05 November 2004
Supreme Court


Case number: C.A. No.-006758-006758 / 2000
Diary number: 19642 / 2000



CASE NO.: Appeal (civil)  6758 of 2000



DATE OF JUDGMENT: 05/11/2004

BENCH: N. Santosh Hegde, S.N. Variava & B.P. Singh

JUDGMENT: J U D G M E N T                  WITH




STATE OF ANDHRA PRADESH & ORS.                  ...Respondents

                                     WITH CIVIL APPEAL NO. 7344/2000

MALLELA VENKATA RAO & ORS.                       ..Appellants


STATE OF ANDHRA PRADESH & ORS.                  ..Respondents


               CIVIL APPEAL NO.3442/2001

KOTA  SAMANTH                                            ..Appellant                                 Versus

STATE OF ANDHRA PRADESH & ORS.                   ..Respondents


The validity of  Andhra Pradesh Scheduled Castes  (Rationalisation of  Reservations) Act, 2000 (A.P. Act 20 of  2000) was challenged  before the High Court of Andhra Pradesh  at Hyderabad which came to be dismissed  by a five Judge   Bench on a majority  of 4 : 1, the court  having certified  the case    as being fit for  appeal  to the Supreme Court,  these appeals  are  now before us  after the same was referred to a Constitution  Bench by an order of this Court dated 25th June, 2001. The facts  necessary  for the disposal  of these appeals without reference to  previous litigations are as follows :-

       The State of Andhra Pradesh (the State) appointed a  Commission headed by Justice Ramachandra Raju (Retd.) to  identify  the groups amongst the Scheduled Castes found in the



List prepared  under Article 341 of the Constitution of India by  the President, who had failed to secure the benefit of the  reservations provided for Scheduled Castes in the State in  admission  to professional colleges  and appointment to services   in the State.

       The Report submitted by the Commission led to certain  litigations and a reference being made by the State to the  National Scheduled Castes Commission. We will not dilate on  these facts since the  same are  not necessary for the disposal of  these appeals. Accepting the Report of Justice Ramachandra  Raju Commission  (Supra), the State  by an Ordinance  divided   the 57 castes enumerated  in the Presidential List into 4 groups   based on inter-se  backwardness and fixed separate quota in  reservation  for each of these groups.  Thus, the castes in the  Presidential List came to be grouped as  A, B, C, and D.  The  15% reservation for the backward class  in the State in the  educational institutions  and in the services  of the State under  Article 15(4) and 16(4)  of the Constitution of India for the  Scheduled Castes  were apportioned  amongst the 4 groups  in  the following manner :- 1.      Group A  -  1% 2.      Group B  -  7% 3.      Group C  -  6%  4.      Group D  -  1%         The said Ordinance came to be challenged before the High  Court by way of various writ petitions as being violative of  Articles 15(4),16(4),162,246,341(1), 338(7), 46, 335 and 213 of  the Constitution of India as also the Constitutional (Scheduled  Castes) Order 1950  notified  by the President of                       India and Scheduled Castes and Scheduled Tribes  Amendment  Act, 1976.    During the pendency of the said writ petitions, the  State Government replaced the  Ordinance  with the Andhra  Pradesh Scheduled Castes (Rationalisation of Reservation) Act,  2000 (A.P. Act 20 of 2000) (’the Act’) on 2.5.2000. The  impugned Act was on the same lines as  the Ordinance  No. 9 of  1999.  Consequently  the Act was also challenged  and as stated  above the petition being dismissed these appeals  are now before  us.           Mr. P.P. Rao, learned senior  counsel led the argument on  behalf of the appellants, his arguments were supported and  supplemented by  Mr. P.S. Mishra, learned senior counsel,  Mr.  Shiv Pujan Singh and Mr.  T. Raja, the other learned counsel  appearing for the appellants.  

The contentions  advanced on behalf of the appellants are   that the State Legislature  has no competence  to make   any law  in regard to bifurcation of the Presidential List of Scheduled  Castes prepared under Article 341 (1) of the Constitution,  therefore the impugned legislation being one solely  meant for  sub-dividing  or sub-grouping  the castes enumerated  in the  Presidential List, the same suffers from lack of legislative  competence.  

