Delhi High Court
Bijender Singh Rathore vs Uoi & Ors. on 23 May, 2011
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 3450/2011
Judgment reserved on: 20th May, 2011
% Judgment pronounced on: 23rd May, 2011
BIJENDER SINGH RATHORE ..... Petitioner
Through: Mr. Karan Singh Bhati, with
Mr. Prikshayat Singh, Adv.
versus
UOI AND ORS. ..... Respondents
Through: Mr. Ravinder Aggarwal, Adv. for
Respondent No.1/UOI
Mr. Naresh Kaushik, Advs. for
Respondent Nos. 2 & 3/UPSC
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the Yes
judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Invoking the jurisdiction of this Court under Articles 226 and 227 of
the Constitution of India, the petitioner has called in question the legal
WP(C) No.3450/2011 Page 1 of 21
defensibility and substantiality of the order dated 21.3.2011 passed by the
Central Administrative Tribunal, Principal Bench, New Delhi (for short „the
tribunal‟) in OA No. 1079/2011 whereby the tribunal has declined to accept
the prayer of the petitioner which was made to declare Regulation 4(iii-a) of
the Indian Administrative Service (Appointment by Competitive
Examination) Regulations, 1955 (for short „the 1955 Regulations‟) as ultra
vires the Constitution of India.
2. The facts which are necessitous to be adumbrated are that the Union
Public Services Commission (UPSC), vide notification dated 2.1.2010,
invited applications for approximately 965 vacancies in different streams of
Civil Services. The petitioner submitted his form for selection for the post
in the stream of Indian Administrative Service on 27.1.2010. It is not
disputed that he was aged about 28 years and had already appeared in the
examination four times and the present one was the fifth attempt by him.
He appeared in the examination conducted by the UPSC on 23.5.2010 but
was denied the result on the ground that he could not have been allowed to
sit for the fifth time in the competitive examination as he belonged to the
general category. Being dissatisfied with the aforesaid, the petitioner
WP(C) No.3450/2011 Page 2 of 21
approached the tribunal challenging the said regulation which prohibits a
general category candidate to take a fifth attempt to qualify.
3. It was contended before the tribunal that the 1955 Regulations
restricts the number of attempts for general category candidates upto a
maximum of four whereas for OBC category candidates, the maximum
number of attempts allowed is seven and for Scheduled Castes and
Scheduled Tribes candidates, the number of attempts is unlimited. Be it
noted, the 1955 Regulations also grant age relaxation to the Scheduled
Castes and Scheduled Tribes categories but the petitioner clearly expressed
before the tribunal that he had no grievance with regard to the age relaxation
and his grievance was only with regard to the difference in chances offered
to the general category candidates vis-à-vis other category candidates. It
was urged that the 1955 Regulations invited the frown of Articles 14 and 16
of the Constitution of India as there is a restriction on the number of
attempts to be made by general category candidates whereas no restriction is
made in respect of Scheduled Castes and Scheduled Tribes candidates and
more number of attempts have been provided for the OBC candidates. It
was also urged before the tribunal that in other examinations conducted by
WP(C) No.3450/2011 Page 3 of 21
the UPSC, there is no such restriction in respect of the number of attempts
as seen in the Civil Services Examination but the said restriction is only
with regard to the Indian Administrative Service and, hence, the equality
clause enshrined under Article 14 of the Constitution is flagrantly violated.
4. The tribunal, upon hearing the learned counsel for the parties, came to
hold that it is not a discrimination but a classification which is permissible
regard being had to the provisions contained in Article 16(4) of the
Constitution of India. Being of this view, the tribunal dismissed the
Original Application.
5. We have heard Mr. Karan Singh Bhati along with Mr.Prikshayat
Singh, learned counsel for the petitioner, and Mr. Ravinder Aggarwal and
Mr. Naresh Kaushik, learned counsel for the Union of India and UPSC
respectively.
6. The 1955 Regulations have been framed in pursuance of Rule 7 of the
India Administrative Service (Recruitment) Rules, 1954. Regulation 4 deals
with the conditions of eligibility. It reads as follows:
"4. Conditions of Eligibility:-In order to be eligible to
WP(C) No.3450/2011 Page 4 of 21
compete at the examination, a candidate must satisfy the
following conditions, namely:-
(i) Nationality:- (a) He must be a citizen of India,
Or,
(b) He must belong to such categories of persons as may,
from time to time, be notified in this behalf by the Central
Government.
