Judgment 1. In both these writ applications the constitutional validity of Sec. 5(v) of the Panchayat Samiti and Zila Parishads Act, as amended by Ordinance 117 of 1978 is under challenge. 2. The petitioner in CWJC 918/79 is the Mukhiya of Kharenda Gram Panchayat Raj within Bhagwanpur Block Panchayat Samiti in the district of Rehtas. On 23-2-1979 an election programme was published for the co-option of the members of the Panchayat Samiti. A number of persons filed nomination papers for co-option. On 17-3-79 an election was held and some of the candidates were chosen for co-option in respect of the various categories mentioned in Sec. 5(v) aforesaid. The petitioner challenges the Ordinance as already stated. At the time of admission the election of Pramukh and UpPramukh which was to be held was not stayed but it was directed that the election result should not be announced till the hearing of the stay matter. At the final hearing of the stay matter it was directed that the result shall not be announced until the disposal of the main writ application. 3. There are five petitioners in C.W.J.C. 813 of 1979. In this writ application the election of Pramukh of Panchayat Samiti of Saraiya Block in the district of Muzaffarpur is under challenge. It is also prayed that the co-option of members of the said block held on 3-3-1979 be declared ultra vires and unconstitutional. In this writ application also Sec. 5 of the Panchayat Samiti and Zila Parishands Act as amended by Ordinance 117 of 1978 has been challenged as void and unconstitutional. 4. Sri Prabha Shanker Mishra who appeared for the petitioner in C.W.J.C. No. 918/79, has contended that Sec. 6(v) is unconstitutional as it infringed right of the citizens guaranteed under Article 15 of the Constitution. It would first be appropriate to read Sec. 5(v) as amended : "The following persons shall be co-opted in the prescribed manner by the members mentioned in clause (1). xxx xxx xxx (d) One person residing in the Block from each of the following categories, if such persons are not members :- (i) Backward class (Annexure-1) (ii) Backward minorities" Backward class Annexure-I has been defined to mean those backward classes whose names are included in the list of backward class Annexure-1 for the time being in force as maintained by the State Government of Bihar in the Welfare Department. "Backward minorities" has been defined to mean "these castes of Muslims/Christian and other religious minorities whose names are included in the list of backward caste (Annexure-I and Annexure-II) for the time being in force as maintained by the State Government of Bihar in the Welfare Department. 5. The contention of the learned counsel for the petitioner is that Annexures-I and II, as noticed above, are based solely on caste and none of the considerations or criteria for determining social and educational backwardness were taken into account in drawing up the lists (which are Annexures 4 and 5 to the writ application). It was further contended that the onus was on the State Government to establish that the list aforesaid was drawn on the basis of social and educational backwardness. This onus has not been discharged. Consequently, the provisions aforesaid have to be declared unconstitutional. 6. Article 15 of the Constitution prohibits discrimination on the grounds only of religion, race, caste, sex or place of birth or arty of them. Article 15(1), and (4) are as follows :- "15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Xxx xxx xxx (4) Nothing in this Article or in cl.(2) of Art.29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes." 7. It is, therefore, not in dispute that there cannot be a classification only on the basis of caste. This was not even challenged by the State. But what was contended was that the caste may be a convenient way of describing socially and educationally backward class of citizens. Reference in this connection was made to the decision of the Supreme Court in P. Rajendra V/s. State of Madras, AIR 1968 SC 1412. In this case Shetat J. observed :- Therefore, reservation in favour of certain castes based only on caste considerations violates Art.15(1), which prohibits discrimination on the ground of caste only. Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4)." In State of Andh Pra V/s. U. S.V. Balaram, AIR 1972 SC 1375 , Vaidialingam, J. said :- "But one thing is clear that if an entire caste is, as a fact, found to be socially and educationally backward their inclusion in the list of Backward Classes by their caste name is not violative of Art. 15(4)." Reference may also be made to the .. decision in Triloki Nath Toka V/s. State of J. and K., AIR 1969 SC 1 where it was observed as follows :- "The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward, class, but that is not because they are members of a caste or community, but because they form a class." 8. These decisions make it clear that if the classifications are based only on he basis of caste that is not constitutionally permissible, but if a caste is socially and educationally backward it would be a convenient and proper way of describing the class of citizens which is backward by identifying it by its caste name, and the class so described shall be entitled to the constitutional protection under Art.15(4). In the instant case the assertion of the petitioner that the classification was on the basis of caste only has been denied in the counter affidavit that has been filed by the State. It has been stated in para 5 that the two Annexures are not on consideration of caste, but the basis was "caste-cum-social and educational backwardness". This is a clumsy way of saying that the basis is social and educationally backward, but the convenient way of describing the socially and educationally backward classes is by the name of the caste. It has been stated in para 5 that the two Annexures are not on consideration of caste, but the basis was "caste-cum-social and educational backwardness". This is a clumsy way of saying that the basis is social and educationally backward, but the convenient way of describing the socially and educationally backward classes is by the name of the caste. It is further stated that the list of such backward class of citizens had been prepared in the Welfare Department about 20 years back and the same is being acted upon. In our view, there is, thus, a clear and express denial that the basis on which the lists in question were drawn was not caste only. It was incumbent, in our view, on the petitioner to place materials to show that the assertion was not correct. This we are observing on the assumption that the onus to establish discrimination is on the petitioner. It would, therefore, be necessary to examine the argument of the learned counsel for the petitioner that the onus was on the State and not on the petitioner to show that the list that was prepared was of socially and educationally backward classes of citizen;. 