Karnataka High Court
Dalit Sena, Karnataka vs The Karnatak University, Dharwad And ... on 18 December, 1998
Equivalent citations: 1999(2)KARLJ1
Bench: R.P. Sethi, Mohamed Anwar
ORDER
1. Claiming to be the champions of the cause of the Dalits, the petitioner-Association has filed this petition with prayer for quashing the advertisement dated 30th of September, 1996 and the corrigendum dated 20th of October, 1996, Annexures-J and K with a further prayer to direct the respondent-University to re-advertise the posts by following the Roster System as contemplated under Article 16(4) of the Constitution of India and by clearly indicating the posts which are reserved and the posts which are not reserved in the fresh advertisement notification.
2. The Government of Karnataka is stated to have issued Roster System vide notifications issued from time to time, that is, 12-2-1989, 27-2-1989, 5-11-1994, 13-1-1995 and 21-6-1995. The said Roster System has been directed to be followed by all educational institutions including the Universities. In the year 1994, the Registrar of the respondent-University is stated to have issued an advertisement with respect to the posts sought to be filled without indicating the posts which had been reserved, except showing the vacancy. It is contended that such a procedure facilitated the University Authorities to make appointments at their discretion, with the result the candidates belonging to the weaker sections of the society apprehended that they would not get due representation. Such a procedure allegedly confers unguided powers upon the Selection Committee to make appointments in an arbitrary manner. The Syndicate and other persons associated with the selection process are apprehended to be capable of practising foul play by selecting persons of their own choice. The advertisement issued is allegedly against the mandate of Article 16(4) of the Constitution, resulting in deprivation of the Scheduled Castes and Scheduled Tribes to get due representation. As the representations submitted by the petitioner-Association are stated to have not been considered by the Vice-Chancellor as well as the Chancellor, it was forced to file the present petition.
3. During the pendency of the writ petition, the petitioner filed an IA seeking amendment to the writ petition by incorporating the plea for declaring the Government Order dated 22nd of February, 1994, Annexure-L to be unconstitutional being contrary to the decision of this Court in Dr. Rajkumar and Others v Gulbarga University and Others. Another application appears to have been filed with prayer for impleading all the Lecturers, who had been selected consequent upon the issuance of the impugned advertisement notice.
4. In the statement of objections filed on behalf of the respondent-University, it is submitted that the present petition was not in public interest, as the same is misconceived, ultimately being against the interests of the Dalits. The impugned procedure adopted by the University is claimed to be in the interests of Scheduled Caste and Scheduled Tribe candidates, who are intended to be given their due share in the matters of appointment to the post of Professors, Readers and Lecturers. The impugned advertisement is claimed to have been issued strictly according to the directions contained in Government Order No. DPAR 11 SBC 94, dated 22-2-1994 permitting the University to club the different posts treating them as combined cadre for the purpose of application of the Roster prescribed vide G.O. No. DPAR 28 SBC 86, dated 12-12-1986. Candidates are intended to be selected from the various reserved categories on the basis of inter se merit regardless of the subject concerned to the extent the posts had been reserved for each category. Subject-wise reservation is claimed to have been indicated against all the posts of Lecturers, both current and backlog posts of Professors and Readers, however, no such indication is given against current posts of Professors and Lecturers in view of the Government Order dated 22-9-1994. While making selection and appointment to the current posts of Professors, the respondent has taken steps to ensure that reservation as per Roster is scrupulously maintained. Out of 48 current posts of Readers, 7 are intended to be given to SCs, 2 to STs, 24 to GM and 15 to OBCs. There will be no deprivation or denial of opportunity for SCs or STs. No fundamental or legal right of any citizen much less that of a SC or ST is claimed to have been violated.
5. In the statement of objections filed on behalf of respondent 2 it is submitted that the present petition filed in public interest is not maintainable. Though the University has not earmarked roster point against each post, an abstract has been given clearly in each cadre regarding number of posts reserved for Scheduled Caste, Scheduled Tribe, G.M. and other OBC categories. While filling up the post, the ratio of reservation is claimed to have been maintained according to the reservation policy of the State Government. The posts of Professors/Readers are intended to be filled up from various reserved categories on the basis of inter se merit regardless of subjects concerned to the extent that the posts had been reserved for each of such category as per Government Order dated 22-2-1994. Unfilled posts in the reserved categories have been decided to be carried forward. The University is stated to have earmarked the roster point in respect of each post against backlog vacancies.
While opposing the application for amendment, the respondent-State has submitted that the order sought to be quashed is legal, valid and according to law.
6. In the additional statement of objections filed on behalf of respondent 1 it is submitted that the legal status of the petitioner-Association itself is doubtful. The petition filed in the name of Dalit Sena is not maintainable. The petitioner has no locus standi in maintaining the petition. It is reiterated that the impugned Government Order instead of injuring the interests of SCs and STs actually enhanced their opportunity of getting adequate representation in the cadre of Readers and Professors. No SC or ST candidate is reported to have made any grievance regarding the procedure adopted for making selection and filling the posts.
7. We have heard the learned Counsel appearing for the parties at length and perused the record.
8. Arguing regarding the non-maintainability of the writ petition on the ground of locus standi, the learned Counsel appearing for the respondents have submitted that in the absence of an authorisation for and on behalf of the petitioner-Association, Mr. M. Aravind had no capacity to file the present petition. It is further contended that the present petition does not serve any public interest. The prayers made in the petition have been termed to be anti-Dalits.
