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M.K. Janardan and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR879
AppellantM.K. Janardan and ors.
RespondentUnion of India (Uoi) and ors.
Cases ReferredSudama Prashad v. Divisional Supdt. W. Rly
Excerpt:
.....third recruitment year as well. choudhury's case the open candidates who are competing for an unreserved vacancy cannot complain if a preference has been given to them in the first instance and in the carried forward period of three years if vacancy is reserved in favour of scheduled castes or scheduled tribes candidates. choudhury's case, it would be a perfectly valid action. this view finds support from the opening part of the said circular letter which clearly states that the question of revising the percentage of reservation for scheduled castes and scheduled tribes in the posts and services under the government of india in the light of the population of these communities as shown in the 1961 census has been under consideration of the government for some time. choudhury's case..........carry forward rule has to be so applied that in any particular year, there is not more than 50 per cent reservation but as chandrachud, j., as he then was, has pointed out in a.r. choudhury's case the open candidates who are competing for an unreserved vacancy cannot complain if a preference has been given to them in the first instance and in the carried forward period of three years if vacancy is reserved in favour of scheduled castes or scheduled tribes candidates. according to the model roster which was an accompaniment to the railway board's letter dated april 20, 1970 the first point in the roster is a reserved point is favour of scheduled caste but by virtue of the note, if there be only one vacancy in particular year, it has to be treated as unreserved and it on this account are.....
Judgment:

B.J. Divan, C.J.

1. The three petitioners herein are working as Head Clerks in the Engineering Workshop, Western Railway, Sabarmati, so far as petitioners Nos. 2 and 3 are concerned and the first petitioner is Officiating Chief Clerk in the said Engineering Workshop and his substantive post is that of Head Clerk in the said Engineering Workshop. The first respondent is the Union of India, the second respondent is the General Manager, Western Railway, the third respondent is the Chief Bridge Engineer, Western Railway Headquarters and the fourth respondent is another Head Clerk in the Engineering Workshop at Sabarmati The fourth respondent belongs to one Of the Scheduled Castes and he belongs to the category for whom reservation of posts has been made as reservation for Scheduled Castes under the instructions of the Railway Board. It is the case of the petitioners that in the Western Railway, the Engineering Workshop at Sabarmati is treated as a separate entity for the purpose of promotion from lower cadre to higher cadre. In this Workshop there is only one post of Chief Clerk and the channel of promotion to the post of Chief Clerk is from amongst the Head Clerks. It is the case of the petitioners that promotion to the postage of Chief Clerk is on the basis of selection from amongst the Head Clerks. In September 1974 a vacancy arose in the post of Chief Clerk occasion the fourth respondent was promoted to the post of Chief Clerk on an ad hoc basis on September 1,1974 because on that occasion the vacancy was treated as a reserved vacancy for Scheduled Castes. At that time the fourth respondent was working only as a Senior Clerk which is a cadre below that of Head Clerks. The respondents realised that the said vacancy could not be treated as a reserved vacancy and reverted the fourth respondent to his substantive post and promoted the first petitioner on an ad hoc basis on the basis of seniority as officiating Chief Clerk until final selection was held. The fourth respondent challenged the order of reversion by filing Special Civil Application No. 2245 of 1974 in this Court. This Special Civil Application was dismissed by our learned brother, S.H. Sheth, J, by his judgment and order dated July 18, 1975. Against that Judgment and order of the learned Single Judge, the fourth respondent preferred a Letters Patent Appeal but at the time of the final hearing of the Letters Patent Appeal the fourth respondent withdrew not only the Letters Patent Appeal but also the Special Civil Application No. 2245 of 1974. By a letter dated December 20, 1975 the third respondent who is the Chief Bridge Engineer, Western Railway Headquarters at Bombay, issued instructions to the Deputy Chief Engineer (Engineering Workshop), Sabarmati, to send the names of eligible employees including the names of persons belonging to Scheduled Castes/Scheduled Tribes. In response to those instructions the Deputy Chief Engineer sent two select lists showing the names of eligible employees, one according to the general seniority from amongst the Head Clerks and the other of Scheduled Castes candidates from amongst the Senior Clerks because at that point of time there Was no Scheduled Caste candidate holding the post of Head Clerk. It appears from Annexure 'A' to the petition that the fourth respondent was appointed in the grade of Head Clerks on December 16, 1976 and since that time he is holding that post. At the time when the fourth respondent was so promoted, he bypassed eight senior clerks all of whom were senior to him in service in the cadre of Senior Clerks as shown by the combined seniority list of Senior Clerks of the Engineering Workshop. The Headquarters Office of the Western Railway by their letter dated September 1, 1976 informed the Deputy Chief Engineer, Engineering Workshop, Sabarmati, a copy of the letter being Annexure 'C' to the petition, that the reservation roster was applicable even to a single post in a cadre and it was not exempted from the scope of reservation as it did not infringe the principles laid down by the Supreme Court judgments in M.R. Balaji v. State of Mysore : AIR1963SC649 or in Devadasan v. Union of India, reported in : (1965)IILLJ560SC . Thereafter a letter was sent on July 11, 1977 by the Headquarters Office to the Deputy Chief Engineer (Engineering Workshop), Sabarmati, calling upon him to send names of eligible staff from the category of Head Clerks as per the seniority from unreserved candidates and also from reserved Scheduled Castes candidates so that the exact date of selection by the Selection Committee for selecting person for the post of Chief Clerk could be carried out. It was proposed to hold the selection in the second week of August 1977 and the staff concerned was to be informed to keep them selves in readiness. In response to this letter of July 11,1977 the Deputy Chief Engineer (Engineering Workshop), Sabarmati, sent six names, three of them being unreserved candidates and, the remaining three being reserved candidates. Those six names were sent as the names of eligible staff for being selected as Chief Clerk as per the seniority from the unreserved candidates and reserved candidates. The three petitioners m the present proceedings were all of them in the panel of unreserved candidates. The fourth respondent is at S. No. 1 in the panel of reserved candidates and the other two persons in the panel of reserved candidates are Senior Clerks.

