Govindan Nair, J.
1. The question is whether the equality of opportunity in matters relating to employment or appointment to any office under the State guaranteed by Article 16(1) of the Constitution of India, has been denied to the petitioner, and whether the provision in Article 16(1) that there shall be no discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them in respect of any employment or office under the State, has been violated.
2. The State Government by letter No. 42818/C3/63-2 Home dated 8-il-1963 requested the Public Service Commission to advise 24 candidates from the Bar for appointment as Munsiffs in the scale of Rs. 300-700 in the Judicial Service of the Kerala State. A Notification No. RII(20) 10612/63 dated 28th November, 1963, (Ext. PI) was then issued by the Public Service Commission and published in the Kerala Gazette dated 3rd December, 1963, inviting applications from qualified candidates for directrecruitment from the Bar as Munsiffs in the' Judicial Service of the Kerala State on the above scale of pay. Qualifications were stated and the conditions that should be satisfied, enumerated in the notification. Paragraph 5 thereof notified that a written examination will be held to test the proficiency and that such of the candidates that 'stand a reasonable chance of being considered for selection' will be called for interview. In paragraph 12 of the notification it is mentioned that in advising candidates for appointment, 'the rule of rotation' prescribed in rules 14 to 17 of the General Rules under Part II of the Kerala State and Subordinate Services Rules 1958, as amended, will be observed.
3. The petitioner who was duly qualified and who satisfied the conditions prescribed, applied, sat for the examination and was called for the interview. Thereafter a list of the candidates arranged in the order of priority containing 195 names was published in the Gazette dated 22nd September, 1964. The rank of the petitioner was 24 and that of respondents 3 to 12 ranged between 26 and 72. The Public Service Commission selected and advised the names of 31 persons out of the 195, by applying the principles of rotation in rules 14 to 17 of the General Rules under Part II of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as the 'General Rules') for appointment as Munsiffs. This was accepted by the State Government and on Order G. O. MS. 387/64/Home dated 29th August, 1964 was passed and published in the Gazette dated 15th September, 1964. That order is in these terms:
'In exercise of the powers conferred by Article 234 of the Constitution of India, the Governor of Kerala is pleased to appoint the persons mentioned in the list appended to this order, directly recruited from the Bar, as Munsiffs on Rs. 300-700 in the Kerala Judicial Service.'
The list contained the names of 31 persons and included those of respondents 3 to 12. The petitioner was not one of those 31. According to the petitioner he has been discriminated against and respondents 3 to 12 who admittedly held ranks below him have been selected solely on the ground of religion or caste.
4. The answer of the State is that the petitioner did not get a chance of employment because the State felt that reservations should be made in favour of 'backward classes' in accordance with Article 16(1) of the Constitution reading:
'Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.'
And with this end in view, the State applied Rules 14 to 17 of the General Rules. They denied that there has been any discrimination. It is also denied that respondents 3 to 12 have been selected solely on the ground of religion or caste. According to the State, Rules 14 to 17 of the General Rules make provision for reservation only in favour of 'backward classes' and not in favour of any religious groups or members belonging to any caste.
5. Rules 14 to 17 of the General Rules read as follows:
'14. Reservation of appointments, where the special rules lay down that the principle of reservation of appointments shall apply to any service, class or category, appointments thereto shall be made on the following basis:
(a) The unit of appointment for the purpose of this rule shall be 20, of which two shall be reserved for Scheduled castes and Scheduled tribes and 8 shall be reserved for the other backward classes and the remaining 10 shall be filled on the basis of merit.
(b) The claims of members of schedule-ed castes and scheduled tribes and other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or other backward class is selected on the basis of merit, the number of posts reserved for scheduled castes, scheduled tribes or for other Backward Classes as the cases may be, shall not in any way be affected.
(c) Appointments under this rule shall be made in the order of rotation specified below in every cycle of 20 vacancies.
1. Open competition
2. Other Backward Classes
3. Open competition
4. Scheduled Castes and Scheduled Tribes
5. Open competition
6 .Other Backward Classes
7. Open competition
8. Other backward classes
9. Open competition
10. Other Backward Classes
11. Open competition
12. Scheduled Castes and Scheduled Tribes
13 Open competition
14. Other Backward Classes
15. Open competition
16 Other Backward Classes
17. Open competition
18. Other Backward Classes
19. Open competition
20. Other Backward Classes
(15) If there is no suitable candidate available for selection from the group of communities classified as other Backward Classes or from the group of communities classified as Scheduled Castes and Scheduled Tribes in the turn allotted for them in the cycle, the said group shall be passed over in making the selection. But the said group shall get at the earliest possible opportunity the benefit of the turn thus forfeited, if a duly qualified candidate is forthcoming from that group within a period of three years, a corresponding reduction being made in the number of vacancies due to be filled by open competition.
(16) There shall be sub-rotation among major groups of other backward classes but no sub-rotation among scheduled castes and Schedule Tribes.
(17) (1) The grouping of other backward classes for the above purpose shall be as indicated below:
1. Ezhavas and Thiyyas.
2. Muslims
3. Latin Catholics, S. I. U. C. and Anglo-Indians
4. Backward Christians (other Christians)
5. Other Backward Classes put together, i.e. Communities other than those mentioned in items 1 to 4 above included in the list of 'Other Backward Classes'.
(2) The 40 per cent reservation allowed to Other Backward Classes shall be distributed among the different groups of Backward Classes in the following proportion:
Out of every 40 appointments 14 shall be given to Ezhavas and Thiyyas, 10 to Muslims, 5 to Latin Catholics, S. I. U. C. and Anglo Indians, 1 to Backward Christians (other Christians) and 10 to other Backward Classes put together. The following shall be the rotation by which posts reserved for Other Backward Classes will be distributed among the various groups coming under the class:
1. Ezhavas and Thiyyas
2. Muslims
3. Latin Catholics, S. I. U. C. and Anglo-Indians
4. Other Backward Classes
5. Ezhavas and Thiyyas
(Order of rotation of items 6 to 40 was cited here).
Explanation:--The expression 'Other Backward Classes' referred to in items 4, 8, 12, 16, 20, 24, 28, 32, 36 and 40 shall mean Backward Classes referred to in item 5 under Sub-rule (1) of this rule.'
