(1) This writ appeal and the writ petition involve a common question as to the interpretation of Art. 16(4) and Art. 15(4) of the Constitution of India. They can therefore be conveniently disposed of under one common judgment.
(2) The writ appeal is from the order of our learned brother, Gopalakrishnan Nair J., given on 26-11-1964 by which he dismissed the writ petition in limine
(3) The writ petition 1475/64 is filed under Art. 226 of the Constitution for the issue of a writ of certiorari for bringing up the record relating to the Government of India communications Nos. 15/5/61-SCT-IV dated 14-8-1961 and F. 5-3-63-SCH-IV dated 5/4/1963 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 because of G.O. ms. 913 dated 11-8-1964 by which the rules were amended, the petitioners have been deprived of their rights. Their contention is that the said G.O. is ultra vires and the Public Service Commission therefore could not have issued the Notification without recognizing the rights of the petitioners to appear for the said examinations as their age is well within the concessions given prior to the said G.O.
(5) In the Writ Petition 1475/64 the validity of G.O. 301 dated 3-2-1964 under which the backward classes list is cancelled and the concessions granted to the members of backward classes in regard to the educational facilities are withdrawn is questioned.
(6) Mr. P.A. Chowdhary, the learned Counsel for the petitioners contended that both for the purposes of Art. 16(4) and Art. 15(4) of the Constitution the criteria for determining the backward classes can be only the caste as the term 'backward classes' is confined to the Hindu castes which are backward socially and educationally. His contention is that the words 'socially' and 'educationally' as well as 'Scheduled-castes' and 'Scheduled Tribes' appearing in Art. 15(4) are absent in Art. 16(4). His submission therefore is that the meaning given to the term 'backward classes' will differ in so far as these two articles are concerned. His further contention is that when Scheduled castes consist mainly of several castes compendiously called as Scheduled castes and they are given the benefits of Art. 15(4), and Art. 16(4) the list of backward classes can also be compiled on the exclusive basis of castes and those communities also can be extended the same benefits. He contended that the State Government in cancelling the list of backward classes even for the purposes of Art. 16(4) committed an error as they did not understand the implications of the Supreme Court decision in regard to Art. 15(4). In his submission, that decision does not apply to a case falling under Art. 16(4). He also contended that the Governor was not competent to issue the impugned G.O. and questioned the action of the Government in withdrawing the concessions in view of the instructions given by the President in the Memorandum on the report of the Backward classes Commission which was submitted to the Parliament under Art. 340.
(7) Any answer to the questions 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 beremedied as speedily as possible. The principle of equality originally was a common man's protest against the gross inequalities created b the superior claims of the higher classes in old societies. The idea of equality has therefore grown out of the odes of privileges. These inequalities and privileges persisted till the day when the Constitution was inaugurated. It had become plain that one who lives in an atmosphere of frustration, a natural outcome of inequality in opportunity had no aspirations. He accept his place in society which accident of birth had given him as a permanent condition of his life. It is in this way that the faculty of creativeness was lost and the bulk of the population had become 'animate tools.'
(8) But, the equality which the Constitution guarantees is not an absolute equality, for it is an impossible ideal. Nature itself has created such vital differences between men that no power can make and keep them equal. Equality of ability, of efficiency, and of physical power are unknown. Inequality and wretchedness were to be found in the old hierarchical caste system. Whatever may have been the origin of the caste system in course of time it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later overburdened with considerations of purity based on ritual concepts and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to a feeling of superiority and inferiority and to foster narrow caste loyalties. There was hardly any free inter-course between different castes. It was a social taboo. It is expected that a new outlook of human society will gradually come into being. It is an outlook founded on the demand of equality of personal status for all men and women, what is called an equalities society which recognises the doctrine that all men are born equal and should be regarded as equal in dignity, privileges, rights, power etc., in other words, the opposite of the hierarchical principles in the social sense. Under this pattern of society it is postulated that there would be no classes by which power and place would descend to the families, but all status will equally be within the grasp of each member of the body politic.
(9) When we talk of equality it means equality of various kinds. It means civil equality, political equality, social 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 their abilities in their full stature.