(ii) Age:- He must have attained the age of 21 and not
attained the age of 30 on the first day of August of the
year in which the examination is held:
Provided that the upper age limit may be relaxed in
respect of such categories of persons as may from time to
time, be notified in this behalf by the Central
Government, to the extent and subject to the conditions
notified in respect of each category:
Provided further that the upper age limit shall be raised
to 31 years for the candidates appearing at the
examination to be conducted by the Commission in 1990.
(iii) Educational Qualifications:- He must hold a degree
of any University incorporated by an Act of the Central
or State Legislature in India or other educational
institutions established by an Act of Parliament or
declared to be deemed as Universities under Section 3 of
the University Grants Commission Act, 1956, or a
foreign University approved by the Central Government
from time to time, or possess a qualification which has
been recognized by the Central Government [for the
purpose of admission to the examination]
Provided that-
WP(C) No.3450/2011 Page 5 of 21
(a) in exceptional cases the Commission may, [ ] treat
as qualified a candidate who though not possessing the
qualification prescribed in this clause, has passed
examinations conducted by other institutions of a
standard which, in the opinion of the Commission,
justifies the admission of the candidate to the
examination; and
(b) candidates who are otherwise qualified but have
taken degree from foreign Universities, which are not
approved by the Central Government, may also be
admitted to the examination at the discretion of the
Commission.
Provided further that a candidate may be permitted to
take the preliminary examination while studying for his
degree so long as by a date to be notified by the
Commission, the candidate produces proof of pass in the
degree course for being eligible to take the final
examination during that year.
(iii-a) Attempts at the examination:- Unless covered by
any of the exceptions that may from time to time be
notified by the Central Government in this behalf, every
candidate appearing for the examination after 1st
January 1990, who is otherwise eligible, shall be
permitted four attempts at the examination; and the
appearance of a candidate at the examination will be
deemed to be an attempt at the examination
irrespective of his disqualification or cancellation, as
the case may be, of his candidature.
Explanation- An attempt at a preliminary examination
shall be deemed to be an attempt at the examination,
within the meaning of this rule.
WP(C) No.3450/2011 Page 6 of 21
(iv) Fees :- He must pay the fees prescribed by the
Commission."
7. On a reading of the aforesaid Regulation, it is quite clear that every
candidate shall be permitted four attempts at the examination; and the
appearance of a candidate at the examination will be deemed to be an
attempt at the examination irrespective of his disqualification or
cancellation, as the case may be, of his candidature.
8. The Central Government in the Ministry of Personnel, Public
Grievances and Pensions (Department of Personnel and Training) issued a
notification on 2.1.2010 dealing with competitive examinations. It included
The Indian Administrative Service; The Indian Foreign Service; The Indian
Police Service; The Indian P&T Accounts and Finance Service, Group „A‟;
The Indian Audit and Accounts Service, Group „A‟; Indian Revenue Service
(Customs & Central Excise) Gr. „A‟; The Indian Defence Accounts Service,
Group „A‟; The Indian Revenue Service, (I.T.) Group „A‟; The Indian
Ordnance Factories Service, Group „A‟ (Asst. Works Manager -
Administration); The Indian Postal Service, Group „A‟; The Indian Civil
Accounts Service, Group „A‟; The Indian Railway Traffic Service, Group
WP(C) No.3450/2011 Page 7 of 21
„A‟; The Indian Railway Accounts Service, Group „A‟; The Indian Railway
Personnel Service, Group „A‟; Post of Assistant Security Officer, Group „A‟
in Railway Protection Force; The Indian Defence Estates Service, Group
„A‟; The Indian Information Service, Junior Grade Group „A‟; Indian Trade
Service, Group „A‟ (Gr.III); Indian Corporate Law Service, Group „A‟;
Armed Forces Headquarters Civil Service, Group „B‟ (Section Officer‟s
Grade); Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman & Diu
and Dadra & Nagar Haveli Civil Service, Group „B‟; Delhi, Andaman and
Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli
Police Service, Group „B‟; Pondicherry Civil Service, Group „B‟; and
Pondicherry Police Service, Group „B‟. The examinations to the above
services are to be conducted by the Union Public Service Commission in the
manner prescribed in Appendix I to the said rules.
