Supreme Court of India
POSTGRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARHversusFACULTY ASSOCIATION AND ORS.
- Citation
- 1998 INSC 184
- Decided
- 17 April 1998
- Disposal
- Disposed off
- Bench
- S C AGRAWAL
Holding
Reservation cannot be made in a single‑post cadre, either directly or by rotation of roster, as it would amount to 100% reservation and contravene Articles 14, 16(1) and 16(4).
Summary
The Supreme Court reviewed a 1997 decision that allowed reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in a single‑post cadre by means of a rotating roster. The Court examined whether such reservation, either directly or via roster rotation, is constitutionally permissible under Articles 14, 15, 16(1), 16(4) and 16(4A) of the Constitution. It held that reserving a single post inevitably leads to 100% reservation at some point, thereby excluding the general category and violating the guarantee of equality of opportunity. Consequently, the Court overruled earlier decisions that permitted reservation in a single‑post cadre and set aside the impugned judgment. The review petition was allowed and the earlier order was vacated.
Issues considered
- Whether reservation for SC, ST and OBC can be made in a single‑post cadre directly.
- Whether the device of rotating roster can validly effect reservation in a single‑post cadre.
- Whether such reservation would violate Articles 14, 16(1) and 16(4) of the Constitution.
- Whether the 77th Amendment (Article 16(4A)) alters the analysis for single‑post cadres.
Legislation cited
- Code of Civil Procedure, 1908s. Section 47
- Constitution of Indias. Article 14, s. Article 15, s. Article 16(1), s. Article 16(2), s. Article 16(4), s. Article 16(4A)
- Supreme Court Rules, 1966
Subjects
ReservationSingle post cadreArticle 16(4)Article 16(4A)RosterEquality of opportunityService lawAffirmative action
Judgment
POSTGRADUATE INSTITUTE OF MEDICAL EDUCATION AND A
RESEARCH, CHANDIGARH
... v.
FACULTY ASSOCIATION AND ORS.
APRIL 17, 1998
B
[S.C. AGRWAL, G.N. RAY, DR. A.S. ANAND, S.P. BHARUCHA
ANDS. RAJENDRA BABU, JJ.]
Service Law :
c
Reservation-SC, ST and OBC-Single post cadre-Roster-
Applicability-Held: There cannot be any reservation in a single post cadre
either directly or by device of rotation of roster-Contrary decision in some
previous cases, overruled-Plurality of posts essential for reservation.
Constitution of India, 1950 : D
Articles 16(4) and 16(4A)-Reservation-Backward Classes-Special
provisions for-Held: There must be a balance in the matter of appointments
between reserved and general classes-In making reservations for bakward
classes, the State cannot ignore the fundamental rights of the general
candidates-Therefore, special provision under Art. 16(4) must strike a E
balance between several relevant considerations and proceed objectively--
Hence, reservations cannot exceed 50%- Articles 16(1), (2) & (4)-Scope
of -Held: Art. 16(4) is not an exception to Arts. 16(1) and 16(2) but an
instance of classification permitted by Art. 16(1)-Equality of opportunity
under Art. 16(1) is to be reconciled with concessions in favour of backwara·
classes under Art. 16(4) in such a manner that the latter while serving the F
cause of backward classes, do not unreasonably encroach upon the field of
equality.
Article 13 7-Supreme Court judgment-Review of-Decision rendered
on incorrect appreciation of law-Review allowed by a larger Bench-
Supreme Court Rules, 1966-Code of Civil Procedure, 1908, 0.47 R.1- G
Practice and Procedure.
The appellants have filed the present review petition against the decision
rendered by a three-Judge Bench of this Court in Post Graduate Institute
of Medical Education and Research v. K.L Narashimhan, CA No. 3175 of
1977 decided on 2-5-1997. H
845
846 SUPREME COURT REPORTS [1998] 2 S.C.R.
A The question before this Contitution Bench was "Whether in a single
cadre post, reservation for the backward classes, namely, Scheduled Castes,
....
Scheduled Tribes and Other Backward Classes can be made either directly
or by applying rotation of roster point".
Allowing the appeal, this Court.
B
HELD : 1.1. In a single post cadre reservation at any point of time 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 classes and in total exclusion of the general members of the
public. Such total exclusion of the general members of the public and cent
C percent reservation for the backward classes is not permissible within the
constitutional framework. 1868-F-G)
1.2. 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
D is bound 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 bound to the members of a
large segment of the community who do not belong to any reserved class, but
E 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 all segments of the society. [868-H; 869-A-B)
1.3. The view taken in Chakrdhar's that there cannot be any reservation
in a single post cadre is approved. The decisions in Madhav's case, Brij Lal
F Thakur's case and Bageswari Prasad's case, upholding reservation in a
single post cadre either directly or by the device of rotation of roster point
are not approved. Accordingly, the impugned decision in Post Graduate
Institute of Medical Education and Research v. K.L. Narashimhan, CA No.
3175 decided on 2-5-1997 cannot also be sustained. It is, therefore, set aside.
1869-D-E]
G 1.4. There is need for reservation for the members of the Scheduled
Castes and Scheduled Tribes and Other Backward Classes and such
reservation is not confined to the initial appointment in a cadre but also to
the appointment in promotional post. It cannot however be lost sight of that
in the anxiety for such reservation for the backward classes, a situation
H should not be brought by which the chance of appointment is completely
P.G.I. CHANDIGARH v. FACULTY ASSOC[ATJON 847
taken away so fa1· as the members of other segments of the society are A
concerned b)· making such single post cent percent reserved for the reserved
\ categories to the exclusion of other members of the community even when
such member is senior in service and is otherwise more meritorious.
[867-E-F)
Arati Ray Chaudhry v. Union of India, [1974] l SCC 87 and Chetna B
Di lip Motghare v. Bhide Girls' Education Society, [1995) Supp. 1 SCC 157,
relied on.
Indra Sawhney v. Union ofIndia [1992) Supp. 3 SCC 217 and Vidulata
Arvind Kakade v. Digambar Gyanba Surwase, referred to.
Dr. Chakradhar Paswan v. State of Bihar, [1988) 2 SCC 214, affirmed.
c
Union of India v. Madhav, [1997] 2 SCC 332; State of Bihar v.
Bageshwari Prasad, [1995) Supp. 1 SCC 432; Union of India v. Brij Lal
Thakur JT (1997) 4 SC 195 and Shri Suresh Chandra v. Shri J.B. Agrawal
JT (1997) 4 SC 72, over111led. D
(
..- Post Graduate Institute of Medical Education and Research v. K.L.
Narashimhan, CA No. 3175 of 1977 decided on 2-5-1997, reversed.
