JUDGMENT
D.K. Deshmukh, J.
1. Rule, returnable forthwith by consent of the parties. Leave to amend.
2. By this petition, the petitioners challenge the advertisement dated 27th February, 1999 Issued by the Pune University advertising 85 posts of Teachers. By that advertisement, all the posts have been reserved for scheduled castes, scheduled tribes, de-notified tribes, nomadic tribes and other backward class candidates. The Petitioners who according to them are eligible for these posts have challenged the advertisement on the ground that their right to apply for these posts which is guaranteed to them by Articles 14 and 16 of the Constitution of India has been denied because all the posts have been reserved for scheduled castes, scheduled tribes, de-notified tribes, nomadic tribes and other backward class candidates whereas the petitioners do not belong to any of these categories. According to the petitioners, the reservation of all the posts advertised amounts to 100% reservation which is according to them violating the rights guaranteed under Article 14 of the Constitution of India. The learned Counsel appearing for the petitioners, in support of his contention, relies on a judgment of the Constitution Bench of the Supreme Court in the case of Indra Sawhney and Ors. v. Union of India and Ors. and again a judgment of the Constitution Bench of the Supreme Court in the case of Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. . In the submission of the learned counsel, the Supreme Court in both these judgments has clearly held that the carry forward rule cannot be applied to reserve 100% posts in a year in favour of the backward classes. The learned Counsel appearing for the University, on the other hand, relying on a judgment of the Supreme Court in the case of Post-Graduate Institute of Medical Education and Research v. K.L. Narasimhan and Anr. submits that the Supreme Court in the above referred judgment has held that if the authority is filling in the posts as a special drive exclusively for the dalits and tribes, the rule that more than 50% posts cannot be reserved does not apply. The learned Counsel for the petitioners, on the other hand, points out that the judgment of the Supreme Court in Narasimhan’s case has been set aside by the Supreme Court by its subsequent judgment in the Post-Graduate Institute of Medical Education and Research’s case referred above.
3. Now, in the light of these rival submissions, if the record of the case is perused, it is an admitted position that by the advertisement which is impugned in this petition, 100% vacancies in a year are being reserved for the backward classes. The Supreme Court in paragraph 99 of its judgment in the case of Indra Sawhney (supra) has observed that:-
99. We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50% rule.
Thus, the Constitution Bench of the Supreme Court has clearly laid down that the result of application of carry forward rule can in no case result in breach of 50% ceiling. The Supreme Court has also held in the same judgment that a year should be taken as a unit or basis for applying the rule of 50% and not the entire cadre. The Supreme Court in its judgment in Narasimhan’s case, however, appears to have made an exception to this well established rule while accepting that in Indra Sawhney’s case, it is clearly laid down that the reservation of vacancies arising in a particular year cannot exceed 50%. The Supreme Court in paragraph 20 of its judgment in Narasimhan’s case has observed that:-
On the facts in this case, it is not necessary to go into that aspect of that matter. Suffice to state that the case can be decided on another point without touching upon that issue and leaving it open. It is seen that this notification is only for a special recruitment exclusively for the Dalits and Tribes, in the light of Sharma’s ratio, it is always open to the Government to carry out special recruitment to fill up the backlog vacancies reserved for SC/ST. It is not the case that backlog vacancies should be thrown open to the general candidates unless they are de-reserved and notified for recruitment by general candidates and equal number of posts are carried forward. There is no compulsion on the Government to fill up the vacancies stage by stage…. There is no prohibition on filling up backlog vacancies by special recruitment. The special recruitment is not treated as routine recruitment in any year. The bar of 50% would apply only when general recruitment is made on both to the general as well as the reserved candidates in respect of the current vacancies. But when special recruitment is made for selection and appointment of the Dalits and Tribes, to the reserved backlog vacancies, the normal run for recruitment is inapplicable.
