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State of Punjab & Ors Vs. G.S. Gill & ANR [1997] INSC 349 (27 March 1997)

K. RAMASWAMY. G.B. PATTANAIK

ACT:

HEADNOTE:

O R D E R Asper office Report dated September 13, 1996, the notice sent to the first respondent wasreceived back by the Registry withthe postal endorsement "No such person" indicating avoidance thereof on his part. Consequently, he was setex-parte. The second respondentwas directed tofile Counter-affidavit. Even today the first respondent is not appearing either in person or through counsel.

Leave granted. Wehave heard learned counsel for the appellant and the second respondent.

This appeal by special leave arises fromthe judgment passed by the High Court of Punjab & Haryana, Chandigarh on 22nd November, 1995 inLPA No.351 of 1981.

The admitted facts are that thefirst respondent, a generalcandidate, was appointed asa junior Technical Assistant in the Department of Industries ofthe State of Punjab.The post of Assistant Superintendent, Quality MarkingCentre, (Textile), i.e., in the next promotional cadre, is the single post in that cadre. The said post was reserved for scheduledCaste candidates as per the roster and inview of the judgment of thisCourt in Aarti Ray Choudhury V/s.Union of India [(1974) 1 SCC 87] BhagatRam, the second respondent,who was a qualified candidate was considered andduly promoted to the said post. The first respondent, feeling aggrieved,filed writ petition in the High Court seeking relief in the form of amandamus or direction to the Government to dereserve the carried forward post and to consider his case for promotionas a general candidate. He contendedthat since it was the solitary post, reservation infavour of a Scheduled Caste would amount to 100% reservation violating Articles 16 (1) an 14 of Constitution. The learned single judge observedthat hefelt bound by the Division Bench judgment in Dr. ParminderKaur V/s. State of Punjab [(1976) 1SLR 502] wherein it washeld that "a solitary vacancy inthe relevant year cannot be treatedas reserved one as that would amount to reservation of 100% in violation of Article 14 an 16(1) of the Constitution" Thus though he was inclined to take theview that constitutionally it was permissible, inview of the Division Benchjudgment in Dr. Parminder Kaur's case, he allowedthe writ petition . On appeal, it was affirmed by the Division Bench. When the matter was carried tothis court, it set aside theorder and remitted the matter to the High Court forreconsideration. The DivisionBench by the impugned judgment held thus:

"Consequently, weare ofthe view that since it is a single post cadre, there could not be any reservation at alland thequestion of applicabilityof thequestion of applicability of Parminder Kaur's case (supra) alsodoes not arise on the facts of the present case," Thus this appeal by special leave.

The question for consideration, therefore, is: whether the view takenby theHigh Court iscorrectin law?This Court in Indira Sawhney V/s. Union of India [(1992) Supp.

SCC 217] has overruled the decision of theConstitution Bench in Devadasan V/s. Unionof India [(1964) 4 SCR680:

AIR 1964 SC 179] declaring the carry forward rule as unconstitutional. In paragraph817 at page 739, it washeld thus:

"We are of the respectful opinion that on its own reasoning, the decision insofar as it strides down the rule is not sustainable., The most that could have been done in that case was to quash the appointments inexcessof 50% inasmuch as, as a matterof fact more than 50% than 50% of the vacancies for the year 1960 came to bereserved by virtue ofthe said rule ." Inparagraph 818, it was held thus:

"We my reiterate thata carry- forward rule neednot necessarily bein thesame terms asthe one found in Devadasan. A given rule may say that the unfilledreserved vacancies shall not be filled by unreservedcategory candidates but shall be carried-forwardas such for a period ofthree years. In such a case, a contention may be raised that reserved postsremain a separate category altogether. In our opinion, however, the result of application of carry-forward rule, inwhatever manner it is operated, should not resultin breach of 50% rule".

Thus it could be seen that carry-forward rule is constitutionally permissible,.It is an extention of the principle of providingfacility and opportunity to secure adequacy of therepresentation to Dalits and Tribes mandated by Article 335. It should be carried for three years.Even in thepost when the vacancyas per roster was available, but candidates were not available, same could be carried forwardfor three years. However, in each recruitment year, the carry-forward rulecannot exceed 50% of the vacancies.

