Karnataka High Court
Smt. D. Vasantha Kamala W/O Sri V. ... vs State Of Karnataka By Its Secretary To ... on 17 November, 2006
Equivalent citations: 2007(4)KARLJ78, 2007 (1) AIR KAR R 233
Author: Anand Byrareddy
Bench: Anand Byrareddy
ORDER Anand Byrareddy, J.
1. The facts of the case are:
The fourth respondent society is said to be managing two Grant-in-Aid Institutions, namely Smt. Gangamma Hombegowda Girls' High School and Hombegowda Boys' High School. The petitioner had joined the services of the fourth respondent in the year 1970 as an Assistant Teacher at Hombegowda Girls' High School. It is the petitioner's case that in accordance with the rules made by the State Government, when more than one High School is managed by a single entity, a common seniority list has to be maintained and the two High Schools are to be treated as one for the purpose of seniority and promotions. The fourth respondent has published a seniority list of teachers working in the schools under its Management. The petitioner, who belongs to the General Merit category, is found at Serial No. 4 in the seniority list. The petitioner would state that in accordance with the amendment to the Karnataka Civil Services (General Recruitment Rules) 1977 (hereinafter referred to as 'the General Recruitment Rules' for brevity), in so for as posts in Karnataka Civil Services Cadres, for whom the General Recruitment Rules were applicable, the backlog of vacancies, which were lost to the Scheduled Castes and Scheduled Tribes in the matter of promotions, was to be computed from 23.4.1978. In the two High Schools under the Management of the fourth respondent after 27.4.1978, the following persons have been promoted as Head Masters and Head Mistresses:
Sl. No. Name Category Date of Promotion 1. Smt. Jayalakshmamma GM 04.06.1984 2. Smt. B.R. Shantha GM 24.05.1993 3. Sri K. Ramaiah SC 18.01.1996
It is the petitioner's case that she was promoted as Head Mistress with effect from 18.2.1994 against a clear vacancy. The Management had submitted the proposal to the official respondents for approval of the appointment. However, the same was refused on the ground that the backlog was required to be filled up and consequently, the petitioner, who was working as Head Mistress upto 18.1.1996, was reverted as Assistant Teacher, since the Government did not approve her appointment, and promoted one K. Ramaiah and his promotion was duly approved by the Government on 18.1.1996. The petitioner would further submit that Smt. B.R. Shantha, who was promoted as on 24.5.1993, retired from service on 31.5.2001 on reaching the age of superannuation. One Smt. Savitha Maganti had sought and was granted voluntary retirement with effect from 1.7.2001. Consequently, the petitioner is the senior-most Assistant Teacher in the High School under the fourth respondent Management. The governing body of the fourth respondent had, at its meeting held on 2.4.2001, resolved to appoint the petitioner as Head Mistress of Hombegowda Boys' High School with effect from 31.5.2001 in the vacancy which arose on the retirement of Smt. B.R. Shantha and accordingly the appointment was sent for approval to third respondent, and she was duly appointed as on 31.5.2001 as Head Mistress. The petitioner was relieved from Smt. Gangamma Hombegowda Girls' High School and she had reported for duty at the Boys' High School. Since the proposal for approval was kept pending, the Management had requested the Block Education Officer to permit the petitioner to sign the salary bills, pending such approval. By a memorandum dated 13.7.2001, the Deputy Director of Public Instructions, had approved the appointment of the petitioner on temporary in-charge basis, while also permitting her to sign the salary bills. However, the second respondent, by an order dated 30.7.2001, rejected the proposal submitted by the Management for approval of the appointment of the petitioner on the ground that the proposal is contrary to the roster. It was further clarified by the Block Education Officer that as per the 1979 roster, against the 2nd point, a Scheduled Tribe candidate had to be promoted and since this had not been done, the proposal for her promotion had been rejected, since the Department was of the view that no appointment could be approved unless the backlog was cleared. It is in this background that the present petition is filed.