It is  further submitted  that once the castes  are  put  in the  Presidential List, the said castes  become one homogeneous class   for all purposes  under the Constitution, therefore, there could be   no  further division  of the said castes  in the Scheduled List by  any Act of the  State Legislature.  His further submission  was  that  in the guise  of  exercising its legislative competence  under  Entry 41 in List II or  Entry 25 of List III the State Legislature  cannot exercise  its legislative  power so as to  make  a law  tinkering with the Presidential  List because  the said Entries  do



not permit  any law being  made  in regard to Scheduled Castes.  In the guise  of providing  opportunity  to some of the castes in  the list of Scheduled Castes the State  can not  invoke  Entry  41  of List II and Entry 25 of List III to divide  the Scheduled Castes.   According  to the learned   counsel the impugned enactment does  not really deal with the field of Legislation  contemplated  under  the said Entries but in reality  is targeted  to sub-divide the  Scheduled Castes. Alternatively,  he submitted  the classification   or sub-grouping  made  by the State Legislature  amounting to  sub-classification  or micro classification  of the Scheduled Caste  is violative  of Article 14 of the Constitution of India.   One of the arguments  addressed on behalf of the appellant   is that allotting  a separate percentage of reservation  from  amongst the total reservation allotted to the Scheduled Castes  to  different groups  amongst the Scheduled Castes amounted to  depriving  one class of the benefits of such reservation at least  partly.  It is also argued that the impugned legislation was bad  because the Report of the National Commission was not placed  before the Legislature  as required under Article 338(9)  of the  Constitution of India.  

On behalf  of the respondents Shri K.K. Venugopal,  learned senior counsel  appearing for the State  who led the  argument  on behalf  of the respondents, contended  Article 341  only empowers  the President to specify  the castes  in the  Presidential  List  and the Parliament to include or exclude  from  the specified list  any caste or tribe  and beyond  that no further  legislative  or executive power  is vested with the Union of India  or the Parliament to decide to what extent  the castes included  in  the Scheduled Castes List  should be given  the benefit  of  reservation which according  to the learned counsel depended  upon their  degree of backwardness. His further argument is that   the authority  to decide to  provide  reservation or not,  and  if  yes, then the quantum  of reservation to be provided is the   exclusive  privilege of the State.  In that process the State will  have to keep in mind  the extent  of backwardness of a group  be  it other backward class, Scheduled Caste or Scheduled Tribe.   Therefore, having found a class of persons within  the Scheduled   Castes as  having   been deprived of such benefits the State  has   the exclusive legislative power to make  such grouping for  reservation under Articles  15(4)  and 16 (4)  of the Constitution  subject, of course, to  Articles 245-246 of the Constitution.   Since  in the instant case there is no allegation that there has been   any violation of Articles 245-246,  the argument of lack of  legislative competence  advanced on behalf of the appellant  should fail. He further submitted that there is an obligation on the  State under Article 16(4) to identify  the group of backward class  of citizens  which in the opinion of the State  is not adequately   represented  in the service  under the State and make reservation  in their favour  for such  appointments and under Article 15(4) of  the Constitution there is an obligation on the State to make   special provisions  for the advancement  of Scheduled Castes and  Scheduled Tribes and what the State has sought to do under the  impugned Act was only to make such a provisions  to fulfil  the  constitutional obligation  after due enquiry, hence,  the allegation  of violation of Article 14 cannot be sustained. He strongly  relied  on the findings  of fact recorded in Justice Raju Commission’s  report  which according to him establishes that  some particular  groups  within the Scheduled Castes have cornered  all the  benefits at the cost of others in the said List, therefore,  with a  view to see that the benefit  of reservation percolates   to the  weaker  of the weakest it had become necessary  to enact the  impugned  law.   The learned counsel submitted that   by re- grouping  the castes in the Scheduled Caste List  there is no



reclassification  or micro  classification as contended  by the  appellants.  Some other counsels  also argued that neither  Article 341  nor any other provisions of the Constitution  prohibits  the State  from performing its obligations under Articles   15(4),  16(4)   and 16 (4A)  of the Constitution and categorising the various  castes found in the  Presidential  List of Scheduled Castes based  on inter-se backwardness within them.  Reference was  also  made  to the Constituent Assembly  Debates and Reports  to  point out that it was the  intention of the Constitution makers  to  confer the power  of classification  of Scheduled Castes  on the  President or the Parliament  as the case may be under Article 341  of the Constitution.   A further classification of the caste  within  the List  if became necessary, the same  could be done  by the  State only under Articles 15(4) and 16(4) of the Constitution.  