(i) Other backward classes have been defined in Rule 2(14) as enumerated in List III of the Schedule to Part I of the Kerala State and Subordinate Services Rules. 1958, thus:--
'Other Backward Classes in the Kerala State
1. Agasa
2. Ambalakkaran
3. Anglo Indian. ............ ............ ......
(Items 4 to 73 were cited here), (ii) These rules, it : is contended, provide for reservation of appointments or posts onthe ground of religion and/or caste and are violative of the rule of equal opportunity and so infringe Articles 16(1) and 16(2) of the Constitution. The prayer is that these rules should be struck down as unconstitutional.
6. Before I deal with the main question that has been raised before us, viz., that there has been violation of Article 16(1) and that the reservations made in favour of respondents 3 to 12 were solely on the basis of religion and/or caste and therefore in violation of Article 16(2), it is necessary to deal with certain other contentions that have been raised by the petitioner. These relate to what may be termed alleged procedural defects. First, it is urged, that Rule 14 of the General Rules already read, insists that special rules should be framed in relation to a service before the principle of rotation embodied in Rules 14 to 17 of the General Rules is applied for the purpose of making reservations of appointments or posts. The particular part of Rule 14 of the General Rules that is relied on reads thus:
'When the special rules lay down that the principle of reservation of appointments shall apply to any service, class or category, appointments thereto shall be made on the following basis.'
The argument is that after the General Rules came into force on 17-12-1958, no special rules had been framed pertaining to the Judicial Service laying down that the principle of reservation of appointments will apply to that service, and that in the absence of such special rules, reservation cannot be made. It is stressed that the State Government themselves realised the defect and tried to rectify it but according to counsel for the petitioner unsuccessfully. The reference is to a notification dated 28th October, 1965, (Published in Part I of the Kerala Gazette No. 43 dated 9th November 1965) issued by the order of the Governor reading as follows:
'In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and of all other powers hereunto enabling, the Governor of Kerala hereby makes the following amendment to the Kerala State and Subordinate Services Rules, 1958, namely:
Amendment.
In Part II of the said Rules;--
For the opening paragraph of Rule 14, the following paragraph shall be substituted, namely:-- 'Where the special rules lay down that the principle of reservation of appointments shall apply to any service, class or category; 'or where in the case of any service, class or category for which no special rules have been issued, the Government have by notification in the Gazette declared that the principle of reservation of appointments shall apply to such service, class or category,' appointments by direct recruitment to suchservice, class or category shall be made on the following basis'. '
The underlining (here in ' ') is mine and the underlined portion enables the Government to apply the principle in rules 14 to 17 of the General Rules by issuing a notification in the Gazette declaring that the principle of reservations of appointments shall apply with reference to any particular service, class or category.
The notification dated 28-10-1965 was followed by another notification dated 21st of May, 1966, also issued by the order of the Governor which is in these terms:
'In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and of all other powers hereunto enabling, the Governor of Kerala hereby declares that the amendment issued to Rule 14 of Part II of the Kerala State and Subordinate Services Rules. 1958 in G. O. (P) No. 663, Public (Rules) Department dated 28-10-1965 and published in Part I of the Kerala Gazette No. 43 dated 9-11-1965 shall be deemed to have come into force with effect from 17-12-1958.'
Reference must also be made to a notification dated 29th April 1966 (published in Part I of the Kerala Gazette No. 18 dated 3rd may, 1966) That notification ran,
'Under Rule 14 of Part II of the Kerala State and Subordinate Services Rules 1958, the Government of Kerala, in supersession of the notification No. 72655/65/PD dated 2-2-1966 published in Part I of Kerala Gazette No. 7 D/- 15-2-1966 hereby declare that the principle of reservation of appointments shall apply to appointments by direct recruitment in respect of the following services, namely:--
1. State Services:--
........ ........ ........
........ ........ ........
12. The Kerala Judicial Service
........ ........ ........'
And by a notification dated 21st of May, 1966 (published in Part I of the Kerala Gazette No. 21 dated 24-5-19661, it was declared that:
'Under Rule 14 of Part II of the Kerala State and Subordinate Services Rules, 1958, the Government of Kerala hereby declare that the Notification No. 14715/66/PD dated 29-4-1966 published in Part I of the Kerala Gazette No. 18 dated 3-5-1966 shall be deemed to have come into force with effect from 17-12-1958.'
7. It may be mentioned here that the first two of these notifications were issued by the Governor in purported exercise of the powers conferred by the provisos to Article 309 of the Constitution, and the latter two, by the State Government in exercise of the powers conferred on the State Government by the amended Rule 14 of the General Rules.
It is contended that the Governor has no power to pass rules retrospectively under theproviso to Article 309 of the Constitution. In any case, it is argued, the State Government acting under Rule 14 of the General Rules is really only a delegate and can in no event pass a notification with retrospective effect. It is also contended that assuming that the Governor and the State Government have the power to make rules and issue notifications with retrospective effect, such rules framed or notifications issued cannot do duty for an application of the mind of the State to the two vital matters about which the Sate Government must be satified; that a certain section or sections of the citizens of the State are 'backward classes' and that in the opinion of the State, they are not adequately represented in the services under the State. I shall deal with the arguments one by one.
8. A Full Bench of this Court in its judgment in O. P. No. 890 of 1964-(AIR 1968 Ker 17) accepted the reasoning in a Full Bench decision of the Allahabad High Court in Ram Autar Pandey v. State of Uttar Pradesh, AIR 1962 All 328 at p. 336. The relevant passage from the latter decision runs thus:
'The rule-making power conferred by Article 309 on the Governor or his nominee is, therefore,' not confined to prospective rule making and appears to be wide enough to include the making of rules with retrospective effect. In fact, if rules regulating conditions of service can be made only with prospective effect and cannot be made applicable to persons already in Government employment administration may some times become impossible.
A comparison of the language used in the main part of Article 309 with that used in the proviso will show that the power given to the Legislature for regulating the recruitment and conditions of service of persons is identical with the power given to the Governor or such person as he may direct in regulating the recruitment or conditions of service employed in services and posts in connection with the affairs of the State. The only difference is that the Legislature can make the regulation for all times and the Governor can do so only till the Act of the Legislature under the main part of the Article is passed.'
9. In the above view, the petitioner cannot challenge the notification issued by the order of the Governor dated 21st of May 1966 giving retrospective operation to the amendment issued to Rule 14 of the General Rules. I have therefore to take it that Rule 14 as amended was in force with effect from 17-12-1958. If that be so, the State Government can issue a notification under that rule to take effect from 17-12-1958 is also clear from the decision of the Supreme Court in A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, AIR 1956 SC 246. The second contention must also therefore fail.
