P. Govindan Nair, C.J.
1. The prayers in this petition are:
(a) declare Rule 13AA of the Kerala State and Subordinate Services Rules to be illegal, ultra vires and unconstitutional ;
(b) issue a writ of mandamus compelling the State to forbear from giving effect to Ex. P 2, and
(c) issue such other writs, orders and directions as or are deemed just and proper on the fact and circumstances of the case.
2. This petition was filed on 15th March, 1972 and the order sought to be quashed, Ext. P2, is dated 13th January, 1972. During the pendency of this writ application an order Ext. P 6 was passed on the 11th January, 1974 extending the period granted by Ext. P 2 order to members of the Scheduled Castes and Scheduled Tribes to pass the tests for promotion from the category of lower division clerks to that of upper division clerks from 13th January, 1974 'to cover a period during which two tests are held by the Public Service Commission and the results thereof published.' By an affidavit dated 27th January, 1974 Ext. P 6 order as well as the orders mentioned in paragraph 4 of that affidavit and Ext. P 7 order dated 31st October, 1972 making further promotions are also sought to be set aside.
3. The petitioner is a lower division clerk working in the Registration Department of the State. For becoming eligible to be promoted as upper division clerks on the basis of seniority, the lower division clerks in the department will have to pass (1) Account Test (Lower), (2) Kerala Registration Test and (3) Test in the Manual of Office Procedure. The petitioner had passed all the tests by 2nd November, 1971. In view of certain concessions that were given to the members of the Scheduled Castes and Scheduled Tribes, they Were able to obtain promotions earlier than the petitioner though they had not passed the tests referred to. The Government appears to have given concession after concession to the Scheduled Castes and Scheduled Tribes. These are detailed in paragraph 8 of the affidavit in support of the petition and may usefully be extracted:
8. As mentioned earlier, members of the Scheduled Castes and Tribes had already been enjoying exemption from some of the tests for a long time past. Thus, even before the formation of Kerala State, the T. C. Government had issued orders on 14th June, 1956 directing that the standard of qualification should be lower for the members of Scheduled Castes and Tribes, than compared to others, in the matter of examinations relating to the various tests By G.O. dated 27th June, 1958, it was further directed that the period of exemption from passing tests be extended by 2 years, in the case of such members. Again, as per G.O. dated 2nd January, 1961, the period of exemption to Scheduled Castes/Tribes was further extended to 3 years. By G.O. dated 14th January, 1963, a unified Account Test (Lower) and Test in Office Procedure were introduced, replacing the old tests; and as this was treated a new test, all persons who were formerly in T.C. or Madras service got two years' time to pass the test; and members of the Scheduled Castes/Tribes got extra time, as per the orders earlier mentioned. True copy of the G.O. dated 14th January, 1963, is produced herewith and marked as Exhibit P3. Before this time expired, a circular was issued on 9th February, 1968 granting seven years time (from 14th January, 1963) to members of the Scheduled Castes and Tribes to pass the unified tests. This period was due to expire on Nth January, 1970; but on 13th January, 1970, G.O. MS. 12/70/PD. was issued extending the time for another year, i.e., upto 14th January, 1971. Again, on 11th January, 1971, another G.O. was issued extending the period by still another year. True copy of this G.O. is produced herewith and marked as Exhibit P4. The present rule (Exhibit P1) and the notification (Exhibit P2) now grant time for yet another 2 years.
4. By Ext. P1 amendment, a new rule, Rule 13AA, has been inserted into the Kerala State and Subordinate Services Rules. That rule is in these terms:
13AA. Notwithstanding anything contained in these rules, the Government may, by order, exempt for a specified period, any member or members, belonging to a Scheduled Caste or a Scheduled Tribe, and already in service, from passing the tests referred to in Rule 13 or Rule 13A of the said Rules.
5. Pursuant to this provision, which cams into force on the 13th January, 1972, the same day the order Ext. P2 was passed granting 'temporary exemption to members already in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and special or departmental tests) for a period of two years.'
6. The benefit of the above exemption will be available to those employees belonging to the Scheduled Castes and Tribes who were already enjoying the benefits of temporary exemption from passing newly prescribed tests under General Rule 13A. In their case the temporary exemption will expire only on the date of expire of the temporary exemption mentioned in para (2) above or on the date of expiry of the existing temporary exemption, whichever is later. The exemption granted by the order Ext. P 2, in almost all cases would have expired on the 12th January, 1974. Then the order Ext. P6 already referred to was passed on the 11th January, 1974 giving further exemption already referred to.
