{"id":161386,"date":"1998-04-17T00:00:00","date_gmt":"1998-04-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/post-graduate-institute-of-vs-faculty-association-and-on-17-april-1998"},"modified":"2017-05-30T11:17:50","modified_gmt":"2017-05-30T05:47:50","slug":"post-graduate-institute-of-vs-faculty-association-and-on-17-april-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/post-graduate-institute-of-vs-faculty-association-and-on-17-april-1998","title":{"rendered":"Post Graduate Institute Of … vs Faculty Association And … on 17 April, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Post Graduate Institute Of … vs Faculty Association And … on 17 April, 1998<\/div>\n
Author: G.N.Ray<\/div>\n
Bench: S.C.Agrawal, G.N.Ray, A.S.Anand, S.P.Bharucha, S.Rajendra Babu<\/div>\n
           CASE NO.:\nReview Petition (civil)  1749 of 1997\n\nPETITIONER:\nPOST GRADUATE INSTITUTE OF MEDICALEDUCATION AND RESEARCH CHANDIGARH\n\nRESPONDENT:\nFACULTY ASSOCIATION AND ORS.M.L.SEHGAL AND ORS K.SIVAN AND ORS,\n\nDATE OF JUDGMENT: 17\/04\/1998\n\nBENCH:\nS.C.AGRAWAL & G.N.RAY & A.S.ANAND & S.P.BHARUCHA & S.RAJENDRA BABU\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
WITH
\nCIVIL APPEAL NO. 2346 OF 1981
\nCIVIL APPEAL NO.2345 OF 1981
\nSPECIAL LEAVE PETITION (CIVIL) No 13148 OF 1997
\nSPECIAL LEAVE PETITION (CIVIL) NO. 2892 OF 1983
\nSPECIAL LEAVE PETITION (CIVIL) 9252 OF 1981<\/p>\n
DELIVERED BY:\n<\/p>\n
G.N.RAY, J.\n<\/p>\n
G.N. RAY,J.\n<\/p>\n
     In all  these matters  a  common  question\t arises\t for
\ndecision as  to whether n a singh cadre post reservation for
\nthe backward  classes, namely,\tScheduled Castes,  Scheduled
\nTribes\tand  other  backward  classes  can  be\tmade  either
\ndirectly or by applying\t rotation of roster point. These are
\nconflicting  decisions of this Court on the question of such
\nreservation in a single cadre post.\n<\/p>\n
     The learned  counsel  for\tthe  parties  in  all  these
\nmatters have  agreed in\t the  question\tof  law\t as  to\t the
\nconstitutional validity\t of reservation\t in a  single  cadre
\npost  is  to  be  decided  by  the  constitution  Bench\t and
\nthereafter the\tcases will  be placed before the appropriate
\nBench for  disposal on\tmerits in  accordance with  decision
\nrendered  by   this  Bench.   therefore,  the\tquestion  of
\nconstitutional validity\t of reservation\t in a  single  cadre
\npost either directly or by rotation of roster point has been
\nconsidered by  us and  we have\tnot taken into consideration
\nother contentions raised in these matters.\n<\/p>\n
     In support\t of the\t contention  that reservation can be
\nmade not only in respect of the promotional post but also in
\nrespect of  a single  post in  a cadre,\t Mr. E.C.  Agrawala,
\nlearned counsel\t appearing  for\t the  appellant\t in  CA\t No.
\n2346\/81,  Mr.\tPuri,  learned\tcounsel\t appearing  for\t the
\nappellant in  CA No.  2345 of  1981, Mr.  R.K. Jain, learned
\nsenior counsel\tappearing for  the Intervenor  in the review
\npetition filed\tin CA  No. 3175\t of 1997  on behalf  of\t the
\nScheduled Castes  and  scheduled  tribes  Employees  Welfare
\nAssociation, Post  Graduate Institute  of medical  Education
\nand Research,  Chandigarh,  and\t Mr.  Andhyarujina,  learned
\nSolicitor General appearing for the appellant in SLP [c] No.
\n13148 of  1997 for  the petitioner  Union of India have made
\nelaborate  submissions.\t Mr.  kapil  Sibal,  learned  senior
\ncounsel appearing  in support  of the  review petition in CA
\nNo.  3175   of\t1997  has  opposed  the\t contention  that  a
\nreservation can\t be made  in respect of a single post cadre.
\nOther  learned\tcounsel\t appearing  in\tthese  matters\thave
\nadopted\t the  rival    contentions,  without  advancing\t any
\nseparate argument.\n<\/p>\n
     Mr. Kapil\tSibal has submitted that there cannot be any
\nreservation  either   for  initial  appointment\t or  for  an
\nappointment on\tpromotion in  respect of a single post cadre
\neither directly\t or by the device of rotation or roster. Mr.
\nSibal has  contended that  the very concept of carry forward
\nor the\tprinciple of roster is alien to a single post cadre.
\nhe has\talso contended\tthat the  principle of carry forward
\nmeaning thereby\t carrying  forward  reservation\t presupposes
\nexistence of multi posts cadre. If there is only one post in
\na cadre,  the vacancy  for such single post being filled up,
\nthere will  be no  occasion for carrying forward reservation
\nfor filling  up such  vacancy. Mr.  Sibal has also contended
\nthat the rationale of reservation under Article 16(4) of the
\nconstitution is\t founded on the inadequacy of representation
\nof a  class in\tthe service under the state. The question of
\nadequacy of  representation does  not and  cannot arise in a
\nsingle\tpost   cadre  because\t  only\tone  person  can  be
\naccommodated against  the single  post, leaving no scope for
\nadequate representation\t of any\t particular  class  in\tsuch
\nsingle post.\n<\/p>\n
     Mr. Sibal\thas contended  that  the  impugned  judgment
\ncannot\tbe   supported\tbecause\t (a)  reservation  of  super
\nspeciality is  against the  decision of a Nine Judges’ Bench
\ndecision of  this Court\t in Indra  Sawhney etc. Vs. Union of
\nIndia  and  Ors.  (1992\t Supp.\t(3)  SC\t 217),\tand  (b)  no
\nreservation in\ta single  cadre post  is permissible in law.
\nMr. Sibal  has submitted  that both in the impugned judgment
\nand also  in the  judgment of  Union of\t India and  Anr. Vs.
\nMadhav and  Anr. (1997\t(2) SCC\t 332) on  which reliance has
\nbeen made  in  the  impugned  judgment,\t the  ratio  in\t the
\ndecision of  Arati Ray Choudhury Vs. union of India and Ors.
\n(1974 (1)  SCC 87) was wrongly appreciated and the ratio was
\nwrongly stated.\t Mr. Sibal  has drawn  the attention  of the
\nCourt to  the observations  of Justice\tReddy  speaking\t for
\nmajority decision  on Article  335 of  the  constitution  as
\ncontained  in\tparagraph  112\tof  the\t decision  in  Indra
\nSawhney’s case which are as follows:-\n<\/p>\n
\t  “While on  Article 335, we are
\n     of\t the   opinion\tthat  there  are
\n     certain  services\t and   positions
\n     where  either  on\taccount\t of  the
\n     nature of\tduties attached\t to them
\n     or the  level (in the hierarchy) at
\n     which   they   obtain,   merit   as
\n     explained\t  hereinabove,\t   alone
\n     counts. in\t such situations  it  ma
\n     not be  advisable\tto  provide  for
\n     reservations.     for\texample,
\n     technical\tposts  in  research  and
\n     development\t  organisations\/
\n     departments\/institutions,\t      in
\n     specialities and super-specialities
\n     in medicine,  engineering and other
\n     such courses  in physical\tsciences
\n     and   mathematics,\t   in\t defence
\n     services and  in the establishments
\n     connected therewith.  Similarly, in
\n     the case  of posts\t at  the  higher
\n     echelons\te.g.\tprofessors   (in
\n     Education),   Pilots    in\t  Indian
\n     Airlines and  Air India, scientists
\n     and  Technicians\tin  nuclear  and
\n     space  application,  provision  for
\n     reservation would not be advisable.
\n\t  x x x Be that as it may we are
\n     of\t the  opinion  that  in\t certain
\n     services and  in respect of certain
\n     posts, application\t of the\t rule of
\n     reservation ma not be advisable for
\n     the reason\t indicated hereinbefore.<\/p><\/blockquote>\n
     Some   of them  are :  (1)\t Defence
\n     Services  including  all  technical
\n     posts therein  but excluding  civil
\n     posts. ()\tAll technical\tposts in
\n     establishments\t engaged      in
\n     production\t of  defence  equipment.
