AFFIRMATIVE ACTION AND INDIAN CONSTITUTION SCHEME : AN

ASSESMENT

Submitted by

Moon Mishra

SF0117029

Submitted to :

Mr. Himangshu Ranjan Nath

Assistant Professor of Law

NATIONAL LAW UNIVERSITY, ASSAM

1
 Table of Contents

Table of Cases ......................................................................................................................3

List of Statutes........................................................................................................................4

Table of Abbreviations...........................................................................................................4

1. Introduction................................................................................................................5

1.1 Literature Review...........................................................................................................5

1.2 Aims and Objective.........................................................................................................6

1.3 Research Questions ........................................................................................................6

1.4 Research Methodology...................................................................................................6

2. Objective of Reservation............................................................................................6

3. Criterion of Classification of Reserved Categories.................................................7

4. Classification of Reserved Categories........................................................................8

4.1 Scheduled Castes and Scheduled Tribes..........................................................................9

4.2 Women and Children.......................................................................................................9

4.3 Backward Classes............................................................................................................10

4.3.(A) Exclusion of Creamy Layer..................................................................................11

4.5 Physically Disabled........................................................................................................12

5. Quantum of Reservation............................................................................................12

6. Scope of Reservation.................................................................................................14

6.1 Reservation in Judicial Services.....................................................................................14

6.2 Reservation in Promotion and Seniority.........................................................................14

6.3 Reservation in Admissions..............................................................................................15

6.4 Reservation in case of Single Post..................................................................................16

7. Conclusion...................................................................................................................16

Bibliography............................................................................................................................1
8

2
 Table of Cases

1 Mohan Kumar Singhania v. Union AIR 1992 SC 1

of India

2 Andhra Pradesh Public Service (2009) 5 SCC 1

Commission v. Balaji Badhavath

3 State of Kerala v. NM Thomas AIR 1976 SC 490.

4 M. Nagraj v UOI (2006) 8 SCC 212

5 Government of Andhra Pradesh v. AIR 1995 SC 1648
P.B. Vijayakumar

6 Indra Sawhney v. Union of India AIR 1993 SC 477

7 MR Balaji v. State of Mysore AIR 1963 SC 649

8 Janki Prasad Parimoo v. State of AIR 1973 SC 930.

Jammu and Kashmir

9 EV Chinnaiah v. State of A.P AIR 2005 SC 162

10 Ashok Kumar Thakur v. State of AIR 1996 SC 75

Bihar
11 T. Devadasan v. Union of India AIR 1964 SC 179

12 State of Kerala v. NM Thomas AIR 1976 SC 490

13 ABSK Sangh v. UOI AIR 1981 SC 298

14 S.S. Sharma v. UOI AIR 1981 SC 588
15 State of Bihar v. Bal Mukud Sah AIR 2007 SC 217

16 Rangachari AIR 1962 SC 36

3
 17 Suresh Chand Gautam v. Union of AIR 2016 SC 1321
India
18 DN Chanchala v. State of Mysore AIR 1971 SC 1762

19 Pramati Educational & Cultural (2014)8 SCC 1

Trust v. UOI
20 Chitra Ghosh v. UOI AIR 1970 SC 35
21 Chakradhar Paswan v. State of Bihar AIR 1988 SC 959

List of Statutes

1. Constitution of India, 1950

Table of Abbreviations

A.P Andhra Pradesh

Art. Article
AFT Armed Forces Tribunal
AIR All India Reporter
Edi Edition
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
U.P. Uttar Pradesh
UOI Union of India
v. Versus

1. Introduction

4
The term affirmative action refer to the schemes or provisions which take ethnicity, race or
gender into consideration in an attempt to promote equal opportunity in the diverse groups.
The scope of such policies ranges from education and employment to health programme and
public contracting.