9. There is no dispute that under the general law and on the basis of the traditional rule in regard to locus standi, it is only a person who has suffered a legal injury on account of the violation of his legal or constitutional rights, can alone approach the Court invoking its jurisdiction for the protection of any of the rights contemplated under Article 226 of the Constitution of India. The Supreme Court in S.P. Gupta and Others v President of India and Others, termed such a rule of ancient vintage and declared it to be prevalent in an era when private law dominated the legal scene and public law had not yet been born. It was further held:
"We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective 'law', as pointed out by Justice Krishna Iyer in Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others v Union of India and Others, is a social auditor and this audit function can be put into action when someone with real public interest ignites the jurisdiction. A fear is sometimes expressed that if we keep the door wide open for any member of the public to enter the portals of the Court to enforce public duty or to vindicate public interest, the Court will be flooded with litigation. But this fear is totally unfounded and the argument based upon it is answered completely by the Australian Law Reforms Commission in the following words:
"The idle and whimsical plaintiff, a dilentate who litigates for a lark, is a spectre which haunts the legal literature, not the Court room (Prof. K.E. Scott, Standing in the Supreme Court: A Functional Analysis" (1973)86).
A major expressed reason for limiting standing rights is fear or a spate of actions brought by busybodies which will unduly extend the resources of the Courts. No argument is easier put; none more difficult to rebut. Even if the fear be justified it does not follow that present restrictions should remain. If proper claims exist it may be necessary to provide resources for their determination. However, the issue must be considered. Over recent years successive decisions of the United States Supreme Court have liberalised standing so as to afford hearing to any person with a real interest in the relevant controversy. Surveying the result in 1973 Professor Scott Commented (Op. Cit. 673):
"When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissenters feared".
Professor Scott went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter.
We wholly endorse these remarks of the Australian Law Reforms Commission. We may add, with Justice Krishna Iyer: "In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi". It is also interesting to note that in India, as in other commonwealth countries, the strict rule of standing does not apply to a writ of quo warranto or a rate payer's action against a municipality, but there is no evidence that this has let loose the floodgates of litigation in these areas. The time, money and other inconveniences involved in litigating a case act as sufficient deterrents for most of us to take recourse to legal action vide article of Dr. S.N. Jain on "Standing and Public Interest Litigation".
The Supreme Court, however, warned the Courts to be careful of such persons who approach the Court in public interest that they were acting bona fidely and not for personal gains or private profit or political motivation or other oblique considerations. The Court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. It was further pointed out that the distinction between locus standi and justiciability must be kept in mind and tbat every default on the part of a State or Public authority was not justiciable. The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. The public interest litigation being a new jurisprudence evolved by the Courts demand judicial statesmanship and high creative ability. It was further observed "the frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born".
In Fertilizer Corporation Kamgar's case, supra, the Apex Court held that the law was a social auditor and this audit function could be put into action only when someone with real public interest ignites the jurisdiction of the constitutional Court. However, if a citizen was found to be not more than a wayfarer or officious intervener without any interest or concern beyond what belonged to any one of the citizens of the country, the doors of the Court would not be ajar for him.
In Bandhua Mukti Morcha v Union of India and Others, the Apex Court held that while dealing with the fundamental rights, its approach must be guided not by any verbal or formalistic cannons of construction but by the paramount object and purpose for which the powers had been conferred for protection of the fundamental rights, the interpretation of which was required to receive illumination from the trinity of provisions which permeate and energise the entire Constitution, namely, the preamble, the fundamental rights and the directive principles of State policy.
In Sachidanand Pandey and Another v State of West Bengal and Others, the Supreme Court held that the public interest litigation initiated under Article 226 of the Constitution must inspire confidence in Courts and among public. No one should be permitted to file cases in profusion under the attractive name of 'PIL'. Person approaching the Court must be above suspicions. It was cautioned that if the Courts did not restrict the free flow of such cases in the name of public interest litigation, the traditional litigation would suffer and the Courts of law, instead of dispensing justice, would have to take upon themselves administrative and executive functions. It was further held:
"It is only when Courts are appraised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected, I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self imposed restraint on public interest litigants".
In Janata Dal v H.S. Chowdhary and Others, the Supreme Court held:
"It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold.
It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we are second tc none in fostering and developing the newly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to imprisonment and kept in incarceration for long years, persons suffering from the undue delay in service matters, Government or private persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenus expecting their release from the detention orders etc., etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity brake the queue muffling their faces by wearing the mask of public interest litigation, and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
In the words of Bhagwati, J. (as he then was) "the Courts must be careful in entertaining public interest litigations" or in the words of Sarkaria, J., "the applications of the busybodies should be rejected at the threshold itself and as Krishna Iyer, J., has pointed out, "the doors of the Courts should not be ajar for such vexatious litigants".
Further, we would like to make it clear that it should not be misunderstood that by the expression of our above view, there is any question of retreating or recoiling from the earlier views expressed by this Court about the philosophy of public interest litigation in many outstanding judgments which we have already referred to; on the other hand we look back to the vantage point from which we started our journey and proceed on our onward journey in the field of PIL".
Petition in public interest has been held to be a weapon, which is required to be used with great care and circumspection. The Courts are required to be extremely careful to see that behind the glittering veil of public interest no ugly private malice, vested interests or publicity seekers was lurking. The patent name of public interest litigation cannot be permitted to be used for suspicious objects or mischief. No one can be permitted to indulge in the past time of meddling with the judicial process either by force of habit or from improper motives or for seeking publicity or for furthering political interest or for acquiring higher social status or winning cheap popularity.
