Article 16

Mandal CoMMission Case and it’s effeCt on artiCle 16

Dr Avinash Bhagi
Assistant Professor of Law
Gujarat National Law University
 Summary
• Indira Sawhney v Union of India, 1993
• The Constitution (Seventy Seventh Amendment) Act, 1995
❖ Inserted Article 16(4A)
• The Constitutional (Eighty-first Amendment) Act, 2000
❖ Inserted Article 16(4B)
• The Constitutional (Eighty-fifth Amendment) Act, 2001
❖ Amended Article 16(4B)
❖ Union of India v Vipul Singh Chauhan (1995) 6 SCC 684
❖ Ajit Singh (II) v State of Punjab (1999) 7 SCC 209
• M Nagraj v Union of India (2006) 8 SCC 212 [5]
❖ Upheld the Constitutional Validity of Article 164A and 4B
• U.P Power Corp. Ltd. v Rajesh Kumar (2012)
• The Constitution (One Hundred Seventeenth Amendment) Bill, 2012
❖ Lapsed due to the dissolution of LS
• B.K. Pavitra v. Union of India, decided on 09.02.2017
• Jarnail Singh v. Lachhmi Narain Gupta, decided On: 26.09.2018
• B.K. Pavitra v. The Union of India, decided on 10.05.2019
 Article 16(4)
• 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.
 Devadsan v. Union of India AIR 1964 SC 649
• Court was required to adjudge the validity of the ‘Carry
forward’ Rule.

• The ‘Carry Forward’ rule envisaged that in a year, 17.5 percentage

posts were to be reserved for schedule Castes/Tribes; of all the
reserved posts were not filled in a year for want of suitable
candidates from those classes, then the shortfall was 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.

• The result of the rule was that in a year out of 45 vacancies in

the cadre of section officers, 29 went to the reserved quota &
only 16 posts were left for others.

• This meant reservation up to 65% in the third year, & while

candidates with low marks from the S.C & S.T were appointed,
Candidates with higher marks from other were not taken.
 Devadsan v. Union of India AIR 1964 SC 649

• Supreme Court held

• More than 50% reservation of posts in a single year would be
unconstitutional as it per se destroys Article 16(1).
• In the name of advancement of Backward Communities, the
F.Rs of other Communities should not be completely
annihilated.
• Article 16(4) is an exception to Article 16(1).
• Article 16(4) should not be interpreted so as to nullify or destroy
the main provision.
• Reservation for backward communities should not be so
excessive as to create a monopoly or to disturb unduly the
legitimate claims of other communities.
• State cannot ignore the F.Rs of the rest of the Citizens.
 State of Kerala v. N.M Thomas AIR 1976 SC 490

• Facts
• Promotion from the cadre of lower division clerks to the
higher cadre of upper division clerks depended on passing a
test within two years.
• For S.C & S.T extension could be granted for a longer
period.
• These classes were given two extra years to pass the test.
• This exemption was challenged as discriminatory under
Article 16(1).
• The ground of challenge was that
– Article 16 permitted only reservation in favour of
backward classes but it was not a case of reservation of
posts for S.C & S.T under Article 16(4) & that these
persons were not entitled to any favoured treatment in
promotion outside Article 16(4).
 State of Kerala v. N.M Thomas AIR 1976 SC 490
• The majority accepted the view of Subba Rao,J. (Dissenting
opinion in Devadasan).
• Article 16(4) is not in the nature of an exception to Article
16(1).
• “It is a facet of Article 16(1) which fosters & further the idea
of equality of opportunity with special reference to an under
privileged & deprived class of citizens.”
• Article 16(1) itself permits reasonable classification for
attaining equality of opportunity assured by it.
• Article 16(4) should be read along, and in harmony with article
16(1).
• Indeed even without Article 16(4), the State could have
reserved posts for backward classes.
• Article 16(4) merely puts the matter beyond any doubt or
controversy in specific terms.
 A.B.S.K Sangh (Rly) v. Union of India AIR
1981 SC 298
• S.C reiterated the Thomas proposition that under Article
16(1) itself, the State may classify, “based upon substantial
differentia, groups or classes” for recruitment to public
services, and “this process does not necessarily spell
violation of Article 14 & 16.
• Article 16(2) expressly forbids discrimination on the basis
of ‘caste’. S.Cs & S.Ts are not castes within the ordinary
meaning of caste. These are backward human groups.