2. Shri. P.S. Rajagopal, appearing for the petitioner would submit that in addressing the petitioner's case, it is relevant to peruse the following Government Orders:
1) G.O. No. DPAR 29 SBC 77 dated 27th April, 1978 - Ann.-B/18
2) G.O.NO. DPAR 22 SBC 79 dated 30th August, 1979 - Am.C/21
3) Notification DPAR 13 SRR 92 dated 1st April, 1992 -Ann. D/24
4) G.O.No. DPAR 10 SBC 97 dated 24th June, 1997 - Ann.E/25
5) G.O.No. DPAR 21 SBC 97 dated 3nd February, 1999 - Clause 5 And would highlight the fact that as per the Government Order G.O. No. DPAR 29 SBC 77 dated 27.4.1978, the Government, in order to make reservations in favour of persons belonging to Scheduled Castes and Scheduled Tribes in promotional vacancies, had directed that there shall be reservations for persons belonging to Scheduled Castes and Scheduled Tribes at 15% and 3% respectively, of vacancies to be filled up by promotion in all cadres up to and inclusive of the lowest category of Class I posts, in which there is no element of direct recruitment and if there is an element of direct recruitment, such element of direct recruitment shall not exceed 662/3%. And for purposes of calculating vacancies for persons belonging to Scheduled Castes and Scheduled Tribes, rotation of 33% vacancies shall be followed for each category of posts under each authority competent to order promotions. The rotation of vacancies ought to be in terms of the roster points indicated in the annexure to the said notification, and a running account would be maintained until the 33rd vacancy is reached. For example, if on the first occasion of promotion, 21 posts have been filled, on the next occasion of promotion, the classification will start from the 22nd point and so on. And that, if on any occasion of promotion, qualified and suitable Scheduled Caste or Scheduled Tribe candidates for whom vacancies are reserved are not available, such vacancies shall be filled by promotion of qualified and suitable persons from amongst others in accordance with the rules of recruitment. The vacancies lost to persons belonging to Scheduled Castes and Scheduled Tribes on account of such promotions shall not be carried forward and future vacancies shall be filled up according to rotation as indicated in the annexure to the order. By a further order bearing G.O.No. DPAR 22 SBC 79 dated 30th August, 1979, the roster indicates that the Government Order dated 27.4.1978 (supra) was substituted by providing for reservation of first and second vacancies in the roster in favour of persons belonging to Scheduled Castes and Scheduled Tribes, respectively. By a further notification DPAR 13 SRR 92 dated 1st April, 1992, in exercise of the powers conferred under Article 309 of the Constitution of India, Rule 8 of the Karnataka Civil Services (General Recruitment) Rules, 1977 was amended by insertion of the following proviso:
Provided that, notwithstanding anything in the rules of recruitment specially made in respect of any service or post, the backlog vacancies in the promotional quota shall be determined and implemented with effect from 27th April, 1978.
NOTE: The backlog vacancy means the extent of the number of vacancies available under the roster system up to the level of lowest category in Group-A post calculated from 27th April, 1978.