7. On the basis of these exemption orders, several promotions have been effected and these have been detailed in paragraph 4 of the affidavit dated 27th January, 1974 filed by the petitioner and that paragraph is extracted:
4. The petitioner has already produced Exhibit P5 order dated 23rd April, 1972 of the 2nd respondent, where-under 12 L.D. Clerks were promoted. All the 12 named in Exhibit P5 are members of the Scheduled Castes/Tribes without test qualification- By order No. E4-10119/72 dated 15th June, 1972 of the 2nd respondent, 19 L.D. Clerks were promoted asL.D. Clerks, of which 5 were unqualified Scheduled Castes/Tribes hands, and 14 qualified. Again, by order No. E4-10119/72, dated 29th September, 1972, another 8 promotions ware ordered, of which only two were qualified, and the remaining 6 were unqualified Scheduled Castes hands. Still another set of promotions were made by order No. E4-10119/72, dated 31st October, 1972 and this took in 7 unqualified hands (Scheduled Castes/Tribes), and one qualified. Later, by order No. E4-3854/72, dated 15th November, 1972, one more unqualified hand was promoted. On 8th December, 1972 another order was issued (No. E4-10119/72 of 2nd respondent) promoting three unqualified Scheduled Castes hands, Of the above orders the petitioner has been able to get a copy of the order dated 31st October, 19/2 only, and it is produced herewith and marked as Exhibit P7.
It was also stated by counsel for the petitioner that, after 13th January, 1972, out of the 51 vacancies that arose in the category of upper division clerks in the year 1972, 34 were filled up by Scheduled Castes members who did not possess qualifications and only the remaining 17 were given to qualified hands. It was contended that if so many unqualified hands had not been promoted, the petitioner would have had a chance not only to be promoted as an upper division clerk but he would have become a Junior Superintendent as 23 posts of Junior Superintendents had been additionally sanctioned.
8. Counsel for the petitioner contended that Rule 8AA of the Kerala State and Subordinate Services Rules and the orders Exts. P2, P6 and P7 and the various other orders referred to in paragraph 4 of the affidavit dated 27th January, 1974 already extracted earlier in this judgment are in clear violation of the guarantee under Clauses (1) and (2) of Article 16 of the Constitution of India. Clauses (1) and (2) of Article 16 are in these terms:
16(1). There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for. or discriminated against in respect of, any employment or office under the State.
The only exception in that Article to the guarantee under 16(1) and 16(2), relied on for the purpose of supporting the amendment as well as the various orders, is that contained in Article 16(4) which also we may extract:
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.
9. It is now very well established that Article 16(1) and (2) embodies guarantees in regard to matters other than the provision for reservation of posts of any backward class of citizens which can be done under Article 16(4). In General Manager, Southern Railway and Anr. v.Rangachari : (1970)IILLJ289SC , there is a discussion of the scope of Article 16(1), (2) and (4). We shall read the relevant part of paragraph 21 of the judgment:
On one point in relation to the construction of Article 16(4) the parties are in agreement. It is common ground that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and (2) do not fall within the mischief of non-obstinate clause in Article 16(4). For instance, it is not denied by the appellants that the conditions of service relating to employment such as salary, increment. gratuity, 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 Article 16(4). That is why we have just observed that part of the ground covered by Article 16(1) and (2) is admittedly outside the scope of Article 16(4).
10. It is also well-established that there is no presumption that any action under Article 16(4) is either reasonable or justified even prima facie as in the case of classifications made for the purpose of Article 14 of the Constitution. When such a presumption is available, it will be for the person asserting that the classification is unreasonable or unjustified to establish that it is so. There is no such burden on a person who relies on the guarantees under Article 16(1) and (2) of the Constitution. The Supreme Court said so in Kathi Raning Rawat v. State ofSaurashtra : 1952CriLJ805 .
7. All legislative differentiation is not necessarily discriminatory. In fact, the word 'discrimination' does not occur in Article 14. The expression 'discriminate against' is used in Article 15(1) and Article 16(2), and it means, according to the Oxford Dictionary, 'to make an adverse distinction with regard to; to distinguish unfavorably from others'. Discrimination thus involves an element of unfavorable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the Legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies.
