AKHIL BHARATIYA SOSHIT KARAMCHARI SANGH (RAILWAY) REPRESENTED BY ITS ASSISTANT GENERAL SECRETARY ON BEHALF OF THE ASSOCIATION v. UNION OF INDIA AND ORS (2)

Citation: [1981] 2 S.C.R. 185

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK, O. CHINNAPPA REDDY

Case summary

We must therefore confine the forensic focus to the specific issue of profound import projected by the aggrieved petitioners whose chief attack is against being passed over, seniority and superior merit notwithstanding, in favour of alleged neophites or nit- 11'.

Judgment text

AKHJL BHARATIYA SOSHIT KARAMCHARI SANGH (RAIL- WAY) REPRESENTED BY ITS ASSISTANT GENERAL SECRETARY ON BEHALF OF THE ASSOCIATION v. UNION OF INDIA AND ORS. November 14, 1980 [V. R. KRISHNA IYER, R. S. PATHAK AND 0. CHINNAPPA REDDY, JJ. J Cvnstztution of India, 1950-Arts. 16, 46 and 335-Scope of-Reseri. ·ation of posts under the St11te in favour of Scheduled Castes and Scheduled Tribts- Car1y fonvard of unfilled posts for three years-validity of-- Jn so far as the initial recruitment and later promotion to classes II, III and IV are concerned, the Railway Administration provided for reservation of certain percentage of vacancies for candidates belonging ito the Scheduled Castes and Scheduled Tribes. Since, despite the special provision the intake of these comrnunities into the Railway Services continued to be negligible further concessiom and relaxations were offered from time to time to members belonging to the Scheduled Castes and Scheduled Tribes. Even So, in ma.

ny cases the vacancies reserved for them remained unfilled. Yet another step taken by 'he Railway Administrotion to lteep open the reserved vacancies was to adopt policy of "carry forward" of, the unfilled reserved vacancies for at least three years. Jn obedience to the policy decisi0n of the Ministry of Home Affairs, the Railway Board issued certain directives designed to protect and promote the interest of members of the Scheduled Castes and Scheduled rfribes in the matter of their employment in the· Railway Administration. The policy directive· of reserving certain percentage of posts in favour of these communities having not proved effective, the Railway Board altered the rules "with a view to securing increased representation of Scheduled Castes and Scheduled Tribes in the Rail\vay Services" (Annexure D).

The Railway Board authorised the recruiting bodies to slur over low places obtained by Scheduled Castes and Scheduled Tribes candidates except where it was fotlnd that the minimum standard ~necessary for the maintenance of efficiency 1of the administration has not been ,- reached. The appointing authorities were directed to give additional training and coaching to the recruits so that they might come up to the standard of ot~1er recruits appointed alongwith them. Likewise where direct recruitment, otherwise than by examination, was provided for, the Railway Board directed the selection of Scheduled Castes and Scheduled Tribes candidates fulfilling a lower standard of suitability than from other communities, so Jong as the canc. Tidates had the prescribed minimum educational and technical qualifiootion111 and the appointing authorities were satisfied that the lowering of standard5 would not unduly affect the maintenance of efficiency of administmtion.

ln the case of selection posts the Railway Board decided that promotions from class IV to class ID and from class Ill to class II were of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recmitment. This reser- A. vation was confined to 'selection posts'. In regard to filling of "general posts" in class Ill it was stated that they were in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable ta din~... :t recruitment should be applied. (Annexure F). In 1969 the Railway Beard further revised their policy in regard to the rescr,,:arion and other concessions to the Scheduled Castes and Scheduled Tribes candidates in posts filled by promotion (Annexure H).

The circular statt:d tbnt in promotion by selection from class III to class II, if a member of the Scheduled Castes and Scheduled Tribes was within the zone of eligibility the employee would be given one grading higher than the grading otherwise assignable to him on the basis of his record of service. Jn April, 1970 the percentage of vacancies to be reserved for Scheduled ~-- Castes and Scheduled Tribes was raised from 12-! -% and 5% to 15% and 11 7to/o reipectively (Annexure I). By the same order the carry forward" rule \. Vas altered from 2 to 3 years. In 1973 the Railway Board issued a directive stating that the quota of 15% and 7! % for Scheduled Castes and Scheduled Tribes may be provided in prori. 1otion to the categories and posts in classes I, II, III and rv filled on the basis of the seniority:cum-suitability provided the element of direct recntitment to those grades does not exceed 50% (Annexure K).

In Au,iust, 1974 the Rail11;'RY Board further directed that if the requisite nan1ber of Scheduled Castes and Scheduled Tribes candidates were not available for being: placed on the panel in spite of the various relaxations the best among thetn i. e. those who secure highest marks should be earmarked for being placed on the panel to the extent vacancies had been reserved in their favour. The Scheduled C«stes and Scheduled Tribes candidates so earmarked might be promoted ad hoc for a period of six months against the vacanci~s reserved for them. During the period of six months the administration was asked to give them all facilities for improving their knowledge and for coming upto the requisite standard. This procedure \Vas required to be applied in cases of promotion to the posts filled on the· basis of seniority-cum-suite. bility (Annexurc Nl. A further modification to the then existing rules was made by Annextue--.

'O' which stated that "restrvations in posts filled by promotion under the existing scheme would be applicable to all grades or services where the element of direct recruitment, if any, does not exceed 66 2/3% as against 50% as at present". It \. Vas contended on behalf of the petitioners the. t Scheduled Castes cannot be a favoured class in the public services because (i) they are "castes" and cannot claim preference qua castes unless specially saved by Article 16(4) which speaks of "class" and not "castes", (ii) tho. t Article 16(4) could not apply to promotional levels and (iii) efficiency of administration envisaged by Article 335 had been jeopardised by the impugned circulars which fomented frustration atnong the civil services and produced inefficiency by placing men of lower efficiency and less experience in higher posts. AKHIL BHARATIYA SOSHIT KARAMCHAR! v.

UNION 187 A preliminary objection was raised that since the first petitioner was an • unrecognised union, it was not a "person aggrieved" and so its petition was unsustainable. Dismissing the petitions [Per majority Krishna Iyer and Chinnappa Reddy, JJ, Pathak J. concurring in the result with reservation on certain questions] There is nothing Hlegal or unconstitutional in the impugned orders. [Per Krishna Iyer, J] The argument that since the first petitioner was an un-recognised association the petition is not sustainable must be overruled because whether the petitioners • btlonged to a recognised union or not, the fact remains that a large body of r-crsons with a common grievance exists and they approached this Court under Article 32. Our current processual jurisprudence is broad-based and peopleoriented and envisions access to justice through "class actions", "public interest litigation" and "representative proceedings". The narrow concept of cause of action and per!

on aggrieved and individual litigation is becoming obsolescent in some jurisdictions. [224 G-HJ The well settled position in law is that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily bfJCll violation of Articles 14 to 16. Therefore, in the present case if the Scheduled Castes and Scheduled Tribes stand on a substantially different footing they may be classified groupwise a. nd treated separately. [232 B-C] The fundamental right of equality of opportunity has to be read as justifying the categcrisation of Scheduled Castes and Scheduled Tribes separately for the purpose of "adequate representation'' in the services under the State. The object is constitutionally sanctioned in terms as Article 16(4) and 46 specificate. The classification is just and reasonable.

