INDIRA SAWHNEY SAWHNEY V. V. UOI AIR 1993 SC 477 (MANDAL CASE) (9 JUDGE BENCH)
1. The case case examined examined the scope scope and extent extent of Art Art 16(4) and and upheld upheld the decision decision of the Union Union Govt to reserve reserve 27 seats in Govt. !o"s for the #$% (#ther $ac&'ard $ac&'ard %lass) provided provided that cre cream am laer laer** amon amon+ + them them are are elim elimina inate ted, d, -eser -eserva vatio tion n is conf confin ined ed to onl onl init initia iall appointments and not promotions and total reservation shall not exceed /. 2. 0o'eve 0o'everr the %ourt %ourt struc& struc& do'n another another +ovt. notifi notificat cation ion reservi reservin+ n+ 1/ +ovt. !o"s for econo economica micall ll "ac&'a "ac&'ard rd classes classes** amon+ amon+ the hi+her hi+her castes. castes. The court court held held that that caste caste "ac&'ardness is relevant "ut not economic "ac&'ardness. "ac&'ardness. . As there there is alread alread a 22 3 reserv reservati ation on for the the % and T in +ovt +ovt !o"s !o"s the decisi decision on of the tate to provide 27 reservation to the #$% is valid as cumulativel the reservation amounts to 45 3 i.e. less than / . 4. The The cour courtt also also held held that that a prov provisi ision on can "e made made under under Art Art 16(4 16(4)) " the le+isl le+islat atur uree " enactin+ a la' or " an executive order. 0o'ever the court opined that reservation " an executive executive order ma not "e invalid invalid "ut since it 'as "ein+ made for the first time in services under the Union propriet demands that it should "e laid "efore the 8arliament to la do'n a health convention. . A permane permanent nt statutor statutor "od "od "e appoint appointed ed to examin examinee the complai complaints nts of over9 over9inc inclusi lusion on and under9inclusion. 6. The The %our %ourtt also also rul ruled ed that that : Backward class of citizens in article 16(4) “can” be identified on the basis of Caste and not only on economic basis. The 'ord class* as used in the Art
16(4) is in sense of a social class and is not antithesis to caste*. The term class* +uarantees protection to all communities +roups classes or section found to "e "ac&'ard. ;n ;ndia caste can often "e considered as a social class* and if it is "ac&'ard sociall it is protected under Art 16(4). 0o'ever caste alone cant "e the criteria to determine "ac&'ardness. There are several classes amon+ non90indus %hristians
Thomas case. Article 16(4) is exhaustive of the su"!ect of reservation in favour of "ac&'ard classes. $ut reservation can "e made for other classes under Article 16(1). Art. 16(1) permits ma&in+ of reservation of appointment=posts onl in exceptional situations and 'herein the tate is called upon to do so in pu"lic interest (e.+. reservation for 'ard of militar personnel political sufferers or an other class except for "ac&'ard class. Backward classes in Art 16(4) are not similar to #$ocially and %d"cationally Backward Classes& in Art 1'(4). Article 16(4) is much wider
and takes in SC/ST and OBCs including SBC! Thus certain classes mi+ht not >ualif for reservation under Art 1(4) "ut mi+ht >ualif for the protection of Article 16(4).
uired under Article 1(4). ($ala!i overruled) Creamy layer (socially adanced !erson) m"st be ecl"ded from Backward classes. ?or determinin+ cream laer economic criteria can "e
adopted (income limit) as a measure of social advancement. The +ovt. should revie' the criteria and if a class reaches a state of pro+ress 'here no reservation is necessar that class should "e deleted. Article 16(4) !ermits classification of backward classes into #backward& and #more backward& class. This step 'ill ensure that advanced sections of
"ac&'ard classes mi+ht not ta&e all the "enefits of reservation. ($ala!i #verruled). Backward class of citizen cannot be identified only and ecl"siely with reference to economic criteria as the o"!ective of Art 16(4) is not to eradicate
povert. Therefore social economic and educational "ac&'ardness ma "e ta&en into account. @conomic "ac&'ardness ma +ive !urisdiction to to tate to reserve provided it is a"le to ascertain the inade>uate representation of the class in >uestion. 8overt alone cannot "e the "asis of classification. eseration not to eceed '*+. This rule is to applied ever ear. uirement of / limit is not related to Total stren+th of the class in
>uestion in the relevant sphere. (Affirmed $ala!i and overruled Thomas case). The court further held that Art 16(4) spea&s of ade>uate representation and not the proportionate representation. Therefore the ade>uac is not to "e determined on the "asis of overall numerical stren+th of the $ac&'ard class in the service "ut instead their representation at di""erent le#els of administration and in different +rades has to "e ta&en into account. ual and "ou+ht into one class then conferrin+ an further "enefit 'ould amount to treatin+ e>uals as une>ual and ma lead to resentment 'hich can further affect the efficienc in administration. Art 16(4) is to "e read alon+ 'ith art .