10. The only other point is whether the State had applied its mind in relation to the two matters, as to whether the persons in whose favour reservaions have been made by Rules 14 to 17 of the General Rules are backward classes or not, and whether they are adequately represented in the services under the State. The averments in the counter affidavit that has been filed on behalf of the State show that the question has been considered by the State Government on material that was before the State Government, and rules 14 to 17 were promulgated. They have also specifically stated that the backward classes delineated in the rules were not adequately represented in the services of the State and they were so satisfied before it was decided to apply Rules 14 to 17. It is impossible therefore to say that there was no application of the mind to the points involved
11. I do not think that in these circumstances, there has been any lack of power or any defect in procedure which would invalidate the selection assuming of course that the classification made by rules 14 to 17 of the Genera] Rules is justified, and the reservations made pursuant to these rules are reasonable. The only question therefore is whether Rules 14 to 17 of the General Rules are violative of Article 16(1)) and/or Article 16(2) of the Constitution. I shall deal with this aspect next.
12. Rule 14(a) of the General Rules provides that out of every 20 places, 2 shall be reserved for scheduled castes and scheduled tribes and 8 shall be reserved for other backward classes It is not contended that the reservation in favour of scheduled castes and scheduled tribes is bad. What is urged is that the 8 places reserved in favour of backward classes cannot be sustained for 'backward classes' have been delineated with reference to religion and/or caste, and religion and/or caste only. Reference is made to Rule 17(1) of the General Rules and to List III of Part I of the Kerala State and Subordinate Services Rules, 1958, already read, and it is emphasised that all the five classes mentioned in Rule 17(1) have been classified exclusively on ground of religion and/or caste. Such a classification, it is contended, is prohibited by the Constitution
13. I shall advert to the relevant provisions of the Constitution, One of the aims stated in the preamble to the Constitution is to secure to all citizens, justice, social, economic and political; and equality of status and of opportunity. Article 46 in that part of the Constitution, dealing with Directive Principles, states that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the scheduled castes and the scheduled tribes and the State shall protect them from social injustice and all forms of exploitation. Sofar as equality of opportunity is concerned there is the trinity of Articles 14, 15 and 16.
Article 14 is the general one which enjoins equality before the law and the equal protection of the laws. Article 15 is a special manifestation of the general principle of equality provided by Article 14. And Article 16 is yet another specific provision relating to matters of employment, in the services under the State. It has ordained that equality of opportunity shall not be denied to any citizen of the State and further that no person shall be discriminated on grounds only of religion race, caste, sex, descent, place of birth, residence or any of them. Reference may also be made to Article 29(2) which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
There is provision made in Article 335 that the claims of the members of the scheduled castes and the scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. The President has the power under Article 340 of the Constitution 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 and to improve their condition Articles 341 and 342 of the Constitution enable the President by public notification, to specify the caste-- races or tribes or parts of or group within castes races or tribes which shall for the purposes of the Constitution be deemed to be scheduled castes in relation to a State and to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purpose? of the Constitution be deemed to be scheduled tribes in relation to a State
14. A reading of the above provisions of the Constitution makes it clear that the Constitution seeks to secure justice, social, economic and political to all citizens and provide equality of status and of opportunity to them all. Equality among the citizens generally: and specifically in relation to matters detailed in Arts 15 and 16 have been declared and guaranteed It is note-worthy that these Articles are in Part II wherein are embodied the Fundamental rights It has however beer realised that in a country like India wherp large sections of the people are backward socially, economically, educationally and politically these declarations and guarantees will be meaningless unless provision is also made for the uplift of such backward classes who an in no position whatever to compete with themore advanced classes. Thus to give meaning and content to the equality guaranteed by Articles 14, 13, 16 and 29, provision has been made in Articles 15(4) and 16(4) enabling preferential treatment in favour of the 'weaker sections'.
(i) Articles 15(4) and 340 use the expression 'socially and economically backward classes' whereas Article 16(4) merely states 'backward class of citizens' and Article 46, 'the weaker sections.' Article 16(4) has perhaps a wider import than Articles 15(4) & 340. But I have no doubt that the 'backward class' mentioned therein refers to the weaker sections of the citizens.
(ii) The specific provisions contained in Articles 15(1) and (2) and Article 16(2) would indicate that the Constitution frowned on distinctions being made on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. The exceptions contained in Article 15(4) and Article 16(4) must be understood in the light of this express prohibition contained in Articles 15(1) and (2) and Article 16(2). So understood, it appears to me that what is sought to be prevented by Article 16(2) cannot be perpetuated by action taken under Article 16(4). It also seems to be clear that the reservations made should not impair the efficiency of the administration. Article 335 speaks only about the 'scheduled castes' and 'scheduled tribes' but what is provided therein must with equal force apply to the other backward classes.
(iii) Article 340 is important, for it visualises the necessity of an investigation being made about the conditions of the socially and educationally backward classes J within the territory of India. This shows that the Constitution-makers felt that it would be difficult to assess the conditions of the backward classes and the difficulties under which they labour without the assistance of a survey being made and data collected about their conditions and their difficulties.
15. Without collecting up-to-date data regarding a group of persons who may be termed as 'backward classes' it will be difficult, if not impossible, to classify that group as 'backward classes of citizens'. Attempts made at classification have been often failed, A reference to two decisions of the Supreme Court separated by more than a decade would illustrate the point how difficult it is to make the classification which is so essential for the purpose of applying either Article 15(4) or Article 16(4) of the Constitution. In Venkataramana v. State of Madras, AIR 1951 SC 229 what has been termed 'the communal G. O.' of Madras was struck down. Years later in Balaji v. State of Mysore, AIR 1963 SC 649 the classification made for the purpose of Article 15(4) was held to be unconstitutional. And in Chitralekha v. State of Mysore, AIR 1964 SC 1823 JusticeSubba Rao, as he then was, dealing with Article 15(4) observed:
'The laying down of criteria for ascertainment of social and educational backwardness of a class is a complex problem depending upon many circumstances which may vary from State to State and even from place to place in a State.'
In AIR 1963 SC 649, Gajendragadkar, J., as he then was, dealing with Article 15(4) observed:
'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 criteria 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.'