In Sheela Barse v Union of India and Others, the Apex Court held:
"In a public interest litigation, unlike traditional dispute-resolution-mechanism, there is no determination or adjudication of individual rights. While in the ordinary conventional adjudications the party structure is merely bipolar and the controversy pertains to the determination of the legal consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action the proceedings cut across and transcend these traditional forms and inhibitions. The compulsions for the judicial innovation of the technique of a public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State. Effective solutions to the problems peculiar to this transformation are not available in the traditional judicial system. The proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert and quite often not even aware of those rights. The technique of public interest litigation serves to provide an effective remedy to enforce these group rights and interests. In order that these public causes are brought before the Courts, the procedural techniques judicially innovated specially for the public interest action recognises the concomitant need to lower the locus standi thresholds so as to enable public-minded citizens or social action groups to act as conduits between these classes of persons of inherence and the forum for the assertion and enforcement of their rights. The dispute is not comparable to one between private parties with the result there is no recognition of the status of a dominus litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the Court. The 'rights' of those who bring the action on behalf of the others must necessarily be subordinate to the 'interests' of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of government action in relation to the constitutional or statutory rights of segments of society and in certain circumstances the conduct of government policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, ad hoc, according as the exigencies of the emerging situations. The proceedings do not partake of predetermined private law litigation models but are exogeneously determined by variations of the theme.
Again, the relief to be granted looks to the future and is, generally, corrective rather than compensatory which, sometimes, it also is. The pattern of relief need not necessarily be derived logically from the rights asserted or found. More importantly, the Court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organisation of the proceedings, moulding of the relief and this is important also supervising the implementation thereof. The Court is entitled to, and often does seek the assistance of expert panels, Commissioners, Advisory Committees, amid etc. This wide range of the responsibilities necessarily implies correspondingly higher measure of control over the parties, the subject-matter and the procedure. Indeed as the relief is positive and implies affirmative-action the decisions are not 'one-shot' determinations but have on-going implications. Remedy is both imposed, negotiated or quasi-negotiated.
Therefore, what corresponds to the stage of final disposal is an ordinary litigation is only a stage in the proceedings. There is no formal, declared termination of the proceedings. The lowering of locus standi threshold does not involve the recognition or creation of any vested rights on the part of those who initiate the proceedings, analogous to dominus litis".
In Dr. (Mrs.) Meera Massey v Dr. S.R. Mehrotra and Others, the Supreme Court after referring to various earlier judgments observed that only genuinely concerned persons had the justification to approach the Court in public interest. In that case the petitioner was allowed to prosecute the public interest litigation as he was found that he had not approached the Court for any personal gain and the petition filed by him was neither politically motivated nor was for publicity. The Court further observed: "But, it is also true, since then this Court repeatedly has been cautioning its misuse laying down restrictions to scuttle out undesirable persons or body.
10. On the basis of various pronouncements of the Apex Court and other constitutional Courts in the country, it can be said that before exercising the jurisdiction in public interest, the Court must be satisfied that the action impugned was in violation of fundamental rights or was palpably illegal or mala fide, which affected the group of persons who were not in a position to protect their own interests on account of poverty, incapacity or ignorance. The person approaching the Court in invoking the exercise of jurisdiction in public interest must be shown to be such person or group of persons who was not busybody or meddlesome interloper. Such litigants should further be shown to have not approached the Court with mala fide intention of vindicating his personal vengeance or grievance and that the process of Court was not being abused for political or unrelated objectives. The person approaching the Court should satisfy that he had clean hands, clean heart and clean objectives. The process of the Court should not be permitted to be used by unscrupulous litigants, politicians, busybodies or persons or group of persons with mala fide objective of either vindicating their personal grievance or by resorting to blackmailing or alien considerations or being made the rallying point of the poor and neglected for the purpose of minting money in their name by projecting their grievances in the sweet coated pills of public interest litigation.
11. Testing on the touchstone of the guidelines provided by various pronouncements it has to be seen in the instant case as to whether this petition can be permitted to be proceeded further in public interest or not?
12. The petitioner is admittedly an association registered under the Societies Registration Act, the constitution of which provides amongst other things to ensure reservation for SCs, STs, Backward Classes and minorities in Government/Semi-Government/Private Sectors and to strive for reservation in proportion to the population of Dalits. It further provides to complain against atrocities committed against the Dalits, having resort to taking steps by educating its members by making them to realise of their rights and thus to awaken them. The organisational structure of the Association consists of National level, State level, District level, Block level and primary level/village level/ward level. At the State level, the State Committee is to consist of 51 Members including its President. The office bearers are required to be elected in accordance with the rules prescribed. The constitution of the petitioner-society does not provide any mechanism or an authority to sue or be sued in the name of Dalit Sena. The Society appears to have been formed primarily for the purposes of educating the Dalits by appraising them of their rights guaranteed under the Constitution and various other enactments. The organisation does not appear to have been constituted for the purposes of litigation. Otherwise also, when a petition is filed in the name of a Society, it is obligatory for the person through whom the petition is filed to place on record that he had been conferred the authority to move the Court on behalf of such Society. Nowhere in the petition it is stated that the petition was being filed with the authority of the Dalit Sena and its State Committee. In the accompanying affidavit Sri M. Aravind has mentioned that he has been authorised to swear the affidavit on behalf of the petitioner-Dalit Sena, but he has no where stated that the petition was filed with the authority of the State Committee. The State Committee as noted earlier is supposed to consist of 51 members including its President and is required to be elected in accordance with the rules prescribed. There is nothing on record to show as to whether any State Committee was ever elected in accordance with the rules prescribed or that such Committee had decided to file a petition in the name of Dalits for claiming the reliefs as prayed in the present writ petition. Further, there is nothing on record to assume that the Secretary of the petitioner-society had the power or authority to sue in the name of Dalit Sena under its Constitution.
