Indian Kanoon - Search engine for Indian Law

In the light of the above scheme and the Regulations, the question arises is: whether the reservation in appointment to the posts of Assistant professors in various disciplines in the Institute is violative of Articles 14 and 16 (1) of the Constitution? The High Court has relied on the judgement of Dr. Chakradhar Paswan vs. State of Bihar [ AIR 1988 SC 959] to deny the rights to the Dalits and Tribes. The controversy is no longer res integra. In Union of India & Anr. vs. Madhav s/o Gajanan Chaubaal & Anr. [(1997) 2 SCC 332], this court has considered the entire case law on the subject. The question therein was: whether in a single post cadre, namely, Secretary, applying the rule of rotation and application of 40 point roster to successive vacancies is violative of Article 16(1) and 14 of the Constitution? In para 10, this Court had held that "[Thus, we hold that even though there is a single post, if the Government have applied the rule of rotation and the roster point to the vacancies that had arisen in the single point post and were sought to be filled up by the candidate belonging to the reserved categories at the point on which they are eligible to be considered, such a rule is not violative of Article 16(1) of the Constitution". In that case, the post of Secretary carrying the pay scale of Rs.1200-2400/- was a single post cadre. The Government applied 40 point roster for the post of Secretary. The vacancy available at the time of point No. 4 of the roster was reserved for Tribal. The Tribunal had set aside the appointment order on the ground that it amounted to 100% reservation, violating Article 14. While reversing the order of the Tribunal, this Court has applied the rule of rotation and roster and upheld the appointment by reservation in a carry forward post and followed the ratio of the Constitution Bench decision in Arati Roy Choudhary v. union of India [(1974) 2 SCR 1]. In State of Uttar Pradesh vs. Dr. Dina Nath Shukla & anr. [JT 1997 (2) SC 467=1997(3) Supreme Today 386], the question arose whether pooling of all the posts in similar grade or category for application of the rule of reservation and rotation is valid in law? The University, applying the Uttar Pradesh Public Services (Reservation for Scheduled Castes Scheduled Tribes and OBC)Act, 1994, advertised for appointment of the posts of professors and Lecturers treating the post as one unit; recruitment was made applying the rule of rotation for the Dalits, Tribes and OBCs in respect of all the posts. The Division Bench of the High Court had set aside the notification on the ground that it was violative of Articles 14 and 16(1) of the Constitution. This Court reversed the judgement of the High Court following Madhav's case and R.K. Sabharwal & Ors . vs. State of Punjab & ors. [(1995) 2 SCC 745] relying on the Arati Roy Choudhary's ratio of the Constitution Bench. It was held in paragraph 14 as under:

Accordingly, the appeal was allowed. In Union of India & Ors. vs. Brij Lal Thakur [JT 1997(4) SC 195], the post of E.C.G. Technician in the grade of Rs.1200-2040/- was a single cadre post in Central Hospital, Northern Railway. The rule of rotation and 40 points roster was applied. The appellants therein selected the reserved candidate. The Same was questioned by the general candidate. The Tribunal Held that since it was solitary post, reservation amounted to 100% reservation and was, therefore, unconstitutional. Reversing the judgment and reiterating the law laid down in Madhav's case and State of Bihar vs. Bageshwari Prasad [1995 Supp. (1) SCC 432], this court had held that to the single post of E.C.G. Technician, application of 40 point roster and rule of rotation was not violative of Articles 14 and 16(1) of the Constitution. The Promotion was held to be legal and valid. Same was the question in Bageshwari Prasad case. In State of Punjab & Ors. vs. G.S.Gill & Anr. [CA 3005/97 decided on March 27, 1997], the single cadre post of Assistant superintendent, Quality Market Centre (Textile) was reserved for Dalit candidate applying rule of rotation and the roster. The High Court set aside the promotion as violative of Article 14. Reversing that judgment, it was held that " thus, it is settled legal position that application of roster to single post cadre and appointment by promotion to carry forward post is valid and constitutionl. With a view to give adequate representation in public service to reserved category candidates, the opportunity given to them is not violative of Articles 14 and 16(1) of the Constitution". In Shri Suresh Chandra vs. Shri J.B. Agarwal & Osrs. {CA No. 3081/97 decided on April 4, 1997], the post of Assistant Manager (Electrical() carrying the pay scale of Rs.1000-1600/- was the feeder channel for promotion to Senior Manager. When the rule of rotation and reservation was applied, the Tribunal declared the reservation as violative of Article 14. Reversing the order of the Tribunal, this court has held that the reservation to single post cadre is not violative of Articles 14 and 16 of the Constitution. The contention of the counsel for the respondent that Madhav's case requires reconsideration in view of Chetana Dilip Motgnare v. Bhide Girls Edn. Socy., Nagpur & Ors. [(1985) supp. 1 SCC 157] was rejected.

In all these decisions, the ratio laid down by this Court in Arati Ray Choudhury case was followed. Reservation to a single cadre post, applying 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 professors in various disciplines of the appellant carrying the same scale of pay and grade has been held to be constitutionally permissible.

Shri Rao then contended that this Court in Madhav's case has noted the ratio of Sabharwal' case, upholding the right to reservation in promotion but it relates only to the post and not vacancy and that, therefore, in Madhav's case, the distinction was not considered. Accordingly, it requires reconsideration. We find no force in the contention. In every direct recruitment, appointment is only to the vacant post. Equally, when appointment by promotion is made, it is only to the vacant post. The `vacancy' and `post' are usually used interchangeable. When roster is applied and rule of reservation is implemented, it should be in conformity with the roster by the prescribed procedure and appointments of the reserved candidates by the direct recruitment or by promotion would always be only to vacant post ear-marked in the roster to the general candidates. Only in a single post cadre by fiction of law successive vacancies are treated as vacant post as per the roster applying the rule of rotation to vacancies and they are filled up as per the roster. This principle guarantees equality of opportunity to the Dalits and Tribes to occupy the higher echelons of service. Otherwise it would be a reverse case of total denial of opportunity to them violating Article 14, 15(4), 16(1) and 16(4A) read with Article 335. Sabharwal's case does not deal with this aspect of the case as it did not arise therein. Therefore, there is no infirmity either in the judgment in Madhav's case nor is there any inconsistency with Sabharwal's ratio. In fact, Sabharwal's ratio is applicable per force. The fact is that appointment to a post by promotion is also a constitutionally permissible right under Article 16(4A). This Court has observed in Sabharwal's case that the roster should be operated on current account basis in the order in which the vacancies are required to be filled in. No doubt, this Court pointed out that once roster points are filled up, the roaster gets exhausted but, in the latter paragraph, it was pointed out that re-cycling would start after the roster points are totally filled up. It was held by this court, in paragraph 10, while pointing out the anomaly, that "on the contrary, if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancy falling in the cadre are to be filled up by the same category of persons whose retirement etc. caused the vacancies, then the balance between the reserved category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserved candidate at the roster point, it would be open to the State Government to carry forward the point in a just and fair manner." Thus it would be apparent that once the roster point is exhausted, it does not mean that reservation should not be applied thereafter. The recycling of the roster starts running like current account and as and when vacancy arises in accordance with the roster point, the posts/vacancies would subsequently be filled up by appointment. It would be a continuous process.