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TMI Blog1965 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... and to quash the same and to issue a direction to the respondent to continue the list of backward classes which was in vogue upto the year 1959-60. 4. The material facts in regard to the writ appeal are that the two petitioner filed an application for the issue of a writ of Mandamus for declaring the notification issued by the Andhra Pradesh Public Service Commission dated 29-10-1964 inviting applications for competitive examinations for direct recruitment to posts in Group I service as ultra vires, and to issue a consequential direction directing the respondents to forbear from conducting the competitive examinations for recruitment. It was alleged inter alia that both the petitioners belong to the members of the backward classes as their castes approved in the list of backward classes which was in vogue till 1-4-1964, that the 2nd respondent cancelled the backward classes list and amended the rules in order to withdraw the privileges till then extended to the various castes included in the backward classes list It was claimed that the petitioners could have appeared for the examinations if the lists and the concessions granted to the backward classes were in vogue but be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised can be given only after understanding the scheme of the Constitution and the purpose in extending special benefits to the backward classes. From the preamble to the Constitution we get the outlines of the social philosophy which governs all our institutions, whether political or economic. It presents to the citizens an idea of a social order which they should prepare for themselves. The citizens would be engaged in a quest for democracy through the realisation of Justice, liberty, equality and fraternity. It speaks of equality of status, and of opportunity. The democracy which the Constitution accepts is based on the principles of equal freedom and equal rights for all its members regardless of race, religion, sex, occupation or economic status. The Constitution recognises the fact that there are backward classes or weaker sections in the society. The Constitution therefore puts a goal before the people of a society which will be an egalitarian society. It realised that the backwardness of several sections of the society was the result of a long period of unequal opportunity and that the situation should be remedied as speedily as possible. The principle of equality origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equality, natural equality as well as economic equality. 10. The content of equality therefore is both of negative and positive character. In its negative aspect it means first of all that special privileges of all kinds should be abolished. All barriers of birth, wealth, caste, creed and color should be removed so that no one suffers from any kind of social or political disabilities. In short, there should be no difference between a man and a man. Laski puts it 'whatever rights inhere in a another by virtue of his being a citizen must inhere and to the same extent, in me also.' 11. Equality has a positive connotation as well. It is in this sense that it means provision of adequate opportunities for all irrespective of their class, sex or religion etc. What is implied in the provision of adequate opportunities is that the State should provide suitable opportunities for all citizens without any discrimination for the full development of their intelligence. No one should be debarred from the ambitions of his life if he possesses the requisite ability. The principle of equality would be satisfied when the State extends due opportunities to all for developing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. The Constitution gave political equality on the basis of adult franchise. The two other fields in which the principle of equalities to be enforced, are the social and the economic. Viewed in this way, it will be noticed that part from the preamble the rights bring out in bold prominence certain features which must be kept in view while dealing with the special privileges conferred on the backward communities in order to advance them. While declaring the ideal of a welfare State the constitutional provisions also emphasise that the regulatory state of the past has given place to the service state of the present day. Art. 36 clearly prescribes that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Art. 39 enjoins that the State shall in particular direct this policy so that the ownership and control of the material resources of the community are so distributed a set to subserve the common good, that the operation of the economic system does not result in the concentration of wealth and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be achieved. Like Art. 15(4), therefore, Art. 16(4) authorises the State Government to take suitable steps to realise the object. It is thus clear that while a guarantee of equal treatments given to all the citizens, backward or not, during the transitional period, that is to say, a along, as the weaker sections are not sufficiently advanced, the State Government is entitled to take appropriate steps under the said exceptions to achieve the object of advancing the socially and educationally backward sections of the society. A judicious balance has therefore to be maintained between the said two claims, the claim of individual citizen to equality as well as the claims of backward sections to quickly advance. These claims do not complete with each other, nor is there any conflict between the two. In substance all will have equal opportunities without any special emphasis on any section of the society. In the larger interests of the society, therefore, for some time special emphasis will have to be laid on the advancement of the weaker sections of the society. The special privileges therefore will have to be so arranged that without materially affecting fundamental rights guaranteed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppoint a Commission to investigate into the conditions of the socially and educationally backward classes and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or the State Governments and to remove such difficulties and to improve their conditions. The Commission, after its investigation, is expected to submit a report to the President. The President under article shall cause a copy of that report together with a Memorandum explaining the action taken thereon to be laid before each House of Parliament. It is pertinent in this connection to note that under Art. 338 a special officer for Scheduled Castes and Scheduled Tribes would be appointed by the President. He has now been appointed. That Article throws certain obligations on the special officer. According to Art. 338(3) the 'other backward classes' as the President may on the receipt of the report under Art. 340 by order specify, shall be put under the care of the said special officer. 20. In pursuance of Art. 340 the President appointed a Commission on January, 29, 1953,. The Commission submitted the report somewhere in 1955. While determinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, or (b) any non-agricultural occupations in which literacy percentage of the persons depending thereon is less than 50 per cent of the general literacy in the State. In order to ensure that such a list may not include persons who are comparatively well-off and who did not stand in need of special assistance, it was suggested that an income limit of ₹ 1,000 per year per family might be fixed on the ground that per capita income in the country side did not exceed ₹ 200 and that an average family consisted of five members. 21. The conclusions of the said survey were circulated by the Central Government to all the State Governments. All the State Governments, however, do not seem to have agreed with the criteria thus suggested. Some of the States were of the opinion that the economic criteria like the upper limit of incomes as well as caste maybe taken into consideration along with occupations for classifying other backward classes. The Government of India could not however till today decide as to what criteria should be adopted in order to determine who are the other backward classes. 