Judges: Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose, JJ.

Facts:

The Punjab Government by Circular No. 1818-SW-75/10451 dated 5.5.1975 provided that out of seats reserved for Scheduled Castes, fifty per cent of the vacancies would be offered to Balmikis and Mazhabi Sikhs. The Circular was struck down by a Division Bench of the Punjab and Haryana High Court and S.L.P. filed against the same was also dismissed.

The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 was notified on 5.10.2006. Section 4(5) of the Act made similar provisions as were made in the Circular, which was struck down. It stipulated that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing first preference from amongst the Scheduled Castes candidates. A Division Bench of the Punjab and Haryana High Court struck down the provisions contained in Section 4(5) of the Act after relying upon the decision in E.V. Chinnaiah v. State of A.P. and Ors. reported in MANU/SC/0960/2004. The matter reached before present Court.

A Bench of three Judges referred the matter to a larger Bench for consideration opining that the judgment of a 5-Judge Bench in E.V. Chinnaiah v. State of A.P. and Ors. MANU/SC/0960/2004 is required to be revisited in the light of Article 338 of the Constitution of India, and not correctly following the exposition of the law in Indra Sawhney and Ors. v. Union of India and Ors. MANU/SC/0104/1993.

Issues:

(i) Whether the decision in E.V. Chinnaiah v. State of A.P. and Ors., MANU/SC/0960/2004 required to be revisited?

Law:

(i) Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 -Section 4(5)

(ii) Constitution of India - Article 341 - Scheduled Castes.--(1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification.

(iii) Constitution of India - Article 342 - Scheduled Tribes.--(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification.

(iv) Constitution of India - Article 342A - Socially and educationally backward classes.-- (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under Clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification.

Contentions:

Appellant

(i) The decision in E.V. Chinnaiah erroneously proceeded on the premise that affirmative action taken by the States by giving preference to certain Scheduled Castes Under Article 16(4) tinkers with the Presidential List Under Article 341.

(ii) The Punjab Act has been enacted Under Article 16(1) and 16(4) read with Articles 245 and 246. The provisions of Section 4(5) of the Punjab Act are within the legislative competence of the State.

(iii) The Court in E.V. Chinnaiah erred in interpreting the majority ratio in Indra Sawney on the question of sub-classification within a class. At least five out of nine Judges in Indra Sawney held that amongst the backward, there may be some more backward, and when State chooses to make such classification, it would be permissible in law. Unequivocally in the majority, it was held that backward classes can be classified into more backward and less backward classes.

(iv) The expression "backward class of citizens" used in Article 16(4) covers in its ambit the Scheduled Castes and Scheduled Tribes and other backward classes, including the socially and educationally backward class.

(v) The preferential treatment is a facet of equality Under Article 14. Any enactment by the State giving preference to more backward amongst the backward fulfils the object of Article 16(4). Six out of nine Judges in Indra Sawney held that Article 16(4) is not an exception to Article 16(1). The preferential treatment given to certain Scheduled Castes/Scheduled Tribes does not violate Article 14. It intends to provide proportional equality. The classification is based on intelligible differentia.

(vi) The decision in E.V. Chinnaiah is contrary to other binding judgments, such as K.C. Vasanth Kumar and Anr. v. State of Karnataka, MANU/SC/0033/1985 , which was approved in Indra Sawney.

(vii) In case it is assumed that all castes are homogeneous by virtue of being in the List within Article 341, it is only addition, or deletion of any caste in the list would be impermissible. It is permissible for the State to give preferential treatment within the list based on the comparative backwardness of any class, there is nothing in Article 341, which prohibits the same. Article 341 does not take away the power of the State Under Article 16(4) to make provisions for giving preference. Such preferential treatment is not only permissible but necessary to bring equality.

(viii) There is no bar to grant a State's preference Under Articles 341(2) and 342(2) of the Constitution. The Constitution does not forbid mere preference. The State Government cannot exercise power concerning inclusion and exclusion. This Court in Indra Sawney upheld a classification of the backward and more backward class Under Article 16(4).

