CONCEPT OF RESERVATION

INDEX
1.ORIGIN OF CASTE SYSTEM-----------------------------------------------------------------3
2.WHO ARE THE SC, ST AND OBC-----------------------------------------------------------3
3.WHY RESERVATION NEEDED-------------------------------------------------------------3
4.HISTORY OF RESERVATION IN INDIA--------------------------------------------------4
5.CONSTITUENT ASSEMBLY DEBATES---------------------------------------------------6
6.RESERVATION UNDER CONSTITUTION------------------------------------------------7
7.THE MANDAL COMMISSION AND THE INDRA SAWHNEY CASE--------------10

8.ARTICLE 15(4) AND 16(4) EXCEPTIONS TO ARTICLE 15(1) AND 16(1)

RESPECTIVELY? -------------------------------------------------------------------------------11

9. AFFECT OF MARRIAGE, ADOPTION AND CONVERSION ON CASTE--------12

10. INTRODUCTION OF CATCHUP RULE-----------------------------------------------14
11.OTHER ARTICLES RELATED TO RESERVATION---------------------------------16
12.VERTICAL AND HORIZONTAL RESERVATION-----------------------------------17
13.CONCLUSION---------------------------------------------------------------------------------1
7

14. BIBLIOGRAPHY-----------------------------------------------------------------------------18

ORIGIN OF CASTE SYSTEM

The origin of reservation has its roots scattered from ancient times when Varna system,
untouchability was dominant. Hindu society was divided on the basis of caste. There are many
theories of origin of caste. According to a theory found in Rig Veda, the first humans in our
universe destroyed themselves to create our society. People of different categories I.e., varna
came out of their different body parts, from the head came out the Brahmanas-the intelligent and
knowledgeable, from the arms came out the Kshatriyas-warriors, from thighs came out Vaishyas
the traders and from feet came out Shudras-those who do menial jobs. One category that is
missing is the Dalit, who are not even present in this classification, this is why they are called
avarnas1. Another theory states that the caste depends on the deed of the past life.

WHO ARE SC, ST AND OBC?

SCHEDULED CASTE- These are those communities which are below shudra varna. They
were subject to untouchability and performed professions like agriculture, manual scavenging,
labourers etc. Only marginalized Hindu communities can be deemed as Schedule Caste in India.2

SCHEDULED TRIBES- Marginalized communities on the basis of geographical isolation,

primitiveness, shyness and social, educational and communicational backwardness3. As per
Census-1931, Schedule tribes are termed as "backward tribes” living in the "Excluded" and
"Partially Excluded" areas. Article 366(25) of the Constitution only provides process to define
Scheduled Tribes.

OTHER BACKWARD CLASSES- Based on the 1931 census data, it was estimated that 52%
India’s population belonged to castes that were backward due to various socio-economic factors
like wealth or traditional occupation4. Reservation for OBC was started in 1992 on the
recommendation of Mandal Commission.

WHY RESERVATION NEEDED ?

The Scheduled castes (SC) , Scheduled Tribes (ST), and Other Backward Classes (OBC)
represent those social groups who suffered through the ages due to caste prejudices, economic

1
Deshpande, Manali S. “History of the Indian Caste System and its Impact on India Today.” (2010).
2
The Constitution (Schedule Castes) Order 1950.
3
Vishnu Gupta, “Who are the SC,ST,OBC?” The Quint, 12 June 2018, available at
https://www.thequint.com/explainers/scheduled-caste-scheduled-tribe-obc-ebc-sc-st-prevention-of-atrocities-act
explainer (last visited on April 10, 2021).
4
Ibid.
inequality, educational backwardness and lagging behind in the field of education and economic
development in comparison to certain advance or the forward castes.

To eradicate the disparities caused, reservation policy was thought to be inevitable and justified
for deprived people therefore constitution authorize the state to adopt such affirmative action in
the form of reservation to uplift the socially backward groups to the level of equality with rest
citizen
The explicit purpose of reservation policy was and is to promote social, economic, and political
equality for the SC, ST and OBC through positive or compensatory discrimination. By this
policy the leaders of independent India declared their determination to eradicate inequalities.

The Constitution of India authorize the state to adopt such affirmative action in the form of
reservation, to uplift the backward class.

Constitution serves as a transformative document to overcome, the deep structural inequalities

that Indian society suffered from centuries.

HISTORY OF RESERVATION IN INDIA

PRE-INDEPENDENCE- Reservation began much before Independence, there were a lot of
people in the 19th and 20th century who took concrete measures against our caste system, some
mention worthy people are Shahuji Maharaj, Jyotirao Phule and Dr. B.R Ambedkar.

1882- Idea of caste-based reservation was conceived by William hunter and Jyoti Rao Phule

1902- Shahuji Maharaja of princely state of Kolhapur introduced reservation in favour of non
Brahmans and backward class in education. He reserved 50% of government posts for backward
class candidates.5

1921- Mysore initiated reservation for backward castes.