\n     (3) Teaching  posts of professors –
\n     above if  any, (4)\t Posts in  super
\n     specialities      in      Medicine,
\n     engineering  and  other  scientific
\n     and technical subject. (5) Posts of
\n     pilots (and  co-pilots)  in  Indian
\n     Airlines and  air India.  The  list
\n     given above  is merely illustrative
\n     and not  exhaustive. It  is for the
\n     Government of India to consider and
\n     specify the  service and  posts  to
\n     which the Rule of reservation shall
\n     not apply\tbut on\tthat account the
\n     implementation of\timpugned  office
\n     Memorandum dated  13th August, 1990
\n     cannot be stayed or withheld.
\n\t  We  may  point  out  that  the
\n     services posts enumerated above, on
\n     account of\t their nature and duties
\n     attached,\tare  such  as  call  for
\n     highest  level   of   intelligence,
\n     skill and\texcellence. Some of them
\n     are second\t level and  third  level
\n     posts  in\t the  ascending\t  order.
\n     hence, they  form a category apart.
\n     Reservation  therein   may\t not  be
\n     consistent\t with\t“efficiency   of
\n     administration”   contemplated   by
\n     Art. 335.\n<\/p><\/blockquote>\n
\t  We may  add  that  we\t see  no
\n     particular\t relevance   of\t Article
\n     38() in this context. Article 16(4)
\n     is\t also\ta  measure   to\t  ensure
\n     equality of status besides equality
\n     of opportunity.”<\/p><\/blockquote>\n
     Mr. Sibal\thas also submitted that\t the reservation for
\nthe  socially,\t economically  and   educationally  backward
\nclasses is made so that the members of such backward classes
\ndo  not\t fail  to  get\tadequate  representation  in  public
\nemployment on  account of  facing open competition. but such
\nreservation cannot  be and  should not\tbe made for posts in
\nhigher echelons\t where merit and expertise are essential and
\nalso   necessary    for\t  discharging\t the   duties\t and
\nresponsibilities of  such positions  in higher\techelons  of
\nservice. Mr.  Justice Reddy  in the majority decision, which
\nwas also  concurred by Justice Pandian, has pointed out that
\nthere are  some\t services  and\tpositions  where  either  on
\naccount of  the nature\tof duties  attached to\tthem or\t the
\nlevel in  the hierarchy\t at which  they obtain,\t merit alone
\ncounts. In  such situations,  it may  not  be  advisable  to
\nprovide for  reservation and  in that  context,\t by  way  of
\nillustration, enumerated  certain  positions  including\t the
\ntechnical posts in the Establishment engaged in Research and
\nDevelopment, the teaching posts of Professors and above, the
\nposts of  super-specialities in\t Medicine,  Engineering\t and
\nother Scientific  and Technology subjects, and also posts of
\npilots and  co-pilots in  Indian Airlines and Air India. Mr.
\nSibal has  submitted  that  by\tand  large,  in\t the  higher
\nechelons of  service, there  is a  single  post\t cadre.\t The
\nappointment to\tthe posts  of Professors  or Readers  in the
\nsuper-speciality of Medicine in an advanced institution like
\nthe Post  Graduate Institute of Medical Research & Education
\nin Chandigarh  appointments must  be made  strictly  on\t the
\nbasis of  selection on merits and any attempt of reservation
\nby whatever method will not only be against law laid down by
\nthis court  but also  against the  larger interests  of\t the
\ncountry.\n<\/p>\n
     Mr. Sibal\thas contended  that in M.R. Balaji & Ors. v.
\nState of  Mysore<\/a> (1963\tSupp. (1) SCR 439) this Court struck
\ndown  the  order  by  which  68%  of  seats  in\t educational
\ninstitutions were  reserved for\t the  members  of  Scheduled
\nCastes and Scheduled Tribes and other educationally backward
\nclasses. This  Court did  not suggest  any percentage  which
\nshould be  reserved for\t such backward classes but indicated
\nthat the  reservation has  to be  made keeping\tin mind\t the
\ninterests of the community as a whole and such percentage of
\nreservation would  be less then 50%. How much less of 50% is
\nto be  reserved, would\thowever\t depend\t on  the  facts\t and
\ncircumstances of a given case.\n<\/p>\n
     Mr. Sibal\thas also  submitted tat\t in the Constitution
\nBench decision\tof this Court in T.Devadasan v. The Union of
\nIndia &\t Anr.<\/a> (1964  (4) SCR 680), the majority view is that
\nin order  to effectuated  the guarantee contained in Article
\n16(1),\teach   year  of\t recruitment  is  to  be  considered
\nseparately  by\titself\tfor  the  reservation  for  backward
\nclasses.  In   Arati  Ray   Choudhury’s\t  case\t (supra)   a
\nConstitution Bench  of this  Court has clearly held that the
\nreservation  for   backward  community\t should\t not  be  so
\nexcessive as  to create\t a monopoly or to disturb unduly the
\nlegitimate claim  of other  communities. It  has  also\tbeen
\nspecifically indicated\tin the\tsaid decision  that if there
\nare two\t vacancies to be filled up in a particular year, not
\nmore than  one vacancy\tcan be\ttreated as  reserved. In the
\ndecision in Arati Ray Choudhury’s case, the earlier decision
\nin M.R.\t Balaji’s case\twas  noticed  and  followed  and  no
\ndeparture from the decision in Devadasan’s case was made.\n<\/p>\n
     Mr. Sibal\thas submitted  that in Dr. Chakradhar Paswan
\nv. State  of Bihar  & Ors.<\/a> (1988 () SCC 14) after relying on
\nthe decisions  in  Arati  Roy  Choudhury,  M.R.\t Balaji\t and
\nDevadasan’s cases,  it has  been held  that for implementing
\n50-point roster,  isolated and\tseparate posts\tin different
\nspecialities cannot  be clubbed\t together. It  has also been
\nheld that reservation of posts by applying the roster can be
\nmade only where there are more than one post and reservation
\nof only\t one post  cannot be  made because  such reservation
\nwould amount  to 100%  reservation thereby violating Article
\n16(1) and 16(4) of the Constitution.\n<\/p>\n
     Mr. Sibal\thas submitted  that the\t three-Judges’ Bench
\ndecision in  Madhav’s case (supra) is the principal judgment
\nwhich has taken a contrary view by holding that even in case
\nof a  single post cadre, reservation can be made by applying
\nthe principle  of rotation and by that process can avoid the
\nbar of\treservation of\t100%. Such  decision is\t based on  a
\nwrong reading  of the decision in Arati Roy Choudhury’s case
\nand on\tan erroneous  appreciation of  Articles 16(1), 16(4)
\nand 16(4-A)  of the  Constitution. The\timpugned decision in
\nthe case  of Post-Graduate  Institute of Medical Education &
\nResearch has  been  made  by  relying  on  the\tdecision  in
\nMadhav’s case  and following the reasonings contained in the
\nsaid  decision.\t Therefore,  the  said\tdecision  cannot  be
\nsustained and  the impugned  judgment should be set aside by
\nallowing the review petition.\n<\/p>\n
     Mr. E.C. Agrawala, learned counsel for the appellant in
\nC.A. No.  346\/1981, has however submitted that the principle
\nof carry  forward in  a single\tpost cadre is a device which
\nserves the  purpose of reservation for the backward classes,
\nconsistent with the Directive Principles of the Constitution
\nand the policy of reservation enshrined in the constitution.
\nSuch principle\tof carrying  forward in\t a  single  post  by
\napplying the  rotation of  roster, affords opportunities for
\ngetting appointment  of the  members of\t backward classes on
\nsome   occasions but  throwing\tsuch  appointment  for\topen
\ncompetition on\tother occasions\t by de-reserving the vacancy
\non such\t occasions. If such principle  of rotation of roster
\nis not\tapplied in  the case  of single post cadre, the very
\npurpose of  reservation under  Article 16(4)  will  be\tmade
\nnugatory.  Mr.\t Agrawala  has\tsubmitted  that\t since\tsome
\nobservation was\t made against  reservation to  a promotional
\npost in\t the decision in Indra Sawhney’s case, sub Article 4
\nA of  Article 16 has been incorporated by the 77th Amendment
\nof the\tConstitution. Such  amendment clearly  reflects\t the
\nanxiety of  the Legislature  to ensure\treservation  at\t all
\nstages of public employment including promotional posts. Mr.