By a Government Order G.O.No. DPAR 10 SBC 97 dated 24th June, 1997, while reiterating the policy of reservation in State and Civil Services having been introduced in the year 1978 and in terms of the said policy, if on any occasion of promotion, qualified and suitable Scheduled Caste or Scheduled Tribe officials, for whom vacancies are identified, are not available, such vacancies could be filled by promotion of qualified and suitable persons from amongst others and the vacancies lost to Scheduled Caste and Scheduled Tribe candidates need not be carried forward. The amendment to Rule 8 of the Karnataka Civil Services (General Recruitment) Rules, 1977 referred to herein-above, was challenged before the Karnataka Administrative Tribunal (hereinafter referred to as 'the Tribunal', for brevity) by certain petitioners and the Tribunal, by its order dated 25.4.1994 had observed that the Rules were not unconstitutional. But in yet another application, the Tribunal had passed an order allowing the application and holding that the amended rule as being 'non-est'. The same was carried in appeal before the Supreme Court and the Supreme Court set aside the order of the Tribunal and directed the State Government to issue guidelines and operate the backlog and to indicate the manner in which the backlog vacancies are to be filled up and that whatever promotions have been given, would remain valid subject to laying down the guidelines and working out the backlog in the light of the guidelines provided thereunder and that all promotions will be subject to "fitment and adjustment" between the general candidates and reserved candidates, in their respective categories, in accordance with the guidelines and the Government therefore, by an order dated 24.6.1997, made the following order:
ORDER
8. In the fore-going circumstances, the Government are pleased to make the following orders:
(i) In the promotions made on or subsequent to 27.4.1978, in all cadres/services covered by the Government Order dated 27.4.1978, read at (1) above and the connected orders, the vacancies identified for Scheduled Castes and Scheduled Tribes but not filled by those respective categories for want of eligible persons and filled by others or kept vacant, shall be calculated and identified as backlog;
(ii) To clear the backlog so identified, in the roster attached to the Government Order dated 30.8.1979, read at (2) above, in addition to the points identified for Scheduled Castes and Scheduled Tribes, the following additional points shall also be identified for them as indicated below :-Scheduled Caste: 5, 9, 11, 18, 20,24, 26, 30 & 32 Scheduled Tribe: 16
(iii) All the promotions made against backlog with effect from 1.4.1992, in accordance with the amendment rule read at (3), above, shall be reviewed in accordance with this order and the promotions of Schedules Castes and Schedules Tribes shall be adjusted and fitted with reference to the roster points, annexed to this order along with the unreserved categories;
(iv) After effecting review of promotion and adjustment and fitment as indicated in item (iii) above, if some more persons belonging to the Scheduled Castes and Scheduled Tribes who have already been promoted against backlog cannot get adjusted due to want of adequate number of vacancies and as per the aforesaid roster points, such persons shall be adjusted and fitted in accordance with the procedure specified in item (iii) while effecting promotion in respect of future vacancies. Until such time, they shall be continued against supernumerary posts to be created by the concerned Administrative Department. For this purpose, the Secretaries to Government are hereby delegated the power to create supernumerary posts presuming the concurrence of Finance Department and to that extent the Government Order No. FD 1 TFP 96, dated 10.7.1996, shall to deemed to have been modified accordingly.
(v) While adjusting and fitting promises, as indicated in item (iii) and (iv) above, the inter-se seniority among the General category, the Scheduled Caste category and the Scheduled Tribe category shall be determined in accordance with Rule 4 or Rule 4A, as the case may be, of the Karnataka Government Servants (Seniority) Rules, 1957. The roster points are meant only for calculating the number of vacancies that become available for the different categories on each occasion and they do not determine the seniority;
(vi) Once the backlog in reserved category is cleared, from that stage onwards, the additional points on the roster, identified as per item (ii) above, shall be treated as unreserved.
9. All the Principal Secretaries/Secretaries to Government and Heads of Departments shall take action immediately in accordance with these guidelines and also issue suitable instructions to the appointing authorities coming under their administrative control to take similar action immediately.
10. This order is issued with the concurrence of Finance Department as conveyed in its U.O. Note No. : ACS & PS/FD 783/97 dated 7.5.1997.
By Order and in the name of the Governor of Karnataka, Sd/-
(ABDUL KHADEER)
Joint Secretary to Government,
D.P.A.R (Service Rules)
xxx xxx xxx
xxx xxx xxx
ANNEXURE
Reservation in promotion - Roster to clear the backlog.
1) SC 12) UR 23) UR
2) ST 13) UR 24) SC
3) UR 14) SC 25) UR
4) UR 15) UR 26) SC
5) SC 16) ST 27) UR
6) UR 17) UR 28) SC
7) SC 18) SC 29) UR
8) UR 19) UR 30) SC
9) SC 20) SC 31) UR
10) UR 21) SC 32) SC
11) SC 22) UR 33) UR
NOTE:
1. Existing roster : SC - 1, 7, 14, 21, 28
ST-2
2. Additional points : SC - 5, 9, 11, 18, 20, 24
26, 30, 32
ST-16.
3. Once the backlog is cleared, from that stage the additional points on the roster need not be given to Scheduled Castes or Schedules Tribes, as the case may be, and they should be given to unreserved category.
