W. P. No. 1224 of 1993

16th August, 1993

Petitioner Counsel: B. P. Apte
Respondent Counsel: R. S. Bhonsle, S. B. Shetye, C. J. Sawant, Mrs. Mogre

JUDGMENT

M. K. MUKHERJEE, C. J. :- Rule, returnable forthwith. By consent taken up for hearing.

2. The petitioners are running an institution known as Chandrashekhar Agashe Shararik Shikshan Mahavidyalaya, at Pune, and it is affiliated to and recognised by the Pune University ('University' for short), since the Principal of the Institution was due to retire in the month of December 1991, the petitioners, by a letter dated November 1991, requested the Vice Chancellor of the University to furnish the names of its two nominees who will work on the Selection Committee to select the new incumbent. They sent another communication to the Deputy Registrar (Academic) of the University enclosing therewith a specimen advertisement, which they intended to publish seeking applications for the post of Principal, for his perusal and guidance. In responding to the former communication the University sent the names of their two nominees to work on the Selection Committee and as regards the latter it sent a letter on January 9, 1992 enquiring of the petitioners as to whether the erstwhile Principal was from the open category or from the reserved category, the petitioners thereafter sent reminders to the University asking it to accord their sanction to the proposed advertisement. Ultimately, by a letter dated February 18, 1992 the University informed the petitioners that the post of the Principal for which the advertisement was to be issued should be kept reserved for a Scheduled Caste candidate. In reply thereto the petitioners, relying upon a Resolution of the State of Maharashtra dated December 19, 1979, pointed out that the post of Principal being an isolated one, it was to be treated as an unreserved one, more particularly in view of the law laid down by the Supreme Court in that regard. By that letter they, therefore, asked of the law laid down by the Supreme Court in that regard. By that letter they, therefore, asked the University to reconsider the matter and issue necessary directions. The University, however, by their letter dated March 28, 1992, reiterated that in view of the subsequent orders issued by the Government of Maharashtra the reservation would be applicable to isolated post by rotation. Even thereafter correspondences ensued between the petitioners and the University authorities wherein they stuck to their respective stands, in that, while the petitioners contended that the post of Principal being an isolated one, it was to be filed in by a candidate from open category, the University, relying upon the directives of the Government, insisted upon the filling up of the same by a candidate from the reserved category. The University then gave an ultimatum to the petitioners to fill in the post of Principal according to their directives by December 31, 1992. Hence this writ petition.

3. Relying upon the judgment of the Supreme Court in the case of Bhide Girls' Education Society vs. Education Officer, Zilla Parishad, Nagpur, reported in 1993 Mh.L.J. 305, the petitioners contended that there being only one post of Head Master, there could be no reservation in such post under Article 16(4) of the Constitution of India. The respondents on the other hand contended, relying upon the earlier decision of the Supreme Court in the case of Arati Ray Choudhary vs. Union of India, 1974(1) SCC 87, that the post could be reserved by rotation. In explaining as to how reservation by rotation could be made in an isolated post, it was submitted on behalf of the respondents that when the first vacancy occurred in the post of Principal it could be given to a candidate of reserved category and the next vacancy in the post could be filled up by a candidate of the open category and so on and so forth.

4. To appreciate the contention of the respondents we may, first, profitably refer to the facts of the case of, Arati Ray Choudhary, (supra).

a) Arati Ray Choudhary, the petitioner therein, was a permanent employee of the South Eastern Railway which ran two higher secondary schools for girls; one at Adra and the other at Kharagpur.

b) Pursuant to and in compliance with the decision of the Supreme Court in the case of T. Devadasan vs. Union of India, reported in AIR 1964 SC 179, the Ministry of Home Affairs issued a Memorandum modifying the "carry forward" rule relating to reservation of posts for Scheduled Castes and Scheduled Tribes in government jobs. By para 2 of the Memorandum, as amended by the Memorandum of September 2, 1964, the carry forward rule was amended by providing that "in any recruitment year the number of normal reserved vacancies and "carried forward" reserved vacancies together shall not exceed 45% of the total number of vacancies". It further provided that if there be only two vacancies, one of them might be treated as a reserved vacancy. But if there be only one vacancy, it should be treated as unreserved. By letter dated October 6, 1964 the Railway Board modified the application of the above rules to the extent that the "recruitment year" was to be the "financial year" and not the "calendar year". Acting in pursuance of the Home Ministry's above Memorandum dated December 4, 1963, as modified from time to time, the Railway Board by its letter dated January 16, 1964 prepared a new "Model Roster" signifying the turns of reserved and unreserved vacancies.