16. What is to be decided therefore is whether this complex problem has been satisfactorily dealt with by the State Government and whether the classifications made by Rules 14 to 17 of the General Rules can be supported. In paragraph 5 of the counter affidavit that has been filed on behalf of the State it is asserted:
'The rules regarding reservation of posts in favour of Backward Classes of citizens have b,een formulated by the Government only after satisfying themselves that the categories of citizens enumerated therein really constitute backward classes who are not adequately represented in the services of the State both numerically as well as qualitatively. The provisions in Rules 14 to 17 of the Kerala State and Subordinate Services Rules for reservation of appointments of posts in favour of Backward Classes of citizens are neither excessive nor unreasonable.'
And in paragraph 9, it is stated:
'It is submitted that the rules regarding reservation of posts in favour of Backward Classes of citizens have been formulated by the Government only after satisfying themselves that the categories of citizens enumerated therein really constitute backward classes who are not adequately represented in the services of the State. The Government's case in regard to the rules made by it for reservation of appointments in favour of backward classes of citizens in this State has been explained in detail in paragraphs 20 to 31 of the counter affidavit filed on behalf of the State of Kerala before this Honourable Court in O. P. No. 2293 of 1963. A true copy of the said counter affidavit is annexed hereto and I crave leave to submit that the statements contained therein may be permitted to be treated and read as part of this counter affidavit.'
Certain portions of paragraphs 20 to 31 of the counter affidavit in O. P. No. 2293 of 1063 may be extracted.
'The classes of citizens in whose favour reservations have been made have been enjoying such reservations for a long time past, both in the Travancore-Cochin area and also in the Malabar area. Some of these classes of citizens have also been held to be backward classes in the Report of the Backward Classes Commission appointed by the Government of India, which presented its report in 1955. Many, if not all of these classes of citizens have been regarded as Backward Classes for the purpose of awarding scholarships by the Government in their Proceedings passed in 1959.'
It is further averred that 'prior to the formation of the Travancore-Cochin State, a system of communal rotation for appointments to Government Service was in vogue in the former Travancore and Cochin States'. The rules that were in force in Travancore continued to be applied after the formation of the Travancore-Cochin State, to that State. And the rules in Travancore were made after a very elaborate enquiry regarding the backwardness of the various categories of citizens and the adequacy of their representation in public service. It is stated that a former Judge of the High Court of Travancore, Dr. C. D. Nokes, was appointed to examine all available material and make a report on the principles to be observed, in laying down the Government's policy and that after consideration of the report of Dr. C. D. Nokes, Government issued an order on 25-6-1935.
In 1951 the Travancore-Cochin Government constituted another committee to go into the question of reservation of vacancies for backward classes and scheduled castes and scheduled tribes in terms of a reference: (a) who are the backward classes and what percentage of recruitment should be reserved for them and (b) who are the scheduled castes and tribes and what percentage Of recruitment reserved for backward communities should be specifically reserved for scheduled castes and scheduled tribes. After considering the report of the Committee, Government passed an order on 17-9-1952 declaring the categories of citizens who are to be regarded as backward classes for the purpose of Article 16(4) of the Constitution. Some amendments were later made to this order
Afterwards, the Kerala State came into being and it is said that the Government felt that there were certain differences in the rules of reservation obtaining in the erstwhile Travancore-Cochin and Malabar areas of the State. The Government after considering all the relevant facts then existing in the new set up issued orders in 1957 enumerating the categories of citizens who are to be considered as backward classes in the Kerala State for the purpose of Article 16(4) of the Constitution. Subsequently, in July 1957, certain modifications were made to the order dated 6-2-1957 and the orders so madehad been produced as Exts. Rule 1 and Rule 1 along with the counter affidavit filed in O. P. No. 2293 of 1963 which are again produced before us. Those orders, according to the State Government were passed only after they were duly satisfied that the categories of citizens mentioned therein as constituting backward classes were still really socially and educationally backward and that they are also not adequately represented in the service under the State. A comparison of the provisions of those orders with rules 14 to 17 of the General Rules will show that the principles of reservation embodied in those orders (Exts. R-1 & R-2) have been followed in Rules 14 to 17 of the General Rules.
The same classification had been adopted with certain but not material modifications for the admission of students to the Medical and Engineering Colleges run under the State and this classification was questioned in O. P. No. 1266 of 1963' (AIR 1964 Ker 39). This writ application was allowed and there was an appeal, W. A. No. 164 of 1963. A Division Bench of this Court allowed that appeal resulting in the dismissal of the O. P by the decision in State of Kerala v. Jacob Mathew, 1964 Ker LT 298= (AIR 1964 Ker 316). It is observed in the judgment:
'In view of the details furnished in the affidavit on behalf of the State dated the 10th August 1963 and the affidavit of the guardian of the third respondent dated the 14th August 1963, we have no. hesitation in holding that the Ezhavas, Muslims and the Latin Catholics inclusive of Anglo-Indian constitute 'socially and educationally backward classes of citizens' within the meaning of Article 15(4) of the Constitution.'
And in paragraph 11 of the Judgment, there is the following passage:
'The Ezhavas form about twenty-five per cent of the population of the State, and on the material before us it is not possible to say that the Government was wrong in its assumption, that they constitute a community which is 'socially and educationally backward'. A perusal of the relevant entries in the Cochin Tribes and Castes by Mr. L. K. Ananthakrishna Ayyar, the Cochin State Manual by Mr C. A. Achutha Menon, the report of the Backward Classes Commission appointed by the President of India, the report of the Evaluation Committee constituted by the Government of Kerala and the other publications to which our attention has been drawn indicates that the three communities in whose favour the reservation have been made should be considered as backward, both, 'socially and educationally'.'
There is no additional material available now and relied on, on the basis of which it is possible to say that the above conclusion is erroneous.
17. But I have to emphasise one aspect. It may be true to say that the Ezhavas, Muslims and the Latin Catholics belong to communities that are socially and educationally backward. However the possibility of there being a section large or small in these communities who are advanced and who are not backward, socially economically or educationally, cannot be ruled out, If there is such a section no reservation can be made in favour of the members of that section. Similarly the possibility of their being socially, educationally and economically backward sections in the other so-called advanced communities cannot be ignored and there is no reason why the benefit of reservation should not go to the members of those sections if those sections are not adequately represented in the services under the State
It is therefore necessary that investigation should be made regarding this aspect. What is the criterion to be adopted for conducting the investigation, it is not for me to state. I may however refer to certain passages from decided cases which may throw some light in this regard. In 1964 Ker LT 298= (AIR 1964 Ker 316) the Chief Justice of this Court observed:
'In these regions of human life and values the clear-cut distinctions of cause and effect merge into each other. Social backwardness contributes to educational backwardness and educational backwardness perpetuates social backwardness; and both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weight of custom and tradition.'
