JUDGMENT V. Khalid, J. 1. There are two petitioners in this O.P. The first petitioner is a member of the Scheduled Caste. He was appointed on 1st January 1974 to the cadre of Section Officer, a gazetted post in the Law Department. Ext. P-1 dated, 24th September 1973 is the select list for promotion. In Ext. P-1 the first petitioner is shown as No. 4. The order of appointment of the first petitioner as Section Officer is, Ext. P-2. The feeder category for promotion as Section Officer is, Legal Assistant Grade I, The 2nd petitioner, who is the seniormost legal Assistant Grade I, is entitled to be promoted as Section Officer in the Law Department. 2. The State Government issued Ext. P-3 notification on 6th August 1970 for special recruitment of Scheduled Caste and Scheduled Tribe candidates. The 3rd respondent was selected by the Public Service Commission, to the post of Section Officer, by virtue of Ext. P-3 notification. The appointment of the first petitioner as per Ext. P-2 was subject to the condition that he will be reverted in case, there is no vacancy available in the Law Department as Section Officer, after accommodating the Scheduled Caste/ Scheduled Tribe candidate as advised by the Public Service Commission as Section Officer in the Law Department. The first petitioner contends that he is a regular promotee and he cannot be displaced by a Public Service Commission candidate. He challenges the condition imposed in Ext. P-2. Both the petitioners challenge Ext. P-3 notification by the Government as violative of Article 16 (1) and 16 (4) of the Constitution of India. 3. Both the State Government and the 3rd respondent have filed counter-affidavits in this case. The appointment of the 3rd respondent has been stayed as per order in C.M. P. No. 411 of 1974. 4. The contention of the State Government is that the first petitioner cannot question Ext. P-2, which is his appointment order, since he should be deemed to have accepted Ext. P-2 in to to and therefore the condition imposed cannot be made the subject-matter of challenge by him. Ext. 4. The contention of the State Government is that the first petitioner cannot question Ext. P-2, which is his appointment order, since he should be deemed to have accepted Ext. P-2 in to to and therefore the condition imposed cannot be made the subject-matter of challenge by him. Ext. P-3 is also not open to challenge inasmuch as it is consistent with rule 17A of the Kerala State and Subordinate Service Rules hereinafter referred to as K.S.S.R., and in conformity with rule 14A of the K.S.S.R. It is also contended that there is no violation of either Article 16 (1) or 16 (4) of the Constitution. The 3rd respondent has adopted the contentions of the State. 5. Two questions arise for decision in this case. The first is, whether the first petitioner is bound by the condition imposed by Ext. P-2. This contention is based on the plea that his promotion was on a regular basis and was neither under rule 9 nor under rule 31 of the K.S.S.R. and hence he cannot be displaced by a Public Service Commission candidate, because rule 27 C of K.S.S.R. can apply only between P.S.C. advises inter se and not between a regular promotee and P.S.C. advisee. The second contention is that Ext. P-3 violates Article 16 (1) and 16 (4). Article 16 (4) enables the State to make provision for reservation of appointments or posts in favour of Backward Classes, if, in the opinion of the State, such classes are not adequately represented in the services of the State. The contention is that Ext. P-3 creates reservation before ascertaining the actual reservation of Scheduled Caste candidates in the service. 6. Rule 17-A of K. S. S. R. reads as follows: "Notwithstanding anything contained in these rules or in the special rules the State Government may reserve a specified number of posts in any service, class, category or grade to be filled by direct recruitment exclusively from among the members of Scheduled Castes and Scheduled Tribes." According to this rule, therefore the Government can reserve a specified number of posts to be filled by direct recruitment from among the members of Scheduled Castes and Scheduled Tribes. Ext. P-3 is dated 6th August 1970. Ext. P-3 is dated 6th August 1970. It states that the Government have reviewed the opportunities now provided to the members of the Scheduled Castes and Scheduled Tribes in the matter of appointment to public service and issued an order for a detailed evaluation of the backlog in representation of the Scheduled Castes and Scheduled Tribes in Government service from 1950 onwards and directed recruitment of Scheduled Caste candidates pending such evaluation. It contains a proviso that by special recruitment of Scheduled Caste and Scheduled Tribe candidates, the number should not in each category exceed the percentages fixed for them under the rules. The rule in view is obviously rule 14 K.S.S.R. Ext. X-1 produced by the 3rd respondent shows that in the gazetted category, there is only a representation of 2:1 per cent of Scheduled Castes and Scheduled Tribes and in the non-gazetted category it is only 7 per cent. According to the 3rd respondent, they are entitled to 10 per cent according to the population. Ext. P-3 provides only for one gazetted post each, in departments where the total number of posts is less than 100 and one per cent of the gazetted posts in other departments. Pursuant to Ext. P-3, the Government issued Ext. R-1, for advice by the Public Service Commission. Ext. R-1 is dated 12th January 1973. Ext. P-3 is the second paper referred to in Ext. R-1. The Law Department and the Finance Department were obviously addressed and necessary details were collected. The Public Service Commission gave advice on 22nd December 1973 where by the 3rd respondent was selected. The delay caused in the Governmental machinery moving from 6th August 1970 till the date of advice on 22nd December 1973, cannot be visited with adverse consequences on the 3rd respondent. 