[233 G-Hl Apart from Article 16(1), Article 16(2) expressly forbids discrin1ination on the ground of caste and here the question- nrises as to whether the Scheduled Castes and Tribes are castes wit'hin the meaning of Article 16 (2). Assuming rhat there is discrimination, Article 16(2) cannot be invoked unless it is predi- 1 cate:d that the Scheduled Castes are "castes '. There are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes. They may be something less or something more and the time badge is not the fact that the members belong to a caste but the circumstance that they belong to an indescribably backward human group. [234 A-CJ . i\rticles 14 to 16 form a Code by thcm5elves and contain a con~titutional fundamental guarantee. The Directive Principles which are fundamental in the f;JVernance of the country enjoin upon the State the duty to apply that principle in making laws.

Article 46 obligates the State to promote with special care the educational and economic interests of the weaker sections of the peuple and in particular of the Scheduled Castes and the Scheduled Tribes. Article 46 read with Article 16(4) makes it clear that the exploited lot of the harijan gr~ups in the past shall be extirpated v;'ith special care by the State. [210 E; 21 J A-€1 J3·--128JSCl/80 At the s tratc gies under Article 46 should not be used to imperil administrative efficiency in the name of concessions to backward classes. The positive accent of Article 335 is that the claims of these communities to equalisation of representation in se11lices under the State shall be taken into considerarion. The neg. ative element of this Article is that measures taken by the State pursuant to the mandate of Articles 16(4), 46 and 3 3 5 shall be consistent with and not subversive of the maintenan� of efficiency of a. drninistration.

[211 D-F] Under Article 341, Scheduled · Castes become such only if the President SjJecifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. It is the socio-economic backward ness of a social bracket that is decisive and not mere birth in a caste. [212 A] Annexurc F relates only to selection posts and has been expressly upheld in ) Rt�ny,achari's case. The quantum of reservation is not excessive; the field of eligibility is not too unreasonable; the operation of the reservation is limited to selection posts and no relaxation of qualifications is written into the circu1ar c�\cept that candidates of the Scheduled Castes and Scheduled Tribes com munities should be judged in a sympathetic rrmnner. Moreover administrative efficiency is secure because there is a direction to give such staff additional training and coaching, to bring them upto the standard of others. [239 F-G] Thcr.

:: is no vice in giving one grade higher than is otherwise assignabl� t. o an cmp! oyee. based on the record of bis service rendering the promotional prospects unreasonable because this concession is confined to only 25% of the t'o��1l number of vacancies in a particular grade· or post filled in a year and there is no rampant vice of every harijan jumping over the heads of others. More in1portantly, thi:5 i5 only an administrative device of showing a concession or urtherance of prospects of selection. Even a5 under Articles 15(4) and 16(4) ! c�<>c-r marks are prescribed a:5 sufficient for these communities or extra marks ate ndded to give them an advantage, the regrading is one more method uf oc�ting the chances of selection of these communities. The prescribed mini- 1num qualification and standard of fitness are continued even for Scheduled Castes and Scheduled Tribes under Annexure H. [240 B-D] A.

nncxurc I is un-exceptionable since all that it does is to readjust the pro pcrtion of reservation in conformity with the latest census. [240 E-F] Simi1 crimination' . of helping out the weakest sections has been to blow up, out of all ~, proportion to the social realities, the' 'backwardness' syndrome so as to embrace many politically powerful castes disguised as Backward Classes. This constitutional amulet, rooted largely in ~aste, the petitioners lament, has heen misused and applied in educational and employment fields 0'11 an escalating scale. The perverted result is that a caste-riven nation is a spectre that haunts the land, pushing back the patriotic prospect of a homogenised Indian Society of casteless equality and projecting instead the divisive alternative cf a heterogeneous caste map of Bharat.

The fundamental failure of this sterile scheme of reservation-wise circumvention of the fundamental right to • equality, ideologically and pragmatically speaking, has deepened the pathological cc ndition of communalism besetting the Indian polity (I) Allied Publishers Pvt. Ltd. 1962 Edn. , p. 439. [1981] 2 S. C. R. and split the have. nots into snarling camps-a consummation disastrously contrary to the constitutional design of abolition of socioeconomic inequality through activist stratagem of equalisation geared to actual attainment of integrated equality. Logically. the argument leads to the formulation that each caste and community is bargaining politically for bigger bites of the educational-and-employment cake so much so merit becomes irrelevant or takes a back seat and 'backward' birth brings1 a boon. The constitutional stultification of an integrated India through misuse of 'reservation' power provided for in' Arts.

15 and 16 meant for the direct 'dalits', the pollution, by the political Executive, of our founding creed o~ an egalitarian order by playing casteification politics and the morbid dilution of 'hackwardness' marring the dream of a secular republic by the nightmare of a feudal vivisection of the people--if this picture drawn: by some counsel be true, even in part, the basid task of transforming the economic order through social justice will be baulked through destructive communal disputes among the masses. Maybe, this may weaken the social revolution, leave an indelible stain and incurablel wound on the body politic and justify the censure by history of the engineers of our political power and electoral processes. Hearing the arguments of the petitioners one wonders, "Is caste the largest political party T' Has protective discrimination, so necessary in an insufferably unequal society, created a Frankenstein's monster?

Have we no dynamic measures to drown social, e~onomic and educational backwardness of whole masses except the traditional selfperpetuating qnasi-apartheidisation called 'reservation'? Surely, our democratic, secular socialist republic is no wane moon but a creative power rooted in equal manhood, an egalitarian reservoir of vast human ll' potential, a demographic distribution of talent benumbed by brahman centuries of soda! injustice but now seeking human expression under new dispensat;on where 'chill penury' shall no longer 'repress their noble rage'. Caste, undoubtedly, in a deep-seated pathology to eradicate which the Constitution took care to forbid discrimination based on caste, especially in the field of education and services under the State. The rulings of this court, Interpreting the relevant Articles, have hammered home the point that it is not constitutional to base identification of backward classes on caste alone qua caste.

If a large nnmber of castes masquerade as backward classes and perpetuate that division Jn educational campuses and public offices, the whole process1 of a caste. free sodety will be reversed. We are not directly concerned '>'ith backward classes as such, hut with the provisions ameliorative of ~he AKHIL BHARATIYA SOSHIT KARAMCHARI v. UNION (Krishna Iyer, J. ) 19 5 ~cheduled Castes and the Scheduled Tribes. Nevertheless, we have! to consider seriously the social consequences of our interrretation of Art. 16 in the light of the submission of counsel that a vested interest in the caste system is being created and perpetuated by over-indulgent concessions, even at promotional levels, to the Scheduled Castes and the Scheduled Tribes, which are only a species of castes.