That poverty or poor economic condition plays a great part in the social and/or educational backwardness of a class of people is also stated in Balaji's case, AIR 1963 SC 649 by Gajendragadkar. J.. as he then was:
'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.'
........ ........ ........
'However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty '
18. Customs and usages and the castes to which a person belongs and his occupation are also relevant factors. It has however been ruled that caste cannot be the sole or the dominant criterion in Balaji's case, AIR 1963 SC 649 And the position has been clarified later in Chitralekha's case AIR 1964 SC 1823 After referring to Articles 15(4), 46. 341. 342 and 29(2), Justice Subba Rao, as he then was observed:
'These provisions form a group of Articles which have relevance in making of aspecial provision for the advancement of any socially and educationally Backward Classes of citizens in the matter of admissions to Colleges.
'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 weightage to progressive sections of our society under the false colour of caste to which they happen to belong.'
It seems to me that this passage clearly states that a classification should not be on the basis of caste. This is because, as the passage extracted shows, that the weightage should not be to progressive sections 'under the false colour of caste to which they happen to belong' The position is clarified in a later passage in the same judgment which deals with the interpretation that has been placed by the Supreme Court on the Articles of the Constitution, considered in the Chitralekha's case, AIR 1964 SC 1823.
'It helps the really Backward Classes instead of promoting the interests of individuals or groups who, they belong to a particular caste majority whereof is socially and educationally backward, really belongs to a class which is socially and educationally advanced. To illustrate, take a caste in a State which is numerically the largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, and effective minority may be socially and educationally far more advanced than another small sub-caste the total number of which is far less than the said minority. If we interpret the expression 'classes' as 'castes' the object of the Constitution will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those who really deserve This anomaly will not rise if, without equting caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward class or not. On the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution.'
19. There is also danger in a classification being made on the basis of caste or religion that the very distinctions that the Constitution seeks to abolish would be perpetuated What is envisaged by the Constitution is a secular State under which no distinction in to be made between man and man with reference to his religion or his caste. To honour and effectuate this laudable principle embodied in the Constitution, it is necessary that classifications should not be made on the basis of religion or caste.
20. The point is emphasised by the Supreme Court in Chitralekha's case, AIR'1964 SC 1823 and it is only in such cases where by and large the entire members of a community or caste belong to the backward class that a classification can be made by delineating people on the basis of the caste to which they belong. The passage I have in mind reads thus:
'On the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes and following the appropriate procedure laid down by the Constitution.'
21. It will, I conceive, be possible in such circumstances to delineate the members of such caste without including them in the scheduled castes and term them as backward class for the purpose of Article 16(4). Where such a classification is made because of the backwardness, by and large, of the members of a caste, the dominant criterion adopted for the classification will not be the caste to which a person belongs. I understand the assertions made in the counter affidavit of the State to mean that the members of the castes, religions and religious sects which are described in Rules 14 to 17 of the General Rules are by and large backward, socially and educationally. On the materials before me I am not prepared to hold that this assertion is not correct. And I am not prepared to conclude that a bona fide and honest attempt made by the State to further the causes of sections of the people which the State thought were 'weaker sections', should be upset.
22. It is however necessary to strike a serious note of warning because the data that has been relied on, like the report of the Committee constituted by the Travancore Government before 1935 and that of the Committee that considered the question in 1957 as well as the census report of 1941, which have been relied on, have all become quite obsolete and out of date now. It is essential that relevant data must be collected periodically. The provisions in Articles 15(4) and 16(4) of the Constitution are only transitory provisions and the action taken under that must be modulated from time to time. This can be done only if surveys are made at regular intervals and detailed information collected. While I am not for interfering with the selection made on the basis of principles that have more or less been in force for more than two, perhaps three, decades, I am not for continuing the system without the matter being looked into afresh.
23. I consider that the 'backward classes' have to be drawn from all weaker sections of citizens irrespective of the religion and/or caste to which those sections may belong. With this end in view, it is desirable that the State should undertake a detailed survey as early as possible. There will be no justification in continuing to apply the principles embodied In Rule 14 to 17 ofthe General Rules after 31-3-1968 without at fresh survey and a fresh appraisal of the questions involved.
24. Before closing I must also deal with certain other contentions raised by counsel on behalf of the petitioner. It is said that even the principle of rotation embodied in Rules 14 to 17 of the General Rules has not been applied and if it had been so applied the petitioner would have been selected and appointed. This is seriously controverted in paragraph 6 of the counter affidavit filed by the State and details have been furnished in paragraph 4 of the counter affidavit filed by the Public Service Commission, the second respondent. It is clear from those statements that the petitioner will not get selection according to rules. There is no substance in this contention.
25. Nor can it be said that the reservation of 50 per cent of the seats for the scheduled castes and scheduled tribes and the backward classes amount to an excessive reservation which would justify the striking down of the rules. It has been held in AIR1963 SC 649 that reservation should not be more than 50 per cent. As to how high within this limit the reservation should be, it is for the State Government to decide. The petitioner has not made out either that by virtue of Rule 15 of the General Rules which may be termed as embodying the carry forward rule discountenanced by the Supreme Court in T Devadasan v. Union of India, AIR1964 SC 176 the selection is bad. In fact it is not even stated in the affidavit in support of the petition that there has been any carry forward
26. It was then suggested that the backward classes for whom reservations have been made are adequately represented in the services under the State and therfore one of the conditions required by Article 16(4) of the Constitution has not been satisfied. This; too has been answered in paragraphs 6 and 8 of the counter affidavit filed on behalf of the State and I see no reason to reject those statements.
27. In the light of the above this writ application has to be dismissed and I do sobut in the circumstances of the case T make no order as to costs.
Mathew, J.
28. I agree with Govindan Nair J.
Gopalan Nambiyar, J.
29. I regret my inability to agree
30. The counter-affidavit of the 2nd respondent admits that recruitment to the post of Munsiffs, challenged in this writ petition was made under the provisions of the Travancore-Cochin Judicial Service (Recruitment of Munsiffs) Rules 1953, as amended in 1957 (hereinafter referred to as the Munsiffs' Recruitment Rules). There was no controversy at the hearing that the Rules as amended were applicable to the entire State.
