Madras High Court
9/5 vs The Vice-Chancellor on 23 February, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.29909 of 2008, W.P.No.515 of 2009 and W.P.No.1215 of 2010 and connected Miscellaneous petitions Annamalai Palkalaikazhaga Ambedkar Asiriyar Sangam (AnnaAmSam) [Reg.No.10/2007] 9/5, Gandhi Nagar, Chidambaram 608 001 Rep. By its President Dr.R.S.Kumar ... Petitioner in W.P.No.29909 of 2008 Annamalai University Teaching and Non-Teaching Staff Welfare Association (Reg:Sl.No.39/2008) Annamalai Nagar 608 002 Rep. By its President R.Udaiachandran ... Petitioner in W.P.No.515 of 2009 Annamalai Palkalai Kazhaga Asiriyargal Munnetra Sangam (AUTPA) Rep. By its President Dr.C.Subramanian (Reg.No.41/2008) ... Petitioner in W.P.No.1215 of 2010 Vs 1.The Vice-Chancellor Annamalai University, Annamalai Nagar 608 002 Cuddalore District. 2.The Registrar, Annamalai University, Annamalai Nagar 608 002 Cuddalore District. ...Respondents 1 and 2 in W.P.No.29909/2008 and W.P.No.515/2009 3.Annamalai Palkalaikazhaga SC/ST Asiriyar Nala Sangam. (R3 impleaded as per order dated 05.10.2009 by MMSJ in M.P.No.1/2009 in W.P.No.29909/08) 4.Annamalai Palkalaikazhaga Adi Dravidar Matrum Palagkudinar Asiriyar Aluvalar Manavar Nala Sangam (R4 impleaded as per order dated 12.01.2010 by KCJ in M.P.No.2/2009 in W.P.No.29909/08) ... Respondents 3 and 4 in W.P.No.29909 of 2008 The Annamalai University, Rep. By its Registrar, Annamalai Nagar 608 002, Chidambaram Taluk, Cuddalore District. ...Respondent in W.P.No.1215 of 2010 W.P.No.29909 of 2008 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the entire records connected with the impugned notifications No.4/2008 (C) dt 19.11.2008 appeared in 'The New Indian Express' dated 24.11.2008 issued by the second respondent and the Addendum to the said Notification appeared in 'The New Indian Express' and in 'Dinamani' dated 10.12.2008 and quash the same and further direct the 2nd respondent to issue fresh notification calculating the backlog vacancies for SC/ST from the year 1989, category-wise and cadre-wise in all the 49 departments in the respondent-University strictly complying with Rule 22 of the Tamilnadu State and Subordinate Service Rules and the Tamilnadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and for appointments of Posts in the services under the State)Act of 1993. W.P.No.515 of 2009 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the entire records connected with the impugned notifications No.4/2008(C) dated 19.11.2008 appeared in the 'New Indian Express' dated 24.11.2008 and the Addendum to the said Notification appeared in the 'New Indian Express' and in 'Dinamani' dated 10.12.2008 and quash the same and further direct the respondents to issue fresh notification calculating the backlog vacancies for MBCs from 01.04.1989, category-wise and cadre-wise in all the 49 departments in the respondent - University strictly complying with Rule 22 of the Tamil Nadu State and Subordinate Service Rules and the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and for appointments of Posts in the services under the State)Act of 1993. W.P.No.1215 of 2010 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records of the respondent in connection with the impugned Notification No.4/2008 (C) dated 19.11.2008 'New Indian Express' English daily and quash the same. For petitioners in W.P.No.29909/2008 W.P.No.515/2009 : Mr.M.Radhakrishnan for Mr.S.Sathiachandran W.P.No.1215/2010 : Mr.M.Ravi For Respondents :Mr.R.Muthukumarasamy,S.C. Assisted by Mr.Jenasenan for R1 and R2 M/s.La Law for R3 and R C O M M O N O R D E R
In the first two writ petitions (W.P.No.29909/2008 and W.P.No.515/2009), arguments were heard and orders were reserved on 20.01.2010. It is at this stage, the third writ petition (W.P.No.1215 of 2010) came to be filed relating to the very same issue. Therefore, after hearing arguments, the third writ petition was also tagged along with the earlier writ petitions and a common order is passed.
