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PETITIONER: THE GENERAL MANAGER, SOUTHERN RAILWAY

       Vs.

RESPONDENT: RANGACHARI

DATE OF JUDGMENT: 28/04/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR   36            1962 SCR  (2) 586  CITATOR INFO :  R          1963 SC 518  (12)  F          1963 SC 649  (37)  R          1963 SC 913  (36)  R          1964 SC 179  (14,18,19,26)  D          1965 SC 280  (6)  F          1967 SC 839  (12)  R          1967 SC1427  (9)  RF         1968 SC 349  (4)  F          1968 SC 507  (3,5,6)  F          1971 SC1777  (6,9,10)  D          1976 SC 490  (29,56,71,75,109,180,209,212,2  RF         1977 SC1237  (15)  R          1979 SC 429  (19)  E&R        1981 SC 298  (28,52,53,57,65,69,72,83,84,91  R          1981 SC 588  (12)  R          1981 SC1829  (36)  RF         1991 SC 101  (238)  R          1991 SC2113  (9)  R          1992 SC   1  (92)

ACT: State  Service-Power  of State to reserve  appointments  and posts  for  backward  classes-Scope  of  such   reservation- "Appointments  or  Posts",  Meaning of  -Posts,  if  include selection posts in the services-Constitution of India, Arts. 16(4), 335.

HEADNOTE: This appeal was directed against an order of the Madras High Court  issuing  a writ of mandamus at the  instance  of  the respondent restraining the appellants from giving effect  to two   circulars  issued  by  the  Railway  Board   reserving selection  posts  in  Class III of the  Railway  service  in favour of the members of the Scheduled Castes and  Scheduled Tribes with retrospective operation.  It was urged on behalf of  the  respondent  that  the  Constitution  made  a  clear distinction  between  backward classes on the one  hand  and Scheduled Castes and Scheduled Tribes on the other, and that Art. 16(4) applied only to reservation of posts at the stage

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of  appointment  and  not  to  posts  for  promotions  after appointment and, therefore, the circulars which fell                             587 outside the scope of Art. i6(4) and contravened Art.  i6(1). This  was denied by the appellant who pleaded the  contrary. The  first  circular,  inter alia,  prescribed  a  quota  of reservation  for(  selection posts  and  gave  retrospective effect  to it and the second-’ gave guidance and  directions as  to  how the first should be implemented.   A  subsequent clarification  issued by the Board stated that no  reversion of   staff   already  promoted  to   selection   posts   was contemplated.   The  High  Court held  that  the  expression "backward  classes"  in Art. 16(4) included members  of  the Scheduled  Castes  and Scheduled Tribes, but that  the  word ,appointments’ did not denote promotion and the word ’posts’ meant posts outside the civil services and thus the impugned circulars  were  not covered by Art. i6(4)  and  were  ultra vires. Held, (per Gajendragadkar, Sarkar, and Das Gupta, JJ.), that the  impugned circulars were well within the ambit  of  Art. 16(4) Of the Constitution and the appeal must succeed. Articles 16(i) and 16(2) of the Constitution are intended to give  effect to Art. 14 and Art. 15(1) Of  the  Constitution and  these  Articles form parts of the  same  constitutional code of guarantees and supplement each other.  Article 16(i) should, therefore, be construed in a broad and general,  and not  pedantic  and technical way.   So  construed,  "matters relating to employment" cannot mean merely matters prior  to the  act of appointment nor can ’appointment to any  office’ mean  merely  the initial appointment but must  include  all matters relating to employment, whether prior or  subsequent to  the  employment,  that are  either  incidental  to  such employment or form part of its terms and conditions and also include promotion to a selection post. Although  Art.16(4), which in substance is an  exception  to Arts.  16(1)  and 16(2) and should, therefore,  be  strictly construed,  the court cannot in construing it  overlook  the extreme  solicitude  shown  by  the  Constitution  for   the advancement  of socially and educationally backward  classes of citizens. The scope of Art. 16(4), though not as extensive as that  of Art.  16(1)  and (2),-and some of the  matters  relating  to employment such as salary, increment, gratuity, pension  and the  age  of  superannuation, must  fall  outside  its  non- obstante clause, there can be no doubt that it must  include appointments  and posts in the services.  To put a  narrower construction  on  the word ’posts’ would be  to  defeat  the object and the underlying policy’  Article 16(4), therefore, authorises the state to provide for the reservation       of appointments as well as selection posts. It   is not correct  to say that the legislative history  of the  word ’posts’ shows that it has invariably been used  to mean  posts  outside  the  services,  Neither  the  relevant provisions of the Constitution nor those of the Constitution Act  of 1935 justify such a conclusion.  It is the  -context in which that word is used that must determine its meaning. 588 But in exercising its powers under the Article it should  be the  duty  of  the  State to harmonise  the  claims  of  the backward   classes   and  those  of  the   other   employees consistently   with   the  maintenance   of   an   efficient administration   as   contemplated  by  Art.  335   of   the Constitution. Per  Wanchoo, J.-Article 16(4) which is in the nature of  an exception  or  proviso to Art. 16(1) cannot  be  allowed  to

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nullify  equality of opportunity guaranteed to all  citizens by that Article. Article  16(4) implies, as borne out by Art. 335,  that  the reservation  of appointments or posts for  backward  classes cannot  cover  all or even a majority  of  appointments  and posts  and  the words "not  adequately  represented",  which provide the key to the interpretation of Art. 16(4), do  not convey any idea of quality but mean sufficiency of numerical representation  in  a particular service, taken not  by  its grades, but as a whole. Appointments must, therefore, mean initial appointments, and reservation of appointments, the reservation of a percentage of initial appointments.  Posts refer to the total number of posts  in  the  service  and  reservation  of  posts   means reservation  of a certain percentage of posts out  of  total posts in the service. Per Ayyangar, J.-Article 16(4), concerned as it is with  the right  to State employment, has to be read and construed  in the light of other provisions relating to services contained in Part XIV of the Constitution and, particularly, Art. 335. So  construed,  the word "post" in that  Article  must  mean posts not in the services but posts outside the services. Assuming  that was not so, and the word ’posts’ meant  posts in the services, the inadequacy of representation sought  to be redressed by Art. 16(4) means quantitative deficiency  of representation in a particular service as a whole and not in its  grades taken separately, nor in respect of each  single post  in the service.  Read in the light of Art.  335,  Art. 16(4) can only refer to appointments to the services at  the initial  stage  and  not  at  different  stages  after   the appointment has taken place. Article   16(4)  contemplates  prospective  reservation   of appointments and posts and does not authorise  retrospective reservation.

