JEEVAN REDDY, J.

(1) EVER since 1963 when the Supreme Court rendered the decision in what has come to be popularly known as "balajis Case" AIR 1963 SC 649 [LQ/SC/1962/324] which is referred to as the locus Classicus of learning on Backward Classes, volumes have been written on the question of reservation in educational institutions and services in favour of Backward Classes. High learning has flown into the views expressed by the Supreme Court in a number of judgements rendered subsequently on the subject. Even so, the problems arising in this regard still defy solution. It is unfortunate that developments over a quarter of a century have not given a quietus to this problem. It is well to refer to the following observations of Venkataramiah J. , in K. C. Vasanthkumar v. State of Karnataka AIR 1985 SC 1495 [LQ/SC/1985/194] at P. 1532 (Para 91). "the questions involved in these cases are delicate ones and have, therefore, to be tackled with great caution. The issues raised here and the decision rendered on them are bound to have a great impact on society. They are indeed highly sensitive issues. A superficial approach to the problem has, therefore, to be avoided. The questions have to be tackled with sympathy for persons who are really in need of the benign assistance at the hands of the State and with due regard to the interests of the general public. "the aforesaid observations are applicable wholly in respect of matters arising for consideration in this group of cases. The length of this judgement needs no apology, as we were caught by the myriad of detail and the length of arguments advanced by a battery of Lawyers, Politicians and Members of public, who appeared in person. We are indeed obliged to refer to the arguments of each one of them and make an honest endeavor, in our own way, to unravel, to the extent possible, the situation following the issue by the Government of Andhra Pradesh the three G. Os. bearing Nos. 166, 167 and 168 dated 15-7-86 which are the subject matter of attack in all these writ petitions. Part-I Factual Matrix : prior to the formation of Andhra Pradesh both in the Andhra and Telangana Areas, two lists of backward Classes were being maintained, in whose favour were reserved certain posts in Government services, besides the grant of scholarships and other concessions to students. The list in force in Andhra area contained 86 communities, while the list in Telangana area contained 60 communities.

(2) IN January 1953 the President of India appointed a Backward Classes Commission under Art. 340 of the Constitution known as "kalelkar Commission", to determine the criteria to be adopted for treating any Section of people other than Scheduled Castes and Schedules-Tribes as socially and educationally backward-Classes. The report submitted by this Commission was, however, found to be defective and vague in several respects. One of the difficult questions upon which the Government of India could not make up its mind was whether, and when to treat a caste as a class for the purpose of Arts. 15 (4) and 16 (4) of the Constitution. In May 1961 the Central Cabinet decided that one national list of Backward Classes should be drawn up: The States were asked to prepare their own lists; at the same time the Central Government expressed its view that "in the view of the Government of India it was better to apply economic tests than to go by castes".

(3) THE Government of Andhra Pradesh specified 139 castes as socially and educationally backward in G. O. No. 1886 dated 21-6-1963. This list was prepared for the purpose of selecting candidates to seats reserved for backward communities in Medical Colleges in the State; 25% of seats were reserved for them. The validity of this list was challenged in a writ Petition, and the same was quashed by a learned single Judge of this Court, in Sukhdev v. Govt. of Andhra Pradesh, 1966 1 AWR 294. The main basis of the decision was that the enumeration of Backward Classes has been made almost exclusively an the basis of Caste.

(4) IN 1966 the Government drew up a list of 112 communities considered as socially and educationally backward, and notified them in G. O. No. 1880 dated 29-7-1966. This order provided for reservation both in professional colleges, as well as Government services. The validity of this Government Order was also challenged in this court. and the same was struck down by a Division Bench. The court was of the opinion that no proper investigation was done, nor any material data collected before classifying the persons mentioned in the Government order as Backward, and that, in effect, the said list was the same as was struck down in Sukdev v. Govt. of Andhra Pradesh (1966-1 Andh WR 294) (supra). This decision was confirmed by the Supreme Court in State of Andhra Pradesh v. P. Sagar (supra).

(5) ON 12-4-1968 the Government of Andhra Pradesh appointed a Commission, in G. O. No. 870, to determine the criteria to be adopted in considering whether any Sections of citizens of India in the State of Andhra Pradesh are to be treated as socially and educationally backward Classes, and to prepare a list of such Backward Classes in accordance with the criteria evolved by it. This Commission may be referred to as "anantharaman Commission" The Commission was asked to investigate the conditions of socially and educationally backward Classes and the difficulties under which they labour, and to make recommendations as to the special provision which may be made by the Government for their advancement, and for promotion of their educational and economic interests generally, with particular reference to reservation in educational institutions, concessions to be given to them, reservation in services, and the proportion of such reservations. The Commission drew up a list of 93 classes designated as socially and educationally backward, and recommended reservation of 30% of seats in professional colleges, and a similar percentage of posts in Government services in their favour. The Commission. submitted its report on 20-6-1970. The 93 classes identified by the Commission were again divided into four groups, viz. a, b c and d and inter se division of seats among them specified. It was recommended that the reservations recommended shall be in force for a period of 10 years in the first instance, and that the position shall be reviewed thereafter. This report was placed before the State Legislature, as also the Andhra Pradesh Regional Committee. Having regard to the views expressed by the Legislature and the Regional Committee, and after examining the report, the Government accepted the Commissions recommendations and issued G. O. Ms. No. 1793 dated 23-9-1970, The Government, however, limited the quota of reservation to 25%, both in educational institutions, as also services.

(6) THE validity of G. O. Ms. No. 1793 dated 23-9-70 was again challenged before this Court, and the same was struck down by a Division Bench; again on the ground that caste was treated as the main basis for specifying the Backward Classes, and that the criteria evolved as also the enumeration of Backward Classes were contrary to the tests enunciated by the Supreme Court in M. R. Balaji v. State of Mysore, AIR 1963 SC 649 [LQ/SC/1962/324] . (supra) The State carried the matter in appeal to Supreme Court. The Supreme Court in State of A. P. v. Balaram, AIR 1972 SC 1375 [LQ/SC/1972/69] reversed the decision of this court and held that the Anantharaman Commission did indeed make a very elaborate investigation, and that the criteria evolved by it for identifying the Backward Classes cannot be said to be contrary to the tests enunciated in Balajis case (supra-1). It was pointed out :"any provision made under this clause Art. 15 (4) must be within the well defined limits and should not be on the basis of caste alone. But it should not also be missed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data it is found that the caste as a whole is socially and educationally backward, in our opinion the reservation made for 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 average. There is no gainsaying the fact that there are numerous castes in the country which are socially and educationally backward and, therefore, a suitable provision will have to be made by the State as charged in Art. 15 (4) to safeguard their interests. If the entire caste is as a fact found to be socially and educationally backward, their inclusion in the list of backward classes by their caste name is not violative of Art. 15 (4)"the Court observed further :"in our opinion there was sufficient material to enable the Commission to be satisfied that the persons included in the list are really socially and educationally backward. No doubt there are a few instances where the educational average is slightly above the State average, but that circumstance by itself is not enough to strike down the entire list. . . . Even assuming there are a few categories which are little above the State average in literacy, that is a matter for the State to take note of and review the position of such categories of persons and take a suitable decision. . . "

(7) THE Anantharaman Commission adopted the following criteria for determining the social and educational backwardness of citizens :i. general poverty of the class or community as a whole ii. occupations pursued by the classes of citizens, the nature of which must be inferior, or unclean, or undignified, or unremunerative or one which does not carry influence or power. iii. castes in reaction to Hindus: and iv. educational backwardness. These criteria were accepted by the Government. The 93 groups identified as Backward Classes were sub-divided into four sub-groups. Sub-group a comprised 38 communities of aboriginal tribes, Vimuktha Jathies, Nomadic, Semi-Nomadic tribes etc. Sub-Group (B) consisted of 21 vocational groups. In sub-Group (C) were placed the community of Harijan Converts, and 33 communities were placed in Sub-Group d. The 25% reservation quota was divided among these four sub-groups in the proportion of 7%, 10%, 1% and 7% respectively. It was directed that the reservations both in educational institutions, as also services, shall be in force for a period of 10 years; and that the position will be reviewed thereafter. The Government also agreed with the recommendation of the Commission that in future census enumeration should be made caste-wise, and recommended to the Government of India accordingly. The Government of India, however, refused to agree with this suggestion.

(8) IN 1978, the Government of India appointed, another Commission, known as Mandal Commission, for the very same purpose as Kalelkar Commission. It submitted its report in December, 1980, but for one reason or the other, the report has not so far been accepted or acted upon by the Government of India, nor any directions given to State Governments as contemplated by Art. 340.

(9) ON 28th and 29th April, 1979, a State conference of Andhra Pradesh Backward Classes was held at Hyderabad, whereas it was resolved to request the Government to of Andhra Pradesh announced at the said conference on 29-4-1979 that the reservations would be extended by another 10 years. On 11-5-79 the Chief Minister sent a note to the Secretary to Government (Social Welfare) stating :"i had announced rececently that the reservations for backward Classes in the services will be extended by another 10 years. Necessary orders may issue. "proposals were accordingly put up and orders issued in G. O. Ms. No. 136, dated 21-8-1979. Paragraph 2 of this G. O. reads thus :"the Government have reviewed the position in the matter of reservation of seats in all professional courses and Post Graduate Courses including Professional Post Graduate Courses and reservation of posts in services granted to the Backward Classes in the context of the District Level and State Level Backward Classes Conferences held in the recent past, and they consider it necessary to extend further the said reservations for the welfare of the Backward Classes, by another period of ten years. Accordingly, the Government direct :- (i) that reservation of seats in all the professional courses and Post-Graduate Courses, including Post-Graduate Professional Courses, be extended for a further period of ten years (i. e.) up to the end of the academic year 1990-91, and the position reviewed thereafter; (ii) that the reservation of posts in services, be extended for a further period of ten years, which should be conterminous with the academic year 1990-91 and the position reviewed thereafter; and (iii) that other concessions relating to percentage of reservation of seats in all Professional Courses, and Post Graduate Courses including Post Graduate Professional Courses, and of reservation of posts in services, including the posts under the local and other authorities under the control of the State Government and age concession of five years for purposes of recruitment, etc. , granted in the G. Os. read above, shall continue to be in force during the extending period (i. e.) up to the end of the academic year 1990-91. " (The note of the Chief Minister is taken from the records relating to this G. O. placed before us by the learned Advocate-General).

(10) THE State Minorities Commission, headed by Sri M. A. Ansari, recommended to the Government of Andhra Pradesh that certain weaker Sections among minorities with income not exceeding Rs. 8,000/- per annum should be included in the list of Backward Classes. It represented that only two groups among Muslims, namely, "mehtar" and "dudekula" were included in the list of backward Classes, and not others, with the result that the persons not so included are not in a position to seek help from the A. P. Backward Classes Co-operative Finance Corporation Ltd. The Government took up this matter for consideration and sought the opinion of the law Department. The Government was advised that according to the Anantharaman Commission, Muslims as such cannot be included among the Backward Classes, except "mehtars" and "dudekulas", and that the Muslims as a group cannot be included among backward classes, as that would be including a group on the basis of religion a ground not permissible in law. Accordingly, a reply was sent to the Minorities Commission. The Chief Minister was, however, of the opinion that a Finance Corporation for Minorities should be established on the same lines as the Finance Corporation for Backward Classes. The opinions of the Law Department and the Advocate General were sought with respect to this proposal. Both of them opined that it is not feasible.

(11) THE Council of Ministers evidently desirous of doing something for the minorities met on 1-6-1981 to consider two questions, viz. , i) inclusion of minorities in the list of Backward Classes; and (ii) the constitution of a Finance Corporation for the minorities. A Sub-Committee of the Council of Ministers was constituted to examine the said issues. The recommendations made by the Sub-Committee were considered by the Cabinet on 16-8-1981 and it was "resolved to constitute a Commission to review the A. P. Backward Classes Commissions Report, 1970 for the purpose of determining socially and educationally backward classes for purposes of Arts. 15 (4) and 16 (4) of the Constitution and to examine the inclusion in the list of Backward Classes of any other communities/castes including minorities. " It was also decided to constitute a Finance Corporation as recommended by the Sub-Committee. A one-man Commission was decided to be set up for the purpose, and the name of Mr. N. K. Muralidhara Rao was approved by the Chief Minister on 5-12-1981. Accordingly, the Government issued G. O. Ms. No. 12 dated 22-1-1982 constituting the One man Commission, known as "muralidhara Rao Commission. " (facts taken from the records relating to G. O. Ms. No. 12 placed before us by the learned Advocate-General.)

(12) G. O. Ms. No. 12 recites in the first instance that the Government had accepted the recommendation of the Anantharaman Commission that after a period of ten years the Government will review the position, (as found recited in G. O. Ms. No. 1793) and then says :"3. Now, therefore, in exercise of the powers conferred by S. 3 of the Commissions of Inquiry Act, 1952 (Central Act 60 of 1962), the Governor of Andhra Pradesh hereby appoints a Commission of Inquiry consisting of a single member, namely, "sri N. K. Muralidhara Rao, I. A. S. , Ex-Officio Secretary, Social Welfare and Commissioner, Weaker Sections Housing-programme. 4. The Commission shall -i) Review the recommendations made by the Andhra Pradesh Backward Classes commission, 1970 and the implementation thereof for the purpose of determining the need to continue the existing special provision in their favour under Art. 1 S (4) and 16 (4) of the Constitution of India, and to review the existing list of Backward Classes in the light of the social and educational progress achieved by the classes; ii) examine the social and educational backwardness of minority communities for the purpose of including them within the purview of the Backward classes of citizens under Articles 15 (4) and 16 (4) of the Constitution of India iii) present its report to the Government within a period of three months from the date on which it commences its enquiry. . . . " Muralidhara Rao Commission submitted its report on 25-9-1982 containing, inter alia, the following recommendations; i) to include 9 communities (Ayyaraka and others) among the Backward Classes, ii) to delete "mehtars" (Muslim) from the list inasmuch as the said community has already been included in the list of scheduled castes, similarly, to delete "kammara" subject of "visva Brahmmas which is also known as "kammari from the list of Backward Classes in as much as this community has been included in Scheduled Tribes; iii) to delete the words "whose occupation is begging" occurring under the Entries "jangam" and "thammali" to include only "kinthala Kalingas" in the list of Backward Classes and to exclude "burugan Kalingas" therefrom" "iv) The four sub-groups among- the Backward Classes were re-classified into five groups. The former Group c was designated as Group e and Group d was split up into Groups c and d v) to enhance the quota of reservation both in educational institutions, as well as services, from 25% to 44%. The inter se division of this 44% among the sub-groups a to e was specified as 10%, 16%, 8%, 8% and 2% respectively; vi) the reservations so provided shall be in force for a period of 25 years, whereafter, a detailed review may be undertaken either to continue the reservations or to modify them. (It is not necessary to notice the other recommendations made by the Commission for the purpose of these writ petitions.)The record relating to the impugned G. Os. placed before us by the learned Advocate-General discloses the following facts; on 8-11-1982 a very detailed and elaborate D. O. letter was written by the Director of Backward Classes Welfare to the Special Secretary and Commissioner for Tribal Welfare, Government of Andhra Pradesh, wherein the Director expressed his views on the several recommendations made by the Muralidhara Rao Commission (M. R. Commission). Many of the comments are critical. Meanwhile the amount that would be required in case of implementation of the recommendations made by the Commission was also examined. It was found that a sum of Rs. 35838 Crores would be required for Backward Classes Welfare Department, and a sum of Rs. 225. 45 Crores for the Backward Classes Co-operative Finance Corporation. On 8-2-1983 the Deputy Secretary, Social welfare, put up a note referring to the receipt of the Report, the financial implications in case of implementation of the said proposals, and also mentioning that the previous Commissions report was placed both before the Legislature and the Regional Committee; instructions were sought whether this Report should also be placed before the Legislature before it is placed before the Cabinet for Legislature. There is a note by Chief Secretary () to the effect "discussed. To await further instructions". This note is dated 15-2-1983. On 10-11-1983 the Secretary to Government (Commission, T. W.) put up another note to the higher authorities seeking instructions whether the Report is to be placed before the Legislature and thereafter before the Government for consideration. This note is signed by the Chief Secretary and the Minister, Social Welfare. At this stage a note was sent by the Joint Secretary to the Chief Minister, on 19-1-1984; addressed to the Secretary to Government, to the following effect. "the C. M. would like to discuss the proposals in this file at a meeting on 25-1-1984 at 11-00 a. m. in his Chamber at Secretariat M (SW) and as may be required to attend this meeting, apart from Secretary B. C. W. Necessary intimation may please issue accordingly". The meeting did not take place on 25-1-1984. On 17-4-1984 another note was made by the Secretary to Government and Commissioner (Tribal Welfare) requesting that a meeting may be fixed to discuss the matter regarding further action to be taken on the Report. At this stage another note was received from the Joint Secretary to C. M. dated 19-4-1984, saying "c. M. will discuss One-Man Commission Report at a meeting with M (SW), CS, S (RCW) on 23-4-1984 at 11. 30 a. m. in his Chambers at Secretariat. Necessary action may be taken accordingly. " The endorsements made show that this meeting also did not take place, and another meeting was contemplated. On 24-8-1984 the Secretary to Government put up another note stating that Sri Gouthu Lachanna has threatened Fast-Unto-Death until M. R. Commission Report is implemented, and seeking instructions whether the Report should be placed before the Cabinet and the Legislature. This note was approved by the Chief Secretary and the Chief Minister. At this stage there was a change in the Government, and Sri N. Bhaskara Rao came into office as Chief Minister in August, 1984. Shri Bhaskara Rao was heading the Ministry the Backward Class leaders pressed for the publication of M. R. Commission report. In a letter addressed to Shri Gouthu Lachanna; Shri Bhaskara Rao gave an assurance that the M. R. Commission report would be laid on the table of the Legislative Assembly in the next session. The Ministry went out of office on 15-9-1984. On 17-9-1984 a note was made by the Private Secretary to the Chief Secretary saying "c. S. desires that this may please be re-examined and re-circulated for orders, if necessary, in view of the change of Ministry. " On 10-10-1984 another note was put up as to the action to be taken upon the said Report. Upon this note, the Minister (Social Welfare); endorsed on 15-11-1984, that a meeting be held with the Chief Minister and the Secretaries for considering the said Report and that the Report be placed on the Floor of the Legislature in the ensuing session. On 5-4-1985, the Honble Chief Minister endorsed "this report may be placed before the Cabinet for consideration. " at this stage, a note was put up stating that 45 communities of Nomadic tribes have been identified in Govt. Memo No. 481/p2/84-2 dated 16-6-1984, and seeking instructions whether these 45 tribes should also be included among the Backward Classes. On 12-6-1985 another note was put up with reference to the orders of the Chief Minister dated 15-4-1985 recommending also that the said 45 Nomadic Tribes may also be included among Backward Classes. The file was directed to be circulated to the Chief Minister through Chief Secretary. This note was, approved by the Chief Minister on 16-6-1985. On 25-5-85 the Union Home Minister wrote to all the Chief Ministers in the country requesting the States not to make any changes in the policy regarding reservation for B. Cs. till a national consensus is arrived at, and to maintain the status quo till then. It would appear that the Chief Minister replied on 31-5-85 agreeing with the said suggestion and requesting the Union Home Minister to take initiative for convening a National Meet on this sensitive issue. 12 (a) Nothing further happened in the matter till 1-7-1986. However, from 1-7-1986 the matter assumed extreme urgency. On 1-7-1986 the Principal Secretary to Government (Social Welfare) sent a note to Sri U. B. Raghavendra Rao, saying "the papers relating the M. R. Commission Report are sent herewith. The Report has not yet been published or made public, hence to be treated as confidential. The Cabinet note will be finalized in a day or two. It has to be updated". On 2-7-1986 the Secretary to the Chief Minister wrote to the Principal Secretary (Social Welfare) saying "c. M. has agreed to have an emergency meeting of the Council of Ministers at 4. 30 p. m. on 5-7-S6 at his residence at Abids to discuss exclusively the Report of M. R. Commission on Backward Classes. Cabinet note may kindly be kept ready and circulated among the members after approval of the C. S. 1000 copies of the Report of M. R. Commission may also be got printed. " On the same day there is a note from the Chief Secretary to the Principal Secretary, Social Welfare, marked "most Immediate/ Confidential". The note reads "an emergency meeting of Cabinet will be held at 4. 30 p. m. on Saturday, the 5th July, 1986 at C. M. s residence to discuss M. R. Commission Report on Backward Classes. Immediate action in this regard may be taken. C. M. also desires that we may simultaneously take steps to print the above Report to place it on the Table of the House at the ensuing Session of the Assembly starting from 14-7-86. "

(13) ON 4-7-86 the Chief Minister discussed the recommendations of the M. R. Commission with Shri S. R. Sankaran, Principal Secretary (SW), Secretary (Finance) and Secretary to C. M. In addition to the above Officers, Minister (SW), Minister (Irrigation) Minister (Transport), Minister (Agriculture), and Minister (Minor Irrigation) were present during the discussion. Shri. S. R. Sankaran left on the record the gist of the deliberations and referred to the matters brought to the notice of the Chief Minister concerning the M. R. Commission report. This note left on record by Mr. Sankaran sets out the salient features of the M. R. Commission Report. Paragraph 12 of the note, in particular, pointed out that the population of Backward Classes estimated by the Commission is only a broad estimate and is not completely dependable, nor precise. The note also refers to the letter of the Union Home Minister dated 25-5-85 to the C. M. , and C. M. s reply dated 31-5-1985. Reference was also made to the Law Secretary explaining the legal position by referring to various Supreme Court judgements. Attention was also drawn to the fact that the Anantharaman Commission kept in view the principle that the total reservations should not exceed 50%.

