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B.N. Tiwari Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1965SC1430; [1965]2SCR421
ActsConstitution of India - Articles 16 and 32
AppellantB.N. Tiwari
RespondentUnion of India (Uoi) and ors.
Cases ReferredT. Devadasan v. Union of India
Excerpt:
.....45 names for appointment, 16 ofwhich were unreserved and 29 were reserved against vacancies for scheduled castesand scheduled tribes. thisheavy reservation for scheduled castes and scheduled tribes was made on thebasic of the 'carry forward' rule which was put into force from 1955. 3. according to the resolution of the ministry of home affairs datedseptember 13, 1950 reservation for scheduled castes and scheduled tribes wasfixed at 12 1/2% and 5% respectively without anything like the 'carry forward'rule. in 1952 however supplementary instructions were issued in this connectionin the following terms :5(3). if a sufficientnumber of candidates of the communities for whom the reservations are made, whoare eligible for appointment to the post in question and are considered by..........and scheduled tribes at 12 1/2% and 5% respectively; nor doesit touch the filing up of schedule tribes vacancies by scheduled castecandidates where sufficient number of scheduled tribes are not available in aparticular year or vice versa. the effect of the judgment in devadasan's case : (1965)iillj560sc therefore is only to strike down the carry forward ruleand it does not affect the year to year reservation for scheduled castes andscheduled tribes or filling up of scheduled tribe vacancies by a member ofscheduled castes in a particular year if a sufficient number of scheduled tribecandidates are not available in that year of vice versa. this adjustment in thereservation between scheduled castes and tribes and nothing to do with thecarry forward rule from year to year either of 1952.....
Judgment:

Wanchoo, J.

1. This petition under Art. 32 of the Constitution is a sequel to thejudgment of this Court in T. Devadasan v. Union of India : (1965)IILLJ560SC . The petitioner was Assistant in Grade IV of the Central SecretariatService. The next post which the petitioner could expect to get was of SectionOfficer (Assistance Superintendent). Recruitment to the post of Section Officeris made in the following manner :-

(i) 50% by direct recruitmentfrom those who obtain lower ranks in the Indian Administrative Service etc.,examinations.

(ii) 25% by promotion from GradeIV on the basis of a departmental examination held at intervals by the UnionPublic Service Commission, and

(iii) 25% by promotion from GradeIV on the basis of seniority-cum-fitness.

2. In February 1960 the Union Public Service Commission issued anotification to the effect that a limited competitive examination for promotionto the post of Section Officers would be held in June 1960. The notificationfurther stated that reservation of 12 1/2% of the available vacancies would bemade for members of scheduled castes and 5% for the members of scheduledtribes. The number of vacancies to be filled was to be announced later. Thepetitioner sat for this examination and he is said to have secured the 37thposition in order of merit. Later, a press communique was issued by the UnionPublic Service Commission in the which it was stated that the number ofvacancies expected to be filled was 48 out of which 32 were reserved forschedule castes and scheduled tribes and 16 were unreserved. Eventually howeverthe Union Public Service Commission recommended 45 names for appointment, 16 ofwhich were unreserved and 29 were reserved against vacancies for scheduled castesand scheduled tribes. Finally, however, the Government made only 43appointments, 15 in the unreserved quota and 28 in the reserved quota. Thisheavy reservation for scheduled castes and scheduled tribes was made on thebasic of the 'carry forward' rule which was put into force from 1955.

3. According to the resolution of the Ministry of Home Affairs datedSeptember 13, 1950 reservation for scheduled castes and scheduled tribes wasfixed at 12 1/2% and 5% respectively without anything like the 'carry forward'rule. In 1952 however supplementary instructions were issued in this connectionin the following terms :-

'5(3). If a sufficientnumber of candidates of the communities for whom the reservations are made, whoare eligible for appointment to the post in question and are considered by therecruiting authorities as suitable in all respects for appointment to thereserved quota of vacancies, are not available the vacancies that remainunfilled will be treated as unreserved and filled by the best availablecandidates; but a corresponding number of vacancies will be reserved in thefollowing year for the communities whose vacancies are thus filled up inaddition to such number as would originally be reserved for them under theorders contained in the Resolution.

'5(4). If suitably qualifiedcandidates of the communities for whom the reservations have been made areagain not available to fill the vacancies carried forward from the previousyear under clause (3) above, the vacancies not filled by them will be treatedas unreserved and the reservations made in those vacancies will lapse.'

