Full Judgment Text
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PETITIONER:
POST GRADUATE INSTITUTE OF MEDICALEDUCATION AND RESEARCH CHA
Vs.
RESPONDENT:
FACULTY ASSOCIATION AND ORS.M.L. SEHGAL AND ORSK. SIVAN AND
DATE OF JUDGMENT: 17/04/1998
BENCH:
S.C. AGRAWAL, G.N. RAY A.S. ANAND, S.P. BHARUCHA, S.RAJENDRA BABU
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NO. 2346 OF 1981
WITH
CIVIL APPEAL NO.2345 OF 1981
WITH
SPECIAL LEAVE PETITION (CIVIL) No 13148 OF 1997
WITH
SPECIAL LEAVE PETITION (CIVIL) NO. 2892 OF 1983
WITH
SPECIAL LEAVE PETITION (CIVIL) 9252 OF 1981
JUDGMENT
G.N. RAY,J.
In all these matters a common question arises for
decision as to whether n a singh cadre post reservation for
the backward classes, namely, Scheduled Castes, Scheduled
Tribes and other backward classes can be made either
directly or by applying rotation of roster point. These are
conflicting decisions of this Court on the question of such
reservation in a single cadre post.
The learned counsel for the parties in all these
matters have agreed in the question of law as to the
constitutional validity of reservation in a single cadre
post is to be decided by the constitution Bench and
thereafter the cases will be placed before the appropriate
Bench for disposal on merits in accordance with decision
rendered by this Bench. therefore, the question of
constitutional validity of reservation in a single cadre
post either directly or by rotation of roster point has been
considered by us and we have not taken into consideration
other contentions raised in these matters.
In support of the contention that reservation can be
made not only in respect of the promotional post but also in
respect of a single post in a cadre, Mr. E.C. Agrawala,
learned counsel appearing for the appellant in CA No.
2346/81, Mr. Puri, learned counsel appearing for the
appellant in CA No. 2345 of 1981, Mr. R.K. Jain, learned
senior counsel appearing for the Intervenor in the review
petition filed in CA No. 3175 of 1997 on behalf of the
Scheduled Castes and scheduled tribes Employees Welfare
Association, Post Graduate Institute of medical Education
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and Research, Chandigarh, and Mr. Andhyarujina, learned
Solicitor General appearing for the appellant in SLP [c] No.
13148 of 1997 for the petitioner Union of India have made
elaborate submissions. Mr. kapil Sibal, learned senior
counsel appearing in support of the review petition in CA
No. 3175 of 1997 has opposed the contention that a
reservation can be made in respect of a single post cadre.
Other learned counsel appearing in these matters have
adopted the rival contentions, without advancing any
separate argument.
Mr. Kapil Sibal has submitted that there cannot be any
reservation either for initial appointment or for an
appointment on promotion in respect of a single post cadre
either directly or by the device of rotation or roster. Mr.
Sibal has contended that the very concept of carry forward
or the principle of roster is alien to a single post cadre.
he has also contended that the principle of carry forward
meaning thereby carrying forward reservation presupposes
existence of multi posts cadre. If there is only one post in
a cadre, the vacancy for such single post being filled up,
there will be no occasion for carrying forward reservation
for filling up such vacancy. Mr. Sibal has also contended
that the rationale of reservation under Article 16(4) of the
constitution is founded on the inadequacy of representation
of a class in the service under the state. The question of
adequacy of representation does not and cannot arise in a
single post cadre because only one person can be
accommodated against the single post, leaving no scope for
adequate representation of any particular class in such
single post.
Mr. Sibal has contended that the impugned judgment
cannot be supported because (a) reservation of super
speciality is against the decision of a Nine Judges’ Bench
decision of this Court in Indra Sawhney etc. Vs. Union of
India and Ors. (1992 Supp. (3) SC 217), and (b) no
reservation in a single cadre post is permissible in law.
Mr. Sibal has submitted that both in the impugned judgment
and also in the judgment of Union of India and Anr. Vs.
Madhav and Anr. (1997 (2) SCC 332) on which reliance has
been made in the impugned judgment, the ratio in the
decision of Arati Ray Choudhury Vs. union of India and Ors.
(1974 (1) SCC 87) was wrongly appreciated and the ratio was
wrongly stated. Mr. Sibal has drawn the attention of the
Court to the observations of Justice Reddy speaking for
majority decision on Article 335 of the constitution as
contained in paragraph 112 of the decision in Indra
Sawhney’s case which are as follows:-
"While on Article 335, we are
of the opinion that there are
certain services and positions
where either on account of the
nature of duties attached to them
or the level (in the hierarchy) at
which they obtain, merit as
explained hereinabove, alone
counts. in such situations it ma
not be advisable to provide for
reservations. for example,
technical posts in research and
development organisations/
departments/institutions, in
specialities and super-specialities
in medicine, engineering and other
such courses in physical sciences
and mathematics, in defence
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services and in the establishments
connected therewith. Similarly, in
the case of posts at the higher
echelons e.g. professors (in
Education), Pilots in Indian
Airlines and Air India, scientists
and Technicians in nuclear and
space application, provision for
reservation would not be advisable.
x x x Be that as it may we are
of the opinion that in certain
services and in respect of certain
posts, application of the rule of
reservation ma not be advisable for
the reason indicated hereinbefore.
Some of them are : (1) Defence
Services including all technical
posts therein but excluding civil
posts. () All technical posts in
establishments engaged in
production of defence equipment.
(3) Teaching posts of professors -
above if any, (4) Posts in super
specialities in Medicine,
engineering and other scientific
and technical subject. (5) Posts of
pilots (and co-pilots) in Indian
Airlines and air India. The list
given above is merely illustrative
and not exhaustive. It is for the
Government of India to consider and
specify the service and posts to
which the Rule of reservation shall
not apply but on that account the
implementation of impugned office
Memorandum dated 13th August, 1990
cannot be stayed or withheld.