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 341 of 1960. Appeal  from the judgment and order dated March  3,1960,  of the Madras High Court, in W. P. No. 1051 of 1959. N.   C.  Chatterjee, B. R. L. Iyengar and D. Gupta, for  the appellants.                             589 S.   Mohan Kumaramangalam, M. K. Ramamurthy,  R.  K.    Garg and   T.  S.  Venkataraman,  for  the  respondent  and   the intervener. 1961.   April, 28.  The Judgment of  Gajendragadkar,  Sarkar and  Das  Gupta, JJ., was delivered  by  Gajendragadkar,  J. Wanchoo and Ayyangar, JJ., delivered separate Judgments. GAJENDRAGADKAR,   J.-On  a  writ  petition  filed   by   the respondent K. Rangachari in the Madras High Court under Art. 226  of the Constitution a writ of mandamus has been  issued by  the  said  High Court restraining  the  appellants,  the General Manager, Southern Railway, and the Personnel Officer (Reservation),  Southern Railway, from giving effect to  the directions  of  the Railway Board  ordering  reservation  of selection  posts  in  Class III of the  railway  service  in favour of the members of the Scheduled Castes and  Scheduled Tribes and in particular the reservation of selection  posts among the Court Inspectors in Class III one of which is held by  the  respondent.   After the writ was  thus  issued  the appellant  applied for and obtained a certificate  from  the said High Court under Art. 132(1) of the Constitution as  it involved a substantial question of law, namely, the scope of

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Art. 16(4) of the Constitution.  It is with this certificate that  the  appeal has been brought to this court,  and  the. only question which it raises for our decision is about  the scope  and  effect  of  Art. 16(4).   This  question  is  of considerable public importance though the dispute raised  by it lies within a very narrow compass. In  the  railway  services there are four  grades  of  Court Inspectors  included in Class III, (1) Court  Inspectors  on Rs. 200-300, (2) Court Inspectors on Rs. 260-350, (3)  Chief Court  Inspectors  on  Rs.  300400,  and  (4)  Chief   Court Inspectors  on Rs. 360-500.  It appears that  Inspectors  of the first category are recruited partly directly and  partly by selection from other categories of railway services.   To the   remaining  three  grades  appointments  are  made   by promotion  and  they  are classified  as  selection  posts.. Selection to 75 590 these grades is made by a committee of officers  constituted for   the  purpose.   In  respect  of  non-selection   posts seniority  in service is the qualification but in regard  to selection posts seniority is only one of the  qualifications for  promotion  to such posts; suitability to  promotion  is considered on other relevant grounds .as well. The  respondent was initially recruited to the grade of  Rs. 200-300  and  was confirmed in that, grade on  November  21, 1956.  Between May 23, 1958, and August 22, 1958 as well  as between  December  8,  1958 and December 31,  1958,  he  was promoted to officiate in the grade of Rs. 260-350.  He got a chance of another similar promotion to officiate on April 8, 1959.  These promotions were in the nature of ad hoc  promo- tions  and were consequently of temporary duration.   Later, on  June  16,  1959, he was  interviewed  by  the  selection committee  and  his promotion to the said higher  grade  was regularised  and an order was passed in that behalf on  June 30,  1959.   By this order lie was allowed  to  continue  to officiate  in  the  said  grade.  Since  then  he  has  been officiating in that grade. On  April 27, 1959, and on June 12, 1959, the  two  impugned circulars were issued by the Railway Board and addressed  to the General Managers.  As a result of the said circulars the selection   committee  decided  to  consider  the  case   of Hiriyanna  for  promotion  to  the  grade  of  Rs.  260-350, Hiriyanna  being  a  member of the  Scheduled  Castes.   The record  shows  that  at the time  when  the  respondent  was interviewed and selected he was placed as Number One by  the selection  committee  and one Partliasarathy was  placed  as Number  Two.  -  On  the said  occasion  Hiriyanna  was  not selected  and  put in the panel.   The  selection  committee desired to examine the case of Hiriyania in order to  decide whether he was suitable for promotion to higher grade in the light of the two directives issued by the Railway Board  and so  a  meeting  of the selection  committee  was  called  on November   18,  1959.   The  respondent  thought  that   the proceedings   of  the  said  proposed  meeting  may   result -prejudicially to his interest and so on November 16,  1959, he filed the 591 present Writ Petition No. 1051 of 1959.  In this petition he applied for a writ in the nature of mandamus and also prayed for  an  interim injunction restraining the holding  of  the meeting  of the selection committee proposed to be  held  on November  18, 1959.  An interim injunction as prayed for  by the  respondent  was  issued  by  the  High  Court  and   in consequence the proposed meeting has not been held.

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According to the respondent the two directives issued by the appellants  under  the  two impugned  circulars  were  ultra vires,  illegal,  inoperative and unconstitutional  in  that they  were not justified by Art. 16(4).  He alleged  that  a reading  of Arts. 16, 335, 338 and 339 would show  that  the Constitution  draws  a clear distinction  between  Scheduled Castes or Tribes on the one hand and backward classes on the other and so it was urged by him that the impugned circulars were illegal.  The petition further urged that the safeguard provided by Art. 16(4) applied only to reservation Of  posts at the stage of appointment and not for reservation of posts for  promotion after appointment and so the  circulars  were outside the provisions of Art. 16(4) and as such contravened Art. 16(1).  The petition expressed the apprehension that if the  circulars  are  implemented  the  respondent  would  be reverted  and that would cause great loss  both  financially and  in status to him.  It is on these allegations that  the respondent  prayed for the issue of a writ in the nature  of mandamus   directing   the  appellants   to   forbear   from implementing the two impugned circulars. These  pleas were denied by the appellants.  It was  alleged by  them that the expression "backward class"  appearing  in Art.  16(4) would include not only the Scheduled Castes  and Scheduled Tribes but all backward communities who could  not stand on their own legs.  Therefore the reservations made by the  impugned  circulars were fully covered by  Art.  16(4). The  appellants’  case was that the safeguards  provided  by Art. 16(4) would extend not only to initial appointment  but also  to  promotions  made by  selection  and  that  clearly brought the impugned circulars within the 592 protection  of  Art. 16(4).   The  appellants  categorically denied that the respondent would suffer any loss or  because persons  who  had  already been promoted  on  the  basis  of earlier regular selections were not intended to be  reverted as  a  consequence  of the implementation  of  the  impugned circulars.   According to the appellants the petition  filed by  the respondent was permature and on the merits  no  case had been made out for the issue of a writ of mandamus. At  this stage it would be material to set out the  relevant portions of the impugned circulars.  The circular issued  by the Railway Board on April 27, 1959, contained, inter  alia, the following directions. "There  are  different grades of Class III posts.   Some  of these posts are ’non-selection’ posts, promotion to which is made  on  ’seniority-cum-suitability’ basis, while,  in  the case  of  others which are ’Selection’ posts,  promotion  is made by a positive act of selection.  There will be no quota for  Scheduled  Castes and Scheduled  Tribes  candidates  in respect of promotion to ’non-selection’ posts. For  promotion to ’Selection’ posts, however, there will  be the   prescribed  quota  of  reservation.   The   field   of consideration in the case of Scheduled Castes and  Scheduled Tribes  candidates should be four times the number of  posts reserved  without  any  condition of  qualifying  period  of service  in  their  case,  subject  to  the  condition  that consideration  should  not  normally extend  to  such  staff beyond  two  grades immediately below the  grade  for  which selection is held." There is one more direction given by the said circular which must  be read.  The decision of the Railway Board  providing reservation  for  Scheduled Castes and Scheduled  Tribes  in promotion  vacancies  as laid down above comes  into  effect from  January 4, 1957.  It will, therefore, be necessary  to calculate  the  number of posts that should have  been  made

