T.S. Misra, J.@mdashThis petition under Article 226 of the Constitution challenging the reservation of posts in the State Judicial Service for Backward Classes and the dependants of freedom-fighters, the ex-detenus under MISA and DISIR and their dependants raise issues which are complex and indeed of far reaching consequences.
2. The petitioners are Advocates and had appeared at the State Judicial Service Examination held in April, 1978 at Allahabad. The examination was conducted to fill 150 temporary posts of which 27 posts are reserved for Scheduled Castes, three posts are reserved for Scheduled Tribes, eight posts are reserved for the dependants of the freedom-fighters domiciled in Uttar Pradesh, twelve posts are reserved for disabled Officers of Military services and 23 posts are reserved for backward classes. The advertisement issued by the Public Service Commission also mentioned that the benefit of reservation of posts meant for the dependants of freedom-fighters would also be available to those persons who were actually detained under MISA or DISIR for six months and their dependants but this benefit shall not be available to those anti-social elements who were detained under MISA or DISIR or their dependants. Further, only those persons would be considered as freedom-fighters who had actually undergone imprisonment of six months or more. The petitioners have contended that the reservation for ex-MISA and DISIR detenus and their dependants as well as the dependants of freedom-fighters is wholly unconstitutional and arbitrary. According to the petitioners, some of the MISA detenus were in fact anti-social elements (although others were detained on political grounds) and, in any case, there is no rational basis for creating a reservation for them and their dependants. It is also stated that while under detention, the MISA detenus were being paid allowance under the MISA rule and, as such, they were getting economic support from the State. With regard to the dependants of the freedom-fighters, it is stated that the reservation for them is also discriminatory since many of the freedom-fighters are today in a well placed position both socially and economically. Even those who are not well off economically are being paid allowance of Rs. 300/- per month by the State apart from what they earn on their own-Moreover, the relaxation in age with regard to the ex-MISA and 0ISIR detenus and their dependants as well as of the freedom-fighters is discriminatory.
The petitioners also attack the reservation of posts for so-called "backward classes". According to a Government Order of the Government of Uttar Pra-desh (Annexure 3 to the writ petition), "backward classes" comprises Ahirs, Kurmis and other castes mentioned therein. The petitioners allege that many of the so-called backward castes like Ahirs and Kurmis are not economically and socially backward. Many Ahirs, Kurmis and other castes mentioned in the G. O. are big farmers and are prosperous. Many are highly educated and are occupying high offices. Others are doing well in professions such as lawyers, doctors etc.; hence it cannot be said that the entire Ahir, Kurmi or other castes mentioned in the G. O. are a ''backward Class'' within the meaning of Article 16(4). There is no economic homogeneity in these castes. As such, the argument goes on, there is no rational basis for creating reservation for them which has only been done for political motives.
3. A counter-affidavit of Prem Bam Silpkar, Assistant Commissioner, Minorities, National Integration Department, U. P. Civil Secretariat, Lucknow has been filed on behalf of the State. It is stated that the benefits of the Government Order No. 2003/40-National Integration--6-11-77 dated 20th Aug., 1977 meant for the freedom-fighters are not available to those ex-detenus under MISA who were detained for reasons other than political and that the said G. O. in express terms excludes the anti-social elements from its scope. So far as the question of reservation for backward classes is concerned, para 7 (a) of the counter-affidavit denies that the reservation has been made to favour any particular caste. The reservation is for backward classes of citizens. The caste is only a consideration for determining the social and educational backwardness of such classes of persons. The homogeneity which makes them "Backward class of citizens within the meaning of Article 16(4) is their social and educational backwardness. The castes enumerated in the schedule to the G. O. impugned in this writ petition form a class of citizens which, considered as a, whole, is socially and educationally backward in the opinion of the State Government within the meaning of Article 16(4) of the Constitution. The State Govt. is also of the opinion that the said class of citizens is not adequately represented in various services under the State. The counter-affidavit then proceeds to state that as early as in the year 1045 the Education Department of the Provincial Government had prepared a list of 59 communities that consisted of 38 castes belonging to Hindu community and 21 castes belonging to Muslim community for providing educational facilities treating them as backward classes. This list of backward classes of citizens had later been reproduced as Annexure ''B'' to the Govt. Order dated 6th Sept., 1955, a true copy of which is Annexure Al to the counter-affidavit.
After independence, the Government of India in the year 1950 had asked for a list of backward classes, in the light of the provisions of the Constitution from the State Government. The question was examined at that time by the State Government of Uttar Pradesh. The preparation of the list was entrusted to a Sub-Committee of the Cabinet and a list of 15 communities described as backward classes for the purposes of being considered for recruitment to the public services was drawn. This list has been reproduced as Annexure ''A'' to the Govt. Order dated 6th Sept., 1955 (Annexure A-1 to the counter-affidavit). Again, in or about the year 1958 the question of amalgamation of the aforesaid two lists was considered by the State Govt of Uttar Pradesh. The decision arrived at was that the list which has been attached as Annexure ''B'' to Annex. A-1to the counter-affidavit be retained as a list of backward classes of citizens for all purposes, namely, preferential treatment in the matter of recruitment in the public services and grant of educational and other facilities. This combined list replaced the two lists mentioned in the G. O, dated 6th Sept., 1955 (Annexure A-1to the counter-affidavit), vide Government Order dated 17th September, 1958, a true copy of which is Annexure A-2 to the counter-affidavit. The list drawn up and incorporated in G. O. dated 17th September, 1958 has been taken over in the Government Order dated 20th Aug., 1977 under which reservation has been made for them in direct recruitment to the extent of 15% in Class I, II and III services and only 10% for class IV services.
The counter-affidavit also refers to the Kaka Kalelkar Commission which gave its report in the year 1955. It also refers to the State Government notification dated 12th December, 1975 whereby Chhedi Lal Sathi Commission was appointed to consider the conditions of "the most backward classes of citizens" and to suggest means to improve their lot. It is contended that the said Commission collected data from various districts and other information relevant in the matter and drew up three lists. A, B and C appended to its report dated 17th May, 1977. The report of the Commission shows that, according to its calculations, "the most backward classes" were nearly 21.36%, the other backward classes among Hindus were 20.22% while among the Muslims they were 5.82% out of the total population of the State in the year 1976. In all, thus, according to the report, the backward classes (apart from Scheduled Castes and Scheduled Tribes) were found to comprise nearly 51.40% of the total population of the State in the year 1976. The Commission, therefore, recommended reservation to the extent of 29.5% for these classes in all out of which according to it, 17% should go to the most backward classes specified in list ''A'', 10% to those in list ''B'' and 21/2% to those in list ''C'', It is also mentioned in para. 7 (d) of the counter-affidavit that the specifications given in the Schedule appended to the Government Order dated 20th August, 1977 have much in common with the three lists drawn by the Sathi Commission aforesaid. In paragraph 7 (e) it is stated that the castes enumerated in the impugned Government Order considered as a whole or at least the bulk thereof were found to be socially or educationally backward by the State Government; hence reservation in their favour vide Government Order dated 20th August, 1977 was fully justified.