\nAgrawala   has submitted that in Arati Roy Choudhury’s case,
\nthe Constitution Bench upheld the appointment of a member of
\nthe Scheduled  Caste Scheduled\tTribe which was reserved for
\nsuch category  even though  at the relevant  year, there was
\nonly one  vacancy to  be filled up in respect of the post of
\nHead Mistress.\tTherefore, it will not be correct to contend
\nthat the  Constitution Bench  in Arati\tRay Choudhury’s case
\nhas not\t upheld reservation of a single vacancy in the cadre
\nin a  particular year  by applying  the principle of roster.
\nMr. Puri,  learned counsel appearing for the appellant in CA
\n2345 of 1981 has also made similar submissions.\n<\/p>\n
     Mr. RK  Jain, learned  senior counsel appearing for the
\nintervenors in\tthe review  petition in\t the  case  of\tPost
\nGraduate Institute  of Medical\tEducation and  Research\t has
\nsubmitted that\tthere is  no Government\t order to the effect
\nthat reservation  in a single cadre post to be excluded. If,
\ntherefore,  there  is  no  prohibition\tunder  any  law\t for
\nreservation of\ta single  post and  if the  Government gives
\neffect to Article 16(4) of the Constitution in a single post
\ncadre which  helps the\tcase of\t social justice,  consistent
\nwith the  Directive Principles\tof  the\t Constitution,\tthis
\nCourt should  be slow  to react against such reservation. He
\nhas also  supported the\t contention of\tMr. Agrawala that by
\nrotation of  roster, the  device   of  100%  reservation  is
\navoided. At  the same  time, such rotation gives opportunity
\nfor appointment\t of members  of socially backward classes in
\nthe higher  echelons of\t service even  when the\t post  is  a
\nsingle post cadre. Mr. Jain has submitted that in the matter
\nof implementation  of rotation\tof roster  in a\t single post
\ncadre, even  if the  other view\t against such  rotation is a
\npossible view,\tsuch view  should not be accepted because in
\nthe matter of a course of action which advances the cause of
\nsocial justice,\t the view in favour of furtherence of social
\njustice is to be preferred. Mr. Jain has also submitted that
\nreservation  is\t  not  to   the\t post  or  the\tvacancy\t but
\nreservation must  be viewed  as a measure of giving adequate
\nopportunity  in\t  public  employment  to  the  socially\t and
\neconomically backward classes, consistent with Article 16(4)
\nand  16(4)(A)\tof  the\t  Constitution\tand   the  Directive
\nPrinciples. Mr.\t Jain has submitted that Article 16 does not
\nspeak of  any post  or vacancy\tbut speaks  of\tequality  of
\nopportunity in public employment.\n<\/p>\n
     Mr. Jain has also submitted that in Chakradhar Paswan’s
\ncase (supra),  the ratio  in Arati  Ray Choudhury’s case was
\nnot appreciated\t and followed.\tReferring to the decision in
\nIndra Sawhney’s\t case, Mr.  Jain has submitted that in Indra
\nSawnhey’s case the ratio in Arati Ray Choudhury’s case or in
\nPaswan’s case was not considered. Therefore, the decision in
\nIndira Sawhney’s  case is  not an  authority for  the issues
\ninvolved in  the case  under  consideration.  Mr.  Jain\t has
\nsubmitted that\tthe mechanism of roster has been evolved  to
\nbalance justice\t for all  segments of the society so that in
\nthe higher  echelons of\t service, a single post is also made
\navailable to  the backward  classes by\treserving such\tpost
\nonly periodically  on the  basis of  rotation of  the roster
\npoint. Such  mechanism does  not offend any provision of the
\nConstitution. He  has submitted that the three Judges’ Bench
\nin Madhav’s  case has  analysed\t all  the  decisions  having
\nrelevance on  the question  of reservation  of a single post
\ncadre, and  has upheld\tsuch reservation  in a\tsingle\tpost
\ncadre  by  applying  the  roster.  Therefore,  the  impugned
\ndecision in the Post Graduate Institute of Medical Education
\nand Research  Chandigarh, does\tnot warrant any interference
\nby this Court.\n<\/p>\n
     Mr.Andhyarujina, the learned Solicitor General has also
\nsupported the  reservation of  a single\t post cadre with the
\naid of\trotation of  roster. He\t has invited in attention of
\nthe Court  to Office  Memorandum  No.  3601\/\/96-Estt.  (Res)
\nissued by  the Ministry\t of personnel, Public Grievances and
\nPension\t (Department  of  Personnel  and  Training)  of\t the
\nGovernment of  India in\t respect of  reservation roster\t for
\nimplementation\tof   the  Supreme  Court  judgment  in\tR.K.
\nSabharwal and  ors. Vs.\t State of  Punjab and Ors. (1995 (2)
\nSCC 745).  After indicating  in short,\tthe purport  of\t the
\ndecision of  this Court\t in  the  said\tcase,  it  has\tbeen
\nindicated in the said Office Memorandum that “with a view to
\nbringing the policy of reservation in line with the law laid
\ndown by\t the supreme  Court. it\t has been  decided that\t the
\nexisting 200  point, 40\t point and  120 point  vacancy-based
\nrosters shall  be replaced  by post  based rosters.  All the
\nMinistries\/Departments\t and   concerned   authorities\t are
\nrequested to  prepare the  respective rosters  based on\t the
\nprinciples elaborated  in the  Explanatory Notes   given  in
\nAnnexure –  1 to  this O.M.  and illustrated  in  the  Model
\nRosters annexed\t to this  O.M. as  Annexure-II, III  and IV.
\nSimilarly, the\tconcerned authorities may prepare rosters to
\nreplace the  existing 100  point rosters  n respect of local
\nrecruitment to\tGroup C and D posts on the basis of the same
\nprinciples.”\n<\/p>\n
     Paragraph 4  of the  said O.M.  contains the principles
\nfor preparing  the rosters  elaborated\tin  the\t Explanatory
\nNotes. Clause  (e) of  the said\t paragraph 4  indicating the
\nprinciples  for\t  preparing  the  rosters  is  relevant\t for
\nconsideration in  this case and the same is to the following
\neffect:\n<\/p>\n
\t  “In small  cadres of\tupto  13
\n     posts, the\t method\t prescribed  for
\n     preparation  of  rosters  does  not
\n     permit reservation\t to be\tmade for
\n     all the  three categories.\t In such
\n     cases,\t the\t  administrative
\n     Ministries\/Departments may consider
\n     grouping  of   posts  in  different
\n     cadres  as\t  prescribed   in   this
\n     Department’s O.M.\tNo. 42\/21\/49-NGS
\n     dated  28.1.1952\tand   subsequent
\n     orders reproduced\tat pages  70 and
\n     74 of  the Brochure  on Reservation
\n     for Scheduled  Castes and Scheduled
\n     Tribes (Eighty Edition) and prepare
\n     common rosters  for such groups. In
\n     the event\tit is  not  possible  to
\n     resort   to   such\t  grouping   the
\n     enclosed  rosters\t (Appendices  to
\n     Annexures-II, III and IV) for cadre
\n     strength  upto   13  posts\t may  be
\n     followed.\t The\tprinciples    of
\n     operating\t these\t  rosters    are
\n     explained in the explanatory notes.<\/p><\/blockquote>\n
     Appendix to  Annexure III contains the model roster for
\npromotion in  the cadre\t strength up  to 13  posts;  whereas
\nAppendix to  Annexure IV  contains  the\t roster\t for  direct
\nrecruitment otherwise  than  through  open  competition\t for
\ncadre strength upto 13 posts. Charts indicating the Appendix
\nto Annexure  III and the Appendix to Annexure IV are set out
\nas hereunder:\n<\/p>\n
Cadre Initial\t1st   2nd  3rd\t4th  5th  6th  7th  8th\t 9th
\n 10th  11th  12th  13th\n<\/p>\n
1.   UR UR UR UR UR UR SC UR UR UR UR UR UR ST\n<\/p>\n
2.   UR UR UR UR UR SC UR UR UR UR UR UR ST\n<\/p>\n
3.   UR UR UR UR SC UR UR UR UR UR UR ST\n<\/p>\n
4.   UR UR UR SC UR UR UR UR UR UR ST\n<\/p>\n
5.   UR UR SC UR UR UR UR UR UR ST\n<\/p>\n
6.   UR SC UR UR UR UR UR UR ST\n<\/p>\n
7.   SC UR UR UR UR UR UR ST\n<\/p>\n
8.   UR UR UR UR UR UR ST\n<\/p>\n
9.   UR UR UR UR UR ST\n<\/p>\n
10.  UR UR UR UR ST\n<\/p>\n
11.  UR UR UR ST\n<\/p>\n
12.  UR UR ST\n<\/p>\n
13.  UR ST
\nNote: For  cadres of  2 to 13 posts the roster is to be read
\nfrom entry  1 under column Cadre Strength till the last post
\nand then  horizontally till the last entry in the horizontal
\nrow i.e. “L”\n<\/p>\n
     2. All  the posts of a cadre are to
\n     be\t earmarked   or\t the  categories
\n     shown    under    column\t initial
\n     appointment while\tinitial\t filling
\n     up\t will\tbe  by\t the   earmarked
\n     category, the  replacement\t against
\n     any of  the post in the cadre shall
\n     be\t   by\t rotation    as\t   shown
\n     horizontally against  the last post
\n     of the cadre.<\/p><\/blockquote>\n
     3. The  relevant  rotation\t by  the
\n     indicated reserved\t category  could
\n     be skipped over if it leads to more
\n     then      50%   representation   of
\n     reserved category.<\/p><\/blockquote>\n
Roster for  direct recruitment\totherwise than\tthrough open
\ncompetition for cadre strength upto 13 posts.