       It  was also argued that further classification of the  backward class  is permissible in view of the judgment of this  Court  in the case of Indra Sawhney   vs.  Union of India & Ors.  1992 (Supp.3) SCC 217,  the principles laid down therein was  applicable  even to the Scheduled Castes. It was also argued that  the enactment  was  in the form of affirmative  action to fulfil    the constitutional objects and the  courts should not interfere  in  such efforts of the Legislature. Reliance was also placed on the  recommendations made by the National Commission for  Scheduled Castes and in its Report a further argument  addressed   on behalf of the respondents  is that even if some castes in the  Presidential List  of Scheduled Castes get excluded  from the   benefit of reservation made by the State  that by itself  would not   take  the  caste out of the List  of Scheduled Castes because they  will continue to be entitled  to other benefits that  are being  provided by the State to the Scheduled Castes.   In regard to manner  in which the constitutional provisions  should be interpreted, reliance  was placed  in the case of Her  Majesty the Queen vs.  Burah 1878 Vol. III 889 contending  that  while interpreting  the constitutional provisions the court should  try to give  purposive  interpretation rather than  restricted  meaning.  

From the pleadings  on record and arguments addressed  before us three questions arise for our consideration:-

(1)     Whether the impugned Act is violative of  Article 341(2) of the Constitution of India?  

(2)     Whether the impugned enactment is  constitutionally invalid for lack of legislation   competence?

(3)     Whether the impugned enactment creates  sub-classification or micro classification of  Scheduled Castes so as to violate  Article 14  of the Constitution of India?

We will first  consider the effect of Article  341 of the  Constitution  and examine whether the State could, in the guise   of providing  reservation for the weaker of the weakest,  tinker  with the Presidential List by sub-dividing  the castes mentioned  in the Presidential List into different groups.  Article 341 which  is found in Part XVI of the Constitution refers to special



provisions relating to certain classes  which includes  the  Scheduled Castes. This Article provides  that the President may  with respect to any State or Union Territory  after consultation   with the Governor thereof by Public Notification, specify the  castes, races  or  tribes  or parts  of or groups  within castes, races  or tribes which shall for the purposes  of this Constitution be  deemed  to be Scheduled  Castes  in relation to that State  or  Union Territory.   This indicates  that there can be  only one List  of Scheduled Caste in regard to a State and that List should  include  all specified castes, races  or tribes  or part  or groups  notified in that Presidential List.  Any inclusion  or exclusion  from the said list can only be done by the Parliament under  Article 341 (2) of the Constitution of India. In the entire  Constitution  wherever  reference has been made to "Scheduled  Castes" it refers only to  the list prepared by the President under  Article 341 and there is no reference to any sub-classification or  division in the  said list except, may be, for the limited purpose  of Article 330, which  refers to  reservation of seats for  Scheduled Castes in the House of People,  which is not  applicable to the facts of this case. It is also clear from the above  Article 341 that except  for a limited power of making  an  exclusion  or inclusion  in the list by an Act of Parliament there  is no provision either to sub-divide, sub-classify  or sub-group  these castes  which are found  in the Presidential List of  Scheduled Castes. Therefore, it is clear that the Constitution  intended all the castes  including the  sub-castes,  races and tribes  mentioned in the list to be members of one group for the purpose  of the Constitution and this group could not be sub-divided  for  any purpose.  A reference to the Constituent Assembly in this  regard may be useful at this stage.  

In the Draft Constitution, there was no Article  similar to  Article 341 as is found in the present Constitution.  Noticing the  need for creating a list of Scheduled Castes  a Draft Article 300A  was introduced  in the Draft Constitution and while introducing   the same Dr. Ambedkar stated  the object of introducing  the said  Article in the following words :  - "The object of these  two articles, as I  stated,  was to eliminate  the necessity   of burdening the  Constitution with  long lists of Scheduled Castes and  Scheduled Tribes.  It is now  proposed  that the President, in consultation  with  the Governor or Ruler of a State   should have the power to issue a  general  notification  in the Gazette  specifying all the Castes and tribes  or  groups thereof  deemed to be  Scheduled Castes and Scheduled Tribes  for the purposes of the privileges   which have been defined for them in  the Constitution.  The only limitation  that has been imposed is this: that once  a notification has been issued by the  President, which, undoubtedly , he will  be issuing  in consultation with and on  the advice of  the Government of each  State, thereafter, if any elimination   was to be made  from the List  so  notified or any addition was to be  made, that  must be made by  Parliament and not by the President.   The object is to eliminate any kind of  political factors having a play in the  matter  of the disturbance  in the