4. As a result of these instructions reserved vacancies for scheduled castesand scheduled tribes which could not be filled in one examination would becarried forward to the next examination. But if sufficient number of scheduledcaste and and scheduled tribe candidates were not available to fill thevacancies carried forward plus vacancies of the next year the vacancies were tobe treated as unreserved and the reservation made in those vacancies wouldlapse. Thus according to 1952 instructions the carry forward was only for twoyears and thereafter there was no carry forward. In 1955 however, Governmentmade further change in the carry forward rule and paras. 5(3) and 5(4) of theinstructions of 1952 were substituted thus :

'5(3)(a). If a sufficient number of candidatesconsidered suitable by the recruiting authorities, are not available from thecommunities for whom reservations are made in a particular year, the unfilled vacanciesshould be treated as unreserved and filled by the best available candidates.The number of reserved vacancies thus treated as unreserved will be added as anadditional quota to the number that would be reserved in the following year inthe normal course; and to the extent to which approved candidates are notavailable in that year against this additional quota, a corresponding additionshould be made to the number of reserved vacancies in the second followingyear.

5. 'Thus the number of reserved vacancies of 1954 which were treated asunreserved for want of suitable candidates in that year will be added to thenormal number of reserved vacancies in 1955. Any recruitment against thesevacancies in 1955 will first be counted against the additional quota carriedforward from 1954. If however suitable are not available in 1955 also and acertain number of vacancies are treated accordingly as 'unreserved' in thatyear, the total number of vacancies to be reserved in 1956 will be un-utilisedbalance of the quota carried forward from 1954 and 1955 plus the normalpercentage of vacancies to be reserved in 1956. The un-utilised quota will not,however, be carried forward in this manner for more than two years.

6. 'An annual report of reserved vacancies which were treated asunreserved for want of suitable candidates from scheduled castes or scheduledtribes as the case may be should be forwarded to the Ministry of Home Affairsin the form enclosed as Annexure I along with the annual communal returnsalready prescribed. In addition Ministries themselves will take adequate stepsto ensure that any lapse on the part of subordinate authorities in observingthe reservation rules cannot go unnoticed by a reviewing authority within theMinistry itself at a sufficiently early date.

7. '(b) In the event of a suitable scheduled caste candidate not beingavailable, a schedule tribe candidates can be appointed to the reserved vacancyand vice versa subject to adjustment in the subsequent points of theroster.'

8. The result of this change was to carry forward the unfilled vacancies fortwo years and thus in the third year the vacancies to be filed by scheduledcaste and scheduled tribe candidates would be the un-utilised balance from theprevious two years plus the normal percentage of the vacancies reserved in thethird year. Unlike the rule of 1952, this rule did not provide for any lapsebut said that the un-utilised quota will not however be carried forward in thismanner for more than two years. The result of the substitution of the 1955 rulewas that paras. 5(3) and 5(4) of the 1952-rule ceased to exist and it was inpursuance of the 1955-rule that the Union Public Service Commission announcedas already indicated that out of 48 expected vacancies, 16 would be unreservedand 32 would be reserved for scheduled caste and scheduled tribe candidates.This reservation was attacked in the case of Devadasan : (1965)IILLJ560SC and this Court struck down the carry forward rule of 1955 (in place of paras5(3) and 5(4) of the 1952-rule) on the ground that the carry forward rule asmodified in 1955 was unconstitutional. No other relief besides the declarationthat the 1955 carry-forward rule was unconstitutional was granted inDevadasan's case : (1965)IILLJ560SC . It was however hoped that thedepartment concerned would implement the decision of this Court in anappropriated manner.

9. The petitioner contends that the effect of this Court's judgment inDevadasan's case : (1965)IILLJ560SC is that there is no carry forward rulein existence as the 1955 carry forward rule was struck down by this Court andthe 1952-rule had ceased to exist by the substitution made by the Government ofIndia in 1955. The petitioner further contends that in view of there being nocarry forward rule either of 1952 or of 1955 after the judgment of this Courtin Devadasan's case : (1965)IILLJ560SC all that the Government of Indiacould do in the matter of reservation for the examination conducted in 1960 wasto reserve 12 1/2% of the vacancies for scheduled castes and 5% for scheduledtribes. In the alternative it is submitted that if the carry forward rule of1952 is still deemed to exist that rule is also bad being violation of Art. 16of the Constitution. The petitioner finally contends that the carry forwardrules of 1952 and 1955 being out of his way and the only reservation that waspossible in the examination of 1960 being 12 1/2% for scheduled castes and 5%for scheduled tribes, he was entitled to be appointed on that basis. He thereforeprays that a direction should be issued setting aside appointments of certaincandidates belonging to scheduled castes and scheduled tribes over and abovethe reserved quota of 17 1/2% and the Union Public Service Commission should bedirected to announce the result of the said examination afresh reserving 121/2% of the vacancies for scheduled castes and 5% for scheduled tribes.