13. The issues raised in the petition have not been alleged to be actuated by mala fides. The alleged violation of fundamental right under Article 16 of the Constitution is also shown not to be adversely affecting the common masses or the general members of the Dalit Sena. There is nothing on the record to show that any Dalit had approached the petitioner-society complaining against the procedure adopted for making the selections and appointments. There is nothing on the record to show that persons apprehended to be adversely affected by the action initiated on the basis of the impugned advertisement were not in a position to approach the Court on account of their poverty, incapacity or ignorance. The process of the Court appears to be used by Sri M. Aravind either for his own personal interests or in the interests of the Society of which he claims to be the Secretary by resorting to the method of filing the present petition. Sri M. Aravind, is shown to have succeeded in protracting the litigation and thereby obstructing the process of selection and appointments of persons duly selected, a good number of which comprises of the candidates from the reserved categories. The present petition cannot be held to have been filed for vindicating the grievances of the Dalits, but appears to have been filed with ulterior motives of gaining name and fame by projecting the petitioner-society as the champion of the cause of the Dalits. The process of the Court cannot be permitted to he used for such a purpose when admittedly it does not affect the large sections of the Society sought to be projected, namely, the Dalits.
14. We are further of the opinion that public interest litigation should not normally be permitted to be initiated and continued in the service matters. The principle of locus standi should normally not be waived in such cases, exception being the case where a writ of quo warranto is sought against the usurper of a public office or where the petitions are filed by representative statutorily recognised trade unions for the redressal of the grievances of their members, mainly with the object of avoiding multiplicity of litigation by avoiding separate writ petitions by the persons who otherwise have the cause of action against the act complained of. Strictly speaking, such petitions would not be petitions in public interest, but would be petitions initiated in representative capacity as is contemplated for suits filed under Order 1, Rule 8 of the Code of Civil Procedure. We are further of the opinion that as and when any petition is filed in a representative capacity, the procedure provided under Order 1, Rule 8 of the CPC should be insisted to be followed and specific permission granted in that behalf. Normally a person aggrieved by an action relating to service matter would be a person capable of approaching the Court in his own name. Busybody or group of persons proclaiming to espouse the cause of any specified section of the Society cannot be permitted to initiate litigation in the name of public interest, as such litigation has been considered to be instrument of administration of justice to be used properly in appropriate cases only. In service matters, the dispute in fact is inter partes, which should not be attempted to be settled at the instance of a person not personally aggrieved. In exercise of the powers under Article 226 of the Constitution at the instance of a person not aggrieved, the Court should keep in mind that it was not encroaching the sphere reserved by the Constitution to the executive or the legislature.
15. The Supreme Court as well as this Court has prescribed guidelines to be followed for entertaining letters/petitions, upon the existence of which legal action in public interest litigation can be initiated. According to the aforesaid guidelines, no petition involving individual/personal matter is to be entertained as a PIL matter except as indicated in the guidelines.
16. Letters/petitions falling under the following categories alone are required to be entertained as public interest litigation:
(1) Bonded Labour matters.
(2) Neglected children.
(3) Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of Labour Laws (except in individual cases).
(4) Petitions from jails complaining of harassment, for pre-mature release and seeking release after having completed 14 years in jail, death in jail, release on personal bond, speedy trial as a fundamental right.
(5) Petitions against police for refusing to register a case, harassment by police and death in police custody.
(6) Petitions against atrocities on women, in particular harassment of bride, bride-burning, rape, murder, kidnapping etc. (7) Petitions complaining of harassment or torture of villagers by co-villagers or by police, of persons belonging to Scheduled Castes and Scheduled Tribes and economically backward classes.
(8) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance.
(9) Petitions from riot-victims.
(10) Family Pension.
Cases falling under the following categories are required not to be entertained as public interest litigation:
(1) Landlord-tenant matters.
(2) Service matter and those pertaining to pension and gratuity.
(3) Complaints against Central/State Government Departments and local bodies except those relating to item Nos. (1) to (10) above.
(4) Admission to medical and other educational institutions.
(5) Petitions for early hearing of cases pending in subordinate Courts.
In regard to the petitions concerning maintenance of wife, children and parents, the petitioner may be asked to file a petition under Section 125 of the Cr.P.C. or a suit in the Court of competent jurisdiction and for that purpose to approach the nearest Legal Aid Committee for legal aid and advice.
17. We are, therefore, of the firm opinion that the present petition and petitions of the like nature should not be entertained as public interest litigation. However, as the petition has remained pending in the Court for a pretty long time, wherein the interim directions are also issued, we have opted to decide it on merits also despite holding it to be not maintainable as Public Interest Litigation.
