Dr. Chakradhar
Paswan Vs. State of Bihar & Ors [1988] INSC 68 (8 March 1988)
Sen,
A.P. (J) Sen, A.P. (J) Ray, B.C. (J)
CITATION:
1988 AIR 959 1988 SCR (3) 130 1988 SCC (2) 214 JT 1988 (1) 496 1988 SCALE
(1)459
ACT:
Constitution
of India-Article 16(4)- Reservation of posts and appointments for members of
backward classes read with Art. 16(1)- Equal opportunity to all citizens
relating to public employment-Reservation of posts for scheduled castes/tribes
must not be so excessive which would in effect efface the guarantee of equal
opportunity Reservation of the only post in cadre for scheduled caste candidate
amounts to 100 per cent reservation-100 per cent reservation is excessive and
is not permissible under Art. 16(4)- Reservation of first vacancy in a particular
cadre for scheduled caste candidate is violative of Art. 16(1).
HEAD NOTE:
% The
State of Bihar had a Directorate of Indigenous
Systems of Medicines which was a part of its Health Department and one Dr. Nagesh
Dwivedi was its Director. On 6.5.1978 the State Government created a separate
Directorate of Indigenous Medicines, the Director being from one of the systems
of medicines consisting of Ayurvedic, Unani and Homeopathic. At the time of
creation of the separate Directorate, the Government sanctioned the posts of
two Deputy Directors for each of the two remaining systems. The State
Government had in the meanwhile prescribed a 50 point roster to implement the
policy of reservation to posts and appointments for members of the backward
classes under Art. 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'. Acting upon this roster the Government reserved the post of
Deputy Director (Homeopathic) for a scheduled caste candidate. The Public
Service Commission on being moved by the Government, issued an advertisement
inviting applications from members of the scheduled caste and the appellant was
selected for appointment to the post. Respondent No. 4 challenged the selection
of the appellant in the High Court by filing a petition under Article 226 of
the Constitution. In October, 1982 an additional post of Deputy Director (Ayurvedic)
was created and filled.
The
High Court allowed the writ petition and quashed the said advertisement and the
consequent order of appointment of the appel- 131 lant. The High Court was of
the view that the post of Director and three Deputy Directors could not be
clubbed together for reservation of posts and appointments. Nor could the posts
of Deputy Directors Homeopathic, Ayurvedic and Unani which form distinct and
separate systems of medicines be grouped for purposes of reservation.
The
appellant contended that there were four posts in the Directorate of Indigenous
Medicines and all the posts were Class I posts and therefore according to the
50 point roster the post of Director having been treated as unreserved by the
Rotational system, the post of Deputy Director (Homeopathic) was rightly
reserved for a scheduled caste candidate.
Dismissing
the appeal, this Court, ^
HELD:
The posts of the Director and those of the Deputy Directors constitute
different cadres of the service. It is manifest that the post of the Director
of Indigenous Medicines, which is the highest post in the Directorate carried
on a higher grade or scale, could not possibly be equated with those of the
Deputy Directors on a lower grade or scale. In view of this, according to the 50
point roster, if in a particular cadre a single post falls vacant, it should,
in the case of first vacancy, be considered as general. That being so, the
State Government could not have directed reservation of the post of Deputy
Director (Homeopathic) which was the first vacancy in a particular cadre i.e.
that of the Deputy Directors, for candidates belonging to the schedule castes.
Such reservation was not in conformity with the principles laid down in the 50
point roster and was impermissible under Art. 16(4) of the Constitution and
clearly violative of the guarantee enshrined in Art. 16(1) of equal opportunity
to all citizens relating to public employment. Clause (4) of Art. 16 is by way
of an exception of the proviso to Art. 16 (i). The High Court rightly held that
the reservation of the post of Deputy Director (Homeopathic) amounted to 100%
reservation which was impermissible under Art. 16(4) as otherwise it would
render the guarantee of equal opportunity in the matter of public employment
under Art. 16(1) wholly elusive and meaningless. [137F-H; 138A-C] If there is
only one post in the cadre, there can be no reservation under Art. 16(4) of the
Constitution. The whole concept of reservation for application of the 50 point
roster is that there are more than one posts, and the reservation as laid down
by this Court in M.R. Balaji's case can be upto 50%. The Government cannot, for
instance, declare that the post of the Director of Indigenous Medicines shall
be reserved 132 for candidates belonging to scheduled castes. The Directorate
is a paramedical service with Director as its head and the three Deputy
Directors belonging to three distinct and separate disciplines viz.
