Judgment LENTIN B., J.:­­ - These petitions are filed by certain Inspectors of Police. They question the validity and/or interpretation of Government Resolutions making reservations for Scheduled Castes (S.Cs.), Scheduled Tribes (S.Ts.) and Denotified Tribes/Normadic Tribes (Dts/Nts) in the category of Inspectors of Police and promotion from that category to that of Assistant Commissioners of Police in the Greater Bombay Police Force. Common questions of law arise. A common judgment. 2. Hereunder a broad outline of the Government Resolutions: (A) Government Resolution dt. 23rd May, 1974 provides for the reservation of 13% in favour of S.Cs. and S.C. converts to Budhism, 7% in favour of S.Ts. and 4% in favour of D.Ts./N.Ts. in promotions made on the basis of seniority subject to fitness in appointments to all Class I, II, III and IV posts in grades or services in which the element of direct recruitment, if any does not exceed 50%. The Resolution provides for the maintenance of a roster and the procedure to be followed for promotion in respect of vacancies expected to arise during a year. (B) Government Resolution dt. 23rd May, 1974 was partially modified by Government Resolution dt. 31st July, 1976 whereby the percentage of direct recruitment was raised from 50% as not to exceed 662/3%. (C) By Government Resolution dt. 2nd March, 1977 certain supplementary instructions were issued pertaining to the accurate estimation of vacancies likely to arise in the next year, and the continuation of the select list with the direction that the names from the next year's list should be utilised only after the earlier list was exhausted. (D) Government Resolution dt. 19th March, 1979 directed that when any reversion was to be effected, members of the Backward Classes already in service should not be reverted if their strength in the promotion cadre did not exceed the prescribed percentage of reservation. (E) Government Resolution dt. 25th February, 1980 directed that if Government servants belonging to any of the 3 of Backward Classes, viz. S.C., S.T. and D.T./N.T., are not available for the reserved vacancies, then the Government servants belonging to other categories of the Backward Classes should be considered for promotion but only up to their quota. (E) Government Resolution dt. 25th February, 1980 directed that if Government servants belonging to any of the 3 of Backward Classes, viz. S.C., S.T. and D.T./N.T., are not available for the reserved vacancies, then the Government servants belonging to other categories of the Backward Classes should be considered for promotion but only up to their quota. If Government servants belonging to any of the S.C. categories of Backward Classes are not available, then the vacancies should be kept vacant for 3 recruitment years and under no circumstances should they be filed by promoting non-Backward Class persons. 3. Hereunder Article 16(1), (2) and (4) of the Constitution :- “16(1). There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for , or discriminated against in respect of any employment or office under the State. (4) Nothing in this article shall 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 the State.” 4. The petitioners' learned Counsel Mr. Seervai asserts that Article 16(4) is an exception of Article 16(1) and (2). It confers a discretionary power on Government and no right is conferred on any person to reservation of posts. The condition precedent to the exercise of that power is that Government should form a particular opinion, viz. that a Backward Class (Which includes S.Cs. and S.Ts.) is not adequately represented in the services under the State. The discretionary power to make reservations is not an end in itself but merely a means to an end, viz. to secure adequate representation for members of Backward Classes, (State of Punjab v. Hira Lal)1, A.I.R. 1971 S.C. 1777. Article 16(4) speaks of adequate representation and unlike Article 15(4) does not confer a bounty on the Scheduled Classes because of the injustices and ill-treatment of the past. The relevant touchstone of validity is “to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it (State of Kerala v. N.M. Thomas)2, A.I.R. 1976 S.C. 490 : 1976 Lab.I.C. 395. The relevant touchstone of validity is “to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it (State of Kerala v. N.M. Thomas)2, A.I.R. 1976 S.C. 490 : 1976 Lab.I.C. 395. Once that opinion is formed, the reservation of appointments and posts can be made for achieving “adequate” representation. In the present case the opinion formed by Government is that S.C., S.T., D.T./NT would be adequately represented in Government service if they hold 13%, 7% and 4% posts. Any Government Resolution doubling these percentages would be contrary to the formation of the above opinion and would ex facie be void as regards the excess. Once an order is passed by the State under Article 16(4) that a particular percentage of reservation is necessary to make the representation in the service of the State adequate, it is not open to the State, either directly or indirectly by devising a procedure for making reservations, to increase that percentage of representation except where the percentage of backward class to the population has increased. Where reservation is prescribed for distinct categories of backward classes, each class is a unit by itself and reservation for that class cannot be increased by adding in it unfilled reservation for another distinct class. 5. In emphasising that Article 16(4) is an exception to Article 16(1), Mr. Seervai places reliance on the observations of the Supreme Court in (General Manager, S. Rly v. Rangachari)3, A.I.R. 1962 S.C. 36, (M.R. Balaji v. State of Mysore)4, A.I.R. 1963 S.C. 649, (T. Devadasan v. Union of India)5, A.I.R. 1964 S.C. 179, (C.A. Rajendran v. Union of India)6, A.I.R. 1968 S.C. 513, State of Punjab v. Hira Lal, A.I.R. 1971 S.C. 1777. 6. Mr. Seervai says that for the sake of argument, even assuming Article 16(4) is not an exception to Article 16(1), the violation of the limitation imposed by the condition precedent to the exercise of power under Article 16(4) would render the implementation of the roster invalid to the extent that the reservations exceed the limits prescribed by the Resolution. 7. On the other hand, Government's learned Counsel Mr. 7. On the other hand, Government's learned Counsel Mr. Singhvi urges that Article 16(4) is not an exception to Article 16(1) but is a legislative device to say emphatically that what is contained in the proviso is not limited by what is stated in the main provision but falls outside it, State of Kerala v. N.M. Thomas, A.I.R. 1976 S.C. 490 : 1976 Lab.I.C. 395. 8. It appears that in none of the cases relied on by learned Counsel was this question directly in issue before the Supreme Court. Be that as it may, we shall proceed on the footing that Article 16(4) is an exception to Article 16(1) and shall accordingly interpret the impugned Resolutions. 9. At the very outset, with his habitual fairness, Mr. Seervai made it clear that though in the petition a ground had been taken that Articles 16 and 14 of the Constitution forbid reservation at the promotional stage, he does not propose to canvass before us anything of the kind. Mr. Seervai does not dispute that (a) S.C., S.T. and D.T./N.T. are Backward Classes; (b) they require protection; (c) protection is given to them by making reservation; (d) the best way to do so is on population basis which Government Resolution dated 23rd May, 1974 has done; (e) the reservation fixed at 13%, 7% and 4% (24%) for S.C., S.T. and D.T./N.T. respectively cannot be said to be excessive. 10. Mr. Seervai therefore does not invite us to strike down the impugned Resolutions but says that the Resolutions and Roster must be so interpreted as to limit the operation to the percentage fixed for each category separately to the percentage laid down in the Resolution. Mr. Seervai's grievance is that no less than 2000 officers of the rank of Inspectors and Sub-Inspectors belonging to the General Category are being grossly discriminated against by reason of Government making unconstitutional arbitrary and excessive reservations in favour of members belonging to S.C., S.T. and D.T./N.T. Mr. Seervai says that since the population basis has been adopted, each category of S.C., S.T., D.T./N.T. is a distinct category and adequacy of representation must be ascertained with respect to each category separately. According to Mr. Seervai, having formed an opinion that 13% representation of S.Cs. in the cadre of A.C.Ps. Seervai says that since the population basis has been adopted, each category of S.C., S.T., D.T./N.T. is a distinct category and adequacy of representation must be ascertained with respect to each category separately. According to Mr. Seervai, having formed an opinion that 13% representation of S.Cs. in the cadre of A.C.Ps. will make the representation adequate, Government has no power to increase that percentage of 13 (except marginally) much less double it, because of oppression of S.Cs. in the past or for any other reason. Mr. Seervai relies on the statement and figures given in Government's affidavit-in-reply as under :- “I say the number of persons belonging to backward classes who are already holding the post of A.C.Ps. is as follows: S.C. S.T. D.T./N.T. TOTAL 17 1 5 23” Percentage-wise this comes to S.C. 24.6%, S.T. 1.4%, D.T./N.T. 7.2%, Total 33.33%. Mr. Seervai says that thus on Government's own showing the aggregate percentage of 33.33% exceeds the aggregate of 24% fixed by the impugned Resolution; hence is excessive and arbitrary. According to learned Counsel, arbitrariness is manifest from the fact that though indisputably the percentage of 24 fixed by the Resolution is on the ratio of the overall population of these Backward Classes to the population of the State, there is no warrant to increase the percentage of 24 to 33.33 % unless it is shown that the proportion of the population of these Backward Classes in the State has correspondingly increased. 