2. Articles 14, 15 and 16 including Articles 16(4) and 16(4A) must be
applied in such a manner so that the balance is st111ck in the matter of E
appointments by creating reasonable opportunities for the reserved classes
and also for the other members of the community who do not belong to
reserved classes. Such a view has been indicated in the Constitution Bench
decisions of this Court in Balaji '.s case, Devadasan '.s case and Sabhanval '.s
case. Even in Indra Sawhny :~ case, the same view has been taken by indicating
that only a limited resen·ation not exceeding 50% is permissible. Article F
15(4) is an enabling provision like Article 16(4) and the reservation under
either provision should not exceed legitimate limits. In making resen•ations
for the backward classes, the State cannot ignore the fundamental rights of
rest of the citizens. The special provision under Article 15(4) must, therefore,
strike a balance between several relevant considerations and proceed
objectively. It has been indicated in Indra Sawhney s case that Article 16(4) G
is not in the nature of an exce11tion to Articles 16(1) and 16(2) but an
instance of classification permitted by Article 16(1). It has also been indicated
in that decision that Article 16(4) does not cover the entire field covered by
A11icles 16(1) and 16(2). Indra Sawhney's case, this Court has also indicated
that in the interests of the backward classes of citizens, the State cannot H
848 SUPREME COURT REPORTS [1998] 2 S.C.R.
A reserve all the appointment under the State or even a majority of them. The
doctrine of equality of opportunity in Article 16(1) is to be reconciled in
favour of backward classes under Article 16(4) in such a manner that the
latter while se1i'ing the cause of backward classes shall not unreasonably
encroach upon the field do equality. [867-G-H; 868-A-EJ
'
B Indra Sawhney v. Union of India, [1992] Supp. 3 SCC 217, followed.
M.R. Balaji v. State ofJvfysore, [1963) Supp. 1SCC439; TDevadasan l
v. Union of India [1964) 4 SCR 680; R.K. Sabhanval v. State of Punjab
[1995) 2 SCC 745; State ofBihar v. Bageshwari Prasad, [1995] Supp. lSCC
432; C.A. Rajendran v. Union of India, AIR (1968) SC 507; State ofA.P. v.
C USV Balaram, AIR (1972) SC 1375 and Trilokinath v. State ofJ. & K., AIR
(1967) SC 1283, relied on.
General Manager SE Railway v. Rangachari, [1962) 2 SCR 586,
referrld to.
D CIVIL APPELLATE JURISDICTION: R. P. (C) No. 1749of1997
in Civil Appeal No. 3175 of 1997 Etc. Etc.
' ..
From the Judgment and Order dated 3.9.92 of the Punjab & Haryana
High Court in LP.A. No. 954/92 in C.W.P. No. 15313of1990.
E
T.R. Andhyarujina, Solicitor General, U.S. Usgaonkar, Additional Solicitor
General, D.S. Nehra, N.N. Goswami, R.K. Jain, H.K. Puri, R.S. Sodhi, E.C.
Agrawala, Atul Sharma, Mahesh Agarwal, S.K. Mehta, Ranbir Yadav, Ms.
Ranjana Narayan, Subrat Birla, Wasim A. Qadri, Ms. Niranjana Singh, Anil
Katiyar, P. Parmeswaran, S.K. Verma, Suresh Ch. Gupta, S.C. Paul, Jitendra
F Chaudhry, Ms. Rekha Pandey and L.K. Pandey for the appearing parties. f-.
)..
The Judgment of the Court was delivered by
G.N. RAY, J. In all these matters a common question arises for decision
G as to whether in a single cadre post reservation for the backward classes,
namely, Scheduled Castes, Scheduled Tribes and other backward classes can
be made either directly or by applying rotation of roster point. There are
conflicting decisions of this Court on the question of such reservation in a
single cadre post.
H The learned counsel for tile parties in all tllese matters have agreed tllat
P.G.L CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J.] 849
the question of law as to the constitutional validity of reservation in a single A
cadre post is to be decided by the Constitution Bench and thereafter the
cases will be placed before the appropriate Bench for disposal on merits in
accordance with decision rendered by this Bench. Therefore, the question of
constitutional validity of reservation in a single cadre post either directly or
by rotation of roster point has been considered by us and we have not taken
into consideration other contentions raised in these matters. B
j
In support of the contention that reservation can be made not only in
respect of the promotional post but also in respect of a single post in a cadre,
Mr. E.C. Agrawala, learned counsel appearing for the appellant in CA No.
2346/81, Mr. Puri, learned counsel appearing for the appellant in CA No. 2345 C
of 1981, Mr. R.K. Jain, learned senior counsel appearing for the Intervenor in
the review petition filed in CA No. 317 5 of 1997 on behalf of the Scheduled
Castes and Scheduled Tribes Employees Welfare Association, Post Graduate
Institute of Medical Education and Research, Chandigarh, and Mr.
Andhyarujina, learned Solicitor General appearing for the appellant in SLP (C) D
No. 13148 of 1997 for the petitioner Union of India have made elaborate
submissions. Mr. Kapil Sibal, learned senior counsel appearing in support of
the review petition in CA No. 3175 of 1997 has opposed the contention that
a reservation can be made in respect of a single post cadre. Other learned
counsel appearing in these matters have adopted the rival contentions, without E
advancing any separate argument.
Mr. Kapil Sibal has submitted that there cannot be any reservation
either for initial appointment or for an appointment on promotion in respect
of a single post cadre either directly or by the device of rotation of roster.
Mr. Sibal has contended that the very concept of carry forward or the principle F
of roster is alien to a single post cadre. He has also contended that the
principle of carry forward meaning thereby carrying forward reservation
presupposes existence of multi posts cadre. If there is only one post in a
cadre, the vacancy for such single post being filled up, there will be no
occasion for carrying forward reservation for filling up such vacancy. Mr.
Sibal has also contended that the rationale of reservation under Article 16(4) G
of the constitution is founded on the inadequacy of representation of a class
in the service under the State. The question of adequacy of representation
does not and cannot arise in a single post cadre because only one person
can be accommodated against the single post, leaving no scope for adequate
representation of any particular class in such single post. H
r
850 SUPREME COURT REPORTS [1998] 2 S.C.R.
A Mr. SilJal has contended that the impugned judgment cannot be
supported because (a) reservation of super speciality is against the decision
of a Nine Judges· Bench decision of this Court in Indra SmFlmey etc. v.
Union of India and Ors., (1992) Supp. 3 SC 217. and (b) no reservation in a
single cadre post is permissible in law. Mr. Sibal has submitted that both in
the impugned judgment and also in the judgment of Union of India and Anr.
B v. Madin\' and Anr., [1997] 2 sec 332, on which reliance has been made in
the impugned judgment, the ratio in the decision of Ara ti Ray Choudhury v.
Union of India and Ors., [1974] l SCC 87, was wrongly appreciated and the
ratio was wrongly stated. Mr. Sibal has drawn the attention of the Court to
the observations of Justice Reddy speaking for majority decision on Article
C 335 of the Constitution as contained in paragraph 112 of the decision in Indra
Sawhney :1· case which are as follows:-
"While ou Article 335, we are of the opinion that there are certain
services and positions where either on account of the nature of duties
attached to them or the level (in the hierarchy) at which they obtain,
D merit as explained hereinabove, alone counts. In such situations it
may not be advisable to provide for reservations. For example,
,..
technical posts in research and development organisations/
departments/institutions, in specialities and super-specialities in
medicine, engineering and other such courses in physical sciences
and mathematics, in defence services and in the establishments
E
connected therewith. Similarly, in the case of posts at the higher
echelons e.g. Professors (in Education), Pilots in Indian Airlines and
Air India, Scientists and Technicians in nuclear and space application,
provision for reservation would not be advisable.