In 1930 Dr B.R Ambedkar author of popular book like “Annihilation of Caste” and “the
emancipation of the untouchable” organized depressed classes congress in Nagpur and stated that
“safety of the Depressed Classes hinged on their being independent of the Government and the
Congress both”6

1932- Communal Award by British government grants separate electorates in India for Muslims,
Buddhists, Sikhs, Christians, Anglo-Indians, Europeans and Depressed Classes (then

5
Abhiram Ghadyalpatil, “Rajarshi Shahu Chhatrapati of Kolhapur, a reformer ahead of his time”Mint 10 August
2018,available at https://www.livemint.com/Leisure/PLkr7jdpCeZepho8RMVJbN/Rajarshi-Shahu-Chhatrapati-of
Kolhapur-a-reformer-ahead-of.html (last visited on April 10, 2021).
6
Conflict, Controversy and Congress, available at:
http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/timeline/1930s.html (last visited on April 9, 2021).
untouchables). Later, Poona Pact between M K Gandhi and B R Ambedkar reserves seats for
depressed castes within Hindu electorates7

1942- Viceroy's executive council recommended 8.5 % reservation for SC in civil services8.

In Kerala too reservation for the Ezhavas , Muslims other backward Hindus, lati catholic and
Anglo Indian and backward Christians were in effect for years before independence.9

Other initiatives- 1943 Bombay Harijan Temple Entry Act and 1947 Bombay Harijan (Removal
of civil disabilities) act. In the United Provinces, now UP, 1947 United Provinces Removal of
social disabilities act was put into force.1938 Madras removal of civil disabilities act and the
Travancore -cochin temple entry (removal of disabilities) act.

SIMON COMMISSION

Commission identified the need to safeguard minorities and others disadvantaged members.
Committee saw improvement of depressed classes situation as hinging on increased political
influence10. Simon rejected separate electorates for depressed classes. 11

IST ROUND TABLE CONFERENCE

Ambedkar and Srinivasan appealed for separate electorate and adult suffrage. Separate electorate
sere designed to be temporary, and after 10 years general electorate with reserved seats would
replace the separate electorates with consent of depressed classes. However, this conference was
inconclusive.

2ND ROUND TABLE CONFERENCE

Mahatma Gandhi too joined it and adamantly opposed separate electorate especially for
depressed classes. This was also inconclusive.

MC DONALD’S COMMUNAL AWARD AND POONA PACT

Award established separate electorate and reserved seats for minorities including depressed
classes. Gandhi rejected he compared it to the “injection of a poison I.e., calculated to destroy
Hinduism and do not good whatever”. Ambedkar too felt that very few seats are reserved for the
depressed class. As a result of widespread disapproval Poona Pact was reached.

GOVERNMENT OF INDIA ACT 1935

7
History of reservation in India, available at: https://www.goimonitor.com/story/history-reservation-india (last
visited on April 9, 2021).
8
Ibid.
9
Seema Chishti, “ Short History Of Quota , Story That Predates Mandal“ The Indian Express ,Sept. 1, 2015.
10
Brock, R. W., The Simon Report on India: An Abridgement (London: Dent, 1930) 11 John
Simon , India And The Simon Report : A Talk (New York: Coward-MacCann, 1930).
Reservation of seats for the depressed class was incorporated into the Government of India Act
1935.

CONSTITUENT ASSEMBLY DEBATES

The makeup of constituent assembly reflected the reality of what groups wield power in India, an
analysis of membership in advisory committee of constituent assembly found that 6.5% were SC,
Brahmin-45.7%12.

Minority and SC delegates have some influence during the assembly proceedings e.g. -HC
Mukherjee, Ambedkar.

Framers' main goals articulated in objective resolution included guarantees of equality, basic
freedoms of expression as well as adequate safeguards for minorities, backward and tribal areas
and depressed and OBC .These principles guided the delegates throughout the constitution
making process.

S.Nagappa and Jaipal Singh who were members of the depressed classes demanded reservation
proportion to population of backward classes, they demanded representation in cabinet as well.

Eg- X state has 40 % of depressed class population and Y has 30 %, then reserved seats in X will
be more than Y. Jaipal also argued for rights and dignity of Adivasis.

Members of the SC put forward that the reservation policy shall either renew after 10 years or
the 10 years clause shall be abolished, in case if-There is no substantial progress, there is a need
for more progress, there is no change in situation of depressed class even after 10 years13.

Leaders of Congress party were very articulate in upholding the rights of the depressed classes
and offer them adequate safeguards. Provisions regarding untouchability was generally
welcomed.

Explaining saga of discrimination H.J. Khandekar stated that-

“The condition is so deplorable that though the candidates of the SC apply for certain
government posts , they are not selected for the posts because the people who select the
candidates do not belong to that community or that section”14

During debate on article 16 (the then article 10) of draft constitution. Ambedkar mentioned that
theoretically guaranteeing everyone “equality of opportunity” may not be possible without
reservation for those who had faced a historical disadvantage.15

12
Christophe Jaffrelot , India’s Silent Revolution 208 (London : Hust & co).

13
The Debate on reservation in the constituent assembly, available at: https://blog.ipleaders.in/the-debate-on
reservation-in-the-constituent-assembly/ (last visited on April 15,2021).
14
VII, Constituent Assembly Debates,20.
15
VII, Constituent Assembly Debates,30.
Some were against the concept of reservation. H.C. Mukherjee opined that the appropriate
remedy for backward groups was economic but not political safeguards.
According to Mahavir Tyagi and Jerome D’Souza minorities should exist on economic, political
and ideological basis not on community basis.The house’s final vote was in favour of
reservations based on the social disadvantage of cast.