31. Rule 3(3) of the said Rules provides:
'Direct recruitment shall be based primarily on efficiency and professional standing at the Bar and after giving due consideration to the claims of Backward Communities, Scheduled Castes, and Scheduled Tribes provided they possess the prescribed Qualifications.'
The notification inviting applications (Ex. P1) was dated 28-11-1963 and the selections were actually made in 1964. Both at the time of the notification inviting applications and at the time of the selection, there was In force, the Kerala State and Subordinate Service Rules, 1958 (framed under Article 309 of the Constitution), Article 14 of which, at that time, ran thus:
'14. Reservation of appointments --Where the special Rules lay down that the principle of reservation of appointments shall apply to any service, class or category, appointments thereto shall be made on the following basis:
(a) The unit, of appointment for the purpose of this rule shall be 20, of which two shall be reserved for scheduled castes and scheduled tribes and 8 shall be reserved for the other Backward Classes and the remaining 10 shall be filled on the basis of merit.
(b) The claims of members of Scheduled Castes and Scheduled Tribes and Other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward Class is selected on the basis of merit, the number of posts reserved for Scheduled Castes, Scheduled Tribes or for Other Backward Classes as the case may be shall not in any way be affected.
(c) Appointments under this Rule shall be made in the order of rotation specified below in every cycle of 20 vacancies.
1. Open competition
2. Other Backward Classes
3. Open competition
4. Scheduled Castes and Scheduled Tribes
5. Open competition
6. Other Backward Classes
7 Open competition
8 Other Backward Classes
9. Open competition
10 Other Backward Classes
11 Open competition
12. Scheduled Castes and Scheduled Tribes
13. Open competition
14. Other Backward Classes
15. Open competition
16. Other Backward Classes
17 Open competition
18. Other Backward Classes
19. Open competition
20. Other Backward Classes
32. The above provision was amended by a notification dated 28th October 1965issued under Article 309 of the Constitution by the Governor, by which it became possible in the case of any service, class or category for which no special rules have been issued, to attract the principle of reservation of appointments, by the Government declaring by notification in the Gazette that the said principle would apply. The Kerala Judicial Service, at the relevant time, was a service for which no Special Rules had been issued. By a notification dated 21st May 1966, issued by the Governor under Article 309, the above amendment was given retrospective effect from 17-12-1958, the date of the coming into force of the Kerala State and Subordinate Service Rules. By another notification dated 29-4-1966 by the Government of Kerala it was declared that the principle of reservation of appointments shall apply inter alia to the Kerala Judicial Service. Finally by notification dated 21-5-1966 issued by the Government under Rule 14 of the Kerala State and Subordinate Service Rules, the notification dated 29-4-1966, above referred to was given retrospective effect, also from 17-12-1958. These notifications have been set out in the judgment of my learned brother, Govindan Nair J.
33. Under the Munsiffs' Recruitment Rules, provision is made only for giving 'due consideration' to the claims of Backward Communities, Scheduled Castes and Scheduled Tribes. Article 16(4) of the Constitution of India, provides:
'16(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State'
Interpreting a similar provision in Article 15(4), it was ruled by the Supreme Court in Balaii's case, AIR 1963 SC 649 that the making of special provisions can well be done by an executive order of the State.
34. Has such a provision been so made in the present case? Clause XII of Ex. PI notification by the Public Service Commission provided:
'XII. In advising candidates for appointment, the rules of rotation prescribed in Rules 14 to 17 of the General Rules under Part II of the Kerala State and Subordinate Services Rules 1958. as amended will be observed '
In the counter-affidavit filed on behalf of the Commission (2nd respondent) it has referred to the correspondence that passed between the Government and itself in the matter of making recruitments. In Balaji's case, AIR 1963 SC 649 the impugned reservations were made by a formal executive order In Chitralekha's case, AIR 1964 SC 1823 the Government's letter to the Selection Committee prescribing marks for interview or defining the criteria for allotting the markswas attacked as not conforming to Article 166 of the Constitution, as the same did not show that it was issued in the name of the Governor. The court was satisfied by evidence de hors, furnished in the counter-affidavit on behalf of the Government that it was. In the present case the letters from the Government are not produced. There is nothing to show that the reservations were directed by an executive order of the Government.
35. It was contended by the petitioner's counsel that the reservations directed in the instant case are indefensible as they have been made solely or predominantly on considerations of caste, and/or community against the mandate given by the decisions of the Supreme Court in Balaji's case, AIR1963 SC 649 and in Chitralekha's case, AIR1964 SC 1823 It is further contended that there has been no formation of the requisite opinion required by clause (4) of Article 16, that the 'Backward Classes' of citizens for whom reservation was directed, are not adequately represented In the service under the State. It was finally argued that the castes or communities in whose favour reservations have actually been made are not 'Backward Classes'.
36. Comparing Article 15(4) with Article 16(4) of the Constitution, it is clear that the cumulative backwardness, namely, both Social and Educational, which is required by the former, is not posited by the latter. Any type of backwardness would suffice. The formation of opinion by the State as to the inadequacy of representation in the services is an additional requirement of Article 16(4).
37. At the hearing, the point was debated that the burden of establishing that the reservations under Article 16(4) were unjustified, was upon the petitioner. Reliance was placed for this submission on the ruling in the 1964 Ker LT 298= (AIR 1964 Ker 316) where, relying on the Supreme Court's decision in the Wealth Tax Act Case, 1964 Ker LT 285 a Division Bench of this Court took the view that the burden of proving that Ezhavas, Muslims and Latin Catholics inclusive of Anglo Indians, are not entitled to the protection afforded by Article 15(4) of the Constitution, was on the petitioner who challenged the reservations in their favour. With respect, it seems to me that the decision of the Supreme Court, in the Wealth Tax Act case, 1964 Ker LT 285 which was concerned with Article 14 of the Constitution, can have no application here.
As pointed out in the majority judgment of the Supreme Court in Rangachari's case, AIR 1962 SC 36 and as repeated by the majority judgment in Devadasan's case, AIR 1964 SC 179, Article 16(4) in substance provides an exception or a proviso to the Fundamental rights guaranteed by Article 16(1) and (2). The petitioner herein complains that on considerations of equality of opportunity his rank was No. 24, whereas those of respondents 3 to 12 ranged from 26 to 72. His exclusion from the selected list of 31 candidates and the inclusion of Respondents 3 to 12 therein was by reason of the exceptionaltreatment accorded to them under Article 16(4). It seems to me therefore that once the violation of the fundamental right under Article 16(1) is established the burden of making out the exception or proviso, must be on the State relying on the same.
