article 335 had
any limiting effect on the power of reservation conferred by article 16(4). The court held that
the mandate of article 335 implied that reservation should be so operated to effect efficiency
of administration and that article 16 should read subject to the qualification engrafted in
article 335 i.e. consistency with the maintenance of efficiency of administration. In dealing
with these arguments the majority framed an issue as to whether reservation were anti-
meritorian but skirted it by not giving and direct answer to it.

The Supreme Court in T. Devadasan Case22, held that the article 16 (4) was an exception to
article 16(1) which led to a severe setback from the majority decision in N.M.Thomas23 case
which held that article 16 (4) was not an exception to article 16(1) but tht was merely an
emphatic way of stating a principle implicit in article 16(1). The view taken in N.M. Thaoms
case has been accepted and upheld in the Indra Sawhney Judgemnt. The Court had held in the
N.M. Thomas case that the object of 16 (4) was ‘empowerment’ of the backward class. The
idea was to enable them to share the state power.

However, it is not obligatory on the State to make reservations in respect of all classes of
empowerment. In C.A. Rajendran v. UOI24 it was argued before the Supreme Court that there
was discrimination as between classes I and II on the one hand and classes III and classes IV
of the Railway Board Secretariat Service, on the other, since reservation had been made in
the case of the former only. The railway board justified the differential treatment on the
ground that classess I and II posts called for a higher degree of efficiency and responsibility
and therefore reservation was considered harmful as far as these classes were concerned. The
court held that in view of the requirement of efficiency in the higher echelons of service it
was obvious that the classification made in the order was reasonable.

However, in Govt. of AP v. Bala Musalaih25, the Supreme Court held that article 16 (4) is not
charter of arbitrary protectionism and therefore a rule which provided for prohibiting
termination of reserved category candidate was held to be unenforceable in as much as ot

20
General Manager, Southern Railways v. Rangachari, (1962) 2 SCR 586
21
Indra Sawhney v. U.O.I, AIR 1993 SC 477
22
T. Devadasan v. U.OI, AIR 1964 SC 179 at 187
23
State of Kerala v. N.M.Thomas, AIR 1976 SC 490
24
C.A. Rajendran v. UOI, AIR 1968 SC 507
25
AP v. Bala Musalaih, (1995) 1 SCC 184

15
required retrenchment even of approval probationers of general category before even
temporary incumbents belonging to SC/ST could be retrenched.

The equality of opportunity guaranteed by article 16 (1) is to each individual citizen of the
country while article 16 (4) contemplates special provision being made in favour of the
socially disadvantaged classes. Both must be balanced against each other. Neither should be
allowed to eclipse the other. Accordingly the rule of 50% reservation in a year should be
taken as a unit and not the entire strength of the cadre, service or the unit, as the case may be.

According to Art,16(4) of the Constitution, “Nothing in this Article shall prevent the State
from making any provision for the reservation of appointments 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 this State”. This is to provide socio-economic equality to the
disadvantaged. The expression ‘backward class of citizens’ contained in Art. 16(4) would
take Scheduled Castes and Scheduled Tribes within its purview. “The claims of the members
of the Scheduled Castes and the Scheduled Tribes should be taken into consideration,
consistently with the maintenance of efficiency of administration, in making of appointment
to services and posts in connection with the affairs of the Union or of a State”. In Balaji
case26, it has been observed that Art. 16(4) apply only if two conditions are satisfied: (i) class
of citizens is backward i.e., socially and educationally; and (ii) the said class is not adequately
represented in the services of the State and the second test alone cannot be the sole criteria.

In Janki Prasad case27, the Supreme Court has observed that mere educational backwardness
or the social backwardness does not by itself make a class of citizens backward. In order to be
identifies as belonging to such a class one must be both educationally and socially backward.
The scope of Art, 16(4) was considered by the Supreme Court in Devadasan case28. In this
case ‘carry forward rule’ framed by the Government to regulate appointment of persons of
backward class in Government service was involved. The Court struck down the carry
forward rules as unconstitutional on the ground that the power vested in the Government
cannot be so exercised as to deny reasonable equality of opportunity in matters of
appointment for members of classes other than backward.

26
Balaji v. State of Mysore AIR 1963 SC 649
27
Janki Prasad v. State of Jammu and Kashmir AIR 1973 SC 930
28
Devadasan v. Union of India AIR 1964 SC 179

16
Undoubtedly Art, 16(4) is an enabling provision and confers a discretionary power on the
State to make reservation of appointment in favour of backward class of citizens which in its
opinion is not adequately represented but it is not itself a fundamental right. In C.A.
Rajendran case29, it has been held that it is open to State to withdraw the benefits conferred
on Scheduled Castes and Scheduled Tribes and they have no remedy in the Courts. In K.C
Vasanth Kumar case,30 the Supreme Court has suggested that the reservations in favour of
backward classes must be based on means test. It has been further suggested that the policy of
reservations should be reviewed for every five years or so as if a class has reached upto that
level where it does not need reservation, its name should be deleted from the list of backward
classes.