Schedule so  published by the  President." (emphasis supplied) (CAD, Vol. 9, Pg. 1637)    A discussion that ensued  in regard to  the framing of this  Article indicates  that there was an attempt on the part of some  of the Members of the Constituent Assembly  to empower  the  States  also to interfere with the list prepared by the President  under the said Article. As a matter of fact  an amendment to  this  effect was also moved  by Shri Kuladhar  Chaliha, who  while moving the said amendment  stated thus:- "That in amendment No. 201 of List  V  (Eighth Week) in  clause (2)  of the  proposed new article  300B after the  words ’Parliament  may’ the words ’and   subject  to its  decision  the State  Legislature’ be inserted". (CAD,  Vol.9,Pg.1638)

       Speaking on the amendment  Shri Chaliha stated :-

"I have always been fighting that  the  Governor should have power to  safeguard  the rights  of the Tribes.  I  am glad in some measure this has been  conceded.  Yet I find certain amount of  suspicion in that the State Legislature   is neglected.  The Drafting Committee  has not allowed the State Legislature   to have a voice.  In order to fill up that  lacuna I have said that Parliament may  and subject to its decision the State  Legislature.

Somehow  or other  I feel  you have  neglected  it.  In these  you have   covered  a good deal  which you had  objected  to in the past.  The Governor  has been given power I am glad to say.   The only thing is  provincial   assemblies  have no voice in this.   Whatever Parliament  says they are   bound by it; but if there is anything  which consistently  with the orders  of  the Parliament  they can do anything,   they should be allowed  to have the  power.  That is why I have  moved this.  However,  I am thankful  this time  that  the Drafting Committee  has  assimilated  good  ideas and only  provincial  assemblies have been   neglected.  However, the Governor is  there--that is an improvement-- Parliament  is there and the President   is there. Therefore, I  thank the  Drafting Committee for this". (CAD,  Vol.9,Pg.1638)

       Opposing  this amendment Shri  V.I. Muniswami Pillai  said among other things  as follows :-   "Sir, I am grateful  to the Drafting   Committee and also to the Chairman of  that Committee for making  the second   portion of it very clear, that in future,  



after the declaration  by the President  as  to who  will be  the Scheduled Castes,  and when there is need for including any  other class or to exclude anybody or any  community from the list of Scheduled  Castes that must be by the word of   Parliament.  I feel grateful to him for  bringing in this clause, because I know,   as a  matter of fact,  when Harijans   behave independently or asserting their  right on some matters, the Ministers in  some Provinces not only take note and  action against those members, but they  bring the community   to which  that  particular individual  belongs; and  thereby not only the individual, but also   the community that comes under that  category  of Scheduled Castes are  harassed.  By this provision, I think the  danger is removed". (Emphasis supplied)                  (CAD, Vol.9, Pg. 1639)                  

After the above discussion it  is seen that this amendment   came to be defeated  and the  original draft Article  was  approved by the Constituent Assembly which was renumbered    as Article 341 in the present Constitution.   

This part  of the Constituent Assembly Debate coupled  with the fact  that Article 341  makes it clear  that the State  Legislature  or its executive has no power  of "disturbing"        (term used by Dr. Ambedkar) the Presidential List of  Scheduled Castes for the State.

It is also clear from the Articles  in part XVI of the  Constitution  that the power of the State to deal with the  Scheduled Castes list is totally absent except  to bear in mind   the required maintenance  of efficiency  of administration in  making  of appointments  which is found in Article 335.

 Therefore any executive action or legislative  enactment  which interferes, disturbs, re-arranges, re-groups  or re- classifies  the various  castes found  in the Presidential List will  be violative  of scheme  of the Constitution  and will be  violative  of Article 341 of the Constitution.                   We will now consider whether the Scheduled Castes  List   prepared by the President  under Article 341 (1) forms  one class   of homogeneous  group or  does it still continue  to be a list  consisting  of different  castes, sub-castes, tribes etc.  We have  earlier noticed the fact that the Constitution  has  provided for  only one list of Scheduled Castes to be prepared by the President  with a  limited power of inclusion and exclusion by the  Parliament. The Constitution intended  that all the castes  included in the said Schedule would be "deemed  to be" one  class  of persons  but arguments have been addressed to the  contrary stating that in spite of the Presidential List these castes  continue to hold their  birth mark  and remain to be separate  and  individual  caste though put in one List  by the President. It is the  contention of the respondents that by merely  including them in a  List by the President  these castes do not become a homogeneous  group, therefore, to fulfil the constitutional obligation of  providing  an opportunity  to these castes more so to the weaker  amongst them, it is permissible to make a classification within  this class, as was made permissible in regard to other backward



classes (OBC) by this Court in Indra Sawhney’s case (supra).  We cannot accept this argument  for more than one  reason.

