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Under art.

16(4),the state may make reservation in appointment of posts in favour of any


backward class of citizens, which in the opinion of the state, is not adequately represented in
the public services under the State. The term State is defines under art.121 of the constitution
and several bodies come under state after the decision in Zee TeleFilms v. UOI2.

NATURE OF ARTICLE 16(4)


In Mohan Kumar Singhani v. UOI 3 AND IN catena of decisions4 Article 16(4) was held as an
enabling provision and not a fundamental right of the backward classes. It confers discretionary
on the state for making any provision or reservation of appointments or posts in favour of any
backward class of citizens, which in the opinion of the state, is not adequately represented
represented in the service of the state. Art.16(4) neither imposes a constitutional duty nor confers
any fundamental right on any one claiming reservation.5
It is left to the State govt. to reach to the conclusion for giving reservation to under represented.
Different State may have different methods of reservation. The court shall not go into the
wisdom underlying reservation, but whether the reservation so made is reasonable or not.6
The state also has the discretionary power to fix the percentage of reservation.7
1 12. Definition In this part, unless the context otherwise requires, the State
includes the Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other authorities within the territory
of India or under the control of the Government of India
2 (2005) 4 SCC 649
3 AIR 1992 SC 1
4 Indra Sawhney v. UOI, NM THOMAS v State of Kerla
5 Indra Sawhney v. UOI,AIR 1993 SC 477
6 NAIR SERVICE SOCIETY v. Beermasthan (2009) 5 SCC 545
7 R.K.Sabharwal v State of Punjab (1995) 2 SCC 745

The underlying principle of this provision giving reservation to backward class is, social,
economical and backward classes cannot compete in open category along with upward classes.
To bring them on equal footing or enshrining the principle of equality u/art.16(1) and art.14.8
But the backward class in order to claim reservation have to pass the basic minimum criteria laid.
Article 16(4) is non-obstinate clause.

The constitution attaches great importance to the advancement of backward class.

How much reservation?


The ceiling on reservation was not fixed. In several cases, what is adequate percent of
reservation had come into consideration. In certain cases the percentage of reservations
announced by the state had come into question as violative art.16(1) and art.149 of the
constitution. It was observed in Balaji v. State of Mysore10 that a special provision like art.16(4)
should be less than 50% reservation, how much less can be decided by the state. The court in the
aforesaid case struck down a govt. order where 68% of seats in an education institution was
reserved for SC/ST AND OBC, held it unconstitutional and further went to say it as a fraud on
the constitution. The 50% rule was upheld in Indra11 to strike balance between art.16(1) and
16(4).In the same case it was also decided that 50% should be taken as a unit as whole.not on the
strength of cadre, service as the case may be.

Who are backward class under art.16(4)?


8 14. Equality before law The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth
9 Supra at 8
10 AIR 1963 SC 649
11 Supra,at 5

The term backward class takes within its fold SC and ST and OBC. In a series of judicial
pronouncement the expression backward class of citizens in art.16(4) means the same thing as
expression any socially and educationally backward class of citizens in art.15(4),hence making
it as a required criteria for backward class u/art. 16(4) . The term backward class is not
synonymous with backward caste or backward community.
Under article 16(4),reservation can be given only to backward class and not to any community
particulary.
However, Reservation should not be excessive for two reasons
1) Art.335 which 12 mandates the efficiency of administration, not to be compromised with,
when giving reservation to the backward class
2) Art.16(4) is an exception to art.16(1) and art.16(2). Article 16(4) cannot be given such an
operation so as to destroy the main articles.

STATE OF KERLA v. N.M.THOMAS13


The SC/ST were given certain time exemption for passing the tests for appointment to
higher post by a rule passed by the legislature. This exemption was extended from time
time. The case was that out of 51 posts for filling in higher category, 34 were filled by
SC members, among which 16 were unqualified. The contention of the aggrieved was
Art.16(4) was in violative of Art. 16(1) and (2) of the constitution. In Devdasan14
majority was of the view that Art.16(4) was an exception to art.16(1) and (2). But, in
Thomas, the dissenting opinion of J.SUBBA RAO was accepted. Accordingly the court
observed Art.16(4) as not an exception to art.16(1), but a facet of art.16(1), which fosters

12 335. Claims of Scheduled Castes and Scheduled Tribes to services and posts 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
13 (1976) 2 SCC 310
14 AIR 1964 SC 179

and furthers the idea of equality of opportunity with special reference to an under
privileged and deprived class of the society.
Further, as it was decided in earlier cases Reasonable classification is within the ambit of
art.14 and Art.16(1) being a facet of art.14,reasonable classification is allowed under
art.16(1). Article 16(4) was to be read along with art.16(1) in harmony, hence reasonable
classification under art 16(4) with respect to art.16(1) was allowed.