Sd/-
(ABDUL KHADEER) Joint Secretary to Government, D.P.A.R (Service Rules)
3. In this background, the counsel Shri. P.S. Rajagopal would submit that as could be seen, the matter of reservation in the matter of promotion had come into effect from 27.4.1978. The promotion was made on 4.7.1984. At that time, there was no eligible Scheduled Caste candidate, though the first roster point to be filled up by filling up a Scheduled Caste candidate. Therefore, in obedience to the Government order dated 27.4.1978, a General Merit candidate Smt. Jayalakshmamma was promoted on 4.6.1984 and her promotion was approved. Similarly the vacancy at Point No. 3 had to be fitted up by a Scheduled Tribe candidate. There was no Scheduled Tribe candidate available. Accordingly, in terms of the above order, the vacancy was filled up by promoting Smt. B.R. Shantha, a General Merit candidate, and though the notification dated 1.4.1992 was struck down by the Tribunal as noted herein-above at the relevant point of time at the instance of the Government, the third vacancy was filled up by promoting Shri. K. Ramaiah as on 18.1.1996, who is a Scheduled Caste candidate, in preference to the claim of the petitioner, who was senior to the said Ramaiah, by 15 years. He would therefore point out that there was no backlog vacancy available to a Scheduled Caste candidate. The only backlog vacancy, even if it can be contended that such vacancy was available, pertains to a Scheduled Tribe candidate and the only candidate belonging to Scheduled Tribe is only Smt. K. Bharathi, who is at Serial No. 35 and she was not even eligible for promotion as on the date of promotion. Even otherwise, under the 1977 roster, the present promotion, which is against roster Point No. 4, would go to an unreserved category and therefore, the promotion of the petitioner is valid and legal. The action of the respondents is hence without basis, in refusing to approve her appointment. In any event, the very notification dated 1.4.1992 was not applicable to the cadre in question and hence, the question of backlog itself would not arise.
4. He places reliance on the following notifications:
1) G.O. No. DPAR 29 SBC 77 dated 27th April, 1978
2) O.M. No. DPAR 29 SBC 77, dated 1.6.1978
3) O.M. No. DPAR 29 SBC 77, dated 24.7.1978
4) G.O. No. DPAR 22 SBC 79 dated 30th August, 1979
5) Circular No. DPAR 05 SBC 80, dated 19.1.1980
6) G.O. No. DPAR 50 SBC 92 dated 11.5.1993
7) G.O. No. DPAR 10 SBC 97 dated 24th June, 1997
8) G.O. No. DPAR 21 SBC 97 dated 27.10.1997
9) G.O. No. DPAR 21 SBC 97 dated 11.11.1997
10) G.O. No. DPAR 21 SBC 97 dated 14.7.1998
5. The Government, by an order dated 3.2.1999, while referring to the order of the Supreme Court in the case of Indra Sawkney v. Union of India , wherein it is held that reservation of appointments or posts under Article 16(4) of the Constitution of India, cannot extend to providing reservation in the matter of promotions and directed that wherever it is already provided, such reservation may continue in operation for a period of five years from the date of the judgment, that is, 16.12.1992 within which period, the relevant provisions should be revised, modified or reissued, to achieve the objective of Article 16(4) of the Constitution. Subsequent to the said judgment, the Constitution of India was amended by the Constitution (Seventy Seventh Amendment) Act, 1995, dated 17th June, 1995, whereby Clause (4A) was inserted in Article 16. This clause enabled the State to provide for reservation in matters of promotion to any class of classes of posts in the services of the State in favour of Scheduled Castes and Scheduled Tribes, which, in the opinion of the State, are not adequately represented in the service under the State. And, owing to the fact that the Supreme Court has passed several other judgments subsequent to Indra Sawhney (supra), the Government thought it fit to reissue the policy of reservation with necessary modifications and ordered that reservation in promotion in favour of persons belonging to Scheduled Castes and Scheduled Tribes to the extent of 15% and 3%, respectively, of the posts in a cadre upto and inclusive of the lowest category of Group A posts in each Services and the Department in which there is no element of direct recruitment. Such element of direct recruitment does not exceed 662/3 shall continue to operate. The reservation of promotion in favour of the Scheduled Castes continue to operate till such time as their representation in a cadre reaches 15% and the Scheduled Tribe candidate shall continue to operate till such time their representation in a cadre reaches 3%. Thereafter, the reservation in promotion shall be continued only to maintain the representation to the extent of the aforesaid percentages for the respective categories. The percentages as aforesaid shall be determined with reference to the working strength in a cadre. And, promotion to persons belonging to Scheduled Castes and Scheduled Tribes against backlog to be accorded only if in a cadre their representatives fall below the percentages referred to herein-above, and shall be limited to the extent of the short-fall. That promotions made against backlog vacancy shall be taken into account for calculating the percentage of representations as above. Subject to these conditions, the operation of the roster in so far as relating to reservation and promotion shall be continued from the point up to which it has been operated as on the date of the order till the percentage of the representation of the persons belonging to Scheduled Castes and Scheduled Tribes reaches 15% and 3%, respectively.