7. It was not in recognition of any right in the first petitioner that he was promoted on 24th September 1973. Ext. P-2 order itself makes it clear that his appointment as a Language Assistant is to a temporary addition to the category of Section Officer in the Law Department. This makes it clear that his was not a regular promotion as Section Officer in the Law Department. The Government were moving in getting the Public Service Commission candidate appointed pursuant to their decision as per Ext. P-3. This makes it clear that his was not a regular promotion as Section Officer in the Law Department. The Government were moving in getting the Public Service Commission candidate appointed pursuant to their decision as per Ext. P-3. In the meantime, they wanted to accommodate the first petitioner and it was for this purpose that an additional post was created temporarily and the first petitioner was appointed to that post. The first petitioner therefore should have understood that his appointment was subject to the condition contained in Ext. P-2 for very obvious reasons. The first petitioner cannot now complain that the condition imposed in Ext. P-2 should be quashed. 8. The further contention is that rule 27-C K.S.S.R. cannot apply to his case since he is not a Public Service Commission candidate. I do not think it is necessary to consider this question since the first petitioner cannot claim any right to the said post, by virtue of Ext. P-2 as it was created temporarily only to accommodate the petitioner No. 1 till an appointment, of the Public Service Commission candidate is made. 9. Nor can the first petitioner contend that he is a person aggrieved, since, by subsequent appointments of Section Officers, he is continuing as such. His grievance therefore is more imaginary than real. Of course, his contention is that by virtue of Ext. P-2 he will lose his seniority and that the 3rd respondent will go above him. For reasons indicated above, this objection cannot be countenanced in this case. 10. The attack is also belated. Ext.R-1 by which advice was sought from the Public Service Commission is dated 12th January 1973. This writ petition is filed only on 8th January 1974. In fact, the first petitioner should have questioned the case immediately he came to know of Ext. R-1. This delay without any proper explanation is also against the petitioner. 11. Both the petitioners attack Ext. P-3 on the ground that it is violative of Article 16(1) and 16 (4) of the Constitution; 16 (1) inasmuch as it denies to them equal opportunity in service and 16 (4) inasmuch as Ext. P-3 was issued without ascertaining the adequacy or otherwise of the representation of the Scheduled Castes and Scheduled Tribes in the category of posts. Both these contentions have to fail for reasons which follow. Firstly, Ext. P-3 was issued without ascertaining the adequacy or otherwise of the representation of the Scheduled Castes and Scheduled Tribes in the category of posts. Both these contentions have to fail for reasons which follow. Firstly, Ext. P-3 is dated 6th August 1970 and it is being questioned in 1974. One looks in vain into the pleadings and averments in the petition to know why this inordinate delay was occasioned, or for finding reasons, for condonation of such delay. This writ petition should be rejected on that sole ground. Be that as it may, even on merits the contention cannot be accepted. Ext. P-3 provides only for one post where there are less than 100 numbers of posts and one per cent where it is more than 100. This is an alarmingly low figure. The argument that Ext. P-3 violates Article 16 (1) and 16 (4) is without substance. If anything, the argument does violence to the concept of representation which Article 16 (4) embodies and Rule 17A enacts. There are enough materials in this case to show that the Government were satisfied about the inadequacy of representation for this category of posts. 