       It cannot be denied that all the castes included in the  Presidential List for a State are deemed to be Scheduled Castes,  which means they form a class by themselves.          In State of Kerala & Anr. vs. N.M.Thomas & Ors. (1976)  2 SCC 310, para 82 at 348, Mathew, J.  discussing  the status  of  the caste found in the Presidential List observed :-

"This shows that it is by virtue of the  notification of the President that the  Scheduled castes come into being.  Though the  members of the scheduled  castes are drawn from castes, races or  tribes, they attain a new Status   by  virtue of the Presidential notification".  (Emphasis supplied).

       Krishna Iyer, J. speaking in the same case with reference   to the status  of castes included in the Presidential List  had this  to say :-   "We may clear the clog of Article 16(2) as it  stems from a confusion  about caste in the  terminology of scheduled castes and  scheduled tribes.  This latter expression has  been defined in Articles 341 and 342. A bare  reading  brings out the quintessential concept   that they are no castes in the Hindu fold but  an amalgam of castes, races, groups, tribes,  communities  or parts thereof found on  investigation to be the lowliest and in need of  massive State aid and notified as such  by the  President". (para 135)                                             (Emphasis supplied)

        According to Justice Krishna Iyer,  though there are no  castes, races, groups, tribes, communities or parts thereof in  Hinduism, the President on investigation having found some of  the communities within amalgam as being lowliest and in need  of  massive State aid included them in one class called the  Scheduled Castes. The sequitor thereof is  that Scheduled Castes  are one class for the purposes of the Constitution.

       Justice Fazal Ali in the very same case referring to caste  enumerated  in the list of Scheduled Caste stated thus in  paragraph 169 :-  "Thus in view  of these provisions the  members  of the scheduled castes and  the scheduled  tribes have been given  a special status  in the  Constitution  and they constitute  a class by  themselves".                            (Emphasis supplied.)

       Thus from the scheme of the Constitution, Article 341 and  above opinions of this Court in the case of N.M. Thomas (supra),   it is clear that the castes once included in the Presidential List,    form a class  by themselves.  If they are one class under the  Constitution, any division of  these classes of persons  based on  any consideration would  amount  to tinkering  with the  Presidential List.



       The next question for our consideration is : whether the  impugned enactment is within the legislative competence of the  State Legislature ? According to the respondent-State, it is  empowered to make reservations for the backward classes which  include the Scheduled Castes as contemplated under Articles  15(4) and 16(4) of the Constitution. Since the impugned  enactment contemplates reservation in the field of education and  in the field of services under the State, the State Legislature  derives its legislative competence under Entry 41 of List II and  Entry 25 of List III of the  VII Schedule which are the fields  available to the State to make laws in regard to education and  services in the State. Therefore,  it has the necessary legislative   competence to enact the impugned legislation which only  provides for reservation to the Scheduled Castes who are the  most backward of the backward classes.  

       The appellants have argued that the impugned Act in  reality is not an enactment providing for reservation for the  Scheduled Castes in the educational institutions and in the  services of the State.  They further contended that  such  reservation has already been provided  when the State took a  decision to exercise its power under Articles 15(4) and 16(4) and  made reservations for the backward  classes in the State. In that  process, it had already allotted 15% of the reserved quota in  favour of the Scheduled Castes. Therefore, the State had already  exercised its constitutional power of making reservations under  Articles 15(4) and 16(4). It is further contended that by the  impugned Act, the State has only divided the Scheduled Castes  in the Presidential List by re-grouping them into four groups. For  making such re-grouping of the Scheduled Castes List, the State  neither can rely upon Articles 15(4) and 16(4) nor on Entry 41 of  List II and Entry 25 of List III of the  VII Schedule.         One of the proven methods of examining the legislative  competence  of an enactment is by the application of doctrine of  pith and substance. This doctrine is applied when the legislative  competence of a Legislature with regard to a particular  enactment is challenged with reference to the Entries in various  lists and if there is a challenge to the legislative competence the  courts will try to ascertain the pith and substance of such  enactment on a scrutiny of the Act in question. (See : Kartar  Singh vs. State of Punjab 1994 (3) SCC 569). In this process, it  is necessary  for the courts to go into and examine the true  character of the enactment, its object, its scope and effect to find  out whether the enactment in question is genuinely referable to  the field of legislation allotted to the State under the  constitutional scheme.     