(14) THE meeting of the Council of Ministers was held at Jubilee Hall in the Public Gardens on 5-7-86 and the decision taken to implement the report of the M. R. Commission with certain minor variations, and also to place the Report on the floor of the Legislative Assembly.

(15) ON 15-7-86 the M. R. Commission Report was placed on the floor of the Assembly along with the Memorandum of Action taken by the Government thereon. On the same day the three impugned G. O. s, were issued. The discussion on the Report by the Assembly was scheduled to 21-7-86.

(16) G. O. Ms. No. 166, Social Welfare (P) Department, dated 15-7-1986 accepted the M. R. Commission Report and directed as follows :-"a) the 9 communities recommended by the Muralidhara Rao Commission be included among the Backward Classes; b) the recommendations of the M. R. Commission to delete "mehtars" (Muslim) and "kammaras" from the list of backward classes is rejected, inasmuch as the said recommendation is based upon a mistake of fact; c) the recommendation of the Commission regarding deletion of certain words from the Entry relating to "jangam" and "thammali" is accepted Similarly, among "kalirtgas only "kinthala Kalingas" shall be included in the list of Backward Classes, and "burugam Kalingas" excluded -d) the Government accepts the recommendation of the Commission to have five sub-groups among the Backward Classes i. e. , "a" to "e" and also the inter se distribution of quota among them in the proportion of 10%, 16% 8%, 8% and 2% respectively; e) the 44 de-notified and Nomadic Tribes mentioned in paragraph 10 of the G. O. shall be included in Sub-Group a of the Backward Classes; f) the list of Backward Classes appended to the G. O. shall be the list of Backward Classes both for the purpose of Art. 15 (4) as well as Art. 16 (4); g) the Government accepts the recommendation of the M. R. Commission to enhance the reservation for Backward Classes to 44%; h) there shall be no inter-change among the different groups of Backward Classes; any unfilled vacancies in regard to appointments in any of the groups shall be carried forward to the same group for a period of three years; i) the benefits of reservation for Backward Classes should be restricted only to those belonging to families whose income does not exceed Rs. 12,000/- per annum; j) there is no need to provide for any reservations for Backward Classes in regard to promotions and recruitment by transfer; k) the reservations so made shall continue up to 2000 A. D. l) selections for recruitment and selections for admission already made shall not be affected by this G. O.

(17) THE total number of communities/groups included in the list of Backward Classes comes to 146.

(18) G. O. Ms. No. 167 issued on the same day enhances the reservations in favour of Scheduled Castes and Scheduled Tribes to 15% and 6% from 14% and 4% respectively. This is stated to have been done on the basis of 1981 census, according to which the population of Scheduled Castes and Scheduled Tribes is 14. 87% and 5. 93% respectively.

(19) G. O. Ms. No. 168 issued on the same day prescribes the roster of reservations consistent with the enhancement in the quota of reservation effected in G. O. Ms. Nos. 166 and 167.

(20) THE validity of the above G. Os. is challenged in this batch of writ petitions. The first writ petition No. 9457/86. was filed on 28-7-86. It was admitted on 29-7-86, was filed on 29-7-86 and one of us (Y. V. Anjaneyulu, J.) suspended the operation of the relevant paragraphs in both G. O. Ms. Nos. 166 and 167 in W. P. MP No. 12505/86 on 31-7-86. The Government filed a writ Appeal, bearing W. A. No. 867/86, against the said order. The Writ Appeal was disposed of with direction to post the said writ petition along with the connected writ petitions before the Full Bench on 18-8-86;

(21) BEFORE the Full Bench we may record, none of the Counsel attacked the validity of G. O. Ms. No. 167 (enhancing the reservations in favour of S. Cs. and S. Ts. from 14% and 4% to 15% and 6% respectively). The only attack has been against G. O. Ms. No. 166. G. O. Ms. No. 168 is merely consequential upon and reflects the orders in G. O. Ms. Nos. 166 and 167. Part II Grounds of Attack and Defence

(22) THE validity of G. O. Ms. No. 166 is attacked both by the not included in any of the listed Backward Classes, Scheduled Castes, or Scheduled Tribes, as well as by members of the Backward Classes themselves, though on different grounds. Some of these writ petitions are filed by citizens and some by certain Associations. Many others, citizens and Associations, have intervened. We shall first set out the contentions urged by the Counsel representing the "open competition candidates" which expression may, for the sake of facility, be taken as referring to persons not included in any of the Backward Classes, Scheduled Castes or Scheduled Tribes. The following contentions are urged by Sarvasri P. Ramgchandra Reddy, K. Srinivasa Murthy, K. Subrahmanya Reddy, Y. Suryanarayana K. Ramakrishna Reddy, V. Venkataramanaiah, P. Balakrishna Murthy, J. V. Suryattarayana, C. P. Sarathy, Vara Prasad (appearing as a party-in-person), Y. G. Ramamurty, R. Venugopala Reddy, K. Ramarao, E. Ella Reddy, and G. Raghuram :i) The M. R. Commission has exercised its authority and scope of reference. While it was asked primarily to review the recommendations of the Anantharaman Commission and the implementation thereof for the purpose of determining the need to continue the existing special provisions and to review the existing list in the light of the social and educational progress achieved by those classes, the Commission totally forgot and ignored the said direction and engaged itself in recommending some more castes to be added to the list and in making several recommendations which it was not expected to do. Similarly, the second purpose for which the Commission was appointed, viz. , to examine the social and educational backwardness of minority communities for the purpose of including them in the Backward Classes, has also been practically ignored by, the Commission. In other words, the two purposes for which it was appointed, the Commission did not concentrate upon but went about making recommendations and finding facts which were outside its scope and authority. ii) The Report of the M. R. Commission was not placed before the Legislature within six months of its submission as required by sub-S. (4) of S. 3 of the Commissions of Inquiry Act, 1952. It was placed before the Legislature almost four years after its submission. Meanwhile, the situation reported upon by the Commission has undergone a radical change as, indeed, it could be expected to. The said Report and the facts stated therein are no longer relevant or valid after a lapse of about four years. The Government, therefore, ought not to have accepted or acted upon the said Report. iii) The M. R. Commission did not make a full or through investigation; indeed it was not given any staff or cadres to do the investigation and inquiry which it purported to do. As is evident from the Report, it was given the assistance of merely three or four ministerial officers; it did not also keep in mind the criteria evolved by the Supreme Court for determining the social and educational backwardness. It went by, and its recommendations are based exclusively upon, caste, and caste alone, which is impermissible under Art. 15 (1) and 16 (1) of the Constitution of India. A reading of the Report discloses that Mr. Muralidhara Rao approached the whole problem with bias, and not with an open or independent mind. The Commission did not also keep in mind the principle that before a caste or group is designated as backward, its social and educational backwardness should be comparable with the Scheduled Castes and Tribes. " iv) The recommendation of M. R. Commission to enhance the quota of reservation for Backward Classes from 25% to 44% is based upon the finding that the population of backward classes vis-a-vis the total population of the State is 52%. The determination, which was really an estimate, is totally unwarranted, erroneous and contrary to all facts and figures. This estimate is also opposed to the estimate made by the Anantharaman Commission which estimated the said population at 34%. The process of reasoning by which the M. R. Commission arrived at the said percentage, i. e. , 52% is absurd and is the result of a total non-application of mind. For estimating the percentage of, what is called "forward Classes", the M. R. Commission has relied upon the figures mentioned in the Mandal Commission Report (submitted in December, 1980). According to the Mandal Commission, the forward classes are Brahmins; Rajputs, Marathas, Jats, Vaisya-Baniyas, Kayasthas, and "other forward Hindu caste/groups" the total of which was estimated by it at 17. 58%. In the State of Andhra Pradesh, the number of Rajputs, Marathas, Jats, and Kayasthas is negligible, whereas there is a large population of Reddys, Kammas, Kshtriyas, Velamas, Telagas, and Balijas, which population has not at all been taken into consideration by the M. R. Commission. The M. R. Commission took the total percentage of the forward classes in this State at 18% whereas, in fact, it is in the region of 33%. The Mandal Commission has included the Kapus including Reddys, Kammas, Telagas, Vaidikis, Niyogis, and Archaka Brahmins among Brahmins in the "other Backward Classes" (OBCs). Reliance upon the Mandal Commission Report which itself has not so far been accepted by the Central government - has irretrievably vitiated the Report of the M. R. Commission. v) In as much as the President of India had already appointed a Commission under Art. 340 of the Constitution (Mandal Commission), the State Government had no power to appoint the M. R. Commission, even under the provision of the Commissions of Inquiry Act. vi) The Action of the Government in issuing the impugned G. Os. is vitiated by mala fides. It acted out of oblique and extraneous consideration; it did not act in good faith, or for achieving the purpose underlying Arts. 15 (4) and 16 (4). The Government which had taken no action and had put the report in cold-storage for about four years, suddenly resolved to accept the Report in the first week of July 1986, which is attributable to the Tirupathi Conference of All Backward Classes in the State, announced on 29/30th of June 1986. The newspapers dated June 30, 1986 carried a news-item that all the backward classes in the State of Andhra Pradesh, irrespective of their political affiliation, would be meeting at Tirupati within a few days under the leadership of Sri P. Shiv Shankar, Union Minister for External Affairs. The present Telugu Desam Government apprehended that the Backward Classes, who are its main stay and its principal vote-bank, may slip away from their party and may join the fold of Congress (I) Party (to which party Sri P. Shiv Shankar belongs), and, therefore, it acted in such great haste. The State Government announced its decision in the first week of July, 1986, so as to pre-empt the Tirupati conference which was convened to be held on 12th and 13th of July, 1986. It is in these circumstances that the Government did not indeed it had no time or inclination to - examine the Report thoroughly - much less allow it to be debated and discussed in the Legislative Assembly and other public forums and issued the impugned G. Os. even before the Legislative Assembly had an occasion or opportunity to discuss the said Report. The Report was placed on the floor of the Assembly on July 15, 1986, on which date. Itself the impugned G. Os. were issued, though the discussion in the Assembly on the M. R. Commission Report was scheduled to 21st, July, 1986. Having waited for 4 years, there was no earthy hurry to push it through in such unseemly haste and dispatch. It is thus clear that the whole exercise is politically motivated and is, therefore, bad. (vii) Once the Government had issued G. O. Ms. No. 136 dated 21-8-1979 extending the reservation in favour of Backward Classes by another 10 years, there was no occasion for appointing another Commission in 1982. It does not appear that while issuing the impugned G. Os. , the Government was even aware of G. O. Ms. No. 136. Further, as late as March, 1986 the Chief Minister made a statement in the Assembly that, to have a clear picture of listed Backward Classes, the Government felt it necessary to get surveyed their socio-economic conditions and has introduced the survey in phased programme. Two districts were stated to be still remaining to be surveyed, for which purpose a sum of Rs. 13-70 lakhs was provided. Without waiting for the completion of the said survey, and without any reference to it, the impugned G. Os. , are issued. These facts establish that issuance of G. Os. is mala fide and for achieving oblique purposes. (viii) The hike in reservation quota for Backward Classes from 25% to; 44% has the effect of taking the total reservations under Arts. 15 (4) and 16 (4) of the Constitution to 65% - indeed, to 71% - which is contrary to the decision of the Supreme Court in Balajis case (AIR 1963 SC 649 [LQ/SC/1962/324] ) (supra) which has been reaffirmed repeatedly in subsequent decisions. Reservations can be provided only under Clause (4) of Art. 15, as also clause (4) of Art. 16 which are in the nature of exceptions to Art. 15 (1) and Art. 16 (1) and (2) respectively. A provision made under such an exception cannot be such as to eat away the main provision itself. The interests of all other candidates, and in particular the merit in education and efficiency in administration, should be kept in mind. The reservation of 71% or even 65% amounts to practically eliminating the room for merit - which is, bound to tell upon the standards of education and efficiency in administration. If the reservation in favour of non-local candidates (15%) which is in vogue in this State, is also taken into account, the seats left for open competition candidates in Professional Colleges and other educational institutions would be for less than 29%. (ix) The direction that the reservations contained in the impugned G. Os. shall be in force up to 2000a. D. is unreasonable, it is too long a period; prescribing such a long period and postponing the review till after 2000a. D. is contrary to the decisions of the Supreme Court. The reservations should be a declining phenomenon with the passage of time, and not vice-versa and (x) The impugned G. Os. , should be tested not only on the touchstone of Arts. 15 (4) and 16 (4), but also on the touchstone of Art. 14. If so tested, they fail to satisfy the test of reasonable classification, much less the requirement of reasonable nexus with the object. The criteria for ascertaining and identifying the backward classes under Clause (4) of Art. 15 are not the same as under clause (4) of Art. 16. Under the former, the test in the social and educational backwardness, while under the latter it is the inadequate representation in public services. The M. R. Commission erred in applying the same criteria under both the provisions. Further, after the decision of the Supreme Court in R. C. Cooper v. Union of India, AIR 1970 SC 564 [LQ/SC/1970/40] the impact of State-action on all the fundamental rights should be examined. The impugned action, so examined, constitutes an unreasonable restriction upon the freedoms guaranteed to the petitioners by Clauses (a), (c) and (g) of Art. 19 (1) and the right to life and liberty guaranteed by Art. 21.

(23) SARVASRI B. S. A. Swamy, advocate. Gouthu Latchanna, Konda Isacshman Bapuji, K. Keshava Rao (parties appearing in person), G. M. Anjaiah, Tarakam, Duba Mohan Rao and G. Vekantarao, Advocates challenged the validity of clauses 17, 18 and 19 of G. O. Ms. No. 166 (Clause 16) treats the five groups, "a" to "e" as separate sub-groups and provides that there shall be no inter-change among them. Any unfilled vacancies, it is directed, shall be carried forward in the same sub-group for a period of 3 years. Clause 17 directs that the benefits of reservation shall be available only to those belonging to families whose income does not exceed Rs. 12,000/- per annum. Clause 19 directs that there need be no reservation in promotions or recruitment by transfer. Their contentions are the following:"xi) The enumeration under Art. 15 (4) and Art. 16 (4) should be, and must be, done only on the basis of caste; (this contention is urged only by Mr. B. S. A. Swamy,) (xii) The placing of an income-limit and excluding those above the limit is impermissible in law and violative of Arts. 15 (4) and 16 (4). (xiii) Neither Art. 15 (4) nor 16 (4) contemplates the economic criterion or limit. Indeed, the discussions in the Parliament at the time of the First Amendment show that such an economic limit was suggested but rejected. If so, such a limit cannot be resurrected or provided now. Once a caste or group is identified as backward, no further classification is permissible. Mere economic advancement is no proof, much less a substitute for social and educational advancement. Members of backward castes do not advance socially, in spite of any amount of economic advancement, given in the structure of Hindu Society and complexes prevalent among higher caste Hindus. In spite of riches, a member of a backward caste continues to remain a member of the same caste and hence must be treated as backward. (xiv) Even if placing of income-limit is permissible, the placing of income-limit at Rs. 12,000/- per annum is arbitrary, unsupported by any supporting data, research or recommendation by any Commission or responsible body. Even in the counter-affidavit no reasons are given for fixing the limit at such a level. Even an Attenders family in Government Service as also an unskilled agricultural labourers family is excluded from the benefits as a result of the said ceiling. (xv) Fixing the income-limit at Rs. 12,000/- per annum is mala fide and done deliberately with an intention to deprive the backward classes of the benefits of reservation in practice. As a result of such ceiling, a large number of students and candidates from these classes would be effectively deprived of the benefit of reservation. The net representation of the backward classes in educational institutions and Government services would further go down. The argument of "creamy layer" is really misleading and elitist.

(24) SMT. Jayasree Sarathy argued for inclusion of woman in the Backward classes. Sri Mohd. Mukarramuddin pleaded for the inclusion of Muslims. His contention was that at any rate those Muslims who are following the professions like barbers, washermen, fishermen, mechanics and rickshaw-pullers, should be included in as much as Hindus engaged in corresponding professions are included. Mr. Innayya Reddy contended that Scheduled Castes who are converted to Christianity should not be placed in Backward Classes, but must be treated as Scheduled Castes.

(25) THE learned Additional Advocate-General appearing for the State, supported the legality and validity of the impugned G. Os. He disputed the correctness of the various legal contentions urged by the petitioners. He submitted that the M. R. Commission did not exceed its scope of reference, and even if it did, it does not affect the validity of the Government Orders issued on that basis. He submitted that the requirement of laying the Report before the House within a period of six months from the date of its submission, contemplated by S. 3 (4) of the Commissions of Inquiry Act, 1952, is only directory and not mandatory. In any event, it was open to the Government to treat the said Report as relevant material for taking action under Arts. 15 (4) and 16 (4). The delay of about four years does not also affect the efficacy, or the relevance of the report; the subject-matter of enquiry is not a passing or a temporary phenomenon but a permanent problem, it is contended. The learned Additional Advocate-General contended further that just as in the case of Scheduled Castes and Scheduled Tribes, it is open to the Government to provide reservations for Backward Classes proportionate to their population in the total population; the said basis has been recognised by more than one decision of the Supreme Court. So far as the basis upon which the M. R. Commission has arrived at the population of Backward Classes at 52% of the total population is concerned, the learned Addl. Advocate General placed certain material before us and contended that the said conclusion is a fairly correct estimate. In the absence of caste-wise census figures, it can only be an estimate, and as an estimate the determination approximates to the true position. Even if there is a difference of 2% to 3%, it is not a ground for this Court to interfere with the same. Indeed, the learned Addl. Advocate-General contended, it is permissible for the State to provide reservation more than the proportion of Backward Classes in the total population. With respect to the income ceiling prescribed in Cl. 17 of G. O. Ms. No. 166, he submitted, that it is a fair and reasonable limit. He conceded that in the note file there is no consideration by any body of this aspect, but the Cabinet consider this question. He placed certain material before us to justify the said ceiling and stressed the desirability and necessity of placing such income ceiling. With respect to the categorisation of Backward Classes into five sub-groups and barring interchangeability among them (Cl. 16 of G. O. Ms. No. 166), he contended that once the said categorisation is held to be unobjectionable, there can be no valid grievance against the provision barring interchangeability. In as much as these various sub-groups are at different levels of advancement, the impugned provision is designed to prevent the more advanced sub-groups among backward classes from knocking away the benefits meant for other sub-groups; the unfilled posts or offices will be thrown open at the end of third year to the general candidates. Lastly, coming to the allegation of mala fides, the learned Addl. Advocate Generals submission was that it has not been substantiated, and, further, that even if it is held that it was done with a view to pre-empt the Tirupati Conference, there is nothing wrong in it, legally speaking. The correctness of other legal and factual contentions also was disputed by him.

(26) SARVASRI S. Ramachandra Rao, K. G. Kannabiran, and S. L. Chennakesava Rao fully supported the validity of the impugned G. Os. Sri. S. Ramachandra Rao placed before us copies of Sample Socio-Economic Census Report, 1981-82 conducted and published by the Bureau of Economics and Statistics. It is alleged that according to the said Report, the population of Backward Classes in the rural Andhra Pradesh is 44. 8%. He contended that even if the population of cities is taken into account, the population of backward classes would not be less than the said figure and, therefore, the reservation of 44% made for them is justified and proper. Learned counsel also disputed the correctness of the legal contentions urged by the petitioners. According to Sri. K. G. Kannabiran, the petitioners cannot make any grievance for not placing the Report on the floor of the Assembly within six months of its submission, in as much as the Legislature never thought it fit to object to the same and has actually approved the G. Os. With respect to mala fides, counsel contended, since we are living in a political democracy where political parties form the Government, there is nothing wrong in a Party-in-power conceding the demand of the Opposition and such an action, it is submitted, cannot be called mala fide. Counsel also submitted that since no precise census figures are available or possible, one has to go only by approximate figures. Approved in such a manner, the estimate of Backward Classes population arrived at by the M. R. Commission cannot be said to be unreasonable, or totally erroneous.

(27) SAME is the contention of Mr. S. L. Chennakesava Rao.

(28) MR. B. S. A. Swamy, the learned Counsel appearing for "andhra Pradesh Backward Classes Sangham" supported the impugned G. Os. in so far as the raise the level of reservation to 44% in favour of Backward Classes. According to him, the estimate of population made by the M. R. Commission is correct, and calls for no interference. Certain other counsel also supported the reasoning. He also impugned the Government Orders by a separate Writ Petition for transferring kinthall Kalingas from sub-group a to d. Part III the Report of the Commission and the Impugned G. Os.