18. On merits the case of the petitioner is based upon the verdict of the Supreme Court in Dr. Suresh Chandra Verma v Chancellor, Nagpur University, wherein under the circumstances of that case it was held that the number of posts reserved for reservation category candidates must be indicated subject-wise and that mere mentioning of total number of reserved posts in the advertisement was not sufficient. In that case, the University of Nagpur was stated to have issued the employment notice inviting applications for a total of 77 posts including 13 posts of Professors, 29 posts of Readers and 5 posts of Lecturers in different subjects ranging from Economics, Political Science, Sociology to Physics, Pharmacy and Geology. The notice mentioned total number of reservation category-wise but not subject-wise. The advertisement was corrected by a corrigendum issued. A further employment notice for additional posts was issued by the Registry. Different Selection Committees were constituted and they recommended the candidates for the posts advertised. The Committees were shown to have given weightage to the candidates belonging to the reserved castes. Therefore, the Executive Council constituted a sub-committee to decide which post should be reserved for the reserved caste and on the recommendations of the said committee, the Executive Council decided to keep apart 17 posts for reserved candidates which were decided to be filled up by temporary appointments. Against the appointments made by the University, some social workers and organisations made representations to the Chancellor projecting grievance against the employment notice as well as against the procedure followed in making the said appointments. In response the Chancellor appointed a 'One-man Committee' under Section 76 of the Nagpur University Act to inquire into the matter. The Committee submitted the report which was accepted by the Chancellor. Meanwhile a number of writ petitions were filed in the High Court challenging the employment notice on the ground that the non-obtaining of the recommendation from the Board of University Teaching and Research before issuing the employment notice was bad in law in view of the provisions of the Nagpur University Act. Accepting the contentions raised in the petitions, the High Court quashed the employment notice and set aside the appointments to the posts which were challenged in those petitions and restrained the University from making any appointment without obtaining the recommendations from the Board of University Teaching and Research. Taking into consideration the report of the One-man Committee and also the decision of the High Court, the Chancellor directed the Vice-Chancetlor to terminate the services of all appointees. Aggrieved by the orders of the Vice-Chancellor, the selected candidates including Suresh Chandra Verma are shown to have filed the writ petitions in the High Court which were dismissed by a Full Bench. In the SLP filed, the following two questions were raised before the Supreme Court.-
(i) Whether the employment notice issued by the respondent-University on July 27, 1984 ought to have indicated reservations postwise, and
(ii) Whether assuming that the said notice was invalid the termination of services of the appellants on April 21, 1987 was valid?
Referring to Section 57(4)(a) of the Nagpur University Act, the Supreme Court held that the said section required that the advertisement or the employment notice should indicate the number of reserved posts, if any, which implied that the employment notice should not be vague and it should indicate the specific post i.e., the subject in which the post was vacant and for which the applications were invited from the candidates belonging to the reserved classes. A non-indication of the post in that manner itself defeated the purpose for which the applications were invited from the reserved category candidates and consequently negated the object of the reservation policy. To return such a finding the Apex Court referred to the word 'post' used in Section 57(4)(a) of the Nagpur University Act and found that the said word in that context had a relation to the faculty, discipline or the subject for which it was created. It found, "when, therefore, reservations are required to be made on the 'in posts', the reservations have to be post-wise, i.e., subject-wise. The mere announcement of the number of reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised". The Supreme Court agreed with the impugned judgment of the Full Bench of the High Court of Bombay and also approved the view taken by a Full Bench of this Court in Dr. Rajkumar's case, supra.
19. In Dr. Rajkurnar's case, supra, the Full Bench of this Court after considering Section 49 of the Karnataka State Universities Act, 1976 had declared:--
"There can be no doubt that in view of sub-section (4) of Section 49 of the Act, at the stage of inviting applications, there can be no restriction regarding the categories of candidates who could submit their applications seeking selection and appointment to the posts advertised. The reservation is required to be complied with by the Board of Appointment at the stage of preparing the select list as required under sub-section (7) of Section 49 of the Act. Further it is also clear from sub-section (8) of Section 49 of the Act that the Board of Appointment is empowered to include the names of candidates belonging to Scheduled Castes and Scheduled Tribes in the list of selected candidates if they possessed minimum prescribed qualification and are found suitable. In the circumstances, there is considerable force in the contention of the petitioners that the University generally at the stage of inviting applications could not restrict the applications only to persons belonging to Scheduled Castes/Scheduled Tribes category or to any other reserved category. But in our opinion, the question as to whether the notification inviting applications from reserved category alone, should be declared invalid, should depend upon the facts and circumstances of a given case and in respect of each of the categories of posts in respect of which applications are invited. If applications for any category of posts are invited for the first time or in cases where the vacancies are available for being filled up according to general merit and also from among persons belonging to the reserved category, there can be no doubt that the applications cannot be restricted to persons belonging to the reserved category. But if in a given case it is shown that attempts for recruitment to any particular cadre had already been made and at that stage candidates belonging to the reserved category were not available and therefore subsequent attempt was being made for giving opportunity to candidates belonging to the reserved category only as against unfilled posts reserved for reserved category, such restriction cannot be considered as discriminatory and illegal. The question therefore has to be considered with reference to each of the cadres and we shall take up the same for consideration later".
The Court had further held.-
"The next question for consideration is about the method which should be adopted in providing reservation for the cadres of Professors, Readers and Lecturers for, though these posts are in different subjects they carry same designation and pay scale. Therefore the question is as to whether reservation has to be worked out in respect of such cadres, separately. This question is also no longer res integra. This Court in the case of Dr. Krishna v State of Karnataka, has held that in the case of teaching cadres though the designation and pay scale of the posts of Professors, Readers and Lecturers in different subjects are one and the same, still having regard to the fact that the posts of Professor, Readers and Lecturers in each of the subject is distinct and separate, each subject has to be treated as independent unit for the purpose of recruitment and reservation. The said view stands confirmed by the decision of the Supreme Court in the case of Chakradhar. In view of this position in law, the only reasonable method of giving effect to reservation in the cadres in which the number of posts available is smaller, is by way of providing a reasonable roster, In fact, in view of the judgment of this Court in Krishna, the State Government by its order dated 28-1-1987 (Annexure-R1) prescribed a 100 point roster. The first 10 points prescribed are: (1) Scheduled Caste, (2) Scheduled Tribe, (3) General Merit, (4) Group 'A' of the backward classes, (5) Group 'B' of the backward classes, (6) Scheduled Caste, (7) General Merit, (8) Group 'C' of the backward classes, (9) Group 'D' of the backward classes and (10) General Merit and the roster continues upto 100 points. As number of posts available in each of the Departments in each of the cadres is generally less than ten, and once a person is appointed against a vacancy, normally he continues in service for several years, it appears to us that 100 point roster is unwieldy because, for the completion of the roster it might take a few centuries. The validity of that order is not challenged in this petition. We should, however, observe that it would be reasonable to fix the roster for points as minimum as possible for cadres in which the posts available are only a few and therefore the roster requires to be reviewed and modified".