Respondent

(i) The Parliament alone has the power to exclude castes listed in the Schedule.

(ii) Considering the binding precedent doctrine, the decision in E.V. Chinnaiah is not required to be revisited wherein a possible view has been taken. The judgment concerning the construction of statutes ought not to be overruled except in exceptional cases. The unforeseeable consequences would follow if the judgment is overruled. It requires to be revisited if it causes great uncertainty, or it relates to some broad issue or principle, or the same is unjust or outmoded, not otherwise.

(iii) In Indra Sawhney, the sub-classification was limited to socially and educationally backward classes. None of its observations would apply to Scheduled Castes and Scheduled Tribes. The Scheduled Castes and Scheduled Tribes are backward for the provisions of Article 16(4). The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes. The decision in Indra Sawhney was understood in the correct perspective in E.V. Chinnaiah.

(iv) In N.M. Thomas, it was held that Scheduled Castes and Scheduled Tribes are backward classes. No sub-classification can be made. The exclusion from the list is prerogative of the Parliament. The object of Article 341(1) is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. In the Presidential Order, even the court cannot make any alteration. No enquiry is permissible to determine whether or not some particular community falls within the list or outside it as laid down in State of Maharashtra v. Milind and Ors. MANU/SC/0724/2000.

(v) The legal fiction created Under Article 341 is to be given full effect. The provisions of Section 4(5) of the Punjab Act cannot be said to be constitutionally valid. The Governor is empowered only to make recommendations Under Article 341 for alteration in the list. No further classification can be made once Scheduled Castes, and Scheduled Tribes are covered Under Article 16(4).

(vi) Sub-classification is not permissible in the caste grouped in one entry of the list. It is not permissible to leave one caste grouped within the list. The power has been exercised maliciously.

Analysis:

(i) The State's obligation is to undertake the emancipation of the deprived Section of the community and eradicate inequalities. When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub-classification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided.

(ii) Providing a percentage of the reservation within permissible limit is within the powers of the State legislatures. It cannot be deprived of its concomitant power to make reasonable classification within the particular classes of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes without depriving others in the list. To achieve the real purpose of reservation, within constitutional dynamics, needy can always be given benefit; otherwise, it would mean that inequality being perpetuated within the class if preferential classification is not made ensuring benefit to all.

(iii) The sub-classification is to achieve the very purpose, as envisaged in the original classification itself and based thereupon evolved the very concept of reservation. Whether the sub-classification would be a further extension of the principle of said dynamics is the question to be considered authoritatively by the Court.

(iv) The State has the competence to grant reservation benefit to the Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1). It prescribes the extent/percentage of reservation to different classes. The State Government can decide the manner and quantum of reservation.

(v) The State Government is the best judge as to the disparities in different areas. It is for the State Government to judge the equitable manner in which reservation has to be distributed. It can work out its methodology and give the preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit.

(vi) Apart from that, the other class out of Scheduled Castes/Scheduled Tribes/socially and educationally backward classes, who is not denied the benefit of reservation, cannot claim that whole or a particular percentage of reservation should have been made available to them. The State can provide such preference on rational criteria to the class within lists requiring upliftment. There is no vested right to claim that reservation should be at a particular percentage. The spirit of the reservation is the upliftment of all the classes essential for the nation's progress.

(vii) The "inadequate representation" is the fulcrum of the provisions of Article 16(4). t would be open to the State to provide on a rational basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services. Reservation is a very effective tool for emancipation of the oppressed class. The benefit by and large is not percolating down to the neediest and poorest of the poor.

Conclusion:

(i) The decision in E.V. Chinnaiah is required to be revisited by a larger Bench; more so, in view of further development and the amendment of the Constitution, which have taken place.

Important precedents:

Indra Sawhney and Ors. v. Union of India and Ors., MANU/SC/0104/1993

E.V. Chinnaiah v. State of A.P. and Ors., MANU/SC/0960/2004