Full Judgment Text
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PETITIONER:
ARATI RAY CHOUDHURY
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT11/10/1973
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
RAY, A.N. (CJ)
PALEKAR, D.G.
BHAGWATI, P.N.
KRISHNAIYER, V.R.
CITATION:
1974 AIR 532 1974 SCR (2) 1
1974 SCC (1) 87
CITATOR INFO :
D 1988 SC 959 (15)
ACT:
Constitution of India, Art. 16(1)-Reservation of posts for
Scheduled Caste candidates in Railway Service-Carry forward
Rule-Application of, where there is only one post-Railway
Board’s administrative instructions 1964, 1971Home Ministry
Memorandum, 1963.
HEADNOTE:
After the decision of the Supreme Court in Devadasan’s case
[1964] 4 S.C.R. 680 holding that the reservation for the
backward communities should not be so excessive as to create
a monopoly or disturb unduly the legitimate claims of other
communities, the Ministry of Home Affairs issued a
memorandum modifying the ’carry forward’ Rule so as to
comply with the decision. The said memorandum was suitably
modified by the Railway Board in its application to Railway
services by their letter dated 6th October, 1964. The
Railway Board prepared a "Model Roster" signifying the turns
of reserved and unreserved vacancies. The note appended to
the Roster provided "if there are only two vacancies to be
filled on a particular occasion, not more than one may be
treated as reserved and if there be only one vacancy, it
should be treated as unreserved. If on this account, a
reserved post is treated as unreserved, the reservation may
be carried forward in the subsequent two recruitment years".
In order to minimise the chances of reserved posts being
converted into unreserved posts, the Railway Board modified
the Reservation Rule in 1971 by adding the following words
"if there is one post to be filled, selection should
invariably be held for two posts, i.e. one actual and the
other to cover unforeseen circumstances". The SouthEastern
Railway, a Government of India Undertaking, runs two higher
secondary schools for girls, one at Adra and the other at
Kharagpur. A vacancy in the post of Headmistress of the
Adra School arose in 1966. According to the Roster, being
the first vacancy, it should have been treated as a reserved
post. But since there was only one post, the same was
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treated as an unreserved post and the appointment was made
on that footing. In December 1968, the Railway
administration was to hold interviews for the post of
Headmistress at the Kharagpur school as the incumbent
Headmistress was to retire with effect from 1-1-1969. The
selection was stayed by the Calcutta High Court on a writ
petition filed by Respondent No. 8. a Scheduled Caste
candidate, for readjustment of her seniority. Respondent
No. 8 filed another writ petition under Civil Rule No. 499
(W) of 1969 in the Calcutta High Court calling upon the
court to declare that the Kharagpur post should be treated
as a reserved post. The second attempt at holding the
interview by the Railway Administration was thwarted by an
injunction issued by Calcutta High Court at the instance, of
Respondent No. 8. in Civil Rule No. 499(W) of 1969, a
learned single Judge of the Calcutta High Court and then, on
appeal (No. 454 of 1971) the Division Bench of the High
Court held that the Kharagpur post was a reserved post.
Through the impugned letter of 6th November 1971 the Railway
Administration made yet another attempt to MI the vacancy in
terms of the modification of the Rule in 1971. The same was
obstructed by an injunction issued by the single Judge of
the High Court in a writ petition filed by the petitioner
(Civil Rule No. 1395 (W) of 1972). However, at the time of
final hearing, the learned single Judge recalled the Rule
and the injunction issued on the ground that he was kept in
the dark regarding the direction of the appellate court in
appeal No. 454 of 1971. The petitioner did not prefer any
appeal against the decision of the learned single Judge but
filed a writ petition in this Court. The petitioner
contended that on a true interpretation of the Rules, the
vacancy in the post of Headmistress at Kharagpur ought to be
treated as an unreserved vacancy and, secondly, that the
carry forward provision of the rules is violative of
articles 14 and 16 of the Constitution. The respondents
raised a preliminary objection to the maintainability of the
writ petition on the ground that the same was barred by
principles analogous to res-judicata.