2.In W.P.No.29909 of 2008, the petitioner is Annamalai Palkalaikazhaga Ambedkar Asiriyar Sangam, which is a registered Society with Registration No.10/2007. The said writ petition came to be filed challenging a notification No.4/2008 dated 19.11.2008 issued by the respondent University and as appeared in the daily newspaper 'The New Indian Express' dated 24.11.2008 and also the Addendum issued subsequently in the "New Indian express" dated 10.12.2008. They seek for setting aside the same and for the issuance of a fresh notification by calculating the backlog vacancies available for SC/ST candidates from the year 1989 onwards, category-wise and cadre-wise for all the 49 departments in the University and to strictly comply with Rule 22 of the Tamil Nadu State and Subordinate Service Rules as well as the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and for Appointments of posts in the services under the State) Act 1993.
3. By the impugned notification dated 19.11.2008, the respondent University had advertised for filling up backlog vacancies in SC/ST/MBC categories in respect of 33 departments. This included 24 posts of Professors and 33 posts of Readers, exclusively for Schedule Caste candidates.
4. When the matter came up on 18.12.2008, this Court directed the petitioner to serve notice on the learned Standing counsel for the respondent- Annamalai University and no interim order was granted as prayed for by the petitioners.
5. Thereafter, in M.P.No.1 of 2009 in W.P.No.29909 of 2008, a body by name Annamalai Palkalaikazhaga SC/ST Asiriyar Nala Sangam with registration No.20/08 got itself impleaded by orders dated 05.10.2009 as third respondent. In M.P.No.2 of 2009 in W.P.No.29909 of 2008, another body viz., Annamalai Palkalaikazhaga Adi Dravidar Matrum Palagkudinar Asiriyar Aluvalar Manavar Nala Sangam with registration No.1/2002 got itself impleaded on 12.01.2010 as fourth respondent.
6. On notice from this Court, the respondent- University had filed a counter affidavit dated 26.11.2009 for W.P.No.29909 of 2008
7. Thereafter, another Association with Registration No.39 of 2008 filed another writ petition being W.P.No.515 of 2009 seeking to set aside the very same notification and has sought for further direction to calculate the backlog vacancies for MBC candidates with effect from 01.04.1989, category-wise and cadre-wise for all the 49 departments. That writ petition was admitted on 12.01.2009. In the prayer for interim relief, only notice was ordered.
8. On notice from this Court, the respondents had filed a counter affidavit dated 11.12.2009 in W.P.No.515 of 2009.
9. Since these two matters were challenging the very same notification, they were directed to be heard together. Even when the matters were being heard, another Association by name Annamalai Palkalai Kazhaga Asiriyargal Munnetra Sangam (AUTPA) with registration No.41/2008 came to be filed challenging the very same notification and sought for quashing the same.
10. It is ironical that an Association representing the interests of the SC/ST employees (both teaching and non-teaching staff) chose to challenge a notification calling for applications for backlog vacancies only on the plea that the posts advertised were not complete and the backlog vacancies should be calculated from the year 1989. Till such time no recruitment for the backlog vacancies should be held. Though, they did not get any interim order, taking advantage of the pendency of the proceedings, the respondent-University for the reasons best known to them did not go through the recruitment process.
11. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the University is unable to give any precise reason for not going ahead with the selection process to fill up the 24 posts of Professors and 33 posts of Reader, exclusively reserved for Scheduled Caste candidates. It looks as if even the University is showing reluctance in fulfilling a constitutional mandate under an imperative based on social justice. This Court takes a serious view of the inaction on the part of the respondent- University in not proceeding with the selection process. Though Mr.R.Muthukumara Swamy learned Senior Counsel appearing for the respondent-University states that they are always prepared to fill up these backlog vacancies and if any direction is given by this Court, they will re-advertise those posts, having regard to the time lag taken place after the earlier notification. It is made clear such a direction from this Court is unnecessary, since it is for the University discharge its constitutional duty by filling up those posts. They need not wait for any green signal from this Court that too in the context of this Court not interdicted the selection process with any interim order.
12. The facts leading to the case are as follows:-Annamalai University is a Unitary University and are having approximately 21,000 students. It is claimed that there are 2527 SC/ST students studying in the University. It is also claimed that the total staff strength including Teachers of the University was 12,000. It is claimed by the University that there are 2624 teaching staff working in the University, but out of which only for 657 teaching posts grant has been given by the State Government. Originally a writ petition was filed by the petitioner-Association (in W.P.No.29909 of 2008) being W.P.No.16452 of 12008, seeking for a direction to the respondent-University to consider their representation regarding promotions to the post of Readers and Professors against the backlog vacancies meant for SC/ST. This Court after notice to parties on 05.09.2008 directed the University to consider their representation and pass appropriate orders.