\nCadre Initial\t1st   2nd  3rd\t4th  5th  6th  7th  8th\t 9th
\n 10th  11th  12th  13th\n<\/p>\n
1.   UR UR UR OBC UR UR SC OBC UR UR UR OBC SC ST\n<\/p>\n
2.   UR UR OBC UR UR SC OBC UR UR UR OBC SC ST\n<\/p>\n
3.   UR OBC UR UR SC OBC UR UR UR OBC SC ST\n<\/p>\n
4.   OBC UR UR SC OBC UR UR UR OBC SC ST\n<\/p>\n
5.   UR UR SC OBC UR UR UR OBC SC ST\n<\/p>\n
6.   UR SC OBC UR UR UR OBC SC ST\n<\/p>\n
7.   SC OBC UR UR UR OBC SC ST\n<\/p>\n
8.   OBC UR UR UR OBC SC ST\n<\/p>\n
9.   UR UR UR OBC SC ST\n<\/p>\n
10.  UR UR OBC SC ST\n<\/p>\n
11.  UR OBC SC ST\n<\/p>\n
12.  OBC SC ST\n<\/p>\n
13.  SC ST
\n     Note 1. For cadres of 2 to 13 posts
\n     the roster is to be read from entry
\n     1 under  column cadre strength till
\n     the last post and then horizontally
\n     till  the\t last\tentry\tin   the
\n     horizontal tow i.e. like “L”<\/p>\n
     2. All  the posts of a cadre are to
\n\t  be\tearmarked     for    the
\n\t  categories shown  under column
\n\t  initial   appointment.   While
\n\t  initial filling  up will be by
\n\t  the  earmarked  category,  the
\n\t  replacement against any of the
\n\t  post in  the cadre shall be by
\n\t  rotation as shown horizontally
\n\t  against the  last post  of the
\n\t  cadre.\n<\/p>\n
     3. The  relevant  rotation\t by  the
\n\t  indicated  reserved\tcategory
\n\t  could be skipped over it leads
\n\t  to\t more\t   than\t     50%
\n\t  representation   of\treserved
\n\t  category.\n<\/p>\n
     Referring to  such model  roster, the learned Solicitor
\nGeneral has  submitted that in case of promotion in a single
\npost cadre,  for the  initial  recruitment,  the  post\twill
\nremain `unreserved’.  Similarly, for the 1st 2nd 3rd 4th 5th
\nsubsequent vacancies  in such  single cadre post, such posts
\nshall be  treated as  unreserved but  for the 6th subsequent
\nvacancy, the  post will\t be reserved  for scheduled  castes.
\nAgain\tfrom 7th  to 12th subsequent vacancy will be treated
\nas unreserved  but the\t13th  vacancy  will  be\t treated  as
\nreserved for  Scheduled Tribes.\t So far\t as the\t roster\t for
\ndirect recruitment, otherwise than through open competition,
\nthe Appendix  to Annexure  IV indicates\t that if  the  cadre
\nstrength is  only one  then the\t initial recruitment and the
\nfirst and  second successive recruitment will be made on the
\nbasis of  open competition  but the third successive vacancy
\nwill be\t reserved for  members of  the backward classes. The
\nfourth successive  vacancies will  be treated as unreserved;
\nsixth successive vacancy will be reserved for the members of
\nScheduled Castes;  7th successive  vacancy shall be reserved
\nfor members  of other  backward classes;  8th, 9th  and 10th
\nsuccessive vacancies  will be  filled up by open competition
\nbut the 11th successive vacancy shall be reserved for OBCs’,
\nthe 12th for scheduled castes and 13th for scheduled tribes.\n<\/p>\n
     The learned  Solicitor General  has  further  submitted
\nwith reference to the aforesaid Charts, that the Charts have
\nbeen prepared for balancing the felt need for reservation of
\nsingle cadre post, usually in the higher echelons of service
\nin such\t a manner  that the opportunities for employment are
\nshared\t by the members belonging to the reserved categories
\nand also  by the other members i.e. members not belonging to
\nreserved categories.  According to him, if the vacancies are
\nfilled up  in respect  of single post cadre by following the
\naforesaid Charts, the interests of socially and economically
\nbackward classes  and also other members of the community at
\nlarge will  be met without seriously affection the interests
\nof either  the members\tbelonging to reserved classes or the
\nmembers not  belonging to  any of  the reserved\t categories.
\nUnder  such   mechanism,  only\t of  certain  occasions\t the
\nvacancies are  to be  filled up\t by treating  such vacancies
\n`reserved’ for\tmembers of  a\tparticular class of reserved
\ncategories, namely,  scheduled castes,\tscheduled tribes and
\nother backward\tclasses but  on other  occasions the post in
\nthe single cadre will not be treated as reserved.\n<\/p>\n
     The  learned   Solicitor\thas   submitted\t  that\t the
\nconstitutional validity\t of  reservation  for  socially\t and
\neconomically backward classes has been upheld by this Court.
\nThe learned  Solicitor has  also submitted  that  after\t the
\njudgment of  this Court\t in R.K.  Sabharwal’s case  suitable
\ndirections have\t been issued  relating to rotation of roster
\nin conformity  with the\t law laid down by this Court. He has
\nsubmitted if a reference is made to the Chart containing the
\nmodel roster for appointment by promotion for a single cadre
\npost, it  will be crystal clear that the initial recruitment
\nis unreserved  and out\tof subsequent 13 vacancies, only 7th
\nand 13th vacancies are meant for members of scheduled castes
\nand  scheduled\ttribes.\t Similarly  the\t roster\t for  direct
\nrecruitment otherwise than by promotion it is indicated that
\nif it  is a  single post  cadre then  not only\tthe  initial
\nrecruitment but\t the first and second successive recruitment
\nwill be treated as unreserved. Similarly, the 4th, 5th, 8th,
\n9th and\t 10th successive  vacancies will  also be treated as
\n`unreserved’ but  the 3rd,  6th, 7th,  11th, 12th,  and 13th
\nwill be kept reserved for members of other backward classes,
\nscheduled castes  and  scheduled  tribes  respectively.\t The
\nlearned\t Solicitor   has  submitted   that  such  device  of
\nappointment by\trotating the roster fulfils the felt need of
\nreservation and\t also eschews the vice of reservation beyond
\n50% for\t the members of the reserved classes. Since the post
\nis a single post in the cadre, unless such device is adopted
\nthere will  be no  occasion for\t reservation of such post at
\nany point to time.\n<\/p>\n
     The learned  Solicitor has also submitted that in Arati
\nRoy Chouhdry’s case, the Constitution Bench has approved the
\naction taken  in  filling  up  of  a  single  vacancy  which
\noccurred in  a particular year for the post of Head Mistress
\nby applying the rotation of roster, because such rotation of
\nroster\tserved\t the  avowed   purpose\tof   reservation  by
\ndelicately balancing  the interests  of the  members of\t the
\nreserved classes  and other  members of\t the  community\t not
\nbelonging to  any reserved  class. The learned Solicitor has
\nfurther\t  urged that the decision of the three Judges’ Bench
\nin Madhav’s  case has  indicated the  correct  principle  by
\ngiving very cogent reasons and such decision does not offend
\nany of\tthe provisions of the Constitution and does not come
\nin conflict  with the  decisions of the larger Bench of this
\nCourt. Therefore,  no interference is called for against the
\ndecision in  madhav’s case  and the other decisions rendered
\nby following the decision in Madhav’s case.\n<\/p>\n
     In order  to appreciate  the rival\t contentions of\t the
\nparties,  it   would  be   appropriate\tto   refer  to\t the
\nConstitution Bench  decisions of  this Court  made  in\tM.R.