(29) MURALIDHARA Rao Commission was appointed by the Government for two purposes, namely. " (i) review the recommendations made by the Andhra Pradesh Backward Classes Commission, 1970 and the implementation thereof for the purpose of determining the need to continue the existing special provisions in their favour under Arts. 15 (4) and 16 (4) of the Constitution, and to review the existing list of Backward Classes in the light of the social and educational Progress achieved by these classes; (ii) examine the social and educational backwardness of minority communities for the purpose of including them within the purview of the backward classes of citizens under Art. 15 (4) and Art. 16 (4) of the Constitution.

(30) THE language of Cl. (i) shows that the Commission was asked to review the, recommendations made by the 1970 Commission and its implementation for the purpose of determining the need to continue the existing special provisions and to review the existing list of backward classes in the light of the social and educational progress, achieved by them. This was evidently because the Anantharaman Commission had recommended - which recommendation was accepted by the Government - that the reservations made shall be for a period of 10 years in the first instance, and the position reviewed thereafter with a view to consider the desirability of extending the concessions further. The idea evidently was to find out whether and which of the groups/classes included in the list ought to be deleted in this light of the progress made by them. Cl. (i) did not contemplate the M. R. Commission to find out which other groups or classes required to be included, nor did it contemplate the Commission to investigate, or recommend whether the extent of reservation then obtaining should be enhanced. It was not also expected to make any other recommendations for representation of these classes in political field, nor any economic measures. The second main purpose for which the Commission was appointed was to find out the social and educational backwardness of minority communities, and whether any or all of them should be included in the backward classes. Indeed, if one looks at the circumstances in which G. O. Ms. No. 12 came to be issued (which facts are set out in Part-One of our judgement), it would be evident that the Commission came to be appointed mainly because of the demand of the Minorities Commission to include the Muslims, or at any rate some groups among them, in the backward classes and to provide financial assistance to them. The Government was inclined to do something for them but, the legal advice tendered by the Law Department and the Advocate General was that Muslims as such cannot be included in the backward classes as it would offered (offend ) Art. 15 (1) and Art. 16 (1) and (2). The legal advice also was that a separate Finance Corporation is not feasible for the minorities. It is in these circumstances that the Government appointed the Commission to find out which groups or classes among the minorities can be included in Backward Classes and what steps can be taken to ameliorate their backwardness. At the same time it was also asked to look into the other aspects referred to in Cl. (i) of para 4 of G. O.

(31) THE Commission recommended, on the first point, that the special provisions already made did not have any effect, and that the special provisions including reservations should continue for another, period of 25 years. On the second point, the Commission opined that none of the groups or classes among Muslims or any other minorities can be included in Backward Classes, except those already, viz. , "mehtars" and "dudekulas". Having said so, the Commission went further and recommended the inclusion of more castes among backward classes, and the raising of the level of reservation from 25% to 44%, besides several other political and economic measures. In this sense, the Commission did indeed exceed the scope of its reference, and made recommendations which it was not expected to do. Another circumstance relevant in this behalf is that even in 1979, i. e. , about 2 years earlier to the appointment of this Commission, the Government had issued G. O. Ms. No. 136 extending the special provisions; including reservations contained in G. O. Ms. No. 1793 of 1970 by another 10 years, i. e. , up to 1990-91, without raising the level of reservation. The M. R. Commission must be presumed to be aware of the said, G. Os. yet, it chose to recommend that the level of reservation should be raised from 25% to 44%, and that the reservations should be continued for the next 24 years.

(32) BUT, the question is not whether the M. R. Commission exceeded its purview, but whether the Government can be said to have acted illegally in accepting and implementing the said recommendations. On this aspect, it is well to remember that appointment of a Commission is not obligatory before making a special provision, or before providing for reservations under Art. 15 (4) and Art. 16 (4). Even apart from the provisions of the Commission of Inquiry Act, the executive power of the State extends to appointing a person or a Committee by whatever name it may be called to investigate the social and education backwardness of any classes or groups in the State, and to act upon the report submitted by such person or Committee. Indeed, it may even be open to the Government to make it own investigation and take appropriate measures. It, therefore, cannot be said that just because the M. R. Commission made certain recommendations beyond its purview, the acceptance of the said recommendation by the Government is per se illegal or incompetent. It is another matter to say to the recommendations of the Commission are not based upon relevant material, or to say that the Government blindly accepted the said erroneous recommendations without any further investigation. This aspect we shall deal with presently, but, so far asthe first contention of the learned Counsel for the petitioners is concerned, it is not possible to agree, that the Government acted illegally accepting, or acting upon the said recommendations because those recommendations were outside the purview of the Commission.

(33) IN so far as the contention that the Commission did not properly or fully go into the two questions specifically referred to it is concerned, we do not think it necessary to investigate the said aspect, because none of the petitioners are aggrieved against the continuance of the listed Backward Classes, nor is it their contention that any of them should be taken out. Indeed no specific argument was also addressed against the inclusion of 9 communities recommended by the Commission or for that matter to the inclusion of 44 nomadic tribes by the Government. So far as the non-inclusion of Muslims in Backward Classes is concerned, it is contended by Sri. Mukarramuddin that the Commission was wrong in making a recommendation against inclusion of Muslims. His contention is to the following effect. Once certain professional groups, like barbers, washermen, fishermen, etc. , among Hindus are included in backward classes, there is no reason why the groups among Muslims following the said professions also should not have been included. Counsel further submitted that there are a large number of rickshaw-pullers belonging to Muslim community in the city who are also socially and educationally backward but who too have not been recommended to be included. Another specific contention of the learned Counsel is that there are a certain number of multanis in two villages in Adilabad District who are in a state of extreme social and educational backwardness, and that the Commission never took care to locate them or to investigate their conditions, or to recommend their inclusion. In our opinion, the reasoning of the learned Counsel is unacceptable. Barbers, washermen and fishermen among Hindus constitute a homogeneous group a caste, which is also a class within the meaning of Art. 15 (4) the members where of follow the particular profession generation after generation and as a matter of customary obligation; they constitute a homogeneous group identifiable by their profession, customs and practices. The same cannot be said of those following similar professions among Muslims. For that matter, any other Hindu belonging to forward classes may also choose to engage himself in any of the said professions but, for that reason he cannot be called a member of the homogeneous class of barbers, washermen, or fishermen, as the case may be. The link between the caste and profession does not exist among Muslims. Indeed, Islam does not recognize caste system at all, as pointed out by the Mandal Commission, though it may be that at the rural level, caste system has percolated to some extent into Muslims too. So far as "dudekulas" and mehtars among Muslims are concerned, who can be said to be attached to a particular profession, they have already been included in the list of Backward Classes. It is not brought to our notice that there is any other group which is situated similarly to "dudekulas" and "mehtars". So far as rickshaw-pullers in Hyderabad are concerned they are not confined to any one community. It may be that they are socially and educationally backward and require assistance, but in the absence of any representation by them, we cannot find fault with the M. R. Commission for not recommending their inclusion. True it is that the Commission could have made its own enquiries even though no representation as such had been made to it for there may be certain groups who may not even be aware of the appointment of such commission, or that they are expected to make representation. But as pointed out above, this was not the province of the Commission at all. Indeed, in so far as it recommended the inclusion of some groups, it acted beyond its purview and authority. We are of the opinion that it is for the Government to consider whether there are any other groups, including the rickshawpullers in the twin-cities, who deserve to be included among backward classes, and if so, what special measures should be taken to alleviate their social and educational backwardness. These comments apply equally to the argument of Mr. Mukarramuddin about "multanis", said to be inhabitants of two villages in Adilabad District. It would be equally open to any organisation or the Minorities Commission to bring the relevant facts to the notice of the Government for appropriate action.

(34) FOR the above reasons, contention No. 1 urged by the learned Counsel for the petitioner, as also the contention urged by Sri. Mukarramuddin are rejected.

(35) THE next contention of the petitioners is that inasmuch as the report of M. R. Commission was not placed on the floor of the Legislature within six months of its submission as required by S. 3 (4), Commissions of Inquiry Act. 1952, no action could have been taken thereon by the Government after the expiry of six months. S. 3 (4) reads as follows :"3 (4). The appropriate Government shall cause to be laid before the House of the People or, as the case may, the Legislative Assembly of the State, the report, if any, of the Commission on the inquiry made by the Commission under sub-S. (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government. "sub-sec. (4) was introduced by Amending Act 79 of 1971. Counsel for the petitioners rely upon the objects and reasons appended to the Amending Bill, which is extracted at pages 464 and 465 of the AIR Manual, Volume 6. According to it, sub-S. (4) was introduced in the light of the experience gained indicating that many Governments do not place the Commissions report before the Assembly at all though they relate to important issues of national interest. It was thought necessary to compel the Government to place the Report before the Parliament or the appropriate Legislative Assembly together with a memorandum of action taken thereon, within a period of six months from the date of submission of the Report. There is no doubt that in this case the Government failed to place the report on the floor of the Legislature for a period of approximately four years and it goes without saying that no one appreciates this delay. But, the question is whether on this account the Report should be treated as non est or, void, as contended by the petitioners, and whether it should be held that the action taken by the Government thereon, viz. issuance of G. O. Ms. No. 166 to 168, is incompetent and invalid. This brings in the question whether sub-S. (4) of S. 3 is mandatory or directory. On a consideration of the arguments pressed upon us by both sides, we are inclined to hold that the provision is not mandatory. There is no other provision in the Act which provides for the consequence that flows from the non-observance of the requirements of sub-S. (4). Evidently, this sub-Section was conceived as a check upon the Govt. inaction, or deliberate suppression of the report before the Parliament/legislative Assembly along with the Memorandum of action taken by it thereon. But, if we hold that non-placing of the Report or non-observance of the time-limit prescribed in the sub-Section results in rendering the very Report void, and that, on that account, the Government is precluded from taking any action on the basis of such Report, it would amount to placing a premium upon the delay or default on the part of the Govt. and would not serve the purpose of the sub-Section. It is one thing to say that on account of this lapse of time the Report has lost its relevance or validity in a given case or that the relevant circumstances have undergone such a qualitative change that the Report is no longer relevant, or of any use, and quite a different thing to say that the report is rendered void after the period of six months on the ground of non-compliance with the said sub-Section. In case of non-observance of the said sub-Section it is always open to any member of the Parliament/legislature, or any Opposition party/group to question the Govt. as to why the Report of the Commission is not placed before the House, and also regarding the action taken by the Government on such Report.

(36) ANOTHER aspect commented upon by the learned Counsel for the petitioners is that while the Report was received in September, 1982 it was placed on the floor of the House only on 15-7-1986 on which day itself the Government issued the impugned G. Os. , thus pre-empting any discussion or debate in the House upon the said Report and the memorandum of action. It is pointed out that the debate on the said Report and the memorandum in the Assembly was scheduled to 21st July, 1986, and that the Govt. ought to have waited till after the said debate before issuing the impugned G. Os. By issuing the G. O. even before any debate took place before the Legislature, it is contended, the Government has pre-empted the debate and made it a futile exercise. While we quite appreciate the legitimacy of the said contention, we are unable to hold that on this ground the impugned G. Os. can be quashed. It is not as if the Legislature, when it discussed the Report and the G. Os. , disapproved them. In the circumstances, the Legislature must be deemed to have approved the action taken by the Government on the Report.

(37) FOR the above reasons, contention No. 2 urged by the counsel for the petitioners is rejected.

(38) COMING to the third contention urged by the learned Counsel for the petitioner, it is true that apart from a ministerial staff of about 3 or 4 officers, no staff in the nature of investigators or researchers were given to the M. R. Commission. The Commission itself comprised of a single Member, as compared to the Anantharaman Commission which comprised of 9 members, including a number of, Legislators. But the Commission was empowered to call for such information as it may consider necessary and relevant, from any department of the Government. It was a Commission appointed under the 1952 Act and thus enjoyed all the powers conferred upon such Commission by the said Act. Indeed, it says that it has examined 622 witnesses, besides examining the replies received to the questionnaire issued by it to several heads of departments, chiefs of public-sector undertakings, and public men. Be that as it may while examining this contention of the petitioners it is necessary to notice the scope of enquiry which the M. R. Commission was expected to make. It was merely asked to review the list of Backward Classes contained in G. Os. No. 1793 with a view to find out whether any of them have progressed socially and educationally, so as to call for their deletion from the list, and also to find out whether any of the minority communities or groups deserve to be included in the list of Backward Classes. It was not supposed to undertake any elaborate enquiry to find out whether any other castes/groups among Hindus ought to be included. But as we have already mentioned, none of the petitioners are aggrieved by the continuance of the existing communities in the list of Backward Classes, nor are they aggrieved by the recommendations of the M. R. (sic) Commissions did or did not keep in mind the relevant tests for determining the backward classes while doing its work under Cl. (i) of para 4 of G. O. Ms. No. 12 (appointing the Commission). Such an examination is necessary only while examining its Report in so far as it relates to Cl. (ii) of para 4 of the said G. O. i. e. , its recommendation regarding the inclusion of minorities in the list of Backward Classes. This aspect we have dealt with in the preceding paragraph while dealing with the submissions of Sri. Mukarramuddin.

(39) SO far as the charge of bias levelled against Mr. Muralidhara Rao is concerned while it is true that he traveled beyond the scope of reference and while reading of his report discloses his devotion and dedication to the cause of upliftment of backward classes, there is no material to hold that he was either biased in favour of backward classes or biased against other classes.

(40) ACCORDINGLY the third contention urged by the petitioners is rejected.

(41) WE now come to the main, and the most important aspect of the M. R. Commission Report viz. its determination of the population of backward classes at 52% of the total population, it may be stated that the Commissions recommendation to reserve 44% of seats/appointments in favour of backward classes is squarely based upon the finding relating to percentage of backward classes in the total population. A perusal of paras 4. 20 and 5. 10 of the M. R. Commission Report makes this fact clear. In para 4. 20 the Commission stated :"accordingly, after taking into account all aspects this Commission feels that the reservation shall be in proportion to the population. It is true that some posts in the open competition may be secured by the Backward Classes on merit. After considering the experience in the recruitment in some Department, the Commission assesses that about 8% of the open vacancies may go to the Backward Classes on the basis of the population should accrue to them by way of reservation. Accordingly the Commission recommends that the existing reservation of 25% shall be raised to 44% to the Backward Classes. "

(42) WE may also mention that the Government has implicitly accepted the said Report and acted upon it while raising the level of reservation, which is evident from a reading of paras 13 to 15 (impugned paras) of G. O. Ms. No. 166 which read as follows :"13. The Commission has estimated the population of Backward Classes at 52% of the total population of Andhra Pradesh. The Commission has recommended that the reservations for Backward Classes in appointments should be in proportion to the population. After making due allowance for about 8% of the total vacancies becoming available to Backward Classes on merit, the Commission has recommended that the reservation for Backward Classes should be 44% for appointments under the State Government including Public Undertakings, Corporations, Local Bodies, Educational Institutions, etc. "14. Government have carefully considered the recommendation of the commission in this regard and accept the recommendation. Government accordingly direct that the a reservation for the Backward Classes in appointments under the State Govt. including Public Undertakings, Corporations, Local Bodies, Educational Institutions and all other Organisations or Bodies wherever reservations exist should be enhanced from the existing level of 25% to 44%. 15. The Commission has also recommended the enhancement of the percentage of reservation to 44% should apply in regard to admission to educational institutions. Government accept this recommendation and direct that the percentage of reservation for Backward Classes should be increased to 44% in regard to admissions in educational institutions. "

(43) THE question, therefore, arises whether the M. R. Commission was right in determining the population of backward classes at 52% of the total population. This determination has been fiercely attacked by all the counsel appearing for OC Candidates, and their organisations, (Emphasis added).

(44) THE Commission has arrived at the said finding in paras 2. 12 and 2. 13 in Chap. II of its Report. It is conceded by all that these are the only two paras relevant in this behalf and that no other part of the Report deals with this aspect. It would, therefore, be appropriate, in our opinion, to extract both the said paras in full :"2. 12. Now it would be necessary to have an estimate of the population of Backward Classes who expect justice from the State Government. To-day there is no census for Backward Classes caste-wise. We can get statistics of Scheduled Castes, scheduled Tribes, Muslims, Christians, Sikhs, Buddists, Jains from the census figures. However, it would be necessary for the purpose of the report to arrive at the percentage of the Backward Classes in the State. The methodology followed by the Mandal Commission in its report on page 56 is adopted here. Mandal Commission has first estimated total percentage of Scheduled Castes and Scheduled Tribes. Later they took the figures of Muslims, Christians, Sikhs, Buddists and Jains which are available from the census report. They have estimated the Forward Caste population at about 17. 5% By deducting from the total population the population of these categories, the Mandal Commission arrived at the percentage of other Backward Classes which according to them is 43. 7%. To this, they have added roughly half of the percentage of their religious groups, viz. , Muslims, Christians, Sikhs, Buddists, Jains considering them as backward and arrived at the percentage of Backward Classes in the total population of India which is placed at 52%. In Andhra Pradesh State, adopting the same procedure the population of Backward Classes is worked out below. Census Figures 1971 (Andhra Pradesh)"2. 13. Estimating the population of Forward Hindu Castes and Communities at 18% (the figure adopted by Mandal Commission being 17. 58%) the population of Forward Castes Communities, Scheduled Castes, Scheduled Tribes, Muslims, Christians, Sikhs, Buddists, Jains roughly comes to about 47. 09% (18 plus 29. 09). In other words we may place this at 48% and the remaining will account for the Backward Classes and the percentage of Backward Classes will therefore work out to 52% (100-48). Here the only difference is that we are not adding again half of the percentage of minorities population since we consider that Backward Classes population among the minorities is not so substantial. Therefore this estimate of the Backward classes is more conservative than that of Mandal Commission. Therefore, throughout the report hereafter, the population of Backward Classes has been taken at 52% of the total and on this basis the recommendations have been made in this report. "

(45) AS observed by the M. R. Commission in the said two paras, no caste-wise census figures are available to Backward Classes (sic) since last more than 50 years; the last-caste-wise census took place in 1921/1931, where after such caste-wise census took place in 1921/1931, where after such caste-wise enumeration was stopped. Only the population of SCs/sts. and non-Hindus (Muslims, Christians, Sikhs, Buddists and Jains) are separately shown. All others are shown as Hindus only, without indicating their caste or denomination. The M. R. Commission says that, in the above circumstances, it has followed the methodology followed by the Mandal Commission at page 56 of its Report. It is, therefore, necessary to examine the methodology followed by the Mandal Commission.

