- (1.) In this case the petitioner, C. A. Rajendran has obtained rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under Art. 32 of the Constitution should not be issued for quashing the Office Memorandum dated November 8,1963 which is annexure 'C' to the Writ Petition, and for directing respondent No. 1 to restore the orders passed by it in Office Memorandum No. 2/11/55-RPS dated May 7, 1955 and No. 5/4/55-SCT (1) dated January 4, 1957. Cause has been shown-by the Attorney-General on behalf of the respondents to whom notice of the rule was ordered to be given.
(2.) The petitioner is a permanent Assistant in Grade IV (Class III, non-gazetted-ministerial) of the Railway Board Secretariat Service. He was initially appointed as Accounts Clerk on February 6, 1953 in Southern Railway. He was appointed as an Assistant on October 22, 1956 in the Railway Board and confirmed as Assistant on April 1, 1960. The pay-scale of the Assistant's grade is Rs. 210-530. The next post to which the petitioner claims promotion is that of the Section Officer in the same service. The post of Section Officer is classified as Class II, Grade III, Gazetted and it carries a pay-scale of Rs. 350-900. The Railway Board Secretariat Service (Reorganisation and Re-enforcement) Scheme was drawn up in consultation with the Ministry of Home Affairs and introduced with effect from December 1, 1954 with the approval of the Union Public Service Commission. According to the new Scheme the Railway Board Secretariat Service consists of the following grades : "Grade IV-Assistants in the scale of Rs. 210-530/- (Class III non-gazetted) (to which Petitioner belongs). Grade III- Section Officers in the scald of Rs. 350-900 (Class II gazetted)-with effect from 1st July, 1959 (Section Officers grade). Grade II-Amalgamated with effect from 1st July, 1959 as Section Officers grade. Grade I- Assistant Directors/Under Secretaries in the scale of Rs. 900-1,250. (Grade III was called, before 1st July, 1959, Assistant Superintendent in the scale of Rs. 275-500 and the scale of Grade II Superintendents was Rs. 530-800)." Recruitment to permanent vacancies of Grade III of the Railway Board Secretariat Service is made by the following three methods as per pare 18 of the Railway Board Secretariat Service Scheme : "(a) 33-1/3 per cent by direct recruit ment on the results of the combined Examinations held by the UPSC for the IAS, IPS and other Central Services Class I and Class II. (b) 33-1/3 per cent by promotion on the basis of seniority subject to the rejection of the unfit. (c) 33-1/3 per cent by limited competitive examination on the basis of a test to be prescribed and conducted by the UPSC for Assistants/Stenographers Grade II between 5 years and 10 years of service in the grade in the Board's office. Note: For the years 1961-65 only 1/4 of the substantive vacancies were to be filled by direct recruitment on the results of the competitive examination under item (a) above."
(3.) In 1955 the Government issued Office Memorandum dated May 7, 1955 (Annexure 'E' to the Writ Petition) whereby it reaffirmed its decision that there will be no reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion, but that certain concessions were to be given to Scheduled Castes and Scheduled Tribes in the matter of promotion. The concessions were as follows : "(i) While there would be no reservation for Scheduled Castes and Scheduled Tribes in regard to vacancies filled by promotion, where the passing of tests or examinations had been laid down as a condition for promotion, the authority prescribing the rules for the tests or examinations might issue suitable instructions to ensure that the standard of qualification in respect of members of Scheduled Castes and Scheduled Tribes was not unduly high. (ii) Where promotions were made on the basis of seniority subject to fitness, cases of persons belonging to Scheduled Castes and Scheduled Tribes were to be judged in a sympathetic manner without applying too rigid a standard and cases of supersession of Scheduled Castes and Scheduled Tribes employees reviewed at a high level viz., if a Scheduled Caste/Scheduled Tribes employee was superseded in the matter of promotion to Class I and II posts filled on the basis of seniority subject to fitness, the prior orders of the Minister or Deputy Minister concerned were to be taken. If, however, the supersession was in a Class III or IV post filled on the basis of seniority subject to fitness, the matter was to be reported to the Minister or Deputy Minister concerned within a month of the decision. (Ministries were given powers to modify this procedure to suit their requirements with the approval of the Minister in charge.)" In 1957 the Government decided that there should be provision for reservations for Scheduled Castes and Scheduled Tribes in all grades of services filled by promotion through competitive examination limited to departmental candidates, the quantum of reservation being 121/2 per cent for Scheduled Castes and 5 per cent for Scheduled Tribes. The order of the Government is contained in Office Memorandum dated January 4, 1957, Annexure 'D' to the Writ Petition. In April, 1959 the Ministry of Railways issued an order laying down that in the case of any promotion from Class IV to Class III and from Class III to Class II and for any promotion from one grade to another in Class III, where such promotions were made by "selection" and not on the basis of "seniority"-cum-fitness", there should be reservation for the Scheduled Castes and Scheduled Tribes on the same scale as in the direct recruitment. This order was challenged by Rangachari by a Writ Petition under Art. 226 of the Constitution which was allowed by the Madras High Court and a writ in the nature of mandamus was granted restraining the Railway Authorities from giving effect to the order of the Railway Board directing reservation of selection posts in Class