Homeopathic, Unani and Ayurvedic under him. In the para-medical system the
three posts of Deputy Directors pertain to three distinct systems and therefore
each of them is an isolated post by itself. The same principles should, we
think, as in the case of Director, apply. We refrain from expressing any
opinion on the aspect whether the isolated posts like those of the Deputy
Directors can be subjected to the 50 point roster by the rotational system as
it does not arise in the present case. Assuming that the 50 point roster
applied, admittedly, 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. The first vacancy of
the Deputy Director (Homeopathic) in the cadre being treated as unreserved
according to the roster, had to be thrown open to all. A candidate belonging to
the Scheduled caste had therefore to compete with others. [138C-G] The three
posts of Deputy Directors of Homeopathic Unani and Ayurvedic are distinct and
separate as they pertain to different disciplines and each one is isolated post
by itself carried in the same cadre. There can be no grouping of isolated posts
even if they are carried on the same scale. The Government of India
instructions relating to reservations of posts and appointments for the scheduled
castes and scheduled tribes contained in the Brochure on Reservation for
Scheduled Castes and Scheduled Tribes in Services and which have been issued to
carry out the mandate of Art. 16(4) consistent with the equality clause under
Art. 16(1) and 16(2) and the requirements of Art. 335, namely, the maintenance
of efficiency of administration clearly show that there can be no grouping of
one or more isolated posts for purposes of reservation. To illustrate,
Professors in medical colleges are carried on the same grade and scale of pay
but the posts of Professor of Cardiology, Professor of Surgery, Professor of
Gynecology pertain to particular disciplines and therefore each is an isolated
post. [138H; 139A-F]
Article
16(4) is an exception to Art. 16(1) and Art. 16(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. We are not aware of any decision of this Court where
excessive reservation of appointments or posts in favour of any backward class
of citizens to the extent of 100% has been upheld, except in the application of
the carry forward rule.
[139G-H]
133 M.R. Balaji & Ors. v. State of Mysore, [1963] Suppl. 1 S.C.R. 439; T. Devadasan v. Union of India & Anr., [1964] 4 S.C.R. 680; State of Kerala
& Anr. v. N.M. Thomas & Ors., [1976] 1 S.C.R. 906; Akhil Bharatiya Soshit
Karamchari Sangh (Railway) v. Union of India
& Ors., [1981] 2 S.C.R. 185; State of Karnataka v. Shivaji Y. Garge (C.A.
No. 4117 of 1984 decided on 19th October, 1984; K.C. Vasanth Kumar & Anr.
v. State of Karnataka, [1985] Suppl. S.C.C. 714 and Arati Ray Choudhury v. Union
of India & Ors., [1974] 1 S.C.R. 1, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2315 of 1981.
From
the Judgment and order dated 16.5.1980 of the Patna High Court in Writ
Jurisdiction Case No. 1430 of 1979.
S.R. Srivastava
for the Appellant.
D. Goburdhan
and A. Sharan, for the Respondents.
The
Judgment of the Court was delivered by SEN, J. This appeal by special leave is
against the judgment and order of the Patna High Court dated 16th May, 1980
allowing the writ petition filed by respondent No. 4 Dr. Kameshwar Prasad and
quashing the impugned advertisement No. 121/1978 issued by the Bihar Public
Service Commission inviting applications for the post of Deputy Director
(Homeopathic) in the Directorate of Indigenous Medicines, Health Department,
State of Bihar from scheduled caste candidates, and the consequent order of the
State Government dated 30th May, 1979 for the appointment of the appellant Dr. Chakradhar
Paswan to that post.
