In Devadasan v. Union of India
, also known as ‘carry forward rule case’, the
scope of Article 16(4) was contemplated. In this case the government's
"enforcement guidelines" for the appointment of retrograde class persons to
public services was included. The overall language concerning the quantum in Balaji took on a whole new facet in this case.
In this case the petitioner, a Central Secretariat assistant level IV was
competent for the next Unit Officer grade. The U.P.S.C. in 1961, organized a
competitive examination which was held for the position of Assistant
Superintendent to fill 45 vacancies of which 29 vacancies were reserved for SCs
and STs and the subsequent vacancies remained open. The petitioner challenged
the government to have a reasonable chance of being selected for the post if it
restricted the normal quota of 17% for Scheduled Castes and Tribes, because then
more vacant jobs could have been made. Furthermore, in 1952 the government had
introduced the "carry forward law".
The issues were that whether the carry forward rule was challenged so far as the
privileges granted by Article 16 clause (1) ought to be nullified or lost and
whether or not the aft class was properly portrayed was left to the state's
The rule discussed in this case was The Carry Forward Rule which states that in
addition to the existing reserves, unfilled vacancies for reserved category
candidates are to be extended to the next year, thereby increasing the quantum
or reserves in the next year by the amount that is actually unfulfilled (with a
limit of two years, in this case). It ended in 64.4 percent of vacancies that
were to be filled with Scheduled Castes and Tribes in the recruitment yearly
issue i.e. in the third year.
The Court held that, following Balaji, the reserve vacancies in any one year had
raised to more than 50% because they were not constitutional because of the
carry-forward clause. While Balaji agreed on the number of reservations in
educational institutions, it made certain observations concerning the need for
valid and permissible limits of reservation equating both Articles 15(4) and
16(4). However, the obiter was followed by a majority in Devadasan that made
arbitrary and unfair the modified transit law. Concerning the Balaji dictate of
a quantum rule less than 50% and the belief that Article 15(4) and Article 16(4)
were exceptions to key clauses, the Court overshadowed the carry forward rule as
amended in 1955 by a majority of four to one in all.
Although the Court found that to have been the case, it also noted that as
Article 16(4) applied to "appointments," the entire scope of work opportunities
covered by Articles 16(1) and (2) did not cover. The Court found, in particular,
that "no exception can be made for marginalized groups in matters relating to
salaries, promotions, compensation, pension, and age of superannuation. Although
the Court found that to have been the case, it also noted that, as Article 16(4)
applied to "appointments," the entire scope of work opportunities covered by
Articles 16(1) and (2) did not cover. The Court found, in particular, that "no
exception can be made for marginalized groups in matters relating to salaries,
promotions, compensation, pension, and age of superannuation.
The Court stated that the reservations cannot be used to destroy or annul the
idea of equal opportunities and that in some instances clause (4) can have
overriding effects on clauses (1) and (2) of Article 16 only to make a
reasonable amount of reservations for appointments and posts. The Court stressed
that the quota for disadvantaged communities should not be disproportionate to
carry out the guarantee, every year of recruitment should be taken into account
for itself, to establish a monopoly or unduly disrupt the legitimate demands of
The Court suggested the formula for striking balance: If the reservation is so
unreasonable, it effectively excludes members of other groups a fair job
opportunity, the situation could very well be different. A more advanced class
member may argue that equality has been denied by the State. Thus it was held
that it is a guarantee to each individual citizen and that each person, who
seeks employment or appointment to the office of the State is entitled to be
allowed to pursue those employments or appointments whenever they are intended
to be filled.
The 50 percent rule only applies to proper reservations, i.e., backward classes
reservations made under Article 16(4). This rule applies. The law cannot,
however, be applied to exemptions, concessions, or reliefs given to retroactive
classes in compliance with Article 16(4).
