WHETHER PROPORTIONAL REPRESENTATION IS ADEQUATE

REPRESENTATION

1) DR. JAISHRI LAXMANOTHERAO PATIL AND OTHERS VERSUS THE

CHIEF MINISTER & OTHERS AIROnline 2021 SC 240; 2021 SCC OnLine SC
431

Judges:   Ashok Bhushan, S. Abdul Nazeer, L. Nageswara Rao, Hemant Gupta and S.
Ravindra Bhat, JJ.

ISSUE: Whether the proportional reservation is proportional reservation?

Whether a writ of Mandamus can be issued in case of reservation?

HON’BLE JUSTICE S. RAVINDRA BHAT

59. The Commission has relied on outdated data for holding that ‘Marathas’ were ‘Shudras’.
When an unscientific survey is done, an unrealistic result is bound to come. There has
been adequate representation of Maratha Community in the Public Services. The Commission
erred in holding that the representation is not proportionate and recommended reservation
under Article 16 (4). The Commission has not even adverted to the requirement regarding
efficiency as contemplated under Article 335 of the Constitution of India .

167.In from Indra Swahney reservation shall not exceed 50% of the appointment. 50% has
been said to be reasonable and it is to attain the objective of equality. In paragraph 807
Justice Jeevan Reddy states:
“807. We must, however, point out that clause (4) speaks
of adequate representation and not proportionate representation. Adequate representation can
not be read as proportionate representation . Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and that too for a limited period.
These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour
of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only
temporary and special provisions. It is therefore not possible to accept the theory of
proportionate representation though the proportion of population of backward classes to the
total population would certainly be relevant. Just as every power must be exercised
reasonably and fairly, the power conferred by clause (4) of Article 16 should also be
exercised in a fair manner and within reasonable limits -- and what is more reasonable than to
say that reservation under clause (4) shall not exceed 50% of the appointments or posts,
barring certain extraordinary situations as explained hereinafter. From this point of view, the
27% reservation provided by the impugned Memorandums in favour of backward classes is
well within the reasonable limits. Together with reservation in favour of Scheduled Castes
and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had
to the Full Bench decision of the Andhra Pradesh High Court in V. Narayana
Rao v. State of A.P. [ AIR 1987 AP 53 ]striking down the enhancement of reservation from
25% to 44% for OBCs. The said enhancement had the effect of taking the total reservation
under Article 16 (4) to 65%.”

 227. The Constitution Bench of this Court in Indra Sawhney while elaborating on Article

16 (4) has held that clause (4) of Article 16 speaks
of adequate representation and not proportionate representation in paragraph 807.

Writ:

The court in 2016 had directed the peritioner that The Petition is dismissed as far as prayer
clause (A) is concerned. As far as prayer (B) is concerned the petitioner is at liberty to file an
appropriate Writ Petition seeking said relief(Page 39 of the judgemnt)

2) CASE: ALL INDIA EQUALITY FORUM VERSUS UNION OF INDIA AND

OTHERS  (2017 SCC OnLine Del 10081)

Judges:   HON'BLE JUSTICE V. K. BALI, HON'BLE JUSTICE L. K. JOSHI

ISSUE: Whether the proportional reservation is proportional reservation?

From the affidavit filed on behalf of the ..respondent(s), contents whereof have been referred
to above, it is apparent that adequate representation of SCs and STs has been worked out
on the basis of ..proportionate representation.. of their population. The provisions
of , Article 16(4) of the Constitution would not 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 it. It
is ..adequacy.. of the representation of backward classes of citizens which has to be
assessed, and not ..proportionate representation.. as per their population. Once again, in the
provisions contained in , Article 16 (4A), the State is not prevented from making any
provision for reservation in matters of promotion, with consequential seniority, to any class
or classes of posts in the services under it in favour of SCs and STs, which, in the opinion of
the State, are not adequately represented. It is once again, adequacy of representation which
is to be worked out and not proportionate representation.

ART 16(4) IS /IS NOT AN EXCEPTION TO ART 16(1)

CASE : INDIRA SWAHNEY v. UOI (1992 Supp(3) SCC 217)

Judges: BEFORE M.H. KANIA CJ. AND M.N. VENKATACHALIAH, S.