III of the Railway service in favour of the members of the Scheduled Castes and Scheduled Tribes. An appeal was brought to this Court by the General Manager, Southern Railway General Manager, Southern Railway v. Rangachari, 1962-2 SCR 586: (AIR 1962 SC 36) against the judgment of the Madras High Court and it was held in the majority judgment of the Court that the impugned circulars of the Railway Board were within the ambit of Art. 16 (4) of the Constitution and the appeal must succeed. Consequent upon the judgment in this case the matter was reviewed by the Union Government and it was advised that there was no constitutional compulsion to make reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion and the question whether the reservation should be continued or withdrawn was entirely a matter of public policy. The Union Government came to the conclusion that there should not be any special treatment of Government servants belonging to Scheduled Castes and Scheduled Tribes in the matter of promotions particularly in promotion to Class I and Class II services which require higher degree of efficiency and responsibility. As a result of this review of the matter the Central Government issued a memorandum dated November 8, 1963 (Annexure 'C' to the Writ Petition) which reads as follows : "In posts filled by promotion through competitive examinations limited to departmental candidates, reservations at 121/2 percent and 51/2 per cent of vacancies were provided for Scheduled Castes and Scheduled Tribes respectively vide this Ministry's O. M. No. 5 / 4 / 55 - SCT (I) dated 4th January, 1957 and para 3 (iii) of the Brochure issued with O. M. No. 1/2/61-SCT(I) dated 27th April, 1962. In regard to promotions on the basis of seniority subject to fitness, and those by selection no reservations were provided, but certain concessions were allowed to persons belonging to Scheduled Castes and Scheduled Tribes vide Ministry of Home Affairs Office Memorandum No. 2/11/55-RPS dated 7th May, 1955 (as amended from time to time), No. 1/1/59-RPS dated 17 March, 1958 and No. 1/4/60-RPS dated 5th March, 1960 and paras 20 and 21 of the aforesaid brochure. 2. The Government of India have reviewed their policy in regard to reservations and other concessions granted to Scheduled Castes and Scheduled Tribes in posts filled by promotion and have, in supersession of all previous orders in this regard, decided as follows :- (1) Class I and Class II appointments : (a) there will be no reservation for Scheduled Castes and Scheduled Tribes in appointments made by promotion to a Class II or a Higher service of post, whether on the basis of seniority-cum-fitness, selection, or competitive examination limited to departmental candidates. (b) in the case of promotions made in or to Class I or Class II on the basis of seniority subject to fitness, cases involving supersession of Scheduled Castes and Scheduled Tribes Officers, will, however, continue to be submitted for prior approval of the Minister or Dy. Minister concerned. (2) Class III and Class IV appointments : (a) In the cases of class III and class IV appointments, in grades or services to which there is no direct recruitment whatever, there will be reservation at 12 1/2 and 5 per cent vacancies for Scheduled Castes and Scheduled Tribes respectively in promotions made by (i) selection or (ii) on the results of competitive examinations limited to departmental candidates. (b) Lists of Scheduled Castes and Scheduled Tribes Officers should be drawn up separately to fill the reserved vacancies officers belonging to these classes will be adjudged separately and not along with other officers and if they should be included in the list irrespective of their merit as compared to that of the other officers. Promotions against reserved vacancies will continue to be subject to the candidates satisfying the prescribed minimum standards. (c) There will be no reservation in appointments made by promotion on the basis of seniority subject to fitness; but cases involving supersession of Scheduled Caste and Scheduled Tribe Officers, if any, will as at present be reported within a mouth to the Minister or Deputy Minister concerned for information. 3. The above decisions take effect from the date of issue of these orders except where selections by the Departmental Promotion Committee under the old orders have already been made, or rules for a competitive examination published." The contention of the petitioner is that this Office Memorandum (Annexure 'C' to the Writ Petition) violates the guarantee given to backward classes under Art. 16 (4) of the Constitution and is illegal and ultra vires. It was alleged that the impugned Office Memorandum (Annexure 'C') made a discrimination by making provision for reservations in certain types of Class III and IV Services only and not in Class II and I Services, and the classification was discriminatory and there was no rational nexus sought to be achieved by the impugned Office Memorandum. The argument was also stressed that Art. 16 (4) was not an exception engrafted on Art. 16, but was in itself a fundamental right granted to Scheduled Castes and Scheduled Tribes and backward classes and as such it was untrammelled by any other provision of the Constitution. The petitioner accordingly prays for the grant of a writ in the nature of mandamus quashing the Office Memorandum (Annexure 'C') and directing respondent No. 1 to restore retrospectively the orders made in its Office Memoranda No. 2/11/55-RPS dated May 7, 1955 and No. 5/4/55-SCT-I dated January 4, 1957 and to consider the claim of the petitioner as member of the Scheduled Castes for promotion as Section Officer in the Railway Board Secretariat Service. Article 14 of the Constitution states : "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Article 15 provides : "(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) * * * * * (3) * * * * * *;