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PETITIONER: STATE OF KERALA & ANR.

       Vs.

RESPONDENT: N. M. THOMAS & ORS.

DATE OF JUDGMENT19/09/1975

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH KRISHNAIYER, V.R. GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1976 AIR  490            1976 SCR  (1) 906  1976 SCC  (2) 310  CITATOR INFO :  R          1977 SC 251  (34)  F          1978 SC 771  (10,211)  RF         1978 SC1457  (38)  R          1980 SC 452  (57)  E          1980 SC 820  (17,29,30)  RF         1980 SC1230  (15)  RF         1980 SC1896  (45)  RF         1981 SC 212  (33)  R          1981 SC 298  (28,41,72,74,75,76,78,82,83,11  R          1981 SC 588  (13)  R          1981 SC2045  (25)  R          1984 SC 326  (9)  E&R        1985 SC1495  (17,24,51,68,132,149)  R          1987 SC 537  (21)  RF         1988 SC 959  (11,12)  R          1992 SC   1  (88)

ACT:      Kerala State  Subordinate Service Rules, 1958, r. 13AA- Constitutional valiadity of.      Constitution of  India, 1950-Arts  16, 46 and 335-Scope of.      Scheduled Casters  and  Scheduled  Tribes-If  a  caste- Exemption granted from passing special departmental tests-If violative of Art. 16.

HEADNOTE:      Rule 13(a)  of the  Kerala State  Subordinate  Services Rules 1958,  provides that  no person  shall be eligible for appointment to  any service  or any post unless he possessed such special  qualifications and  has  passed  such  special tests as  may be  prescribed in  that behalf  in the Special Rules.      For promotion  of a  lower division  clerk to  the next higher post  of upper division clerk, the Government made it obligatory for  an employee to pass the special departmental tests. Rule  13A which  was introduced  sometime later, gave

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temporaury exemption from passing the departmental tests for a period  of two  years. The  rule  also  provided  that  an employee who  did not  pass the  unified departmental  tests within the period of two years from the date of introduction of the  test would be reverted to the lower post and further said that  he shall  not again  be eligible  for appointment under this  rule. Proviso  2 to  this  rule  gave  temporary exemption of  two years  in the case of Scheduled Castes and Scheduled Tribes  candidates. A  Harijan Welfare Association represented to  the State  Government that a large number of Harijan employees in the State service were facing immediate reversion as  a result  of  this  rule  and  requuested  the Government to grant exemption in respect of Scheduled Castes and Scheduled  Tribes employees  from passing the obligatory departmental tests  for a period of two years with immediate effect. Accordingly,  the State  Government introduced  rule 13AA giving  further  exemption  of  two  years  to  members belonging to  Scheduled Tribes  and Scheduled  Castes in the service from  passing the  tests referred  to in r. 13 or r. 13A      Respondent no.  1 passed the special tests in November, 1971. The  other respondents  belonging to  Scheduled Castes and Scheduled  Tribes were promoted as Upper Division Clerks even  though  they  had  not  passed  the  prescribed  tests Respondent no.  1 who  was not promoted in spite of the fact that he had passed the urequisite tests moved the High Court under Art.  226 of  the Constitution  seeking a  declaration that r.  13AA under  which exemption had been granted to the other respondents  in the  matter of promotion was violative of Art.  16 of  the Constitution. The High Court struck down the imugned rule as violative of Art. 16(1) and (2) and Art. 335 of the Constitution.      Allowing the State’s appeal to this Court,      [Per majority,  Ray C.J.,  Mathew, Beg Krishna Iyer, S. M. Fazal Ali, JJ.; Khanna and Gupta. JJ. dissenting] ^      HELD: (Per  Ray C.J.)  The classification  of employees belonging to  Scheduled  Castes  and  Scheduled  Tribes  for allowing them  an extended  period  of two years for passing the special  tests for  promotion is  a just  and reasonable classification  haring  rational  nexus  to  the  object  of providing equal  opportunity for  all  citizens  in  matters relating to  employment or  appointment to  public  offices. [930H] 907      (1) Articles  14, 15  and 16  form part  of a string of constitutionally guaranteed  rights. These rights supplement each other.  Article 16  is  an  incident  of  guarantee  of equality contained  in Art.  14. Both  Articles 14 and 16(1) permit reasonable  classification  having  a  nexus  to  the objects to  be achieved.  Under  Art.  16  there  can  be  a reasonable  classification   of  the  employees  in  matters relating to employment or appointment. [926F]      State of  Gujarat and  Anr. etc.  v. Shri  Ambica Mills Ltd. Ahmedabad etc. A.I.R. 1974 S.C. 1300, referred to.      (2) Equality is violated if it rests on an unreasonable basis. The  concept of  equality has  an inherent limitation arising  from   the  very   nature  of   the  constitutional guarantee.  Those   who  are   similarly  circumstanced  are entitled to equal treatment. Classification is to be founded on substantial differences which distinguish persons grouped together  from  those  left  out  of  the  groups  and  such differential  attributes  must  bear  a  just  and  rational relation to the object sought to be achieved. [927 C]      (3) If  there is  a rational  classification consistent

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with the  purpose for  which  such  classification  is  made equality is  not violated.  The categories of classification for purposes  of  promotion  can  never  be  closed  on  the contention that  they are  all members  of the same cadre in service.  If   classification   is   made   on   educational qualifications   for    purposes   of    promotion   or   if classification is  made on  the ground  that the persons are not similarly  circumstanced in  regard to  their entry into employment such classification can be justified. [927E-F]      C. V.  Rajendran v. Union of India [1968] 1 S.C.R. 721, followed.      (4) Art  1.(1) does not bar a reasonable classification of employees  or reasonable tests for their selection. There is no  denial of  equality of  opportunity unless the person who complains  of discrimination  is equally  situated  with the.  person  or  persons  who  are  alleged  to  have  been favoured. [928 F]      State of  Mysore v. V. P. Narasinga Rao [1968] 1 S.C.R. 407, referred to.      (5)  Under   Art.  16(1)  equality  of  opportunity  of employment means  equality as  between members  of the  same class of  employees and  not equality  between.  members  of separate, independent  class.  The  present  case  does  not create separate avenues of promotion for these persons. [928 F]      All  India   Station  Masters   and  Assistant  Station Masters’ Association  v. General  Manager, Central  Railways [1960] 2 S.C.R. 311, referred to.      (6) The  Legislature understands  and  appreciates  the needs of  its own  people that  its  laws  are  directed  to problems  made   manifest  by   experience  and   that   its discriminations are based upon adequate grounds. The rule of classification is not a natural and logical corollary of the rule  of  equality,  but  the  rule  of  differentiation  is inherent in  the concept  of equality. Equality means parity of treatment  under parity  of conditions. Equality does not connote absolute  equality. A classification, in order to be constitutional,  must   rest  upon   distinctions  that  are substantial and  not merely illusory. The test is whether it has  a   reasonable  basis   free  from   artificiality  and arbitrariness embracing  all  and  omitting  none  naturally falling into that category. [929 D]      Govind Dattatray Kelkar v. Chief Controller of Imports, [1967] 2  S.C.R. 29;  Ganga Ram  v. Union  of India [1970] 1 S.C.C. 377  and Roshan  Lal Tandon v Union of India [1968] I S.C.R. 185, referred to.      (7) The  relevant touchstone of validity is to find out whether   the    rule   of   preference   secures   adequate representation for  the unrepresented  backward community or goes beyond it. [930 G]      (8) The  historical background  of the  rules justifies the classification  of the personnel of the Scheduled Castes and Scheduled  Tribes  for  the  purpose  of  granting  them exemption from  special tests  with a  view to ensuring them the 908 equality of  treatment and  equal opportunity  in matters of employment having  regard to  their backwardness  and under- representation in the employment of he State. [931 C]      (9) (a)  The Constitution  makes  a  classification  of Scheduled Castes and Scheduled Tribes in numerous provisions namely Arts. 46, 335, 338 and 341 and gives a mandate to the State to  accord special or favoured treatment to them. [931 D]      (b) The  impugned rule  and the  orders are  related to

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this   constitutional   mandate.   Without   providing   for relaxation of  special tests for a temporary period it would not have  been possible  to give  adequate promotion  to the Lower Division  Clerks belonging to the Scheduled Castes and Scheduled Tribes  to the posts of Upper Division Clerks. The temporary relaxation of test qualification made in favour of the Scheduled  Castes and  Scheduled Tribes  is warranted by their inadequate  representation in  the services  and their overall backwardness.  The classification  of the members of the Scheduled Castes and Scheduled Tribes made under r. 13AA is within  the purview  of constitutional mandate under Art. 335 in consideration of their claims to redress imbalance in public service and to bring, about parity in the communities in the. public services. [931H; 932A-B]      (10) Scheduled  Castes and  Scheduled Tribes  are not a caste within the ordinary meaning of castes. [932 E]      Bhaiyalal v.  Harikishan Singh and Ors. [1965] 2 S.C.R. 877, referred to      (11)(a) our Constitution aims at equality of status and opportunity  for   all  citizens  including  those  who  are socially,  economically   and  educationally  backward.  The claims of  members  of  backward  classes  require  adequate representation  in  legislative  and  executive  bodies.  If members of  Scheduled Castes  and Scheduled  Tribes who  are said by  this Court  to be  backward classes,  can  maintain minimum necessary  requirement of administrative efficiency, not only  representation but also preference may be given to them to enforce equality and to eliminate inequality. [932G- H]      (b) Equality  of opportunity for unequals can only mean aggravation of  inequality. Equality  of opportunity  admits discrimination  with  reason  and  prohibits  discrimination without reason. Preferential representation for the backward classes  in  services  with  due  regard  to  administrative efficiency is  a permissible object and backward classes are a rational  classification recognised  by the  Constitution. Therefore, differential  treatment in standards of selection is within the concept of equality. [933B-C]      (c) The  rule in  the present  case does not impair the test of efficiency in administration inasmuch a., members of Scheduled Castes and Tribes who are promoted have to acquire the qualification  of passing  the test. The only relaxation which is  done in  their case  is that  they are granted two years more  time than  others to  acquire the qualification. [933 D]      (12) (a)  Equal protection of laws necessarily involves classification. The  validity of  the classification must be adjusted with reference to the purpose of the law. [933 G]      (b) The classification in the present case is justified because the  purpose of  classification is to enable members of  Scheduled   Castes  and   Scheduled   Tribes   to   find representation by  promotion to  a limited  extent From  the point of  view of  time a differential treatment is given to members of  Scheduled Castes  and Tribes  for the purpose of giving them equality consistent with efficiency. [933 H]      (13) The  High Court was wrong in basing its conclusion that the result of application of the impeached rule and the orders is  excessive and  exorbitant. The promotions made in services as a whole are nowhere near 50% of the total number of posts.  It is  correct that  r. 13AA  and the  orders are meant to implement not only the direction under Art. 335 but also the directive principle under Art. 46. [932C-D] 909      Per Mathew, J.      (1) The concept of equality of opportunity is an aspect

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of the  more comprehensive  notion of  equality. The idea of equality has  different shades  of meaning and connotations. It has many facets and implications. [948 A]      (2) The  notion of  equality of opportunity has meaning only when  a limited  number of posts as in the present case should be allocated on grounds which do not a priori exclude any section  of citizens  of those  that desire it. A priori exclusion  means  exclusion  on  grounds  other  than  those appropriate or rational for the good in question. The notion requires not  merely that  there should be no exclusion from access on  grounds other  than those appropriate or rational for  the   good  in  question  but  the  grounds  considered appropriate for  the good  should themselves  be  such  that people from  all sections of society have an equal chance of satisfying them. [950A-B]      (3) To  give equality  of opportunity for employment to the members  of Scheduled Castes and Scheduled Tribes, it is necessary to  take note  of their  social,  educational  and economic environment.  Not only  is the  Directive Principle embodied in  Art. 46  binding on the law-maker as ordinarily understood but  it should  equally inform and illuminate the approach of  the Court when it makes a decision as the Court also is  ‘State’ within the meaning of Art. 12 and makes law even though interstitially. [951 E]      His Holiness  Kesavananda  Bharati  Sripadagalayaru  v. State of  Kerala and  Another, etc.  [1973] Supp.  S.C.R. 1, referred to.      (4) Equality  of opportunity  is not simply a matter of legal equality.  Its existence  depends not  merely  on  the absence of  disabilities but  on the  presence of abilities. [951 F]      (5) The  guarantee of  equality before  the law  or the equal opportunity in matters of employment is a guarantee of something more  than what is required by formal equality. It implies differential  treatment of  persons who are unequal. Egalitarian principle  has, therefore.  enhanced the growing belief that  Government has an affirmative duty to eliminate inequalities and  to provide  opportunities for the exercise of human rights and claims. [951 H]      (6) Fundamental  Rights as  enacted in  Part III of the Constitution are,  by and  large,  essentially  negative  in character. They  mark off  a world  it which time Government should have  no jurisdiction.  In this realm, it was assumed that a citizen has no claim upon Government except to be let alone.[952 A]      (7)(a) But  the language  of Art.  16(1) is  in  marked contrast with  that of Art. 14. Whereas the accent in Art 14 is on  the injunction  that the  State shall not deny to any person equality  before the  law or  the equal protection of the laws,  that is, on the negative character of the duty of the State,  the emphasis  in Art.  16(1) is on the mandatory aspect. [952 B]      (b) If  equality of  opportunity guaranteed  under Art. 16(1) means  effective material equality, then Art. 16(4) is not an  exception to Art. 16(1). It is only all emphatic way of putting the extent in which equality of opportunity could be carried namely even upto the point of making reservation. [956]      (c) Art. 16(1) is only a part of a comprehensive scheme to ensure  equality in all spheres. It is an instance of the application of  the larger. concept of equaliy under the law embodied in  Arts. 14  and  15.  Article  16(1)  permits  of classification  just   as  Art.   14  does.   But,  by   the classification, there can be no discrimination on the ground only of  race, caste  and other  factor  mentioned  in  Art.

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16(2). [951 F]      S.C. Jaisighani  v. Union  of India  &  Ors.  [1967]  2 S.C.R. 703 at 712: State of Mysore & Anr. v. P. Narasing Rao [1968] 1  S.C.R. 407  at 410  & C.  A. Rajendran v. Union of India & Ors. [1968] 1 S.C.R. 721, at 729 referred to. 910      (d) The  word ‘caste’  in Art.  16(2) does  not include Scheduled Castes.  The definition  of Scheduled  Castes’  in Art. 366(24)  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.  Moreover,  though  the members of  tribe might  be included  in  Scheduled  Castes, tribe as such is not mentioned in Article 16(2). [957 A]      (e) Article  16(1) and  Art 16(2)  do not  prohibit the prescription of  a reasonable  qualification for appointment or for  promotion. Any  provision as  to  qualification  for employment or appointment to are office reasonably fixed and applicable to  all would  be consistent with the doctrine of equality of opportunity under Art. 16(1). [957 E]      The General  Manager, Southern  Railway  v.  Rangachari [1962] 3.S.C.R. 586 referred to      (8) Today,  the sense  that Government  has affirmative responsibility  for  elimination  of  inequalities,  social, economic or  otherwise, is  one of  the dominant  forces  in constitutional law. [952 E]      (9) The  concept of  equality of opportunity in matters of  employment   is  wide   enough  to   include  within  it compensatory measures  to put  the members  of the Scheduled Castes and Scheduled Tribes on par with the members of other communities which  would enable  them to  get their share of representation in public service. [954 E]      (10) If  reservation is necessary either at the initial stage or  at the stage of promotion or at both to ensure for the members  of the  Scheduled Castes  and Scheduled  Tribes equality of  opportunity in  the matter of employment. there is no reason why that is not permissible under Art. 16(1) as that alone  might put  them on  a parity  with  the  forward communities in  the matter  of achieving  the  result  which equality of opportunity would produce. Equality of result is the test of equality of opportunity. [954 G-H]      (11) The State can adopt any measure which would ensure the adequate representation in public service of the members of the  Scheduled Castes and Scheduled Tribes and justify it as a  compensatory measure to ensure equality of opportunity provided the  measure does not dispense with the acquisition of  the   minimum  basic  qualification  necessary  for  the efficiency of administration.[956 D]      (12) It  is a mistake to assume a priori that there can be no classification within a class, say, the Lower Division Clerks. If there are intelligible differentia which separate a group within that class from the rest and that differentia have nexus  with the  object of  classification, there is no objection to a further classification within the class. [957 C]      All India Station Masters and Assistant Station Masters Association v.  General Manager  Central Railway  and others [1960] 2  S.C.R. 311,  S. C.  Jaisingjamoi v. Union of India and others  [1967] 2  S.C.R. 703  at 712  & State of Jammu & Kashmir v.  Triloki Nath  Khosa & others [1974] 1 S.C.R. 771 held inapplicable.      (13) In the instant case Rule 13AA has been enacted not with the  idea of  dispensing with the minimum qualification required for  promotion to  a higher  category or class, but

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only to give enough breathing space to enable the members of Seheduled Castes  and Scheduled  Tribes to  acquire it.  The purpose of  the classification  made in r. 13AA is to enable them to have their due claim of representation in the higher category without  sacrificing the efficiency implicit in the passing of the test. [958 B]      (14)  The   classification  made   in  r.  13AA  has  a reasonable nexus  with the  purpose of the law. Rule 13AA is not intended  to give  permanent exemption to the members of Scheduled Castes  and Scheduled Tribes from passing the test but only  reasonable time  to enable  to them to do so. That the power  is liable  to be abused is no reason to hold that the rule itself is bad. [958 E] 911 Per Beg J.      The only ground given by the High Court for refusing to give the  benefits of  the impugned  rules and orders to the backward class  Government servants,  that they fall outside the  purview  of  Art.  16(4)  was  not  substantiated.  The respondent has  not discharged  the  burden  establishing  a constitutionally  unwarranted  discrimination  against  him. [963 H]       (1) When citizens are already employed in a particular   grade as government servant considerations relating to the        sources from which they were drawn lose much of their     importance. Neither as members of a single class nor for  purposes of equality of opportunity which is to be afforded   to this class does the fact that some of them also members   of economically and socially backward class continue to be material or, even relevant. Their entry into the me relevant      class as others must be deemed to indicate that they no    longer suffer from the handicaps of a backward class. For    purposes of Government service the source from which they    are drawn should cease to matter. As Government servants. they would form only one class for the purpose of promotion.                                                     [960A-B]      (2) (a)  The specified  and express mode of realisation of the  objects contained  in Art.  16(4), must  exclude the possibility of  the methods  which could be implied and read into  Art.  16(1)  for  securing  them  in  this  field  the applicable  maxim   being  ‘expressio   unius  est  exclusio alterius". [960 H]      (2) (b) The purpose of equality of opportunity by means of tests  is only  to ensure  a fair competition in securing posts and  promotions in  Government service,  and  not  the removal of  causes for  unequal performances in competitions for these posts or promotions. [960 H]      (3)  Article   16(4)  is   designed  to  reconcile  the conflicting pulls  of Art.  16 (1) representing the dynamics of justice  conceived of  as equality  in  conditions  under which candidates  actually compete  for posts  in Government service and  of Arts. 46 and 355 embodying the duties of the State  to   promote  the   interests  of   the  economically educationally and  socially backward  so as  to release them from the  clutches of  social injustice. These encroachments on the  field of  Art. 16(1)  can only  be permitted  to the extent they  are warraned  by Art.  16(4). To  read  broader concepts of  social justice and equality into Art. 16(1) may stultify this provision and make Art. 16(4) otiose. [961C-D]      (4) It  would be  dangerous to  extend  the  limits  of protection  against   the  operation  of  the  principle  of equality of  opportunity in  this field  beyond its  express constitutional authorisation by Art. 16(4). [959 G]      (5) But  if the  impugned rules  and  orders  could  be viewed as  an implementation  of a  policy of  qualified  or

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partial or  conditional reservation  which could satisfy the requirements of  substantial equality  in keeping  with Art. 335 and meet the demands of equality and justice looked from the point of view of Art. 46 of the Constitution, they could also be justified under Art. 16(4) of the Constitution. [963 B-C]      (6) Though  the respondent was not promoted in spite of passing the  efficiency  test  earlier  the  backward  class employees  who   were  given   preference  over   him,  were discharging  their   duties  in   the  higher   grade  quite satisfactorily and  were his  seniors in service. Taking and passing of  a written  test earlier  than  another  employee could not  be the sole factor to consider in deciding upon a claim to  superiority or  to preference  on grounds of merit and efficiency for promotion as a government servant. [962A- B]      (7) The  effect of  the relaxation  is that  a backward class employee  continues in  the  post  temporarily  for  a longer period before being either confirmed or reverted. For this period,  the post  remains reserved for him. If he does not satisfy  the efficiency  tests even  within the extended period he  has to  revert to  the lower  grade. If  he  does satisfy the  special  efficiency  tests.  in  this  extended period. he is confirmed in the class of promotees into which he obtained  entry because  of a  reservation.  One  of  the dictionary meanings of the word 912 ‘reserve’ is  "to keep  back or hold over to a later time or place for  further treatment  etc." The  result of  the rule therefore is a kind of reservation.      (8)  If  reservation  of  posts  under  Art  16(4)  for employees  of   backward  classes   could  include  complete reservation of higher posts to which they could he promoted, there is no reason why it could not be partial or for a part of the  duration  of  service  and  hedged  round  with  the condition that  a temporary.  promotion would  operate as  a complete and  confirmed  promotion  only  if  the  temporary promotee satisfies some tests within a given time. [963 A]      In the  instant cases  apart from  the fact  that it is only  one   of  partial   or   temporary   and   conditional reservation, it  is disputed here that the favoured class of employees constituted  more than  50% of the total number of Governments servants  of this  class (Clerks) if the overall position is  taken into account. Furthermore, a large number of  temporary   promotions  of   backward  class  Government servants of  this grade  had taken  place  in  1972  in  the Department because promotions of this class of employees had been held  up in the past due to want of necessary provision in the  rules. The totality of facts of this case to want of necessary provision  in the  rules. The totality of facts of this case  is distinguishable in their effects from those in T. Devadasan  v. Union of India [1964] 4 S.C.R. 680 and M.R. Balaji & Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439. [963 D-F]      Per Krishna Iyer. J.      (1) The Indian Constitution is a great social document, almost revolutionary  in its aim of transforming a medieval, hierarchical society  into a  modern, egalitarian democracy. Its provisions  can be  comprehended  only  by  a  specious, social-science  approach,   not  by   pedantic,  traditional legalism. [964 E]      (2) (a)  The Preamble to the Constitution silhouettes a ’justice-oriented’ community.  The Directive  Principles  of State Policy, enjoin on the State the promotion with special care the  educational and  economic interests  of the weaker

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sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes and protect them from social injustice. To neglect this obligation is to play truant with Art. 46.  Economic  interests  of  a  group-as  also  social justice to  it-are tied  up with  its place  in the services under the State. [974 A-B]      (b) The unanimous opinion of this Court in Keshavananda Bharti’s case  is  that  the  Court  must  wisely  read  the collective  Directive   Principles  of   Part  IV  into  the individual fundamental  rights of  Part  III,  neither  part being superior to the other. In this case, the supplementary theory,  treating   both  Parts   as   fundamental,   gained supremacy. [977 A]      (c) The upshot is that Art. 46 has to be given emphatic expression while  interpreting Art.  16(1) and  (2).  Indeed Art. 335  is more  specific and  cannot be  brushed aside or truncated in  the operational  ambit vis  a vis Arts. 16 (1) and (2) without hubristic aberration. [977 F-G]      (3) The  conclusions  that  could  be  drawn  from  the provisions of  the Constitution  are: (1)  The  Constitution itself demarcates harijans from others. (2) This is based on the  stark   backwardness  of   this  bottom  layer  of  the community. (3)  The differentiation  has been  made to cover specifically the  area of  appointments to  posts under  the State. (4)  The twin objects blended into one, are claims of harijans to  be considered in such posts and the maintenance of  administrative   efficiency.  (5)  The  State  has  been obligated to  promote the economic interests of harijans and like backward  classes, Arts.  46 and  335 being a testament and Arts.  14 to  16 being  the tool-kit.  To blink  at this panchsheel is to be unjust to the Constitution. [975 B-C]      (4) To  relax on  basic qualifications is to compromise with minimum  administrative efficiency;  to relent,  for  a time,  on  additional  test  qualifications  as  to  take  a calculated but  controlled risk, assured of a basic standard of  performance;  to  encourage  the  possession  of  higher excellence is to upgrade the 913 efficiency status  of the  public servant and eventually, of the department.  This  is  the  sense  and  essence  of  the situation arising in the present case, viewed from the angle of administrative requirements or fair employment criteria.      [967 C-D]      (5) Efficiency  means, in terms of good government, not marks in  examinations only,  but responsible and responsive service to the people. [976 C]      (6)(a) A  bare reading  of Arts. 341 and 342 brings out the quintessential  concept that  the Scheduled  Castes  and Tribes 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. [977 H]      (b) The discerning sense of the Indian Corpus Juris has generally regarded  Scheduled Castes  and Scheduled  Tribes, not as  a caste  but as  a large backward group deserving of societal compassion. [978 B]      (7) (a)  Given two  alternative understandings  of  the relevants sub-Articles  [Arts. 16(1) and (2)] the Court must so  interpret   the  language   as  to   remove  that   ugly ’inferiority’ complex  which  has  done  genetic  damage  to Indian polity  and thereby  suppress the  malady and advance the remedy,  informed by  sociology and social anthropology. The touch-stone  is  that  functional  democracy  postulates participation  by  all  sections  of  the  people  and  fair

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representation  in   administration  is  an  index  of  such participation. [971 E-F]      (b) Clause  (4) of  Art. 16  if closely examined, is an illustration of  constitutionally sanctified classification. Art. 16(4) need not be a saving clause but put in due to the over anxiety  of the  draftsman to make matters clear beyond possibility of doubt. [978 H]      (c)  Reservation   confers  pro   tanto  monopoly,  but classification grants  under Art.  16(1) ordinarily a lesser order of  advantage. The  former is  more rigid,  the latter more flexible,  although they  may overlap  sometimes.  Art. 16(4) covers  all backward  classes; but to earn the benefit of grouping  under Art.  16(1) based on Art. 46 and 335, the twin considerations  of terrible  backwardness of  the  type harijans   endure   and   maintenance   of   adminsistrative efficiency must be satisfied. [979 C-D]      (d) The  fact that  better educational prescription for promotion posts have been upheld by this Court does not rule out other  resonable differentia  having a  nexus  with  the object.  The  true  test  is  what  is  the  object  of  the classification  and  is  it  permissible?  Further,  is  the differentia sound and substantial and clearly related to the approved object? [980 H]      (e) The  genius of  Arts. 14  to  16  consists  not  in literal  equality   but  in   progressive   elimination   of pronounced inequality.  To treat  sharply dissimilar persons equally is  subtle injustice.  Equal opportunity  is a hope, not a menace. [981 B]      In  the  present  case  the  economic  advancement  and promotion of the claims of the grossly under-represented and pathetically  neglected   classes,  otherwise  described  as Scheduled Castes and Scheduled Tribes, consistently with the maintenance of  administrative  efficiency  is  the  object, constitutionally  sanctioned   by  Art.   46  and  335,  and reasonably accommodated  in Art.  16(1). The  differentia so loudly obtrusive,  is the  dismal social milieu of harijans. This has  a rational  relation to  the object set out above. [981 C]      (8) It  is a  statistically proved  social  reality  in India that  the depressed  employment position of harijan is the master  problem in  the battle  against  generations  of retardations and  reservation and  other solutions have made no significant impact on their employment in public service. In such an unjust situation, to maintain mechanical equality is to  prepetuate actual  inequality. Relaxation  of ’tests’ qualification at the floor level of clerical posts is a part of this  multiform  strategy  to  establish  broader  though seemingly differential equality. [983 F] 914 Per Fazal Ali, J.      Rule 13AA is a valid piece of statutory provision which is fully  justified under Art. 16(1) of the Constitution and does not fall within the purview of Art. 16(4). [1007 F]      (1)(a)  Equality  of  opportunity  would  mean  a  fair opportunity not  only to one section or the other but to all sections for  removing the handicaps if a particular section of the  society suffers  from the same. What Art. 14 or Art. 16 forbids  is hostile  discrimination  and  not  reasonable classification. In other words the idea of classification is implicit in  the concept  of equality because equality means equality to  all and not merely to the advanced and educated sections of the society. [992 H; 993 B]      (b) It follows that in order to provide the equality of opportunity to  all citizens,  every class  of citizens must have a  sense of  equal  participation  in  building  up  an

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egalitarian society. [993 C]      (c) The  only manner in which the objective of equality as enshrined  in Art.  14 and 16 can be achieved is to boost up  the   backward  classes   by  giving  them  concessions, relaxations,  facilities,   removing  handicaps  and  making suitable  reservations  so  that  the  weaker  sections  may compete with  the more  advanced and  in due  course  become equals and backwardness is banished for ever. [993 D]      (2)(a) There  is complete unanimity of judicial opinion of  this   Court  that  the  Directive  Principles  and  the Fundamental Rights  should be construed in harmony with each other and  every attempt  should be  made by  the  Court  to resolve apparent inconsistency. [993 H]      (b) The  Directive  Principles  contained  in  Part  IV constitute the  stairs  to  climb  the  high  edifice  of  a socialistic State  and the  Fundamental Rights are the means through which one can reach the top of the edifice. [993 H]      In Re  The Kerala  Education Bill.  1957, [1959] S.C.R. 995; Mohd.  Hanif Quareshi  & Others  v. The State of Bihar, [1959] S.C.R.  629, 648;  I. C. Golak Nath & Others v. State of Punjab  & Anr.,  [1967] 2  S.C.R. 762,  789-790;  Chandra Bhavan Boarding  and Lodging,  Bangalore  v.  The  State  of Mysore and  Anr., [1970]  2 S.C.R.  600  612,  His  Holiness Keshavananda Bharati  Sripadagalvaru v.  State of Kerala and Anr., [1973] 4 S.C.C. 225, referred to.      (c)  The  Directive  Principles  form  the  fundamental feature and  the social conscience of the Constitution which enjoins  upon   the  State   to  implement  these  Directive Principles. The  Directives, thus  provide the  policy,  the guidelines and  the end  of socio-economic freedom and Arts. 14 and  16 are  the means to implement the policy to achieve the ends  sought to be promoted by the Directive Principles. So far as the Court are concerned where there is no apparent inconsistency between  the Directive Principles contained in Part IV  and the  Fundamental Rights  mentioned in Part III, there is  no difficulty in putting a harmonious construction which advances the object of the Constitution. [996 E-F]      (3)(a) The  word ’caste’ appearing after ’Scheduled’ is really a  misnomer and has been used only for the purpose of identifying this  particular class  of citizens  which has a special history  of several  hundred years  behind  it.  The Scheduled Castes  and Scheduled  Tribes have  been a special class of  citizens who  have been  so included and described that they  have come  to be  identified as the most backward classes of citizens of this country. [997 A-B]      (b) Properly  analysed, Art.  46 contains  a mandate to the State  to take  special care  for  the  educational  and economic interests  of the weaker sections of the people and as illustrations  of the  persons who  constitute the weaker sections the  provision  expressly  mentions  the  Scheduled Castes and the Scheduled Tribes. [997 F]      (c) A combined reading of Art. 46 and clauses 24 and 25 of Art.  366 clearly shows that the members of the Scheduled Castes and the Scheduled 915 Tribes must  be presumed  to be backward classes of citizens particularly when  the Constitution gives the example of the Scheduled Castes  and the  Scheduled  Tribes  as  being  the weaker sections of the society. [997 G]      (d) The  members of the Scheduled Castes and the Tribes have been  given a  special status  in the  Constitution and they constitute  a  class  by  themselves.  That  being  the position it follows that they do not fall within the purview of  Art.   16(2)  of   the  Constitution   which   prohibits discrimination between the members of the same caste. If the

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members of the Scheduled Castes and the Scheduled Tribes are not castes  then it  is open to the State to make reasonable classification in  order to advance or lift these classes so that they  may be  able to  be properly  represented in  the services under the State. [998 A-B]      (4)(a) Art.  16 is  merely an  incident of  Art. 14 and both these articles form a part of the common system seeking to achieve the same end. [998 D]      State of  Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1  S.C.C. 771, 783; Mohammad Shujat Ali and others v. Union of  India and  others, [1975] 3 S.C.C. 76, 102; Govind Dattatray Kelkar and others v. Chief Controller of Imports & Exports and others, [1967] 2 S.C.R. 29, 33; S.G. Jaisinghani v. Union  of India  and others. [1967] 2 S.C.R. 703, 712 and The General  Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586, 597, referred to.      (b) Art.  16 applies  to  all  classes  of  appointment including promotions and selection posts. [999 E]      C.A. Rajendran  v. Union  of India  and Ors.,  [1968] 1 S.C.R. 721, 728-729, referred to.      (c) Art. 16 permits a valid classification. [999 H]      State of  Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1  S.C.R. 771,  789; C.A. Rajendran v. Union of India and Ors.,  [1968] 1 S.C.R. 721, 728-729; S.G. Jaisinghani v. Union of  India and  others. [1967]  2 S.C.R.  703, 712; The General Manager,  Southern Railway  v. Rangachari.  [1962] 2 S.C.R. 586,  597 and Mohammad Shujat Ali and others v. Union of India and others, [1975] 3 S.C.C. 76, 102, referred to.      (d) Equality  of opportunity for all citizens envisaged in Art.  16(1) implies  that opportunity  must be  given not only to  a particular section of the society or a particular class of  citizens who  may be  advanced or  otherwise  more affluent but  to  all  classes  of  citizens.  This  can  be achieved by making a reasonable classification so that every class of  citizens is  duly represented in the service which will enable  equality of  opportunity to  all citizens.  The classification must,  however, be reasonable and must fulfil the following conditions. [1000 G]      (i) It  must have a rational basis; (ii) It must have a close nexus  with the object sought to be achieved and (iii) It should  not select  any person for hostile discrimination at the cost of others. [1000 H]      (5) (a)  If the  promotees do  not belong to a caste as contemplated by  Art. 16(2) then they do not fall within the mischief of  Art.  16(2)  at  all.  Thus  the  case  of  the promotees squarely  falls within  the four-corners  of  Art. 16(1)  and   can  be   justified  as   based  on  reasonable classification. [1002 B]      (b) Clause (4) of Art. 16 of the Constitution cannot be read in  isolation but  has to be read as part and parcel of Art. 16(1) and (2). [1002 E]      (c) Clause  (4) of  Art. 16 is not an exception of Art. 14 in the sense that whatever classification can be made can be done  only through  clause (4)  of Art. 16. Clause (4) of Art. 16, however, is an explanation containing an exhaustive and exclusive  provision regarding  reservation which is one of the  forms of  classification. Thus clause (4) of Art. 16 deals exclusively  with reservation  and not  other forms of classification which  can be  made under  Art. 16(1) itself. Since  clause   (4)  is   a  special   provision   regarding reservation, it  can safely  be held  that it overrides Art. 16(1) to  that extent  and no  reservation can be made under Art. 16(1). [1002 G-H] 916      (d) Art.  16(4) is not a proviso to Art. 16(1) but this