(12) Equality thus involves first of all absence of legal discrimination against any one individual, group, class or race, next equal claims to adequate opportunities for all, then claims to a minimum of education, housing, food and guarantees against economic insecurity.
(13) Some important factors in this respect cannot however be ignored. Social equality cannot be forced upon people by the laws of the State. Unless the sentiment of equality produced great changes in our social habits and social institutions, social equality is a difficult ideal to attain. But is the sentiment of social equality is carefully and wisely cultivated, it is sure to make a considerable addition to the realisation of social justice.
(14) Likewise economic equality involves sufficiency for all to satisfy their primary needs. Any social organisation which allows some to starve quietly and others to have abundance denies to man what enables him to be a man. It produces a society of social decrepits. Such a society of unequals according to Mathew Arnold 'materialises our upper class, vulgarises our middle-class and brutalises our lower'. It is therefore manifest that if a society of social equals is to be constituted, it can be built only on a foundation of economic equality. The economic injuries that have not yet been removed are many and apparent. What must follow is that the State has to guarantee to all the citizens access to the means of satisfying their primary needs without which life will be meaningless. This amounts to protecting the weak and limiting the power of the strong. Equality thus is a 'problem of proportions'. It necessarily implies a certain levelling process in order to reduce the inequalities and disparities. It must be recognised that in ultimate analysis the real roots of social inequality are mainly economic. Equal opportunity, however, does not mean identical opportunity for all. After all, as stated earlier, some natural features cannot be ignored. The inherent worth of an individual cannot be ignored. Democracy in fact affirms that each individual is a unique adventure of life.
(15) These then are the great principles embodied in our Constitution. These are the purposes for which various declarations are made and these are the ends to which their enunciation is directed.
(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 bringout 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 means of production to the common detriment. It also states that the citizens would have equal rights to an adequate means of livelihood and that there would be equal pay for equal work etc. In short, there shall be economic democracy, as Dr. Ambedkar put it. Art. 46 which is more material for our purpose directs that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled castes and Scheduled Tribes, and shall protect from social injustice and all forms of exploitation.
(17) Arts. 14, 15(4) and 16 which constitute the fascicles of the important aspect of equality are also relevant for our purpose.
(18) While Art. 14 offers equality before the law to all persons including aliens, Art. 15(4) is limited to citizens, but its scope is very wide. Clause (4) was introduced in 1951 in Article 15(4). That provision has brought Art. 15(4) and Art. 29 in line with Art. 16(4), Art. 46 and Art. 340. While Art. 15 deals also with educational facilities, Art. 16(4) deals with a limited subject viz., employment or appointment by the State Art. 15(4) is more general in its application and deals with all cases of discrimination which do not fall expressly under Art. 16(4) What Art. 14 provides is that the State shall not deny to any person equality before the law, or the equal protection of the laws within the territories of India. What is meant by equality in this Article is equality amongst equals. It does not provide, as stated earlier, for an absolute equality of treatment all in all circumstances. The guarantee, it must be borne in mind, under Art. 15(4) or 16(4) is to each individual citizen and therefore they ensure equality of opportunity for all citizens relating to social and educational problems as well as relating to employment and to appointment to any office in the State. Art. 16(4)(4) is a proviso and an exception to clauses (1) and (2) of that Article. It is obvious that an exception cannot be so interpreted as to nullify or destroy the main provision. This exception is made to accelerate the advancement of backward classes which term includes Scheduled Castes and Scheduled Tribes. It is obvious that unless the essential economic interests of the weaker section of the society are promoted quickly and liberally the ideal set before the society cannot 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 under these Articles to individuals, the advancement of backward communities can be achieved in as short a period as possible. In a way therefore these exceptions are transitory and temporary. Powers under these exceptions therefore must be exercised in such a way as not to demolish the very guarantee afforded in the main Article If the reservations or other privileges given to weaker sections of Art. 16(4), are so excessive that they practically deny equal opportunity guaranteed under the two said Articles for education or for employment to members of other communities such an arrangement would suffer from a vice. In an attempt to provide liberal facilities to the weaker sections noting should be done to obliterate the main provision which would mean thwarting the growth of other sections of the society which would be equally derogatory to the main object. It must be remembered that Art. 15(4) or Art. 16(4) are not provisions which are exclusive in character, so that in looking after the advancement of these classes, the State would be justified in ignoring altogether the advancement of the rest of the society. In providing concessions to the backward classes, therefore, the fundamental rights of other communities cannot be completely and absolutely ignored. What can be the judicious relationship between the special concessions given to the backward classes vis-a-vis the rest of the society, cannot be laid down rigidly The situation differs from State to State. It also depends upon the nature of concessions and its over-all effect on the fundamental rights of others. It may be that considerations which would weigh while granting facilities under Art. 15(4) may not and cannot be absolutely identical for the purposes of concessions to be granted under Art. 16(4). Nevertheless while making any provision for backward classes under Art. 15(4) or Art. 16(4), the State must remember that the policy which is intended to be implemented is the policy which has been declared in the Preamble and in Art. 46 of the Constitution. Keeping in view the over-all structure of the society which the Constitution visualises in general to be re-constructed and in particular Arts. 38 and 39, the arrangement for the purposes of Art. 15(4) and Art. 16(4) will have to be made.