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available  to  the  Scheduled Castes  and  Scheduled  Tribes during 1957 and 1958 and these should be carried forward  to be filled in 1959.  Thus it would be noticed that the effect of this circular was to prescribe a quota of reservation for selection  posts  and  to give effect  to  this  reservation retrospectively from January 4,                             593 1957.  In a sense it is this retrospective operation of  the circular  which appears to be the main cause of the  present dispute. On June 12,1959, another circular was issued giving guidance and  directions  as to how the earlier  circular  should  be implemented.    This  circular  directed,  inter  alia,   by paragraphs 2(ii) and 2(iii) as follows:               "2(ii).   The Special Rosters in force for  S.               C.  & S. T. in direct  recruitment  categories               are  to be followed to work out the number  of               posts  to  be reserved for S. C. &  S.  T.  in               promotions  made in Selection Grades  and  for               promotion from Class IV to Class 111.               2(iii).    As   the   Board’s   orders    have               retrospective  effect from 4th January,  1957,               it  is necessary that the promotions  made  in               each  selection grade on your  Division/Office               from  4th January, 1957, are reviewed and  the               number  of posts due to S. C. & S.  T.  worked               out  applying the Roster referred to  in  item               (ii) above." It  appears  certain  doubts were raised in  regard  to  the manner  in  which  the  reservation  circulars  had  to   be implemented and so on September 11, 1959, the Railway  Board issued  a letter clarifying the doubts raised.  One  of  the points thus clarified was whether the instructions issued in the  Board’s letter contemplated reversion of staff  already promoted  to  selection  posts after  January  4,  1957,  to accommodate  S.  Cs. and S. Ts. (which stand  for  Scheduled Castes and Scheduled Tribes) according to percentage  basis. The  clarification issued was that the said orders  did  not contemplate  such reversion.  It was, however, desired  that the  shortfalls should be made good against the existing  as well  as  the  future vacancies.  It is by  virtue  of  this clarification  that  the  -respondent  was  assured  by  the appellants during the proceedings before the High Court that he  need  not entertain any apprehension of reversion  as  a result of the implementation of the impugned circulars. We would now briefly summarise the findings and  conclusions of  the  High Court on the points raised before  it  by  the contentions of the parties in the                             595 whether  Art.  16(1) and (2) refer to promotion  or  whether they are confined to the initial appointment to any post  in civil  service.  In the appeal before us the  s,  appellants and  the  respondent both conceded that cases  of  promotion fell  within Art. 16(1) and (2) though they differed  as  to whether  they  were  included in Art. 16(4).   It  would  be immediately   noticed   that   the   respondent’s   petition postulates the inclusion of promotion in Art. 16(1) and  (2) for it is on that assumption that he challenges the validity of  the  impugned  circulars.   Similarly,  the  appellants’ defence  postulates that Art. 16(1) and (2) as well as  Art. 16(4)  refer  to cases of promotion for it is on  the  basis that Art. 16(4) includes promotion that they seek to support the  validity of the impugned circulars.  When  this  appeal was  argued  before  the Constitution  Bench  on  the  first occasion  it became clear that neither party was  interested

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in contending that the guarantee afforded by Art. 16(1)  and (2)  is  confined only to initial appointment and  does  not extend to promotion, and so notice was ordered to be  issued to  the  Attorney General.  In response to  the  notice  the Attorney-General has appeared and is represented by Mr. Sen. He has also taken the same stand as the appellants have done and  so  in  the result nobody before us  is  interested  in challenging the inclusion of promotion within Art. 16(1) and (2).   However,  we would briefly indicate our  reasons  for accepting the concession made by the parties that  promotion is included in Art. 16(1) and (2). Article 16(1) reads thus:               "There  shall be equality of  opportunity  for               all citizens in matters relating to employment               or appointment to any office under the State." In deciding the scope and ambit of the fundamental right  of equality  of  opportunity guaranteed by this Article  it  is necessary  to bear in mind that in construing  the  relevant Article  a technical or pedantic approach must  be  avoided. We  must have regard to the nature of the fundamental  right guaranteed  and we must seek to ascertain the  intention  of the Constitution by construing the material words in a broad 596 and general way.  If the words used in the Article are  wide in  their  import they must be liberally construed   in  all their  amplitude.   Thus construed it would  be  clear  that matters  relating to employment cannot be confined  only  to the.  initial matters prior to the act of  employment.   The narrow  construction would confine the application  of  Art. 16(1)  to the initial employment and nothing else; but  that clearly, is only one of the matters relating to  employment. The other matters relating to employment would inevitably be the  provision  as to the salary and  periodical  increments therein,  terms as to leave, as to gratuity, as  to  pension and as to the age of superannuation.  These are all  matters relating to employment and they are, and must be, deemed  to be   included  in  the  expression  "matters   relating   to employment"  in Art. 16(1).  Similarly, appointment  to  any office which means appointment to an office like that of the Attorney-General  or  Comptroller and  Auditor-General  must mean not only the initial appointment to such an office  but all  the terms and conditions of service pertaining  to  the said  office.   What Art. 16(1) guarantees  is  equality  of opportunity  to all citizens in respect of all  the  matters relating  to employment illustrated by us as well as  to  an appointment to any office as explained by us.  This  equality  of opportunity need not  be  confused  with 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 Art. 16(1) guarantees is equality of opportunity to all citizens who enter service.                             597 If  the  narrow  construction  of  the  expression  "matters relating  to  employment"  is accepted  it  would  make  the fundamental  right guaranteed by Art. 16(1),  illusory.   In

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that case it would be open to the State’ to comply with  the formal  requirements of Art. 16(1) by affording equality  of opportunity  to  all  citizens  in  the  matter  of  initial employment  and then to defeated its very aim and object  by introducing   discriminatory   provisions  in   respect   of employees  soon  after  their  employment.   Would  it,  for instance, be open to the State to prescribe different scales of salary for the same or similar posts, different terms  of leave  or superannuation for the same or similar  post?   On the  narrow construction of Art. 16(1) even if such  a  dis- criminatory course is adopted by the State in respect of its employees  that  would not be violative of the  equality  of opportunity  guaranteed by Art. 16(1).  Such a result  could not  obviously have been intended by the  Constitution.   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 incidental to the employment and form part of  the terms and conditions of such employment. Article  16(2)  provides that 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.   This  sub-Article  emphatically brings   out   in  a  negative  form  what   is   guaranteed affirmatively  by Art. 16(1).  Discrimination is  a  double- edged weapon; it would operate in favour of some persons and against others; and Art. 16(2) prohibits discrimination  and thus  assures the effective enforcement of  the  fundamental right of equality of 76 598 opportunity guaranteed by Art. 16(1).  The words "in respect of  any  employment"  used in Art.  16(2)  must,  therefore, include  all matters relating to employment as specified  in Art.  16(1).   Therefore, we are satisfied that Mr.  Sen  is right  when  on behalf of the Attorney General  he  conceded that  promotion to selection Posts ’is included  both  under Art. 16(1) and (2).  Broadly stated the Bombay and the Patna High Courts sup-, port the concession made by Mr. Sen (Vide: Pandurang  Kashinath  More v. The Union of  India(1);  Sukh- nandan  v. State (2) ) whereas the Allahabad High  Court  is against it (vide: Moinuddin v. State of Uttar Pradesh (3) ). In this connection we ought to add that Civil Appeal No. 579 of  1960  (4)  in which the Union of  India  challenged  the correctness of the Bombay decision was set down for  hearing along  with  this appeal, and in the judgment which  we  are pronouncing  in the said appeal today we are  accepting  the appellants’ contention that the question about the  invasion of  the fundamental right guaranteed by Art. 16(1)  was  not properly raised by the respondent in his plaint in that case and had in fact not been proved; accordingly we are  holding that ’the High Court was in error in proceeding to deal with the  dispute on the basis that violation of Art.  16(1)  had been  admitted by the Union.  In the result we are  allowing the  said appeal and setting aside the decision of the  High Court on this narrow ground. Article  16(3) provides for one exception to the  provisions