22. In the meanwhile from the Memorandum submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .O. 162 dated 3-2-1961 related to the amendment of rules made in regard to services. G.O. 913 dated 11-8-1964 again relates to the amendment of rules, which withdraws the facilities given to the backward classes under Art. 16(4). 25. It appears that under G.O. Ms. 559 dated 4-5-1961 'carry forward' rule was prescribed in regard to the services, and certain principles in that regard were laid down. Under G.O. 3743 dated 30-9-1963 the said G.O. was reviewed in the light of the situation which then arose. Some appointments under the above said G.O. were made before the special rules in pursuance of that G.O. could be amended. These appointments are both permanent and temporary in character. In regard to the permanent appointments the G.O. directs that they need not be disturbed. They can be however cancelled if they are found to be against the policy decision of the Government to be taken in due course. In regard to the temporary appointments it directs that they should be terminated forthwith as these appointments were made prior to the amendment of the special rules. G.O. 829 dated 6-4-1964 declared that the lists of backward classes which were drawn up on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 16(4) of the constitution, but is perfectly in accord with the decided cases. We see therefore no force in the contention of the learned Advocate for the petitioners that caste alone can be the basis for determining the backward classes. We see also no substance in the contention that the term 'backward classes' means only Hindu backward classes. The decision relied upon by the learned Advocate for the petitioners in support of this contention does not decide anything of that kind. What all was decided in Venkataramana v. State of Madras, 1951 S.C.J. 318 was that the reservation of posts in Government service (in this case post of District Munsiff in favour of any backward class of citizens cannot be regarded as unconstitutional. But the ineligibility of a Brahmin for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. This ineligibility created by the Rule of communal rotation as laid down in the Madras Communal G.O is not sanctioned by clause (4) of Article 16 and it is an infringement of the fundamental right guaranteed to the petitioner as an individual citize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerate. If the classification of backward classes of citizens was based solely on the caste of the citizens, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves. His Lordship continued: Besides, if the caste of the Group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains, or even Lingayats are socially backward or not? The test of castes would be inapplicable to those groups but that would hardly justify the exclusion of these groups in tot from the operation of Art. 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce in the contention that economic consideration cannot be the sole basis for extending facilities under Art. 15(4) of the Constitution. Once it is decided that the list of backward classes cannot be prepared solely or predominantly on the basis of caste, the State Government was left to find out other criteria to determine as to which section deserves assistance to advance socially and educationally. In the criteria previously adopted apart from the vice of caste some of its feature were academically unsound. Reservation of seats in various educational institutions including the Medical, the Engineering and the Technological Institutions, fixing the minimum marks for admission at a lower level than what is fixed for the general candidate, could not be said to be academically sound. That scheme has undoubtedly left the academic achievement in jeopardy apart from the waste it naturally involved. Any help on the basis of caste may resulting assisting even those who do not deserve such assistance merely because they belong to that caste, and also denying such help to those who deserve merely because they belong to certain castes not included in the list of 'backward classes' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are denied what they are guaranteed under the main clauses of Art. 16(4) while therefore even for the purposes of Art. 16(4) caste may be one of the several factors when can be taken into consideration for determining the criteria for backwardness under Art. 16(4) it cannot form the sole or the predominant basis. In this respect we see absolutely no difference between Art. 15(4) and Art. 16(4). We have already said that absence of some words in Art. 16(4) hardly makes any difference. The reasoning on which the Supreme Court has found the lists of backward classes prepared on the basis of castes bad under Art. 15(4), holds equally good for the purposes of Art. 16(4). 29. It may be that the economic consideration now accepted as the basis for the purpose of extending facilities under Art. 15(4) may not fully apply to any reservation or other facilities given under Art. 16(4). It may also be that some other useful criteria will have to be found out for the purposes of Art. 16(4). But that hardly means that because of these difficulties or variation in to form of extending the help, the backward classes lists can be prepared solely or predominantly on the ground of caste for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Governor has issued the impugned G.O. and no fault can therefore be found in his action. Jayantilal Amratlal v. F.N. Rama [1964] 5 SCR 294 . The power to promulgate Ordinances under Art. 123, to suspend the provisions of Arts. 268 to 279 during an emergency, to declare failure of the Constitutional machinery in States under Art. 356, to declare a financial emergency under Art. 360, to make rules regulating the recruitment and conditions of services of persons appointed to posts and services in connection with the affairs of the Union under Article 309 - to enumerate a few out of the various powers - are not powers of the Union Government; these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Art. 258(1). 32. We see also no force in the contention that the Memorandum on the report of the Backward Classes Commission when it states that the State Governments have been requested to continue to render every possible assistance and to give al reasonable facilities to the people who are included in their existing lists, is binding on the States. Art. 340 permits the Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise Mandamus is discretionary remedy and cannot be sought as a matter of course or as a matter of right. It must be remembered that Art. 15(4) and Art. 16(4) are not mandatory, but are merely enabling provisions. The State Government, therefore, may or may not make any rule or issue any executive direction for the purposes of reserving some posts for or extending other concessions to backward classes. It is also not in dispute that when the State Government can in its discretion make such rule or issue administrative instructions, it can also cancel or modify it. It was not incumbent upon the State Government to prepare any list of backward classes, nor is it incumbent upon the State Government to prepare any list of backward classes, nor is it incumbent on it now to prepare any list. Both the Articles enable the State Government to make provision for extending help to socially and educationally backward classes. The State Government therefore cannot be compelled by the issue of Mandamus to continue either what it was doing, or do something in accordance with the mandate issued. The Court cannot usurp the discretion which vests with the State Government, and exercise the enabling ..... X X X X Extracts X X X X X X X X Extracts X X X X
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