RESERVATION UNDER CONSTITUTION

ARTICLE 15- It prohibits discrimination on grounds of religion, caste, race, sex or place of
birth.

ARTICLE 46 of the Constitution provides that the State shall promote with special care the
educational and economic interests of the weaker sections of the society and in particular, of the
Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms
of exploitation.

The conflict between articles 15 and 46 came up in Chamapakam Dorairaja16 case in which the
government order to reserve seats in medical college on basis of caste to promote art. 46(DPSP)
was struck down as it violates article 15(2) of Constitution. To overturn this decision
Government brought the first amendment in the year 1951 and added clause 4 to article 15 ,
which is stated as follow

ARTICLE 15(4)- Nothing in this article or clause (2) of 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 SC and ST.

What are the backward classes?

Article 340 of the constitution gives the power to make a commission who would decide who
are the backward class of society, this will however be subject to judicial review.

In K.C. Vasanth Kumar v. State of Karnataka17 the Supreme Court had an occasion to consider
the question of characterizing backward classes. According to CHANDRACHUD, C.J., two tests
should be conjunctively applied for identifying backward classes: one, they should be
comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness;
and, two, they should satisfy the means test, that is to say, the test of economic backwardness,
laid down by the State Government in the context of the prevailing economic conditions.

Article 15(4) does not make any mandatory provision for reservation and the power to make
reservation under this article is discretionary and no writ can be issued to effect

16
AIR 1951 SC 226.
17
AIR 1985 SC 1495.
reservation.18Supreme Court in its various judgements have clarified that reservation is not a
fundamental right, and it is just an enabling provision of state19.

Article 15 (4) envisages the policy of compensatory or protective discrimination but it should be
reasonable and consistent with the ultimate public interest I.e., national interest and the interest
of the community or society as a whole.20

When considering a single post, no reservation can be made as it would amount to 100%
reservation21

In 1953, Rajendra Prasad constituted a commission under the chairmanship of Kaka Kalelkar,
to determine the criteria for classifying citizens as socially and educationally backward. The
report identified 2399 castes as socially and educationally backward. Caste was taken as the key
factor in making a list of backward classes and the criteria suggested for determination of
backward class was

1. Low social position in the caste hierarchy

2. Lack of educational progress
3. Inadequate representation in government service
4. Inadequate representation in the fields of trade, commerce and industry

However, the government rejected the report that caste be the basis for identifying economical
and educational backwardness announced that “it would be better to apply economic tests than to
go by caste,” and that state governments were free to define backwardness by criteria of their
choosing.22No meaningful action was taken pursuant to the Kaka Kalelkar Commission report,
which was considered to be too vague and of little practical value.

Again, the issue regarding backwardness arose in 1963 In M.R. Balaji v. State of Mysore23 where
governmental order issued by the State of Mysore, wherein backward classes were identified
exclusively on the basis of caste, the Supreme Court struck down this order and held the
following-

• Article 15(4) talks about “class of citizens” not “caste of citizens”

18
Gulshan Prakash v. State of Haryana, AIR 2010 1 SCC 477.
19
Mukesh Kumar v. The State of Uttarakhand, 2020 SCC OnLine SC 148;M.R.Balaji v. State of Mysore 1962 SCR
Supl. (1) 439;C.A. Rajendran v. Union of India 1968 SCR (2) 786; M. G. Badappanavar v. State of Karnataka 2001
(2) SCC 666.
20
Preeti Shrivastav v. State of Madhya Pradesh (1999) 7 SCC 120.
21
Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association AIR 1998 SC
1767.
22
Malavika Prasad. "From the Constituent Assembly to the Indra Sawhney case, tracing the debate on economic
reservations” The Caravan,28 March, 2019, available at https://caravanmagazine.in/law/economic-reservations
constituent-assembly-debates (last visited on April 16,2021).
23
1962 SCR Supl. (1) 439
• Backward envisaged by 15(4) is both socially and educationally not either. This means
class to be identified as backward should be both, court equated socially and
educationally backwardness to that of the SC and ST.
• Poverty, occupation, place of habitation all contribute to backwardness. • Backwardness
should be comparable though not exactly similar to SC and ST. • Backwardness may be
defined without any reference to caste. Caste may be a relevant fact to define
backwardness but not sole criteria.
• Reservation should not exceed 50 %
• Classification between backward and other backward class is unconstitutional.

This case was followed by – R. Chitralekha & Anr v. State of Mysore & Ors24. in which court
upheld an order of the government that defined "backwardness" without any reference to caste
using other criteria such as occupation, income and other economic factors.