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clause covers the whole field of Art. 16. Dissenting view of Subba Rao,  J. in  T. Devandasan v. Union of India. [1964] 4 S.C.R. 680, applied.      (e) Clause  4 of  Art. 16  contains express  provisions empowering the  State to make reservations in suitable cases provided the following conditions are satisfied:      (i) That  the class  for which reservation is made must be socially and educationally backward.      (ii) That  the class  for which  reservation is made is not adequately  represented in the services under the State. [1004 E]      (iii) The reservation should not be too excessive so as to destroy the very concept of equality, and [1005 A]      (iv) Reservation  should not  be made  at the  cost  of efficiency. [1006 C]      (6) In  the instant  case what Rule 13AA does is merely to authorise the Government to exempt for a specified period any member  or members  of the Scheduled Caste and Scheduled Tribes from passing the test referred to in Rule 13 and Rule 13A. The  rule does  not  give  complete  licence.  A  Lower Division Clerk who is a member of the Scheduled Caste or the Scheduled Tribe  could not  be promoted  without passing any test at  all so  as to  destroy the  concept of equality. It merely gives  a special concession or a temporary relaxation to cockward class of citizens in order to lift them, advance them and  enable them  to compete with the stronger sections of the  society. Thus,  the basis of the rule is undoubtedly both rational  and  reasonable.  The  rule  does  not  grant complete exemption  to the  promotees from passing the test. It only  provides for  grant of  extension of time to enable them to  clear the  test. It  cannot, therefore be held that the State’s  action in  incorporating rule  13AA. in any way violates the  mandate contained  in Art. 335. The concession given in  Rule 13AA  amounts to  a reasonable classification which can  be made  under Art.  16(1) and does not amount to the  selection   of  the   respondent  no.   1  for  hostile discrimination so  as to  be violative  of Art. 16(1) of the Constitution. Respondent no. 1 passed the test necessary for promotion to  the Upper Grade on November 2. 1971. He cannot put forward  his claim  for being promoted earlier than that date. Extensions  granted by  the Government  to the  clerks belonging to  the Scheduled  Castes and  Tribes from 1958 to 1972 and  thereafter upto  1974 will affect respondent no. 1 only after  November 2, 1971 and not before that date. [1001 C; F-G; 990 DE]      (7) If  the carry  forward  rule  is  not  upheld  then backwardness  will   be  perpetrated  and  it  would  result ultimately in  a vacuum.  The High  Court was  in  error  in holding that  the State’s action in filling 34 vacancies out of 51   by  members of  the Scheduled  Castes and Tribes was illegal and could not be justified. [1006 C]      (8) A  concession or relaxation in favour of a backward class of  citizens particularly  when  they  are  senior  in experience would not amount to any impairment of efficiency. The High  Court was  in error  in holding that Rule 13AA was ultra vires  and was violative of Art. 16 as it thought that this rule  came within  the mischief of clause 4 of Art, 16. [1006 D-E]      Per Khanna, J. (dissenting)      There is  no infirmity in the finding of the High Court that the  impugned promotions  were violative of Article 335 of the  Constitution. The  Departmental tests are prescribed to ensure  standards of  efficiency for  the  employees.  To promote 34  out of  51 persons although they have not passed the Departmental  tests and  at the same time not to promote

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those who  have passed  the Departmental tests can hardly be conducive to efficiency. [945 H]      (1) It  is not  permissible to waive the requirement of the minimum  educational qualification  and other  standards essential for  the maintenance of efficiency of service. The reservation of seats for the members of the 917 backward class was not to be at the cost of efficiency. This fact was  brought out  in Art.  335 according  to which  the claims of  the members of the Scheduled Castes and Scheduled Tribes shall  be taken  into consideration consistently with the maintenance  of  officiency  of  administration  in  the making of  appointment to  services and  posts in connection with the affairs of the Union or of a State. [939 B; 938 H]      (2)  The   reservation  of   posts  for  a  section  of population has the effect of conferring a special benefit on that section  of the population. Such preferential treatment is plainly a negation of the equality of opportunity for all citizens in matters relating to employment or appointment to an office  under the  State. Clause  (4) of Art. 16 has been construed as  a proviso  or exception  to cl.  (1)  of  that Article. [939 C]      The General  Manager, Southern  Railway v.  Rangachari, [1962] 2  S.C.R. 586 and T. Devadasan v. The Union of Indian JUDGMENT:      (3) The provision of preferential treatment for members of backward classes including Scheduled Castes and Scheduled Tribes is  that contained in cl. (4) of Art. 16. There is no scope for  spelling out such preferential treatment from the language of  cl. (1) of Art. 16 because the language of that clause does  not  warrant  any  preference  to  any  citizen against  another   citizen.  The   language  of  Art.  16(4) indicates that  but for  this clause  it would not have been permissible to make any reservation of appointments or posts in favour of any backward class of citizens. [939 H; 940 A]      All India  Station Masters’  & Asstt.  Station  Masters Assn. &  Ors. v.  General Manager,  Central Railway  & Ors., [1960] 2  S.C.R. 311;  S. G. Jaisinghani v. Union of India & Ors., [1967]  2 S.C.R.  703; and State of Jammu & Kashmir v. Triloki  Nath   Khosa  &   Ors.,  [1974]   1   S.C.R.   771, distinguished.      (4) Equality  of opportunity  in matters  of employment could be  predicated only  between persons  who were  either seeking  the  same  employment  or  had  obtained  the  same employment. Equality  of opportunity in matters of promotion must mean  equality between  members of  the same  class  of employees and  not equality  between  members  of  separate, independent classes. [940 E]      All India  Station Masters’  & Asstt.  Station Masters’ Assn. &  Ors. v.  General Manager.  Central Railway  & Ors., [1960] 2 S.C.R. 311; referred to.      (5) The  concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source.  If the preferential treatment of one source in relation to  the other  is based  on the differences between the two  sources. and the said differences have a reasonable relation to the nature of the office, it can legitimately be sustained on the basis of a valid classification. The reason for the  classification in  that case  was that  the  higher echelons of  the service  should be  filled  by  experienced officers possessing  not only  a high  degree of ability but also first rate experience. [1940 H]      S. G.  Jaisinghani v.  Union of  India & Ors., [1967] 2 S.C.R. 703, referred to.      (6) A  classification based upon the consideration that

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an  employee   belongs  to   a  particular  section  of  the population with  a view to accord preferential treatment for promotion is  clear violation  of  equality  of  opportunity enshrined in cl. (1) of Art. 16. [941 G]      (7) The  essential object of various rules dealing with appointment to posts under the State and promotion to higher posts is  to ensure efficiency of service. Exemption granted to a  class of  employees even  though for a limited period, from  passing   the  departmental   tests  which  have  been prescribed for  the purpose  of promotion would obviously be subversive of the object of ensure efficiency of service. It cannot be  disputed that  departmental tests  are prescribed with a  view to  appraise and ensure efficiency of different employees. To  promote employees  even though  they have not passed such  efficiency test  can hardly  be consistent with the desideratum  of ensuring  efficiency in  administration. [942 B] 918      (8) The  fact that  exemption from passing departmental tests granted  to members  of Scheduled Castes and Scheduled Tribes is  not absolute  but only for a limited period would not lend  constitutionality to the impugned rule and orders. Exemption granted  to a  section of  employees  while  being withheld from the remaining employees has obvious element of discrimination between those to whom it is granted and those from whom  it is  withheld. If  the passing  of departmental tests is  an  essential  condition  of  promotion  it  would plainly be  invidious to  insist upon  compliance with  that condition in  the case of one set of employees and not to do so in  the case  of others.  The basic  question is  whether exemption is constitutionally permissible. [942 D]      (9)(a) Preferential  and favoured  treatment  for  some citizens in  the matter  of employment or appointment to any office under  the State would be antithesis of the principle of equality  of opportunity. Equality of opportunity’ is one of  the  corner-stones  of  our  Constitution.  It  finds  a prominent mention in the preamble to the Constitution and is one of  the pillars  which gives  support and stength to the social, political  and administrative edifice of the nation. [942 F-H]      (b)   Privileges,   advantages,   favours,   exemptions concessions specially  earmarked for  sections of population run counter  to the concept of equality of opportunity, they indeed  eat   into  the  very  vitals  of  the  concept.  To countenance classification  for  the  purpose  of  according preferential treatment to persons not sought to be recruited from different  sources and  in cases not covered by cl. (4) of Art.  16  would  have  the  effect  of  eroding,  if  not destroying altogether  the valued  principle of  equality of opporunity enshrined in cl. (1) of Art. 16. [943 A-B]      (10)(a) To introduce fresh notions of classification in Art. 16(1)  would necessarily have the effect of vesting the State  under  the  garb  of  classification  with  power  of treating sections  of population  as  favoured  classes  for public employment.  It may  not be  difficult to  circumvent that clause mentioning grounds other than those mentioned in cl. (2). [943 C]      (b) To  expand the  frontiers of  classification beyond those which have so far been recognised under cl.(1) of Art. 16 is  bound to  result in  creation of classes for favoured and preferrential  treatment for  public employment and thus erode  the  concept  of  equality  of  opportunity  for  all citizens in  matters relating to employment under the State. [943 D-E]      (11) In  construing the provisions of the Constitution,

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the courts should avoid doctrinaire approach. A constitution is the  vehicle of  the life  of a  nation  and  deals  with practical problems  of the  Government.  It  is,  therefore, imperative that  the approach  to be  adopted by  the courts while construing  the provisions  of the Constitution should be pragmatic  and not  one as a result of which the court is likely to  get lost  in a  maze of  abstract  theories.  The important task  of construing  the article of a Constitution is not  an exercise  in mere  syllogism. It  necessitates an effort to  find the  true purpose and object which underlies that  article.   The   historical   background,   the   felt necessities of  the time,  the balancing  of the conflicting interests must all enter into the crucible when the court is engaged in  the delicate task of construin the provisions of a constitution. [943 E-H]      (12) Another  thing which  must be  kept in  view while construing the  provisions of the Constitution is to foresee as to  what would  be the  impact of  that construction  not merely on the case in hand but also on the future 919 cases which may arise under those provisions. Out of concern for the  facts of  one individual  case, the courts must not adopt a  construction the  effect of  which might be to open the door  for making all kinds of inroads into a great ideal and  desideratum  like  that  of  equality  of  opportunity. Likewise,  the   courts  should  aviod  in  the  absence  of compelling  reason,   a  course   that  has  the  effect  of unsettling a  constitutional position which has been settled over a  long term of years by a series of decisions. [941 A- B]      (13) The  liberal approach that may sometimes have been adopted in  upholding classification  under Art. 14 would in the very  nature of things be not apt in the context of Art. 16 when  the object underlying Art. 16 is kept in view. [944 C]      (14) The  State has  ample power  to make provision for safeguarding the  interest of backward classes under cl. (4) of Art.  16 which  deals with reservation of appointments or posts for backward classes not adequately represented in the services under  the State. Inaction on the part of the State under  or.   (4)  of   Art.  16   cannot  justify   strained construction of cl. (1) of Art. 16. [946 E]      Per Gupta J. (dissenting)      (1) Rule  13AA and  the orders  made thereunder  giving additional opportunity  in this  regard to  some out  of the same class  of employee  would be  obviously void unless the fact that  the favoured  members  of  the  class  belong  to Scheduled Castes  or Scheduled Tribes made and difference in the position. [987 B]      There is  no force  in the  contention that  Art. 16(1) should be read in the light of Art. 46 and 335. Neither Art. 46 and Art. 335 mentions Art. 16(1) nor Art. 16(1) refers to either of  them. All  the  three  Articles  coexist  in  the Constitution and  if is  correct to  say that  one  of  them should be  read in  the light of the other two it is equally right to  suggest that  the two  of them  should read in the light of  the other. This means that the various parts of an organie  instrument   like  the  Constitution  ought  to  be harmoniously construed  but that  is not  the same things as suggesting that  even where  the scope and ambit of one part is clear it should be abridged, extended or amended to prove its affinity  with another  part. Each  limb of the body has its own function. and to try to make one of them do the work of another  is both unnecessary and unwise. This might throw the entire system out of gear. [985 C-D]

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    (2)(a) It  is  difficult  to  see  how  Art.  46  which requires the State to promote with special care the economic interests of the weaker sections of the people especially of the Scheduled  Castes and  Scheduled Tribes, can serve as an aid to the construction of Art. 16(1). [985 H]      (b)  Art.   335  cannot   furnish  any   clue  to   the understanding of  Art. 16(1).  This Article  does not create any right  in  the  members  of  the  Scheduled  Castes  and Scheduled Tribes  which they  might claim  in the  matter of appointments  to   services  and  posts;  one  has  to  look elsewhere, to find out the claims conceded to them. Art. 335 says that  such claims shall be considered consistently with the administrative  efficiency. This  is a  provision  which does not enlarge but qualify such claims as they may have as members of the Scheduled Castes or Scheduled Tribes. [986 C]      (3) Article 14 which guarantees equality before the law and equal protection of the laws does not insist on absolute equality of  treatment to  all persons  in disregard  of all differences among  them  but  provides  for  equality  among equals only,  Art. 16(1) contemplates classifications on the basis of  eligibility for an appointment; those who have the qualifications needed  for the  post form one class. it also implies that  the  same  class  of  employees  constitute  a separate unit.  Art. 16(1)  forbids between  the members  of this class discrimination and denial of equal opportunity in the matter of promotion. [986 D-E; 987 A]      T. Devadasan v. The Union of India [1964] 4 S.C.R. 680; General Manager  Southern Railway  v. Rangachari.  [1962]  2 S.C.R. 586  and Sham  Sunder v.  Union of  India,  [1969]  1 S.C.R. 312, referred to. 920      (4) Art.  16(1) in  clear terms  insists on equality of opportunity for  all employees  of the  same class, and this requirement cannot  be dispensed with because of anything in Art. 46  or Art.  335 which  does not in any way qualify the guarantee in  Art. 16(1).  The Article,  of course,  permits classification,  but   only  such   classification   as   is reasonable, and  the test of reasonableness having regard to the object  of the  Article, must  be whether  the  proposed classification helps  in achieving  this object.  Judging by this test  it is  not possible to hold that the sub-division of Lower  Division Clerks  into two  categories,  those  who belong to  the Scheduled  Castes and  Scheduled Tribes those who do not, is reasonable. [987 E-F]      (5)(a) The  special reference  to the  Scheduled Castes and Scheduled Tribes does  not suggest that the State should promote the economic interests of these castes and tribes at the expense  of other  "weaker sections of the people". [987 H]      (b) There  is nothing  reasonable in  denying  to  some Lower Division  Clerks the same opportunity for promotion as others have because they do not belong to a particular caste or tribe.  Scheduled Castes and Scheduled Tribes, no  doubt, constitute a  well defined class, but a classification valid for one purpose may not be so for another. In the context of Art. 16(1)  the sub-class  made by  r. 13AA  within the same class of employees amounts to discrimination only on grounds of race  and caste which is forbidden by cl. (2) of Art. 16. [988 B]      (6) Picking  out employees  belonging to  the Scheduled Castes and  Scheduled Tribes  from the  same class  of Lower Division Clerks  to give  them additional  opportunity to be promoted as  Upper Division  Clerks is not a measure for the promotion of  the  economic  welfare  of  these  castes  and tribes.  Some   incidental   financial   gain   to   certain

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individuals, assuming  it results  in  the  welfare  of  the castes and  tribes to  which they  belong in some remote and indirect way is not what Art. 46 contemplates. [988 D]      (7)(a) In  any case,  Art. 16  (1) does not permit such classification as  made by  r. 13AA. That rule may have been inspired by  Art.  46  which  requires  the  State  to  take measures to  bridge the  education and  economic gap between the weaker  sections of  the people  and other citizens, but Art. 46  does not qualify the provisions of Art. 16(1). Art. 16(1) speaks  of equality of opportunity, not opportunity to achieve equality. [988 E-F]      State of  Rajasthan &  Ors.  v,  Thakur  Pratap  Singh, [1961] 1 S.C.R. 222, followed.      (b) For  the same  reasons Art.  335 appears to be even less relevant on the question under consideration. [988 F]      (8) The  appalling poverty  and backwardness  of  large sections of  the people  must move the State machinery to do everything in  its power  to better  their condition. Doling out unequal  favours to  members of  the clerical staff does not seem to be a step in that direction. [988 H]      T. Devadasan  v. The  Union of  India, [1964] 4 S.C.R., 680 and M. R. Balaji & Ors. v. State of Mysore, [1963] Supp. 1 S.C.R. 439, referred to.

&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1160 of 1974.      From the  Judgment and Order dated the 19th April, 1974 of the  Kerala High  Court in  Original Petition No. 1656 of 1972.      M. M.  Abdul Khadir, Advocate General, Kerala and K. M. K. Nair for the appellants.      T.  S.   Krishnamoorthy  Iyer,  P.  K.  Pillai  and  N. Sudhakaran for respondent No. 1. 921      R. K.  Garg, V.  J.  Francis  and  K.  R.  Nambiyr  for respondent  Nos.  2-4,  6  and  7  and  the  Intervener  Mr. Surendran.      R. K.  Garg and  O. P. Rana for the intervener-State of U.P.      L. N. Sinha, Sol. Gen. P. P. Rao and Girish Chandra for the Attorney-General for India.      The following Judgments were delivered :      RAY, C.J.  This  appeal  is  by  certificate  from  the judgment dated 19 April, 1974 of the High Court of Kerala.      This appell  is concerns  the validity of Rule 13AA the Kerala  State   and   Subordinate   Services   Rules,   1958 hereinafter called the Rules and two orders which are marked P-2 and P-6.      In order  to appreciate  Rule 13AA,  it is necessary to refer to  Rules 12,  13A, 13AA.  These rules  were framed in exercise of  the powers  conferred by the proviso to Article 309 of  the Constitution. These rules came into existence on 17 December, 1958.      "Promotion" is  defined  in  Rule  2(11)  to  mean  the appointment of  a member  of any  category  or  grade  of  a service or  a class of service to a higher category or grade of such service or class.      Rule  12   states  that   where   general   educational qualifications, special  qualifications or special tests are prescribed by  the  Special  Rules  of  a  service  for  any category, grade  or post  therein, or  in a  class  thereof, which are  not prescribed  for a  category or  grade in such

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service or  class carrying a lower rate of pay and no member in the  category or  grade carrying the lower rate of pay is eligible for  promotion to  such category,  grade or  post a member in  such lower  category or  grade may be promoted to the category  or grade  carrying  the  higher  rate  of  pay temporarily until  a member  of the former category or grade qualified under  this rule  is available  for  promotion.  A member temporarily  promoted under  this rule  shall not  by reason only  of such promotion, be regarded as a probationer in the  category or  grade to which he has been promoted, or be entitled to any preferential claim to future promotion.      Rule 13  speaks of special qualifications. Rule 13 does not concern this appeal.      The two  rules which  are of  importance in this appeal are Rules 13A and 13AA. They are as follows :-           "13A.  Special  and  Departmental  Tests-Temporary      exemption   for   promotion.-Notwithstanding   anything      contained in  rule 13,  where a  pass in  a special  or      departmental test  is newly  prescribed by  the Special      Rules of  a service  for any  category, grade  or  post      therein or  in any class thereof, a member of a service      who has  not passed  the said  test  but  is  otherwise      qualified and  suitable for  appointment to such class,      category, grade  or post  may within  2  years  of  the      introduction  of   the  test   be   appointed   thereto      temporarily. 922      If a  member so appointed does not pass the test within      two years  from the  date of  introduction of  the said      test or  when the  said test  also  involves  practical      training within  two years  after the  first chance  to      undergo such  training he  shall  be  reverted  to  the      class, category  or grade  or post  from which  he  was      appointed  and   shall  not   again  be   eligible  for      appointment under this rule :           Provided that  a person  so reverted  shall not by      reason only  of the  appointment  under  this  rule  be      entitled  to   any   preferential   claim   to   future      appointment to  the class,  category, grade or post, as      the case  may be  to which  he had been appointed under      this rule :           Provided further  that  the  period  of  temporary      exemption shall be extended by two years in the case of      a person  belonging to  any of  the scheduled castes or      scheduled tribes.           Provided  also   that  this   rule  shall  not  be      applicable  to   tests  prescribed   for  purposes   of      promotion of  the executive staff below the rank of Sub      Inspectors belonging to the Police Department".           "13AA. Notwithstanding anything contained in these      Rules, the  Government may,  by  order,  exempt  for  a      specified period, any member or members, belonging to a      Scheduled Caste  or a  Scheduled Tribe,  and already in      service, from  passing the tests referred to in rule 13      or rule 13A of the said Rules.           Provided that this rule shall not be applicable to      tests prescribed  for  purposes  of  promotion  of  the      executive  staff  below  the  rank  of  Sub  Inspectors      belonging to the Police Department".      It is necessary to state here that the third proviso to Rule 13A  and the  proviso to Rule 13AA were introduced with effect from  12 October, 1973. Rule 13AA was introduced with effect from  13 January, 1972. Exhibit P-2 is an order dated 13 January,  1972. The  order is  made by  the Governor. The order refers  to a  memorandum dated  19 June, 1971 from the

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President, Kerala  Harijan Samskarika  Kshema Samithy, State Committee. Trivandrum  and a  letter dated 13 November, 1971 from the  Secretary, Kerala  Public Service  Commission. The order is as follows :-           "The President,  Kerala Harijan  Samskarika Kshema      Samithy,  Trivandrum  has  brought  to  the  notice  of      Government that a large number of Harijan employees are      facing immediate reversion from their posts for want of      test qualifications  and has  therefore requested  that      all Scheduled Castes and Scheduled Tribes emplovees may      be  granted   temporary  exemption   from  passing  the      obligatory depart  mental tests  for a  period  of  two      years with immediate effect.           (2)  Government   have  examined   the  matter  in      consultation with  the Kerala Public Service Commission      and are pleased to grant temporary exemption to members      already 923      in service belonging to any of the Scheduled Castes and      Scheduled Tribes  from passing  all tests  (unified and      special or  departmental tests)  for a  period  of  two      years.           (3) The  benefit of  the above  exemption well  be      available to  those employees  belonging  to  Scheduled      Castes and  Scheduled Tribes  who are  already enjoying      the benefits  of temporary exemption from passing newly      prescribed tests under General Rule 13A. In their case,      the temporary exemption will expire only on the date of      expiry of the temporary exemption mentioned in para (2)      above  or  on  the  date  of  expiry  of  the  existing      temporary exemption, whichever is later.           (4) This  order will  take effect from the date of      the order".      Exhibit P-6  is an  order dated 11 January, 1974. It is an order made by the Governor. The order is as follows :-           "Government are  pleased to  order that the period      of temporary  exemption granted to Scheduled Castes and      Scheduled Tribes  in the  G.O. read  above from passing      all tests  (unified and  special or departmental tests)      be extended  from 13-1-1974  to cover  a period  during      which  two   tests  are  held  by  the  Public  Service      Commission and  results thereof  published so that each      individual gets  two chances to appear. Government also      order that  these categories  of employees  will not be      given any further extension of time to acquire the test      qualifications."      Pursuant to  Rule 13AA  which came  into force  on 13th January, 1972  the  order  Exhibit  P-2  was  passed  on  13 January,  1972   granting  temporary  exemption  to  members already in  service belonging to any of the Scheduled Castes and Scheduled  Tribes from  passing all  tests (unified  and special or  departmental tests)  for a  period of two years. The exemption  granted by  Exhibit P-2  in almost  all cases would have expired on 12 January, 1974.      The other  impugned order  is  Exhibit  P-6  which  was passed on 11 January, 1974 gave further exemption to members of Scheduled  Castes and  Tribes from  13 January, 1974 from passing tests to cover a period during which two tests would be held by the Public Service Commission and results thereof published so  that each  individual would get two chances to appear within  that period. The Government also ordered that these categories of employees would not be given any further extension of time to acquire the test qualifications.      On  the   basis  of  these  exemption  orders,  several promotions have been effected. The respondent alleged in the

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writ petition that 12 Lower Division Clerks who were members of Scheduled  Castes  and  Scheduled  Tribes  were  promoted without test  qualification. The  further allegation is that by an order dated 15 June, 1972, 19 Lower 924 Division Clerks  belonging to  Scheduled Castes  and  Tribes were promoted  as Upper  Division Clerks  of  which  5  were unqualified Scheduled  Castes and  Scheduled Tribes  members and 14  were qualified Scheduled Castes and Scheduled Tribes members. By  order  dated  19  September,  1972,  another  8 promotions of  members of  Scheduled Castes  and Tribes were ordered of  which only  two were qualified and the remaining six were  unqualified. By  another order dated 31st October, 1972, 7  Scheduled Castes  and Scheduled Tribes members were promoted without  qualifying test  and one was promoted with the  qualifying  test.  The  grievance  of  the  respondent- petitioner  before  the  High  Court  was  that  out  of  51 vacancies which  arose in  the category  of  Upper  Division Clerks in  the year  1972, 34  were filled  up by  Scheduled Castes members  who did  not possess qualifications and only 17 were given to qualified persons.      The respondent is a Lower Division Clerk working in the Registration Department.  For promotion  to  Upper  Division Clerk in  that Department  on the  basis of  seniority,  the Lower Division Clerks have to pass (1) Account Test (Lower), (2) Kerala  Registration Test  and (3)  Test in  the  manual office procedure. The respondent’s grievance is that in view of certain  concessions given to members of Scheduled Castes and Scheduled  Tribes, they  were able  to obtain promotions earlier than  the respondent,  though  the  members  of  the Scheduled Castes  and Scheduled Tribes who were promoted had not passed the tests.      The respondent  in the  writ petition filed in the High Court  asked   for  a   declaration  that   Rule   13AA   is unconstitutional and  mandamus for  compelling the  State to forbear from  giving effect  to order dated 13 January, 1972 marked Exhibit P-2. The respondent by an affidavit asked for a similar  order that  Exhibit P-6 dated 11 January, 1974 be set aside.      The respondents’  contentions in  the High  Court  were that Rule  13AA of  the Service  Rules and Exhibits P-2, P-6 and Exhibit  P-7 which  was another  order dated  31 October 1972 and  all  orders  of  promotion  made  thereunder  were violative of Articles 16(1) and 16(2). The High Court upheld the contentions of respondent No. 1.      The contention  of the State is that the impugned rules and orders  are not  only legal and valid but also support a rational classification under Article 16(1).      The contentions  on behalf  of  respondent  No.  1  are these. First Article 16 is a specific application of Article 14 in  matters relating  to employment or appointment to any service in the State. Clauses (1) and (2) of Article 16 give effect to  equality before  law guaranteed by Article 14 and to prohibition  against discrimination guaranteed by Article 15(1). In  other words,  Article 16(1)  is absolute in terms guaranteeing equality  of opportunity  to  every  indivdiual citizen  seeking  employment  or  appointment.  Emphasis  is placed  on  similar  opportunity  and  equal  treatment  for seeking employment  or appointment. Second, matters relating to employment in Article 16(1) in- 925 clude all  matters in  relation to employment both prior and subsequent to  the employment and form part of the terms and conditions of  service. Equal opportunity is to be given for appointment,  promotion,   termination  of   employment  and

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payment of  pension and  gratuity. Third, the abridgement of equality guaranteed  by Article  16(1) is only to the extent curtailed by  Article 16(4).  Apart from  Article 16(4), the right guaranteed  under Article  16(1) cannot  be curtailed. Article 16(4)  is, in  substance,  an  exception  to  rights guaranteed by  Article 16(1)  and (2). Fourth, Article 16(4) does not  cover the  entire field  occupied by Article 16(1) and (2).  Some of  the matters  relating  to  employment  in respect of which equality of opportunity has been guaranteed by Article  16(1) and (2) do not fall within the mischief of non-obstante clause in Article 16(4). To illustrate, clauses (1) and  (2) of  Article 16 do not prohibit the prescription of reasonable  rules for  selection  to  any  employment  or appointment in office. Any provision as to the qualification for employment or appointment in office reasonably fixed and applicable to  all citizens  would be  consistent  with  the doctrine  of  equality  of  opportunity  in  Article  16(1). Reasonable qualification  of employment  for the  purpose of efficiency of  service is  justified. Fifth,  rule  13AA  is violative of  Article 16(1)  and (2). The impeached Exhibits fall within the same mischief. There is no scope for dealing with Scheduled  Castes and  Scheduled Tribes  different from other  backward   classes.  Exemption   from   qualification necessary for  promotion is not conducive to the maintenance of  efficiency  of  administration  and  violates  not  only Article 335 of the Constitution but also Article 16(1).      Before  the   introduction  of  the  Kerala  State  and Subordinate Services  Ruless 1958  on 17  December, 1958 and also the  formation of Kerala State on 1 November, 1956, the Travancore-Cochin Government  had issued  orders on 14 June, 1956 directing  that the standard of qualification should be lower for  members of  Scheduled Castes and Scheduled Tribes than compared  to  others  in  the  matter  of  examinations relating to  various tests.  By Government  order  dated  27 June, 1958, it was directed that the peiod of exemption from passing tests  be extended  by two  years  in  the  case  of Scheduled Castes  and Scheduled  Tribes. Again by Government order dated  2 January,  1961. the  period of  exemption  to Scheduled Castes  and Scheduled  Tribes was further extended to 3  years. By  another Government  order dated 14 January, 1963, a  unified account  test (lower)  and a test in office procedure were  introduced replacing  the old  tests and  as this was  treated as  a  new  test,  all  persons  who  were formerly in  Travancore-Cochin or  Madras Service were given two years’  time  to  pass  the  test  and  members  of  the Scheduled Castes  and Scheduled Tribes were given extra time in accordance  with the orders earlier mentioned. A circular was issued  on 9  February, 1968 granting 7 years’ time from 14 January,  1963 to  members of  the Scheduled  Castes  and Scheduled Tribes  to pass the unified tests. This period was to expire on 14 January, 1970. On 13 January, 1970, an order was passed  extending the  time for  another  year  upto  14 January, 1971.  On 14 January, 1971 another Government order was issued extending the period by another year. 926      It was  brought to  the notice  of the  Government that large number  of Government  servants belonging to Scheduled Casts  and   Scheduled  Tribes  were  unable  to  get  their promotion because  of want  of test qualifications. In order to give relief to the Scheduled Castes and Scheduled Tribes, the Government  incorporated Rule  13AA  which  enabled  the Government to grant exemption to members of Scheduled Castes and Scheduled  Tribes for a specified period. On 13 January, 1972 exemption from passing the tests was granted to members of Scheduled  Castes and  Scheduled Tribes for two years. On

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11 January,  1974 order  was made  under  Rule  13AA  giving members of  Scheduled Castes  and Scheduled Tribes exemption from passing  the tests  for the  period of  two tests to be conducted after the order dated 11 January, 1974.      The criterion for promotion of Lower Division Clerks to Upper Division  Clerks is seniority-cum-merit qualification. For want  of test  qualification a  large  number  of  Lower Division Clerks  belonging to Scheduled Castes and Scheduled Tribes were  passed over.  It is  because of  the  aforesaid Government order  dated 13  January, 1972 marked exhibit P-2 that promotions  were made  according to seniority-cum-merit qualification. The  larger share  went to the members of the Scheduled Castes  and Scheduled  Tribes  because  they  were senior hands. After the issue of the order dated 13 January, 1972, 34  out of  51 Lower Division Clerks who were promoted belonged to the Scheduled Castes and Scheduled Tribes. These 34 persons  were given  temporary exemption from passing the departmental tests. It also appears that these 34 members of Scheduled Castes  and Scheduled  Tribes have  become  senior most in the lower cadre.      Articles 14,  15 and  16  form  part  of  a  string  of constitutionally guaranteed  rights. These rights supplement each  other.  Article  16  which  ensures  to  all  citizens equality of opportunity in matters relating to employment is an incident  of guarantee  of equality  contained in Article 14. Article  16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable  classification of  the  employees  in  matters relating to employment or appointment.      This Court  in the  State of  Gujarat and  Anr. etc. v. Shri Ambica  Mills Ltd.  Ahmedabad etc.(1)  said "The  equal protection of  the laws  is a  pledge of  the protection  of equal laws.  But laws  may classify.  And the  very idea  of classification is  that  of  inequality.  In  tackling  this paradox the  Court has  neither  abandoned  the  demand  for equality nor  denied the  legislative right  to classify. It has taken a middle course. It has resolved the contradictory demands of  legislative  specialization  and  constitutional generality by  a doctrine of reasonable classification. (See Joseph Tussman  and Jacobus ten Breck, "The Equal Protection of the Laws", 37 California Rev. 341.)" 927      In the  Ambica Mills  case (supra) this Court explained reasonable classification  to be  one which includes all who are similarly situated and none who are not. The question as to who  are similarly  situated has been answered by stating that one  must look beyond the classification to the purpose of law.  "The purpose of a law may be either the elimination of a  public mischief  or the  achievement of  some positive public good."      Discrimination  is   the  essence   of  classification. Equality is  violated if it rests on unreasonable basis. The concept of  equality has an inherent limitation arising from the very  nature of  the constitutional guarantee. Those who are  similarly   circumstanced  are  entitled  to  an  equal treatment. Equality  is amongst  equals. Classification  is, therefore, to  be founded  on substantial  differences which distinguish persons  grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved.      The crux of the matter is whether Rule 13AA and the two orders Exhibits  P-2 and  P-6 are unconstitutional violating Article  16(1).   Article  16(1)   speaks  of   equality  of opportunity in matters relating to employment or appointment