11. Mr. Seervai Advocates that the Resolution and Roster must be so operated that on 13% reservation being reached, the Roster must be suspended pro tanto till vacancies in the reserved seats arise. The Roster is not an end in itself but a means to an end and once that end is achieved, the application of the roster must be stopped pro tempore for the concerned category and be revived when the need to make the representation adequate arises in that category. Mr. Seervai says that the roster must be so worked as to keep in view the total strength of the cadre and the representation of each total class in the cadre. As soon as it is found that the representation of a particular backward class has reached the desired level of adequate representation, the operation of the roster must be suspended in respect of that class. As soon as it is found that the representation of a particular backward class has reached the desired level of adequate representation, the operation of the roster must be suspended in respect of that class. This will prevent the impermissible advantage of accelerated promotion given to the officers coming from the backward classes without their suffering any disadvantage. The suspension of the roster would only mean that such officers would have to wait their turn and not jump over officers from the general category. Mr. Seervai says that the Supreme Court has held that broadly speaking reservation ought not to exceed 49%; therefore broadly speaking the reservation for backward classes which include S.Cs. and S.Ts. cannot ordinarily exceed 49%. This proposition only means that if on the basis of population of one or more backward class 49% of reservation is required for making representation of those classes adequate, the Constitution permits such reservation. However it is not relevant where the State has formed an opinion, as for example, in this case, that 24% reservation is necessary to make the representation of those classes in the service adequate. 12. Mr. Seervai assails a distinction between “vacancy” and “posts”. In Concise Oxford Dictionary (1982 Edition) 'vacancy' is defined as under:- “Vacancy'.. Being vacant or empty or unoccupied; emptiness of mind, idleness, listlessness; unoccupied post or place (has a vacancy in his staff; no vacancies at present in this hotel).” In Black's Law Dictionary (5th Edition), 'vacancy' is defined as under:- “'Vacancy'. A place or position which is empty, unfilled or unoccupied. An unoccupied or unfilled post, position, or office. An existing office, etc., without an incumbent. The state of being destitute of an incumbent, or a proper or legally qualified officer. The term is principally applied to an interruption in the incumbency of an office, or to cases where the office is not occupied by one who has a legal right to hold it and to exercise the rights and perform the duties pertaining thereto. The word 'vacancy' when applied to official positions, means, in its ordinary and popular sense, that an office is unoccupied, and that there is no incumbent who has a lawful right to continue therein until the happening of a future event, though the word is sometimes used with reference to an office temporarily filled.” Mr. The word 'vacancy' when applied to official positions, means, in its ordinary and popular sense, that an office is unoccupied, and that there is no incumbent who has a lawful right to continue therein until the happening of a future event, though the word is sometimes used with reference to an office temporarily filled.” Mr. Seervai therefore says that though the Resolution dated 23rd May, 1974 permits appointments to posts, what in fact is done is also to make appointments in vacancies, resulting in excessive reservation contrary to what the Resolution itself provides for. 13. At this stage the various clauses of the impugned Resolution must be analysed. After providing for reservation at 13%, 7% and 4% for S.C., S.T. and D.T./N.T. respectively, aggregating to 24%, Clause 2 of the Resolution provides for the Departmental Promotion Committee taking a decision on the fitness or unfitness of an officer. The Departments are required to decide on the composition of the D.P.C. having regard to the nature of the post/posts for which promotion is to be made. While referring proposals to the D.P.C. for promotion on the basis of seniority subject to fitness in respect of vacancies expected to arise during a year; the following procedure is laid down, to wit :- (i) At separate 50 point roster as appended to the Resolution, to determine the number of reserved vacancies in a year should be followed. The points mentioned in the roster are to be reserved for the Scheduled Castes and Scheduled Castes converted to Budhism, Scheduled Tribes and Denotified Tribes and Nomadic Tribes. The points in the roster are only for determining the number of vacancies to be reserved for these categories in the total number of vacancies for which a select list is to be drawn. (ii) Whenever according to the points in the roster there are any vacancies reserved for each of 3 classes, separate lists should be drawn up of the eligible candidates from each of these categories and arrange in order to inter se seniority in the main list. (iii) After the preparation of the select lists of the officers in the general category and those belonging to the 3 reserved classes, these should be merged into a combined select list with the names of all the selected officers arranged in the order of their inter se seniority. (iii) After the preparation of the select lists of the officers in the general category and those belonging to the 3 reserved classes, these should be merged into a combined select list with the names of all the selected officers arranged in the order of their inter se seniority. This combined select list should thereafter be followed for making promotions in vacancies as and when they arise during the year. (iv) The select list would normally operate for 1 year, subject to an extension of 6 months so as to enable such of the officers included in the select list, as could not be appointed to the higher posts during the normal period of 1 year, to be appointed during the extended period. (v) If the number of eligible candidates belonging to the 3 section of Backward Classes found fit for promotion, falls short of the number of vacancies reserved for either of them during the year, such shortfall should be reported to the General Administrative Department with proposals, if any, for dereservation of vacancies in respect of which the shortfall has occurred. The vacancy dereserved, should be carried forward for he subsequent 3 recruitment years. 14. (After reproducing the Model Roster; statement showing the vacancies in the cadre of Dy.S.P./A.C.P. filled after issue of G.R., G.A.D. No. B.C.C. 1072-J dated 23rd May, 1974, and the statement showing number of vacancies in the cadre of Assistant Commissioner of Police filled during the period 23rd May, 1984 to 30th December, 1983, Judgment proceeds). 15-16. X X X X X 17. The latest figures as on 1st January, 1982 given by Deputy Secretary Ratnaparkhi in his affidavit-in-reply are as under:- Number of employees actually in service: -------------------------------------------------------------------------------------------------------- Total S.Cs. S.Ts. D.Ts./N.Ts. -------------------------------------------------------------------------------------------------------- Cl. I 7210 433 131 119 (6.0%) (1.81%) (1.65%) 9.46% Cl. II 17098 1453 437 402 4.49% (2.55%) (2.35%) 9.39% Cl. III 286556 38872 14782 11191 13.56% (5.15%) (3.90%) 22.61% Cl. IV 84476 19697 5585 3036 (23.11%) (6.61%) (3.59%) 33.31% -------------------------------------------------------------------------------------------------------- Except S.Cs. in Class IV category, the percentages shown in parenthesis are far below the 13%, 7% and 4% prescribed by the impugned Resolution. These figures and percentages cannot be dismissed as of no relevance as attempted by the petitioners on the ground that they pertain to all the Government services in the State. in Class IV category, the percentages shown in parenthesis are far below the 13%, 7% and 4% prescribed by the impugned Resolution. These figures and percentages cannot be dismissed as of no relevance as attempted by the petitioners on the ground that they pertain to all the Government services in the State. The fallacy of such a stand is that the impugned Resolution lays down reservation norms nor for a particular service list for all Government services in the State, to lay down different norms for different services would result in chaos. 