2-1-447 Sup CI/74
2
Rejecting the petition,
HELD : (1) The vice of the original carry forward rule
contained in the memorandum of January 28, 1952 of the
Ministry of Home Affairs, regarding excessive weightage to
to the Scheduled Castes and Scheduled Tribes pointed out by
Devadasan’s case was cured by the Home Ministry’s Memorandum
of December 4, 1963 (as modified from time to time) and the
Railway Administration’s letter of October 6. 1964 and its
amendments. The modified carry forward rule provided that
in any recruitment year, the number of normal reserved
vacancies and the ’carried forward’ vacancies together shall
not exceed 45% of the total number of vacancies". It also
provided that the reservation shall not continue for more
than two years. The Rule also prescribed that if there are
two vacancies, not more than one should be treated as a
reserved vacancy but if there was only one vacancy in the
recruitment year, it should be treated as an unreserved
post. The Roster prepared by letter dated January 16, 1964
of the Railway Administration as also its modification on
August 23, 1971, designed to recruit two people where there
was only one vacancy, reduced the eventual hardship that
might be caused to the Scheduled Castes & Scheduled Tribes
employees. The Carry Forward rule is thus no longer open to
the ,objection that the reservation is so excessive as to
create in Government employment a monopoly in favour of
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backward classes or to disturb unduly the legitimate claims
of other communities. [9E-G]
(2) The petitioner’s objection to the letter dated August
23, 1973 of the Railway Administration and the impugned
Memorandum of November 6, 1971, for the selection of two
candidates, on the ground that the Railway Board’s letter
dated January 16, 1964, provided "that if there be only one
vacancy, it should be treated as unreserved", was untenable.
Such a construction would rob the rule of carry forward of
its prime significance and will render it illusory. The
open class reaped the benefit in 1966-67 when a reserved
vacancy at Adra was treated as unreserved by the appointment
of an open candidate, Smt. Gita Biswas. If the carry
forward rule is to be given any meaning the vacancy shall
have to be carried forward for the benefit of Scheduled
Castes and Scheduled Tribes until the close of the financial
year 1968-69. The Kharagpur vacancy was to be filled in on
January 1, 1969 and hence it cannot go to the petitioner
who, admittedly, does not belong to the reserved class. The
construction sought to be put on the rule, by the petitioner
would perpetuate a social injustice which has clouded the
lives of a large section of humanity which is struggling to
find its feet. Such a construction is contrary to the plain
language of the letter of the Railway Board, the intendment
of the rule and its legislative history [10D-11C]
T. Devadasan v. Union of India anr. [1964] 4 S.C.R. 680
explained.
M. R. Balaji & ors. v. State of Mysore [1963] Supp 1.
S.C.R. 439 referred to.
(3 ) As the petition No. 1395 of 1971 filed by the
petitioner in the High Court was not dismissed on merits,
the present petition cannot be barred by res judicata or by
the application of any principle analogous to it. The
petitioner was not a party to the writ petition filed by
respondent No. 8 in the High Court and she had not sought
any relief, directly or indirectly, against the High Court
judgment in the said petition but had independently
challenged the legality of the carry forward rule. The
maintainability of the petitioner under Art. 32 is therefore
not open to challenge. [6F-H].
Daryao and Ors. v. The State of U.P. & Ors., [1962] 1 S.C.R.
474 and Tilokchand Motichand & Ors. v. H. B. Munshi & Anr.,
[1969] 2 S.C.R. 824. relied on.
M. K. Gopalan and Ant-. v. The State of Madhya Pradesh,
[1955] 1 S.C.R. 168 and Tilokchand Motichand’s v. H. D.
Munshi, [1969] 2 S.C.R. 824 and Mirajkar’s case, [1966] 3
S.C.R. 744, distinguished.
JUDGMENT:
ORIGINAL JURISDICTION : Writ petition No. 459 of 1972.
Under article 32 of the Constitution of India for the
enforcement of fundamental rights.