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under the  State. The  impeached Rule  and orders  relate to Promotion from  Lower  Division  Clerks  to  Upper  Division Clerks. Promotion  depends upon  passing the test within two years in  all cases  and exemption  is granted to members of Scheduled Castes  and Scheduled  Tribes for  a longer period namely, four  years. If  there is  a rational classification consistent with the purpose for which such classification is made  equality   is  not   violated.   The   categories   of classification for purposes of promotion can never be closed on the  contention that  they are  all members  of the  same cadre in  service. If  classification is made on educational qualifications   for    purposes   of    promotion   or   if classification is  made on  the ground  that the persons are not similarly  circumstanced in  regard to  their entry into employment,   such    classification   can   be   justified. Classification between  direct recruits  and  promotees  for purposes of  promotion has  been held to be reasonable in C. A. Rajendran v. Union of India(1).      The respondent  contended that apart from Article 16(4) members of  Scheduled Castes  and Scheduled  Tribes were not entitled to  any favoured  treatment in regard to promotion. In T.  Devadasan v. The Union of India & Anr.(2) reservation was made  for backward classes. The number of reserved seats which  were  not  filled  up  was  carried  forward  to  the subsequent year.  On the  basis of "carry forward" principle it  was   found  that  such  reserved  seats  might  destroy equality. To  illustrate, if  18 seats were reserved and for two succesive  years the  reserved seats were not filled and in the  third year there were 100 vacancies the result would be that  54 reserved  seats would  be occupied  out  of  100 vacancies. This  would  destroy  equality.  On  that  ground "carry forward"  principle was  not sustained in Devadasan’s case (supra).  The same  view was taken in the case of M. R. Bajali and  Others v.  State of  Mysore(3). It was said that not 928 more than  50 per  cent  should  be  reserved  for  backward classes.  This  ensures  eqalality.  Reservation  is  not  a constitutional compulsion  but is discretionary according to the ruling of this Court in Rajendran’s case (supra).      There is  no denial  of equality  of opportunity unless the  person  who  complains  of  discrimination  is  equally situated with  the person or persons who are alleged to have been favoured.  Article 16(1)  does  not  bar  a  reasonable classification of  employees or  reasonable tests  for their selection State of Mysore v. V. P. Narasinga Rao(1).      This equality  of opportunity need not be confused with absolute equality.  Article  16(1)  does  not  prohibit  the prescription  of  reasonable  rules  for  selection  to  any employment or  appointment  to  any  office.  In  regard  to employment, like  other terms and conditions associated with and incidental  to it,  the promotion to a selection post is also included in the matters relating to employment and even in regard  to such  a promotion to a selection post all that Article 16(1)  guarantees is  equality of opportunity to all citizens. Articles  16(1) and  (2) give  effect to  equality before law  guaranteed by  Article 14 and to the prohibition of discrimination  guaranteed by Article 15(1). Promotion to selection post is covered by Article 16(1) and (2).      The power  to make  reservation, which  is conferred on the State, under Article 16(4) can be exercised by the State in a  proper case  not only  by providing for reservation of appointments  but  also  by  providing  for  reservation  of selection   posts.   In   providing   for   reservation   of appointments or  posts under  Article 16(4) the State has to

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take into  consideration the  claims of the backward classes consistently with  the  maintenance  of  the  efficiency  of administration. It must not be forgotten that the efficiency of administration  is of  such paramount  importance that it would be unwise and impermissible to make any reservation at the cost  of efficiency of administration. (General Manager, S. Rly.  v. Rangachari.  The present  case  is  not  one  of reservation of posts by promotion.      Under  Article   16(1)  equality   of  opportunity   of employment means  equality as  between members  of the  same class of  employees and  not  equality  between  members  of separate, independent  class. The  Roadside Station  Masters and Guards  are recruited separately, trained separately and have separate  avenues of  promotion. The  Station  Mas  ers claimed equality  of opportunity for promotion vis-a-vis the guards on  the ground that they were entitled to equality of opportunity. It  was said he concept of equality can have no existence except  with reference to matters which are common as between individuals, between whom equality is predicated. The Road-side  Station  Masters  and  Guards  were  required separately. Therefore,  the two  form distinct  and separate classes and  there is  no scope  for predicating equality or inequality of  opportunity in  matters of promotion. See All India 929 Station Masters  and Assistant  Station Masters’ Association v. General Manager, Central Railways(1). The present case is not to  create  separate  avenues  of  promotion  for  these persons.      The rule  of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating  between different persons or things in different circumstances.  The circumstances which govern one set of persons or objects may not necessarily be the same as those governing  and her  set of  persons or objects so that the question  of unequal  treatment does  not  really  arise between  persons   governed  by   different  conditions  and different sets  of circumstances.  The principle of equality does not mean that every law must have universal application for all  persons  who  are  not  by  nature,  attainment  or circumstances in  the same position and the varying needs of different classes  of persons require special treatment. The legislature understands  and appreciates the need of its own people, that its laws are directed to problems made manifest by experience  and that  its discriminations  are based upon adequate grounds.  The  rule  of  classification  is  not  a natural and  logical corollary  of the rule of equality, but the rule  of differentiation  is inherent  in the concept of equality. Equality means parity of treatment under parity of conditions. Equality  does not  connote absolute equality. A classification in  order to be constitutional must rest upon distinctions that  are substantial  and not merely illusory. The test  is whether  it has  a reasonable  basis free  from artificiality and  arbitrariness embracing  all and omitting none naturally falling into that category.      The following  decisions illustrate  how classification for promotion  has been upheld within the content of Article 16.      There can  be cases  where the  differences between the two groups  of recruits  may not  be sufficient  to give any preferential treatment  to one  against  the  other  in  the matter of  promotions, and  in that  event a  Court may hold that there  is no  reasonable nexus  between the differences and the  recruitment.  [Govind  Dattatray  Kelkar  v.  Chief Controller of Imports(2)].

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    The equality  of opportunity  takes within its fold all stages  of   service  from   initial  appointment   to   its termination including promotion but it does not prohibit the prescription  of   reasonable  rules   for   selection   and promotion, applicable  to all members of a classified group. Ganga Ram v. Union of India(3).      When  the  petitioner  and  the  direct  recruits  were appointed to  Grade ‘D’,  there was  one class  of Grade ‘D’ formed of  direct recruits  and the promotees from the grade of artisans. The recruits from both 930 the sources  to Grade ‘D’ were integrated into one class and no discrimination  could thereafter  be made  between  them. There  was   only  one   rule  of  promotion  for  both  the departmental promotees  and the  direct recruits. Roshan Lal Tandon v. Union of India(1).      In State  of Jammu  & Kashmir  v. Triloki  Nath Khosa & Ors.(2)  this   Court  said   that  dealing  with  practical exigencies  a   rule  making  authority  may  be  guided  by realities just  as the  legislature "is  free  to  recognise degrees of harm and it may confine its restrictions to those classes of  cases  where  the  need  is  deemed  to  be  the clearest". Educational  qualifications  in  that  case  were recognised as  criteria  for  determining  the  validity  of classification. The discrimination is not in relation to the source of recruitment unlike in Roshan Lal’s case (supra).      The rule  of equality within Articles 14 and 16(1) will not be  violated by  a rule  which will  ensure equality  of representation in  the services  for  unrepresented  classes after  satisfying   the  basic   needs  of   efficiency   of administration.  Article  16(2)  rules  out  some  basis  of classification including  race,  caste,  descent,  place  of birth  etc.   Article  16(4)  clarifies  and  explains  that classification on  the basis  of backwardness  does not fall within Article  16(2) and  is legitimate for the purposes of Article 16(1).  If preference shall be given to a particular under-represented community  other than  a backward class or under-represented State  in an All India Service such a rule will  contravene   Article  16(2).  A  similar  rule  giving preference to  an  underrepresented  backward  community  is valid and  will not contravene Articles 14, 16(1) and 16(2). Article 16(4) removes any doubt in this respect.      The principle  of equality  is applicable to employment at  all   stages  and   in  all  respects,  namely,  initial recruitment, promotion,  retirement, payment  of pension and gratuity. With regard to promotion the normal principles are either    merit-cum-seniority     or    seniority-cum-merit. Seniority-cum-merit means  that given  the minimum necessary merit requisite for efficiency of administration, the senior though the  less meritorious  shall have priority. This will not violate  Articles 14,  16(1) and  16(2).  A  rule  which provides that  given the necessary requisite merit, a member of the  backward class shall get priority to ensure adequate representation will  not similarly  violate  Article  14  or Article 16(1)  and (2).  The relevant touchstone of validity is to  find out  whether  the  rule  of  preference  secures adequate  representation   for  the  unrepresented  backward community or goes beyond it.      The classification  of employees belonging to Scheduled Castes and  Scheduled Tribes  for allowing  them an extended period of  two years  for  passing  the  special  tests  for promotion is  a just  and reasonable  classification  having rational nexus  to the object of providing equal opportunity for all  citizens  in  matters  relating  to  employment  or appointment  to   public  office.   Granting  of   temporary

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exemptions from 931 special tests to the personnel belonging to Scheduled Castes and  Scheduled  Tribes  by  executive  orders  has  been  an integral feature  of the  service conditions  in Kerala from its very inception on 1 November, 1956. That was the pattern in Travancore-Cochin  State. The  special treatment accorded to the  Scheduled Castes  and Scheduled Tribes in Government service which  had become  part and parcel of the conditions of  service  over  these  long  periods  amply  justify  the classification of  the members  of the  Scheduled Castes and Scheduled Tribes  as a whole by the impugned rule and orders challenged. What  was achieved  by the  Government orders is now given  a statutory  basis by  Rule 13AA.  The historical background of  these rules  justifies the  classification of the personnel  of the  Scheduled Castes and Scheduled Tribes in service  for the  purpose of granting them exemption from special tests  with a  view to ensuring them the equality of treatment and  equal opportunity  in matters  of  employment having regard to their backwardness and under representation in the employment of the State.      The Constitution  makes a  classification of  Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate  to  the  State  to  accord  special  or  favoured treatment to them. Article 46 contains a Directive Principle of State Policy-fundamental in the governance of the country enjoining the State to promote with special care educational and economic interests of the Scheduled Castes and Scheduled Tribes and  to protect  them from  any social  injustice and exploitation. Article  335 enjoins  that the  claims of  the members of  the Scheduled Castes and Scheduled Tribes to the services and  posts in  the Union  and the  States shall  be taken  into   consideration.  Article   338   provides   for appointment by  the President  of a  Special officer for the Scheduled Castes  and Scheduled  Tribes to  investigate  all matters relating  to the  safeguards provided for them under the Constitution.  Article  341  enables  the  President  by public notification to specify castes, races or tribes which shall be deemed to be Scheduled Castes in the States and the Union  Territories.   Article  342  contains  provision  for similar notification in respect of Scheduled Tribes. Article 366(24) and  (25) defines  Scheduled  Castes  and  Scheduled Tribes. The  classification by  the impugned  rule  and  the orders is with a view to securing adequate representation to Scheduled Castes and Scheduled Tribes in the services of the State as otherwise they would stagnate in the lowest rung of the State services.      Article 335  of the  Constitution states that claims of members of  the Scheduled  Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to the services  and posts  in connection  with affairs  of the State consistent  with  the  maintenance  of  efficiency  of administration. The  impugned rule  and the  impugned orders are  related   to  this   constitutional  mandate.   Without providing for  relaxation of  special tests  for a temporary period it  would not  have been  possible to  give  adequate promotion  to   the  Lower   Division  Clerks  belonging  to Scheduled Castes  and Scheduled Tribes to the posts of Upper Division Clerks.  Only those  Lower Division Clerks who were senior in  service will  get the  benefit of  the relaxation con- 932 templated by  Rule 13AA  and the impeached orders. Promotion to Upper  Division from  Lower Division  is governed  by the rule of  seniority subject  only to passing of the qualified

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test. The temporary relaxation of test qualification made in favour of Scheduled Castes and Scheduled Tribes is warranted by their inadequate representation in the services and their overall backwardness.  The classification  of the members of the Scheduled Castes and Scheduled Tribes already in service made under Rule 13AA and the challenged orders for exempting them for  a temporary  period from passing special tests are within the  purview of  constitutional mandate under Article 335 in consideration of their claims to redress imbalance in public service  and to bring about parity in all communities in public services.      The High  Court was wrong in basing its conclusion that the result  of application  of the  impeached Rule  and  the orders is  excessive and  exorbitant namely  that out  of 51 posts, 34  were given to the members of the Scheduled Castes and Scheduled Tribes. The promotions made in the services as a whole  are nowhere  near 50% of the total number of posts. The Scheduled  Castes and Scheduled Tribes constitute 10% of the State’s population. Their share in the gazetted services of the State is said to be 2% namely 184 out of 8,780. Their share in  the non-gazetted  appointments is  only 7%  namely 11,437 out  of 1,62,784.  It is therefore, correct that Rule 13AA and  the orders  are meant  to implement  not only  the direction under Article 335 but also the Directive Principle under Article 46.      Scheduled Castes  and Scheduled  Tribes are not a caste within the  ordinary  meaning  of  caste.  In  Bhaiyalal  v. Harikishan Singh and Ors.(1) this Court held that an enquiry whether the  appellant there  belonged to  the  Dohar  caste which was  not recognised  as  a  Scheduled  Caste  and  his declaration that  he belonged to the Charmar caste which was a Scheduled  Caste could  not be  permitted because  of  the provisions contained  in Article 341. No Court can come to a finding that  any caste or any tribe is a Scheduled Caste or Scheduled Tribe.  Scheduled Caste  is a  caste  as  notified under Article  366(25). A  notification  is  issued  by  the President under  Article 341  as a  result of  an  elaborate enquiry. The  object of Article 341 is to provide protection to the  members of  Scheduled Castes  having regard  to  the economic  and   educational  backwardness  from  which  they suffer.      Our  Constitution  aims  at  equality  of  statuts  and opportunity  for  all  citizents  including  those  who  are socially,  economically   and  educationally  backward.  The claims of  members  of  backward  classes  require  adequate representation  in  legislative  and  executive  bodies.  If members of Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement   of   administrative   efficiency,   not   only representation but  also preference  may be given to them to enforce equality and to eliminate inequality. Articles 15(4) and 16(4)  bring out  the position  of backward  classes  to merit  equality.   Special  provisions   are  made  for  the advancement  of   backward  classes   and  reservations   of appointments  and   posts  for   them  to   secure  adequate representation. These provisions will bring 933 out the content of equality guaranteed by Articles 14, 15(1) and 16(1).  The basic  concept of  equality is  equality  of opportunity  for  appointment.  Preferential  treatment  for members   of   backward   classes   with   due   regard   to administrative  efficiency   alone  can   mean  equality  of opportunity for  all citizens.  Equality  under  Article  16 could not  have a  different  content  from  equality  under Article 14.  Equality of  opportunity for  unequals can only

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mean aggravation  of  inequality.  Equality  of  opportunity admits   discrimination    with   reason    and    prohibits discrimination without  reason. Discrimination  with reasons means rational  classification  for  differential  treatment having nexus  to the  constitutionally  permissible  object. Preferential representation  for  the  backward  classes  in services with  due regard  to administrative  efficiency  is permissible object  and  backward  classes  are  a  rational classification reconginsed  by our  Constitution. Therefore, differential treatment  in standards of selection are within the concept of equality.      A rule  in  favour  of  an  under-represented  backward community  specifying  the  basic  needs  of  efficiency  of administration will  not contravene  Articles 14,  16(1) and 16(2). The rule in the present case does not impair the test of efficiency  in  administration  inasmuch  as  members  of Scheduled Castes and Tribes who are promoted have to acquire the qualification  of passing  the test. The only relaxation which is  done in  their case  is that  they are granted two years more  time than  others to  acquire the qualification. Scheduled Castes and Tribes are descriptive of backwardness. It is  to the  aim of our Constitution to bring them up from handicapped position  to improvement.  If classification  is permissible under  Article 14,  it  is  equally  permissible under  Article  16,  because  both  the  Articles  lay  down equality. The  quality and  concept of  equality is  that if persons are dissimilarly placed they cannot be made equal by having the same treatment. Promotion of members of Scheduled Castes and  Tribes under  the impeached  rules and orders is based on  the classification  with the  object  of  securing representation to  members of  Scheduled Castes  and Tribes. Efficiency has been kept in view and not sacrificed.      All legitimate  methods are  available for  equality of opportunity in  services under  Article 16(1). Article 16(1) is affirmative  whereas Article  14 is negative in language. Article 16(4)  indicates one  of the  methods  of  achieving equality embodied  in Article 16(1). Article 16(1) using the expression "equality"  makes it  relatable to all matters of employment   from    appointment   through   promotion   and termination to  payment of  pension  and  gratuity.  Article 16(1) permits  classification on  the basis  of  object  and purpose  of   law  or  State  action  except  classification involving discrimination  prohibited by Article 16(2). Equal protection of  laws necessarily involves classification. The validity  of   the  classification  must  be  adjudged  with reference to  the purpose  of law. The classification in the present  case   is  justified   because   the   purpose   of classification is  to enable members of Scheduled Castes and Tribes to  find representation  by promotion  to  a  limited extent. From  the point  of  view  of  time  a  differential treatment is given to members of Scheduled Castes and Tribes for the  purpose of  giving them  equality  consistent  with efficiency. 934      For the  foregoing reasons,  I uphold  the validity  of Rule 13AA  and Exhibits P-2 and P-6. The appeal is accepted. The judgment  of the  High Court  is set aside. Parties will pay and bear their own costs.      KHANNA, J.  Whether  the  State  Government  can  grant exemption for  specified period  to employees belonging only to the  scheduled castes  or scheduled  tribes from  passing departmental test  for the purpose of promotion under clause (1) of  article 16  of the  Constitution  is  the  important question which arises for determination in this appeal filed on certificate  by the  State of  Kerala and  the  Inspector

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General of  Registration against  the judgment of the Kerala High Court.  The High  Court answered  the question  in  the negative in a petition filed by N. M. Thomas, lower division clerk of  the Registration  Department of  the Kerala State, respondent No. 1, under article 226 of the Constitution.      According to  clause (a)  of rule  13 in Part II of the Kerala  State   and   Subordinate   Services   Rules,   1958 (hereinafter referred  to as the rules) framed under article 309 of  the Constitution,  no person  shall be  eligible for appointment to  any service, class, category or grade or any post borne  on the  cadre thereof  unless he  possesses such special qualifications  and has passed such special tests as may be  prescribed in  that behalf  in the Special Rules. In January 1963  a unified  test was  prescribed by  the Kerala Government for  lower division  clerks for  promotion to the upper division.  A pass  in the test in the Manual of Office Procedure,  Account  Test  and  the  Registration  Test  was obligatory for  promotion of  lower division clerks as upper division clerks  in the  Registration Department.  Rule 13A, however, provided  for temporary  exemption from  passing  a newly prescribed  special or  departmental test for a period of two years. Rule 13A reads as under :           "Notwithstanding anything  contained in  rule  13,      where a pass in a special or departmental test is newly      prescribed by  the Special  Rules of  a service for any      category,  grade  or  post  therein  or  in  any  class      thereof, a  member of  a service who has not passed the      said test  but is  otherwise qualified and suitable for      appointment to  such class, category, grade or post may      within 2  years of  the introduction  of  the  test  be      appointed thereto temporarily. If a member so appointed      does not  pass the  test within two years from the date      of introduction  of the said test or when the said test      also involves  practical  training,  within  two  years      after the  first chance  to undergo  such  training  he      shall be  reverted to  the class,  category or grade or      post from which he was appointed and shall not again be      eligible for appointment under this rule :           Provided that  a person  so reverted  shall not by      reason only  of the  appointment  under  this  rule  be      entitled  to   any   preferential   claim   to   future      appointment to  the class,  category, grade or post, as      the case  may be  to which  he had been appointed under      this rule : 935           Provided further  that  the  period  of  temporary      exemption shall be extended by two years in the case of      a person  belonging to  any of  the scheduled castes or      scheduled tribes.           Provided  also   that  this   rule  shall  not  be      applicable  to   tests  prescribed   for  purposes   of      promotion of  the executive staff below the rank of Sub      Inspectors belonging to the Police Department."      On January  13, 1972  rule 13AA  was  inserted  in  the rules. It reads as under :           "13A Notwithstanding  anything contained  in these      rules, the  Government may,  by  order,  exempt  for  a      specified period, any member or members, belonging to a      Scheduled Caste  or a  Scheduled Tribe,  and already in      service, from  passing the tests referred to in rule 13      or rule 13A of the said Rules.           Provided that this rule shall not be applicable to      tests prescribed  for  purposes  of  promotion  of  the      executive  staff  below  the  rank  of  Sub  Inspectors      belonging to the Police Department."

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The following  order was  issued by  the State Government on January 13, 1972 :           "The President,  Kerala Harijan Samaskarika Kshema      Samithy,  Trivandrum  has  brought  to  the  notice  of      Government that a large number of Harijan employees are      facing immediate reversion from their posts for want of      test qualifications  and has  therefore requested  that      all Scheduled Castes and Scheduled Tribes employees may      be  granted   temporary  exemption   from  passing  the      obligatory departmental tests for a period of two years      with immediate effect.           (2)  Government   have  examined   the  matter  in      consultation with  the Kerala Public Service Commission      and are pleased to grant temporary exemption to members      already in  service belonging  to any  of the Scheduled      Castes and  Scheduled Tribes  from  passing  all  tests      (unified and  special  or  departmental  tests)  for  a      period of two years.           (3) The  benefit of  the above  exemption will  be      available to  those employees  belonging  to  Scheduled      Castes and  Scheduled Tribes  who are  already enjoying      the benefits  of temporary exemption from passing newly      prescribed tests  under General Rule 13A. In their case      the temporary exemption will expire only on the date of      expiry of the temporary exemption mentioned in para (2)      above  or  on  the  date  of  expiry  of  the  existing      temporary exemption, whichever is later.           (4) This  order will  take effect from the date of      the order." 936 During the  pendency of the writ petition in the High Court, a further  order was  issued by the State Government on July 11, 1974 for extending the period of exemption as under :           "1. G.O. (NS) No. 22/PD dated 13-1-1972.                .....................                .....................                .....................                            ORDER           Government are pleased to order that the period of      temporary exemption  granted to  Scheduled  Castes  and      Scheduled Tribes  in the  G.O. read  above from passing      all tests  (unified and  special or departmental tests)      be extended  from 13-1-1974  to cover  a period  during      which  two   tests  are  held  by  the  Public  Service      Commission and  results thereof  published so that each      individual gets  two chances to appear. Government also      order that  these categories  of employees  will not be      given any further extension of time to acquire the test      qualifications."      Respondent No.  1 passed  all the  tests by November 2, 1971. The  other respondents,  who are  members of scheduled castes and  scheduled tribes and who too were lower division clerks working  in the Registration Department of the State, were promoted  as upper division clerks even though they had not passed  the tests  mentioned above. Respondent No. 1 was not, however,  promoted despite  the fact that he had passed the requisite tests. In 1972 out of 51 lower division clerks promoted as  upper division clerks, 34 belonged to scheduled castes and tribes. Respondent No. 1 thereupon filed petition under article  226 on  March 15, 1972 for a declaration that rule 13AA  under which  exemption had  been granted  to  the other respondents  in the  matter of promotion was violative of article  16 of the Constitution. Prayer was also made for quashing order  dated January  13, 1972  reproduced above by which exemption was actually granted to scheduled castes and

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scheduled  tribes  employees  from  passing  the  obligatory departmental test for a period of two years.      The petition  was resisted  by the  appellants and  the other respondents  and it  was averred  on their behalf that the impugned  rule and  order were  not violative of article 16. The  High Court  held that  rule  13AA  was  void  being violative of  clauses (1)  and (2)  of  article  16  of  the Constitution. Orders  dated January 13, 1972 and January 11, 1974 as  well as other orders promoting members of Scheduled Castes  and   scheduled  Tribes   who  had  not  passed  the prescribed test  were quashed. The High Court also expressed the view  that the  promotion of  34 out  of 51 persons even though they  had not  passed  the  necessary  test  was  not conducive   to    the   maintenance    of   efficiency    of administration. The  order in  this respect was stated to be violative of article 335 of the Constitution.      In appeal  before us  the learned  Advocate-General  on behalf of  the appellants  has contended  that the  impugned rule and orders are cons- 937 titutionally valid under clause (1) of article 16. He has in this context invited our attention to articles 46 and 335 of the Constitution.  It has, however, been frankly conceded by the Advocate-General  that he  does not rely upon clause (4) of  article  16  of  the  Constitution  for  sustaining  the validity of the impugned rule and orders. The stand taken on behalf of  the appellants  has also  been supported  by  the learned Solicitor-General  as well  as by Mr. Garg on behalf of respondents  other than  respondent No. 1. As against the above, Mr.  Krishnamurthy Iyer on behalf of respondent No. 1 has canvassed  for the  correctness of the view taken by the High Court  and has  contended  that  the  validity  of  the impugned rule  and orders  cannot be  justified under clause (1) of article 16.      It may  be apposite at this stage to reproduce articles 16, 46 and 335 of the Constitution :           "16. (1)  There shall  be equality  of opportunity      for all  citizens in  matters relating to employment or      appointment to any office under the State.           (2) No citizen shall, on grounds only of religion,      race, caste, sex, descent, place of birth, residence or      any  of  them,  be  ineligible  for,  or  discriminated      against in  respect of,  any employment or office under      the State.           (3)  Nothing   in  this   article  shall   prevent      Parliament from  making any  law prescribing, in regard      to a  class or  classes of employment or appointment to      an office  under the  Government of,  or any  local  or      other authority within, a State or Union territory, any      requirement as  to residence within that State or Union      territory prior to such employment or appointment.           (4) Nothing  in this  article  shall  prevent  the      State from  making any provision for the reservation of      appointments or  posts in  favour of any backward class      of citizens  which, in the opinion of the State, is not      adequately represented in the services under the State.           (5) Nothing  in  this  article  shall  affect  the      operation of  any law which provides that the incumbent      of any  office in  connection with  the affairs  of any      religious or  denominational institution  or any member      of  the  governing  body  thereof  shall  be  a  person      professing a  particular religion  or  belonging  to  a      particular denomination.           46. The  State shall  promote  with  special  care      educational  and   economic  interests  of  the  weaker

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    sections of  the people,  and, in  particular,  of  the      Scheduled Castes  and the  Scheduled Tribes,  and shall      protect them  from social  injustice and  all forms  of      exploitation.           335. The  claims of  the members  of the Scheduled      Castes and  the Scheduled  Tribes shall  be taken  into      consideration, consistently  with  the  maintenance  of      efficiency of adminis- 938      tration, in  the making of appointments to services and      posts in connection with the affairs of the Union or of      a State."      Article 14  of the Constitution enshrines the principle of  equality   before  the   law.   Article   15   prohibits discrimination against citizens on grounds only of religion, race, caste,  sex, place of birth or any of them. Article 16 represents one  fact of the guarantee of equality. According to this  article, there shall be equality of opportunity for all  citizens   in  matters   relating  to   employment   or appointment to any office under the State. No citizen, it is further provided,  shall on  grounds only of religion, race, caste, sex,  descent, place  of birth,  residence or  any of them, be ineligible for, or discriminated against in respect of, any  employment or  office under the State. Articles 14, 15 and  16 underline the importance which the framers of our Constitution attached  to ensuring  equality  of  treatment. Such equality  has a  special significance  in the matter of public employment.  It  was  with  a  view  to  prevent  any discrimination in  that field  that an express provision was made to  guarantee equality  of opportunity for all citizens in matters  relating to  employment or  appointment  to  any office under the State.      At the  same time  the framers of the Constitution were conscious of  the backwardness  of  large  sections  of  the population.  It   was  also  plain  that  because  of  their backwardness those  sections of  the population would not be in a  position to  compete with  advanced  sections  of  the community who had all the advantages of affluence and better education. The  fact that the doors of competition were open to them would have been a poor consolation to the members of the backward classes because the chances of their success in the competition  were far  too  remote  on  account  of  the inherent handicap and disadvantage from which they suffered. The  result   would  have  been  that,  leaving  aside  some exceptional cases,  the members  of backward  classes  would have  hardly   got  any  representation  in  jobs  requiring educational background.  It  would  have  thus  resulted  in virtually repressing  those who  were already repressed. The framers of  the Constitution  being conscious  of the  above disadvantage from  which  backward  classes  were  suffering enjoined upon the State in article 46 of the Constitution to promote with special care educational and economic interests of the  weaker sections  of the people, in particular of the Scheduled Castes and Scheduled Tribes, and also protect them from social injustice and all forms of exploitation. To give effect to  that objective in the field of public employment, a provision  was made  in clause  (4)  of  article  16  that nothing in  that article would prevent the State from making any provision  for the  reservation of appointments or posts in favour  of any  backward class  of citizens which, in the opinion of  the State, was not adequately represented in the services under  the State.  Under the  above clause,  it  is permissible  for   the  State,   in  case   it   finds   the representation of  any backward  class of  citizens  in  the State services to be not adequate, to make provision for the

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reservation of  appointments or  posts  in  favour  of  that backward class of citizens. The reservation of seats for the members of  the backward  classes was not, however, to be at the cost of efficiency. This fact was brought out in article 335, 939 according  to  which  the  claims  of  the  members  of  the Scheduled Castes  and the  Scheduled 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 or  of a  State. In view of that it is not permissible to   waive    the   requirement   of   minimum   educational qualification  and   other  standards   essential  for   the maintenance of efficiency of service.      It is further plain that the reservation of posts for a section of population has the effect of conferring a special benefit on  that section  of the population because it would enable members  belonging to  that section to get employment or office  under the State which otherwise in the absence of reservation they  could  not  have  got.  Such  preferential treatment  is   plainly  a   negation  of  the  equality  of opportunity  for   all  citizens   in  matters  relating  to employment or  appointment to  an office  under  the  State. Clause (4) of article 16 has, therefore, been construed as a proviso or  exception to clause (1) of that article (see The General Manager,  Southern Railway  v. Rangachari(1)  and T. Devadasan v. The Union of India & Anr. (2).      It has  been argued  on behalf  of the  appellants that equality   of   treatment   does   not   forbid   reasonable classification. Reference  in this  context is  made to  the well accepted  principle that article 14 of the Constitution forbids   class    legislation   but    does   not    forbid classification. Permissible  classification, it  is  equally well  established,   must  be  founded  on  an  intelligible differentia which  distinguishes persons  or things that are grouped together  from others  left out of the group and the differentia must  have a  rational relation  to  the  object sought to  be achieved  by the  statute in  question. It  is urged that the same principle should apply when the court is concerned with  the equality of opportunity for all citizens in matters  relating to  employment or  appointment  to  any office under  the State.  In this respect I may observe that this Court has recognized the principle of classification in the context  of clause  (1) of  article 16  in matters where appointments are  from two  different sources,  e.g., guards and station  masters, promotees  and direct  recrits, degree holder and  diploma holder  engineers (see All India Station Masters &  Asstt. Station  Masters’ Assn.  & Ors. v. General Manager, Central  Railway &  Ors.,(3) S.  G.  Jaisnghani  v. Union of  India &  Ors.(1) and  State of  Jammu & Kashmir v. Triloki Nath Khosa & Ors.(5). The question with which we are concerned, however,  is whether  we  can  extend  the  above principle of  classification so  as  to  allow  preferential treatment to  employees on  the ground that they are members of the scheduled castes and scheduled tribes. So far as this question is concerned I am of the view that the provision of preferential treatment  for  members  of  backward  classes, including scheduled  castes and  scheduled tribes,  is  that contained  in   clause  (4)  of  article  16  which  permits reservation of posts for them. There is 940 no scope  for spelling  out such preferential treatment from the language  of  clause  (1)  of  article  16  because  the language of  that clause  does not warrant any preference to

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any citizen  against another  citizen. The  opening words of clause (4) of article 16 that "nothing in this article shall prevent  the   State  from  making  any  provision  for  the reservation of  appointments or  posts in favour of backward class of citizens" indicate that but for clause (4) it would not  have  been  permissible  to  make  any  reservation  of appointments or  posts in  favour of  any backward  class of citizens.      In the  case of  All India  Station Masters’  &  Asstt. Station Masters’ Association (supra) the Roadside Masters of the Central  Railway  Challenged  the  constitutionality  of promotion of  guards to higher grade station masters’ posts. The  petitioners’   contention  was   that  the  channel  of promotions amounted  to a  denial of  equal  opportunity  as between Roadside Station Masters and guards in the matter of promotion and  thus contravened  clause (1) of article 16 of the Constitution. It was urged that taking advantage of this channel of  promotions, guards  became station  masters at a much younger  age than  Roadside Station Masters who reached the scale  when they  were  much  older.  According  to  the petitioners, Roadside  Station  Masters  and  guards  really formed one  and the  same class  of  employees.  This  Court rejected that  contention and held that the Roadside Station Masters belonged  to a  wholly distinct  and separate  class from guards and so there could be no question of equality of opportuntiy in  matters of  promotions as  between  Roadside Station Masters  and guards.  It was  further laid down that the question of denial of equal opportunity required serious consideration only as between the members of the same class. The concept  of equal  opportunity in  matters of employment did not  apply as  between members  of different  classes of employees  under  the  State.  Equality  of  opportunity  in matters of  employment  could  be  predicated  only  between persons who  were either seeking the same employment, or had obtained the  same employment.  Equality of  opportunity  in matters of  promotion must  mean equality between members of the same class of employees and not equality between members of separate, independent classes. In the case of Jaisinghani (supra) the  dispute was about seniority between two classes of income-tax  service, the direct recruits to class I grade II and  promotees from class II to class I grade II. For the purpose of promotion, the Government fixed a ratio of 2 to 1 for direct  recruits and  promotees. It  was in that context and on  those facts that this Court laid down that it is not correct to say that all officers appointed to class I, grade II service formed one class and that after the officers have been once  recruited there  could be  no distinction between direct recruits  and promotees.  It  is  really  a  case  of recruitment to  the service  from two  different sources and the adjustment  of seniority  between them.  The concent  of equality in  the matter  of promotion can be predicated only when the  promotees are  drawn from  the same source. If the preferential treatment  of one  source in  relation  to  the other is  based on  the differences between the two sources, and the  said differences  have a reasonable relation to the nature of the office it can legitimately be sustained on the 941 basis  of   a  valid  classification.  The  reason  for  the classification in  that case was that the higher echelons of the  service   should  be  filled  by  experienced  officers possessing not only a high degree of ability but also first- rate experience.  In the  case of Triloki Nath Khosa (supra) the question  before  the  Court  was  with  regard  to  the validity of  a rule which provided that only those assistant engineers would  be  eligible  for  promotion  as  executive

