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In Mandal's case, admittedly, the two Government Memorandum provided for reservation to OBCs. in initial direct recruitment in central services. The question of reservation in promotion was non-issue as conceded in that case itself and across the bar: but the learned judges, with all due respect and deference to their learned view, decided a non-issue, though objected to on the ground that counsel appearing for the parties had put their heads together and formed the issue and reference was made to a larger Bench so that the issue was decided on that premise though it is settled constitutional law that constitutional issues cannot be decided unless the issues directly arises for decision, with due respect the Bench decided a non-issue on a constitutional law affecting 22% of the national population and held that Article 16(1) read with Article 16(4) provides right to reservation in initial recruitment. The framers of the Constitution did nor intend to provided for reservation in promotion. Since Article 335 speaks of efficiency of administration, reservation in promotion to the Dalits and Tribes, without competition with non-reserved employees would affect efficiency in service is unconstitutional. IT si an admitted case that as there was no issue, nor was any evidence adduced to prove whether efficiency of administration was deteriorated due to reservation in promotion; nor was it pointed out from the facts of any case.

In Maharashtra State Board of Secondary and Higher Secondary Education V. K.S. Gandhi & Ors. [(1991) 2 SCC 716 at 748 at 37] a Bench of two judges had held that to prove a fact, inference must be drawn on the basis of the evidence and circumstances. They must be carefully distinguished form conjectures or speculation. The mind is prone to take pleasure adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in prof of the fact in issue. There can be no inferences unless there are objective facts, direct or circumstantial, from which the other fact which is sought to establish an be inferred. In some case, the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases, the inferences d not go beyond reasonable probability. It there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made. the method of inference fails and what is left is mere speculation or conjecture. Therefore, for an inference of proof that a fact in dispute has been hold established, there must be some material facts or circumstances on record form which such an inference could be drawn." In the absence of any issue and facts and proof thereof, the inference that reservation in promotion deteriorates the efficiency or administration remains only a conjecture or an opinion based on no evidence. As seen, it is constitutional mandate of the State under Article 335 that to render socio-economic justice and to prevent injustice to the Dalit and Tribes, facilities and opportunities of reservation in promotion should be provided consistently with the efficiency of administration.

Justice O. Chinnappa Reddy, in K.C. Vasanth Kumar & Anr. vs. State of Karnataka [1985 (Supp.) SCC 714 at 738- 740] had stated thus :

"Efficiency is very much on the lips of the privileged whenever reservation is mentioned.

Efficiency, it seems, will be impaired if the total reservation exceed 50%; efficiency, it seems, will suffer if the 'carry forward' rule is adopted; efficiency, it seems, will be injured if the rule of reservation is extended to promotional posts, From the protests against reservation exceeding 50% or extending to promotional posts and against the carry forward rule, one would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen the of the elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the civil services is no paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlaying assumption that those belonging to the upper-castes and classes, who are appointed to the non-reserved posts will, because of their presumed merit, 'naturally' perform better than those who have been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitists classes.

There is neither statistical basis nor expert evidence to support these assumptions that efficiency will necessarily be impaired if reservation exceeds 50%, if reservation is carried forward or if reservation is extended to promotional posts. Arguments are advanced are opinion are expressed entirely on an ad hoc presumptive basis. The age long contempt with which the 'superior' or ' forward' castes have treated the 'inferior' or 'backward' castes is now transforming and crystallising itself into an unfair prejudice, conscious and subconscious, ever since the 'inferior' castes and classes started claiming their legitimate share of the cake, which naturally means, for the 'superior' castes, parting with a bit of it. Although in actual practice their virtual monopoly on elite occupations and post is hardly threatened. the forward casts are nevertheless increasingly afraid that they might loses this monopoly in the higher ranks of government service and the profession. It is so difficult for the 'superior' castes to understand and rise above their prejudice and its is so difficult for the inferior castes and classes to overcome the bitter prejudice and opposition which they are forced to face at every stage, always one hears the word 'efficiency' as if it is sacrosanct and the sanctorum has to be fiercely guarded. 'Efficiency' is not a Mantra which is whispered by the Guru in the Sishya's year. The mere securing of high marks at an examination may not necessarily mark out a good administrator. An efficient administrator, one takes it, must be one who possesses amount other qualities the capacity to understand with sympathy and, therefore, to tackle bravely the problems of a large segment of population constituting the weaker sections of the people. And, who better than the ones belonging to those very sections? Why not ask ourselves why 35 years after independence, the position of the Scheduled Castes, etc. has not greatly improved? Is it not a legitimate question to ask whether things might have been different, had the District Administrators and the State and Central Bureaucrats been drawn in larger numbers from these classes? Courts are not equipped to answer these questions, but the courts may not interfere with the honest endeavours of the Government to find answers and solutions. We do not mean to say that efficiency in the civil service is unnecessary or that it is a myth. All that we mean to say is that one need not make a fastidious fetish of it. It may be that for certain posts, only the best may be appointed and for certain courses of study only the best may be admitted. If so, rules may provide for reservation for appointment to such posts and for admission to such courses. The rules may provide for no appropriate method of selection. It may be that certain posts require a very high decree of industry and intelligence. If so, The rules may prescribe a high minimum qualifying standard and an appropriate method of selection. Different minimum standards and different modes of selection may be prescribed for different posts and for admission to different posts and for admission to different courses of study and having regard to the requirements of the posts and the courses of study. No one will suggest that the degree of efficiency required of a general medical practitioner. Similarly, no one will suggest that the decree of industry and intelligence expected of a candidate seeking admission to an ordinary arts degree course. We do not, therefore, means to say that efficiency is to be altogether discounted. All that we mean to say is that it cannot be permitted to be used as a camouflage to let the upper classes in its name and to monopolise the services, particularly the higher posts and the professional institutions. We are afraid we have to rid our minds of many cobwebs before we arrive at the core of the problem. The quest for our illusions, though not our faith. It is the dignity of man to pursue the quest for equality. It will be advantageous to quote at this juncture R.H. Tawney in his 'classic work Equality' where he says.