Purshottam Chatterjee and Rathin Das, for the petitioner.
3
F. S. Nariman, Additional Solicitor General and M. N.
Shroff for respondents Nos. 1-5.
A. N. Sinha, Dilip Sinha and G. S. Chatterjee, for
respondent No. 9.
Respondent No. 8 appeared in person.
The Judgment of the Court wag delivered by
CHANDRACHUD, J.-The petitioner, Shrimati Arati Ray Chou-
dhury, is a permanent employee in the South Eastern Railway-
a Government of India Undertaking-which runs two Higher
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Secondary Schools for girls one at Adra and other at
Kharagpur. Broadly stated, the question which we have to
decide in this petition under article 32 of the Constitution
is whether the vacancy in the post of the Headmistress of
the Kharagpur school can be treated as being reserved for a
Scheduled Caste candidate, a question which depends for its
decision both on the interpretation and the validity of the
’Carry forward’ rule. The petitioner assails that rule and
contends that the vacancy is open to all candidates while
respondent No. 8, who belongs to Scheduled Caste, contends
for a contrary position.
In August 1966, a vacancy arose in the post of the
Headmistress of the Adra school and was filled up on the
footing that it was unreserved. The Headmistress of the
Kharagpur school was due to retire with effect from January
1, 1969 and therefore on December 5, 1968 the Railway
administration formed a panel of candidates for selection to
that post and fixed December 18, 1968 as the’ date for
holding interviews. The names of four Assistant Mistresses
called for selection, were arranged in the panel seniority-
wise, the petitioner occupying the top place and respondent
No. 8 the third place. The meeting of the 18th was stayed
by the Calcutta High Court in a Writ Petition (Civil Rule
No. 2117W of 1968) brought by respondent No. 8 for
readjustment of her seniority. On December 28. 1969 the
petitioner was asked to take over charge of the post and on
January 4. 1969 she was promoted to officiate as a
Headmistress, "purely on local stop-gap basis", and on the
express condition that the promotion will not-confer upon
her any right or title to the Post.
Respondent No. 8 then filed another Writ Petition in the
Calcutta High Court (Civil Rule No. 499(W) of 1969) asking
that the notice of December 5, 1968 be quashed as the
vacancy in the post of the Headmistress of the Kharagpur
school ought under the relevant rules, to be treated as
being reserved for a Schedule Caste candidate. In the
meanwhile, the stay order issued in Writ Petition 2117 of
1968 was vacated by the High Court and therefore on April
15, 1969 the Railway administration issued a fresh notice
fixing the interviews of the four candidates on April 29.
This attempt also proved abortive as respondent No. 8
obtained in Writ Petition 499 of 1969 an injunction
restraining the authorities from holding the interviews.
On December 24, 1970 a learned single Judge of the Calcutta
High Court allowed Writ Petition 499 of 1969, holding that
the post
4
in question must be treated as being reserved, for a
Scheduled Caste candidate and that therefore respondent No.
8 was alone entitled to appear before the selection Board
for her appointment as Headmistress of the said Girls’
school." Neither the petitioner nor the two other candidates
were impleaded to this petition. The Union of India was the
first respondent and the Chief Personnel Officer of the S.
E. Railway, the second respondent to the petition. These
respondents carried an appeal (No. 454 of 1971) from the
judgment of the learned single Judge but it was dismissed by
a Division Bench on September 14, 1971.
Respondent No. 8 filed three contempt petitions, one after
another against the Railway administration for their failure
to comply with the directions issued by the Calcutta High
Court in Writ Petition No. 499 of 1969, In the first of
these petitions (Civil Rule No. 4014 W of 1971), a Division
Bench of, the High Court, by its judgment of June 7, 1972,
asked the Railway administration to comply within a period
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of three months with the directions issued earlier by the
High Court by asking the petitioner to appear before the
Selection Board. The learned Judge however made it clear
that the Selection Board would be at liberty to consider the
suitability of the petitioner. Whether such a clarification
could be made in the contempt petition filed by respondent
No. 8 is open to doubt, but nothing really turns on it. The
course which the other two contempt petitions took is also
not relevant for the purpose of the present petition.