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engineers  who   possessed  a  degree  in  engineering.  The validity of  this rule was challenged by assistant engineers who were  diploma-holders and  did not possess the degree in engineering. This  Court held  that though persons appointed directly and  by promotion  were integrated  into  a  common class of  assistant engineers,  they could  for purposes  of promotion to  the cadre of executive engineers be classified on  the   basis  of  educational  qualifications.  The  rule providing  that   graduates  shall   be  eligible  for  such promotion to the exclusion of diploma-holders was held to be not violative  of articles 14 and 16 of the Constitution. It would thus  appear that in each of the above cases the Court was concerned  with two categories of employees, each one of which category  constituted a  separate and  distinct class. Differential treatment  for those  classes was upheld in the context of  their educational  and other  qualifications and because of  the fact  that  they  constituted  distinct  and separate classes. Not much argument is needed to show that a rule requiring  that an  official must  possess a  degree in engineering before  he  can  be  promoted  to  the  post  of executive  engineer   is  conceived   in  the   interest  of efficiency of  service. A  classification  based  upon  that consideration is  obviously valid.  Likewise, classification based upon  the consideration that one category of employees are  direct   recruits  while   others  are   promotes,   is permissible classification  because the  two  categories  of employees constitute  two separate and distinct classes. The same  is  true  of  roadside  station  masters  and  guards. Classification of  employees in  each  of  these  cases  was linked with  the  nature  of  their  initial  employment  or educational qualifications  and had  nothing to  do with the fact that  they belonged  to any  particular section  of the population.  A  classification  based  upon  the  first  two factors was  upheld because it was conceived in the interest of efficiency  of service  and because  they constituted two different classes  in  view  of  the  fact  that  they  were initially appointed  to posts  of different categories. Such classification does not impinge upon the rule of equality of opportunity. As  against that,  a classification  based upon the consideration  that an  employee belongs to a particular section of the population with a view to accord preferential treatment for  promotion is  clear violation  of equality of opportunity enshrined  in clause  (1) of  article 16.  In no case has  the Court  ever accepted  and upheld under article 16(1) classification  and  differential  treatment  for  the purpose of promotion among employees who possessing the same educational qualifications  were initially  appointed as  in the present  case to  the same category of posts, viz., that of lower  division clerks.  The present  case falls squarely within the  dictum laid down in the case of Station Masters’ & Asstt.  Station Masters’  Association (supra) that equaliy of opportunity  in matters of employment could be predicated between persons who were either seeking the same 942 employment  or   had  obtained   the  same  employment.  The essential object  of various  rules dealing with appointment to posts under the State and promotion to higher posts is to ensure efficiency  of service.  Classification upheld  under clause (1)  of article 16 subserved and in no case militated against the  attainment of that object. Exemption granted to a class  of employees, even though for a limited period from passing the  departmental tests  which have  been prescribed for the  purpose of  promotion would obviously be subversive of the  object to ensure efficiency of service. It cannot be disputed that  departmental tests are prescribed with a view

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to appraise and ensure efficiency of different employees. To promote employees  even though  they have  not  passed  such efficiency  test   can  hardly   be  consistent   with   the desideratum of ensuring efficiency in administation.      Much has  been made  of the  fact that  exemption  from passing departmental  tests granted  to members of scheduled castes and  scheduled tribes  is not absolute but only for a limited period.  This fact,  in our  opinion, would not lend constitutionality to the impugned rule and orders. Exemption granted to  a section of employees while being withheld from the   remaining    employees   has    obvious   element   of discrimination between those to whom it is granted and those from whom  it is  withheld. If  the passing  of departmental tests is  an essential  condition  of  promotion,  it  would plainly be  invidious to  insist upon  compliance with  that condition in  the case of one set of employees and not to do so in  the case  of other.  The basic  question  is  whether exemption is  constitutionally permissible. If the answer to that question be in the negative, the fact that exemption is for a limited period would not make any material difference. In either  event  the  vice  of  discrimination  from  which exemption suffers  would contaminate  it and  stamp it  with unconstitutionality. Exemption  for a  limited period  to be constitutionally valid  cannot be  granted  to  one  set  of employees and withheld from the other.      What clause  (1) of  article 16  ensures is equality of opportunity for  all  citizens  as  individuals  in  matters relating to  employment or  appointment to  any office under the State.  It applies  to them  all, the least deserving as well  as   the  most  virtuous.  Preferential  and  favoured treatment for  some citizens  in the matter of employment or appointment  to   any  office   under  the  State  would  be antithesis of  the principle  of  equality  of  opportunity. Equality of  opportunity in matters of employment guaranteed by clause  (1) of  article 16  is intended  to be  real  and effective. It is not something abstract or illusory. It is a command to  be obeyed, not one to be defied or circumvented. It cannot  be reduced to shambles under some cloak. Immunity or exemption  granted to  a  class,  however  limited,  must necessarily have  the effect of according favoured treatment to that  class and of creating discrimination against others to whom  such immunity or exemption is not granted. Equality of  opportunity   is  one   of  the   corner-stones  of  our Constitution. It  finds a  prominent mention in the preamble to the  Constitution and  is one  of the pillars which gives support  and   strength  to   the  social,   political   and administrative   edifice    of   the   nation.   Privileges, advantages, favours, exemptions, 943 concessions specially  earmarked for  sections of population run counter  to the concept of equality of opportunity, they indeed  eat  into  the  very  vitals  of  that  concept.  To countenance classification  for  the  purpose  of  according preferential treatment to persons not sought to be recruited from different  sources and  in cases  not covered by clause (4) of  article 16  would have the effect of eroding, if not destroying altogether,  the valued  principle of equality of opportunity enshrined in clause (1) of article 16.      The proposition  that to  overdo classification  is  to undermine equality  is specially  true  in  the  context  of article 16(1).  To introduce fresh notions of classification in article  16(1), as  is sought  to be  done in the present case, would necessarily have the effect of vesting the State under the  garb of  classification with  power  of  treating sections  of  population  as  favoured  classes  for  public

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employment. The  limitation imposed by clause (2) of article 16 may  also not  prove very  effective because, as has been pointed out  during the  course of  arguments,  that  clause prevents discrimination  on grounds  only of religion, race, caste, sex,  descent, place  of birth,  residence or  any of them. It  may not  be difficult to circumvent that clause by mentioning grounds other than those mentioned in clause (2).      To expand  the frontiers of classification beyond those which have  so far  been  recognized  under  clause  (1)  of article 16  is bound  to result  in creation  of classes for favoured and  preferential treatment  for public  employment and thus  erode the  concept of  equality of opportunity for all citizens  in matters  relating to  employment under  the State.      In construing  the provisions  of the  Constitution  we should avoid  a doctrinaire  approach. A Constitution is the vehicle of  the life  of a  nation and  deals with practical problems of  the government.  It is,  therefore,  imperative that  the  approach  to  be  adopted  by  the  courts  while construing the  provisions of  the  Constitution  should  be pragmatic and  not one  as a  result of  which the  court is likely to  get lost  in a maze of abstract theories. Indeed, so far as theories are concerned, human thinking in its full efforescence, free  from constraints  and  inhibitions,  can take such  diverse forms  that views  and reasons apparently logical and  plausible can  be found  both in  favour of and against a particular theory. If one eminent thinker supports one view,  support for the opposite view can be found in the writings of another equally eminent thinker. Whatever indeed may be the conclusion, arguments not lacking in logic can be found in  support of  such conclusion. The important task of construing the articles of a Constitution is not an exercise in mere  syllogism. It  necessitates an  effort to  find the true purpose  and object  which underlies  that article. The historical background, the felt necessities of the time, the balancing of  the conflicting  interests must all enter into the crucible  when the court is engaged in the delicate task of construing the provisions of a Constitution. The words of Holmes that  life of  law is not logic but experience have a direct relevance in the above context.      Another  thing   which  must  be  kept  in  view  while construing the  provisions of the Constitution is to foresee as to what would be the 944 impact of  that construction  not merely on the case in hand but also  on the  future cases  which may  arise under those provisions.  Out  of  our  concern  for  the  facts  of  one individual case, we must not adopt a construction the effect of which  might be  to open the door for making all kinds of inroads into  a great  ideal and  desideratum like  that  of equality of  opportunity. Likewise,  we should avoid, in the absence of  compelling reason,  a course that has the effect of unsettling  a constitutional  position,  which  has  been settled over a long-term of years by a series of decisions.      The liberal  approach  that  may  sometimes  have  been adopted in  upholding classification  under article 14 would in the  very nature  of things  be not apt in the context of article 16  when we  keep  in  view  the  object  underlying article 16.  Article 14 covers a very wide and general field of equality  before the  law and the equal protection of the laws. It  is, therefore,  permissible to  cover  within  its ambit  manifold   classifications  as   long  as   they  are reasonable and  have a  rational connection  with the object thereof. As against that, article 16 operates in the limited area of  equality of opportunity for all citizens in matters

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relating to employment or appointment to an office under the State.  Carving   out  classes   of  citizens  for  favoured treatment in  matters of  public employment, except in cases for which  there is an express provision contained in clause (4) of article 16, would as already pointed out above in the very nature  of things run counter to the concept underlying clause (1) of article 16.      The matter can also be looked at from another angle. If it was  permissible to  accord favoured treatment to members of backward  classes under  clause (1)  of article 16, there would have  been no  necessity of  inserting clause  (4)  in article 16.  Clause (4) in article 16 in such an event would have to  be treated  as wholly superfuous and redundant. The normal rule  of interpretation  is that  no provision of the Constitution is  to be  treated as redundant and superfuous. The Court  would, therefore,  be reluctant  to accept a view which would  have the  effect of  rendering  clause  (4)  of article 16 redundant and superfuous.      This Court  in the  case of State of Madras v. Shrimati Champakkam Dorairajan(1) unequivocally repelled the argument the effect  of which  would have been to treat clause (4) of article 16  to be wholly unnecessary and redundant. Question which arose  for consideration  in that  case was  whether a Communal G.O.  fixing  percentage  of  seats  for  different sections of  population for admission in the engineering and medical colleges  of the  State of  Madras  contravened  the fundamental rights.  It was  held that  the Communal G.O. by which  percentage   of  seats  was  apportioned  contravened article 29(2)  of the  Constitution. A  seven-Judge Bench of this Court in that case referred to clause (4) of article 16 of the Constitution and observed:           "If the  argument founded on article 46 were sound      then clause  (4) of  article 16  would have been wholly      unnecessary 945      and redundant.  Seeing, however,  that clause  (4)  was      inserted in article 16, the omission of such an express      provision from  article 29  cannot but  be regarded  as      significant. It  may well  be that the intention of the      Constitution was  not  to  introduce  at  all  communal      considerations  in   matters  of   admission  into  any      educational institution  maintained  by  the  State  or      receiving aid  out of  State funds.  The protection  of      backward classes of citizens may require appointment of      members of  backward classes  in State services and the      reason why power has been given to the State to provide      for  reservation  of  such  appointments  for  backward      classes may  under those  circumstances be  understood.      That  consideration,   however,   was   not   obviously      considered necessary  in the  case of admission into an      educational institution and that may well be the reason      for the omission from article 29 of a clause similar to      clause (4) of article 16." After the  above decision  of  this  Court,  clause  (4)  of article 15 was added in the Constitution by the Constitution (First Amendment) Act, 1951 and the same reads as under:           "Nothing in  this article  or  in  clause  (2)  of      article 29  shall prevent  the State  from  making  any      special provision  for the  advancement of any socially      and educationally  backward classes  of citizens or for      the Scheduled Castes and the Scheduled Tribes."      If the  power of  reservation  of  seats  for  backward classes was  already contained  in clause (1) of article 15, the decision  in the  above mentioned case would in the very nature of  things have  been different  and there would have

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been no  necessity for  the introduction  of clause  (4)  in article 15  by means  of the  Constitution (First Amendment) Act. The  fact that  clause (4)  of article 15 is similar to clause (4)  of article  16 was also emphasised by this Court in the case of M. R. Balaji & Ors. v. State of Mysore(1).      It has  been argued  that there are observations in the case  of   Champakam  (supra)   relating  to  the  Directive Principles of  State Policy  which should  be deemed to have been overruled  by the decision of this Court in the case of Kesavananda Bharati(2). It is, in our opinion, not necessary to express  an opinion on this aspect. Whatever view one may take with  regard to  those  observations,  they  would  not detract from  the correctness  of the  unanimous decision of the seven-Judge  Bench of  this Court  in that case that, in the absence  of provision  like clause (4) of article 15, it was  not  permissible  to  make  reservation  of  seats  for admission to  engineering and medical colleges on the ground of backwardness.      The matter  can also  be looked  at from another angle. Departmental tests  are prescribed  to ensure  standards  of efficiency for  the employees.  To  promote  34  out  of  51 persons although they have not 946 passed the  departmental tests  and at  the same time not to promote those  who have  passed the  departmental tests  can hardly  be   conducive  to   efficiency.  There   does  not, therefore, appear  to be any infirmity in the finding of the High Court  that the  impugned promotions are also violative of article 335 of the Constitution.      I may  state that  there is  no dispute  so far  as the question is concerned about the need to make every effort to ameliorate  the  lot  of  backward  classes,  including  the members of the scheduled castes and the scheduled tribes. We are all  agreed on  that. The backwardness of those sections of population  is a  stigma on our social set up and has got to  be   erased  as   visualized  in   article  46   of  the Constitution. It  may also  call for  concrete acts to atone for the  past neglect and exploitation of those classes with a view  to bring  them on  a footing  of equality,  real and effective, with the advanced sections of the population. The question with  which we  are concerned,  however, is whether the method  which has  been adopted  by  the  appellants  is constitutionally permissible under clause (1) of article 16. The answer  to the  above question, in my opinion, has to be in the  negative. Apart from the fact that the acceptance of the appellants’  contention would  result in undermining the principle of equality of opportunity enshrined in clause (1) of article  16, it would also in effect entail overruling of the view  which has  so far  been held  by this Court in the cases of  Champakam, Rangachari  and Devadasan  (supra).  It find no  sufficient ground  to warrant  such a  course.  The State, in  my opinion, has ample power to make provision for safeguarding the  interest of  backward classes under clause (4)  of   article  16   which  deals   with  reservation  of appointments or  posts for  backward classes  not adequately represented in the services under the State. Inaction on the part of  the State  under clause (4) of article 16 cannot in my opinion,  justify strained  construction of clause (1) of article 16.  We have  also to  guard  against  allowing  our supposed zeal  to safeguard  the  interests  of  members  of scheduled castes  and scheduled  tribes to  so sway our mind and warp our judgment that we drain off the substance of the contents of  clause (1)  of article  16 and whittle down the principle of equality of opportunity in the matter of public employment enshrined in that clause in such a way as to make

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it a  mere pious  wish and  teasing illusion.  The ideals of supremacy of  merit, the  efficiency  of  services  and  the absence of  discrimination in  sphere of  public  employment would be  the obvious  casualties  if  we  once  countenance inroads to  be made  into that valued principle beyond those warranted by clause (4) of article 16.      The appeal is dismissed with costs.      MATHEW, J.-The  facts of  the case  have been stated in the judgment  of the  learned Chief  Justice and  it is  not necessary  to  repeat  them.  The  point  which  arises  for consideration is whether rule 13AA made by Ex. P-1 amendment to the  Kerala State  and Subordinate  Services Rules, 1958, and Exhibits  P-2 and P-6 the orders passed by government in the exercise of their power under that rule, were valid. The rule reads: 947           "13AA. Notwithstanding anything contained in these      rules, the  Government  may,  by  order  exempt  for  a      specified period, any member or members, belonging to a      Scheduled Caste  or a  Scheduled Tribe,  and already in      service, from  passing the  test referred to in Rule 13      or Rule 13A of the said Rules."      Rule 13AA  came into force on 13-1-1972 and on the same day Ex. P-2 Order was passed granting temporary exemption to members already in service belonging to any of the Scheduled Castes and  Scheduled Tribes  from passing  any of  two  the tests (unified  and special  or departmental  tests)  for  a period of  two years.  Thereafter another  order was  passed (Ex. P-6)  on 11-1-1974  granting exemption  for a period of another two years.      The High  Court was of the view that rule 13AA violated Article 16(1)  and that  Article 16(4)  which  provides  for making reservation  of appointments  or posts  in favour  of backward classes  of citizens  which, in  the opinion of the State, is  not adequately  represented in  the service under the State  has no  application.  The  Court  relied  on  the decision of  this Court in General Manager, Southern Railway v. Rangachari(1)  where it was held that Article 16(4) is an exception to  Article 16(1) and that it does not take in all the matters covered by Article 16(1) as it is concerned only with reservation  of appointments  and posts  in  favour  of backward classes  and that but for Article 16(4) there could be no  reservation of  posts in  favour of  backward classes under the guarantee of equality of opportunity in the matter of employment.      The learned  Advocate General  of Kerala submitted that the Constitution  has enjoined  a favoured  treatment to the members of  Scheduled Castes and Scheduled Tribes by Article 46 and  that rule  13AA which  empowers  the  government  to exempt for  a specified  period any member or members of the Scheduled Castes or Scheduled Tribes already in service from passing the  tests referred  to in  Rules 13  and 13A of the Rules is  only a  law passed  by the ’State’ in pursuance to its fundamental  obligation to  advance the  interest of the weakest  section   of  the   community.  He  said  that  the implementation of  the directive  in Article  46 will not be inconsistent in any manner with the principle of equality of opportunity guaranteed  under Article  16(1) and that a rule which dispenses  with the  passing of  a test or tests for a specified period  in the case of members of Scheduled Castes and Scheduled  Tribes will not in any way run counter to the equality of  opportunity guaranteed to the other sections of the community. Article 46 provides:           "46. The State shall promote with special care the      educational  and   economic  interests  of  the  weaker

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    sections of  the people  and,  in  particular,  of  the      Scheduled Castes  and the  Scheduled Tribes,  and shall      protect them  from social  injustice and  all forms  of      exploitation."      Justice Brandeis  has said  the knowledge  must precede understanding and  that understanding must precede judgment. It will  therefore be  in the interest of clarity of thought to begin with an understanding 948 of just  what equality  of opportunity  means. Article 16(1) provides for equality of opportunity for all citizens in the matter of  employment and  there can  be no  doubt that  the equality guaranteed  is an  individual right. The concept of equality  of   opportunity  is   an  aspect   of  the   more comprehensive notion  of equality.  The idea of equality has different shades  of meaning  and connotations.  It has many facets and implications. Plato’s remark about law is equally applicable to  the concept  of equality: "a perfectly simple principle can never be applied to a state of things which is the  reverse   of  simple.(1)"  Different  writers  tend  to emphasize some  forms of  equality rather  than others as of overriding importance-  equality before the law, equality of basic  human   rights,  economic   equality,   equality   of opportunity or equality of consideration for all persons.      Formal equality  is achieved  by treating  all  persons equally: "Each  man to count for one and no one to count for more than  one." But  men are not equal in all respects. The claim for  equality is  in fact  a protest  against  unjust, undeserved and  unjustified inequalities.  It is a symbol of man’s revolt  against chance,  fortuitous disparity,  unjust power and  crystallised privileges. Although the decision to grant equality  is motivated  prima  facie  by  the  alleged reason that  all men  are equal  yet, as soon as we clear up the confusion  between  equality  in  the  moral  sense  and equality in the physical sense, we realise that the opposite is the  truth; for,  we think  that it  is just  to  promote certain equalities precisely to compensate for the fact that men are  actually born  different. We,  therefore,  have  to resort to  some  sort  of  proportionate  equality  in  many spheres to achieve justice.      The principle of proportional equality is attained only when equals  are trated equally and unequals unequally. This would raise  the baffling  question. Equals  and unequals in what ?  The principle  of  proportional  equality  therefore involves an  appeal to  some criterion  in  terms  of  which differential  treatment   is  justified.   If  there  is  no significant  respect   in  which   persons   concerned   are distinguishable,    differential    treatment    would    be unjustified. But  what is  to be  allowed as  a  significant difference such as would justify differential treatment?      In distributing  the office of a state, not any sort of personal  equality   is  relevant;  for,  unless  we  employ criteria appropriate  to the  sphere in  question, it  would turn out  that a  man’s height or complexion could determine his eligibility  or suitability  for a  post.  As  Aristotle said, claims  to political office cannot be based on prowess in athletic  contests. Candidates  for office should possess those qualities  that go  to make up an effective use of the office.  But   this  principle   also  does   not  give  any satisfactory  answer   to  the  question  when  differential treatment can be meted out. As I said, the principle that if two  persons   are  being  treated  or  are  to  be  treated differently there should be some relevant difference between them  is,  no  doubt,  unexceptionable.  Otherwise,  in  the absence of  some differentiating  feature what  is sauce for

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the goose  is sauce  for the  gander.  The  real  difficulty arises  in   finding  out   what  constitutes   a   relevant difference. 949      If we  are all  to be  treated in the same manner, this must carry with it the important requirement that none of us should be  better or  worse in  up bringing, education, than any one else which is an unattainable ideal for human beings of anything  like the  sort we now see. Some people maintain that  the   concept  of   equality  of   opportunity  is  an unsatisfactory concept.  For, a  complete formulation  of it renders it incompatible with any form of human society. Take for instance,  the  case  of  equality  of  opportunity  for education. This  equality cannot  start in schools and hence requires uniform  treatment in  families which is an evident impossibility. To remedy this, all children might be brought up in  state nurseries,  but, to  achieve the  purpose,  the nurseries would  have to be run on vigorously uniform lines. Could we guarantee equality of opportunity to the young even in those  circumstances ?  The idea  is  well  expressed  by Laski:           "Equality  means,   in  the   second  place,  that      adequate  opportunities   are  laid  open  to  all.  By      adequate   opportunities    we   cannot   imply   equal      opportunities in  a  sense  that  implies  identity  of      original chance. The native endowments of men are by no      means  equal.   Children  who  are  brought  up  in  an      atmosphere where  things  of  the  mind  are  accounted      highly are  bound  to  start  the  race  of  life  with      advantages  no   legislation   can   secure.   Parental      character will inevitably affect profoundly the quality      of the children whom it touches. So long, therefore, as      the family  endures-and there  seems little  reason  to      anticipate or  to desire  its disappearance-the varying      environments it  will create  make the  notion of equal      opportunities a fantastic one."(1)      Though complete  inentity of equality of opportunity is impossible in this world, measures compensatory in character and which  are calculated to mitigate surmountable obstacles to ensure  equality of opportunity can never incur the wrath of Article 16(1).      The notion  of equality of opportunity is a notion that a limited  good shall  in fact  be allocated  on the grounds which do  not a  priori exclude  any section  of those  that desire it(2).  All  sections  of  people  desire  and  claim representation in the public service of the country, but the available number  of posts  are limited  and therefore, even though all  sections of people might desire to get posts, it is  practically   impossible  to  satisfy  the  desire.  The question therefore  is: On  what basis  can any  citizen  or class of  citizens be  excluded from his or their fair share of representation?  Article 335  postulates that  members of Scheduled Castes  and  Scheduled  Tribes  have  a  claim  to representation in  the public  service both of the Union and the  States  and  that  the  claim  has  to  be  taken  into consideration   consistently   with   the   maintenance   of efficiency of  administration in  the making of appointments to services  of the  Union and  the States.  As I  said, the notion 950 of equality  of opportunity  has meaning only when a limited good or,  in the present context, a limited number of posts, should be allocated on grounds which do not a priori exclude any section of citizens of those that desire it.      What, then,  is a priori exclusion ? It means exclusion

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on grounds  other than those appropriate or rational for the good (posts)  in question.  The notion  requires not  merely that there  should be  no exclusion  from access  on grounds other than  those appropriate  or rational  for the  good in question, but  the grounds  considered appropriate  for  the good should themselves be such that people from all sections of society have an equal chance of satisfying them.      Bernard A.  O. Williams,  in his  article "The  Idea of Equality" (supra)  gives an  illustration of  the working of the principle of equality of opportunity:           "Suppose that  in a certain society great prestige      is attached  to membership  of  a  warrior  class,  the      duties of  which require  great physical strength. This      class has  in the  past  been  recruited  from  certain      wealthy  families   only;  but   egalitarian  reformers      achieve a  change in  the rules,  by which warriors are      recruited from  all sections  of the  society,  on  the      result of  a suitable  competition. The effect of this,      however, is  that the  wealthy families  still  provide      virtually all  the warriors,  because the  rest of  the      populace is so undernourished by reason of poverty that      their physical  strength is  inferior to  that  of  the      wealthy and  well nourished. The reformers protest that      equality of  opportunity has  not really been achieved;      the wealthy  reply that  in fact  it has,  and that the      poor now have the opportunity of becoming warriors- -it      is just  bad luck  that their  characteristics are such      that they  do not  pass the  test. "We  are not",  they      might say, "excluding anyone for being poor; we exclude      people for being weak, and it is unfortunate that those      who are poor are also weak."      This is  not a  satisfactory answer though it may sound logical. The  supposed  equality  of  opportunity  is  quite empty. One  knows that  there is a causal connection between being poor  and  being  under-nourished  and  between  being under-nourished and  being  physically  weak.  One  supposes further that  something should  be done  subject to whatever economic conditions  obtain in  the  society  to  alter  the distribution of wealth. All this being so, the appeal by the wealthy  to   bad  luck  of  the  poor  must  appear  rather disingenuous.      It is clear that one is not really offering equality of opportunity to X and Y if one contents oneself with applying the same  criteria to X and Y. What one is doing there is to apply the  same criteria  to X  as  affected  by  favourable conditions and  to Y as affected by unfavourable but curable conditions. Here  there is  a necessary pressure to equal up the conditions.  To give  X and  Y equality  of  opportunity involves regarding their conditions, where curable, as 951 themselves part of what is done to X and Y and not part of X and Y  themselves. Their  identity for this purpose does not include their  curable environment,  which is itself unequal and a  contributor of inequality [see Williams, "The Idea of Equality" (supra)].      In Ahmedabad  St. Xavier’s  College Society and Another v. The  State of  Gujarat and Another(1), in the judgment on behalf of Chandrachud, J. and myself, I said at p. 798:           "The problem  of the  minorities is  not really  a      problem of  the establishment  of equality  because, if      taken literally,  such  equality  would  mean  absolute      identical treatment  of both  the  minorities  and  the      majorities. This  would result  only in equality in law      but inequality in fact" and that

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         "It is  obvious that  equality  in  law  precludes      discrimination of  any kind;  whereas equality  in fact      may involve  the necessity of differential treatment in      order  to   attain  a   result  which   establishes  an      equilibrium between different situations."      It would  follow that  if we  want to  give equality of opportunity for  employment to  the members of the Scheduled Castes and  Scheduled Tribes,  we will  have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and  illuminate the  approach of  the Court  when  it makes a  decision as  the Court  also is  ’state’ within the meaning  of   Article  12   and  makes   law   even   though "interstitially from  the molar  to the  molecular". I  have explained at  some length  the reason  why Court  is ’state’ under Article  12 in my judgment in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala and Another, etc. (2).      Equality of opportunity is not simply a matter of legal equality. Its  existence depends,  not merely on the absence of disabilities,  but  on  the  presence  of  abilities.  It obtains in  so far as, and only in so far as, each member of a community,  whatever his  birth or  occupation  or  social position, possesses  in fact,  and not merely in form, equal chances of  using to  the full  his  natural  endowments  of physique, of character, and of intelligence(3).      The guarantee  of equality  before the law or the equal opportunity in  matters of  employment  is  a  guarantee  of something more  than what is required by formal equality. It implies differential  treatment of  persons who are unequal. Egalitarian principle  has therefore  enhanced  the  growing belief that  government has an affirmative duty to eliminate inequalities and  to provide  opportunities for the exercise of human rights and claims. Fundamental rights as enacted in Part III  of the Constitution are, by and large, essentially negative in character. 952 They mark off a world in which the government should have no jurisdiction. In  this realm,  it was assumed that a citizen has no claim upon government except to be let alone. But the language of Article 16(1) is in marked contrast with that of Article 14.  Whereas the  accent in  Article 14  is  on  the injunction that  the State  shall not  deny  to  any  person equality before the law or the equal protection of the laws, that is, on the negative character of the duty of the State, the emphasis  in Article  16(1) is  on the mandatory aspect, namely, that  there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State implying thereby that affirmative action by Government would be consistent with the Article if it is  calculated to  achieve  it.  If  we  are  to  achieve equality, we can never afford to relax. "While inequality is easy since  it demands  no  more  than  to  float  with  the current, equality  is difficult  for  it  involves  swimming against it. (1)".      Today, the  political  theory  which  acknowledges  the obligation of  government under  Part IV of the Constitution to provide jobs, medical care, old age pension, etc. extends to human  rights and  imposes an  affirmative obligation  to promote equality  and liberty.  The force  of the  idea of a state with  obligation to  help the  weaker sections  of its members seems  to have increasing infuence in constitutional law. The  idea finds  expression in  a number  of  cases  in America involving  racial discrimination  and  also  in  the

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decisions requiring  the state  to  offset  the  effects  of poverty by  providing counsel,  transcript of appeal, expert witnesses,  etc.   Today  the   sense  that  government  has affirmative responsibility  for elimination of inequalities, social, economic  or otherwise, is one of the dominant forms in constitutional  law. While  special concessions  for  the underprivileged have  been easily  permitted, they  have not traditionally been  required.  Decisions  in  the  areas  of criminal procedure,  voting rights  and education in America suggest that  the traditional approach may not be completely adequate. In  these areas,  the inquiry whether equality has been achieved no longer ends with numerical equality; rather the equality  clause has  been held  to require  resort to a standard of  proportional equality which requires the state, in framing  legislation, to take into account the private in equalities   of    wealth,   of    education    and    other circumstances(2).      The idea  of compensatory  state action  to make people who are  really unequal in their wealth, education or social environment, equal, in specified areas, was developed by the Supreme Court  of the  United States. Rousseau has said: "It is precisely  because the  force of  circumstances tends  to destroy equality  that force of legislation must always tend to maintain it (3)." 953      In Griffin  v. Illinois(1),  an indigent  defendant was unable to  take advantage of the one appeal of right granted by Illinois  law because  he could  not afford  to  buy  the necessary transcript.  Such transcripts  were made available to all  defendants on  payment or  a  similar  fee;  but  in practice  only  non-indigents  were  able  to  purchase  the transcript and  take the  appeal. The Court said that "there can be  no equal  justice where the kind of trial a man gets depends on  the amount  of money  he has"  and held that the Illinois procedure violated the equal protection clause. The state did  not have  to make  appellate review  available at all; but  if it  did, it  could not  do so  in a  way  which operated to  deny access  to  review  to  defendants  solely because of  their indigency.  A similar theory underlies the requirement  that  counsel  be  provided  for  indigents  on appeal. In  Douglas v.  California(2), the case involved the California procedure  which guaranteed  one appeal  of right for criminal  defendants convicted  at trial. In the case of indigents the appellate court checked over the record to see whether it would be of advantage to the defendant or helpful to the  appellate court  to have  counsel appointed  for the appeal. A  negative answer  meant that  the indigent  had to appeal pro  se if at all. The Court held that this procedure denied defendant  the equal  protection of  the  laws.  Even though  the  state  was  pursuing  an  otherwise  legitimate objective  of   providing  counsel  only  for  non-frivolous claims, it  had created  a situation in which the well-to-do could always  have  a  lawyer-even  for  frivolous  appeals- whereas the indigent could not.      Justice Harlan,  dissenting in both Griffin and Douglas cases (supra)  said that  they represented  a new  departure from the  traditional view  that numerically equal treatment cannot violate  the equal  protection clause.  He  concluded that the  effect of  the  decisions  was  to  require  state discrimination. He said:           "The Court  thus holds that, at least in this area      of  criminal   appeals,  the  Equal  Protection  Clause      imposes on  the States  an affirmative duty to lift the      handicaps  flowing   from   differences   in   economic      circumstances.  That  holding  produces  the  anomalous