The Constitution of India seems to be the first to have expressly provided for affirmative
action to the extent of reservation. In contrast to prohibitions or restraints on the creation of
handicaps or hindrances by the State in the development or progress of an Individual,
affirmative action envisages positive steps on the part of the State to enable him to develop
and progress. As per Indra Sawhney v. UOI, reservation does not mean “reservation
simpliciter” but it takes in another forms of special provisions like “preferences, concessions
and exemptions”.

This paper focuses on the scheme of the affirmative action of the State. This includes the
objective of the reservation in India. This also deals with the evolution of the reservation with
time via the amendments by the Parliament and the judgments pronounced by the Courts.
This is a detailed study of the classification of the reserved categories and the rationale
behind the categorisation. This also includes the areas where the scheme of affirmative action
applies.

1.1 Literature Review

a. Shukla V.N., Constitution of India , Eastern Book Company, 12th Edition,
(2008)

This edition of VN Shukla’s Constitution of India is an Ideal Study of the Constitution of

India. The articles of the Constitution are explained one by one. This commentary is ideal for
understanding the law, as each principle is followed by the landmark judgements. The
intricacies of the law are very well explained in a construable language.

b. Jain, M.P., Indian Constitutional Law, 8th Edition, Lexis Nexis,(2018)

This book is an authoritative, evergreen classic on Indian Constitutional Law. It is a thematic

presentation of the complex and multi-dimensional subject of Constitutional Law in a lucid,
comprehensive and systematic manner. This book contains in-depth insights of the law and is
detailed work by the author.

1.2 Aims and Objective

5
 a. To study the objective of the reservation in India.
b. To study the classification of the reserved categories in India and their criterion .
c. To study the quantum of reservation in India.
d. To study the scope of reservation in India.

1.3 Research Questions

a. What is the objective of reservation in India?
b. In what categories are the reserved categories classified in India and what is their
criterion?
c. What is the Quantum of reservation in India?
d. What is the scope of reservation in India?

1.4 Research Methodology

In this research paper, doctrinal form of research has been applied wherein materials form
secondary sources such as libraries , archives, articles and the internet have been used.

2. Objective of Reservation

Indian society is characterised by a high degree of structural inequalities, based on the

institutions of caste and ethnicity. Although every caste (except those at the top of caste
hierarchy) suffers from the unequal and hierarchal assignment of rights, it is the
‘untouchables’castes – referred to officially as the Scheduled Castes (SCs) – which have
suffered most. Historically they were denied the right to property, business (except some
occupations considered as impure and polluting), education, and all civil, cultural and
religious rights, except manual labour and service to castes above them. Untouchables also
suffer from residential segregation and social isolation.1

Another source of exclusion is linked with ethnic identity, from which groups like the
Adivasis (meaning indigenous) – referred to officially as Scheduled Tribes (STs) – suffer.
This group has suffered from isolation, exclusion, neglect and underdevelopment due to their
geographical and cultural isolation. In their case, exclusion can take several forms, including
the denial of right to resources around which they live, and displacement induced by
economic development.

1
V.N SHUKLA, CONSTITUTION OF INDIA, (20th Edi, 2008)

6
The schemes for the disadvantaged sections in India were brought by the British, who
intended to divide India, to prolong their rule, behind the veil of improving the status of the
disadvantaged groups. Initially in the pre independence British rule, affirmative action
policies were introduced in India. India has a quota based affirmative action programme,
which is called a ‘reservation system’. Reservation normally implies a separate quota which
is reserved for a special category of persons.2 This special category can be categorised into
two groups. i.e, SC/ST and OBC group. 22.5 % of all the government jobs and seats in
educational institutions that are completely or partially funded by the government and
electoral constituencies at all levels of government are reserved for SC and ST persons. The
quota is in proportion to their share in the population. This was enshrined in the constitution
via Article 15(4)3 and Article 16(4)4 of the constitution.

In India, the disadvantaged sections of the society, which together constitute a quarter of the
total population, have long suffered from discrimination and exclusion. This is reflected in a
lack of access to income-earning assets, higher-quality employment and public services. They
also experience resistance, violence and even atrocities in their attempts to secure human
rights and lawful entitlements. The discrimination and exclusion experienced by these groups
has resulted in severe deprivation and poverty. Thus, the scheme of affirmative action is
important in order to bring these disadvantaged sections at par with the other sections of the
society and to protect their rights.