On November 6, 1971 the Chief Personnel Officer of the S. E.
Railway issued a Memorandum stating that it was "decided to
hold a selection to draw up a panel of 2 approved candidates
to fill the post of Headmistress", one post being reserved
for the scheduled caste against the existing vacancy and
another "to cover unforeseen requirement-unreserved". The
petitioner filed a writ petition (Civil Rule No. 1395W of
1972) in the Calcutta High Court to challenge the memorandum
and in the fashion of connected proceedings, she impleaded
to her petition the Railway administration and the Union of
India but none of her three competitors who would be
directly affected by any order passed in her favour. On
February 11, 1972, a learned single Judge granted an
injunction in that writ petition restraining the Railway
administration from making any appointment on the basis of
the memorandum of November 6, 1971. Later in August 1972,
the three other Assistant Mistresses, including respondent
No. 8, were impleaded to the writ petition.
Despite the order of injunction, the Railway administration
issued a letter on August 19, 1972 asking respondent No. 8
to appear before a Selection Board on August 30. It is
patent that in doing this the Railway administration acted
contrary to the terms of the injunction dated February 11,
1972. But, they were truly between Scylla and Charybdis.
On the one hand, they had to comply with the orders passed
in Writ Petition No. 499 of 1969 under which they were
directed to treat the vacancy as being reserved for the
scheduled caste ’lid to interview respondent No. 8 only for
the post. On the other
5
hand, they were faced with the injunction of February 11,
1972 by which they were restrained from making any
appointment to the post on the, basis that the vacancy was
reserved for the scheduled caste, We suppose that they
escaped through the horns of the dilemma by making a breach
of the order which was later in point of time. But this is
not all. Shrimati Lila Bhattacharyya, respondent No. 9
before is, who was one of the four contenders for the
Headmistresses’ post had also obtained an injunction in a
writ petition filed by her in the Calcutta High Court (Civil
Rule No. 5680W of 1970), restraining the Administration from
making appointment to the post of the Headmistress of the
Kharagpur school, without considering her claim to the post,
Finally, the petitioner approached the High Court once again
and on September 18, 1972 obtained an injunction once again
in terms of the earlier injunction of February 11, 1972.
The Railway administration had to fend their way through
this network of injunctions.
Writ Petition No. 1395 of 1972 filed by the petitioner came
for hearing before a learned single Judge on October 3, 1972
when he felt "no rule should have been issued and in any
case, no interim order should have been granted contrary to
the direction of the Appeal Court by me and I did so only
because I was entirely kept in the dark regarding the
earlier proceeding", namely Writ Petition 499 of 1969, filed
by respondent No. 8 in which the Railway administration was
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asked to treat the vacancy as a reserved vacancy. The
learned Judge therefore recalled the Rule and dismissed the
petition.
The petitioner did not appeal from this judgment but on
October 1 1, 1972 she filed the present petition under
article 32 of the Constitution impleading thereto,
fortunately, all the necessary parties. Respondent 1 to
petition is the Union of India, respondents 2 to 5 are
officers of the Railway administration, respondent 6 is the
Union Public Service Commission while respondents 7 to 9 are
the 3 rival claimants to the post of the Headmistress. The
petitioner prays for a mandamus asking respondents 1 to 5
(i) not to give effect to the rules relating to reservation
of posts for candidates belonging to schedule castes and
scheduled tribes, particularly the "Carry forward’ rule;
(ii) to withdraw the order dated November 6, 1971; (iii) to
allow her, the petitioner to continue in her post as a
Headmistress of the Kharagpur school and (iv) to allow her
to continue in the revised scale of pay: Rs. 700-1100. Rule
Nisi was issued on this petition on October 23, 1972 and it
was directed that status quo be maintained pending the
hearing of the notice of motion for stay. The interim order
directing the maintenance of status quo was vacated on
February 27, 1973 after hearing the respondents. The Chief
Personnel Officer, thereafter, passed an order on March 21,
1973 that respondent No. 8 be posted immediately as the
Headmistress of the Kharagpur school, subject to certain
conditions.