4. In the first instance, the petitioners have alleged that in the said competitive examination bare Acts were to ba supplied for the use of the candidates. They had come to know that some of the copies of Acts which were to be supplied to the candidates were Govt, publications which gave references to no rulings while some other copies would be of private publications which were annotated with citation of rulings. The petitioners, therefore, apprehended that those candidates who would be supplied copies of Govt. publications would be placed in a disadvantageous position as compared to those candidates who would be supplied privately published copies. They also stated that, according to the information rendered by the Joint Secretary to the U. P. Public Service Commission, no bare Acts would be supplied in Hindi. The petitioners alleged that they had throughout studied in Hindi medium in school, college and University and they would be discriminated against, along with other candidates like them, as against those candidates who had studied in English medium. A counter-affidavit on behalf of the Public Service Commission has been filed in the case denying that the copies of bare Acts published and printed by the private publishers contained citation of rulings and asserting that other private publications which were purchased by the Commission for being supplied to the candidates to the Munsifs'' examination did not contain any rulings. We find no reason to doubt the correctness of this averment made on behalf of the commission. So far as the contention regarding the supply of bare Acts in Hindi was concerned, it is to be noted that all the candidates are permitted to answer either in Hindi or in English and they have been given the liberty to answer the questions in Hindi or English. Moreover the petitioners who were the candidates for the State Judicial Service are expected to have the basic knowledge of English language. Most of the law reports are in English. Most of the legal literature is also in English. The petitioners were, therefore, expected to understand the bare Acts in English also. There was thus no discrimination in not supplying the Hindi version of the bare Acts to the petitioners. We therefore, find no force in the said contention of the petitioners and reject the same.
5. The petitioners also alleged that one of the compulsory papers is Urdu. The petitioners had never been taught in Urdu and they would be in a disadvantageous position as compared to those candidates who know Urdu. With regard to this contention, it is stated in the counter-affidavit filed on behalf of the Public Service Commission that the candidates for the U. P. State Judicial Service are required to possess working knowledge of Hindi as well as Urdu, In accordance with Rule 18 read with paragraph 2 of Appendix "E" of the U. P. State Judicial Service Rules they have, inter alia, to appear in a language paper which will be of two parts. In the second part a passage in Hindi will be chosen or prepared by the Commission and after transliteration into both Persian and Devnagri Script, will be lithographed. Each candidate is required to transliterate the passage into the opposite script, taking as original whichever script he prefers. The candidate has to specify his choice of the original script in the necessary column of the application form supplied by the Commission. This information is contained in para 2 of Appendix ''A'' of the Information leaflet. In view of this position the contention of the petitioners that they will be discriminated against is without any merit.
6. The petitioners have challenged the reservation made in favour of the dependants of freedom-fighters as well as ex-MISA and DISIR detenus and their dependants. So far as the reservation made in favour of the dependants of freedom-fighters is concerned, a Division Bench of this Court in Kumari Asha Rani Bhadoria v. The State of Uttar Pradesh (Civil Misc. Writ No. 7017 of 1974 decided on 26-3-1976) has upheld the reservation made in favour of freedom-fighters and their dependants. The question relating to the admission of the children of political sufferers also came to be considered in
The court repelled the first ground holding that it was difficult to envisage the danger apprehended by counsel or to see the kind of vagueness or ambiguity complained of by him. The rule contained the definition of a "political sufferer" as meaning a person who on account of participation in the "national movement for the emancipation of India" had suffered imprisonment or detention for a period of at least six months, or had been awarded capital punishment, or had died while undergoing imprisonment or detention or was killed or became permanently incapacitated by police or military firing or lathi charge, or lost his "job, property or other means of livelihood." This definition was held to be couched in clear and unambiguous language, besides containing sufficient details, so as to distinctively identify the persons who would fall within it. It was observed that the "national movement" must obviously mean the late struggle for the freedom of the country from the alien British rule. It was held that there were ample details in the definition not to leave any scope for arbitrariness or discrimination in its application to a candidate who claimed to be a child of the political sufferer envisaged by Clause (h) of the rule.
While considering the second ground aforesaid, the Supreme Court referred to its earlier decision in
"The definition of a "political sufferer" being a detailed one and in certain terms, it would be easily possible to distinguish children of such political sufferers from the rest as possessing the criteria laid down by the definition. The object of the rules for admission can obviously be to secure a fair and equitable distribution of seats amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Article 15(4). It is on such a principle that reservation for children of Defence personnel and Ex-defence personnel appears to have been upheld. The criteria for such reservation is that those, serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere are and were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who in consequence of their participation in the emancipation struggle became unsettled in life, in some cases economically ruined, and were therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. If that be so, it must follow that the definition of ''political sufferer'' not only makes the children of such sufferers distinguishable from the rest but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and just distribution of seats. In our view, neither of the two contentions raised by counsel for the petitioner can be accepted, with the result, that the writ petition fails and is dismissed."
7. Three basic principles thus emerge from the decision in
(1) the State has power to lay down classifications or categorise of persons from whom recruitment to the public service may be made;
(2) the principle underlying Articles 15(4) and 16(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society; and
(3) this principle may be applied to those who are handicapped but who do not fall under Article 15(4),
8. It is on the basis of these principles that reservations for children of Defence Personnel and Ex-Defence Personnel can validly be made. The application of these principles can be extended to the children of freedom-fighters who in consequence of their participation in the emancipation struggle became unsettled in life and in some cases had been economically ruined: hence they were not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. The reservation for the children of "political sufferer" was upheld by the Supreme Court in
9. The aforesaid information pamphlet (Annexure 2 to the writ petition) also provided that in the quota reserved for the dependants of the freedom fighters the ex-detenus under MISA and DISIR and their dependants who had been actually detained for at least six months for political reasons shall also be included. It was however, made clear therein that this benefit shall not be available to those ex-detenus who were anti-social. The reservation of seats for ex-detenus under MISA and DISIR and their dependants has been assailed by the petitioners. One of the grounds of challenge is that after the drastic amendments made in the Maintenance of Internal Security Act, 1971 (Popularly known as ''MISA'') during the Emergency proclaimed on 25/26th June, 1975, and the suspension of fundamental rights by a Presidential Order under Article 359 of the Constitution, the grounds of detention were not furnished to the detenus or disclosed to the courts. While a large number of persons were detained for political reasons, there were others who were also detained for being what are called anti-social elements. On behalf of the Government it has been pointed out that the reservation order itself lays down that persons detained for political reasons alone would qualify and not the anti-social elements.