3. Criterion of Classification of Reserved Categories

Under Article 16(4) the State may make reservation of appointments or posts in favour of any
backward class of citizens which in the opinion of the state. Explaining the nature of Article
16(4) the Supreme Court has stated in Mohan Kumar Singhania v. Union of India 5 that it is
an enabling provision conferring a discretionary power on the state for making any provision
or reservation of appointments or posts in favour of any backward class, which in the opinion
of the State, is not adequately represented in the service of the state.

Reservation does not rule out merit. Ultimately, the constitutional scheme is to have
candidates who would be able to serve the society and discharge the functions attached to the
office. The disadvantaged group or the socially backward people may not be able to compete

2
Indra Sawhney v. Union of India, AIR 1993 SC 477 at para 55 & 56.
3
Reserve places for the under privileged in state run educational institutions.
4
Reservation of government jobs.
5
Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1

7
with the open category people but that would not mean that they would not be able to pass the
basic minimum criteria laid down thereof.6

In the case of State of Kerela v. NM Thomas7, the Supreme Court has shown consciousness
and had laid down a few criteria which a classification must fulfil.

1. The basis of classification has to be backwardness.

2. The preferential treatment accorded to the backward classes has to be reasonable and
must have a nexus to the object in view, namely adequate representation of the under
represented backward classes.
3. The overall consideration of administrative efficiency should be kept in view in
giving preferential treatment to the backward classes.

The Court seem to have reacted to excessive affirmative action in Nagraj, a constitutional
bench pointed out that although the State was free to exercise its discretion in providing for
reservation, such discretion was not unfettered but subject to limitations, namely there must
exist compelling reasons for backwardness, inadequacy of representation in class of posts
keeping in mind the overall administrative efficiency, and that, even if state had reasons to
make reservations but the law enacting such reservations was liable to be set aside if it is
violated any substantive limits on the width of the power.

The Court also said that the reservation should be made on the basis of quantifiable data
showing backwardness of the class and inadequacy of representation of that class in public
employment. The Court appeared to have introduced the principle of proportionality by
saying that even if the State has compelling reasons the State will have to see that its
reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50%
or obliterate the creamy layer or extend the reservation indefinitely.8

4. Classification of Reserved Categories

The framers of the Constitution made some arrangements for the upliftment of the backward
classes and improve their standing in the society. The specific provisions for reservation are
to be found in Part III, particularly in Article 15(4) and (5) and 16(4), 16(4-A) and 16(4-B)
and in Part XVI particularly in Article 330, 331, 332, and 333.

6
Andhra Pradesh Public Service Commission v. Balaji Badhavath, (2009) 5 SCC 1
7
State of Kerala v. NM Thomas, AIR 1976 SC 490.
8
M. Nagraj v UOI ,(2006) 8 SCC 212

8
There are certain provisions providing for the affirmative action of the state, are declared by
the Court, not in contravention to the equality clause laid down in the Constitution under
Article 14 and more specifically under Article 15(1) and 16(1). The reserved categories are
classified into the following groups :-

4.1 Scheduled Castes and Scheduled Tribes

The provisions in Article 330, 331, 332 and 333 are restricted to the reservation of seats in
Lok Sabha and State Legislative Assembly and were initially valid for 10 years, from the
commencement of the constitution. Through successive amendments their lives have been
extended to 60 years from such commencements. 9

Article 330 provides for the reservation of seats for the SCs and STs in the Lok Sabha , in
proportion to their share in the population while Art. 332 provide the same for the same in the
Legislative Assembly respectively. They are confined only to SCs and STs while the
provisions in Article 15(4) and (5) and 16(4) prescribe no such limit. Art. 15(4) allows the
state to make any special provisions for the advancement of any socially and educationally
backward classes of citizens or for SCs and STs10.

