Full Judgment Text
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PETITIONER:
POST GRADUATE INSTITUTE OFMEDICAL EDUCATION & RESEARCH ETC.
Vs.
RESPONDENT:
K.L.NARASIMHAN & ANR. ETC.
DATE OF JUDGMENT: 02/05/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
THE 2ND DAY OF MAY, 1997
PRESENT:
Hon’ble Mr. Justice K.Ramaswamy
Hon’ble Mr. Justice S.Saghir Ahmad
Hon’ble Mr. Justice G.B.Pattanaik
M.S.Usgaonkar, Additional Solicitor General, D.S.Nehra,
G.L.Sanghi, R.K.Jain, N.N.Goswamy, P.P.Rao, Sr. Advs., and
S.K. Mehta, Dhruv Mehta, Fazlin Anam, Suresh C.Gupta, S.C.
Paul, Jitender Chauhan, Ms.Asha Jain Madan, Ms. Manjula
Gupta, Wasim Qatri, A.D.N.Rao, S.K.Jain, Raj kumar Gupta,
H.V.P.Sharma, Rajesh, Advs. with them for the appearing
parties.
J U D G M E N T S/O R D E R
The following judgments/Order of the Court were
delivered:
WITH
CIVIL APPEAL NOS. 3175,3177 &3176 OF 1997
(Arising out of SLP(C) Nos.17366/92, 420 and 3028/93)
AND
WRIT PETITION (C) NO. 781 OF 1995
J U D G M E N T
K.RAMASWAMY, J.
Leave granted.
These appeals and the writ petition arise out of the
common cause relating to recruitment to the post of
Assistant professors in various faculties in the appellant
post Graduate Institute, Chandigarh and admission into
specialities and super-specialities. Advertisement No.6/90
dated November 16,1990 relates to recruitment to the post of
Assistant Professor; out of 12 posts, 8 posts were reserved
for Scheduled Castes (for short, ‘Dalits’) and 4 posts were
reserved fir Scheduled Tribes (for short, ‘tribes’), in the
pay scale of Rs.3500-4500/-. Essential qualifications were
prescribed for the said posts; there being no dispute, vis-
a-vis qualifications, it is not necessary to elaborate them
except to state that these are backlog vacancies. Through
advertisement No. 15/90 dated November 25,1990, the
appellants had called for applications for appointment to
the said posts and admission to Doctoral Courses and Ph.D.
programme for the academic session starting from 1.1.1991 in
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which posts were reserved for the Dalits and Tribes. The
contesting respondents in these appeals (for short, the
‘General Candidates’) and the Faculty Association challenged
the advertisement for recruitment to the post of Assistant
Professor and admission to Doctoral Courses and Ph.d.
Programme. Two learned single judges in different judgments
held that the post of Assistant professor in various
disciplines is single post cadre; reservation for the Dalits
and Tribes would amount to 1005 reservation; accordingly, it
is unconstitutional.
In respect of admission to the post of Doctoral Courses
and Ph.d.. Programme,. another learned single judge held
that the reservation in recruitment to the post of Doctoral
Courses and Ph.D. Programme undermines efficiency
detrimental to excellence for which purpose the appellant is
established and thereby it is unconstitutional. On appeal,
the Division Bench in LPA Nos.787/92,7827/92 and batch
dismissed the appeals. Thus, these appeals by special leave.
It is not in dispute that the post of Assistant
Professor in Diverse disciplines, is single post cadre but
carries the same scale of pay and grade in all disciplines.
The Institute is of national importance and is established
with the object to develop patterns of teaching in
undergraduate and postgraduate medical education in all its
branches so as to demonstrate a high standard of medical
educational facilities of the highest order, for the
training of personnel in all important branches of health
activity; to teach under graduate and postgraduate sciences,
including physical and biological sciences and to provide
facilities for research in the various branches of such
sciences etc. Section 32 of the post-Graduate Institute of
Medical Education & research, Chandigarh, Act 1966 (55 of
19660 (for short, the ‘Act’) provides for grant of (i) the
degree, diploma and other academic distinctions and titles
by the institute; (ii) the professorships, readerships,
lecturership and other posts which may be instituted and
persons who may be appointed to such professorships,
readerships, lecturerships and other posts.
Rule 7 of the PGIMER, Chandigarh Rules, 1967(for short,
the ‘Rules), as amended from time to time, envisage)
creation of posts, their classification into grades and
specification of their designations provided that no post
above the Associate professor level shall be created except
with the prior approval of the Central Government; (ii)
determination of method of recruitment, the age limit,
educational qualifications and other matters relating to the
appointment to various posts in the Institute, in the manner
provided for by the Regulations, as amended from time to
time, provides that all matters relating to the
administration of the academic affairs of the Institute are
required to be considered by the Standing Academic Committee
and all proposals for the creation of posts, by the standing
Finance Committee. under Regulation 32, the Institute is
competent to specify the age, experience and qualifications
for a post subject to the conditions that non-medical
persons shall not be appointed to the post of Director and
Medical Superintendent. Regulation 32(2) postulates that
while filling up vacancies in posts and services, including
the vacancies in teaching faculty under the Institute,
reservations in favour of the Dalits and Tribes is required
to be made as per the reservation orders issued by the
Central Government from time to time. "Teaching faculty"
includes research post as well. in furtherance thereof, when
the question of application of the rule of reservation to
senior faculty posts was put up for consideration to the
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Governing Body of the Institute on September 28,1984, they
resolved as under:
"Reservation be applied on vacant
posts of professors, Associate
professors and Assistant Professors
in addition to lecturers dn a 40
Point Roster be maintained for the
same. As and when the advertisement
was sent to the press, the number
of posts reserved should be
indicated. On Receipt of
applications, candidates belonging
to reserved categories who apply
for any of the specialities should
be considered for those
specialities. After comparing
merits the best person should be
selected on the basis of
qualification and merit. if no
suitable candidate is then all such
posts should be filled in from
general candidates and reserved
vacancy should be carried forward.