20. It is therefore crystal clear that the provisions of Section 57(4)(a) of the Nagpur University Act and Section 49 of the Karnataka State Universities Act, 1976 (hereinafter called the 'Karnataka Act') are not similar. The reliance of the petitioner's Counsel on Suresh Chandra Verma's case supra, is therefore misplaced. Section 49 of the Karnataka Act deals with the appointment of teachers and other employees of the University prescribing the procedure and the method for selection and appointment. Sub-section (4) of Section 49 provides:--
"(4) Every post of Professor, Librarian, Reader or Lecturer to be filled by selection shall be duly and widely advertised together with the minimum and other qualifications, if any, required, the emoluments and the number of posts to be filled, and reasonable time shall be allowed within which the applicants may apply".
Sub-section (7) of the said section provides:--
"(7) In preparing the list under sub-section (6) the Board shall follow the orders issued by the State Government from time to time in the matter of reservation of posts for the Scheduled Castes, the Scheduled Tribes and other backward classes of citizens".
A perusal of the aforesaid two sub-sections would clearly show that there is no obligation on the part of the University to specify the number of reserved posts subject-wise at the initial stage of advertisement issued for the purpose of filling the posts of Professor, Librarian, Reader or Lecturer. The Act however mandates that after the applications are received in response to the advertisement notice, the Board contemplated under the section shall interview, adjudge the merit of each candidate in accordance with the qualification advertised and prepare a list of persons selected and arrange it in the order of merit. Such a list is required to be forwarded to the Syndicate who is obliged to make appointments in accordance with the same. However in preparing the list under sub-section (6) of Section 49 of the Karnataka Act, the Board is required to follow the orders issued by the State Government from time to time in the matter of reservation of posts for the SC, ST and other backward classes of citizens. The Full Bench of this Court in Dr. Rajkumar's case, supra, was therefore right in holding that there did not exist any restriction regarding categories of candidates seeking selection at the stage of inviting applications and compliance of reservation was mandatory at the stage of preparation of the select list under Section 49(7) of the said Act. In view of the fact that the law laid down in Dr. Rajkumar's case, supra, was approved by the Supreme Court in Suresh Chandra Verma's case, supra, the present petition has no merit as the same has been attempted to be projected on the grounds which actually do not exist.
21. The impugned advertisement Annexure-J dated 30-11-1996 have specified various posts in different columns indicating wherever it was possible, the reservation with respect to each post and wherever it was not possible to show the reservation for the reserved categories after clubbing the posts together. To appreciate the effect of advertisement properly, the different columns of the advertisement are reproduced hereunder:--
Column No. 1Sl. No. Name of the Department No. of posts Reservation BACKLOG POSTS OF PROFESSORS
1.
Kannada 1 ST Backlog 2 Botany 1 SC Backlog 3 Chemistry (Physical) 1 SC Backlog BACKLOG POSTS OF READERS
1. Physics (Radio/Electronics/Desirable in Electronics) 1 SC Backlog
2. History and Archaeology 1 ST Backlog
3. Philosophy 1 ST Backlog
4. Sanskrit 1 ST Backlog BACKLOG POSTS OF P.G. LECTURERS
1. Education 2 1-SC Backlog 1-ST Backlog
2. Social Work 1 ST Backlog
3. Business Management 1 ST Backlog
4. Law (1-Jurisprudent/Criminal Law) 2 SC Backlog
5. Statistics 1 SC Backlog
6. Ocean Science 2 1-SC Backlog 1-ST Backlog
7. Computer Science 1 ST Backlog BACKLOG POSTS OF COLLEGE LECTURERS
1. Education 1 SC Backlog
2. Law 1 ST Backlog
3. Geography 1 ST Backlog
4. Statistics 1 SC Backlog
5. Geology 1 ST Backlog Column No. 2 Sl.
No. Name of the Department No. of posts Reservation CURRENT POSTS OF PROFESSORS
1. English 1
2. Hindi --(1 Post Functional Hindi) 2
3. Marathi 1
4. Urdu and Persian 1
5. Music 1
6. Political Science 1
7. Anthropology 1
8. Psychology 1
9. Journalism and Mass communication 1
10. Business Management 2
11. Jainology 1
12. History and Archaeology 1
13. Economics 1
14. Computer Science 1
15. Statistics 1
16. Physics (1-Nuclear, 1-Electronics) 3
17. Mathematics 1
18. Chemistry (1-Organic, 1-Inorganic) 2
19. Geography 1
20. Ocean Science 1 SC-4 (1 lady candidate), ST-1, GM-12 (4 lady candidates, 1 Ex-Serviceman), Cat. I-1, Cat. IIA-4 (1 lady candidate), Cat. IIB-1, Cat. III(A)-1 and Cat. IIIB-1.