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    result that  a constitutional  admonition to the States      to treat  all persons  equally means  in this  instance      that Illinois must give to some that it requires others      to pay  for....It may  accurately be said that the real      issue  in   this  case  is  not  whether  Illinois  has      discriminated  but   whether   it   has   a   duty   to      discriminate."      Though in one sense Justice Harlan is correct, when one comes to  think of  the real  effect of  his  view,  one  is inclined to  think that the opinion failed to recognise that there are  several ways of looking at equality, and treating people equally  in one  respect always  results  in  unequal treatment in  some other  respects. For  Mr. Justice Harlan, the only  type  of  equality  that  mattered  was  numerical equality in the terms upon which transcripts were offered to defendants. The  maiority, on  the other  hand, took  a view which would bring about equality 954 in fact,  requiring similar  availability to all of criminal appeals in  Griffin’s  case  and  counsel-attended  criminal appeals in  Douglas’  case.  To  achieve  this  result,  the legislature had  to resort  to a  proportional  standard  of equality. These  cases are remarkable in that they show that the kind  of equality  which is  considered important in the particular context  and hence  of the respect in which it is necessary to treat people equally(1).      Look at  the approach  of the  Supreme Court  of United States  of   America  in   Harper  v.   Virginia  Board   of Elections(2). The  Court there  declared as unconstitution a Virginia poll  tax of  $ 1.50  per  person  which  had  been applied to  all indiscriminately. As in Griffin and Douglas, the  state  had  treated  everyone  numerically  alike  with respect to  the fee. Whatever discrimination existed was the result of  the state’s  failure to proportion the fee on the basis of  need or,  what is  the same  thing,  to  employ  a numerically equal  distribution with  respect  to  the  vote itself.  The   result  again   is  a  requirement  that  the legislature  should  take  note  of  difference  in  private circumstances in formulating its policies.      There is  no reason  why this  Court  should  not  also require the  state  to  adopt  a  standard  of  proportional equality which takes account of the differing conditions and circumstances  of   a  class   of  citizens  whenever  those conclusions and  circumstances stand  in the  way  of  their equal access to the enjoyment of basic rights or claims.      The concept  of equality  of opportunity  in matters of employment is  wide enough to include within it compensatory measures to  put the  members of  the Scheduled  Castes  and Scheduled  Tribes   on  par   with  the   members  of  other communities which  would enable  them to  get their share of representation in  public service. How can any member of the so called  forward communities  complain of  a  compensatory measure  made   by  government  to  ensure  the  members  of Scheduled Castes  and Scheduled  Tribes their  due share  of representation in public services ?      It is said that Article 16(4) specifically provides for reservation of  posts in  favour of  backward classes  which according to  the decision  of this  Court would include the power of  the State  to make  reservation at  the  stage  of promotion also  and therefore  Article 16(1)  cannot include within its  compass the  power to give any adventitious aids by legislation  or otherwise  to the  backward classes which would  deregate   from   strict   numerical   equality.   If reservation is  necessary either  at the initial stage or at the stage  of promotion or at both to ensure for the members

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of the  Scheduled Castes  and Schedu’ed  Tribes equality  of opportunity in the matter of employment. I see no reason why that is  not permissible  under Article  16(1) as that alone might put  them on  a parity with the forward communities in the  matter  of  achieving  the  result  which  equality  of opportunity would  produce. Whether  there  is  equality  of opportunity can be gauged only by the equality 955 attained in  the  result.  Formal  equality  of  opportunity simply enables  people with  more education and intelligence to capture  all the posts and to win over the less fortunate in education  and talent  even when the competition is fair. Equality of result is the test of equality of opportunity.      Daniel P.  Moynihan, one  of  America’s  leading  urban scholars, spelled  out the  problem in  a widely  publicized study that  he prepared  while he was Assistant Secretary of Labour. The  Moynihan Report,  as it  came to be known, made the point in a passage that deserves full quotation:           "It is increasingly demanded that the distribution      of success  and failure  within one  group  be  roughly      comparable to  that within  other  groups.  It  is  not      enough that all individuals start out on even terms, if      the members  of one group almost invariably end up well      to the  fore and those of another far to the rear. This      is what  ethnic politics  are all about in America, and      in the  main the  Negro American  demands are being put      forth  in   this  new   traditional   and   established      framework.           "Here a  point of  semantics must  be grasped. The      demand for  equality of  opportunity has been generally      perceived by White Americans as a demand for liberty, a      demand not  to be  excluded from  the  competitions  of      life-  at   the  polling   place,  in  the  scholarship      examinations, at  the personnel  office, on the housing      market. Liberty  does, of  course, demand that everyone      be free  to try  his luck,  or test  his skill  in such      matters. But  those opportunities  do  not  necessarily      produce equality:  On the  contrary, to the extent that      winners imply  losers, equality  of opportunity  almost      insures inequality of results.           "The  point  of  semantics  is  that  equality  of      opportunity now  has a  different meaning  for  Negroes      than it  has for  Whites. It  is not  (or at  least  no      longer) a  demand  for  liberty  alone,  but  also  for      equality-in terms  of group results. In Bayard Rustin’s      terms, ’It  is now  concerned not  merely with removing      the barriers to full opportunity but with achieving the      fact  of   equality.’  By   equality  Rustin   means  a      distribution  of  achievements  among  Negroes  roughly      comparable to that among Whites."(1)      Beginning  most   notably  with   the  Supreme  Court’s condemnation of  school  segregation  in  1954,  the  United States has  finally begun to correct the discrepancy between its ideals  and its  treatment of  the black  man. The first steps, as  refected in  the decisions  of the courts and the civil rights  laws of Congress, merely removed the legat and quasi-legal forms  of racial  discrimination. These  actions while not 956 producing true  equality, or  even equality  of opportunity, logically     dictated  the   next  step:  positive  use  of government  power  to  create  the  possibility  of  a  real equality. In  the words  of Professor  Lipset: "Perhaps  the most important fact to recognise about the current situation of the American Negro is that (legal) equality is not enough

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to insure his movement into larger society."(1)      I  agree   that  Article  16(4)  is  capable  of  being interpreted as an exception to Article 16(1) if the equality of opportunity  visualized in Article 16(1) is a sterile one geared to  the concept  of numerical equality which takes no account of  the social,  economic, educational background of the members  of Scheduled  Castes and  Scheduled Tribes.  If equality of opportunity guaranteed under Article 16(1) means effective material  equality, then  Article 16(4)  is not an exception to  Article 16(1).  It is  only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even upto the point of making reservation.      The State  can adopt any measure which would ensure the adequate representation  in public service of the members of the Scheduled  Castes and Scheduled Tribes and justify it as a compensatory  measure to  ensure equality  of  opportunity provided the  measure does not dispense with the acquisition of  the   minimum  basic  qualification  necessary  for  the efficiency of administration.      It does  not matter in the least whether the benefit of rule 13AA  is confined  only to  those members  of Scheduled Castes and  Scheduled Tribes in service at the time and that it is  not extended  to all members of the backward classes. The law-maker  should have  liberty to strike the evil where it is felt most.      Article 16(1)  is only a part of a comprehensive scheme to ensure  equality in all spheres. It is an instance of the application of  the larger concept of equality under the law embodied in  Articles 14  and 15.  Article 16(1)  permits of classification  just   as  Article   14  does   [see  S.  G. Jaisinghani v.  Union of  India & ors.(2), State of Mysore & Anr. v.  P. Narasing  Rao(3) and C. A. Rajendran v. Union of India &  Ors.(4).]. But, by the classification, there can be no discrimination  on the  ground only  of race,  caste  and other factors mentioned in Article 16(2).      The word  ’caste’ in  Article 16(2)  does  not  include ’Scheduled Caste’.  The definition  of ’scheduled castes’ in Article 366  (24) means:  "such castes,  races or  tribes or parts of  or groups  within such castes, races, or tribes as are deemed  under Article 341 to be Scheduled Castes for the purposes of  this Constitution."  This shows  that it  is by virtue  of  the  notification  of  the  President  that  the Scheduled 957 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. Moreover, though  the members  of tribe might be included in Scheduled Castes,  tribe as such is not mentioned in Article 16(2).      A classification  is  reasonable  if  it  includes  all persons who  are similarly  situated  with  respect  to  the purpose of  the law. In other words, the classification must be founded  on some  reasonable ground  which  distinguishes persons  who   are  grouped   together  and  the  ground  of distinction must have rational relation to the object sought to be achieved by the rule or even the rules in question. It is a  mistake to  assume a  priori  that  there  can  be  no classification within  a  class,  say,  the  Lower  Division Clerks. If there are intelligible differentia which separate a group within that class from the rest and that differentia have nexus  with the  object of  classification,  I  see  no objection to  a further  classification within the class. It is  no   doubt  a   paradox  that   though  in   one   sense classification brings  about inequality,  it is promotive of

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equality if  its object is to bring those who share a common characteristic under  a class for differential treatment for sufficient and  justifiable reasons. In this view, I have no doubt that  the principle  laid down  in  All-India  Station Masters’  and  Assistant  Station  Masters’  Association  v. General  Manager,  Central  Railway  and  Others(1),  S.  G. Jaisinghani v.  Union of  India and Others (supra) and State of Jammu  & Kashmir  v. Triloki  Nath Khosa & Ors.(2) has no application here.      Article 16(1)  and Article  16(2) do  not prohibit  the prescription of  a reasonable  qualification for appointment or for  promotion. Any  provision as  to  qualification  for employment or  appointment to an office reasonably fixed and applicable to  all would  be consistent with the doctrine of equality of opportunity under Article 16(1) [see The General Manager, Southern Railway v. Rangachari(3)].      Rule 13  provides that  no person shall be eligible for appointment to  any service  unless he possesses the special qualification and  has passed  such special  tests as may be prescribed in that behalf by special rules or possesses such special qualification  as he  considered to be equivalent to the said special qualification or special tests.      The  material  provision  in  rule  13A  provides  that notwithstanding anything  contained in rule 13, where a pass in a special or departmental test is newly prescribed by the Special Rules  of a  service for any category, grade or post therein or  in any  class thereof, a member of a service who has not  passed the said test but is otherwise qualified and suitable for  appointment to  such class, category, grade or post may within two years of the introduction of the test be appointed thereto temporarily. 958      Rule 14  provides for  reservation of  appointments  to members of Scheduled Castes and Scheduled Tribes.      Rule 13AA  has  been  enacted  not  with  the  idea  of dispensing  with  the  minimum  qualification  required  for promotion to  a higher  category or  class, but only to give enough breathing  space to  enable the  members of Scheduled Castes and  Scheduled Tribes  to acquire  it. The purpose of the classification  made in  rule 13AA  viz., of putting the members of  Scheduled Castes  and Scheduled  Tribes  in  one class and giving them an extension of time for acquiring the test qualification  prescribed by rule 13 and rule 13A is to enable them to have their due claim of representation in the higher category  without sacrificing the efficiency implicit in the  passing of  the test.  That the  passing of  some of these tests  does not  spell in  the realm  of minimum basic requirement of efficiency is clear from rule 13A. That rule, at any  rate, contemplated  passing of  the test  by all the employees within  two  years  of  its  introduction  showing thereby that acquisition of the test qualification was not a sine qua  non  for  holding  the  posts.  Rule  13(b)  which provides for  exemption from  passing the  test  would  also indicate  that   passing  of  the  test  is  not  absolutely essential for  holding the  post. The classification made in rule 13AA  has a  reasonable nexus  with the  purpose of the law, namely,  to enable  the members of Scheduled Castes and Scheduled Tribes  to get their due share of promotion to the higher grade in the service without impairing the efficiency of  administration.  Rule  13AA  is  not  intended  to  give permanent exemption  to the  members of Scheduled Castes and Scheduled Tribes  from passing  the test but only reasonable time to  enable them  to do so. The power to grant exemption under the  rule, like  every other  power, is  liable to  be abused. If  the power  is abused  and  the  members  of  the

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Scheduled Castes  and Scheduled  Tribes are  given  favoured treatment to  the extent  not warranted  by their legitimate claim, the  courts are not rendered helpless. That the power is liable  to be  abused is  no reason to hold that the rule itself viz., rule 13AA, is bad.      The ultimate  reason for the demand of equality for the members of  backward classes  is a  moral perspective  which affirms the intrinsic value of all human beings and call for a society  which provides those conditions of life which men need for  development of  their varying capacities. It is an assertion of  human equality  in the sense that it manifests an equal  concern for  the well being of all men. On the one hand it involves a demand for the removal of those obstacles and impediments which stand in the way of the development of human capacities-that  is it  is a call for the abolition of unjustifiable inequalities.  On the  other hand,  the demand itself gets  its sense  and moral  driving  force  from  the recognition that  ’the poorest  he that is in England hath a life to live, as the greatest he’(1). 959      I agree  with the  conclusion  of  my  Lord  the  Chief Justice that the appeal should be allowed.      BEG, J  : I share the conclusion reached by the learned Chief Justice  and my learned brethren Mathew, Krishna Iyer, and Murtaza  Fazal Ali.  I would, however, like to add, with great respect,  that a view which though not pressed in this Court by  the Advocate General of Kerala, perhaps because it had been  repelled by  the Kerala High Court, seems to me to supply  a   more  satisfying  legal  justification  for  the benefits conferred,  in  the  form  of  an  extended  period granted to  Government employees of a backward class to pass a qualifying  test  for  promotion  to  a  higher  grade  of service, that  is to  say, from  that of  the Lower Division Clerks to  that of the Upper Division Clerks in the State of Kerala. I think that we have to, in such a case, necessarily consider whether  the manner  in which  Scheduled Caste  and Scheduled Tribe  Government employees  are  treated  by  the rules and  orders under  consideration falls  within Article 16(4) of the Constitution.      Strictly speaking,  the  view  adopted  by  my  learned brother Khanna,  that the ambit of the special protection of "equality of  opportunity  in  matters  relating  to  public service", which can be made available to members of backward classes of  citizens, is  exhausted by  Article 16(4) of the Constitution, seems  inescapable. Article 16 is after all, a facet of  the grand principles embraced by Article 14 of our Constitution. It  guarantees :  "Equality of  opportunity in matters of  public appointment".  It  does  so  in  absolute terms.  It   is  a   necessary  consequence  and  a  special application of Article 14 in an important field where denial of  equality  of  opportunity  cannot  be  permitted.  While Article 16(1)  sets out  the positive  aspect of equality of opportunity in  matters relating to employment by the State, Article 16(2)  negatively prohibits  discrimination  on  the grounds given  in Article  16(2)  in  the  area  covered  by Article 16(1)  of the  Constitution. If  Scheduled Castes do not fall  within the  ambit of  Article  16(2),  but,  as  a "backward class"  of citizens, escape the direct prohibition it is  because the  provisions of Article 16(4) make such an escape  possible   for  them.  They  could  also  avoid  the necessary consequences  of the  positive mandate  of Article 16(1) if  they come  within the  only exception contained in Article 16(4)  of the  Constitution. I  respectfully  concur with my  learned brother  Khanna and  Gupta that it would be dangerous to  extend the  limits of  protection against  the

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operation of  the principle  of equality  of opportunity  in this field  bevond its  express constitutional authorisation by Article 16(4).      When citizens  are already  employed  in  a  particular grade, as  Government servants,  considerations relating  to the sources  from which  they are  drawn lose  much of their importance. As  public servants  of that  grade they  could, quite reasonably  and logically,  be said  to belong  to one class, atleast  for purposes  of promotion in public service for which there ought to be a real "equality of opportunity" 960 if we  are to avoid heart burning or a sense of injustice or frustration in this class. Neither as members of this single class nor  for purposes of the equality of opportunity which is to  be afforded  to this class does the fact that some of them are  also  members  of  an  economically  and  socially backward  class   continue  to  be  material,  or,  strictly speaking, even  relevant. Their entry into the same relevant class as  others must  be deemed  to indicate  that they  no longer suffer  from the  handicaps of  a backward class. For purposes of  Government service  the source  from which they are drawn  should cease  to matter.  As Government  servants they would,  strictly speaking,  form  only  one  class  for purposes of promotion.      As has  been pointed  out by  Mylord the Chief Justice, the protection  of Article  16(1) continues  throughout  the period of  service. If Article 16(1) is only a special facet or field,  in which an application of the general principles of Article  14 is  fully worked out or stated, as it must be presumed to  be, there is no room left for importing into it any other  or further  considerations from Article 14. Again the express provisions of Article 16(4) would be presumed to exhaust all  exceptions made  in favour  of backward classes not contained  there if  we apply  the maxim expressio unius est exclusio  alterius". It  is true  that the  principle of reasonable classification  may still claim recognition or be relevant for working out the exact significance of "equality of opportunity"  even within Article 16(1) in some aspect or context other  than the one indicated by Article 16(4). But, in view  of Article  16(4), that  aspect or  context must be different  from  one  aimed  at  realizing  the  objects  of Articles 46 and 335 in the sphere of Government service. The specified and  express mode  of realization of these objects contained in  Article 16(4), must exclude the possibility of other methods  which could  be implied and read into Article 16(1) for securing them in this field. One could think of so many other  legally permissible  and  possibly  better,  or, atleast more  direct,  methods  of  removing  socio-economic inequalities by  appropriate  legislative  action  in  other fields  left   open   and   unoccupied   for   purposes   of discrimination in favour of the backward.      In relation  to promotions,  "equality of  opportunity" could  only   mean  subjection  to  similar  conditions  for promotion by  being subjected  uniformly to  similar or same kind of  tests. This  guarantee was,  in fact,  intended  to protect the  claims  of  merit  and  efficiency  as  against incursions  of   extraneous  considerations.  The  guarantee contained in  Article 16(1)  is not,  by  itself,  aimed  at removal  of   backwardness   due   to   socio-economic   and educational disparties  produced by  past history  of social oppression, exploitation,  or  degradation  of  a  class  of persons. In  fact, efficiency tests, as parts of a mechanism to provide  equality of  opportunity, are meant to bring out and measure actually existing inequalities in competence and capacity or  potentialities so  as to  provide  a  fair  and

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rational  basis   for  justifiable   discrimination  between candidates. Whatever  may be  the  real  causes  of  unequal performances which  imposition of  tests may  disclose,  the purpose of equality of opportunity by means of tests is only to  ensure   a  fair   competition  in  securing  posts  and promotions in  Government service,  and not  the removal  of causes for unequal performances in 961 competitions  for  these  posts  or  promotions.  Thus,  the purposes of Articles 46 and 335, which are really extraneous to the  objects of Article 16(1), can only be served in such a context  by rules  which secure preferential treatment for the backward  classes and detract from the plain meaning and obvious  implications  of  Article  16(1)  and  16(2).  Such special  treatment   mitigates  the   rigour  of   a  strict application of  the principle contained in Article 16(1). It constitutes a  departure  from  the  principle  of  absolute equality of  opportunity in the application of uniform tests of competence.  Article 16(4)  was designed to reconcile the conflicting  pulls   of  Article   16(1),  representing  the dynamics of  justice, conceived of as equality in conditions under  which   candidates  actually  compete  for  posts  in Government service,  and of  Articles 46  and 335, embodying the duties  of the  State to  promote the  interests of  the economically, educationally,  and socially backward so as to release them  from the  clutches of  social injustice. These encroachments on  the field  of Article  16(1) can  only  be permitted to the extent they are warranted by Article 16(4). To read broader concepts of social justice and equality into Article 16(1)  itself may stultify this provision itself and make Article 16(4) otiose.      Members of  a  backward  class  could  be  said  to  be discriminated against  if severer  tests were prescribed for them. But,  this is  not the position in the case before us. All promotees,  belonging to any class, caste, or creed, are equally subjected  to efficiency  tests of the same type and standard. The  impugned rules  do not  dispense  with  these tests for  any class  or group. Indeed, such tests could not be dispensed  with for employees from Scheduled Castes, even as a  backward class,  keeping in  view  the  provisions  of Article 335  of the  Constitution. All  that happens here is that the  backward class  of employees  is  given  a  longer period of  time to pass the efficiency tests and prove their merit as  determined by  such tests. It has been, therefore, argued that, in this respect, there is substantial equality. In other  words, the argument is that if Article 16(1) could be interpreted  a little less rigidly and more liberally the discrimination involved  here will not fall outside it. Even if this  was a  tenable view.  I would,  for all the reasons given here,  prefer to  find the  justification if  this  is possible, in the express provisions of Article 16(4) because this is where such a justification should really lie.      In the  case before  us,  it  appears  that  respondent petitioner’s grievance  was  that  certain  members  of  the Scheduled Castes,  as  a  backward  class,  had  been  given preference over  him inasmuch as he was not promoted despite having passed  the efficiency  test, but  certain members of the backward  class were  allowed to  remain in  the  higher posts as  temporary promotees,  without  having  passed  the efficiency tests,  because they  had been  given an extended period  of   time  to  satisfy  the  qualifying  tests.  The petitioner thus  claimed priority  on the  ground  of  merit judged solely  by taking  and passing  the  efficiency  test earlier. Apparently,  he was  not even promoted, whereas the backward class  employees said to have been given preference

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over him 962 were, presumably  quite  satisfactorily,  discharging  their duties in  the higher  grade  in  which  they  were  already working as  temporary promotees.  He also  admits  that  the respondents, over  whom he  claims preference for promotion, were his  seniors in  service who had put in longer terms of total   service    before   their   conditional   promotions temporarily into  the grade of the Upper Division Clerks. It seems to  me that  the taking  and passing of a written test earlier than  another employee  could not be the sole factor to consider  in deciding  upon a  claim to superiority or to preference on  grounds of merit and efficiency for promotion as a Government servant.      The relevant  rule 13A  shows  that  a  person  who  is allowed temporarily  to work in the cadre of promotees, even without having  passed the  special efficiency  test,  must, nevertheless, have  satisfied the  test of  being "otherwise qualified and  suitable for  appointment". Thus, an employee from a  Scheduled Caste has also to be "otherwise qualified" before he  is given  an  opportunity  to  work  with  others similarly promoted temporarily. The only difference is that, whereas the  others get only two years from the introduction of the  new test  within which  to qualify  according to the newly introduced test, an employee of a Scheduled Caste or a Scheduled Tribe, similarly placed, gets two more years under the second  proviso. The  impugned rule 13AA, however, gives power to  the Government  to  specify  a  longer  period  of exemption if it considers this to be necessary. The Governor passed the  impugned order  of 13-1-1972  under  rule  13AA, extending the period still more. This order and the relevant rules 13A and 13AA are already set out above in the judgment of  Mylord   the  Chief  Justice.  I  need  not,  therefore, reproduce them here.      What is  the effect  of the provisions of Rules 13A and 13AA and  the order  of 13-1-1972  ? Is it not that a person who is  in the  position of  the respondent  petitioner must wait for a place occupied by or reserved for a person from a Scheduled Caste  or Tribe,  treated as backward class, until it is  shown that  the employee  from the backward class has failed to  take and  pass the  new test despite the extended period given  to him.  The effect  of the relaxation is that the  backward   class  employee   continues  in   the   post temporarily  for   a  longer   period  before  being  either confirmed or  reverted. For  this period,  the post  remains reserved for  him. If  he does  not satisfy  the  efficiency tests even  within this  extended period he has to revert to the lower  grade. If  he does satisfy the special efficiency test, in  this extended period, he is confirmed in the class of promotees  into which  he obtained  entry  because  of  a reservation. Among  meanings of the term "reserve", given in the Oxford  Dictionary, are  "To keep back or hold over to a later time  or place for further treatment; to set apart for some purpose or with some end in view". In the Webster’s New International  Dictionary   IInd  Edn.  (at  p.  2118),  the following meanings  are given:  "To keep  back; to retain or hold over  to a  future time  or place; not to deliver, make over or  disclose it  at once".  The  result  of  the  above mentioned rules  and orders  does seem to me to be a kind of reservation. If  a reservation  of posts under Article 16(4) for employees of backward classes could include complete re- 963 servation of  higher posts  to which they could be promoted, about which  there could  be no doubt now, I fail to see why it cannot  be partial  or for  a part  of  the  duration  of

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service and hedged round with the condition that a temporary promotion  would   operate  as   a  complete  and  confirmed promotion only  if the  temporary  promotee  satisfies  some tests within a given time.      If the  impugned rules and orders could be viewed as an implementation of  a  policy  of  qualified  or  partial  or conditional reservation,  in the form indicated above, which could satisfy  the requirements  of substantial equality, in keeping with Article 335, and meet the demands of equity and justice looked  at from the broader point of view of Article 46 of  the Constitution,  they could,  in my  view, also  be justified under Article 16(4) of the Constitution.      It may  be that  the learned  Advocate General  for the appellant State  did not  press the ground that the impugned rules and  orders are  governed by  Article 16(4) because of the tests  required for  complete  or  absolute  reservation dealt with  in T.  Devadasan v. the Union of India & Anr.(1) and M. R. Balajli & Ors. v. State of Mysore(2), where it was held that  more than  50% reservations  for a backward class would violate  the requirement of reasonableness inasmuch as it would  exclude too  large a  proportion of  others. Apart from the  fact that the case before us is distinguishable as it is  one of  only a  partial or  temporary and conditional reservation, it  is disputed here that the favoured class of employees really constituted more than fifty per cent of the total number  of Government  servants of  this  class  (i.e. Clerks) if  the overall  position and picture, by taking the number of  employees in all Govt. Departments, is taken into account. Furthermore,  it is pointed out that a large number of  temporary   promotions  of   backward  class  Government servants of  this grade  had taken  place  in  1972  in  the Registration Department, in which the petitioning respondent worked, because  promotions of  backward class employees had been held up in the past due to want of necessary provisions in rules which could enable the Government to give effect to a policy  of a  sufficient representation  of backward class employees of  this grade in Government service. The totality of facts  of this  case is distinguish able in their effects from those in cases cited before us. No case was cited which could fully cover the position we have before us now.      I am  not satisfied  that the  only ground given by the High Court  for refusing  to give  the benefits  of impugned rules and  orders to the backward class Government servants, that they  fall outside  the purview  of Article  16(4), was substantiated. It  was  for  the  respondent  petitioner  to discharge the  burden  of  establishing  a  constitutionally unwarranted discrimination  against him.  His petition ought in my  opinion, to have been dismissed on the ground that he had failed to discharge this initial burden.      Accordingly, I  would allow  this appeal  and set aside the judgment  and order  of the  High Court  and  leave  the parties to bear their own costs throughout. 964      KRISHNA IYER,  J.-A case  which turns  the focus on the political philosophy  pervading the Constitution and affects a large  human segment  submerged below  the line of ancient social penury,  naturally prompts  me to  write  a  separate opinion substantially  concurring with  that of  the learned Chief Justice. Silence is not always golden.      The highlight  of this  Civil Appeal  against the  High Court’s judgment  striking down  a State Subordinate Service rule,  thereby  adversely  affecting  lower  rung  officials belonging to  the Scheduled  Castes and Scheduled Tribes, is the  seminal   issue  of   admissibility  and   criteria  of classification within  the ’equal  opportunity’ rule in Art.

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16(1) and  the lethal  effect  of  the  built-in  inhibition against caste-based classification contained in Art 16(2) in relation to  these frightfully  backward  categories.  In  a large sense, the questions are res integra and important and cannot be  dismissed easily  on the remark of Justice Holmes that the  equal protection  clause is  ’the last  resort  of constitutional arguments’ (274 U.S. 200, 208).      Law, including constitutional law, can no longer ’go it alone’ but  must be  illumined in the interpretative process by sociology  and allied  fields of  knowledge. Indeed,  the term ’constitutional  law’ symbolizes an intersection of law and politics, wherein issues of political power are acted on by persons  trained  in  the  legal  tradition,  working  in judicial institutions,  following  the  procedures  of  law, thinking  as   lawyers  think.(1)   So  much   so,  a  wider perspective is  needed to  resolve issues  of constitutional law. May  be, one  cannot agree  with the view of an eminent jurist and  former Chief Justice of India: ’the judiciary as a whole  is  not  interested  in  the  policy  underlying  a legislative measure’  (Mr. Hidayatullah-’Democracy  in India and Judicial  Process’-1965-p.  70).  Moreover,  the  Indian Constitution   is    a   great   social   document,   almost revolutionary  in   its  aim  of  transforming  a  medieval, hierarchical society  into a  modern, egalitarian democracy. Its provisions  can be  comprehended  only  by  a  spacious, social-science  approach,   not  by   pedantic,  traditional legalism. Here  we are  called upon to delimit the amplitude and decode  the implications of Art. 16(1) in the context of certain special  concessions relating  to employment,  under the Kerala  State (the appellant), given to Scheduled Castes and Scheduled  Tribes (for short, hereinafter referred to as harijans) whose  social lot  and economic  indigence are  an Indian  reality   recognized  by   many  Articles   of   the Constitution. An  overview of the decided cases suggests the need to  re-interpret the  dynamic import  of the  ’equality clauses’ and, to stress again, beyond reasonable doubt, that the paramount  law,  which  is  organic  and  regulates  our nation’s growing  life, must  take  in  its  sweep  ’ethics, economics, politics and sociology’. Equally pertinent to the issue mooted before us is the lament of Friedman:           "It would  be tragic  if the law were so petrified      as to be unable to respond to the unending challenge of      evolutionary or revolutionary changes in society."(2) 965 The main assumptions which Friedman makes are:           "first, the  law is,  in  Holmes’  phrase,  not  a      ’brooding omnipotence  in  the  sky’,  but  a  flexible      instrument of  social order, dependent on the political      values  of   the   society   which   it   purports   to      regulate...."(1)      Naturally  surges   the  interrogation,  what  are  the challenges of  changing values  to which  the  guarantee  of equality must  respond and  how? To  pose the  problem  with particular reference  to our  case, does  the impugned  rule violate the  constitutional creed  of equal  opportunity  in Art. 16 by resort to a suspect classification or revivify it by  making  the  less  equal  more  equal  by  a  legitimate differentiation ? Chief Justice Marshall’s classic statement in Mc  Culloch v  Maryland(2) followed by Justice Brennan in Kazenbach v. Morgan(3) remains a beacon light:           "Let the  end be  legitimate, let it be within the      scope of  the constitution,  and all  means  which  are      appropriate, which  are plainly  adapted to  that  end,      which are  not prohibited,  but consist with the letter      and spirit of the constitution, are constitutional."