• The “carry forward” rule for three years was not held bad.
Indira Sawhney v. Union of India
AIR 1993 SC 477
(Mandal Commission Case)
 Indira Sawhney v. Union of India AIR 1993 SC 477
• Also known as Mandal Commission Case.
1. Appointment of Commission
• On January1, 1979 under the Chairman ship of B.P.Mandal, the second
Backward Class Commission under Article 340 was appointed by the Union
Government headed by Prime Minister Morarji Desai.

2. Major Recommendation
• One of the major recommendation made by the commission was that,
besides the SCs and STs, for other backward classes which constitute nearly
52% component of the population, 27% government jobs be reserved so
that that total reservation for all, SC,ST and OBCs, amount to 50%.

3. No action taken for long time till 1990

• No action was taken on the basis of the Mandal Report for long after it was
submitted, except that it was discussed in the Houses of Parliament twice,
once in 1982and again in 1983.

4. In 1990, V.P. Singh Government announced 27% reservation

• On August 13, 1990, the V.P.Singh Government at the Centre issued an
office memorandum accepting the Mandal Commission recommendation
and announcing 27% reservation for the socially and educationally
backward classes in vacancies in civil posts and services under the
Government of India.
 Indira Sawhney v. Union of India AIR 1993 SC 477
5. Effect of reservations
• This memorandum led to widespread disturbances in the country.

6. Order challenged before the SC

• The order was challenged in the Supreme Court.
• A three judge bench refused to interfere on the ground that the matter was a
political one.
• Public controversy and disturbances continued.

7. The Supreme Court Bar Association moved a petition.

• In response Supreme Court constituted a 5 Judge Bench.
• The early order of the Supreme Court and the O.M were stayed.

8. Change of Government
• In the meanwhile the Government changed after General Elections.
• In 1991, the Narsimha Rao Government modified the above memorandum
in two respects:
– One, the poorer sections among the backward classes would get preference over the other
sections;
– Two, 10% vacancies would be reserved for other “economically backward sections” of the
people who were not covered by any existing reservation scheme.
 Indira Sawhney v. Union of India AIR 1993 SC 477
1. The reservations contemplated in clause (4) of Art.16 should
not exceed 50%.
• Overruled: State of Kerala v. N.M.Thomas AIR 1976 SC 490
K.C. Vasanth Kumar v. State of Karnataka
• Approved: Balaji v. State of Mysore AIR 1963 SC 649
Devadsan v. Union of India AIR 1964 SC 649

2. Creamy layer must be excluded from backward classes.

3. No reservation in promotions.
• Reservation of appointments or posts under Art.16(4) is confined to
initial appointment only and cannot extend to providing
reservation in the matter of promotion.
Overruled:
• General Manager, Southern Rly. V. Rangachari AIR 1962 S.C 36
• State of Punjab v. Hira Lal (1970) 3SCC 567
• A.B.S.K Sangh (Rly.) v. U.O.I AIR 1981 SC 298
• Com. & Aud. General of India,Gian Prakash v. K.S.Jagannathan (1986) 2 SCC 679
 Indira Sawhney v. Union of India AIR 1993 SC 477
4. Reservation can be made by ‘Executive Order’.
• A 'provision' under Art.16(4) can be made by an executive order. It is not necessary that
it should be made by Parliament/Legislature.