PLATNAVELPANDIAN, DR. T.K THOMMEN ALM. AHMAD, KULDIP SINGH P.B.
SAWANT.RM. SAHAI AND B.P. JREVAN REDDY,

Held :
Under Article 16(4) a person of Backward classes cannot be solely identified on of economic
basis but caste system also needs to be considered. Article 16(4) is not an exception to clause
16(1) but rather an instance of classification. A further reservation could be made under Art
16(1) Backward classes in article 16(4) were different from the socially and educationally.
The concept of a creamy layer was laid down and it was directed that such a creamy layer be
excluded while identifying backward classes. Article 16(4) does allow the classification of
backward classes into backward and more backward.

An issue arises to this that the reserved category candidates were getting promoted over their
senior general candidate the issue was that because of this the reserved category candidate
stared getting promoted over the senior general counterparts. This is resolved by introducing the
Catch-up Rule in the judgments in the case of Virpal Singh 1 and Ajit Singh.2 The rule said that if
an SC/ST candidate is promoted over a senior general candidate the general candidate will
regain their seniority over the SC/ST candidate promoted earlier. In 2001, the Parliament
introduced the 85th Amendment to introduce the concept of consequential seniority and negated
the Catch-Up Rule Article. Then came M Nagraj which upheld the amendments

CASE : Jarnail Singh & Ors Vs Lachhmi Narain Gupta & Ors  2018 SCC OnLine

SC 635
Judges: Before Kurian Joseph and M.M. Shantanagoudar, JJ.

17. Thus, we may make it clear that quantifiable data shall be collected by the State, on the
parameters as stipulated in Nagaraj on the inadequacy of representation, which can be tested
by the Courts. We may further add that the data would be relatable to the concerned cadre. “
(Para 17 of the judgment)
20. According to us, Nagaraj has wisely left the test for determining adequacy of
representation in promotional posts to the States for the simple reason that as the post gets
higher, it may be necessary, even if a proportionality test to the population as a while is taken
into account, to
reduce the number of SCs and STs in promotional posts, as one goes upwards. This is for the
simple reason that efficiency of administration has to be looked at evey time promotions are
made. .... For this reason, we make it clear that Article 16 (4-A) has been couched in
language which would leave it to the States to determine adequate representation depending
upon the promotional post that is in question.” (Para 20 of the judgment)
21 “.... However, the conclusion in Nagaraj that the State has to collect quantifiable data
showing backwardness of the SCs and STs being contrary to the nine-judge Bench in Indra
Sawhney is held to be invalid to this extent “(Para 21 of judgment).

It was also held that the State is required to see the efficiency of
administration while making provision for reservation

1
Union of India & Ors. against Virpal Singh Chauhan & Ors., (1995) 6 SCC 684,.
2
Ajit Singh Januja & Ors vs State Of Punjab & Ors , (1996) 2 SCC 715.
CASE : B.K. PAVITRA & ORS. versus UNION OF INDIA & ORS.(I &II) (2017)4
SCC 620

Judges:   Adarsh Kumar Goel, Uday Umesh Lalit

Concept of proportional Equality

120. At this stage, one aspect needs to be mentioned. Social justice is concerned with the
distribution of benefits and burdens. The basis of distribution is the area of conflict between
rights, needs and means. These three criteria can be put under two concepts of equality,
namely, “formal equality” and “proportional equality”. Formal equality means that law treats
everyone equal. Concept of egalitarian equality is the concept of proportional equality and it
expects the States to take affirmative action in favour of disadvantaged sections of society
within the framework of democratic polity. In Indra Sawhney all the Judges except Pandian,
J. held that the “means test” should be adopted to exclude the creamy layer from the
protected group earmarked for reservation. In Indra Sawhney this Court has, therefore,
accepted caste as a determinant of backwardness and yet it has struck a balance with the
principle of secularism which is the basic feature of the Constitution by bringing in the
concept of creamy layer. Views have often been expressed in this Court that caste
should not be the determinant of backwardness and that the economic criteria alone.