Poverty, Caste, Place of habitation, Inferiority of occupation, low standard of education, low
standard of living are considerations for backwardness.25

Poverty alone cannot be the test of backwardness in India because by and large people are poor
and therefore large sections of people would fall under the backward category and thus whole
object of reservation would be frustrated.26

No class can be perpetually treated as socially and educationally backward. Backwardness

cannot continue indefinitely state is entitled to review situation. No rule that once a backward
always a backward class. 27

However, judicial view underwent a change and more importance was given to ‘caste’ as a factor
to access backwardness. In P.Rajendran V. State of Madras28 Supreme Court upheld the test of
backwardness which was solely based on caste and was contravening to Balaji Judgement.
Similar was held in many cases.29

However again Supreme Court took a contrary view and it held that it is impermissible to use
caste even as one of the factors in determining social and educational backwardness, as it would
stultify Article 15(1) 30. In KC Vasanth Kumar v State of Karnataka31 Supreme Court held that
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. In K.S. Jayasree v. State

24
AIR 1968 SC 507.
25
P.Sagar Vs State of AP, AIR 1968 AP 165.
26
Janki Prasad Parimoo v. State of Jammu and Kashmir (1973)SCR (3) 236.
27
Jagdish Negi v. State Of Uttar Pradesh (1997) 7 SCC 203.
28
AIR 1968 SC 507.
29
S.V. Balaram v. State of Andhra Pradesh, 1972 SCR (3) 247; Triloki Nath v. J. & K. State, 1 1969 SCR (1) 103;
A. Peeriakaruppan v. State of Tamil Nadu (1971) 2 SCR 430.
30
State of Uttar Pradesh v. Pradip Tandon 1975 SCR (2) 761
31
1985 SCR Supl. (1) 352
of Kerela,32 it was held that neither poverty nor caste can be sole factors for determining
backwardness. Caste and poverty are both relevant factors for determination of
backwardness.

If a caste as whole was socially and educationally backward, the reservation made of such
persons will have to be upheld notwithstanding the fact that a few individuals in that group may
be both socially and educationally above the general average33.

THE MANDAL COMMISSION and the INDRA SAWHNEY CASE

In the year 1979, the second backward class commission was set up for determining the criteria
for defining the socially and educationally backward classes. It identified 52% of the Indian
population as “Socially and Economically Backward Classes” (SEBCs), recommended a 27%
reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs.

The recommendations of Mandal Commission were challenged in Indra Sawhney case34 where
following were held-

• Article 1(4) is exhaustive of the provisions that can be made in favour of the backward
classes in the matter of employment.
• Backward classes of citizens are not defined in constitution. There is an integral
connection between caste, occupation, poverty and social backwardness. In the Indian
context, lower castes are treated as backwards. A caste may by itself constitute a class
• The backward classes can be identified in Hindu society with reference to castes along
with other criteria such as traditional occupation, poverty, place of residence, lack of
education etc, and in communities where caste is not recognized the rest of the criteria
would apply.
• The backwardness contemplated by Article 16(4) is mainly social. It’s need not be social
and educational.
•
Means test signifies imposition of an income limit for the purpose of excluding persons
from the backward classes. Those whose income is above the limit are referred to as the
‘creamy layer’ of the given caste can be excluded.
• Identification of backward classes is subject to judicial review.
• Classification based on caste was constitutionally permissible
• Classification between backward and more backward allowed.
• Reservation in promotion not allowed, because it will lead to reverse discrimination to
general candidate.
• Carry forward rule can be applied but subject to 50% limit.
32
1977 SCR (1) 194
33
State of A.P. Vs U.S.V. Balram AIR 1972 SC 1372.
1992 Supp 2 SCR 454
34

• 50% limit on reservations, it is not rigidly mandatory and provides relaxations in

peculiar, extraordinary or exceptional circumstances

Court has given a broad interpretation to Art. 16(4). The Court has broadly interpreted the word
‘reservation” therein. “Reservation” does not mean “reservation simpliciter” but takes in “other
forms of special provisions like preferences, concessions and exemptions.” “Reservation is the
highest form of special provision” while “preference, concession and exemption are lesser
forms”, and the former includes the latter.35

In Ram Singh v. Union of India36 the Supreme Court overturned a government decision to grant
reservations to the Jat community in nine states. “Backwardness is a manifestation caused by the
presence of several independent circumstances which may be social, cultural, economic,
educational or even political. Though caste may be a prominent and distinguishing factor for
easy determination of backwardness of a social group, this Court has been routinely
discouraging the identification of a group as backward solely on the basis of caste. 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 the "less fortunates" cannot continue to be a
constitutionally permissible yardstick for determination of backwardness, both in the context of
Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of
determination on the basis of mathematical formulae evolved by taking into account social,
economic and educational indicators”.

In State of Rajasthan v. Ganga Sahay Sharma,37 wherein this Court refused to stay the ongoing
legislative process creating reservations for ‘more backward classes’ which included Gujjars, but
restrained the State Government from taking any action conferring reservation, which will have
the effect of exceeding the total reservations beyond 50 per cent

ARTICLE 15(4) AND 16(4) EXCEPTIONS TO ARTICLE 15(1) AND 16(1)

RESPECTIVELY?
In GM Southern Railways v. Rangachari 38, it was held art. 15(4) to be an exception to art 15(1).
This view was again reiterated in Triloki Nath v. State of Jammu and Kashmir39 and in State of
Andhra Pradesh v. U.S.V Balram.40 However, 7 judge benches in State of Kerala v. NM
Thomas41 held that article 15(4) and 16(4) are not exceptions to 15(1) and 16(1) respectively.
Akhil Bhartiya Soshit Karamchari v. Union of India 42 reiterated it. 9 judge benches settled this
35
M.P.Jain, Indian Constitutional Law 1381(Lexis Nexis, 8th edn. 2018).
36
2014 SCC OnLine SC 314.
37
2017 SCC OnLine SC 1992.
38
1962 SCR (2) 586
39
1 1969 SCR (1) 103
40
1968 SCR (3) 565
41
1976 SCR (1) 906
42
1981 SCR (2) 185
issue in Indra Sawhney v. Union of India43 and upheld the principle laid down in NM Thomas
that these are not exceptions but emphatic statement of equality. Once this is established the
effect of this is that state is obliged to remove inequalities and backwardness. This obligation of
state has its source in the mandate of equality itself under article 14.

