Document Fragment View

Matching Fragments

Mr.Andhyarujina, the learned Solicitor General has also supported the reservation of a single post cadre with the aid of rotation of roster. He has invited in attention of the Court to Office Memorandum No. 3601//96-Estt. (Res) issued by the Ministry of personnel, Public Grievances and Pension (Department of Personnel and Training) of the Government of India in respect of reservation roster for implementation of the Supreme Court judgment in R.K. Sabharwal and ors. Vs. State of Punjab and Ors. (1995 (2) SCC 745). After indicating in short, the purport of the decision of this Court in the said case, it has been indicated in the said Office Memorandum that "with a view to bringing the policy of reservation in line with the law laid down by the supreme Court. it has been decided that the existing 200 point, 40 point and 120 point vacancy-based rosters shall be replaced by post based rosters. All the Ministries/Departments and concerned authorities are requested to prepare the respective rosters based on the principles elaborated in the Explanatory Notes given in Annexure - 1 to this O.M. and illustrated in the Model Rosters annexed to this O.M. as Annexure-II, III and IV. Similarly, the concerned authorities may prepare rosters to replace the existing 100 point rosters n respect of local recruitment to Group C and D posts on the basis of the same principles."

By a Circular dated November 8, 1975, the State Government 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). It was laid down that if in any grade, there is only one vacancy for the first time, then it will be deemed to be unreserved and for the second time also, if there be only one vacancy, then it will 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 viz. the posts of Director as well as of Deputy Directors and as the post of the Director had already been filled up treating it to be unreserved, the second post viz. the Deputy Director (Homeopathic) was treated as reserved. Accordingly, the State Public Service commission issued advertisement inviting applications from Scheduled Castes candidates for selection to the same posts and ultimately the State Government appointed a member of Scheduled Caste to the post of Deputy Director (Homeopathic). A general candidate thereafter filed a writ petition before the High Court challenging the advertisement issued by the State Public Service Commission and also the consequent order of appointment. The High Court allowed the petition and quashed the impugned advertisement and the appointment order. Such decision of the High Court was assailed before this Court in Dr. Chakradhar Paswan's case. The appeal was dismissed by this Court by holding that in service jurisprudence, he term `cadre' has a definite legal connotation. It 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 post are not interchangeable and the incumbents do not perform the same duties or 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. The first vacancy in the cadre of Deputy Directors was that of the Deputy Director (Homeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved. Therefore, for the first vacancy of the Deputy Director (Homeopathic), a candidate belonging to the Scheduled Caste had, therefore, to compete with other. Relying on the decision in Balaji's case, it was held in Chakradhar's case that once the power to make reservation in favour of Scheduled Castes and Scheduled Tribes is exercised, it must necessarily follow that for the purpose of vacancies for which reservation has been made, must be brought into effect and in order to do full justice, a carry forward rule must be so applied that in any particular year there is not more than 50% reservation. The whole concept of reservation for application of the 50 point roster is that there are more than one post, and the reservation can be up to 50%. 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 a future vacancy in respect of that post. A reservation which would come under Article 16(4), presupposes the availability of at least more than one post in that cadre. No reservation could be made under Article 16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Article 16(1) and (2) wholly meaningless and illusory. The reservation of the post of Deputy Director (Homeopathic) amounted to 100% reservation which was impermissible under Article 16(4) as otherwise it would render Article 16(1) wholly elusive and meaningless. Article 16(4) is an exception to Article 16(1) and (2) and therefore the power to make a special provision for reservation of posts and appointments in favour of the backward classes must not be so excessive which would in effect efface the guarantee of equal opportunity in the matter of public employment or at best make it illusory. Reference was also made in Chakradhar's case to the decision in Arati Ray Choudhury's case by indication that in the facts of that case when the open class had reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, if the carry forward rule had to be given any meaning, the vacancy had to be carried forward for the benefit of Scheduled Castes and Scheduled Tribes until the close of the financial year 1968-69. It was pointed out in Chakradhar's case that the decision in Arati Ray Choudhury's case turned on the carry forward rule and such decision was clearly distinguishable and the same does not support reservation in a single cadre post.

Since the decision in Madhav's case by a three Judges' Bench upholding the reservation for the backward classes even in single post cadre on the basis of rotation of roster point is the main decision, when followed in Post Graduate Institute of Medical Research case, we propose to consider the decision in madhav's case in some detail. The brief facts in Madhav's case may be indicated as follows:

In the national Savings Scheme Service, only one post of Secretary was available. the Government applied the rule of reservation to that post by rotation the vacancies in accordance with the 40-point roster. When point No. 4 vacancy in that post reserved for Scheduled Tribe, was filled by promoting an ST candidate from the post below, such promotion was set aside by the Central Administrative Tribunal on the ground that the post of Secretary being a single point post, granting of reservation was unconstitutional. The correctness or the said decision was assailed in Madhav's case.

In Madhav's case, in support of the view that even in respect of single post cadre, reservation can be made for the backward classes by rotation of roster, the Constitution Bench decision in Arati Ray Choudhury's case has been relied on. We have already indicated that in Arati's case, the Constitution Bench did not lay down that in single post cadre, reservation is possible with the aid of roster point. The court in Arati's case considered the applicability of roster point in the context of plurality of posts and in that context the rotation of roster was upheld by the Constitution Bench. The Constitution Bench in Arati's case has made it quite clear by relying on the earlier decisions of the Constitution Bench in Balaji's case and Devadasan's case that 100% reservation was not permissible and in no case reservation beyond 50% could be made. Even the circular on the basis of which appointment was made in Arati Ray Choudhury's case was amended in accordance with the decision in Devadasan's case. Therefore, the very premises that Constitution Bench in Arati's case has upheld reservation in a single post cadre is erroneous and such erroneous assumption in Madhav's case has been on account of misreading of the ratio in Arati Ray Choudhury's case. It may be indicated that the later decision of the Constitution Bench in R.K. Sabharwal's case (1995(2) SCC 745) has also proceeded on the footing that reservation in roster can operate provided in the cadre there is plurality of post. It has also been indicated in Sabharwal's decision that the post in a cadre different from vacancies.