Full Judgment Text
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PETITIONER:
POST GRADUATE INSTITUTE OFMEDICAL EDUCATION & RESEARCH ETX.
Vs.
RESPONDENT:
K.L. NARASIMBAN & ANR. ETC.
DATE OF JUDGMENT: 02/05/1997
BENCH:
G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
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
PATTANAIK. J.
I entirely agree with the conclusions and directions
contained in illuminating Judgement of Brother Ramaswamy. J.
but i would like to put may thoughts on one aspect of the
matter which had been vehemently argued by Mr. Rao. the
learned senior counsel for the General Category candidates
in relation to filling up of the posts of Assistant
Professor and Professor in the post Graduate Institute at
Chandigarh. According to Mr. Rao the Government of India in
the Ministry of Home Affairs have decided since November,
1963 that the reservation order in favour of Scheduled
Castes and scheduled Tribes will not apply in the case of
appointment to the posts for conducting research. as per
Ministry of Home Affairs OM No. 9/2/63- SCF (I) dated
2.11.1963. By yet another OM dated 17.7.1964 the earlier
order dated 2.11.1963 was clarified to the effect that for
being exempted from the reservation orders under the earlier
office Memorandum the post in question must satisfy that it
has been classified as ’scientific or technical" in terms of
Cabinet Secretariat (Department of Cabinet Affairs) O.M. No.
65/11/CF-61(1) 9/2/63-SCF(1) dated 28.12.1961. Mr. Rao
contends that in consonance with the aforesaid circulars of
the Governments of India the Ministry of Health and Family
welfare, New Delhi Having requested the Director of post
Graduate Institute of Medical Education and Research.
Chandigarh to submit a self contained proposal giving full
details of the post category-wise which satisfies the
condition laid down in the department of personnel and
Administrative reforms OM No. 9/2/73-Estt. (SCT) dated
23.6.1975 regarding exemption of scientific and Technical
posts from the purview of reservation orders of Government
of India for Scheduled Castes and scheduled Tribes
candidates and the said matter having been considered by the
Board of the Institute in its meeting dated 10.3.90. it must
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be held that the posts of Assistant professor and above in
the Institute have been classified as Scientific or
Technical posts and thereby the reservation policy for
appointment to those posts could not apply, this argument
proceeds on the assumption that the posts of Assistant
professor and professor in the post Graduate Institute of
Medical Education and Research. Chandigarh are posts for
conducting research or for organising, conducting and
directing research in their respective field of discipline
and as such fall out of the purview of the reservation order
in accordance with the office Memorandums of Ministry of
personnel dated 2.11.1963 and 17.7.1964. The Central
Government gas framed a set of Rules in exercise of power
conferred by section 31 of the post Graduate Institute of
Medical Education and Research. Chandigarh, Act. 1966 called
the post Graduate institute of Medical Education and
Research. Chandigarh. Rules 1967 therein after referred to
as ’the Rules’). Rule 32 prescribes the qualification for
appointment and sub-rule (2) of Rule 32 confers power on the
Director to fill up the vacancies in posts and services
either by direct recruitment or by promotion under the
institute. The said sub-rule also provides that the Director
in filling the vacancies in posts and services shall make
such reservations in favour of candidates belonging to
scheduled castes and Scheduled Tribes as may be made by the
Central Government from time to time in filling vacancies in
posts and services under the Central Government. Sub-rule
(2) of rule 32 is extracted hereinbelow in extenso:
(2) The Director shall, in filling
vacancies in posts and services,
either by direct recruitment or by
promotion, under the Institute,
make such reservations in favour of
candidates belonging to the
Scheduled Castes and Scheduled
Tribes, as may be made by the
Central Government from time to
time in filling vacancies in posts
and services under the Central
Government."
The aforesaid provision casts and obligation on the
Director of the Institute to make reservations in filling up
the vacancies in posts in favour of candidates belonging to
the scheduled castes and Scheduled Tribes in accordance with
the reservations made by the Central Government in filling
vacancies in posts and services under the Central
Government. The two office memorandum issued by the Ministry
of Home Affairs dated 2.11.1963 and 17.7.1964 no doubt
contemplate that the reservation orders in favour of
Scheduled Castes and scheduled Tribes will not apply in case
of appointments to the posts for conducting research or for
organising, conducting and directing research and post
classified as ‘Scientific or Technical’ in terms of Cabinet
Sectt. office Memorandum dated 28.12.1961 should be exempted
from the purview of a orders relating to reservation for
scheduled castes and Scheduled Tribes. But until and unless
the posts are classified as such to be scientific or
technical. the provisions of sub-rule (2) of Rule 32 would
continue to apply and the Director is duty-bound to make
reservations in favour of candidates belonging to the
scheduled Castes and scheduled Tribes in filling the
vacancies in the posts and services.
It was averred in the counter-affidavit filed in the
High Court on behalf of the Institute that various faculty
posts such as Additional Professor. Associate professor and
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Assistant Professor at this Institute have not been
classified as Scientific and Technical Posts in accordance
with the instructions of the Government of India dated
23.6.1975. it is only for the purpose of classifying the
post the Ministry of Health and Family welfare vide their
letter dated 28th September. 1989 requested the Director
PGIMER to submit a self contained proposal giving full
details of the posts category-wise which satisfy the
condition laid down in the Department of personnel and
Administrative Reforms OM No. 9/2/73-Estt. dated 23.6.1975
regarding exemption of scientific and technical posts from
the purview of reservation orders of Government of India.
But he so-called self contained proposal has not been sent
to the Government of India in the Ministry of Health and
Family Welfare and on the other hand in the meeting of the
Institute dated 10.31990 a decision was taken that before
sending the proposal to the Government of India the matter
needs to be considered by the Academic committee of the
Institute. In this view of the matter. until a concrete
proposal emanates from the Institute Identifying the post
and the said proposal is examined by the Administrative
Ministry of Family and Health Welfare and a decision is
taken thereon. It is not possible to conclude that the post
of Assistant Professors are outside the purview of the
reservation orders. No decision of the Ministry of health
and Family Welfare has been produced before us classifying
the post of assistant professor as scientific post meant for
carrying out the research and as scientific post meant for
carrying out the research and as such the reservation orders
issued by the Government of India would continue to apply in
filling up of the vacancies in the post of Assistant
Professors in the post Graduate institute of Medical
education and Research at Chandigarh until such posts are
classified by the Ministry of health in the Government of
India, to be Scientific and Technical posts.