6. The counsel would place reliance on the following authorities:
Dr. Chakradkar Paswan v. State of Bihar and Ors. : Wherein, the he facts of the case are as follows:
In the State of Bihar, in the Directorate of Indigenous Medicines, there were three classes of posts sanctioned, namely, (1) Director of Indigenous Medicines, (2) Deputy Director (Homoeopathic) and (3) Deputy Director (Unani). Later, the post of Deputy Director (Ayurvedic) had also been added. The post of Director was the highest in the Directorate. The posts of Director and Deputy Directors in the Directorate, did not belong to a unified Grade. The pay scales of the Director and those of Deputy Directors were different, - that of the Director being higher. Although the pay scale of all the three Deputy Directors was identical, the posts were filled by doctors belonging to different branches of indigenous medicines. By way of a Circular, the State Government of Bihar prescribed a 50 point roster to implement the policy of reservation to posts and appointments for members of the backward classes under Article 16(4) of the Constitution of India. And, it was laid down that if in any grade there is only one vacancy for the first time, then it would be deemed to be unreserved and for the second time also, if there is only one vacancy, then it would be deemed to be reserved. For the purpose of determining the quantum of reservation according to the roster, the Government grouped together all the Class I Posts namely, the Director as well as the Deputy Directors and as the post of the Director had already been filled up treating it to be unreserved, the second post, namely that of the Deputy Director (Homoeopathic) was treated as reserved. Accordingly the State Public Service Commission invited applications from Scheduled Castes candidates for selection. The State Government appointed the appellant before the Supreme Court, as a member of the Scheduled Caste, to the post of Deputy Director (Homoeopathic). A general candidate, who was overlooked, challenged the same before the High Court. The High Court allowed the petition and the appointment was quashed. In appeal before the Supreme Court, the Supreme Court held, that in service jurisprudence, the term 'cadre' has a definite legal connotation. ft is not synonymous with 'service'. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties, carry the same responsibilities or draw the same pay. The posts of the Director and those of the Deputy Directors constitute different cadres of the Service, and hence, the first vacancy in the cadre of Deputy Directors was that of the Deputy Director (Homoeopathic) and it had to be treated as the first vacancy of the Deputy Director (Homoeopathic), a candidate belonging to the Scheduled Caste had therefore to compete with others. And, in so far as the three posts of Deputy Directors of Homoeopathic, Unani and Ayurvedic are distinct and separate as they pertain to different disciplines and each one is an isolated post even if they are carried in the same cadre, and that there can be no grouping of isolated posts even if they are carried on the same scale. In making reservations for Scheduled Castes and Scheduled Tribes, the roster must be followed point-wise for the purposes of vacancies for which reservation has been made and the carry forward rule must be so applied that in any particular year, there is not more than 50 per cent reservation - in that, the whole concept of reservation for application of 50 point roster is that there are more than one post and the reservation as laid down by the Supreme Court in M.R. Balaji's case (Mr. Balaji v. State of Mysore ) can be upto 50 per cent. If there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up of future vacancy in respect of that post. A reservation which would come under Article 16(4) of the Constitution pre-supposes the availability of at least more than one post in that cadre. No reservation could be made under Article 16(4) of the Constitution so as to create a monopoly, and accordingly dismissed the appeal.