(46) THE Report of the Mandal Commission is in seven volumes, which is published in two parts by the Government of India. (First part contains Volumes I and II, while the second part contains Volumes III to VII. It is at page 56 of the First Part that the methodology followed by the Mandal Commission for arriving at the population of Backward Classes is indicated. The discussion is contained in Chap. XII, entitled "identification of O. B. Cs. " (O. B. Cs. means backward classes other than Scheduled Castes and Scheduled Tribes). The said expression corresponds to the expression "backward Classes" obtaining in this State. In this State Scheduled Castes and Scheduled Tribes are not generally understood as or included in backward classes; they are treated as a category apart from backward classes whereas the Government of India and some other States include Scheduled Castes and Scheduled Tribes also among Backward Classes. What we call "backward Classes" in this State are treated as "other backward classes" there). In Chap. XII the Mandal Commission stated it had formulated 11 indicators or criteria of backwardness for identifying Hindus and that it has taken the caste as a unit of identification among Hindus. It recognised that the criteria evolved by it does not have much validity for non-Hindu communities. The Commission further stated that it has "adopted a multiple approach for the preparation of comprehensive lists of other Backward Classes for all the States and Union Territories. The main sources examined for the preparation of these lists were :" (i) Socio-educational field survey 9 (i) Census Report of 1961 (Particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes). (iii) Personal knowledge gained through extensive touring of the country and receipt of voluminous public evidence as described in Chap. X of this Report; and (iv) lists of OBCs. notified by various State Governments. It has appended a list of o. B. Cs. in Andhra Pradesh separately which is found printed in Part II of the Report, at pages 173 to 175 in the copies supplied to us. A perusal of the said list of O. B. Cs. in Andhra Pradesh discloses that in it are included "archak Brahmins (S. No. 8), "kayasth Kaiti Brahmin" (Sl. No 112) "perikalu, Reddy" (Sl. No. 221), "telaga, Kamma" (S. No. 264), and "vaidiki, Niyogi" (SI. No. 282). In other words, Reddys, Kammas, Telagas and a large proportion of Brahmins are put among "backward Classes" by the Mandal Commission, which is rather curious, Reddy, Kammas, Telagas and "vaidikis and "niyogis" among Brahmins are the most dominant communities in this State, socio-economically speaking. The population of Reddy, Telagas, Kammas, and those groups among Brahmins which are included in Backward Classes by the Mandal Commission is also quite considerable as would be evident from the 1921 Census Reports, which we shall refer to presently. Indeed, none could suggest in this State that any of these categories namely, Reddy, Telagas, Kammas, Vaidikis and Niyogis, should be placed in the list of Backward Classes. Such a notion would, not only be absurd, it would be ridiculous. We are pointing this out to show that in arriving at the population of Backward Classes at 52% of the total population those significant communities/groups were also included among o. B. Cs. by the Mandal Commission, which cannot but vitiate its findings. However, before proceeding further we shall refer to the precise methodology adopted by the Mandal Commission as disclosed from page 56 of its Report (Part I). Paras 12. 19 to 12. 22 are relevant in this behalf. In para 12. 19 the Mandal Commission stated that the systematic caste-wise enumeration of population introduced in 1881 was discontinued in 1931 and, therefore, caste-wise population figures are not available beyond 1931. It took 1931 figures as the basis, and assuming that the growth in the population among several groups is co-equal, it arrived at the population figures of Scheduled Castes and Scheduled Tribes (put under Group a) non-Hindu Groups, religious groups etc. (put under Group b) wherein are included Muslims (other than STs.), Christians (other than STs.) Sikhs (other than SCs. and STs.), Buddists (other than STs. and Jains). It then determined the population of the third group called "forward Hindus Castes and Communities" (Group C) comprising Brahmins (including Bhumshars), Rajputs, Marathas, Jats, Vaishyas-Bania, etc. , Kayasthas, and other forward Hindu Castes/groups". Having arrived at the population of these three groups, it treated the remainder of the population is, 43. 7% as O. B. Cs. To this it added 8. 40% representing the Backward Classes among the second group and thus arrived at the figure of 52% population of O. B. Cs. Paras 12. 20 to 12. 22 may usefully be extracted;"12. 20. "working on the above basis the Commission culled out caste/community-wise population figures from the census records of 1931 and, then grouped them into broad caste-clusters and religious groups. These collectivities were subsequently aggregated under five major heads, i. e. (i) Scheduled, Castes and Scheduled Tribes; (ii) non-Hindus Communities, Religious Groups, etc. (iii) Forward Hindus Castes and Communities, (iv) Backward Hindu Castes and Communities and (v) Backward non-Hindu Communities. Results of this exercise are contained in the table and a look at it will indicate the broad classification adopted by the Commission. " 12. 21. The population of Hindu OBCs, could be derived by subtracting from the total population of Hindus, the population of Scheduled Castes, Scheduled Tribes and that of Forward Hindu Castes and communities and it worked out to 52%. But the same approach could not be adopted in respect of non-Hindu OBCs. Assuming that roughly the proportion of OBCs. amongst non-Hindus was of the same order as amongst the Hindus, population of Non-Hindu OBCs. was also taken as 52% of the actual proportion of their population, of 16. 16% or 8. 40%. Thus the total population of Hindu and non-Hindu OBCs. naturally added up to nearly 52% (43. 70% plus 8. 40%) of the countrys population. 12. 22. From the foregoing it will be seen that excluding Scheduled Castes, and scheduled Tribes, other Backward Classes constitute nearly 52% of the Indian population. Percentage Distribution of Indian Population by Caste and Religious Cadres-

(47) FOLLOWING the methodology evolved by the Mandal Commission, the M. R. Commission arrived at the following figures, as would be evident from paras 2. 12 and 2. 13 extracted herein before. Adopting the 1971 census figures (evidently 1981 census figures were not published by that time), it took the total population of the State at 4,35,02,708. From the said Census figures, it took the population figures of Muslims, Christians, Sikhs, Budhists and Jains and worked out their percentage to total population the total of which comes to 12. 09%. Similarly it took the population figures of Scheduled Castes and Scheduled Tribes, the percentage whereof was 13% and 4% respectively, i. e. a total of 17%. It thus arrived at the total of 29. 09% representing, the Non-Hindus, Scheduled-Castes and Scheduled-Tribes. The next step in this process was the determination of population of "forward Hindu Castes and Communities". The M. R. Commission took the population of forward Hindu Castes and communities at 18% on the basis of the figures; determined by the Mandal Commission, According to Mandal Commission, the forward Hindu Castes and communities constituted 17. 58% of the total population, which the M. R. Commission rounded off to 18%. Thus, the total percentage of these three groups, namely, non-Hindus, S. Cs. and S. Ts. , and forward Hindu Castes and communities came to 47. 09% which the M. R. Commission rounded off to 48%. The remainder of 52% is treated as Backward Classes. The question is whether this method is the correct one and acceptable.

(48) BEFORE examining the correctness of the said methodology and figures, we think it necessary to emphasise that, in the absence of caste-wise census figures, it is not possible to determine the precise population of backward classes (whether adopting the list of Backward Classes contained in G. O. Ms. No. 1793; or the list recommended by the M. R. Commission, or the list contained in G. O. Ms. No. 166, as the case may be). It can be done only in the case of Scheduled Castes, Scheduled Tribes or non-Muslims. Regarding Backward Classes or "forward Castes", it can only be an estimate. (Anantaraman Commission had adopted 1921 figures for Telangana area). We may also say that we are not sitting as an appellate authority over the Report of the M. R. Commission. We can interfere only if it is established that the figure arrived at by the M. R. Commission is quite unreasonable and wide off the mark, so that the said figure could never have been taken as the basis for determining the percentage of reservation for backward classes. Any small variation of, say 2% or 3%, would not matter, for such variation may be inherent in any estimate in the given circumstances.

(49) AT the outset we must mention that the M. R. Commission has merely adopted, the methodology followed by the Mandal Commission, but not the population figures determined by the Mandal Commission, except in the case of forward Hindu Castes and Communities. In other words, so far as Groups I and II, viz. , S. Cs. and S. Ts. and non-Hindu communities/groups are concerned; while the Mandal Commission has taken their population percentage at 22. 56% and 16. 16% respectively; the M. R. Commission has, on the basis of 1971 census figures arrived at their percentage at 17% and 12. 09% respectively. But, when it came to the determination of population of forward Hindu caste and communities, it chose to adopt the figures determined by the Mandal Commission for them. The Mandal Commission has arrived at the population of these forward Hindu castes and communities at 17. 58%, which the M. R. Commission rounded off to 18%. The M. R. Commission did not try to determine the population of these forward Hindu castes and communities in this State on the basis of 1921/1931 figures, which it could have easily done, and which it ought to have done for the following reasons (a) Reddys, Telagas, Kammas, and a large proportion of Brahmins namely, Vaidikis, Niyogis, and Archakas placed in backward classes by the Mandal Commission are admittedly forward castes of Hindus in Andhra Pradesh; (b) by the expression "forward Hindu Castes and Communities" the Mandal Commission meant Brahmins, Rajputs, Marathas, Jats, Vaishays, Banias, and Kayasthas, besides "other forward Hindu Castes/groups". It gave the population percentage of each of these groups. The population percentage of Brahmins is 5. 52% of Rajputs 3. 90; and Marathas 2. 21 and so on. So far as other forward Hindu Castes and groups (sub-group C-7 in the group of forward Hindu Castes and communities) are concerned, it took their population at 2%. Now, it is again not disputed that Rajputs, Marathas, Jats and Kayasthas are not found in this State, except in very insignificant numbers. Moreover, the 1921/1931 figures establish conclusively that the figures adopted for Brahmins (C-1) and other forward Hindu castes/groups (C-7) are totally misleading and wide off the mark, which would be evident from the figures supplied both by the counsel for O. C. petitioners as well as the learned Advocate General. They have placed before us the Census papers relating to Hyderabad State, as well as the Madras Province for the year 1921. There is no dispute about the correctness of these papers. A perusal of 1921 census discloses the method followed at that time. Table XIII of Volume XXI, and Table XII1 of Volume XIII relate to Hyderabad State and the Madras Province respectively. Table XIII pertains to "territorial distribution of Principal caste. " Part II thereof gives the caste-wise figures for each district in both the areas. On the basis of the said census figures, both the parties have arrived at the total population and their percentage in the total population in the territories now comprising the State of Andhra Pradesh. The figures so furnished by both the parties tally, except in certain minor particulars. Be that as it may, we shall adopt the figures furnished by the learned Additional Advocate General only. According to these figures, the total population of Andhra Pradesh in 1921 works out to 1,95,27,230. Out of this, the population of certain major forward castes is shown in the following

(50) THE resultant position-emerging from Anantharaman Commission Report, 1971 census and 1981 census may be summarized in the shape of the following table :thus, we have the three figures relating to B. Cs population in this State, viz. , : i) Anantharaman Commission estimate (as in the year 1968) at 33. 5% ii) As per 1971 census figures at 37. 61% iii) As per 1981 census figures at 35. 04%. whichever figure one adopts, it would be evident it would be a far cry from the figure of 52% determined by the M. R. Commission. At this stage, we may notice the criticism against each of the above three figures : (i) Criticism against Anantharaman Commission estimate: (a) It is submitted by the learned Advocate General and counsel for B. C. candidates/associations that out of 93 communities identified by Anantaraman Commission, it would obtain the population figures only of 50 groups - the total whereof comes to 1,37,65,215 - but that it could not obtain and hence did not mention the figures of remaining 43 groups. It is argued that the population of these 43 groups should also be taken into consideration in which case the population of Backward classes would substantially go up. It is not possible to accept this contention for more than one reason.

(51) FIRSTLY, population figures of these 43 groups are not available, not even an estimate. Secondly, out of these 43 groups, 14 groups are shown as "beggars". Some others are bird catchers, snake charmers, drum beaters, etc. Evidently their population cannot be much.

(52) (B) Then it is submitted that population of 9 communities added among Backward classes as per M. R. Commission Report and of 44 de-notified tribes included by the Government under the impugned G. O. should be taken into account. Again, it must be said, population figures of none of these groups are available. The population of 44 de-notified tribes cannot again be significant.

(53) WE do, however, agree that some addition may have to be made on account of the groups mentioned above. But then this has to be balanced against another factor, viz. , the deletion of Lambadas and Yerukalas after 1971 - some time in 1975-76 from Backward classes. The figure of 1,37,65,215 as the population of Backward Classes estimated by Anantharaman Commission includes 3,84,604 Lambadas (Item 13 in Appendix VI to Anantharaman Commission Report). This is not an insubstantial figure. Thus the addition on account of the groups mentioned in (a) and (b) in this paras has to be balanced against the deletion of Lambadas. The resultant variation may be very insignificant. Note : In the above Table we have taken the population of forward castes as the same in 1921-1931 census, for the reason that caste-wise census figures are not available since 1921-1931. The variation in the B. C. population between 1971 and 1981 censuses is the result of rise in SC/st population during the said period. (ii) Criticism against the estimate based on 1971 and 1981 census figures : the learned Advocate-General submitted a note saying that several groups included in Backward Classes have been included among Kapus, Reddis, Balijas, and Kshatriyas in the 1921 census and that the population of such sub-groups ought to be excluded. We shall now proceed to deal with his objections.

(54) ACCORDING to the Note, among the population of Kapus shown in the aforesaid Table are included "falli Kapus", "palli Reddys", "munnuru Kapus", "turupu Kapus", "vanne Kapus", and "vanne Reddys" who are included among backward classes, as also "konda-Kapus" and "konda-Reddys" who are included in Scheduled Tribes. Further it is mentioned in the said statement that Turupukapus are found predominantly in Vizag, Vizinagaram, and Srikakulam Districts in which the population of other Kapus is negligible. The population of Kapus in these districts is accordingly estimated at 6,05,930 i. e. at 3. 1 %. Similarly, the population of "munnurukapus" in Telangana is stated to be 1,46,607 i. e. , 0-08%. His submission is that this 3. 9% should be deducted from out of the percentage of Kapus. The next submission is that among Balijas are included "perika Balijas", "krishna Balijas", "setti Balijas" and some other groups, and that the population of Perika-Balijas and Krishna-Balijas is about 80,729, which works out to 0. 5% which must be deducted from the percentage of Balijas. In the same manner, it is stated, among the Kshatriyas are included "vanyakulakshtriyas" whose population is 1,01,607, i. e. , 0. 6% which must be deducted from the percentage of Kshatriyas. We are unable to appreciate the above statement or the submissions based thereon. These facts are not stated in the counter-affidavits filed by the State, but are submitted only by way of a note. Secondly, on merits too we find the note unacceptable. We shall first take up "munnurukapus". In the Telangana census figures, "munnuru" caste population figures are separately shown, the total whereof is 1. 83,356. It is therefore not correct to say that "munnuru" or Munnurukapus are included in the population figures of "kapus" which are separately shown in the said census figures.

(55) NOW coming to "turupukapus" besides the above statement there is no affidavit by any responsible person, nor any other material to show that all the kapus in Vizag, Vizianagaram and Srikakulam districts are "turupukapus" only, on which assumption the figure of 3. 1% (population of 6,05,930) is based. Anantharaman Commission could not give any figure of their population. It is therefore not possible for us to deduct either 0. 8% on account of "munurukapus" or 3. 1% on account of "turupukapus". Even if we assume that a majority of "kapus" shown in Vizagapatnam district (as per 1921 census) which then covered the areas now covered by Srikakulam, Vizianagaram and Visakhapatnam districts are to be treated as "turupukapus", even then their total population would not be about two lakhs out of 2,76,053 (total population of Kapus in the then Vizag district as per 1921 census), and not 6,05,930 as is stated in the Table furnished by the learned Advocate General. The net difference may not even be % on this account.

(56) NOW coming to the submission that "perika Balijas" and "krishna Balijas" are included among balijas and therefore their population percentage should be deducted from the percentage of population of Balijas, this argument is countered by the petitioners relying upon Thurstons "castes and Tribes of South. India", Vol. I at pages 134 to 145. According to Thurston, it is submitted, only Gajula Balijas are included in the Balijas, and not the other groups mentioned in the note submitted by the learned Advocate-General.

(57) "setti Balija" is only a synonym for "ediga". The 1921 census shows "setti Balijas" are shown under idigas". The description is Idiga, Arya Hihida, Setti Balija". Balijas are separately shown. Thus no deduction can be made on the ground that "setti Balijas" are included in balijas in 1921 census. This is a misleading contention. The deduction on account of "krishna-Balijas" and "perika Balijas", even if any, may not be significant. The population of "krishna Balijas" in 1968 as per Anantharaman Commission is 53,237. The population of "perika Balijas" is not separately shown. So far as the argument based upon "vannekula Kshtriyas", "agnikula Kshtriyas", "puragiri Kshtriyas" and "thogataveera Kshtriyas" is concerned, the argument seems to be wholly misleading. The Census Books show that "agnikula Kshtriyas" "vanekula Kshtriyas" and "pallis" are separately enumerated, and are not included among "kshtriyas" who are separately enumerated. If so, there is no question of any deduction from the percentage of Kshtriyas.

(58) AS pointed out by the counsel for the O. C. candidates, the attempt to include all castes containing the word "kapu" or the word "reddy" in the name of their caste, among Kapus and Reddys, or on the same reasoning among Kshtriyas, is misleading and is an afterthought on the part of the Government. On the above reasoning, "nayi Brahmins" (Barbers) and "vishwa Brahmins" (Goldsmiths), etc. , ought to be included among Brahmins.

(59) FOR the above reason this criticism of the learned Advocate-General has no significant bearing on the estimates given in the Table above. The variation, if any, would be quite insignificant. (iii) Petitioners (O. C. Candidates) criticism against the estimates based on 1971 and 1978 census figures : the petitioners say that apart from the above major communities shown in the Table furnished by the learned Advocate-General, there are several other communities (forward communities) like Lingayats, Marathas, marwadis, Burgam Kalingas, etc. , who too ought to be taken into account. Their population is stated to be as follows, as per 1921 census :-It does not appear that the population figures given are too significant as to make a significant difference to the estimates mentioned in the Table given above. This circumstance, however, has to be considered alongside the circumstances mentioned by the respondents and dealt with herein before.

(60) BEFORE proceeding further we may notice two circumstances, which have some relevance to the issue under consideration. They are :

(61) (A) Statement of Smt. Pratibha Bharati, Minister for Social Welfare, "placed on the Table of the House with reference to Cl. (A) of S. N. Q. No. 4316-N, given notice of Sarvasri N. Raghava Reddy, M. Ramakrishna Rao, M. Yarriah Reddy and Smt. M. Swarajyam, M. L. As". A copy of the statement is placed before us. (This statement is stated to have been laid before the House sometime in 1983-84). In this statement, the Honble Minister has criticised the Mandal Commission Report as inaccurate and defective. She pointed out that the criterion adopted by the Commission and the identification of O. B. Cs. made by it is not acceptable to the State Government. It is also stated that the sample survey undertaken by the Mandal Commission does not appear to be representative of the actual characteristics prevailing in the State. With respect to the eleven indicators adopted by the Mandal Commission, the Honble Minister said, indicators 3, 4, 9 and 10 are not acceptable to the State Government. With respect to the list of O. B. Cs. prepared by the Mandal Commission, the Honble Minister stated, it is not acceptable to the State Govt. In this connection, she refers to the receipt of the Report of M. R. Commission and that the same is under consideration of the Government. What is relevant to note is that the Government which had then found so many defects in the Mandal Commission Reports criterion and identification of O. B. Cs. coolly accepted M. R. Commission Report regarding estimate of B. C. population now, which estimate is squarely based upon the methodology of and figures relating to forward Hindu communities of Mandal Commission Report.

(62) (B) While the Government accepted the M. R. Commission estimate of 52%, it failed to recognize that this estimate was arrived at taking the population of S. Cs. /s. Ts. as 17%, whereas according to G. O. Ms. No. 167 raising the extent of reservation for S. Cs. /s. Ts. their total population is 20. 80%. No attention was paid to the notes of Director, Social Welfare and Principal Secretary, Social Welfare, who pointed out the defective and unreliable nature of the estimate by M. R. Commission. 62a. Mr. S. Ramchandra Rao placed before us a copy of "report on Sample Socio-Economic Census 1981/82" published by Bureau of Economics and Statistics, Government of Andhra Pradesh in June 1986. On the basis of this Report the learned Counsel contended that the population of Backward Classes is 44. 85% of the total population. It is not possible to accept this contention. Firstly, the Report itself shows that the survey was confined only to rural areas and not to cities and towns. According to 1981 census, published by the Government of India, the population in rural areas in Andhra Pradesh is 411. 34 lakhs, whereas the population in Urban areas is 124. 57 lakhs which works out to 76. 75% and 23. 25% respectively. The survey only of rural areas, therefore, does not afford a correct basis. Secondly, as would be evident from para 2. 4 as also the "summary Results" (Chap. VI to page 48), it is clear that the survey was not population-wise, but household-wise. The first sentence in para 2. 4 reads as follows : "2. 4 : Distribution of households in each expenditure class by social groups :

(63) THE distribution of the total households by social groups reveals that the households falling in each of the social groups are more or less representing the general distribution of the total population in the State indicating the reliability of the sample taken for the survey. The sample households belonging to Scheduled Tribes were 7. 8 per cent while the Scheduled-Castes accounted for 18. 64 per cent. The households representing Backward Classes were 44. 85 per cent. While the other castes account for 28. 66 per cent. " Again in chapter 6 summary results the first paragraph reads as follows :-"i) Among the rural population, 44. 9 per cent were the Backward class families while 18. 6 per cent, 7. 8 per cent and 28. 7 per cent belong to Scheduled Caste, Scheduled Tribe and other caste families respectively. "

(64) IT is thus evident that the survey was not population-wise but household-wise, or family-wise, as it may be called, though the Report asserts that pattern of households proportion also reflects the population pattern. Another circumstance which militates against the correctness of this survey is that the proportion of households of S. Cs. and S. Ts. is worked out at 26. 4%, whereas according to 1981 census figures, their total population is only 20-89%. It is, therefore, not possible for us to treat the said report as the basis for holding that the population of Backward Classes is 44. 8% of the total population.

(65) FOR the above reasons, we hold that the determination of the population of Backward Classes at 52% by M. R. Commission was totally wide off the mark and must be held to be an unreasonable estimate bearing no relation to the reality. Since the raising of extent of reservation in clauses 13, 14 and 15 of G. O. Ms. No. 166, from 25% to 44% is based upon the said estimate of B. C. Population at 52%, it must be held to be arbitrary and unreasonable and, therefore, violative of Arts. 15 and. 16. Contention No. 4 of the petitioners is accordingly upheld.

(66) WHILE we are aware that it is not the function of the Court to determine the said figures we have neither the machinery nor the expertise to do so - we are inclined to say, on the basis of the material placed before us by all the parties including the Government, that the estimates of B. C. Population as mentioned in the table in para () appear to approximate to the true position. The figure ranges between 33. 5% (Anantharaman Commission) and 37. 61% (as per 1971 census figures). The mean figure and the figure arrived at as per 1981 census tally. Since this material was available with the Government while issuing the G. Os. the said figures could perhaps have been taken into consideration while fixing the quota of reservation for Backward Classes instead of the totally unrealistic figure of 52%. It is open to the Government to do this exercise even now and determine the extent of reservation in favour of backward classes taking into account the population as determined.