9. Rule 4 of the Examination Rules reads as follows:
"4. Every candidate appearing at the examination who
is otherwise eligible, shall be permitted four attempts at
the examination:
Provided that this restriction on the number of
attempts will not apply in the case of Scheduled Castes
WP(C) No.3450/2011 Page 8 of 21
and Scheduled Tribes candidates who are otherwise
eligible:
Provided further that the number of attempts
permissible to candidates belonging to Other Backdward
Classes, who are otherwise eligible, shall be seven. The
relaxation will be available to the candidates who are
eligible to avail of reservation applicable to such
candidates:
Provided further that a physically handicapped will
get as many attempts as are available to other non-
physically handicapped candidates of his or her
community, subject to the condition that a physically
handicapped candidate belonging to the General
Category shall be eligible for seven attempts. The
relaxation will be available to the physically handicapped
candidates who are eligible to avail of reservation
applicable to such candidates.
Note:-
(I) An attempt at a Preliminary Examination shall be
deemed to be an attempt at the Examination.
(II) If a candidate actually appears in any one paper in
the Preliminary Examination, he / she shall be deemed to
have made an attempt at the Examination.
(III) Notwithstanding the disqualification / cancellation
of candidature, the fact of appearance of the candidate at
the examination will count as an attempt."
10. On a perusal of the aforesaid Rule, it is quite clear that the restriction
on the number of attempts will not apply to the candidates who belong to
WP(C) No.3450/2011 Page 9 of 21
Scheduled Castes and Scheduled Tribes and as far as the other Backward
Classes are concerned, the attempts are restricted to seven. The said
examination Rule has been framed in consonance with Regulation 4(iii-a)
on the foundation of the power conferred on the Central Government. On a
reading of the said examination Rule, it is vivid that the number of attempts
is applicable to all categories of examinations. Thus, the submission of the
learned counsel for the petitioner that the number of attempts is confined to
The Indian Administrative Service alone is not correct and, therefore, the
same need not be dealt with.
11. The other limb of submission of the learned counsel for the petitioner
is that by providing for four attempts to the general category candidates and
unlimited attempts to Scheduled Castes and Scheduled Tribes category
candidates and seven attempts to Other Backward Classes category
candidates, the respondents have violated the equality clause and treated the
petitioner in a discriminatory manner. It is noteworthy that clauses (1) and
(2) of Article 16 of the Constitution of India guarantee „Equality of
opportunity‟ in the matter of an appointment to an office or any other
appointment but the clauses (3) to (5) confer concession in favour of
WP(C) No.3450/2011 Page 10 of 21
Backward Classes with certain exceptions to the above rule of equal
opportunity. Clause 4 of the said article stipulates that nothing in the said
Article shall prevent the State from making any provision for the reservation
of appointments or posts in favour of any Backward Classes of citizens
which, in the opinion of the State, is not adequately represented in the
services under the State. The said clauses of Article 16 confer a concession
on the Backward Classes which include the Scheduled Castes and
Scheduled Tribes. Article 16(4) basically permits a reasonable classification
which is the basic facet of the equality clause as enshrined under Article 14
of the Constitution of India. The principle of classification with all its
contours is attracted to clause (4) of Article 16.
12. In this regard, we may profitably reproduce a passage from Indra
Sawhney v. Union of India, AIR 1993 SC 477 which states as follows:
"It needs no emphasis to say that the principle aim of
Articles 14 and 16 is equality and equality of opportunity
and that clause (4) of Article 16 is but a means of
achieving the very same objective. Clause (4) is a special
provision - though not an exception to clause (1). Both
the provisions have to be harmonised keeping in mind the
fact that both are but the restatements of the principle of
equality enshrined in Article 14. The provision under
WP(C) No.3450/2011 Page 11 of 21
Article 16(4) - conceived in the interest of certain
sections of society - should be balanced against the
guarantee of equality enshrined in clause (1) of Article 16
which is a guarantee held out to every citizen and to the
entire society.
We may also refer with profit to the majority view expressed in Indra
Sawhney (supra) wherein it has been laid down as follows:
"121.(1)(a) It is not necessary that the „provision‟ under
Art. 16(4) should necessarily be made by the
Parliament/Legislature. Such a provision can be made by
the Executive also. Local bodies, Statutory Corporations
and other instrumentalities of the State falling under Art.
12 of the Constitution are themselves competent to make
such a provision, if so advised. (Para 55)
(b) An executive order making a provision under Art.
16(4) is enforceable the moment it is made and issued.