13. It is pursuant to the said direction, the respondent-University gave the impugned notification dated 19.11.2008, identifying 33 Departments for the backlog vacancies and called for applications in respect of 24 posts of Professors and 33 posts of Readers. Similarly in respect of MBC vacancies, 11 posts of Professors and 5 posts of Readers were advertised by them.
14. It is rather unfortunate, on the competing claims of various Associations, the entire process of filling up of backlog vacancies have come to a stand still. When their action questioned as to how they could challenge the very notification which was in favour of the interest of their members, Mr.Radhakrishnan, appearing for S.Sathiachandran, learned counsel for the petitioner had no answer. If the functioning of the Associations are to be for the welfare of their members, they ought to have allowed the process of selection to proceed with and should have asked for the remaining posts towards backlog vacancies to be filled up. However, a third writ petition which came to be filed after all the arguments were over is intended to prevent recruitment solely based on backlog vacancies which is impermissible.
15. Mr.M.Radhakrishan, learned counsel appearing for the petitioner in the first two writ petitions submitted that there are 75 departments in the University. G.O.Ms.No.44 Adi Dravidar and Tribal Welfare Department dated 20.05.1998 clearly stipulates that in respect of Group 'A' to Group 'D' should be filled up by having the reservation in age in mind and appropriate rules should be made for making direct recruitment. In paragraphs 4 and 5 of the said order, it was directed as follows:-
"4. In order to achieve the objective stated in the above paragraph it has been ordered that appropriate rules be made wherever necessary in the service rules to incorporate the provisions for direct recruitment.
5. The Government direct that the Committee constituted under the chairmanship of the Minister for Adi Dravidar and Tribal Welfare in G.O.Ms.No.156 Adi Dravidar and Tribal Welfare Dated 13.09.1997 shall function as the empowered committee to assess whether the Scs/STs are adequately represented in various Government Departments, Government Undertakings, Universities and Institutions receiving Government aid. This Empowered Committee shall have the power to requisition and obtain necessary details from the Secretaries to Government, Heads of Department, Chief Executive Officers of Public Sector Undertaking, Vice Chancellors of Universities, recruitment agencies like the Tamil Nadu Public Service Commission, Tamil Nadu Uniformed Services Recruitment Board and Teachers Recruitment Board in the discharge of its functions. If necessary, the Committee shall also have the powers to invite them and have discussions in this regard."
16. Therefore, the learned counsel states that in the light of the order as well as on the basis of the 1993 Act made by the State Government, the posts should have been identified from the year 1989 and should have been filled exclusively for SC/ST. But with reference to the advertisement, it is stated that the advertisement did not indicate as to which are the Scheduled Caste vacancies and which are the Scheduled Tribe vacancies. Hence, the advertisements should be struck down and a fresh advertisement should be given. He also stated that the advertisement given is not an advertisement in the eye of law and filling up of entire backlog vacancies is a constitutional mandate. Therefore, the respondent University has no other option except to fill up those posts. It is the right of every SC candidate to seek for such appointments and they have a right to move this Court when such constitutional mandate was disobeyed.
17. The third respondent which is also an Association for the welfare of the SC/ST in the affidavit filed in support of their impleading petition in paragraphs 3 to 5 stated as follows:
'3.The petitioner states that the above call for is pursuant to the order by this Hon'ble Court wherein one of the SC/ST Association in WP No.16452 of 2008 directed to consider the representation of the SC/ST Association to fill up backlog vacancy and the 1st respondent had also in compliance of the order identified preliminary vacancies in 34 departments and advertised for the recruitment.
4.The petitioner states that the writ petitioner herein with ulterior motive had filed the writ petition against the interest of SC/ST candidates, which is condemned by federation of all the SC/ST Associations in the University consisting of 2000 teaching and non-teaching staff. The issue raised by the petitioner under a false pretext of claiming more vacancy than the advertised by the respondent and stalling the recruitment of the available vacancy which would benefit with the SC/STs is a clear case of colourful exercise of protection of SC/ST rights to bargain personal rights with the first respondent.
5.The petitioner states that there is no dispute that even if more vacancies as claimed by the petitioner is available and not pursued for filling up by the university would not give right to stall the existing vacancy announced for the benefit of SC/ST."
Similarly the fourth respondent had also reiterated the same view in their affidavit.
