AKHILESH KUMAR SINGHversusRAM DAWAN & ORS.

                      [2015] 9 S.C.R. 467


                 AKHILESH KUMAR SINGH                               A
                               v.
                    RAM DAWAN & ORS.
               (Civil Appeal No.1931 of 2010)
                   SEPTEMBER 23, 2015                               B

      [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

      Service law - Reservation - Singular post in a cadre -
Promotion to the post of clerk - Claim of - Single Judge
holding that the claim was untenable as there was singular          C
post in the cadre of clerk duly sanctioned and created in the
institution and thus, the said post could not be reserved for
promotion from amongst the class IV employees - Division
Bench of the High Coqrt holding that a single post of Class
                                                                    0
Ill available in intermediate college governed by the Act can
be filled up by promotion - On appeal, held: Reservation for
a single post in a cadre would keep the general members of
the publicin total exclusion - Reservation would arise when
there is plurality of post in the cadre - Reservation is only       E
restricted to the Scheduled Castes, Scheduled Tribes and
Other Backward Classes - It does not relate to the persons
serving in the feeder cadre - In the instant case, Regulation
provides for 50% of the total number of posts to be promoted
through promotion - Note appended lays down that in                 F
calculation of the 50% of the post less than half would be left
and half or more than half post would be deemed as one -
Thus, if a singular post in the clerical cadre is there, it would
be filled up by promotion from amongst the eligible
candidates from the feeder cadre - Order passed by the              G
Division Bench was correct - U P. Intermediate Education
Act, 1921- Constitution oflndia, 1950-Arts 16(1), (4).


                              467                                   H
468         SUPREME COURT REPORTS                [2015] 9 S.C.R.


A          Jai Bhagwan Singh v District Inspector of Schools,
      Gautambudh Nagar & Ors. 2006 3 UPLBEC 2391; Palak
      Dhari Yadav 1999 3 UPLBEC 2315; Post Graduate Institute
      of Medical Education & Research, Chandigarh v. Ff!CU/ty
      Association and others (1998) 4 SCC 1 :1998 (2) SCR 845;
B     Union of India v. Madhav (1997) 2 SCC 332: 1996 (6) Suppl.
      SCR 503; State of Punjab and others v. R.N. Bhatnagar and
      Anr. (1999) 2 SCC 330: 1998 (3) Suppl. SCR 693; Ku/deep
      Kumar Gupta and others v. H.P State Electricity Board and
      Ors. (2001) 1 SCC475: 2000 (5) Suppl. SCR 572- referred
c     to.

                        Case Law Reference

        2006 3 UPLBEC 2391            Referred to.   Para 4
D
        1999 3 UPLBEC 2315            Referred to.   Para 4

         1998 (2) SCR 845             Referred to.   Para 7

        1996 (6) Suppl. SCR 503       Referred to.   Para 7
E
         1998 (3) Suppl. SCR 693      Referred to.   Para 9

         2000 (5) Suppl. SCR 572      Referred to.   Para 10

          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
F     1931 of2010.

          From the Judgment and Order dated 18.07.2007 of the
      High Court of Judicature at Allahabad in Special Appeal No.
      1191 of2006.
G
          Pramanand Gaur, S.C. Singhal for the Appellant.

      Hariom Yaduvanshi, Geeta Singh, Dr. Monika Gusain,
  Gagan Gupta, Vivek Vishnoi, M. R. Shamshad, Shashank
H Singh for the Respondents.
     AKHILESH KUMAR SINGH v. RAM DAWAN & ORS.                  469


     The Judgment of the Court was delivered by                  A

      DIPAK MISRA, J. 1. A deep rooted desire strongly planted
 in unsatisfied ambition has compelled tl:ie appellant to paint a
 picture with the colour of 'reservation' on a constitutional
 foundation eventually with immense aspiration that he can B
 achieve it by sheer assertion and repeated asseveration of
 the proposition that a singular post in a cadre cannot be
 reserved, totally ostracizing the contrary perception that the
 principle of reservation, as is understood in the constitutional
 bedrock, is absolutely foreign to the concept.                   C

       2. Presently to the factual expose. The first respondent
  was appointed as Daftari on 1. 7 .1975 in Kisan Uchchatar
  Madhyamic Vidyalaya, Hidra, Kanwar, Basti, a recognised
  Intermediate College governed by the U.P. Intermediate         o
  Education Act, 1921 (for short, "the 1921 Act") and he became
  a permanent employee with effect from 13.10.1981. He
  passed the High School education in the year 1997 and
  thereafter the intermediate examination in the year 2000 as a
  consequence of which he became eligible for consideration E
  of promotion for the post of Clerk. On 30.6.2003, Roop Narain
  Singh who was working as a Clerk, on attaining the age of
  superannuation stood superannuated and one Assistant
  Teacher remained incharge. After retirement of Roop Narain
  Singh, the first respondent submitted an application to the F
  District Inspector of Schools, through the Principal for his
  promotion to the post of Clerk. The concerned Principal
  forwarded the said application on 14.7.2003 to the District
  Inspector of Schools along with the seniority list. As no
  response was received from the District Inspector of Schools G
. relating to the promotion of the first respondent, the Principal
  sent a reminder. It needs to be stated that as there was no
  Committee of Management in the Institute, the Assistant District
  Inspector of Schools was functioning as the Management H
  Controller and despite his best efforts he could not hold the
470            SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A      elections. The authorities advertised in a newspaper for filling
      ·up of the post of Clerk and because of the said advertisement,
       the approval for the post of promotion as far as first respondent
       is concerned was not given and he felt grieved thereby.