"Each according to his ability" is being substituted by "each according to hi$ caste", argue the writ petitioners and underscore the unrighteous march of the officials belonging to the SCs & STs over the humiliated head~ of their senior and more meritorious brothers in service. The aftermath of the caste-based operation of promotional preferences is stated to be deterioration in the over-all efficiency and frustration in the ranks'. . of members not fortunate enough to be born SCs & STs. Indeed, the 'inefficiency' bogie was so luridly presented that even the railway accidents and other operational cala~ities and managerial failures were attributed to the only villain of the . piece viz. , the policy of re9~rvation in promotions.

A constitutionally progressive policy of advantage in educational and ofljcial career based upon economic rather than social backwardness was commended before us by counsel as more in keep· i'ng with the anti-caste, pro--egalitarian tryst with our constitutional destiny. And, Shri Shanti Bhushan, at one stage, helped the court realise the consequences of its verdict if it upheld the pampering package of promotional preferences by warning us of running battles in the streets, a sort of caste-war, against birthbased 'privileges' for the harijan-girijan millions. Our Approach Of course, judicial independence has one dimension, not fully realised by some friends of freedom. Threats of mob hysteria shall not deflect the court from its true accountability to the Constitution,, its spirit and text belighted by all the sanctioned materials The other invisible sacrifice of judicial independence relevant to this case is the.

unwitting surrender ta "the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us (judges) a place. No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyaltiea. " (') We quote what the great Justice Cardozo has courageously confessed : (2) I have spoken of the forces of which judges avowedly avml to shape the form and content of their judgments. Even these forces are seldom fully in consciousnesG. They he so near the surface, however, that their existence and (1) Benjamin N. Cardozo, The Nature of the Judicial Process p. , 175. (2) Ibid p. 167, 169, 173-74. ~ ;-- ini! uence are not likely to be disclaimed. But the subjf. ct is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dis- 1 likes, t 1: predilections and the prejudices, the, complex of instincts and emotions and habits and convictions.

which make the man whether he be litigant or judge .... The great 8 tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by .... We shall never be able to flatter ourselves, in any system of juJicial interpretation, that we have eliminated altogether the personal measures of the interpreter. In the moral sciences, there is no method or procedure which entirely supplants that subjective reason. We may figure the task of the judge, if we please, as the task of a translator, the re ervices were vividly drawn at the bar by one side.

The tragic tale of die-hard decades of inequality even after Freedom, the socio-economic 'miles to go' and the constitutional 'promises to keep' (over which judges will not legally sleep) before the da/it brethren may break their chains and become at least distant neighbours to the less socially handicapped I sector, were highlighted pragmatically, statistically, hierarchically, even desperately, by the proponents of the impugned circulars (Annexures F to 0 cowred by Prayers I to X). Th~se submissious serve as poignant backgrou'nd but the decision on the vires of the Railway Board's directives will depend on constitutional interpretation applied to Indian actualities, not to idealised abstractions or theoretical possibilities. True, the politicisation of casteism its infiltration into unsuspected human territories and the ihjection of caste-consciousness in Yschools and colleges via backward class reservation are a canker in the rose of secularism.

More positive measures of levelling up by constructive strategiei; may be the developmental needs. But the judicial process while considering constitutional questions, must keep politics and administrative alternatives as out of bounds except to the exteht econo- • mics, sociology and other disciplines bear scientifically upon the proposition demanding court pronouncement. Here the sole issue, spread • out into the validity of the supposed sinful circulars (Annexures F to 0 covered by Prayers I to X) is whether Art 16, in its sweep and savings, does permit State action in favour of socially and economically II backward classes, especially the constitutionally favoured category called the SC & ST, to the point of liberal concessions slurring over 'age', 'merit' and the like, not merely at the initial entrance gate but even at the higher promotional docks.

Whether alternative policies should have been chosen by Govern· ment or would have served better to remove the handicaps of the SC & STs, whether the advantag:Js conferred on these class~ are too • generous and overly compassionate and whether the considerable num· bers of the economically destitute receive the same sympathy as social have-nots categorised as SC & ST these and other speculative maybes, are beyond the courts orbit save where Art. 16 is hit by these omis· sions and commissions. Nor is it the court's province to question the conscionableness or propriety of constitutional provisions which dis· play ultra concern for members of the SC & ST. The court functions under the Constitution, not over it, interprets the Comtitution, not amends it, implements its provisions, not dilutes it through personal philosophy projected ·as constitutional construction.

Objective tuned to constitutional wavelengths is our function and if-only if-constitutional guarantees have clearly been violated will the court declare as non est such governmental projects as go beyond the mandates of Part III read in harmony with Part IV. If, on a reasonable construction, the Administration's special provisions under Art. 16(4) exceed constitutional limits, it is the duty of the court to strike dead such project. Even so, while viewing the legal issues we must not forget what is elementary that Jaw cannot go it alone but must function as a member of the sociological ensemble of disciplines. If one out of a few reasonably tenable constructions of the constitutional provisions vis a vis the impugned executive directives may sustain the latter, the court should and would refrain from using the judicial guillotine.

There is a comity of coordinate constitutional instrumentalities geared to shared constitutional goals which persuades the judicature to sustain rather than slay, save where the breach is brazen, the transgression is plain or the effective co-existence of the~ fundamental right and the administrative scheme is illusory. Thls Court has, on former occasions, upheld executive and legislative action hovering "perilously near" but not plunging into unconstitutionality (see In re: Kerala Education Bill (1959 SCR 995 at 1064). It is • a constant guideline which we must vigilantly remember, as we have stated earlier, that our Constitution is a dynamic document with destination social revolution. It is 'not anaemic nor neutral but vigo- • rously purposeful and value-laden as they very descriptive adjectives of our Republic proclaim. Where ancient social injustice freezes the 'genial current of the soul' for whole human segments our Constitution is not non-aligned.

Activist equalisation, as a realistic strategy of AKHIL BHARATIYA SOSHIT KARAMCHARI v. UNION (Krishna Iyer, J. ) 203 producing human equality, is not legal anathema for Alts. 14 and 16. To hold otherwise is constitutional obscurantism and legal literalism, allergic to sociologically intelli_gent interpretation. The Preamble which promises justice, liberty and equality of status and opportunity within the framework of Secular, Socialist Republic • projects a holistic perspective. Art. 16 which guarantees equal opportunity for all citizens in matters of State Service inherently implies equalisation as a process towards equality but also hastens to harmonize the realistic need to jack up 'depressed' classes to overcome initial handicaps and join the national race towards progress on an equal footing and devotes Art. 16(4) for this specific purpose.

In a given situation of large social categories being submerged for long, the guarantee of equality with the rest is myth, not reality, unless it is combined with affirmative State action for equalisation geared to promotion of eventual equality. Article 16(4) is not a jarring note but auxiliary to fair fulfilment of Art. 16(1). The prescription of Art. 16(1) needs, in the living conditions of India, the concrete sanction of Art. 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstruni;:;. To bury this truth is to sloganise Art. 16(1) and sacrifice the facts of life. This is not mere harmonious statutory cdnstruction of Art. . 16(! ) and (4) but insightful perception of our constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat.