Learned counsel for the petitioners, however, contended that mere mention of this qualification in the impugned G. O. does not improve matters, inasmuch as it would be difficult to ascertain whether a person was detained for political reasons or otherwise. Further, it was submitted that persons suffering imprisonment even for their political activities after Independence could not be equated with freedom fighters. As against this, it was contended on behalf of the Government that the Emergency proclaimed on 25/26th June, 1975, was of a special character and that the end of the emergency amounted to restoration of the lost liberties. We have considered both aspects of the matter. Without going into the political overtones of this argument it is enough to refer to the fact that the Supreme Court in In re The Special Courts Bill, 1978 Special Reference No. 1 of 1978 under Article 43 of the Constitution decided on 1-12-1978: (reported in
It seems thus that preferential treatment in the form of reservation for persons who suffered an equal period of imprisonment (six months) may be accepted as standing on par with like treatment for dependants of pre-Independence "freedom fighters". In both the cases, however, we need hardly emphasise that this class of reservation could not be possibly intended to continue for an indefinite period of time and should gradually be restricted and curtailed having regard to the very nature of the justification (as expounded in
10. As regards the reservation of posts for Backward Classes of citizens, a perusal of the counter-affidavit discloses that the State Government has attempted to justify the reservation made in favour of the castes enumerated by it in the Schedule to the Government Order dated 20th August, 1977 on the ground that they formed a class of citizens which considered as a whole is socially and educationally backward. A copy of the said Government Order dated 20th August, 1977, providing for reservation for backward classes is Annexure 3 to the writ petition. Para 1 of the said order sets out the extent of reservation for different categories for Class I, Class II, Class III and Class IV services. Para 2 of the Order makes provision for reservation for detenus under MISA as well as for their dependants. Para 3 provides that all previous Orders stand amended to the extent indicated in the said Government Order, Para 4 makes the G.O. operative forthwith. In para 5 it is stated that vide G.O. dated 17th Sept, 1958 there are 37 castes of Hindus and 2l castes of Muslims which are considered backward castes. The enclosure gives the list of backward castes as per G, O. dated 17th Sept, 1958.
11. In this connection the most vital questions which fall for determination are:--
(1) What is the scope and extent of the expression "Backward Classes of Citizens"? What are the tests to determine whether a group of people constitutes a "backward class of citizens." ?
(2) Whether the Government of Uttar Pradesh has validly determined as to who should be included in the "Backward Classes"? If not, whether the G.O. dated 6th Sept., 1955 and 17th September, 1958 and the G. O. dated 20th Aug., 1977 of the Government of Uttar Pradesh are a fraud on the constitutional powers conferred on the State by Article 16(4) construed in the light of Article 15(4) of the Constitution and void?
12. The expression "Backward Classes of Citizens" occurs in Article 15(4) and Article 16(4) of the Constitution which read as under:--
"15 (4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."
"16 (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments of 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".
"Scheduled Castes" and "Scheduled Tribes" respectively have been defined in Sub-clauses (24) and (25) of Article 366 of the Constitution but there is no clause defining "backward classes of citizens." In fact, Backward classes of citizens for whom special provision has been made are, by Article 15(4) itself, treated as being similar to the Scheduled Castes and Scheduled Tribes. Scheduled Castes and Scheduled Tribes, which have been defined were known to be backward and it was felt that special provision should be made for their advancement. There are other classes of citizens as well who are equally or may be somewhat less backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special provision be made for their advancement as well. Articles 15(4) and 16(4) of the Constitution are meant for that purpose. It is the responsibility of the State to take effective steps for the upliftment of the Backward classes of citizens socially, educationally and economically. The State is enjoined to promote with special care the educational and economic interests of the weaker sections of the people and shall protect them from special injustice and all forms of exploitation (Article 46 of the Constitution). These responsibilities are, however, to be exercised within constitutional limits. "Socially and educationally backward" is a banner that amply covers "backward classes of citizens." Given the great distance that the Scheduled Castes, Scheduled Tribes and other Backward Classes of Citizens have yet to travel before they are fairly represented in the public service a more than a simple concern for them will be needed. The action must, however, be in conformity with Articles 15(4) and 16(4) as the case may be.
13. In our view, we have reached a point in our history when we need to face directly and explicitly the issue of educational inequality and social backwardness. Sub-clause (4) of Article 15 envisages a correlation ship between fathers'' status and son''s education (that is what the term ''socially backward'' suggests). Availability of educational benefits to socially backward classes or economically backward classes may equalise opportunities for persons coming from different socio-economic backgrounds and it may reasonably be expected that equalisation would reduce the co-relationship to a measurable degree. It cannot be gainsaid that reservation of seats for classes of persons from disadvantageous backgrounds will in the long run significantly help to raise the educational, occupational and income levels of those classes of persons. The degree of inequality between the privileged and under-privileged, "Forward" and "Backward", classes of persons should not be permitted to remain static. It is a matter of common knowledge that children of socially and educationally backward classes just cannot have access to superior quality institutions in the primary and secondary stage right up to Intermediate classes, more particularly when they are living outside urban areas, unless they come to the city which most of them may not afford.
In pre-independence era the backward classes of persons who were living in rural areas or in urban areas cared little for higher education; hence the resultant ignorance prevailed. After independence the efforts of Government as well as of enlightened and more prosperous sections of these classes and the facilities provided for them aroused in them also a desire to acquire higher education and to carve out a place for themselves in higher strata of society. The demand of the society to be served by talented persons is no doubt there but the demand to remove inequality of opportunity in public services and in the field of education is even greater. No nation can remain strong if the vast majority of Us people live in utter ignorance and poverty. The under-privileged backward classes must also be the recipients of all the benefits that this great country affords for its people. For removing poverty and for bringing an all-round, all pervasive and all-embracing progress as also for raising the standard of living an impetus has to be given. It is obvious that persons of backward classes, suffering as they do from handicaps and with a discouraging background cannot compete with those who had a different background and who had educational facilities at their command. The State ought, therefore, to direct its policy towards securing a social order in which justice social, economic and political shall inform, all the institutions of national life, No policy, therefore, which permits domination of one class can be maintained or justified. It is, therefore, for the State within the limits of its economic capacity and development to make effective provisions for the removal of such class domination by securing the right of work, to education and to public assistance in cases of unemployment.
It is with this end in view that the State is required to 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 protect them from social injustice and all forms of exploitation. The State may, therefore, make any special provision for the advancement of any socially and educationally backward class which in the opinion of the State is not adequately represented in the services under the State. Clause (1) of Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth or any of them. This provision shall not prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens.
Clause (2) of Article 29 deals with the question of admission into any educational institutions maintained by the State or receiving aid out of State funds, It provides that no citizen shall be denied admission into any educational Institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16(1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and Clause (2) prohibits discrimination in these matters on grounds only of religion, race, caste, sex, descent, place of birth or any of them, but Clause (4) of the same Article provides that nothing in this Article shall prevent the State from making any provision for the reservation of appointment of 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. Even in the United States of America the Supreme Court by its majority decision in the University of California v. Allan Bakke on June 28, 1978 has approved affirmative action programme for helping blacks and other minority groups to overcome effects of past discrimination. In India we had opted for such affirmative action programme even from the very beginning. But the extent of the reservation of seats under the special provisions under Article 15(4) or Article 16(4) cannot be too excessive. While in the Bakke''s case the U. S. Supreme Court has not favoured strict numerical quotas based solely upon race, our Supreme Court has approved up to "below 50%" reservation in favour of "backward classes", in the identification of which, caste may be one of the, but not the sole, criteria.