In the next advertisement, the
carry forward vacancies should also
be indicated."
It was decided that no relaxation in respect of
qualifications or experience would be recommended by
scrutiny Committee for any of the applicants including
candidates belonging to Dalits and Tribes. In furtherance
thereof, the faculty posts would be reserved without
mentioning the speciality: if the Dalit and Tribe candidates
were available and found suitable, they would be treated as
reserved candidates. If no Dalit and Tribe candidate was
found available, the post would be filled from general
candidates; otherwise the reserved post would be carried
forward to the next year/advertisement. It is settled law
that if a dalit or Tribe candidate gets selected for
admission to a course or appointment to a post on the basis
of merit as general candidate, he should not be treated as
reserved candidate. Only one who does get admission or
appointment by virtue of relaxation of eligibility criteria
should be treated as reserved candidate.
The Government of India in their instruction No.
9/2/73-Est.(SCT), dated June 23, 1975, inter alia provided
the scheme of reservation for Dalits dn Tribes to cover
appointments made to ‘Scientific and Technical’ posts upto
and including lowest of Group ‘A’ (Class I) in the
respective services which were not exempted from the purview
of the scheme of reservation orders. In the event of Non-
availability of candidates belonging to reserved
communities, the reserved vacancies were directed to be
treated as dereserved by the administrative Ministry or
Department concerned without obtaining the approval of the
Department of Personnel and Administrative Reforms. Only
such ‘Scientific & Technical" posts in the Institute as
satisfied the following conditions laid down by the
Department of personnel and Administrative Reforms dated
June 23,19975 exemption from the purview of reservation
Orders:
(i) The posts should be in grades
above the lowest grade in Group A
(Class I ) of the service
concerned;
(ii) They should be classified as
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‘Scientific or technical’ in terms
of Cabinet Secretariat (Department
of Cabinet Affairs) O.M.85/11/CF-
61(1) dated 28.12.1961; and
(iii) They should be posts for
conducting research or for
organising, guiding and directing
research.
The rule of reservation for Dalits and Tribes was
applied while filling up various vacant teaching posts at
the Institute and for that purpose all the vacant teaching
posts at the level of lecturers, Assistant professors,
Associate professors and Professors, though in different
specialities /superspecialities, were clubbed altogether,
because the posts were in the same pay scale under the same
designation.
While filling up the posts at each level in different
teaching Department or specialities or superspecialities,
different educational qualifications in specific
field/specialities or super-speciality were prescribed. In
the case of non-medical scientists or Ph.D. in the subject
concerned, allied subjects also were required to be
fulfilled.
As the posts belong to different specialities/super-
specialities for which qualifications prescribed are
distinct and different, the posts cannot be and are not
transferable from one speciality to another. However, the
Institute had clubbed all the posts of Assistant professors
for the purpose of reservation in view of the fact that they
are in the same pay-scale and have the same designation. The
Institute has been imparting training for Md/M.Ch. courses
in the following super-specialities, besides other post-
graduate courses:
DOCTOR OF MEDICINE (D.M.)
1. Cardiology
2. Endocrinology
3. Gastroenterlogy
4. Nephorology
5. Neonatology
6. Pulmonary Medicine
7. Clinical Pharmacology
8. Neurology
MAGISTER CHIRUGIAGE (M.CH.)
1. Cardiovascular & Thoracic
Surgery
2. Neurosurgery
3.Paediatric Surgery
4. Plastic Surgery
5. Urology
Admission to the above post-doctoral courses conducted
at the Institute is made twice a year. The sessions commence
from 1st January and 1st July each Year. The Institute
provides residency service-cum-training scheme. Candidates
selected for M.D./M.Ch. courses and paid by the Institute
are designated as senior residents. The admission to the
courses imparted at the Institute is made on merit on all
India basis by holding an entrance examination after issuing
a countrywide admission notice. The admission is published
in leading English Newspapers of India.
In the light of the above scheme and the Regulations,
the question arises is: whether the reservation in
appointment to the posts of Assistant professors in various
disciplines in the Institute is violative of Articles 14 and
16 (1) of the Constitution? The High Court has relied on the
judgement of Dr. Chakradhar Paswan vs. State of Bihar [ AIR
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1988 SC 959] to deny the rights to the Dalits and Tribes.
The controversy is no longer res integra. In Union of India
& Anr. vs. Madhav s/o Gajanan Chaubaal & Anr. [(1997) 2 SCC
332], this court has considered the entire case law on the
subject. The question therein was: whether in a single post
cadre, namely, Secretary, applying the rule of rotation and
application of 40 point roster to successive vacancies is
violative of Article 16(1) and 14 of the Constitution? In
para 10, this Court had held that "[Thus, we hold that even
though there is a single post, if the Government have
applied the rule of rotation and the roster point to the
vacancies that had arisen in the single point post and were
sought to be filled up by the candidate belonging to the
reserved categories at the point on which they are eligible
to be considered, such a rule is not violative of Article
16(1) of the Constitution". In that case, the post of
Secretary carrying the pay scale of Rs.1200-2400/- was a
single post cadre. The Government applied 40 point roster
for the post of Secretary. The vacancy available at the time
of point No. 4 of the roster was reserved for Tribal. The
Tribunal had set aside the appointment order on the ground
that it amounted to 100% reservation, violating Article 14.