The learned Additional Solicitor General appearing for the
Union of India and respondent No. 8 appearing in person have
raised a preliminary objection to the maintainability of
this petition. They contend that the petitioner ought to
have pursued her remedies against
6
the judgment dated October 3, 1972 dismissing her writ
petition (1395W of 1972) and since she has acquiesced in
that-judgment it is not open to her to bring this petition
under article 32 of the Constitution, for the same reliefs.
We are not disposed to accept this objection. and would
prefer to deal with the petition on its merits.
it is true that long back in 1955 this Court had held in M.
K. Gopalan and Anr. v. The State of Madhya Pradesh(1) that,
except for good reasons the practice of approaching the
Supreme Court directly under article 32 in matters which
have been taken to the High Court and found against, without
obtaining leave to appeal therefrom, is not to be
encouraged. Recently in Tilokchand Motichand & Ors. v. H.
B., Munshi & Anr.(2) it was observed that this Court
refrains from acting under article 32 if the petitioner had
already moved the High Court under article 226. in the words
of Hidayatullah C.J. "this constitutes a comity between the
Supreme Court and the High Court" and, since the motivating
factor is the existence of a parallel jurisdiction in
another court, if that court has been moved this Court
insists on bringing the decision of that court before it for
review. But the distinguishing feature of the instant case
is that the High Court dismissed the writ petition not on
merits, though by a speaking order. The learned Judge
thought that it was not just and proper" for him to
entertain the petition under article 226 because if he were
to grant any relief therein, it would clash with the
judgment rendered by the Division Bench on September 14,
1971 in appeal No. 455 of 1971 confirming the judgment of
the single Judge dated December 24, 1970, holding that the
vacancy must be treated as a reserved vacancy for the
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schedule caste and that respondent No. 8 was alone entitled
to be considered for the post from amongst the 4 candidates.
The learned Judge therefore "recalled" the Rule and
dismissed the petition without considering the merits of the
contentions raised, before him by the petitioner. As the
petition filed in the High Court under article 226 was not
dismissed on merits, the present petition cannot be barred
by res judicata or by the application of any principle
analogous to it. (See Daryo and Ors. v. The State of U.P,
and Ors. and its true application .is explained in the
judgments of Sikri J., Bachawat J.,, Mitter J. and Hegde J.
in Tilok Chand’s case at pp. 833, 839, 855 and 856 of the
Report.)
Nor do we see any substance in the other preliminary
objection that as in Mirajkar’s case (3), the true grievance
of the petitioner is that the judgment of the High Court has
infringed her right to equal opportunity and such a
grievance cannot be made. The petitioner was not a party to
the proceedings in which the judgment was rendered by the
High Court and her contention now is that the various rules
and notifications including the Carry forward rule are
violative of her rights and therefore the memorandum of
November 6, 1971 should be struck down as unconstitutional.
No relief is sought by her directly or indirectly, either as
a matter of substance or of form, against the judgment
rendered by the High Court in the writ petition filed by
respondent No. 8.
(1) [1955] 1 S. C. R. 168, 174.
(2) [1991] 2 S. C. R. 824.
(3) [1966] 3 S. C. R. 744.
7
That takes us to the merits of the challenge made by the
petitioner to the Rules providing for reservation of posts
for scheduled castes and scheduled tribes. The contention
is that on a true interpretation of the Rules, the vacancy
in the post of the Headmistress of the Kharagpur school
ought to be treated as an unreserved vacancy and secondly
that the Carry forward provision of the rules is violative
of articles 14 and 16 of the Constitution
In M. R. Balaji and Ors. v. State of Mysore (1) this Court
struck down as uncontitutional an order by which 68 per cent
of the Seats in educational institutions were reserved for
scheduled castes, scheduled tribes and the other
educationally and socially backward classes. The court was
reluctant to suggest a proper percentage of reservation but
bearing in mind that "the. interests of weaker sections of
society which are a first charge on the states and the
Centre have to be adjusted with the interests of the
community as a whole", it observed that .’speaking generally
and in a broad way, a special provision should be less than
50%; how much less than 50% would depend upon the relevant
prevailing circumstances in each case".