B      3. As the factual narration would unveil, the first respondent
  submitted a representation to the Joint Director of Education
  on 22.6.2006, but nothing affirmative ensued and in the
  meantime the present appellantAkhilesh Kumar Singh was
  appointed. Being dissatisfied with the same, the first
C respondent invoked the jurisdiction of High Court in Writ
  Petition No. 39738 of 2006. The learned Single Judge taking
  note of the fact that the claim of the writ petitioner seeking
  promotion to the post of Clerk was untenable inasmuch as
  there was a singular post in the cadre of Clerk duly sanctioned
D and created in the institution and in such circumstances the
  said post could not be reserved for promotion from amongst
  the Class IV employees. However, the learned single Judge
  observed that if the writ petitioner felt that the appointment of
  the selected candidate by direct recruitment was patently illegal
E and de hors the rules, he could submit a representation to the
  District Inspector of Schools and, in that event, the authority
  concerned shall pass a reasoned and speaking order keeping ·
  in view the various provisions of the 1921 Act.

F      4. Being dissatisfied with the said order, the 1st respondent
  herein preferred Special Appeal No. 648 of2006. The Division
  Bench encapsuled the controversy in a short compass, that is,
  whether a single post of Class Ill available in an intermediate
  college governed by the Act could be filled up only by promotion
G or by direct recruitment. The Division Bench referred to an
  earlier Division Bench judgment in Jai Bhagwan Singh v.
  District Inspector of Schools, Gautambudh Nagar & Ors. 1 ·
  and came to hold that a single post of Class Ill available in
H     1
          2006 3 UPLBEC 2391
      AKHILESH KUMAR SINGH v. RAM DAWAN & ORS.                       471
                   . [DIPAK MISRA, J.]

intermediate college governed by the 1921 Act can be filled             A
up by promotion and the earlier decision in Pa/ak Dhari Yadav2
was not legally sound. On the base of the said reasoning, the
Division Bench annulled the decision rendered by the learned
Single Judge. The said judgment and order passed by the
Division Bench is under assail in this appeal by special leave.         B

      5. We have heard Mr. Parmanand Gaur, learned counsel
for the appellant and Mr. Hariom Yaduvanshi, Mr. Gagan Gupta
and Mr. Vivek Vishnoi, learned counsel for the respondents.
                                                                        c
     6. It is imperative to note at the outset that there is no
dispute with regard to the factual score. The institution is
covered by the 1921 Act. A set of Regulations has been framed
under the said Act providing for promotion from Class IV to
Class Ill. Regulation 2 which is relevant for the present purpose       o
is reproduced below:-

       "2. (1) For the purpose of appointments of clerks and
       Fourth class employees the minimum educational
       qualification would be the same as has been fixed from           E
       time to time for the equivalent employees of Government
       Higher Secondary Schools.

       (2) Fifty percent of the total number of sanctioned posts of
       head clerk and clerks shall be filled among the serving F
       clerks and employees through promotion. If employee
       possesses prescribed eligibility and he has served
       continuously for 5 years on his substantive post and his
       service record is good, then promotion shall be made on
       the basis of seniority, subject to rejection of the unfit. If any G
       employee is aggrieved by any decision or order of the
       management committee in this respect then he can make
       representation against it to the Inspector within two weeks

2   1999 3 UPLBEC 2315                                                  H
472          SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A          from the date of such decision or order. Inspector on such
           representation can make such orders as he thinks fit.
           Decision of the Inspector would be final and promptly
           executed by the management.

B          Note:- In calculating fifty percent of posts parts less than
           half would be left and half or more that half post would be
           deemed as one."