A few
essential facts would elucidate the nature of the controversy. Prior to 1974
the Directorate of Indigenous Systems of Medicines was a part of the Health
Department. On 14th March, 1974 the State Government appointed Dr. Nagesh Dwivedi,
Manager, State Ayurvedic and Unani Medical Pharmacy, Bihar on an ad-hoc basis
to the post of Director (Indigenous Medicines). He assumed charge on the next
day and was confirmed in that post on 11th December, 1976. The State Government
on 6th May, 1978 directed the creation of a separate Directorate of Indigenous
Medicines, the Director being from one of the systems of medicines consisting
of Ayurvedic, Unani and Homeopathic. At the time of creation of the separate
Directorate, 134 the Government sanctioned the posts of two Deputy Directors
for each of the two remaining systems. The State Government had in the
meanwhile on the basis of the decision of this Court in M.R. Balaji & Ors.
v. State of Mysore, [ 1963] Suppl. 1 SCR 439 by its circular dated 8th
November, 1975 prescribed a 50 point roster to implement the policy of
reservation to posts and appointments for members of the backward classes under
Art. 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'. Acting upon the roster the Joint Secretary to the Government,
General Administration Department (Personal) made a proposal on 13th June, 1978 for reservation of the post of
Deputy Director (Homeopathic) for members of the scheduled castes. He said that
in the Directorate of Indigenous Medicines, three posts had been sanctioned-(1)
Director of Indigenous Medicines (2) Deputy Director (Homeopathic) and (3)
Deputy Director (Unani). All these posts were Class I posts. He suggested that
according to the roster of appointments, out of these three posts the first,
namely, that of Director which had been filled by Dr. Nagesh Dwivedi, be
treated as unreserved, the second should be treated as a reserved for a
scheduled caste candidates and the third should be unreserved. According to
him, all the posts could be grouped together from the view-point of
reservation. After the qualifications had been prescribed in consultation with
Dr. Jugal Kishore, Advisor to the Government, the Health Minister passed an
order on 28th July, 1978 for the reservation of the post of Deputy Director
(Homeopathic) for a scheduled caste candidate. The Public Service Commission on
being moved by the Government, issued the impugned advertisement inviting
applications from members of the scheduled castes and the appellant was
selected for appointment to the post. Apprehending that the Government would
appoint the appellant to the post, respondent No. 4 moved the High Court by a
petition under Art. 226 of the Constitution for the grant of an appropriate
writ, direction or order. The Government however by order dated 30th May, 1979
appointed the appellant to the post of Deputy Director (Homeopathic) and he
assumed charge to that post, and was later confirmed in the post. Although the
appointment of the appellant has been declared to be invalid by the High Court,
he is continuing to hold the post by virtue of the interim stay granted by this
Court on 26th June, 1980.
It
appears that steps were thereafter taken to fill up the post of Deputy Director
(Unani) and Dr. Mohammad Kamruzzama Kamar, Pradhyapak, Government Tibbia
College, Patna was promoted and 135 appointed to that post, and he is working
on regular basis.
On 5th
October, 1982 the Government sanctioned the additional post of Deputy Director
(Ayurvedic) and this post was filled up by promotion of Dr. (Smt.) Uma Sinha,
who is holding additional charge of the post in addition to the charge of her
own post as Pradhyapak, Government Ayurvedic College, Patna. Thus, in the
Directorate of Indigenous Medicines for the present there are four posts, all
being Class I posts. Out of these, the post of Deputy Director (Homeopathic) is
held by the appellant who belongs to a scheduled caste, and the remaining three
posts including the post of Director are held by members belonging to the
general category Lalit Mohan Sharma, J. speaking for a Division Bench held that
(1) Reservation to the only post of Deputy Director (Homeopathic) for members
belonging to the scheduled castes is tantamount to 100% reservation. (2) The
two posts of Deputy Director (Homeopathic) and Deputy Director (Ayurvedic)
cannot be linked together for purposes of reservation of posts. And (3) The
order reserving the post of Deputy Director (Homeopathic) infringes the
principle embodied in the Government circular introducing 50 point roster
according to which, if in a particular cadre, a single post falls vacant, it
should, in the case of first vacancy, be considered as general and on the
second occasion when a single post again falls vacant, the same must be treated
as reserved. The learned Judge also said that it has been laid down that if in
a particular cadre there is only one post, then in case when it is being filled
up for the second time, it will be considered reserved, that is, on the first
occasion it must be treated as a general seat. In substance, the High Court was
of the view that the posts of Director and three Deputy Directors could not be
clubbed together for reservation of posts and appointments. Nor could the posts
of Deputy Directors of Homeopathic, Ayurvedic and Unani which form distinct and
separate systems of medicines be grouped for purposes of reservation.