Dr. Rajkumar v. Gulbarga University (Full Bench of the Karnataka High Court). In dealing with a case wherein the petitioner had questioned the legality of the notification issued by the Gulbarga University inviting applications for selection for appointment to 35 teaching posts on the establishment of the University on the ground that out of 35 posts, as many as 33 posts were reserved to persons belonging to backward classes and in which, two posts were reserved for General Merit and therefore, the reservation was violative of Articles 14 and 16 of the Constitution. A Full Bench of this Court summed up the legal position as follows:
35. To sum up our conclusions on questions of law arising for consideration in this case are:
(1)(a). The ratio of the decision in Balaji's case laying down that speaking generally a special provision for reservation of posts in the services of the State in favour of persons belonging to backward classes not adequately represented in the services of the State, to be made by the State under Clause (4) of Article 16 of the Constitution should be less than 50 per cent and how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case continues to be the binding law declared by the Supreme Court. The view taken by a Division Bench of this Court in Somashekarappa's case that the aforesaid ratio of the decision in Balaji's case was no longer valid in view of the decision of the Supreme Court in the case of State of Kerala v. N.M. Thomas is not correct, as is evident from the three subsequent decisions of the Supreme court in A.B.S.K. Sangh v. Union of India, K.C. Vasantha Kumar v. State of Karnataka and in the case of Chakradhar v. State of Bihar.
(b) Applying the above principle, reserving of only post in any cadre under Article 16(4), which amounts to cent per cent reservation, is impermissible as ruled by the Supreme Court in the case of Chakradhar.
(2) The general principle that the reservation must always be less than 50 per cent cannot be invoked to a case in Which a farther attempt is being made by the State for filling up vacancies reserved in favour of reserved category remaining unfilled at a recruitment for want of candidates belonging to reserved category or against vacancies equal to the number of vacancies de-reserved at a recruitment, though all such vacancies are made available only to persons belonging to reserved categories. Such an action would hot be violative of Articles 14 and 16(1) of the Constitution.
(3) If in a given cadre there are number of vacancies available for general merit as well as for backward classes, the posts available for the general category and for reserved category should be advertised together and there can be no exclusive recruitment only for the posts reserved for backward classes. Advertising of only the posts available for reserved category keeping back the posts available for open competition would be violative of Articles 14 and 16(1) of the Constitution.
In R.K. Sabhanval and Ors. v. State of Punjab and Ors. The petitioners in the case were general category members of Punjab Service of Engineers Class I, and the respondents were members of Scheduled Castes. The Punjab Government had provided reservations for Scheduled Castes and backward classes in promotions to and within Class I and II services within State Government and it provided that 16% of the posts would be filled up by promotion, which were to be reserved for members of the Scheduled Castes and Backward classes, subject to the conditions that the persons to be considered must possess the minimum necessary qualifications and they should have satisfactory record of service. The respondents, who were well below the petitioners in the seniority list, were promoted superseding the petitioners. It was in these circumstances that the petitioners had challenged the notifications issued by the Government of Punjab. One of the points that was raised in support of the petition was that when once the posts earmarked for Scheduled Castes, Scheduled Tribes and Backward classes on the roster are filled, the reservation is complete. The roster cannot operate any further and it should be stopped. Any posts falling vacant in a cadre thereafter, is to be filled from the category reserve or general due to retirement etc., of whose member the post fell vacant. In considering this point, the Supreme Court held as follows:
5. We see considerable force in the second contention raised by the learned Counsel for the petitioners. The reservation provided under the impugned Government instructions are to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Scheduled Tribes and Backward classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts" are reserved for members of the Scheduled Caste and Backward classes. In a lot of 100 posts those falling at serial numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7, 15, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate base on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.
6. The expression "posts" and "vacancies" often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the Vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation.