       Bearing in mind the above principle of the doctrine of pith  and substance, if we examine the impugned Act then we notice  that the Preamble to the Act says that it is an Act to provide for  rationalisation of reservations to the Scheduled Castes in the  State of Andhra Pradesh to ensure their unified and uniform  progress in the society and for matters connected therewith and  incidental thereto. The Preamble also shows that the same is  being enacted with a view to give effect to Article 38(2) found in  Part IV of the Directive Principles of the State Policy of the  Constitution. If the objects stated in the enactment were the  sole  criteria for judging the true nature of the enactment  then the  impugned enactment satisfies the requirement on application of  the doctrine of pith and substance to establish the State’s  legislative competence, but that is not the sole criteria. As noted  above,  the  Court will have to examine not only the object of the  Act as stated in the statute but also its scope and effect to find out



whether the enactment in question is genuinely referable to the  field of legislation allotted to the State.

On a detailed perusal  of Act it is seen that Section 3  is the  only substantive provision in the Act, rest of the provisions are  only procedural.  Section 3 of the Act provides for the creation of  4 groups out of the castes enumerated in the Presidential List of  the State. After the re-grouping it provides for the proportionate  allotment of the reservation already made in favour of the  Scheduled Castes  amongst these 4 groups. Beyond that the Act  does not provide for anything else. Since the State had already  allotted 15% of the total quota of the reservation available for the  backward classes to the Scheduled Castes the question of  allotting any reservation under this enactment to the backward  classes does not arise. Therefore, it is clear that the purpose or  the true intendment of this Act is only to first divide the castes in  the Presidential List of the Scheduled Castes into 4 groups and  then divide 15% of reservation allotted to the Scheduled Castes  as a class  amongst   these 4 groups. Thus it is clear that the Act  does not for the first time provide for reservation to the  Scheduled Castes but only intends to re-distribute the reservation  already made by sub-classifying the Scheduled Castes which is  otherwise held to be a class by itself.  It is a  well settled   principle in law that reservation to a backward class is not a  constitutional mandate. It is  the prerogative of the State  concerned if they so desire, with an object of providing  opportunity of advancement in the society to certain backward  classes which includes the Scheduled Castes to reserve certain  seats in educational institutions under Article 15(4) and in public  services of the State under Article 16(4). That part of its  constitutional obligation, as stated above, has already been  fulfilled by the State. Having done so, it is not open to the State  to sub-classify a class already recognised by the Constitution and  allot a portion of the already reserved quota amongst the State  created sub-class within the List of Scheduled Castes. From the  discussion herein above, it is clear that the primary object of the  impugned enactment is to create groups of sub-castes in the List  of Scheduled Castes applicable to the State and, in our opinion,  apportionment of the reservation is only secondary and  consequential. Whatever may be the object of this sub- classification and apportionment of the reservation, we think the  State cannot claim  legislative power to make a law dividing the  Scheduled Castes List of the State by tracing its legislative  competence to Entry 41 of List II or Entry 25 of List III.  Therefore, we are of the opinion that in pith and substance the  enactment is not a law governing the field of education or the  field of State Public Services.

The last question that comes up for our consideration is :  whether the impugned enactment creates sub-classification or  micro classification of the Scheduled Castes so as to violate  Article 14 of the Constitution.      

We have earlier noticed  that by  the impugned  Act the  State has regrouped  the 59 castes found in the Presidential List  into 4 separate  groups  and  allotted  them different percentage   out of the total reservation made  for Scheduled Castes  as a  class.  We have also noticed from Article 341 and the judgment  of this Court in N.M. Thomas  (supra) all the castes  in the  Schedule  acquire       a special status of a class and all the castes in  the schedule are deemed to be a class.  Under the States  reservation  policy  the backward  class consists  of other  backward class, Scheduled  Castes and Scheduled Tribes.    Therefore, there is already a classification for the purpose of  reservation. In that  background  the question  that arises  is



whether further classification  amongst  the class of Scheduled  Castes for the very same object of providing reservation  is  permissible and if so will it stand the test of Article 14.         In The State of Jammu & Kashmir   vs. Triloki Nath  Khosa & Ors. ,  (1974) 1 SCC 19 , this Court held :

"29. This argument,  as presented, is  attractive but it assumes in the Court a right  of scrutiny somewhat wider than is generally  recognised.  Article  16 of the Constitution  which ensures to all citizen equality of  opportunity in matters relating to  employment is but an instance or incident of  the guarantee of equality contained in Article  14.  The concept of equal opportunity  undoubtedly permeates the whole spectrum   of an individual’s employment from  appointment through  promotion and  termination to the payment of gratuity and  pension.  But   the concept of equality has an  inherent limitation arising from  the very  nature of the constitutional guarantee.   Equality is for equals.  That is to say that  those who are similarly circumstanced are  entitled to an equal treatment.