4.2 Women and Children

Article 15(3) provides special powers to the parliament to make special provisions for women
and children. From the reading of clause (1), (2) and (3), together follows that while
discrimination of the ground of sex is impermissible, special provisions for women and
children are permissible.

In Government of Andhra Pradesh v. P.B. Vijayakumar11, the court gave a new dimension to
Article 15(3) by holding that the reservation for women in State employment was also
permissible under the provision notwithstanding separate provisions in this regard under
Article 16. In this case an Andhra Pradesh government rule which provided for 1)preference
for women in jobs better suited for them; 2) preference up to 30% for women in jobs for
which they are equally suited with men; and 3) direct recruitment to posts reserved
exclusively for women was upheld. The Court held that Art. 15(3) was broad enough to cover
any special provision for women including reservation in jobs

9
V.N SHUKLA, CONSTITUTION OF INDIA, (20th Edi, 2008).
10
Ibid.
11
Government of Andhra Pradesh v. P.B. Vijayakumar, AIR 1995 SC 1648.

9
Women are historically and otherwise a weaker section of the society for whose upliftment
Art. 15(3) is made, which should be given widest possible interpretation and application
subject to the condition that reservation should not exceed 50 % limit as laid down in Indra
Sawhney v. Union of India.12

4.3. Backward Classes

Article 15(4) empowers the Parliament to make special provisions for the advancement of the
socially and educationally backward classes. The SCs and STs are defined under Art. 366,
clauses (24) and (25) respectively. The constitution gives no definition of the backward
classes. Art. 340 however, contemplates appointment of a commission to investigate the
conditions of the socially and economically backward classes and such other matters as may
be referred to the commission by the President.

From several judicial pronouncements concerning the definition of backward classes, several
propositions emerge.

First, the backwardness envisaged by Art. 15(4) is both social and educational and not either
social or educational.13

Secondly, poverty alone cannot be the test of backwardness in India because by and large
people are poor, and , therefore, large section of population would fall under the backward
category and thus the whole object of reservation 14

Thirdly, backwardness should be comparable though not exactly similar, to the Scheduled
Castes and Scheduled Tribes.15

Fourthly, caste may be a relevant factor in determining backwardness but it cannot be the sole
factor.

Fifthly, poverty, occupation, place of habitation, all contribute to backwardness and such
factors cannot be ignored.

Sixthly, backwardness may be defined without any reference to caste. As the Supreme Court
has emphasised, Art. 15(4) “does not speak of castes, but only speaks of classes” and that

12
Indra Sawhney v. Union of India, AIR 1993 SC 477.
13
MR Balaji v. State of Mysore, AIR 1963 SC 649.
14
Janki Prasad Parimoo v. State of Jammu and Kashmir, AIR 1973 SC 930.
15
M.P. JAIN, CONSTITUTION OF INDIA,(20th Edi, 2018).

10
class and caste are not synonymous. Therefore, exclusion of caste to ascertain backwardness
does not vitiate classification if it satisfies other tests.

Article 16(4) is an enabling provision and confers a discretionary power on the State to make
reservations in the matter of employment in favour of the backward classes of citizens which
are not adequately represented in the State. In Indra Sawhney v. UOI16 it was reiterated that
Social, economic and educational backwardness are intertwined in Indian Context. As
regards identification of backward classes, caste may be used as a criterion because caste
often is a social class in India. But Caste cannot be the sole criterion for reservation.
Reservation is not being made under Article 16(4) is favour of a caste but a backward class.
Once a caste satisfies the criterion of backwardness, it becomes a backward class.

Among non-Hindus there are several occupational groups which are socially backward due to
historical reasons and thus they also constitute the backward classes as per Art 16(4).

In the same case, it was also stated that Backwardness under Art. 16(4) need not to be social
as well as educational as is the case with Art. 15(4). Backwardness contemplated by Art.
16(4) is mainly social backwardness. The Court has left the task of actually identifying the
backward classes to the commission and authority to be appointed by the government.