38. Has the State made out ingredients of Article 16(4) of the Constitution? First in regard to the inadequacy of representation in the services, of the various classes for whom reservation has been made, it has been averred in the counter-affidavit that the State formed the requisite opinion that they were inadequately represented and that the said opinion is not justiciable in these proceedings. The limited grounds open to judicial review in matters of this type were recently examined by the Supreme Court in Barium Chemicals Ltd. v. Company Law Board, Civil Appeal No. 381 of 1966 D/- 4-5-1966 = (reported in AIR 1967 SC 295). The Supreme Court observed:
'Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of male fide, dishonesty or corrupt purpose. .Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations, it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.'
.......... ............ .............
'Therefore, the words, 'reason to believe' or 'in the opinion of' do not always lead to the construction that the process of entertaining 'reason to believe' or 'the opinion' is an altogether subjective process not lending itself even to a limited scrutiny by the court that such 'a reason to believe'' or 'opinion' was not formed on relevant facts or within the limits, or, as Lord Radcliffe and Lord Reid called, the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative.'
39. The petitioner's counsel contended that the State has not applied its mind to the relevant considerations, and in particular, as to whether there was inadequacy of representation of the Backward Classes in the judicial service for which the recruitment in question was made. The petitioner hasaverred that a perusal of the list of judicial officers will bear out that there was adequate representation of the reserved 'classes' in the judicial service. In Rangachari's case, AIR 1962 SC 36 it was noticed that the inadequacy of representation posited by Article 16(4) may refer to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. It was observed:
'In the context the expression 'adequately represented' imports the considerations of 'size' as well as 'values', numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one.'
In paragraph 8 of the counter-affidavit of the State, it is stated that the question of adequacy of representation is to be determined with reference to the services of the State generally and as a whole, and not with reference to any particular service or category of officers, and that the backwardness has to be judged by reference to the adequacy of representation in the service under the State taken as a whole. A qualitative evaluation of inadequacy of representation might conceivably be made with respect to the totality of the services. But even so, there is nothing to indicate that any qualitative assessment had been made in the light of the principle in Rangachari's case, AIR 1962 SC 36.
40. In Devadasan's case, AIR 1964 SC 179 the majority judgment of the Supreme Court recognised the principle that reservation of more than 50 per cent of the vacancies under Article 16(4) would be destructive of the fundamental right guaranteed under Article 16(1) and (2). See pages 186 and 187 of AIR 1964 SC 179. Rule 14 of the Kerala State and Subordinate Service Rules has thus touched the be plus ultra of permissible reservations recognised by the Supreme Court. In Devadasan's case, AIR 1964 SC 179 the Supreme Court observed;
'It is clear from both these decisions that the problem of giving adequate representation to members of backward classes enjoined by Article 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 pointed out in Balaji's case, AIR 1963 SC 649.'
Rule 15 of the Kerala State and Subordinate Service Rules seems to me to be but a variation, if at all, of the 'carry forward Rule' struck down by the Supreme Court in Devadasan's case, AIR 1964 SC 179. It runs thus:
'15 If there is no suitable candidate available for selection from the group ofcommunities classified as Other Backward Classes or from the group of communities classified as Scheduled Castes and Scheduled Tribes in the turn allotted for them in the cycle, the said group shall be passed over in making the selection. But the said group shall get at the earliest possible opportunity the benefit of the turn thus forfeited, if a duly qualified candidate is forthcoming from that group within a period of three years, a corresponding reduction being made in the number of vacancies due to be filled by open competition.'
There is nothing to show that Rule 15 had actually been applied to the instant selections. But the impact of the rule on the optimum reservations permitted by Rule 14 seems to me to furnish another indication of the way in which the question of reservations had been approached. From Ext. R-1 appended to the printed counter-affidavit in O. P. No. 2293 of 1963, which is to be treated as part of the counter-affidavit in this O. P. (vide para 9 of the present counter-affidavit), it is seen that eleven vacancies were thrown open out of every twenty, for the merit pool in the year 1957, and nine vacancies were reserved for Backward Classes, and Scheduled Castes and Tribes. In 1958, at the time of the State and Subordinate Service Rules, while maintaining the cycle of twenty vacancies, the quota for the merit pool was decreased by one, and the reserved quota was correspondingly increased. There is nothing to show that the variation of the proportions was effected after an intelligent appraisal of the situation. I am of the view that there has not been an application of the mind regarding inadequacy of representation either qualitatively, or with reference to the particular service, or quantitatively and with reference to the requirements of the particular year for which recruitment was made.
41. Next, as to whether the reservations have been made in favour of 'Backward Classes'. Counsel for the petitioner contended that the reservations directed are In favour of 'communities' or 'castes' and are for that reason, liable to be struck down. That the reservations ex facie are in favour of 'communities' such as Muslims, Ezhavas, Latin Catholics etc. cannot be gainsaid. The Munsiff's Recruitment Rules also proceed on the basis of due consideration being given to 'communities' But it was argued that these communities are themselves backward classes and have been conveniently described by their label in view of their backwardness and not on communal or caste considerations. Justification for this was sought from the pronouncement of a Division Bench of this Court in Jacob Mathew's case, 1964 Ker LT 298=(AIR 1964 Ker 316). In the said decision, this Court observed:
'16. According to Frank and Wagnalls Standard Dictionary 'caste' is no more than an hereditary class into which Hindu Society is divided. And we see nothing in the decision of the Supreme Court which precludes the conclusion that if the whole or a sub-stantial portion of a caste is socially and educationally backward, then the name of that caste will not be a symbol or a synonym for a class of citizens who are socially and educationally backward and thus within the ambit of clause (4) of Article 15 of the Constitution.'
42. The correctness of the above observation was assailed by the Counsel for the petitioner, Balaji's case, AIR 1963 SC 649 recognised, and Chitralekha's case, AIR 1964 SC 1823 affirmed, that caste can be a relevant consideration in determining the issue of backwardness, but stressed that it should not be the sole or even the dominant consideration. In Balaji's case, AIR 1963 SC 649 the Supreme Court noticed as 'significant', the feeling of grave dissatisfaction expressed by the Chairman of the Backward Classes Commission constituted by the President of India on- 29th January 1053, in his covering letter sent along with his report to the President.