F xxx xxx xxx
Be that as it may we are of the opinion that in certain sen·ices and
in respect of certain posts. application of the rule of rescn'ation may
not be advisable for the reason indicated hereinbefore. Some of them
are : (1) Defence Services including all technical posts therein ·but
G excluding civil posts. (2) All technical posts in establishments engaged
in production of defence equipment. (3) Teaching posts of Professors
-above if any, (4) Posts in super specialities in Medicine, engineering
and other scientific and technical subjects. (5) Posts of pilots (and co-
pilots) in Indian Airlines and air India. The lisi given above is merely
H illustrative and not exhaustive. It is for the Government of India to
P.G.J. CHANDWARH v. FACULTY ASSOCIATION [G.N. RAY, J.] 851
consider and specify the service and .posts to which the Rule of A
reservation shall not apply but on that account the implementation of
impugned office Memorandum dated 13th August, 1990 cannot be
'
stayed or withheld.
We may point out that the services posts enumerated above, on
account of their nature and duties attached, are such as call for B
highest level of intelligence, skill and excellence. Some of them are
second level and third level posts in the ascending order. J-lence, they
form a catego1y apart. Reservation therein may noi be consistent with
"efficiency of administration" contemplated by Art. 3 35.
We may add that we see no particular relevance of Article 38(2) c
in this context. Article 16(4) is also a measure to ensure equality of
status besides equality of opportunity."
Mr. Sibal has also submitted that the reservation for the socially,
economically and educationally backward classes is made so that the members
of such backward classes do not fail to get adequate representation in public
D
employment on account of facing open competition. But such reservation
cannot be and should not be made for posts in higher echelons where merit
and expertise are essential and also necessary for discharging the duties and
responsibilities of such positions in higher echelons of service. Mr. Justice
Reddy in the majority decision, which was also concurred by Justice Pandian, E
has pointed out that there are some services and positions where either on
account of the nature of duties attached to them or the level in the hierarchy
at which they obtain, merit alone counts. Jn such situations, it may not be
advisable to provide for reservation and in that context, by way of illustration,
enumerated certain positions including the technical posts in the Establishment
engaged in Research and Development, the teaching posts of Professors and F
above, the posts of super-specialities in Medicine, Engineering and other
Scientific and Technology subjects, and also posts of pilots and co-pilots in
Indian Airlines and Air India. Mr. Sibal has submitted that by and large, in
the higher echelons of service, there is a single post cadre. The appointment
to the posts of Professors or Readers in the super-speciality of Medicine in G
an advanced institution like the Post Graduate lnsfrtute of Medical Research
~
& Education in Chandigarh, appointments must be made strictly on the basis
of selection,on merits and any attempt of reservation by whatever method will
not only be against law laid down by this court but also against the larger
interests of the country. H
852 SUPREME COURT REPORTS [1998) 2 S.C.R
A Mr. Sibal has contended that in M.R. Bnlaji & Ors. v. State of Mysore,
[1963] Supp. I SCR 439, this Court struck down the order by which 68'% of
seats in educational institutions were reserved for the members of Scheduled
Castes and Scheduled Tribes and other educationally backward classes. This
Court did not suggest any percentage which should be reserved for such
-
...-
backward classes but indicated that the reservation has to be made keeping
B in mind the interests of the community as a whole and such percentage of
reservation would be less than 50%. How much less of 50% is to be reserved,
would however depend on the facts and circumstances of a given case.
Mr. Sibal has also submitted that in the Constitution Bench decision of
C this Court in T. Devadasan v. The Union of India & A111:, [1964] 4 SCR 680,
the majority view is that in order to effectuate the guarantee contained in
Article 16(1), each year of recruitment is to be considered separately by itself
for the reservation for backward classes. In Arati Ray Choudhury s case
(supra) a Constitution Bench of this Court has clearly held that the reservation
for backward community should not be so excessive as to create a monopoly
D or to disturb unduly the legitimate claim of other communities. It has also
been specifically indicated in the said decision that if there are two vacancies
to be filled up in a particular year, not more than one vacancy can be treated
as reserved. In th(; decision in Arati Ray Choudhury 's case, the earlier decision
in M.R. Balaji's case was noticed and followed and no departure from the
E decision in Devadasan's case was made.
Mr. Sibal has submitted that in D1: Chakradhar PaSlVan v. State of
Bihar & Ors., [1988] 2 SCC 14, after relying on the decisions inArati Roy
Choudhury, M.R. Balaji and Devadasan :~. cases, it has been held that for
implementing 50-point roster, isolated and separate posts in different specialities
F cannot be clubbed together. It has also been held that 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 thereby violating Article 16(1) and 16(4)
of the Constitution.
G Mr. Sibal has submitted that the three-Judges' Bench decision in
Afadhav :5, case (supra) is the principal judgment which has taken a contrary
view by holding that even in case of a single post cadre, reservation can be
made by applying the principle of rotation and by that process can avoid the
bar of reservation of 100%. Such decision is based on a wrong reading of the
H decision in Arati Roy Choudhury 's, case and on an erroneous appreciation of
~
P.G.l. CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY. J.] 853
Articles 16(1). 16(4) and 16(4-A) of the Constitution. The impugned decision A
in the case of Post-Graduate Institute of Medical Education & Research has
been made by relying on the decision in Madhav's case and following the
reasonings contained in the said decision. Therefore, the said decision cannot
be sustained and the impugned judgment should be set aside by allowing the
review petition.
B
Mr. E:C. Agrawala, learned counsel for the appellant in C.A. No. 2346/
' 1981, has however submitted that the principle of carry forward in a single
post cadre is a device which serves the purpose of reservation for the
backward classes, consistent with the Directive Principles of the Constitution
and the policy of reservation enshrined in the constitution. Such principle of C
carrying forward in a single post by applying the rotation of roster. affords
opportunities for getting appointment of the members of backward classes on
some occasions but throwing such appointment for open competition on
othe,· occasions by de-reserving the vacancy on such occasions. If such
principle of rotation of roster is not applied in the case of single post cadre, D
the very purpose of reservation under Article 16(4) will be made nugatory. Mr.
• Agrawala has submitted that since some observation was made against
reservation to a promotional post in the decision in Indra Sawhney's case,
sub Article 4 A of Article 16 has been incorporated by the 77th Amendment
of the Constitution. Such amendment clearly reflects the anxiety of the
Legislature to ensure reservation at all stages of public employment including E
promotional posts. Mr. Agrawala has submitted that in Arati Roy Choudhury's
case, the Constitution Bench upheld the appointment of a member of the
Scheduled Caste Scheduled Tribe which was reserved for such category even
though at the relevant year, there was only one vacancy to be filled up in
respect of the post of Head Mistress. Therefore, it will not be correct to
contend that the Constitution Bench in Arati Ray Choudhury's case has not F
upheld reservation of a single vacancy in the cadre in a particular year by
applying the principle of roster. Mr. Puri, learned counsel appearing for the
appellant in CA 2345 of 1981 has also made similar submissions.
