Allahabad High Court
Dr. Shashi Kant Rai And Others vs State Of U.P. And Others on 20 May, 1998
Equivalent citations: 1998(3)AWC1821
Author: R.K. Singh
Bench: R.K. Singh
JUDGMENT R.R.K. Trivedi, J.
1. In this petition counter and rejoinder-affidavits have been exchanged between the parties and learned counsel for the parties have agreed that this petition may be decided finally at this stage.
2. Two applications for impleadment have also been filed. First application is numbered as 71415 of 1997, which has been moved by Ram Swarup Ahirwar and the second application is numbered as 23563 of 1998 which has been moved by Dr. Satlsh Kumar and three others. Along with the second application, counter-affidavit has also been filed.
3. The Important question for determination in this writ petition is as to whether the respondents could legally initiate special recruitment drive to fill up the entire backlog of the posts of reserved quota in respect of the entire cadre of the posts of Medical Officers (Ayurvedic/Unani) in the State of Uttar Pradesh. Respondent No. 2. namely, U. P. Public Service Commission, Allahabad, by advertisement No. 3/95-96 invited applications for the 47 posts of Medical Officers (Ayurvedlc) out of which 42 posts were reserved for Scheduled Castes and 5 posts for Scheduled Tribes. Another advertisement No. 1 of 1996-97 was Issued Inviting applications for appointment on 433 posts of Medical Officers (Ayurvedic). Out of the aforesaid 433 posts 389 posts were reserved for Scheduled Castes and 44 posts for Scheduled Tribes. All the posts mentioned in the aforesaid two advertisements are in the pay scale of Rs. 2,200-4,000. Petitioners claimed that they were selected for Bachelor degree of Ayurvedlc Medicines and Surgery, in short B.A.M.S., in combined pre-medical test held by the State Government in the year 1987-88 and passed their B.A.M.S. degree course in the year 1993 except petitioner No. 4 who had passed the degree course in the year 1992. It has been claimed that all the petitioners passed their B.A.M.S. degree from the Slate Government Ayurvedlc Colleges and they have been duly registered with the Indian Medical Council. All the petitioners belonged to general category. As under the Impugned advertisements No. 3 of 1995-96 and No. 1 of 1996-97 the candidates of general category have been excluded and 100 per cent reservation in favour of Scheduled Castes and Scheduled Tribes category has been provided, they have approached this Court for quashing the aforesaid advertisements which are Annexures-3 and 4 to the writ petition. It has also been prayed that respondents may be directed to advertise the vacancies in accordance with law and to hold selection from the open market giving equal opportunity to the candidates of the general category also.
4. Petitioners have stated that after the year 1988, no advertisement was published. The Impugned advertisement Nos. 3 of 1995-96 and 1 of 1996-97 have been published for the first time illegally enforcing 100 per cent reservation in favour of Scheduled Castes and Scheduled Tribes category. It has been alleged that the aforesaid action in the name of special recruitment drive is wholly illegal and contrary to the Judgments of Hon'ble Supreme Court.
5. A counter-affidavit has been filed on behalf of the State Government. In paragraph 6 whereof it has been stated that there are total 2470 vacant posts for Medical Officers (Ayurvedic/Unani) out of which 2272 posts have been filled. 198 posts are still vacant. Besides the aforesaid, about 241 supernumerary posts have also been created for accommodating part-time Medical Officers serving in hill areas. 1826 Medical Officers are serving in the department on ad hoc basis. Out of 2272 posts already filled, there are only 87 Medical Officers belonging to Scheduled Castes category. Their percentage is very low, hence in order to fill up the backlog in the quota of reserved category. the Government by letter dated 24.1.3996 requested the Commission to take steps to complete the quota of the aforesaid reserved category. The request made by the Government to initiate special recruitment drive for the aforesaid purpose is in accordance with the provisions contained in the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act. 1994 (hereinafter referred to as the Act). The request made by the Government does not suffer from any error of law and is in consonance with the provisions of the Constitution. In paragraphs 12. 17 and 18 of the counter-affidavit, it has been averred that the special recruitment drive requisition has been sent to the Commission in accordance with the provisions of the Constitution and the Act to fill the backlog of reserved category of Scheduled Castes and Scheduled Tribes. It has not been disputed that after 1988 no other advertisement was published.
6. We have heard Shri S. C. Budhwar. learned senior advocate, assisted by Shrl Arun Tandon for the petitioners, learned standing counsel and Shrl V. M. Sahai for respondents and Shrl B. D. Mandhyan and Shrl S. K. Gupta for the applicants for impleadment.