14. It is, however, to be remembered that if the executive action making reservation for backward classes transgresses the authority conferred on it by the Constitution covertly or latently, it would be liable to be struck down as a fraud on the relevant constitutional power. The Supreme Court in the leading case of
15. The concept of backwardness is not relative in the sense that any and every class which is backward in relation to the most advanced classes of the society must be included in it. The backwardness to qualify for reservation must be social and educational. It is not either social or educational but it is both social and educational. The group of citizens to whom Articles 15(4) and 16(4) apply are described as "classes" of citizens not as "castes" of citizens. In our country, caste may be a relevant factor but is not the sole factor for determining the "Backward class of citizens". Who should be clubbed as "Backward class of citizens" is a question which demands assiduous investigation in a variety of settings.
"The expression "classes of citizens" indicates a homogenous section of the people who are grouped together because of certain likenesses and common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens." (See
"The traits of social backwardness are these: There is no social structure. There is no social hierarchy. There are no means of controlling the environment through technology. There is no organisation of the society to create inducements for the uplift of the people and improvement of economy. Building of towns and industries, growth of cash economy which are responsible for greater social wealth are absent among such classes. Social growth and well-being can be satisfied by massive change in resource conditions. Highlands and hills are to be developed in fiscal values and natural resources. Nature is a treasury. Forests, mountains, rivers can yield an advanced society with the aid of education and technology" (See Pradip Tan-don''s case supra).
16. Similarly, "Where people have traditional apathy for education on account of social and environmental conditions or occupational handicaps, it is an illustration of educational backwardness." (ibid) It was "for these reasons". that the hills of Uttarkhand areas in Uttar Pradesh were treated as instances of socially and educationally backward classes of citizens. At the same time the reservation for rural areas was not sustained because that implied reservation "for the majority population of the State". Their Lordships added that "eighty per cent of the population of the State cannot be a homogeneous class. It is interesting to note in this connection that according to the report of the Chhedi Lal Sathi Commission (vide page 21 of the extract thereof Annexure A 4 to the counter-affidavit) the total population of all the listed backward classes (including Scheduled Castes) comes to 75% of the population of the State; this has been relied on in para 7 (d) of the counter-affidavit.
17. The scope and extent of Articles 15(4) and 16(4) of the Constitution earlier came to be examined by the Supreme Court in a number of cases. In
"It may not be irrelevant to consider the caste of the said groups of citizens while dealing with the question as to whether any class of citizens is socially backward or not. However, though the caste of groups of citizens may be relevant, its importance should not be exaggerated. 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. Moreover, if the caste of the group of citizens is 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, e.g. Christians, or Jains or even Lingayats; hence though castes in relation of Hindus may be a relevant factor to consider in determining the social backwardness of groups or class of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically became socially backward."
18. Further, it was observed in that case (vide para 24 of the report) that "the occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior, according to conventional beliefs, and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons."
19. The Supreme Court again considered Article 15(4) in
20. Similarly, in
21.
22. In
23. In
"Broadly stated, neither caste, nor race, nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15(4). When Article 15(1) forbids discrimination on ground only of religion, race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness, Article 15(4) will stultify Article 15(1). It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste, but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression "classes" in that case violates the rule of expression uniusest exclusion alterius. The socially and educationally backward classes of citizens are groups other than groups based on caste."
24. It may be mentioned here that the Government orders in force at that time which were considered in Pradip Tandons'' case did not provide for any reservation in favour of the castes which are now contended by the State to be "backward", a contention not wholly accepted by the petitioners.
25. Article 15(4) again came up for consideration in
"In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the groups of citizens. Caste cannot, however, be made the sole or dominant test. Social backwardness is in the ultimate analysis the result of poverty to a large extent. Social backwardness which results from poverty is likely to be aggravated by considerations of their caste. This shows the relevance of both caste and poverty in determining the backwardness of citizens. Poverty by itself is not the determining factor of social backwardness. Poverty is relevant in the context of social backwardness."
"The problem of determining who are socially and educationally backward classes is undoubtedly not simple. Sociological and economic considerations come Into play in evolving proper criteria for its determination. This is the function of the State. The court''s jurisdiction is to decide whether the tests applied are valid. If it appears that the tests applied are proper and valid, the classification of socially and educationally backward classes based on the tests will have to be consistent with the requirements of Article 15(4).
It was emphasised that Article 15(4) which speaks of backwardness of classes of citizens indicates that the accent is on classes of citizens. Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore, socially and educationally backward classes of citizens in Article 15(4) cannot be equated with castes and that the educational backwardness is reflected to a certain extent by the economic conditions of the group.
26. The provisions of Article 16(4) are similar to those of Article 15(4). In the case of
27. Article 16(4) of the Constitution applies only if two conditions are satisfied.
(1) that a class of citizens is backward i.e. socially and educationally, and
(2) that that class is not adequately represented in the services under the State.
Article 16(4) cannot he invoked merely because a class of citizens is not adequately represented in such services. See
28. The scope of Article 16(4) was again considered in
29. Again, in Triloki Nath v. Jammu and Kashmir AIR 1969 SC 1 it was held that a direction to secretaries to select candidates "keeping in view the policy of adequate representation of such elements as were not adequately represented in the services" was not a provision reserving appointments or posts in favour of backward classes, and the direction violated Article 16(1) and (2) and was void.
30. In
31. The principles were reiterated in
32. In
"The extent of reservation to be made is primary a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review. The reservation must be only for the purpose of giving adequate representation in the services to the Scheduled Castes, Scheduled Tribes and Backward Classes. The exception provided in Article 16(4) should not make the rule embodied in Article 16(1) meaningless. But the burden of establishing that a particular reservation made by the State is offensive to Article 16(1) is on the person who takes the plea."
This view taken about onus of proof was seemingly departed in
"The onus of proof is on the State to establish that the reservations are for socially and educationally backward classes of citizens. The State has established that the people in hill and Uttrakhand area are socially and educationally backward classes of citizens."
33. Apparently the two views on onus expressed in these decisions are reconcilable. In cases where the Government was not able to satisfy the Court that it had made proper investigations and arrived at conclusions about backwardness of various classes after applying relevant tests, the Government orders have been struck down, for instance Triloki Nath v. State of Jammu and Kashmir AIR 1969 SC 1
34. Dealing with the question about the extent of special provision which it would be competent to the State to make under Article 15(4), it was observed by the Supreme Court in
"In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case,"
35. When the State makes a special provision for the advancement of the weaker sections of society referred to in Article 15(4), ft has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements, but the extent of the problems must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. The Supreme Court, therefore, held that the reservation of 68% directed by the impugned order'' was plainly inconsistent with Article 15(4).
36. Their Lordships added para 35) that "an executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the States'' authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinised and If it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth, the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution."