The judgemnt was challnaged, in the chllange it was held that

we have come to the conclusion that the challenge to theconstitutional validity of the
Reservation Act 2018 is lacking insubstance. Following the decision in B K Pavitra I, the
State
government duly carried out the exercise of collating and analysing dataon the compelling
factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act 2018 has
cured the deficiency which was noticed by B K Pavitra I in respect of the Reservation Act
2002. The
Reservation Act 2018 does not amount to a usurpation of judicial powerby the state
legislature. It is Nagaraj and Jarnail compliant. The Reservation Act 2018 is a valid exercise
of the enabling power conferred by Article 16 (4A) of the Constitution.” ( Para 144)
CASE: State of Kerala Versus N.M. Thomas and others (1976)2 SCC310

Judges:  MR. A.N. RAY, CHIEF JUSTICE MR. JUSTICE H.R. KHANNA MR. JUSTICE
K.K. MATHEW MR. JUSTICE M.H. BEG MR. JUSTICE V.R. KRISHNA IYER MR.
JUSTICE A.C. GUPTA MR. JUSTICE S. MURTAZA FAZAL ALI

36. Clause (4) of Art. 16 of the Constitution cannot be read in isolation but has to be read as
part and parcel of Arts. 16(1) and (2). Suppose there are a number of backward classes who
form a sizable section of the population of the country but are not properly or adequately
represented in the services under the State the question that arises is what can be done to
enable them to join the services and have a sense of equal participation. One course is to
make a reasonable classification under Art. 16(1) in the manner to which I have already
adverted in great detail. The other method to achieve the end may be to make suitable
reservations for the backward classes in such a way so that the inadequate representation of
the backward classes in the services is made adequate. This form of classification which is
referred to as reservation, is, in my opinion, clearly covered by Art. 16(4) of the Constitution
which is completely by exhaustive on this point.

WRIT OF MANDAMUS AND ENABLING PROVISION

1) CASE: Saurav Yadav &Ors. Vs State of Uttar Pradesh and Ors. (2019 SCC
Online 1970)
JUdges: Before Uday U. Lalit and Vineet Saran, JJ.

Issue: Whether a writ of Mandamus to fill posts with reserved cadidates is maintainable.

Uday Umesh Lalit, J.

42. If there are unfilled vacancies, it is upto the authorities to act purely in terms of the
concerned statutory provisions. Neither any case for issuance of mandamus, as prayed for,
has been made out nor do we think it appropriate to pass any orders directing the concerned
authorities to absorb the petitioners against unfilled vacancies

2) Arvinder Singh Bains v. State of Punjab and Others  (2006) 6 SCC 673,

Issue: Whether a writ of Mandamus on Lists prepared in vilation of quota thus inadequately
represtenting reserved candidates be allowed.

” On consideration of the factual situation of the case and the rules governing the services of
the employees, this Court said that rota and quota must necessarily be reflected in the
seniority list and any seniority list prepared in violation of rota and quota is bound to be
negated. The Court found in the said case that the action of the respondents in determining
the seniority is clearly in total disregard of rota-quota rule prescribed in Rule 18 of the 1976
Rules and, therefore, writ of mandamus was issued to the respondents directing them to
prepare the seniority list of the appellants who belong to the PCS (EB) in accordance with
Rule 18 and read with Rule 21 of the 1976 Rules by fixing seniority according to the roster
prescribed under Rule 18 of the 1976 Rules.”

3) CASE: Suresh Chandra Gautam v. State of UP [ (2016)11 SCC 113]

Judges: Dipak Mishra and Prafulla C. Pant

Writ of madamus :

36. The core issue is whether in the context of Articles 16(4-A) and 16(4-B), a writ or
direction can be issued to the State Government or its functionaries or the instrumentalities of
the State to collect and gather the necessary data for the purpose of taking a decision as
regards the promotion and consequential fixation of seniority. In this regard, it is imperative
to appreciate in proper perspective the concept of mandamus and the circumstances in which
it can be issued.

This Court in State of Kerala v. A. Lakshmikutty52, while dealing with the concept of
mandamus, opined thus: (SCC p. 654, para 34)

"34. ... It is well settled that a writ of mandamus is not a writ of course or a writ of right, but
is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of
which a mandamus will lie. The legal right to enforce the performance of a duty must be in
the applicant himself. In general, therefore, the court will only enforce the performance of
statutory duties by public bodies on application of a person who can show that he has himself
a legal right to insist on such performance."