(19) To give meaning and substance to what is stated above, Art. 340 authorises the President to appoint 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 determining the criteria of backwardness the Commission recognised that a variety of causes, social, environmental, economic and political, have operated both openly and in a subtle form for centuries to create the present colossal problems of backwardness. Economic backwardness is the result and not the cause of many social evils of the present day. It also found it difficult to group sections of people under certain occupations. The Commission, however, thought that it.
'Is justified in interpreting the terms of reference as mainly relating to social hierarchy based on caste. Caste generally depends upon birth; it may also depend upon habits and it may create further cleavage due to conversions and denominational differences.'
After considering the social conditions and the causes for backwardness it recommended the adoption of the following criteria for general guidance:
1. Low social position, in the traditional caste hierarchy of Hindu society.
2. Lack of general educational advancement among the major section of a caste or community.
3. Inadequate or no representation in Government service.
4. Inadequate representation in the field of trade, commerce and industry.
In spite of this suggested criteria the Commission formulated lists of other backward classes solely on the basis of caste. It is thus obvious that the Commission could not find objective tests and criteria for classifying socially and educationally backward classes. The Government of India therefore addressed the State Governments to make and hoc surveys for determining the precise criteria for the purpose. The replies received from the State Governments were not, however, found helpful. The State Government and the Government of India therefore requested the office of the Registrar General of India to conduct at hoc surveys with a view to determine the criteria for defining the socially and educationally backward classes. The Registrar General finalised the report after conducting a survey in three different States. A preliminary analysis of the data collected indicated that it might be possible to draw up a list of socially and educationally backward occupations on the basis of-
(a) any non-agricultural occupation in any State in India in which 50 per cent or more of the persons belong to the Scheduled Castes or the Scheduled Tribes, 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 Rs. 1,000 per year per family might be fixed on the ground that per capita income in the country side did not exceed Rs. 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 to Parliament, it appears that the Central Government requested the State Government to continue to render every possible assistance and to give all reasonable facilities to the peel who are included in the existing lists, and to such others, who, in their opinion, deserve to be considered as socially and educationally backward in the existing circumstances. It suggested that after the necessary criteria have been prescribed and lists have been prepared on their basis, the State Governments will proceed to take steps to implement action according to those lists in supersession of the previous ones. It however appears that the Government of India has now given up the effort of preparing a list of other backward classes after determining the criteria. Instead the Government of India seems to have adopted the economic condition of a family as the basis for extending facilities to socially and educationally backward classes in so far as education is concerned. In regard to reservation of seats for employment under Art. 16(4) or other allied privileges the Government of India has not so far taken any decision. In the central services therefore no provisions made in regard to 'other backward classes.'
(23) On the said lines the Andhra Pradesh Government adopted economic criteria as the basis for affording facilities in the field of education and has withdrawn the reservations and other facilities given under Art. 16(4). Thus the educational facilities which were given on the basis of the lists earlier prepared and on the basis of which the employment facilities also were given to the other backward classes, have been completely withdrawn and arrangements have now been made to extend economic help to those who want assistance to further their education and no arrangement so far has been made in regard to making any provision under Art. 16(4). We are told that the State Government has appointed a Committee to go into this question and to suggest criteria for determining the list of backward classes on the basis of which facilities under Art. 16(4) could be given . This appears to us to be the conclusion from the material which has been placed before us.