The
main contention of Dr. Y.S. Chitale, learned counsel for the appellant, is that
there are four posts in the Directorate of Indigenous Medicines and all the
posts are Class I posts and therefore according to the 50 point roster, the
post of Director having been treated as unreserved, by the rotational system,
the post of Deputy Director (Homeopathic) was rightly reserved for a scheduled
caste candidate. According to him, the High Court fell into an error in
assuming that the reservation of the post of Deputy Director (Homeopathic) for
a scheduled caste candidate under Art. 16(4) amounted to 100% reser- 136 vation
and suffered from the vice of offending against the equality clause under Art.
16(1) read with Art. 14 of the Constitution. In answer to the argument Shri
L.N. Sinha, learned counsel appearing for respondent No. 4, submits that
firstly, the posts of Director and Deputy Directors are not carried in the same
cadre and therefore they could not be grouped for purposes of implementing the
policy of reservation under Art. 16(4), and secondly, the three systems of
indigenous medicines, namely, Homeopathic, Ayurvedic and Unani are distinct and
separate systems of medicines and thus the 50 point roster could not be
applied.
As we
had doubt and difficulty as to whether the posts of Director and Deputy
Directors were Posts belonging to the same cadre, we called upon the parties to
file further and better affidavits to elucidate the point. The State Government
has now placed on record the additional affidavit of the Law officer in the
Health Department, State of Bihar dated 10th November, 1987. The affidavit discloses certain
facts, namely:
(1)
The pay scale of Director of Indigenous Medicines is different from that of the
Deputy Directors.
(2)
The posts of the Deputy Director (Homeopathic), Deputy Director (Ayurvedic) and
Deputy Director (Unani) are carried in the pay scale of Rs.1900-75-2500.
(3)
Although the pay scale of all the three Deputy Directors is identical, the
posts are filled by doctors belonging to different branches of indigenous
medicines, namely, Homeopathic, Ayurvedic and Unani.
(4)
The post of Director is the highest post in the Directorate of Indigenous
Medicines and the said post is in the higher pay scale of Rs.2225-75-2675.
(5)
Though the posts of Director and Deputy Directors in the Directorate do not
belong to unified grade, but for the purpose of determining the quantum of
reservation the three posts i.e.
that
of the Director, Deputy Director (Homeopathic), and Deputy Director (Unani)
were grouped together as all of them were Class I posts. (6) The newly-created
post of Deputy Director (Ayurvedic) which at present is vacant is being filled
up by following the principle of 50 point roster.
These
facts are not controverted by the appellant by any affidavit-in-rejoinder.
The
questions that fall for our determination are: (1) Is the post of Deputy
Director (Homeopathic) an 'isolated post' and therefore reservation of the post
for a scheduled caste candidate amounts to 100% reservation and must therefore
be declared to be impermissible under Art. 16(4)? (2) Whether the posts of the
Director and the three Deputy Directors could be grouped together for purposes
of implementing the policy of reservation, according to the 50 point roster.
137
And (3) Could the posts of the Director and the three Deputy Directors in. the
Directorate of Indigenous Medicines although they are posts carried on
different grades, still be clubbed together for purposes of reservation merely
because they are Class I posts? The argument of learned counsel for the appellant
suffers from the infirmity that it overlooks that though the Directorate of
Indigenous Medicines comprises of four posts, namely, that of the Director and
three Deputy Directors, which are Class I posts, the posts of Director and
Deputy Directors do not constitute one 'cadre'. They are members of the same
Service but do not belong to the same cadre.
According
to the 50 point roster, if in a particular grade a single post falls vacant, it
should, in the case of first vacancy, be considered as unreserved i.e. general
and on the second occasion when a single post again falls vacant, the same must
be treated as reserved. Admittedly, the post of the Director is the highest
post in the Directorate of Indigenous Medicines and is carried in the higher
pay scale or grade of Rs.2225-75-2675 while the posts of the Deputy Directors
are carried in the pay scale of grade of Rs.1900- 75-2500. In service
jurisprudence, the term 'cadre' has a definite legal connotation. In the legal
sense, the word 'cadre' is not synonymous with 'service'. Fundamental Rule 9(4)
defines the word 'cadre' to mean the strength of a service or part of a service
sanctioned as a separate unit.