18. In response to the averments made by the first two petitioners, in the counter affidavit filed by the respondent University, it was stated that necessary action had been taken by the University to implement the directives issued by the State Government by the Government orders referred to above. Further, there are also promotions made on the basis of Career Advancement Scheme/Merit Promotion Scheme framed by the University Grants Commission and approved by the State Government without following any roaster. The University issued a notification dated 23.05.2008 inviting applications for the post of Readers and Lecturers in various disciplines. Pursuant to the writ petition filed seeking for filling up of the backlog vacancies, the said notification No.1/08 dated 23.05.2008 was withdrawn and a fresh notification was issued calling for applications for backlog vacancies. In respect of the Lecturer vacancy, a notification was issued on 08.09.2008 to fill up the backlog vacancies and posts were advertised. Subsequently, after the direction issued by this Court dated 05.09.2008, another notification in respect of backlog vacancies for Professors and Readers were advertised as per the Rules. But since the matter was sub judice, they could not pursue as already noticed. This is a spurious argument. It had facilitated the University from stalling the appointments. Subsequent to the advertisement dated 19.11.2008, one post of Professor of Horticulture and one post of Reader in Civil Engineering was also advertised for SC/ST candidates. It was also stated that all the Rules and Regulations framed by the Government in this regard have been scrupulously followed in filling up these posts.
19. In addition to that in the counter affidavit dated 11.12.2009 filed in W.P.No.515 of 2009, the respondent University further stated that out of 2624 staff members 45% belongs to Backward community and 28% belongs to Most Backward Community. For the demand that the backlog vacancies should be notified from taking into account the starting point as 1989, it was stated that the Government order even came to be issued only during 2000 and the vacancies cannot be calculated for 20 years. Further, it is also stated that the vacancies are identified based on the roaster point and not department wise or faculty wise. After identifying the backlog vacancies from 1998 as per the Government order, notification was also issued category wise and cadre wise in all the departments.
20. Mr.R.Muthukumarasamy, learned Senior Counsel stated that the details in respect of the appointments were available only from 1990 and therefore, the vacancies were identified from that year and the advertisements have been given in newspapers having an all India circulation.
21. After the orders were reserved Mr.M.Radhakrishnan, circulated a circular issued by the state Government dated 19.04.2002 to all the Universities and after referring to the case relating to the Madras University, wherein in paragraph 2,3 and 4, it was directed as follows:-
"2. In view of the High Court and Supreme Court orders, the University of Madras advertised the Lecturer vacancies treating each department as a single unit in accordance with the order of the Supreme Court. The latest orders for communal reservation/rotation in G.O.Ms.No.85 Personnel and Administrative Reforms Department dated 6.5.2000 and G.O.Ms.No.105 Personnel and Administrative Reforms Department, dated 20.06.2000 have been adopted by the Syndicate at its meeting on 10.7.2000 to identify the roster points in the above advertisement. Further for filling up of the posts Selection Committees have been constituted duly observing the Statutory provisions contained in Statute 7, Chapter 10 of Volume 1 of the University Calendar and also in confirmity with guidelines prescribed by University Grants Commission and Government of Tamilnadu with regard to the provisions for Chancellors nominee in its Selection Committees. The University has adopted the communal roster reservation for the teaching faculty of the University for the first time as per the statutory rules of the Government. Now, the University of Madras has also opened the communal roster reservation register for each department separately.
3.In an earlier communication in Government D.O.Letter No.68027/H1/91-16 dated 4.1.93 it has been instructed that the pooling should be done for cadre vacancies. Since the Supreme Court judgment takes priority and has come with the judgment in connection with the Madras University asking the University to follow the roster system taking each department as an individual unit for each cadre and not pooling each cadre for the whole University together.
4.I am to request you to kindly adhere the above said Supreme Court Judgment in your University and also to intimate the action taken so far in this regard to Government immediately."
22. According to the counsel, he had prepared a chart showing the number of SC candidates in the University as against the total post. Out of 291 posts of professors only 6 belongs to SC. Similarly out of 300 posts of Readers only 18 belongs to S.C. Similarly out of 2040 lecturers only 288 belongs to SC. Therefore, there is a need to fill up the existing vacancies even in respect of other department where there is no post held by the SC candidates in respect of Lecturer, Reader and Professor post and hence he prayed that a direction should be given to fill up the backlog vacancies in addition to the posts identified in the impugned order.