(24) While G.O. Ms. 301 dated 3-2-1964 and G.O. 1739 dated 8-7-1964 relate to the provision made for education under Art. 15(4), G.O. Ms. 1899 dated 19-12-1960, G.O. 44 dated 10-1-1961, and G.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 of caste and which were adopted for the purposes of reservation in public services are no longer in force. As the question of preparing separate lists is under the consideration of the Government, the individual case of one Smt. P.M. Sarojini was refused to be considered on the basis of those lists. G.O. 621 dated 26-5-1964 answers some of the points which were raised by the Departments, and clarifies the position. According to that G.O. schedule II to Part I of the Andhra Pradesh State and Subordinate Services Rules was being dealt with effect from 1-4-1964. The Government however continued the facilities extended to the Scheduled Castes and Scheduled Tribes. It also decided that the seats which were reserved for backward classes would be open for all other classes from 1-4-1964. It however stated that all the appointments including promotions and transfers should be made only on emergency basis except in the case of Scheduled castes and Scheduled Tribes. G.O. Ms. 804 of 14-7-1964 modified G.O. Ms. 621 mentioned above and directed that appointments, including promotions and transfers may be made on a regular basis on and after 1-4-1964. Next comes G.O. Ms. 913 dated 11-8-1964 which is impugned in the Writ Appeal. The Government of the State in exercise of the powers conferred on him under Art. 309 of the Constitution amended certain rules, the effect of which is to cancel all the privileges given to the backward classes according to the rules previously in vogue. The last G.O. Ms. 1073 dated 25-9-1964 prescribes the uniform age only for the Scheduled Castes and Scheduled Tribes while giving weight age. It will thus be seen that under the above said order of the Governor, the concessions which were in existence in regard to the employment under Art. 16(4) have been completely withdrawn in so far as the backward classes were concerned but they were kept in fact as far as the Scheduled Castes and Scheduled tribes are concerned. We have already stated that under the two G.Os. educational facilities which were based on backward classes lists were also withdrawn and instead facilities were granted irrespective of caste to all those whose economic condition according to that order entitled them to get.
(26) From the aforesaid it would be almost evident that the action which the State Government has taken is quite in consonance not only with Article 15(4) 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=(AIR 1951 SC 229) was that 'the reservation of posts in Government service (in this case post of District Munsif) 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 citizen under Art. 16(1) and (2). The communal G.O. is repugnant to the provisions of Article 16(4) and is as such void and illegal.' The question that under Art; 15(4) of the Constitution caste cannot be the sole or dominant basis for determining the criteria of backwardness is now concluded, See. M.R. Balaji v. State of Mysore, : AIR1963SC649 , and Chitralekha v. State of Mysore, : 6SCR368 . The argument that the scheduled castes consist only of castes and since that is recognised for the purposes of Art. 15(4) and Art. 16(4), there can be no objection in recognising the same criteria for backward classes cannot be accepted as sound. It must be remembered that sub-clause (24) and (25) of Art. 366 define Scheduled Castes and Scheduled Tribes respectively. The Constitution itself recognises, irrespective of the fact whether the Scheduled Castes consist merely of castes or not, the Scheduled Castes are to be regarded as backward classes and that is why special mention in regard to the Scheduled Castes is made in Art. 15(4). Its absence in Art. 16(4) in our opinion does not make any difference because the term 'backward classes' used in that Article would naturally include scheduled castes and scheduled Tribes. See Rangachari v. General Manager, Southern Rly., : AIR1961Mad35 and Devadasan v. Union of India, : (1965)IILLJ560SC . As stated earlier, it was perhaps not possible at the time when the Constitution was framed to determine any criteria as to what would constitute backward classes. That is why Art. 340 leaves it to a Commission to recommend the same and the President to determine. As is evident the President has so far not decided the list of other backward classes nor has the Government of India or any State so far determined the criteria in regard to Art. 16(4). It is however well settled that the list of backward classes cannot be prepared merely on the basis of caste Gajendragadkar, J., as he then was, in : AIR1963SC649 elaborately considered the social as well as educational aspects for determining backwardness. His Lordship observed:
'Therefore in dealing with the question s to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes 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 determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf.'