7. Shrl S. C. Budhwar, learned counsel appearing for the petitioners, has submitted that the special recruitment drive through the impugned advertisements providing 100 per cent reservation could not be legally undertaken by the respondents and the action is neither in accordance with the provisions of the Act nor in consonance with the provisions contained in the Constitution. Learned counsel has submitted that the action of the respondents is wholly arbitrary and vlolattve of Article 14 of the Constitution of India. It has been further submitted that direct recruitment for giving effect to the policy of reservation could only be against the vacancies with regard to the year of recruitment and it could not be legally initiated taking Into account the entire posts belonging to the cadre. Reliance has been placed by the learned counsel for petitioners in case of Indra Sawhney v. Union of India, AIR 1993 SC 477 and Post Graduate Institute of Medical Education and Research. Chandigarh v. Faculty Association and others. JT 1998 (3) SC 223.
8. Shrl B. D. Mandhyan. on the other hand, submitted that the special recruitment drive Initiated by the State Government does not violate any constitutional provision. The representation for Scheduled Castes and Scheduled Tribes in the service is only 5 per cent as there are only 87 doctors of this category out of 2272. The U. P. Act No. 4 of 1994 contains provision for such special recruitment drive to remove the backlog. It has also been submitted that Indra Sawhney's case has been considered and Interpreted in subsequent judgments of Hon'ble Supreme Court and the action on the part of the respondents is fully Justified. Reliance has been placed tn case of R. K. Sabbarwal and others v. State of Punjab and others. AIR 1995 SC 1371 ; State of U. P. v. Dr. Dina Nath Shukla and others, JT 1997 (2) SC 467 ; Ashok Kumar Gupta and another v. State of U. P. and others, JT 1997 (4) SC 251 and Jagdish Neyi v. State of U. P., AIR 1997 SC 3505- The submissions of the learned counsel for the respondents were more or less on the same line as stated above.
9. We have thoroughly considered the submissions made by the learned counsel for the parties. In our opinion. It has to be seen first as to whether special recruitment drive directed by respondent No. 1 and Initiated by respondent No. 2 is in consonance with the provisions of the Act. Section 3 of the Act is very relevant for the purpose which is being reproduced below :
"3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes.--(1) in public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of-citizens-
(a) In the case of Scheduled Castes twenty-one per cent ;
(b) In the case of Scheduled Tribes two per cent :
(c) In the case of other backward classes of citizens twenty-seven per cent :
Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule II, (2) If, even in respect of any year of recruitment, any vacancy reserved for any category of persons under sub-section (1) remains unfilled, special recruitment shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category.
(3) If. In the third such recruitment referred to in sub-section (2), suitable candidates belonging to the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes.
(4) Where, due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled even after special recruitment referred to in sub-section (2), 11 may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned tn sub-section (1) shall not exceed fifty per cent of the total vacancies.
(5) The State Government shall, for applying the reservation under subsection (1), by a notified order. issue a roster which shall be continuously applied till it is exhausted.
(6) if a person belonging to any of the categories mentioned in subsection (1), gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1).
(7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked."
10. From perusal of sub-sections (2), (3) and (4) of Section 3 of the Act, it is apparent that the special recruitment can be made for such number of times not exceeding three, as may be considered necessary to fill such vacancies from amongst the persons belonging to that category, provided that in the direct recruitment contemplated under sub-section (1) of Section 3 for vacancies reserved for any category of persons remain unfilled. Thus, for initiating a special recruitment drive, it is necessary that there should have been a process of direct recruitment in respect of the different services and posts as contemplated under sub-section (1) of Section 3. The scheme provided under sub-section (1) does not contemplate a special recruitment independently. For such a move, the condition precedent appears to be an effort of direct recruitment under sub-section (1) in which the vacancy reserved for any category of persons mentioned therein remained unfilled. The words. 'If, even in respect of any year of recruitment' used tn sub-section (2) suggest that the procedure of special recruitment can be adopted both in case of direct recruitment in respect of the vacancies of any year of recruitment or otherwise. Thus, special recruitment providing 100 per cent reservation in favour of a reserved category could only follow a recruitment already undertaken open for all the categories.
