Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1931 OF 2010
Akhilesh Kumar Singh ... Appellant
Versus
Ram Dawan & Ors. ...Respondents
J U D G M E N T
Dipak Misra, J.
A deep rooted desire strongly planted in unsatisfied
ambition has compelled the appellant to paint a picture with
the colour of ‘reservation’ on a constitutional foundation
eventually with immense aspiration that he can achieve it
by sheer assertion and repeated asseveration of the
Signature Not Verified
Digitally signed by
Gulshan Kumar Arora
Date: 2015.09.30
15:22:10 IST
Reason:
proposition that a singular post in a cadre cannot be
2
reserved, totally ostracizing the contrary perception that the
principle of reservation, as is understood in the
constitutional bedrock, is absolutely foreign to the concept.
2. Presently to the factual exposè. The first respondent
was appointed as Daftari on 1.7.1975 in Kisan Uchchatar
Madhyamic Vidyalaya, Hidra, Kanwar, Basti, a recognised
Intermediate College governed by the U.P. Intermediate
Education Act, 1921 (for short, “the 1921 Act”) and he
became a permanent employee with effect from 13.10.1981.
He passed the High School education in the year 1997 and
thereafter the intermediate examination in the year 2000 as
a consequence of which he became eligible for consideration
of promotion for the post of Clerk. On 30.6.2003, Roop
Narain Singh who was working as a Clerk, on attaining the
age of superannuation stood superannuated and one
Assistant Teacher remained incharge. After retirement of
Roop Narain Singh, the first respondent submitted an
application to the District Inspector of Schools, through the
Principal for his promotion to the post of Clerk. The
concerned Principal forwarded the said application on
3
14.7.2003 to the District Inspector of Schools along with the
seniority list. As no response was received from the District
Inspector of Schools relating to the promotion of the first
respondent, the Principal sent a reminder. It needs to be
stated that as there was no Committee of Management in
the Institute, the Assistant District Inspector of Schools was
functioning as the Management Controller and despite his
best efforts he could not hold the elections. The authorities
advertised in a newspaper for filling up of the post of Clerk
and because of the said advertisement, the approval for the
post of promotion as far as first respondent is concerned
was not given and he felt grieved thereby.
3. As the factual narration would unveil, the first
respondent submitted a representation to the Joint Director
of Education on 22.6.2006, but nothing affirmative ensued
and in the meantime the present appellant Akhilesh Kumar
Singh was appointed. Being dissatisfied with the same, the
first respondent invoked the jurisdiction of High Court in
Writ Petition No. 39738 of 2006. The learned Single Judge
taking note of the fact that the claim of the writ petitioner
4
seeking promotion to the post of Clerk was untenable
inasmuch as there was a singular post in the cadre of Clerk
duly sanctioned and created in the institution and in such
circumstances the said post could not be reserved for
promotion from amongst the Class IV employees. However,
the learned single Judge observed that if the writ petitioner
felt that the appointment of the selected candidate by direct
recruitment was patently illegal and de hors the rules, he
could submit a representation to the District Inspector of
Schools and, in that event, the authority concerned shall
pass a reasoned and speaking order keeping in view the
various provisions of the 1921 Act.
st
4. Being dissatisfied with the said order, the 1
respondent herein preferred Special Appeal No. 648 of 2006.
The Division Bench encapsuled the controversy in a short
compass, that is, whether a single post of Class III available
in an intermediate college governed by the Act could be
filled up only by promotion or by direct recruitment. The
Division Bench referred to an earlier Division Bench
judgment in Jai Bhagwan Singh v. District Inspector of
5
1
Schools, Gautambudh Nagar & Ors. and came to hold
that a single post of Class III available in intermediate
college governed by the 1921 Act can be filled up by
2
promotion and the earlier decision in Palak Dhari Yadav
was not legally sound. On the base of the said reasoning,
the Division Bench annulled the decision rendered by the
learned Single Judge. The said judgment and order passed
by the Division Bench is under assail in this appeal by
special leave.
5. We have heard Mr. Parmanand Gaur, learned counsel
for the appellant and Mr. Hariom Yaduvanshi, Mr. Gagan
Gupta and Mr. Vivek Vishnoi, learned counsel for the
respondents.
6. It is imperative to note at the outset that there is no
dispute with regard to the factual score. The institution is
covered by the 1921 Act. A set of Regulations has been
framed under the said Act providing for promotion from
Class IV to Class III. Regulation 2 which is relevant for the
1
2006 3 UPLBEC 2391
2
1999 3 UPLBEC 2315
6
present purpose is reproduced below:-
“2. (1) For the purpose of appointments of
clerks and Fourth class employees the minimum
educational qualification would be the same as
has been fixed from time to time for the
equivalent employees of Government Higher
Secondary Schools.
(2) Fifty percent of the total number of sanctioned
posts of head clerk and clerks shall be filled
among the serving clerks and employees through
promotion. If employee possesses prescribed
eligibility and he has served continuously for 5
years on his substantive post and his service
record is good, then promotion shall be made on
the basis of seniority, subject to rejection of the
unfit. If any employee is aggrieved by any
decision or order of the management committee
in this respect then he can make representation
against it to the Inspector within two weeks from
the date of such decision or order. Inspector on
such representation can make such orders as he
thinks fit. Decision of the Inspector would be
final and promptly executed by the management.
Note:- In calculating fifty percent of posts parts
less than half would be left and half or more that
half post would be deemed as one.”
7. On a plain reading of the aforesaid Regulation, it is
quite luminous that the “Note” appended to it makes it
abundantly clear that there is a singular post. The
Regulation lays down the postulates for filling up of the
7
post. The crux of the matter is whether in the instant case
a cadre that constitutes of a single post has been reserved.