18. Yet this is exactly what Mr. Seervai says should be done. He says that the police force is something special, intended as it is for the maintenance of law and order; hence for the higher officers different norms must be laid down for reservation. Adequacy of representation must be determined with reference to each cadre separately, for instance in the present case with reference to the cadre of A.C.Ps. in Greater Bombay and not the totality of cadres which constitute Class I services under the State of Maharashtra. Different cadres cannot be treated as though they are one. For instance, says Mr. Seervai, you cannot club together different Class I cadre in the Forest Department and other services such as Medical Service, Educational Service, Agricultural Service and the like. Reliance is placed on (All India Station Masters v. General Manager, Central Railways)7, A.I.R. 1960 S.C. 384. In that case the road-side station masters claimed equality of opportunity for promotion vis-a-vis the guards on the ground that they were entitled to equality of opportunity. It was held that a road-side station masters and guards were recruited separately and formed two separate and distinct classes, there was no scope for predicating equality or inequality of opportunity it matters of promotion. Mr. Seervai also relies on C.A. Rajendran v. Union of India, A.I.R. 1968 S.C. 507 where it was held equality of opportunity guaranteed by Article 16(1) means equality as between members of the same class of employees and not equality between members of separate independent classes. 19. In these submissions there is a basis fallacy. The reliance on these decisions is misplaced. Even though different services may have their own nuances, indisputably all services are equally important, viewed as they must in the context of society at large for whose welfare and benefit each service is intended. 19. In these submissions there is a basis fallacy. The reliance on these decisions is misplaced. Even though different services may have their own nuances, indisputably all services are equally important, viewed as they must in the context of society at large for whose welfare and benefit each service is intended. To assail a distinction between the speciality and importance of each services would be a mistake; it would be an exercise leading to discrimination between one service and another, resulting in chaos. Hence Government has rightly prescribed reservation norms not for a particular service or services but for all services in the State. It is the over-all picture that must be seen. (A.B.S.K. Sangh v. Union of India)8 A.I.R. 1981 S.C. 298 : 1980 Lab.I.C. 1325. And that is exactly what Government has done. 20. Coming to Mr. Seervai's remaining submissions, to start with, the detailed procedure laid down in the Resolution makes it clear that it would be a mistake to say that the Resolution provides for appointments only to posts and not to vacancies arising from the posts. Article 16(4) speaks of provisions for reservation, appointments or posts in favour of a Backward Class of citizens which, in the opinion of the State, is not adequately represented in the State services. The Resolution in terms provides for promotions to Class I, II, III and IV posts in grades or services, that is in appointments to vacancies arising from time to time in the posts in grades or services. The word “promotion” must be given its due and natural meaning. A post may be newly created or may become available by reason of a vacancy, in which event an appointment must be to a vacant post and must arise in a vacancy. Vacancy must be qua a post. Appointments can be made by promotion only when posts fall vacant, that is when vacancies arise Para 2 of the Resolution specifically provides that while filling vacancies expected to arise during a year, the procedure laid down in Clauses (1) to (6) should be followed. These clauses speak of filling in vacancies by resorting to a separate 50 point roster to determine the number of reserved vacancies in a year. The question of promotion would arise only on a post falling vacant and in order to fill in that vacancy the roster has been devised. These clauses speak of filling in vacancies by resorting to a separate 50 point roster to determine the number of reserved vacancies in a year. The question of promotion would arise only on a post falling vacant and in order to fill in that vacancy the roster has been devised. If reservation is to apply to posts in grades or cadres, then it would not be necessary to have a roster because any reserved post falling vacant could straightaway have been filled by the candidate in the reserved category. The very object behind the Resolution and roster is that as and when any vacancy in promotional posts arises, it should be filled in with reference to the Resolution and the roster in order to achieve the object of adequate representation to the backward classes. The Booklet issue by Government entitled “Reservation and Other Concessions in Government Service for Backward Classes”, shows that the policy adopted for reservation of posts in various services and cadres is to allot a certain percentage to vacancies accruing in the respective services and cadres. 21. In M.R. Balaji v. State of Mysore, A.I.R. 1963 S.C. 649, while striking down as unconstitutional Government's order by which 68% of the seats in educational institutions were reserved for S.C., S.T. and other educationally and socially backward classes on the ground of excessive reservation as a fraud on the Constitution, the Supreme Court observed : “Speaking generally and in a broad way, a special provision should be less than 50%; how much less then 50% would depend upon the relevant prevailing circumstances in each caste”. The percentage of reserved seats must be left to the discretion of the appropriate Government. 22. The impugned Resolution is on the same lines as another Resolution dated 13th September, 1950 where the 3 year carry forward rule was challenged before the Supreme Court in T. Devadasan v. Union of India, A.I.R. 1964 S.C. 179. The U.P.S.C. had issued a Notification on 6th February, 1960 for holding a limited competitive examination for promotion to the regular temporary establishment of Asstt. Suptd. of the Central Secretariat Service. The Notification provided for a reservation of 17½% of vacancies for members of the S.Cs. and 5% for members of the S.Ts. The result was announced by the U.P.S.C. Sixteen candidates were recommended for appointment in the unreserved vacancies and 25 candidates in the reserved vacancies. Suptd. of the Central Secretariat Service. The Notification provided for a reservation of 17½% of vacancies for members of the S.Cs. and 5% for members of the S.Ts. The result was announced by the U.P.S.C. Sixteen candidates were recommended for appointment in the unreserved vacancies and 25 candidates in the reserved vacancies. Subsequently U.P.S.C. recommended 2 more candidates from the S.Cs./S.Ts. The number of vacancies expected to be filled was stated to be 48 out of which 16 were unreserved and the remaining 32 reserved though in fact the U.P.S.C. recommended the names of only 30 candidates for the latter class of vacancies. Government made only 45 appointments out of which 29 were from among the candidates belonging to the Scheduled Castes and Tribes. It was the petitioner's grievance that while he had secured 61% marks in the examination, the percentage of marks secured by some of the 29 candidates from the Scheduled Castes and Tribes was as low as 35%. The petition's grievance was that the reservation actually made came to 65% which was far in excess of that set out in the Notification dated 6th February, 1960 of the U.P.S.C. pursuant to which the competitive examination was held. Had the reservation been limited to 17½%, as stated in the Notification, only 8 vacancies would have gone to the members of the Scheduled Castes and Tribes and the rest to the other candidates according to their merit. The Union of India and the U.P.S.C. sought to justify their action by relying on “the carry forward rule” which was permitted for 3 years by Government Resolution dated 13th September, 1950 as modified by Suppl. Instructions dated 28th January, 1952 and Office Memorandum dated 7th May, 1955. Thereby the reservation in the last year came to over 50%. The Supreme Court interpreted the Resolution to mean filling in of vacancies reserved for Backward Class by resort to a roster. Approving the roster system it was told that the carry forward rule was an integral part of the roster system, though no more than 50% vacancies should go to the reserved categories. The reservation of more than half of the seats for being filled from members of backward classes is unconstitutional. Approving the roster system it was told that the carry forward rule was an integral part of the roster system, though no more than 50% vacancies should go to the reserved categories. The reservation of more than half of the seats for being filled from members of backward classes is unconstitutional. At page 187 A.I.R. 1964 S.C. 179 (para 15) of the Report it was observed that on every occasion when vacancies arise, a certain percentage of vacancies can be reserved for Backward Classes but normally not more than 50% of the vacancies. In para 18 of the Report it was observed that the Government Resolution did not contemplate reservation of any posts in the service cadre but merely provided for reservation of vacancies; even if Government had provided for the reservation of posts for S.C. and S.T. and cent per cent reservation of vacancies to be filled in a particular year on reservation of vacancies in excess of 50% would, according to the decision in Balaji's case, A.I.R. 1963 S.C. 649, not be constitutional. 23. In State of Punjab v. Hari Lal, A.I.R. 1971 S.C. 1777, the roster system was introduced to fill up the vacancies. The Supreme Court accepted the reservation and in para observed as under:- “.....The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends on the gap to be covered.” 