The
post of the Director which is the highest post in the directorate, is carried
on a higher grade or scale, while the posts of Deputy Directors are borne in a
lower grade or scale and therefore constitute two distinct cadres or grades. 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
conclusion is irresistible that the posts of the Director and those of the
Deputy Directors constitute different cadres of the Service. It is manifest
that the post of the Director of Indigenous Medicine, which is the highest post
in the Directorate carried on a higher grade or scale, could not possibly be
equated with those of the Deputy Directors on a lower grade or scale. In view
of this, according to the 50 point roaster, if in a particular cadre a single
post falls vacant, it should, in the case of first vacancy, be considered as
general. That being so, the State Government could not have directed
reservation of the post of Deputy Director (Homeopathic) which was the first vacancy
in a particular cadre i.e. 138 that of the Deputy Directors, for candidates
belonging to the scheduled castes. Such reservation was not in conformity with
the principles laid down in the 50 point roster and was impermissible under
Art. 16(4) of the Constitution and clearly violative of the guarantee enshrined
in Art. 16(1) of equal opportunity to all citizens relating to public
employment. Clause (4) of Art. 16 is by way of an exception of the proviso to
Art. 16(1). The High Court rightly held that the reservation of the post of
Deputy Director (Homeopathic) amounted to 100% reservation which was
impermissible under Art. 16(4) as otherwise it would render the guarantee of
equal opportunity in the matter of public employment under Art. 16(1) wholly
elusive and meaningless.
Another
serious infirmity in the argument of the learned counsel for the appellant is
that it overlooks the basic principle that if there is only one post in the
cadre, there can be no reservation under Art. 16(4) of the Constitution. The
whole concept of reservation for application of the 50 point roster is that
there are more then one posts, and the reservation as laid down by this Court
in M.R. Balaji's case can be upto 50%. The Government cannot, for instance,
declare that the post of the Director of Indigenous Medicines shall be reserved
for candidates belonging to scheduled castes. The Directorate is a para-
medical service with Director as its head and the three Deputy Directors
belonging to three distinct and separate disciplines viz. Homeopathic, Unani
and Ayurvedic under him.
In the
para-medical system the three posts of Deputy Directors pertain to three
distinct systems and therefore each of them is an isolated post by itself. The
same principle should, we think, as in the case of the Director, apply. It is a
moot point whether the isolated posts like those of the Deputy Directors can be
subjected to the 50 point roster by the rotational system. We refrain from
expressing any opinion on this aspect, as it does not arise in the present
case. Assuming that the 50 point roster applies, admittedly, 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. The first vacancy of the Deputy Director (Homeopathic) in the cadre
being treated as unreserved according to the roster, had to be thrown open to
all. A candidate belonging to the scheduled caste had therefore to compete with
others.
There
is another aspect. The three posts of Deputy Directors of Homeopathic, Unani
and Ayurvedic are distinct and separate as they pertain to different
disciplines and each one is isolated post by itself 139 carried in the same
cadre. There can be no grouping of isolated posts even if they are carried on
the same scale.
The
instructions issued by the Government of India from time to time relating to
reservations of posts and appointments for the scheduled castes and scheduled
tribes are contained in the Brochure on Reservation for Scheduled Castes and
Scheduled Tribes in Service. Chapter 2 Part I gives the percentage of
reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in
the services under the State. These instructions have been issued to carry out
the mandate of Art. 16(4) consistent with the equality clause under Art. 16(1)
and 16(2) and the requirements of Art. 335, namely, the maintenance of
efficiency of administration. Para 2.4 provides
that the reservations will be applied to each grade or post separately but
isolated posts will be grouped as provided in Chapter 6. Paragraph 6.1 of
Chapter 6 which is relevant for our purposes, states that in the case where the
posts are filled by direct recruitment, 'isolated individual posts and small
cadres may be grouped with posts in the same class for purpose of reservation,
taking into account the status, salary and qualifications prescribed for-the
posts in question'. For this purpose, it provides that a cadre or a grade or a
division of a service consisting of less than 20 posts may be treated as a
small cadre. A group so formed should not ordinarily consist of 25 posts. It
then adds:
"It
is not intended that isolated posts should be grouped together only with other
isolated posts. " That precisely is the situation here. The Government of
India instructions clearly show that there can be no grouping of one or more
isolated posts for purposes of reservation. To illustrate, Professors in medical
colleges are carried on the same grade or scale of pay but the posts of
Professor of Cardiology, Professor of Surgery, Professor of Gynaecology pertain
to particular disciplines and therefore each is an isolated post.
We are
not aware of any decision of this Court where excessive reservation of
appointments or posts in favour of any backward class of citizens to the extent
of 100% has been upheld, except in the application of the carry forward rule.