The Chairman stated in that letter that his eyes were opened to the dangers of suggesting remedies on caste basis, and added that he was driven to the conclusion that the remedies suggested by the Commission were worse than the evil it was out to combat. The Government of India in their memorandum on the report pointed out that if the entire community, barring a few exceptions were to be regarded as backward, the really needy would be swamped by the multitude and hardly receive any special attention or adequate assistance, and such dispensation would hardly fulfil the requirements of Article 340 of the Constitution. After referring to these, the Supreme Court observed thus in paragraph 22 :
'If the classification of backwardness of citizens was based solely on the caste of the citizens, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves'
In Chitralekha's case, AIR 1964 SC 1823 the following observations appear to be categorical.
'The juxtaposition of the expression 'Backward Classes' and 'Scheduled Castes' in Article 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 belong to a 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.
20. This interpretation will carry out the intention of the Constitution expressed in the aforesaid Articles. It helps the really Backward Classes instead of promoting the Interests of individuals or groups who. (though?) they belong to a particular castea majority whereof is socially and educationally backward, really belong to a class which is socially and educationally advanced. To illustrate, take a caste in a State which is numerically the largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, an effective minority may be socially and educationally far more advanced than another small sub-caste the total number of which is far less than the said minority. If we interpret the expression 'class' as 'castes' the object of the Constitution will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those who really deserve. This anomaly will not arise if without equating caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward class or not. 'On the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution'. ' (Emphasis (here into ' ') mine')
In the light of this expression of opinion by the Supreme Court and especially of the word? emphasised. I am not prepared, with respect, to say that if a substantial portion of a caste is backward, the name of the Caste may be regarded as a symbol or a synonym for a class of citizens who are backward; or that there is nothing in the decision of the Supreme Court which precludes such a contusion.
43. In the present case, in the counter-affidavit filed on behalf of the State details have been given of the attempts made for over nearly three decades to ascertain the backwardness of the communities for whom reservations have been made. The investigations were directed, and the required opinion formed prior to the decision of the Supreme Court in Balaji's case, AIR 1963 SC 649 when the relevant principle? and considerations became crystallised. Many of these investigations were prior to the Constitution The opinions formed about backwardness nearly two decades and more back, were repeated year after year in the form of executive or administrative orders, and found their way into Rules 14 to 17 of the State and Subordinate Service Rules
44. Balaji's case, AIR 1963 SC 649 stated the principle that the Backward classes for whom reservations are made should be such as are comparable in their backwardness to the Scheduled Castes and Scheduled Tribes. The consideration has not been adverted to in making the reservations. In the matter of educational backwardness the Supreme Court observed in Balaji's case, ATP 1963 SC 649:
'It may be conceded that In determinining the educational backwardness of a class of citizens, the literacy test supplied by theCensus Reports may not be adequate; but it is doubtful if the average of student population in the last three High School classes is appropriate in determining educational backwardness.'
Granting that such average of student population may be an efficacious test of educational backwardness, the Supreme Court stressed that before you can thumb down for backwardness on that basis, the State average of the 'class' in question must be shown to be 'well, or substantially below the State average'. In paragraph 27 of the printed counter-affidavit in O. P. No. 2293/1963 the community-wise percentage of literacy according to the 1941 Census in the States of Travancore and Cochin is relied on as the basis for assessing educational backwardness. Even that data is not available for the Malabar area; and for none of the three areas in the State is any data available for applying the literacy test after 1941, as the Census Reports of 195,1 and 1961 do not disclose the community-wise percentage of literacy.
On the basis of the meagre data from which the literacy test has been evolved, it is seen, (to give only one instance) that State average of literacy in Travancore in 1941 was 55 per cent and the average of literacy for Ezhavas in that area was 46.5 per cent. The corresponding figures for Cochin area for that year stand at 41 per cent and 34.7 per cent. The assessment of educational backwardness seems to have proceeded on a test, by no means adequate, on data meagre, and not upto-date; and the result of application of the test, to the meagre data, is un-satisfactory. I find it impossible to say that the assessment of backwardness has not been either solely or predominantly on considerations of caste or community; or that the same has proceeded on the correct lines and the relevant considerations indicated in Balaji's case. AIR 1963 SC 649
45. The learned Advocate-General sought to sustain the selections and appointments on the basis of the Kerala State and Subordinate Services Rules, the amendments effected thereto, and the notifications issued thereunder, noticed earlier in this judgment. It has been ruled by a Full Bench of this Court in O. P No. 890 of 1964= (reported in AIR 1968 Ker 17 (FB)) that Rules under Article 309 can be framed with retrospective effect. It may be assumed too, that the power of notification under the Rules conferred on the Government may be exercised so as to relate back to a period not anterior to the commencement of the Rules themselves Even so, the reservations can be only in favour of 'Backward Classes', who, In the opinion of the Government are not adequately represented in the service of the State. I have held there has been no application of the Government's mind to the question as to the inadequacy of representation of the 'classes' concerned, in the service of the State. I have held too, that the reservations directed have been ordered solely or predominantly on the basis of caste or community. In this view, the alternative claim of the Government on the basis of the Kerala State and Subordinate Service Rules and the retrospective amendments effected thereto, and the notification issued thereunder cannot be sustained.
46. The prayers in this writ petition art to declare Rules 14 to 17 of the Kerala State and Subordinate Service Rules 1958, ultra vires and to issue a writ of certiorari quashing the Ext. P-2 list of 31 persons in so far as it concerns, Respondents 8 to 12; and for a writ of mandamus directing respondents 1 and 2 to make appointments as Munsiffs from the list dated 14th August 1963 published in the Kerala Gazette dated 22-9-1962 in accordance with the ranks given thereunder. In view of my discussion and conclusions above, I would declare the reservations made in favour of the backward classes or communities in the impugned selection and appointments as ultra vires. I would further issue a writ of certiorari and mandamus as prayed for by the petitioner, and direct the parties to bear their costs.
47. It was objected at the hearing that one of the selected candidates, namely Sri A. R. Vijayan, was not a party to this writ petition. It seems to me this is inconsequential, as no relief is claimed against Sri A. R. Vijayan. The said Vijayan is ranked No. 23, above the petitioner (No. 24) in the list which the petitioner seeks to implement. The entire selection is not sought to be quashed either.