(Para 56)
(2)(a) Clause (4) of Art. 16 is not an exception to clause
(1). It is an instance and an illustration of the
classification inherent in clause (i). (Para 57)
(b) Article 16(4) is exhaustive of the subject of
reservation in favour of backward class of citizens, as
explained in this judgment. (Para 58)
(c) Reservations can also be provided under clause (1) of
Art. 16. It is not confined to extending of preferences,
concessions or exemptions alone. These reservations, if
any, made under clause (1) have to be so adjusted and
implemented as not to exceed the level of representation
prescribed for „backward class of citizens‟ - as explained
WP(C) No.3450/2011 Page 12 of 21
in this judgment. (Para 60)"
In paragraph 122, their Lordships have further clarified as follows:
"(1) Article 16(4) is not an exception to Art. 16(1). It is
an instance of classification inherent in Art. 16(1). Art.
16(4) is exhaustive of the subject of reservation in favour
of backward classes, though it may not be exhaustive of
the very concept of reservation. Reservations for other
classes can be provided under clause (1) of Art. 16.
(2) The expression „backward class‟ in Art. 16(4) takes in
„Other Backward Classes‟, S.Cs., S.Ts. and may be some
other backward classes as well. The accent in Art. 16(4)
is upon social backwardness. Social backwardness leads
to educational backwardness and economic
backwardness. They are mutually contributory to each
other and are intertwined with low occupations in the
Indian society. A caste can be and quite often is a social
class in India. Economic criterion cannot be the sole
basis for determining the backward class of citizens
contemplated by Art. 16(4). The weaker sections referred
to Art. 46 do include S.E.B.Cs. referred to in Art. 340
and covered by Art. 16(4)."
13. In this regard, it will not be out of place to refer to the decision in
State of M.P. v. Ram Kishna Balothia, AIR 1995 SC 1198 wherein the
Apex Court, while upholding the constitutional validity of Section 18 of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
WP(C) No.3450/2011 Page 13 of 21
1989, referred to the Statement of Objects and Reasons of the Act and
expressed the view as follows:
"The above statement graphically describes the social
conditions which motivated the said legislation. It is
pointed out in the above Statement of Objects and
Reasons that when members of the Scheduled Castes and
Scheduled Tribes assert their rights and demand statutory
protection, vested interests try to cow them down and
terrorise them. In these circumstances, if anticipatory
bail is not made available to persons who commit such
offences, such a denial cannot be considered as
unreasonable or violative of Article 14, as these offences
form distinct class by themselves and cannot be
compared with other offences."
True it is, the said decision was rendered in the context of non-
availability of the benefit of Section 438 of the Code of Criminal Procedure
but we have referred to the same only to highlight the social conditions of
the Scheduled Castes and Scheduled Tribes people.
14. In this regard, we may profitably refer to certain paragraphs from
Union of India v. S.C. Bagari, AIR 1999 SC 1412 wherein the Apex Court
has held thus:
"13. In State of Mysore v. P. Narasinga Rao, AIR 1968
SC 349: ((1968) 1 SCR 407), this Court considered the
validity of the Rules and it was inter alia held that it is
WP(C) No.3450/2011 Page 14 of 21
well-settled that though Article 14 forbids class
legislation, it does not forbid reasonable classification for
the purposes of legislation and when any impugned rule
or statutory provision is assailed on the ground that it
contravenes Article 14, its validity can be sustained if
two tests are satisfied namely classification on which it is
founded must be based on an intelligible differentia
which distinguishes persons or things grouped together
from others left out of the group, and the second test is
that the differentia in question must have a reasonable
relation to the object sought to be achieved and in other
words there must be some rational nexus between the
basis of classification and the object intended to be
achieved. It was also held that Articles 14 and 16 form
part of the same constitutional code of guarantees and
supplement each other and in other words Article 16 is
only an instance of the application of the general rule of
equality laid down in Article 14 and it should be
construed as such and, therefore, there is no denial of
equality of opportunity unless the person who complains
of discrimination is equally situated with the person or
persons who are alleged to have been favoured.
14. In the decision of this Court in Indian Railway
SAS Staff Association v. Union of India, (1988) 2 SCC
651: (1998 AIR SCW 524), it was held that there can be
many criteria for classification of posts such as
administrative procedure and others which have to be
taken into consideration by the authorities concerned
before deciding on the classification.