The critical issue is how much merits and efficiencies should be overridden in
the affirmative action programs, which are based on utterly meaningless criteria
like caste and ethnicity. Inequality is caused when the equals are treated
unfairly and when the unequal’s are treated equally. The selection of the right
distribution basis for choice is not problematic. Individual needs, rank, merit,
and right have been proposed as suitable foundations for the allocation of
benefits, under appropriate conditions. We cannot include in defining a "section
of society" sections of the population identified solely by their
characteristics since some segments of the population would be excluded.
Everybody might agree that merit is an acceptable criterion for obtaining
medical university admissions – if seats are restricted.
The rejection of future candidates for reasons other than merit is now the
primary denial of equal opportunities. The intent of continuing to do so is to
ensure that a certain number of people belonging to a specific group are present
at a given time. The selection process and its classifications are designed to
achieve the end goal of adequate representation of the party. As such, thus, it
was both unforeseen and ideologically appropriate in Devadasan.
Justice Subba Rao took a more logical and distinguished approach as the whole
definition of equality was a revolutionary challenge to the issue of the
reservations in the sphere of government work in his dissenting opinion.
According to him, in matters relating to work or appointment to an office in the
State, that all citizens will have equal opportunity. The phrase "Nothing in
this Article" is a legislative instrument that most clearly expresses its
purpose that the power bestowed on it is not limited to the terms of the laws
but that is beyond them. It did not really create an exception, but it retained
a power unaffected by the other provisions of the article. The rule of law is
structurally crafted to disadvantage groups and endure systemic discrimination
so as individuals are part of those groups. Corrective interventions aimed at
communities are therefore no exception to the general concept of equality, but
help to achieve the underlying purposes of equality.
In the term "any provision," he also analyzed the meaning and contents of the
word "any," and held that it was extensively used and left indiscretion the
essence of the provision that the State was to make. The provision obviously
caused significant problems for people who requested for the second or third
selection, unlike in the case of an earlier selection or selection, though non-SCs
and non-STs were taken as the same and since an unreasonably disproportionate
proportion of the system strength is developed with these castes and tribes, it
cannot be argued that the law is not a reservation but the extinction of a
fundamental right. So he observed that rejecting the contention that the carry
forward rule would amount to the annihilation of fundamental rights.
So, 16(4) move to an "emphatic" restoration from an exception to rule 16(1) and
(2). Logically, therefore, it is no longer 16(4) that is legitimizing statutory
discrimination, but 16(1). And that is, it requires a promise of affirmative
action in the principle of fair rights agreed to in the Constitution. Only other
constraint was noticed in the terms 'for appointments or posts vacancies,' i.e.
whether the provision had been made for appointing or reserving positions for
the backward citizenship classes.
Article 16, Clause (4) only constitutes an exception to the remainder of that
Article, it is an aspect of equal opportunity enshrined in clause (1) of the
Article and an important method of its execution and realization. Clause (4)
does not seek approval but instead offers them substantive aid and value from
everything in Article 16 of clauses (1) and (2). It has the same purpose as the
(1) and (2) clauses for ensuring equal opportunities. Therefore, clearly,
clauses 1 and 2 or any of the other characteristics in the article are just
The following conclusion was reached: It was important to remember that equal
opportunities guaranteed in clause (1) shall apply to every individual citizen
of the country whereas in clause (4) special arrangements for socially
disadvantaged classes are made. Both must be mutually compatible. This should
not be allowed either for the other to overshadow. Therefore it was considered
that, as the unit and not as the whole force of the framework, service or unit
should be taken as the purpose of applying the rule of 50 percent per year,
Under the spirit of Article 16, the carry-forward system was fully consistent
with (4) and if it was not followed the forward rule, backwardness would be
committed and would eventually lead to a closed space.
So, if any reservations go beyond 50% then it would be invalid, or the
carry-forward rule would become invalid. Since Article 16(4) forms part of the
constitution, an unreasonable reservation could not be allowed to the State to
undermine the laws set out in Article 16(1) of the Constitution. Regarding what
a reasonable restriction would be within its acceptable limits, it must rely on
the facts and conditions in each case, and no the stringent and fast rule could
be defined and that matter could not be constrained to a math equation to be
adhered to in any case.
- (1964) SC 179.