5. Carry Forward rule is valid.

• Overruled: Devadsan v. Union of India AIR 1964 SC 649
• Approved: A.B.S.K Sangh (Rly) v. U.O.I AIR 1981 SC 298

6. Article 16(1) permits classification

• Approved: State of Kerala v. N.M.Thomas AIR 1976 SC 490

7. Reservations can also be provided under clause (1) of Art.16.

• Article 16(1) permits classification & under it special provisions can
be made for handicapped or disadvantaged groups other than the
backward classes.
 Indira Sawhney v. Union of India AIR 1993 SC 477
8. Clause (4) of Art.16 is not an exception to clause (1). It is an instance and
an illustration of the classification inherent in clause (1).
• Overruled: Balaji v. State of Mysore AIR 1963 SC 649
• Approved: State of Kerala v. N.M. Thomas AIR 1976 SC 490

9. The expression 'backward class' in Art.16 (4) takes in 'Other Backward

Classes', SCs, STs and may be some other backward classes as well.

10. Economic criterion cannot be the sole basis for determining the backward
class of citizens contemplated by Art.16(4).

11. Even under Art.16(1), reservations cannot be made on the basis of

economic criteria alone.

12. Backward Classes in Article 16(4) are not similar to as socially and
educationally backward in Article 15(4).
• Overruled: Balaji v. State of Mysore AIR 1963 SC 649
 Indira Sawhney v. Union of India AIR 1993 SC 477
13. Article 16(4) permits classification of backward classes into backward & more
backward classes.
• Overruled: Balaji v. State of Mysore AIR 1963 SC 649
• Approved: State of Kerala v. N.M. Thomas AIR 1976 SC 490

14. The government of India, each of the State governments and the
Administrations of Union Territories shall, within four months
from today, constitute a permanent body for entertaining,
examining and recommending upon requests for inclusion and
complaints of over inclusion and under -inclusion in the lists of
other backward classes of citizens.
With this larger Bench decision, the matter seems to have settled that caste could be an important or even sole factor in determining the social backwardness and that poverty alone could not be such a criterion.
 Amendments in Article 16
• Article 16(4-A)
• Ins. by the Constitution (Seventy-seventh Amendment) Act, 1995
• (4A) Nothing in this article shall prevent the State from making any provision for
reservation [in matters of promotion, with consequential seniority (Constitution (85th
Amendment) Act, 2001, to any class] or classes of posts in the services under the
State in favour of the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the services under the State.

• Reason for Amendment

• Inserted to overcome the decision in Mandal Commission case that no reservation
in promotions could be made under clause (4)

• Constitution (Eighty-fifth) Amendment Act, 2001

• Reason for Amendment
• Result of Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 & Ajit Singh(II) v.
State of Punjab, (1999) 7 SCC 209
 Amendments in Article 16
• Article 16(4-B)
• Constitution (Eight-first Amendment) Act, 2000 result of Mandal
Commission case
• 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 4-A) 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 percent reservation on total
number of vacancies of that year.
• Reason for Amendment
• Mandal Commission case laid down fifty percent upper limit for reservation
in a year under clause (4) and upheld forty-nine and half percent
reservations, no scope was left to fill in the backlog vacancies and to hold
special recruitment drives. To overcome this handicap the Constitution
(Eight-first Amendment) Act, 2000 introduced an exception to the fifty per
cent limit for the purpose of filling the backlog vacancies.
 M. Nagaraj
v.
Union of India
(2006) 8 SCC 212
 M. Nagaraj v. Union of India, (2006) 8 SCC 212

• Five judge bench unanimously upheld the

constitutional validity of clauses (4-A) and (4-B) in
Article 16.

