1. Article 16(1) of the Constitution mandates that there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State.
2. Article 16(4) before amendments of the Constitution introducing Article 16(4A) and (4B) introduced the concept of reservation in public employment.
3. Keeping in view the two different concepts enshrined in above said two Articles of the Constitution, we have to understand the concept of equality of opportunity, as envisaged in above said Article. This Article has two different and distinct concepts. There is conceptual distinction between non-discrimination principle [Article 16(1)] and affirmative action [Article 16(4)], under which the State is obliged to provide level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute equality of opportunity.
4. Reservation is necessitated for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense. Otherwise, it will perpetuate casteism in the country. Equality in Article 16(1) is individual specific whereas reservation in Article 16(4) is enabling.
5. Under the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of draw backs which not his, but social.
6. The question of extent of reservation involves two questions:-
(i) Whether there is any upper limit beyond which reservation is not permissible;
(ii) Whether there is any limit to which seats can be reserved in a particular year ; in other words whether percentage limit applies only to the total number of posts in the cadre or to the percentage of posts advertised every year as well?
Word of caution against excess reservation was first pointed out in the General Manager, Southern Railway Versus Rangachari (AIR 1962 SC 36). Gajendragadkar, J, giving the majority judgement said that reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopoly or for unduly or illegitimately disturbing the legitimate interest of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration.
In M.R. Balaji Versus State of Mysore, AIR 1963 SC 649, with reference to Article 15(4), 60% reservation was struck down as excessive and unconstitutional by observing that special provision should be less than 50%. How much less would depend on the relevant prevailing circumstances of each case.
However, in State of Kerala Vs N.M. Thomas, AIR 1976 SC 490, Krishna Iyer J. said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under clause (1) of Article 16, yet the Constitution itself does not put any bar on power of the government under Article 16(4). If a State has 80% population which is backward than it would be meaningless to say that reservation should not cross 50%.
However, in Indra Sawhney, 1992 Supp (3) SCC 217, the majority held that the rule of 50% laid down in Balaji was a binding rule and not a mere rule of prudence. It was further held that Article 16(4) speaks of adequate representation not proportionate representation, although proportion of population of backward classes to the total population would certainly be relevant.
In Indira Sawhney it was noted that reservation under Article 16(4) does not operate on communal ground, hence if a member of reserved category gets selected in general category, his selection will not be counted against quota limited for his class. Similarly, in R.K. Sabharwal, (1995) 2 SCC 745, it was held that while General category candidates are not entitled to fill the reserved posts; reserved category candidates can compete for the general posts.
In Indira Sawhney, the majority held that 50% rule should be applied to each year otherwise it may happen that (if entire cadre strength is taken as a unit) the open competition channel gets choked for some years and meanwhile the general category candidates may become age barred and ineligible. The equality of opportunity under Article 16(1) is for each individual citizen while special provision under Article 16(4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other.
However, in R.K. Sabharwal, which was a case of promotion and dealt with issue of operation of roster system, the court stated that entire cadre strength should be taken into account for determining whether reservation upto the required limit has been reached. With respect to ruling in Indira Sawhney case that reservation in a year should not go beyond 50%, the court held that it applied to initial appointments. The operation of a roster, for filling the cadre strength, by itself ensures that the reservation remains within the 50% limit. In substance the court said that presuming that 100% of vacancies have been filled, each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate.
The Supreme Court in its judgement dated 16.11.1992 in Indira Sawhney stated that reservation of appointments or posts under Article 16(4) is confined to initial appointment and cannot extend to reservation in the matter of promotion. Prior to this judgement reservation in promotion existed.
The government felt that judgement in Indira Sawhney adversely affected the interests of SC & STs in services as they have not reached the required level. Therefore, the government felt it necessary to continue the existing policy of reservation in promotion confined to SCs & STs alone. It was in this background that the Constitution (77th Amendment) Act, 1995 was passed and came into force on 17.6.1995. Vide this amendment Article 16(4A) was introduced after Article 16(4) providing reservations in promotion.
After the Constitution (77th Amendment) Act, 1995, the Supreme Court delivered judgement in the case of Virpal Singh Chauhan, (1995)6 SCC 684, holding that a roster-point promottee getting the benefit of accelerated promotion would not get consequential seniority, as such consequential seniority constituted additional benefit and therefore, his seniority will be governed by the panel position. Thereafter, in another judgement titled Ajit Singh Januja Vs State of Punjab, (1996)2 SCC 715, the same view was reiterated by Honble Supreme Court.
In order to restore the benefit of seniority to roster promotees, which they were getting prior to above said judgements, clause (4A) of Article 16(4) was once again amended and it was provided that State could make provision for providing consequential seniority to roster promotees. This amendment was introduced vide the Constitution (85th Amendment) Act, 2001.
In R.K. Sabharwal, with respect to operation of roster system, Honble Supreme Court held that roster is to be prepared on the basis of cadre strength and that if that is done, it would ensure that reservation would remain within the ceiling limit of 50%. In substance the court said that in case of 100 point roster each post gets marked for the category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone (replacement theory).
The question which remained in controversy however, was concerning the rule of carry forward. In Indira Sawhney it was held that the number of vacancies to be filled up on the basis of reservation in a year including the carry forward reservations should in no case exceed the ceiling limit of 50%.
The government found that total reservation in a year for SCs, STs and OBCs combined together had already reached 49 ½ % and if the judgement in Indira Sawhney had to be applied, it became difficult to fill back log vacancies. According to the government, in some cases the total of the current and back log vacancies was likely to exceed the ceiling limit of 50%. Therefore, clause (4B) was introduced after clause (4A) in Article 16 vide the Constitution (81st Amendment ) Act, 2000.
The validity of aforesaid amendments of Article 16 of the Constitution came to be decided by a Constitution Bench of Honble Supreme Court in M.Nagraj Versus Union of India, AIR 2007 SC 71.
In M.Nagraj case, Honble Supreme Court held that constitutional amendments by which Article 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the over all efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs & STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub classification between OBC on one hand and SCs & STs on the other hand as held in Indira Sawhney, the concept of post based roster with in built concept of replacement as held in R.K. Sabharwal.
The Honble Supreme Court in above said judgement upheld the validity of impugned amendments, but the question regarding actual implementation was left open to be decided on the facts of each case.
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