31. Classification, however, is fraught with  the danger that it may produce artificial  inequalities and therefore,  the right to  classify is hedged in with salient restraints;  or else, the guarantee of equality will be  submerged  in class legislation   masquerading as laws meant to govern well  marked classes characterized by different  and distinct attainments.  Classification,  therefore, must be truly founded on  substantial differences which distinguish  persons grouped together from those left out  of the group and such differential attributes  must bear a just  and rational relation to the  object sought  to be achieved.

51. But  we hope that this judgment will not  be construed as a charter for making minute  and  microcosmic classifications.  Excellence  is, or ought to be, the goal of all good  governments and excellence and equality   are not friendly bed-fellows.  A pragmatic  approach has therefore to be adopted in order  to harmonize the requirements of public  services with the aspirations of public  servants.  But let us not evolve, through  imperceptible extensions, a theory of  classification which may subvert, perhaps  submerge, the precious guarantee of equality.   The eminent spirit of an ideal society is  equality and so we must not be left to ask in  wonderment: what after all is the operational  residue of equality and equal opportunity?

57.     Mini-classifications based on micro- distinctions are false to our egalitarian faith  and only substantial and straightforward



classifications plainly promoting  relevant  goals can have constitutional validity.  To  overdo classification is to undo equality.  If  in this case Government had prescribed that  only those  degree holders who had secured  over 70 per cent marks could become Chief  Engineers and those with 60 per cent alone  be eligible  to be Superintending Engineers  or that foreign degrees would be preferred  we would have unhesitatingly  voided it."

Said decision has been followed by this Court in  Food  Corporation of India & Ors. vs. Om Prakash Sharma & Ors.  (1998) 7  SCC 676 and other cases.

       In Om Prakash  Sharma’s case (supra) this Court noticed  that the Constitution Bench in Triloki Nath Khosa  (supra)    while deciding  the case took   care to add that one has  always to  bear in mind the facts and circumstances of the case in order to  judge the validity  of a classification.  Applying the aforesaid  principles the Court is required to  interpret the provisions  of the  impugned Act on the touchstone  of Clause (4) of Article 15 and  Clause (4) of Article 16 of the Constitution of India.  Articles 14,  15 and 16 form a group  of provisions  guaranteeing equality.   Such provisions confer a right of equality to each individual   citizen.  Article 15 prohibits discrimination.  Article 16  confers   a right to equality of opportunity for being considered for public  employment.

       In Akhil Bharatiya Soshit Karamchari Sangh (Railway)  represented by its  Assistant General Secretary on behalf of the  Asson.Etc. vs. Union of India & Ors. { (AIR) 1981 SC 298 :  (1981) 1 SCC 246}, Krishna Iyer, J. stated:

       "78\005 Since a contrary view is possible and  has been taken  by some judges a verdict need  not be rested on the view that SCs are not  castes,  Even  assuming they are,  classification, if permitted, will validate to the  differential rules for promotion.  Moreover,  Article 16 (4) is an exception to Article 16 (2)  also.

22\005.The success of State  action under  Art.16 (4) consists in the speed with which  result-oriented reservation withers away as no  longer  a need, not in the everwidening and  everlasting operation of an exception (Art. 16  (4) ) as if  it were a super-fundamental right  to continue backward all the time\005..

37\005The first sub-article speaks of equality  and the second sub-article  amplifies its  content by expressly interdicting caste as a  ground  of discrimination.  Article 16 (4)   imparts to the seemingly static equality  embedded in Article 16 (1) a dynamic quality  by importing  equalisation strategies geared to  the eventual achievement   of equality as  permissible State action, viewed as an  amplification of Art. 16 (1) or as an exception  to it.  The  same observation will hold good  for the sub-articles of Article 15\005.."