(67) THE next question is the charge mala fides viz. , contention No. 6. The petitioners case is that the Government which was not anxious to implement or act upon the Report since the beginning of 1983 (when the present Telugu Desam Government came into power) suddenly thought of it on the First of July and hurriedly resolved on 5th of July to accept the Report, without devoting the necessary attention and care a measure of this importance deserved. The sudden interest in the matter is attributable to the announcement made on 29-6-1986 (reported in the newspapers of the next day) that all the Associations of Backward Classes of the State will meet at Tirupati in the second week of July, 1986 under the leadership of Sri P. Shiv Shankar, Union Minister for External Affairs. The several associations of backward classes were to meet, irrespective of their political affiliations to press for implementation of M. R. Commission Report and other benefits to Backward Classes. The Telugu Desam Government, it is alleged, got panicky at this announcement. It apprehended that the Backward Class voters, which are its mainstay and the principal vote bank, may slip away from it and transfer their loyalties to Congress (I) to which Party Sri P. Shiv Shankar belongs. Only with a view to forestall such an eventuality, the Government hurriedly took the impugned action, and not out of any genuine concern for Backward Classes. It is thus alleged that the impugned action and the G. Os. are the results of extraneous considerations, and oblique motives but are not born of good faith. It is not possible to agree with this submission. It is true that the Government has been sleeping over the matter since the Report was submitted in September, 1982. Even the present Telugu Desam Government, headed by Sri N. T. Rama Rao, took no action upon this report. As the facts stated in Part one of this judegment disclose, discussions on this Report were scheduled from time to time, but the discussions never took place. It is equally evident from the statement of facts in Part One (drawn from the Government files) that suddenly from First July, 1986 onwards; the matter assumed extreme urgency. From that day onwards, a sudden flurry of activity is noticeable. The Council of Ministers was convened on 5-7-86 to consider the said report. It met on that day and agreed to accept those recommendations of the M. R. Commission, not involving additional financial burden, viz. , raising of quota of reservation to 44% and other features set out in G. O. Ms. Nos. 166 and 167. Copies of report and Memorandum of action were hurriedly got printed and were placed before the Legislature Assembly on 15-7-1986. On the same day, impugned G. Os. were also issued, though the debate in the Assembly was scheduled to 21-7-1986. Evidently, there is no explanation for this sudden concern and extreme urgency. It looks quite probable that the proposed Tirupati Meet was the cause. Evidently, the Government intended to take the wind out of the sails of the Opposition. Equally, probable, it was a political decision, with the eye upon elections. So what How does all this affect the legality of the action

(68) THE learned Advocate General of course brought to our notice certain newspaper clippings disputing this version of events. According to him, the move for such a conference originated from the Members of the Telugu Desam Party itself and that this idea was mooted as far back as 6/7th May, 1986, and not on 29-6-1986, as alleged by the petitioners. It is also submitted that the idea was not mooted by Sri P. Shiv Shankar but that the preliminary meeting at which it was decided to convene a bigger Meet at Tirupati took place under the leadership of and at the residence of Mr. Konda Laxman Bapuji. May be, there is substance in what the learned additional Advocate General says. At the same time, it is evident that involvement of Sri P. Shiv Shankar did lend a certain credibility and importance, while the idea may not have possessed till then. The meet thus came to assume the character of an Opposition conclave. It is quite likely that the Telugu Desam Government wanted to checkmate this move. But this is how a political democracy works. In a democracy where political parties form the Governments and Oppositions there is nothing unusual in each of them trying to win the people to its side and in taking measures to ingratiate themselves with voters. In such a situation, the motives or good faith are not really relevant. In a democracy, the Govt. may take a measure, under public pressure, under Oppositions pressure or otherwise, which it may not really believe in. But that is neither here not there. In law, the motives have no relevance on the question of legality. Indeed a responsible Government is supposed to be responsive to the demands of the Opposition and the people. Wherever they see justification in their demands, they are expected to concede them. In such a case it cannot be said that the action is vitiated by extraneous considerations or political motives. No one can say that since the Government has delayed a particular measure, or because the Opposition is about to start a campaign or agitation to compel it to take that measure, the Government shall not take that measure and allow the Opposition to mount the agitation. The charge of mala fides is in the context misconceived. We cannot, however, help observing that in the anxiety to preempt of Tirupati Conference of Backward Classes, the Government acted in seemingly undue haste to issue the impugned G. O. 166 without taking note of various objections to the M. R. Commission Report already on record and without devoting as full a consideration as the matter deserved.

(69) COUNSEL for the petitioners cited certain decisions saying that where a statutory authority acts out of considerations not germane or relevant under the statute, the action is bad. We do not see any analogy between those cases and the one before us. So far as the statutory authorities are concerned, it goes without saying that the action taken by them under a statute, should be for reasons germane to the statute and conceived to serve the purpose of the statute. But here is an action, which is not only a policy measure, but partly a political decision as well. The contention No. 6 is accordingly rejected.

(70) WE now come to the question whether the placing of the income limit at Rs. 12,000/- and excluding all the families with an income of Rs. 12,000/- or more from all the benefits available to Backward Classes is legal and valid. Clause 18 of G. O. Ms. No. 166 says that the benefits extended to Backward Classes should be restricted only to those families whose income does not exceed Rs. 12,000/- per annum. The effect of this is that all those belonging to families having a net income of Rs. 12,000/- or more per annum go out of the Backward Classes. They can no longer be treated as members of the Backward Classes. According to the Government this is done with a view to ensure that the benefits of reservation and other special provisions made by the Government reach the needy and the deserving and should not be lapped up by the creamy layer among these Classes, thus preventing the benefits from reaching the really deserving. Our attention is drawn to several decisions of the Supreme Court commending the desirability of placing such a ceiling limit. In Part IV of this judgement we have discussed the said decisions and held that placing of a reasonable ceiling on income and excluding all those above that ceiling is not only permissible in law, but a step in the right direction. We have observed therein that such a step has the additional merit of desanctifying caste as almost the sole unit for identifying Backward Classes. The only question we have to consider now is whether the placing of income ceiling at Rs. 12,000/- per annum is unreasonable for any of the reasons suggested by the Counsel and representatives of Backward Class Associations. Their contentions are the following : This ceiling has the effect of depriving even the members of the families of Class IV Employees under the State Government/central Government/public Undertakings. Even the family of an agricultural labourer, where both husband, wife and even children work, are excluded from the backward classes. For whom else are the benefits meant The said imposition is motivated and designed to deprive the Backward Classes of any benefits, including those which were previously available. The Telugu Desam Government having increased the level of reservation to 44% in view of the threat aforesaid (impending Tirupati Meet) has prescribed this ceiling with a view to effectively deprive all the Backward Classes from the benefits of reservation. Even without any income limit, sufficient number of candidates are not available from Backward Classes for filling up all the seats/posts reserved for them. If so, with such limit, practically no one will be available, all the seats/posts reserved for them will go a begging. This provision read with the provision contained in Cl. 17 (which treats each of the five groups within the backward classes as independent and provides for the unfilled seats reserved for them being carried forward for 3 years in the same group) has a very pernicious consequence. The real idea is to see that the posts reserved for backward classes are not really filled up by them, but that they join the general pool at the end of three years. Only one Counsel Sri. P. Sesharao appearinng as an intervener in Writ Petition No. 9457/86 (filed by certain members of the Backward Classes candidates) supported the income ceiling. The learned Advocate General, however, supported the provision. He placed before us certain notifications issued under Minimum Wages Act, fixing minimum wages for labourers employed in agriculture, forestry, construction and other operations. He has also filed a statement showing the initial pay drawn by Class IV employees, L. D. Cs. and U. D. Cs. He submitted that the income limit at Rs. 12,000/- was placed in view of the following circumstances, viz. , i) for giving scholarships to the backward classes, the eligibility limit is the family income of less than Rs. 12,000/- p. a. The same limit is also observed by the Government of India for giving scholarships to S. Cs. and S. Ts. ii) for admission into the Government hostels, again the same income limit is observed. For members of families having less than the said level of income no charge is made for admitting them into the hostels meant for S. Cs. and S. Ts. and B. Cs. run by the State Government. All the boys whether belonging to S. Cs. S. Ts. or B. Cs. with less than the said income limit are admitted free into these hostels. So far as the housing schemes or allotment of house sites are concerned the limit is, of course, Rs. 6,000/- per annum.

(71) WHILE we are able to appreciate the said income limit in the context of rural incomes, we are unable to understand the justification for excluding the family of even a Class IV employee, even where only one member of the family is employed. The statement of initial pay filed by the Advocate General shows that with the enforcement of new pay scales (already announced by the State Government), even a Class IV employee (Peon/attender) with one years service (having earned one increment) will be excluded. What we feel concerned is whether it is reasonable to say that a family of Class IV Employee does not need the benefit of reservation Can it be said that he has become so advanced socially and educationally as not to need the benefit of the said special provision any more, for his children whether in educational field or services In this context, it is not without relevance to notice that even in 1975, the Government of Kerala had prescribed the income limit at Rs. 10,000/ -. Eleven years have passed by since then. Inflation has risen. The cost of living index has risen. The consumer price index too has risen. Is not the limit now prescribed too Iow The income-tax exemption limit now is Rs. 18,000/ -. In our opinion, the income limit imposed appears to be unreasonably low. We do not, however propose to pursue this line of enquiry further, nor do we think it necessary to pronounce upon the various contentions urged by Sri B. S. A. Swamy and others, for the reason that, in our opinion, this provision (Clause 18 in G. O. Ms. No. 166) is integrally connected with the hike in the extent of reservation for backward classes contained in Cls. 13 to 15 of G. O. Ms. 166 and must fall along with them. At the same time, we must affirm that any limit so placed cannot be arbitrary and fanciful, but must be a fair and reasonable one in all the circumstances prevailing, keeping in mind the overall objective underlying Arts. 15, 16 and 46.

(72) NEXT we shall deal with the attack upon the validity of Cl. 17. This clause bars interchangeability, obtaining hitherto among the several groups in backward classes. It provides that the unfilled vacancies relating to any group shall be carried forward for a period of 3 years for the benefit of same group. We are of the opinion that such a provision is not valid. It is true that the inter se quota as between groups a to e from backward classes appears to have been fixed on the basis of their respective population. But in view of the decision in Balaji it is not permissible for the State Government to say that one or more of the groups among them is more backward and other less backward which is precisely the argument of the learned Advocate General in support of the said clause. It is true that the categorisation of backward classes into four groups was upheld in Balaram by the Supreme Court. But this decision in no manner departs from Balaji in so far as Balaji says that categorisation of Backward Classes into more backward and less backward is not permissible. May be that there is nothing wrong in principle in such a categorisation. if it approximates to and reflects the existing situation. see the observations of O. Chinnappa Reddy J. at page 1516 in Vasanth Kumars case (AIR 1985 SC 1495 [LQ/SC/1985/194] ) but we feel bound by Balaji. Accordingly, we hold that while categorisation into five groups may not be bad, treating these groups as separate watertight compartments and carrying forward the unfilled vacancies of each group separately (and then throwing them back into general pool. at the end of 3 years, in case of non-availability of candidates from that group) is not justified or valid. Such a course has the effect of creating five separate Backward Classes in the place of one. We are, therefore, of the opinion that while it may be permissible for the State Government to carry forward the unfilled vacancies in respect of each group for a period of 2 years for that group, they should be made available for other groups at the end of two years if candidates from the group are not available. Only if candidates from other groups also are not available should they be thrown back into general pool. Contentions 13 to 15 are accordingly upheld, though not strictly for the reasons urged. Mr. B. S. A. Swamy has also asked for quashing of Cl. 19 of G. O. Ms. No. 166 which says that there is no need to provide for any reservation in the matter of promotions in service. His contention is that the benefit of reservation should also be extended to promotions. We are, however, of the opinion that the said question cannot be gone into in these writ petitions. Quashing of Cl. 19 does not result in applicability of rule of reservation to promotions. It is not as if the rule of reservation applied to promotions hitherto and is now being withdrawn by virtue of Cl. 19. There was no such provision at any time. In the circumstances, only a Mandamus to the Government directing it to make such a provision would help the petitioners. Not only no such Mandamus is asked for, no relevant material, if any, warranting such a direction, is placed before us. We, therefore, decline to go into the validity of Cl. 19. It shall be open to the appropriate persons or organisations to file a fresh writ petition, if they are so advised, seeking a Mandamus for the said purpose.

(73) WE may now take up contentions 7 and 9 urged by the learned counsel appearing for O. C. candidates/associations. It is not possible to agree that just because G. O. Ms. No. 136 was issued in 1979 extending reservations contained in G. O. Ms. No. 1793 for a period of ten years up to 1991, it was not competent for the State Government to appoint the Muralidhara Rao Commission. The records placed before us by the learned Advocate learned do not disclose that while appointing this Commission the Government was not aware of G. O. MS. No. 136. On the contrary the (Government was fully conscious of the said G. O. It is true that according to the statement made by the Honourable Chief Minister in the Legislative Assembly in March 1986, a survey on the socio-economic conditions of Backward classes was conducted in the State district wise and the said survey was yet to be concluded. It is also true that according to the said statement, a sum of Rs. 13. 70 Lakhs was provided for conducting such survey in the remaining two districts and that there is no reference to this survey or to any material collected during the said survey in the impugned G. Os. or in the records relating thereto. These facts go to show the hasty and perfunctory manner in which the impugned G. Os. came to be issued, but they do not tell upon their validity. The direction that the reservations provided in the G. Os. shall be in force till 2000 A. D. and that a review shall take place only after the said year also appears to run counter to dicta of Supreme Court. It has repeatedly observed there should be a periodical review to ascertain the progress if any made by the listed backward classes as a result of the implementation of the special provisions with a view to find out whether any of them advanced sufficiently to warrant their exclusion from the list. But we do not think it necessary to pursue this line of argument further in view of our decision on the main clauses in G. O. Ms. No. 166. Part-Four General questions of Law.

(74) ART. 14 of the Constitution of India enjoins upon the State not to deny to any person equality before law or the equal protection of laws within the territory of India. Clauses (1) and (2) of Art. 15, as well as Cls. (1) and (2) of Art. 16 are facets of the same doctrine of equality, couched in affirmative language. The Constitution, as enacted by the Constituent Assembly did not contain Cl. (4) in Art. 15, though Cl. (4) of Art. 16 was there. Clause (4) of Art. 16 declares that nothing in the said Article shall prevent the State from making any provision for 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. The only form of protective or preferential treatment provided by this clause is the reservation of appointments or posts and no other.

(75) IN the then State of Madras, the seats in professional colleges were distributed among various communities roughly in proportion to their population vis-a-vis the total population. This was popularly known as Communal G. O. After coming into force of the Constitution, the validity of the said G. O. and admissions made based thereon were challenged before the High Court of Madras in Champakam Dorai Rajans case (AIR 1951 Mad 120 [LQ/MadHC/1950/209] ) (FB). The High Court struck down the said G. O. as violative of the guarantee enshrined in Art. 15 (1) and Art. 29 (2) of the Constitution. The matter was carried in appeal to the Supreme Court, which affirmed the decision of the High Court; State of Madras v. Sm. Champakam Dorairajan, AIR 1951 SC 226 [LQ/SC/1951/27] . Inter alia it was pointed out by the Supreme Court that while Art. 16 contained Cl. (4) empowering the State to make a special provision in favour of backward classes of citizens, no corresponding provision was found in Art. 15. The argument based on Art. 46 (Directive Principles of State Policy) was also rejected holding that the directive principles cannot override the fundamental right guaranteed to citizens under Art. 15 (1), or for that matter Art. 29 (2). Consequent upon this decision, Cl. (4) was put in Art. 15 by the First Amendment of the Constitution. Clause (4) of Art. 15 is much wider than CI. (4) of Art. 16. Under this clause the State is empowered to make "any special provision for the advancement" of backward classes of citizens. Moreover, this clause qualifies the backward classes of citizens by the words "socially and educationally", and also refers specifically to Scheduled Castes and Scheduled Tribes in whose favour a special provision can be made.

(76) UNTIL the decision in State of Kerala v. N. M. Thomas, AIR 1976 SC 490 [LQ/SC/1975/362] Clause (4) of Art. 15 as well as Cl. (4) in Art. 16 were understood as constituting exceptions to Cl. (1) of Art. 15 and cls. (1) and (2) of Art. 16, respectively. In the said case, however, a majority of Judges expressed the view that the power to make a special provision in favour of backward classes of citizens is implicit and inherent in Cl. (1) of Art. 16, itself, and by parity of same reasoning, in Art. 15 (1) and that Cl. (4) in each of these Articles was merely an emphatic way of stating the same principle. It was held that the principle of reasonable classification inherent in Art. 14 extends equally to Art. 15 (1) and Art. 16 (1) as well. For the purpose of those writ petitions, however, it is unnecessary to go into the said question though the appeal of Thomas reasoning is undeniable. Whether Cl. (4) in Art. 15 and Cl. (4 ) in Art. 16 constitute exceptions, or whether they are merely an emphatic way of expressing what is implicit in Cl. (1) of each of the said Articles, the position is the same, namely, the State has the power to make a special provision in favour of socially and educationally backward classes of citizens with a view to bring them on par with other advanced classes of citizens. Similarly, the State has the power to reserve appointments/posts in favour of backward class of citizens. The ultimate goal is to bring about an egalitarian society, doing away with the inequalities and inequities inherent in the socio-economic system prevailing in this country.

(77) ART. 340 of the Constitution empowers the President of India to appoint a commission "to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made". It is under this power that the Kalelkar Commission and the Mandal Commission were appointed. But, it does not follow from this Article that once the President appoints a Commission, the State is disabled from, or prohibited from appointing a Commission for one or more of the purposes mentioned in Art. 340. The appointment of a Commission is not obligatory before a special provision is made either under Art. 15 (4) or Art. 16 (4) of the Constitution. Moreover the present Commission has not been appointed under Art. 340, but under S. 3, Commissions of Inquiry Act, 1952. Even apart from the 1952 Act, the executive power of the State, in our opinion, extends to appointing a body or a Committee to investigate a particular factual situation, including the ascertainment/identification of socially and educationally backward classes, and to suggest measures for their amelioration. It is also not brought to our notice that either the recommendations of Kalelkar Commission or of Mandal Commission have so far been accepted by the President, or that any recommendations have been made by him to the States for implementation. For this reason, contention No. 5 urged by the Counsel for the petitioners is rejected.

(78) IT is true that the language of Cl. (4) of Art. 16 and Cl. (4) of Art. 15 is slightly different, under one it is the social and educational backwardness and under the other it is adequate representation in services under the State; but it would be evident from the several decisions of the Supreme Court that the tests relevant for the purpose of both the clauses are treated as the same; no distinction has been made so far. In Balajis case (AIR 1963 SC 649 [LQ/SC/1962/324] ) (supra), while observing that "provisions of Art. 15 (4) are similar to those of Art. 16 (4), it was observed : "therefore, what is true in regard to Art. 15 (4) is equally true in regard to Art. 16 (4). " to the same effect are the observations in Devadasans case, AIR 1964 SC 179 [LQ/SC/1963/204] and in Karamchari Sanghs case, AIR 1981 SC 298 [LQ/SC/1980/468] . As has been repeatedly pointed out social and educational backwardness, poverty and caste are inter linked and interdependent. True it is that in the ultimate analysis poverty is at the root cause; but, in view of the language of Art. 15 (4), emphasis has always been not upon poverty alone, but upon the social and educational backwardness. It is, therefore, not possible for us to accept the proposition that the criteria relevant under Art. 15 (4) are not relevant under Art. 16 (4), or vice versa. We are also of the opinion that a provision made with reference to, and under Arts. 15 (4) and 16 (4) need not again be tested on the touchstone of Art. 14. Indeed, this would be an unnecessary and superfluous exercise, because Arts. 15 (1) and 16 (1) are merely facets of the very rule of equality as is contained in Art. 14. Once these clause are also treated as facts of the main guarantee contained in Arts. 15 (1) and 16 (1) and (2), they need not be tested again on the touchstone of Art. 14. Even otherwise, on the principle of reasonable classification, the special provision made for the weaker Sections would be justified as one designed to remove social and educational backwardness, or to provide adequate representation to Backward Classes, as the case may be and thus lawful under Art. 14. With respect to the contention that any provision made under Art. 15 (4) and Art. 16 (4) should also pass the test of reasonableness contained in Arts. 19 and 21, we are again of the opinion that it is an unnecessary exercise. The sole purpose of this exercise is to emphasise that any provision so made should be reasonable, and we agree that it ought to be so. Reasonableness and absence of arbitrariness, which pervade Arts. 14, 15 and 16 equally pervade clause (4) as well. For this reason, contention No. 10 urged by the Counsel for the petitioners is rejected. We reiterate that any provision made under Cl. (4) of Art. 15 or Cl. (4) of Art. 16 "must be within reasonable limits", and that "the interests of weaker Sections of society which are a first charge on the States and Centre have to be adjusted with the interests of the community as a whole";