We may point out that the
services posts enumerated above, on
account of their nature and duties
attached, are such as call for
highest level of intelligence,
skill and excellence. Some of them
are second level and third level
posts in the ascending order.
hence, they form a category apart.
Reservation therein may not be
consistent with "efficiency of
administration" contemplated by
Art. 335.
We may add that we see no
particular relevance of Article
38() in this context. Article 16(4)
is also a measure to ensure
equality of status besides equality
of opportunity."
Mr. Sibal has also submitted that the reservation for
the socially, economically and educationally backward
classes is made so that the members of such backward classes
do not fail to get adequate representation in public
employment on account of facing open competition. but such
reservation cannot be and should not be made for posts in
higher echelons where merit and expertise are essential and
also necessary for discharging the duties and
responsibilities of such positions in higher echelons of
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service. Mr. Justice Reddy in the majority decision, which
was also concurred by Justice Pandian, has pointed out that
there are some services and positions where either on
account of the nature of duties attached to them or the
level in the hierarchy at which they obtain, merit alone
counts. In such situations, it may not be advisable to
provide for reservation and in that context, by way of
illustration, enumerated certain positions including the
technical posts in the Establishment engaged in Research and
Development, the teaching posts of Professors and above, the
posts of super-specialities in Medicine, Engineering and
other Scientific and Technology subjects, and also posts of
pilots and co-pilots in Indian Airlines and Air India. Mr.
Sibal has submitted that by and large, in the higher
echelons of service, there is a single post cadre. The
appointment to the posts of Professors or Readers in the
super-speciality of Medicine in an advanced institution like
the Post Graduate Institute of Medical Research & Education
in Chandigarh appointments must be made strictly on the
basis of selection on merits and any attempt of reservation
by whatever method will not only be against law laid down by
this court but also against the larger interests of the
country.
Mr. Sibal has contended that in M.R. Balaji & Ors. v.
State of Mysore (1963 Supp. (1) SCR 439) this Court struck
down the order by which 68% of seats in educational
institutions were reserved for the members of Scheduled
Castes and Scheduled Tribes and other educationally backward
classes. This Court did not suggest any percentage which
should be reserved for such backward classes but indicated
that the reservation has to be made keeping in mind the
interests of the community as a whole and such percentage of
reservation would be less then 50%. How much less of 50% is
to be reserved, would however depend on the facts and
circumstances of a given case.
Mr. Sibal has also submitted tat in the Constitution
Bench decision of this Court in T.Devadasan v. The Union of
India & Anr. (1964 (4) SCR 680), the majority view is that
in order to effectuated the guarantee contained in Article
16(1), each year of recruitment is to be considered
separately by itself for the reservation for backward
classes. In Arati Ray Choudhury’s case (supra) a
Constitution Bench of this Court has clearly held that the
reservation for backward community should not be so
excessive as to create a monopoly or to disturb unduly the
legitimate claim of other communities. It has also been
specifically indicated in the said decision that if there
are two vacancies to be filled up in a particular year, not
more than one vacancy can be treated as reserved. In the
decision in Arati Ray Choudhury’s case, the earlier decision
in M.R. Balaji’s case was noticed and followed and no
departure from the decision in Devadasan’s case was made.
Mr. Sibal has submitted that in Dr. Chakradhar Paswan
v. State of Bihar & Ors. (1988 () SCC 14) after relying on
the decisions in Arati Roy Choudhury, M.R. Balaji and
Devadasan’s cases, it has been held that for implementing
50-point roster, isolated and separate posts in different
specialities cannot be clubbed together. It has also been
held that reservation of posts by applying the roster can be
made only where there are more than one post and reservation
of only one post cannot be made because such reservation
would amount to 100% reservation thereby violating Article
16(1) and 16(4) of the Constitution.
Mr. Sibal has submitted that the three-Judges’ Bench
decision in Madhav’s case (supra) is the principal judgment
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which has taken a contrary view by holding that even in case
of a single post cadre, reservation can be made by applying
the principle of rotation and by that process can avoid the
bar of reservation of 100%. Such decision is based on a
wrong reading of the decision in Arati Roy Choudhury’s case
and on an erroneous appreciation of Articles 16(1), 16(4)
and 16(4-A) of the Constitution. The impugned decision in
the case of Post-Graduate Institute of Medical Education &
Research has been made by relying on the decision in
Madhav’s case and following the reasonings contained in the
said decision. Therefore, the said decision cannot be
sustained and the impugned judgment should be set aside by
allowing the review petition.
Mr. E.C. Agrawala, learned counsel for the appellant in
C.A. No. 346/1981, has however submitted that the principle
of carry forward in a single post cadre is a device which
serves the purpose of reservation for the backward classes,
consistent with the Directive Principles of the Constitution
and the policy of reservation enshrined in the constitution.
Such principle of carrying forward in a single post by
applying the rotation of roster, affords opportunities for
getting appointment of the members of backward classes on
some occasions but throwing such appointment for open
competition on other occasions by de-reserving the vacancy
on such occasions. If such principle of rotation of roster
is not applied in the case of single post cadre, the very
purpose of reservation under Article 16(4) will be made
nugatory. Mr. Agrawala has submitted that since some
observation was made against reservation to a promotional
post in the decision in Indra Sawhney’s case, sub Article 4
A of Article 16 has been incorporated by the 77th Amendment
of the Constitution. Such amendment clearly reflects the
anxiety of the Legislature to ensure reservation at all
stages of public employment including promotional posts. Mr.
Agrawala has submitted that in Arati Roy Choudhury’s case,
the Constitution Bench upheld the appointment of a member of
the Scheduled Caste Scheduled Tribe which was reserved for
such category even though at the relevant year, there was
only one vacancy to be filled up in respect of the post of
Head Mistress. Therefore, it will not be correct to contend
that the Constitution Bench in Arati Ray Choudhury’s case
has not upheld reservation of a single vacancy in the cadre
in a particular year by applying the principle of roster.