7. When all the roster-points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. Jeevan Reddy J. speaking for the majority in the Indra Sawhney v. Union of India observed as under (Para 96):
Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and other Backward Classes in 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e. 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say the number of members of OBCs in the unit/service/ category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500 i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by Clause (1) is to each individual citizen of the country while Clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be.
Post Graduate Institute of Medical Education & Research, Chandigarh 1998 (4) SCC 3. The question before the Constitution Bench of the Supreme Court which decided this case was, whether in a single post cadre, reservations for Scheduled Castes and Scheduled Tribes and Other Backward Classes can be applied either directly or through the roster in which vacancies are rotated amongst the general category and reserved category candidates. The Supreme Court held, that in a single post cadre, reservation at any point of time, on account of rotation of roster, is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the members of the public. Such total exclusion of the general members of the public and cent per cent reservation for the backward classes is not permissible under the constitutional framework. Until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation, by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such posts whenever such reservation is to be implemented. The device of rotation of roster in respect of a single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such posts is kept out of bounds to the members of a large segment of the country, who do not belong to any reserved class, but on some other occasions, the post will be available for open competition, when in fact, on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society. The view taken in Chakradhar Paswan's case (supra) was approved, that there cannot be any reservation in a single post cadre. The decisions to the contrary in State of Bihar v. Bageskwari Prasad 1995 Supp. (1) SCC 432, Union of India v. Madhay and Union of India v. Brij Lal Thakur , upholding reservation in a single post cadre, either directly or by the device of rotation of roster, was not approved. And, the earlier judgment of three-Judge Bench in Post Graduate Institute of Medical Education and Research , was set aside. And, further, the Supreme Court held that there is need for reservation for the members of the Scheduled Castes and Scheduled Tribes and other Backward Classes and such reservation is not confined to initial appointment in a cadre but also to the appointment in a promotional post. It cannot however be lost sight of that in the anxiety for such reservation for the backward classes a situation should not be brought about, by which the chances of appointment are completely taken away in so far as other segments of the society are concerned, by making such a single post cent per cent reservation for the reserved categories, to the exclusion of other members of the community even when such member is senior in service and is otherwise more meritorious.
7. Reliance was placed on S.R. Murthy v. State of Karnataka and Ors. : which was rendered following the Post Graduate Institute of Medical Education and Research (supra).
And on U.S. Gour v. Union of India and Ors. 2002 SCC (L & S) 267: In a situation where out of three posts, one was occupied by a general candidate and another by a Scheduled Caste candidate. The Supreme Court held that the third post could not again go to a reserved candidate.
In State of U.P. and Anr. v. Pawan Kumar Tiwari and Ors. (2005) 2 SCC 10: While applying the principle of rounding off the percentage of reservation in the Scheduled Tribe category, the figure of 46.50 was rounded of to 46. In the result, the total number of vacancies which were 93 and consequent upon the allocation of reservation and as a result of the calculation done by the appellants, only 46 seats were available for general category candidates and 47 were reserved seats, which resulted in the reservation exceeding 50% and the Supreme Court, while agreeing with the High Court that the figure 46.50 should have been rounded off to 47 and not to 46, since the rule of rounding off based on logic and common sense is - if a part is one - half or more, its value shall be increased to one and if a part is less than half, then its value shall be ignored, and accordingly in respect of candidates of general category were to be considered for 47 and not 46.
State of Karnataka and Ors. v. K. Govindappa Writ Appeal No. 3125/05 (S-Pro) disposed of on 27.1.2006) which has been rendered following the judgments in Dr. Chakradhar Paswan's case and Dr. Rajkumar's case, supra.
The Counsel would hence contend, that as already stated, a single seniority list was maintained by the Management in respect of two institutions and the post of Head Master having been filled by a Scheduled Caste candidate, the present post could not have been filled by reservation for Scheduled Castes, Scheduled Tribes or Backward Classes, as it would then result in a 100% reservation, - whether the Head Master's post is treated as a cadre consisting of two posts or whether it is considered as a solitary post, by the token of reasoning in the aforesaid judgments. And, that the contention of the respondents that since the second point in the 1979 roster, which has been assigned to a Scheduled Tribes candidate and which has not been filled up accordingly, was a backlog vacancy and that unless the same is cleared the petitioner could not be promoted to the said post, is a misconception. And, the only Scheduled Tribe candidate being at Serial No. 35 in the seniority list, who is not even eligible for promotion, would render the application of the roster wholly unworkable, apart from causing injustice to the petitioner.