While reversing the order of the Tribunal, this Court has
applied the rule of rotation and roster and upheld the
appointment by reservation in a carry forward post and
followed the ratio of the Constitution Bench decision in
Arati Roy Choudhary v. union of India [(1974) 2 SCR 1]. In
State of Uttar Pradesh vs. Dr. Dina Nath Shukla & anr. [JT
1997 (2) SC 467=1997(3) Supreme Today 386], the question
arose whether pooling of all the posts in similar grade or
category for application of the rule of reservation and
rotation is valid in law? The University, applying the Uttar
Pradesh Public Services (Reservation for Scheduled Castes
Scheduled Tribes and OBC)Act, 1994, advertised for
appointment of the posts of professors and Lecturers
treating the post as one unit; recruitment was made applying
the rule of rotation for the Dalits, Tribes and OBCs in
respect of all the posts. The Division Bench of the High
Court had set aside the notification on the ground that it
was violative of Articles 14 and 16(1) of the Constitution.
This Court reversed the judgement of the High Court
following Madhav’s case and R.K. Sabharwal & Ors . vs. State
of Punjab & ors. [(1995) 2 SCC 745] relying on the Arati Roy
Choudhary’s ratio of the Constitution Bench. It was held in
paragraph 14 as under:
"Thus it could be seen that if the
subject wise recruitment is adopted
in each service or post in each
cadre in each faculty, discipline,
speciality or super-speciality, it
would not only be clear to the
candidates who seek recruitment but
also there would not be an over-
lapping in application of the rule
of reservation to the service or
posts as specified and made
applicable by Section 3 of the Act.
If there is any single post of
professor, Reader or lecturer in
each faculty, speciality which
cannot be reserved for reserved
candidates, it should be clubbed
roster applied and be made
available for the reserved
candidates, in terms of section
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3(5) of the Act. Even if there
exists any isolated post, Rule of
rotation by application of roster
should be adopted for appointment.
For achieving the said object, the
Vice-Chancellor, who is responsible
authority under Section 4 enforce
the Act, would ensure that single
post in each category are clubbed
since admittedly all the posts in
each of the categories of
professor, Readers or Lecturers
carry the same scale of pay.
Therefore, their fusion is
constitutional and permissible. The
Vice-Chancellor should apply the
rule of rotation and the roster as
envisaged under sub-section(5) of
Section 3."
Accordingly, the appeal was allowed. In Union of India
& Ors. vs. Brij Lal Thakur [JT 1997(4) SC 195], the post of
E.C.G. Technician in the grade of Rs.1200-2040/- was a
single cadre post in Central Hospital, Northern Railway. The
rule of rotation and 40 points roster was applied. The
appellants therein selected the reserved candidate. The Same
was questioned by the general candidate. The Tribunal Held
that since it was solitary post, reservation amounted to
100% reservation and was, therefore, unconstitutional.
Reversing the judgment and reiterating the law laid down in
Madhav’s case and State of Bihar vs. Bageshwari Prasad [1995
Supp. (1) SCC 432], this court had held that to the single
post of E.C.G. Technician, application of 40 point roster
and rule of rotation was not violative of Articles 14 and
16(1) of the Constitution. The Promotion was held to be
legal and valid. Same was the question in Bageshwari Prasad
case. In State of Punjab & Ors. vs. G.S.Gill & Anr. [CA
3005/97 decided on March 27, 1997], the single cadre post
of Assistant superintendent, Quality Market Centre (Textile)
was reserved for Dalit candidate applying rule of rotation
and the roster. The High Court set aside the promotion as
violative of Article 14. Reversing that judgment, it was
held that " thus, it is settled legal position that
application of roster to single post cadre and appointment
by promotion to carry forward post is valid and
constitutionl. With a view to give adequate representation
in public service to reserved category candidates, the
opportunity given to them is not violative of Articles 14
and 16(1) of the Constitution". In Shri Suresh Chandra vs.
Shri J.B. Agarwal & Osrs. {CA No. 3081/97 decided on April
4, 1997], the post of Assistant Manager (Electrical()
carrying the pay scale of Rs.1000-1600/- was the feeder
channel for promotion to Senior Manager. When the rule of
rotation and reservation was applied, the Tribunal declared
the reservation as violative of Article 14. Reversing the
order of the Tribunal, this court has held that the
reservation to single post cadre is not violative of
Articles 14 and 16 of the Constitution. The contention of
the counsel for the respondent that Madhav’s case requires
reconsideration in view of Chetana Dilip Motgnare v. Bhide
Girls Edn. Socy., Nagpur & Ors. [(1985) supp. 1 SCC 157] was
rejected.
In all these decisions, the ratio laid down by this
Court in Arati Ray Choudhury case was followed. Reservation
to a single cadre post, applying rule of rotation of 40
point roster, was held valid and constitutional. Clubbing of
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the posts carrying the same scale of pay or grade is also
constitutionally permissible and accordingly clubbing of the
single point post of assistant professors in various
disciplines of the appellant carrying the same scale of pay
and grade has been held to be constitutionally permissible.