10. The application is opposed on behalf of the Union of India and the maincontention urged is that even if the carry forward rule of 1952 is deemed to benon-existence because it was substituted by the carry forward rule of 1955, thepetitioner would not be entitled to be appointed in any case in view of theposition he had secured in the examination.

11. The first question therefore that arises is whether the carry-forwardrule of 1952 can still be said to exist. The next question is whether the carryforward rule of 1952, if it still exists is bad for the same reasons as thecarry forward rule of 1955, as held by this Court in Devadasan's case : (1965)IILLJ560SC . The last question is whether the petitioner would be entitledto appointment even if the carry forward rule of 1952 does not exist.

12. We shall first consider the question whether the carry forward rule of1952 still exists. It is true that in Devadasan's case : (1965)IILLJ560SC ,the final order of this Court was in these terms :-

'In the result the petition succeeds partially andthe carry forward rule as modified in 1955 is declared invalid.'

13. That however does not mean that this Court held that the 1952-rule mustbe deemed to exist because this Court said that the carry forward rule asmodified in 1955 was declared invalid. The carry forward rule of 1952 wassubstituted by the carry forward rule of 1955. On this substitution the carryforward rule of 1952 clearly ceased to exist because its place was taken by thecarry forward rule of 1955. Thus by promulgating the new carry forward rule in1955, the Government of India itself cancelled the carry forward rule of 1952.When therefore this Court struck down the carry forward rule as modified in1955 that did not mean that the carry forward rule of 1952 which had alreadyceased to exist, because the Government of India itself cancelled it and hadsubstituted a modified rule in 1955 in its place, could revive. We aretherefore of opinion that after the judgment of this Court in Devadasan's case : (1965)IILLJ560SC there is no carry forward rule at all, for the carryforward rule of 1955 was struck down by this Court while the carry forward ruleof 1952 had ceased to exist when the Government of India substituted the carryforward rule of 1955 in its place. But it must be made clear that the judgmentof this Court in Devadasan's case : (1965)IILLJ560SC is only concernedwith that part of the instructions of the Government of India which deal withthe carry forward rule; it does not in any way touch the reservation forscheduled castes and scheduled tribes at 12 1/2% and 5% respectively; nor doesit touch the filing up of schedule tribes vacancies by scheduled castecandidates where sufficient number of scheduled tribes are not available in aparticular year or vice versa. The effect of the judgment in Devadasan's case : (1965)IILLJ560SC therefore is only to strike down the carry forward ruleand it does not affect the year to year reservation for scheduled castes andscheduled tribes or filling up of scheduled tribe vacancies by a member ofscheduled castes in a particular year if a sufficient number of scheduled tribecandidates are not available in that year of vice versa. This adjustment in thereservation between scheduled castes and tribes and nothing to do with thecarry forward rule from year to year either of 1952 which had ceased to existor of 1955 which was struck down by this Court. In this view of the matter itis unnecessary to consider whether the carry forward rule of 1952 would beunconstitutional, for that rule no longer exists.

14. This brings us to the last questions whether the petitioner would beentitled to appointment on the basis that there was no carry forward rule inexistence in 1960. Originally it was notified that the number of vacanciesexpected were 48. On that basis the reservation for scheduled castes would be 6and for scheduled tribes would be 2.4. But as it is impossible to get 2.4individuals and the reservation for scheduled tribes is a minimum of 5%, theywould be entitled to three vacancies. Thus out of 48 expected vacancies, 9would be reserved vacancies and 39 would be unreserved. Actually however thePublic Service Commission recommended only 45 names. On the basis of 45,scheduled castes would be entitled to 5.625 vacancies (i.e. 6 vacancies) whilescheduled tribes would be entitled to 2.25 vacancies (i.e. 3 vacancies). Inactual effect however because one of the candidates recommended in the reservedquota died and one of the candidates out of the unreserved quota was appointedto another service, the Government of India made only 43 appointments. On thisbasis, the scheduled castes would be entitled to 5.375 vacancies (i.e. 6vacancies) and the scheduled tribes to 2.15 vacancies (i.e. 3 vacancies). Thuson the actual appointments made the total reservation for scheduled castes andscheduled tribes would be 9 while 34 would be available for the unreservedquota. The petitioner secured 37th place in the unreserved quota. Out of these37, one unreserved candidate was recruited to another service and thus thepetitioner's position may conceivably be said to have bettered and become 36th.According to the calculation which we have already indicated, 9 out of 43vacancies actually filled will go to scheduled castes and scheduled tribestogether and 34 would go to the unreserved quota. The petitioner however was36th on the unreserved quota and therefore even on the basis of there being nocarry forward rule only 34 candidates would be appointed from the unreservedquota and the petitioner being 36th on his own showing cannot claimappointment. The petition therefore fails. In the circumstances we make noorder as to costs.

15. Petition dismissed.


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