Mr. Puri, learned counsel appearing for the appellant in CA
2345 of 1981 has also made similar submissions.
Mr. RK Jain, learned senior counsel appearing for the
intervenors in the review petition in the case of Post
Graduate Institute of Medical Education and Research has
submitted that there is no Government order to the effect
that reservation in a single cadre post to be excluded. If,
therefore, there is no prohibition under any law for
reservation of a single post and if the Government gives
effect to Article 16(4) of the Constitution in a single post
cadre which helps the case of social justice, consistent
with the Directive Principles of the Constitution, this
Court should be slow to react against such reservation. He
has also supported the contention of Mr. Agrawala that by
rotation of roster, the device of 100% reservation is
avoided. At the same time, such rotation gives opportunity
for appointment of members of socially backward classes in
the higher echelons of service even when the post is a
single post cadre. Mr. Jain has submitted that in the matter
of implementation of rotation of roster in a single post
cadre, even if the other view against such rotation is a
possible view, such view should not be accepted because in
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the matter of a course of action which advances the cause of
social justice, the view in favour of furtherence of social
justice is to be preferred. Mr. Jain has also submitted that
reservation is not to the post or the vacancy but
reservation must be viewed as a measure of giving adequate
opportunity in public employment to the socially and
economically backward classes, consistent with Article 16(4)
and 16(4)(A) of the Constitution and the Directive
Principles. Mr. Jain has submitted that Article 16 does not
speak of any post or vacancy but speaks of equality of
opportunity in public employment.
Mr. Jain has also submitted that in Chakradhar Paswan’s
case (supra), the ratio in Arati Ray Choudhury’s case was
not appreciated and followed. Referring to the decision in
Indra Sawhney’s case, Mr. Jain has submitted that in Indra
Sawnhey’s case the ratio in Arati Ray Choudhury’s case or in
Paswan’s case was not considered. Therefore, the decision in
Indira Sawhney’s case is not an authority for the issues
involved in the case under consideration. Mr. Jain has
submitted that the mechanism of roster has been evolved to
balance justice for all segments of the society so that in
the higher echelons of service, a single post is also made
available to the backward classes by reserving such post
only periodically on the basis of rotation of the roster
point. Such mechanism does not offend any provision of the
Constitution. He has submitted that the three Judges’ Bench
in Madhav’s case has analysed all the decisions having
relevance on the question of reservation of a single post
cadre, and has upheld such reservation in a single post
cadre by applying the roster. Therefore, the impugned
decision in the Post Graduate Institute of Medical Education
and Research Chandigarh, does not warrant any interference
by this Court.
Mr.Andhyarujina, the learned Solicitor General has also
supported the reservation of a single post cadre with the
aid of rotation of roster. He has invited in attention of
the Court to Office Memorandum No. 3601//96-Estt. (Res)
issued by the Ministry of personnel, Public Grievances and
Pension (Department of Personnel and Training) of the
Government of India in respect of reservation roster for
implementation of the Supreme Court judgment in R.K.
Sabharwal and ors. Vs. State of Punjab and Ors. (1995 (2)
SCC 745). After indicating in short, the purport of the
decision of this Court in the said case, it has been
indicated in the said Office Memorandum that "with a view to
bringing the policy of reservation in line with the law laid
down by the supreme Court. it has been decided that the
existing 200 point, 40 point and 120 point vacancy-based
rosters shall be replaced by post based rosters. All the
Ministries/Departments and concerned authorities are
requested to prepare the respective rosters based on the
principles elaborated in the Explanatory Notes given in
Annexure - 1 to this O.M. and illustrated in the Model
Rosters annexed to this O.M. as Annexure-II, III and IV.
Similarly, the concerned authorities may prepare rosters to
replace the existing 100 point rosters n respect of local
recruitment to Group C and D posts on the basis of the same
principles."
Paragraph 4 of the said O.M. contains the principles
for preparing the rosters elaborated in the Explanatory
Notes. Clause (e) of the said paragraph 4 indicating the
principles for preparing the rosters is relevant for
consideration in this case and the same is to the following
effect:
"In small cadres of upto 13
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posts, the method prescribed for
preparation of rosters does not
permit reservation to be made for
all the three categories. In such
cases, the administrative
Ministries/Departments may consider
grouping of posts in different
cadres as prescribed in this
Department’s O.M. No. 42/21/49-NGS
dated 28.1.1952 and subsequent
orders reproduced at pages 70 and
74 of the Brochure on Reservation
for Scheduled Castes and Scheduled
Tribes (Eighty Edition) and prepare
common rosters for such groups. In
the event it is not possible to
resort to such grouping the
enclosed rosters (Appendices to
Annexures-II, III and IV) for cadre
strength upto 13 posts may be
followed. The principles of
operating these rosters are
explained in the explanatory notes.
Appendix to Annexure III contains the model roster for
promotion in the cadre strength up to 13 posts; whereas
Appendix to Annexure IV contains the roster for direct
recruitment otherwise than through open competition for
cadre strength upto 13 posts. Charts indicating the Appendix
to Annexure III and the Appendix to Annexure IV are set out
as hereunder:
Cadre Initial 1st 2nd 3rd 4th 5th 6th 7th 8th 9th
10th 11th 12th 13th
1. UR UR UR UR UR UR SC UR UR UR UR UR UR ST
2. UR UR UR UR UR SC UR UR UR UR UR UR ST
3. UR UR UR UR SC UR UR UR UR UR UR ST
4. UR UR UR SC UR UR UR UR UR UR ST
5. UR UR SC UR UR UR UR UR UR ST
6. UR SC UR UR UR UR UR UR ST
7. SC UR UR UR UR UR UR ST
8. UR UR UR UR UR UR ST
9. UR UR UR UR UR ST
10. UR UR UR UR ST
11. UR UR UR ST
12. UR UR ST
13. UR ST
Note: For cadres of 2 to 13 posts the roster is to be read
from entry 1 under column Cadre Strength till the last post
and then horizontally till the last entry in the horizontal
row i.e. "L"
2. All the posts of a cadre are to
be earmarked or the categories
shown under column initial
appointment while initial filling
up will be by the earmarked
category, the replacement against
any of the post in the cadre shall
be by rotation as shown
horizontally against the last post
of the cadre.