RELATIVE SCOPE OF ARTICLE 14,15, AND 16

Article 14 lays down the rule of equality in the widest term, while art. 15 prohibits discrimination
on the grounds specified therin but covering the entire range of state activities. Art. 16 embodies
the same rule but is narrower in scope since it is confined to state activities relating to office or
employment under the state.44

AFFECT OF MARRIAGE, ADOPTION AND CONVERSION ON CASTE

A person whose parents belonged to scheduled caste before conversion to Christianity would on
conversion to Hinduism be regarded as member of Scheduled caste only if he/she was accepted
by other member of caste.45

Person’s caste does not undergo change by marriage, caste is acquired by birth and does not
undergo change by marriage or adoption and if the person belongs to the backward class, he/she
will be continue to be and entitled to the benefit of reservation. Therefore, conversion, marriage
and adoption does not affect the caste of the person in which he/she belongs46 as the main
purpose of reservation is to uplift those who are handicapped from childhood due to being born
in lower caste.

Supreme Court has summed up the legal position in case where the parents are of different castes
and caste of child is to be determined as- the determination of caste of offspring is essentially a
question of fact to be decided on the basis of facts of each case. There may be presumption that
child has caste of father but by no means this is conclusive. It is open to the child of such
marriage to lead evidence to show that he/she belongs to SC/ST47

ARTICLE 15 (5)-Inserted by 93rd amendment, 2005.

It empowers the state to make special provision by law for the advancement of any socially and
educationally backward classes of citizens or for the SC or ST regarding their admission to
educational institutions including private ones and whether aided or unaided by the state,

43
1992 Supp 2 SCR 454
44
Durga Das Basu, The Constitution of India 109 (Lexis Nexis,Delhi, 24th edn, 2020)
45
Principal Guntoor Medical v. Y Mohan Roy (1976) 3 SCC 411; K.P. Manu v. Chairman, Scrutiny Committee,
2015 SCC OnLine SC 161.
46
Dr Nilima v. Deen of PG Studies Andhra Pradesh Agriculture University, Hyderabad ,AIR 1993 SC 229; Meera
Kanvaria v. Sunita 2006(1) SCC 344; Rajendra Shrivastav v. State of Maharashtra (2010) 112 BomLR 762;
Sandhya Thakur v. Vimla Devi (2005) 2 SCC 731.
47
Ramesh bhai Naika v. State of Gujarat (2012) 3 SCC 400; Arabinda Kr Saha v. State of Assam 2001 (3) GLT 45;
Rumy Choudhary v. The Department of Revenue NCT of Delhi ICL 2020 Del. 483.
excepting minority institution. It enlarges as opposed to truncating an essential and indeed a
primordial feature of the equality code.48 15 (5) acted only as an enabling action and hence it is
valid and it does not violate 14, 19(1)(g) and 2149. Ashok Kumar Thakur v. Union of India50 the
amendment as well as the Act was challenged. Herein the Court upheld the amendment as well
as the Act. It rejected the contention that Article 15(5) was contradictory to Article 15(4) and
upheld the exclusion of minority educational institutions from the purview of Article 15(5)

ARTICLE 15 (6)-Inserted by 103rd amendment, 2019.

It empowers state to make special provisions for advancement of economically weaker section
of society which would even include the reservation in educational institutions. The benefit of
this section can be availed by persons belonging to EWS who are not covered under any of
existing schemes of reservation for SC, ST and OBC51

This was challenged and numerous petitions filed before the Hon’ble Supreme Court one of them
being Youth for Equality , the matter remains sub-judice and has been referred to a larger bench
for conclusive deliberation.

ARTICLE 16(4)- This article talks about reservation of appointments or posts in favour of any
backward class of citizens.

"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 services under the State."

Carry forward rule envisaged that in a year if reserved posts were not filled in a year for want of
those candidates from those classes, then shortfall was to be carried forward to the next year and
added to the reserved quota for that year.

The scope of Article 16(4) was considered in Devdasan v. Union of India52 in this case
reservation of posts to members of backward classes had exceeded 50% and had gone up to 68%
due to carry forward rule, which was contrary to Balaji judgement. In this case carry forward rule
was struck down.
In Rly v. Rangachari53, State of Punjab v. Hiralal54, Akhil Bhartiya Shoshit Karamchari v.
Union of India55 reservation in promotion was upheld. However, this was overruled in Indra

48
Indian Medical Association v. Union of India (2011) 7 SCC 179.
49
Pramati Educational and Cultural Trust v. Union of India (2014) 8 SCC 1 ; Ashok Kumar Thakur v. Union of
India (2007) 4 SCC 361.