If freedom, justice and equal opportunity to unfold ohe"s own personality, belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation Art. 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under Art. 16(4) consists in the sperd with which result-oriented reservatioh withers away as, no longer a need, not in the everwidening and everlasting op~ration of - an exception [Art. 16(4)] as if it were a super-fundamental right to continue backward all the time. To lend immortality to the reservation policy is to defeat its raison de'etre; to politicise this provision for communal support and Party ends is too subvert the solemn undertaking of Art.

16(1), to costeify 'reservation' even beyond the dismal groups of backward-most people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is Bot B' class in a secular State. 14-l281SCI/80 --. ·•.. -·1e-·----,--,-. ·-·----------- ,____________ The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the m/echa, the bonded labour, the hungry, hard-working half-slave, whose liberation was integral to our Independence. To interpret the Constitution rightly we must understand the people for ~horn it is made-the finer ethos, the frustrations, the aspirations, the parameters • set by the Constitution for the principled solution of social disabilities. This synthesis of ends and means, of life's maladies and law's remedies fa a part of the know-how of constitutional interpretation if alienation from the people were not to afflict the justicing process.

(1) A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean. These broader observations are necessary to set our sights right, to appreciate that our Constitution lays the gravestone on the old unjust order and the cornerstone of the new humane order. This constitutional consciousness is basic to interpretative wisdom. We may now start with the facts of the case and spell out the particular problems demanding our consideration. Constitutional questions can'not be viewed in vacuuo but must be answered in the social milieu which gives it living meaning. After all, the world of facts enlivens the world of words. And logomachy is not law but a fatal, though fascinati'ng, futility if alienated from the facts of life. So, before pronouncing on the legality of the impugned ten orders we must sketch the social setting in which they wern issued and the socio-economic facts which clothe Art. 16(4) with flesh and blood.

'The wisest in conncil, the- ab>est in debate and the most agreeable companion in the commerce of humau life, is that man who has assimilated . to his understanding the greatest number of facts. ' (2) The facts The Indian Railways, with an impressive rec'li'd of expansion, employs colossal numbers of serva'nts in various typically hierarchical classes and grades. While the Indian Railways Act, 1890, substantially regulaD,s many of the functions of the railway administration in India, the Railway Board is constituted under the Indian Railway Board Act, 1905, with a view more effectively to control the administration of railways. The Central Government is statutorilv empowered (1) J. Landis, "A Note on Statutory Interpretation," 43:Harv. L. ' ~86, 891 (1930). (2) Edmund Burke. AKHIL BHARATIYA SOSHIT KARAMCHARI v. UNION. (Krishna Iyer, J. ) 205 to invest the Railway Board with all or any of the powers and func tions of the Central Governmeht under the Indian Railways Act, 1890.

Power is also given by s. 2 t o vest in the Railway Board the capacity to make general rules for railways administered by the Gov,ornment. Of course, the investment of powers upon the Railway Board is, broad ly speaking, subject to the condition that the Central Government re tains the ultimate authority in all matters connected with the Railway Administration. The Ministry of Home Affairs, in the Governn1ent of India, deals usually with all matters of personnel, conditions of 5CIYice of the Central Government staff and the like. Policy decisions regarding matters covered by Art. 16(4) apparently origihate from the Ministry of Hom;, Affairs and emanate to the various institutions like � the Railway Board which responsively implement them.

In the present case, ten directives were issued by the Railway Board on diffe1>::nl occasions, which disclosed 'benign discrimination' in favour of Scheduled Castes and Scheduled Tribes and are chalknged by the petitioners as 'reverse discrimination', if \\'C inay use that expression popularised in American legalese. These directives were designed to protect and promote the interests of members of the SC & ST in the matter of their employment under the Indian Railway Administration and they 5p'ccially related to the softer criteria for promotion. The Railway Board acted, as is discernible from the relevant orders, in obedience to the policy decisions of the Ministry of Home Affairs. Some argument was address•ed on the validity of the Railway Board's orders on procedural and other technical grounds. We see 110 subs tance in them. The Board was bound to carry out the Cchtral Government's directives under Art. 1 6 (4) and did it.

The broader issue of 'benign discrimination' deserves close study. The meat of the matter, to put it that way, is the gross discrimina ) tion alleged to be implicit in the s•everal Circulars of the Railway ( Board and the non-applicability of Art. 16(4) to save these circulars. The focus of this litigation must primarily turn oi;i that issue and the court must navigate towards egalitarian justice at the level of promo tion posts in the public services, keeping the land-mark rulings of this Court as mariner's compass. The disturbing perpetuation of socio ' ecoiiomic suppression of a whole fifth of Indian manhood-the dalits f -and the righteous resistence to prolonged 'reverse casreism' resulting in deepening demoralisation of the economically oppressed-the sos/zits-have been projected by counsel on the forensic screen as conflict between equalisation and equality.

Our fonnding fathers, Il familiar with social dialectics and socialist enlightenment, surely would have in\ended lo bring both these have-not categod�s together as SUPREME. COURT REPORTS [1981] 2 S. C. R, broad brotherhood against the die-hard Establishment and would never have contemplated a fratricidal strategy which would blind and divide brothers in distress-the dalits and the soshits-and harm the integration of the nation and its developmental march. Unless by dialectical approach sociologists lay bare this false dilema of dalits versus soshits, the growing distrust in democracy will deepen, the 1urispru- • dence of constitutional revolution and egalitarian justice will fade in . the books and the founding hopes of January 26, 1950, will sour into cynical dupes of the masses, decades after! Wider perspectives must, therefore, inform our study of the. equality code (Arts.

14 to 16) to rid it of social contradictions and read into it the need for a dalitsoshit partnership in demanding social justice. Felix Frankfurter s~ the judicial function when he said :(1) A Judge should be compounded of the faculties that are demanded of the historian and the philosopher and the prophet. The la vemment i! reproduced below.... The table furnished as in 1978 shows that Scheduled Castes have in Class I around 7% representation, in Class Il 9. 5%, in Class ID 11. 1 % and even in Class IV (excluding safaiwalas) only 18%. Safaiwalas, who are menials like scavengers and sweepers, are mostly drawn from harijans since other communities consider such jobs infra dig. So, there is 83% representation of SCs among safaiwalas. This is not because of representation hut because no one else is forthcoming for such 'untouchable' jobs. The Scheduled Tribee have a more pathetic tale to tell. In Class I services they have 1% representation, in Class n, 1. 8%. in Class m, 2.

2% and In Class IV (excluding safaiwalas) 5. 1 % 'and even among safaiwabs only 1. 5% . On the basis of these statistics the Railway Board's case is that adequacy of representation for SC&STs even according to their population (forgetting centuries of total exclusion) is a lq way o:l'f. These official figures culled from tho Reports of the Commis-___,j;] sioner for Scheduled Castes and Scheduled Tribes are for employment in Central Govt. not confirmed to the Railways, and reveal how a square deal to SCs and STs may take centuries, observing the current snail's pace in the intake. • Social realists will read these pessimistic figures of the last ten years which prove the myth and negate the neurotic rhetoric about the sc&ST communities having cornered all the posts in the Central Government from Chaprasi to Secretary, accelerating thereby the impending calamity of administrative collapse due to the dispropor· tionate presence of the 'inefficient' social components!