11. It is clear from Rule 13AA that the rule is intended to apply only to members belonging to the Scheduled Castes and Tribes. The provision is, therefore, clearly against Article 16(2) of the Constitution and unless it can be brought under the proviso contained in Article 16(4), the provision must be struck down as infringing Article 16(2). The effect of the exemption granted is certainly against the petitioner and those who are similarly placed. So the question is whether either the Rule 13AA or the orders Exts. P2. P6 and P7 implementing that rule and the various orders mentioned in paragraph 4 of the affidavit dated 27th January, 1974 can be supported under Article 16(4). What has been done is not to reserve appointments or posts in favour of any backward class of citizens or of Scheduled Castes and Tribes. As a matter of fact reservations had already been made in the matter of appointments or posts. What has been attempted by Rule 13AA is to exempt persons from possessing the necessary qualifications. The passage that we hae extracted from the decision in General Manager, Southern Railway and Anr. v.Rangachari : (1970)IILLJ289SC , clearly shows that Article 16(4) cannot be utilised for such purposes though qualification as such is not mentioned in the passage. The principle stated therein, we have no doubt, must apply to the qualifications prescribed for posts. The action, therefore, cannot be supported under Article 16(4). Apart from this, the provision in Article 335 of the Constitution also has not been kept in mind by the 1st respondent. That Article is in these terms:
335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
A consideration of the claims of the members of the Scheduled Castes and Tribes must be consistent with the maintenance of efficiency of administration. To grant wholesale exemptions from the qualifications which are considered necessary for the purpose of satisfactory discharge of duties of a particular post and for long periods enabling unqualified persons to occupy posts which must be occupied by qualified persons that are available can never be treated as conducive to the maintenance of the efficiency of administration and in this particular case the choosing of the unfit has been so heavy, (34 out of 51 persons) that it is clearly arbitrary and unreasonable and directly violative of Article 335 of the Constitution.
12. Counsel for the respondents invited our attention to Article 15(4) of the Constitution and contended that apart from the exception introduced by Article 16(4) to the guarantee under Article 16(1) and (2), the general provision in Article 15(4) will enable the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Tribes and the provision in Rule 13aA as well as the orders Exts. P2, P6, P7 and those in paragraph 4 of the affidavit dated 27th January, 1974 can be supported under Article 15(4). We do not think that this argument is sound. In matters of employment, we consider that the relevant provisions are those contained in Article 16 which is a special manifestation of the general guarantee under Article 14 and, to a limited extent of that under Article 15. To accept the argument that Article 15(4) can be utilised for modifying the guarantee under Article 16(1) and (2) would be to make Article 16(4) otiose for the exemption under Article 15(4) is far more wide than that under Article 16(4). Article 16(4) would, if such an interpretation is accepted, become a dead letter, an unnecessary provision, redundant and useless. It is difficult to accept an argument which will so reduce a constitutional provision to something meaningless, unnecessary and redundant.
13. Apart from what we have stated above even by applying Article 15(4) it is not possible to take away the guarantees under Article 16(1) and (2). This Article also insist that the State shall not discriminate against any citizen on grounds only of religion, race or caste. Provisions very similar to that contained in Article 16(1) and (2) which, as has been indicated already deal specifically with matters of employment to any office in the State. No exemption can ever be utilized for the purpose of obliterating the provision itself. The matter has been dealt with inT. Devadasan v. Union of India and Anr. : (1965)IILLJ560SC . The relevant observations are in paragraphs 12, 13 and 16 of the judgment which read as follows:
12. It is an accepted fact that members of the Scheduled Castes and Tribes are by and large backward in comparison with other communities in the country. This is the result of historical causes with which it is not necessary for us to deal here. The fact, however, remains that they are backward and the purpose of Article 16(4) is to ensure that such people, because of their backwardness should not be unduly handicapped in the matter of securing employment in the various services of the State. This provision, therefore, contemplates reservation of appointments or posts in favour of backward classes who are not adequately represented in the services under the State. Where, therefore, the State makes a rule providing for the reservation of appointments and posts for such backward classes it cannot be said to have violated Article 14, merely because members of the more advanced classes will not be considered for appointment to these posts even though they may be equally or then more meritorious than the members of the backward classes or merely because such reservation is not made in every kind of service under the State. Where the object of a rule is to make reasonable allowance for the backwardness of members of a class by reserving certain proportion of appointments for them in the public services of the State what the State would in fact be doing would be to provide the members of backward classes with an opportunity equal to that of the members of the more advanced classes in the matter of appointments to public services. If the reservation is so excessive that it practically denies a reasonable opportunity for employment to members of other communities the position may well be different and it would be open then for a member of a more advanced class to complain that he has been denied equality by the State.