Reservation for a backward class is not a constitutional obligation. The provisions of Articles
330(1) (b) and (c) show that the Constitution has treated Scheduled Tribes in the autonomous
districts of Assam as a Separate category distinct from all other Scheduled Tribes. This
clearly indicates that when the constitution wanted to make a sub classification of Scheduled
Tribes, they have themselves made that in the text of the Constitution and have not
empowered any Government or Legislature to make a sub classification.17

4.3.(A) Exclusion of Creamy Layer

In the Mandal case, the Supreme Court has clearly and authoritatively laid down that the
“socially” advanced members of a backward class, “creamy layer” , has to be excluded from
the backward class and benefit of reservation under Art. 16(4) can only be given to the class
which remains after the exclusion of the “creamy layer”.

The Court explained further the rationale underlying the rule of exclusion of creamy layer. As
the creamy layer is not entitled to the benefits of the reservation, their non exclusion will be
16
Supra Note 12.
17
EV Chinnaiah v. State of A.P., AIR 2005 SC 162.

11
in violation of Art. 14 and Art. 16 in as much as unequals cannot be treated as equals,ir, equal
to the rest of the backward class.

At present, the benefits of the job reservations are mostly chewed up by the more affluent
sections of the backward sections and the less affluent sections keep on getting poorer and
more backward. Therefore, it is necessary that the benefit of the reservation should reach the
poorest and weakest section of the backward classes.

In Ashok Kumar Thakur v. State of Bihar18, the Supreme Court has assessed the validity of
unrealistically high levels of income or holding of other conditions prescribed by the
Legislatures of Uttar Pradesh and Bihar as criteria to identify the creamy layer.

4.4 Physically Disabled

The Court divided the total reservation of 50% into vertical and horizontal reservation. The
reservation in favour of SCs, STs and other backward classes may be called vertical
reservation while reservation in favour of physically disabled can be referred as horizontal
reservation.

The person selected under this quota will be placed in the appropriate category. ie., if he
belongs to the open competition category then he will be placed in the open category. Even
after providing for the horizontal reservation the over all percentage of reservation provided
to the backward classes should remain the same.

Article 16(4) on the other hand provides that the State can make special provisions in the
matters of public employment in favour of any backward class of citizens which in opinion of
the state is not adequately represented in the service of the State.

5. Quantum of Reservation

The Supreme Court has set its face, generally speaking, against excessive reservation, for it is
bound to affect the efficiency and quality by eliminating general competition. For the first
time, in Balaji19, the question was raised before the Supreme Court, relating to the extent of
special provision which the State can make under Section 15(4) . In this case, reservation
upto 68% was made by the State of Mysore for backward classes for admissions to the State
medical and engineering colleges. The Court insisted that Art. 15(4) cannot denude Art.

18
Ashok Kumar Thakur v. State of Bihar, AIR 1996 SC 75
19
V.N. SHUKLA, CONSTITUTION OF INDIA(20TH Edi. 2008)

12
15(1). The general principle laid down by the Court was that the maximum limit of
reservation should not be more than 50% viz., backward classes, Scheduled classes and
Scheduled Tribes. The Court emphasised on the fact that in order to save the interest of the
weaker sections of the society, the interest of the entire community cannot be ignored.

In the case of T. Devadasan v. Union of India20, it was held that each year of employment has
to be considered by itself and reservation for backward communities should not be so
excessive such that to create a monopoly or to disturb unduly the legitimate claims of other
communities. But in the case of State of Kerala v. NM Thomas 21 , the rule of maximum 50%
of reservation seemed to be diluted as this ruled was called by Fazl Ali, as a rule of “caution”
rather than an “absolute” rule,

In ABSK Sangh v. UOI22 the reservation in selection posts in railways for Scheduled Castes
and Scheduled Tribes was held valid. The quantum of reservation (17 ½%) in railways for
scheduled castes and scheduled tribes was not held excessive, with the remark that figures on
paper were not so important as the facts and circumstances in real life which showed that the
quota was never fully filled while in S.S. Sharma v. UOI23, it was held that whether or not the
reserved vacancies would be deserved or not is a matter primarily for the government to
decide. De-reservation could be restored to only when it is not reasonably possible within the
contemplation of the law to fill the reserved vacancies.