A mere formula of reservation is not the factum of recruitnient. That IS AKHIL BHARATIYA SOSHIT KARAMCHARI v. UNION (Krishna Iyer, J. )221 morbid fancy. The truth is that more aggressive policies than paper reservations are the need if equality and excellence are the -Ol"eed. Reservation is but one strategy and historically has esta- • blished itself. More must be done by a complex of processes by which harijans/girijans will get boosted in 'capabilities', and main- ,, . · itreamed to share in the Civil Service cake. The poor annual assimilation into the public employment sector of the weakest social segments makes a tragic m edkars and Nehrus, to mention but a few who knew the heart-beats of the people. I divagate and make these observations only to debunk the exaggerated argument about harijans and girijans being sub-standard.

We may put aside this angle of vision and approach the problem traditionally because every new idea has resistence to encounter before acceptance, every original thought has been branded a hearsy. Be that as it may, the constitutional merits of the various Board Circulars now discussed do not warrant their judicial 'execution'--subject to certain cautionary Jil! 'jtations already indicated. The argument that there are rich and influential hariLans who rob all the privileges leaving the serf-level sufferers as suppressed as ever. The Administration may well innovate and classify to weed out the creamy layer of SCs/STs but the court cannot force the State in that behalf. For a comparative thought we may glance at Polyviou's 'The ~ Equal protection of the laws' :(') "A third argument traditionally employed against the use of preferential discrimination is that affirmative measures of the kind discussed here may significantly curtail ' elficiency.

It does indeed stand to reason that the immediate result of benignity in admission and selection process will almost certainly be the selection of those who are not as competent or as able as some of those left out. 'Special admission programmes, almost by definition, operate to insure that students are placed in schoo1s for which they are (I) The equal protection of the laws by G. Polyviou p. 360. AKHIL IHIARATIYA SOSHIT KARAMCHARI v. UNION (Krishna Iyer,!. ) 247 not qualified ! The same objection applies with equal, if not more, force to the area of employment and elsewhere. One possible answer is that the importance of efficiency must be compared with and ultimately set against the significance of integration or the prevention of discrimination, and that • integration and the rectification af socially harmful deprivation are the more pressing needs.

Or one can fall back on the very different arguments that traditional admission processes are unfair because these are geared to the usual type of applieant and that preferential treatment after all only seek~ to counteract such inherent bias. ". \ There is a human problem behind these writ petitions which we clearly appreciate. Most of the Classes II, III and IV employees are economically backward and struggle for survival what with price spirals and other tribulations. They hope, after years of yeomen service, to get some promotion and augment their poor resources in the afternoon of their life. Then they find another class, with which the Constitution shows ultra sympathy, elbowing them out, not on a massive scale, but minimally. Even this marginal push hurts these species living at subsistence level and so they scream.

The economically backward and the socio-economically backward truly belong to the 'have-not' camp and must jointly act to bring about a transformation of the economic order by putting sufficient pressure and make Art. 38 a living reality. Estrangement between the two · categories weakens the militancy of a joint operation to inject social justice in the current economic order. The truth is that the employment market is distressingly a musical chair business and when starvation faces men their sympathy for their far weaker brethren vanishes. The true solution for the country's problellls,. as reflected (_. in these writ petitions, is in developmental expansion involving the millions, rather than denial to the weakest sector of Indian life the morsel to which it is justly entitled. Even Administration will do well to remember that Indian despair, after infinite patience, may augur danger unless 'the sorry scheme of things entire' is remoulded nearer to Art. 38.

Even these observations are made only to emphasise that the legal content of the contentions put forward by the petitioners is less than presentable although their economic grievance may be • agonisingly genuine. The Court has its limitations unlike the Administration and can give justice only under the Constitution and not over it. The human pressure behind these writ petitions is the chronic drought of employment opportunities despite talent enough to make deserts bloom. So long as this scarcity persists and power goes with office, the jaundiced politics of snatching the jobs going, initially or ' at promotion level, by hook or crook, is the only 'development' that takes place, whatever the National Plans proclaim. The vast human potential of the harijans and girzVans, on-fifth of the Indian people, goes to thistles and every communal effort to twist the politics of power for promoting chances of getting jobs becomes inevitable caste being a deeprooted pathology in our country.

Thus jobbery, politics, casteism and elections make an unholy, though invisible, alliance against national development which alone can liberate Indians from social and economic privation. If democracy itself thus plays into the hands of hostile forces, ! he jurisprudence of keeping the backward as backward and perQ,etuation of discrimination as a vested caste right may prevail as a rule of life. The remedy of 'reservations' to correct inherited imbalances must not be an overkill. Backward classes, outside the Scheduled Castes and Tribes, cannot bypass Art. 16(2) save where very substantial cultural aud economic disparity stares at society. The dubious obsession with 'backwardness' and the politicking with castes labelled backward classes may, on an appropriate occasion, demand judicial examination. The politics of power cannot sabotage the principles of one man, one value. . No sociological explanation for the flood of ruinous writ petitions regarding service conditions can b.

c found except on this basis. Behind the writ petitions we deal with now is caste clamour to keep all the jobs safe from being 'robbed' by 'reserved' communities. It is forward caste versus backward caste, wearing the casteless caste-marks! And the political process is likewise caste-polluted Gunnar Myrdal writes in his Asian Drama :(') The type of appeal that can be made by politicians has also changed greatly since the liberation movement. They can no longer put the blame for poverty and stagnation on colonial masters, but must explain why there is not great progress no\v that IndiFJ is independent . .... . Thus a key to the understanding of the power of the political bosses is the inherited social stratification of India and, above all, its caste system. At election times the caste groups function as political vote banks whereby the ballots of their members are joined to the candidate with a party label.

For this reason alone the local political bosses have a vested interest in preserving the social and economic status quo and exploiting it as a matrix for political action. (I) Gunnar Myrdal, Asian Drama, Vol. I, pp, AKHIL BHARATIYA SOSHIT KARAMCHARI V. UNION (Pathak, J. ) 24 9 1 M. N. Srinivas, the noted sociologist is more than right: (' ) One cannot help wondering whether the drive to politi- • cal maturity is, after all, a good thing in a country which has still not had a proper social revolution. It may well result in premature old age. We need now, not stagnation wearing the mask of stability and scrambling acrimoniously over the same shrunkan calce, but progress by the conetructive process of explosive rural development and exploitation of the untapped human potential of the Scheduled Castes and Scheduled Tribes. Sterile 'reservations' will not help us go ahead unless, alongside of it, we have heroic national involvell).

ent of the masses in actual action, not paper-logged plan exercises. In the last analysis, privation can be banished only by production, discontent by distributive justice and litigation by socially relevant justice. The writ petitions are, regrettably, negative, although the driving force of penury deserves sympathy. This, perhaps, is a materialist interpretation of 'service litigation' and a grim foot-note to these writ petitions. Before I conclude, I must strike a futuristic note. Excellence and equality may cooperating fruitfully and need not compete destructively. Ultimately harijan/girijan militancy must find fulfilment in effective main-streaming and creative contribution. While they have miles to go, they have promises to keep. The poignant words of the Reverend Jesse Jackson come to my mind :(I) "I don't see how, we can survive as a people if we clon't have a great push for excellence now.... A lot of what we've done in the past will be in vain if we don't.