9. Learned counsel for the petitioner placed reliance on the decision in State of Andh Pra V/s. P. Sagar, AIR 196A SC 1379. This decision stated that clause (4) of Art. 15 is an exception of clause (1) (page 1382 para 6). Learned counsel further placed reliance on the decision in State of U. P. V/s. Pradip Tandon, AIR 1975 SC 563 , where Ray, C. J. observed :- "The onus of proof is on the State to establish that the reservations are for socially and educationally backward classes of citizens." In State of Punjab V/s. Hira Lal, AIR 1971 SC 1777 , however, Hegde J. in the concluding portion of judgement said :- "There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of Art.18(1). Reservation of appointments under Art.18(4) cannot be struck down on hypothetical grounds or on imaginary possibilities. He who assails the reservation under that Article must satisfactorily establish that there has been a violation of Art.26(1)." We do not think that there can be any distinction in relation to this aspect of the matter so far as Arts. Reservation of appointments under Art.18(4) cannot be struck down on hypothetical grounds or on imaginary possibilities. He who assails the reservation under that Article must satisfactorily establish that there has been a violation of Art.26(1)." We do not think that there can be any distinction in relation to this aspect of the matter so far as Arts. 15 and 16 are concerned. The question of onus, however, has been considered in detail in the State of Kerala V/s. N.M. Thomas, AIR 1976 SC 490 which is a decision of seven Judges bench of the Supreme Court. Although this decision is in relation to Art, 18 of the Constitution, as already indicated, there would be no difference so far as this aspect of the matter is concerned whether the question arises with reference to Art.16 or Art.15. One of the questions under consideration in various judgements was whether Art.16(4) was an exception to Art.16(1), if it was onus would be on the State to establish that reservation was in conformity with the provision of the Constitution. Ray, C. J. observed :- "Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc. Art.16(4) clarifies and explains that classification on the basis of backwardness does not fall within Art.18(2) and is legitimate for the purpose of Art.18(1)". Mathew, J. stated his views in these words :- "I agree that Art.116(4) is capable of being interpreted as an exception to Art.16(1) if the equality of opportunity visualised in Art. 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of Scheduled Castes and Scheduled Tribes. If equality of opportunity guaranteed under Art.16(1) means effective material equality, then Art.16(4) is not an exception to Art.16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz. even up to the point of making reservation." Dealing with the aspect of the onus Beg, J. held that it was for the respondent to discharge the burden by establishing constitutionally unwarranted discrimination against him. His petition" said that learned Judge, "in my opinion, ought to have been dismissed on the ground that ho had failed to discharge the initial burden." Krishna Iyer, J. was also clear that Art.16(4) was not an exception to Art.18(1). His petition" said that learned Judge, "in my opinion, ought to have been dismissed on the ground that ho had failed to discharge the initial burden." Krishna Iyer, J. was also clear that Art.16(4) was not an exception to Art.18(1). He said :- "To my mind, this sub-article serve not as an exception but as an emphatic statement, one mode of reconciling the claims of backward people and the opportunity for free competition the forward Sections are ordinarily entitled." Fazal Ali, J. expressed himself thus :- "Thus clause (4) of Art, 18 deals exclusively with reservation and not other dorms of classification which can be made under Art.16(1) itself. Since clause (4) is a special provision regarding reservation, it can safely be held that it override Art.18(1) to that extent and no reservation can be made under Art.16(1). It is true that there are some authorities of this Court that clause (4) is an exception to Art.16(1) but with due respect I am not in a position to subscribe to this view for the reasons that I shall give hereafter." It was only Khanna, J. who in Thomass case took a contrary vies and observed :- "Clause (4) Art.16 has, therefore been construed as a proviso or exception to Cl.