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;ndira a'hne ;; v. U#; (A;- 2/// % 45) This case involves the tate of Berela 'hich devised a mechanism to circumvent the re>uirement of excludin+ cream laer as +iven out in the initial ;ndira a'hne case !ud+ement. The state had passd an Act called The Berela tate $ac&'ard %lasses (-eservation of appointments or posts in ervices) Act 155 'hich laid do'n that as there 'ere no sociall advanced cate+ories in an "ac&'ard classes in the tate everone 'as entitled to reservation under Article 16(4). Thus the Act had "ecome a tool enforcin+ the vested interests of those "elon+in+ to %ream Caer. The tate +ovt. never conducted an exercise to identif cream laer in the tate. Therefore 'hen the matter 'as presented "efore the Apex court it directed the Berela 0i+h %ourt to setup a committee under the chairmanship of retired 0i+h court !ud+e to identif the cream laer in the tate.
The supreme %ourt held that the la' 'as discriminator and 'as in defiance of -ule of Ca' a "asic structure of the %onstitution. The act 'as pronounced violative of Art 14 16(1) and 16(4) and therefore unconstitutional. DDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDD.. 8#T
4 ma!or amendments 'ere made to the %onstitution so a s to su"vert the rulin+ of the
case. th 77 Am!"m!t A#t$199%: The amendment sou+ht to remove the difficult created " the
tate to provide reservations in promotions in +ovt. !o"s in favour of %=T classes 'hich in the opinion of the tate are not ade>uatel represented in the ervices under state. 'n Ash$k umar upta #! State $" *!+! (1,,-) the court held that -i+ht to promotion* is ordinaril a statutor ri+ht and not a fundamental ri+ht. $ut after this amendment the con!unctive effect of Art. 16(4A) 'hen read alon+ 'ith Art. 16(1) and 16(4) is to +uarantee a ri+ht to promotion as a fundamental ri+ht to such %=T classes 'hich are not ade>uatel represented in the services of the tate (&eepin+ in mind the efficienc of the administration). 't &1 Am!"m!t A#t$ : ;t added a new clause (4B) t$ the Article 16 'hich ended the '*+ ceilin- on reseration for $C0$ and 2BC (combined) in the backlo- acancies which co"ld not be filled d"e to non3aailability of eli-ible candidates of these classes in the !reio"s years. This ne' clause provided that unfilled vacancies are to "e treated as a
separate class and filled in successive ears and cannot "e considered to+ether 'ith vacancies of an ear in 'hich the are "ein+ filled up even if the ceilin+ of / limit (as imposed " the ualifin+ mar&s for reserved cate+ories is contrar to Art and the spirit of
unreasona"le and should "e "alanced 'ith the interests of +eneral pu"lic. 9oweer: this amendment !ermitted the relaation in ;"alifyin- marks and standard of eal"ation in both: ,ob reseration and !romotions: for $C0$ by addin- a #!roiso& cla"se in the Art <<'. &%th Am!"m!t$ 1* Amended the .clause 4A (inserted " 77amendment) of Art 16 and
su"stituted for the 'ords in matter of promotion to an class 'ith the words “in matters of !romotion with conse;"ential seniority : to any class” . ;t meant that promotion 'ill "e +iven
to % and T 'ith retrospective effect from 17 th une 155. @arlier the court had ruled in the uential seniorit. The rule of reservation +ave accelerated promotion "ut it did not +ive accelerated conse>uential seniorit. Thus the courts in earlier decisions had held that a reasona"le "alancin+ of the ri+hts of unreserved candidates and reserved candidates 'ill "e ensured " follo'in+ the #Catch "! "le& . Accordin+ to it if a senior +eneral candidate at a particular level reaches the next level "efore the reserved candidate at that next level +oes further up to next hi+her level in that case the seniorit at that next level has to "e modified " placin+ such a +eneral candidate a"ove the reserved candidate. 0o'ever the effect th amendment is that 'hen reserved candidates are promoted earlier to +eneral candidates their seniorit in the ne' cadre 'ould ran& from the date of their !oinin+ on promotion and this seniorit 'ould not "e 'iped out after the promotion of unreserved candidates from their respective dates of promotion and that the unreserved candidates 'ould remain !unior to reserved candidates. The constitutional validit of the a"ove 4 amendments 'as contended in the case:
M . NAGRAJ V. UOI$ AIR SC 7 71
1. The five !ud+e "ench unanimousl upheld the validit of the %onstitutional amendments o"servin+ that the clauses inserted 'ere onl of the nature of #enablin- !roisions& meanin+ that these provisions onl ena"le or authorise the tate to act "ut do not confer an
fundamental ri+ht on the citiIens. The court also confirmed that clause 4A onl applied to % and T. The clause 4A has "een cared #o"t of& clause 4 of Art 16 therefore clause 4A 'ill "e +overned " t'o compellin+ re>uirements of Article 16(4) : a) "ac&'ardness and ") inade>uac of representation. Thus if these t'o reasons exist onl then can the ena"lin+ provision come into force. The state can ma&e provision for reservation onl if t he a"ove t'o circumstances exist. 2. The court also held that clause 4$ of Article 16 (treatin+ unfilled reserved vacancies as a separate class 'hich can "reach the / limit) is an ena"lin+ provision. The court also confirmed the validit of proviso clause inserted in Article in relaxin+ the >ualifin+ mar&s of the %=T candidates. . The court held that these ena"lin+ provisions cannot o"literate(violate)the constitutional re>uirements 'hich are "ac&'ardness and inade>uate representation &eepin+ in mind the overall efficienc of tate administration. These re>uirements are retained in the clauses. 4. The court held that ocial ustice is one of the "ranches of ustice and is primaril concerned 'ith distri"ution of "enefits and "urdens. The "asis of distri"ution is the area of conflict "et'een ri+hts needs and means. . ?ormal e>ualit* means that the la' treats everone e>ual. ;t therefore exists in -ule of la'. 8roportional e>ualit* means e+alitarian e>ualit and it expects the tate to ta&e affirmative action in favour disadvanta+ed sections of the societ 'ithin the frame'or& of democratic polit. Thus proportional e>ualit is e>ualit in fact* 'hereas formal e>ualit is e>ualit in la'*. 6. Foctrine of reasona"le classification is read into the concept of e>ualit under Article 14 " various court decisions. ;t +ives a discretionar po'er to le+islate in favour of certain class of people to promote e+alitarian e>ualit (" treatin+ those under similar circumstances as a class). uirements of "ac&'ardness inade>uate representation and Article ).
7. %onstitutional la' is a la' of evolvin+ concept. The device of ena"lin+ provision allo's the tate to identif such ne' and evolvin+ concepts and also provide mechanism to assimilate them in the constitution. =. he co"rt also held that Art 16(4) confers no f"ndamental ri-ht to reseration b"t is merely an enablin- !roision itself. hese !roisions em!ower the $tate to identify and reco-nize the com!ellin- interest. 7f the state has ;"antifiable data to show backwardness and inade;"acy of re!resentation then the $tate (kee!in- in mind limit of Art <<')has a discretion to !roide for reseration. Therefore to sa that Art 16(4A) and (4$) flo' from
or have "een carved out of Article 16(4) is to necessaril impl that clause 4A and 4$ are also of ena"lin+ nature li&e article 16(4). h"s: as lon- as the !arameters of article 16(4) (backwardness> inade;"acy > efficiency in administration) are retained in the enablin- !roision as #controllin- factors& the courts cannot declare the ena"lin+ provisions as invalid. 8. The court also ruled that principle of su" classification as provided in clause 4A of article 16
is valid as it is inspired " the ;ndiara sa'hne !ud+ement in 'hich the court has o"served that in order to avoid lumpin+ of #$% % and T 'hich 'ould ma&e #$% ta&e a'a all the vacancies leavin+ % and T hi+h and dr. Therefore the tate is entitled to cate+oriIe and su" classif the % and T on one hand and #$% on the other. 1*. he co"rt also o!ined that the “catch "! “r"le is not a conce!t im!licit in Art 16(1) to Art 16(4). The concepts of catch up rule* or conse>uential seniorit* are not constitutional
re>uirements or limitations. The are !udiciall evolved concepts to control the extent of reservation derived from service !urisprudence. The do not form a part of "asic structure of the constitution so as to "e "eond the amendin+ po'er of 8arliament. ;t cannot "e said that inclusion of conse>uential seniorit* has led to a"ro+ation of mandate of Art 16(4).
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