We can make one of the most valid contributions to Western civilization, even more of a contribution than slavery. Because slavery was our great contril)ution against our will. Now it's time for us to make a great contribution as an act of will. " Given the opportunity and the environment, the Indian dalits can make India great and give up crutches. The writ petitions as well as the Special Leave Petitions cannot but be dismissed. PATHAK, J. -My brothers Krishna Iyer and Chinnappa, Reddy are agreed that the writ petitions should be dismissed. They have held against the petitioners on the several contentions raised in the (1) M. N. Srinivas, "Changing Attitudes in India Today" Yogana, October 1, 1961, p. 26. . --------. - - . ,. ,. _... ,. ________ case. With respect, I find myself unable to agree with all that they have said. • I intend to confine myself here to certain aspects of the case which appear to possess a fundamental importance. ..

Three' provisions of the Constitution relate to reservations for Scheduled Castes and Scheduled Tribes. They are Art. 46, Art. 16(4) and Art. 335. The three form a single frame of reference. Art. 46, a Directive Principle of State Policy, proclaims the principle that the State shall promote with special care the. educational and economic interests of the weaker sections of the people, and,. in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injl! stice and all forms of exploitation. One of the modes in which the economic interests of the Scheduled Castes and Scheduled Tribes can be promoted is the reservation of appointments or posts in their favour in services under the State where they are not adequately represented. Art. 16(4) declares that when the State intends to make such provision nothing in Art. 16 shall prevent it from doing so.

The equality of opportunity guaranteed to all citizens in matters relating to employment or appointment to any office under the State will not restrain the State from making such reservation. It is now well accepted that the "equality provisions of Part III of the Constitution constitute a single code, illustrating I the multi-faceted character o( the central concept of equality. Art. 16(4) also is one facet. It enables a backward class of citizens, by the process of reservation in Government service, to move along the road to ultimate equality with the more advanced classes. It is part of the process of equalisation. Then follows Art. 335.. It provides that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union__..

, or a State, but-and this is imperative-such consideration must be consistent with the maintenance of efficiency of administration. The paramount need is to maintain the efficiency of administration. That is dictated by the common good. It embraces the need of all, . I the national good, and not of a mere section of the people. To its primacy all else is subordinate. Therefore, whatever is done in considering the claims of the Scheduled Castes and Scheduled Tribes must be consistent with that supreme need, the maintenance of efficiency of administration. Art. 335, it must be clearly stated, does 8 not contain a positive principle, the advancement of Scheduled Castes and Scheduled Tribes, and a negative principle, the maintenance of efficiency of administration. This analysis of the article does not AKHIL BHARATJYA SOSIHT KARAMCHARI v. UNION (Palhak, J. ) 2 51 truly comprehend its contents.

It contains a single principle, the advancement of Scheduled Castes and Scheduled Tribes, but through modes and avenues which must not detract from the maintenance of an efficient administration. That limitation is imposed as a clear and positive condition. • A generally acknowledged and long established principle for securing an efficient administration is throwing open the doors to general recruifment, either directly or by promotion, wh. ere the governing criterion is excellence and the emphasis is solely on quality. The net of selection is spread far and wide, and the competitive best ,. r are collected, regardless of religion, race, caste, sex, descent, place of ' birth or residence.

However, a quota of the posts may be reserved in favour of a backward class of citizens, but the interests of an efficient administration require that at least half the total number of posts be kept open to attract the be•t of the nation·s talent and not more than half be made the sum of reserved quotas. If it was otherwise, an excess of reserved quotas would convert the State service into a collective membership predominantly of backward classes. This, it is evident, will be inconsistent with the all-important goal of maintaining t11e efficiency of administration. In considering the proportion of reserved quotas in the context of college admissions. this Court laid down in M. R. Balaji v. State of Mysore(') fhat broadly a special provision providing for reservation should be less than 50%, and how much less than 50% would depend upon the relevant prevailing circumstances in each case. And, in this connection, Gajendragadkar, J. (as he then was) speaking for the Court, observed : ..

when the State makes a special provision for the advancement of the weaker sections of society specified in Art. 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous step~ to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which woud strike a reasonable balance between the several relevant considera- • tions. " (Emphasis supplied) The Court struck down the reservation of 68% as constitutionally R invalid. ! ••! ti I (1) [1963] Supp. I S. C. R. 439, 470. 16-1281SCI/80 252 SUPREME COURT REPO! lTS [1981] 2 S. C. R. The principle that reserved quota• should not together exceed 50% of the vacancies available in a year was affirmed by this Court, by a majority of four learned judges to one, in T. Devadasan v.

Union of India,(') as the reason for striking down a "carry forward" rule which, for promotions in the Central Secretariat Service, permitted a carry forward for two successive years of the annual reserved quota. • It was found in that case that observance of the rule had resulted in 65 % of the vacancies of the year being filled by reserved quotas, current and carried forward. The "carry forward" rule was held constitutionally invalid on the basis that for the purpose of Art. 16(1) each year of recruitment had to be considered as a distinct unit for applyin~ the 50% rule. Mudholkar, J. , on behalf of the majority, said: "We would like to emphasize that the guarantee contained in Art. 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This 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 is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended 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 a monopoly or to disturb unduly the legitimate claims of other communities. " It seems to me that apart from the impact that an excessive reservation in a particular year is bonnd to have on the general comlllunity of citizens, there is the further far-reaching significance this__... assumes in the context of Art. 335.

The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment because the large bulk of the vacancies, numbering anything over ' 50%, is allotted to the reserved quota. In view of a maximum agelimit invariably prescribed. so111e of such meritorious candidates may be lost to the service altogether. Viewed in that light, a maximum of 50% for reserved q_uotas in their totality is a rule which appears fair and reasonable, just and equitable, and violation of- which would contravene Art. 335. (1) [1964] 4 S. C. R. 680. AKHIL BHARATIYA SOSHIT KARAMCHARI V. UNION 253 (Chinnappa Reddy, J. ) It has been urged by the respondents that Devadasan (supra) is no longer good law in view of the 7-Judge decision in State of Kerala v. N. M. Thomas(').

It does appear from some of the individual judgments delivered in the latter case that although Devad011an (supra) has not been expressly overruled by a majority of the Bench • there are observations by the majority of Judges which throw doubt on the validity of the principle enunciated by it and ultimately the Court has upheld the promotion of 34 Scheduled Caste and Scheduled Tribe candidates among the total promotion of 51 candidates. It would seem then that there is an apparent conllict between Devadasan (supra) and N. M. Thomas (supra). The validity of Rule l3AA of the Kerala State ~nd Subordinate Service Rules, 1058 was questioned in N. M. Thomas (supm). That Ruic permitted the exemption of Scheduled Caste and Scheduled Tribe membern from passmg the promotion tests for a specified period. That more than 50% of the promotions went to the Scheduled Caste and Scheduled Tribe candidates was a consequence of the operation of Rule 13AA.