Shri P.P. Rao, learned senior counsel for the general
candidates, contends that as per the Circular of the
Government of India, dated July 17,1964, the scientific or
research posts in the institute are exemptible from the
purview of the reservation. The Committee recommended to the
Government to dereserve the posts of Professors, Associate
Professors and Assistant Professors from the purview of the
reservation. Since the Committee had not taken any policy
decision, and the Institute being an autonomous body it, by
itself, is entitled to take a decision; permission of the
Government for dereservation is not necessary. We find no
force in the contention. Far from admission by the
institute, Regulation 32(2) establishes that the Institute
is bound by the reservation policy of the Government of
India. Reservation is applicable and, therefore, the
Committee is bound to apply the rule of reservation to the
said posts, Merely because the Institute is and autonomous
body, it cannot, except with the prior permission of the
Ministry of personnel and the concerned Ministry of Health
and Family Welfare, dereserve the posts. it is then
contended that since the committee has deferred the issue
requesting the Government of India to consider the
dereservation and the same was reiterated in the year 1991,
the declaration given by the High Court that the
dereservation is constitutionally permissible, does not
warrant interference. In respect thereof, he placed strong
reliance on the decision of this court in Comptroller and
Auditor General of India, Gian Prakash, New Delhi & Anr. vs.
K.S.Jagannathan & Anr. [(1996) 2 SCR 78]. We find that there
is no force in the contention. It is seen that though the
Committee of the Institute had recommended to the Government
of India to dereserve the post, so long as the Government of
India has not given any direction to the Institute to
dereserve the post, it has no power to do the same and is
bound to implement the principle of reservation.
The question arises: whether the Court can give such a
direction in that behalf? The Department of personnel and
Training in O.M. No. 36012, dated April 25,1989, had imposed
a ban on de-reservation in direct recruitment to the
vacancies under the Government by letter No. 3612 dated May
9, 1989 issued by the Secretary, Department of Personnel and
Training to the Health Secretary. Direction was given to
make special recruitment to fill up the backlog vacancies
reserved for Dalits and Tribes. By letter No. 36012 dated
May 22,1989, addressed by the Deptt. of Personnel and
Training to the Health Secretary, procedure is laid to
compute the backlog vacancies to be filled up by special
recruitment drive to be launched w.e.f. 1.6.1989, as well as
monitoring of filling up of vacancies by special recruitment
drive; and preparation of action plan was issued in that
behalf. it would, therefore, be incumbent upon the
appellant-P.G.I. to make special recruitment to fill up the
backlog of carried forward vacancies. Obviously , therefore,
for the posts of Asstt. Professor which are backlog
vacancies, in the aforesaid O.M.No.36012 dated April
25,1989, the Government have stated that " it has now been
decided that where sufficient number of candidates belonging
to SC/ST are not available to fill up the vacancies
reserved for them in direct recruitment, the vacancies shall
not be filled by candidates belonging to these communities.
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In other words, there will be a ban on de-reservation. This
will come into effect from 1.4.1989 in respect of all direct
recruitment to be made to fill up vacancies in groups A B C
& D. It is further clarified that this ban will apply not
only to vacancies which arise after 1.4.1989, but also the
the vacancies reserved for SC/ST communities of earlier
years which have not yet been filled up by other community
candidates whether such vacancies have been deserved or not.
It was further stated that "if the required number of SC/ST
candidates are not even then available the vacancies which
could not be filled up, shall remain unfilled until the next
recruitment year. These vacancies will be treated as backlog
vacancies". In the subsequent year, "when recruitment is
made for the vacancies of that year (called the current
vacancies), the backlog vacancies will also be announced for
recruitment, keeping in vacancies of the particular
recruitment year, i.e. the current vacancies and the backlog
vacancies, for the year of recruitment, the normal
instructions relating to calculation of vacancies reserved
for SC/ST as well as the instructions for SC/ST, Physically
handicapped, etc., will apply to all the backlog vacancies
reserved for SC/ST and will be filled up by the concerned
candidates belonging to reserved category without any
without any restriction whatsoever as they belong to
distinct group of backlog vacancies. " It was further stated
that "while the vacancies reserved for SC/ST which remain
unfilled will be carried forward to the next year of
recruitment as backlog vacancies, the carried forward
reservations for SC/ST as on 1.4.89 as a result of the
filling up of the relevant vacancies after dereservation,
will continue to be operated against a ‘current’ vacancies
following the existing orders dn instructions. If such
reserved vacancies are still not filled up they will be
carried forward as backlog vacancies under these orders. "
With regard to Group ‘A’ service, it was stated that "while
the ban on dereservation comes into effect from 1.4.89 on
direct recruitment on Groups A B C & D in case of direct
recruitment to the vacancies in group A services, there may
be rare and exceptional cases where after the non-
availability of suitable SC and ST candidates posts cannot
be allowed to remain vacant in public interest." In such
situations, " the administrative Ministry/Deparatment under
which the recruitment is being made shall make a proposal
for de-reservation giving full justification for such
action, and consult the Commissioner for SC and ST and
obtain his comment on each proposal. After obtaining the
comments of the Commissioner for SC and ST, the
administrative Ministry shall place the proposal for
dereservation along with the Commissioner’s comment before a
committee comprising the Secretaries in the Ministry of
Personnel, in the Ministry of Welfare and the
Ministry/Deptt. under which the recruitment is to be made.
The recommendation of this committee shall be placed before
the Minster-in-Charge of the Ministry of Personnel for a
final decision." It would thus be seen that a fool-proof
procedure in regard to de-reservation has been provided.
Before de-reservation could be made for recruitment of the
Dalits and Tribes, special drive is made as is incumbent on
the administration to fill up not only the current vacancies
but also backlog vacancies. Only in exceptional cases, that
too if in spite of all sincere efforts recruitment, the
backlog vacancies or current vacancies in Class ’A’ posts
remain unfilled, for reasons to be recorded for
dereservation, they are required to de-reserve the posts;
the procedure indicated hereinbefore with prior
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consultations and concurrence of the Commission for SC/ST,
should be obtained and the reserved vacancies be notified
for recruitment by general candidates and the denotified
vacancies are carried forward.