Art. 16(4) is an exception to Art. 16(1) and Art. 16(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 140 make it illusory. In Balaji's case which has now become locus classicus
on the subject, the Court attempted to impose a constitutional limit to the
extent of preference, not on 'narrower ground of reservation' but on broader
grounds of policy. It spoke of 'adjusting' the 'interests of the weaker
sections of society to the interests of the community as a whole' and declared
that a 'formula must be evolved which would strike a reasonable balance between
the several relevant considerations'. While striking down as unconstitutional
government order by which 68% of the seats in educational institutions were
reserved for Scheduled Castes, Scheduled Tribes and other Backward Classes on
the ground of excessive reservation and as a fraud on the Constitution, the
Court observed:
"Speaking
generally and in a broad way, a special provision should be less than 50 per
cent; how much less than 50 per cent would depend upon the relevant prevailing
circumstances in each case." It is quite obvious that the observations in Balaji
about 50% limit were not to be taken as a precise formula.
In
less than a year, the Court in T. Devadasan v. Union of India & Anr.,
[1964] 4 SCR 680 while dealing with the effect of a carry forward rule which
permitted reservation of over 50% posts (in the third year) held that
reservation of 64.4% posts was unconstitutional. The Court by a majority of 4:
1 held that Art. 16(4) was a proviso or an exception to Art. 16(1) and
therefore should not be interpreted so as to nullify or destroy the main
provision, as otherwise it would in effect render the guarantee of equality of
opportunity in the matter of public employment under Art. 16(1) wholly illusory
and meaningless, and added:
"The
overriding effect of cl. (4) of Art. 16 on cls. (1) and (2) could only extend
to the making of a reasonable number of reservations of appointments and posts
in certain circumstances. A 'reasonable number' is one which & strikes a
reasonable balance between the claims of the backward classes and those of other
citizens " Thus, reservations are legitimate to the extent that they
provide the backward classes with an 'opportunity equal to that of members of
the more advanced classes'. The maximum permissible limit for the backward
classes, according to the majority in Devadasan's case, is that 141 under which
both they and others would enjoy 'equal opportunity'. The Court further added
that the reservation for backward communities should not be so excessive as to
create a monopoly or unduly disturb the legitimate claims of other communities.
In State af Kerala & Anr. v. N.M. Thomas & Ors., [1976] 1 SCR 906 the
majority accepted the dissenting opinion of Subba Rao, J. in Devadasan's case
and held that Art. 16(4) is not an exception to Art. 16(1), but is a legislative
device by which the framers of the Constitution have preserved a power untrammelled
by the other provisions of the Article. It is a facet of Art. 16(1) as it
fosters and furthers the idea of equality of opportunity with special reference
to under-privileged and deprived classes of citizens. In his dissenting
opinion, Khanna, J. speaking for himself and A.C. Gupta, J. adhered to the
majority view in Devadasan's case that Art. 16(4) was an exception to Art. 16(1)
and (2). According to the learned Judges, Art. 16(1) only embodies the notion
of formal or legal equality and therefore there is no scope for spelling out
any concept of preferential treatment from the language of cl.(1) of Art. 16.
In Thomas, the Court upheld reservation to the extent of 68% on the basis of a
carry forward rule which related to Class III posts and allowed relaxation to
the scheduled caste candidates from appearing in the examination for promotion.
What
is of significance is that Krishna Iyer, J. who formed the majority in Thomas,
has gone back upon his view in Akhil Bharatiya Soshit Karamchari Snagh(Railway)
v. Union of India & ors., [1981] 2 SCR 185, and held that Art. 16(4) is an
exception to Art. 16(1) and (2). While considering whether scheduled castes or
scheduled tribes were already duly represented or not in specific cadres of the
service, the Court reaffirmed the principle of reservation of appointments or
posts under Art. 16(4) and upheld the carry forward rule. It was emphasised
that what had to be seen was the overall picture and not restricted to a
particular service or cadre. The maximum of 50% for reserved quotas in their
totality was held to be fair and reasonable. Chinnappa Reddy, J. in his
concurring judgment observed:
"(W)hen
posts whether at the stage of initial appointment or at the stage of promotion
are reserved or other preferential treatment is accorded to members of the
Scheduled Castes, Scheduled Tribes and other socially and economically backward
classes it is not a concession or privilege extended to them; it is in
recognition of their undoubted Fundamental Right to Equality of opportunity and
in discharge of the Constitutional obligation imposed upon the 142 State to
secure to all its citizens 'Justice, social, economic and political', and
'Equality of status and opportunity', to assure 'the dignity of the individual
among all citizens; to 'promote with special care the educational and economic
interests of the weaker section of the people', to ensure their participation
on equal basis in the administration of the affairs of the country and
generally to foster the ideal of a 'Sovereign, Socialist, Secular, Democratic
Republic'. Every lawful method is permissible to secure the due re presentation
of the Scheduled Castes and Scheduled Tribes in the Public Services. There is
no fixed ceiling to reservation or preferential treatment in favour of the
Scheduled Castes and Scheduled Tribes though generally reservation may not be
far in excess of fifty per cent." It follows that though the maximum limit
of 50% as indicated was not an inflexible rule but in making special provision
for reservation of posts or appointments, the State must seek to strike a
balance of adjusting the interests of the weaker sections of society to the
interests of the community as a whole.