Following this decision, the majority observed in
Devadasan’s case that in order to effectuate the guarantee
contained in article 16(1), each year of recruitment has to
be considered separately by itself for, "the reservation for
backward communities should not be so excessive as to create
a monopoly or to disturb unduly the legitimate claims of
other communities". Then rule which fell for consideration
in that case was contained in a Memorandum dated January 28,
1952 of the Ministry of Home Affairs, as modified by the
Memorandum of May 7, 1955. The Memorandum provided : "If a
sufficient number of candidates considered suitable by the
recruiting authorities, are not available from the
communities for whom reservations are made in a particular
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year, the unfilled vacancies should be treated as unreserved
and filled by the best available candidates. The number of
reserved vacancies thus treated as unreserved will be added
as an additional quota to the number that would be reserved
in the following year in the normal course; and to the
extent to which approved candidates are not available in
that year against this additional quota, a corresponding
addition should be made to the number of reserved vacancies
in the second following year". However, the unutilised
quota was not to be carried forward for more than two years.
As a result of the Carry forward rule, 29 out of 45
vacancies were filled from amongst the members of scheduled
castes and scheduled tribes, the percentage of
reservation coming to 64.4. The rule was struck down as
reservation of vacancies in excess of 50 per cent was deemed
unconstitutional.
The decision in Devadasan’s case was rended on August 29,
1963 and on December 4, 1963 the Ministry of Home Affairs
issued a memorandum modifying the Carry forward rule so as
to comply with the decision. By Para 2 of the Memorandum
(as amended by the Memorandum of September 2, 1964), the
Carry forward rule was
(1) [1963] Supp. 1 S.C.R. 439.
(2) [1964] 4 S.C.R 680.
8
amended by providing that "in any recruitment year, the
number of normal reserved vacancies and the "carried
forward’ reserved vacancies together shall not exceed 45 per
cent of the total number of vacancies" Nevertheless, "if
there be only two vacancies one of them may be treated as a
reserved vacancy. But if there be only one vacancy, it
shall be treated as unreserved. The surplus above 45% shall
be carried forward to the subsequent year of recruitment,
subject however, to the condition that the particular
vacancies carried forward do not become time barred due to
their becoming more than two years old." The Note appended
to the Rule defines a ’Recruitment year’ as a ’calendar
year’ and says that for purposes of the two year limit for
the carry forward of reserved vacancies, recruitment year
shall mean the year in which recruitment is actually made.
By a letter dated October 6, 1964 of the Railway Board, this
Note was modified in its application to the Railway Services
to the extent that ’Recruitment year’ was to be the
financial year and not the calendar year.
Acting in pursuance of the Home Ministry’s Memorandum dated
December 4, 1963 as modified from time to time, the Railway
Board by its letter of January 16, 1964 prepared a new
"Model Roster" signifying the turns of reserved and
unreserved vacancies. Under this Roster 12.5 per cent of
the vacancies were reserved for scheduled castes and 5 per
cent for the scheduled tribes. The Roster runs thus:
Point on the Roster Whether Unreserved or Reserved for
1 Scheduled Castes
2-3 Unreserved
4 Scheduled Tribe
5-8 Unreserved
9 Scheduled Castes
10-16 Unreserved
17 Scheduled Castes
18-20 Unreserved
22-24 Scheduled Tribes
22-24 Unreserved
25 Scheduled Castes
26-32 Unreserved
33 Scheduled Castes
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34-40 Unreserved
The Note appended to the Roster contains an important
explanation: "If there are only two vacancies to be filled
on a particular occasion, not more than one may be treated
as reserved and if there be only one vacancy, it should be
treated as unreserved. If on this account a reserved point
is treated as unreserved, the reservation may be carried
forward in the subsequent two recruitment years." In order
to remove a still surviving grievance of the scheduled
castes and scheduled tribes that in spite of the model
roster they were denied appointments whenever there was a
single vacancy, such vacancies being invariably treated as
unreserved irrespective of the point of the roster at which
they
9
occur, the Railway Board by their letter of August 23, 1971
"desired" that "if there is one post to be filled, selection
should invariably be held for two posts, i.e., one actual
and the other to cover unforeseen circumstances." It was in
pursuance of these instructions that on November 6, 1971 the
Chief Personnel Officer of the S.E. Railway issued the
impugned order stating that it was "decided to hold a
selection to draw up a panel of 2 approved candidates to
fill the post of Headmistress.... (i) One post (Reserved for
Scheduled Caste) against an existing vacancy. (ii) One post
to cover unforeseen requirement-unreserved".