21Director, KRI 1 Unreserved
22. Librarian 1 Unreserved Column No. 3 Sl.
No. Name of the Department No. of posts Reservation CURRENT POSTS OF READERS
1. Kannada 2
2. Hindi 1
3. Sanskrit 1
4. Marathi (I PG Dept., Belgaum, 1 Comparative Literature) 2
5. German 1
6. Urdu and Persian 1
7. Philosophy 1
8. Mahayogi Voman Studies 1
9. Law 4
10. Music 1
11. Political Science 4
12. A.I. History.
113. Sociology (1 PG Dept., Belgaum) 4
14. Library Science 1
15. Commerce 1
16. Education 1
17. History and Archaeology 1
18. Physics (2 Spectroscopy, 1 Radio, 1 Nuclear) 4
19. Chemistry (2 Inorganic, 1 Organic, 2 Physical) 5
20. Computer Science 1
21. Marine Biology 1
22. Geology 2
23. Sericulture 1
24. Botany 3
25. Zoology 2
26. Mathematics 1 SO-7 (2 lady candidates), ST-2 (1 lady candidate), GM-24 (7 lady candidates, 2 Ex-Servicemen, 1 Physically Handicapped), Cat. I-2 (1 lady candidate), Cat.
IIA-7 (2 lady candidates), Cat. IIB-2 (1 lady candidate), Cat. IIIA-2 (1 lady candidate) and Cat. IIIB-2 (1 lady candidate)
27. Director-Sports 1 Unreserved Column No. 4 Sl.
No. Name of the Department No. of posts Reservation CURRENT POSTS OF P.G. LECTURERS
1. Kannada Lecturer 6 SC-1, ST-1, 3-GM
1. Specialised in Sanskrit (1 lady candidate Cat. I-1)
2. Linguistics
3. Kannada Language and Veerashaiva Literature
4. Kannada Literature and Foklore Mass Communication
5. Lecturer
6. Lecturer-PG Dept., Belgaum
2. English Lecturer 1 SC
3. Marathi Lecturer (PG Dept., Belgaum) 2 SC-1, GM-1
4. Education Lecturer 4 SC-1, ST-1, GM-2 (1 lady candidate)
5. Economics Lecturer (2 PG Dept., Belgaum) 5 SC-1, ST-1, GM-2 (1 lady candidate)
6. Business Management Lecturer 1 SC
7.
Psychology -do- 1 SC 8. Anthropology Lecturer (1 Linguistic) 3 SC-1, ST-1, GM-1 9. History and Archaeology Lecturer 2 SC-1, GM-1 10. Music -do- 1 SC 11. A.I. History -do- 1 SC 12. Ambedkar Studies -do- 1 SC 13. Statistics Lecturer 1 SC 14. Ocean Science -do- 1 SC 15. Computer Science -do- 1 SC 16. Chemistry Lecturer (1 Physical, 2 Inorganic, 1 Bio-Chemistry, 1 Organic) 5 SC-1, ST-1 GM-1 (1 lady candidate) Cat.I-1 17. Zoology Lecturer 2 SC-1, GM-1 18. Botany -do- 2 SC-1, GM-1 19. Sericulture -do- 1 SC 20. Physics (Electronics) -do- 2 SC-1, GM-1 21. Sports Coach (2 Hockey, 1 Cricket, 1 Athletic) 4 SC-1, ST-1 GM-1 (1 lady candidate) Column No. 5 Sl. No. Name of the Department No. of posts Reservation CURRENT POSTS OF COLLEGE LECTURERS 1. Kannada Lecturer 2 SC-1, GM-1 2. English Lecturer 1 SC 3. Marathi Lecturer 1 SC 4. Education Lecturer 4 SC-1, ST-1, GM-1 (1 lady candidate) 5. Persian Lecturer 1 SC 6. Urdu Lecturer 1 GM 7. Urdu and Persian Lecturer 1 ST 8. Psychology Lecturer 2 SC-1, GM-1 9. Law Lecturer 1. SC 10. Anthropology Lecturer 2 SC-1, GM-1 11. Music (Tabala) Lecturer 2 SC-1, GM-1 12. Geography Lecturer 1 SC 13. Philosophy Lecturer 1 SC 14. Political Science Lecturer 1 SC 15. Statistics Lecturer 1 SC 16. Chemistry Lecturer (2 General, 4 Organic, 2 Physical) 8 SC-1, ST-1, GM-4 (1 lady candidate) Cat. I-1, Cat. IIA-1 17. Zoology Lecturer 2 SC-1 GM-1 18. Botany Lecturer 4 SC-1, ST-1, GM-2 (1 lady candidate) 19. Physics Lecturer 4 SC-1, ST-1, GM-2 (1 lady candidate) 20. Geology Lecturer 2 SC-1, GM-1 21. Mathematics Lecturer 1 SC
22. The Supreme Court in PGI of Medical Education and Research, Chandigarh and Others v K.L. Narasimhan, after referring to its various earlier decisions had held:
"In all these decisions, the ratio laid down by this Court in Arati Ray Choudhury case, supra, was followed. Reservation to a single cadre post, applying the rule of rotation of 40 point roster was held valid and constitutional. Clubbing of the posts carrying the same scale of pay or grade is also constitutionally permissible and accordingly clubbing of the single point post of Assistant Profes-
sors in various disciplines of the appellant carrying the same scale of pay and grade has been held to be constitutionally permissible".
23. The respondent-University appears to have kept in mind the Full Bench judgment of this Court in Dr. Rajkumar's case, supra, while issuing the advertisement notice by clubbing the posts wherever it was not possible to identify such posts separately for the purpose of reservation and such a course having been approved by the Supreme Court in PGI's case, supra, cannot be made a basis for quashing the advertisement notice as prayed for by the petitioners.