Mr. RK Jain, learned senior counsel appearing for the intervenors in the G
-
review petition in the case of Post Graduate Institute of Medical Education
and Research has submitted that there is no Government order to the effect
that reservation in a single cadre post is to be excluded. If, therefore. there
is no prohibition under any kw for reservation of a single post and if the
Government gives effect to Article 16(4) of the Constitution in a single post
cadre which helps the case of social justice, consistent with the Directive H
854 SUPREME cf>oRT REPORTS [1998] 2 S.C.R.
A Principles of the Constitution, this Court should be slow to react against such
reservation. He has also supported the contention of Mr. Agrawala that by
rotation of roster. the device of 100% reservation is avoided. At the same time,
such rotation gives opportunity for appointment of members of socially
backward classes in the higher echelons of service e\'en when the post is a
single post cadre. Mr. Jain has submitted that in the matter of implementation
B of rotation of roster in a single post cadre, c\·en if the other view against such
rotation is a possible view, such view should not be accepted because in the
matter of a course of action which advances the cause of social justice, the
view in favour of furtherence of social justice is to be preferred. Mr. Jain has
also submitted that reservation is not to the post or the vacancy but reservation
C must be viewed as a measure of giving adequate opportunity in public
employment to the socially and economically backward classes, consistent
with Article 16(4) and 16(4)(A) of the Constitution and the Directive Principles.
Mr. Jain has submitted that Article 16 does not speak of any post or vacancy
but speaks of equality of opportunity in public employment.
D Mr. Jain has also submitted that in Chakradhar Paswan's case (supra),
the ratio in Arati Ray Choudhury's case was not appreciated and followed.
Referring to the decision in Indra Sawhney 's case. Mr. Jain has submitted that
in Indra Sawhney's case the ratio in Arati Ray Choudhury's case or in
Paswan 's case was not considered. Therefore, the decision in Indira Sawhney's
E case is not an authority for the issues involved in the case under consideration.
Mr. Jain has submitted that the mechanism of roster has been evolved to
balance justice for all segments of the society so that in the higher echelons
of service, a single post is also made available to the backward classes by
reserving such post only periodically on the basis of rotation of the roster
point. Such mechanism does not offend any provision of the Constitution. He
F has ~ubmitted that the three Judges' Bench in Madhav's case has analysed
all the decisions having relevance on the question of reservation of a single
post cadre, and has upheld such reservation in a single post cadre by
applying the roster. Therefore, the impugned decision in the Post Graduate
G
Institute· of Medical Education and Research Chandigarh, does not warrant
any interference by this Court. I
Mr. Andhyamjina, the learned Solicitor General has also supported the
reservation of a single post cadre with the aid of rotation of roster. He has
invited in attention of the Court to Office Memorandum No. 36012/2/96-Estt.
(Res) issued by the Ministry of Personnel, Public Grievances and Pensions
-
H (Department of Personnel and Training) of the Government of India in respect
P.G.l. CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J] 855
of reservation roster for implementation of the Supreme Court judgment in A
R.K. Sahhamal and Ors. v. State of Punjab and Ors., [1995) 2 SCC 745. After
indicating in short, the purport of the decision of this Court in the said case,
it has been indicated in the said Office Memorandum that .. \\·ith a view to
bringing the policy of reservation in line with the law laid down by the
Supreme Court. it has been decided that the existing 200 point, 40 point and B
120 point vacancy-based rosters shall be replaced by post based rosters. All
the Ministries/Departments and concerned authorities are requested to prepare
the respective rosters based on the principles elaborated in the Explanatory
Notes given in Annexure - I to this O.M. and illustrated in the Model Rosters
annexed to this O.M. as Annexure-II, Ill and IV Similarly. the concerned C
authorities may prepare rosters to replace the existing 100 point rosters in
respect of local recruitment to Group C and D posts on the basis of the same
principles."
Paragraph 4 of the said O.M. contains the principles for preparing the
rosters elaborated in the Explanatory Notes. Clause (e) of the said paragraph D
4 indicating the principles for preparing the rosters is relevant for consideration
in this case and the same is to the following effect:
"In smal! cadres of upto 13 posts, the method prescribed for
preparation of rosters does not permit reservation to be made for all E
the three categories. In such cases, the administrative Ministries/
., Departments may consider grouping of posts in different cadres as
prescribed in this Department's O.M. No. 42/21/49-NGS dated 28.1.1952
and subsequent orders reproduced at pages 70 and 74 of the Brochure
on Reservation for Scheduled Castes and Scheduled Tribes (Eighth F
Edition) and prepare common rosters for such groups. In the event it
...
is not possible to resort to such grouping the enclosed rosters
(Appendices to Annexures-11, III and IV) for cadre strength upto 13
posts may be followed. The principles of operating these rosters are
explained in the explanatory notes.
G
Appendix to AnneJ\ure Ill contains t11e model roster for promotion in the
- cadre strength up to 13 posts; whereas Appendix to Annexure IV contains
the roster for direct recruitment otherwise than through open competition for
cadre strength upto 13 posts. Charts indicating the Appendix to Annexure III
and the Appendix to Annexure IV are set out as hereunder: H
'r
856 SUPREME COURT REPORTS [1998] 2 S. C.R.
A Cadre Initial lst 2nd 3rd 4th 5th 6th 7th 8th 9th 10th I !th 12th 13th
I. UR UR UR UR UR SC UR UR UR UR UR UR ST ~
"""-='
2. UR UR UR UR UR SC UR UR UR UR UR UR ST
1 UR UR UR UR SC UR UR UR UR UR UR ST
B
4. UR UR UR SC UR UR UR UR UR UR ST r
"
5. UR UR SC UR UR UR UR UR UR ST
6. UR SC UR UR UR UR UR UR ST
c
7. SC UR UR UR UR UR UR ST
8. UR UR UR UR UR UR ST
9. UR UR UR UR UR ST
D
10. UR UR UR UR ST )'
.,.
11. UR UR UR ST
12. UR UR ST
E
13. UR ST
Note : For cadres of 2 to I 3 posts the roster is to be read from entry
I under column Cadre Strength till the last post and then horizontally till the
last entry in the horizontal row i.e. "L""
F
2. All the posts of a cadre are to be earmarked or the categories ,,_
shown under column initial appointment while initial filling up
\\ill be by the earmarked category, the replacement against any
of the post in the cadre shall be by rotation as shown horizontally
ag3inst the last post of the cadre.
G
3. The relevant rotation by the indicated reserved category could
be skipped over if it leads to more than 50% representation of
reserved category.
Roster for direct recruitment otherwise than through open competition
--
H for cadre strength upto 13 posts.
PG.I CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J.] 857
Cadre Initial 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 1lth 12th 13th A
L UR UR UR OBC UR UR SC OBC UR UR UR OBC SC ST
2. UR UR OBC UR UR SC OBC UR UR UR OBC SC ST
3. UR OBC UR UR SC OBC UR UR UR OBC SC ST
B
4. OBC UR UR SC OBC UR UR UR OBC SC ST
5. UR UR SC OBC UR UR UR OBC SC ST
6. UR SC OBC UR UR UR OBC SC ST
c
7. SC OBC UR UR UR OBC SC ST
8. OBC UR UR UR OBC SC ST
9. UR UR UR OBC SC ST
D
10. UR UR OBC SC ST
11. UROBC SC ST
12. OBC SC ST
E
13. SCST
Note l. For cadres of 2 to 13 posts the roster is to be read from entry
l under column cadre strength till the last post and then
horizontally till the last entry in the horizontal tow i.e. like "L"
F
2. All the posts of a cadre are to be earmarked for the categories
shown under column initial appointment. While initial filling up
will be by the earmarked category, the replacement against any
of the post in the cadre shall be by rotation as shown horizontally
against the last post of the cadre.