23. Mr.M.Ravi, learned counsel appearing for the petitioner in W.P.No.1215 of 2010 submitted that the notification dated 19.11.2008 calling for backlog vacancies for SC/ST candidates ought not to have been issued merely on the basis of Government circular. In respect of posts for which no aid has been received, the University unless adopts the resolution prescribing appointment to those posts cannot fill up those alleged backlog vacancies. It is further stated that reservation is applicable only to lowest level of post namely Lecturer level. Because of this move direct recruitment to these backlog vacancies, the existing teachers will be denied their promotional aavenues and the present attempt to fill up backlog vacancies is a meticulous intention to accommodate the interest of certain members belonging to different service association in the University. Since by virtue of the UGC circular, existing posts are now being redesignated, there is no necessity to go for any backlog vacancies recruitment.
24. In order to appreciate the rival contentions raised herein, it is necessary to refer to certain judgments of the Supreme Court which have bearing on this issued.
25. A Constitution Bench of the Supreme Court vide its judgment in M.Nagaraj v. Union of India reported in(2006) 8 SCC 212 dealt with the issue on identifying the posts for promotion and enforceability of the directives of the Government by the Courts. The following passages found in paragraphs 102,104,107 and 123 may be usefully extracted below:
"102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the width test and the test of identity. As stated hereinabove, the concept of the catch-up rule and consequential seniority are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, backwardness and inadequacy of representation. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word amendment connotes change. The question iswhether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh (I), Ajit Singh (II) and Indra Sawhney were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the right. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the width test, we do not find obliteration of any of the constitutional limitations. Applying the test of identity, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets formal equality and proportional equality. Proportional equality is equality in fact whereas formal equality is equality in law. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.
104. Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-second) Amendment Act, 2000. The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4).
107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between equality in law and equality in fact (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of guided power. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.
123. However, in this case, as stated above, the main issue concerns the extent of reservation. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."
26. Further, the Supreme Court in Union of India v. Pushpa Rani reported in (2008) 9 SCC 242, in paragraph 37 held as follows:-
"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
27. Once again the Supreme Court in Nair Service Society v. Dr. T. Beermasthan reported in (2009) 5 SCC 545 in paragraphs 48,55,56 observed as follows:-
48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block.
55. It may be mentioned that reservation provisions are enabling provisions. In other words, the State is not bound to make a reservation, but it is empowered to do so in its own discretion vide M. Nagaraj v. Union of India. In para 102 of the said judgment, the Constitution Bench of this Court observed: (SCC p.269) 102.The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. The same view has been taken in paras 107 and 123 of the aforesaid decision.
56. Different State Governments in the country may have different methods for providing reservations, and these will be valid as long as the method adopted by a particular State Government does not violate any constitutional provision or statute. It is not for this Court to decide on the wisdom or otherwise of the said method of reservation. This Court should exercise judicial restraint and not interfere with the same unless there is some clear illegality. In our opinion the method prescribed by the Rules made by the State Government suffers from no infirmity or illegality, and hence the High Court acted wrongly in allowing the writ petition."
28. In the light of the above, there can be no challenge to the action of the respondent-University in calling for applications to fill up the backlog vacancies as per the impugned communication. Hence, the challenge made in the third writ petition cannot be permissible.
29. With reference to the challenge to the notification by the SC/ST Association, it must be stated that merely because the ST vacancies are not mentioned that does not deny the case of the SC candidates in sending their applications. On the other hand, the prospectus issued along with the application will indicate the reserve category for which the posts had been advertised. Therefore, it is for the individual candidates to seek such details before making applications. The Association as a whole cannot stall candidates from making application to the said post.
30. Further a direction that the entire backlog vacancies should be identified right from the year 1989 also does not stand to reason in the light of the Judgment in Ajit Singh II v. State of Punjab reported in (1999) 7 SCC 209. The following passages found in paragraphs 18,28,31,32,38 and 39 may be usefully extracted below:-
"18. Nobody can deny that the above approach is the proper one while dealing with the reserved classes. The primary purpose of Article 16(4) and Article 16 (4-A) is due representation of certain classes in certain posts. However, we must bear in mind and not ignore that there are other provisions, namely, Articles 14, 16(1) and Article 335 of the Constitution which are also very important. The Constitution has laid down in Articles 14 and 16(1) the permissible limits of affirmative action by way of reservation under Articles 16(4) and 16(4-A). While permitting reservations at the same time, it has also placed certain limitations by way of Articles 14 and 16(1) so that there is no reverse discrimination. It has also incorporated Article 335 so that the efficiency of administration is not jeopardised.