8. Per contra, the counsel for the State, would submit that though the petitioner had been permitted to discharge the duties of Head Mistress on in-charge basis, her appointment could not be approved, since the roster has not been followed and that the respondent Management has failed to follow the Government Orders dated 27.4.1978 and 30.8.1979 and that subsequent to 1992, the roster system has been made applicable even to Institutions which are privately managed. Since it is an admitted position that the Management has not filled up the vacancy available to a Scheduled Tribe candidate, at roster point No. 2, it is incumbent on the Management to reconsider the promotion in favour of such a candidate. And, hence, the impugned action of the respondent Department, cannot be said to be illegal and especially in the light of the directions issued by the Supreme Court, as stated herein-above, and as recorded in the Government Order dated 24.6.1997, all promotions are subject to "fitment and adjustment" between the general candidates and reserved candidates in the respective categories and hence, there was no impediment for the Management to make appropriate "fitment" of a Scheduled Tribe candidate, who has not been promoted to the roster point No. 2 from inception.
9. By way of reply, the counsel for the petitioner would urge, that such promotion of a Scheduled Tribe candidate would result in 100% reservation and it is not permissible. Secondly, the "fitment and adjustment" which the Government seeks to suggest, is pressed into service out of context and is totally impracticable of application. In terms of the roster under the Government Order of 1997, the fourth point is for an unreserved candidate and hence, it is not clear as to the manner in which it is contended that there should be reconsideration of promoting a Scheduled Tribe candidate at this point of time.
10. On these rival contentions, that in the light of the fact that the Government order dated 27.4.1978 is concerned, at para 8 it is stated all institutions receiving grants or aid from the Government, other than the educational institutions established and administered by minorities, shall also be required to make reservation in employment under them in accordance with the provisions of that order, in the light of which, reservations in the promotions ought to be made in accordance with the provisions of the order and by virtue of the fact that admittedly a common seniority list is maintained in so far as the two institutions managed by the fourth respondent are concerned, and even if it is assumed that the cadre of Head Master consists of two posts, the admitted fact that one of these posts is filled by a Scheduled Caste candidate and the promotional post which is required to be made is against the fourth roster point, which is meant for an unreserved candidate, the question of filling the same by a Scheduled Tribe candidate since the second roster point has not been filled up, and that no appointment has been made against the backlog in respect of Scheduled Tribe candidate and therefore, notwithstanding the next roster point at No. 4, which is for an unreserved candidate, it ought to be filled up by promoting a Scheduled Tribe candidate, cannot be accepted. The contention that the backlog vacancies ought to be "adjusted and fitted" in the present circumstances, would result in both the posts of Head Master being filled up by a Scheduled Caste and Scheduled Tribe candidate, respectively.
This situation therefore, is not desirable having regard to the law as laid down. Hence, the Department was not justified in holding that the appointment of the petitioner could not be approved for reasons stated. The direction of the Supreme Court requiring "fitment and adjustment" between the general candidates and the reserved candidates, cannot be understood to mean that at roster point No. 4, which is for an unreserved candidate, in place of an unreserved candidate, a reserved candidate, who is not eligible for promotion, can be accommodated from the seniority list, in order to clear the backlog vacancy. Hence, there was no tenable reason for the respondents to have rejected the application seeking approval of the petitioner's appointment.
11. The petition is accordingly allowed. The impugned Annexures, Annexure "M" and Annexure "P' are quashed. The respondents Nos. 1 to 3 are directed to approve the appointment of the petitioner as Head Mistress of Hombegowda Boys' High School, Bangalore with effect from 31.5.2001 with all consequential benefits. The respondents shall comply this order within a period of six weeks from the date of receipt of a copy of this order.