The question, therefore, is whether the Court can give
direction to throw open the reserved vacancies to the
general candidates by a writ of mandamus or direction, as
the case may be? The contention of Shri P.P. Rao is that
since the institute had already apprised the Ministry of
Health and Family Welfare of the need for dereservation of
the posts relating to scientific and research and no action
has since been taken, the Court is empowered to issue
directions. In support thereof he placed reliance on the
judgment of this Court in Comptroller and Auditor General of
India v. K.S. Jaganathan & Anr. [(1986) 2 SCR 17]. We find
it difficult to give acceptance to the contention. The same
question had arisen in S.S. Sharma v. U.O.I. [AIR 1981 SC
588], wherein a Bench of three Judges of this Court had
considered the question whether the Court could give
direction to de-reserve the post. This court pointed out
that so long as the recruitment by a limited departmental
competitive examination for the Dalits and Tribes could be
adopted and followed, i.e., one of the methods to make
recruitment, a mandamus cannot be issued by the Court to
direct the Government to de-reserve the post. C.A.G. case is
a reverse case. Therein , rule of reservation was applicable
to all the Departments since the C.A.G. had not applied the
relaxed standard in conducting the examination and making
recruitment on the basis thereof, the Division Bench of the
High Court had directed to relax the standard and make
recruitment of the Dalits and Tribes by promotion. This
court had upheld the judgment and held that when the
authorities have a power coupled with discretion, they have
also a duty to implement the policy of the Government. At
page 39, this Court had pointed out that in order to prevent
injustice resulting in injustice to the concerned parties,
the Court may itself pass an order or give directions which
the Government or the competent authority should have passed
or given had it properly and lawfully exercised its,
discretion. Far from helping the appellants, the ratio goes
in favour of the reserved candidates. This question was
considered in G.S. Gill’s case. Therein, the High Court has
given direction to de-reserve the post and to throw open the
same to the general candidates, while considering the ratio
in C.A.G. case and other decisions, this Court had pointed
out that court cannot give mandamus to disobey the
Constitution and principle of reservation enshrined in
Articles 15(4) and 16; nor it the Court competent to direct
the authorities to disobey the constitutional mandate. It
would, therefore, be manifestly illegal to seek a mandamus
or direction; nor would the Court be justified to issue such
mandamus or direction to the appropriate Government to de-
reserve vacancy. It is common knowledge that selections are
not objectively being made to select the candidates
belonging to the Dalits and Tribes to fill up the vacancies
reserved for them though qualified candidates are available
to be promoted/appointed, with a view to see that reserved
vacancies are not filled up and the same are passed off as
eligible candidates being not available so as to ensure that
carry forward vacancies either exceed 50% of the accumulated
total vacancies or that selection goes beyond three years so
as to make the Government de-reserve the vacancies. It
would, therefore, be clear that the authorities should
implement the executive/legislative/ constitutional policy
or principle in their true spirit, honestly and sincerely to
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effectuate the policy; no mandamus or direction should be
issued to de-reserve the carry forward vacancies reserved
for appointment of the Dalits and Tribes nor should
direction be given to fill up the reserved posts with
general candidates. Thus, it is settled legal position that
application of roster to single post cadre and appointment
by promotion to carry forward post is valid and
constitutional. With a view to given adequate representation
in public service to reserved category candidates, the
opportunity given to them is not violative of Articles 14
and 16(1) of the Constitution; nor is it unconstitutional.
In R.K. Sabharwal & Ors. v. State of Punjab & Ors.
[(1995) 2 SCC 745], it was held that promotions in
accordance with roster are valid and constitutional.
Even in Indira Sawhney’s case, this Court has
reiterated the view that reservation for the Dalits and
Tribes is as a class but not as individual and, therefore,
such a reservation is not violative of Article 14 or 16 (1)l
of the Constitution. This we hold that the fact the
Government of India has not de-reserved the post as
recommended by the appellent-P.G.I, itself is positive proof
that the Government are not in favour of de-reservation; On
the other had the aforesaid Government order is a positive
mandate not to de-reserve any post. Only in exceptional case
that too in group ‘A’ posts, de-reservation could be
resorted to in conformity with the procedure prescribed
therein and as per the law above laid. Thus we do not find
any force in the contention of Shri Rao.
Shri Rao then contended that this Court in Madhav’s
case has noted the ratio of Sabharwal’ case, upholding the
right to reservation in promotion but it relates only to the
post and not vacancy and that, therefore, in Madhav’s case,
the distinction was not considered. Accordingly, it requires
reconsideration. We find no force in the contention. In
every direct recruitment, appointment is only to the vacant
post. Equally, when appointment by promotion is made, it is
only to the vacant post. The ‘vacancy’ and ‘post’ are
usually used interchangeable. When roster is applied and
rule of reservation is implemented, it should be in
conformity with the roster by the prescribed procedure and
appointments of the reserved candidates by the direct
recruitment or by promotion would always be only to vacant
post ear-marked in the roster to the general candidates.
Only in a single post cadre by fiction of law successive
vacancies are treated as vacant post as per the roster
applying the rule of rotation to vacancies and they are
filled up as per the roster. This principle guarantees
equality of opportunity to the Dalits and Tribes to occupy
the higher echelons of service. Otherwise it would be a
reverse case of total denial of opportunity to them
violating Article 14, 15(4), 16(1) and 16(4A) read with
Article 335. Sabharwal’s case does not deal with this aspect
of the case as it did not arise therein. Therefore, there is
no infirmity either in the judgment in Madhav’s case nor is
there any inconsistency with Sabharwal’s ratio. In fact,
Sabharwal’s ratio is applicable per force. The fact is that
appointment to a post by promotion is also a
constitutionally permissible right under Article 16(4A).