\nBalaji, T.  Devadasan\t and  Arati  Ray  Choudhary’s  cases
\n(supra). In  Arati Ray\tChoudhury’s case, decision in Balaji
\nand Devadasan  were referred to and followed. Since both the
\nsides have  relied on the decisions in Arati Ray Choudhury’s
\ncase, it  will also  be appropriate to consider the decision
\nin Arati Ray Choudhury’s case in some detail.\n<\/p>\n
     In Balaji’s  case, the Constitution Bench has held that
\nthe reservation\t should be  allowed to advance the prospects
\nof weaker  sections of the society, but while doing so, care
\nshould\tbe   taken  not\t  to  exclude  admission  to  higher
\neducational standards  of deserving and qualified conditions
\nof other  communities.\tIt  has\t also  been  indicated\tthat
\nreservation under  Arts. 15(4) and 16(4) of the constitution
\nmust be\t within a  reasonable limit.  The interests  of\t the
\nweaker sections\t of the society, which are a first charge on
\nthe States  and the  Centre, have  to be  adjusted with\t the
\ninterests of the community as a whole. The objective of Art.
\n15(4) is  to advance the interests of the weaker elements in
\nsociety.  If  a\t provision  under  Art.\t 15(4)\tignores\t the
\ninterests of the society that is clearly outside the purview
\nof Art.\t 15(4). It  is therefore,  quite  evident  that\t the
\nConstitution Bench  in Balaji’s\t case has  clearly indicated
\nthat in\t giving effect\tto reservations\t for  the  Scheduled
\nCastes, Scheduled  Tribes  and\tother  backward\t classes,  a
\nbalance is  to be  struck  so  that  the  interests  of\t the
\nbackward classes and the members of the scheduled castes and
\nscheduled tribes are properly balanced with the interests of
\nthe other segments of the society, and in order to safeguard
\nthe interests  of the  reserved classes\t the interest of the
\ncommunity as a whole can not be ignored. In Devadasan’s case
\n(supra), the majority decision of four Judges (Justice Subba
\nRao dissenting)\t was to\t the effect  that the  carry-forward
\nrule as\t a result  of  which  the  applicants  belonging  to
\nScheduled Castes or Scheduled Tribes could get more than 50%
\nof the\tvacancies to  be filled\t up in a particular year, is
\nunconstitutional. It  has also\tbeen indicated\tthat Art  14
\nwill not  be infringed if certain proportion of appointments
\nof the\tState in  order to  provide the\t backward classes an
\nopportunity equal  to that  of the  members of more advanced
\nclasses is  made, provided  that the  reservation is  not so
\nexercised  which   would  amount   to  practically   deny  a
\nreasonable opportunity\tof employment  to the members of the
\nother communities.  It was  indicated that under Art, 16 (4)
\nof the\tConstitution, reservation of a reasonable percentage
\nfor the\t Scheduled Castes  and Scheduled Tribes is valid and
\nwithin the  competence of  the States  or the Centre. But it
\nnecessary that a reasonable balance between backward classes
\nand other  members of  the  society  is\t to  be\t struck\t and
\nmaintained. In\tthe decision  of  Devadasan’s  case  (supra)
\nreliance was  also placed  on the  decision in Balaji’s case
\nand another  constitution Bench\t decision of  this court  in
\nGeneral Manager\t S.E.Railway Vs.  Rangachari (1962  (2)\t SCR\n<\/p>\n
586). In  the majority decision in Rangachari’s case, it has
\nbeen held  that Arts.  16(1) and  16(2) are intended to give
\neffect to  Arts. 14  and 15  of the  Constitutional code  of
\nguarantees and\tsupplement each\t other. Art.  16(1)  should,
\ntherefore, be  construed in a broad and general way, and not
\nin pedantic  and technical  way. When  so construed, matters
\nrelating to  employment cannot\tmean merely matters prior to
\nthe act\t of appointment\t nor can `appointment to any office’
\nmean merely  the initial  appointment but  must include\t all
\nmatters relating  to employment, whether prior or subsequent
\nto the\temployment,  that  are\teither\tincidental  to\tsuch
\nemployment or form part of its terms and conditions.\n<\/p>\n
     The short\tfact in\t Arati Ray  Choudhury’s case is that
\nthe Railway  Board prepared  a Roster in 1964 by which 12.5%
\nof the\tvacancies were\treserved for Scheduled Castes and 5%
\nfor Scheduled  Tribes. it  was also  mentioned that if there
\nwould be  only a single vacancy then it should be treated as
\nunreserved and\tif on account of that a reserved vacancy was
\nto be  treated as  unreserved then  the reservation would be
\ncarried forward\t to the\t subsequent two recruitment year. In
\n1966, a vacancy of Headmistress was treated as unreserved on
\nthis basis.  Another vacancy  arose in January, 1969 and the
\nfour Assistant\tMistresses were called for selection. One of
\nthe respondent\tchallenged the\tselection on the ground that
\nthe post  should be  treated as reserved for Scheduled Caste
\ncandidate and  such contention\twas  accepted  by  the\tHigh
\nCourt. In  1971 the  Railways decided to hold a selection to
\nform a\tpanel of  two candidates  for filling  up  one\tpost
\nreserved for Scheduled Caste and another to cover unforeseen
\nrequirements. At  that stage,  a  writ\tpetition  was  filed
\nchallenging such  decision of the Railway Administration and
\nan order  of injunction\t was issued in such writ proceeding.
\nIn spite  of this,  the said  respondents was  called by the
\nSelection board.  The writ petition was ultimately dismissed
\nnot on\tmerits but on the ground that such writ petition was
\nbarre by  the principle\t of res judicata. This Court however
\nheld that  since the  previous writ petition was not decided
\non merits,  the principle of res judicata or analogous to it
\nwas not\t attracted. Therefore,\tthe Court  was competent  to
\nconsider the  case on merits. In Arati Ray Choudhury’s case,
\nreference was made to the decisions of Constitution Bench in
\nBalaji’s  case.\t  Relying  on\tthe  decision’s\t  case\t the
\nconstitution Bench  in Arati  Ray Choudhury’s  case has held
\nthat in\t Balaji’s decision,  this Court\t had struck  down as
\nunconstitutional an  order by  which 68%  of  the  seats  in
\neducational institutions  were reserved for Scheduled Castes
\nand Scheduled  Tribes\tand other educationally and socially
\nbackward classes.  It was indicated in Arati Ray Choudhury’s
\ncase that  following the  decision in  Balaji’s case, in the
\nmajority decision  in Devadasan’s  case it  was held that in
\norder to  effectuate the  guarantee   contained\t in  Article
\n16(1),\teach\t year\trecruitment  has  to  be  considered
\nseparately by  itself  and  “the  reservation  for  backward
\ncommunities should  not be  so\texcessive  as  to  create  a
\nmonopoly or to disturb unduly the legitimate claims of other
\ncommunities.”\n<\/p>\n
\t\t\t\t\t(emphasis added)
\nIt has\talso been  indicated in\t Artai Ray  Choudhury’s case
\nthat the  Ministry  of\tHome  Affairs  issued  a  Memorandum
\nmodifying the  carry forward  rule so  as to comply with the
\ndecision in  Devadasan’s case.\tBy para 2 of the Memorandum,
\nthe carry-forward rule was amended by providing that “in any
\nrecruitment year,  the number  of normal  reserved vacancies
\nand the\t `carried forward  reserved vacancies together shall
\nnot exceed  45% of  the total  number of  vacancies.” It was
\nhowever indicated  in the  said Memorandum  that if there be
\nonly two vacancies, one of them may be treated as a reserved
\nvacancy. But  if there\tbe only\t one  vacancy  it  shall  be
\ntreated as  unreserved (emphasis  added). The  surplus above
\n45% shall  be carried  forward to  the\tsubsequent  year  of
\nrecruitment, subject  however  to  the\tcondition  that\t the
\nparticular vacancies  carried forward  do  not\tbecome\ttime
\nbarred due to their becoming more than two years old. It has
\nbeen specifically held in Arati Ray Choudhury’s case that in
\nthe first place each year of recruitment is to be considered
\nseparately and by itself as held in Devadasan’s case (supra)
\nso that\t if there  are only  two vacancies to be filled in a
\nparticular year\t of recruitment,  not more  than one vacancy
\ncan be\ttreated as  reserved. Secondly, if there be only one
\nvacancy to  be filed  in a given year of recruitment, it has
\nto be  treated as  unreserved, irrespective  of\t whether  it
\noccurs\tin  the\t Model\tRoster\tat  a  reserved\t point.\t the
\nappointment  then  is  not  open  to  the  charge  that\t the
\nreservation exceeds 50% for if the very first vacancy in the
\nfirst year  of recruitment  is\tin  practice  treated  as  a
\nreserved vacancy,  the system  may be  open to the objection
\nthat the  reservation not  only exceeds 50% but is, in fact,
\ncent per  cent. But,  if on this account, that is to say, if
\non account of the requirement that the first vacancy must in
\npractice be  treated as\t unreserved even if it occurs in the
\nModel Roster  at a  reserved point,  the reservation  can be
\ncarried forward\t to not\t more than  two subsequent  year  of
\nrecruitment. Thus,  if two  vacancies occur, say , within an
\ninitial span   of  three years,\t the first vacancy has to be
\ntreated as an unreserved vacancy and the second as reserved.