In the same case ft was noticed by the Supreme Court that the Impugned order had categorised the Backward Classes on the sole basis of caste which in the opinion of the Court was not permitted by Article 15(4). It also held that the reservation of 68 per cent made by the impugned order was plainly inconsistent with the concept of the special provision authorised by Article 15(4). Therefore, it followed that the impugned order was a fraud on the constitutional power conferred on the State by Article 15(4). In that case it was urged on behalf of the Government that the whole order should not be struck down. Repelling the contention, the Supreme Court observed that if the categorisation of the Backward Classes is invalid, the court cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Article 15(4), the court would not attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve.
37. The Supreme Court further pointed out in the same case that in our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach, but In taking executive action to implement policy of Article 15(4) it is necessary for the State to remember that the policy which is Intended to be implemented is the policy which has been declared by Article 46 and the preamble of the Constitution. It is for the attainment of social and economic justice that Article 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under the substantive part of Article 15 or Article 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach free from all extraneous pressures. The action is taken with the intention to de social and economic justice; hence it must be taken in a manner that justice Is and should be done.
38. The learned Solicitor General of India who appeared for the State of U. P. before us fairly conceded that the aggregate reservation for all categories has to be less than 50%.
39. From the discussion made herein-above the position crystallises as under:
(i) the bracketing of socially and educationally backward classes with the Scheduled Castes and Tribes in Article 15(4), and the provision in Article 338(3) that the references to Scheduled Castes and Tribes were to be construed as Including such backward classes as the President may by order specify on receipt of the report of the Commission appointed under Article 340(1), showed that in the matter of their backward- ness they were comparable to Scheduled Castes and Scheduled Tribes:
(ii) the concept of backward classes is not relative in the sense that any class which was backward in relation to the most advanced class in the community must be included in it;
(iii) the backwardness must be both social and educational and not either social or educational;
(iv) Article 15(4) refers to ''backward classes'' and not ''backward castes''; indeed the test of caste would break down as regards several communities which lave no caste;
(v) caste is a relevant factor in determining social backwardness but is not the sole or dominant test;
(vi) social backwardness is in the ultimate analysis the result of poverty to a very large extent. Social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens;
(vii) a classification based only on caste without regard to other relevant factors is not permissible under Art, 15(4); some castes are, however, as a whole socially and educationally backward;
(viii) the occupations followed by certain classes (which are looked upon as inferior) may contribute to social backwardness; and so may the habitation of people, for, in a sense, the problem of social backwardness is the problem of rural India;
(ix) the division of backward classes into backward and most backward classes is in substance a division of the population into the most advanced and the rest, the rest, being divided into backward and most backward classes and this is not warranted by Article 15(4);
(x) Article 16(4) does not confer any right on a person to require that a reservation should be made. It confers a discretionary power on the State to make such a reservation if in its opinion a backward class of citizens is not adequately represented in the services of the State. Mere inadequacy of representation of a caste or class in the services is, however, not sufficient to attract Article 16(4) unless that class (including a caste as whole) is also socially and educationally backward;
(xi) the object of reservation would be defeated if on the inclusion of a class in a list of backward classes, that class is treated as backward for all times to come. Hence the State should keep under constant periodical review the list of Backward Classes and the quantum of the reservation of seats for the classes determined to be backward at a point of time;
(xii) The aggregate reservation of posts for various categories (including backward classes) should be less than 50% and
(xiii) the courts'' Jurisdiction is limited to deciding whether the tests applied by the State in determining the Backward Class of citizens are valid or not. If the relevant tests have not been applied it Ss not open to the Court either to modify the list of "backward classes" prepared by the State or to modify the extent of reservation but it must strike down the offending part, leaving It to the State to take a fresh proper decision after applying the correct criteria.
40. Keeping in mind the principles summed up above, we may now have a peep into the historical background of the impugned Government Orders which the State has set out in the counter-affidavit. The State has, as pointed out earlier, tried to justify the impugned order dated 20th Aug., 1977, on the ground that as early as 1945 the Education Department of the then Provincial Government had prepared a list of 59 communities. That consisted of 38 castes belonging to Hindu community and 21 Castes belonging to Muslim community for providing educational facilities treating them as backward classes. This list is said to have been reproduced as An-nexure B to the Government Order dated 6th Sept., 1955 Annexure A-1to the counter-affidavit. After Independence the matter was again examined by a subcommittee of the Cabinet of the State Government of Uttar Pradesh. A list of 15 communities described as backward classes for the purposes of being considered for recruitment to the public services was drawn. It is Annexure A to the Government Order dated 6th September, 1955. Almost all these 15 communities were selected out of the said 59 communities.
Paragraph 4 of the G. O. dated 6th Sept., 1955 Annexure 1 points out that the reason for leaving the position undefined so far was that it was felt that the Backward Classes Commission would eventually draw up a list of backward classes in each State and that on that basis an authoritative list of such classes could be issued under the authority of the Government. As it was thought that it might take some considerable time before such a list was published, it was decided that the list attached as Annex-ure A to the letter should be treated as a provisional and working list of backward classes in this State for the purpose of considering their cases for recruitment to the public services. No reservation in services for these castes was provided for or contemplated at that time, but the appointing authorities were only enjoined to keep in mind the desirability of protecting them in matters of recruitment by giving them preference on an informal basis. Even this informal preference was in the very nature of things confined to class III and class IV services and posts the recruitment to which was in the hands of Heads of departments and principal heads of offices and not to higher posts for which recruitment was made through the Public Service Commission. It was further made clear that this list would eventually be replaced by the authoritative list when issued as a result of the recommendations of the Backward Classes Commission and that in the meanwhile the present list was being circulated as a working guide for official use only.
Thus the list which was attached with the said letter dated 6th Sept., 1955 was merely a provisional and working list and was circulated as a working guide for limited use only as aforesaid. No. reason was stated as to why the castes mentioned in the said list were considered backward classes in the letter dated 6th Sept., 1955. It has not given any data for reaching the conclusion as to why a particular caste mentioned in the list enclosed with the letter was considered backward class. With regard to Annexure ''B'' to the said letter, it was pointed out in the said letter that the said list was also to be treated as provisional and was meant for the purposes of educational facilities to backward classes and for that purpose only. Thus, the whole of list ''B'' was not to be utilised for purposes of making appointments in public services, but only that portion thereof which had been included in list ''A'' was to be so utilised, rather it was made clear that it was not applicable for the purpose of considering the cases of backward classes for recruitment to the public services.
The Chief Secretary by his covering letter dated 17th Sept., 1958, copy of which is Annexure 2 referred to the G. O. dated 6th Sept., 1955, with which two lists of backward classes were circulated informed all subordinate authorities that the Governor had been pleased to amalgamate the two lists into one for all purposes, i.e. preferential treatment in recruitment to public services and grant of educational and other facilities. The word "amalgamation" was a misnomer in the sense that list ''A'' itself had been carved out of list ''B'' and thus what was meant was that the remaining castes of list ''B'' were also to be given the benefit which had earlier been given to the castes included in list ''A''. In other words, the castes which were earlier recognised only for grant of educational facilities were in future to qualify also for preferential treatment in recruitment to public services. (As earlier noted, this preferential treatment was not in the form of reservation but was only of an informal and limited nature). This letter also does not furnish any data on the basis of which the castes mentioned in the two lists were combined and classified as backward classes for purposes of preferential treatment not only for educational facilities but also for recruitment to certain public services. In other words, it does not explain how castes which in 1945 and again in 1955 were treated as only educationally backward came to be regarded as socially backward also in 1958. It also does not say whether the said combined list had ceased to be provisional working list and had become a permanent list, and if so, on what basis.