c) In the year 1966 a vacancy occurred in the post of the Head Mistress of the School at Adra. The first point in the Model Roster was a reserved point and, therefore, the Adra vacancy was strictly a reserved vacancy. But there being only one vacancy in the particular year of recruitment, it had to be treated as unreserved and, therefore, the appointment went to one Smt. Biswas, an open, not a reserved candidate. When in the Financial Year 1968-69 a vacancy occurred in the post of Head Mistress of Kharagpur School, the Railways, relying upon the Memorandum dated December 4, 1963 treated the same as a reserved vacancy and considered the only candidate belonging to the Scheduled Caste for selection to that post, to the exclusion of Arati Ray Choudhary, who belonged to the open category, and others. Assailing such selection a number of writ petitions were filed by the aggrieved parties in the Calcutta High Court and ultimately the matter was brought before the Supreme Court through a petition under Article 32 of the Constitution of India filed by Arati Ray Choudhary.

5. In the context of the above facts it was urged on behalf of the petitioner therein that only one vacancy occurred in 1968-69 and since the letter of the Railway Board dated January 16, 1969 said that "if there be only one vacancy, it should be treated as unreserved" the Kharagpur vacancy would be treated as unreserved. The Supreme Court negatived the said contention with the following observations :

".......Such a construction would rob the Rule of its prime significance and will render the carry forward provision illusory. Though each year of recruitment is to be treated separately and by itself, a reserved vacancy has to be carried forward over 2 years, if it is not filled in by the appointment of a reserved candidate. 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 has to be given any meaning, the vacancy shall have 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 was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly, does not belong to the reserved class. The construction sought to be put up on the Rule by the petitioner would perpetuate a social justice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the Rule and its legislative history".

In our considered view the above principle cannot have any manner of application here inasmuch as unlike the case of Arati Ray Choudhary, (supra) wherein there were two posts of Headmistresses in the schools run by the Railways, in the case before us the Institution in question, owned by the petitioners, is one of its kind. On the contrary the facts which fell for consideration in the case of Bhide Girls' Education Society, (supra) are on all fours with the facts of the instant case. In that case Bhide Girls' Education Society, the Supreme Court also considered the decisions in the cases of Arti Ray Choudhary, (supra) and Dr. Chakradhar Paswan vs. State of Bihar, reported in 1988 Mh.L.J. 565 (SC) = (1988) 2 SCC 214 and observed as under:

"In our view, the decision given by this Court in Dr. Chakradhar Paswan's case concludes the controversy raised in the case before us. It is an admitted position that there is only one post of Head Mistress in the High School run by the appellant-Society and as such there cannot be any reservation on such post."

While on this point, we may also profitably refer to the following passage from the judgment of the Supreme Court in the case of Dr. Chakradhar Paswan (supra) :

"It is quite clear after the decision in Devadasan's case that 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 16(2) wholly meaningless and illusory. 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 Article 16(4), presupposes the availability of at least more than one post in that cadre." (Emphasis supplied).

The above quoted passage completely negatives the contention of the respondents that the post can be reserved by rotation for the post whenever it falls vacant and continues to remain as an isolated post.

6. It was, however, contended on behalf of the respondents that having regard to the facts, that the decision of the Supreme Court in the case of T. Devadasan, (supra) stood expressly overruled in the case of Indra Sawhney vs. Union of India, reported in AIR 1993 Supreme Court 477, and that the decision in the case of Dr. Chakradhar Paswan primarily rested upon Devadasan's case and in the case of Bhide Girls Education Society, upon Dr. Chakradhar Paswan's case, the law laid dpwn in those two cases, as quoted above, could not be said to be good law any more.

7. Having carefully gone through the cases of T. Devadasan (supra) and Indra Sawhney, (supra), we are unable to accept the cotention of the respondents.