15. Situated thus, broadly speaking, concept of
equality has an inherent limitation arising from very
nature of the guarantee under the Constitution and those
who are similarly circumstanced are entitled to equal
treatment. If there is a rational classification consistent
WP(C) No.3450/2011 Page 15 of 21
with the purpose for which such classification was made,
equality is not violated. Article 16 of the Constitution
does not bar a reasonable classification of employees or
reasonable tests for selection. Equality of opportunity of
employment means equality as between members of the
same class of employees and not equality between
members of separate independent classes."
15. In this regard, we may fruitfully refer to the Constitution Bench
decision in M. Nagaraj v. Union of India, (2006) 8 SCC 212 wherein it has
been stated thus:
"102. In the matter of application of the principle of
basic structure, twin tests have to be satisfied, namely,
the "width test" and the test of "identity". As stated
hereinabove, the concept of the "catch-up" rule and
"consequential seniority" are not constitutional
requirements. They are not implicit in clauses (1) and (4)
of Article 16. They are not constitutional limitations.
They are concepts derived from service jurisprudence.
They are not constitutional principles. They are not
axioms like, secularism, federalism, etc. Obliteration of
these concepts or insertion of these concepts does not
change the equality code indicated by Articles 14, 15 and
16 of the Constitution. Clause (1) of Article 16 cannot
prevent the State from taking cognizance of the
compelling interests of Backward Classes in the society.
Clauses (1) and (4) of Article 16 are restatements of the
principle of equality under Article 14. Clause (4) of
Article 16 refers to affirmative action by way of
reservation. Clause (4) of Article 16, however, states that
WP(C) No.3450/2011 Page 16 of 21
the appropriate Government is free to provide for
reservation in cases where it is satisfied on the basis of
quantifiable data that Backward Class is inadequately
represented in the services. Therefore, in every case
where the State decides to provide for reservation there
must exist two circumstances, namely, "backwardness"
and "inadequacy of representation". As stated above,
equity, justice and efficiency are variable factors. These
factors are context-specific. There is no fixed yardstick to
identify and measure these three factors, it will depend
on the facts and circumstances of each case. These are
the limitations on the mode of the exercise of power by
the State. None of these limitations have been removed
by the impugned amendments. If the State concerned
fails to identify and measure backwardness, inadequacy
and overall administrative efficiency then in that event
the provision for reservation would be invalid. These
amendments do not alter the structure of Articles 14, 15
and 16 (equity code). The parameters mentioned in
Article 16(4) are retained. Clause (4-A) is derived from
Clause (4) of Article 16. Clause (4-A) is confined to SCs
and STs alone. Therefore, the present case does not
change the identity of the Constitution. The word
"amendment" connotes change. The question is - whether
the impugned amendments discard the original
constitution. It was vehemently urged on behalf of the
petitioners that the Statement of Objects and Reasons
indicate that the impugned amendments have been
promulgated by Parliament to overrule the decision of
this Court. We do not find any merit in this argument.
Under Article 141 of the Constitution the pronouncement
of this Court is the law of the land. The judgments of this
Court in Virpal Singh, Ajit Singh (I), Ajit Singh (II) and
Indra Sawhney were judgments delivered by this Court
which enunciated the law of the land. It is that law which
is sought to be changed by the impugned constitutional
WP(C) No.3450/2011 Page 17 of 21
amendments. The impugned constitutional amendments
are enabling in nature. They leave it to the States to
provide for reservation. It is well settled that Parliament
while enacting a law does not provide content to the
"right". The content is provided by the judgments of the
Supreme Court. If the appropriate Government enacts a
law providing for reservation without keeping in mind
the parameters in Article 16(4) and Article 335 then this
Court will certainly set aside and strike down such
legislation. Applying the "width test", we do not find
obliteration of any of the constitutional limitations.
Applying the test of "identity", we do not find any
alteration in the existing structure of the equality code.
As stated above, none of the axioms like secularism,
federalism, etc. which are overarching principles have
been violated by the impugned constitutional
amendments. Equality has two facets - "formal equality"
and "proportional equality". Proportional equality is
equality "in fact" whereas formal equality is equality "in
law". Formal equality exists in the rule of law. In the case
of proportional equality the State is expected to take
affirmative steps in favour of disadvantaged sections of
the society within the framework of liberal democracy.
Egalitarian equality is proportional equality.