In Post Graduate Institute of Medical Education &
Research, Chandigarh v. Faculty Association and
3
others , the Constitution Bench was considering the
correctness of the decision rendered in Union of India v.
4
Madhav . Apart from many a contention, it was also
submitted before this Court that for implementing 50-point
roster, isolated and separate posts in different specialities
cannot be clubbed together and 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 which would violate Article 16(1) and Article
16(4) of the Constitution. The Constitution Bench after
discussing the law at length has held:-
“ 34. 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 a
single post in the cadre will be kept reserved
exclusively for the members of the backward
classes and in total exclusion of the general
members of the public. Such total exclusion of
3
(1998) 4 SCC 1
4
(1997) 2 SCC 332
8
general members of the public and cent per cent
reservation for the backward classes is not
permissible within the constitutional framework.
The decisions of this Court to this effect over the
decades have been consistent.
35. 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 the 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 bounds 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.”
8. From the aforesaid enunciation of law, it is eminently
explicit that reservation for a single post in a cadre will keep
the general members of the public in total exclusion and the
question of reservation will arise when there is plurality of
post in the cadre. Needless to say that the Constitution
Bench has been stating about the reservation with regard to
the Scheduled Castes, Scheduled Tribes and Other
9
Backward Classes. It does not lay down that if a post is
meant to be filled up by promotion from amongst the
employees working in the feeder cadre, it would tantamount
to reservation. Reservation is only restricted to the
Scheduled Castes, Scheduled Tribes and Other Backward
Classes. It does not relate to the persons serving in the
feeder cadre.
9. In State of Punjab and others v. R.N. Bhatnagar
5
and Another , it has been laid down that when posts in a
cadre are to be filled in from two sources, whether the
candidate comes from the source of departmental
promotees or by way of direct recruitment, once both of
them enter a common cadre, their birthmarks disappear
and they get completely integrated in the common cadre
and it is in consonance with the thrust of Article 16(1) of
the Constitution of India. The Court further observed that
no question of exception to the said general thrust of the
constitutional provision would survive as Article 16(4)
would be out of the picture in such a case.
5
(1999) 2 SCC 330
10
10. In this context, a reference to a two-Judge Bench
decision in Kuldeep Kumar Gupta and others v. H.P.
6
State Electricity Board and others is apposite. In the
said case, a contention was advanced that providing a quota
tantamounts to reservation. Repelling the said submission,
it was ruled:-
“Article 16 deals with equality of opportunity in
matters of public employment and Article 16(4)
enables the State in making any provision for
reservation of appointments or posts in favour of
any backward class of citizens which in the
opinion of the State is not adequately represented
in the services under the State. This Court in
7
Indra Sawhney case has held that no such
reservation is permissible in the promotional
posts and to get over the said decision Article
16(4-A) has been inserted by the Constitution
(Seventy-seventh Amendment) Act. But we fail to
understand as to how providing a quota for a
specified category of personnel in the promotional
post can be held to be a reservation within the
ambit of Article 16(4). Providing a quota is not
new in the service jurisprudence and whenever
the feeder category itself consists of different
category of persons and when they are considered
for any promotion, the employer fixes a quota for
each category so that the promotional cadre
would be equibalanced and at the same time
each category of persons in the feeder category
would get the opportunity of being considered for
promotion. This is also in a sense in the larger
interest of the administration when it is the
employer, who is best suited to decide the
6
(2001) 1 SCC 475
7
1992 Supp (3) SCC 217
11
percentage of posts in the promotional cadre,
which can be earmarked for different category of
persons. In other words this provision actually
effectuates the constitutional mandate engrafted
in Article 16(1), as it would offer equality of
opportunity in the matters relating to
employment and it would not be the monopoly of
a specified category of persons in the feeder
category to get promotions. We, therefore, do not
find any infraction of the constitutional provision
engrafted in Article 16(4) while providing a quota
in the promotional cadre, as in our view it does
not tantamount to reservation”.
11. The purpose of referring to the aforesaid decisions is
that the concept of reservation finds place in Article 16(4)
and does not apply to the concept of quota from the feeder
cadre. In the instant case, the Regulation provides for 50%
of the total number of posts to be promoted through
promotion. The “Note” appended is an inseparable part of
the Regulation and it lays down that in calculation of the
50% of the post less than half would be left and half or
more than half post would be deemed as one. Therefore, if
a singular post in the clerical cadre is there, it would be
filled up by promotion from amongst the eligible candidates
from the feeder cadre. Adopting such a method or taking
such route does not remotely touch the idea of reservation.
12
Hence, the submission put forth by the learned counsel for
the appellant sans substance.
12. In view of the aforesaid premises, we do not perceive
any merit in this appeal and accordingly, the same stands
dismissed without any order as to costs.
.............................J.
[Dipak Misra]
..........................., J.
[Prafulla C. Pant]
New Delhi
September 23, 2015
ITEM NO.1A COURT NO.5 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 1931/2010
AKHILESH KUMAR SINGH Appellant(s)
VERSUS
RAM DAWAN & ORS. Respondent(s)
Date : 23/09/2015 This appeal was called on for hearing today.
For Appellant(s)
Mr. Parmanand Gaur,Adv.
For Respondent(s)
Dr. Monika Gusain,Adv.
Mr. Gagan Gupta,Adv.
Mr. M. R. Shamshad,Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the judgment of the
Bench consisting His Lordship and Hon'ble Mr. Justice Prafulla C.
Pant.
The appeal stands dismissed in terms of the signed reportable
judgment.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)