24. In (A.R. Choudhury v. Union of India)9, A.I.R. 1974 S.C. 532 : 1974 Lab.I.C. 393, in compliance with the decision in Devadasan's case, the Ministry of Home Affairs issued a Memorandum modifying the carry forward rule by providing that “in any recruitment year, the number of normal reserved vacancies and “the carried forward” reserved vacancies together shall not exceed 45% of the total number of vacancies”. Nevertheless, “if there by only two vacancies, one of them may be treated as a reserved vacancy. But it there be only one vacancy, it shall be treated as unreserved..... Nevertheless, “if there by only two vacancies, one of them may be treated as a reserved vacancy. But it there be only one vacancy, it shall be treated as unreserved..... The surplus above 45% shall be carried forward to the subsequent year of recruitment, subject however to the condition that the particular vacancies carried forward do not become time barred due to their becoming more than two years old.” The Railway Board prepared a model roster signifying the turns of reserved and unreserved vacancies. Under the roster 12.5% of the vacancies were reserved for Scheduled Castes at 5% for Scheduled Tribes. The Note appended to the roster provided for the carry forward of a reserved vacancy being treated as unreserved in the subsequent two recruitment years. The carry forward rule was upheld. Reiterating the principle laid down in Devadasan's case, A.I.R. 1964 S.C. 179 it was observed as under:- “....Though each year of recruitment was to be treated separately and by itself, a reserved vacancy had to be carried forward over 2 years, if it was not filled in by the appointment of a reserved candidate.... If the carry forward rule had to be given any meaning, the vacancy had to be carried forward for the benefit of Scheduled Castes and Schedule Tribes until the close of the financial year 1968-69...” 25. The principle of reservation of vacancies for S.C. and S.T. out of the total available vacancies was recognised in A.B.S.K. Sangh v. Union of India, A.I.R. 1981 S.C. 298 : 1980 Lab.I.C. 1325, irrespective of whether S.C. or S.T. are already duly represented or not in specific cadres of the service (para 64 of the Report). It was emphasised that what had to be seen was the overall picture and not restricted to a particular service or cadre. The carry forward rule was upheld (para 113 of the Report). It was observed at para 88 of the Report that by the 3 year carry forward it was difficult to see how in practice, the total vacancies would be gobbled up by the harijan group virtually obliterating Art. 16(1). The maximum of 50% for reserved quotas in their totality was held to be fair and reasonable. It was observed at para 88 of the Report that by the 3 year carry forward it was difficult to see how in practice, the total vacancies would be gobbled up by the harijan group virtually obliterating Art. 16(1). The maximum of 50% for reserved quotas in their totality was held to be fair and reasonable. In para 136 of the Report it was observed as under: “Therefore, we see that when posts whether at the age of initial appointment or at the stage of promotion are reserved or other preferential treatment is accorded to members of the Scheduled Castes, Scheduled Tribes and other socially and economically backward classes it is not a concession or privilege extended to them; it is in recognition of their undoubted Fundamental Rights to Equality of Opportunity and in discharge of the Constitutional obligation imposed upon the State to secure to all its citizens 'Justice, social economic and political,' and 'Equality of status and opportunity', to assure 'the dignity of the individual among all citizens'; to 'promote with special care the educational and economic interests of the weaker section of the people', to ensure their participation on equal basis in the administration of the affairs of the country and generally to foster the ideal of a 'Sovereign, Socialist, Secular Democratic Republic'. Every lawful method is permissible to secure the due representation of the Scheduled Castes and Scheduled Tribes in the public services. There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty per cent. There is no rigidity about fifty percent rule which is only a convenient guideline laid down by Judges...” 26. Thus, once the power to make reservation in favour of S.Cs. and S.Ts. is exercised in the light of the provisions of Article 16(4) the sequitur must be that a roster pointwise for the purpose of vacancies for which reservation has been made must be brought into effect, and in order to do full justice, a carry forward rule must be properly enacted. The carry forward rule must be so applied that in a particular year the percentage of reservation does not exceed 50%. The carry forward rule must be so applied that in a particular year the percentage of reservation does not exceed 50%. The open candidates competing for an unreserved vacancy cannot complain if a preference has been given to them in the first instance and in the carry forward period of 3 years, if vacancy is reserved in favour of S.C. or S.T. candidates. The logical corollary of reservation of posts is roster and the logical corollary to the roster is the carry forward rule for a particular number of years. If taking the services under the State as a whole, as indeed they must be taken, reservation of 13%, 7% and 4% for S.Cs., S.Ts. and D.T./N.Ts. respectively has to be brought about, it is only done by treating vacancies in posts as reserved vacancies or unreserved vacancies so that over a number of years a situation can be brought about where ultimately 13% of all cadres where posts are reserved are manned by Scheduled Castes personnel, 7% of the posts of the cadre are manned by S.T. personnel and 4% of the posts of the cadre are manned by D.T./N.T. personnel. It is not a single post that has to be looked at but all posts in general, and the roster, which deals with vacancies and not with posts, is meant to give effect to the logic underlying the reservation rule: (M.K. Janardhan v. Union of India)10, 1978(19) Guj.L.R. 879 : 1979 Lab.I.C. 394. 27. In (Prem Prakash v. Union of India)11, A.I.R. 1984 S.C. 1831 : 1984 Lab.I.C. 1453, the Supreme Court laid down that - “...The correct approach is to fix the number of vacancies available for the reserved candidates on the basis of the total number of vacancies which are intended to be filled at any particular point of time...” 28. In (State of Maharashtra v. Shivaji Y. George)12, C.A. No. 4117/84 (19-10-1984) the Supreme Court allowed Government to make reservation for backward classes up to 55% of the vacancies every year. In (State of Maharashtra v. Shivaji Y. George)12, C.A. No. 4117/84 (19-10-1984) the Supreme Court allowed Government to make reservation for backward classes up to 55% of the vacancies every year. Once the power to make reservation in favour of Scheduled Castes and Scheduled Tribes is exercised, it must necessarily follow that a roster pointwise for the purpose of vacancies for which reservation has been made must be brought into effect and in order to do full justice, a carry forward rule must be so applied that in any particular year, there is not more than 50% reservation. 29. It is not without its own significance that Article 16(4) provides for reservation not only in case of posts but also in case of appointments. When both these expressions have advisedly been used, it would be wholly impermissible to read “appointments” as anonymous with “posts”. The expression “appointments” undoubtedly includes promotion. Even in the case of one post, more than one appointment may take place in a given period as a result of promotion, retirement, termination, resignation or death of the incumbent. The only and reasonable method of applying the reservation rule in the case of a single post would be to apply that rule to the vacancies arising in that post, i.e. by reserving a certain number of appointments to be made to that post. (H.B. Singh v. P.M.G.A.F.)13, 1979 Lab.I.C. 183(A.P.). 30. The object of the Resolution and roster clearly is that as and when any vacancy in a promotional post arises, it should be filed in with reference to the Resolution and roster in order to achieve the object of adequate representation to the backward classes. The contingency of promotions would arise only on a post falling vacant for whatsoever reason and it is in order to fill in such vacancy that then roster has been devised. The question of bounty does not arise. 31. It is thus manifest that the roster system, the carry forward rule and reservation of vacancies have been recognised by the Supreme Court. The Supreme Court has emphasised that the reservation made in each year must be on the basis of total vacancies. The carry forward principle has been recognised and effectuated. The Resolutions and roster were held valid with the result that as and when vacancies arose in each year they were filled in according to the resolution and roster. The Supreme Court has emphasised that the reservation made in each year must be on the basis of total vacancies. The carry forward principle has been recognised and effectuated. The Resolutions and roster were held valid with the result that as and when vacancies arose in each year they were filled in according to the resolution and roster. As the Supreme Court upheld the power to make reservation in each year, it must necessarily follow that the total number of candidates belonging to backward classes would necessarily exceed the prescribed percentage. In the present case if the impugned Resolution prescribing the reservation of percentages for the backward class in the vacancies which arise every year are to be filled in accordance with the Resolution and roster, they must necessarily exceed the percentage prescribed by the Resolution. Such percentage does not exceed 50%. In fact the percentage is 33.30%, which is far below the percentage prescribed by the Supreme Court and can be said to be neither arbitrary nor excessive. The resolution and the roster and its operation impinge none of the attributes judicially enunciated is the light thereof Mr. Seervai's contentions must fail. 32. Mr. Seervai's submission of discrimination, demoralisation and dissatisfaction is best answered in the words of the Supreme Court in State of Punjab v. Hira Lal, A.I.R. 1971 S.C. 1777, in paras 10 and 11 of the Report as under: “10. .... The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit 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 ...” “11. 