11. In the present case. It is not disputed that after 1988 there was no advertisement for recruitment of medical officers (Ayurvedlc/Unanl). After 8 years, the Impugned advertisements have been published providing 100 per cent reservation in favour of a particular category which. In our opinion, is not in accordance with the provisions of the Act. The legislative Intent appears to be that the special recruitment providing 100 per cent reservation should only be Initiated after the candidates of all the categories including general category had already availed the opportunity to seek appointment in their categories. The aforesaid legislative intent may be further ascertained from the provisions contained in sub-section (4) which provides that where due to non-avallablllty of suitable candidates in all the vacancies reserved under sub-section (1) remained unfilled, even after special recruitment referred to in sub-section (2), it may be carried over to the next year commencing from first of July in which recruitment is to be made, however, it has been made subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub-section (1) shall not exceed 50 per cent of the total vacancies.
12. In our opinion, the impugned advertisements providing 100 per cent reservation in favour of a particular category in absence of a direct recruitment as contemplated under sub-section (1) of Section 3. of the Act. (s wholly illegal, arbitrary and in contravention of the provisions of the Act. The controversy may also be tested on the basis of the judgments of Hon'ble Supreme Court. In Indra Sawhney v. Union of India, (supra) while considering question No. 6 which was relating to the extent of reservation which can be made, Hon'ble B. P. Jeevan Reddy. J., who delivered the majority judgment, held in para 96 as under :
"96, The next aspect of this question is whether a year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji. AIR 1963 SC 649. does not deal with this aspect but Deuadasan. AIR 1964 SC 179, [majority opinion) does. Mudholkar. J., speaking for the majority says ;
"We would like to emphasise thai the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and therefore, every citizen who is seeking employment or appointment to an office under the State is entilled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered 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."
"On the other hand is the approach adopted by Ray, C. J., in Thomas, AIR 1976 SC 490. While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, C.J. would not be consistent with Article 16. True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go. I.e., in a year or two. The position can be better explained by taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes, i.e., 270 by other backward classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say the number of members of O.B.Cs. In the unit/service/category is only 50, a short fall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/ cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500. i.e.. till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age-barred and Ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (J) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be."
13. After the Judgment in Indra Sawhney's case, (supra), the State Legislature enacted U. P. Act No. 4 of 1994. Section 3 (2( of the Act provides for special recruitment but in order to preserve the equality clause and to provide equal opportunity to all segments of the society, the condition has been imposed that special recruitment should follow a direct recruitment open for all categories, in other words, it may be said that the ratio in the judgment of Indra Sawhney's case that at a given time, there should not be reservation for more than 50% has been preserved. If the special recruitment follows direct recruitment open for all categories and the vacancy reserved for any category of persons remains unfilled, then the special recruitment could be taken and in that case persons belonging to other categories could not have any complaint as to the extent of their quota in that particular recruitment they have already availed opportunity. Learned counsel for the respondent placed strong reliance in judgment of Hon'ble Supreme Court in case of State of U. P. u. Dina Nath Shukla and others, (supra) and other cases. However, recently a Constitution Bench in case of P. G. Institute of Medical Education and Research. Chandigarh, (supra] has taken into consideration the judgments relied on by the learned counsel for the respondents. The controversy before Hon'ble Supreme Court was with regard to enforcing reservation where there is a single post. Hon'ble Supreme Court in para 30 of the judgment has observed as under :
"30. There is no difficulty in appreciating that there is need for reservation for the members of the Scheduled Castes and Scheduled Tribes and Other Backward Classes and 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."
In para 31 it has been further observed as under :
31. Articles 14. 15 and 16 including Articles 16(14) and 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 Sabharwais case. Even in Indra Sawhney's case, the same view has been held by indicating that only a limited reservation nol exceeding 50% is permissible. It is to be appreciated 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 State of Andhra Pradesh and others u. U. S. V. Balaram, AIR 1972 SC 1375 and C. A. Rqjendran v. Union of India, AIR 1968 SC 507. It has been indicated in Indra Sawhney'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 cannot reserve all the appointment under the State or even a majority of them. The doctrine of equality.....such a manner that the latter while surveying the case of backward classes shall not unreasonably encroach upon the field of equality."
In para 33. It has been provided as under :
"33. 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 members of the public and cent per cent 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."
14. In our opinion. In view of the judgment of Hon'ble Supreme Court mentioned above, 100% reservation provided for backward and Scheduled Castes and Scheduled Tribes categories by the impugned advertisements is not only in contravention of the provisions of the Act but it also offends the equality clause contained in Articles 14. 15 and 16 of the Constitution and thus cannot be sustained.
15. For the reasons stated above, this writ petition is allowed. The impugned advertisement Nos. 3 of 1995-96 and 1 of 1996-97. Annexures 3 and 4 to the writ petition, are quashed. However, it shall be open to the respondents to readvertise the posts in accordance with the provisions of the Act and in the light of the observations made above. There will be no order as to costs.