Repelling a similar contention advanced before the Supreme Court Subbarao, J., in : 6SCR368 if we may say so, tersely put it:
'While this court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class. To put it differently, the authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons; but, if it does not, its order will not be bad on that account, if it can ascertain the backwardness of a group of persons on the basis of other relevant criteria.
The learned judge went on to observe:
'The important factor to be noticed in Art. 15(4) is that is does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression 'classes' is used in cl.(4) of Art 15(4) as there are communities without castes, if the iteration was to equate classes with castes, nothing prevented the makers of the Constitution to use the expression 'backward classes' or 'Castes'. The juxtaposition the expression 'Backward classes' and 'Scheduled Castes' in Art. 15(4) also leads to a reasonable inference that the expression 'classes' is not synonymous with castes. It may be that for ascertaining whether a particular citizen or group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong.'
It is thus clear that the term 'backward classes' is not confined to Hindu backward classes, nor does, it mean the castes amongst Hindus only, Determination of backward classes on the basis of castes would therefore bent only derogatory to Arts. 15(4) and 16(4) but would also go quite contrary to the avowed principles enunciated in the Constituted as discussed above.
(27) We also see no force 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'. All those who deserved economic assistance under the previous arrangement for advancement of education would continue to get under the new criteria based on economic considerations. It is only those who were getting the assistance without deserving it that are, perhaps, left with a grievance. The economic basis therefore not only removes the above said defects, but puts the assistance on equitable and socially just basis, and extends a helping hand to all those who really deserve such assistance for their advancement in education. We have no hesitation in rejecting the contention that economic consideration cannot be the basis for determining any assistance to be given under Art. 15(4). We are fortified in this conclusion by the decision in AIR 1964 SC 1828.
'An order of the Government making a classification of socially and educationally backward classes on the basis of economic condition only is not bad because it has not been done by taking into consideration the caste also. The authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons; but if it does not, its order will not be bad on that account, it can ascertain the backwardness of a group of persons on the basis of other relevant criteria.'
(28) The argument that castes cannot be the sole or predominant basis for determining the list of backward classes may be good for Art. 15(4), but is not good for Art 16(4), is also devoid of any substance. The term 'backward classes' appearing Art. 16(4) cannot be, in our opinion, decided exclusively or predominantly on the basis of caste. The following decisions of the Supreme Court lend support to this conclusion.
(a) General Manager, Southern Rly. V. Rangachari, : (1970)IILLJ289SC .
(b) : (1965)IILLJ560SC .
A reading of that Article would reveal that to invoke cl.(4) of Art. 16(4) two conditions are necessary: firstly there must be a backward class of citizens, and secondly the said class in the opinion of the State is not adequately represented on the services of the State Reservation can be made only when these two conditions are complied with. Excessive reservation, the above said cases decide, would be bad in law, as it will be derogatory to the main clauses of Art. 16(4). On the same analogy if castes are to be the sole criteria, when the other castes 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 Art. 16(4). It is true that economic consideration may not form the basis for the reservation of appointments or posts in favour of any backward class of citizens, nor the principle 'greater the poverty higher the post the person will get' can be accepted as sound. That does not appear to be also possible.
(30) Art. 335 of the Constitution declares in unequivocal terms that while the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or of a State, the maintenance of efficiency of administration cannot even in that case be lost sight of. The criteria therefore which may ultimately be found for the purposes of Art. 16(4) will have to keep in the forefront the consideration of efficiency administration. It is not for us to lay down even broadly as to what should form the basis for determining the criteria for the purposes of Art. 16(4) but are clear in our opinion that caste cannot be exclusive or the dominant consideration for determining the backward classes for the purposes of Art. 16(4). Admittedly the list which was in vogue till 1-4-1964 was exclusively based on caste. The Government therefore was perfectly justified in cancelling that list even for the purposes of Art. 16(4) and although for the time being assistance for other backward classes is not given, we have no reason to believe that the Committee which is appointed by the State Government will not be in a position to determine, keeping in view the purpose of Art. 16(4) in the light of other provisions of the Constitution, the criteria of backwardness. Our concluded opinion therefore is that the lists which were in vogue were bad both for the purposes of Art. 15(4) and Art. 16(4) and the State Government was justified in cancelling them. The petitioner therefore cannot make any grievance of that.