3. The relevant rotation by the
indicated reserved category could
be skipped over if it leads to more
then 50% representation of
reserved category.
Roster for direct recruitment otherwise than through open
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competition for cadre strength upto 13 posts.
Cadre Initial 1st 2nd 3rd 4th 5th 6th 7th 8th 9th
10th 11th 12th 13th
1. UR UR UR OBC UR UR SC OBC UR UR UR OBC SC ST
2. UR UR OBC UR UR SC OBC UR UR UR OBC SC ST
3. UR OBC UR UR SC OBC UR UR UR OBC SC ST
4. OBC UR UR SC OBC UR UR UR OBC SC ST
5. UR UR SC OBC UR UR UR OBC SC ST
6. UR SC OBC UR UR UR OBC SC ST
7. SC OBC UR UR UR OBC SC ST
8. OBC UR UR UR OBC SC ST
9. UR UR UR OBC SC ST
10. UR UR OBC SC ST
11. UR OBC SC ST
12. OBC SC ST
13. SC ST
Note 1. For cadres of 2 to 13 posts
the roster is to be read from entry
1 under column cadre strength till
the last post and then horizontally
till the last entry in the
horizontal tow i.e. like "L"
2. All the posts of a cadre are to
be earmarked for the
categories shown under column
initial appointment. While
initial filling up will be by
the earmarked category, the
replacement against any of the
post in the cadre shall be by
rotation as shown horizontally
against the last post of the
cadre.
3. The relevant rotation by the
indicated reserved category
could be skipped over it leads
to more than 50%
representation of reserved
category.
Referring to such model roster, the learned Solicitor
General has submitted that in case of promotion in a single
post cadre, for the initial recruitment, the post will
remain ‘unreserved’. Similarly, for the 1st 2nd 3rd 4th 5th
subsequent vacancies in such single cadre post, such posts
shall be treated as unreserved but for the 6th subsequent
vacancy, the post will be reserved for scheduled castes.
Again from 7th to 12th subsequent vacancy will be treated
as unreserved but the 13th vacancy will be treated as
reserved for Scheduled Tribes. So far as the roster for
direct recruitment, otherwise than through open competition,
the Appendix to Annexure IV indicates that if the cadre
strength is only one then the initial recruitment and the
first and second successive recruitment will be made on the
basis of open competition but the third successive vacancy
will be reserved for members of the backward classes. The
fourth successive vacancies will be treated as unreserved;
sixth successive vacancy will be reserved for the members of
Scheduled Castes; 7th successive vacancy shall be reserved
for members of other backward classes; 8th, 9th and 10th
successive vacancies will be filled up by open competition
but the 11th successive vacancy shall be reserved for OBCs’,
the 12th for scheduled castes and 13th for scheduled tribes.
The learned Solicitor General has further submitted
with reference to the aforesaid Charts, that the Charts have
been prepared for balancing the felt need for reservation of
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single cadre post, usually in the higher echelons of service
in such a manner that the opportunities for employment are
shared by the members belonging to the reserved categories
and also by the other members i.e. members not belonging to
reserved categories. According to him, if the vacancies are
filled up in respect of single post cadre by following the
aforesaid Charts, the interests of socially and economically
backward classes and also other members of the community at
large will be met without seriously affection the interests
of either the members belonging to reserved classes or the
members not belonging to any of the reserved categories.
Under such mechanism, only of certain occasions the
vacancies are to be filled up by treating such vacancies
‘reserved’ for members of a particular class of reserved
categories, namely, scheduled castes, scheduled tribes and
other backward classes but on other occasions the post in
the single cadre will not be treated as reserved.
The learned Solicitor has submitted that the
constitutional validity of reservation for socially and
economically backward classes has been upheld by this Court.
The learned Solicitor has also submitted that after the
judgment of this Court in R.K. Sabharwal’s case suitable
directions have been issued relating to rotation of roster
in conformity with the law laid down by this Court. He has
submitted if a reference is made to the Chart containing the
model roster for appointment by promotion for a single cadre
post, it will be crystal clear that the initial recruitment
is unreserved and out of subsequent 13 vacancies, only 7th
and 13th vacancies are meant for members of scheduled castes
and scheduled tribes. Similarly the roster for direct
recruitment otherwise than by promotion it is indicated that
if it is a single post cadre then not only the initial
recruitment but the first and second successive recruitment
will be treated as unreserved. Similarly, the 4th, 5th, 8th,
9th and 10th successive vacancies will also be treated as
‘unreserved’ but the 3rd, 6th, 7th, 11th, 12th, and 13th
will be kept reserved for members of other backward classes,
scheduled castes and scheduled tribes respectively. The
learned Solicitor has submitted that such device of
appointment by rotating the roster fulfils the felt need of
reservation and also eschews the vice of reservation beyond
50% for the members of the reserved classes. Since the post
is a single post in the cadre, unless such device is adopted
there will be no occasion for reservation of such post at
any point to time.