Thus, it appears that though the Supreme Court in Narasimhan’s case has accepted that the law laid down by the Constitution Bench in Indra Sawhney’s case was that the reservation for carry forward vacancies in any year cannot exceed 50%, the Supreme Court made a distinction between general recruitment to which even according to Narasimhan’s case 50% rule applies and special recruitment for filling in the backlog vacancies. It appears that the same judgment of the Supreme Court in Narasimhan’s case was being considered by the Supreme Court while deciding the Post-Graduate Institute of Medical Education and Research’s case. In fact, in that case, the Supreme Court was considering the review application filed against the judgment in Civil Appeal No. 3175 of 1997 which was decided by the Supreme Court in Narasimhan’s case. The Supreme Court in Post-Graduate Institute of Medical Education and Research’s case in paragraph 20 has observed thus:-
20. It is then contended that in view of the decision of this Court in Indra Sawhney v. Union of India the recruitment to 12 posts reserved for Dalits and Tribes, is in violation of the carry forward principle adumbrated therein. He placed strong reliance on paragraphs 8717-18 at pages 739-40. The carried forward posts cannot be filled up or reservation cannot exceed 50% of the 12 posts, proposed to be filled. It is contended that recruitment to the balance, i. e. 6 posts, whenever made or in whatever manner it is sought to be worked out should be thrown open for general candidates. We find no force in the contention. The case therein did not relate to carried forward posts. Firstly, he admits that Indra Sawhney’s case is not a ratio decidendi on carried forward rule since the facts therein do not relate to carried forward posts and, therefore, though it does not operate as a binding precedent, yet, he says, the ratio is obiter and would bind the smaller Benches, and, therefore, this Bench is bound by the said ratio, in view of the fair stand taken by Shri Rao that it does not operate as a ratio decidendi, the question arises whether it binds smaller Benches as obiter dicta. On the facts in this case, it is not necessary to go into that aspect of that matter. Suffice to state that the case can be decided on another point without touching upon that issue and leaving it open. It is seen that this notification is only for a special recruitment exclusively for the Dalits and Tribes. In the light of Sharma’s ratio, it is always open to the Government to carry out special recruitment to fill up the backlog vacancies reserved for SC/ST. It is not the case that backlog vacancies should be thrown open to the general candidates unless they are de-reserved and notified for recruitment by general candidates and equal number of posts are carried forward. There is no compulsion on the Government to fill up the vacancies stage by stage. For instance, all the 12 vacancies are meant exclusively for Dalits and Tribes. The recruitment is by a special drive. Until the posts are thrown open after de-reservation in accordance with the principle referred to hereinbefore, the posts would not be available to the general candidates. The obiter dicta in Indra Sawhney case 1992 AIR SCW 3682 on carry forward rule, even if applied, does not violate 50% reservation principle for the reason that if 12 posts are advertised for recruitment, appointment to 6 posts could be made and the balance 6 posts again would be re-advertised. 3 posts again would be filled up and when 3 posts would be advertised, two could be filled up and one could be carried forward and the remaining one could be filled up in the last recruitment. There is no prohibition on filling up backlog vacancies by special recruitment. The special recruitment is not treated as routine recruitment in any year. The bar of 50% would apply only when general recruitment is made on both to the general as well as the reserved candidates in respect of the current vacancies. But when special recruitment is made for selection and appointment of the Dalits and Tribes, to the reserved backlog vacancies, the normal run for recruitment is inapplicable. Accordingly instead of conducting the exams for different categories in the manner indicated above, there is no constitutional prohibition on filling up of the backlog vacancies by a special recruitment in a single go. Thus we hold that the special recruitment is not violative of the principle of carry forward within one year equally, reservation within 50% quota is not violative. In this behalf, this Court in G.S. Gill’s case had held as under:-
Thus, it could be seen that the carry forward rule is constitutionally permissible. It is an extension of the principle of providing facility and opportunity to secure adequacy of the representation to Dalits and Tribes mandated by Article 335. It should be carried for three years. Even in the post when the vacancy as per roster was available, but candidates were not available, same could be carried forward for three years. However, in each recruitment year, the carry forward rule cannot exceed 50% of the vacancies. That question does not arise in a situation where there is single post/cadre, in S.S. Sharma v. Union of India in paragraph 8 at page 592, this Court had held that the limited Departmental competitive examination in recruitment of the members of the Scheduled Castes and Scheduled Tribes for determination of eligibility for promotion is not invalid nor the Central Government be directed to de-reserve the vacancies meant for such members when it was found that suitable Scheduled Caste and Scheduled Tribe candidates were not available for inclusion within the field of selection. Whether or not reserved vacancies should be de-reserve is a matter falling primarily within the administrative discretion of the Government. There is no right in general candidates to seek filling up of the vacancies belonging to the reserved category and to insist on de-reservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies. In other words, carried forward (unfilled) vacancies reserved for Dalits and Tribes should be filled up only by the reserved candidates and general candidates have no right to seek direction for de-reservation thereof for filling up of the same by general candidates. It would thus be clear that carry forward rule is a permissible constitutional rule. Carry forward would be done for three years.