\nIt has\tnot been held in Arati Ray Choudhury’s case that for
\na single  post there  can be  a\t reservation  for  Scheduled
\nCastes, Scheduled Tribes or other backward classes. What has
\nbeen held  in Arati  Ray Choudhury’s case is that when there
\nwas a  vacancy at  Adra, according to the Model Roster, such
\nvacancy was a reserved point and therefore the other vacancy
\nwas strictly  a reserved  vacancy but  there being  only one
\nvacancy in that particular year of recruitment, such vacancy
\nhad to\tbe treated  as unreserved  and therefore appointment
\nwas given  of smt. Biswas, who was not a reserved candidate.
\nTherefore, it  had to be compensated by carrying forward the
\nreservation in\ttwo subsequent\trecruitment  year  when\t the
\nvacancy in  Kharagpur in  the financial\t year 1968-69  arose
\nw.e.f. December 31, 1968.\n<\/p>\n
     In Dr. Chakradhar\tPaswan’s case (supra) in the State
\nDirectorate of indigenous  Medicines, Bihar, initially there
\nthree  Class   I  posts\t  for  (1)  Director  of  Indigenous
\nMedicines, (2)\tDeputy Director (Homeopathic) and (3) Deputy
\nDirector  (Unani).  Later  the\t  post\tof  Deputy  Director
\n(Ayurvedic) had\t also been  added. The\tpost of Director was
\nthe highest  in\t the  Directorate;  being  the\tDirector  of
\nIndigenous Medicines  as a  whole and  not of any particular
\nspeciality of Indigenous Medicines.\n<\/p>\n
     By\t a  Circular  dated  November  8,  1975,  the  State
\nGovernment prescribed  a 50  point roster  to implement\t the
\npolicy of  reservation to posts and appointments for members
\nof the\tbackward classes  under Article\t 16(4). It  was laid
\ndown that if in any grade, there is only one vacancy for the
\nfirst time,  then it will be deemed to be unreserved and for
\nthe second  time also, if there be only one vacancy, then it
\nwill  be   deemed  to  be  reserved”.  For  the\t purpose  of
\ndetermining the\t quantum of  reservation  according  to\t the
\nroster, the  Government grouped\t together all  the  Class  I
\nposts viz.  the posts  of Director  as\twell  as  of  Deputy
\nDirectors and  as the  post of the Director had already been
\nfilled up treating it to be unreserved, the second post viz.
\nthe Deputy  Director (Homeopathic)  was treated as reserved.
\nAccordingly, the  State\t Public\t Service  commission  issued
\nadvertisement inviting\tapplications from  Scheduled  Castes
\ncandidates for\tselection to  the same\tposts and ultimately
\nthe State  Government appointed\t a member of Scheduled Caste
\nto the\tpost of\t Deputy Director  (Homeopathic).  A  general
\ncandidate thereafter  filed a  writ petition before the High
\nCourt challenging  the advertisement  issued   by the  State
\nPublic Service\tCommission and\talso the consequent order of
\nappointment. The High Court allowed the petition and quashed
\nthe impugned  advertisement and\t the appointment order. Such
\ndecision of the High Court was assailed before this Court in
\nDr. Chakradhar\tPaswan’s case.\tThe appeal  was dismissed by
\nthis Court by holding that in service jurisprudence, he term
\n`cadre’ has  a\tdefinite    legal  connotation.\t It  is\t not
\nsynonymous with\t `service’. It\tis open to the Government to
\nconstitute as  many cadres  in any  particular service as it
\nmay choose  according to  the administrative convenience and
\nexpediency and\tit cannot  be said that the establishment of
\nthe Directorate\t constituted the  formation of a joint cadre
\nof the\tDirector and  the Deputy  Directors because the post
\nare not\t interchangeable and  the incumbents  do not perform
\nthe same  duties or  carry the same responsibilities or draw
\nthe same  pay. The  posts of  the Director  and those of the
\nDeputy Directors constitute different cadres of the service.
\nThe first  vacancy in the cadre of Deputy Directors was that
\nof the\tDeputy Director\t (Homeopathic)\tand  it\t had  to  be
\ntreated as  unreserved, the  second reserved  and the  third
\nunreserved. Therefore,\tfor the\t first vacancy of the Deputy
\nDirector  (Homeopathic),   a  candidate\t  belonging  to\t the
\nScheduled Caste\t had,  therefore,  to  compete\twith  other.
\nRelying on  the decision  in Balaji’s  case, it\t was held in
\nChakradhar’s case that once the power to make reservation in
\nfavour\tof   Scheduled\tCastes\t and  Scheduled\t  Tribes  is
\nexercised, it  must necessarily\t follow that for the purpose
\nof vacancies  for which\t reservation has  been made, must be
\nbrought into effect and in order to do full justice, a carry
\nforward rule  must be so applied that in any particular year
\nthere is not more than 50% reservation. The whole concept of
\nreservation for\t application of\t the 50 point roster is that
\nthere are  more than one post, and the reservation can be up
\nto 50%. If there is only one post in the cadre, there can be
\nno reservation\twith  reference\t to  that  post\t either\t for
\nrecruitment at\tthe initial stage or for filling up a future
\nvacancy in  respect of\tthat post. A reservation which would
\ncome under Article 16(4), presupposes the availability of at
\nleast more than one post in that cadre. No reservation could
\nbe made\t under Article\t16(4) so  as to\t create a  monopoly.
\nOtherwise,  it\t would\trender\t   the\tguarantee  of  equal
\nopportunity  contained\tin  Article  16(1)  and\t (2)  wholly
\nmeaningless and\t illusory. The\treservation of\tthe post  of
\nDeputy Director\t (Homeopathic) amounted\t to 100% reservation
\nwhich was  impermissible under Article 16(4) as otherwise it
\nwould render  Article 16(1)  wholly elusive and meaningless.
\nArticle 16(4)  is an  exception to Article 16(1) and (2) and
\ntherefore  the\t power\tto  make  a  special  provision\t for
\nreservation of\tposts and  appointments\t in  favour  of\t the
\nbackward classes  must not  be so  excessive which  would in
\neffect efface  the guarantee  of equal\topportunity  in\t the
\nmatter of  public employment  or at  best make\tit illusory.