The learned Solicitor has also submitted that in Arati
Roy Chouhdry’s case, the Constitution Bench has approved the
action taken in filling up of a single vacancy which
occurred in a particular year for the post of Head Mistress
by applying the rotation of roster, because such rotation of
roster served the avowed purpose of reservation by
delicately balancing the interests of the members of the
reserved classes and other members of the community not
belonging to any reserved class. The learned Solicitor has
further urged that the decision of the three Judges’ Bench
in Madhav’s case has indicated the correct principle by
giving very cogent reasons and such decision does not offend
any of the provisions of the Constitution and does not come
in conflict with the decisions of the larger Bench of this
Court. Therefore, no interference is called for against the
decision in madhav’s case and the other decisions rendered
by following the decision in Madhav’s case.
In order to appreciate the rival contentions of the
parties, it would be appropriate to refer to the
Constitution Bench decisions of this Court made in M.R.
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Balaji, T. Devadasan and Arati Ray Choudhary’s cases
(supra). In Arati Ray Choudhury’s case, decision in Balaji
and Devadasan were referred to and followed. Since both the
sides have relied on the decisions in Arati Ray Choudhury’s
case, it will also be appropriate to consider the decision
in Arati Ray Choudhury’s case in some detail.
In Balaji’s case, the Constitution Bench has held that
the reservation should be allowed to advance the prospects
of weaker sections of the society, but while doing so, care
should be taken not to exclude admission to higher
educational standards of deserving and qualified conditions
of other communities. It has also been indicated that
reservation under Arts. 15(4) and 16(4) of the constitution
must be within a reasonable limit. The interests of the
weaker sections of the 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. The objective of Art.
15(4) is to advance the interests of the weaker elements in
society. If a provision under Art. 15(4) ignores the
interests of the society that is clearly outside the purview
of Art. 15(4). It is therefore, quite evident that the
Constitution Bench in Balaji’s case has clearly indicated
that in giving effect to reservations for the Scheduled
Castes, Scheduled Tribes and other backward classes, a
balance is to be struck so that the interests of the
backward classes and the members of the scheduled castes and
scheduled tribes are properly balanced with the interests of
the other segments of the society, and in order to safeguard
the interests of the reserved classes the interest of the
community as a whole can not be ignored. In Devadasan’s case
(supra), the majority decision of four Judges (Justice Subba
Rao dissenting) was to the effect that the carry-forward
rule as a result of which the applicants belonging to
Scheduled Castes or Scheduled Tribes could get more than 50%
of the vacancies to be filled up in a particular year, is
unconstitutional. It has also been indicated that Art 14
will not be infringed if certain proportion of appointments
of the State in order to provide the backward classes an
opportunity equal to that of the members of more advanced
classes is made, provided that the reservation is not so
exercised which would amount to practically deny a
reasonable opportunity of employment to the members of the
other communities. It was indicated that under Art, 16 (4)
of the Constitution, reservation of a reasonable percentage
for the Scheduled Castes and Scheduled Tribes is valid and
within the competence of the States or the Centre. But it
necessary that a reasonable balance between backward classes
and other members of the society is to be struck and
maintained. In the decision of Devadasan’s case (supra)
reliance was also placed on the decision in Balaji’s case
and another constitution Bench decision of this court in
General Manager S.E.Railway Vs. Rangachari (1962 (2) SCR
586). In the majority decision in Rangachari’s case, it has
been held that Arts. 16(1) and 16(2) are intended to give
effect to Arts. 14 and 15 of the Constitutional code of
guarantees and supplement each other. Art. 16(1) should,
therefore, be construed in a broad and general way, and not
in pedantic and technical way. When so construed, matters
relating to employment cannot mean merely matters prior to
the act of appointment nor can ‘appointment to any office’
mean merely the initial appointment but must include all
matters relating to employment, whether prior or subsequent
to the employment, that are either incidental to such
employment or form part of its terms and conditions.
The short fact in Arati Ray Choudhury’s case is that
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the Railway Board prepared a Roster in 1964 by which 12.5%
of the vacancies were reserved for Scheduled Castes and 5%
for Scheduled Tribes. it was also mentioned that if there
would be only a single vacancy then it should be treated as
unreserved and if on account of that a reserved vacancy was
to be treated as unreserved then the reservation would be
carried forward to the subsequent two recruitment year. In
1966, a vacancy of Headmistress was treated as unreserved on
this basis. Another vacancy arose in January, 1969 and the
four Assistant Mistresses were called for selection. One of
the respondent challenged the selection on the ground that
the post should be treated as reserved for Scheduled Caste
candidate and such contention was accepted by the High
Court. In 1971 the Railways decided to hold a selection to
form a panel of two candidates for filling up one post
reserved for Scheduled Caste and another to cover unforeseen
requirements. At that stage, a writ petition was filed
challenging such decision of the Railway Administration and
an order of injunction was issued in such writ proceeding.
In spite of this, the said respondents was called by the
Selection board. The writ petition was ultimately dismissed
not on merits but on the ground that such writ petition was
barre by the principle of res judicata. This Court however
held that since the previous writ petition was not decided
on merits, the principle of res judicata or analogous to it
was not attracted. Therefore, the Court was competent to
consider the case on merits. In Arati Ray Choudhury’s case,
reference was made to the decisions of Constitution Bench in
Balaji’s case. Relying on the decision’s case the
constitution Bench in Arati Ray Choudhury’s case has held
that in Balaji’s decision, this Court had struck down as
unconstitutional an order by which 68% of the seats in
educational institutions were reserved for Scheduled Castes
and Scheduled Tribes and other educationally and socially
backward classes. It was indicated in Arati Ray Choudhury’s
case that following the decision in Balaji’s case, in the
majority decision in Devadasan’s case it was held that in
order to effectuate the guarantee contained in Article
16(1), each year recruitment has to be considered
separately by itself and "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."