50
2008 6 SCC 1.
51
M Laxmikanth, Indian Polity (Mc Graw Hill 6th edn,2019).
52
1964 SCR (4) 680.
53
AIR 1961 Mad 35.
54
1971 SCR (3) 267.
55
1981 SCR (2) 185.
Sawhney case, which stated that reservation in promotion not allowed as it will be reverse
discrimination to general candidates.

Government nullified the effect of Indra Sawhney by inserting 16 (4A) by the 77th
constitutional amendment which allowed reservation in matters of promotion.

Article 16(4A) allowed the State to provide reservations to a SC/ST in matters of promotion, as
long as the State believes that the SC/ST is not adequately represented in government services.

Reservation in promotion is a contentious issue because the core of the disagreement is that
whether constitutional reservation mandates apply only at the entry level or at all levels of to
ensure adequate representation of the SC/ST.56

INTRODUCTION OF CATCHUP RULE

If a senior candidate of general candidate is promoted after SC/ST candidate he would regain his
seniority in promotion over the junior promoted ahead of him under the reserved vacancies.This
is catch-up rule.

Catup Rule was introduced in Ajit Singh Januja vs State Of Punjab(Ajit Singh I)57 and Union of
India v. Virpal Singh58.

After reservation in promotion was constitutionally recognized, it led to a situation where

reserved category candidate, who were promoted over general class counterparts became their
senior due to earlier promotion. This anomaly was addressed by these two judgements, which
introduced the concept of catchup rule. This rule held that senior general candidates who were
promoted after SC/ST candidates would regain their seniority over reserved category candidate
promoted earlier. In Ajit Singh I court stated “seniority of lower cadre will remain intact to avoid
reverse discrimination”.

In Virpal Singh court stated “once a general candidate is promoted, he would become senior if
he/she had been senior in the lower cadre. Seniority shall be governed by their penal position I.e.,
date of joining. Therefore, catchup rule was upheld and general candidate will catchup reserved
candidate.

Contrary to these two judgements in Jagdish Lal v. State of Haryana59, consequential seniority
was upheld. The decision in Jagdish Lal held that by virtue of the principle of continuous
officiation, a candidate belonging to a reserved category who is promoted earlier than a general
category candidate due to an accelerated promotion would not lose seniority in the higher
cadre.

56
Reservation in promotion, available at https://www.scobserver.in/beyond-the-court/cases-that-shaped-india-in
2018-6-reservation-in-promotion (last visited on April 16, 2021).
57
(1996) 2 SCC 715.
58
(1995) 6 SCC 684.
59
(1997) 6 SCC 538.
There was a conflict between two contrary judgements, Ajit Singh I and Virpal Singh on one side
and Jagdish Singh on other, Supreme Court clarified the position in Ajit Singh II , where it held
that 16(4) and 16(4A) did not confer fundamental right to reservation, it is just enabling
provision. So Jagdish Singh was overruled and bench applied the catch-up rule for determining
the seniority of the roster point promotees would be invalid.

However, these judgements were revered by passing 85th amendment to give consequential
seniority to SC and ST. Subsequently, the text of Article 16 (4A) was amended such that “in
matters of promotion to any class” became “in matters of promotion, with consequential
seniority to any class.

In order to overcome the limitation imposed by the Judgement of the Supreme Court, the 81st (
Amendment was made to the Constitution, in the year 2002, whereby Clause (4B) was
incorporated in Article 16 of the Constitution.

Clause 16 (4B) reads as follows:- “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.”

In the 82nd Amendment, the State added a proviso to Article 335. According to Article 335, the
claims of SCs/STs to services and posts have to be consistent with overall administrative
efficiency. In a way, the 82nd Amendment eviscerated the efficiency requirement. It introduced a
proviso which held that nothing in Article 335 would prevent the State from relaxing the
qualifying marks or lowering the standard of evaluation for reservation in matters of promotion
to members of SC and STs.

The proviso to Article 335 undid the Supreme Court’s 1996 judgement in Vinod Kumar60 which
specifically ruled against relaxations in qualifying marks in matters of reservation in promotion.

In Nagraj v. Union of India6177th, 81st, 82nd and 85th amendment was challenged, Supreme Court
upheld these amendments however it introduced controlling conditions which made it difficult to
grant reservation in promotion. The Court held that for reservation in promotion to be valid, the
State has to meet three compelling requirements:

1. Demonstrate the backwardness of the SC/ST

2. Prove that the SC/ST is inadequately represented in relevant public employment
3. Maintain the overall efficiency of administration

60
(1996) 6 SCC 580.
61
2006 8 SCC 212
Article 164A and 4B are enabling provisions and there is no automatic right to reservation in
promotion for SC/STs.