\nReference   was also  made in  Chakradhar’s    case  to\t the
\ndecision in Arati Ray Choudhury’s case by indication that in
\nthe facts  of that  case when  the open\t class had  reaped a
\nbenefit in  1966-67 when  a reserved  vacancy was treated as
\nunreserved by  the appointment\tof an open candidate, if the
\ncarry forward  rule had to be given any meaning, the vacancy
\nhad to\tbe carried  forward for\t the  benefit  of  Scheduled
\nCastes and Scheduled Tribes until the close of the financial
\nyear 1968-69.  It was  pointed out in Chakradhar’s case that
\nthe decision  in Arati\tRay Choudhury’s\t case turned  on the
\ncarry  forward\t rule  and   such   decision   was   clearly
\ndistinguishable\t  and the  same does not support reservation
\nin a single cadre post.\n<\/p>\n
     The decision  in Chakradhar  Paswan’s case\t that for  a
\nsingle post  cadre  no\treservation  can  be  made  for\t the
\nbackward   classes has\talso been followed in Chetana  Dilip
\nMotghare Vs.  Bhide Girls’  Education Society  (1995 Supp. 1
\nSCC 157) and it has been held in the said decision that when
\nthe post  is a\tsolitary post  in the  cadre, the roster and
\ncarry  forward\tscheme\tunderlying  any\t reservation  policy
\ncannot apply.  A contrary  view, however,  has been taken in
\nthe decision  of State\tof Bihar  and  Ors.  Vs.  Bageshwari
\nPrasad and  Anr. (1995 Supp. 1 SCC 432), Shri Suresh Chandra
\nVs. Shri  J.B. Agarwal\tand others  (JT 1997 (5) SC 72), and
\nlater on in a three Judges’ Bench decision in Union of India
\nand Anr.  Vs. Madhav  (1997 (2) SCC 332). Following the said
\nthree Judges’  Bench decision  in Madhav’s case, reservation
\nin a  single post cadre by rotation of roster point has been
\nupheld in  Union of India and others Vs. Brij Lal Thakur (JT
\n1997 (4)  SC 195)  and the  decision rendered in the case of
\nPost Graduate  Institute of  Medical Education\tResearch Vs.
\nFaculty Association  and others.  The later  decision is the
\nsubject matter of challenge in the Review Petition before us
\nin C.A. No. 3175 of 1997.\n<\/p>\n
     Since the\tdecision in Madhav’s case by a three Judges’
\nBench upholding\t the reservation  for the  backward  classes
\neven in single post cadre on the basis of rotation of roster
\npoint is  the main  decision, when followed in Post Graduate
\nInstitute of  Medical Research\tcase, we propose to consider
\nthe decision  in madhav’s  case in  some detail.  The  brief
\nfacts in Madhav’s case may be indicated as follows:\n<\/p>\n
     In the  national Savings  Scheme Service, only one post
\nof Secretary  was available. the Government applied the rule
\nof reservation\tto that\t post by  rotation the\tvacancies in
\naccordance with\t the  40-point\troster.\t When  point  No.  4
\nvacancy in  that post  reserved\t for  Scheduled\t Tribe,\t was
\nfilled by  promoting an\t ST candidate  from the\t post below,
\nsuch promotion\twas set\t aside by the Central Administrative
\nTribunal on  the ground\t that the  post of Secretary being a
\nsingle\t point\t  post,\t  granting    of   reservation\t was
\nunconstitutional. The  correctness or  the said decision was
\nassailed in Madhav’s case.\n<\/p>\n
     It has  been held in Madhav’s case that (i) appointment
\nto an  office or post under the State is one of the means to
\nrender socio-economic  justice; (ii)  Article 16(4-A) of the
\nConstitution introduced in 1995 by the 77th Amendment of the
\nconstitution,  has   resuscitated  the\t objectives  of\t the
\nPreamble to,  and Articles 46 and 335 of the constitution of
\nIndia to  enable the  Dalit and Scheduled tribe employees to
\nimprove excellence  in higher  echelons\t of  service  and  a
\nsource of  equality of\topportunity in\tthe matter of social
\nand economic status; (iii) Parliament has removed the lacuna
\npointed out  by the  Supreme Court  in Indra  Sawhney’s case
\n(supra) that  Article  16(1)  and  16(4)  do  not  apply  to
\nappointment by\tpromotion but  apply to initial appointment.
\nBy  the\t 77th  Amendment  of  the  constitution,  the  legal
\nposition  enunciated   in  Rangachari’s\t decision  has\tbeen
\nrestored and  reservation of  promotion to  50% quota as per
\nthe  Indra   Sawhney’s\tcase  is  available  to\t members  of
\nScheduled  Castes  and\tScheduled  Tribes;  (iv)  the  carry
\nforward scheme has been upheld in Indra Sawhney’s case; ((v)
\nreservation could  be provided even to the isolated posts on
\nthe basis of the rule of rotation by relying on the decision
\nin Arati Ray choudhury’s case; (vi) extension of reservation
\nis not\tunconstitutional. On  the other\t hand,\tsuch  scheme
\nprovides opportunity  and facilities to Scheduled Castes and
\nScheduled Tribes  for being considered for promotion to hold
\nsingle post  consistent with  equality of opportunity on par
\nwith others;  (vii) In Paswan’s case even though it was held
\nthat  a\t  single  post\t cannot\t be  reserved  because\tsuch
\nreservation would  amount to  100% reservation, the question
\nwhether the  single post  reservation by  rotation could  be
\ngranted and  whether it\t would be violative of Article 16(1)
\nwas not\t gone into  and such question has been kept open. In
\nArati Ray Choudhury’s case, the application of rule of carry
\nforward and  appointment by  rotation of  roster in a single
\npost has  been approved. (viii) In Sabharwal’s case (supra),
\na Constitution\tBench considered  whether reservation as per
\nthe roster  for the purposes of promotion could be valid and
\nconsistent with\t Article 16(1)\tof the constitution and held
\nin favour  of  such  reservation  (ix)\tSmt.  Chetana  Dilip
\nMotghare v. Bhide Girls’ Education Society<\/a> (1995 Supp. 1 SCC\n<\/p>\n
157) has  not been  correctly decided  and the\tdecisions in
\nVidyulata Arvind  Kakade v.  Digambar\tGyanba\tSurwase\t and
\nArati Ray Choudhury’s cases were not properly appreciated in
\nBhide Girls’ case (x) In State of Bihar & Ors. V. Bageshwari
\nPrasad &  Anr.<\/a> (1995  Supp. 1 SCC 432), the rule of rotation
\nhas been  held valid  by indicating  that the said rule does
\nnot offend  Articles 14\t and 16(1) of the Constitution. (xi)
\nThe  judgment\tin  Chakradhar\t Paswan’s  case\t  was\talso
\ndistinguished in Bageshwari’s decision.\n<\/p>\n
     In Madhav’s  case, in  support of the view that even in
\nrespect of  single post\t cadre, reservation  can be made for
\nthe backward classes by rotation of roster, the Constitution
\nBench decision in Arati Ray Choudhury’s case has been relied
\non. We\thave already  indicated that  in Arati’s  case,\t the
\nConstitution Bench  did not  lay down  that in\tsingle\tpost
\ncadre, reservation is possible with the aid of roster point.