G
-
3. The relevant rotation by the indicated reserved category could
be skipped over it leads to more than 50% representation of
reserved category.
Referring to such model roster. the learned Solicitor General has
submitted that in case of promotion in a single post cadre, for the initial H
858 SUPREME COURT REPORTS (1998] 2 S.~.R.
A recruitment, tJ1e post will remain 'unresen·ed« Similarly, for the !st 2nd 3rd 4ili
5th subsequent vacancies in such single cadre post, such posts shall be
treated as unreserved but for the 6th subsequent vacancy, the post will be
resef\'ed for scheduled castes. Again from 7th to 12th subsequent vacancies
will be treated as unreserved but the ! 3th vacancy will be treated as reserved
for Scheduled Tribes. So far as the roster for direct recruitment, othenvise
B than through open competition. the Appendix to Annexure IV indicates that
if the cadre strength is only one then the initial recrnitment and the first and
second successive recruitment will be made on the basis of open competition
but the tlurd successive vacancy will be resef\'ed for members of the backward
classes. The fqurth successive vacancies will be treated as unreserved: sixth
C successive vacancy will be resen ed for the members of Scheduled Castes:
7th successive vacancy shall be reserved for members of other backward
classes: 8th, 9th and I 0th successive vacancies will be filled up by open
competition but the 11th successive vacancy shall be reserved for OBCs', the
12th for scheduled castes and 13th for scheduled tribes.
D The learned Solicitor General has further submitted with reference to the
\
aforesaid Charts, that the Charts have been prepared for balancing the felt -,.
need for reservation of single cadre post, usually in the higher echelons of
sen•ice in such a manner that the opportunities for employment are shared
by the members belonging to the reserved categories and also by the other
E members i.e. members not belonging to reserved categories. According to
him, if the vacancies are filled up in respect of single post cadre by following
the afores:iid Charts, the interests of socially and economically backward
classes and also other members of the community at large "~ll be met without
seriously affecting the interests of either the members belonging to reserved
classes or the members not belonging to any of the reserved categories.
F Under such mechanism, only of certain occasions the vacancies are to be
filled up by treating such vacancies 'reserved' for members of a particular
class of reserved categories, namely, scheduled castes, scheduled tribes and
other backward classes but on other occasions the post in the single cadre l-
.
\\'ill not be treated as reserved_
G - The learned Solicitor has submitted tliat the constitutional validity of
resenation for socially and economically backward classes has been upheld
by this Court. The learned Solicitor has also submitted that after the judgment
of this Court in R.K. Sabharwal 's case suitable directions have been issued
relating to rotation of roster m conformity wiili the law laid down by this
H Court. He has submitted if a reference is made to the Chart containing the
P.G.I. CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J.] 859
model roster for appointment by promotion for a single cadre post, it will be A
-
......... "
~
crystal clear that the initial recruitment is unreserved and out of subsequent
13 vacancies. only 7th and 13th vacancies are meant for members of scheduled
castes and scheduled tribes. Similarly the roster for direct recruitment othenvise
than by promotion it is indicated that if it is a single post cadre then not only
the initial recruitmem but the first and second successive recruitment will be
treated as unreserved. Similarly, the 4th, 5th, 8th, 9th and 10th successive B
' vacancies will also be treated as 'unreserved' but the 3rd, 6th, 7th, 11th, 12th,
/
and 13th will be kept reserved for members of other backward classes,
scheduled castes and scheduled tribes respectively. The learned Solicitor has
submitted that such device of appointment by rotating the roster fulfils the
felt need of reservation and also eschews the vice of reservation beyond 50% c
for the members of the reserved classes. Since the post is a single post in
the cadre, unless such device is adopted there will be no occasion for
resen,ation of such post at any point to time.
The learned Solicitor has also submitted that in Arati Roy Choudhry's
. ,,, case, the Constitution Bench has approved the action taken in filling up of D
a single vacancy which occurred in a particular year for the post of Head
Mistress by applying the rotation of roster, because such rotation of roster
served the avowed purpose of reservation by delicately balancing the interests
of the members of the reserved classes and other members of the community
not belonging to any reserved class. The learned Solicitor has further urged E
that the decision of the three Judges' Bench in Madhav's case has indicated
the correct principle by giving very cogent reasons and such decision does
not offend any of the provisions of the Constitution and does not come in
conflict with the decisions of the larger Bench of this Court. Therefore, no
interference is called for against the decision in Madhav's case and the other
decisions rendered by following the decision in Madhav's case. F
In order to appreciate the rival contentions of the parties, it would be
appropriate to refer to the Constitution Bench decisions of this Court made
in M.R. Balaji, T. Devadasan and Arati Ray Choudhary's cases (supra). In
Arati Ray Choudhury's case, decision in Balaji and Devadasan were referred
G
to and followed. Since both the sides have relied on the decisions in Arati
--- Ray Choudhury's case, it will also be appropriate to consider the decision in
Arati Ray Choudhury's case·in some detail.
In Balaji's case, the Constitution Bench has held that the reservation
should and must be allowed to advance the prospects of weaker sections of H
860 SUPREME COURT REPORTS [1998] 2 S.C.R.
A the society, but while doing so, care should be taken not to exclude admission
to higher educational standmJs of deserving and qualified conditions of
other commumties. It has also been indicated that reservation under Arts.
~
15(4) and 16(4) of the Constitution must be within a reasonable limit. The
interests of the weaker sections of the so1;1ety, which are a first charge on the
States and the Centre, have to be adjusted with the interests of the community
B as a whole. The objective of Art. 15(4) is to advance the inten:sts of the
weaker clements in society. If a provision under Art. 15(4) ignores the interesb
of the society, that is clearly outside the purview of Art. 15(4). It is therefore,
quite evident that the Constitution Bench in Balaji 's case has clearly indicated ""
that in giving effect to reservations for the Scheduled Castes, Scheduled
c Tribes and other backward classes. a balance is to be struck so that the
interests of the backward classes and the members of the scheduled castes
and scheduled tribes are properly balanced with the interests of the other
segments of the society, and in order to safeguard the interests of the
reserved classes the interest of the community as a whole can not be ignored.