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    The background  facts may  be briefly  set out  in  the elemental form.  The Kerala  State and  Subordinate Services Rules, 1958  (for short,  the rules) regulate the conditions of service of the State employees of the lower order. We are concerned  with   the  prescription  of  qualifications  for promotion of  the lower  division clerks  to upper  division posts in  the Registration  Department. Rule  13 insists  on passing certain  tests  for  promotional  eligibility.  When tests were  newly introduced, r. 13A gave 2 years from their introduction for passing them, to all hands-harijan and non- harijan, but  the former  enjoyed an  extra two  year  grace period.  Rule   13B  totally  exempted  pentagenarians  from passing  these  tests.  Rule  13AA,  which  is  impugned  as violative of  Art. 16(1)  and (2)  of the  Constitution, was promulgated on January 13, 1972 and it reads:           "13AA. Notwithstanding anything contained in these      rules, the  Government may,  by  order,  exempt  for  a      specified period  any member or members, belonging to a      Scheduled Caste  or a  Scheduled Tribe,  and already in      service, from  passing the tests referred to in rule 13      or rule 13A of the said Rules.           Provided that this rule shall not be applicable to      tests prescribed  for  purposes  of  promotion  of  the      executive  staff   below  the  rank  of  Sub-Inspectors      belonging to the Police Department." 966 A Note  appended to the rule gives the raison d’ etre of the rule:           "It has  been brought  to the notice of Government      that a  large number  of Harijan  employees  in  Public      Service are facing immediate reversion from their posts      for want  of test  qualifications. So  it is considered      necessary to  incorporate an  enabling provision in the      Kerala State  and Subordinate  Services Rules,  1958 to      grant by  order temporary  exemption to members already      in service  belonging to Scheduled Castes and Scheduled      Tribes from  passing all  tests for a specified period.      This notification  is intended  to  achieve  the  above      object."      A break-up  of r.  13AA of  the rules  certainly  gives power to  Government to extend the time to harijan officials of ’subordinate  services’ for  passing tests prescribed for occupying promotional posts. But it does not for ever exempt these hands  but only  waive for  a  specified,  presumably, short term.  Nor does  it relax  the minimal  qualifications held necessary  for these  posts from  the point  of view of basic administrative  efficiency.  The  subsidiary  need  of passing certain  new tests, for which all employees get some period (from  the time of their introduction) is relaxed for a longer  period in  the case  of harijan hands under r. 13A and still more under r. 13AA. We must expect that Government will, while  fixing the longer grace time for passing tests, have regard to administrative efficiency. You can’t throw to the winds  considerations of  administrative capability  and grind the  wheels of  Government to  a halt  in the  name of ’harijan  welfare’.   The  Administration   runs  for   good government, not to give jobs to harijans. We must accept the necessary import of the rule as a limited concession to this weaker group and test its vires on this basis.      One significant  factor must  be  remembered  to  guard against  exaggerating  the  bearing  of  these  tests  as  a coefficient of  efficiency.  Certainly,  they  were  not  so important as  all that  because r.  13A-not  challenged  all these years-gave  2 years’  qualifying period  for all and 4 years for harijans. Also those above 50 years of age did not

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have to  pass the  tests at  all (r. 13B). The nature of the tests vis a vis the nature of work of upper division clerks, and their  indispensability for official capability have not been brought  out in  the writ  petition  and,  absent  such serious suggestions,  we have to assume that Government (the author of  r.13)  would  have  granted  varying  periods  of exemption only  because of  their  desirability,  not  their precedent necessity.  To expatiate  a little more, it is not unusual to  fix basic  qualifications for  eligibility to  a post. Their  possession is  a must,  having  regard  to  the functions of  the office. A second and secondary category of qualifications is  insisted on  as useful  to discharge  the duties of  the  post  e.g.,  accounts  test,  or  civil  and criminal judicial  tests and  the  like,  depending  on  the department where  he is to work. After all here he is a pen- pushing clerk,  not a  magistrate, accounts  officer, forest officer, sub-registrar, space scientist or too administrator or one  on whose initiative the wheels of a department speed up or  slow down.  Even so,  it makes his clerical work more understanding and efficient. These 967 tests are,  therefore, demanded  for better performance, not basic  proficiency,   but  relaxation  is  also  allowed  in suitable class  of cases,  their absence  not being fatal to efficiency. A  third class  of virtues  which will  make the employee ultra  efficient, but  is not regarded as cardinal, is listed as entitled to preference. A doctorate in business management, or LL.M. where the basic degree is the essential requisite, social  service or  leadership  training,  sports distinction and a host of other extra attainments which will improve the  aptitude and  equipment of  the officer  in his speciality but are, in no sense, necessary-these are welcome additives, are  good and  may even get the employee a salary raise but are not insisted on for initial appointment to the post either  as a  direct recruit  or as  a  promotee.  This trichotomy of  qualifications makes pragmatic meaning to any employer and  is within  anyone’s ken  if he  turns over the advertisements   in    newspapers.   To   relax   on   basic qualifications is  to compromise with minimum administrative efficiency; to  relent,  for  a  time,  on  additional  test qualifications is  to take a calculated but controlled risk, assured of a basic standard of performance; to encourage the possession of higher excellence is to upgrade the efficiency status  of   the  public  servant  and,  eventually  of  the department. This  is the  sense and essence of the situation arising in  the present  case,  viewed  from  the  angle  of administrative requirements or fair employment criteria.      Back now  to the  rule  of  exemption  and  its  vires. Frankly, here  the respondents  who have  passed the ’tests’ are stalled  in their  promotion because  of the new rule of harijan exemption.  As individuals,  their rights  vis a vis their harijan brethren are regarded unequally. In a strictly competitive   context   or   narrowly   performance-oriented standard, r. 13AA discriminates between a harijan and a non- harijan. The  question is  whether a  perceptive sensitivity sees on  ’equal opportunity’  a critical distinction between distribution  according   to  ’merit’   of  individuals  and distribution  according   to  ’need’  of  depressed  groups, subject to  broad efficiency  criteria.  We  enter  here  ’a conceptual disaster area’.      Factual contexts dictate State action. The differential impact  of   a  law  on  a  class  will  influence  judicial evaluation of the reasonableness of a classification and its relation to a purpose which is permissible. Courts, however, adopt a  policy of  restrained review where the situation is

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complex and is intertwined with social, historical and other substantially   human    factors.   Judicial   deference-not abdication-is  best  expressed  by  Justice  Holmes  in  his dissent in Louisvilla Gas & Elec. Co. v. Coleman           "But when  it is seen that a line or a point there      must be,  and that there is no mathematical and logical      way  of  fixing  it  precisely,  the  decision  of  the      legislature must  be accepted unless we can say that it      is very wide of any reasonable mark." 968 In Buck v. Bell Holmes J. observed:           "The law  does all that is needed when it does all      that it  can, indicates  a policy,  applies it  to  all      within the  lines, and  seeks to bring within the lines      all similarly  situated so far and so fast as its means      allow". Given a  legitimate over-riding  purpose for selectivity the Court passes,  leaving it  to the  law-maker  the  intricate manner   of    implementation.   Faced    with   a   suspect classification  based   on  a  quasi-caste  differentia  and apparently injuring  administrative quality, the Court turns activist. Conceptual  equilibrium between these two lines is the correct guideline.      The  operational  technique  may  vary  with  time  and circumstance but the goal and ambit must be constitutionally sanctioned. In  the instant  case, the  State  has  taken  a certain step  to advance the economic interests of harijans. What-if we  break down  the rule  into  its  components-have Government done  ? Have  they transgressed  the rights under Art.  16(1)   &  (2)   ?  If   they  have,   the  Court,  as constitutional   invigorator    interdicts,   after   making permissible presumptions  in favour  of  State  actions  and importing the  liberal spirit of effective equality into the mandate of  Arts. 14  and 16. Otherwise, the hammer does not fall.      Why was  this  second  ’holiday’  under  rule  13AA  to harijans granted  ? The hapless circumstance which compelled this course  was, according  to the  State, the need to help this class,  acting within  the  constitutional  bounds,  to avert mass  reversion to  lower  posts,  without  abandoning insistence on  passing ’tests’.  The  Note  to  r.  13AA  is explanatory. The State viewed this disturbing situation with concern, and,  having regard  to their  backward  condition, made r.  13AA which  conferred power  on Government to grant further spells  of grace  time to  get through  these tests. Simultaneously, a  period within which two opportunities for passing tests  would be  available was  afforded by  a  G.O. issued under  r. 13AA.  The consequence  was their immediate reversion was  averted and  the promotion  prospects of  the non-harijan writ petitioners, who were test-qualified, stood postponed. This  grievance of  theirs drove them to the High Court where  the rule  of temporary  exemption from  passing tests for  promotional eligibility in favour of harijans was held ultra vires Arts. 16(1) and 335.      I shall  focus on the basis because my learned brethren have dilated  on the  necessary details  of facts  and, more importantly, because  confusion on fundamentals deflects the construction of  constitutional clauses-all this against the admitted backdrop  of die-hard  harijan  bondage,  sometimes subtle, sometimes gross. The learned Advocate General fairly conceded-and  I   think  rightly-that  r.  13AA  was  not  a ’reservation’  under   Art.  16(4)   and  yet  the  favoured treatment to  harijan  clerks  was  valid,  being  based  on reasonable   classification    under   a    constitutionally recognised differentia which had a relation to the legi-

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969 timate end  of promoting the advancement of this handicapped class, subject  to administrative  efficiency.  The  learned Solicitor General,  appearing on  notice by the Court to the Attorney General,  stated the  law on  a broader  basis  and urged  that   the  grouping   of  classes  of  socially  and educationally downtrodden  people especially  the  Scheduled Castes and Tribes, was good and did not offend Art. 16(1) or (2). Shri  R. K.  Garg, for  some of the respondents and for the interveners,  spread out  the social canvas, focussed on the age-old suppression and consequential utter backwardness of those  societal brackets  and the  State’s obligation  to wipe out  the centuries of deprivation by making a concerted effort to  bring them  up to  the same  level as  the  other classes so  that, after  this levelling up, the whole nation could  march   forward  on  terms  of  democratic  equality. Discrimination  on  the  ground  of  caste  did  not  arise, according to  counsel, Scheduled Castes and Tribes being not a caste  but an  amalgam of the socially lowly and the lost, including groups  with a  caste savour.  Shri Krishnamoorthy Iyer, for  the respondents,  naturally  disputed  all  these propositions. The  cornerstone of  his case  was that in the field of  State employment caste-wise compassion to harijans flew in  the face  of Art.  16(1) and  (2) and  separate but special treatment  was permissible  only  under  Art.  16(4) which was  expressly designed  as  benignant  discrimination devoted to lifting backward classes to the level of the rest through the  constitutional technology  of ’reservation’. To travel beyond  this special  clause  and  evolve  a  general doctrine of  backward classification  was to  over-power the basic concept  of equality  and to  bring in,  by a specious device, a  back-door casteism  subverting the  scheme  of  a casteless  society   set  as   one  of   the  goals  of  our constitutional  order.   Efficiency  of  administration,  an important desideratum of public service, would also suffer.      I will  examine these  contentions in  depth and detail later in this judgment.      Let us  proceed to  assess the  constitutional merit of the State’s  ex facie  ’unequal’ service  rule favouring in- service  harijan   employees  in   a   realist   socio-legal perspective. But  before that,  some memorable facts must be stated. The  Father of the National adopted, as his fighting faith, the  uplift of  the bhangi  and his  assimilation, on equal footing,  into Hindu  society, and  the  Constitution, whose principal architect was himself a militant mahar, made social justice  a founding  faith and built into it humanist provisions to  lift the  level of the lowly scheduled castes and tribes  to make  democracy viable  and  equal  for  all. Studies in  social anthropology  tell us  how  cultural  and material suppression  has, over  the  ages,  crippled  their personality, and  current demography  says that nearly every fifth Indian  is a  harijan and his social milieu is steeped in  squalour.  The  conscience  of  the  Constitution  found adequate expression  on this  theme, in Dr. Ambedkar’s words of caution and premonition in the Constituent Assembly:           "We must  begin by  acknowledging first that there      is complete  absence of  two things  in Indian society.      One of 970      these is  equality. On  the social  plane, we  have  in      India a society based on privilege of graded inequality      which means  elevation  for  some  and  degradation  of      others. On  the economic  plane, we  have a  society in      which there are some who have immense wealth as against      the many  who are living in abject poverty. On the 26th

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    of January,  1950, we are going to enter into a life of      contradictions. In  politics we  will have equality and      in social  and economic life we will have inequality...      We must  remove  this  contradiction  at  the  earliest      possible  moment,   or  else   those  who  suffer  from      inequality will  blow up  the  structure  of  political      democracy which  this Assembly has so laboriously built      up."      (Speeches, Vol. II, pp. 184-187). Judges  may   differ  in  constitutional  construction  but, without peril  of distorting  the substance,  cannot discard the activism  of the equal justice concept in the setting of deep concern  for the weaker sections of the community. What I endeavour to emphasize, as I will elaborate later, is that equal justice  is an aspect of social justice, the salvation of the  very weak  and down-trodden, and the methodology for levelling them up to a real, not formal, equality, being the accent.      The Kerala  State,  the  appellant,  has  statistically shown the  yawning gap  between  what  number  of  posts  in Government service  harijans are  entitled  to,  population- ratio wise, and the actual number of posts occupied by them. Their ’official’  fate is no less ominous elsewhere in India and would  have been poorer on the competitive market method of selection  unaided by  ’reservation’. The case for social equality and  economic balance, in terms of employment under the State,  cries for  more energised  administrative effort and a  Government that  fails to  repair this depressed lot, fools the  public on  harijan welfare. Indeed, an aware mass of humanity,  denied justice  for generations, will not take it lying  down too long but may explode into Dalit Panthers, as did  the Black  Panthers in  another country, -a theme on which Shri  Gajendragadkar, a former Chief Justice of India, has  laid   disturbing  stress   in  two  Memorial  Lectures delivered recently.  Jurists must  listen to  real life and, theory apart,  must be  alert enough  to read the writing on the wall  !  Where  the  rule  of  law  bars  the  doors  of collective justice,  the crushed class will seek hope in the streets!  The   architects  of  our  Constitution  were  not unfamiliar with  direct action  where basic justice was long withheld and  conceived of  ’equal opportunity’ as inclusive of equalising  opportunity. Only a clinical study of organic law will yield correct diagnostic results.      Social engineering-which  is Law  in action- must adopt new strategies  to liquidate  encrusted group  injustices or surrender society  to traumatic  tensions.  Equilibrium,  in human terms, emerges from 971 release of the handicapped and the primitive from persistent social disadvantage,  by determined creative and canny legal manouvres of the State, not by hortative declaration of arid equality. ’To  discriminate positively in favour of the weak may sometimes  be promotion  of genuine  equality before the law’ as  Anthony Lester  argued in his talk in the B.B.C. in 1970 in  the series:  ’What is wrong with the Law’. ’One law for the  Lion and  Ox is oppression’. Or, indeed as was said of another  age by  Anatole France, ’The law in its majestic equality forbids the rich as well as the poor to sleep under bridges,  to  beg  in  the  streets  and  to  steal  bread’. Redistributive  justice   to  harijan  humanity  insists  on effective reforms,  designed to produce equal partnership of the erstwhile  ’lowliest and  the lost’,  by  State  action, informed by  short-run and  long-run  sociologically  potent perspective planning  and implementation.  An uneven  socio- economic landscape hardly gives the joy or equal opportunity

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and development  or draw  forth  their  best  from  manpower resources now  wallowing in  the  low  visibility  areas  of discontented life.      The domination of a class generates, after a long night of sleep  or stupor of the dominated, an angry awakening and protestant resistance  and  this  conflict  between  thesis, i.e., the  status quo,  and anti-thesis i.e., the hunger for happy equality,  propels new  forces of  synthesis i.e.,  an equitable constitution  order or  just society. Our founding fathers, possessed  of spiritual  insight and  influenced by the materialist  interpretation of history, forestalled such social pressures  and pre-empted  such economic upsurges and gave us  a trinity of commitments-justice : social, economic and political.  The ’equality  Articles’ are  part  of  this scheme.   My   proposition   is,   given   two   alternative understandings of the relevant sub-Articles [Arts. 16(1) and (2)], the  Court must so interpret the language as to remove that ugly  ’inferiority’  complex  which  has  done  genetic damage to  Indian polity and thereby suppress the malady and advance  the   remedy,  informed  by  sociology  and  social anthropology. My  touch-stone is  that functional  democracy postulates participation  by all  sections of the people and fair representation  in administration  is an  index of such participation.      Justice Brennen, in a somewhat different social milieu, uttered words which may not be lost on us:           "Lincoln  said   this  Nation  was  ’conceived  in      liberty and  dedicated to  the proposition that all men      are created  equal’. The  Founders’ dream  of a society      where all  men are  free and equal has not been easy to      realize. The degree of liberty and equality that exists      today has been the product 972      of unceasing struggle and sacrifice. Much remains to be      done-so much  that the very institutions of our society      have  come   under  challenge.   Hence,  today,  as  in      Lincoln’s time, a man may ask ’whether (this) nation or      any nation  so conceived  and  so  dedicated  can  long      endure’. It  cannot endure if the Nation falls short on      the  guarantees   of  liberty,  justice,  and  equality      embodied in  our founding documents. But it also cannot      endure if  our precious  heritage of ordered liberty be      allowed to  be ripped  apart amid the sound and fury of      our time.  It cannot  endure if in individual cases the      claims of social peace and order on the one side and of      personal  liberty  on  the  other  cannot  be  mutually      resolved in  the forum  designated by the Constitution.      If that  resolution cannot be reached by judicial trial      in a  court of law, it will be reached elsewhere and by      other means,  and  there  will  be  grave  danger  that      liberty, equality, and the order essential to both will      be lost."      The Note  to r.  13AA explains the immediate motivation behind the  rule but the social backdrop set out by me helps us appreciate its constitutionality. However, we are under a Consitution and mere social anthropology cannot override the real words  used in  the Constitution. For, Judges may read, not  reconstruct.   Plainly  harijans   enjoy  a   temporary advantage over  their non-harijan  brethern by  virtue of r. 13AA and  this, it  is plausibly  urged by  counsel for  the contestants,  is  violative  of  the  merciless  mandate  of equality ’enshrined’  dually  in  Art.  16(1)  and  (2).  It discriminates  without   constitutional  justification   and imports the  caste differentia  in the  face of  a  contrary provision. The  learned Advocate  General seeks  to meet  it

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more by  a legal  realist’s(approach and,  in  a  sense,  by resort   to    functional   jurisprudence.   What   is   the constitutional core  of equality  ? What  social  philosophy animates it  ? What  luminous connotation does the pregnant, though  terse,  phrase  ’equality  of  opportunity  for  all citizens in  matters of  employment’ bear ? What excesses of discrimination are banned and what equalitarian implications invite administrative  exploration ?  Finally, what light do we derive  from precedents  of this Court on these facets of Art. 16 ? I will examine these contentious issues presently.      The  Solicitor   General,  in   his  brief   but   able submissions,  has   offered  a  harmonious  and  value-based construction  of   the  constitutional   code   guaranteeing equality (Arts.  14 to  16). Sri  Garg has  swung to extreme positions, some  of which  spill over  beyond  the  specific issue arising  in  this  case.  Even  so,  I  agree  that  a quickened social vision is needed to see in the Constitution what a myopic glimpse may not reveal.      A  word  of  sociological  caution.  In  the  light  of experience, here and elsewhere, the danger of ’reservation’, it seems  to me,  is three-fold. Its benefits, by and large, are snatched  away by the top creamy layer of the ’backward’ caste or  class, thus  keeping the  weakest among  the  weak always weak  and leaving the fortunate layers to consume the whole   cake.    Secondly,   this   claim   is   over-played extravagantly in  democracy by  large and vocal groups whose burden of backwardness has been 973 substantially lightened by the march of time and measures of better education  and more  opportunities of employment, but wish to  wear the ’weaker section’ label as a means to score over their  near-equals formally  categorised as  the  upper brackets. Lastly,  a lasting  solution to  the problem comes only  from   improvement  of   social   environment,   added educational facilities  and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme,  and this  solution is  calculatedly hidden from view  by the  higher ’backward’  groups with  a  vested interest in  the plums  of backwardism.  But social  science research, not  judicial impressionism,  will alone  tell the whole  truth   and  a  constant  process  of  objective  re- evaluation  of   progress  registered   by  the  ’under-dog’ categories is  essential lest a once deserving ’reservation’ should   be    degraded   into   ’reverse   discrimination’. Innovations in  administrative strategy  to help  the really untouched, most  backward  classes  also  emerge  from  such socio-legal studies  and audit exercises, if dispassionately made. In  fact,  research  conducted  by  the  A.  N.  Sinha Institute of  Social Studies,  Patna, has  revealed  a  dual society  among  harijans,  a  tiny  elite  gobbling  up  the benefits and  the darker layers sleeping distances away from the special concessions. For them, Arts. 46 and 335 remain a noble romance’ the bonanza going to the ’higher’ harijans. I mention this  in the  present case  because  lower  division clerks are  likely to  be drawn  from the  lowest levels  of harijan humanity  and promotion  prospects being accelerated by withdrawing,  for a  time, ’test’ qualifications for this category may  perhaps delve  deeper. An  equalitarian break- throug in  a hierarchical  structure has to use many weapons and r. 13AA perhaps is one.      The core  conclusion I  seek to emphasize is that every step needed to achieve in action, actual, equal, partnership for  the  harijans,  alone  amounts  to  social  justice-not enshrinement of  great rights  in Part III and good goals in Part IV.  Otherwise, the  solemn undertakings in Arts. 14 to

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16 read  with Arts.  46 and 335 may be reduced to a ’teasing illusion or  promise of  unreality’. A  clear vision  of the true  intendment   of  these   provisions  demands   a  deep understanding of  the  Indian  spiritual-secular  idea  that divinity  dwells  in  all  and  that  ancient  environmental pollution  and   social  placement,  which  the  State  must extirpate,   account    for   the   current   socio-economic backwardness  of   the  blacked-out  human  areas  described euphemistically as  Scheduled Castes  and Scheduled  Tribes. The roots of our constitutional ideas-at least some of them- can be  traced to our ancient culture. The noble Upanishadic behest of  collective acquisition of cultural strength is in volved in  and must evolve out of ’equality’, if we are true to the subtle substance of our finer heritage.      Let me  now turn  to the essential controversy. Is rule 13AA valid  as protective  discrimination to  the harijans ? The Advocate  General drew  our attention to the Articles of the  Constitution  calculated  to  overcome  the  iniquitous alienation of harijans from the three branches of 974 Government. The  Preamble to  the Constitution silhouettes a "justiceoriented’ community.  The  Directive  Principles  of State Policy,  fundamental in the governance of the country, enjoin on  the State  the promotion  ’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  protect  them  from  social injustice’. To  neglect this  obligation is  to play  truant with Art.  46. Undoubtedly, economic interests of a group-as also social  justice to it-are tied up with its place in the services under  the State.  Our history, unlike that of some other countries,  has found  a zealous pursuit of government jobs as  a  mark  of  share  in  State  power  and  economic position.  Moreover,   the   biggest-and   expanding,   with considerable  State  undertakings,-employer  is  Government, Central and  State, so  much so  appointments in  the public services matter  increasingly in  the prosperity of backward segments. The  Scheduled Castes  and Scheduled  Tribes  have earned  special   mention  in  Art.  46  and  other  ’weaker sections’, in  this  context,  means  not  every  ’back-ward class’ but  those dismally  depressed categories  comparable economically  and  educationally  to  Scheduled  Castes  and Scheduled Tribes.  To widen the vent is to vitiate the equal treatment which  belongs to  all citizens,  many of whom are below the  poverty line.  Realism reveals  that  politically powerful castes  may try  to break  into equality, using the masterkey of  backwardness but leaving aside Art. 16(4), the ramparts of  Art. 16(1)  and (2)  will resist  such  oblique infiltration.      Even so,  does Art.  46 at  all authorise the breach of uniform equality  of opportunity  guaranteed by Art. 16(1) ? Can a  favoured treatment  to harijans,  by way of temporary concessions in  passing tests,  be founded  on Art.  46 as a basis  for   rational  classification?   Is  such  a  benign discrimination  a  caste-oriented  legislation  contravening Art. 16(2)  ? Before I consider these vital questions, I may as  well   glance  at  some  of  the  important  pro-harijan provisions in the Constitution.      The Constitution  itself makes  a  super-classification between harijans  and others,  grounded on  the, fundamental disparity in  our society  and the imperative social urgency of  raising   the  former’s   sunken  status.   Apart   from reservation of seats in the Legislatures for harijans, which is a  deliberate  departure,  taking  note  of  their  utter backwardness  (Art.  330  and  332,  a  special  officer  to

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investigate and  report to the President upon the working of special constitutional  safeguards made  to protect harijans has to  be appointed  under Art.  338. Gross  inadequacy  of representation in  public services  is obviously one subject for investigation  and report.  More importantly,  Art. 335, which Shri Garg relied on to hammer home his point, reads:           "335, Claims  of Scheduled  Castes  and  Scheduled      Tribes to services and posts.-The claims of the members      of the  Scheduled Castes and the Scheduled 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  or  of  a      State." 975 This provision  directs pointedly  to (a)  the claims of-not compassion   towards-harijans    to   be    given    special consideration  in  the  making  of  appointments  to  public services; and  (b) lest this extra-attention should run riot and ruin  administrative efficiency,  a caution  is  uttered that maintenance  of efficiency in administration should not suffer mayhem.      Now we  may deduce  from these and other like Articles, unaided by  authority, certain  clear conclusions  of  great relevance to  the present  case: (1) The Constitution itself demarcates harijans  from others.  (2) This  is based on the stark backwardness  of this  bottom layer  of the community. (3) The  differentiation has been made to cover specifically the area  of appointments  to posts under the State. (4) The twin objects,  blended into  one, are the claims of harijans to be  considered in  such  posts  and  the  maintenance  of administrative efficiency.  (5) The State has been obligated to promote  the economic  interests  of  harijans  and  like backward classes,  Arts. 46  and 335  being a  testament and Arts. 14  to 16  being the  tool-kit, if one may put it that way. To  blink at  this panchsheel  is to  be unjust  to the Constitution.      Sri   Krishnamoorthy    Iyer,   for    the   contesting respondents, argued  that harijans  may  have  been  grouped separately for  protective care  by the Constitution but its expression, in the matter of employment under the State, has to be subject to the fundamental right of every citizen like his clients  to the  enjoyment of equal opportunity and non- discrimination on  the score  of caste.  His proposition  is that, in the name of harijan welfare, dilution of Art. 16(1) and (2)  is impermissible under the scheme of Part III which is paramount  and contains  enforceable  guaranteed  rights. Secondly, ’scheduled  castes’ are  castes all  the same  and preferment shown  to them  is plainly opposed to Art. 16(2). Thirdly, even  Art. 335  insists on  administrative tone, so essential to  good government,  and prolonged exemption from tests prescribed  by the  impugned rule,  from the  point of view  of  official  efficiency,  undermines  this  pertinent criterion. This  Court has all along struck down measures of ’reserved’   representation    for   backward   classes   in educational institutions  and public  services when  a  high proportion has  been so  ear-marked, escalating  the risk of making the  Administration  itself  backward.  Finally,  the Constitution has  set apart  an exclusive  exception to  the equal opportunity rule in Art. 16(4), so much so Art. 46 and 335 must be projected through that provision only and cannot spill over  into Art.  16(1) and (2). Fundamental rights are fundamental and  cannot be  cut  back  upon  or  insidiously eroded by the classificatory technique.      Both  the  presentations  have  a  flawless  look,  the

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controlling distinction  being between  two visions  of  the mood  and   message  of   the  supreme   law  we   call  the Constitution, the  dynamic and  the static, the sociological and  the  formal.  It  is  unexceptional  to  say  that  any insightful construction  must opt for the former methodology and  also   seek  a   good  fellowship   among  the  various provisions, conventionally called ’harmonious construction’. In an  elevating and  organic instrument, antagonisms cannot exist. If that be the lodester to help interpret the suprema lex we have to discover a note of unison in Arts. 16(1), (2) and (4)  as well  as Arts.  46 and  335, the background tune being 976 one of  profound effort  first to equalise and then to march together  without   class-creed  distinction.   The   social engineering know-how of our constitution, viz., levelling up the  groups   buried  under   the  debris   by  a   generous consideration and thereafter enforcing strict equality among all-this two-tier  process operating  symbiotically, is  the life of  the law  and the  key to  the  ’equal  opportunity’ mechanism. Equally emphatic is the grave concern shown for a casteless and  classless society-not  in a magic instant but through  a   careful  striving-and   for  the  standards  of performance of  the Administration, noted from Curzon’s days for drowsiness.      Efficiency means,  in terms  of  good  government,  not marks in  examinations only,  but responsible and responsive service to the people. A chaotic genius is a grave danger in public administration.  The inputs  of efficiency  include a sense of  belonging and  of accountability  which springs in the bosom  of the bureaucracy (not pejoratively used) if its composition takes  in also  the weaker  segments of ’We, the people of  India’. No  other understanding can reconcile the claim of  the radical Present and the hangover of the unjust Past.      Now to  the precedential  guidelines. I am alive to the correctly reluctant  attitude of  this Court  to depart from precedent  lest  an  unstable  and  uncertain  situation  be created. Stare  decisis et  non quieta movere. Khanna J. has rightly emphasized  this great need but also quoted Brandeis and Cardozo JJ.:      "As observed  by Brandeis,  ’stare decisis  is always a      desideratum, even in these constitutional cases. But in      them, it is never a command’.      x       x        x        x        x      "As observed by Cardozo):        ...                             ...    But I am ready      to concede  that the  rule of  adherence to  precedent,      though it  ought not  to be  abandoned, ought  to be in      some degree relaxed. I think that when a rule, after it      has been  duly tested  by experience, has been found to      be inconsistent  with the  sense of justice or with the      social welfare,  there should  be  less  hesitation  in      frank avowal  and full  abandonment. We  have had to do      this sometimes in the field of constitutional law’.      Anyway, here  no case  is being  over-ruled because  no case has  said Scheduled  Castes and  Tribes are a caste nor that advancement  of sunken sections of society consistently with administrative  efficiency cannot  be a rational object linked with  outrageous  backwardness  of  a  class  as  the intelligible differentia within an official cadre.      Keshavananda Bharati  has clinched the issue of primacy as between  Part III  and Part  IV of  the Constitution. The unanimous 977

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ruling  there  is  that  the  Court  must  wisely  read  the collective  Directive   Principles  of   Part  IV  into  the individual fundamental  rights of  Part  III,  neither  Part being superior  to the  other! Since  the days of Dorairajan judicial opinion  has hesitatingly  tilted in favour of Part III but  in Keshvananda  Bharati (supra)  the  supplementary theory,  treating   both  Parts   as   fundamental,   gained supremacy. Khanna J spoke with a profound sense of depth (if I may say so with respect) at p. 1878:           "The  Directive  Principles  embody  a  commitment      which was  imposed by  the Constitution  makers on  the      State to  bring about  economic and social regeneration      of the  teeming millions  who are  steeped in  poverty,      ignorance and  social backwardness.  They incorporate a      pledge to  the coming  generations of  what  the  State      would strive to usher in."      *********************************************           "There should  be  no  reluctance  to  abridge  or      regulate the  fundamental rights  to property if it was      felt necessary  to do  so  for  changing  the  economic      structure and  attaining the objective contained in the      Directive Principles."      (at p. 1880) Chandrachud J.  has (again,  I quote with deference) set the judicial singhs straight in this passage (at p. 2050):           "What is  fundamental in  the  governance  of  the      country cannot  surely be less significant than what is      fundamental in  the life of an individual. The freedoms      of a  few have  to be  abridged in  order to ensure the      freedom of  all. If State fails to create conditions in      which the Fundamental freedoms could be enjoyed by all,      the freedom of the few will be at the mercy of the many      and then all freedoms will vanish. In order, therefore,      to preserve their freedom, the privileged few must part      with a portion of it." The upshot,,  after Bharati,  (supra), is that Art. 46 to be given emphatic  expression while interpreting Art. 16(1) and (2). Indeed, Art. 335 is more specific and cannot be brushed aside or  truncated in  the operational ambit vis-a-vis Art. 16(1) and (2) without hubristic aberration.      We may  clear the clog of Art. 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  Arts. 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. The  confuse this  backward-most social composition with 978 castes is  to commit  a constitutional  error, misled  by  a compendious appellation. So that, to protect harijans is not to prejudice  any caste  but to  promote citizen solidarity. Art. 16(2)  is out  of the  way  and  to  extend  protective discrimination to  this mixed  bag of tribes, races, groups, communities  and  non-castes  outside  the  four-fold  Hindu division is  not to  compromise  with  the  acceleration  of castelessness enshrined  in the  sub-Article. The discerning sense of  the Indian  Corpus Juris  has  generally  regarded Scheduled Castes and Scheduled Tribes, not as caste but as a large backward  group deserving  of societal compassion. The following  provisions  of  the  Income  Tax  Act,  1961  are illustrative of this principle:      "13. Section 11 not to apply in certain cases:

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         (1) (b)  Nothing contained in s. 11 or s. 12 shall      operate so  as to  exclude from the total income of the      previous year of the person in receipt thereof      (a) .....      (b)  in the  case of a trust for charitable purposes or           a charitable  institution created  or  established           after the  commencement of  this Act,  any  income           thereof if  the trust or institution is created or           established for  the  benefit  of  any  particular           religious community or caste;           *********************************************           Explanation 2.-A  trust or  institution created or      established  for   the  benefit  of  Scheduled  Castes,      backward  classes,   Scheduled  Tribes   or  women  and      children  shall   not  be  deemed  to  be  a  trust  or      institution created or established for the benefit of a      religious community  or caste  within  the  meaning  of      clause (b) of sub-s. (1)."      The next hurdle in the appellant’s path relates to Art. 16(4). To  my  mind,  this  sub-Article  serves  not  as  an exception  but   as  an  emphatic  statement,  one  mode  of reconciling  the   claims  of   backward  people   and   the opportunity for  free competition  the forward  sections are ordinarily entitled to. In the language of Subba Rao, J. (as he then was), in Devadasan(1):           "The expression  ’nothing in  this article’  is  a      legislative device  to express  its intention in a most      emphatic way that the power conferred thereunder is not      limited in  any way  by the  main provision  but  falls      outside it.  It has not really carved out an exception,      but has  preserved a  power untrammelled  by the  other      provisions of the Article." True, it may be loosely said that Art. 16(4) is an exception but,  closely   examined,   it   is   an   illustration   of constitutionally sanctified classification. 979 Public services  have been a fascination for Indians even in British days, being a symbol of State power and so a special Article has  been devoted  to it.  Art. 16(4)  need not be a saving clause  but put  in due  to the  over-anxiety of  the draftsman to  make matters clear beyond possibility of doubt (see, for instance, 59 I.A. 206).      ’Reservation’ based  on classification  of backward and forward  classes,   without  detriment   to   administrative standards  (as   this  Court  has  underscored)  is  but  an application of  the principle of equality within a class and grouping based  on a  rational differentia, the object being advancement   of    backward   classes   consistently   with efficiency. Arts.  16(1) and  (4) are concordant. This Court has viewed  Art. 16(4)  as an  exception to Art. 16(1). Does classification based  on desparate  backwardness render Art. 16(4) redundant? No. Reservation confers pro tanto monopoly, but classification  grants under  Art.  16(1)  ordinarily  a lesser order  of advantage.  The former  is more rigid,, the latter more  flexible, although  they may overlap sometimes. Art. 16(4)  covers all  backward classes;  but to  earn  the benefit of  grouping under  Art. 16(1)  based on Art. 46 and 335 as I have explained, the twin considerations of terrible backwardness of  the type harijans endure and maintenance of administrative efficiency must be satisfied.      The surviving,  but  substantial,  controversy  centres round the ’equal opportunity’ rule and its transgression, if any, by  r. 13AA.  The learned  Advocate General  fairly and rightly agreed  that the  impugned rule  falls outside  Art. 16(4).  Therefore   he  sought   to  salvage  the  temporary

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exemption   from    passing   tests   by   urging   that   a constitutionally valid  classification was all that had been done  and   cited  Indian  rulings  and  American  juridical writings in support of his stand.      It is platitudinous constitutional law that Arts. 14 to 16 are  a common  code of  guaranteed  equality,  the  first laying down the broad doctrine, the other two applying it to sensitive  areas   historically  important  and  politically polemical in a climate of communalism and jobbery.      We need  not tarry  to consider whether Art. 16 applies to appointments  on promotion.  It does.  Nor need  we worry about administrative  calamities if  test qualifications are not acquired  for time  by some  hands. For one thing, these tests are  not so telling on efficiency as explained earlier by me. And, after all, we are dealing with clerical posts in the Registration  Department where aiert quailldriving and a smattering of special knowledge will make for smoother turn- out of  duties. And  the Government  is only postponing, not foregoing, test qualification. As for the bearing of ’tests’ on basic efficiency, everything depends on the circumstances of a case and the post.      The basic  question thus  is  one  of  social  dynamics implied in  Art. 16(1).  Let us  go to  the fundamentals and ignore the  frills. In a spacious sense, ’equal opportunity’ for members  of a hierarchical society makes sense only if a strategy by which the underprivileged 980 have environmental  facilities  for  developing  their  full human potential. This consummation is accomplished only when the utterly  depressed groups  can claim  a  fair  share  in public life  and  economic  activity,  including  employment under the  State, or  when a classless and casteless society blossoms as  a result  of positive State action. To help the lagging social  segments, by special care, is a step towards and not  against  a  larger  and  stabler  equality.  I  had occasion to observe in J & K State v. T. N. Khosa(1).           "In this  unequal world  the proposition  that all      men are  equal has  working limitations, since absolute      equality leads  to  Procrustean  cruelty  or  sanctions      indolent  inefficiency.   Necessarily,  therefore,   an      imaginative  and  constructive  modus  vivendi  between      commonness and  excellence must  be forged  to make the      equality clauses  viable. This  pragmatism produced the      judicial gloss  of ’classification’  and  differentia’,      with the  by-products  of  equality  among  equals  and      dissimilar things having to be treated differently. The      social meaning  of arts.  14  to  16  is  neither  dull      uniformity nor specious ’talentism’. It is a process of      producing quality  out  of  larger  areas  of  equality      extending better  facilities to the latent capabilities      of the  lowly. It  is not a methodology of substitution      of pervasive  and slovenly  mediocrity for activist and      intelligent-but not  snobbish  and  uncommitted-cadres.      However, if the State uses classification casuistically      for salvaging  status and  elitism,  the  point  of  no      return is  reached for  arts. 14  to 16 and the Court’s      jurisdiction awakens to dadden such manouvres. The soul      of art.  16  is  the  promotion  of  the  common  man’s      capabilities, over-powering  environmental  adversities      and  opening   up  full  opportunities  to  develop  in      official  life  without  succumbing  to  the  sophistic      argument of  the elite  that talent is the privilege of      the few  and they  must  rule,  wriggling  out  of  the      democratic imperative  of arts.  14 and 16 by theory of      classified equality which at its worst degenerates into