• While upholding the validity of the amendment, the

court held that before framing any law on this issue,
the state will have to satisfy the test of;
• (a) backwardness of the particular SC and ST group;
• (b) inadequate representation of the said group; and
• (c) efficiency of administration.
The Constitution (One Hundred Seventeenth Amendment) Bill, 2012
 The Constitution (One Hundred Seventeenth Amendment) Bill,
2012

• The Constitution (One Hundred Seventeenth Amendment) Bill, 2012

was introduced in the Rajya Sabha on September 5, 2012 by Mr. V
Narayansamy, Minster of State for Personnel, Public Grievances and
Pensions.
• In 1992, the Supreme Court in the case of Indira Sawhney v Union of
India had held reservations in promotions to be
unconstitutional. Subsequently in 1995, the central government had
amended the Constitution and inserted Article 16(4A). This provided
for reservation in promotions for Scheduled Castes and Scheduled
Tribes which in the opinion of the state are not adequately represented
in the services.
 STATEMENT OF OBJECTS AND REASONS

• In 2006, the Supreme Court in the case of M. Nagraj v Union

of India upheld the constitutional validity of the
amendment. While upholding the validity of the
amendment, the court held that before framing any law on this
issue, the state will have to satisfy the test of; (a) backwardness
of the particular SC and ST group; (b) inadequate
representation of the said group; and (c) efficiency of
administration.
• In April 2012, the Supreme Court struck down the UP
Government Seniority Rules which provided for reservations in
promotions. The court held that the state government had not
undertaken any exercise to identify whether there was
backwardness and inadequate representation of Scheduled
Castes and Scheduled Tribes in the state government.
 STATEMENT OF OBJECTS AND REASONS
• In light of the recent judgment of the Supreme Court,
the central government has introduced the present Bill
amending the Constitution. The Bill seeks to
substitute Article 16(4A) of the Constitution of India.

• The Bill provides that all the Scheduled Castes and

Scheduled Tribes notified in the Constitutional shall
be deemed to be backward.

• Article 335 of the Constitution states that the claims of

the Scheduled Castes and Scheduled Tribes have to be
balanced with maintaining efficiency in
administration. The Bill states that provision of the
amendment shall override the provision of Article 355.
•
 STATEMENT OF OBJECTS AND REASONS
• The Scheduled Castes and the Scheduled Tribes have been provided
reservation in promotions since 1955.
• This was discontinued following the judgment in the case of Indra
Sawhney Vs. Union of India, wherein it was held that it is beyond
the mandate of Article 16(4)of the Constitution of India.
• Subsequently, the Constitution was amended by the Constitution
(Seventy-seventh Amendment) Act, 1995 and a new clause (4A) was
inserted in article 16 to enable the Government to provide reservation
in promotion in favour of the Scheduled Castes and the Scheduled
Tribes.
• Subsequently, clause (4A) of article 16 was modified by the
Constitution (Eighty-fifth Amendment) Act, 2001 to provide
consequential seniority to the Scheduled Castes and the Scheduled
Tribes candidates promoted by giving reservation.
 STATEMENT OF OBJECTS AND REASONS

• The validity of the constitutional amendments was challenged before the

Supreme Court.
• The Supreme Court while deliberating on the issue of validity of
Constitutional amendments in the case of M. Nagaraj Vs. UOI & Ors.,
2006 observed that the concerned State will have to show in each case the
existence of the compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before making provision
for reservation in promotion.
• Relying on the judgment of the Supreme Court in M. Nagaraj case, the
High Court of Rajasthan and the High Court of Allahabad have struck
down the provisions for reservation in promotion in the services of the State
of Rajasthan and the State of Uttar Pradesh, respectively.
• Subsequently, the Supreme Court has upheld the decisions of these High
Courts striking down provisions for reservation in respective States.
 STATEMENT OF OBJECTS AND REASONS