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...” 33. In Karmachari Sangh's case it was observed as under:. “110 ... 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...” 33. In Karmachari Sangh's case it was observed as under:. “110 ... a quota of the posts may be reserved in favour of backward class of citizens, but the interests of an efficient administration require that at least half the total number of posts be kept open to attract the best of the nation's talent and not more than half be made the sum of reserved quotas. If it was otherwise, an excess of reserved quotas would convert the State service into collective membership predominantly of backward classes. This, it is evident, will be inconsistent with the all-important goal of maintaining the efficiency of administration ....” “112. ... The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment because the large bulk of the vacancies numbering anything over 50% is allotted to the reserved quota. In view of a maximum age-limit invariably prescribed, some of such meritorious candidates may be lost to the service altogether. Viewed in that light, a maximum of 50% for reserved quotas in their totality is a rule which appears fair and reasonable just and equitable and violation of which would contravene Article 335.” These observations show that the Supreme Court considered that though there is “no rigidity about fifty per cent rule which is only a convenient guideline laid down by Judges”, efficiency would be impaired if “anything over 50%” is allotted to the reserved quota. No such thing can be said in the present case. 34. Mr. Seervai projects a dismal future. He says if the present roster system is followed, and if the limit of 24% prescribed by the Resolution is sought to be made unlimited, the result will be that by 1992, as many as 69 posts of A.C.Ps. in Greater Bombay will, at the cost of morale and efficiency, be filled up by the appointees of the backward Classes, most of whom would be junior to many Inspectors by asmuchas over 15 years. Mr. in Greater Bombay will, at the cost of morale and efficiency, be filled up by the appointees of the backward Classes, most of whom would be junior to many Inspectors by asmuchas over 15 years. Mr. Seervai relies on several observations regarding the importance of efficiency and in particular those in (Janki Prasad v. State of J. K.)14, A.I.R. 1973 S.C. 930 as under:- “....Where appointments and promotions to responsible public offices are made, greater circumspection would be required in making reservations for the benefit of any backward class because efficiency and public interest must always remain paramount. It is implicit in the idea of reservation that a less meritorious person is to be preferred to another who is more meritorious.” 35. Mr. Seervai says that in 1992, even according to Govt's. statistics, 32 posts of A.C.Ps. will be held by officers belonging to S.C., S.T. and D.T./N.Ts. The percentage would thus be 46.3, which Mr. Seervai invites us to hold is far in excess of the 24% fixed by the impugned Resolution. 36. To all this there is a three-fold answer. (A) Reservation is not sought to be made unlimited. (B) None of the observations relied on by Mr. Seervai venture a general proposition that in efficiency must necessarily be associated with members of the Backward Classes. (C) We must recall the views of the Supreme Court where attempts at prophesy have been frowned upon, and indeed repelled. In Hira Lal's case (A.I.R. 1971 S.C. 1777) (supra) it was observed that reservation of appointments under Art. 16(4) cannot be struck down on hypothetical grounds or on imaginary possibilities. In Ramachari Sangh's case, (1980 Lab.I.C. 1325(S.C.)) (supra) the petitioners' attempt to demonstrate that on account of reservation percentages coupled with the carry forward rule it was perfectly within the realm of possibility that in some years a monopoly might be conferred on the S.C. and S.T. candidates for certain categories or classes of posts, was spelled with the words - “The mystic may be do not scare us. The actual must be will alert us.” Further in para 136 it was observed as under:- “Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future.” 37. The actual must be will alert us.” Further in para 136 it was observed as under:- “Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future.” 37. With these observation in the forefront, it is not possible and in fact would be impermissible, (statistics and charts prepared by both sides notwithstanding), to peep into the future, with hope even of a reasonably accurate prediction of what will be in 1992. To do so would be conjecture and speculative reasoning. Any assumption for instance, that all the police inspectors will be promoted would necessarily be without foundation, and which among them will be promoted would be guesswork. Promotion is on seniority subject to fitness. It is impossible to predict today who is likely to be promoted by 1992, without ignoring that some may die (as in fact one has during the pendency of these petitions), some may leave, some may be transferred, some may be sent on deputation. Any attempt at crystal-gazing must be eschewed. The exercise is little, the result unpredictable. The impugned Resolution laying down the principle of allotting vacancies by following a roster cannot be struck down on the basis of future possibilities or on hypothetical grounds. 38. Mr. Seervai's endeavour at prediction must fail. 39. This brings us to the controversy pertaining to the members of the Scheduled Castes converted to Buddhism. For convenience we shall refer to them as Buddhist converts or Nav-Buddhists. The Resolution dt. 23rd May, 1974 makes reservation at 13% for “Scheduled Castes and Scheduled Castes converts to Budhism”. The proportion is 6% and 6.45% respectively, rounded off to 13%. In the petition as amended, it is stated that such converts do not belong to the Scheduled Castes within the meaning of “Scheduled Castes” in the Constitution hence such converts cannot be treated as members of the Scheduled Castes in the State. The petitioners therefore take exception to Buddhist Converts being clubbed along with Scheduled Castes in the Resolution. 40. Mr. Seervai relied on Articles 366(24) and (25) of the Constitution. Article 366(24) defines “Scheduled Castes” as “such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purpose of this Constitution”. The petitioners therefore take exception to Buddhist Converts being clubbed along with Scheduled Castes in the Resolution. 40. Mr. Seervai relied on Articles 366(24) and (25) of the Constitution. Article 366(24) defines “Scheduled Castes” as “such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purpose of this Constitution”. Article 366(25) defines “Scheduled Tribes” as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Art. 342 to be Scheduled Tribes for the purpose of this Constitution”. Article 341(1) empowers the President to issue in respect to any State or Union Territory, a notified order specifying races, tribes, castes or parts or groups of them which for the purpose of the constitution shall be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be Article 342(1) makes provision mutatis mutandis in respect of Scheduled Tribes. Article 341(2) empowers Parliament to alter this list by law but it cannot be altered by any further Notification. The President has issued the Constitution (Scheduled Castes) Order 1950. Paragraph 2 speaks of the castes, races or tribes who shall be deemed to be Scheduled Castes. Para 3 of that Order reads thus - “3. Notwithstanding anything contained in para 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.” Mr. Seervai says that para 3 indicates that under the Constitution no person can be a member of a Scheduled Castes if he does not profess the Hindu or Sikh religion. He says that a Hindu or Sikh converted to Buddhism ceases to be a Hindu or Sikh and thereby ceases to be a member of the Scheduled Castes which is a caste peculiar to Hinduism and no other religion. Thus Mr. Seervai's submissions come to this: Only Hindus can be members of the Scheduled Castes. Buddhism is a religion different from Hinduism. Thus Buddhist coverts cannot be members of the Scheduled Castes. Buddhist Converts must therefore go out of this category in the Resolution because it is a severable entry and if void can be deleted. The four categories require to be broken up into 5 categories. Buddhism is a religion different from Hinduism. Thus Buddhist coverts cannot be members of the Scheduled Castes. Buddhist Converts must therefore go out of this category in the Resolution because it is a severable entry and if void can be deleted. The four categories require to be broken up into 5 categories. But at the same time Buddhist Converts, even though they may belong to Backward Classes, have not been included in the list of Backward Classes though Christian Converts from S.Cs. are. Further for A.C.Ps. there is no reservation for other Backward Classes. What provision should be made for Buddhist Convert would be a matter for Government. 