(79) CLAUSE (4) of Art. 15 and Cl. (4) of Art. 16, speak of Backward Classes of citizens, and not backward castes. From the Constituent Assembly debates, however, it appears that the expression "classes" was not understood by the founding-fathers in its Marxist connotation but in a different manner, peculiar to Indian conditions. (Indeed, the very composition of the Constituent Assembly and the situation then prevailing excluded any such Marxist connotation. May be that such a classification would have been mare straightforward and may not have given scope far the spate of litigation which these words have given rise to as prophesied by Mr. T. T. Krishnamachary in the Constituent Assembly, Cl. (4) has become "the paradise for lawyers"). The majority of Indians as much as 85% are Hindus. The bane of Hinduism has been the division on the basis of caste, involving as it does the feelings of superiority and inferiority. The most pernicious and shameful aspect of Hindu religious practices, as they have evolved over the centuries, has been the practice of untouchability. The communities which now constitute the bulk of Scheduled Castes were kept outside the fourtired caste system and were treated as panchamas. Even within, the fourtired system some were supposed to be twice born, and some others shudras which is synonymous with lowly. The founding-fathers recognised this inherent social inequality based on caste system attaching to an individual from his very birth unconcerned with his deeds, and set about to rectify the same. More Malanter says in his book "competing Equalities" at page 189,"the entire debate on Art. 16 (4) in the Constituent Assembly revolved around the question of which communities were intended to be included. The additions of Art. 15 (4) by an amendment was for the specific purpose of permitting preference for caste groups. "at another place the Author points out :"although one speaker (Mr. T. T. Krishnamachari) pointed out that classes were not necessarily castes and that literacy might be the test of backwardness, it was generally envisioned that the backward classes would be communities. When asked what is a backward community, Dr. Ambedkar defending the Draft explained; "we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Govt. " We must, however, say that the relevance of debates in the Constituent Assembly is not very high. We have to go more by the language employed in the Articles, consistent with the underlying spirit of the Constitution. One has probably to bear in mind, in such a context, the concept of "original intent" vis-a-vis "contemporary content. " In any event, we have the decision of the Supreme Court to guide us in this matter. "

(80) THE first use of the expression "backward communities" occurs in the order of the Mysore Government made in 1918 appointing a Committee under the Chairmanship of Sir Leslie C. Miller, Chief Justice of the Chief Court of Mysore, to enquire into the question of encouraging members of the "backward communities" in public services. This order used the expressions "backward classes" and "backward communities" interchangeably. The Committee submitted its report in 1921 stating that all communities in the State other than Brahmins should be understood as backward communities; it made certain recommendations in favour of such backward communities. The Government of Bombay, Finance Department Resolution No. 2610 dated 5-2-1925 defined "backward Classes" as all except Brahmins, Prabhus, Marwaris, Parsis, Banyas and Christians. Certain reservations in Government service were provided for these classes. The Hartog Committee (1928) defined "backward classes" as meaning "castes or classes which are educationally backward. They include depressed classes, aboriginals, hill tribes, and remaining tribes. " It, however, appears that this expression was understood in different provinces differently. The more common and popular expression, "depressed classes" which came into vogue, mainly denoted those untouchables. An expression "intermediate castes" was also coined to denote those castes which did not belong to the upper classes like Brahmins, Vaisvas and Kshtriyas or to the category of untouchables, nomadic or wandering tribes. These intermediate castes were sometimes treated as backward classes. The fact remains that even by 1946-47, the expression lacked precision or a clear connotation. On December, 13, 1946, Jawaharlal Nehru moved the objective resolution in the Constituent-Assembly, resolving to provide adequate safeguards for "minorities, backward and tribal areas, and depressed and other backward classes. " This lack of precision has bedevilled all efforts to define the said expression eversince and continues to bedevil the Government and the Courts even today. On one hand is the emotional appeal of the contention that caste should never be the basis for determining the backwardness of whatever kind, since division or categorisation on such a basis will ultimately prove dangerous to the very fabric of the nation and may well result in splintering the nation alone caste lines. On the other hand, is the unwillingness to recognize poverty alone as the basis for such categorisation on the ground that is not the basis recognised by the Constitution. i. e. , by Cl. (4) of Art. 15 and Cl. (4) of Art. 16.

(81) ART. 15 (1) declares "the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them". Similarly, Cl. (2) of Art. 16 declares "no citizen shall", on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. The discrimination or any differentiation on the basis of caste is thus expressly and emphatically prohibited. At the same time, Cl. (4) in each of these Articles enables the State to make a special provision for the advancement of socially and educationally backward classes and Scheduled Castes and Scheduled Tribes, and also to reserve appointments/posts in favour of backward classes of citizens. The expression "backward Classes. " or "socially and educationally backward classes" of citizens cannot, therefore, again mean "backward Casts". Even if it is held that Cl. (1) of Art. 15 or cls. (1) and (2) of Art. 16 permit reasonable classification. even then it is doubtful whether it can be done on the basis of caste alone, since that would be directly in the teeth of the prohibition contained in Arts. 15 (1) and 16 (2). At the same time, the factual situation, which cannot be lost sight of is that there are a large number of communities i. e. caste groups, which are, as a whole, backward, both socially and educationally. It is this situation which is found reflected in the several decisions over the last more than two decades. In Balajis case (AIR 1963 SC 649 [LQ/SC/1962/324] ) (supra) it was observed :"therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens though the caste of the group of citizens may be relevant, its importance should not he exaggerated. though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a back seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong but that only shows the relevance of both caste and poverty is determining the backwardness of citizens. The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of Citizens who follow those occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons. In a sense, the problem of social backwardness is the problem of Rural India and in that belief, classes of citizens occupying a socially backward position in rural area fall within the purview of Art. 15 (4). The problem of determining who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problem, and evolving proper criterion for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Art. 15 (4). "in this case the specification of backward classes made by the Mysore Government was struck down on the ground that it was made exclusively on the basis of caste.

(82) IN Chitralekha v. State of Mysore, AIR 1964 SC 1823 [LQ/SC/1964/20] , at p. 1833 (para 19) it was contended that specification of socially and educationally backward classes on the basis of economic conditions alone, without taking into consideration the caste, is bad. In this case, backward classes were enumerated on two bases, viz. (i) economic condition, and (ii) occupation. Any person belonging to a family with an income of Rs. 12000 per annum and engaged in certain specified occupation was treated as member of backward classes. Caste was not at all taken into consideration, and the contention precisely was that enumeration without taking into account the caste factor is impermissible. This contention was rejected holding that even though caste may be a relevant factor, it cannot be said that enumeration of backward classes without taking into account the caste factor is illegal or unjustified. It was held :"these provisions recognize the factual existence of backward classes in our country brought about by historical reasons and make a sincere attempt to promote the welfare of the weaker Sections thereof. They shall be so construed as to effectuate the said policy but not to give weight age to progressive Sections of our society under the false colour of caste to which they happen to belong. The important factor to be noticed in Art. 15 (4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression "classes" is used in Cl. (4) of Art. 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the Constitution to use the expression "backward Classes or Castes. " The juxtaposition of the expression "backward Classes and Scheduled Castes" in Art. 15 (4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belongs to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong. "subbarao J. , (as he then was) speaking for the majority, further added :"what we intend to emphasise is that under no circumstance a "class" can be equated to a caste, though the caste of an individual or a group of individuals may be considered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Art. 15 (4) of the Constitution, it does not vitiate the classification if it satisfied other tests. . . "

(83) THIS Court followed the above decisions in Sukhdev v. Govt. of Andhra Pradesh, (1966) 1 Andh WR 294 and Sagar v. State of Andhra Pradesh AIR 1968 Andh Pra 165.

(84) THEN came the decision of the Supreme Court in P. Rajendran v. State of Madras, AIR 1968 SC 1012 [LQ/SC/1968/10] . Seeking to rely upon the observations in Balajis case (supra), the Constitution Bench held :"now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15 (1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Art. 15 (4). . . . . . . It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens. . . "the Court then referred to the counter-affidavit filed by the State of Madras explaining that where the members of a given caste as a whole were socially and educationally backward, they were treated as backward classes, and that "the castes included in the list are only a compendious indication of the class of people in these castes and these classes of people had been put in the list for the purpose of Art. 15 (4) because they had been found to be socially and educationally backward. . . . . " The Court accepted this statement of the State of Madras as against the mere assertion of the petitioners that the list is based on caste alone. The Court also pointed out that no attempt was made by the petitioners to traverse the case put forward by the State.

(85) IN State of Andhra Pradesh v. P. Sagar AIR 1968 SC 1379 [LQ/SC/1968/90] the Court affirmed :"class means a homogeneous Section of the people grouped together because of certain likeness or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular Section forms a class, caste cannot be excluded altogether. But in the determination of a class, a test solely based upon the caste or community cannot also be accepted. . . . "

(86) IN A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303 [LQ/SC/1970/380] Hegde, J. following the decision in Rajendrans case, AIR 1968 SC 1012 [LQ/SC/1968/10] observed thus :"there is no gainsaying the fact that there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts of life. . . . But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as "take off stage", then competition is necessary for their future progress,"

(87) IN State of Andhra Pradesh v. Balaram, AIR 1972 SC 1375 [LQ/SC/1972/69] a Bench of two Judges which considered the Anantharaman Commission and G. O. Ms. No. 1793 dated 23-9-1970 based thereon reaffirmed the position that a caste is also a class of citizens, and that a caste as such may be socially and educationally backward. It further observed that the mere fact that a few individuals in that group are socially and educationally above the general average cannot be a ground for disqualifying the entire group. It was also reiterated that "if an entire caste is as a fact found to be socially and educationally backward, their inclusion in the list of Backward Classes by their caste name is not violative of Art. 15 (4). . . "

(88) A perusal of G. O. Ms. No. 1793 dated 23-9-1970 which was upheld in the said decision, shows that all the groups mentioned in the Annexure are mentioned either by their caste name or occupation wise, or by the common group name by which they are known.

(89) AT this stage we may refer to an argument urged by Mr. B. S. A. Swamy, the learned counsel for the petitioner in W. P. No. 10484 of 1986 that the enumeration of Backward Classes ought to be, and can be, only on the basis of caste, and that the same has been recognised in the above decisions beginning with Rajendrans case (AIR 1968 SC 1012 [LQ/SC/1968/10] ). It is not possible to agree. The decisions relied upon do not depart from the tests evolved in Balajis case AIR 1963 SC 649 [LQ/SC/1962/324] , or in Chitralekhas case, (AIR 1964 SC 1823 [LQ/SC/1964/20] ) and do not say that the enumeration of backward classes should be made caste-wise. All that they say is that, if a caste as a whole is socially and educationally backward, it can be treated as a backward class and can be included in the list of Backward Classes by caste name. But that is not because it is a caste, but because it is a backward class. Caste name is only referred to for convenient reference and easy identification. We are constrained to observe that the attempt of state should to evolve such criterion as to reduce and remove the distinctions based on caste. Any criterion which reduces or even ignores, if possible, the role of caste in such enumeration, as was done in Chitralekhas case, AIR 1964 SC 1823 [LQ/SC/1964/20] , would be most welcome and a highly desirable step in the larger interest of unit and integrity of the Nation.

(90) COMING back to the course of development of law at the hands of the Supreme Court, we may refer to the significant decisions of the Supreme Court in Janki Prasad v. State of Jammu and Kashmir, AIR 1973 SC 930 [LQ/SC/1973/7] and State of U. P. v. Pradip Tandon, AIR 1975 SC 563 [LQ/SC/1974/373] . The facts in Janki Prasads case are the following: The Jammu and Kashmir Scheduled Castes and Backward Classes Reservation Rules, 1970, inter alia. categorized "small cultivators" and "low paid pensioners" as backward classes, besides residents of the areas adjoining the cease fire line. Certain areas in the State were also specified as "bad pockets", and every person belonging to that area was to be regarded as belonging to a backward class. While dealing with the contention that cultivators of land with small holding cannot be treated as members of a backward class, the Court observed :"the reasons given by the Committee go to show that the overriding consideration (in designating them as a backward class) was economic. A class, as already observed, must be a homogeneous social Section of the people with common traits and identifiable by some common attributes. All that can be said about the cultivators is that they are persons who cultivate land or live on land, and the simple accident that they hold land below a certain ceiling is supposed to make them a class. In such a case the relevance of social and educational backwardness takes a subordinate place. . . . . The error in such a case lies in placing economic consideration above considerations which go to show whether a particular class is socially and educationally backward"on this ground the said categorisation, as also the categorisation of "low paid pensioners" was held to be bad.

(91) IN Pradip Tandons case, AIR 1975 SC 563 [LQ/SC/1974/373] a reservation was made in favour of candidates from "rural areas", "hill areas", and "uttrakhand". The court struck down the reservation in so far as it related to candidates from "rural areas", but sustained the reservation in favour of candidates from "hill areas" and "uttrakhand". The reasoning of the Court runs thus : 80% of the population in the State of Uttar Pradesh is from rural areas, and this population cannot be said to be a homogeneous class by itself; they differ in many ways; population cannot be a class by itself; rural element does not make it a class; having reservation in favour of rural areas is to have reservation for the majority population of the State; "poverty in rural areas cannot also be the basis of classification to support reservation for rural area. Poverty is found in all parts of India. . . . "; reservation is effect is based upon place of birth and this offends Art. 15 (1).

(92) IN K. S. Jayasree v. State of Kerala, AIR 1976 SC 2381 [LQ/SC/1976/278] a very perceptive decision, the Court observed :"social backwardness can contribute to educational backwardness and educational backwardness may perpetuate social backwardness. Both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weight of custom and tradition. "and again :"the basis of the reservation is not income but social and educational backwardness determined on the basis of relevant criterion. If any classification of backward classes of citizens is based solely on the caste of the citizen it will perpetuate the vice of caste system. Again, if the classification is based solely on poverty it will not be logical. "the Court proceeded to reaffirm the test in Balajis case (AIR 1963 SC 649 [LQ/SC/1962/324] ) (supra) for determining the socially and educationally backward classes.

(93) ANOTHER important point enunciated in this case is the desirability of placing an income limit while defining the backward classes: in other words, application of community-cum-means test. Indeed the desirability of such a measure has also been pointed out in Thomas AIR 1976 SC 490 [LQ/SC/1975/362] A. B. S. Karantchari Sangh (Railway) v. Union of India, AIR 1981 SC 298 [LQ/SC/1980/468] (para 99). In Vasanth Kumar AIR 1985 SC 1495 [LQ/SC/1985/194] almost all the Judges commended this principle. In Thomas, Krishna Iyer, J. had observed :"a word of sociological caution. In the light of experience, here and elsewhere, the danger of reservation, it seems to me, is three-fold. Its benefits, by and large, are snatched away by the top creamy layer of the backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim is over-played extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the weaker Section label as a means to score over their near equals formally categorized as the upper brackets. Lastly a lasting solution to the problem comes only from improvement of social environment, added educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme, and this solution is calculatedly hidden from view by the higher backward groups with a vested interest in the plums of backwardism. But social science research, not judicial impressionism, will alone toll the whole truth and a constant process of objective re-evaluation of progress registered by the a underdog categories is essential lest a once deserving reservation should be degraded into reverse discrimination. Innovations in administrative strategy to help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made"in Vasanth Kumar, (AIR 1985 SC 1495 [LQ/SC/1985/194] ), a Chandrachud C. J. observed, inter alia :"in so far as the other backward classes are concerned, two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education. . . and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions. . . "in the face of the above overwhelming authority, it is not possible to agree with the contention that once caste is identified as backward, it is not permissible to prescribe an income-limit, or that placing such a limit amounts to further classification. In our opinion, the State is entitled to presume that persons having income above a reasonably prescribed limit, though belonging to a caste designated as socially and educationally backward, cannot be treated as socially backward or that such economic well-being will also lead to educational advancement. The State would not be unjustified in presuming that economic advancement brings about social advancement, as also educational advancement. It needs no repetition that in ultimate analysis poverty is the root-cause of social and educational backwardness.

(94) WHILE dealing with the means-cum- community (means-cum-caste) test, we may advert to some of the contentions urged by the learned counsel opposing it. Their contention is Art. 15 (4) or Art. 16 (4) do not contemplate an economic criterion at all and hence evolving a criterion on the basis of economic considerations is alien to, and impermissible. We cannot agree. Once poverty is recognised as the root cause, it follows that absence of poverty and a reasonable level of economic well-being is proof of social advancement. True it is, wealth may not bring about a change in caste, as contended by the learned counsel; but then no amount of social and educational advancement can change the caste in the present day Hindu society. We are also unable to appreciate the argument repeatedly pressed upon us that howsoever wealth or high position a lower caste man, say, a barber, may come to occupy, he will still be called a barber by the higher caste people. Such epithets indicate the meanness of human spirit and lack of culture and civilization, but has no relevance to the question at issue. Even if all the members of the lower caste barbers become rich, highly educated, and come to occupy high positions thus fully achieving the objective of Art. 15 (4) and Art. 16 (4), even then the men among the higher castes may still call them barbers. So what Art. 15 (4) or Art. 16 (4) are not designed to achieve abolition of caste-system-much less to remove the meanness or other evils in the society. They are designed to provide opportunities in education, services and other fields to raise the educational social and economic levels of those lagging behind, and once this is achieved, these Articles must be deemed to have served their purpose. If so, excluding those who have already attained such economic well-being (inter-linked as it is with social and educational advancement) from the special benefits provided under these clauses cannot be called unreasonable or discriminatory or arbitrary much less contrary to the intention of the founding-fathers. It can be reasonably presumed that these people have ceased to be socially if not educationally backward and hence do not require the preferential treatment contemplated by Arts. 15 (4) and 16 (4). Moreover, in the face of the repeated pronouncements of the Supreme Court referred to above, these arguments cannot be countenanced. Not only it does not amount to creating a class within a class, it is a proper delineation of classes. Reliance is also placed upon the observations in certain judgements of the Supreme Court that merely because some members of a caste or a group are socially and educationally advanced, it is no ground for depriving the entire caste or group of the benefits of Arts. 15 (4) and 16 (4). There can be no quarrel with this principle. One has to look at the caste or group as a whole. There may be a few exceptions, but regard must be had to the totality of the picture. But this principle has no relevance or bearing upon the permissibility or desirability of excluding such persons from the benefits extended to that caste or group. The object evidently should be to reach the needy and the really deserving.

(95) THE last decision to be noted in this series is in K. C. Vasant Kumar v. State of Karnataka AIR 1985 SC 1495 [LQ/SC/1985/194] , wherein the principles of the earlier decisions have been affirmed and elaborated, and several new facets brought out. These opinions are extremely enlightening and must form compulsory reading for anyone dealing with this topic, notwithstanding the fact that in certain respects they do not speak with one voice.

(96) THE other aspect which has been pressed upon us and upon which we wish to express our opinion is that before a class or a group can be designated as backward for the purpose of Art. 15 (4) or Art. 16 (4), its social and educational backwardness must be comparable to Scheduled Castes and Scheduled Tribes. It is true there are observations to this effect in Balaji and in subsequent decisions, to wit, in Sagars case AIR 1968 SC 1379 [LQ/SC/1968/90] and Janki Prasad v. State of Jammu and Kashmir AIR 1973 SC 930 [LQ/SC/1973/7] and even in Vasanth Kumar, AIR 1985 SC 1495 [LQ/SC/1985/194] . It would be sufficient if we refer to the opinion of Chandrachud, C. J. in this behalf. The third position enunciated by the learned Chief Justice reads thus :"in so far as the other Backward Classes are concerned, two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education one, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their. backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions. "this argument of comparability in backwardness is evidently meant more as a guideline, and cannot be understood as a meaning that unless the same kind of social and educational backwardness, as is obtaining among the Scheduled Castes and Scheduled Tribes, is obtaining, a class or group cannot be designated as a backward class. It is well known that the Social backwardness which the Scheduled Castes suffer is of a peculiar type. They were treated as untouchables and had been subjected to innumerable and inhuman indignities. Similarly the social backwardness of the Scheduled Tribes, who remained outside the mainstream of national life, confined largely to hill areas, is peculiar to them. There can indeed be no parallel between the social backwardness of Scheduled Castes and Scheduled Tribes on one hand, and the social backwardness of others in the country, on the other. While there is no doubt that the said test is relevant, it cannot be carried to its illogical extent, since that is not the intention underlying the several pronouncements of the Supreme Court and the High Courts. As we have said earlier, it is meant only as one of the many guidelines.