INDRA SAWHANEY v. UOI15


A landmark case in the history of constitution relating to reservation. A commission16 was
appointed by the govt. in terms of art.34017 of the constitution to investigate the
conditions of socially and educationally backward class. The commission recommended
27% reservation for OBC,7.5% for ST and 15.5% for the SC in govt. jobs.
Backward class compromised about 52% of the population and for the purpose of OBC a
22 pointer scale was adopted under the broad classification of social,educational and
economic. It further recommended a 10% reservation for economically backward , not
covered by any kind of reservations. Writ petitions were filed against the memorandums
of the govt. giving effect to the opinion the commission
The court in indra accepted the 50% total reservation as enunciated in balaji18. Around 11
issues came up for consideration 8th is important i.e. as follows ;
8. Whether reservations are anti-meritarian? To what extent are Articles 335, 38(2) and
46 of the Constitution relevant in the matter of construing Article 16?
In devadasan19, it was observed that by reservation, it is inevitable that standards will be
lowered to some extent, but cannot be said entirely bad because minimum standards will
be prescribed. Petitioners made reference to Ambedkar speech in constituent assembly
15 Supra at 5
16 MANDAL COMMISON
17 340. Appointment of a Commission to investigate the conditions of backward
classes
18 1963 AIR SC 649
19 SUPRA AT 14

where he called for a 30% reservation. The mandate of art.335 is that reservation should
not lead affectthe efficiency of administration and art.16 and 46 should be read with
art.335.The court said that to achive the constiutional promise of social justice is
paramount to efficiency, competence and merit. The court was of the view that the
difference between meit and reserved was small and in due course of time it would
vanish. They foresaw that efficiency would increase among the reserved and would
compete with merit.
The court was of the view that certain posts were not advisable to reservations at all.
The court also listed where reservations were not advisable and the memorandums were
in respect only with the civil posts and not defence.
(1) Defence Services including all technical posts therein but excluding civil posts.
(2) All technical posts in establishments engaged in Research and Development
including those connected with atomic energy and space and establishments engaged in
production of defence equipment.
(3) Teaching posts of Professors - and above, if any.
(4) Posts in super-specialities in Medicine, engineering and other scientific and technical
subjects.
(5) Posts of pilots (and co-pilots); but the court left the ultimate decision to the court.
The court also pointed at the services/posts enumerated above, on account of their nature
and duties attached, are such as call for highest level of intelligence, skill and excellence.
Some of them are second level and third level posts in the ascending order. Hence, they
form a category apart. Reservation therein may not be consistent with efficiency of
administration contemplated by Article 335.
The seventh issue, sub issue that whether reservation was allowed in matter of promotion
or only at the stage of initial recruitment. The court departed from a series of descisons
and said that the principle of giving reservation in matter of promotion was not
sustainable in principle and ought to be departed from. The court gave it a prospective
effect after 5 years to take place, which was later neutralized in the hereinafter
amendments explained.
The court didnt restrict the reservation in direct recruitment to posts even at a lateral
divison to the cadre.
The court also permitted a reasonably lesser qualifying marks or evaluation for the OBCs,
SCs and STs - consistent with the efficiency of administration and the nature of duties

attaching to the office concerned - in the matter of direct recruitment, such a course
would not be permissible in the matter of promotions.
Means-test and creamy layer: were developed in the case.
Means-test signifies imposition of an income limit, for the purpose of excluding
persons (from the backward class) whose income is above the said limit. is very often
referred to as the creamy layer argument.
The creamy layer is a term used in Indian politics to refer to the relatively wealthier and
better educated members of the Other Backward Classes (OBCs) who are not eligible for
government sponsored educational and professional benefit pograms.
For example, if a member of a designated backward class becomes a member of IAS or
IPS or any other All India Service, his status in society (social status) rises,he is no longer
socially disadvantaged. His children get full opportunity to realize their potential. They
are in no way handicapped in the race of life. His salary is also such that he is above
want. It is but logical that in such a situation, his children are not given the benefit of
reservation, by giving them the benefit of reservation, other disadvantaged members of
that backward class may be deprived of that benefit that one swallow doesnt make the
summer, and that merely because a few members of a caste or class become socially
advanced, the class/caste as such does not cease to be backward. It was pointed out that
clause (4) of Article 16 aims at group backwardness and not individual backwardness.The
exclusion of socially advanced members(Benificiaries Reservation in civil service) will
make the class a truly backward class and would more appropriately serve the purpose
and object of clause (4). (This is confined to Other Backward Classes only and has no
relevance in the case of Scheduled Tribes and Scheduled Castes). Persons falling within
the net of exclusionary rule shall cease to be the members of the Other Backward Classes
(covered by the expression backward class of citizens) for the purpose of Article
16(4).In October 2015, the National Commission for Backward Classes (NCBC)
proposed that a person belonging to OBC with an annual family income of up to Rs 15
lakh should be considered as minimum ceiling for OBC, which is currently Rs.6 lakhs.

Aftermath of the Indra Sawhaney Descision


The govt. vide 77th amendment,1995 introduced the following:
"(4A) Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion to any class or

classes of posts in the services under the State in favour of the


Scheduled Castes and the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the services under the
State.".
AND
In the 81st amendment,2000 introduced the following;

"(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a
year which are reserved for being filled up in that year in accordance with any provision for
reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up
in any succeeding year or years and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for determining the ceiling of fifty per
cent reservation on total number of vacancies of that year".

Which neutralized the decision of Indra Sawhney.

Conclusion
The legislative and the Indian government influenced by caste politics and vote banks favour in
reservation of 50% to those 52% population and no government whatsoever keeping aside
political ideology abolished the reservation system. The introduction of Uniform civil code may
bring a change. It is not long before society will turn against the system of reservation.