12. The learned counsel for the petitioner invited my attention to the decision reported in Devadasan v. Union of India A.I.R. 1964 S.C. 179. He relies upon the following observations: "We would like to emphasise that the guarantee contained in Article 16 (1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. Further, this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to clause (1). Further, this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to clause (1). A proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under clause (4) would in effect efface the guarantee contained in clause (1) or at best make it illusory." I am afraid the principle enunciated in this case cannot be applied to the case on hand. There, the Supreme Court was considering the carry-forward rule and warned against undue representation being given to members of Scheduled Castes and Scheduled Tribes by the carryforward rule to make the equality provisions contained in Article 16 (1) nugatory and illusory. The Supreme Court had in mind the preservation of efficiency in civil services and not to destroy its efficiency by undue representation by resort to Article 16 (4). Therefore, it was observed in the particular circumstances of that case that the question of reservation has to be taken into account for each year. That case therefore cannot be applied to support the petitioner. In fact, when the petitioner complained about undue representation to the Scheduled Castes and Scheduled Tribes, he had to discharge the burden of proof by making available necessary details to substantiate that Ext. P-3 is unacceptable. In State of Punjab v. Hira Lai A.I.R. 1971 S.C. 1777 at p. 1780 it is observed as follows: "The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review. The reservation must be only for the purpose of giving adequate representation in the servives to the Scheduled Castes, Scheduled Tribes and Backward Classes. The exception provided in Article 16 (4) should not make, the rule embodied in Article 16(1) meaningless. But the burden of establishing that a particular reservation made by the State is offensive to Article 16 (1) is on the person who takes the plea. The mere fact that the reservation made may give extensive benefits to some, of the persons who have the benefits of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered. The mere fact that the reservation made may give extensive benefits to some, of the persons who have the benefits of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered. As observed by the majority in Rangachari's case [1962 (2) S. C.R. 586]: 'The condition precedent for the exercise of the powers conferred by Article 16 (4) is that the State ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression 'adequately represented' imports 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. It is thus by the operation of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service has to be judged; and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such posts may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively. It is true that every reservation under Article 16 (4) does introduce an element of discrimination particularly when the question of promotion arises. It is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors. This circumstance is bound to displease the senior officers. It is true that every reservation under Article 16 (4) does introduce an element of discrimination particularly when the question of promotion arises. It is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors. This circumstance is bound to displease the senior officers. It may also be that some of them will get frustrated but then the Constitution-makers have thought fit in the interests of the society as a whole that the backward class of citizens of this country should be afforded certain protection as observed by this Court in A. Peeriakaruppan, etc. v. State of Tamil Nadu (A.I.R. 1971 N. S.C. 171). It cannot be denied that unaided many sections of this country cannot compete with the advanced sections of the Nation. Advantages secured due to historical reasons should not be considered as fundamental rights. Nation's interest will be best served taking a long range view if the backward classes are helped to march forward and take their place in line with the advanced sections of the people'." 13. In the absence of any materials produced by the petitioners in this case and having failed to discharge the burden that Ext. P-3 is opposed to law, they cannot question Ext. P-3 in this case. 14. It is stated in paragraph 4 of the counter-affidavit filed by the 3rd respondent that there are 16 places of Section Officers in the Law Department, and that the two petitioners are already posted as Section Officers. Three other persons have also been promoted after the petitioners and other vacancies are shortly to arise. The 3rd respondent's appointment is blocked by the order of stay by this Court. The grievance of the petitioners is not therefore correct. To the same effect is the pleadings of the counter affidavit filed by the State. After the appointment of the 3rd respondent, she has to go for training for six weeks and she will be absorbed only after such training. I have indicated this only to highlight the point that the petitioners are not at present aggrieved by the appointment of the 3rd respondent, since there is no possibility of reversion for the petitioners now or in the near future. All the contentions the petitioners fail and therefore the writ petition fails. In the result, the writ petition is dismissed. I have indicated this only to highlight the point that the petitioners are not at present aggrieved by the appointment of the 3rd respondent, since there is no possibility of reversion for the petitioners now or in the near future. All the contentions the petitioners fail and therefore the writ petition fails. In the result, the writ petition is dismissed. There will be no order as to costs.