(97) FROM the above discussion the following principles emerge : (i) Caste cannot be the only basis for ascertaining or identifying the Backward Classes for purposes of Arts. 15 (4) and 16 (4); such course would be directly hit by Cl. (1) of art. 15 and Cls. (1) and (2) of Art. 16. As observed by Iyer, J. in Karamchari Sangh, (AIR 1981 SC 298 [LQ/SC/1980/468] ) "art. 16 (4) speaks of class not caste and the two are different, however politically convenient the confusion may be. " If the goal be a casteless society, delineation on the basis of castes as such is bound to prove counter-productive; (ii) At the same time, there are several castes or caste groups in India which as a whole are socially and educationally backward. In such case, the caste as such can be treated as a backward class, not because it is a caste but because it is only another name or a convenient designation for denoting a backward class; (iii) the backwardness which is relevant for purposes of Art. 15 (4) can also be treated as relevant under Art. 16 (4), though the adequacy of representation in State service is the main factor to be kept in mind while making a provision under Art. 16 (4). (iv) The backwardness that is relevant under the said clauses is both social and educational backwardness of a group of persons. Poverty alone cannot be made the basis, though poverty and social and educational backwardness are inter-linked and are mutually contributory. At the same time, placing an income limit at a reasonable level i. e. community-cum-means test, and excluding persons/families above that income limit is not only permissible but a highly desirable step. Such a step would also serve to reduce the division of society on the caste lines. (v) for designating a group of persons as backward, it is not strictly necessary that it should be comparable in backwardness to scheduled castes and Scheduled Tribes. The test of comparability is only a guideline and is not meant to be adhered to the exclusion of all other tests; (vi) the ultimate objective of designating certain groups of backward classes is to give effect to the principle of equality of opportunity and status enshrined in the preamble to, and in Arts. 14 to 16 of the Constitution. Since several groups in this country, for various historical and other reasons, are unequally situated, speaking socially, educationally and their representation-wise in State services and had no opportunity of proving their latent merit, they are sought to be provided an opportunity by making special provisions including reservations in their favour to enable them to catch up and compete with other advanced Sections of the society. As and when a group becomes fairly advanced, comparable with the other advanced Sections of the society, it has to be removed from the category of backward classes, which is not only in the interests of general public but also in the interest of that particular group. Competition alone sharpens the intellect, ability and enterprises. (vii) any special provision made, or a reservation made under Cl. (4) of Arts. 15 and 16 must be a reasonable one. It must strike a reasonable balance between the guarantee of equality to all enshrined in Cl. (1) of Art. 15 and Cls. (1) and (2) of Art. 16 and the special provision which a State is enabled to make under these clauses. At the same time, we must say that wherever there is backwardness, it is the duty of the State to make such special provision with a view to give effect to the principle of real equality which is indeed the most important and basic objective underlying our Constitution. As is often said, "the length of the leap to be provided depends upon the gap to be bridged. " It goes without saying that the removal of social and educational backwardness also serves to remove economic inequalities.

(98) FOR the above reasons, we reject the contention (Number eleven) of Mr. B. S. A. Swamy that the enumeration of backward classes shall have to be done on the basis of caste alone, as also contentions twelve and thirteen urged by him, other counsel and certain parties appearing in person.

(99) NOW, we may take up the question whether it is permissible for the State to reserve seats/appointments in excess of 50% which is one of the main contentions canvassed before us.

(100) THE first decision to be referred to in this behalf is again the decision of the Supreme Court in Balaji (AIR 1963 SC 649 [LQ/SC/1962/324] ). It was observed therein :" A special provision contemplated by Art. 15 (A) like reservation of posts and appointments contemplated by Art. 16 (4) must be within reasonable limits. The interests of weaker Sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15 (4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its orders on July 10, 1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be in the larger interests of the State. What happened between July 10, 1961 and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker Sections of society specified in Art. 15 (4) it has to approach its task objectively and in a rational manner. Undoubtedly it has to take reasonable and even generous steps to help the advancement of weaker elements, the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant consideration. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15 (4)"

(101) IN Devdasan v. Union of India, AIR 1964 SC 179 [LQ/SC/1963/204] the above decision was understood as placing a ceiling of 50%, even where the carry forward rule is applied and followed. The majority, speaking through Mudholkar, J. observed :"the startling effect of the carry forward rule as modified in 1955 would be apparent if in the illustrations which we have taken there were in the third year 50 total vacancies instead of 100. Out of these 50 vacancies 9 would be reserved for the Scheduled Castes and Tribes. Adding to that, the 36 carried forward from the two previous years, we would have a total of 45 reserved vacancies out of 50, that is, a percentage of 90. In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to about 64. 4% of reservation. Such being the result of the operation of the carry forward rule we must, on the basis of the decision in Balajis case (AIR 1963 SC 649 [LQ/SC/1962/324] hold that the rule is bad. Indeed, in General Manager, Southern Rly. v. Rangachari, 1962-2 SCR 586 [LQ/SC/1978/377] which is a case in which reservation of vacancies to be filled by promotion was upheld by this Court, Gajendragadkar, J. who delivered the majority judgement, observed : "it is also true that the reservation which can be made under Art. 16 (4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16 (4) the problem of adequate representation of the backward classes of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration. . . . . . . . . . " "it is clear from both these decisions that the problem of giving adequate representation to members of backward classes enjoined by Art. 16 (4) of the Constitution is not to be tackled by framing a general rule without bearing in mind its repercussions from year to year. What precise method should be adopted for this purpose is a matter for the Government to consider. It is enough for us to say that while any method can be evolved by the Government it must strike "a reasonable balance between the claims of the backward classes and claims of other employees" as painted out in Balajis case AIR 1963 SC 649 [LQ/SC/1962/324] . "

(102) IN this decision a further aspect was emphasised, viz. that this ceiling must be applied treating each year as a unit. The following passage from para 15 brings out the said aspect :-"the guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. "

(103) THOUGH the above two decisions emphatically lay down that the ceiling of 50% cannot be exceeded even where the carry forward rule is applied, it is argued for the respondents that the decisions in State of Kerala v. N. M. Thomas, AIR 1976 SC 490 [LQ/SC/1975/362] and A. B. S. Karamchari Sangh v. Union of India, AIR 1981 SC 298 [LQ/SC/1980/468] have the effect of nullifying or at any rate modifying the above principle. It is argued that by virtue of these decisions the said rule must be treated as only a rule of guidance. It is, therefore, necessary to closely examine the said decisions to find out their precise ratio, and the principle flowing therefrom.

(104) IN Thomas the validity of R. 13-AA, Kerala State and Subordinate Services Rules, 1958 was challenged as being outside the purview of Art. 16 (4) of the Constitution. The said Rule empowered the Government to exempt, for a specified period, any member of members belonging to Schedule Castes or Scheduled Tribes, and already in service, from passing the tests referred to in R. 13, or R. 13-A of the said Rules. Rules 13 and 13-A prescribed certain departmental tests which one had to pass before he could be promoted to the higher category. The Government of Kerala passed orders under R. 13-AA providing that the members of Scheduled Caste and Scheduled Tribes shall be exempted from passing such tests for a period of two years. Certain extended period was granted to them, as a result whereof the members of Scheduled Castes and Scheduled Tribes were promoted without their passing the said tests. These promotions, as also the validity of R. 13 AA and the Government Orders made thereunder, were challenged in the High Court of Kerala. The challenge was upheld by the High Court holding that the said Rule and the orders made thereunder are outside the purview of Art. 16 (4). It was observed that Art. 16 (4) provides for only one form of special provision to be made in favour of backward classes, viz. , reservation of appointments/posts, and no other. The impugned order, it was held, cannot be justified under Art. 16 (4) and is, therefore, incompetent and illegal. The matter was carried in appeal by the State of Kerala to Supreme Court. A Seven Judge Bench heard the appeal and allowed it by a majority comprising Ray, C. J. Mathew, Beg, Krishna Iyer, and Fazal Ali, JJ. The minority opinions affirming the decision of Kerala High Court were rendered by Khanna, J. and A. C. Gupta, J. All the seven Judges wrote separate opinions. In view of the subsequent controversy as to what was actually decided in this case, it is necessary to closely examine the opinion of each of the learned Judges comprising the majority. This examination is being done only with a view to find out whether a majority of Judges expressed themselves against the principle enunciated and affirmed in Balaji and Devadasan. But before we do that it is necessary to notice the facts of the case, which have a very crucial relevance in understanding the ratio of the case. The matter pertained to promotion from Lower Division Clerks to Upper Division Clerks. The promotions were to be made, as per Rules, on the basis of seniority-merit. The members of S. C. and S. T. were seniors but could not be promoted over the years, only because they did not pass the tests prescribed by Rr. 13 and 13-A. Their Juniors (i. e. , open-competition L. D. Cs.) were promoted in those years, because they had passed tests. Once the requirement of passing the tests was removed (by virtue of the orders passed under R. 13-AA) the SC/st L. D. Cs. who were admittedly senior most in the lower Division Cadre, and had been stagnating were promoted at once, in the year 1972, in which year 51 vacancies arose. 34 out of 51 came to be occupied by them. In such a situation, there is no room or occasion for applying the carry forward rule. 34 SC/st L. D. Cs. were promoted on account of their own seniority-cum-merit and not because of any carry forward rule or the quota rule. Even if there was no quota of reservation prescribed for them the result would have been the same. The reservation quota is not the maximum, but the minimum; there was nothing preventing SC/st L. D. Cs. from getting promotions more than their quota on the basis of their seniority-cum-merit.

(105) RAY, C. J. in the course of his judgement referred inter alia to the decision in Devadasan, (AIR 1964 SC 179 [LQ/SC/1963/204] ) in para 26 of his judgement. After referring to the decision, the learned Chief Justice observed :"on the basis of carry forward principle it was found that such reserved seats might destroy equality the result would be that 54 reserved seats would be occupied out of 100 vacancies. This would destroy equality. On that ground carry forward principle was not sustained in Devadasans case. The same view was taken in the case of M. R. Balaji v. State of Mysore, AIR 1963 SC 649 [LQ/SC/1962/324] . It was said that not more than 50% should be reserved for backward classes. This ensures equality. Reservation is not a constitutional compulsion but is discretionary according to the ruling of this Court in C. A. Rajendrans case A1r 1968 SC 507 [LQ/SC/1967/291] . "at a later stage, however, when it was argued that, as a result of R. 13-AA and the orders of exemption made thereunder, out of 51 posts, 34 posts were given to members of Scheduled Castes and Scheduled Tribes (evidently this argument was urged with reference to Devadasans case) the learned Chief Justice negatived the same in the following words :"the promotions made in the services as a whole are nowhere near 50% of the total number of posts. The Scheduled Castes and Scheduled Tribes constitute 10 per cent of the States population. Their share in the gazetted services of the State is said to be 2 per cent, namely, 184 out of 8,780. Their share in the non-gazetted appointments is only 7 per cent, namely 11,437 out of 162784. It is therefore correct that R. 13-AA and the orders are meant to implement not only the direction under Art. 335 but also the directive principle under Art. 46"in this paragraph the learned Chief Justice does not refer to Devadasan. As explained by us earlier, there was no occasion for the said rule to be attracted in this case, nor for the rule of carry forward. In this manner, while it may be argued that the learned Chief Justice departed from Devadasan in so far as it treated each year of recruitment as a unit for application of the guarantee in Art. 16 (1) it is difficult for us to say that the rule of 50%, ceiling was departed from, or dissented. The learned Chief Justice was of the opinion that Cl. (4) of Art. 16 is not an exception to Cl. (1) but than it "indicates one of the methods of achieving equality embodied in Art. 16 (1)"; that Art. 16 (1) permits reasonable classification, as does Art. 14, and that the impugned rule is thus justified under Art. 16 (1).

(106) WE must also say that the concept of looking to the total strength of cadre cannot mean, nor can it empower the Government to say that until the prescribed quota in the entire cadre is made up, the recruitment or promotion of OC candidates will altogether be stepped. Since fresh appointments, generally speaking, are few in number in any cadre, it will take several years for the quota to be made up. For all such number of years the recruitment of OCs. cannot be completely barred, since that would offend the guarantee in Art. 16 (1).

(107) MATHEW, J. does not refer to either Balaji (AIR 1963 SC 649 [LQ/SC/1962/324] ) or Devadasan (AIR 1964 SC 179 [LQ/SC/1963/204] ) at all in his opinion. The main emphasis of the learned Judge is upon the fact that the very principle of equality contained in Art. 16 (1) is sufficient to justify the impugned Rule and the orders made thereunder. The learned Judge was of the opinion that Cl. (4) of Art. 16 is not an exception to Cls. (1) and (2) thereof, but that is only an emphatic way of stating what is implicit in Cl. (1). The learned Judge propounded the theory of proportional equality, following certain American decision. It is equally relevant to notice that while the learned Judge refers to numerical equality in para 95 (on the basis of Justice Harlans opinion in Griffin v. Illinois, 1955 351 US 12; and Dougias v. California, (1963) 372 US 353), he has not held that the reservation to be made whether under Cl. (4) or under Cl. (1) can exceed 50%.

(108) BEG, J. justified the impugned Rule under Cl. (4) of Art. 16 itself. The learned Judge did not agree with the other learned Judges in the majority that the said Rule should be justified with reference to Cl. (1) of Art. 16. He expressed himself in the following words :-"i would, for all the reasons given here, prefer to find the justification, if this is possible, in the express provisions of Art. 16 (4) because this is where such a justification should really lie. "indeed, the learned Judge was of the opinion that the impugned Rule and the order made thereunder is "a kind of reservation" and must be related to, and justified under Cl. (4) alone. In para 126 the learned Judge refers to the principle enunciated in Balaji and Devadasan that more than 50% cannot be reserved, and then distinguishes the case before him as not falling under the said principle. It, therefore, cannot be said that Beg, J. has departed from the principle of the said decisions.

(109) BEFORE we refer to the opinion of Krishna Iyer, J. it would be appropriate to refer to the opinion of Fazl Ali, J. because Krishna Iyer, J. merely endorses the view taken by Fazl Ali, J. on this aspect. Fazl Ali. J. , also held that the impugned Rule has to be justified under Cl. (1) of Art. 16, and not under Cl. (4), and that Cl. (4) is not an exception but merely an emphatic way of stating the rule of equality implicit in Cl. (1). He then examined Cl. (4) and deduced four principles from it. Only the third principle mentioned by the learned Judge is relevant for our purpose. The third principle evolved by the learned Judge reads thus :" (iii) The reservation should not be too excessive so as to destroy the very concept of equality". The learned Judge explained the said principle to mean that the reservation should be within permissible limits, but that Art. 16 (4) does not fix any limit on the power of the Government to make reservation. While affirming that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Art. 16 (1), the learned Judge held :-"as to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50 per cent. As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of Backward classes of citizens which constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of Cl. (4) of Art. 16 The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make inadequate representation adequate". The learned Judge then proceeded to consider the validity of the carry forward rule, in as much as the said rule was also "touched by the High Court". The High Court had observed that as a result of the impugned rule and the order made thereunder, 34 out of 51 vacancies came to be filled by members of Scheduled Castes and Scheduled Tribes, thus exceeding the 50% limit. The learned Judge then observed "it is true that in T. Devadasans case, AIR 1964 SC 179 [LQ/SC/1963/204] the majority judgement of this Court did strike down a rule which permitted carry forward of the vacancies. With respect, however, I am not able to agree with this view because such a rule sometimes defeats the ends of Art. 16 itself. " The learned Judge then proceeded to explain the meaning of carry forward rule and how the guarantee of equality will be defeated if the carry forward rule is not upheld. It is thus clear that Fazl Ali, J. clearly expressed his dissent from the principle of 50% ceiling on reservation. Of course, as explained above, this question did not really arise for consideration; it was referred to and commented upon by the learned Judge evidently because it was "touched by the High Court".

(110) KRISHNA Iyer, J. too held that Cl. (4) is not an exception to Cl. (1) of Art. 16, but that it is only an emphatic statement of the principle of equality enshrined in Cl. (1). The learned Judge held that like Art. 14, Cl. (1) of Art. 16 also permits classification, and that read in the context of Art. 335, the impugned order has to be justified as a reasonable classification designed to achieve the objective of the said Arts. 16 and 335. The learned Judge then said :"secondly, the Constitution recognizes the claims of only Harijans (Art. 335) and not of every backward class. The profile of Art. 46 is more or less the same. So we may readily hold that casteism cannot come back by the back-door and, except in exceptionally rare cases, no class other than Harijans can jump the gauntlet of equal opportunity guarantee. Their only hope is in Art. 16 (4). I agree with my learned brother Fazl Ali, J. in the view that the arithmetical limit of 50% in any one year set by some earlier rulings cannot perhaps be pressed too far. Overall representation in a department does not depend on recruitment in a particular year, but the total strength of a cadre. I agree with his construction of Art. 16 (4) and his view about the carry forward rule".

(111) THUS we see that only Fazl Ali, J. directly, and Krishna Iyer, J. by endorsing his views, dissented from the ceiling rule prescribed in Balaji (AIR 1963 SC 649 [LQ/SC/1962/324] ) and affirmed in Devadasan (AIR 1964 SC 179 [LQ/SC/1963/204] ). Beg, J. referred to the said principle without in any manner disagreeing with the same, and Ray, C. J. expressly affirmed the principle of the said decisions. We, therefore, find it difficult to say that a majority of Judges in Thomas departed from the rule of 50% ceiling.

(112) NOW coming to the case in A. B. S. Karamchari Sangh v. Union of India (AIR 1981 SC 298 [LQ/SC/1980/468] ) (supra), the facts are these : several orders were issued by the Railway Board extending concessions to members of Scheduled Castes and Scheduled Tribes in the matter of appointment and promotion, both in selection and non-selection posts. Annexure-I (referred to in the judgement) provided for carry forward rule for a period of three years. The rule provided that in the case sufficient number of candidates are not available from the communities for whom reservations are made in a particular area, the unfilled vacancies should be treated as unreserved, and filled with the best available candidates, and that the number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year, in the normal course. This was to be repeated for a period of three years, where after the unfilled vacancies remaining, if any, shall be added to the general pool. The validity of this rule was attacked by the OC candidates as violative of the principle of Devadasan. This argument was considered by Krishna Iyer, J. in paras 88 and 89. After referring to the principle of Devadasan (AIR 1964 SC 179 [LQ/SC/1963/204] ), the learned Judge observed :"unlimited reservation of appointments may be impermissible because it renders Art. 16 (1) nugatory. At the same time Art. 16 (4), calculated to promote social justice and expressive of the deep concern of the Constitution for the limping bracket of Indians, must be given full play. That is why the only restraint imposed by Mudholkar, J. is that an exercise of power under Art. 16 (4) "does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the Article, particularly Cls. (1) and (2) thereof. " AIR 1964 SC 179 [LQ/SC/1963/204] . By the three-year carry forward rule one is unable to see how, in practice, the total vacancies will be gobbled up by the Harijans/girijan groups "virtually obliterating" Art. 16 (1). The Court has made it very clear that the problem of giving adequate representation to backward classes under Art. 16 (4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims as pointed out in Balajis case AIR 1963 SC 649 [LQ/SC/1962/324] . It is true that in Balajis case, AIR 1963 SC 649 [LQ/SC/1962/324] and Devadasans case, AIR 1964 SC 179 [LQ/SC/1963/204] the carry forward rule for backward classes far exceeded 50% and was struck down. We must remember that the percentage reservation for backward classes including SC and ST was rather high in both the cases. In Devadasans case the Court went into the actuals, not into the hypotheticals. this is most important. The Court actually verified the degree of deprivation of the equal opportunity right and discovered : (Ibid at PP. 693-94)In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to about 64. 4% of reservation. Such being the result of the operation of the carry forward rule we must, on the basis of the decision in Balajis case hold that the rule is bad. What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right. On that footing, the petitioners have not demonstrated that in an particular year, virtually and in actual terms of promotion, there has been a substantial excess over 50% in favour of the SC and ST promotes. Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC and ST candidates be actually appointed to substantially more than 50% of the promotional posts. Some excess will not affect as mathematical precision is different in human affairs, but substantial excess will void the Section. Subject to this rider or condition that the carry forward rule shall not result, in any given year, in the selection or appointments of SC and ST candidates considerably in excess of 50% we uphold Annexure I"pathak, J. in his separate opinion expressly affirmed the ceiling rule in para 112, which reads :-"it seems to me that apart from the impact that an excessive reservation in a particular year is bound to have on the general community of citizens, there is the further far-reaching significance this assumes in the context of Art. 335. The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment because the large bulk of the vacancies, numbering anything over 50% is allotted to the reserved quota. In view of a maximum age-limit invariably prescribed, some of such meritorious candidates may be lost to the service altogether. Viewed in that light, a maximum of 50% for reserved quotas in their totality is a rule which appears fair and reasonable, just and equitable, and violation of which would contravene Art. 335". Chinnappa Reddy, J. in his separate but concurring opinion refers to the facts and the principles of the decisions in Balajis and Devadasans in paras 130 and 131 respectively without, however, expressing his dissent therefrom.