We have already held that the members of Scheduled  Castes form a class by themselves and any further sub- classification would  be impermissible  while applying the  principle of reservation.                             

On behalf of the respondents, it was pointed out that in  Indra Sahani’s case(supra), the court  had permitted sub- classification  of other backward communities, as  backward  and more backward based on  their comparative  under  development, therefore, the similar classification  amongst the  class enumerated in the Presidential List  of Scheduled Castes   is permissible  in law.  We do not think the principles  laid  down in Indra Sahani’s case for sub-classification of other  backward classes can be applied as a precedent law  for sub- classification or sub-grouping  Scheduled Castes  in the  Presidential List because  that very judgment  itself has  specifically  held  that sub-division  of other backward classes  is not applicable to  Scheduled Castes and Scheduled Tribes.  This we think is for the obvious reason, i.e. Constitution itself  has  kept   the Scheduled Castes and Scheduled Tribes List out  of interference by the State Governments.  

Legal constitutional policy adumbrated in a  statute must  answer the test of Article 14 of  the Constitution of India.   Classification whether permissible or not must be judged on the  touchstone of the object sought to be achieved.  If the object of  reservation is to take affirmative action in favour of a class  which is socially, educationally and economically backward,  the State’s jurisdiction while exercising its executive or  legislative function is to decide as to what extent reservation  should be made for them either  in Public Service or for  obtaining admission in educational institutions.  In our opinion,  such a class cannot be sub-divided so as to give more  preference to a miniscule proportion of the  Scheduled Castes  in preference to other members of the same class.

Furthermore, the emphasis on  efficient administration  placed by Article 335 of the Constitution must also be  considered when the claims of Scheduled Castes and Scheduled  Tribes to employment in the services of the Union are to be  considered.

The  conglomeration of castes given in the Presidential   Order, in our opinion, should be considered as representing a  class as a whole. The contrary approach of the High Court, in  our opinion, was not correct.  The very fact that a legal fiction  has been created  is itself suggestive  of  the fact that the  Legislature of a State  cannot take  any action which would be  contrary to or inconsistent  therewith.  The very idea of placing  different castes or tribes or group or part thereof in  a State as a  conglomeration by way of  a deeming definition clearly  suggests that they are not to be sub-divided or sub-classified  further.  If a class within  a class of members of the Scheduled  Castes is created, the same would amount to tinkering with the  List.  Such  sub-classification would  be violative of  Article 14  of the Constitution of India.  It may  be true, as has been  observed by the High Court,  that the caste system  has got  stuck up in the Society but with a view to do away with the evil  effect thereof, a legislation which does  not answer the  constitutional scheme cannot be upheld.  It is also difficult to  agree with the High Court  that for the purpose of identifying  backwardness,  a further inquiry can be made by appointing  a  commission as to who amongst the members of the Scheduled



Castes is more backward.  If benefits of reservation are not  percolating to them  equitably,  measures should be taken to   see that they are given such adequate or additional training  so  as to enable them to compete with  the others but the same   would not mean  that in the process of rationalizing  the  reservation to the Scheduled Castes the constitutional mandate  of Articles 14,15 and 16 could be violated.

Reservation must be considered from the social objective  angle, having regard to the constitutional scheme,  and not  as a  political issue and, thus, adequate representation must be given  to the members of the Scheduled Castes as a  group and not to  two or more groups of persons or members of castes.

The very  fact that the members of the Scheduled  Castes  are most  backward amongst  the backward classes  and the  impugned legislation  having already proceeded on the  basis   that they are not  adequately represented both in terms of  Clause (4) of Article 15 and Clause (4)  of Article  16  of  the  Constitution of India, a further classification by way of micro  classification is not permissible.  Such classification of the  members  of different classes of people based on their  respective castes would also be violative  of the doctrine of  reasonableness.  Article 341 provides  that exclusion even of a   part or  a group   of castes from the Presidential List can be   done only by the Parliament. The logical corollary  thereof  would be that the State Legislatures  are forbidden  from  doing  that. A uniform yardstick must be adopted for giving benefits to  the members of the Scheduled Castes for the purpose of  Constitution.  The impugned legislation being contrary to the  above constitutional  scheme cannot, therefore, be sustained.

For the reasons  stated above, we are of  the considered  opinion that the impugned  legislation apart from  being   beyond the legislative competence of the State is also violative  of Article 14  of  the Constitution and hence  is  liable to  declared as ultra vires the Constitution.

The appeals are allowed, impugned Act is declared as  ultra vires the Constitution.