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of  Art. 16(1) and (2) in that it authorises  Parliament  to make 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. We  are  not concerned with this provision  in  the  present appeal. (1)  I.L.R. [1958] Bom. 1266. (2) (1956) I.L.R. 35 Pat. (3)  A.I.R. 1960 All. 484. (4) Union of India v. Pandurang Kashinath More. 599 That takes us to Art. 16(4).  It reads thus:               "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." In construing Art. 16(4) the respondent is no doubt entitled to  contend that this sub-Article in substance provides  for an  exception to the fundamental rights guaranteed  by  Art. 16(1) and (2) and as such it must be strictly construed.  On the  other  hand,  the  appellants may  well  urge  that  in construing its provisions the Court should not lose sight of the fact that the Constitution has, if we may say so wisely, showed very great solicitude for the advancement of socially and  educationally  backward classes of  citizens.   Article 15(4)  which provides, inter alia, for an exception  to  the prohibition  of discrimination on grounds specified in  Art. 15(1)  lays down that nothing contained in the said  Article 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.  Similarly, Art. 335 requires that 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.  For historical reasons which are well  known  the advancement  of socially and educationally backward  classes has  been  treated  by  the  Constitution  as  a  matter  of paramount  importance and that may have to be borne in  mind in construing Art. 16(4). On  one point in relation to the construction of Art.  16(4) the parties are in agreement.  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-obstantive 600 clause in Art. 16(4).  For instance, it is not denied by the appellants  that  the  conditions of  service  relating  ’to employment  such as salary, increment, gratuity,  y  pension and the age of superannuation there can be no exception even in  regard  to the backward classes of citizens.   In  other words,  these matters relating to employment are  absolutely protected  by  the doctrine of equality of  opportunity  and they do not form the subject-matter of Art. 16(4).  That  is why we have just observed that part of the ground covered by Art.  16(1) and (2) is admittedly outside the scope of  Art. 16(4).  The point in dispute is: Is promotion to a selection

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post which is included in Art. 16(1) and (2) covered by Art. 16(4)  or is it not?  It is on, this point that there  is  a sharp controversy between the parties. Before construing Art. 16(4) it would be convenient to  deal with  the question as to whether posts specified by  it  are posts  inside  the  services or outside them.   As  we  have already  seen  the High Court has taken the  view  that  the posts in the context must necessarily mean posts outside the services and that in fact is the sole basis of the  decision of  the High Court against the appellants.  The  High  Court has   held  that  the  legislative  history  of  the   words "appointments"  and  "Posts" justifies the  conclusion  that "posts"  are  ex-cadre posts.  Is that really  so?   In  our opinion,  the  answer  to  this  question  must  be  in  the negative.   The argument that legislative history about  the use  of  the  relevant  words is  decisively  in  favour  of excluding  service  posts  from the purview  of  Art.  16(4) ignores  the fact that there can be no  legislative  history for the provisions of Art. 16(4) which have found a place in the  Constitution  for the first time.  Besides, it  is  not correct  to assume that even the legislative  history  shows that  "posts"  always  and inevitably  meant  posts  outside services  though it may be conceded that in the majority  of corresponding constitutional provisions they do refer to ex- service posts. Let  us look at the relevant provisions of the  Constitution itself.  Article 309 empowers the appropriate Legislature to regulate  the  recruitment  and  conditions  of  service  of persons appointed to public services and 601 posts in connection with the affairs of the Union or of  any State.  In the context "posts" means posts outside services. Similarly  Art.  310(1)  refers to every person  ’who  is  a member  of  a defence service or of a civil service  of  the Union or of an all-India service or holds any post connected with  defence or any civil post under the Union.   The  word "post" in the context means an ex-cadre post.  Likewise  the expression  "civil post" in Art. 311(1) means a  civil  post outside the services.  Article 335 to which we have referred uses the word "posts" in the same sense.  But, when we go to Art. 336 the word "posts" in the context means posts in  the services therein enumerated.  The position disclosed by  the corresponding provisions of the Constitution Act of 1935  is substantially  the same.  Sections 240 and 241 for  instance use  the  word  "posts" in the sense  of  ex-service  posts; whereas  s. 246 refers to civil posts in the sense of  posts inside  the services.  In our opinion, it would,  therefore, be  unreasonable to treat the word "posts" as a term of  art and  to  clothe it inexorably with the  meaning  of  excadre posts.  It is the context in which the word "posts" is  used which must determine its denotation. What  does the context of Art. 16(4) indicate?  That is  the next question which we must consider.  Article 16(4) clearly shows  that  the power conferred by it can be  exercised  in cases  where the State is of the opinion that  any  backward class  of  citizens  is not adequately  represented  in  the services  under it.  In other words, the opinion  formed  by the State that the representation available to the  backward class of citizens in any of the services is inadequate is  a condition precedent for the exercise of the power  conferred by  Art.  16(4),  and so the power to  make  reservation  as contemplated by Art. 16(4) can be exercised only to make the inadequate representation in the services adequate. If  that be  so,  both  "appointments"  and  "posts"  to  which   the operative part of Art. 16(4) refers and in respect of  which