• It has been observed that there is difficulty in collection of quantifiable data

showing backwardness of the class and inadequacy of representation of
that class in public employment. Moreover, there is uncertainty on the
methodology of this exercise.
• Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj
case, the prospects of promotion of the employees belonging to the
Scheduled Castes and the Scheduled Tribes are being adversely affected.
• Demands for carrying out further amendment in the Constitution were
raised by various quarters.
• A discussion on the issue of reservation in promotion was held in
Parliament on 3-5-2012. Demand for amendment of the Constitution in
order to provide reservation for the Scheduled Castes and the Scheduled
Tribes in promotion has been voiced by the Members of Parliament.
• An All-Party Meeting to discuss the issue was held on 21-08-2012.
 STATEMENT OF OBJECTS AND REASONS
• There was a general consensus to carry out amendment in the
Constitution, so as to enable the State to continue the scheme
of reservation in promotion for the Scheduled Castes and the
Scheduled Tribes as it existed since 1995.
• In view of the above, the Government has reviewed the
position and has decided to move the constitutional
amendment to substitute clause (4A) of article 16, with a view
to provide impediment-free reservation in promotion to the
Scheduled Castes and the Scheduled Tribes and to bring
certainty and clarity in the matter.
• It is also necessary to give retrospective effect to the proposed
clause (4A) of article 16 with effect from the date of coming
into force of that clause as originally introduced, that is, from
the 17th day of June, 1995.
Article 16(4-A)
Const.(77th Amendment) Act,
1995 & Const.(85th Amendment
)Act, 2001
Nothing in this article shall
prevent the State from
making any provision for
reservation in matters of
promotion, with
consequential seniority
(Constitution (85th
Amendment) Act, 2001, to any
class or classes of posts in the
services under the State in
favour of the SCs and the STs
which, in the opinion of the
State, are not adequately
represented in the services
under the State.
The Constitution (One Hundred
Seventeenth Amendment) Bill, 2012
“(4A) Notwithstanding anything contained
elsewhere in the Constitution, the Scheduled
Castes and the Scheduled Tribes notified
under article 341 and article 342,respectively,
shall be deemed to be backward and nothing
in this article or in article 335 shall prevent the
State from making any provision for
reservation in matters of promotions, with
consequential seniority, to any class or classes
of posts in the services under the State in
favour of the Scheduled Castes and the
Scheduled Tribes to the extent of the
percentage of reservation provided to the
Scheduled Castes and the Scheduled Tribes in
the services of the State.”
 Jarnail Singh
Vs.
Lachhmi Narain Gupta
Decided On: 26.09.2018

Hon'ble Judges/Coram:
1. Dipak Misra, C.J.I.,
2. Kurian Joseph,
3. Rohinton Fali Nariman,
4. Sanjay Kishan Kaul and
5. Indu Malhotra, JJ.
 Jarnail Singh Vs. Lachhmi Narain Gupta, 2018

• The present group of cases arises out of two reference orders-

the first by a two Judge Bench referred to in a second reference
order, dated 15.11.2017, which is by a three-Judge Bench, which
has referred the correctness of the decision in M. Nagaraj v.
Union of India, MANU/SC/4560/2006 : (2006) 8 SCC 212,
("Nagaraj"), to a Constitution Bench.
 Jarnail Singh Vs. Lachhmi Narain Gupta, 2018
• According to the learned Attorney General, Shri K.K.Venugopal, Nagaraj needs to be
revisited on these two points.

• First, when Nagaraj (supra) states that the State has to collect quantifiable data
showing backwardness, such observation would be contrary to the nine-Judge
Bench in Indra Sawhney v. Union of India, 1992, as it has been held therein that
the Scheduled Castes and the Scheduled Tribes are the most backward among
backward classes and it is, therefore, presumed that once they are contained in the
Presidential List Under Articles 341 and 342 of the Constitution of India, there is no
question of showing backwardness of the Scheduled Castes and the Scheduled Tribes
all over again.

• Secondly, according to the learned Attorney General, the creamy layer concept has
not been applied in Indra Sawhney (1) to the Scheduled Castes and the
Scheduled Tribes and Nagaraj has misread the aforesaid judgment to apply
this concept to the Scheduled Castes and the Scheduled Tribes.
 Jarnail Singh Vs. Lachhmi Narain Gupta, 2018
• Supreme Court held

• Nagaraj’s insistence on collection of quantifiable data on backwardness in

relation to the SCs and STs was contrary to Indra Sawhney, and
therefore, bad in law.