This Court has observed in Sabharwal’s case that the roster
should be operated on current account basis in the order in
which the vacancies are required to be filled in. No doubt,
this Court pointed out that once roster points are filled
up, the roaster gets exhausted but, in the latter paragraph,
it was pointed out that re-cycling would start after the
roster points are totally filled up. It was held by this
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court, in paragraph 10, while pointing out the anomaly, that
"on the contrary, if the roster is permitted to operate till
the total posts in a cadre are filled and thereafter the
vacancy falling in the cadre are to be filled up by the same
category of persons whose retirement etc. caused the
vacancies, then the balance between the reserved category
and the general category shall always be maintained. We make
it clear that in the event of non-availability of a reserved
candidate at the roster point, it would be open to the State
Government to carry forward the point in a just and fair
manner." Thus it would be apparent that once the roster
point is exhausted, it does not mean that reservation should
not be applied thereafter. The recycling of the roster
starts running like current account and as and when vacancy
arises in accordance with the roster point, the
posts/vacancies would subsequently be filled up by
appointment. It would be a continuous process.
The contention of Shri Rao that the Institute being an
independent and autonomous statutory body, is not bound by
the Government of India policy is devoid of base. It is seen
that Regulation 32(2) itself makes rules of reservation
issued by the Government of India Applicable from time to
time. It is not in dispute that the Government of India was
not spending the entire expenditure of the Institute from
the public exchequer and, therefore, per force the
appellants-Institute is enjoined to abide the constitutional
policy of reservation.
It is then contended that in view of the decision of
this court in Indira Sawhney v. Union of India [(1992) Supp.
SCC 217], the recruitment to 12 posts reserved for Dalits dn
Tribes, is in violation of the carry forward principle
adumbrated therein. he placed strong reliance on paragraphs
817-18 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 Indira Sawhney’s case is not a ratio
decided 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,
therefor, 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 of
recruitment by general candidates and equal number of posts
are carried forward. There sis 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
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post would nota be available to the general candidates. The
obite dicta in Indira Sawhney case on carry forward rule,
even if applied, does no t 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 post 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
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’s equally,
reservation within 50% quota is not violative of the
principle of carry forward within one year’s 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 extention 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 nota arise in a
situation where there is single
post/cadre. In S.S. Sharma & Ors.
V/s. union of India & Ors. [AIR
1981 SC 588] in paragraph 8 at page
592, this Court had held that the
limited Departmental competitive
examination of recruitment of the
members of the schedule Castes and
Scheduled Tribes for determination
of eligibility for promotion is
not invalid nor the Central
Government be directed to dereserve
the vacancies meant for such
members when it was found that
suitable Schedule Caste and
Schedule Tribe candidates were not
available for inclusion within the
field of selection. Whether or not
reserved vacancies should be de-
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reserved 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-rservation 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 dereservation 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.
The next question is; whether the reservation in post
graduate and doctoral courses is violative of Article 15(1)
of the Constitution? Shri Gupta, learned counsel appearing
for the General candidates, contends that the post graduate
and doctoral courses are highly specialised subjects. The
reservation for those posts in inconsistent with the
maintenance of high degree of excellence which the nation
needs for the treatment of the patients suffering from
critical diseases. the reservation in these specialities and
super specialities Shri Gupta, learned counsel appearing for
the General candidates, contends that the post graduate and
doctoral courses are highly specialised subjects. The
reservation for those posts in inconsistent with the
maintenance of high degree of excellence which the nation
needs for the treatment of the patients suffering from
critical diseases. the reservation in these specialities and
super specialities Shri Gupta, learned counsel appearing for
the General candidates, contends that the post graduate and
doctoral courses are highly specialised subjects. The
reservation for those posts in inconsistent with the
maintenance of high degree of excellence which the nation
needs for the treatment of the patients suffering from
critical diseases. the reservation in these specialities and
super specialities Shri Gupta, learned counsel appearing for
the General candidates, contends that the post graduate and
doctoral courses are highly specialised subjects. The
reservation for those posts in inconsistent with the
maintenance of high degree of excellence which the nation
needs for the treatment of the patients suffering from
critical diseases. the reservation in these specialities and
super specialities Shri Gupta, learned counsel appearing for
the General candidates, contends that the post graduate and
doctoral courses are highly specialised subjects. The
reservation for those posts in inconsistent with the
maintenance of high degree of excellence which the nation
needs for the treatment of the patients suffering from
critical diseases. the reservation in these specialities and
super specialities is detrimental to the public welfare. As
a consequence, this Court has pointed out in Dr. Jagdish
Saran & Ors. vs. Union of India [(1980) 2 SCC 768 and Dr.
Pradeep Jain & Ors. vs. Union of India & Ors. [(1984) 3 SCC
654] as was reiterated in Indira Sawhney’s case. It is
contended that the view of the High Court is correct in law.