In
State of Maharashtra v. Shivaji Y. Garge C.A. No.
4117/84 decided on 19th
October, 1984 this
Court held the reservation of posts to the extent of 80% as excessive and
destructive of the principle of equality of opportunity in matters relating to
public employment guaranteed under Art. 16(1) of the Constitution and directed
that the State Government would step down the reservation for economically
weaker sections of the society from 46% to 21% in future, leaving in tact 34%
posts reserved for scheduled castes, scheduled tribes, denotified nomadic
tribes and other backward classes. Thus, the overall picture was that
reservation of posts and appointments under Art. 16(1) was reduced from 80% to
55%.
Once
the power to make reservation in favour of scheduled castes and scheduled
tribes is exercised, it must necessarily follow that a roster pointwise 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. According
to the SO point roster, admittedly, the post of Deputy Director (Homeopathic)
was the first vacancy in the cadre of Deputy Directors and therefore it had to
be treated as general i.e. unreserved.
In the
recent case of KC. Vasanth Kumar & Anr. v. State of Karnataka, [1985] Suppl. SCC 714, one of us (Sen,
J.) dealing with the 143 extent of reservation under Art. 15(4) and Art. 16(4),
observed that the doctrine of protective discrimination embodied therein and
the mandate of Art. 29(2) was subject to the requirements of Art. 335 and could
not be stretched beyond a particular limit. It was observed:
"Questions
as to the validity or otherwise of reservations have been agitated several
times before this Court and resolved. The frequency and vigour with which these
questions are raised is a disturbing indication of the tension and unease in
society in regard to the manner in which Art.
15(4)
and Art. 16(4) are operated by the State.
The
Preamble to our Constitution shows the nation's resolve to secure to all its
citizens:
Justice-social,
economic and political. The State's objective of bringing about and maintaining
social justice must be achieved reasonably having regard to the interests of
all.
Irrational
and unreasonable moves by the State will slowly but surely tear apart the
fabric of society. It is primarily the duty and function of the State to inject
moderation into the decisions taken under Arts. 15(4) and 16(4), because justice
lives in the hearts of men and a growing sense of injustice and reverse
discrimination, fuelled by unwise State action, will destroy, not advance,
social justice. If the State contravenes the constitutional mandates of Art. 16(1)
and Art.
335,
this Court will of course, have to perform its duty." A note of caution
was then added:
"The
State exists to serve its people. There are some services where expertise and
skill are of the essence. For example, a hospital run by the State serves the
ailing members of the public who need medical aid. Medical services directly
affect and deal with the health and life of the populace.
Professional
expertise, born of knowledge and experience, of a high degree of technical
knowledge and operational skill is required of pilots and aviation engineers.