The three controlling conditions that Nagaraj introduced made it very difficult to advance
reservation in promotion policies.

in 2002, the state of Karnataka enacted a law stipulating – in effect – that consequential seniority
would follow upon the promotions of SC/ST employees. In 2017, the Supreme Court then found
that the Karnataka law did not comply with Nagaraj, and was therefore unconstitutional.62. After
the decision government formed Ratna Prabha Committee to submit a quantitative report
demonstrating the three Nagraj criteria. On the basis of the Ratna Prabha Committee report,
Karnataka passed the 2018 Reservation Act. In 2019, the Supreme Court upheld a reservation in
promotion policy63. The Supreme Court upheld a 2018 Karnataka Reservation Act on the ground
that the State had furnished sufficient data to demonstrate both that SC/STs are inadequately
represented and that the policy would not adversely affect efficiency. The 2018 Act introduces
consequential seniority for SC/STs in State Government Services. So, it can be concluded that
nowadays judgements by court is tilted towards consequential seniority.

Jarnail Singh v. Union of India64, in it invalidated the requirement of collecting quantifiable data
by states on the backwardness of SCs and STs while granting quota in promotions as laid down
by the Court in Nagaraj verdict. it on the other hand introduced the principle of creamy layer
exclusion. It held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant
reservations in promotion to SC/ST individuals who belong to the creamy layer of their
community.

OTHER ARTICLES RELATED TO RESERVATION

Article 330 and 332 provides for specific representation through reservation of seats for SCs
and STs in the Parliament and in the State Legislative Assemblies respectively.

Article 243D provides reservation of seats for SCs and STs in every Panchayat

Article 233T provides reservation of seats for SCs and STs in every Municipality.

Article 335 of the Constitution says that the claims of SCs and STs shall be taken into
consideration constituently with the maintenance of efficacy of the administration.

VERTICAL AND HORIZONTAL RESERVATION

Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes is referred to
as vertical reservation. It applies separately for each of the groups specified under the law65.

62
B.K. Pavitra v. Union of India 2017 SCC OnLine SC 109.
63
B.K. Pavitra v. Union of India 2019 SCC OnLine SC 694.
64
2018 SCC OnLine SC 1641.
65
Apurva Vishwanath, ”Explained: How horizontal, vertical quotas work” The Indian Express, January 13,2021.
Horizontal reservation refers to the equal opportunity provided to other categories of beneficiaries
such as women, veterans, the transgender community, and individuals with disabilities, cutting
through the vertical categories66.

CONCLUSION
Reservations are not an exception to the rule of equality of opportunity, they are rather the true
fulfillment of effective and substantive equality by accounting for the structural conditions into
which people are born.67Reservation is undertaken to address the historic oppression suffered by
the few segments in India, and bring about the goals enshrined in our Constitution of that of
equality, fraternity and justice. Though it was created to bring about a just and equal society, this
system suffers from certain loopholes i.e., the caste-based reservation perpetuates the notion of
caste-based society, it is against the notion of meritocracy etc. To add on, it is used as a tool of
vote bank politics by the politicians which make the condition worse and damages the true spirit
of reservation. Reservation can only help in short term, but for long term there is a need to take
radical steps like providing education at grassroot level, develop capabilities of individuals, and
exclude the entire creamy layer among all castes from reservation.
66
Ibid.
67
B.K. Pavitra v. Union of India 2019 SCC OnLine SC 69467.
BIBLIOGRAPHY
ACTS/STATUTES
1.Constitution of India,1950
2. Government of India Act,1935
3.Constituent Assembly Debates
BOOKS
1.Brock, R. W., The Simon Report on India: An Abridgement (London: Dent, 1930) 2.John
Simon , India And The Simon Report : A Talk (New York: Coward-MacCann, 1930).
3.Christophe Jaffrelot , India’s Silent Revolution 208 (London : Hust & co). 4.M.P.Jain,
Indian Constitutional Law 1381(Lexis Nexis, 8th edn. 2018).

5.Durga Das Basu, The Constitution of India 109 (Lexis Nexis,Delhi, 24th edn, 2020)
6.M Laxmikanth, Indian Polity (Mc Graw Hill 6th edn,2019).
ARTICLES
Deshpande, Manali S. “History of the Indian Caste System and its Impact on India Today.”
(2010).