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the  power  to make reservation has been  conferred  on  the State must necessarily be appointments and posts in the ser- vice.  It would be illogical and unreasonable to 602 assume  that for making the representation adequate  in  the services  under  the State a power should ’be given  to  the State  to reserve posts outside the cadre of  services.   If the  word  "posts" means excadre posts reservation  of  such posts cannot possibly cure the imbalance which according  to the  State  is disclosed in the representation  in  services under it. Therefore, in our opinion, the key clause of  Art. 16(4)  which prescribes a condition precedent  for  invoking the  power  conferred by it itself  unambiguously  indicates that  the  word "posts" cannot mean ex-cadre  posts  in  the context.   In fairness to Mr. Kumaramangalam,  who  appeared for  the respondent, we ought to add that he did not  resist the  contention of Mr. Chatterjee, for the appellants,  that the  context  requires that "Posts" should be deemed  to  be posts inside services and not outside them.  Therefore,  the main,  if  not the sole, reason given by the High  Court  in support  of its conclusion does not appear to us to be  well founded,  and so Art. 16(4) must be construed on  the  basis that both "appointments" and "posts" to which its  operative clause  refers  are appointments and posts in  the  services under  the State.  Incidentally, we may repeat what we  have already  pointed  out that the tenor of the  judgment  under appeal  shows that if the High Court had construed the  word "posts"  as  posts  inside the services it  would  not  have issued the writ in favour of the respondent. Having  in  substance conceded that "posts"  does  not  mean posts  outside services Mr. Kumaramangalam presented a  very plausible argument in support of his case that the  impugned circulars fall outside Art. 16(4).  He contends that the key clause on which Mr. Chatterjee relies in construing the word "posts"  as meaning posts in the services itself shows  that direct  promotion to selection posts by reservation  is  not permissible under Art. 16(4).  His argument is that if it is discovered  that  any  backward class  of  citizens  is  not adequately  represented in the services under the State  the State  may no doubt seek to introduce the balance by  giving adequate  representation  to the backward  class  by  making reservations for initial                             603 appointments.   It  may decide the proportion  of  the  said reservation in order to introduce the balance and then  give effect  to it by making adequate number of  appointments  by reservation  at  the  initial stage.  If’  this  process  by itself appears to the State to be slow and tardy it may even reserve  selection posts but this reservation can  be  given effect  to again by promoting( suitable backward  candidates to  the  said  posts after they fall  vacant  and  making  a proportionately larger number of appointments at the initial stage.   In any case reservation must work from  the  bottom and   reservation  cannot  be  permitted  to  allow   direct appointment  to  selection posts as the  impugned  circulars seek  to  do.   It  may  be  conceded  that  reservation  of appointments or posts maybe made in the manner suggested  by Mr.  Kumaramangalam.   It may also be  assumed  that  giving retrospective  effect to reservations may well cause  heart- burning  or  dissatisfaction amongst the  general  class  of employees and in that sense it would be an act of wisdom not to  give effect to reservation retrospectively.   But,  with the  propriety  or the wisdom of the policy  underlying  the circulars  We  are not directly concerned.  Even  if  it  be assumed  that  it would be open to the State  to  adopt  the

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method suggested by Mr. Kumaramangalam to give effect to the power of reservation in order to make the representation  of the backward classes adequate in its services does it follow that it is the only method permissible under Art. 16(4)?  We are inclined to hold that the answer to this question cannot be  in  favour of the respondent.  If it  is  conceded  that selection  posts can be reserved it is difficult to see  how it  would  be open to the respondent to contend  that  these reserved  selection posts must be filled only  prospectively and  not  retrospectively.  The  concession  that  selection posts can be reserved on which the argument is based  itself provides  the answer to the argument that if the said  posts can  be  reserved the reserved posts can  be  filled  either prospectively  or retrospectively.  In adopting  the  latter course  there  can  be no violation  of  the  constitutional provision contained in Art. 16(4). 604 The  condition  precedent  for the exercise  of  the  powers conferred  by  Art.  16(4) is that the  state  ought  to  be satisfied  that  any  backward  class  of  citizens  is  not adequately  represented  in its  services.   This  condition precedent  may refer either to the numerical  inadequacy  of representation  in the services or even to  the  qualitative inadequacy  of  representation.   The  advancement  of   the socially  and  educationally backward classes  requires  not only  that they should have adequate representation  in  the lowest  rung  of  services but that they  should  aspire  to secure  adequate  representation in selection posts  in  the services as well.  In the context the expression ’adequately represented’  imports  considerations of "size" as  well  as "values", numbers as well as the nature of appointments held and  so it involves not merely the numerical test  but  also the  qualitative  one.  It is thus by the operation  of  the numerical  and  a  qualitative test  that  the  adequacy  or otherwise  of the representation of backward classes in  any service has to be judged; and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage.  In a given case  the  state  may  well take the  view  that  a  certain percentage  of selection posts should also be reserved,  for reservation  of  such posts may make the  representation  of backward  classes in the services adequate, the adequacy  of such  representation being considered qualitatively.  If  it is  conceded that "posts" in the context refer to  posts  in the  services and that selection posts may be  reserved  but should  be  filled  only  in the  manner  suggested  by  the respondent  then  we  see no reason  for  holding  that  the reservation  of  selection posts cannot  be  implemented  by promoting suitable members of backward class of citizens  to such posts as the circulars intend to do. We must in this connection consider an alternative  argument that the word "posts" must refer not to 605 selection posts but to posts filled by initial appointments. On   this   argument  reservation  of   appointments   means reservation   of   certain   percentage   in   the   initial appointments  and reservation of posts means reservation  of initial posts which may be adopted in order to expedite  and make   more  effective  the  reservation   of   appointments themselves.   On  this  construction the  use  of  the  word "posts"  appears  to be wholly redundant.  In  our  opinion, having  regard  to  the  fact that  we  are  construing  the relevant  expression  "reservation  of  appointments"  in  a constitutional provision it would be unreasonable to  assume

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that the reservation of appointments would not include  both the   methods   of  reservation,  namely,   reservation   of appointments  by fixing a certain percentage in that  behalf as well as reservation of certain initial posts in order  to make  the reservation of appointments more effective.   That being so, this alternative argument which confines the  word "posts"  to  initial  posts  seems  to  us  to  be  entirely unreasonable.  On the other hand, under the construction  by which  the word "posts" includes selection posts the use  of the  word  "posts"  is not superfluous  but  serves  a  very important  purpose.  It shows that reservation can  be  made not  only  in  regard  to  appointments  which  are  initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment.  This construction  has  the  merit  of  interpreting  the   words "appointMents" and "posts" in their broad and liberal  sense and giving effect to the policy which is obviously the basis of the provisions of Art. 16(4).  Therefore, we are disposed to  take  the view that the power of  reservation  which  is conferred on the State under Art. 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.  This construction, in  our opinion, would serve to give effect to the intention of  the Constitution-makers  to  make  adequate  safeguard  for  the advancement  of  backward classes and to  secure  for  their adequate representation in the services.  Our 77 06 conclusion,  therefore, is that the High Court was in  error in  holding  that the impugned circulars do not  all  within Art. 16(4). It  is  true  that  in  providing  for  the  reservation  of appointments or posts under Art. 16(4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the  efficiency of  administration.   It  must not  be  forgotten  that  the efficiency of administration is of such paramount importance that  it  would  be unwise and  impermissible  to  make  any reservation  at  the cost of efficiency  of  administration. That undoubtedly is the effect of Art. 335.  Reservation  of appointments or posts may theoretically and conceivably mean some  impairment  of efficiency; but the  risk  involved  in sacrificing  efficiency  of administration  must  always  be borne  in mind when any State sets about making a  provision for  reservation of appointments or posts.  It is also  true that  the reservation which can be made under Art. 16(4)  is intended merely to give adequate representation to  backward communities.   It cannot be used for creating monopolies  or for  unduly  or  illegitimately  disturbing  the  legitimate interests  of  other employees.  In  exercising  the  powers under  Art. 16(4) the problem of adequate representation  of the   backward  class  of  citizens  must  be   fairly   and objectively considered and an attempt must always be made to strike  a reasonable balance between the claims of  backward classes  and  the claims of other employees as well  as  the important consideration of the efficiency of administration; but,  in  the  present case, as we have  already  seen’  the challenge to the validity of the impugned circulars is based on the assumption that the said circulars are outside  Art.. 16(4) because the posts referred to in the said Article  are posts outside the cadre of services and in any case, do  not include  selection  posts.   Since,  in  our  opinion,  this assumption  is  not  well  founded we  must  hold  that  the impugned circulars are not unconstitutional.