41. The counter-affidavit also refers to the report of the Chhedi Lal Sathi Commission (of which some extracts have been set out in Annexure 4 thereto) but it does not say that the impugned G. O. dated 20th Aug., 1977 was founded on the report of the Sathi Commission. The counter-affidavit simply says that the State Govt. vide its notification dated 12th Dec., 1''975 had appointed Chhedi Lal Sathi Commission and that the specifications given in the Schedule to the G.O. dated 20th Aug., 1977 have much in common with the three lists drawn by the Sathi Commission aforesaid. The counter-affidavit thus does not say that the G. O. dated 20th Aug., 1977, has been founded on any data or facts contained in the report of Sathi Commission. Moreover, the Sathi Commission was appointed for considering the conditions of what are described as "most backward" classes of citizens as contradistinguished from "backward" (simpliciter) classes of citizens and to suggest means to improve their lot. What the Sathi Commission did was to enlarge the list of "most backward classes" identified by the Kaka Kalelkar Commission by adding a few more communities which deserved that appellation inasmuch as each of them was considered to be socially backward as a whole or in its entirety. The Muslim backward castes were set out in list ''C''. While the remaining backward castes were set out in list ''B''. The castes in respect of which exception has been taken by the petitioners are to be found in list ''B''. About them the Sathi Commission stated at page 151 of the Report, Chapter XV, that these castes comprised even big farmers and craftsmen and that their condition was much better than that of the "most backward castes." However, inasmuch as these castes were also less advanced than the higher castes, therefore, they also deserved reservation. But the Commission did not consider them to be "wholly or entirely" socially and educationally backward, an appellation which was reserved only for the castes included in list ''A''.
In the summary of recommendations at pages 12-13, it was specifically mentioned under recommendation (4) of Chap. XV that these castes did not really stand in need of any reservation, but ten per cent reservation was recommended for them in order to bring them on par with the "Savarna" castes. It is, however, to be remembered that making classification of the backward classes into two Sections (1) backward classes and (2) most backward classes is itself unconstitutional.
In
42. Again, though the counter-affidavit refers to the Kaka Kalelkar Commission''s report, it does not state that the G. O. dated 20th Aug., 1977 is based on the findings reached by the said commission.
Moreover, that report of Kaka Kalelkar Commission was not accepted even by the Central Government. A printed copy of the report by the said commission was made available to us by the learned counsel for the State for our perusal.
43. It appears that on 29th Jan., 1953 the President appointed the Backward Classes Commission by virtue of the power conferred on him under Article 340(1) of the Constitution, This Commission made its aforesaid report on March 30, 1955. The Commission was required:
"to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour, and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their conditions." Article 340(1).
According to the Commission, the relevant factors to consider in classifying Backward Classes would be their traditional occupation or profession, the percentage of literacy or the general educational advancement made by them; the estimated population of the community, and the distribution of the various communities throughout the State or their concentration in certain area. The Commission also thought that the social position which a community occupies in the caste hierarchy would also have to be considered, as well as its representation in Government service or in the industrial sphere, (p. 47). According to the commission, the causes of educational backwardness amongst the educationally and socially backward communities were:--
1. Traditional apathy for education on account of social and environmental conditions or occupational handicaps.
2. Poverty and lack of educational instructions in rural areas.
3. Living, in inaccessible areas.
4. Lack of adequate educational aids, such as free studentship, scholarships and monetary grants.
5. Lack of residential hostel facilities.
6. Unemployment among the educated which acts as a damper on the desire of the members to educate their children; and
7. Defective educational system which does not train students for appropriate occupations and professions, (p. 107).
44. The Committee realised that, in substance, the problem of the Backward Classes is really the problem of Rural India (p. 55). It appears that having considered several criteria which may be relevant in determining which classes are backward, the Committee ultimately decided to treat the status of caste as an important factor in that behalf, and it is on that basis that It proceeded to make a list of Backward Communities which were specified in Vol. II of the Report. The backward classes, so far at least as this State is concerned, are identified only by their caste names. The Chairman of the Commission, admittedly a reluctant signatory to the report, confessed to a feeling of grave dissatisfaction with the approach adopted in the report in determining the question as to which communities could be regarded as backward under Article 15(4). In his covering letter to the President the Chairman observed:--
"My eyes were, however, opened to the dangers of suggesting remedies on caste basis when I discovered that it is going to have a most unhealthy effect on the Muslim and Christian sections of the nation", and he added that the said consciousness gave him a rude shock and drove him to the conclusion that the remedies suggested by the Commission were worse than the evil it was out to combat. According to the Chairman:--
"If we eschew the principle of caste it would be possible to help the extremely poor and deserving from all communities. Care, however, having taken to give preference to those who come from the traditionally neglected social classes (sic),"
45. The Chairman thus expressed his distress in very strong language over the caste basis adopted by the Commission, but he ultimately agreed to the proposal of the commission for the reservation of seats for Backward Classes to the extent of 70%.
46. This report of the Backward Classes Commission along with the Chairman''s covering letter was considered by the Central Government in due course. The Central Government apparently did not feel satisfied about the approach adopted by the Commission in determining as to who should be treated as Backward classes under Article 15(4). The memorandum issued by the Government of India on the report of the Commission inter alia pointed out that it could not be denied that the caste system was the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of the specified castes as backward may serve to maintain and even perpetuate the existing distinctions on the basis of the Castes. It also added that some of the tests applied by the Commission were more or less of an individual character and even if they were accepted, they would encompass a large majority of the country''s population. If the entire community, says the memorandum, barring a few exceptions, has thus to be regarded as backward, the really needy would be swamped by the multitude and feardly receive any special attention or adequate assistance, nor would such dispensation fulfill the conditions laid down in Article 340 of the Constitution. The memorandum, therefore, emphasised that action on a systematic and elaborate basis can be proceeded with only after the necessary positive tests and criteria have been laid down for determining which classes or sections are really entitled to get special relief and assistance. To that end, further investigation was obviously indicated. Even so instructions were issued by the Central Govt. to the State Government requesting them to render every possible assistance and to give all reasonable facilities to the people who came within the category of Backward classes In accordance with their existing lists and also to such others who in their opinion deserved to be considered as socially and educationally backward in the existing circumstances (see paras 9 to 14 of
47. While, as appears from various cases that have gone up to the Supreme Court, several other States did, after these instructions of the Central Government, appoint new Committees or Commissions for revising their earlier lists of "backward classes", the Uttar Pradesh Government does not claim to have done so. Had this been done and the backward classes been identified in accordance with the criteria laid down by the Supreme Court there would have been no difficulty.