In General Manager, Southern Railway case31 it has been observed that Art, 16(4) must be
construed on the basis that both ‘appointments’ and posts to which its operative clause refers
are appointments and posts in the services under the State. The power of reservation which is
conferred on the State under Art 16(4) can be exercised by the State not only by providing for
reservation of appointment but also by providing for reservation of selection posts. This
provision empowers the State to reserve selection posts for direct promotion. Thus the
Supreme Court upheld as constitutional a circular issued by the Railway Board reserving a
quota of the selection posts to be filled by promotion for candidates belonging to the
Scheduled Casts and the Scheduled Tribes. It has been held that while Art. 16 (4) is
apparently without any limitation upon the power of reservation conferred by it, it has to be
read together with Art 335 which enjoins that in taking into consideration the claims of the
members of the Scheduled Castes and Scheduled Tribes in the making of appointments in
connection with the affairs of the Union or a State, the policy of the State should be
consistent with the maintenance of efficiency of administration.

To qualify as backward class of citizen in the context of Art 16 (4), one must be member of a
socially and educationally backward class of citizen. Hence there can be no reservation in
favour of citizens who are backward. In Triloki Nath v. State of J&K,32 the Supreme Court
disapproved the reservation in favour of castes or communities like backward Hindus,
Muslims, and Christians. Thus the expression ‘backward class’ used in Art 16(4) cannot be
accepted to means ‘backward castes’ or ‘backward community.’ A backward class of citizen

29
C.A. Rajendran v. Union of India AIR 1978 SC 507
30
K.C Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495
31
General Manager, Southern Railway v. Rangachari AIR 1962 SC 36
32
Triloki Nath v. State of J&K AIR 1969 SC1

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in the context of Art 16(4), means ‘a member of a socially and educationally backward of
class of citizens’.

V. CONCLUSION

The safeguards against exclusion and discrimination in the forms of legal measures and
affirmative action’s cover public employment, public education and legislative seats and also
other government amenities like public housing, etc. However, affirmative action policy in
India is confined to the government sector only and the vast private sector is excluded from
its jurisdiction. The Government has used some sort of an informal affirmative action policy
in the private sector. Over time, there has been considerable improvement in the share of
SC/ST reservation and representation in government employment and educational
institutions. The reservation in legislative bodies has also ensured the SC/ STs some space in
the executive and decision making process. The impact of formal reservation policy in
government sector and informal affirmative action policy in private sector has led to some
improvement in the human development of SC/STs.

The reservations system would benefit markedly from an administrative face-lift. As

recommended by the Commission for Scheduled Castes and Scheduled Tribes, a
comprehensive act, articulating the policy, is needed. The revision and streamlining of
procedures, such as SC certification, might help curb abuse. In addition, social programs such
as those directed at improving the education system, especially at the primary level and in
rural areas, should be given more emphasis. Reform will depend heavily on the political will
of government leaders and dominant political parties as well as the ability of the groups to
mobilize successfully.

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V. BIBLIOGRAPHY

Books

 Susan Bayly, Caste, Society and Politics in India. Cambridge: Cambridge University

Press, 1999.

 The Constitution of India: . New Delhi: Taxmann, 2000.

 Rama. Jois, Services under the State, Indian Law Institute, New Delhi

 Gautam, D.N., ed. Fifty Years of Indian Constitution. New Delhi: Manak

Publications, 2001.

 Kumar, Dharma. “The Affirmative Action Debate in India.” Asian Survey 32 (1992):

290- 302.

Cases

 Chitralekha v State of Mysore, AIR 1964 SC 1823

 T. Devadasan v. U.OI, AIR 1964 SC 179 at 187

 Indra Sawhney v. U.O.I, AIR 1993 SC 477

 General Manager, Southern Railways v. Rangachari, (1962) 2 SCR 586

 MCD v. Verma AIR 2001 SC 2475

 State of A.P v. U.S.V. Balaram AIR 1972 SC 1375

 Vishwanath v. Chief Secretary, 1963 (2) Mys LJ 302

 Chitralekha v State of Mysore, AIR 1964 SC 1823

 Janaki Prasad Parimoo v. State of J.K, AIR 1973 SC 930

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