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In the result the decision of the High Court under appeal is reversed and the respondent’s application                             607 for  a  writ is dismissed.  There would be no  order  as  to costs. WANCHOO,  J.-I have read the judgment just delivered  by  my learned  brother Gajendragadkar J., and I agree with him  as to  the  scope of Art. 16(1) of the  Constitution.   I  also agree  with him that the scheduled castes and the  scheduled tribes  are  included  in  the  words  "backward  class   of citizens"  in Art. 16(4) and that the word "Posts"  in  that Article  refers  to posts in the services and not  to  posts outside the services.  I regret however that I have not been able to persuade myself that Art. 16(4) permits  reservation even  in  grades  within a particular service  in  case  the service has various grades in its cadre, and proceed to give my reasons for the same. Before I construe the words of Art. 16(4), I may state  that I  am  not  unmindful  of the fact  that  Art.  16(4)  is  a constitutional provision and that constitutional  provisions are  not to be interpreted in any narrow or pedantic  sense. At  the same time it cannot be forgotten that Art. 16(4)  is in  the nature of an exception or a proviso to  Art.  16(1), which   is  a  fundamental  right  providing   equality   of opportunity   for  all  citizens  in  matters  relating   to employment  or  appointment to any office under  the  State. This aspect of Art. 16(4) in my opinion inevitably  requires that the proviso or the exception should not be  interpreted so  liberally as to destroy the fundamental right itself  to which  it  is  a proviso  or  exception.   The  construction therefore  of  Art. 16(4) cannot ignore this aspect  of  the matter.               I now read Art. 16(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." Before I turn to the actual words used in the Article I must refer  to what I consider is implicit in that Article.   The Article provides for reservation of 608 appointments or posts and it seems tome obvious that  it  is implicit   in   the   Article  that   the   reservation   of appointments  or posts cannot go to the length of  reserving all appointments or posts or even to the length of reserving a  majority  of  them.   The  reason  why  I  say  that  all appointments  or posts cannot be reserved under Art.  16(4)- (though  that  would be the result if  the  widest  possible interpretation is given to the words used in the Article)-is that  if all appointments or posts could be  reserved  under Art.  16(4)  it  would  mean  complete  destruction  of  the fundamental right guaranteed under Art. 16(1).  It could not be the intention of the Constitution-makers that the proviso or  exception in Art. 16(4) should be so used as to  destroy completely  the fundamental right enshrined in  Art.  16(1). Nor  do I think that it is permissible under Art.  16(4)  to reserve a majority of appointments or posts, for that again, in  my  opinion, though it may not  completely  destroy  the fundamental right guaranteed under Art. 16(1) will certainly make  it  practically illusory.  Again it could not  be  the intention of the Constitution-makers that Art. 16(4)  should be   so  interpreted  as  to  make  the  fundamental   right guaranteed  under  Art.  16(1)  illusory.   I  may  in  this

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connection  refer  to  Art. 335, which occurs  in  Part  XVI dealing with Special Provisions relating to certain Classes, which  reinforces  what  I have said  above.   That  Article provides  that "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." Now the scheduled  tribes  and  the scheduled  castes are included in the words "backward  class of  citizens" used in Art. 16(4).  Therefore in  considering the  claims  of, at any rate, a part of, those  included  in Art. 16(4)-(and I presume the same will apply to the  whole) the maintenance of efficiency of administration must be kept in  mind, for the reservation provided in Art. 16(4)  is  to meet the claims of the members of the 609 scheduled  castes  and the scheduled  tribes.   Reservation, therefore,  of all appointments or posts or even a  majority of them is certain to result in the impairment of efficiency of administration and therefore what I consider as  implicit in  Art.  16(4) is borne out also by the provision  in  Art. 335.   It is in this background that the  interpretation  of Art. 16(4) falls to be considered. Turning  now  to the words in Art. 16(4), it appears  to  me that  the  key  words in that Article  are  "not  adequately represented  in  the services under the  State."  Obviously, reservation can be made under this Article only if the State comes to the conclusion that any backward class of  citizens is not adequately represented in the services under it.  If, for  example, the State is of opinion that backward  classes are  adequately represented in the services it can  make  no reservation  under Art. 16(4).  What then is the meaning  of these  key words in this Article?  What these words  require is  that  reservation  may  be made in  order  to  make  the representation of any backward class of citizens adequate in the services.  Does the word "adequate" imply only numerical representation  in the services or does it  imply  something more  than that?  The three meanings of the word  "adequate" given in the Shorter Oxford English Dictionary are (i) equal in  magnitude  and  extent; (ii)  commensurate  in  fitness, sufficient, suitable; and (iii) fully representing  (logic). It  seems  to  me that it is  the  second  meaning  (namely, sufficient) which properly applies to the words  "adequately represented" as used in this Article.  "Sufficient" has  two meanings: (i) Sufficing, adequate, esp. in amount or  number to  the  need, (ii) enough, adequate  quantity.   Therefore, when  Art. 16(4) says that reservation may be made in  order that  any  backward  class of  citizens  may  be  adequately represented in the services it means that reservation may be made  in  order  to make the number of  any  backward  class sufficient in the services under the State.  These words  do not  in my opinion convey any idea of quality and  can  only mean sufficient quantitative representation in the  services under the State.  If 610 the intention of the Constitution-makers was that there  may also  be  reservation  in various grades  in  a   particular service  where  there are grades in the ser vice,  I  should have  expected different words being used in Art.  16(4)  to convey  that meaning.  These key words used in this  Article further convey the idea of representation in the services as a  whole,  for  there are no words which  suggest  that  the service  should be broken up in case there are grades in  it for the purposes of adequate representation.  The conclusion