(emphasis added)
It has also been indicated in Artai Ray Choudhury’s case
that the Ministry of Home Affairs issued a Memorandum
modifying the carry forward rule so as to comply with the
decision in Devadasan’s case. By para 2 of the Memorandum,
the carry-forward rule was 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% of the total number of vacancies." It was
however indicated in the said Memorandum that 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 (emphasis added). 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. It has
been specifically held in Arati Ray Choudhury’s case that in
the first place each year of recruitment is to be considered
separately and by itself as held in Devadasan’s case (supra)
so that if there are only two vacancies to be filled in a
particular year of recruitment, not more than one vacancy
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can be treated as reserved. Secondly, if there be only one
vacancy to be filed 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 a
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, the reservation can be
carried forward to not more than two subsequent year of
recruitment. Thus, if two vacancies occur, say , within an
initial span of three years, the first vacancy has to be
treated as an unreserved vacancy and the second as reserved.
It has not been held in Arati Ray Choudhury’s case that for
a single post there can be a reservation for Scheduled
Castes, Scheduled Tribes or other backward classes. What has
been held in Arati Ray Choudhury’s case is that when there
was a vacancy at Adra, according to the Model Roster, such
vacancy was a reserved point and therefore the other vacancy
was strictly a reserved vacancy but there being only one
vacancy in that particular year of recruitment, such vacancy
had to be treated as unreserved and therefore appointment
was given of smt. Biswas, who was not a reserved candidate.
Therefore, it had to be compensated by carrying forward the
reservation in two subsequent recruitment year when the
vacancy in Kharagpur in the financial year 1968-69 arose
w.e.f. December 31, 1968.
In Dr. Chakradhar Paswan’s case (supra) in the State
Directorate of indigenous Medicines, Bihar, initially there
three Class I posts for (1) Director of Indigenous
Medicines, (2) Deputy Director (Homeopathic) and (3) Deputy
Director (Unani). Later the post of Deputy Director
(Ayurvedic) had also been added. The post of Director was
the highest in the Directorate; being the Director of
Indigenous Medicines as a whole and not of any particular
speciality of Indigenous Medicines.
By a Circular dated November 8, 1975, the State
Government prescribed a 50 point roster to implement the
policy of reservation to posts and appointments for members
of the backward classes under Article 16(4). It was laid
down that if in any grade, there is only one vacancy for the
first time, then it will be deemed to be unreserved and for
the second time also, if there be only one vacancy, then it
will be deemed to be reserved". For the purpose of
determining the quantum of reservation according to the
roster, the Government grouped together all the Class I
posts viz. the posts of Director as well as of Deputy
Directors and as the post of the Director had already been
filled up treating it to be unreserved, the second post viz.
the Deputy Director (Homeopathic) was treated as reserved.
Accordingly, the State Public Service commission issued
advertisement inviting applications from Scheduled Castes
candidates for selection to the same posts and ultimately
the State Government appointed a member of Scheduled Caste
to the post of Deputy Director (Homeopathic). A general
candidate thereafter filed a writ petition before the High
Court challenging the advertisement issued by the State
Public Service Commission and also the consequent order of
appointment. The High Court allowed the petition and quashed
the impugned advertisement and the appointment order. Such
decision of the High Court was assailed before this Court in
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Dr. Chakradhar Paswan’s case. The appeal was dismissed by
this Court by holding that in service jurisprudence, he term
‘cadre’ has a definite legal connotation. It is not
synonymous with ‘service’. It is open to the Government to
constitute as many cadres in any particular service as it
may choose according to the administrative convenience and
expediency and it cannot be said that the establishment of
the Directorate constituted the formation of a joint cadre
of the Director and the Deputy Directors because the post
are not interchangeable and the incumbents do not perform
the same duties or carry the same responsibilities or draw
the same pay. The posts of the Director and those of the
Deputy Directors constitute different cadres of the service.
The first vacancy in the cadre of Deputy Directors was that
of the Deputy Director (Homeopathic) and it had to be
treated as unreserved, the second reserved and the third
unreserved. Therefore, for the first vacancy of the Deputy
Director (Homeopathic), a candidate belonging to the
Scheduled Caste had, therefore, to compete with other.
Relying on the decision in Balaji’s case, it was held in
Chakradhar’s case that once the power to make reservation in
favour of Scheduled Castes and Scheduled Tribes is
exercised, it must necessarily follow that for the purpose
of vacancies for which reservation has been made, must be
brought into effect and in order to do full justice, a carry
forward rule must be so applied that in any particular year
there is not more than 50% reservation. The whole concept of
reservation for application of the 50 point roster is that
there are more than one post, and the reservation can be up
to 50%. If there is only one post in the cadre, there can be
no reservation with reference to that post either for
recruitment at the initial stage or for filling up a future
vacancy in respect of that post. A reservation which would
come under Article 16(4), presupposes the availability of at
least more than one post in that cadre. No reservation could
be made under Article 16(4) so as to create a monopoly.
Otherwise, it would render the guarantee of equal
opportunity contained in Article 16(1) and (2) wholly
meaningless and illusory. The reservation of the post of
Deputy Director (Homeopathic) amounted to 100% reservation
which was impermissible under Article 16(4) as otherwise it
would render Article 16(1) wholly elusive and meaningless.
Article 16(4) is an exception to Article 16(1) and (2) and
therefore the power to make a special provision for
reservation of posts and appointments in favour of the
backward classes must not be so excessive which would in
effect efface the guarantee of equal opportunity in the
matter of public employment or at best make it illusory.
Reference was also made in Chakradhar’s case to the
decision in Arati Ray Choudhury’s case by indication that in
the facts of that case when the open class had reaped a
benefit in 1966-67 when a reserved vacancy was treated as
unreserved by the appointment of an open candidate, if the
carry forward rule had to be given any meaning, the vacancy
had to be carried forward for the benefit of Scheduled
Castes and Scheduled Tribes until the close of the financial
year 1968-69. It was pointed out in Chakradhar’s case that
the decision in Arati Ray Choudhury’s case turned on the
carry forward rule and such decision was clearly
distinguishable and the same does not support reservation
in a single cadre post.