(113) IN Vasanth Kumar, (AIR 1985 SC 1495 [LQ/SC/1985/194] ), Chinnappa Reddy, J. and E. S. Venkataramaiah, J. appear to understand the Thomas decision (AIR 1976 SC 490 [LQ/SC/1975/362] ) rather differently. While Venkataramaiah, J. says "after carefully going through all the seven opinions in the above case (Thomass case) if is difficult to hold that the settled view of this Court that the reservation under Art. 15 (4), or Art. 16 (4) could not be more than 50% has been unsettled by a majority on the Bench which decided this case. . . . . . . ", Chinnappa Reddy, J. takes different view. According to the learned Judge, it is only a rule of caution, but not an invariable rule, as held by Fazal Ali, J. After referring to the several opinions in Thomas, the learned Judge says in para 74 :"four out of seven Judges, Ray, C. J. , Beg, Krishna Iyer and Fazl Ali, JJ. were also of the clear view that the so-called fifty per cent rule would apply to the total number of posts in the service and not to the number of posts filled up at different times on different occasions. The reservation in appointments made on any single occasion might well exceed "according to the learned Judge, therefore, one must look to the total number of posts in the service, and not to each year of recruitment (as held in Devadasan) while

(114) APPLYING the ceiling rule; if the proportion of S. Cs. /s. Ts. /b. Cs/in the total number of posts in the services is less than their quota, the reservation in their favour can exceed 50% in any given year. While this is a clear departure from Devadasan, we are unable to say-perplexed as we are by the dissonance in the pronouncements-that the ceiling rule in Balaji, as affirmed in Devadasan, stands overruled. Balaji is a unanimous decision of the Constitution Bench. Devadasans decision also was rendered by a Constitution Bench no doubt by a majority of 4 : 1. Thomas is a decision of seven Judges; but, as we have pointed out above, of the five majority Judges, only four, namely, Ray, C. J. Beg. Krishna Iyer and Fazl Ali, JJ. say that one must look to the total number of posts in the service. But, while saying so, they do not expressly depart from or overrule Devadasan which says that each year of recruitment must be treated as a unit for the purpose of applying the guarantee contained in Art. 16 (1). In fact, Ray, C. J. refers to Devadasan with approval. Beg, J. also refers to the said decision; without recording any dissent from it he distinguishes the facts of the case before him from the said case. Fazl Ali, J. no doubt clearly dissents from Devadasan, with whom Krishna Iyer, J. agrees, but four years later in Karamchari Sangh (AIR 1981 SC 298 [LQ/SC/1980/468] ), Krishna Iyer, J. expressly affirms Devadasans case (AIR 1964 SC 179 [LQ/SC/1963/204] ) rule and says that the 50% ceiling cannot be considerably exceeded even where the carry forward rule is applied. Pathak. J. who is one of the three Judges who decided this case, while affirming the ceiling rule, points out that though the principle of Devadasan has not been expressly overruled in Thomas, there are certain observations by majority of Judges which throw doubt on the validity of the principle enunciated in it. The learned Judge terms the position as not clear. Chinnappa Reddy, J. too refers to both Balaji and Devadasan in his separate opinion, without recording any dissent therefrom. It must, therefore, be said that Singhs case indeed affirms the principle of Devadasan, subject to the rider mentioned above. When we come to Vasanth Kumar, again while E. S. Venkataramaiah, J. says that Balaji and Devadasan are still good law on this aspect, Chinnappa Reddy, J. seeks to qualify it only as a rule of caution, a convenient guideline, which may be exceeded in case where the posts held by reserved categories vis-a-vis the total number of posts in the service are less than their quota. What is relevant is that even Chinnappa Reddy, J. does not say that the said rule is bad as a whole, but merely qualifies it in a certain situation indicated by him. At a previous stage we have indicated that this rule also cannot be carried too far. An illustration would serve, to emphasise what we are saying. Take the cadre, of say, Assistant Engineers, to which direct recruitment is the only method of appointment. The total strength of the cadre is, say 1000. Normally the number of vacancies that arise in each year are not many, because the number of vacancies depends upon the number of retirements and death barring, of course, the increase in the cadre strength. But, in the present day circumstances, the increase in the cadre strength is neither frequent nor substantial. Now, out of this 1000 let us say that only 100 belong to backward classes. whereas their strength ought to be 250, even applying the quota of 25% in their favour. Can it be said that until the remaining 150 are appointed no OC candidate should be selected If this principle is affirmed, it will so happen that for quite a number of years not a single OC candidate will be recruited; many of them will become age-barred meanwhile; the guarantee in Art. 16 (1) would be a mere empty assurance to them. Now, suppose a similar deficiency exists in the case of scheduled castes and scheduled tribes too, even that deficiency has to be made up before the OC candidates are selected. All this only means that one must strike a reasonable balance between the guarantee enshrined in Cl. (1) of Art. 15 and Cls. (1) and (2) of Art. 16, and the special provision that can be made under Cl. (4) of each of these Articles.

(115) IT is then argued that the decisions in Balaji (AIR 1963 SC 649 [LQ/SC/1962/324] ) and Devadasan (AIR 1964 SC 179 [LQ/SC/1963/204] ) were rendered when it was assumed that Cl. (4) in each of these articles it was held that both Cl. (1) and Cl. (4) must be reasonably balanced. But, in Thomas (AIR 1976 SC 490 [LQ/SC/1975/362] ) it is contended, the said theory has been given up, and now Cl. (4) is held only as an emphatic way of stating the principle implicit in Cl. (1) itself and further that Cl. (1) admits of reasonable classification. We are of the opinion that, whether one reads Cl. (4) in each of these Articles as an exception to Cl. (1) thereof, or whether the preferential or compensatory treatment given to Backward classes is treated as a part of the guarantee contained Cl. (1) - what is called, an emphatic way of assuring the equality position - is the same, viz. , that both the guarantee and the special provision, call it by any name, should be reasonably balanced and the special provision should not be such as to eclipse or defeat the guarantee itself.

(116) THE learned Advocate-General sought to contend, on the basis of certain observations in the judgements of the Supreme Court to which we shall presently refer, that it is permissible for the State to provide for reservation in favour of Backward Classes in proportion to their ratio in the total population. It is argued that inasmuch as M. R. Commission has found the population of Backward Classes at 52% of the total population of the State it is permissible for the State to reserve 52% of the seats/posts in their favour. Indeed, the learned Advocate-General argued that if it is found necessary for doing justice to these classes, the reservation in their favour can even go beyond the level of their ratio to the total population. On this score, the learned Advocate-General argued, the Rule of 50% enunciated in Balaji (AIR 1963 SC 649 [LQ/SC/1962/324] ) and Devadasan, (AIR 1964 SC 179 [LQ/SC/1963/204] ) has no sanction and must be treated as no longer binding. We find it extremely difficult to agree with this proposition. Let us examine the observations in the judgements of the Supreme Court relied upon in this behalf. The learned Advocate-General referred in the first instance to para 98 in the opinion of Mathew, J. In Thomas, we have perused the said paragraph as also the preceding and subsequent paragraphs, but we find nothing supporting the said proposition. The learned Judge merely referred to proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims. Reliance is next placed upon para 226 (opinion of Fazal Ali, J. in Thomas). We have already extracted the said paragraph herein before. Even in this paragraph the learned Judge does not speak of proportionate representation but proper representation. Of course. the learned Judge says that where the population of backward classes constitutes 80% of the total population, reservation of 80% of seats for them under Art. 16 (4) cannot be said to be bad. Reference is also made to the opinion of Krishna Iyer, J. (in para 168), where the learned Judge seems to endorse the opinion of Fazl Ali, J. that "the arithmetical limit of 50% in any one year set by some earlier rulings cannot perhaps be pressed too far. " As pointed out by us earlier, the opinion of Fazl Ali, J. is clearly contrary to Balaji and Devadasan, and the principle now sought to be deduced from the said observations not only does not flow directly from them. It is not even warranted by the language. To repeat, Fazl Ali, J. speaks of proper representation and not proportionate representation. "

(117) RELIANCE is next placed upon the opinion of Krishna Iyer, J. in paras 81 and 87 of his opinion in Karamchari Sangh. In para 81, Krishna Iyer, J. observed "in Class I services percentage-wise these castes which constitute 22. 5% of Indias population had 0. 40% in Class II, 0. 40% in Class III, 1. 47% and in Class IV 3. 41 %. This was socio-economic democracy in reverse year and a callous picture of under-representation in Administration as if Harijans and Girijans were still untouchable and unapproachable, vis-a-vis services under the State. . . . . For, in truth and actual life. . . . . . . the representation of the SCs. and STs. remains substantially below the sanctioned level although fair representation, at least in proportion to their population is what is demographically just, ignoring for the moment the neutralisation of the iniquitous past. . . . . . . . . . ". In para 87 the learned Judge observed : "annexure-I is also unexceptionable since all that it does is to readjust the proportion of reservation in conformity with the latest census. Posts for which recruitment, realistically speaking, takes place on a regional basis are subjected to reservation taking into account the percentage of SC, ST population in the concerned State. This is also reasonable. . . . ".

(118) IT is true that the learned Judge did make these observations in the context of scheduled castes and scheduled tribes in whose case their proportion to the total population has always been taken as a basis for fixing the reservation in their favour; but, the said observations cannot be extended to backward classes, nor can they, in any event, be relied upon for the purpose of nullifying the rule of ceiling evolved in Balaji and Devadasan particularly when the said ceiling rule has been expressly affirmed by Krishna Iyer, J. in the very same opinion, as pointed out above.

(119) RELIANCE is also placed upon the opinion of Chinnappa Reddy, J. in para 136, in this decision; but we do not find anything in the said paragraph supporting the theory of proportionate representation in the case of Backward Classes. The learned Judge merely says "every lawful method is permissible to secure the due representation of the Scheduled Castes and Scheduled Tribes in public services. . . . . . . ". As a matter of fact, it is significant to notice that in the very next sentence the learned Judge affirms the ceiling rule in the following words :-"there is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though general reservation may not be far in excess of fifty per cent. There is no rigidity about fifty per cent rule which is only a convenient guideline laid down by Judges" (emphasis added).

(120) RELIANCE is next placed upon the observations occurring in the opinions of Chinnappa Reddy, A. P. Sen and E. S. Venkataramaiah, JJ. in Vasanth Kumar (AIR 1985 SC 1495 [LQ/SC/1985/194] ). At the end of para 49, Chinnappa Reddy, J. observed. "naturally, if the lost ground is to be gained, the extent of reservation may even have to be slightly higher than the percentage of population of the backward classes"the learned Judge observed further in para 85 :"in this context, I must point out that the adequacy or otherwise of representation of the backward classes in the services has to be determined with reference to the percentage of that class in the population and the total strength of the service as a whole. The representation does not have to exactly correspond to the percentage of that class in the population it just has to be adequate"

(121) RELIANCE is also placed upon the tenor of observations in para 151, in the opinion of E. S. Venkataramaiah, J. which are to the following effect :"i do not propose to pursue this point further in this case, because if reservation is made only in favour of those backward castes or classes which are comparable to the Scheduled Castes and Scheduled Tribes, it may not exceed 50% (including 18% reserved for the Scheduled Castes and Scheduled Tribes and 15% reserved for special group) in view of the total population of such backward classes in the State of Karnataka"the above observations cannot be read or understood as laying down that in the case of backward classes the reservation of quota for them should be proportionate to their population vis-a-vis the total population in the State, nor can the said reservations be read as nullifying the principle of Balaji, as affirmed in Devadasan. At the same time, it must be said that the said factor is certainly relevant in determining the extent of reservation.

(122) BEFORE we summarise the points flowing from the above discussion, we think it necessary to clarify a particular aspect which was brought to our notice by the learned Advocate-General. In the State we have not only the rule of reservation but also a roster prescribed by the very rule of reservation. (We are told, a roster is also prepared and followed in Central Government services). The roster which was in force till the impugned G. Os. came into force, as also the roster prescribed in the impugned G. Os. reserved certain places for Scheduled Castes, Scheduled Tribes and Backward Classes, commensurate with their respective quotas of reservation. If in any given year the requisite number of SC/st/bc candidates are not available to fill up all the vacancies reserved for them, the learned Advocate-General states, these vacancies are not filled up by OC candidates but are carried forward to the next year, and thereafter for two more years. This situation is unlike the one dealt with in Devadasan (AIR 1964 SC 179 [LQ/SC/1963/204] ). As a matter of fact, this is not an instance of carry forward rule, as is generally understood. In Devadasan the unfilled vacancies out of the quota reserved for Scheduled Castes and Scheduled Tribes were filled up by OC candidates and in the next year, such number of unfilled seats were added to that years reserved quota, and this being repeated year after year. The result was that in the third year the number of vacancies so reserved for SCs. /sts happened to be more than 50%. This was found to be bad. But, where the unfilled vacancies out of reserved quotas are not filled up by OC candidates, the situation arising in Devadasan would not arise. The vacancies would be carried forward unfilled and would be available for the next year along with the next years reserved quota for that reserved category. This means that each year the quota meant for OC candidates will be intact, and the carried forward vacancies will be over and above the normal vacancies arising in each succeeding year. Such carried forward vacancies will be available only for the reserved categories. The rule of reservation would no doubt apply to the normal vacancies arising in each year separately. In such a situation, there is no occasion for the principle of Devadasan to apply, or the rule of 50% being contravened.

(123) THE above discussion yields the following broad propositions; (a) the rule enunciated in Balaji, (AIR 1963 SC 649 [LQ/SC/1962/324] ) and affirmed in Devadasan (AIR 1964 SC 179 [LQ/SC/1963/204] ) is that reservation of Seats/posts cannot exceed 50%. May be, it is a ceiling, may be it is only a rule of caution; it has got to be adhered to. May be also that in certain exigencies there may even be a slight excess, but generally speaking the rule has to be observed (b) where, however, the rule of carry forward is applied, in the sense that the unfilled reserved posts are filled up by OC candidates in a given year, and the corresponding number of posts are carried forward to the next year, the rule of 50% ceiling may be exceeded but even here, the excess cannot go far beyond the said ceiling, say, 66. 2/3% of the vacancies arising in the next year. If, however, the unfilled reserved vacancies are not filled up by OC candidates but the vacancies are carried forward then there is no room for applying the Devadasan rule, since these vacancies continue to be reserved only for the particular categories, and never join or added to the normal vacancies arising in the next year. In other words, these carried forward vacancies will be in addition to the normal vacancies arising each year, to which vacancies the rule of reservation will be applied in the usual course.

(124) IN the light of the above principles we must hold that the raising of the quota of reservation for Backward Classes to 44% which together with unquestioned reservation in favour of Scheduled Castes and Scheduled Tribes (15% plus 6% : 21%) comes to 65%, is far in excess of the permissible level of reservation and must, accordingly, be held to be bad. Accordingly contention No. 8 argued by the petitioners is upheld. Part V. Summary of Findings and Conclusions.

(125) WE may now summarize our findings and conclusions : (1) The Muralidhara Rao Commission did exceed its scope of enquiry in so far as it recommended the raising of the extent of reservation in favour of Backward Classes and in recommending the inclusion of 9 more communities. But this circumstance by itself does not affect the validity of the action taken by the Government on that basis, viz. , the issuance of the impugned G. Os. (2) The provision contained in Sub-Sec. (4) of S. 3, Commissions of Inquiry Act, 1952, is directory, but not mandatory; hence the non-compliance with the said provision does not make the M. R. Commission Report inadmissible or invalid. In any event, the Report can be used as relevant material by the Government for making a special provision under Art. 15 (4) and Art. 16 (4) of the Constitution. Appointment of a Commission, whether under Art. 340 of the Constitution or under the provisions of the Commissions of Inquiry Act, 1952, is not a condition precedent for making a special provision under Art. 15 (4) and/or Art. 16 (4). The executive power of the State extends to appointing such a Commission even otherwise than under the Commissions of Inquiry Act, 1952. (3) The appointment of Commission under art. 340 of the Constitution by the President of India is no bar for the appointment of a Commission by the State whether under the provisions of the Commissions of Inquiry Act, 1952, or otherwise. (4) The determination of the population of Backward classes vis-a-vis the total population of the State at 52% by the M. R. Commission is arbitrary and is vitiated by the several errors pointed out herein before. In as much as the raising of the extent of reservation by the Government in Cls. 13 to 15 of G. O. Ms. No. 166 dated 15-7-1986 is based exclusively upon the said recommendation, the said clauses in so far as they raise the extent of reservation in favour of Backward Classes from 25% to 44% are arbitrary and unreasonable, and must be held to be violative of Arts. 15 and 16 of the Constitution. (5) While it is not strictly within the province of this Court to determine the percentage of the population of Backward classes in this State, we are inclined to say, on the basis of the material placed before us by the State and the parties appearing before us, that the population figure of Backward Classes ranges between 33. 5% and 37. 61%. The mean figure is 35. 5% which is also the population of Backward Classes estimated by us with reference to the 1981 census. It is open to the Government to undertake the determination of the population of backward classes and fix the extent of reservation in their favour, bearing in mind the population figures and the basis indicated by us. (6) In view of the decisions of the Supreme Court referred to in our judgement, the total reservations under Art. 15 (4) or Art. 16 (4), as the case may be, cannot, as a general rule, exceed 50%, subject to marginal adjustment if the exigencies so require. Situation may, however, be different where the carry forward rule is applied. (7) Though it appears that the proposed Tirupati Conference of all the Backward Classes Associations was the main factor which led the Government to issue the impugned G. Os. it cannot be said on that account that the impugned action is vitiated by mala fides. All that can be said is that in the anxiety to pre-empt Tirupati Conference of Backward Classes, the Government acted in seemingly undue haste to issue the impugned G. O. Ms. No. 166 without taking note of various objections to the M. R. Commission Report already on record and without devoting as full a consideration as the matter deserved. (8) The application of means test and excluding persons/families above a prescribed limit is not only permissible in law, but is a desirable step. (9) However, the income limit prescribed in Cl. 18 of G. O. Ms. No. 166 is unreasonable. Moreover, Cl. 18 is integrally connected with Cls. 13 to 15 of the said G. O. and must fall along with the said clauses. (10) The provision contained in Cl. 17 of G. O. Ms. No. 166 is bad in so far as it prohibits totally the interchangeability among the several groups in Backward classes. The unfilled vacancies in respect of each group in the third year should enure for the benefit of other groups of backward classes and should be filled accordingly. (11) It is not necessary in these writ petitions to go into the validity of the provision made in Cl. 19 of G. O. Ms. No. 166. (12) The impugned G. Os. cannot be held to be bad on account of non-inclusion of Muslims as such or any of the groups among Muslims in Backward Classes. Similarly, it is not possible for this Court to give any direction to include women, nor is it possible to direct that the Scheduled Caste converts to Christianity should be removed from Backward Classes and placed among the Scheduled Castes. (13) Caste cannot be the only basis for ascertaining or identifying the Backward classes for purposes of Arts. 15 (4) and 16 (4) such a course would be directly hit by Cl. (1) of Art. 15 and Cls. (1) and (2) of Art. 16. If the goal be a casteless society, delineation on the basis of castes as such is bound to prove counter-productive. (14) There are several castes or caste groups in India which as a whole are socially and educationally backward. In such a case, the caste as such can be treated as a backward class, not because it is a caste, but because it is only another name or a convenient designation for denoting a backward class. (15) The backwardness which is relevant for purposes of Art. 15 (4) can also be treated as relevant under Art. 16 (4) though the adequacy of representation in State services is the main factor to be kept in mind while making a provision under Art. 16 (4). (16) The backwardness that is relevant under the said clauses is both social and educational backwardness of a group of persons. Poverty alone cannot be made the basis, though poverty and social and educational backwardness are inter linked and are mutually contributory. (17) For designating a group of persons as backward, it is not strictly necessary that it should be comparable in backwardness to Scheduled Castes and Schedule Tribes. The test of comparability is only a guideline and is not meant to be adhered to the exclusion of all other tests. (18) The ultimate objective of designating certain groups of backward classes is to give effect to the principle of equality of opportunity and status enshrined in the Preamble to, and in Arts. 14 to 16 of the Constitution. As and when a group becomes fairly advanced, comparable with the other advanced Sections of the society, it has to be removed from the category of Backward Classes, which is not only in the interests of general public but also in the interests of that particular group. Competition alone sharpens the intellect, ability and enterprise.

(126) IN result (i) the validity of G. O. Ms. No. 167 dated 15-7-1986 is upheld. (ii) Clauses 13, 14, 15 and 18 of G. O. Ms. No. 166 dated 15-7-1986 are struck down as violative of Arts. 15 and 16 of the Constitution; (iii) Clause 17 of G. O. Ms. No. 166 dated 15-7-1986 is upheld subject to the modification indicated in Item (10) above. In other respects G. O. Ms. No. 166 dated 15-7-1986 is affirmed. G. O. Ms. No. 168 dated 15-7-1986 being consequential to G. O. Ms. No. 166 dated 15-7-1986 shall be suitably modified and the roster contained therein revised.

(127) WE make it clear that by striking down Cls. 13, 14, 15 and 18 of G. O. Ms. No. 166 dated 15-7-1986 and modifying Cl. 17 of the said G. O. the validity or the continued efficacy of G. O. Ms. No. 1793 dated 23-9-1970 as extended by G. O. Ms. No. 136 dated 21-8-1979 shall in no way be affected. The provisions made therein shall be effective and shall continue to be in operation until further modification by the Government, or for the period specified in the G. Os. which ever is earlier.

(128) WE wish to place on record our appreciation of the assistance rendered by the counsel for the petitioners, interveners, and the learned Advocate-General appearing for the State. We also appreciate the assistance rendered by the parties appearing in person, namely, Sri Gouthu Latchanna, Sri Konda Lakshman Bapuji, Sri K. Keshava Rao, and Sri J. Rangaswamy.

(129) THE writ petitions are accordingly allowed in the terms and to the extent indicated herein before. There shall be no order as to costs. Mr. B. S. A. Swamy, Mr. B. Tarakam, Mr. Modh. Mukarramuddin and Mr. Konda Lakshman Bapuji make oral requests for grant of leave to appeal to Supreme Court under Arts. 132 and 133 of the Constitution. We do not, however, think that this case is a fit one for certifying under either of the Articles. We have merely followed and applied the several decisions of the Supreme Court in coming to the conclusions which we did. We are also of the opinion that this case does not involve any substantial questions of law of public importance which in our opinion need to be considered by the Supreme Court, in as much as we have merely applied the well established principles to the facts of the case before us. Oral requests for leave are, accordingly, rejected. Petition allowed.