(31) It was contended that the Governor could not have issued G.O. 913. We do not see any force in it. Under Art. 309 it is the Governor who can make rules regulating the recruitment and the conditions of service until provision in that behalf is made by the legislature. Admittedly no legislative measure so far has been enacted. The Governor therefore continues to have the power of amending service rules. It is only under that power that the Governor has issued the impugned G.O. and no fault can therefore be found in his action. Jayantilal Amratlal v. F.N. Rama : 5SCR294 .
'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 President only to appoint a Commission and to present the report together with the explanation as to the action taken there on before each House of Parliament. Nowhere does it provide that the President can issue any instructions to the States which will have a binding force. A reading of what is contained in that Memorandum would indicate that the State Governments have only been requested to continue to extend the assistance not only on the basis of their existing lists, but also to others, who deserve such help. When the Supreme Court has found such lists as bad as they were based on caste, the explanation contained in the Memorandum cannot have a greater validity than those decisions, in the absence of any constitutional provision in that behalf. It has been made clear above that the Central Government itself has now dropped the idea of preparing the backward classes lists on the basis of caste, and on the other hand has advised the State Governments to take their own decision. Arts. 15(4) and 16(4) enable the backward classes. It is for the State Government therefore to make any valid provision. We do not therefore think that the request made in the Memorandum to the State has any binding force on the States.
(33) It was then contended that the reversion of the appellants violates Art. 311 of the Constitution. The promotion was given on a temporary basis Admittedly they were not made permanent. It is now a firmly settled rule of law that reversion by way of punishment alone would be attracted by Art. 311 when their promotion itself was bad because it as based on a list which was void, their reversion to the original posts because of the cancellation of the list cannot be said to have effected by way of punishment. It does not leave any kind of stigma on the appellants. We do not therefore think that Art. 311 has been violated in the case of the appellants in any manner.
(34) Mandamus can be issued only when a person is under a legal, not merely optional, duty to perform some function of a public nature which attaches to his office and refuses or omits so to do. He may be orders by mandamus to perform the duty on pain of liability for contempt of Court. It is obvious that Mandamus is not applicable to that which is purely discretionary. It lies in respect of ministerial acts but certainly does not lie in cases of discretionary acts. Even otherwise 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 power under Art. 15(4) or Article 16(4). When the Article says that the State Government may provide for some reservation of posts for backward classes, it is not for the Court to impose its views of what ought to have been done, for the Constitution intended that the power should lie with the State Government and not with the Court. The Court cannot concern itself with the mere merits of the case. The Court's only function is with regard to the legality of what is done. It is not every mistake or aberration which affects legality; it is of the essence of discretion that it involves the power to make mistakes. The Court has necessarily to draw line between the mistake made intra vires and the mistake made ultra vires. Acting perversely is not acting ultra vires. The contention therefore that the lists were withdrawn because of wrong reading of the decisions of the Supreme Court, can have no force. We have already seen that there was no question of misreading the judgments of the Supreme Court. The Supreme Court unequivocally held that the backward classes lists cannot be prepared on the basis of castes. We have also held that the same principle would apply to the lists prepared under Art. 16(4). The State Government therefore has not committed any mistake in withdrawing the lists, as they clearly offend both Arts. 15(4) and 16(4) of the Constitution. We do not therefore think that in with drawing the lists the State Government did not bona fide or validly exercise the discretion which the Constitution vests in it. This Court therefore cannot in a discretionary matter issue a writ of Mandamus.
(35) In the view which we have taken we do not think it necessary to attach much importance to a technical ground that the relief sought by the petitioners was only in regard to the Notification issued by the Public Service Commission and that the impugned G.O. was not directly asked to be quashed.
(36) For all these reasons we see no force in the Writ Appeal as well as in the writ petition. They are therefore dismissed. In the circumstances of the case, however, we make no order as to costs.
(37) Appeal and petition dismissed.