41. It is correct that members of the S.Cs. cease to be so when they renounce Hinduism and embrace Buddhism. This is not disputed by Mr. Singhvi, and rightly so. 42. What however, touches this intense human problem is whether Buddhist Converts who have emanated from the S.Cs. continue, despite their attempt to escape the shackles of backwardness foisted on them down the ages by their erstwhile co-religionists, to be a Backward Class despite their conversion to Buddhism. Or whether the words of Supreme Court as will appear later, they “continue in their oppressive severity in the new environment of a different religious community”. 43. The answer is: Yes, they do. They continue to be “backward class of citizens” for whom Government is entitled to make reservation in the manner it has done. There is on record documentary evidence which supports this. 44. In 1961 Government appointed a Committee on the “Reservation for the Backward Classes in the Services” to enquire whether the percentages fixed for the recruitment of S.C./S.T., Buddhists and other backward classes to various posts under the Government was adequate and whether the said percentages were properly implemented. The Committee comprised of the Chairman B.D. Deshmukh and 6 members, one of whom was Prof. R.D. Bhandare. The Committee was constituted to inquire into and report on the following matters. (i) Existing measures taken by the State to ensure satisfactory recruitment of the Backward Classes to the State Public Services. (ii) Whether and to what extent the system of recruitment from the backward classes is calculated to ensure a fair representation of the backward classes and their difficulties of availing themselves of the various concessions for entry into the services. (i) Existing measures taken by the State to ensure satisfactory recruitment of the Backward Classes to the State Public Services. (ii) Whether and to what extent the system of recruitment from the backward classes is calculated to ensure a fair representation of the backward classes and their difficulties of availing themselves of the various concessions for entry into the services. (iii) To make recommendations for the removal of those difficulties and in particular to make recommendations inter alia whether the reservation for Backward Classes should be classified on the basis of income or caste and under what category of the backward classes should communities, among others, like Nav-Buddhas be classified. One of the terms of reference was - “Whether for the purpose of reservations of vacancies, the classification of the other Backward Classes should be on the basis of income or on the basis of caste and under what category of the Backward Classes should communities like Nav-Buddhas....be classified.” 45. The Committee submitted its Report in 1964. Part I is divided into 5 headings, viz. Preliminary, Backdrop, The Problems, Terms and Reference and Recommendations. These are followed by Appendices A to E-11 containing statistical data, Part II is divided into 8 headings, viz. The Historical Necessity, An Examination of Existing Measures and The Extent to which They have Ensured Satisfactory Recruitment of the Backward Classes, Even Inadequate Measures not Properly Implemented - Reasons - Attitudes, The System of Recruitment and Difficulties Experienced, The Problem of Buddhists: What category, Other Backward Classes and The Denotified Tribes and The Nomadic and Semi-Nomadic Tribes, Terms of Reference Answered and Recommendations. Part 1 running into 31 printed pages is signed by all the members including Prof. Bhandare who has under his signature added “Subject to the separate note submitted to the Honourable Chief Minister, Maharashtra State”. Part II is Prof. Bhandare's Note from pages 113 to 235 and comprises of the headings set out earlier. 46. Answers to not less than 18 questions were invited by the Committee from 364 officials and 803 non-officials. Replies were received from 463 officials and 50 non-officials. The discrepancy as to the total number of officials arose from the fact that some of the recipients circulated the questionnaire to their subordinate officers who returned the answers directly to the Committee. However nothing turns on this. Replies were received from 463 officials and 50 non-officials. The discrepancy as to the total number of officials arose from the fact that some of the recipients circulated the questionnaire to their subordinate officers who returned the answers directly to the Committee. However nothing turns on this. Question 11 asked what are the difficulties encountered by the Backward Classes for entry into the public services and invited suggestion for remedial measures for removal of the difficulties. Question 16 asked for suggestions to invite suitably qualified backward classes candidates not forthcoming even to fill the reserved quota. Question 17(b) invited answers as to which category should communities like Nav-Buddhists be classified. 47. The Committee opined that the percentage of reservations for the Backward Classes should be linked to the population statistics of the State, and in so doing the grouping should be - (i) Schedule Tribes including those living outside Scheduled Areas; (ii) Scheduled Castes and Nav-Buddhas; (iii) Denotified Tribes and Nomadic Tribes, and (iv) Other Backward Classes. Further, “For purposes of the above classification, backwardness has been considered from two aspects. In the first place there is the backwardness that has arisen out of historic and geographic isolation of groups from the mainstream of “civilisation” and as a result these groups appear as anachronisms on the social fabric. These are the Scheduled Tribes while the Nomadic Tribes and Denotified Tribes may also be placed in a similar category even though their isolation has perhaps arisen from slightly different but parallel causes, having isolated themselves or been isolated from the mainstream because of the nomadic characteristics that are peculiarly theirs. The second criterion is that which arises out of the stigma of “touch”. Here the question of New Buddhas who stem from the Scheduled Castes has to be given some consideration. Conversions are of two types: firstly conversion arising out of a genuine change of faith and second others. Whatever be the nature of the conversion, at least for the first generation the complexes that govern such individuals and groups prior to conversion are not shed easily and even in their environments these complexes continue to be maintained and recognised even though the new groups desire to eliminate such differentiations particularly that of untouchability. Further, the drawbacks and backwardness that have arisen out of generations of such forcible isolation cannot be overcome at a stroke. Further, the drawbacks and backwardness that have arisen out of generations of such forcible isolation cannot be overcome at a stroke. Perhaps, the passing of a generation or two would effect the desired purpose of the conversion. Until then, to deprive them of facilities and concessions that would have been theirs on the basis of their social and economic backwardness would not appear to be quite fairs.” (The italics ours). 48. Chapter V of Part II which was Prof. Bhandare's Note was devoted to the problems of Nav-Buddhists. The sum total was tabulated as under:- “(1) The New coverts to Buddhism have not changed their place, position and status which they occupied before their conversion in the India Society. (2) Even though they are spiritually changed in their mind and manners, there is no material change in their Social Status. They continue to be despised and disgraced as if they continue to suffer from stigma of Untouchability. (3) There is no change whatsoever in their economic position and status because the Conversion is mainly intended for spiritual and cultural elevation and not for any material benefit or gain. (4) Their political position is worst (sic) than that of the Scheduled Castes because of the wrong construction, and understanding of the real nature, scope and purpose of the 'Special Provisions' incorporated in the Constitution of India and also the basic principles underlying the principles of Social Justice.” (The italics ours). Prof. Bhandare's Note alludes to the position of the Buddhists as under:- “....they continue to suffer from the disabilities and difficulties on account of those two factors. That even though they have changed the religion and broken the shackles of the institution of untouchability, unfortunate as they are, they are treated in the same way as before, continue to suffer from disabilities and difficulties as before and are obliged and compelled to live in a state of isolation and segregation and are therefore, quite powerless and miserably.” (The italics ours.) Prof. Bhandare's Note alludes to the position of the New Converts as under:- “That the New Converts to Buddhism are quite powerless and helpless to protect themselves in the struggle for life and existence, is now beyond doubt and beyond suspicion. Because we have already seen and studied as to what difficulties and disabilities they suffer and encounter on account of their place, position and status even after their conversion. Because we have already seen and studied as to what difficulties and disabilities they suffer and encounter on account of their place, position and status even after their conversion. They are completely and helplessly powerless to protect themselves in the social struggle. They, therefore, need protection