48. Neither the impugned G. O. nor the counter affidavit filed on behalf of the State reveals that any other survey or data collection in any other manner was done by the State Government. Similarly, as regards the list prepared by the Education Department, it is not mentioned In the counter-affidavit on what basis these castes were found even educationally backward class of citizens at that point of time. No fact-finding inquiry was alleged to have been made. This criticism applies also to the G. O. dated 6th Sept., 1955. No facts have been placed before us to show that the State Government had applied the tests laid down by the Supreme Court in reaching the conclusion that each of the particular caste specified constituted a backward class. There is bare assertion to the following effect in the counter-affidavit :--
"The castes enumerated in the Schedule to the Government Order impugned in this writ petition form a class of citizens which, considered as a whole, is socially and educationally backward in the opinion of the State Government, within the meaning of Article 16(4) of the Constitution. The State Government is also of the opinion that the said class of citizens in not adequately represented in various services under the State."
According to the said allegation, the castes enumerated in the schedule form a class of citizens considered as a whole socially and educationally backward. But why? The basis for reaching this conclusion has not been disclosed. The bare ipse dixit that the State Government considers certain castes as Backward Class of citizens is not conclusive. There must be shown to have been an objective assessment of the whole thing based on tangible data.
49. It was emphasised in
"The problem of determining who are socially backward classes is very complex. So many considerations come into play. These considerations may be sociological, social and economic. It, therefore, needs an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is a function of the State which purports to act under Article 15(4).
"When an executive order purports to have been issued under Article 15(4), all that the court is called up to do in dealing with the petition is to decide whether the tests applied by the impugned order are valid under Article 15(4). If it appears that the test applied by the order in that behalf is improper and invalid, then the classification of socially backward classes based on that test will have to be held to be inconsistent with the requirements of Article 15(4)."
50. It is true that in several subsequent cases the enumeration of backward classes on the basis of castes has been upheld by the Supreme Court. In
51. The principle that thus emerges (from the various decisions is that so far as some Hindu castes are concerned, they are obviously so low in the social hierarchy that there can be no doubt at all that the entire caste can safely be treated as socially and educationally backward. It is only in respect of these castes that the Supreme Court has accepted validity of castes for its being treated as socially and educationally backward for purposes of Article 16(4). Indeed, in the present case itself, the learned counsel for the petitioners himself conceded that there are many castes included in the impugned G. O. (for instance, Muslim sweepers) which are beyond controversy socially and educationally backward. His challenge, as stated in para. 10 of the petition, is that certain so-called backward castes like Ahirs and Kurmis, which are not economically and socially backward, have been wrongly included. It has been said that among Ahirs, Kurmis and other castes mentioned in the G. O. there are many who are big farmers and are prosperous. "Many are highly educated and are occupying high offices. Others are doing well in professions such as lawyers, Doctors, etc. As such it cannot be said that the entire Ahir, Kurmis or other castes mentioned in the G. O. are backward classes within the meaning of Article 16(4), There is no economic homogeneity in these castes." Indeed, the petition further goes on to say that the reservation in favour of these castes like Ahirs and Kurmis had been made merely for political motive because the B.L.D. group of Janta Party is dominant in U. P. and these castes are mostly supporters of B.L.D. So far as the alleged political motivation is concerned, it is a bald averment of which we need not take any notice and we proceed on the assumption that the G. O. has been issued for bona fide motivations. However, as pointed out m
52. Although reference has been made in the counter-affidavit of the State Government to the Kaka Kalelkar Commissions report, a comparison of the lists given in the impugned G. O. with the lists mentioned in the report shows that the two do not tally at all. Of course, most of the castes mentioned in the impugned G. O. do find a mention in the report, but it is strange to find that even many communities considered by the Kaka Kalelkar Commission to be "most backward" do net find mention in the impugned lists. Such are, for instance, Ambasi (serial No. 2) in the list given in the report, volume II, Dalera (serial No. 35), Dharhi, Pawaria, Sangharia, Tanwar (serial No. 39), Gandhila (serial No. 48), Gandhiya (serial No. 49), Kabariya (serial No. 64), Kanera, Khan-gar (serial No. 70) Keer, Kirar (serial No. 76), Mewat and Miyaria (serial No. 92), Ramaiya (serial No. 105), Rawa (serial No. 111) Soeri, Seraniya (serial No. 113) and Tiyar (serial No. 117). Apart from these communities, which have been described in the Kaka Kalelkar Commissions ''report as "most backward" which have been excluded from the impugned lists, there are other communities which are characterised as merely backward which have not been also included in the impugned lists. The list given in the Report consists of 120 communities, while the lists given in the impugned G. O. is of only 59 communities. There appears to be some overlapping of communities because the same communities may be known by different names, but this much seems incontrovertible that the Kaka Kalelkar Commission''s report was net the basis of enumeration of backward classes in the impugned G. O.
It is true that the castes, about which the petitioners have made a pointed reference in the petition, namely, Ahirs and Kurmis etc, were not excluded from the list prepared by the Kaka Kalelkar Commission. We, however, find that the approach of the commission vide pages 48-49 (paragraphs 32, 37, 3$ and 43 of volume I, Chap. V) was to accept the lists prepared earlier by the Ministry of Education with the help of the State Governments as correct and then to enlarge those lists and further that on no account should they be curtailed. Thus, the commission on its own confession totally ruled out the scrutiny of the lists already supplied to it and showed its concern only for enlarging those lists. What vitiates the Report is its refusal and failure to scrutinise the existing list. This becomes even more significant in the light of the discussion in the Chairman''s forwarding letter about the inclusion of some "dominant communities" in the list of "backward classes" and the findings of the Sathi Commission. As was pointed out by the Supreme Court in
53. Indeed it would be self-condemnatory for State Govt. if it were to contend that the educational backwardness of different classes of the State has remained stationary since independence. As many as five ''Five-Year Plans'' have since gone by. According to the ''Uttar Pradesh 1977", which is a publication of the Information and Public Relations Department of the State Government, the following is a comparative position in regard to progress made in the educational field in the State of U. P. during the last three decades:--
"In 1946-47, a provision of Rs. 3.18 crores was made for education, which has increased to 243.06 crores in 1977-78."
"The number of school-going children in the age-group of 6 to 11 years in 1946-47, was 20.08 lacs, while in 1975-76 it rose to 119.41 lacs. The number of Junior Basic Schools in 1945-46 was 19.017 and it went up to 65,552 in 1976-76."
"There were 1,676 Senior Basic Schools in the State in 1945-46. Their number rose to 10,625 in 1975-76, while the number of school-going children in the age group of 11 to 14 years rose from 1.40 lacs in 1945-46 to 24.97 lacs in 1975-76".
There were only 967 Higher Secondary Schools in 1950-51, with an enrolment of about 2 lacs students and 9000 teachers. In 1975-76 the number of Higher Secondary Schools went up to 4,473 and that of students to 16.47 lacs. The number of teachers in the same period rose to 64,000."
"In 1950-51 as many as 6 Universities and 40 Degree Colleges were providing facility In Higher Education. In 1975-76 their number had swelled up to 19 and 366 respectively. The enrolment of students has increased from 18000 in 1950-51 to 2,59,000 in the year 1975-76, and the number of teachers in the corresponding period increased from 2500 to 23,000."