In Devadasan's case (supra), the majority decision of four Judges (Justice
D Subba Rao dissenting) was to the effect that the carry-forward rule as a result
of which the applicants belonging to Scheduled Castes or Scheduled Tribes
could get more than 50% of the vacancies to be filled up in a particular year,
is unconstitutional. It has also been indicated that Art 14 will not be infringed
if certain proportion of appointments of the State_ in order to provide the
backward classes an opportunity equal to that of the members of more
E advanced classes is made, provided that the reservation is not so exercised
which would amount to practically deny a reasonable opportunity of
employment to the members of the other communities. It was indicated that
under Art. 16 (4) of the Constitution, reservation ofa reasonable percentage
for the Scheduled Castes and Scheduled Tribes is valid and within the
competence of the States or the Centre. But it is necessary that a reasonable
F balance between backward classes and other members of the society is to be .>C
struck and maintained. In the decision of Devadasan's case (supra) reliance J
was also placed on the decision in Balaji' s case and another Constitution
Bench decision of this court in General Manager S.E.Railway v. Rangachari,
[1962] 2 SCR 586. In the majority decision in Rangachari's case, it has been
G held that Arts. 16(1) and 16(2) are intended to give effect to Arts. 14 and 15
of the constitution and these Articles form parts of the same Constitutional
code of guarantees and supplement each other. Art. 16(1) should, therefore, i-
be construed i~-a broad and gen~ral way, and n~t in pedantic and technical
way. When so construed, matters relating to employment cannot mean merely
H matters prior to the act of appointment nor can 'appointment to any office'
PG I CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J.] 861
mean merely the initial appointment but must include all matters relating to A
employment, whether prior or subsequent to the employment. that are either
incidental to such emplo}ment or form part of its terms and conditions.
The short fact in Arati Ray Choudhury's case is that the Railway Board
prepared a Roster in 1964 by which 12.5% of the vacancies were reserved for
Scheduled Castes and 5% for Scheduled Tribes. It was also mentioned that B
if th1;:re would be only a single vacancy then it should be treated as unreserved
and if on account of that a reserved vacancy was to be treated as unreserved
then the reservation would be carried forward to the subsequent two
recruitment year. In 1966, a vacancy of Headmistress was treated as unreserved
on this basis. Another vacancy arose in January, 1969 and the four Assistant C
Mistresses were called for selection. One of the respondent chaJlengcd the
selection on the ground that the post should be treated as reserved for
Scheduled Caste candidate and such contention was accepted by the High
Court. In 1971 the Railways decided to hold a selection to fom1 a panel of two
candidates for filling up one post reserved for Scheduled Caste and another
to cover unforeseen requirements. At that stage, a writ petition was filed
D
challenging such decision of the Railway Administration and an order of
injunction was issued in such writ proceeding. ln spite of this, the said
respondents was called by the Selection Board. The \Hit petition was ultimately
dismissed not on merits but on the ground that such writ petition was barred
by the principle of res judicata. This Court however held that since the E
previous writ petition was not decided on merits, the principle of res judicata
or analogous to it was not attracted. Therefore, the Court was competent to
consider the case on merits. In Arati Ray Choudhury 's case, reference was
made to the decisions of Constitution Bench in Balaji's case. Relying on the
decision in Balaji's case the Constitution Bench in Arati Ray Choudhury's
case has held that in Balaji's decision, this Court had struck down as F
unconstitutional an order by which 68% of the seats in educational institutions
were reserved for Scheduled Castes and Scheduled Tribes and other
educationally and socially backward classes. It was indicated in Arati Ray
Choudhury's case that following the decision in Balaji's case, in the majority
decision in Devadasan 's case it was held that in order to effectuate the G
guarantee contained in Article 16( 1), each year recruitment has to be considered
separately by itself and "the reservation for had-ward communities should
not be so excessive as to create a monopoly or to disturb unduly the
legitimate claims of other communities."
(emphasis added) H
862 SUPREME COURT REPORTS [1998] 2 S.C.R.
A ft has also been indicated in Artai Ray Choudhury's case that the
Ministry of Home Affairs issued a Memorandum modifying the carry forward
rule so as to comply with the decision in Devadasan 's case. By para 2 of the
Memorandum. the carry-forward rule was amer.ied by providing that "in any
recruitment year, the number of normal reserved vacancies and the ·carried
forward reseTYed vacancies together shall not exceed 45% of the total number
B of vacancies. "It was however indicated in the said }vfemorandum that if
there he on!v two vacancies, one of them may he treated as a reserved
vacancy. But if there he on!v one vacancy it shall he treated as unreserved
(emphasis added). The surplus above 45% shall be carried forward to the
subsequent sear of recruitment, subject however to the condition that the
C particular vacancies carried forward do not become time barre.ct due to their
becoming more than two years old. It has been specifically held in Arati Ray
Choudhury's case that in the first place each year of recruitment is to be
considered separately and by itself as held in Devadasan's case (supra) 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,
D 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 a reserved vacancy, the system may
E 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, the reservation can
be carried forward to not more than two subsequent year of recruitment.
Thus, if two vacancies occur, say, within an initial span of three years, the
F first vacancy has to be treated as an unreserved vacancy and the second as
reserved. It has not been held in Arati Ray Choudhury's case that for a single
post there can be a reservation for Scheduled Castes, Scheduled Tribes or
other backward classes. What has been held in Arati Ray Choudhury's case
is that when there was a vacancy at Adra, according to the Model Roster,
such vacancy was a reserved point and therefore the other vacancy was
G strictly a reserved vacancy but there being only one vacancy in that particular
year of recruitment. such vacancy had to be treated as unreserved and
therefore appointinent was given to Smt. Bi swas, who was not a reserved
candidate. Therefore, it had to be compensated by carrying forward the
reservation in two subsequent recruitment year when the vacancy in Kharagpur
H in the financial year 1968-69 arose w.e.f. December 31,'1968.
P.G.L CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J] 863
Jn Dr. Chakradhar Paswan 's case (supra) in the State Directorate of A
Indigenous Medicines, Bihar, initially there were three Class I posts for (1)
1 Director of Indigenous Medicines, (2) Deputy Director (Homeopathic) and (3)
Deputy Director (Unani). Later the post of Deputy Director (A)'uivedic) had
also been added. The post of Director was the highest in the Directorate;
being the Director of Indigenous Medicines as a whole and not of any B
particular speciality of Indigenous Medicines.
By a Circular dated November 8, 197 5, the State Government prescribed
a 50 point roster to implement the policy of reseivation to posts and
appointments for members of the backward classes under Article 16(4). It was
laid down that if in any grade, there is only one vacancy for the first time, C
then it will be deemed to be unresen·ed and for the second time also, if there
be only one vacancy, then it will be deemed to be reseived". For the ·purpose
of determining the quantum of reseivati on according to the roster, the
Government grouped together all the Class I posts viz. the posts of Director
as well as of Deputy Directors and as the post of the Director had already
been filled up treating it to be unreserved, the second post viz. the Deputy D
Director (Homeopathic) was treated as reseived. Accordingly, the State !ublic
Seivice commission issued advertisement inviting applications from Scheduled
Castes candidates for selection to the same posts and ultimately the State
Government appointed a member of Scheduled Caste to the post of Deputy
Director (Homeopathic). A general candidate thereafter filed a writ petition E
before the High Court challenging the advertisement issued by the State
Public Service Commission and also the consequent order of appointment.