from social injustice and exploitation. It is, therefore, clear that the Article 46 and principles underlying it must be completely and fully made applicable to them.” (The italics ours). Prof. Bhandare's Note contains the “Conclusion” as under:- “What is the conclusion as to the meaning of the words “Weaker Section” and “Backward Classes”. According to Dr. Babasaheb weaker sections meant the Backward Classes and such other classes who were for the moment “unable to stand on their own feet”. This means, that test of “ability or inability to stand on their feet” or the powerlessness or inability to protect in the Social Struggle” is the test that should be applied to judge as to who are the Backward Class or the weaker section of the people.” (The italics ours.) This is followed by “New Converts - Their Position” as under :- “If we adopt tests of “ability to stand on their own legs” and “ability to protect in the Social Struggle” it could easily and fittingly be applied to the New Converts to Buddhism who are not in position to protect themselves in “the Social Struggle” for life and not in a position to stand on their legs.” (The italics ours.) 49. By Government Resolution dated 6th July, 1960 it was decided that with effect from 1st May, 1960, the SC converts to Buddhism should be treated as eligible for all concessions and facilities available to SC except statutory concessions under the Constitution and certain special schemes for the removal of untouchability, which could not by their nature apply to non-Hindus. That Resolution also clarified that such persons would be eligible for posts in Government Services reserved for S.Cs. By reason of that Resolution, Rule 40 of the Bombay Police Manual, 1959 Vol. I was amended by substituting the then existing Rule 40(10) by the new Rule 40(10)(a). 50. Thereafter by Government Resolution dated 9th April, 1965, Government fixed percentages of reservation in vacancies in various services of Backward Classes including S.C. and S.C. Converts to Buddhism. 51. It is manifest that the Deshmukh Committee Report and Prof,. I was amended by substituting the then existing Rule 40(10) by the new Rule 40(10)(a). 50. Thereafter by Government Resolution dated 9th April, 1965, Government fixed percentages of reservation in vacancies in various services of Backward Classes including S.C. and S.C. Converts to Buddhism. 51. It is manifest that the Deshmukh Committee Report and Prof,. Bhandare's Note (which is part of the Report), bring to the forefront that despite their renunciation of Hinduism, the Buddhist Converts or Nav-Buddhists continue to be subjected to the social ostracism and the stigma of untouchability, handed down to them generation after generation down to ages. Despite the ameliorative influence of literacy and education, the prejudice against them persists. Conversion has made no difference. It has changed nothing. They continue to be the Backward Class they were before conversion. For their upliftment and being brought into the mainstream of life, protection had to be given to them which could best be done by clubbing them with the Scheduled Castes from which they emanated. To do so, there was material before the Government in the form of the Committee's Report and Prof. Bhandare's Note, which forms part of the Report. Government was therefore justified in accepting this material which it did by its Resolution dated 9th April, 1965. Having come to the conclusion that Nav-Buddhists is a backward class, Government forme the subjective opinion that for reservation in services, Nav-Buddhists, who are socially and economically backward should be put on a par with S.Cs. from which Nav-Buddhists emanated. It cannot be said that such opinion of Government was arbitrary, capricious or without foundation. Quite the contrary. 52. Mr. Seervai cannot dismiss the Committee's recommendations and findings and Prof. Bhandare's Note as mere ipse dixit nor can he find fault with the questionnaire issued by the Committee. He says it does not invite answers pertaining to social conditions nor was it the object of the Committee to investigate into the social economic-political condition of Nav-Buddhists and the depth of humiliation to which they are subjected. 53. This is not entirely correct. The Committee's questionnaire and Report must be read as a whole including Prof. Bhandare's Note which forms part of the Report. The questionnaire was circulated far and wide and answers received. They were cogitated upon. Thereafter, after holding as many as 23 meetings, the Committee gave its recommendations coupled with Prof. Bhandare's Note. 53. This is not entirely correct. The Committee's questionnaire and Report must be read as a whole including Prof. Bhandare's Note which forms part of the Report. The questionnaire was circulated far and wide and answers received. They were cogitated upon. Thereafter, after holding as many as 23 meetings, the Committee gave its recommendations coupled with Prof. Bhandare's Note. They were accepted by Government, and rightly so. They have stood the test of time. They cannot be lightly brushed aside. 54. Mr. Seervai says that this Report made in 1964 cannot be considered as giving relevant data applicable today. He invites us to ask Government for up-to-date data. 55. In this there is a fallacy. To tart with, even Mr. Seervai, with his habitual fairness, does not say that the reservation at 13% fixed by the Resolution dated 23rd May, 1974 for S.Cs. and Buddhist Converts is excessive. Judicial notice can be taken that in the intervening years, population has not decreased or even remained static. It has increased. For that matter the census of 1971 and 1981 as disclosed by Government reveals as under:- -------------------------------------------------------------------------------------------------------- “1971 Census Total Population of State Population of S.Cs. and S.Cs. converted to Buddhism 5,04,12,235 S.Cs. 30,25,761 6% S.Cs. 32,64,223 converted to Buddhism 6.4% 62,89,984 12.45% 1981 Census 6,27,84,171 S.Cs. 44,49,763 7.1% S.Cs. 40,64,985 converted to Buddhism 6.5% 85,44,748 13.6% ------------------------------------------------------------------------------------------------------- In the light of the above, it cannot be said that even on the basis of the 1981 census the reservation at 6.5% for the Buddhist Converts is excessive or arbitrary. 56. As to the still-containing stigma under which they suffer, judicial notice can be taken that for no fault of theirs, the Nav-Buddhists have not been able to break the tackles of the prejudices they faced when they were members of the despised Scheduled Castes. They continue to remain in the same social and economic condition of backwardness, which by the expedient of conversion they sought to escape. They continue to live with the degrading stigma of untouchability and its concomitant drawbacks, which stalk them in all walks of life. They continue to remain a backward class, still reviled and still looked down upon, and still oppressed by their more fortunate erstwhile co-religionists, who by far and large even today keep their distance from them and will not seek their disinterested friendship, much less social intercourse. With them intermingling is unthinkable. They continue to remain a backward class, still reviled and still looked down upon, and still oppressed by their more fortunate erstwhile co-religionists, who by far and large even today keep their distance from them and will not seek their disinterested friendship, much less social intercourse. With them intermingling is unthinkable. They were “untouchable” then. They are “untouchables” today, conversion notwithstanding. The were ostracised then. They are ostracised today, conversion notwithstanding. Nothing has changed. The stigma persists. 57. Perhaps to all this, Mr. Seervai might say : Ipse dixit. No, Mr. Seervai, it is not. “All Monumentum Requiris-Circumspice”. 58. Mr. Seervai is extremely critical of the affidavit filed by D.G. Ratnaparkhi. He says here is a Senior Government Officer of the rank of Deputy Secretary in the Home Department, who in the body of his affidavit and annexure has attempted to pass all Prof. Bhandare's Note as the Committee's Report and thereby has attempted to deceive the petitioners and the Court into thinking that Prof. Bhandare's Note was indeed the Report of the Committee. 59. Mr. Seervai's criticism is in part not entirely unjustified. It would have been proper and pre-eminently desirable that the Deputy Secretary should have clearly specified which portions in his affidavit and which Exhibit pertained to Prof. Bhandare's Note and which portions pertained to the Report. We would however eschew Mr. Seervai's charge of passing off and deceit laid at Ratnaparkhi's door. Our reasons are these: Prof. Bhandare was a member of the Committee. His Note is attached to the Report and forms part of the Report. The one neither conflicts with nor is inconsistent with the other. The one complements the other. Both must be read together. Merely because Prof. Bhandare's Note contained a recommendation for a separate classification for Nav-Buddhists does not make for inconsistency or contradiction. Prof. Bhandare's Note is an assenting opinion expressed in greater detail and an assenting voice spoken with greater emphasis. Mr. Singhvi made a statement before us that the distinction drawn by Mr. Seervai did not even strike him, (i.e. Mr. Singhvi) when he settled Ratnaparkhi's affidavit. We see no reason to doubt this statement, coming as it from responsible Counsel. In the circumstances we do not agree with the charge of passing off and deceit which Mr. Seervai levels against Ratnaparkhi. 