We have set out the rules leading to the final order in some
fulness with a view to showing how, from time to time, the
rules were adapted to meet the requirements of the law
declared by this Court. The vice of rules impugned in
Devadasan’s case was that though the unutilised reserved
quota could not be carried forward for more than 2 years,
the carry forward mechanism envisaged by the rules could
almost completely swamp recruitment to open, general seats.
The court illustrated the "startling effect of the carry
forward rule" contained in the Memorandum of January 28,
1952 as modified in 1955 by taking a hypothetical example:
If in each of the first 2 years of recruitment, the total
number of seats to be filled in was 100, 18 vacancies would
have to be treated as reserved in each year. If suitable
candidates were not available to fill these reserved
vacancies, the reservation would have to carried forward to
the third year, though not beyond it. If the total number
of seats for recruitment in the third year was 50. the
backlog of 36 seats with the addition of 9 reserved seats
for the current year would cover 45 out of 50 vacancies,
leaving only 5 vacancies for open recruitment. This vice
was effectively rectified soon after the judgement in
Devadasan’s case by the issuance of the Memorandum of Dec-
ember 4, 1963 as amended on September 2, 1964. It was
specifically directed by these curative prescriptions that
"in any recruitment year, the number of normal reserved
vacancies and the ’carried forward’ reserved vacancies
together shall not exceed 45 per cent of the total number of
vacancies". The rules thus are no longer open to the
objection that the reservation is so excessive as to create
in Government employment a monopoly in favour of backward
classes or to disturb unduly the legitimate claims of other
communities.
The model roster accompanying the letter of the Railway
Board dated January 16, 1964 is designed to meet the
requirements of the new situation arising out of the rules
framed in deference to the judgment in Devadasan’s case.
Both the letter and the Note appended to the roster state
expressly that if "there are only two vacancies to be filled
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on a particular occasion, not more than one may be treated
as reserved and if there be only one vacancy, it should be
treated as unreserved". The words "on a particular
occasion" were substituted on September 2, 1964 by the words
"year of recruitment". Thus, in the first place each year
of recruitment is directed to be considered separately and
by itself as laid down in Devadasan’s(1) case so that if
there are only two vacancies to be filled in a particular
year of. recruitment, not more than one vacancy can be
treated as reserved. Secondly,
(1) [1964] 4 S.C.R. 680. 694- 695.
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and that is directly relevant for our purpose, if there be
only one vacancy to be filled in a given year of
recruitment, it has to be treated as unreserved irrespective
of whether it occurs in the model roster at a reserved
point. The appointment then is not open to the charge that
the reservation exceeds 50% for, if the very first vacancy
in the first year of recruitment is in practice treated as
reserved vacancy, the system may be open to the objection
that the reservation not only exceeds 50% but is in fact
cent per cent. But, if "on this account", that is to say,
if on account of the requirement that the first vacancy must
in practice be treated as unreserved even if it occurs in
the model roster at a reserved point, "a reserved point is
treated as unreserved the reservation can be carried forward
to not more than two subsequent years of recruitment. Thus,
if two vacancies occur, say, within an initial span (if
three years, the first vacancy has to be treated as an
unreserved vacancy and the second as reserved.