It is doubtful whether the petitioners' () challenge to the "carry forward" rule can avoid what has been said in N. M. Thomas (supra) and, therefore, a conclusion in their favour does not seem possible in this ·case. As the position is not clear, and in any event as my learned brothers have taken a definite view in favour of the "carry forward" rule, I have confined myself to expressing these observations. The petitioners have challenged other provisions prescribed in favonr of members of the Scheduled Castes and Scheduled Tribes and have attempted to support their submissions by reference to data purporting to prove that those measure~ have resulted in reverse discrimination and are also inconsistent with the maintenance of efficiency of administration. We have been taken through charts and statistics among other documentary material but the material placed before us does not clearly and definitely establish what it seeks to prove.

In the circumstances, it is not possible to record a finding in lavour of the petitioners on those points. •• Accardingly, the writ petitions are dismissed but without any order as to costs. CHINNAPPA REDDY, J. -In the name of Equality (of opportunity), we ar~ asked to deny Equality (of opportunity), in these Writ Petitions. That we cannot do and that we will not do. If we do that we will be subverting the spirit and the sense of the Constitution. The (I) [1976] I S. C. R. 901i. petitioners claim that their Fundamental Right to Equality ol Opportunity in the matter of public employment, guarant•ced by Art. 16(1) of the Constitution has been flouted by a series of orders and circulars • issued by the Railway Board reserving posts at several levels and making various concessions in favour of members of the Scheduled Castes and the Scheduled Tribes. This has been dohe, it is claimed, at the • I\ cost of efficiency, though forbidden by Art. 335 of the Constitution.

The plain answer of the re~pondents is that everyone of the orders and circulars ! ms the backing of Art. 16(1), 16(4) and other special provisions of the Constitution and that the alarm of indllciency is nothing but a bogey. My brother Krishna Iyer, J. has considered the questions raised in his own characteristic, scintillating way and in scmc depth. Tho~h respect for my brother would ordinarily preve'nt me from venturing to write a separate opinion, especially when I agree whole heartedly with his conclusions and the route traversed by him, I propose to make, in this case, certain general observations because I expect the ;ame questions to be raised repeatedly in different si! uations and in 0 different forms and it is just as well that I project my own prosaic and pedestrian point of view, without going into the detail or depth already explored by my brother.

The class of people known compendiously as 'the Scheduled Castes', recognised and described as such in the Constitution of India have been treated as 'casteless' outcastes and untouchables and have been oppressed and subjected to every manner of depreviation and discrimination for centuries upon centuries by a unique system of social and economic segregation, a system of "graded inequality" (Dr. B. R. Ambedkar), of "gradation and degradation" (Dr. C. R. Reddy) and of "gigantic cold-blooded repression" (Rabindranath Tagore). And for ce\Jturies they were even prevented from protesting their plight. Nor was any attempt made by the superior and ~ elitist classes to know anything about them. All that a Sclleduled Caste parent could do was to lament : "Hush, my. child; do'nt cry, my treasure; Weeping is in vain, For the enemy will never Understand our pain. For the ocean has its limits Prisons have their walls around But our suffering and our torment have no limit and no bound.

" II Then, in 1950, came the Constitution rou~ing expectations, ramag hopes, making promises and generally heralding a new, a better and AKHIL BHARATIYA SOSHIT KARAMCHARI V. UNION 255 (Chinnappa Reddy, !. ) a more decent life for the underprivileged and the oppressed peopl11 of India. While the preamble to the Constitution proclaims the resolution of the people to constitute India into a Sovereign (also, 'Socialist, Secular', since the 42nd Amendment) Democratic Republic and to secure to all its citizens, "Justice, Social, economic and political" and "Equahty of Status and opportunity" and to promote "Fraternity, assuring the dignity of the individual", while the Right to Equality before the Law (Art. 14) and Equality of Opportunity in the ID/liter of pul}lic employment (Art.

16) are guaranteed as Fuhdamental Rights and while the State is enjoyed by the Directive Principles of State Policy to promote the welfare ;( of the pwple by securing a social order in which justice, social, economic and political shall inform all the institutions of the national life Art. 38(1), to endeavour to eliminate inequalities in status, facilities and opportunities Art. 38 (2), and, to direct its policy towards securihg that the ownership and control of the material resources of the community are so distributed as best to subserve the common good Art. 39(b) and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detrim~nt Art.

39(c), pursuant to the very preamble and the provisions of the Constitution, special provisions have been made, in particular, for the protection and advancement of the Scheduled Castes and the Scheduled Tribes in recognition of their existing, low social and economic stat115 and the consequent inability and failure on their part to avail themselves of any opportunity for self-advancement. It i~ recognised that the failure of the State to create a climatic situation and provide the necessary impetus for the increasing participation of the members of the Scheduled Castes and the Scheduled Tribes in the public services would tentamount to a denial to them of equal opportunity in the matter of public employment. Art. 335 which is included in part ~ XVI of ihe Constitutioh dealing with 'special provisions relating to certain classes' expressly provides: "The claims of the members of the Scheduled Castes and the ScheduJP.

d Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union l or of a State. " Art. 46, one of the Directive Principles of State Policy, enjoins: "The State shall promote with special care the educational and economic interest of the weaker sections of the 18---1281SCI/80 people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. " . Art. 16 (1) a~d 16 (4) which guarantee equality of opportunity m matters of public employment read as follows : "16 (1) There shall be equality of opportunity for all citizens i'n matters relating to employment or appointment to any office under the State.

" "16 (4) Nothing in this article shall pn;vent 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 the State. " Art. 16 (2) which bars discrimination on certain grounds is as follows : "16 (2) No citize'n shall, on grounds only of religion, race, caste, sex, descent, place of birth, resid·~nce or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. " Now, it has been said, very rightly, a Constitutional instrument is . E sui generis and, obviously and necessarily, its interpretation cannot . always run on the same lines as the interpretation of statutes made in exercise of the powers conferred by it.

A co'nstitution, like ours, born of an anti-imperialist struggle, influenced by Constitutional instruments, events and revolntions elsewhere, in s·~arch of a better world and wedded to the idea of justice, economic, social and political, to all, must receive a generous interpretation so as to give all its citizens the full measure of justice so proclaimed instead of 'the austerity of ,J_, tabulated legalism'(:'). And so, when the Constitutional instrument to be expounded is a constitutian like the Indian Constitution, the expositors am to concern themselves not with words and mere words only, but, as much, with the philosophy or what we may call 'the. spirit and the sense' of the Constitution.