That question does not arise in a situation where there is single post/cadre. In S.S. Sharma & Ors. V/s. Union of India & Ors.[AIR 1981 SC 588] in paragraph 8 at page 592,this Court had heldthat the limited Departmental Competitive examination for recruitment ofthe members of the Scheduled Castes and Scheduled Tribes fordetermination of eligibility for promotion is not invalid nor the Central Government be directed to dereserve the Vacancies meant forsuch members when it was found that suitable Scheduled Castes and Scheduled Tribe candidates were not available for inclusion within the field of selection. Whether or not reserved vacancies should bede-reserved is a matter falling primarily within the administrative discretion of the Government. There is no right in general candidates toseek fillingup of the vacancies belonging to the reserved category andto insist onde-reservationof reserved vacancies so long as it is possible in law to fill the reserved vacancies. in other words, carried forward (unfilled) vacancies reserved for Dalits and Tribes should be filled up only by the reserved candidates and general candidates haveno right to seek direction for dereservation thereoffor filling up of the same by general candidates. It would thus be clear that carry-forward rule is a permissible constitutional rule. Carry forward would be done for three years. In third case, the Government issued orders to carry forwardfor "two years"Therefore, the direction or mandamus to de-reserve the solitary post was clearly unconstitutional. ThisCourt in U.P. SalesTax Service Association V/s. Taxation Bar Association, Agra & Ors. [(1995)5 SCC 716] had held that no mandamus could be issued to disobey the lawor prohibit the authoritiesfrom discharging the functions. It would, therefore, be manifestly illegal to seek a mandamus or direction; nor would the Court be justified too issue suchmandamus or direction tothe appropriate Government to de-reserve vacancy, It iscommonknowledge thatselections are not objectively being made to select the candidatesbelonging to the Dalits andTribes to fill up the vacanciesreserved for them though qualifiedcandidates are available to be promoted/appointed, with a view to see that reserved vacancies are not filled up and the same are passed off as eligible candidates being not availableso as to ensurethat carry forward vacancieseither exceed 50% of the accumulated total vacanciesor thatselection goes beyond three years so as to make the Government de-reserve the vacancies.

This Court in SC& ST officers;Welfare Council V. State of U.P. & Anr. [(1997) 1 SCC 701] has considered the mandateof Article 261 of the Constitution which accords full faith andcredit to the acts doneby the executive and connects the Union and the States to further the goals set down in the Constitution. In para 12 this Court has pointed out inthat behalf. It was held that administrator is primarily a citizen and the State wants him to always remember that his vision should be of nationalinterest and to actin concert withthe Government . It will do himgood to knowwhat that means. Nobodyis bornan administrator but no body is always a goodadministrator.The primary responsibilityof an administratoris toperform his functions in the service of the nation as an enlightened citizento strengthen a new democratic State. A dynamic bureaucracy isone which discharges the functions to enrich the integration of the socialstructure by wise decisions.

The State in ademocratic society derives its strengthfrom the cooperative and dispassionate will of all as itsfree and equal citizens. Thepublic administration is responsible to effectiveimplication of the rule of law and constitutionalcommands which effectuatefairly the objective standard setfor adjudginggood administrative decisions. Thepublicadministrator should rid off all mentalobservations on narrow considerations of caste, religion sectional or regional.He should have wider concern for society asa whole. Otherwise he is not worthy to be an administrator or enlightened citizen towork for others; and consequently "there isevery chance of this enlightenment gettingerodedand self interest ruling supreme. Andonce the erosion takes place, they slide slowly downand join the third group (damons manavarakshas) among whom are found all those who indulge in all sorts of social malpractices,like bribery, corruption, tax-evasion, smuggling, drug andfood adulteration and fourthcategory becomesheer vandals.""God dwells in all - this great truth had never been translated into the wide social and economic fields or transformedinto a social fact of human awareness affecting millions." "This should be madea reality in modern democracy, political, economic and social" quoted from 'Eternal values for a Changing Society' by Swamy Ranganthananda. In public administration,responsibilityis of highly personal and moral quality and is not necessarily related to formal status or power, although it is probably truethat greater power brings greater responsibility. The Departmentalhead is responsible for the actions of his subordinates, although in actual fact,he is not responsible for theiruse of power which, he must, of necessity,delegate to them. Legitimacy is primarily a feature of constitutional system.They possessthis quality byvirtue of general public support for their authority and may have it in greater or lesser degree.The bureaucracyshares the collective responsibility with politicalexecutive to effectuate the constitutional philosophy and public justice.The administrative responsibility lies ingiving shape and content not only to the policie laid down in the Constitutionand by the political executive but also applies them ingiven set of facts. Therefor, on the facts, it was found that the bureaucracy had by mala fide actions issued successive orders to deprive certain Dalits and Tribe doctors of their chances of promotion by colourable exercise of power depriving themof their rightto promotion, Soon after the selection, they were withdrawn. Further orders were issued in favour of the general candidates with most favourable conditions. Thereby, the bureaucracyforfeited thefull faith and credit whichArticle261 trusted them. Therefore, this Court set aside the actionand directed reconsideration of their cases.