• Approved Nagaraj’s insistence on proof for inadequate representation of

classes for whom promotional posts are reserved, and on submission of
additional proof that efficiency would not be impacted by such reservation,
because of Article 335.

• Supreme Court held that the creamy layer principle is an essential aspect of
the equality code, and therefore, exclusion of creamy layer while applying the
principle of reservation is justified, even in the case of SCs and STs.
B.K. Pavitra vs. Union of India, decided on 09.02.2017
• Adarsh Kumar Goel and U.U. Lalit, JJ.

• Karnataka Determination of Seniority of the

Government Servants Promoted on the Basis
of the Reservation (to the Posts in the Civil
Services of the State) Act 2002.
 B.K. Pavitra vs. The Union of India, decided on 10.05.2019
U.U. Lalit and Dr. D.Y. Chandrachud, JJ.
1 The principal challenge in this batch of cases is to the validity of the Karnataka Extension of
Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the
Posts in the Civil Services of the State) Act 2018. The enactment provides, among other things,
for consequential seniority to persons belonging to the Scheduled Castes and Scheduled Tribes
promoted under the reservation policy of the State of Karnataka. The law protects
consequential seniority from 24 April 1978.

2 The Reservation Act 2018 was preceded in time by the Karnataka Determination of
Seniority of the Government Servants Promoted on the Basis of the Reservation (to the
Posts in the Civil Services of the State) Act 2002.
• The constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra v
Union of India,2017 (―B K Pavitra I).
• A two judge Bench of this Court (consisting of Justice Adarsh Kumar Goel and Justice U U
Lalit) held Sections 3 and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16
of the Constitution on the ground that an exercise for determining “inadequacy of
representation”, “backwardness” and the impact on “overall efficiency” had not
preceded the enactment of the law. Such an exercise was held to be mandated by the
decision of a Constitution Bench of this Court in M Nagaraj v Union of India, 2006.
• In the absence of the State of Karnataka having collected quantifiable data on the
above three parameters, the Reservation Act 2002 was held to be invalid.
 B.K. Pavitra vs. The Union of India, decided on 10.05.2019
3 The legislature in the State of Karnataka enacted the Reservation Act 2018 after this
Court invalidated the Reservation Act 2002 in B K Pavitra I.
• The grievance of the petitioners is that the state legislature has virtually re-
enacted the earlier legislation without curing its defects. According to the
petitioners, it is not open to a legislative body governed by the parameters of a
written constitution to override a judicial decision, without taking away its basis.
• On the other hand, the State government has asserted that an exercise for
collecting ―quantifiable data‖ was in fact carried out, consistent with the
parameters required by the decision in Nagaraj. The petitioners question both the
process and the outcome of the exercise carried out by the state for collecting
quantifiable data.

4. Whether that exercise of data collection and the enactment of the new law
which has emerged on its foundation takes away the basis of or the cause for
the invalidation of the Reservation Act 2002 in B K Pavitra I is an essential
question for our consideration.
 B.K. Pavitra vs. The Union of India, decided on 10.05.2019

• K Conclusion
• 144 For the above reasons, we have come to the conclusion that the challenge to
the constitutional validity of the Reservation Act 2018 is lacking in substance.
Following the decision in B K Pavitra I, the State government duly carried out the
exercise of collating and analysing data on the compelling factors adverted to by
the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the
deficiency which was noticed by B K Pavitra I in respect of the Reservation Act
2002. The Reservation Act 2018 does not amount to a usurpation of judicial
power by the state legislature. It is Nagaraj and Jarnail compliant. The
Reservation Act 2018 is a valid exercise of the enabling power conferred by
Article 16 (4A) of the Constitution.