Hore, we do not have to venture upon a voyage of discovery to find the spirit and the sense of the Constitution; we do not have to look to any extraneous sources 'for ·inspiratidn and guidance; they may be sought and found in the :Preamble to the Constitution, in the Directive Principles of State ·policy, and other such provisions. -. ·:see Minister ofHonle Affairs v. Fisher : ~1979! (3) All E. R. 21. AKHIL BHARATIYA SOSHIT KARAMCHARI V. UNION 25 7 (Chinnappa Reddy, J. ) Because Fundamental Rights are justiciable and Directive Principles are not, it was assumed, in the beginning, that Fundamental Rights held a superior position under the Constitution than the Directive Principles, and that the latter were only of secondary importance as compared with the Fundamental Rights. That way of thinking is of the past and has become obsolete.

It is now universally recognised that the difference between the Fundamental Rights and Directive Principles lies in this that Fundamental Rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the Directive Princi- :;- pies are aimed at securing social and economic freedoms by appro- . priat•e State action. The Fundamental Rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to Courts. So they are made justiciable. But, it is also evident that notwithstanding their great importance, the Directive Principles cannot in the very nature of things be enforced in a Court of law. It is unimaginable that any Court can compel legislature to make a law. If the Court can compel Parliament to make laws theu Parliamentary democracy would soon be reduoed to an oligarchy of Judges.

It is in that sense that the Constitution says that the Directive Principles shall not be enforceable by Courts. It does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the State. Art. 37 of the Constitution emphatically states that Directive Principles are nevertheless Fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows that it becomes the duty of the Court to apply the Directive Principles in interpreting the Constitution and the laws. The Directive Principles should serve the Courts as , code of interpretation. Fundamental Rights should thus be inter- -... ik preted in the light of the Directive Principles and the later should, whenever and wherever possible, be r~ad into the former.

Every Jaw - attacked on the ground of infringement of a Fundamental Right should, among other considerations, be examined to find out if the law d<>es not advance one or other of the Directive Principles or if it is 'not in discharge of some of the undoubted obligations of the State, constitutional or otherwise, towards its citizens or sections of its citizens, flowing out of the preamble, the Directive Principles and other provisions of the Constitution. 11 So, we have it that the Constitutional goal is the establishment of a Socialist Democracy in which Justice, economic, social and political is secure and all men are equal and have equal opportunity. Inequality, whether of status, facilitY, or opportunity, is to end, privilege is to cease and exploitation is to go. The under-privileged, the deprived and the exploited . are to be protected and nourished so as to take their place in an egalitarian society. State ac\ion is to be towards .. those ends. It is in this context that Art.

16 has to be interpreted when State action is questioned as contravening Art. 16.. Let us now take a look at Art. 16(1) and Art. 16(4) . Art. 16(1) guarantees equality of opportunity for all citi=s in matters relating to employment or appointment to any office under the State. To the class of citizens who are economically and socia! fy backward this guarantee will be no more than mere wishful thinking, and mere "vanity.... wind and confusion", if it is not translated into reality by necessary state action to protect and nurture such class of citizens so as to enable them to shake off the heart- ncy if siritable candidate was not available was struck down by the High Court by visualising various hypothetical cases which could lead to anomalous situations in which a person getting the benefit of reserva- "'- lion may jump over the heads of several of his seniors not only in his own grade but even in higher grades.

This Court reversed the deqision of the High Court observing : "The extent of reservation to be made is primarily a , matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial re- ! ~iew. The reservation must be only for the purpose of givmg adequate representation in the service to the Scheduled Castes, Scheduled Tribes and Backward Classes'. '. xx xx (I) [1971] 3 SCR 267 @ 272, 273, 274. "The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered". xx xx "There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of Art. 16 (1). Reservation of appointments under Art. 16 (4) cannot be struck down on hypothetical grounds or on imaginary possibilities.

He who assails the reservation under that Art. must satisfactorily establish that there has been a violation of Art. 16(1)". The report of the Commissioner for Scheduled Castes and Sche-duled Tribes for 1977-78 and the 'Reports on the progress made in the intake of Scheduled Castes and Scheduled Tribes against vacancies reserved for them in recruitment and promotion categories in the Railways' for the half years ending March 31, 1974, March 31, 1975, September 30, 1976, March 31, 1977 and September 30, 1979 were placed before us. They reveal how painfully slow and woefully insignificant ! ms been progress achieved by the members of the Scheduled Castes and Scheduled Tribes in the matter of their participation in the Railway administration. My brother Krishna Iyer J has extracted some of the facts and figures. I do not. think it is necessary for me to refer to them over again. It is sufficient to say that members of the Scheduled Castes and Scheduled.

Tribes far from acquiring any monopolistic or excessive representation over any category of posts (other than sweepers) are nowhere near being adequately represented. Neither tl)e Reservation rule ·n9x the 'carry-forward for three years' rule has resulted in any such 'disastrous' consequences. --> The complaint of the petitioners that the Circulars and orders had resulted in excessive representation of the Scheduled Castes and Scheduled Tribes is without foundation generally or with reference to any particular year. One of the contentions vehemently submitted by the learned counsel for the petitioners was that efficiency of administration would suffer and safety of the travelling pnblic would consequently be l jeopardised if reservations were made and promotions affected inthe manner sought to be done. by the Railway Board. This is claimed by the respondents to be no more than a bogey.

In the counteraffidavit filed on behalf of the Railway Board it has been pointed out that minimum standards are insisted upon for every appointment AKHIL BHARATIYA SOSHIT KARAMCHARI V. UNION 265 (Chinnappa Reddy, l. ) . and in the case of candidates wanting in requisite standards, those with the highest marks are given special intensive training to enable them to come up to the requisite standards. In the case of posts which involve the safety of movement of trains there is no relaxation of standards in favour of candidates belonging to Schednled Castes and Scheduled Tribes and they are required ta pass the same rigid tests as other candidates. Therefore, we see that when posts whether at the stage of initial appointment or at the stage of promotion are reserved or other preferential treatment is accorded to members of the Scheduled Castes, Schedn!

ed Tribes and other socially and economically backward classes, it is not a concession or privilege extepded to them; it is in recognition of theiJ: undoubted Fundamental Right to Equality of Opportuni~y and in discharge of the Constitutional. obligation imposed upon the state to secure to all its citizens 'Justice, social, economic and political' and 'Equality to status and opportunity', to \assure 'the dignity of the individual' among all citizens, to 'promote with special D· care the educational and economic interests of the weaker section of the people', to ensure their participation on equal basis in the administration of the affairs of the country and generally to foster the ideal of a 'Sovereign, Socialist, Secular, Democratic Republic'. Every lawful method is permissible to secure the due rep_resentation of the Scheduled Castes and ·Scheduled Tribes in the public Services.

There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty percent. There is no rigidity about the fifty percent rule which is only a convenient gnideline laid down by Judges. Every case must be decided with reference to the prnsent practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical resnlts which the application of the rule may yield in the future. Judged in the light of this discussion I am unable to find anything illegal or unconstitutional in any one of the impugn!! d orders and circulars. Each order and circular has been individually discussed by my brother Krishna Iyer J with whose reasoning and conclusions I agree and to which I wish to add no more. PBR Petitions dismissed.