InSuperintendingEngineer, Public Health, U.T. of Chandigarh & Ors. V/s. Kuldeep Singh & Ors. [1997 (2) SCALE 138] , though reserved candidate was available, the post was de-reserved and he was not selected. When he filed a petition in the Administrative Tribunal it was allowed and direction was given toconsider his case in accordancewith the rules. when the appeal was filed in this Court, it was held that the authorities have power coupled with duty."(E) very public servant is a trustee of the society and in all facets of public administration, every public servant has to exhibithonesty, integrity, sincerityand faithfulness in implementation of the political, social, economic and constitutionalpolicies to integrate the nation, to achieve excellence andefficiency in the public administration. A public servantentrusted withduty and powerto implement constitutional policy under Articles 16(4) ,16(4-A) , 15(4) and 335 and all interrelateddirective principles, should exhibittransparency in implementation and be accountable for due effectuation of constitutional goals." It was directed that the reservation and carry forward rule should be implemented in true spirit. It is settled legal principle that when bureaucracy has power coupled with a duty to implement the law anda constitutional goals,State should be envisagedas Canal through which the fruits of constitutional principles, philosophy and the backed-up law may flow, releasing itsenergy for the benefit of the people rather than asa Dam to holdit back or caused breach thereofto frustrate the goals. After all, the basictask any philosophy of Government isto figure out what the state must do not what it would be prohibited from doing. Not is it to be forgotten thatwhile tyrannical Governments destroy the freedom, constitutional Government wouldenlarge the freedom.

Many of the functions which the modern state undertakes are designed to make opportunities more nearly equal for everybody and to protect weaker individuals from the rapacity of the strong. In these days of fallen rectitude and honesty inthe performance of public duty and the bureaucracy istoo willing tosabotage public policy and constitutionalphilosophy. Judiciary/Tribunal would be astute in the declaration of law or in its solemn judicial review or dispensation of justice to issue directions or mandamus against the law, constitutional comments or public policy.In TheFlag officer Commanding-in-chief & Anr. vs. Mrs. M.A. Rajani & Anr. [JT 1997 (4) 212], this Courtheld that since thereservation was called for selectionin a reserved vacancy and since candidate was available, resort to dereservation of the vacacy thereafterwas clearly illegal. It would, therefore, be clear that the authorities are to implementthe rule, executive/legislative/ constitutional policy or principle in true, spirit, honestly and sincerely to effectuate the policy; nomandamus or direction should be issued tode-reserve the carry forward vacancies reserved forappointment ofthe Scheduled Castes and Tribes nordirection be given tofill upwith general candidates.

The next question for considerationis: whether reservation in promotionto a single post is unconstitutional beingviolative of Articles 16(1) an 14 of the constitution? In Aarti RayChaudhury's case (supra) , a Constitution Bench had held that reservation inpromotion to a single post is not unconstitutional. This Court had re- surveyed the case lawin union of India & Anr. V/s Madhav [JT 1996 (9) SC 320].In paragraph 10 at page 325, it has been held that"we hold that even though there is a single post, if the Government have appliedthe rule of rotation and theroster point tothe vacancies that had arisen in the single point post andwere sought tobe filled up by the candidates belonging tothe reserved categoriesat the point on which they were eligible to be considered, such a rule is not violative of Article 1691)of theConstitution ."Same view has been reiterated in several subsequent judgments. In Dr. Chakradhar Pasvan V/s. State of Bihar [91988) 1 SCC496] the ratio clearly is an authority forthe propositionthat two unequal posts carrying different scales of pay cannot be fused togetherfor the purpose of applying the rule of reservation inpromotion. That case stands on entirely a different footing but the ratio therein was misappliedto a case of reservation to a single post without following the Constitution Bench judgment in Aarti Ray Choudhury'scase (supra). Thatposition was clarified in Madhav'scase (supra). Thus it is settled legal position that application of roster to single post cadreand appointmentby promotion to carry forward postis valid and constitutional . With a view to give adequaterepresentation in public service to reserved category candidates, the opportunity given tothem is not violative of Articles 14 and 16(1) of the constitution .In R.K.Sabharwal & Ors. v. State of Punjab. & Ors.[(1995)2 SCc 745], it was held that promotions in accordance withroster are valid and constitutional. Even in Indira Sawhney's case this Court hadreiterated theview that reservation for the Dalits and Tribes isas a a class but notas individuals and, therefore, such a reservation is not violative of Article 14 or 16(1) ofthe constitution. In The Ahmedabad St. Xaviers College Society & Anr. V/s. State of Gujarat & Anr. [(1975) 1 SCR173], anine-judge Bench had held that the fundamentalrightsshould be broadly interpreted toenable the citizen to enjoy them. Sameview was reiteratedin Dr.PradeepJain &Ors. V/s. Union of India & Ors. [(1984) 3 SCC 654], Marri Chandra Sekhar Rao V/s. Dean, Seth G.S. Medical College& Ors.[(1990)3 SCC 130]; and Ashok KumarGupta & Anr. V/s. State of U.P. & Ors. [1997 (3) SCALE 289]. In Union of India & Ors. vs.Brij Lal Thakur [JT1997 (4) 195], this court following Madhav's case has held that reservation provided to single post on the basis of rule of rotationis not unconstitutional. The High Court, therefore,is clearly in error inholdingthat reservation inpromotion to a single post and application of carry forward rule and of roster is unconstitutional.

The appeal is accordinglyallowed. The judgment of the Division Benchand ofthe learned single Judge stand set aside. No Costs.

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