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    class domination." This observation  was approved  later by this Court in Mohd. Shujat Ali v. Union of India(2).      Sri Krishnamoorthy  Iyer pressed before us, backed by a catena  of  cases,  that  this  Court  has  frowned  upon  a classification for promotion from within a homogeneous group except  when   it  is  based  on  qualification  for  higher functional efficiency,  and  to  inject  a  new  ground  for grouping within  the class  for promotion was constitutional anathema. I  think not.  The fact  that  better  educational prescriptions for  promotion posts  have been upheld by this Court does not rule out other reasonable differentia, having a nexus  with the  object. The  true test  is, what  is  the object of the classification and is it permissible ? 981 Further,  is  the  differentia  sound  and  substantial  and clearly related  to the  approved object  ? I  agree this is virgin ground, but does not, for that reason alone, violate, equality. My conclusion is that the genius of Arts. 14 to 16 consists  not   in  literal   equality  but  in  progressive elimination  of  pronounced  inequality.  Indeed,  to  treat sharply dissimilar  persons  equally  is  subtle  injustice. Equal opportunity is a hope, not a menace.      If Art. 14 admits of reasonable classification, so does Art. 16(1)  and this Court has held so. In the present case, the economic  advancement and promotion of the claims of the grossly   under-represented   and   pathetically   neglected classes,  otherwise   described  as   Scheduled  Castes  and Scheduled  Tribes,   consistenly  with  the  maintenance  of administrative efficiency,  is the  object, constitutionally sanctioned by  Arts. 46  and 335 and reasonably accommodated in Art.  16(1). The differentia, so loudly obtrusive, is the dismal social  milieu of  harijans.  Certainly  this  has  a rational relation to the object set out above. I must repeat the  note   of  caution   earlier  struck.   Not  all  caste backwardness is  recognised in  this formula.  To do  so  is subversive of  both Art. 16(1) and (2). The social disparity must be  so grim and substantial as to serve as a foundation for benign discrimination. If we search for such a class, we cannot find  any large  segment  other  than  the  Scheduled Castes and  Scheduled  Tribes.  Any  other  caste,  securing exemption from  Art. 16(1)  and (2),  by exerting  political pressure or  other influence,  will run  the  high  risk  of unconstitutional  discrimination.   If  the  real  basis  of classification is  caste masked as backward class, the Court must strike  at such  communal manipulation.  Secondly,  the Constitution recognizes  the claims  of only  harijans (Art. 335) and not of every backward class. The profile of Art. 46 is more  or less  the same.  So, we  may readily  hold  that casteism cannot  come back  by the  backdoor and,  except in exceptionally rare  cases, no  class other than harijans can jump the  gauntlet of  ’equal opportunity’  guarantee. Their only hope  is in Art. 16(4). I agree with my learned brother Fazal Ali  J. in the view that the arithmetical limit of 50% in any  one year  set by some earlier rulings cannot perhaps be pressed  too far.  Overall representation in a department does not depend on recruitment in a particular year, but the total strength  of a cadre. I agree with his construction of Art. 16(4) and his view about the ’carry forward’ rule.      The American jurisprudential response to the problem of repairing  the   handicaps  of   the  coloureds   in  public employment  and   education  is   similar,  although   equal protection of  the laws  to  all  is  assured  by  the  14th Amendment to the U.S. Constitution.      Jurisprudence, to  be living  law, must  respond to the

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bhangi colony  and the  black ghetto intelligently enough to equalise opportunities  within  the  social,  political  and economic  orders,   by  making   up  for   long  spells   of deprivation. Hence, if a court is convinced that the purpose of a measure using a suspect classification is truly benign, that is,  that the  measure represents  an effort to use the classification 982 as part of a programme designed to achieve an equal position in society  for all  tribes and groups and communities, then it may  be justified  in permitting  the State to choose the means for  doing  so,  so  long  as  the  means  chosen  are reasonably related  to achieving  that end.  The distinction would seem  to be  between handicaps imposed accidentally by nature and  those resulting  from societal arrangements such as caste structures and group suppression. Society being, in a broad  sense, responsible  for these latter conditions, it also has  the duty  to regard  them as  relevant differences among men  and to  compensate for them whenever they operate to prevent equal access to basic, minimal advantages enjoyed by other  citizens. In  a sense,  the  theory  broadens  the traditional concept  of ’state action’ to require government attention to those inequalities for which it is not directly responsible, but which nevertheless are concomitant features of the  existence of  the  organized  state.  I  quote  from Harvard  Law   Review-1968-69.  Vol.   82,   excerpts   from ’Developments in the Law-Equal Protection’:           "A state  might, for  example, decide to give some      racial   groups   an   exemption   from   qualification      examinations or  establish  a  racial  credit  on  such      examinations to that often given to veterans"                                (p. 1105-06) (emphasis, mine)           * * * * * * * * * * *           "Where  racial   classifications  are  being  used      ostensibly to remedy deprivations arising from past and      continuing racial discrimination, however a court might      think it  proper  to  judge  the  measures  by  a  less      stringent  standard   of  review,   possibly  even  the      permissive or  rationality standard  normally  used  in      constitutional appraisal of regulatory measures"                                                    (p. 1107)           * * * * * * * * * * * * *           Moreover, even  if racial  classifications do have      some negative  educative effects,  the  classifications      may be  so effective  that they  should  be  instituted      despite this  drawback.  If  the  measures  succeed  in      aiding  blacks   to  obtain  opportunities  within  the      social,  political   and  economic   orders  that  have      formerly been  denied to  them, they  may be  worth the      cost of  emphasizing men’s  differences. It may be that      the  actual   participation  of   blacks  in  positions      alongside whites will ultimately prove to have the most      important  and  longlasting  educative  effect  against      discrimination."                                                    (p. 1113) 983           "Hence, if  a court  is convinced that the purpose      of a  measure using  a racial  classification is  truly      benign, that  is, that the measure represents an effort      to use the classification as part of a program designed      to achieve  as equal position in society for all races,      then it  may be  justified in  permitting the  state to      choose the  means for  doing so,  so long  as the means      chosen are reasonably related to achieving that end."                                                    (p. 1115)

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    Illustrative of  an allied  type  of  State  action  to eliminate  gross  group  inequality  for  attaining  general equality is  a recent  ruling of the U.S. Supreme Court. The good omen  for American  women in Schlessinger v. Ballard(1) is indicative  of high  judicial hunch  in understanding the classificatory clue to promotion of employment equality. The case related  to a  male challenge  of a provision entitling women  officers   in  the  U.S.  Navy  to  longer  years  of commissioned service.  The  Court  remarked,  upholding  the unequal step to promote eventual gender equality, that:           "in enacting  and retaining  of Sec. 6401 Congress      may thus quite rationally have believed that women line      officers had  less opportunity  for promotion  than did      their male  counterparts and  that a  longer period  of      tenure for women officers would therefore be consistent      with the  goal to  provide women officers with fair and      equitable career advancement programs" The key  thought  is  the  broader  test  of  constitutional classification and this reinforces my line of thinking.      It is  a statistically  proved social  reality in India that the  depressed employment  position of  harijans is the master  problem   in  the   battle  against  generations  of retardation, and ’reservation’ and other solutions have made no  significant   impact  on   their  employment  in  public services.  In   such  an   unjust  situation,   to  maintain mechanical equality  is to  perpetuate actual  inequality. A battery of  several  programmes  to  fight  down  this  fell backwardness must  be tried  out by the State. Relaxation of ’tests’ qualification  at the  floor level of clerical posts (lower or  upper division)  is  a  part  of  this  multiform strategy   to    establish   broader,    though    seemingly ’differential’ equality.      If the  Court has  its listening  posts on  raw  Indian earth, its  assessment of  ’equal opportunity’ cannot remain legalistic or  individualistic but  should see  the  age-old inequality to mend which is also the means to real equality, a demanding  command of  our Constitution.  The poignant and ominous words  of Sterling  Tucker, in his book ’For Blacks. Only’(1) will  awaken the  judicial vision  to  the  harijan situation and so I quote:           "If white  Americans had  learned to  see us as we      are, human  beings, like  themselves without individual      burdens of hope, 984      or fear,  they could  have understood  our rage and our      defiance. They  might have wished to accommodate to it,      but they  could have  comprehended it.  They could have      under stood  our need  for pride and grasped what black      power meant  to  us.  But  as  Ralph  Ellison  potently      expressed, they never really saw us:           I am  an invisible man. . I am a man of substance,      of flesh  and bone, fiber and liquids,-and I might even      be said  to possess a mind. I am invisible, understand,      simply be  cause people  refuse to  see me..  When they      approach me they see only my surrounding, themselves or      figments of  their imgaination-indeed,  everything  and      anything except me.           That invisibility  to which I refer occurs because      of a  peculiar disposition  of the  eyes of  those with      whom I come in contact. A matter of the construction of      their inner  eyes, those  eyes  with  which  they  look      through their  physical  eyes  upon  reality  ....  You      wonder whether  you aren’t  simply a  phantom in  other      people’s minds....You  ache with  the need  to convince      yourself that  you do  exist in  the real  world,  that

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    you’re a  part of  all the  sound and  anguish, and you      strike out with your first, you course and you swear to      make them  recognize  you.  And,  alas,  it  is  seldom      successful."      I end  my opinion of concurrence with the learned Chief Justice with the admonition, induced by apprehension and for reasons already  given, that  no  caste,  however  seemingly backward, or  claiming to  be derelict,  can be  allowed  to breach the  dykes of  equality of  opportunity guaranteed to all citizens. To them the answer is that, save in rare cases of ’chill  penury repressing  their noble rage’, equality is equality-nothing less  and nothing  else.  The  heady  upper berth occupants  from ’backward’  classes do  double injury. They  beguile   the  broad  community  into  believing  that backwardness is being banished. They rob the need-based bulk of the  backward of  the ’office’  advantages the nation, by classification, reserves  or  proffers.  The  constitutional dharma,  however,   is  not   an  unending   deification  of ’backwardness’ and showering ’classified’ homage, regardless of advancement registered, but progressive exorcising of the social evil  and gradual  withdrawal of artificial crutches. Here  the  Court  has  to  be  objective  resisting  mawkish politics. But,  by that  standard, as statistically shown to us in this case, harijan have’nots have ’miles to go’ and so long, the Administration has ’promises to keep’.      GUPTA, J.  I agree  with brother  Khanna J.  that  this appeal should  be dismissed,  and for  the reasons  given by him. I  only wish  to add  a few  words on one aspect of the question that arises for decision in this case.      The lower  division clerks  working in the Registration Department of  the State  of Kerala  have to  pass within  a fixed time  certain departmental  tests to  be eligible  for promotion as upper division clerks. For 985 some of  these lower division clerks who happen to belong to Scheduled Castes  or Scheduled  Tribes, the time for passing the tests has been extended by successive orders made by the Government in  exercise of  the power conferred by Rule 13AA of the  Kerala State  and Subordinate  Services Rules, 1958. The High  Court of  Kerala held that Rule 13AA was violative of Article  16(1) and  (2) of the Constitution and set aside the orders made under that Rule. On behalf of the appellant. State  of   Kerala,  and   some  of   the  respondents   and interveners, validity of Rule 13AA is sought to be justified on a  construction of Article 16(1) which, it is claimed, is based on  the provisions  of Articles  46  and  335  of  the Constitution. It  is contended  that Article 16(1) should be read in  the light of the other two Articles. I am not clear as to  what exactly  that  means;  neither  Article  46  and Article 335  mention Article 16(1), nor Article 16(1) refers to either  of them.  All the  three Articles co-exist in the Constitution which  we, the  People of  India, have given to ourselves, and  if it  is correct  to say  that one  of them should be  read in the light of the other two, it is equally right to  suggest that the two of them should be read in the light of  the other. This means that the various parts of an organic  instrument   like  the  Constitution  ought  to  be harmoniously construed,  but that  is not  the same thing as suggesting that  even where  the scope and ambit of one part is clear,  it should  be abridged,  extended or  amended  to prove its  affinity with another part. Each limb of the body has its  own function, and to try to make one of them do the work of  another is  both unnecessary and unwise; this might throw the entire system out of gear.      Article 16(1)  declares a  right which  is one  of  the

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Fundamental  rights   guaranteed  in   Part   III   of   the Constitution,  and   Article  13(1)   invalidates  all  laws inconsistent with such rights. Article 16(1) lays down:           "There shall  be equality  of opportunity  for all      citizens  in   matters  relating   to   employment   or      appointment to any office under the State."      Article 46 is in Part IV of the Constitution containing the ’Directive Principles of State Policy’ Article 46 reads:           "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  injustice and  all forms  of      exploitation." Article 37  states that  the provisions contained in Part IV shall not  be enforceable  by the  courts but the principles embodied in  them are  "fundamental in the governance of the country and it shall be the duty of the State to apply these principles in  making laws".  It is  difficult  to  see  how Article 46  which,  so  far  as  relevant  for  the  present purpose, requires the State to promote with special care the economic interests  of the  weaker sections  of the  people, especially of the Scheduled Castes and Scheduled Tribes, can serve as an aid to the construction of Article 16(1). 986      Article 335  occurs in  Part XVI  of  the  Constitution which contains  some ’Special Provisions Relating to Certain Classes’. Article 335 provides:           "The claims of the members of the Scheduled Castes      and  the   Scheduled  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 or of a State." This Article does not create any right in the members of the Scheduled Castes  and the  Scheduled Tribes which they might claim in  the matter  of appointments to services and posts; one has  to look  elsewhere, Article  16(4) for instance, to find out  the claims conceded to them. Article 335 says that such  claims   shall   be   considered   consistently   with administrative efficiency;  this is  a provision  which does not enlarge  but qualify  such claims  as they  may have  as members of the Scheduled Castes or Scheduled Tribes. Article 335,  it  seems  clear,  cannot  furnish  any  clue  to  the understanding of Article 16(1).      Article 16(1) which ensures equality of opportunity for all  citizens   in  matters   relating  to   employment   or appointment has been described as an instance or incident of the general  guarantee of  equality contained  in Article 14 (see State  of Jammu  & Kashmir  v. T.  N. Khosa  & Ors.(1). Article 14  which guarantees  equality before  the  law  and equal protection  of the  laws, it  has been  held, does not insist on  absolute equality  of treatment to all persons in disregard of  all differences  among them  but provides  for equality among  equals  only.  This  court  observed  in  T. Devadasan v.  The Union  of India(2)  that "while the aim of this Article  is to  ensure that  invidious  distinction  or arbitrary discrimination  shall not  be made  by  the  State between  a  citizen  and  a  citizen  who  answer  the  same description and  the differences  which may  obtain  between them and  of no  relevance for  the purpose  of  applying  a particular law,  reasonable classification  is permissible". Reasonable classification  is thus  permissible,  and  often necessary, to  achieve this equality. Article 16(1) which is an instance  of the  application  of  the  general  rule  of

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equality  with   special  reference   to   opportunity   for appointments under  the State  also does not require "...... absolute  equality  as  such.  What  is  guaranteed  is  the equality of  opportunity and  nothing more. Article 16(1) or (2) does  not prohibit  the prescription of reasonable rules for selection  to  any  employment  or  appointment  to  any office. Any  provision as  to  the  qualifications  for  the employment or the appointment to office reasonably fixed and applicable to  all citizens  would certainly  be  consistent with the  doctrine of  the equality  of opportunity;  but in regard  to  employment,  like  other  terms  and  conditions associated with  and incidental  to it,  the promotion  to a selection post  is also  included in the matters relating to employment, and  even in  regard to  such a  promotion to  a selection post all that Article 16(1) guarantees is equality of opportunity  to all  citizens who  enter service"-General Manager, Southern  Railway v.  Rangachari(3). Article  16(1) thus contemplates classification on the basis of eligibility for an appointment; those who have 987 the qualifications  needed for  the post  form one class; it also implies  that the  same class of employees constitute a separate unit.  In Sham  Sunder v.  Union of India (1), this Court  explained  that  "Article  16(1)  means  equality  as between members  of the same class of employees" and forbids between the  members of this class discrimination and denial of equal opportunity in the matter of promotion.      The  lower   division  clerks   in   the   Registration Department of  the State  of Kerala belong to the same class as employees.  Article 16(1) ensures to all of them equality of opportunity in the matter of promotion. Rule 13AA and the orders made thereunder giving additional opportunity in this regard to  some out  of the same class of employees would be obviously void  unless the fact that the favoured members of the class  belong to  Seheduled Castes  or Scheduled  Tribes made any  difference in  the position,  as contended.  It is argued that Scheduled Castes and Scheduled Tribes constitute a well-recognized  class of  citizens and,  as Article 16(1) permits classification,  employees belonging to these castes and tribes  may be treated as a separate unit for promotion. It is claimed that Article 46 and Article 335 encourage such further classification  within the  same class  which should therefore be  regarded as  valid for  the purpose of Article 16(1). Two assumptions are implicit in this argument: first, that Article  16(1) is subservient to Article 46 and Article 335 and  has no  requirements of its own and, secondly, that these two  Article justify  the discrimination  made by Rule 13AA. I  do not  consider either  of those assumptions to be correct. I  have stated  already that neither Article 46 nor Article 335  is of  any assistance  in interpreting  Article 16(1). Article  16(1) in  clear terms insists on equality of opportunity for  all employees  of the  same class, and this requirement cannot  be dispensed with because of anything in Article 46  or Article  335 which  do not in any way qualify the guarantee  in  Article  16(1).  The  Article  of  course permits classification,  but only  such classification as is reasonable, and the test of reasonableness, having regard to the object  of the  Article, must  be whether  the  proposed classification helps  in achieving  this object.  Judging by this test,  is it possible to hold the sub-division of lower division clerks into two categories, those who belong to the Scheduled Castes  and Scheduled Tribes and those who do not, as reasonable  ? I  do not  think so; such classification is not relevent  to the  object of  the Article and, therefore, not reasonable.

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    Scheduled Castes  and Scheduled  Tribes are  castes and tribes specified by the President under Articles 341 and 342 of the  Constitution to be known as such for the purposes of the Constitution.  It is  accepted that  generally  speaking these castes  and tribes  are backward  in  educational  and economic  fields.   It  is   claimed  that   the  expression "Scheduled Castes"  does not refer to any caste of the Hindu Society but connotes a backward class of citizens. A look at Article 341  however will  show that  the expression means a number of  existing social  castes  listed  in  a  schedule; castes do  not cease  to be  castes being  put in a schedule though backwardness  has come  to be  associated with  them. Article 46  requires  the  State  to  promote  the  economic interests of  the weaker  sections of  the  people  and,  in particular,  of  the  Scheduled  Castes  and  the  Scheduled Tribes. The special reference to 988 the Scheduled  Castes and  the  Scheduled  Tribes  does  not suggest that the State should promote the economic interests of these  castes and  tribes at the expense of other "weaker sections of  the people".  I do not find anything reasonable in  denying   to  some   lower  division   clerks  the  same opportunity for promotion as others have because they do not belong to  a particular caste or tribe. Scheduled Castes and Scheduled Tribes  no doubt  constitute a well-defined class, but a classification valid for one purpose may not be so for another; in  the context of Article 16(1) the sub-class made by Rule  13AA within the same class of employees amounts to, in my  opinion, discrimination  only on  grounds of race and caste which is forbidden by clause (2) of Article 16. In the State of  Rajasthan &  Ors. v.  Thankur Pratap Singh(1) this Court struck  down a  notification under  section 15  of the Police Act  issued by  the State  of Rajasthan exempting the Harijan inhabitants  of certain villages from payment of the cost of additional police force stationed in those villages. It was  held that the notification discriminated against the law-abiding members  of the  other communities  on the basis only of  caste. I  do not  find it  possible to  accept that picking out  employees belonging to the Scheduled Castes and Scheduled Tribes  from the  same  class  of  lower  division clerks to give them additional opportunity to be promoted as upper division  clerks is  a measure  for the  promotion  of economic welfare of these castes and tribes. Some incidental financial gain to certain individuals assuming it results in the welfare of the castes and tribes to which they belong in some remote  and indirect  way, is  not  in  my  view,  what Article 46  contemplates; the other view of Article 46 would justify as  valid  the  exemption  granted  to  the  Harijan villagers of  Thakur Pratap Singh’s case from payment of the cost of additional police force. In any case, Article 16(1), as I  have sought  to explain  earlier, does not permit such classifcation as  made by Rule 13AA. That Rule may have been inspired by  Article 46  which requires  the State  to  take measures to  bridge the educational and economic gap between the weaker  sections of  the people  and other citizens, but Article 46 does not qualify the provisions of Article 16(1). Article  16(1)   speaks  of  equality  of  opportunity,  not opportunity to  achieve equality.  For reasons I have stated already, Article 335 appears to be even less relevant on the question under consideration.      All I  have said  above relates to the scope of Article 16(1) only,  because counsel for the appellant has built his case on  this provision  alone. Clause  (4)  of  Article  16 permits reservation  of appointments  or Posts  in favour of backward classes of citizens notwithstanding  Article 16(1);

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I agree  with the  views expressed  by Khanna  J. On Article 16(4) which  comes in for consideration incidentally in this case.  The  appalling  poverty  and  backwardness  of  large sections of  the people  must move the State machinery to do everything in its power to better their condition but doling out unequal  favours to  members of  the clerical staff does not seem  to be  a step  in that  direction: tilting  at the windmill taking it to be a monster serves no useful purpose. 989      It may  be pertinent in this connection to refer to the observations of  Gajendragadkar J. (as he then was) in M. R. Balaji &  Ors. v.  State of Mysore,(1) which, though made in the context  of Article  15(4), has  relevance for this case also:           "When Art  15(4) refers  to the  special provision      for the  advancement of  certain classes  or  scheduled      castes or scheduled tribes, it must not be ignored that      the provision  which is  authorised to  be  made  is  a      special provision;  it is  not  a  provision  which  is      exclusive in  character, so  that in  looking after the      advancement  of  those  classes,  the  State  would  be      justified in ignoring altogether the advancement of the      rest of the society. It is because the interests of the      society at  large would  be  served  by  promoting  the      advancement of  the weaker elements in the society that      Art. 15(4) authorises special provision to be made. But      if a  provision which  is in the nature of an exception      completely excludes  the  rest  of  the  society,  that      clearly is outside the scope of Art. 15(4). It would be      extremely unreasonable  to assume that in enacting Art.      15(4) the Parliament intended to provide that where the      advancement of  the Backward  Classes or  the Scheduled      Castes and  Tries was concerned, the fundamental rights      of the  citizens constituting  the rest  of the society      were to be completely and absolutely ignored." More recently in the State of Jammu & Kashmir v. T. N. Khosa & Ors. (supra) this Court has sounded a note of caution:           " ...  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 ?" I believe  these words  are not  just so  much rhetoric, but mean to be taken seriously.      I concur with the order proposed by Khanna J.      FAZAL ALI  J. I  agree with the lucid judgment proposed by my  Lord the Chief Justice, but I would like to add a few lines of  my own  highlighting some of the important aspects which arise in this appeal.      The facts  of this  appeal lie  within  a  very  narrow compass. This  appeal by certificate is directed against the judgment of  the Kerala High Court dated April 19, 1974. The judgment has  struck down r. 13-A.A. of the Kerala State and Subordinate Service  Rules,  1958.  The  impugned  rule  was substituted by  Government Order (P) 21/PD dated January 13, 1972.  It   appears  that   the  main  dispute  between  the appellants and  respondent No. 1 centres round the promotion of some Lower Division Clerks to the grade of Upper Division Clerks. 990 The grievance  of respondent No. 1 before the High Court was that some  of the  Lower Division Clerks who were members of scheduled  castes   or  scheduled   tribes  were   shown   a

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preferential treatment in that they had been promoted to the higher grade  of Upper  Division Clerks in spite of the fact that they  had not  cleared the test prescribed for reaching the said  grade.  The  Government  of  Kerala  selected  the respondent  for  hostile  discrimination  as  against  these persons by granting extension after extension to the members belonging to  the scheduled castes or tribes so as to enable them to  pass  the  test.  The  series  of  such  extensions culminated into  the order  creating r.  13-A.A.  which  was wholly discriminatory  and  violative  of  Art.  16  of  the Constitution of  India. The plea of respondent No. 1 appears to have  found favour with the High Court which held that r. 13-A.A. was discriminatory and was clearly violative of Art. 16(1)  of   the  Constitution   and  was   also  beyond  the reservation permitted by clause (4) of Art. 16.      It may  be necessary  here to  mention a  few  admitted facts. In the first place it is not disputed that respondent No. 1 himself passed the test necessary for promotion to the Upper grade  on November 2, 1971. It is, therefore, manifest that whatever  grievance  the  respondent  No.  1  may  have against the  other clerks,  he cannot  put forward his claim for being promoted earlier than November 2, 1971 i.e. before the  time   he  passed  the  test.  In  these  circumstances extensions granted by the Government to the clerks belonging to the  scheduled castes  or tribes  from 1958  to 1972  and thereafter upto  1974 will  affect the respondent No. 1 only after November  2, 1971  and not before that. Secondly it is also not  denied that the Lower Division Clerks belonging to the scheduled  castes and  tribes were undoubtedly senior to the respondent  No. 1  and had  been promoted on the express condition that unless they passed the test prescribed by the Government  they   would  have  to  be  reverted.  This  was obviously done  to advance  and  lift  the  members  of  the scheduled castes  and tribes  who  were  backward  class  of citizens so  that they may be able to compete with the other stronger sections  of the  society. It may also be mentioned here that  the promotees  were not  completely exempted from the test  but they  were given extension of time for passing the test. Thus it is obvious that but for the passing of the test the  respondent No. 1 could not have any other claim to promotion as  Upper Division Clerk. The respondent No. 1 was previously  serving   as  a  Lower  Division  Clerk  in  the Registration  Department  at  Kottayam  but  is  at  present serving in Chitty Auditor’s Office at Kottayam. Lastly it is also admitted that the promotees against whom the respondent No. 1  has a  grievance  were  undoubtedly  members  of  the scheduled castes  or tribes  and such  Lower Division Clerks belonging to  the scheduled  castes or tribes will hereafter be referred as ’the promotees’ for the purpose of brevity.      In the  background of these admitted facts, we have now to see  whether  r.  13-A.A.  violates  Art.  16(1)  of  the Constitution in  any way.  The High Court has struck down r. 13-A.A. on three grounds:           (1)  that it  is beyond  the permissible limits of                clause (4) of Art. 16; 991           (2)  that by  virtue of the carry-forward rule the                Government has  promoted more than 62% of the                clerks belonging  to the scheduled castes and                tribes and have thereby destroyed the concept                of equality; and           (3)  that the  rule is  discriminatory inasmuch as                it makes  an uncalled for distinction between                the  members   of  the   same   service   and                classification  made  by  the  Government  is

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              neither reasonable nor rational.      It may  be mentioned  here that  the High Court has not disputed that the members of the scheduled castes and tribes were not  adequately represented  in the  services under the State of Kerala which is the positive case of the appellants before us.  The High  Court has  traced the  history of  the various orders  passed by the Government of Kerala from 1951 to 1972  granting extensions  for two years, three years and so on,  to the promotees a fact which was not at all germane for the  purpose of  this case-because  the respondent No. 1 who  was  the  petitioner  before  the  High  Court  himself admitted that  he had  passed the  test held  on November 2, 1971.  Thus  the  conduct  of  the  Government  in  granting extensions prior  to November  2, 1971 was wholly irrelevant in  order  to  decide  the  question  of  discrimination  as canvessed by respondent No. 1.      Mr. M.  M. Abdul  Khader, Advocate  General  of  Kerala appearing for the appellants submitted two points before us. In the first place he argued that r. 13-A.A. did not provide for reservation  as contemplated by clause (4) of Art. 16 of the Constitution and the High Court was, therefore, in error in  striking   down  the   rule  because   it  exceeded  the permissible limits of clause (4) of Art. 16. Secondly it was submitted that  the members  of  the  scheduled  castes  and tribes were not only members of one caste but for historical reasons they are a special class by themselves and they have been given  an exalted status under the Constitution itself. There is  thus nothing  in Art. 16(1) of the Constitution to prevent the  State from  making reasonable classification in order to  boost up  the members  of the scheduled castes and tribes  by   giving  concessions   without  imperilling  the efficiency of  the services. The State action in the instant case was,  therefore, justified  by the  Advocate General of Kerala on  the ground  that  it  had  only  implemented  the directive  principles   contained  in   Part   IV   of   the Constitution. Mr.  L. N.  Sinha, Solicitor-General appearing for the  Attorney General  of  India  and  Mr.  R.  K.  Garg appearing for the intervener State of U.P. also more or less supported the stand taken by the Advocate General of Kerala.      Mr.  T.   S.  Krishnamoorthy  Iyer  appearing  for  the respondent No.  1, however,  submitted  that  classification could only  be made  under clause  (4) of  Art. 16.  In  the instant case  even if the provisions contained in r. 13-A.A. be deemed  a reservation within the meaning of clause (4) of Art. 16  they exceed  the permissible limits and destroy the concept of  equality. Secondly  it was  argued that  as  the respondent No.  1 and the promotees were members of the same class of  service they  were equally  circumstanced and  any discrimination made  in favour  of the promotees was clearly hit by Art. 16(1) of the Consti- 992 tution. It  was also faintly suggested by him that there was no reliable  evidence  to  show  that  the  members  of  the scheduled castes  and tribes were not adequately represented in the  services under  the  State  so  as  to  justify  any classification being made in their favour.      In order to understand the arguments put forward by the parties it may be necessary to examine the nature and extent of the  provisions of  Art. 16 of the Constitution of India. Article 16 may be extracted as follows:           "16 .(1)  There shall  be equality  of opportunity      for all  citizens in  matters relating to employment or      appointment to any office under the State.           (2) No citizen shall, on grounds only of religion,      race, caste, sex, descent, place of birth, residence or

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    any  of  them,  be  ineligible  for,  or  discriminated      against in  respect of,  any employment or office under      the State.           (3)  Nothing   in  this   article  shall   prevent      Parliament from  making any  law prescribing, in regard      to a  class or  classes of employment or appointment to      an office  under the  Government of,  or any  local  or      other authority within, a State or Union territory, any      requirement as  to residence within that State or Union      territory prior to such employment or appointment.           (4) Nothing  in this  article  shall  prevent  the      State from  making any provision for the reservation of      appointments or  posts in  favour of any backward class      of citizens  which, in the opinion of the State, is not      adequately represented in the services under the State.           (5) Nothing  in  this  article  shall  affect  the      operation of  any law which provides that the incumbent      of an  office in  connection with  the affairs  of  any      religious or  denominational institution  or any member      of  the  governing  body  thereof  shall  be  a  person      professing a  particular religion  or  belonging  to  a      particular denomination."      It is  no doubt  true  that  Art.  16(1)  provides  for equality of  opportunity for  all citizens  in the  services under the  State. It  is,  however,  well-settled  that  the doctrine contained in Art. 16 is a hard and reeling reality, a concrete  and constructive concept and not a rigid rule or an empty formula. It is also equally well-settled by several authorities of this Court that Art. 16 is merely an incident of Art.  14,  Art.  14  being  the  genus  is  of  universal application whereas  Art. 16  is the  species and  seeks  to obtain equality  of opportunity  in the  services under  the State. The  theory of  reasonable classification is implicit and inherent in the concept of equality for there can hardly be any  country where all the citizens would be equal in all respects. Equality  of opportunity  would naturally  mean  a fair opportunity not only to one section or 993 the other but to all sections by removing the handicaps if a particular section  of the society suffers from the same. It has never  been disputed  in judicial pronouncements by this Court as  also of  the various  High  Courts  that  Art.  14 permits reasonable  classification. But what Art. 14 or Art. 16 forbid  is  hostile  discrimination  and  not  reasonable classification. In  other words,  the idea of classification is implicit  in the  concept of  equality  because  equality means equality  to all  and not  merely to  the advanced and educated sections  of the  society. It  follows,  therefore, that in  order to  provide equality  of opportunity  to  all citizens of our country, every class of citizens must have a sense of  equal participation  in building up an egalitarian society, where  there is  peace and  plently, where there is complete economic  freedom and  there is  no  pestilence  or poverty, no  discrimination and  oppression, where  there is equal opportunity  to education,  to  work,  to  earn  their livelihood so  that the  goal of social justice is achieved. Could we,  while conferring benefits on the stronger and the more advanced  sections of  the  society,  ignore  the  more backward classes  merely because  they cannot  come upto the fixed standards  ? Such  a course, in my opinion, would lead to denial  of opportunity  to the backward classes resulting in  complete   annihilation  of   the  concept  of  equality contained in  Arts. 14  and 16. The only manner in which the objective  of  equality  as  contemplated  by  the  founding fathers of our Constitution and as enshrined in Arts. 14 and