8. In the case of T. Devadasan, the validity of the following 'carry forward' rule in respect of unfilled reserved vacancies in all services under the control of Government of India was under challenge :

"If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year.

9. While dealing with the same, the Supreme Court observed that the reservation for backward class communities should not be so excessive so as to create a monopoly or disturb unduly the legitimate claims of other communities. It next observed that to hold that unlimited reservation of appointments could be made under clause (4) of Article 16 would in effect efface the guarantee contained in Clause (1) or at best make it illusory. It also observed that the overriding effect of Clause (4) on Clauses (1) and (2) of Article 16 could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. With the above and other observations, the Supreme Court struck down the impugned rule as it found that more than 50% of the vacancies for the year 1960 came to be reserved thereby. In overruling the above decision in the case of Indra Sawhney (supra) the Supreme Court first observed as under :

"We are of the respectful opinion that on its own reasoning, the decision in so far as it strikes down the Rule is not sustainable. The most that could have been done in that case was to quash the appointments in excess of 50%, inasmuch as, as that a matter of fact, more than 50% of the vacancies for the year 1960 came to be reserved by virtue of the said Rule. But it would not be correct to presume that is the necessary and the only consequence of that rule. Let us take the very illustration given at pp. 691-2, namely 100 vacancies arising in the three successive years and 18% being the reservation quota and examine. Take a case, where in the first year, out of 18 reserved vacancies 9 are filled up and 9 are carried forward. Result would be that in the third year 9 + 9 + 18 = 36 (out of a total of 100) would be reserved which would be far less than 50% the rule in Balaji, AIR 1963 SC 649, is not violated. But by striking down the Rule itself, carrying forward of vacancies evenin such a situation has become impermissible, which appears to us indefensible in principle."

10. The Court then quoted the following passage from its earlier judgment in the case of A.B.S.K. Karmachari Sangh (Rly.) vs. Union of India, AIR 1981 SC 298 :

"In Devadasan's case the Court went into the actuals, not into the hypotheticals. This is not important. The Court actually verified the degree of deprivation of the 'equal opportunity' right ....

.....What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right ... Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced. All that we need to say is that the Railway Board shall take care to issue instructions to see that in no year shall SC and ST candidates be actually appointed to substantially more than 50% of the promotional posts. Some excess will not affect as mathematical precision is different in human affairs, but substantial excess will void the selection. Subject to this rider or condition that the 'carry forward' rule shall not result, in any given year, in the selection of appointments of SC and ST candidates considerably in excess of 50% we uphold Annexure I."

and observed:

"We are in respectful agreement with the above statement of law. Accordingly, we overrule the decision in Devadasan, AIR 1964 SC 179. We have already discussed and explained the 50% rule in paras 93 to 96. The same position would apply in the case of carry forward rule as well. We, however, agree that a year should be taken as the unit or basis, as the case may be, for applying the rule of 50% and not the entire cadre strength.

We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50% rule." (emphasis supplied).

11. It will thus be see that while overruling the judgment in the caseof T. Devadasan, AIR 1964 SC 179, the Supreme Court did not disturb the observation made therein that the reservation should not be excessive as to create a monopoly. On the contrary, as noticed earlier, it has expressly laid down that the carrying forward rule should not result in breach of reservation of more than 50%. To put it differently, Indra Sawhany's case has not laid down that there can be 100% reservation. That necessarily means that the principle laid down by the Supreme Court in the cases of Dr. Chakradhar Paswan, 1988 Mh.L.J. 565 = 1988(2) SCC 214 (supra) and Bhide Girls' Education Society, 1993 Mh.L.J. 305 (supra) that there can be no reservation in an isolated post has to be adhered to.

12. On the conclusions as above, we allow this writ petition and direct the respondents to permit the petitioners to advertise the post of Principal in the Institution treating the same as an open post - and not a reserved one - and to permit them to fill in the same by a non-reserved candidate in accordance with law. Needless to say, all communications issued to the petitioners asking them to fill in the post of Principal by a reserved candidate by rotation shall stand quashed.

13. Rule is made absolute accordingly with no order as to costs.

Petition allowed.