The High Court allowed the petition and quashed the impugned advertisement
and the appointment order. Such decision of the High Court was assailed
before this Court in Dr. Chakradhar Paswan s, case. The appeal was dismissed
by this Court by holding that in sen•ice jurisprudence, the tem1 'cadre' has F
a definite legal connotation. It is not synonymous with 'service'. It is open
to the Government to constitute as many cadres in any particular service as
it may choose according to the administrative convenience and expediency
and it cannot be said that the establishment of the Directorate constituted the
formation of a joint cadre of the Director and the Deputy Directors because G
the post are not interchangeable and the incumbents do not perform the same
duties or carry the same responsibilities or draw the same pay. The posts of
the Director and those of the Deputy Directors constitute different cadres of
the service. The first vacancy in the cadre of Deputy Directors was that of
the Deputy Director (Homeopathic) and it had to be treated as unreseived,
the second reseived and the third unreserved. Therefore, for the first vacancy Il ·
864 SUPREME COURT REPORTS [1998] 2 S. C.R
A of the Deputy Director (Homeopathic), a candidate belonging to the Scheduled
Caste had, therefore. to compete with other. Relying on the decision in Balaji 's
case, it was held in Chakradhar 's case that once the power to make reservation
in favour of Scheduled Castes and Scheduled Tribes is exercised, it must
necessarily follow that for the purpose of vacancies for which reservation has
B been made, must be brought into effect and in order to do full justice, a carry
forward rule must be so applied that in any particular year there is not more
than 50% reservation. The whole concept of reservation for application of the
!.
50 point roster is that there are more than one post, and the reservation can
be up to 50%. If there is only one post in the cadre, there can be no
reservation with reference to that post either for recruitment at the initial stage
C or for filling up a future vacancy in respect of that post. A reservation which
would come under Article 16(4), presupposes the availability of at least more
than one post in that cadre. No reservation could be made under Article 16(4)
so as to create a monopoly. Otherwise, it would render the guarantee of equal
opportunity contained in Article 16(1) and (2) wholly meaningless and illusory.
The reservation of the post of Deputy Director (Homeopathic) amounted to
D 100% reservation which was impermissible under Article 16(4) as otherwise
it would render Article 16(1) wholly elusive and meaningless. Article 16(4) is
an exception to Article 16(1) and (2) and therefore the power to make a special
provision for reservation of posts and appointments in favour of the backward
classes must not be so excessive which would in effect efface the guarantee
E of equal opportunity in the matter of public employment or at best make it
illusory. Reference was also made in Chakradhar's case to the decision in
Ara ti Ray Choudhury's case by indicating that in the facts of that case when
the open class had reaped a benefit in 1966-67 when a reserved vacancy was
treated as nnreserved by the appointment of an open candidate, if the carry
forward rule had to be given any meaning, the vacancy had to be carried
F forward for the benefit of Scheduled Castes and Scheduled Tribes until the
close of the financial year 1968-69. It was pointed out in Chakradhar's case
that the decision in Arati Ray Choudhury's case turned on the carry forward
rule and such decision was clearly distinguishable and the same does not
support reservation in a single cadte post
G The decision in Chakradhar Pasivan s, case that for a single post cadre
no reservation can be made for the backward classes has also been followed
in Chetana Di lip Motghare v. Bhide Girls' Education Society, [1995] Supp.
1 SCC 157 and it has been held in the said decision that when the post is
a solitary post in the cadre, the roster and carry forward scheme underlying
H any reservation policy cannot apply. A contral') view, however, has been
P.G.l. CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J] 865
taken in the decision of State of Bihar and Ors. v. Bageshwari Prasad and A
Anr., [1995] Supp: 1 SCC 432; Shri Suresh Chandra v. Shri J.B. Agarwal and
----"""-
==--' others, IT (1997) 5 SC 72, and later on in a three Judges' Bench decision in
Union ofIndia and Anr. v. Madhav, [1997] 2 SCC 332. Following the said three
Judges' B.ench decision in Madhav's case, reservation in a single post cadre
by rotation of roster point has been upheld in Union of India and others v.
Brij Lal Thakur, JT ( 1997) 4 SC 195 and the decision rendered in the case of B
Post Graduate Institute ofMedical Education Research v. Faculty Association
and others. The later decision is the subject matter of challenge in the Review
Petition before us in C.A. No. 3175 of 1997.
Since the decision in Madhav's, case by a three Judges' Bench upholding
the reservation for the backward classes even in single post cadre on the
c
basis of rotation of roster point is'the main decision, which has been followed
in Post Graduate Institute of Medical Research case, we propose to consider
the decision in Madhav's case in some detail. The brief facts in Madhav's
case may be indicated as follows:
D
In the National Savings Scheme Service, only one post of Secretary was
available. The Government applied the rule of reservation to that post by
rotating the vacancies in accordance with the 40-point roster. When point No.
4 vacancy in that post, reserved for Scheduled Tribe, was filled by promoting
an ST candidate from the post below, such promotion was set aside by the
Central Administrative Tribunal on the ground that the post of Secretary E
being a single point post, granting of reservation was unconstitutional. The
correctness or the said decision was assailed in Madhav's case.
It has been held in Madhav's case that (i) appointment to an office or
post under the State is one of the means to render socio-economic justice;
(ii) Article 16(4-A) of the Constitution introduced in 1995 by the 77th
F
,rf Amendment of the constitution, has resuscitated the objectives of the Preamble
to, and Articles 46 and 335 of the Constitution of India to enable the Dalit
and Scheduled Tribe employees to improve excellence in higher echelons of
service and a source of equality of opportunity in the matter of social and
economic status; (iii) Parliament has removed the lacuna pointed out by the G
Supreme Court in Indra Sawhney:~, case (supra) that Article 16(1) and 16(4)
.-- do not apply to appointment by promotion but apply to initial appointment.
By the 77th Amendment of the Constitution, the legal position enunciated in
Rangachari 's decision has been restored and reservation of promotion to 50%
quota as per the Indra Sawhney \ case is available to members of Scheduled H
866 SUPREME COURT REPORTS [1998] 2 S.C.R.
A Castes and Scheduled Tribes; (iv) the carry forward scheme has been upheld
in Indra Sawhney :~. case; ((Y) reservation could be provided even to the
isolated posts on the basis of the rule of rotation by relying on the decision
in Arati Ray choudhury's case; (vi) extension of reservation is not
unconstitutional. On the other hand, such scheme provides opportunity and
facilities to Scheduled Castes and Scheduled Tribes for being considered for
B promotion to hold single post consistent with equality of opportunity on par
with others; (vii) In Paswan ·s case even though it was held that ,a single post
cannot be reserved because such reservation would amount to 100%
reservation, the question whether the single post reservation by rotation
could be granted and whether it would be violative of Article 16(1) was not
C gone into and such question has been kept open. In Arati Ray Choudhury's
case, the application of rule of carry forward and appointment by rotation of
roster in a single post has been approved. (viii) In Sabharwal s, case (supra),
a Constitution Bench considered whether reservation as per the roster for the
purposes of promotion could be valid and consistent with Article 16(1) of the
Constitution and held in favour of such reservation (ix) Smt. Chetana Di lip
0 Motghare v. Bhide Girls' Education Society, [1995) Supp. 1 SCC 157 has not
been correctly decided and the decisions in Vidyulata Arvind Kakade v.
Digambar Gyanba Surwase and Arati Ray Choudhury:~. cases were not
properly appreciated in Bhide Girls' case (x) In State of Bihar & Ors. v.
Bageshwari Prasad & Anr., [1995] Supp. 1 SCC 432, the rule of rotation has
E been held valid by indicating that the said rule does not offend Articles 14
and 16(1) of the Constitution. (xi) The judgment in Chakradhar Paswan s,
case was also distinguished in Bageshwari 's decision.