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therefore  at which I arrive is that these key words  convey the  idea  of  adequate  numerical  representation  for  any backward  class  of citizens in a particular  service  as  a whole and it is for this purpose alone that reservation  can be made of appointments or posts in the services. This brings me to the question as to bow the reservation  is to be made.  Art. 16(4) tells us that it may be made  either by reserving appointments to the services or reserving posts in  the services.  Appointments in my opinion  clearly  mean the  initial  appointments  to a service, for  a  person  is appointed only once in a service and thereafter there is  no further appointment.  Therefore, when the Article speaks  of reservation  of appointments it means reservation of a  per- centage of initial appointments to the service.  Posts refer to  the  total  number  of posts in  the  service  and  when reservation is by reference to posts it means reservation of a  certain  percentage of posts out of the total  number  of posts in the service.  The reason why these two methods  are mentioned  in  this Article is also to my mind  plain.   The method  of reservation of appointments would mean  that  the goal  of  adequate representation may be reached in  a  long time.  Therefore, in order that the goal. may be reached  in a  comparatively  shorter period of time, the  Article  also provides for the method of reservation of posts.  This  will be  clear from an example which I may give.   Suppose  there are  1,000  posts in a particular service and  the  backward classes have no representation at all in that service.   The State considers it necessary that they should have  adequate representation in that                             611 service.   Suppose also that the annual appointments  to  be made to the service in order to keep it at full strength  is thirty.   Now  the  State  if  it  chooses  the  method   of reservation  of  appointments will reserve a  percentage  of appointments  each year for backward classes.   Now  suppose that  percentage  is  fixed at ten per  century.   In  order therefore to reach the ten per centum of the total number of posts  in  the  service  by the  method  of  reservation  of appointments,  the period taken would be roughly  34  years. This  period  may be considered too long and  therefore  the State may decide to adopt the other way, i.e., the  reserva- tion of posts; and suppose it is decided to reserve ten  per centum of the posts, i.e., 100 in all.  It will then be open to  the State having reserved 100 posts in  this  particular service  for  backward classes to say that  till  these  100 posts  are  filled up by backward classes  all  appointments will go to them provided the minimum qualifications that may be  prescribed  are fulfilled.  Suppose further that  it  is possible  to get annually the requisite number of  qualified members   of   backward   classes  equal   to   the   annual appointments,  the  representation of the  backward  classes will  be  made  adequate  in about  four  years.   Once  the representation  is adequate there will be no power left  for making further reservation.  Thus by the method of  reserva- tion of appointments the representation is made adequate  in a long period of time while by the method of reserving posts the  representation  is  made adequate  in  a  much  shorter period.  That seems to be the reason why the Article  speaks of reservation of appointments as well as of posts. It  is  however said that this construction  of  Art.  16(4) makes  the use of the word "posts" therein superfluous,  and that  the same result of making the representation  adequate quickly could have been achieved if the word  "appointments" only  had been used therein.  I am of opinion that  this  is not  so and the use of the word "appointments" only in  Art.

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16(4) would not have made it possible for the State to  make the  representation of backward classes adequate in a  short space of time.  In the example I have given the 612 representation of backward classes was made adequate in four years  by  the  method of reservation  of  posts;  it  would however  not have been possible to make  the  representation adequate  in this hypothetical case in such a short time  if the  Article only provided for reservation of  appointments. I have already said that it is implicit in the Article  that reservation  cannot  be  of all appointments or  even  of  a majority  of  them, for that would  completely  destroy  the fundamental  right  enshrined in Art. 16(1)  to  which  Art. 16(4)  is in the nature of a proviso or an exception  or  at any rate make it practically illusory.  Therefore, it  would not  be open to the State to reserve all or even a  majority of  the  appointments  for backward  classes,  if  the  word "appointments" only had been used in Art. 16(4).  Even if  a larger  percentage  than ten per centum  were  reserved  for backward  classes  in  the matter  of  appointments  in  the hypothetical  case given by me it would not be  possible  to reach the total of 100 posts for the backward classes in the service  in less than twice or thrice the time taken by  the method  of  reservation of posts, for the  State  could  not reserve  all  or even the majority of  appointments  in  any particular year, in view of what is implicit in Art.  16(4), if the word " a appointments" only had been there.  It seems to  me  therefore that the use of the word "posts"  in  that Article  was with a purpose, namely, that by the  method  of reservation  of posts the inadequate representation  may  be made adequate within a short space of time and the objection that could be raised to the reservation of all appointments, if  only  the  word  "appointments" had  been  used  in  the Article, would no longer be available.  It cannot  therefore be  said  that on the interpretation I have placed  on  Art. 16(4)   the  use  of  the  word  "posts"   therein   becomes superfluous. I  have already said that if the intention was not  only  to make  reservation in the service as a whole whether  by  the method  of  reserving  appointments  or  by  the  method  of reserving  posts but also to include reservation in  various grades in which a service may be divided, the words of  Art. 16(4)  would have been different.  I may in this  connection refer to Art. 335                             613 again,  which  lays down that the claims  of  the  scheduled castes and the scheduled tribes (which are part of  backward classes of citizens) shall be considered So,.,  consistently with  the maintenance of efficiency of  administration.   It seems  to me that reservation of posts in various grades  in the same service is bound to result, for obvious reasons, in deterioration  in  the  efficiency  of  administration;  and reading  Art. 335 along with Art. 16(4) which to my mind  is permissible on the principle of harmonious construction (see Pandit  M. S. M. Sharma v. Shri Sri Krishna Sinha  (1)),  it could  not be the intention of the Constitution-makers  that reservation  in Art. 16(4), for at any rate a part of  those comprised  therein, should result in the impairment  of  the efficiency  of administration.  It also seems to me  equally obvious  that what applies to a part of those  comprised  in the  words "any backward class of citizens" also applies  to the whole.  Therefore, in the absence of clear words in Art. 16(4)  which would compel one to hold that  reservation  was meant to apply not only to the service taken as a whole  but also  to  various  grades  in which  the  service  might  be

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divided,  I feel that an interpretation should not be  given which  would  result  in the  impairment  of  efficiency  of administration,  which  is jealously safeguarded  even  when considering  the  claims  of the scheduled  castes  and  the scheduled tribes.  I am therefore of opinion that giving the words used in Art. 16(4) as liberal an interpretation as  is possible   without   destroying  or  making   illusory   the fundamental  right  guaranteed in Art. 16(1) to  which  Art. 16(4)  is in the nature of an exception or a  proviso,  Art. 16(4) can only mean that the State has the power  thereunder to reserve numerically a certain percentage of  appointments or posts in the manner I have indicated above and it has  no power  to split the service into various grades which  might exist  in it and make reservation in each grade  because  of the  use  of the word "posts" therein.   I  would  therefore dismiss the appeal but for different reasons. (1) [1959] 1 S. C. R. 806, 859-60 78 614 AYYANGAR,  J.-I  regret that I cannot share the view  of  my learned  brethren expressed by Gajendragadkar, J.  that  the appeal  should be allowed and I agree with Wanchoo, J.  that the  appeal  should be dismissed and the order of  the  High Court maintained. The  facts of the case have been set out in great detail  in the  judgments  already delivered and it is  unnecessary  to repeat them. Mr.  Chatterji when he opened the appeal appeared  to  claim that the scope and content of Art. 16(1) and of sub-Art. (4) thereof were identical and that if Art. 16(1) guaranteed  by the  use  of  the  wide  expression  "matters  relating   to employment",  "equality  of  opportunity"  in  relation   to promotions also, Art. 16(4) should be construed to have  the same  width.   But this argument however he abandoned  at  a later  stage.   The point therefore does not  call  for  any consideration and the judgments now delivered proceed on the basis  that the scope of the limitation on the  equality  of opportunity  which  is  provided in Art. 16(4)  is  not  co- extensive  with the freedom guaranteed by Art.  16(1).   The only  question  therefore is in what respect is  Art.  16(4) narrower  than Art. 16(1).  In considering this the rule  of construction should be borne in mind that a restriction on a guaranteed  freedom  should be narrowly construed so  as  to afford sufficient scope for the freedom guaranteed. The judgment of the learned Judge now under appeal  proceeds on the basis that the expression "Posts" in Art. 16(4) was a reference  to what are termed in service parlance  ’ex-cadre posts’  and  not  posts in  the  service.   Mr.  Chatterji’s submission  was  that  the learned Judge had  no  basis  for importing  the  nomenclature and the classifications  to  be found  in  Part XIV into Part III dealing  with  fundamental rights.   In particular, Mr. Chatterji quarrelled  with  the statement   by  the  learned  Judge  that   the   expression appointments  and  posts’  occurring  in  Art.  16(4)   were "virtually  terms  of art which had to  be  interpreted  and understood  in the light of the legislative history  of  the constitutional enactments that                             615 preceded the Constitution, and in consonance with the scheme that  underlies  the provisions of the  Constitution,  which have reference to the civil services’ and civil servants  in this  country." Mr. Chatterji’ further pointed out that  the learned Judge went wrong in observing that "The  expressions appointments and posts in Art. 16(4) have really to be  read as  appointments to services and appointments to  posts"  on