The decision in Chakradhar Paswan’s case that for a
single post cadre no reservation can be made for the
backward classes has also been followed in Chetana Dilip
Motghare Vs. Bhide Girls’ Education Society (1995 Supp. 1
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SCC 157) and it has been held in the said decision that when
the post is a solitary post in the cadre, the roster and
carry forward scheme underlying any reservation policy
cannot apply. A contrary view, however, has been taken in
the decision of State of Bihar and Ors. Vs. Bageshwari
Prasad and Anr. (1995 Supp. 1 SCC 432), Shri Suresh Chandra
Vs. Shri J.B. Agarwal and others (JT 1997 (5) SC 72), and
later on in a three Judges’ Bench decision in Union of India
and Anr. Vs. Madhav (1997 (2) SCC 332). Following the said
three Judges’ Bench decision in Madhav’s case, reservation
in a single post cadre by rotation of roster point has been
upheld in Union of India and others Vs. Brij Lal Thakur (JT
1997 (4) SC 195) and the decision rendered in the case of
Post Graduate Institute of Medical Education Research Vs.
Faculty Association and others. The later decision is the
subject matter of challenge in the Review Petition before us
in C.A. No. 3175 of 1997.
Since the decision in Madhav’s case by a three Judges’
Bench upholding the reservation for the backward classes
even in single post cadre on the basis of rotation of roster
point is the main decision, when followed in Post Graduate
Institute of Medical Research case, we propose to consider
the decision in madhav’s case in some detail. The brief
facts in Madhav’s case may be indicated as follows:
In the national Savings Scheme Service, only one post
of Secretary was available. the Government applied the rule
of reservation to that post by rotation the vacancies in
accordance with the 40-point roster. When point No. 4
vacancy in that post reserved for Scheduled Tribe, was
filled by promoting an ST candidate from the post below,
such promotion was set aside by the Central Administrative
Tribunal on the ground that the post of Secretary being a
single point post, granting of reservation was
unconstitutional. The correctness or the said decision was
assailed in Madhav’s case.
It has been held in Madhav’s case that (i) appointment
to an office or post under the State is one of the means to
render socio-economic justice; (ii) Article 16(4-A) of the
Constitution introduced in 1995 by the 77th Amendment of the
constitution, has resuscitated the objectives of the
Preamble to, and Articles 46 and 335 of the constitution of
India to enable the Dalit and Scheduled tribe employees to
improve excellence in higher echelons of service and a
source of equality of opportunity in the matter of social
and economic status; (iii) Parliament has removed the lacuna
pointed out by the Supreme Court in Indra Sawhney’s case
(supra) that Article 16(1) and 16(4) do not apply to
appointment by promotion but apply to initial appointment.
By the 77th Amendment of the constitution, the legal
position enunciated in Rangachari’s decision has been
restored and reservation of promotion to 50% quota as per
the Indra Sawhney’s case is available to members of
Scheduled Castes and Scheduled Tribes; (iv) the carry
forward scheme has been upheld in Indra Sawhney’s case; ((v)
reservation could be provided even to the isolated posts on
the basis of the rule of rotation by relying on the decision
in Arati Ray choudhury’s case; (vi) extension of reservation
is not unconstitutional. On the other hand, such scheme
provides opportunity and facilities to Scheduled Castes and
Scheduled Tribes for being considered for promotion to hold
single post consistent with equality of opportunity on par
with others; (vii) In Paswan’s case even though it was held
that a single post cannot be reserved because such
reservation would amount to 100% reservation, the question
whether the single post reservation by rotation could be
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granted and whether it would be violative of Article 16(1)
was not gone into and such question has been kept open. In
Arati Ray Choudhury’s case, the application of rule of carry
forward and appointment by rotation of roster in a single
post has been approved. (viii) In Sabharwal’s case (supra),
a Constitution Bench considered whether reservation as per
the roster for the purposes of promotion could be valid and
consistent with Article 16(1) of the constitution and held
in favour of such reservation (ix) Smt. Chetana Dilip
Motghare v. Bhide Girls’ Education Society (1995 Supp. 1 SCC
157) has not been correctly decided and the decisions in
Vidyulata Arvind Kakade v. Digambar Gyanba Surwase and
Arati Ray Choudhury’s cases were not properly appreciated in
Bhide Girls’ case (x) In State of Bihar & Ors. V. Bageshwari
Prasad & Anr. (1995 Supp. 1 SCC 432), the rule of rotation
has been held valid by indicating that the said rule does
not offend Articles 14 and 16(1) of the Constitution. (xi)
The judgment in Chakradhar Paswan’s case was also
distinguished in Bageshwari’s decision.
In Madhav’s case, in support of the view that even in
respect of single post cadre, reservation can be made for
the backward classes by rotation of roster, the Constitution
Bench decision in Arati Ray Choudhury’s case has been relied
on. We have already indicated that in Arati’s case, the
Constitution Bench did not lay down that in single post
cadre, reservation is possible with the aid of roster point.
The court in Arati’s case considered the applicability of
roster point in the context of plurality of posts and in
that context the rotation of roster was upheld by the
Constitution Bench. The Constitution Bench in Arati’s case
has made it quite clear by relying on the earlier decisions
of the Constitution Bench in Balaji’s case and Devadasan’s
case that 100% reservation was not permissible and in no
case reservation beyond 50% could be made. Even the circular
on the basis of which appointment was made in Arati Ray
Choudhury’s case was amended in accordance with the decision
in Devadasan’s case. Therefore, the very premises that
Constitution Bench in Arati’s case has upheld reservation
in a single post cadre is erroneous and such erroneous
assumption in Madhav’s case has been on account of
misreading of the ratio in Arati Ray Choudhury’s case. It
may be indicated that the later decision of the Constitution
Bench in R.K. Sabharwal’s case (1995(2) SCC 745) has also
proceeded on the footing that reservation in roster can
operate provided in the cadre there is plurality of post. It
has also been indicated in Sabharwal’s decision that the
post in a cadre different from vacancies.
