Indian Kanoon - Search engine for Indian Law

1st vacancy to promotee, 2nd vacancy to promotee, 3rd vacancy to promotee, 4th to direct recruit, 5th, 6th and 7th to promotees, 8th to direct recruit, 9th, 10th and 11th to promotees, 12th to direct recruit; 13'th, 14th and 15th to promotees and the 16th to direct recruit.

Consequently, the said vacancy was advertised for being filled up by direct recruitment. That brought the respondent to the High Court by way of writ petition. His contention in the writ petition was that in the light of the Constitution Bench judgment of this Court in R.K. Sabharwal and Ors. v. State of Punjab and Ors., [1995] 2 SCC 745, as there were total five posts in the cadre of Professors of Ophthalmology 75% thereof, namely, 3.75 posts had to be reserved for promotees and 1.25% of the remaining posts had to be reserved for direct recruits. Rounding up these figures by taking digits upto ,50 as nil and beyond .50 as 1, four posts in the said cadre had to be filled in at a given point of time by promotees and one post had to be filled in by direct recruitment and as at the time when the vacancy arose by retirement of Dr. S.S. Rudra, there was already one direct recruit holding the post of Professor, the vacancy in question had to go to the departmental promotee as he was the senior most Assistant Professor in the Department of Ophthalmology. His claim to be promoted to the said post should have been processed in accordance with law and the said post should not have been advertised for direct recruitment This contention of the respondent was accepted by the Division Bench of the High Court by its impugned judgment dated 20th August, 1997, The High Court noted that as Dr. S.S. Shergill is already working as a Professor in the Department of Ophtalmology as a direct recruit the vacancy in the post in question must go to a promotee as there were only three promotee Professors occupying the posts of Professor in the department at the relevant time. Thus, there was a clear vacancy of 1 post for promotee in the said cadre of 5 posts of Professor. The fifth post, therefore, had necessarily to be filled in by promotion. The writ petition filed by the respondent was, therefore, allowed and the advertisement dated May 10, 1997 issued by the appellant- State for filling up the post of Professor in the Department of Ophthalmology by direct recruitment was quashed and set aside. The appellant-State and its authorities were directed to fill up the post by considering the eligible persons by way of promotion.

Shri Patwalia, learned counsel for the respondent, on the other hand, submitted that the ratio of the decision in R.K. Sabharwal's case (supra) was rightly applied by the High Court. It was also submitted in the alternative by him that even if the submission of learned counsel for the appellant and learned senior counsel for the intervenor is right even then in view of the proviso to Rule 3 of the statutory rules, the cycle of 3:1 would operate in connection with all future vacancies that fell in the cadre w.e.f. 28.7.1978 and earlier cycle had to be ignored. It was also contended that even in the working of the cycle in the cadre in question the 16th vacancy (which would become the 11th vacancy if reckoned from a roster commencing from 28.7.78) would go to promotee and not to direct recruit. Both learned counsel for the appellant and learned counsel for the intervenor submitted that this new contention regarding the applicability of the proviso to Rule 3 should not be permitted to be raised for the first time in these proceedings; Therefore, once it is held that the High Court had wrongly applied the ratio of the decision in R.K. Subharwal 's case (supra) the appeal is required to be allowed.

Thus, all that Roshan Lal' case lays down is that direct recruits and promotees lose -their birth-marks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals once again".

It has, therefore, to be appreciated that when posts in a cadre are to be filled in from two sources whether the candidate comes from the source of departmental promotees or by way of direct recruitment once both of them enter a common cadre their birth marks disappear and they get completely integrated in the common cadre. This would be in consonance with the thrust of Article 16(1) of (he Constitution of India. No question of exception to the said general thrust of he constitutional provision would survive as Article 16 (4) would be out of picture in such a case. Consequently the decision rendered by the Constitution Bench in R.K. Sabharwal 's case (supra) in connection with Article 16(4) and the operation of roster for achieving the reservation of posts for SCs, STs and BCs as per the scheme of reservation cannot be pressed in service for the present scheme of Rule 9(1) is not as per Article .1.6(4) but is governed by the general sweep of Article 16(1). The attempt of learned counsel for the respondent to treat a quota rule as reservation rule would result in requiring the State authorities to continue the birth-marks of direct recruits and promotees even after they enter the common cadre through two separate entry points regulating their induction to the cadre. Therefore, the roster for 3 promotees and one direct recruit is to be continued every time a vacancy arises and there is no question of filling up a vacancy arising out of a retirement of a direct recruit by a direct recruit or on the retirement vacancy of a promotee by a promotee. Consequently, the question of rotating the vacancies as posts or for treating the posts mentioned in the rules of recruitment as necessarily referable to total posts in the cadre at a given point of time in the light of .R..K. Sabharwal's judgment (supra), therefore, cannot survive for in the case of a quota rule between direct recruits and promotees the same is to be judged on the touchstone of Article 16(1) and the statutory rules governing the recruitment to the posts of Professor constituting the Punjab Medical Education Service (Class-I) and not on the basis of Article 16(4). The Division Bench in the impugned judgment with respect wrongly applied the ratio of R.K. Sabharwal's case (supra) governing Article 16(4) to the facts of the present ease which are governed by Article 16(1).

"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 general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is hot permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent Hence, 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 post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community 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,'' It is difficult to appreciate how this decision can be of any assistance to learned counsel for the respondent. It is obvious that in the aforesaid case the Constitution Bench was concerned with a similar scheme of reservation for SC, ST & BC candidates and, therefore, Article 16(4) squarely arose for consideration. To that extent the said decision falls in line with the legal position examined by the earlier Constitution Bench in R.K. Sabharwal's case (supra). As we have already opined earlier, the factual and legal situation in the present case is entirely different. We are not concerned with any scheme of reservation under Article 16(4). Therefore, R.K. Sabharwal's case (supra) cannot be pressed in service, as seen earlier. If that is so, on the same lines the ratio of the decision of this Court in the Post Graduate Institute of Medical Education & Research case (supra) would also not apply. While deciding the question of working out the recruitment rule for appointment from two sources of promotees and direct recruits wherein only Article 16(1) would hold the field, un- inhibited by the exceptional category carved out from said sub-article (1) by sub-article (4) thereof. The first point for determination is, therefore, answered in favour of the appellants and against the respondent.