(1) of that article" A review of the various opinion in Thomass case- established, in our opinion, that Article 16(4) cannot be treated to be an exception to Article 26(1). In this view of the matter the initial onus was on the petitioner to establish that there has been a discrimination. The State affirmed that preparation at Annexures-1 and 2 was on the basis of social and educational backwardness. No material has been adduced in this case to show the assertion of the State is wrong of that on the basis of the records available in this case this assertion should not be accepted. We are, therefore, of the view that the petitioner has not been able to establish that Annexure-1 and 2 which have been referred to in Sec. 5(v) of the Ordinance have been prepared on the basis of caste only. We are, therefore, of the view that the petitioner has not been able to establish that Annexure-1 and 2 which have been referred to in Sec. 5(v) of the Ordinance have been prepared on the basis of caste only. We, however, like to observe that although we are holding that the petitioner has not been able to establish in this case that lists in question cannot be said to have been prepared on the basis at social and educational backwardness, it should not be understood that we are positively holding that all the classes or castes se mentioned therein do fulfil the constitutional requirement This is not a matter Which is in issue in this case and we do not, therefore, put our seal of approval on Annexure-1 or Annexure-2. This is a matter which, as indicated will have to be examined when it is properly raised in a case. It is, therefore, not possible to hold that there is any constitutional infirmity as suggested on behalf of the petitioner in C.W.J.C. 918/79. 10. In C.W.J.C. 813/79 two new contentions have been raised. It has been contended that co-option is permitted only in respect of caste or classes mentioned in Annexure-1. Although those mentioned in Annex.-II also belong to backward classes they have been deprived of the benefit conferred on those mentioned in Annexure-L. Thus there is a classification among the backward classes which is not constitutionally permissible. The other contention is that whereas co-option of backward minorities from both Annexure-I and Annexure-II is permitted, so far as rest of the citizens are concerned, their co-option is confined to Annexure-I. This too, it was claimed, was not constitutionally permissible. 11. So far as the second contention is concerned, it has not been raised in the main writ application. It has been raised by a supplementary affidavit that was sworn and filed on 9-4-1974. But before that date the counter-affidavit had been sworn on behalf of the respondents, although the actual filing in the court was later. The petitioners did not make any attempt to have the allegation in the supplementary affidavit incorporated in the main application. In the circumstances it cannot be held that the respondents were called upon to answer the contention raised in the supplementary affidavit. The second contention cannot, therefore, be considered in this writ application. 12. The petitioners did not make any attempt to have the allegation in the supplementary affidavit incorporated in the main application. In the circumstances it cannot be held that the respondents were called upon to answer the contention raised in the supplementary affidavit. The second contention cannot, therefore, be considered in this writ application. 12. So far as the first contention ,is concerned, the case of the State is that Annexure-1 contains lists of persons ho were more backward than those contained in Annexure-II although both he lists consist of members of backward classes. During the course of argument reference was made to the report of Backward Class Commission headed by Shi Mungeri Lal which was constituted in the year 1971 and submitted its report in the year 1976. This report has been, it was stated, accepted by the Personnel Department of Government of Bihar but has not yet been finally accepted by the Welfare Department. The reference was made to this report in order to justify that the list of backward class as drawn some 20 years earlier, still continues to be operative on the basis of circumstances prevailing at the tune of the preparation of the report. Be that as it, may, it is not necessary to express my opinion in relation thereto. The main thrust of the argument of the petitioners is that there cannot be a classification within a class. If I can say so with respect the answer to this contention is found in the observation of Mathew, J. in Thomass case, wherein it was stated :- "It is a mistake to assume a prior that there can be .no .classification within a class, say, the Lower Division Clerk. If there are intelligible different which separate a group within that lass from the rest and that different a have nexus with the object of classification, I see no objection to a further classification within the class." The contention of the State is that Annexure-I contains a list of members who are more backward than those in Annexure-II. The reason for giving with benefit of Annexure-I, it was contended is that in ordinary course it was not expected that members of Annexure-1 would be able to get elected through usual process. The reason for giving with benefit of Annexure-I, it was contended is that in ordinary course it was not expected that members of Annexure-1 would be able to get elected through usual process. So far as those contained in Annexure-II were concerned, they do not suffer from such a handicap or disability, it would thus appear that there is a rational basis or intelligible differentia which separates the members of backward class as contained in Annexure-I from those contained in Annexure-II. This differentia has a nexus with the object, namely, to see that those, who are backward, do get representation in local bodies. In the circumstances, we are of the view that there is no legal infirmity on account of the co-option being to those backward classes who mentioned in Annexure-I. Thus it is not possible to accept even first contention raised on behalf of the petitioners. 13 Learned Advocate General contended that since the impugned provision was conferring a benefit or privilege on a certain class, it could not be contended that the petitioners have been discriminated against. The argument is that whole a privilege is conferred on some persons or a class of persons, there cannot be any complaint that these on whom the benefit has been conferred have been especially picked out. This argument, in our view, is unacceptable, Equal protection means the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed by the law State of West Bengal V/s. Anwar Ali Sarkar, 1952 0 SCR 284 . Thus the extreme contention of the learned Advocate General cannot be accepted. 14. In the result these writ applications are dismissed but in the circumstances, there will be no order as to costs.