106. The gravamen of Article 14 is equality of
treatment. Article 14 confers a personal right by enacting
a prohibition which is absolute. By judicial decisions, the
doctrine of classification is read into Article 14. Equality
of treatment under Article 14 is an objective test. It is not
the test of intention. Therefore, the basic principle
underlying Article 14 is that the law must operate equally
on all persons under like circumstances. [Emphasis
added]. Every discretionary power is not necessarily
discriminatory. According to the Constitutional Law of
India, by H.M. Seervai, 4th Edn. 546, equality is not
WP(C) No.3450/2011 Page 18 of 21
violated by mere conferment of discretionary power. It is
violated by arbitrary exercise by those on whom it is
conferred. This is the theory of "guided power". This
theory is based on the assumption that in the event of
arbitrary exercise by those on whom the power is
conferred, would be corrected by the Courts. This is the
basic principle behind the enabling provisions which are
incorporated in Articles 16(4-A) and 16(4-B). Enabling
provisions are permissive in nature. They are enacted to
balance equality with positive discrimination. The
constitutional law is the law of evolving concepts. Some
of them are generic, others have to be identified and
valued. The enabling provisions deal with the concept,
which has to be identified and valued as in the case of
access vis-à-vis efficiency which depends on the fact
situation only and not abstract principle of equality in
Article 14 as spelt out in detail in Articles 15 and 16.
Equality before the law, guaranteed by the first part of
Article 14, is a negative concept while the second part is
a positive concept which is enough to validate equalizing
measures depending upon the fact situation.
107. It is important to bear in mind the nature of
constitutional amendments. They are curative by nature.
Article 16(4) provides for reservation for Backward
Classes in cases of inadequate representation in public
employment. Article 16(4) is enacted as a remedy for the
past historical discriminations against a social class. The
object in enacting the enabling provisions like Articles
16(4), 16(4-A) and 16(4-B) is that the State is
empowered to identify and recognize the compelling
interests. If the State has quantifiable data to show
backwardness and inadequacy then the State can make
reservations in promotions keeping in mind maintenance
of efficiency which is held to be a constitutional
limitation on the discretion of the State in making
WP(C) No.3450/2011 Page 19 of 21
reservation as indicated by Article 335. As stated above,
the concepts of efficiency, backwardness, inadequacy of
representation are required to be identified and measured.
That exercise depends on availability of data. That
exercise depends on numerous factors. It is for this
reason that enabling provisions are required to be made
because each competing claim seeks to achieve certain
goals. How best one should optimize these conflicting
claims can only be done by the administration in the
context of local prevailing conditions in public
employment. This is amply demonstrated by the various
decisions of this Court discussed hereinabove. Therefore,
there is a basic difference between "equality in law" and
"equality in fact" (See: Affirmative Action by William
Darity). If Articles 16(4-A) and 16(4-B) flow from
Article 16(4) and if Article 16(4) is an enabling provision
then Articles 16(4-A) and 16(4-B) are also enabling
provisions. As long as the boundaries mentioned in
Article 16(4), namely, backwardness, inadequacy and
efficiency of administration are retained in Articles 16(4-
A) and 16(4-B) as controlling factors, we cannot attribute
constitutional invalidity to these enabling provisions.
However, when the State fails to identify and implement
the controlling factors then excessiveness comes in,
which is to be decided on the facts of each case. In a
given case, where excessiveness results in reverse
discrimination, this Court has to examine individual
cases and decide the matter in accordance with law. This
is the theory of "guided power". We may once again
repeat that equality is not violated by mere conferment of
power but it is breached by arbitrary exercise of the
power conferred."
16. Applying the aforesaid test, it is quite clear that Regulation 4(iii-a)
WP(C) No.3450/2011 Page 20 of 21
confers the power on the Union of India to issue a notification. It has so
done by issuing a notification. It has limited seven attempts to the Other
Backward Classes. The same is a reasonable exercise of power and a
guided one. As far as the Scheduled Castes and Scheduled Tribes are
concerned, number of attempts is not fixed. In the opinion of the Union of
India they are to be given chances to compete to the best of their ability and
come to the mainstream. That apart, though unlimited chances are given,
yet the upper age limit is prescribed. Thus, it is not unreasonable. Quite
apart from the above, it is noteworthy in view of the historical backdrop of
the constitutional provisions. Hence, we are of the considered opinion that
it meets the test of reasonable classification. Judged from these angles, we
are of the considered opinion the said Regulation does not suffer from the
vice of Articles 14 or 16 of the Constitution of India.
17. Consequently, the writ petition, being devoid of merit, stands
dismissed without any order as to costs.
CHIEF JUSTICE
MAY 23, 2011|pk/dk SANJIV KHANNA, J.
WP(C) No.3450/2011 Page 21 of 21