24. Reservations contemplated in favour of the SC, ST and other backward classes under Article 16 of the Constitution of India cannot be termed to be the rights conferred upon such categories to pray and insist for the reservation to an extent and in the manner they demand. The provisos to Article 16 only authorise the State for making laws or passing orders for the reservation of appointments to posts in favour of the SC, ST and other backward classes whenever it is found that such castes and classes are not adequately represented in the service under the State. It has to be kept in mind that the provisos to Article 16 are exceptions to the right of equality of opportunity in matters of public employment enshrined therein. The provisos authorise the State or the appointing authority to lay down such conditions of service and prescribe such procedure as is found to be conducive for the purposes of achieving the object of providing adequate representation to the SC, ST and other backward classes. Fazl Ali, J., while agreeing with the majority judgment in State of Kerala v N.M. Thomas, had observed that the reservations contemplated under Article 16 are required to be within the permissible limits and cannot be a cloak to fill all the posts belonging to a particular class of citizens resulting in infringement of Article 16 of the Constitution indirectly. Suitable limits of reservations depended upon the facts and circumstances of each case for which no hard and fast rules can be laid down nor can the matter be reduced to a methodical formula so as to be adhered to in all cases. The petitioner-society has no objection to the extent of the reservation made but is concerned only with the method of filling up the vacancies meant for reserved categories. The procedure prescribed or the method intended to be adopted for achieving the objectives of providing reservations to the reserved categories in terms of Article 16 of the Constitution cannot and should not be disturbed unless the same is shown to be against the spirit of Constitution and resulting in defeating the objectives sought to be achieved by making exception to the rule of equality in the matter of selection and appointments. Hyper-technical pleas cannot be permitted to be substituted for the cherished objectives intended to be achieved by the State for the purpose of making appointment out of the reserved categories. We find substance in the submission of the learned Counsel appearing for the University that the posts specified in column Nos. 2 and 3 noted hereinabove were less in number which necessitated their clubbing together and making reservation in the cadre instead of the category-wise post. Such a method can neither be held illegal in view of the provisos of sub-sections (4) and (7) of the Karnataka Act nor unconstitutional under Article 16. Such a method, when examined in depth, in fact appears to be for the benefit of the reserved candidates. Any candidate belonging to a reserved category is eligible to apply for and being considered against any post on the basis of his or her own merit along with other similarly situated reserved category candidates. Accepting the plea of the petitioners of specifying the posts which are intended to be permanently earmarked for the SC and ST candidates would amount to holding the candidates belonging to such categories not worthy and capable of applying for other better posts in the cadre as specified in column Nos. 2 and 3. We do not agree with the learned Counsel for the petitioner that posts in Kannada, Hindi, Urdu and such other subjects not considered important be permanently earmarked for the SCs and STs. Such a prayer cannot be termed to be asking for a relief in favour of the socially and educationally oppressed and depressed candidates. The prayer made appears to be against the interests of the reserved category candidates. We have been persuaded to take such a decision on being satisfied that none of the students belonging to any reserved category has complained of against the procedure adopted either before the Court or before the petitioner-society. Instead a candidate from the general category has filed W.P. No. 13005 of 1998 praying for similar relief. Granting relief to the writ petitioner in that case would amount to depriving the SC and ST candidates of their due share intended to be given to them in the matter of their employment. The impugned advertisement Annexure-J does not in any way suffer from any illegality or vice of constitutionality.
25. We are also of the opinion that the prayer of the petitioner challenging the Government Order dated 22-2-1994 is totally misconceived and liable to be rejected. There is no substance in the submission of the petitioner that the aforesaid Government Order was contrary to the decision of this Court in Dr. Rajkumar's case, supra. The Government Order dated 22-2-1994 Annexure-L reads as under:--
"PREAMBLE:
It has been brought to the notice of the Government that application of the roster prescribed in G.O. No. DPAR 28 SBC 86, dated 12-12-1986 in respect of posts of Professors and Readers in the Universities has resulted in a very large percentage of such posts being set apart for Scheduled Caste candidates only, where there is only one post of Professor/Reader in the subject concerned. This is due to the fact that the posts of Professors in each subject are stated as separate and distinct cadres for the purpose of recruitment. In new Universities where appointment is being made or the first occasion therefore all such single post cadres of Professors are being set apart for Scheduled Caste candidates only.
This matter has been examined. In order to ensure that there is a minimum representation of candidates belonging to Scheduled Caste/Scheduled Tribe/Other Backward Castes among the Professors and Readers in any University, it is considered necessary to treat all posts of Professors/Readers as the case may be as a combined unit for the purpose of reserving the appropriate number of posts for Scheduled Castes/Scheduled Tribes/Other Backward Castes in these posts also to the extent provided in Government Order No. DPAR 28 SBC 86, dated 12-12-1986.
GOVERNMENT ORDER No. DPAR 11 SBC 94, dated 22nd February, 1994 Government are pleased to direct that in the direct recruitment to the posts of Readers and Professors in the Universities, all posts of Readers/Professors as the case may be shall be clubbed and treated as a combined cadre for the purpose of application of the roster prescribed in Government Order No. DPAR 28 SBC 86, dated 12-12-1986. Candidates will be selected from the various reserved categories on the basis of inter se merit regardless of the subject concerned to the extent that posts have been reserved for each such category".
We agree with the reasoning given by the Government and do not find any illegality or unconstitutionality in it.
26. Under the circumstances this writ petition which has no merit and apparently is misconceived is hereby dismissed along with W.P. No. 13005 of 1996 which has been filed by a candidate belonging to the general category. Rule issued is discharged. As the petitioner in W.P. No. 34056 of 1996 appears to have unnecessarily prolonged its disposal and prevented the respondent-University from filling the posts which ultimately went against the selected candidates particularly the SC, ST and candidates belonging to other backward classes, we deem it proper to burden the petitioner in that writ petition with exemplary costs which are assessed at Rs. 5,000/- to be deposited in the State Legal Authority Fund.