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16 can  be achieved  is to  boost up the backward classes by giving them  concessions, relaxations,  facilities, removing handicaps, and  making suitable  reservations  so  that  the weaker sections  of the  people may  compete with  the  more advanced and in due course of time all may become equals and backwardness is banished for ever. This can happen only when we achieve complete economic and social freedom. In our vast country where  we have  diverse races and classes of people, some of  whom are  drowned  in  the  sea  of  ignorance  and illiteracy, the  concept of  equality assumes very important proportions. There are a number of areas in some States like Kashmir, Sikkim,  hilly areas  of U.P., Bihar and the South, where due  to lack of communication or transport, absence of proper educational  facilities or because of old customs and conventions and  other environmental reasons, the people are both socially  and educationally backward. Could we say that the citizens  hailing from  these areas  should continue  to remain backward  merely because  they fall  short of certain artificial standards  fixed by  various institutions  ?  The answer must  be in  the negative.  The directive  principles enshrined in  our Constitution  contain a  clear mandate  to achieve equality  and social justice. Without going into the vexed question as to whether or not the directive principles contained in Part IV override the fundamental rights in Part III there  appears to  be a  complete unanimity  of judicial opinion of  this Court that the directive principles and the fundamental rights  should be construed in harmony with each other and  every attempt  should be  made by  the  Court  to resolve any apparent inconsistency. The directive principles contained in Part IV constitute the stairs to climb the high edifice of  a socialistic  State and  the fundamental rights are the  means through  which one  can reach  the top of the edifice. I  am fortified  in my view by several decisions of this Court to which I will refer briefly. 994      In Re.  The Kerala  Education Bill,  1957(1) this Court observed at p. 1022:           "Nevertheless, in  determining the scope and ambit      of the  fundamental rights relied on by or on behalf of      any person  or body  the court  may not entirely ignore      these directive principles of State policy laid down in      Art  IV  of  the  Constitution  but  should  adopt  the      principle of harmonious construction and should attempt      to give effect to both as much as possible."      In Mohd.  Hanif Quareshi  &  others  v.  The  State  of Bihar(2) this Court observed as follows:           "The directive  principles cannot  over-ride  this      categorical  restriction  imposed  on  the  legislative      power of  the State. A harmonious interpretation has to      be placed  upon the  Constitution and so interpreted it      means that  the State  should certainly  implement  the      directive principles  but it  must do  so in such a way      that  its   laws  do  not  take  away  or  abridge  the      fundamental rights...."      In I.  C. Golak  Nath &  Others v.  State of  Punjab  & Anr.(3) it was observed by this Court:           "At the  same time Parts III and IV constituted an      integrated scheme  forming a  self-contained code.  The      scheme is  made  so  elastic  that  all  the  Directive      Principles of  State Policy  can reasonably be enforced      without  taking   away  or  abridging  the  fundamental      rights."      In Chandra  Bhavan Boarding  and Lodging,  Bangalore v. The State of Mysore and Anr.(4) this Court observed:           "It  is   a  fallacy   to  think  that  under  our

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    Constitution there are only rights and no duties. While      rights conferred  under Part  III are  fundamental, the      directives given  under Part  IV are fundamental in the      governance of  the country.  We see  no conflict on the      whole between  the provisions contained in Part III and      Part IV.......  The mandate  of the  Constitution is to      build  a  welfare  society  in  which  justice  social,      economic and political shall inform all institutions of      our national life. The hopes and aspirations aroused by      the Constitution will be belied if the minimum needs of      the lowest of our citizens are not met."      Finally the  matter has  been extensively considered by the  Full   Court  in   His  Holiness   Kesavananda  Bharati Sripadagalvaru v. State of Kerala & Anr.(5) where Shelat and Grover, JJ., observed: (p. 427)           "While most  cherished freedoms  and  rights  have      been guaranteed  the Government  has been  laid under a      solemn 995      duty to  give effect  to the Directive Principles. Both      Parts III  and IV which embody them have to be balanced      and harmonised-then alone the dignity of the individual      can be achieved." They further observed: (p. 459)           "Our Constitution-makers  did not  contemplate any      disharmony  between  the  fundamental  rights  and  the      directive principles. They were meant to supplement one      another.  It  can  well  be  said  that  the  directive      principles prescribed  the goal  to be attained and the      fundamental rights  laid down  the means  by which that      goal was to be achieved." Hegde and Mukherjea, JJ., observed : (p. 503).           "Our founding fathers were satisfied that there is      no antithesis  between the  Fundamental Rights  and the      Directive Principles.  One supplements  the other.  The      Directives lay down the end to be achieved and Part III      prescribes the  means through  which the  goal is to be      reached." Ray, J., as he then was and now C.J., observed : (p. 580)           "But   the    Directive   Principles    are   also      fundamental, They  can be  effective  if  they  are  to      prevail over  fundamental rights  of a  few in order to      subserve the  common good  and not  to  allow  economic      system to  result to  the common  detriment. It  is the      duty of the State to promote common good." He further observed : (p. 589)           "Parts III  and IV  of the Constitution touch each      other and  modify. They are not parallel to each other.      Different legislation  will bring  in different  social      Principles.  These  will  not  be  permissible  without      social content operating in a flexible manner." Jaganmohan Reddy, J., observed : (p. 640)           "There can  be no  doubt that  the object  of  the      Fundamental Rights  is to ensure the ideal of political      democracy and  prevent authoritarian  rule,  while  the      object of  the Directive  Principles of State Policy is      to establish  a welfare  State where  there is economic      and social  freedom without  which political  democracy      has no meaning. What is implicit in the Constitution is      that there  is a  duty on  the Courts  to interpret the      Constitution and  the laws  to  further  the  Directive      Principles which  under article  37, are fundamental in      the governance of the country." Palekar, J., observed : (p. 711)           "The Preamble read as a whole, therefore, does not

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    contain   the   implication   that   in   any   genuine      implementation   of   the   Directive   Principles,   a      fundamental right will not suffer any diminution." 996 Mathew, J., observed : (p. 878)           "I can see no incongruity in holding, when article      37 says in its latter part "it shall be the duty of the      State to  apply these  principles in making laws", that      judicial  process   is  ‘State   action  and  that  the      judiciary is bound to apply the Directive Principles in      making its judgment." Beg, J., observed : (p. 902)           "Perhaps,  the   best  way   of   describing   the      relationship  between   the   fundamental   rights   of      individual  citizens,   which   imposed   corresponding      obligations  upon   the   State   and   the   Directive      Principles,  would   be  to  look  upon  the  Directive      Principles as  laying down  the path  of the  country’s      progress towards  the allied objectives and aims stated      in the  Preamble, with fundamental rights as the limits      of that path, ............." Chandrachud, J., observed : (p. 962)           "Our decision  of this  vexed question must depend      upon the  postulate of  our Constitution  which aims at      bringing about a synthesis between ‘Fundamental Rights’      and the  ‘Directive Principles  of  State  Policy’,  by      giving to the former a pride of place and to the latter      a place of permanence. Together, not individually, they      form  the  core  of  the  Constitution.  Together,  not      individually, they constitute its true conscience."      In view  of the  principles adumbrated by this Court it is clear  that the directive principles form the fundamental feature and  the social  conscience of  the Constitution and the Constitution  enjoins upon  the State to implement these directive  principles.   The  directives  thus  provide  the policy, the guidelines and the end of socio-economic freedom and Arts. 14 and 16 are the means to implement the policy to achieve the  ends sought  to be  promoted by  the  directive principles. So  far as  the Courts are concerned where there is  no   apparent  inconsistency   between   the   directive principles contained  in Part  IV and the fundamental rights mentioned in  Part III, which in fact supplement each other, there is  no difficulty in putting a harmonious construction which advances  the object  of the  Constitution. Once  this basic fact  is kept  in mind, the interpretation of Arts. 14 and 16 and their scope and ambit become as clear as day.      In the  instant case  one of  the main  planks  of  the argument put  forward by  Mr. M.  M. Abdul Khader, Advocate- General, Kerala, was that so far as the scheduled castes and the scheduled  tribes were  concerned they had been given an exalted and  privileged status under the Constitution and in the directive  principles contained in Part IV which contain a mandate  to the  State to  consider their  claims.  It  is necessary to  consider this aspect of the matter in a little detail, because  the main  argument of  Mr. Abdul Khader has been that  the scheduled  castes and  tribes did not fall at all within  the mischief  of clause  (2) of  Art.  16  which prohibits discrimination  on the  ground of  caste etc.  The scheduled caste  is not  caste as mentioned in Art. 16(2). I am inclined  to agree  with the  argument  advanced  by  the Advocate General that the word 997 ‘caste’ appearing after ‘scheduled’ is really a misnomer and has been  used only  for the  purpose  of  identifying  this particular class  of citizens which has a special history of

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several hundred  years behind  it. The  scheduled castes and scheduled tribes  have been  a special class of citizens who have been  so included  and described that they have come to be identified  as the most backward classes of citizens that we have  in our  country. Article 366 clauses (24) & (25) of the Constitution read thus :      366 "(24) "Scheduled Castes"  means such  castes, races                ortribes or  parts of  or groups  within such                castes, races  or tribes  as are deemed under                article 341  to be  Scheduled Castes  for the                purposes of this Constitution;           (25) "Scheduled  Tribes"   means  such  tribes  or                tribal communities  or  parts  of  or  groups                within such  tribes or  tribal communities as                are deemed  under article 342 to be Scheduled                Tribes   for    the    purposes    of    this                Constitution;" These  constitutional   provisions,  therefore,   create   a presumption in  favour of  scheduled  castes  and  scheduled tribes that they are backward classes of citizens. It is not disputed that  the  members  of  the  scheduled  castes  and scheduled tribes  are specified  in the notifications issued under Arts.  341 and 342 of the Constitution and, therefore, they must  be deemed  to be  scheduled castes  and scheduled tribes for the purposes of the Constitution.      Article 46 of the Constitution runs thus :           "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  injustice and  all forms  of      exploitation." Properly analysed  this article  contains a  mandate on  the State to  take special care for the educational and economic interests of  the weaker  sections  of  the  people  and  as illustrations of  the  persons  who  constitute  the  weaker sections the  provision  expressly  mentions  the  scheduled castes and the scheduled tribes.      A combined  reading of  Art. 46 and clauses (24) & (25) of Art.  366 clearly shows that the members of the scheduled castes and  the scheduled  tribes must  be  presumed  to  be backward  classes   of  citizens,   particularly  when   the Constitution gives  the example  of the scheduled castes and the scheduled  tribes as  being the  weaker sections  of the society.      Similarly Art.  335 which  expressly provides  that the claims of  the members  of  the  scheduled  castes  and  the scheduled tribes shall be taken into consideration runs thus :           "The claims of the members of the Scheduled Castes      and  the   Scheduled  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 or of a State." 998      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. That being the position it follows that they do  not fall  within the  purview of  Art. 16(2) of the Constitution  which  prohibits  discrimination  between  the members of the same caste. If, therefore, the members of the scheduled castes  and the  scheduled tribes  are not castes, then  it   is  open   to  the   State  to   make  reasonable

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classification in  order to advance or lift these classes so that they  may be  able to  be properly  represented in  the services under the State. This can undoubtedly be done under Art. 16(1) of the Constitution.      Before, however, examining the nature of classification that can  be made  by the Government under Art. 16(1) of the Constitution it  may be  necessary to state three principles which are supported by abundant authority :      (1) That  Art. 16  is merely an incident of Art. 14 and both these articles form a part of the common system seeking to achieve  the same  end. I  am fortified  in  my  view  by several decisions of this Court. In State of Jammu & Kashmir v. Triloki  Nath Khosa  & Ors.(1)  this Court observed : (p. 783)           "Article 16  of the  Constitution which ensures to      all  citizens   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."      In Mohammad Shujat Ali and others v. Union of India and others(2) this Court observed:           "Article  14  ensures  to  every  person  equality      before law and equal protection of the laws and Article      16  lays   down  that   there  shall   be  equality  of      opportunity for  all citizens  in matters  relating  to      employment or  appointment  to  any  office  under  the      State. Article  16 is  only an  instance or incident of      the guarantee  of equality  enshrined in Article 14; it      gives effect  to the doctrine of equality in the sphere      of public  employment. The concept of equal opportunity      to be  found in Article 16 permeates the whole spectrum      of an  individual’s employment from appointment through      promotion and  termination to  the payment  of gratuity      and pension  and  gives  expression  to  the  ideal  of      equality of  opportunity which  is  one  of  the  great      socio-economic objectives  set out  in the  Preamble of      the Constitution."      In  Govind   Dattatray  Kelkar   and  others  v.  Chief Controller of  Imports &  Exports and  others,(3) this Court observed : 999           "Art. 16  of the  Constitution is only an incident      of the application of the concept of equality enshrined      in Art.  14 thereof. It gives effect to the doctrine of      equality in the matter of appointment and promotion. It      follows that  there can  be a reasonable classification      of the  employees for  the purpose  of  appointment  or      promotion." The  same   view  was   expressed  by  this  Court  in  S.G. Jaisinghani v. Union of India and Others.      In The  General Manager, Southern Railway v. Rangachari this Court observed :           "In this connection it may be relevant to remember      that Art.  16(1) and  (2) really  give  effect  to  the      equality before  law guaranteed  by Art.  14 and to the      prohibition of  discrimination guaranteed  by  Art.  15      (1).  The  three  provisions  form  part  of  the  same      constitutional code  of guarantees  and supplement each      other. If  that be  so, there would be no difficulty in      holding that  the matters  relating to  employment must      include all  matters in  relation  to  employment  both      prior, and  subsequent, to  the  employment  which  are

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    incidental to the employment and form part of the terms      and conditions of such employment."      (2) It is also well-settled that Art. 16 applies to all classes of  appointment including  promotions and  selection posts. It has been observed by this Court in C. A. Rajendran v. Union of India and Ors.(3) :           "The first  question to be considered in this case      is whether there is a constitutional duty or obligation      imposed upon  the Union Government to make reservations      for Scheduled Castes and Scheduled Tribes either at the      initial stage  of  recruitment  and  at  the  stage  of      promotion in  the  Railway  Board  Secretariat  Service      Scheme.           The relevant  law on  the subject is well-settled.      Under Art.  16  of  the  Constitution  there  shall  be      equality of  opportunity for  all citizens  in  matters      relating to  employment or  appointment to  any  office      under the  State or  to promotion  from one office to a      higher office  thereunder. Articles  14, 15 and 16 form      part of  the same constitutional code of guarantees and      supplement each  other. In  other words, Art. 16 of the      Constitution is  only an incident of the application of      the concept  of equality  enshrined in Art. 14 thereof.      It gives  effect to  the doctrine  of equality  in  the      matter  of   appointment  and   promotion.  It  follows      therefore that there can be a reasonable classification      of the  employees for  the purpose  of appointment  and      promotion." 1000      In State  of Jammu  & Kashmir v. Triloki Nath Khosa and others (supra) it was observed by this Court :           "Since the  constitutional code  of  equality  and      equal opportunity  is a charter for equals, equality of      opportunity in  matters of  promotion  means  an  equal      promotional   opportunity   for   persons   who   fall,      substantively, within  the same class. A classification      of  employees   can  therefore   be  made   for   first      identifying and  then  distinguishing  members  of  one      class from those of another." The same  view has  been expressed  by this  Court  in  C.A. Rajendran’s case;  in S. G. Jaisinghani’s case; Rangachari’s case and Mohammad Shujat Ali’s case, quoted supra.      The  concept   of  equality  or  equal  opportunity  as contained in  Art. 16  does not  mean that same laws must be applicable to  all persons  under every circumstance. Indeed if this  artificial interpretation  is put  on the scope and ambit  of   Art.  16  it  will  lead  to  channelisation  of legislation  or   polarisation  of  rules.  Differences  and disparities exist  among men  and things  and they cannot be treated alike  by the  application of  the same laws but the law has  to come  to terms  with life  and must  be able  to recognise the genuine differences and disparities that exist in human  nature. Legislature  has also to enact legislation to meet  specific ends  by making  a reasonable and rational classification. In Morey v. Doud(1) it was so aptly observed :           "To recognise  marked differences  that  exist  in      fact is  living law; to disregard practical differences      and concentrate on some abstract identities is lifeless      logic."      Coming now  to Art.  16 it  may be  analysed into three separate categories  so far as the facts of the present case are concerned :           Category I-Clause (1) of Art. 16.           Category II-Clause (2) of Art. 16.

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         Category III-Clause (4) of Art. 16.      Clause (1)  of Art. 16 clearly provides for equality of opportunity to all citizens in the services under the State. It is important to note that the Constitution uses the words "equality of  opportunity for all citizens". This inherently implies that  the opportunity  must be  given not  only to a particular section  of the  society or a particular class of citizens who  may be  advanced or otherwise more afflunt but to all classes of citizens. This, therefore, can be achieved by making a reasonable classification so that every class of citizens is  duly represented  in the  services  which  will enable equality  all citizens.  The classification, however, must be  a reasonable  one and  must  fulfil  the  following conditions:           (i)  it must have a rational basis;           (ii) it  must have  a close  nexus with the object                sought to be achieved; 1001           (iii)it should  not select  any person for hostile                discrimination at the cost of others. Now let  us see  whether r. 13-A.A. can be justifiable under clause (1) of Art. 16. Rule 13-A.A. of the Rules reads thus:           "Notwithstanding  anything   contained  in   these      rules, the  Government may,  by  order,  exempt  for  a      specified period, any member or members, belonging to a      Scheduled Caste  or a  Scheduled Tribe,  and already in      service, from  passing the tests referred to in rule 13      or rule 13A of the said Rules." What the  rule does is merely to authorise the Government to exempt for  a specified  period any member or members of the scheduled castes  and scheduled tribes from pasing the tests referred to in r. 13 and r. 13A. It may be noticed that this rule does  not at  all give  a  complete  licence.  A  Lower Division Clerk  who is  a member  of the  scheduled caste or schedule tribe  could not  be promoted  without passing  any test at  all so  as to  destroy the  concept of equality. It merely gives  a special concession or a temporary relaxation to backward class of citizens in order to lift them, advance them and  enable them  to compete with the stronger sections of the  society. Thus  the basis  of the rule is undoubtedly both rational and reasonable.      Article 335  of the  Constitution contains a mandate to the State  for considering  the claims of the members of the scheduled castes  and the scheduled tribes consistently with the maintenance  of efficiency  of administration. By giving the special  concessions to  the promotees  this mandate  is sought to  be obeyed  by the  Government. Mr.  T. S. Krishna moorthy Iyer counsel for the respondent No. 1 submitted that the mandate  given  in  Art.  335  is  violated  because  by granting exemption  to the  members of  the scheduled castes and tribes  the standard of efficiency of the services would be impaired.  We are,  however, unable  to  agree  with  the argument. Both  the respondent  No 1  and the promotees were members of  the same  service and  had been working as Lower Division Clerks  for a  pretty long  time. The promotees who were  members   of  the  scheduled  castes  and  tribes  are admittedly senior  to respondent  No. 1 and have gained more experience.  Further   the  rule  does  not  grant  complete exemption to  the promotees  from passing  the test; it only provides for  grant of  extension of  time to enable them to clear the  test. In  these circumstances  it cannot  be held that the  State’s action  in incorporating r. 13-A.A. in any way violates  the mandate  contained in  Art. 335.  In these circumstances, therefore,  I am  clearly satisfied  that the concession given  in r.  13-A.A.  amounts  to  a  reasonable

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classification which  can be  made under  Art. 16(1)  of the Constitution and  does not  amount to  the selection  of the respondent No.  1 for  hostile discrimination  so as  to  be violative of Art. 16(1) of the Constitution of India.      Category II  refers to  clause (2) of Art. 16 which may be reproduced as follows:           "No citizen  shall, on  grounds only  of religion,      race, caste, sex, descent, place of birth, residence or      any  of  them,  be  ineligible  for,  or  discriminated      against in  respect of,  any employment or office under      the State." 1002 In view  of my  findings and  the various  provisions of the Constitution regarding  the status  of the  members  of  the scheduled castes  and the  scheduled tribes,  it is  obvious that the  members of  the scheduled castes and the scheduled tribes are  not a  ’caste’ but  a special  class of backward citizens whose  backwardness cannot  be  doubted.  In  these circumstances, therefore,  if the promotees do not belong to a caste  as contemplated by Art. 16(2) then they do not fall within the  mischief of  Art. 16(2) at all. Thus the case of the promotees squarely falls within the four corners of Art. 16(1)  and   can  be   justified  as   based  on  reasonable classification.      Before  leaving   categories  I  and  II  it  might  be mentioned that the Court has to apply strict scrutiny to the classification made  by the  Government and to find out that it does  not destroy or fructify the concept of equality. In other  words,  the  State  cannot  be  permitted  to  invoke favourtism or  nepotism under  the cloak of equality. Having considered the  matter in all its comprehensive aspects I am satisfied that  in this  particular case  the classification made by  the Government  by virtue  of r.  13-A.A. is  fully justified by Art. 16 of the Constitution.      This brings  us to  the consideration  of Category  III which is  clause (4) of Art. 16. Clause (4) may be extracted as under:           Nothing in  this article  shall prevent  the State      from  making  any  provision  for  the  reservation  of      appointments or  posts in  favour of any backward class      of citizens  which, in the opinion of the State, is not      adequately  represented   in  the  services  under  the      State." Clause (4)  of Art. 16 of the Constitution cannot be read in isolation but  has to  be read  as part  and parcel  of Art. 16(1) &  (2). Suppose there are a number of backward classes who form a sizeable section of the population of the country but are  not  properly  or  adequately  represented  in  the services under  the State  the question  that arises is what can be  done to  enable them to join the services and have a sense of  equal participation.  One  course  is  to  make  a reasonable classification  under Art. 16(1) in the manner to which I  have already  adverted in  great detail.  The other method  to   achieve  the   end  may  be  to  make  suitable reservations for  the backward classes in such a way so that the inadequate representation of the backward classes in the services is made adequate. This form of classification which is referred  to as  reservation, is,  in my opinion, clearly covered  by   Art.  16(4)  of  the  Constitution,  which  is completely exhaustive  on this  point. That is to say clause (4) of  Art. 16  is not an exception to Art. 14 in the sense that whatever  classification can  be made  can be done only through clause  (4) of  Art. 16.  Clause  (4)  of  Art.  16, however, is  an explanation  containing  an  exhaustive  and exclusive provision  regarding reservation  which is  one of

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the forms  of classification.  Thus clause  (4) of  Art.  16 deals exclusively  with reservation  and not  other forms of classification which  can be  made under  Art. 16(1) itself. Since  clause   (1)  is   a  special   provision   regarding reservation, it  can safely  be held  that it overrides Art. 16(1) to  that extent  and no  reservation can be made under Art 16(1).  It is  true that  there are  some authorities of this 1003 Court that clause (4) is an exception to Art. 16(1) but with due respect I am not in a position to subscribe to this view for the reasons that I shall give hereafter.      In the  first  place  if  we  read  Art.  16(4)  as  an exception to  Art. 16  (1) then  the inescapable  conclusion would be  that Art. 16(1) does not permit any classification at all  because an  express provision has been made for this in clause  (4). This  is, however,  contrary  to  the  basic concept of  equality contained  in Art.  14 which implicitly permits  classification   in  any   form  provided   certain conditions are  fulfilled. Furthermore, if no classification can be made under Art. 16(1) except reservation contained in clause (4)  then the  mandate contained in Art. 335 would be defeated.      I have already observed that the fundamental guarantees provided by the Constitution have to be read in harmony with the directive principles contained in Part IV. Again if Art. 16(4) is  deemed to be the only mode of classification, then it would  follow that the Constitution permits only one form of classification,  namely, reservation and no other form so far as  the services  are concerned.  This will  render  the concept of  equality nugatory  and defeat  the very  purpose which is  sought to  be achieved  by Art. 16(1). Equality of opportunity to  all citizens  does not mean equality to some and inequality to others. As I have already pointed out that in our  country there are a large number of backward classes of citizens  who have  to be granted certain concessions and facilities in  order to be able to compete with others. Does it mean that such citizens should be denied these facilities which may  not fall  under the  term ’reservation’  ? Let us take a  few instances.  A  notification  provides  that  all candidates  for  a  particular  post  must  apply  before  a specified date.  A person  belonging to  a backward class of citizens living in a very remote area gets information late. The Government,  however, in  case of  such a backward class candidate makes a relaxation and extends the date. Can it be said that  this has  resulted in  violation  of  Art.  16(1) because it does not fall within the reservation contemplated by clause  (4) of Art. 16 ? It is obvious that the intention of the  Government is  merely to  help the backward class of citizens to apply for the job along with others by condoning the delay for special reasons. Another instance may be where the State  makes a  relaxation regarding  the age in case of backward classes  of citizens in view of the far-fetched and distant area to which that class of citizens belongs. Lastly let us  take the  instance of  the present  case. The clerks belonging to  the scheduled  castes and  tribes were given a further extension  of time to pass the test because of their backwardness. They  were not exempted from passing the test. This could  only be  done under  Art. 16(1)  and  not  under clause (4) of Art. 16.      For these reasons, therefore, I respectfully agree with the observations  of Subba  Rao, J.,  as he  then was  in T. Devadasan  v.  The  Union  of  India  and  Anr(1)  where  he observed:           "That  is  why  the  makers  of  the  Constitution

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    introduced cl.  (4) in Art. 16. The expression "nothing      in this article" is a legislative device to express its      intention in a most 1004      emphatic way that the power conferred thereunder is not      limited in  any way  by the  main provision  but  falls      outside it.  It has not really carved out an exception,      but has  preserved a  power untrammelled  by the  other      provisions of the Article." My view  that Art.  16(4) is not a proviso to Art. 16(1) but that this  clause covers the whole field of Art. 16 is amply supported by  the decision  of this  Court  in  The  General Manager, Southern Railway v. Rangachari (supra) where it was observed: (p. 599)      "It is common ground that Art. 16(4) does not cover the      entire field covered by Art. 16(1) and (2). Some of the      matters relating  to employment  in  respect  of  which      equality of  opportunity has  been guaranteed  by  Art.      16(1) and  (2) do  not fall within the mischief of non-      obstant clause in Art. 16 (4)."      Now analysing  clause (4) of Art. 16 it appears that it contains express  provisions empowering  the State  to  make reservations  in   suitable  cases  provided  the  following conditions are satisfied:           (i)  that the  class for which reservation is made                is  must   be  socially   and   educationally                backward.      I might  mention that  so far  as the  members  of  the scheduled castes  and tribes  are concerned,  in view of the constitutional provisions  referred to above, this fact will have to  be presumed and it was also so held in Rangachari’s case supra.           (ii) That the  class for which reservation is made                is not adequately represented in the services                under the State.      So far  as this  is concerned  it was  suggested by Mr. Krishnamoorthy Iyer  appearing for  respondent  No.  1  that there is  no  material  on  the  record  to  show  that  the promotees were  not adequately  represented in  the services under the  State and  the  Government  had  not  issued  any notification declaring  this fact. It, however, appears that this point  was not  canvassed before the High Court at all. Nevertheless  the   appellants  have   produced  before   us sufficient  materials  to  show  that  the  members  of  the scheduled  castes   and  the   scheduled  tribes   were  not adequately and  properly represented  in the  services under the State  and particularly  in the  Registration Department with which  we are  dealing in this appeal. It is clear from Annexure ’A’  of the  Appeal Paper  Book that  there were as many as  2254 non-gazetted  employees  in  the  Registration Department out  of which members of the scheduled castes and tribes are only 198. It has also been stated in the counter- affidavit before  the High  Court that  the members  of  the scheduled castes  and tribes  form about  8 per cent. of the population of  the State of Kerala. This, therefore, clearly shows that  the promotees  were inadequately  represented in the services under the State and, therefore, they fulfil the second condition required by clause (4) of Art. 16. 1005           (iii)The reservation  should not  be too excessive                so  as   to  destroy   the  very  concept  of                equality.      This means  that the  reservation should  be within the permissible limits and should not be a cloak to fill all the posts belonging  to a  particular class of citizens and thus

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violate Art.  16(1) of  the Constitution  indirectly. At the same time  clause (4)  of Art.  16 does not fix any limit on the power  of the  Government  to  make  reservation.  Since clause (4)  is a  part of  Art. 16 of the Constitution it is manifest that  the State  cannot be  allowed to  indulge  in excessive reservation  so as  to defeat the policy contained in Art.  16(1). As  to what  would be a suitable reservation within permissible  limits will  depend upon  the facts  and circumstances of  each case and no hard and fast rule can be laid down,  nor can this matter be reduced to a mathematical formula so  as to  be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation  should   not  exceed   50%.  As   I  read   the authorities, this  is, however,  a rule  of caution and does not exhaust all categories. Suppose for instance a State has a  large  number  of  backward  classes  of  citizens  which constitute 80%  of the  population and  the  Government,  in order to  give them  proper representation,  reserves 80% of the jobs  for them,  can it  be said  that the percentage of reservation is  bad and  violates the  permissible limits of clause (4)  of Art.  16 ?  The answer must necessarily be in the negative.  The dominant  object of  this provision is to take steps to make inadequate representation adequate.      This brings  us to  the validity  of the  carry-forward rule which  also has  been touched by the High Court. It has been held  by the High Court that as a result of the special rule adopted  by the  State 34 out of 51 vacancies have been filled up by the members of the scheduled castes and tribes, thus far exceeding the 50 per cent limit which has been laid down by  this Court.  It is true that in T. Devadasan’s case (supra) the  majority judgment of this Court did strike down a rule  which permitted carry-forward of the vacancies. With respect, however,  I am  not able  to agree  with this  view because such  a rule  some times defeats the ends of Art. 16 itself. By  the carry-forward  rule what is meant is that if suppose there  are 50  vacancies  in  a  year,  25  of  such vacancies are set apart for backawrd classes of citizens and if out  of these  25 only  10 such candidates are available, then the remaining 15 vacancies instead of being kept vacant which may  result in  inefficiency and stagnation are filled up from  other classes  but the  deficiency is  sought to be made up  in the next year or in the year next to that. I can see no objection to this course being adopted which is fully in consonance  with the spirit of clause (4) of Art. 16. The main idea is to give adequate representation to the backward classes of  citizens if  they are not adequately represented in the  services. What difference does it make if instead of keeping the reserved vacancies vacant from year to year as a result of which work of the Government would suffer they are allowed to  be filled  up by other candidates and the number of vacancies  so filled  up are  kept reserved  for the next year to accommo- 1006 date candidates  from backward  classes. This  does not  and cannot destroy  the  concept  of  equality,  nor  result  in hostile discrimination  to one or the other. There can be no doubt that  reservation to  the extent of 50% is permissible and if  the candidates to that extent are not available, and those vacancies  could not  be filled up by other candidates then such  candidates would  not get any appointment at all. It is  only by  chance that  some of  the candidates  of the backward  classes   not  being   available  that  the  other candidates are  appointed. In fact if the carry-forward rule is not  allowed to be adopted it may result in inequality to the backward  classes of citizens who will not be able to be

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absorbed in  public employment  in accordance  with the full quota reserved for them by the Government. Thus if the carry forward rule  is  not  upheld,  then  backwardness  will  be perpetrated and  it would result ultimately in a vacuum. For these reasons,  therefore, I am of the opinion that the High Court was  in error  in holding  that the  State’s action in filling 34  vacancies out  of 51 by members of the scheduled castes and tribes was illegal and could not be justified.           (iv) Reservation should not be made at the cost of                efficiency.      This is  a very important condition for the application of clause  (4) of Art. 16. No reservation can be made at the cost of efficiency which is the prime consideration. But one should  not   take  an  artificial  view  of  efficiency.  A concession or  relaxation in  favour of  a backward class of citizens particularly  when they  are senior  in  experience would not  amount to  any impairment  of efficiency.  It is, however, not  necessary for  me to  dilate  on  this  aspect because in my view the relaxation contained in r. 13-A.A. of the rules  does not  fall within  clause (4)  of Art. 16 but falls squarely  within clause (1) of Art. 16 as shown above, and, therefore,  I am of the opinion that the High Court was in error  in holding that r. 13-A.A. was ultra vires and was violative of  Art. 16  as it  thought that  this  rule  came within the mischief of clause (4) of Art. 16.      Before closing  this judgment  I would  like to allay a serious apprehension  that has  been  expressed  by  learned counsel for  respondent No. 1 that if the Court is to give a wide and  liberal interpretation to Art. 14 and Art. 16, the guarantees  of   fundamental  right  to  equality  might  be completely eroded  in due  course of  time. I  have given my anxious consideration  to this  argument and I am clearly of the opinion  that the  apprehension expressed by the learned counsel does  not appear  to be well founded. This Court has upheld in  several cases  classifications  graver  and  more damaging than  the one  made in  the  present  case  without affecting the  concept of  equality. For instance in Triloki Nath Khosa’s case (supra) this Court upheld a classification made by  the State  between the members of the same service, recruited from the same source and holding the same posts on the ground that one set of members having possessed a higher qualification,  namely,   a  degree  in  engineering,  could constitute a separate class and could be differently treated from the  other members  of the same service who were merely diploma holders. What had happened in that case was that the service of  Engineers was  one integrated service consisting of 1007 Assistant Engineers  who were  merely  diploma  holders  and those who  were degree  holders. The  Government  passed  an order by  which the  degree holders  could  be  promoted  to higher grade  of service,  namely, to the posts of Executive Engineer  or  Superintending  Engineer,  which  was  however blocked to those Assistant Engineers who were merely diploma holders. This  rule was  struck down  by the  High Court  of Jammu &  Kashmir but  the Supreme  Court on appeal held that qualification was  a reasonable ground of classification and by virtue  of the  qualification the Assistant Engineers who were degree holders could be shown a preferential treatment. The position does not appear to be worse in this case and on a parity of reasoning the Government has merely extended the time prescribed  for departmental tests for the promotees by treating them  as a  special class  for two reasons-(1) that they were senior to and more experienced than the respondent No. 1; and (2), that they belonged to backward classes being

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members  of   the  scheduled   castes  and  tribes  and  for historical reasons  they did not have sufficient opportunity to develop  their genius and intellectual capacity as others could do.  I, therefore,  see no  reason to  hold that  this classification was in any way unreasonable or arbitrary. The conditions under  which classification  has to  be made,  as pointed out  by me,  are so  strict and  stringent that  the apprehension of  erosion of  the concept of equality appears to be  illusory. We  must remember that the Courts are meant to interpret  and not  make the  law. As Justice Frankfurter observed.           "A Judge  must not  re-write a statute, neither to      enlarge nor to contract it."      Finally there  can be no doubt that if the State action in a  particular case amounts to an arbitrary classification or a hostile discrimination which is violative of Art. 16 of the Constitution  the Court  is there  to act as sentinel on the qui vive in order to strike down such an action.      For the  reasons  given  above,  I  have  come  to  the conclusion that  r. 13-A.A. of the rules is a valid piece of statutory provision  which is  fully  justified  under  Art. 16(1) of  the Constitution of India and does not fall within the purview of Art. 16(4).      I would,  therefore, allow  the appeal,  set aside  the judgment of the High Court and direct the status quo ante to be restored.  In the circumstances of this case, I leave the parties to bear their respective costs.                            ORDER Order by Majority-      The validity  of Rule  13AA of  the  Kerala  State  and Subordinate Services Rules, 1958 and two orders, Exhibits P- 2 and  P-6 is  upheld. The judgment of the High Court is set aside and  the appeal  is allowed. Parties will pay and bear their own costs. P.B.R. 1008