CASES
1. Chamapakam Dorairaja v. Union of India AIR 1951 SC 226.
2. K.C. Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495.
3. Gulshan Prakash v. State of Haryana, AIR 2010 1 SCC 477.
4. Mukesh Kumar v. The State of Uttarakhand, 2020 SCC OnLine SC 148
5. M.R.Balaji v. State of Mysore 1962 SCR Supl. (1) 439
6. C.A. Rajendran v. Union of India 1968 SCR (2) 786
7. M. G. Badappanavar v. State of Karnataka 2001 (2) SCC 666.
8. Preeti Shrivastav v. State of Madhya Pradesh (1999) 7 SCC 120.
9. Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty
Association AIR 1998 SC 1767.
10. M.R. Balaji v. State of Mysore 1962 SCR Supl. (1) 439
11. R. Chitralekha & Anr v. State of Mysore & Ors AIR 1968 SC 507.
12. P.Sagar Vs State of AP, AIR 1968 AP 165
13. Janki Prasad Parimoo v. State of Jammu and Kashmir (1973)SCR (3)
236. 14. Jagdish Negi v. State Of Uttar Pradesh (1997) 7 SCC 203.
15. P.Rajendran V. State of Madras AIR 1968 SC 507.
16. S.V. Balaram v. State of Andhra Pradesh, 1972 SCR (3) 247
17. Triloki Nath v. J. & K. State, 1 1969 SCR (1) 103
18. A. Peeriakaruppan v. State of Tamil Nadu (1971) 2 SCR 430
19. State of Uttar Pradesh v. Pradip Tandon 1975 SCR (2) 761
20. KC Vasanth Kumar v State of Karnataka 1985 SCR Supl. (1) 352
21. K.S. Jayasree v. State of Kerela 1977 SCR (1) 194
22. State of A.P. Vs U.S.V. Balram AIR 1972 SC 1372
23. Indra Sawhney v. Union of India 1992 Supp 2 SCR 454
24. Ram Singh v. Union of India 2014 SCC OnLine SC 314.
25. State of Rajasthan v. Ganga Sahay Sharma 2017 SCC OnLine SC 1992.
 26. GM Southern Railways v. Rangachari 1962 SCR (2) 586
27. Triloki Nath v. State of Jammu and Kashmir 1 1969 SCR (1) 103
28. State of Andhra Pradesh v. U.S.V Balram 1968 SCR (3) 565
29. State of Kerala v. NM Thomas 1976 SCR (1) 906
30. Akhil Bhartiya Soshit Karamchari v. Union of India 1981 SCR (2) 185
31. Principal Guntoor Medical v. Y Mohan Roy (1976) 3 SCC 411
32. K.P. Manu v. Chairman, Scrutiny Committee, 2015 SCC OnLine SC 161. 33. Dr Nilima v.
Deen of PG Studies Andhra Pradesh Agriculture University, Hyderabad ,AIR 1993 SC 229
34. Meera Kanvaria v. Sunita 2006(1) SCC 344
35. Rajendra Shrivastav v. State of Maharashtra (2010) 112 BomLR 762
36. Sandhya Thakur v. Vimla Devi (2005) 2 SCC 731.
37. Ramesh bhai Naika v. State of Gujarat (2012) 3 SCC 400
38. Arabinda Kr Saha v. State of Assam 2001 (3) GLT 45
39. Rumy Choudhary v. The Department of Revenue NCT of Delhi ICL 2020 Del. 483.
40. Indian Medical Association v. Union of India (2011) 7 SCC 179.
41. Pramati Educational and Cultural Trust v. Union of India (2014) 8 SCC 1
42. Ashok Kumar Thakur v. Union of India (2007) 4 SCC 361.
43. Devdasan v. Union of India 1964 SCR (4) 680.
44. Rly v. Rangachari AIR 1961 Mad 35.
45. State of Punjab v. Hiralal 1971 SCR (3) 267
46. Akhil Bhartiya Shoshit Karamchari v. Union of India 1981 SCR (2) 185.
47. Ajit Singh Januja vs State Of Punjab (1996) 2 SCC 715.
48. Union of India v. Virpal Singh (1995) 6 SCC 684.
49. Jagdish Lal v. State of Haryana (1997) 6 SCC 538.
50. Vinod Kumar v. Union of India (1996) 6 SCC 580.
51. Nagraj v. Union of India 2006 8 SCC 212
52. B.K. Pavitra v. Union of India 2017 SCC OnLine SC 109.
53. B.K. Pavitra v. Union of India 2019 SCC OnLine SC 694.
54. Jarnail Singh v. Union of India 2018 SCC OnLine SC 1641.

NEWSPAPER
1.Seema Chishti, “ Short History Of Quota , Story That Predates Mandal“ The Indian Express
,Sept. 1, 2015.
2.Apurva Vishwanath, ”Explained: How horizontal, vertical quotas work” The Indian Express,
January 13,2021.

WEBSITES
1.Vishnu Gupta, “Who are the SC,ST,OBC?” The Quint, 12 June 2018, available at
https://www.thequint.com/explainers/scheduled-caste-scheduled-tribe-obc-ebc-sc-st-prevention
of-atrocities-act-explainer (last visited on April 10, 2021).
2.Abhiram Ghadyalpatil, “Rajarshi Shahu Chhatrapati of Kolhapur, a reformer ahead of his
time”Mint 10 August 2018,available at
https://www.livemint.com/Leisure/PLkr7jdpCeZepho8RMVJbN/Rajarshi-Shahu-Chhatrapati-of
Kolhapur-a-reformer-ahead-of.html (last visited on April 10, 2021).
3.Conflict, Controversy and Congress, available at:
http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/timeline/1930s.html (last visited on
April 9, 2021).
4.History of reservation in India, available at: https://www.goimonitor.com/story/history
reservation-india (last visited on April 9, 2021).
5.The Debate on reservation in the constituent assembly, available at:
https://blog.ipleaders.in/the-debate-on-reservation-in-the-constituent-assembly/ (last visited on
April 15,2021).
6.Malavika Prasad. "From the Constituent Assembly to the Indra Sawhney case, tracing the
debate on economic reservations” The Caravan,28 March, 2019, available at
https://caravanmagazine.in/law/economic-reservations-constituent-assembly-debates (last visited
on April 16,2021)
7.Reservation in promotion, available at https://www.scobserver.in/beyond-the-court/cases-that
shaped-india-in-2018-6-reservation-in-promotion (last visited on April 16, 2021).