It also appears that the decision in Indra Swhney’s
case has also not been properly appreciated in madhav’s
decision. In Indra Sawnhey’s case, it has not been held that
there can be reservation in a single cadre post. There is
not dispute that a carry forward scheme, provided it does
not result in reservation beyond 50% is constitutionally
valid but that does not mean that by the device of carry
forward scheme, 100% reservation on some occasions can be
made even when the post is only a single cadre post. In
Madhav’s decision and Brij Lal’s decision, reliance has been
placed on Article 16(4A) of the Constitution for holding
that even in respect of single post such reservation can be
made with the aid of rotation of roster. In our view,
Article 16(4A) relates to reservation in promotional post in
the cadre, but the said Article 16(4A) does not deal with
the question of reservation in a single cadre post.
There is no difficulty in appreciating that there is
need for reservation for the members of the Scheduled Castes
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and Scheduled Tribes and other backward classes ad such
reservation is not confined to the initial appointment in a
cadre but also to the appointment in promotional post. It
cannot however be lost sight of that in the anxiety for such
reservation for the backward classes, a situation should not
be brought by which the chance of appointment is completely
taken away so far as the members of other segments of the
society are concerned by making such single post cent per
cent reserved for the reserved categories to the exclusion
of other members of the community even when such member is
senior in service and is otherwise more meritorious.
Articles 14, 15 and 16 including Article 16(4), 16(4A)
must be applied in such a manner so that the balance is
struck in the matter of appointments by creating reasonable
opportunities for the reserved classes and also for the
other members of the community who do not belong to reserved
classes. Such view has been indicated in the Constitution
Bench decisions of this Court in Balaji’s case, Devadasan’s
case and Sabharwal’s case. Even in Indra Sawhney’s case, the
same view has been held by indicating that only a limited
reservation not exceeding 50% is permissible. it is to be
approciated that Article 15(4) is an enabling provision
like Article 16(4) and the reservation under either
provision should not exceed legitimate limits. In making
reservations for the backward classes the State cannot
ignore the fundamental rights of the rest of citizens. the
special provision under Article 15(4) must therefore strike
a balance between several relevant considerations and
proceed objectively. In this connection reference may be
made to the decisions of this court in The State of Andhra
Pradesh and Ors. Vs. U.S.V. Balaram and C.A. Rajendran Vs.
Union of India (AIR 1972 SC 1375 and AIR 1968 SC 507). It
has been indicated in Indra Swhney’s case (supra) that
clause (4) of Article 16 is not in the nature of an
exception to Clauses (1) and (2) of Article 16 but an
instance of classification permitted by clause (1). It has
also been indicated in the said decision that clause (4) of
Article 16 does not cover the entire field covered by
clauses (1) and (2) of Article 16. In Indra Sawhney’s case,
this court has also indicated that in the interests of the
backward classes of citizens, the State can not reserve all
the appointment under the State or even majority of them.
the doctrine of equality of opportunity in Clause (1) of
Article 16 is to be reconciled in favour of backward classes
under clause (4) of Article 16 in such a manner that the
latter while serving the cause of backward classes shall not
unreasonably encroach upon the field of equality.
In Triloknath Vs. State of Jammu and Kashmir (AIR 1967
SC 1283), it has been held by this Court that where the
percentage of reservations is not reasonable, having regard
to employment opportunities of the general public to the
cadre of service in question, the population of the entire
State, the extent of their backwardness and the like, the
interference by Court against unreasonable reservation is
called for.
In a single post cadre, reservation at any point of
time on account of rotation of roster is bound to bring
about a situation where such single post in the cadre will
be kept reserved exclusively for the members of the backward
classes and in total exclusion of the general embers of the
public. Such total exclusion of general members of the
public and cent percent reservation for the backward classes
is not permissible within the constitutional frame work. The
decisions of this Court to this effect over the decades have
been consistent.
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Hence, until there is plurality of posts in a cadre
the question of reservation will not arise because any
attempt of reservation by whatever means and even with
device of rotation of roster in a single post cadre is bound
to create 100% reservation of such post whenever such
reservation is to be implemented. The device of rotation of
roster in respect of single post cadre will only mean that
on some occasions there will be complete reservation and the
appointment to such post is kept out of bound to the members
of a large segment of the community who do not belong to any
reserved class, but on some other occasions the post will be
available for open competition when in fact on all such
occasions, a single post cadre should have been filled only
by open competition amongst all segments of the society.
Mr. Kapil Sibal has contended that in some higher
echleon of service in educational and technical institution
where special expertise is necessary to hold superior posts,
like Professors and Readers there should not be reservation
even if there are plurality of posts in such cadre as
indicated in the majority view in Indra Sawhney’s case. It
is, however, not necessary for us to decide the said
contention for the purpose of disposal of these matters,
where the question of reservation in single cadre post calls
for decision.
We, therefore, approve the view taken in Chakradhar’s
case that there can not be any reservation in a single post
cadre and we do not approve the reasonings in Madhav’s case,
Brij Lal Thakur’s case and Bageswari Prasad’s case upholding
reservation in a single post cadre either directly or by
device of rotation of roster point. Accordingly, the
impugned decision in the case of Post Graduate Institute of
Medical Education Research can not also sustained. The
Review Petition made in civil appeal No. 3175 of 1997 in the
case of Post Graduate Institute of Medical Education
Research, Chandigarh, is therefore allowed and the judgment
dated may 2, 1997 passed in civil Appeal No. 3175 of 1997 is
set aside.
As we do not propose to consider the facts and
circumstances i other cases which have been heard along with
the Review Petition, we direct that the said matters be
placed before the appropriate Bench for disposal on the
basis of this decision in Review Petition in C.A. No. 3175
of 1997. In the facts and circumstances of the case, there
will be no order as to costs.