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We find no force in the contention. It is true that the
learned single Judge of the High court has held that the
Institute has been established with the object of achieving
high degree of excellence in medical studies, specialities
and super-specialities taught in the Institute as a measure
to aheive the highest scales of super-specialities where the
best skills or talent must be hand picked by selecting
candidates on the basis of capability. As the level of Ph.D,
M.D. or M.Ch., proficiency of highest level is required and
losing one great scientist or technologist in the making is
a national loss. The consideration, therefore, is upon
achieving high excellence by measure of matching is a
national loss. The consideration, therefore, is upon
achieving high excellence by measure of matching excellence;
nation cannot afford to lose such excellence by taking grave
risk. The Indian Medical Council also emphasis adopting high
standards of merit. The question is : whether by applying
rule of reservation in admission to into the specialities or
super-specialities course/faculties would lead to loss of
proficiency or high excellence needed in the specialised or
super-specialised faculties? In our considered view, it is
not so. It is an accepted position that a student admitted
to a medical course of a post graduate course of study is
required to pass the same standard of examination as is
prescribed in the particular course of study. Equally, a
student, admitted on reservation, is required to pass the
same standard prescribed for speciality or a super-
speciality in a subject or medical science or technology. In
that behalf, no relaxation is given nor sought by the
candidates belonging to reserved categories. What is sought
is a facility or opportunity for admission to the courses,
Ph.D., speciality or super-speciality or high technology by
relaxation of a lesser percentage of marks for initial
admission than the general candidates. For instance, if the
general candidate is required to get 80% as qualifying marks
for admission into speciality or super-speciality, the
relaxation for admission to the reserved candidates is of 10
marks less, i.e., qualifying marks in his case would be 70%.
A doctor or a technologist has to pass the post graduation
or the graduation or the graduation with the same standard
as had by general candidate and has also to posses the same
degree of standard. However, with the facility of possessing
even lesser marks the reserved candidate gets admission.
Thereby, the proficiency is not affected. In Dr. Jagdish
Saran’s case, this Court pointed out that the reservation of
seats on the basis of domicile or residence of the State of
student of the same University was not consistent with the
high degree of proficiency or excellence required. This
Court took care to observe that the above ratio was not
intended to be applied to the admission under Article 15(4)
of the Constitution. It was expressly stated to be so in
paragraph 25 thus:
"we hasten to keep aloof from
reservation for backward classes
and Scheduled Castes and scheduled
Tribes because the Constitution has
assigned a special place for that
factor and they mirror problems of
inherited injustices demanding
social surgery which if applied
thoughtlessly in other situations
may be a remedy which accentuates
the malady."
Even in Dr. Pradeep Jain’s case also, in paragraph 13,
this court pointed outa thus;
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"we may now proceed to consider
what are the circumstances in which
departure may justifiably be made
from the principle of selection
based on merit. Obviously, such
departure can be justified only on
equality-oriented grounds, for
whatever be the principle of
selection followed for making
admission to medical colleges, it
must satisfy the test of equality.
Now the concept of equality under
the Constitution is a dynamic
concept. It takes within its sweep
every process of equalisation and
protective discrimination. Equality
must not remain mere idle
incantation but it must become a
living reality for the large masses
of people. in a hierarchical
society with an indelible feudal
stamp and incurable actual
inequality, it is absurd to suggest
that progressive measures to
eliminate group disabilities and
promote collective equality are
antagonistic to equality on the
ground that every individual is
entitled to equality of opportunity
based purely on merit judged by the
marks obtained by him. We cannot
countenance such a suggestion, for
to do so would make the equality
clause sterile and perpetuate
existing inequalities.. Equality of
opportunity is not simply a matter
of legal equality. its existence
depends not merely on the absence
of disabilities but on the presence
of abilities where, therefore,
there is inequality, in fact, legal
equality always tends to accentuate
it. what the famous poet William
Blake said graphically is very
true, namely, "One law for the Lion
and the Ox is oppression". Those
who are unequal, in fact, cannot be
treated by identical standards;
that may be equality in law but it
would certainly not be real
equality. It is therefore,
necessary to take into account do
facto inequal, in fact, in facto,
cannot be treated by identical
standards that may be equality. It
is, therefore, necessary to take
into account de facto inequalities
which exist in the society and to
take affirmative action by way of
giving preference to the socially
and economically disadvantaged
persons or inflicting handicaps on
those more advantageously placed,
in order to bring about real
equality.. Such affirmative action
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though apparently discriminatory is
calculated to produce equality on a
broader basis by eliminating de
facto inequalities and placing the
weaker sections of the community on
a footing of equality with the
stronger and more powerful sections
so social position may enjoy equal
opportunity of using to the full
his natural endowments of physique,
of character and of intelligence."
In Ajay Kumar singh & Ors. vs. State of Bihar & Ors.
[(1994) 4 SCC 401], reservation in admission to the post
graduate medical courses was challenged. Reliance was placed
on Dr. Jagdish Saran and Dr. Pradeep Jain’s cases. This
Court, after noticing the law laid down in the aforesaid
case, held in paragraph 13 that "it is again necessary to
notice the context in which the said observation were made.
In Pradeep Jain’s case the Court was concerned with
wholesale reservation made by some of the State Governments
on the basis of fomicile or residence requirement within the
state and admitting only those students to their medical
colleges who satisfied the said requirements. With a view to
extend the rule of equality, the Court directed that certain
percentage of seats both in M.B.B.S. and postgraduate
medical courses should be filled on the basis of All India
entrance test and that students to this reserved quota
should not be called upon to satisfy the rule of residence
or domicile, as the case may be. This was again not a case
arising under Article 15(4). The observations made cannot be
torn from their context and read as applicable to the
situation obtained under Article 15(4). For the above
reasons, the second contention of Shri Vikas Singh is also
rejected." Thus, this Court has reiterated that the
applicability of the reservation in post graduation courses
under Article 15(4) is constitutionally permissible. Even
the observation in Indira Sawhney’s case was explained in
para 7, holding that the observations made with reference to
Article 335 of the constitution was not with reference to
Article 15(4). it is true that a suggestion was made for
exclusion of the reservation in the specialised posts etc,
under Sections 16(1) and 16(4). But it is to be seen that
what Constitution gives tot he reserved candidates is
facility and opportunity to enjoy the right to equality
enshrined under Articles 14,15(1),15(4),16(1),16(4) and
16(4A) respectively. For educational and economic
empowerment and social justice, the arch of the Constitution
in the preamble and the relevant articles in Part III & IV,
protective discrimination ensures practical content applying
the protective and actuality and equality in results,
instead of legal equality, in favour of the disadvantaged
segments of the society.