       7. On a plain reading of the aforesaid Regulation, it is quite
c luminous that the "Note" appended to it makes it abundantly
  clear that there is a singular post. The Regulation lays down
  the postulates for filling up of the post. The crux of the matter
  is whether in the instant case a cadre that constitutes of a single
  post has been reserved. In Post Graduate Institute of
o Medical Education & Research, Chandigarh v. Faculty
  Association and others 3 , the Constitution Bench was
  considering the correctness of the decision rendered in Union
  of India v. Madhav4. Apart from many a contention, it was
  also submitted before this Court that for implementing 50-point
E roster, isolated and separate posts in different specialities
  cannot be clubbed together and reservation of posts by
  applying the roster can be made only where there are more
  than one post and reservation of only one post cannot be made
  because such reservation would amount to 100% reservation
F which would violate Article 16(1) and Article 16(4) of the
  Constitution. The Constitution Bench after discussing the law
  at length has held:-

          "34. In a single post cadre, reservation at any point of time
G         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

      '(1998) 4 sec 1
H • (1997) 2 sec 332
    AKHILESH KUMAR SINGH v. RAM DAWAN & ORS.                         473
                 [DIPAK MISRA, J.]

    classes and in total exclusion of the general members of A
    the public. Such total exclusion of general members of
    the public and cent per cent reservation for the backward
    classes is not. permissible within the constitutional
    framework. The decisions of this Court to this effect over
    the decades have been consistent.                          B

    35. 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 C
    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 D
    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 E
    all segments of the society."

     8. From the aforesaid enunciation of law, it is eminently
explicit that reservation for a single post in a cadre will keep
the general members of the public in total exclusion and the          F
question of reservation will arise when there is plurality of post
in the cadre. Needless to say that the Constitution Bench has
been stating about the reservation with regard to the Scheduled
Castes, Scheduled Tribes and Other Backward Classes. It
does not lay down that if a post is meant to be filled up by          G
promotion from amongst the employees working in the feeder
cadre, it would tantamount to reservation. Reservation is only
restricted to the Scheduled Castes, Scheduled Tribes and
Other Backward Classes. It does not relate to the persons             H
serving in the feeder cadre.
474            SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A       9. In State of Punjab and others v. R.N. Bhatnagar and
  Another6, it has been laid down 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,
B their birthmarks disappear and they get completely integrated
  in the common cadre and it is in consonance with the thrust of
  Article 16(1) of the Constitution of India. The Court further
  observed that no question of exception to the said general
  thrust of the constitutional provision would survive as Article
C 16(4) would be out of the picture in such a case.

           10. In this context, a reference to a two-Judge Bench
      decision in Ku/deep Kumar Gupta and others v. H.P. State
      Electricity Board and others6 is apposite. In the said case,
D     a contention was advanced that providing a quota tantamounts
      to reservation. Repelling the said submission, it was ruled:-

             "Article 16 deals with equality of opportunity in matters of
             public employment and Article 16(4) enables the State in
E            making any provision for 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. This Court in Indra Sawhney7
             case has held that no such reservation is permissible in
F            the promotional posts and to get over the said decision
             Article 16(4-A) has been inserted by the Constitution
             (Seventy-seventh Amendment) Act. But we fail to
             understand as to how providing a quota for a specified
             category of personnel in the promotional post can be held
G            to be a reservation within the ambit of Article 16(4).
             Providing a quota is not new in the service jurisprudence
      s (1999) 2   sec 330
      6   {2001) 1 SCC475
H     1
          1992 Supp (3) sec 211
    AKHILESH KUMAR SINGH v. RAM DAWAN & ORS.                    475
                 [DIPAK MISRA, J.]

     and whenever the feeder category itself consists of            A
     different category of persons and when they are considered
     for any promotion, the employer fixes a quota for each
     category so that the promotional cadre would be
     equibalanced and at the same time each category of
     persons in the feeder category would get the opportunity       B
   . of being considered for promotion. This is also in a sense
     in the larger interest of the administration when it is the
     employer, who is best suited to decide the percentage of
     posts in the promotional cadre, which can be earmarked
     for different category of persons. In other words this         C
     provision actually effectuates the constitutional mandate
     engrafted in Article 16(1), as it would offer equality of
     opportunity in the matters relating to employment and it
     would not be the monop.oly of a specified category of
                                                                    0
     persons in the feeder category to get promotions. We,
     therefore, do not find any infraction of the constitutional
     provision engrafted in Article 16(4) while providing a quota
     in the promotional cadre, as in our view it does not
     tantamount to reservation".                                    E

     11. The purpose of referring to the aforesaid decisions is
that the concept of reservation finds place in Article 16(4) and
does not apply to the concept of quota from the feeder cad re.
In the instant case, the Regulation provides for 50% of the total F
number of posts to be promoted through promotion. The "Note"
appended is an inseparable part of the Regulation and it lays
down that in calculation of the 50% of the post less than half
would be left and half or more than half post would be deemed
as one. Therefore, if a singular post in the clerical cadre is G
there, it would be filled up by promotion from amongst the
eligible candidates from the feeder cadre. Adopting such a
method or taking such route does not remotely touch the idea
of reservation. Hence, the submission put forth by the learned
counsel for the appellant sans substance.                         H
476          SUPREME COURT REPORTS                [2015) 9 S.C.R.


 I\       12. In view of the aforesaid premises, we do not perceive
      any merit in this appeal and accordingly, the same stands
      dismissed without any order as to costs.

      N1dhi Jain                                   Appeal dismissed.
 B