\nThe court  in Arati’s  case considered\tthe applicability of
\nroster point  in the  context of  plurality of\tposts and in
\nthat context   the  rotation of\t roster was  upheld  by\t the
\nConstitution Bench.  The Constitution  Bench in Arati’s case
\nhas made  it quite clear by relying on the earlier decisions
\nof the\tConstitution Bench  in Balaji’s case and Devadasan’s
\ncase that  100% reservation  was not  permissible and  in no
\ncase reservation beyond 50% could be made. Even the circular
\non the\tbasis of  which appointment  was made  in Arati\t Ray
\nChoudhury’s case was amended in accordance with the decision
\nin Devadasan’s\tcase.  Therefore,  the\tvery  premises\tthat
\nConstitution Bench  in Arati’s\t case has upheld reservation
\nin a  single post  cadre is  erroneous\tand  such  erroneous
\nassumption  in\t Madhav’s  case\t  has  been  on\t account  of
\nmisreading of  the ratio  in Arati  Ray Choudhury’s case. It
\nmay be indicated that the later decision of the Constitution
\nBench in  R.K. Sabharwal’s  case (1995(2)  SCC 745) has also
\nproceeded on  the footing  that reservation  in\t roster\t can
\noperate provided in the cadre there is plurality of post. It
\nhas also  been indicated  in Sabharwal’s  decision that\t the
\npost in a cadre different from vacancies.\n<\/p>\n
     It also  appears that  the decision  in Indra  Swhney’s
\ncase has  also not  been properly  appreciated\tin  madhav’s
\ndecision. In Indra Sawnhey’s case, it has not been held that
\nthere can  be reservation  in a\t single cadre post. There is
\nnot dispute  that a  carry forward  scheme, provided it does
\nnot result  in reservation  beyond 50%\tis  constitutionally
\nvalid but  that does  not mean\tthat by\t the device of carry
\nforward scheme,\t 100% reservation  on some  occasions can be
\nmade even  when the  post is  only a  single cadre  post. In
\nMadhav’s decision and Brij Lal’s decision, reliance has been
\nplaced on  Article 16(4A)  of the  Constitution for  holding
\nthat even  in respect of single post such reservation can be
\nmade with  the aid  of rotation\t of   roster. In  our  view,
\nArticle 16(4A) relates to reservation in promotional post in
\nthe cadre,  but the  said Article  16(4A) does not deal with
\nthe question of reservation in a single cadre post.\n<\/p>\n
     There is  no difficulty  in appreciating  that there is
\nneed for reservation for the members of the Scheduled Castes
\nand Scheduled  Tribes and  other backward  classes  ad\tsuch
\nreservation  is not confined to the initial appointment in a
\ncadre but  also to  the appointment  in promotional post. It
\ncannot however be lost sight of that in the anxiety for such
\nreservation for the backward classes, a situation should not
\nbe brought  by which the chance of appointment is completely
\ntaken away  so far  as the  members of other segments of the
\nsociety are  concerned by  making such\tsingle post cent per
\ncent reserved  for the\treserved categories to the exclusion
\nof other  members of  the community even when such member is
\nsenior in service and is otherwise more meritorious.\n<\/p>\n
     Articles 14, 15 and 16 including Article  16(4), 16(4A)
\nmust be\t applied in  such a  manner so\tthat the  balance is
\nstruck in  the matter of appointments by creating reasonable
\nopportunities for  the reserved\t classes and  also  for\t the
\nother members of the community who do not belong to reserved
\nclasses. Such  view has\t been indicated\t in the Constitution
\nBench decisions\t of this Court in Balaji’s case, Devadasan’s
\ncase and Sabharwal’s case. Even in Indra Sawhney’s case, the
\nsame view  has been  held by  indicating that only a limited
\nreservation not\t exceeding 50%\tis permissible.\t it is to be
\napprociated that  Article 15(4)\t is an\tenabling   provision
\nlike  Article\t16(4)  and   the  reservation  under  either
\nprovision should  not exceed  legitimate limits.  In  making
\nreservations for  the  backward\t classes  the  State  cannot
\nignore the  fundamental rights\tof the rest of citizens. the
\nspecial provision  under Article 15(4) must therefore strike
\na  balance   between  several  relevant\t considerations\t and
\nproceed objectively.   In  this connection  reference may be
\nmade to\t the decisions\tof this court in The State of Andhra
\nPradesh and  Ors. Vs.  U.S.V. Balaram and C.A. Rajendran Vs.
\nUnion of  India (AIR  1972 SC  1375 and AIR 1968 SC 507). It
\nhas been  indicated in\tIndra  Swhney’s\t case  (supra)\tthat
\nclause (4)  of Article\t16  is\tnot  in\t the  nature  of  an
\nexception to  Clauses (1)  and (2)  of\tArticle\t 16  but  an
\ninstance of  classification permitted  by clause (1). It has
\nalso been  indicated in the said decision that clause (4) of
\nArticle 16  does not  cover the\t entire\t  field\t covered  by
\nclauses (1)  and (2) of Article 16. In Indra Sawhney’s case,
\nthis court  has also  indicated that in the interests of the
\nbackward classes  of citizens, the State can not reserve all
\nthe appointment\t  under\t the State or even majority of them.
\nthe doctrine  of equality  of opportunity  in Clause  (1) of
\nArticle 16 is to be reconciled in favour of backward classes
\nunder clause  (4) of  Article\t16 in such a manner that the
\nlatter while serving the cause of backward classes shall not
\nunreasonably encroach upon the field of equality.\n<\/p>\n
     In Triloknath  Vs. State of Jammu and Kashmir (AIR 1967
\nSC 1283),  it has  been held  by this  Court that  where the
\npercentage of  reservations is not reasonable, having regard
\nto employment  opportunities of\t the general  public to\t the
\ncadre of  service in  question, the population of the entire
\nState, the  extent of  their backwardness  and the like, the
\ninterference by\t Court against\tunreasonable reservation  is
\ncalled for.\n<\/p>\n
     In a  single post\tcadre, reservation  at any  point of
\ntime on\t account of  rotation of  roster is  bound to  bring
\nabout a\t situation where  such single post in the cadre will
\nbe kept reserved exclusively for the members of the backward
\nclasses and  in total exclusion of the general embers of the
\npublic. Such  total exclusion  of  general  members  of\t the
\npublic and cent percent reservation for the backward classes
\nis not permissible within the constitutional frame work. The
\ndecisions of this Court to this effect over the decades have
\nbeen consistent.\n<\/p>\n
     Hence, until  there   is plurality\t of posts in a cadre
\nthe question  of reservation  will  not\t arise\tbecause\t any
\nattempt of  reservation by  whatever  means  and  even\twith
\ndevice of rotation of roster in a single post cadre is bound
\nto create  100% reservation  of\t  such\tpost  whenever\tsuch
\nreservation  is to be implemented. The device of rotation of
\nroster in  respect of  single post cadre will only mean that
\non some occasions there will be complete reservation and the
\nappointment to such post is kept out of bound to the members
\nof a large segment of the community who do not belong to any
\nreserved class, but on some other occasions the post will be
\navailable for  open competition\t when in  fact on  all\tsuch
\noccasions, a single post cadre should have been\t filled only
\nby open competition amongst all segments of the society.\n<\/p>\n
     Mr. Kapil\tSibal has  contended  that  in\tsome  higher
\nechleon of  service in educational and technical institution
\nwhere special expertise is necessary to hold superior posts,
\nlike Professors\t and Readers there should not be reservation
\neven if\t there are  plurality of  posts\t in  such  cadre  as
\nindicated in  the majority  view in Indra Sawhney’s case. It
\nis, however,  not  necessary  for  us  to  decide  the\tsaid
\ncontention for\tthe purpose  of disposal  of these  matters,
\nwhere the question of reservation in single cadre post calls
\nfor decision.\n<\/p>\n
     We, therefore,  approve the  view taken in Chakradhar’s
\ncase that  there can not be any reservation in a single post
\ncadre and we do not approve the reasonings in Madhav’s case,
\nBrij Lal Thakur’s case and Bageswari Prasad’s case upholding
\nreservation in\ta single  post\t cadre either directly or by
\ndevice\tof   rotation  of  roster  point.  Accordingly,\t the
\nimpugned decision  in the case of Post Graduate Institute of
\nMedical Education  Research  can  not  also  sustained.\t The
\nReview Petition made in civil appeal No. 3175 of 1997 in the
\ncase  of   Post\t Graduate  Institute  of  Medical  Education
\nResearch, Chandigarh,  is therefore allowed and the judgment
\ndated may 2, 1997 passed in civil Appeal No. 3175 of 1997 is
\nset aside.\n<\/p>\n
     As\t we  do\t not  propose  to  consider  the  facts\t and
\ncircumstances i other cases which have been heard along with
\nthe Review  Petition, we  direct that  the said\t matters  be
\nplaced before  the appropriate\tBench for  disposal on\t the
\nbasis of  this decision\t in Review Petition in C.A. No. 3175
\nof 1997.  In the  facts and circumstances of the case, there
\nwill be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Post Graduate Institute Of … vs Faculty Association And … on 17 April, 1998 Author: G.N.Ray Bench: S.C.Agrawal, G.N.Ray, A.S.Anand, S.P.Bharucha, S.Rajendra Babu CASE NO.: Review Petition (civil) 1749 of 1997 PETITIONER: POST GRADUATE INSTITUTE OF MEDICALEDUCATION AND RESEARCH CHANDIGARH RESPONDENT: FACULTY ASSOCIATION AND ORS.M.L.SEHGAL AND ORS K.SIVAN AND ORS, DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-161386","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPost Graduate Institute Of ... vs Faculty Association And ... on 17 April, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/post-graduate-institute-of-vs-faculty-association-and-on-17-april-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Post Graduate Institute Of ... vs Faculty Association And ... on 17 April, 1998 - 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