45. The Constitution Bench of the Supreme Court in M. Nagaraj case has clearly held that
Articles 16(4-A) and 16(4-B) do not alter the structure of Article 16(4). The said articles are
confined to the Scheduled Castes and the Scheduled Tribes and do not obliterate any of the
constitutional requiremens, namely, ceiling limit of 50% (quantitative limitation), the concept
of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and
SCs and STs on the other hand as held in Indra Sawhney, 1992 Supp (3) SCC 217, the
concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal,
(1995) 2 SCC 745.

4) Case: Mukesh Kumar vs. State of Uttrakhand( (2020)3 SCC 1)

This is a writ challenging the HC Uttrakhand Judgement( writ set aside appeal allowed)

Judges : L. Nageswara Rao, J.Hemanta Gupta

L. Nageswara Rao,

5. Enabling Provison: The High Court observed that Article 16 (4) and 16 (4-A) of the
Constitution are enabling provisions, and the State Government is not obligated to provide
reservations in promotion in favour of members of the Scheduled Castes and Scheduled
Tribes.

The following paragraph contains answers to all the issues

16. “It is abundantly clear from the judgments of this Court in Indra Sawhney, Ajit Singh
(II), M. Nagaraj and Jarnail Singh (supra) that Article 16 (4) and 16 (4-A) are enabling
provisions and the collection of quantifiable data showing inadequacy of representation of
Scheduled Castes and Scheduled Tribes in public service is a sine qua non for providing
reservations in promotions. The data to be collected by the State Government is only to
justify reservation to be made in the matter of appointment or promotion to public posts,
according to Article 16 (4) and 16 (4-A) of the Constitution. As such, collection of data
regarding the inadequate representation of members of the Scheduled Castes and
Schedules Tribes, as noted above, is a pre requisite for providing reservations, and is not
required when the State Government decided not to provide reservations. Not being bound
to provide reservations in promotions, the State is not required to justify its decision on the
basis of quantifiable data, showing that there is adequate representation of members of the
Scheduled Castes and Schedules Tribes in State services. Even if the underrepresentation
of Scheduled Castes and Schedules Tribes in public services is brought to the notice of this
Court, no mandamus can be issued by this Court to the State Government to provide
reservation in light of the law laid down by this Court in C.A. Rajendran (supra) and
Suresh Chand Gautam (supra).” ( Page no. 19 and 20)

ISSUE: WHETHER RESERVATION AFFECT EFFECIENCY OR IS IT A DEEP

ROOTED STIGMA

CASE: K C Vasanth Kumar v State of Karnataka ((1998) 4SCC 590)

Judges: YV Chandrachud,DA Deasai, O Chinappa Reddy,Ap Sen and ES.

Venkataramiah

36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned…
One would think that the civil service is a Heavenly Paradise into which only the archangels,
the chosen of the elite, the very best may enter and may be allowed to go higher up the
ladder. But the truth is otherwise. The truth is that the civil

service is no paradise and the upper echelons belonging to the chosen classes are not
necessarily models of efficiency. The underlying assumption that those belonging to the
upper castes and classes, who are appointed to the non-reserved posts will, because of their
presumed merit, “naturally”perform better than those who have been appointed to the
reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the
latter into the sacred precincts is a vicious assumption, typical of the superior approach of the
elitist classes…”
CASE: Rajesh A. Tekale vs The State Of Maharashtra

Judges: Before A.A. Sayed and V.L. Achliya, JJ.

“The Constitution does not define what the framers meant by the phrase ―efficiency of
administration. Article 335 cannot be construed on the basis of a stereotypical assumption
that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is
reduced by appointing them. This is stereotypical because it masks deep rooted social
prejudice. The benchmark for the efficiency of administration is not some disembodied,
abstract ideal measured by the performance of a qualified open category candidate. Efficiency
of administration in the affairs of the Union or of a State must be defined in an inclusive
sense, where diverse segments of society find representation as a true aspiration of
governance by and for the people. If, as we hold, the Constitution mandates realisation of
substantive equality in the engagement of the fundamental rights with the directive principles,
inclusion together with the recognition of the plurality and diversity of the nation constitutes
a valid constitutional basis for defining efficiency”