In Indra Sawhney v. UOI , it was held that Article 16(4) speaks of adequate representation
and not proportional representation. The total reservation cannot exceed 50% in one year
barring certain extra-ordinary circumstances. Also, a year is to be taken as a unit for the
purpose of applying the 50% rule. The Court has now over ruled the Devadasan case, which
ruled out the carry forward rule. Thus, the reserved posts in one year can be carried forward
to the next year but subject to the over-all limit that over all reservation in one year should
not exceed 50%.

6. Scope of Reservation

6.1 Reservation in Judicial Services

20
T. Devadasan v. Union of India, AIR 1964 SC 179.
21
State of Kerala v. NM Thomas, AIR 1976 SC 490.
22
ABSK Sangh v. UOI, AIR 1981 SC 298.
23
S.S. Sharma v. UOI, AIR 1981 SC 588.

13
In the case of State of Bihar v. Bal Mukud Sah24the Supreme Court declared a State Act
seeking to make reservations for SCs, STs and OBCs in subordinate judiciary
unconstitutional, as the State enacted the Act without any consultation with the concerned
High Court.

The Court insisted that Article 16(4) must be read with Art. 335. This means that
maintenance of efficiency of administration in the making of appointments to services and
posts is a sine qua non before considering the case for reservation in judicial service. Further,
the High Court must be consulted before enacting any such law as according to Article 235,
the High Court is entrusted with full control over subordinate judiciary. The Supreme Court
has asserted that the independence of the judiciary and separation of powers between
Legislature, Executive and Judiciary are the two principles which constitute the basic
structure of the Constitution and thus these principles cannot be violated by law.

6.2 Reservation in Promotion and Seniority

In Rangachari25the Supreme Court by majority held that Art 16(4) permitted reservation of
posts not only at the initial stage of appointment but also included promotion to selection
posts. This proposition was reiterated in several subsequent pronouncements by the Supreme
Court. In Indra Sawhney it was opined that Art. 16(4) was confined to initial appointments
and does not permit or warrant reservations in the matters of promotions as such as it give
rise to several untoward and iniquitous results. Thus Rangachari judgement was overruled.

Since then , however 77th Constitutional Amendment has been brought into effect permitting
reservations in promotion to the Scheduled Class and Scheduled Tribes. Thus by amending
the Constitution the Parliament has removed the base as interpreted by the Supreme Court in
Indra Sawhney case that “appointment” does not include “promotion”. Article 16 (4-A) thus
revives the interpretation put on Art.16 in the Rangachari case.

It may however be noted that Art. 16 (4A) permits reservation in promotion posts only for
the members of Scheduled Castes and Scheduled Tribes but not for other backward classes.
This means that the position taken by the Supreme Court in the Indra Sawhney still prevails
with regards to OBCs for the promotion posts.

24
State of Bihar v. Bal Mukud Sah, AIR 2007 SC 217.
25
Rangachari, AIR 1962 SC 36.

14
In Suresh Chand Gautam v. Union of India26it was held that in matters of reservation in
matters of promotion and seniority in public employment for SCs and STs, it was explained
that Article 16(4A) and 16(4B) are enabling provisions and confer discretionary powers on
State authorities to provide for reservation in promotion and seniority, and State is not bound
to provide for such reservation.

6.3 Reservation in Admissions

Under Art. 15 reservation in educational institutes can be made fore “

1. Women under Art. 15(3)

2. Socially and educationally backward classes and Scheduled Castes and Scheduled
Tribes under Art. 15(4) and 15(5)
3. Other groups not falling under Art. 15(3), 15(4) and 15(5).