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the  ground  that the words used in Art. 16’4)  were  merely "appointments and posts" and not "appointments to  services" etc.,  the  latter  occurring only in Part  XIV.   It  was,, however,  common ground that if the learned Judge was  right in  considering  that  "appointments" in  Art.  16(4)  meant "appointments  to services," the notification  now  impugned should be held to be unconstitutional. Mr.  Chatterji  did not dispute that  when  the  expressions ’appointments   to  services  and  appointments  to   posts’ occurred  in Ch.  XIV vide for instance in Arts.  309,  311, etc.,  being phrases borrowed from statutory  provisions  of the   Government   of  India  Act,  1935,   the   expression ’appointment to a post’ designated an ’ex-cadre post’.   The submission,  however, of learned Counsel was that there  was no  justification for importing the phraseology employed  in Part  XIV in Art. 16(4), notwithstanding that Art. 16  dealt with equality of opportunity for employment in the  services of  the  State  and  sub-Art. (4)  was  concerned  with  the reservation  of  appointments in Services under  the  State. His  submission  was  that Art.  16(4)  had  no  legislative precedent  in  the  previous  constitutional  enactments  to justify the importation of service rules and service  jargon as an aid to its construction. My  learned Brothers have acceded to this submission of  Mr. Chatterji.   With great respect to them I consider that  the view of the learned Judge of the High Court is correct.   In the first place, the Article being one concerning the  right to  be  employed  in  the Services of  the  State,  one  has necessarily  to turn on the relevant provisions in  relation to  the  Services  to discover the  precise  import  of  the expressions  used in relation to the Services.  Besides,  we are not left in 616 doubt  as to the inter-connection between Art. 16  and  Part XIV  dealing  with Services, because Art. 335 forms,  as  it were,  the  link  between Part XIV and  the  provisions  for reservation  in favour of the backward communities  in  Art. 16(4)  Betting  out as it does the  principles  that  should guide the State in the matter of reservation in the Services which  could obviously be only a reference to that  provided for by Art. 16(4).  Art. 335 runs:               "The  claims of the members of  the  Scheduled               Castes  and  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 this Article, at any rate, it cannot be contended, and  I did  not understand Mr. Chatterji to contend,  that  ’Posts’ had any reference to ’posts in the services.’ If it were  so then  in  my judgment it would follow that  the  phraseology employed  in this Article which deals with the same  subject as  that  dealt  with  by Art. 16(4)  throws  light  on  and explains  the  meaning  of the expression  ’posts’  in  Art. 16(4).   It is only necessary to add that Art. 320(4)  which runs:               "Nothing in clause (3) shall require a  Public               Service Commission to be consulted as respects               the manner in which any provision referred  to               in clause (4) of article 16 may be made or  as               respects  the  manner in which effect  may  be               given to the provisions of article 335." to  which  learned  Counsel  for  the  respondent  drew  our attention  indicates, if other indication  were  necessary.,

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that Arts. 16(4) and 335 have to be read together and not as if the ’posts’ referred to in Art. 335 indicated a different idea or connoted a different concept from the same word used in Art. 16(4). Even if the above view were wrong and the expression ’Posts’ were  intended to designate not ’ex-cadre posts’ but  ’posts in  the  service,’ I am unable to hold  that  the  appellant derives  any advantage.  As my learned Brother  Wanchoo,  J. has pointed out, the crucial words in Art. 16(4), and  which form as it were 617 the  key to its interpretation, from which the power of  the State  to  make the reservation stems, are that a  class  of citizens  "is not adequately represented in the Services  of the State." The action permitted to be taken to redress this inadequacy is by reservation of appointments and posts.   If by  the expression ’posts’ are meant ’posts in the  service. itself’ I feel unable to attribute to the expression ’posts’ any  special  significance  beyond  an  appointment  to  the service.  Every appointment in a service must be to "a post" in a service, because there cannot be an appointment in  the air  but  can  only be to a "post" in a  service.   In  that sense,  in  my view, the expression ’post’ would  be  really redundant  unless,  of course, as I have  said  earlier,  it meant not posts in a service but ex-cadre posts. There is also one other aspect to which I might advert.   In some  of  the  top  grades there are  single  posts  in  the Service.   If  at any point of time the incumbent is  not  a member  of the backward class, it would certainly be a  case of  inadequate  representation as regards  that  post  which would mean that such posts which are single may be  reserved for all time to be held by members of the backward  classes, because  if at any moment such a person ceases to  hold  the post  there would be inadequate representation in regard  to that  post.   I  have drawn attention  to  this  because  it pointedly  demonstrates that the correct view is  that  when "inadequacy of representation" is referred to in Art.  16(4) as   justifying  a  reservation,  the  only   rational   and reasonable construction of the words are that it refers to a quantitative   deficiency  in  the  representation  of   the backward classes in the service taken as a whole and not  to an inadequate representation at each grade of service or  in respect of each post in the service. Besides, even on the footing that "posts" mean posts in  the Services, Art. 16(4) properly construed in the light of Art. 335  of  the  Constitution  whose  inter.  action  has  been discussed  in  great detail by Wanchoo, J. in  the  judgment just now pronounced with which entirely agree,  contemplates and permits 618 reservation  only in respect of appointments to Services  at the  initial  stage  and not at each stage  even  after  the appointment has taken place. There is one other matter also which I consider relevant  in this context.  Under Art. 16(4) the State is enabled to make provision  for the reservation of appointments if  in  their opinion  certain  backward  classes  of  citizens  are   not adequately   represented  in  the  Service.    The   Article therefore  contemplates  action in relation  to  and  having effect  in the future when once the State forms the  opinion about  the  inadequacy  of the Service.   If  an  inadequacy exists   today,   to  give  retrospective  effect   to   the reservation, as the impugned notification has done, would be to redress an inadequate representation which took place  in the  past by an order issued today.  In my judgment that  is

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not contemplated by the power conferred to reserve which can only  mean  for the future.  As this point however  has  not been  argued I do not desire to rest my judgment on it,  but have  mentioned it to draw attention to another  feature  of the notification which deserves consideration. I would therefore dismiss the appeal with costs. By COURT: In accordance with the opinion of the majority the appeal  is  allowed; the decision of the  High  Court  under appeal  is reversed and the respondent’s application  for  a writ is dismissed.  There will be no order as to costs. 619