That is precisely what happened here. The S. E. Railway
runs only two Secondary Schools for girls, one at Adra and
the other at Kharagpur. The vacancy at Adra was filled on
August 16, 1966 by the appointment of the senior most
Assistant Mistress, Smt. Gita Biswas. In pursuance of the
Memorandum dated December 4, 1963 of the Ministry of Home
Affairs, the Railway Board revised the model roster by their
letter of January 16, 1964. The first point in this roster
is a reserved point and therefore the Adra vacancy was
strictly a reserved vacancy. But there being only one
vacancy in the particular year of recruitment, it had to be
treated as unreserved and therefore the appointment, went to
Smt. Biswas, an open, not a reserved candidate. This,
however, had to be compensated for by carrying forward the,
reservation, though not over more than 2 subsequent
recruitment years. For the purposes of Services under the
Railway administration ’recruitment year’ means the
financial year’ and the Adra appointment having been made in
the financial year 1966-67, it was permissible to carry
forward the reservation till the close of the financial year
1968-69. There was no vacancy in 1967-68. The vacancy in
the post of the Headmistress of the Kharagpur school
occurred in the financial year 1968-69 by the, retirement of
Smt. Bina Devi with effect from December 31, 1968. This
vacancy, indubitably, had to be treated as a reserved
vacancy and since from amongst the 4 Assistant Mistresses,
respondent No. 8 was the only candidate belonging to the
scheduled caste, she was entitled to be considered for
selection to the post of the Headmistress, to the exclusion
of the other 3. The claims, if any, of the petitioner who is
not a reserved candidate have to be postponed, though in the
normal course it may be quite some years before she gets her
turn. The Adra Headmistress and respondent No. 8 would seem
to have a long tenure in their respective offices.
It is urged that only one vacancy occurred in 1968-69 and
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since the letter of the Railway Board dated January 16, 1964
says that "if there be only one vacancy, it should be
treated was unreserved", the Kharagpur vacancy must be
treated as unreserved. Such a construction would rob the
rule of its prime significance and will render the carry
forward provision illusory. Though each year of recruitment
is to be treated separately and by itself, a reserved
vacancy has to be carried forward
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over 2 years, if it is not filled in by the appointment of a
reserved candidate. The open class reaped a benefit in
1966-67 when a reserved vacancy was treated as unreserved by
the appointment of an open candidate, Smt. Gita Biswas. If
the carry forward rule, has to be given any meaning, the
vacancy shall have to be carried forward for, the benefit of
scheduled castes and scheduled tribes until the close of the
financial year 1968-69. The Kharagpur vacancy was to be
filled in on January 1, 1969 and hence it cannot go to the
petitioner who, admittedly, does not belong to the reserved
class. The construction sought to be put on the rule by the
petitioner would perpetuate a social injustice which has
clouded the lives of a large section of humanity which is
struggling to find its feet. Such a construction is
contrary to the plain language of the letter of the Railway
Board, the intendment of the rule and its legislative
history.
We may mention before we close that the posts of
Headmistresses of the Railway Higher Secondary Schools were
upgraded in 1969 as Class posts and in 1970 as Class I
posts. The reservation for scheduled. castes and scheduled
tribes in Class II posts was abolished with effect from
October 4, 1962 and in regard to Class I posts, there never
was any such reservation. Different considerations may
therefore apply to future recruitment to these posts, but
with that we are not concerned here. Nor are we concerned
to consider the Indian Railways Higher Secondary School
Recruitment Rules, 1972, which, now are said to govern
recruitment to the posts of Headmistresses.
We hope that this judgment will finally ring down the
curtain on the various proceedings pending in the Calcutta
High Court together with various interim orders passed
therein concerning the appointment to the Headmistress’s
post in the Kharagpur school.
In the result the petition fails and the rule is discharged,
but there will be no order as to costs.
Petition dismissed.
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