The equality principle under Art. 15(1) is not infringed so long reservation is made for a class
which can be identified on the basis of a rationale, relevant and intelligent differentia and
there is nexus between the differentia and the object to be achieved. The Supreme Court has
stated the “socially and economically” backward can be shown some preferential treatment
because of Art. 15(4). The same principle can be applied to the other handicapped sections
which do not fall under Article 15(4) . Thus reservation of seats for children of defence
personnel, ex defence personnel, political sufferers has been upheld.27

Duty to maintain distinction between aided and unaided private educational institutions in
matters of admissions of students belonging to SEBCs/SCs and STs in unaided educational
institutions. It was held that law made to effectuate Article 15 (5) must provide for
compensation to the unaided institutions.28

Reservation for children of residents of Union Territories (other than Delhi) in professional
institutions has been upheld because of general backwardness of these areas and absence of
such institutions there. Also, reservation for children of govt. Servants posted abroad in
Indian missions has also been upheld because these persons face difficulties in matter of
education.29If the sources are properly classified on territorial, geographical or other

26
Suresh Chand Gautam v. Union of India, AIR 2016 SC 1321
27
DN Chanchala v. State of Mysore, AIR 1971 SC 1762.
28
Pramati Educational & Cultural Trust v. UOI, (2014)8 SCC 1.
29
Chitra Ghosh v. UOI, AIR 1970 SC 35.

15
reasonable basis it is not for the court to interfere with the manner and method of making the
classification.

6.4 Reservation in case of Single Post :

It has been ruled by the Supreme Court in Chakradhar Paswan v. State of Bihar30 that where
there is only one post in the cadre there can be no reservation for the backward classes with
reference to that post either for recruitment at the initial stage or filling up a future vacancy in
respect to that post. The reservation that comes under Art. 16(4) presupposes the availability
of at least more than one post in that cadre. According to Devadasan no reservation can be
made under Art. 16 (4) so as to create a monopoly. Otherwise the guarantee of the equal
opportunity contained in Art.16(1) and 16(2) would be rendered wholly meaningless and
illusory.

Hence, until there is a plurality of posts in the cadre, the question of reservation does not
arise. Article 14, 15 and 16 must be applied in a manner so that the balance in struck in the
matters of appointments by creating reasonable opportunities for the reserved classes and also
for the other members of the community who did not belong to the reserved classes.

7. Conclusion

The affirmative action of the state, i.e., the reservation has become a bane for contemporary
India. More and more sections of the society are demanding reservations in different areas.
The politicians are also vying among themselves for demanding reservations for all whether
deserved or not. Needless to say reservation is inequitable insofar as a meritorious candidate
may have to be passed over in favour of a much less meritorious candidate in a reserved
category.

The general category candidates had every locus to challenge appointments to unfilled
vacancies in reserved categories, meant to be by way of direct recruitment, made instead by
in-service reserved category candidates, since the larger issue involved as to entitlement of
general category candidates as successful candidates belong to direct recruit source to seek
their appointment to unfilled post.

An affirmative action policy that keeps in mind only historic injustice would certainly result
in under protection of most deserving backward class of citizens, which is constitutionally

30
Chakradhar Paswan v. State of Bihar, AIR 1988 SC 959

16
mandated. The perception of a self proclaimed socially backward class of citizens or even the
perception of the advanced classes as to the social status of “less fortunates” cannot continue
to be constitutionally permissible yardstick for the determination of backwardness. There is a
need for continuous evolution in bases, practices, methods and yardsticks for determination
of true backwardness and groups which are truly deserving of affirmative action and away
from caste centric determinations, to enable recognition of newly emerging groups in society
which truly deserve palliative action.

17
 Bibliography

Books Referred

1. J.N Pandey, Constitutional Law, Central Law Agency, 37th Edition, (2001)
2. V.N Shukla., Constitution of India , Eastern Book Company, 12th Edition,(2008)
3. M.P. Jain, Indian Constitutional Law, 8th Edition, Lexis Nexis,(2018)

Legal Database Referred

1. Manupatra Online Resources

2. . SCC Online

18