13. That is precisely the point which we must consider in dealing with the argument, of learned Counsel that the rule violates the guarantee contained in Article 16(1) of the Constitution because the excessive reservation permitted by it almost destroys the guarantee contained in the provision. In order to appreciate the argument it is necessary to consider the operation of the rule. Now the rule provides that 171/2 per cent of the total vacancies in a year will be reserved for being filled from amongst candidates belonging to Scheduled Castes and Tribes. It further provides that if in any year suitable candidates are not available from amongst such classes the reserved posts will be de-reserved, filled by candidates from other classes and a corresponding number of posts be carried forward to the next year. If in the subsequent year the same thing happens, the posts unfilled by candidates from Scheduled Castes and Tribes can be carried forward to the third year. In the third year the number of posts to be filled from amongst candidates of Scheduled Castes and Tribes would thus be 171/2 per cent of the total vacancies to be filled in that year, plus the total unfilled vacancies which have been carried forward from the two previous years. The rule thus permits a perpetual carry forward of unfilled reserved vacancies in the two years preceding the year of recruitment and provides addition to them of 171/4 per cent of the total vacancies to be filled in the recruitment year. In order to appreciate better the import of this rule on recruitment let us take an illustration. Supposing in two successive years no candidate from amongst the Scheduled Castes and Tribes is found to be qualified for filling any of the reserved posts. Supposing also that in each of those two years the number of vacancies to be filled in a particular service was 100. The reserved vacancies for each of those years would, according to the Government resolution, be J 8 for each year. Now, since these vacancies were not filled in those years a total of 36 vacancies will be carried forward to the third year. Supposing in the third year also the number of vacancies to be filled is 100. Then 18 vacancies out of these will also have to be reserved for members of the Scheduled Castes and Tribes. By operation of the carry forward rule the vacancies to be filled by persons from amongst the Scheduled Castes and Tribes would be 54 as against 46 by persons from amongst the more advanced classes. The reservation would thus be more than 50 per cent.
16. Further, this Court has already held that Clause (4) of Article 16 is by way of a proviso or an exception to Clause (1). A proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under Clause (4: would in effect efface the guarantee contained in Clause (1) or at best make it illusory. No provision of the Constitution or of any enactment can be so construed as to destroy another provision contemporaneously enacted therein.
The history of the enactment of Article 15(4) as laid down by the Supreme Court in M.R. Balaji and Ors. v. The State of Mysore and Ors. : AIR1963SC649 , will itself show that the purpose of Article 15(4) is to enable exemption benign de to the guarantees provided by Article 16(1) and (2) of the Constitution and arose because of the decision of the Madras High Court which held that Article 16(4) will not enable reservation being made for the purpose of the admission to the Medical College.
14. Counsel for the respondents invited our attention to paragraph 16 of the decision of the Supreme Court reported in General Manager, Southern Railway and Anr. v. Rangachari : (1970)IILLJ289SC , and to the decision of this Court in V. Hariharan Pillai v. Stats of Kerala, A I.R 1968 Kerala 43,and paragraph 7 of the decision of the Supreme Court in State of Punjab v. Hira Lal and Ors. : 3SCR267 . We are unable to find anything in these decisions and in the passages referred to which is opposed to what we have stated above.
15. Counsel then referred us to the definition of the word 'reservation' in Shorter Oxford English Dictionary reading as follows:
An expressed or tacit limitation or exception made with regard to something; the action of making an exception of this kind. To make an exception of (a thing or person); to exempt (a person) from something.
16. We are not concerned with the general meaning of the word 'reservation'. Article 16(4) permits only reservation of 'appointments or posts' and not all types of reservations.
17. Our attention was also drawn to Article 320 which emphasizes that a reference to the Public Service Commission is unnecessary either for the purpose of deciding matters falling under Clause (4) of Article 16 or in respect of the manner in which effect may be given to the provisions of Article 335. The fact that the power given to the Government can be exercised without consulting the Public Service Commission cannot give validity to the acts of Government if they do not satisfy the requirements of the constitutional provisions.
18. In the light of the discussions and the decisions of the Supreme Court which we have referred to we have no hesitation in holding that Rule 13AA of the Kerala State and Subordinate Services Rules cannot stand and that all orders passed under that rule have to be set aside. Accordingly we declare Rule 13AA of the K. S. S. R. to be void as violative of Article 16(1) and (2) of the Constitution and set aside the orders Exts. P2, P6, P7, and all orders of promotion given to the members of the Scheduled Castes and Tribes who did not possess theprescribed test qualifications. Respondents 4 to 8 to this petition have been imp leaded in a representative capacity, The State will pass consequential orders giving doe promotions to those who are entitled to it after demoting those who have been promoted and who do not possess the requisite qualifications.