It is thus clear that the Supreme Court has held that an isolated single post cannot be reserved even by operating the roster system because whenever that post is reserved, it amounts to 100% reservation of the vacancy. The learned Counsel appearing for the University, however, submits that the Supreme Court in Post-Graduate Institute of Medical Education and Research’s case was considering only one of the aspect viz. reservation of isolated post. In the submission of the learned Counsel, the carry forward rule was not being considered by the Supreme Court in the aforesaid matter. In our opinion, the submission is not well founded. For considering validity of the rule, for non-reservation of a single isolated post, the: carry forward rule has to be considered unless the Court accepts that reservation for not more than 50% posts as illegal, the Court cannot come to the conclusion that a single isolated post cannot be reserved. Thus, it is clear that the Constitution Bench of the Supreme Court in Post-Graduate Institute of Medical Education and Research’s case has held that single isolated post cannot be reserved and reservation for more than 50% vacancies is impermissible. In our opinion, these two questions cannot be said to be separate issues. It is further to be seen here that the judgment in the case of K.L. Narasimhan was the judgment in several appeals. There are no separate judgments given and the Supreme Court in paragraph 38 of its judgment in the case of Post-Graduate Institute of Medical Education and Research has observed thus:-
38. We, therefore, approve the view taken in Chakradhar’s case that there cannot be any reservation in a single post cadre and we do not approve the reasonings in Madhav’s case 1997 AIR SCW 3113, Brij Lal Thakur’s case and Bageswari Prasad’s case 1995 Supp. (1) SCC 432 upholding reservation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education and Research cannot also be sustained. The review petition made in Civil Appeal No. 3175 of 1997 in the case of Post-Graduate Institute of Medical Education and Research. Chandigarh, is therefore, allowed and the judgment dated May 2, 1997 passed in Civil Appeal No. 3175 of 1997 is set aside.
It is thus clear that the judgment of the Supreme Court in Narasimhan’s case dated 2nd May, 1997 has been set aside and therefore, the learned Counsel appearing for the University was not justified in relying on that judgment. To our mind, there cannot be any doubt now as a result of the judgment of the Constitution Bench in Indra Sawhney’s case and Post-Graduate Institute of Medical Education and Research’s case that 100% reservation for vacancies is impermissible and in any case, reservation beyond 50% could be made. It is further to be seen her that even if it is assumed that the judgment of the Supreme Court in Narasimhan’s case is intact and still survives, the Supreme Court holds that the bar of 50% applies to general recruitment and it does not apply when special recruitment of backlog vacancies is being taken. Before us, it is an admitted position that while issuing the advertisement, which is impugned in the petition, the University has issued another advertisement making recruitment to the general as also reserved posts. In this view of the matter, therefore, in our opinion, the advertisement cannot be said to be proper even by the judgment of the Supreme Court in Narasimhan’s case.
4. In the result, therefore, the petition succeeds and is allowed, rule is made absolute in terms of prayer Clauses (a) and (b)(ii) which read thus:-
(a) for a writ of certiorari, for a writ in the nature of certiorari or for any other appropriate writ, direction or order calling for the records and proceedings of the advertisement dated 27.2.1999 issued by the respondents Nos. 1 and 2 and after examining the legality, validity and propriety thereof the said impugned advertisement dated 27.2.1999 be quashed and set aside.
(b)(ii) directing the respondents to advertise 50% of total vacancies for reserved category candidates and remaining 50% for open category candidates:
No order as to costs.
Cretified Copy is expedited