60. Mr. Seervai did not even strike him, (i.e. Mr. Singhvi) when he settled Ratnaparkhi's affidavit. We see no reason to doubt this statement, coming as it from responsible Counsel. In the circumstances we do not agree with the charge of passing off and deceit which Mr. Seervai levels against Ratnaparkhi. 60. Mr. Seervai bitterly complains that though the Committee's Report is referred to in Ratnaparkhi's affidavit and Government relies on it, a copy thereof was not furnished to the petitioner's Advocate despite a written request. The inference which Mr. Seervai invites us to draw is that thereby with intent to mislead, Government deliberately wanted to keep the petitioners and the Court in the dark regarding Prof. Bhandare's Note. 61. While it was absolutely unforgivable on the part of Government not to have acceded to this legitimate request made on behalf of the petitioners, the inference need not necessarily be what Mr. Seervai invites us to draw. Without in any manner condoning such behaviour of Government, we attribute it not so much to malice or an attempt to mislead, as we do to bad manners born out of pettiness, not untouched with silent insolence. This gratuitous boorishness was rightly not attempted to be justified by Mr. Singhvi. On the contrary he immediately made amends by handing over his own copy to Mr. Seervai, who generously expressed his appreciation of his learned opponent's graciousness. 62. Mr. Seervai emphasises on the burden of proof. He says that in view of Government's admission that Nav Buddhists are not S.Cs., and as an important constitutional issue has been raised by the petitioners that they should not have been so joined with S.Cs., it was for Government to prove, which Government has not, why the Buddhist Converts were clubbed with S.Cs. Mr. Seervai quotes - “...when a question arises whether a law which prima facie infringe a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the courts on materials placed before them....” 63. The short answer is that there is sufficient material, namely the Committee Report with Prof. Bhandare's assenting Note, to establish why Government decided to club the Buddhist Converts with the S.Cs. in the proportion of 6.45% and 6% respectively rounded off to 13% in the aggregate. 64. Mr. The short answer is that there is sufficient material, namely the Committee Report with Prof. Bhandare's assenting Note, to establish why Government decided to club the Buddhist Converts with the S.Cs. in the proportion of 6.45% and 6% respectively rounded off to 13% in the aggregate. 64. Mr. Seervai places reliance on an unreported judgment delivered by the Supreme Court on 30th September, 1985 in Writ Petition No. 9596 of 1983 since reported in A.I.R. 1986 S.C. 733 (Movement for Protection of Human Rights of Marginalis Communities v. Union of India)15. In that case the question was whether the Schedule Caste Order 1950 was constitutionally invalid on the ground that only Hindu or Sikh members of the castes enumerated in the Schedule to that order are deemed to be S.C's. for the purposes of the Constitution. The petitioner in that case was a Hindu belonging to the Adi Dravida Caste enumerated in the Schedule. He got himself converted to the Christian religion. His contention was that notwithstanding his conversion, he continued to be a member of the Adi Dravida Caste and was entitled to the benefits of welfare assistance intended for S.Cs., which by reason of his conversion were denied to him. It was debated before the Supreme Court “whether a Hindu belonging to a Scheduled Caste retains his caste on conversion to Christianity”. It appears to the Supreme Court unnecessary “to decide whether a Hindu belonging to the Adi Dravida Caste continues to be a member of that caste by reason of his conversion to the Christian religion.” The Supreme Court proceeded on the assumption that the petitioner retained his original caste, and posed the question whether on the matters before the Court, it could be said that in confining the declaration to members of the Hindu and Sikh religions para 3 of the 1950 Presidential Order discriminates against members of the Christian religion. The Supreme Court emphasised that the caste system “is a special feature of the Hindu social structure”, and a “social phenomenon peculiar to Hindu Society”. The Supreme Court traced the history of “untouchability” and oppressive tyranny. The Supreme Court thereafter observed that in order to establish that para 3 of the 1950 Order discriminates against Christian members of the enumerated castes - “... The Supreme Court traced the history of “untouchability” and oppressive tyranny. The Supreme Court thereafter observed that in order to establish that para 3 of the 1950 Order discriminates against Christian members of the enumerated castes - “... it must be shown that they suffer from a comparable depth of social and economic disabilities and cultural and educational backwardness and similar levels of degradation within the Christian community necessitating intervention by the State under the provisions of the Constitution. It is not sufficient to show that the same caste continues after conversion. It is necessary to establish further that the disabilities and handicaps suffered from such caste membership in the social order of its origin-Hinduism-continue in their oppressive severity in the new environment of a different religious community... no authoritative and detailed study dealing with the present conditions of Christian Society have been placed on the record in this case. It is therefore not possible to say that the President acted arbitrarily in the exercise of his judgment in enacting para 3 of the Constitution (Scheduled Castes) Order, 1950 ... Having regard to the State of the record before us, we are unable to hold that the petitioner has established his case. The challenge must therefore fail.” (The italics ours.) 65. That decision has no application to the matters before us. It is distinguishable. Before the Supreme Court what was challenged was discrimination against the Christian convert. Before us there is no challenge on the ground of discrimination against Buddhist Converts. In that case the petitioner failed to make good his assailing the classification in para 3 of the 1950 Presidential Order. The Police Officers before us is not challenge the vires of any rule. Unlike the petitioner in the Human Rights case, A.I.R. 1986 S.C. 733, who failed to place before the Court any “authoritative and detailed only dealing with the present conditions of Christian Society”, it is established before us by the Committee's Report and Prof. Bhandare's assenting Note that the disabilities and handicaps suffered by the Buddhist Converts before conversion, “continue in their aggressive severity in the new environment of a different religious community.” 66. Mr. Bhandare's assenting Note that the disabilities and handicaps suffered by the Buddhist Converts before conversion, “continue in their aggressive severity in the new environment of a different religious community.” 66. Mr. Seervai relies on (C.M. Arumugam v. S. Rajagopal)16, A.I.R. 1976 S.C. 939, where the respondent, formerly a member of the Adi Dravida Caste, was converted to Christianity and reconverted to Hinduism before the 1967 elections contested by him and the appellant from a reserved constituency. The evidence showed that on conversion the respondent was accepted into the fold by the members of the Adi Dravida caste and was therefore at the material time, a member of that caste, professing the Hindu religion as required by paras 2 and 3 of the 1950 Order. Mr. Seervai relies on (Principal, Guntur Medical College v. Mohan Rao)17, A.I.R. 1976 S.C. 1904, where it was held that on conversion to Hinduism a person born of Christian converts would not become a member of the caste to which his parent belonged prior to their conversion to Christianity as a matter of course, but only if he is accepted by the other members of the caste; it is for the members of the caste to decide whether to admit such a person within the caste or not. Mr. Seervai relies on State of Kerala v. N.M. Thomas, A.I.R. 1976 S.C. 490 : 1976 Lab.I.C. 395, in support of his proposition that S.Cs. are not castes in the ordinary sense by which they are understood in Hindu law or Hindu religion. 67. None of these decisions touch the controversy before us. However the reservations in the last mentioned case pertaining to S.Cs. and S.Ts. are pertinent:- “...they are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowest and in need of massive State aid and notified as such by the President. To confuse this backwardmost social composition with castes is to commit a constitutional error misled by a compendious appellation. To confuse this backwardmost social composition with castes is to commit a constitutional error misled by a compendious appellation. So that to protect harijans is not to prejudice any caste but to promote citizen solidarity...The discerning sense of the Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled Tribes not as castes but as a large backward group deserving of societal compassion...” (The italics ours.) It is this “societal compassion” that prevailed in Government's decision in rightly clubbing the Buddhist Converts with their genus, viz. the Scheduled Castes. 68. The petitioners' exception to Buddhist Converts being included with the Scheduled Castes must stand repelled. 69. The petitions are dismissed with no order as to costs. 70. Leave to appeal to the Supreme Court under Article 134-A of the Constitution granted to the petitioners. Petitions dismissed. -----