The lives of citizens depend on such persons. There are other similar fields of
governmental activity where professional, technological, scientific or other
special skill is called for. In such services or posts under the Union or States, we think there can be no room for
reservation of posts; merit alone must be the sole and decisive consideration
for appointments." 144 There is one more decision that calls for our
attention, namely, that of Arati Ray Choudhury v. Union of India & Ors.,
[1974] 1 SCR 1 where the effect of a carry forward rule resulted in 100%
reservation. After the decision in Devadasan's case, the Ministry of Home
Affairs issued a memorandum modifying the carry forward rule so as to com ply
with the decision. The said memorandum was suitably modified by the Railway
Board in its application to Railway Services by its letter dated 6th October, 1964. The Railway Board prepared a model
roster signifying the turns of reserved and unreserved vacancies. The Note appended
to the roster provided:
"If
there are only two vacancies to be filled on a particular occasion, not more
that one may be treated as reserved and if there be only one vacancy, it should
be treated as unreserved. If on this account a reserved point is treated as
unreserved, the reservation may be carried forward in the subsequent two
recruitment years." In order to minimise chances of reserved posts being
converted into unreserved posts, the Railway Board modified the reservation
rule in 1971 by adding the following words:
"If
there is one post to be filled, selection should invariably be held for two
posts, i.e., one actual and the other to cover unforseen circumstances."
It was contended on behalf of the petitioner that the carry forward rule was violative
of Arts. 14 and 16 of the Constitution and the vacancy in the post of
Headmistress of the Kharagpur School ought to be treated as unreserved vacancy. In repelling the
contention, Chandrachud, J. observed:
"The
model roster accompanying the letter of the Railway Board dated January 16, 1964 is designed to meet the
requirements of the new situation arising out of the rules framed in deference
to the judgment in Devadasan's case. Both the letter and the Note appended to
the roster state expressly that if "there are only two vacancies to be
filled on a particular occasion, not more than one may be treated as reserved
and if there be only one vacancy, it should be treated as unreserved". The
words "on a particular occasion" were substituted on September 2, 1964 by the words "year of
recruitment". Thus, in the first place each year of 145 recruitment is
directed to be considered separately and by itself as laid down in Devadasan's
case so that if there are only two vacancies to be filled in a particular year
of recruitment, not more than one vacancy can be treated as reserved. Secondly,
and that is directly relevant for our purpose, if there be only one vacancy to
be filled in a given year of recruitment, it has to be treated as unreserved
irrespective of whether it occurs in the model roster at a reserved point. The
appointment then is not open to the charge that the reservation exceeds 50%
for, if the very first vacancy in the first year of recruitment is in practice
treated as reserved vacancy, the system may be open to the objection that the
reservation not only exceeds 50% but is in fact cent per cent. But if "on
this account", that is to say, if on account of the requirement that the
first vacancy must in practice be treated as unreserved even if it occurs in
the model roster at a reserved point,"a reserved point is treated as
unreserved", the reservation can be carried forward to not more than two
subsequent years of recruitment. Thus, if two vacancies occur, say, within an
initial span of three years, the first vacancy has to be treated as an
unreserved vacancy and the second as reserved." The learned Judge held
that the open class reaped a benefit in 1966-67 when a reserved vacancy was
treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas.
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. The Kharagpur vacancy could not therefore go
to the petitioner which, admittedly, did not belong to the reserved class. It
was further observed that the construction sought to be put on the rule by the
petitioner would perpetuate a social injustice which has clouded the lives of a
large section of humanity which is struggling to find its feet. Such a
construction was contrary to the plain language of the letter of the Railway
Board, the intendment of the rule and its legislative history. The decision in Arati
Ray Choudhury's case therefore turned on the carry forward rule and is clearly
distinguishable on facts It is quite clear after the decision in Devadasan's
case that no reservation could be made under Art. 16(4) so as to create a
monopoly. Otherwise, it would render the guarantee of equal opportunity
contained in Arts. 16(1) and 16(2) wholly meaningless and illusory.
146
These principles unmistakably lead us to the conclusion that 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 Art. 16(4),
pre-supposes the availability of at least more than one posts in that cadre.
We
would, for these reasons, uphold the judgment of the High Court quashing the
impugned advertisement issued by the Bihar Public Service Commission as also
the appointment of the appellant to the post of Deputy Director (Homeopathic).
We
direct the Public Service Commission to take steps to re- advertise the post
with advertence to the observations made above. However, having regard to the
fact that the appellant has continued to hold that post ever since 30th May, 1979 and confirmed against that post, we
direct the State Government to adjust him in an equivalent post in the Health
Department. At the time of his appointment, the appellant was Medical officer (Homeo)
of Government Homeopathic Dispensary, Raharia (Saharsa) and his appointment to
the higher grade of Deputy Director (Homeopathic) in the directorate of
Indigenous Medicines was virtually a promotion for him. This may be kept in
view by the Government while passing suitable orders.
There
shall be no order as to costs.
H.S.K.
Appeal dismissed.
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