Reservation in Public Employment

A caste can be, and quite often is, a social class in India. If it is backward socially it is a backward class for article 16(4). Among non-Hindus there are occupational groups, sects and denominations which for historical reasons are socially backward and are likewise backward classes.

No procedure of identification is prescribed by the Constitution or by law, and it is neither possible nor advisable for a court to lay one down. It must be left to the authority appointed to identify, which may adopt any method so long as its survey covers the entire populace. One may begin with castes, or with occupational groups, applying the criteria evolved for determining backwardness.

A class need not be similarly situated to the Scheduled Castes and Scheduled Tribes to be designated backward.

A backward class cannot be identified only and exclusively by economic criteria, though identification on the basis of occupation-cum-income without reference to caste is permissible. On that ground the ten per cent for economically backward sections was struck down. That last proposition has since been overtaken for a different purpose by article 15(6) and 16(6) and by Janhit Abhiyan, dealt with in [Economically Weaker Sections].

There is no constitutional bar to classifying backward classes into backward and more backward.

Why it matters. It is the controlling authority on who may be reserved for. Its treatment of caste as a permissible starting point, coupled with the insistence that caste is used as an indicator of social backwardness rather than as an end in itself, is the compromise Indian reservation law runs on.

Article 335 and efficiency

Article 335 is regularly misquoted as a limit on reservation. Read it.

It provides that the claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments. A proviso added by the Eighty-second Amendment permits relaxation in qualifying marks or standards of evaluation for reservation in matters of promotion.

Facts. State of Punjab v. Davinder Singh, decided 1 August 2024 by seven judges. Whether a State may sub-classify within the Scheduled Castes, giving preference to the most backward among them, when article 341 provides a single Presidential list.

Held. Sub-classification is permissible, and E.V. Chinnaiah, which had held otherwise, is overruled. Article 341 creates a deeming fiction whose consequence is that the listed castes receive the benefits the Constitution provides; it does not create an integrated homogeneous class. Sub-classification does not violate article 341(2) because no caste is included in or excluded from the List; it would offend only if preference or exclusive benefit were given to certain castes over all the reserved seats. The State may sub-classify under articles 15(4) and 16(4) if there is a rational principle for differentiation with a nexus with the purpose, and must collect data on inadequacy of representation and establish that it flows from backwardness. On article 335, the Court held that it is not a limitation on the exercise of power under articles 16(1) and 16(4) but a restatement of the necessity of considering the claims of the Scheduled Castes and Scheduled Tribes. Gavai J., concurring, held that the creamy layer principle should apply to the Scheduled Castes and Scheduled Tribes too.

Why it matters. Two things, and both are recent enough that most textbooks do not have them. Sub-classification within the Scheduled Castes is now lawful, so a State may direct benefits to the most disadvantaged within the list. And article 335 is authoritatively characterised: it is not a brake on reservation but an instruction to consider the claims.

The mechanics an answer should know

Vertical and horizontal reservation. A vertical reservation is one made under article 16(4) for a backward class, and the categories are exclusive of one another. A horizontal reservation, for example for women or for persons with disabilities, cuts across all the vertical categories: the seats are taken from within each vertical category rather than in addition to them. The distinction decides how a candidate who belongs to both a vertical and a horizontal category is counted.

The roster and the post-based system. Reservation is worked through a roster of points rather than by reserving individual named posts, and the ceiling is applied to the roster.

Reservation is applied to the year's vacancies, not to the total cadre strength. That is one of Indra Sawhney's answers and it matters arithmetically.

A reserved-category candidate selected on merit is counted against the general seats, not against the reserved quota. Otherwise the reservation would operate as a ceiling on the class rather than a floor.

A worked example

A State notifies that in a particular service, twenty per cent of posts are reserved for a caste it has newly identified as backward. The material before it is a report showing that the caste is poor. A candidate challenges the notification.

Is the identification good? Poverty alone is not enough. Indra Sawhney holds that a backward class cannot be identified only and exclusively by economic criteria; what article 16(4) looks to is social backwardness, of which economic condition is evidence but not a substitute. Identification on the basis of occupation-cum-income without reference to caste would have been permissible; a report showing income alone is not.

Is inadequate representation shown? The clause requires the State's opinion that the class is not adequately represented in the services. Backwardness and under-representation are two conditions, not one, and material is needed on the second. A court will ask whether there was material, not whether the State's assessment was right.

Could the State have sub-classified instead? If the caste is already within the Scheduled Castes list, Davinder Singh now permits sub-classification in its favour, provided there is a rational principle of differentiation with a nexus to the purpose, and provided the preference does not swallow all the reserved seats.

And article 335? The candidate cannot use it as a trump card. On Davinder Singh it is not a limitation on the power but a restatement of the need to consider the claims of the Scheduled Castes and Scheduled Tribes, consistently with efficiency.

Quick revision

• Article 16(4) has four conditions: a backward class of citizens, in the opinion of the State, not adequately represented, in the services under the State.
• The expression in article 16(4) is wider than that in article 15(4), with the accent on social backwardness.
• Indra Sawhney: a caste can be a class; no method of identification is prescribed; a class need not resemble the SC and ST; economic criteria alone will not do; backward and more backward may be distinguished.
• Davinder Singh (2024), seven judges: sub-classification within the Scheduled Castes IS permissible, Chinnaiah overruled; article 341 creates no homogeneous class; a rational principle with a nexus is required, and data on inadequacy of representation.
• Article 335 is not a limitation on articles 16(1) and 16(4) but a restatement of the need to consider the claims, consistent with efficiency.
• Vertical reservation is exclusive; horizontal reservation cuts across. A reserved candidate selected on merit occupies a general seat.

Test yourself

1. Set out the four conditions in article 16(4) and say which of them is about the class and which about the service.

2. What did Indra Sawhney decide about the use of caste in identifying a backward class?

3. Why is economic criteria alone insufficient under article 16(4), and how has that been altered for a different purpose since 2019?

4. What did State of Punjab v. Davinder Singh decide, what did it overrule, and what conditions did it attach?

5. How was article 335 characterised in Davinder Singh, and why does that matter?

6. Distinguish vertical from horizontal reservation, and say how a reserved-category candidate selected on merit is counted.