In Madhav s, case. in support of the view that even in respect of single
post cadre, reservation can be made for the backward classes by rotation of
F roster, the Constitution Bench decision in Arati Ray Choudhury s, case has
been relied on. We have already indicated that inArati s, case, the Constitution
Bench did not lay down that in single post cadre, reservation is possible with
the aid of roster point. The court in Arati 's case considered the applicability
of roster point in the context of plurality of posts and in that context the
G rotation of roster was upheld by the Constitution Bench. The Constitution
Bench in Arati s, case has made it quite clear by relying on the earlier
decisions of the Constitution Bench in Balaji s, case and Devadasan s, case
that 100% reservation was not permissible and in no case reservation beyond
50% could be made. Even the circular on the basis of which appointment was
made in Arati Ray Choudhurys, case was amended in accordance with the
H decision in Devadasan :~. case. Therefore, the very premises that Constitution
P.G.l. CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J.] 867
Bench in Arati s, case has upheld reservation i» a single post cadre is A
erroneous and such erroneous assumption in Madhav :s, case has been on
account of misreading of the ratio in Arati Ray Choudhury's case. It may be
indicated that the later decision of the Constitution Bench in R.K. fiabharwal s,
case, (1995] 2 sec 745 has also proceeded on the footing that reservation in
roster can operate provided in the cadre there is plurality of post. It has also B
been indicated in Sabharwal 's decision that the post in a cadre different from
,' vacancies.
It also appears that the decision in Indra Swhney ~,._case has also not
been properly appreciated in Ma.dhav '.s decision. In Indra Sawnhey s case, it
has not been held that there can be reservation in a single cadre post. There C
is no dispute that a carry forward scheme, provided it does not result in
reservation beyond 50% is constitutionally valid but that does not mean that
' by the device of carry forward scheme, 100% reservation on some occasions
can be made even when the post is only a single cadre post. In Madhav :S
decision and Brij Lal's decision, reliance has been placed on Article 16( 4A) D
J of the Constitution for holding that even in respect of single post such
<
reservation can be made with the aid of rotation of roster. In our view, Article
16(4A) relates to reservation in promotional post in the cadre, but the said
Article 16(4A) does not deal with the question of reservation in a single cadre
post.
E
There is no difficulty in appreciating that there is need for reservation
for the members of the Scheduled Castes and Scheduled Tribes and other
backward classes ad such reservation is not confined to the initial appointment
in a cadre but also to the appointment in proniotional post. It cannot however
be lost sight of that in the anxiety for such reservation for the backward
classes, a situation should not be brought by which the chance of appointment F
is completely taken away so far as the members of other segments of the
society are concerned by making such single post cent per cent reserved for
the reserved categories to the exclusion of other members of the community
even when such member is senior in service and is otherwise more meritorious.
Articles 14, 15 and 16 including Article 16(4), 16(4A) must be applied G
in such a manner so that the balance is struck in the matter of appointments
, by creating reasonable opportunities for the reserved classes and also for the
other members of the community who do not belong to reserved classes.
Such view has been indicated in the Constitution Bench decisions of this
Court in Balaji s case, Devadasan s case and Sabharwal s case. Even in Indra H
868 SUPREME COURT REPORTS [1998] 2 S.C.R
A Sawhney's case, the same view has been held by indicating that only a limited
reservation not exceeding 50% is pem1issible. It is to be appreciated that
Article 15(4) is an enabling provision like Article 16(4) and the reservation
under either provision should not ~xceed legitimate limits. In making
reservations for the backward classes, the State cannot ignore the fundamental
rights of the rest of citizens. The special provision under Article 15(4) must
B therefore strike a balance between several relevant considerations and proceed
objectively. In this connection reference may be made to the decisions of this
court in The State of Andhra Pradesh and Ors. v. US. V; Balaram and CA.
Rajendran v. Union of India, AIR (1972) SC 1375 and AIR (1968) SC 507. It
has been indicated in Indra Swhney's case (supra) that clause (4) of Article
C 16 is not in the nature of an exception to Clauses (I) and (2) of Article 16 but
an instance of classification permitted by clause (l ). It has also been indicated
in the said decision that clause (4) of Article 16 docs not cover the entire field
covered by clauses (I) and (2) of Article 16. ln Indra Sawhney's case. this
court has also indicated that in the interests of the backward classes of
D
citizens, the State can not reserve all the appointment under the State or even
majority of them. The doctrine of equality of opportunity in Clause (I) of
..
Article 16 is to be reconciled in favour of backward classes under clause (4)
of Article 16 in such a manner that the latter while serving the cause of
backward classes shall not unreasonably encroach upon the field of equality.
In Th/oknath v. State ofJammu and Kashmir, AIR (1967) SC 1283, it has been
E held by this Court that where the percentage of reservations is not reasonable,
having regard to employment opportunities of the general public to the cadre
of service in question, the population of the entire State, the extent of their
backwardness and the like, the interference by Court against unreasonable
reservation is called for.
F In a single post cadre, reservation at any poillt of time on account of
rotation of roster is bound to bring about a situation where such single post
in the cadre will be kept reserved exclusively for the members of the backward
classes and in total exclusion of the general members of the public. Such total
exclusion of general members of the public and cent percent reservation for
G the backward classes is not permissible within the constitutional frame work.
The decisions of this Court to this effect over the decades have been
consistent.
Hence, until there is plurality of posts in a cadre, the question of
reservation will not arise because any attempt of reservation by whatever
H means and even with device of rotation of roster in a single post cadre is
P.G.I. CHANDIGARH v. FACULTY ASSOCIATION [G.N. RAY, J.] 869
bound to create 100% reservation of such post whenever such reservation A
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 bound to 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 B
filled only by open competition amongst all segments of the society.
Mr. Kapil Sibal has contended that in some higher echleon of service
in educational and technical institution where special expertise is necessary
to hold superior posts, like Professors and Readers there should not be C
reservation even if there are plurality of posts in such cadre as indicated in
the majority view in Indra Sawhney 's, case. It is, however, not necessary for
us to decide the said contention for the purpose of disposal of these matters,
where the question of reservation in single cadre post calls for decision.
We, therefore, approve the view taken in Chakradhar 's, case that there D
can not be any reservation in a single post cadre and we do not approve the
reasonings in Madhav s, case, Brij Lal Thakur s, case and Bageswari Prasad:~.
case upholding reservation in a single post cadre either directly or by device
of rotation of roster point. Accordingly, the impugned decision in the case
of Post Graduate Institute of Medical Education Research can not also be
sustained. The Review Petition made in Civil Appeal No. 3175of1997 in the E
case of Post Graduate Institute of Medical Education Research, Chandigarh,
is therefore allowed and the judgment dated May 2, 1997 passed in Civil
Appeal No. 3175 of 1997 is set aside.
As we do not propose to consider the facts and circumstances in other F
cases which have been heard along with the Review Petition, we direct that
the said matters be placed before the appropriate Bench for disposal on the
basis of this decision in Review Petition in C.A. No. 3175 of 1997. In the facts
and circumstances of the case, there will be no order as to costs .
V.S.S. •
•
G
Review Petition allowed
Petitions and Appeals disposed of.
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