Originally the fundamental rights in the constitution of India to do not
provide for reservation of any kind on the grounds of caste, or social and
educational backwardness. However, the Art 330 and 332 provides for reservation
of seats in the state and union legislatures for the SC and ST.
In this case, the madras Govt had by a G.O reserved seats in medical and
engineering colleges for different communities on the basis of religion, race
and caste. The GO was held void by the supreme court because it classified
students on the basis of caste and religion irrespective of merit.
Subsequent to this Article 15(4) was added by the constitution (1st amendment)
act 1951 to overturn the Chamapkram Judgement.
Article 15(4) states that:
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
After this amendment the Kaka Kalekar committee
was constituted to find out the
grounds on which reservation should be provided.
The two most contentious issues in the application of Article 15(4) as well as
Article 16(4) have been:
(i) Determination of backward classes.
Backward classes is not defined in the constitution. Article 340 however
empowers the president to appoint a commisision to investigate conditions of
socially and educationally backward classes. On the basis of the report of the
commission, the president may specify as to who are to be considered as backward
classes. In Balaji v State of Mysore, the Mysore Govt issued an order under
Article 15(4) reserving seats in the medical and engineering colleges of the
state as follows- backward Classes 28%, more Backward Classes 20%, Sc And ST
18%. Thus 68% of the seats were reserved and only 32% were made available in the
merit pool.The court held that the sub classification made by the order between
backward classes and more backward classes was not justified under article
15(4). Backwardness as envisaged by the article must be both social and
educational and not either social or educational. Caste cannot be the sole test
for ascertaining backwardness. Poverty , occupation, place of habitation are
relevant factors and need to be taken into consideration. The impugned order,
however proceeds only on the basis only on the basis of caste without regard to
other factors and that is sufficient to render the invalid.
- In Jayasree v. State of Kerala, the supreme court held that neither caste by
itself nor poverty by itself is a determining factor of social backwardness.
- P Rajendran v State of Madras- SC upheld the test of backwardness which was
solely based on caste and was contravening to Balaji Judgement.
- KC Vasanth Kumar v State of Karnatka – Both caste and poverty would be
relevant factors in determining backwardness and caste cannot be the sole
criteria as the term used in Article 15 is class and not caste. Both social and
educational backwardness should be kept in ind before formulating a reservation
(ii) Extent or quantum of reservation
In Indra Sawhney v UOI
well known as the mandal commission case, the supreme
court by 6:3 majority held- The sub classification of backward classes into more
backward and backward for the purpose of Article 14(5) can be done but as a
result of sub classification , the reservation cannot exceed more than 50%.
Reservation in Promotion was denied.
State of UP v Pradeep Tandon-
The court held that reservation could not be made
on grounds of being from rural area. Rural element does not make a class.
Transplantation to backward class by adoption marriage or conversion:
- High Caste Girl Marrying a Schedule Tribe- Not entitled to benefits of
Dr. Neelima v Dean PG Studies AP Agricultural University- it has been held that
a high caste girl marrying a boy belonging to Scheduled Castes is not entitled
to the benefit of reservation available to STs.
In Meera Kanwaria v Sunita, if a female of a high hindu caste marries a person
belonging to the Schedule Castes , she is not entitled to the benefit of
reservation under 15(4) and 16(4).
- Low caste girl marrying a high caste husband-
Vijay Laxmi v State of HP- A low caste wife is entitled to continue having the
benefits of reservation even after marrying a high caste person.
- Rameshbhai Dabhai Naika vs State Of Gujarat-
The question was whether a person whose mother belongs to ST and the father
belongs to upper caste is entitled for the affirmative action of the state.
It was held that the offspring will take the caste of the father and this
presumption will act stronger when the father is from the upper caste.
It was also held that a person transplanted to a lower caste through marriage,
adoption or conversion is not entitled to the benefit of reservation in 15(4) or
16(4) because he got an advantageous start in life by virtue of being from the
Reservation in matters of Public employment- 16(4)
Art 16(4) of the Indian Constitution states that- Nothing in this article shall
prevent the State from making any provision for the reservation of appointments
or posts in favour of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the service under the State.
Explaining the nature of Art. 16(4), the Supreme Court has stated 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 of citizens which, in the opinion of the state, is not adequately
represented in the service of the state.
The scope of article 16(4) is much wider than 15(4) because there are no
qualifying words which limit the definition of backwardness.
v. Union of India
, the carry forward rule was considered and was struck down
on the ground that reservation under 16(4) cannot exercise to deny reasonable
equality in matters of public employment. In this case the reserved seats were
carried forward due to which the number of reserved seats exceeded 50%.
Carry forward rule
If all the reserved posts are not filled in a year for want of suitable
candidates from those classes, then the shortfall is to be carried forward to
the next year and added to the reserved quota for that year, and this could be
done for the next two years.
Sahwney v UOI
, the suprme court overruled Devdasan v Union of India
held that the carry forward rule valid so long as it did not in a particular
year exceed 50% of vacancies.
Reservation in Promotion
In State of Kerala v NM Thomas -The question was whether it is permissible to
give preferential treatment to SCs and STs under clause 1 of art 16. The court
upheld the validity of reservation in matters of promotion.
In A.B.S.K Sangh v UOI , The railways had reserved more than 50% of the seats.
the court upheld reservation in promotion and also upheld the carry forward
In Indra Sahwney v UOI, with respect to reservation in promotion, the court held
that reservation is confined only to initial recruitment and not in promotion.
The carry forward rule was upheld but the reserved seats should not exceed more
The Constitution 77th Amendment Act 1995-
In order to overturn the Indra
Sahwney Judgment, the court passed the 77th amendment act which allowed
reservation in matters of promotion.
The constitutional validity of 77th amendment was challenged in Ashok
Kumar Thakur v State of Bihar
. The court upheld its constitutional
Catch UP Rule
This concept first appeared in Union of India v Virpal Singh
. It was held
that if a reserved category candidate is promoted earlier than his senior(
general candidate), but when the general candidate also gets promoted later, he
would regain his seniority. The seniority between the general and reserved
candidates would continue to be governed by their panel position. Accelerated
promotion due to seniority does not give accelerated or consequential seniority.
Consequential Seniority rule- It is also called accelerated seniority, if a
reserved candidate is promoted earlier than the general (senior) candidate, the
reserved candidate would be considered senior even after the general candidate
is promoted to the same position.
In Ajit Singh Juneja v state of Punjab-1 and M.G. Badappanavar v State of
the court applied the consequential seniority rule.
The 81st Constitutional amendment
removed the 50% ceiling for backlog
vacancies which was put in the
case of Indra Sawhney
The 85th amendment
gave the benefit of consequential seniority in case of
reservation in promotion.
The constitutional validity of the amendments was challenged in M Nagraj V Union
of India and the court upheld the validity of the amendments.