It is, therefore, difficult to comprehend that the various educational, economic and other welfare measures undertaken, by the Government for the welfare of the relatively backward classes in the rural areas have failed to leave any impact on the educational development of persons belonging to the castes mentioned in the aforesaid impugned Government Orders and that their educational attainment has remained static since, 1945. In
54. What we thus find is that the enumeration of certain castes among Hindus as well as Muslims as backward classes by the State Government is based ultimately on the list prepared by the pre-Independence Provincial Government in 1945. That list was presumably prepared on the basis that those castes were at that point of time educationally backward,-- though even for coming to that conclusion the tests applied or the data acted upon are not disclosed, and accordingly, it was necessary to provide for them special educational facilities. Subsequently, the same list was reproduced as list B in the G.O. of 6th Sept., 1955 (Annexure A-1to the counter-affidavit). The matter had been considered by the sub-committee of the State Cabinet, vide para 7 (a) of the counter-affidavit and only a list of 15 communities was held to qualify to be described as backward classes for purposes of preferential treatment in making recruitment to public services, and the same was reproduced as list A in the said G. O, At that time even those 15 communities were not given the status of backward classes for purposes of reservation in public services. In 1958, the two lists prepared earlier for educational facilities (List B) and for preferential treatment in the matter of recruitment to public services (List A) were purported to be "amalgamated." It has not been shown as to why this was done. If certain communities (List B) were backward only educationally and, as such, were included in the list prepared in 1945 and were not or at any event all of them were not regarded as socially backward, there was no constitutional justification for their wholesale inclusion after many years in the list meant for preferential treatment in recruitment to public services. Indeed, the Sathi Commission at page 13 of its cyclostyled report specially observed that social, educational and economic level of several communities included in list ''B'' at its Report which largely comprises the remaining castes of List B of the 1955 G. O. which had not been brought over into list ''A'' of that G. O. was fairly good and that their representation in the services was also fairly good and, as such, they did not stand In need of reservation, but recommendation had been made in their favour in order only to bring them on par with "savarna" castes.
55. Phenomenal progress after Independence in the fields of Irrigation, mechanisation of agriculture, use of fertilisers, development of improved varieties of seeds, co-operative movement, community development, etc. had led to what is not unjustifiably claimed to be "Green Revolution" transforming the face of the country-side. Agriculture was never considered a lowly occupation, though classes of agriculturists who were lagging behind educationally and economically before Independence did suffer from social handicaps. With far-reaching land reforms (in particular, the ultimate conferment of bhumidhari rights on all tillers of the soil), increased agricultural prosperity and expansion in the educational field (both as a result of efforts made by the Government, including provision of special facilities for castes which in 1945 were regarded as educationally backward, and as a result of voluntary efforts of enlightened and relatively well-off sections of some of these castes) it is doubtful if any such social handicap continues in regard to what have been called by Kaka Kalelkar as the "dominant" ......""..*
56. The main thrust of the argument of the learned Solicitor General on behalf of the State is two-fold. In the first place, he contended that the Supreme Court has accepted the view expressed by the..,...* ant criterion for determining social and educational backwardness and if a caste as a whole is found to be socially and educationally backward, it can be declared as backward class by the caste name. We have already accepted this as the correct legal position and have discussed the case of the parties on that basis. It was next argued on the authority of
"In this state of the pleadings, we must come to the conclusion that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward."
Likewise in para. 31 of Pariakaruppan''s case (supra) it was observed:--
"No further material has been placed before us to show that the reservation for backward classes with which we are herein concerned is not in accordance with Article 15(4)."
The authority of Rajendran''s case was referred to in this context. Thus, it is obvious that in both the cases, the petitioners had failed even to plead that any particular caste included in the list was not backward. In the present case, the petitioners have taken a specific plea by mentioning at least two castes which, according to them, were not economically and socially backward. In para. 10 of the petition, the word "educationally" has not been used, but, in any case, there is a clear averment that the castes in question are not "socially" backward. Moreover, if a large number of members of a caste are economically well-off, that circumstances would have an impact on both their social and educational advancement and indirectly on that of the caste. The counter-affidavit to these paragraphs is only in general terms, and there is no averment that these two particular castes were, in fact, socially and educationally backward. Paragraph 7 of the counter-affidavit merely traces out the history of the preparation of the list, which we have already noticed. The petitioners also filed a rejoinder affidavit in which the allegations in the petition were reiterated. The Supreme Court, it would thus appear, has not contemplated that a private citizen challenging the inclusion of a particular caste in the list of backward classes should supply the relevant data to the Court in support of his challenge. In the very nature of things, it is not possible for private citizens to make detailed investigation and survey all over the State or to supply the relevant data. It is only with the resources of Government that such data can be collected and supplied to the Court. The Supreme Court has time and again emphasised that any decision of the Government in this regard is subject to judicial review and that if a reservation is challenged on the ground of violation of fundamental rights conferred by Article 16(1) and (2), it is for the Government to demonstrate that the reservation was valid, vide observations in State of Andhra Pradesh v. P. Sagar AIR 1963 SC 1379 Once a petitioner pinpoints his challenge with reference to particular castes, it is for the Government to show that those particular castes the backwardness of which is disputed, were, in fact, backward.
57. Before parting with this case, we may also refer to a preliminary objection that had been raised before us on behalf of the State. It was contended that the petitioners had not yet succeeded in the examination and it is not known whether they will succeed even if impugned reservation were not there. It is not disputed that the petitioners have actually appeared at the competitive examination. We were told at the Bar that the Public Service Commission has postponed holding interviews (viva voce examination) also due to pendency of this writ petition. The reason was that the Commission would issue interview letters only to such number of candidates as constitute a multiple of seats reserved for each category of candidates who secure the highest marks in the written examination in that category. The petitioners are thus obviously not in a position to say what marks have been secured by them at the written examination. The marks are announced only after viva voce. Even after the receipt of the marks sheets, they may or may not know the marks received by successful candidates falling within the reserved categories. It could not be fairly contemplated that the petitioners should agitate the validity of reservation only after viva voce is over. Learned counsel for the petitioners has relied on para 21 of
58. Having given our thoughtful consideration, we are driven to the irresistible conclusion that the Government Orders dated 6th Sept., 1955, 17th Sept., 1958 and 20th Aug., 1977 are a "fraud on the constitutional power" conferred on the State under Articles 15(4) and 16(4) of the Constitution in the sense the expression has been defined in
59. For the reasons in the foregoing, we allow the petition in part. The respondents are directed not to make any reservation of posts in the U. P. Nyayik Seva to be filled on the basis of competitive examination 1977 for the so-called "Backward Classes" as mentioned in the G. O. dated 6th Sept., 1955, G. O. dated 17th Sept., 1958 and G. O. dated 20th Aug., 1977 and the "Suchana-Prapatra" No. A-10-E/77. The other reliefs sought for are refused. The stay order is discharged. In the circumstances of the case, the petitioners shall bear their own costs.