28. We next come to the question whether Article 16(4) and Article 16(4-A) guaranteed any fundamental right to reservation. It should be noted that both these articles open with a non obstante clause Nothing in this Article shall prevent the State from making any provision for reservation.... (emphasis supplied) There is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4-A) on the other. There is no directive or command in Article 16(4) or Article 16(4-A) as in Article 16(1). On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963.
31. Unfortunately, all these rulings of larger Benches were not brought to the notice of the Bench which decided Ashok Kumar Gupta and Jagdish La and to the Benches which followed these two cases. In view of the overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4-A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provisions vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those articles so warranted. We accordingly hold that on this aspect Ashok Kumar Gupta, Jagdish Lal and the cases which followed these cases do not lay down the law correctly.
Power is coupled with duty
32. Learned Senior Counsel for the reserved candidates, Shri K. Parasaran however contended that Article 16(4) and Article 16(4-A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Reliance for that purpose was placed upon Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan and also on Julius v. Lord Bishop which case was followed by this Court in Commr. of Police v. Gordhandas Bhanji. We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran v. Union of India8 held that Article 16(4) conferred a discretion and did not create any constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reservation under Article 16(4) in certain Class I and Class II services. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused. Even in M.R. Balaji case the Constitution Bench declared that Article 16(4) conferred only a discretion. It is true that in Jagannathan case the three-Judge Bench issued a mandamus, after referring to Article 142, that the Government must add 25 marks to SC/ST candidates who had taken the SAS Examination for promotion as Section Officers and also that, in future, a reduced minimum marks must be provided and announced before the examination. The Court also observed that the Department had not passed orders as per a general OM of the Government dated 21-9-1977. But the attention of the Court was not drawn to the judgment of the Constitution Bench in C.A. Rajendran case and other cases to which we have referred earlier. Further, if the State is of the opinion that in the interests of efficiency of administration, reservation or relaxation in marks is not appropriate, then it will not be permissible for the Court to issue a mandamus to provide for reservation or relaxation. We also note that in Superintending Engineer, Public Health v. Kuldeep Singh, Jagannathan case was followed and reference was made to Article 16(4) and Article 16(4-A) and to the principle that where a power is coupled with a duty as in Julius v. Lord Bishop and Commr. of Police v. Gordhandas Bhanji the same could be enforced by the court. But we may point out that even in Kuldeep Singh case no reference was made to C.A. Rajendran and other cases. We, accordingly, hold that the view in Jagannathan and Kuldeep Singh cases that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be said to be laying down the correct law.
Balancing of fundamental rights under Article 16(1) and the rights of reserved candidates under Articles 16(4) and 16(4-A)
38. Krishna Iyer, J. also cautioned in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India (at SCC p.286, para 73) that care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse.
The learned Judge relied upon State of J&K v. Triloki Nath Khosa and State of Kerala v. N.M. Thomas. Krishna Iyer, J. stated in Soshit Karamchari case (para 102) that reservations cannot lead to an overkill. At p.301, His Lordship said: (SCC para 102) 102. The remedy of reservations to correct inherited imbalances must not be an overkill. In other words, affirmative action stops where reverse discrimination begins. (i) Efficiency of administration and Article 335
39. It is necessary to see that the rule of adequate representation in Article 16(4) for the Backward Classes and the rule of adequate representation in promotion for Scheduled Castes and Scheduled Tribes under Article 16(4-A) do not adversely affect the efficiency in administration. In fact, Article 335 takes care to make this an express constitutional limitation upon the discretion vested in the State while making provision for adequate representation for the Scheduled Castes/Tribes. Thus, in the matter of due representation in service for Backward Classes and Scheduled Castes and Scheduled Tribes, maintenance of efficiency of administration is of paramount importance. As pointed in Indra Sawhney4 the provisions of the Constitution must be interpreted in such a manner that a sense of competition is cultivated among all service personnel, including the reserved categories.
(ii) Reservation and effect of the roster-point reservation"
31. In the light of the above, all the three writ petitions will stand dismissed. No costs. Consequently connected miscellaneous petitions are closed.
32. However, a direction shall be issued to the respondent-University to re-advertise the posts covered by the impugned communication in accordance with law, within a period of four weeks from the date of receipt of a copy of this order and thereafter to proceed to fill up the vacancies in accordance with law without undue delay.
svki To
1.The Vice-Chancellor Annamalai University, Annamalai Nagar 608 002 Cuddalore District.
2.The Registrar, Annamalai University, Annamalai Nagar 608 002 Cuddalore District