In The Ahmedabad St. Xaviers College Society case, a
Bench of nine Judges of this Court reiterated the rights of
all minorities, while deciding whether the making religion
or language as the base of reservation in establishing and
administering the educational institution of their choice is
unconstitutional. Articles 25 to 30 are a befitting pledge
to the minorities. The attempt of the Court interpreting
those articles should be such as to facilitate enjoyment of
the rights. The object is to integrate them in the
mainstream of the society to instill a sense of confidence
in the minorities so that none might have a feeling that
other section of the population would trample upon the
fundamental rights guaranteed under the Constitution. The
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ration equally applies to the protective discrimination
guaranteed to the Dalits and Tribes. The Dalits and Tribes
are victims of social injustice, practice of untouchability
and segregation from the mainstream of national life. The
object of protective discrimination is to integrate them in
the national mainstream so as to establish an integrated
social order with equal dignity of person in which justice
social, economic and political are enjoyed by them in equal
measure with the general members of the society. Dr. B.R.
Ambedkar in his closing speech, in reply to the Debates in
the Constituent Assembly, had stated that the edifice in the
Constitution was build up with laborious effect. There is
no defect in the Constitution. if the Constitution fails, it
fails not because there is defect in the Constitution but on
account of the bad management by the administrators.
Judiciary is a part of the State under the Constitution. Dr.
K.M. Munshi, in reply to the Debates on the minority rights,
had stated that one day the minority rights will be decided
by 11 worthy judges was so high that they chose to describe
Supreme Court Judges as " Worty Judges’ to interpret the
Constitution only to sustain the social order, integrate the
people in united Bharat to elongate the constitutional
rights and ensure the enjoyment of those rights and make
these rights available to the Dalits. Tribes, poor,
minorities and all sections in equal measure. It is
repeatedly held by this Court that the interpretation of the
constitutional provisions should always be such as to enable
the availing of the rights given in the Constitution to the
citizens, and not to deny or denude them by process of
interpretation. The judges of the constitutional Courts, in
particular. As judicial statesmen, would always endeavour to
ensure enjoyment of the rights enshrined in the Constitution
to every section of the society consistent with the policies
and principles laid down in the constitution we are to keep
at the back of our mind. The above perspectives to reach the
result.
As stated earlier, the benefit of reservation does not
necessarily imply down-grading the excellence. Every student
after admission into the post graduate speciality or super
speciality its is required to undergo the same course of
study, same standard and higher performance for qualifying
the course for conferment of the degrees in the respective
specialities or super-speciality or technical subjects. In
that regard, there is no relaxation given to the candidates
is also expected to have the same degree of excellence on
par with general candidate, with a lesser benefit of marks
only for admission into the course of study by relaxing the
same standard of marks. Securing marks is not he sure proof
of higher proficiency, efficiency or excellence. These are
matter of acquired ability by studious application of mind,
skills in performance by the candidate concerned, be it
general candidate or reserved candidate. It is a matter of
application of the mind, constant assiduity to improve
skills, capabilities and capacities and excellence in the
subject or the field of action chosen by the candidate. In
that behalf, it is common knowledge that marks would be
secured in diverse modes. It is no indicia that particular
percentage of the marks secured is an index of the
proficiency, efficiency and excellence. They are awarded in
internal examination on the basis of caste, creed, colour,
religion etc. It is the constitutional imperative of the
executive to provide opportunities and facilities to the
handicapped to acquire the degree in specialities, super-
specialities or technical posts. Denial thereof, is a total
denial of right to enjoy equality. It is well-settled legal
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position that fundamental rights are to be interpreted
broadly to enable the citizens to enjoy the rights enshrined
in part III and IV of the constitution {Vide The Ahmedabad
St. Xaviers College Society & Anr. etc. vs state of Gujarat
& Anr. [(1975) 1 SCR 173]; Marri Chandra Shekhar Rao vs.
DEAN, Seth G.S. Medical College & Ors. [(1990) 3 SCC 130]
and Ashok Kumar Gupta & Anr. vs. State of U.P. & ors. (3)
SCALE 289]} pa
Under these circumstances, the view of the High Court
that the reservation in post graduation specialities or
super-specialities are detrimental to the high degree of
efficiency and violative of article 14 is clearly incorrect,
erroneous, illegal and unconstitutional. Thus, we hold that
the reservation in post graduation speciality or super-
speciality is valid under Articles 14, 15(1) and 15(4) of
the Constitution.
These appeals are accordingly allowed with no order as
to costs.
The writ Petition 781/95 filed by Scheduled Association
relates to withdrawal of the reservations in the Institute.
The action taken by the Institute is pursuant to the
directions issued by the High Court. In view of the fact
that we allowed the appeals, the Institute, hereafter,
should follow the reservation and make appointments to the
posts of Assistant professors and other posts in accordance
with Regulation 32(2) and in other faculties as well as
admission to the various courses in the Institute by
applying the rule of reservation.
Accordingly, the writ petition is disposed of, but, in
the circumstances, without costs.
We place on record the valuable assistance rendererd by
the learned counsel appearing for the parties.