14. Reservation – not a fundamental right

In C. A. Rajendran v. Union of India, (1968) 1 SCC 721 : (AIR 1968 SC 507) it was clearly laid down by the five Judge Bench that Article 16(4) was only an enabling provision, that Article 16(4) was not a fundamental right and that it did not impose any constitutional duty. It only conferred a discretion on the State. The supreme court held: “Our conclusion therefore is that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the government to make reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage or at the stage of promotion. In other words, Article 16(4) is an enabling provision and confers discretionary power on the State to make a reservation of appointment in favour of backward class of citizens which, in its opinion, is not adequately represented in the services of the State.”

The above principle was reiterated in two three Judge Bench judgments in P and T SC/ST Employees' Welfare Association v. Union of India (1988) 4 SCC 147 : (AIR 1989 SC 139 : 1989 Lab IC 1045); and in SBI SC/ST Employees Welfare Association v. State Bank of India (1996) 4 SCC 119 : (1996 AIR SCW 2138 : AIR 1996 SC 1838 : 1996 Lab IC 1612). In fact, as long back as in 1963, in M. R. Balaji v. State of Mysore, 1963 Suppl (1) SCR 439 (at p. 474) : (AIR 1963 SC 649 at p. 664) which was decided by five learned Judges, the Court said the same thing in connection with Articles 15(4) and Article 16(4). Stating that Articles 15(4) and 16(4) were only enabling provisions, Gajendra-gadkar, J. (as he then was) observed :

"In this connection, it is necessary to emphasise that Article 15(4) like Article 16(4) is an enabling provision, it does not impose an obligation, but merely leaves it to the discretion of the appropriate Government to take suitable action, if necessary."

A three Judge Bench in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : (1997 AIR SCW 2257 : AIR 1997 SC 2366 : 1997 Lab IC 2301) took a view that. the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Article 16(4A) were fundamental rights and in that behalf, it followed Ashok Kumar Gupta v. State of U. P., (1997) 5 SCC 201 where a similar principle had been laid down. In these two cases the earlier constitution bench decisions in C A Rajendran and M.R. Balaji and other larger bench decisions referred above, were not brought to the notice of the court.

In Ajit Singh v. State of Punjab AIR 1999 SC 3471 a Five Judge Bench of the Supreme Court overruled the decisions in Jagdish Lal and Ashok Kumar Gupta and held that: “In view of the overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted. We accordingly hold that on this aspect Ashok Kumar Gupta, Jagdishlal and the cases which followed these cases do not lay down the law correctly.”