2. The petitioners contend that since there is only one post of Chief Clerk in this Engineering Workshop at Sabarmati, the rule or directions regarding reservation of posts cannot apply and hence the provisions of Article 16(4) of the Constitution do not apply to the present case and any appointment made in purported compliance with the reservation rule would contravene Articles 16 and 14 of the Constitution. The petitioners have prayed for the issuance of an appropriate writ direction or order under Article 226 of the Constitution declaring the rule of reservation as applicable to the single post of Chief Clerk in the Engineering Workshop at Sabarmati as ultra vires, illegal and void and they have also prayed for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution against the respondents restraining them from treating the vacancy in the post of Chief Clerk in the Engineering Workshop at Sabarmati as a reserved vacancy and directing the respondents to treat the said vacancy as unreserved and to fill up the same from amongst all-the suitable candidates.

3. In order to appreciate the contention which has been raised in this case it is necessary to refer first to Article 16 of the Constitution. As is well known this Articles provides for equality of opportunity in matters of public employment. Under Clause (1) of Articles 16, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall, under Clause (2), on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Clause (4) of Article 16 provides-

Nothing in this Article shall prevent the State, from making say provision for the reservation of appointments or posts in favour or any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Acting under Clause (4) of Article 16 of the Constitution the Railway Board has prescribed from time to time the reservation of posts for Scheduled Castes and Scheduled Tribes. Prior to 1970 the reservation of posts was 11-1/2 per cent for Scheduled Castes and 5 per cent for Scheduled Tribes. This reservation had been made on the footing of census figures for 1951 census. However, in the light of the census figures for the year 1961 the Railway Board issued a letter dated April 20, 1970 on the subject of reservation for Scheduled Castes and Scheduled Tribes, Revision of percentages and period of carrying forward of such reservations-utilization of vacancies reserved for Scheduled Castes in favour of Scheduled Tribes and vice versa. This letter pointed out that in the light of the population of Scheduled Castes and Scheduled Tribes as shown in the 1961 Census in modification of the decisions taken earlier, the reservations on All-India basis were, so far as Scheduled Castes ere concerned, instead of the existing reservation of 12-1/2 percent, there would be a reservation of 15 per cent of the vacancies in favour of Scheduled Castes and in case of Scheduled Tribes, the reservation was to be 7-1/2 per cent as against he previous reservation of 5 per cent. The letter pointed out that in posts and services recruitment to which was made on a local or regional basis i.e. be posts the sales of which did not go beyond Rs. 375/- per month, the percentage of servation for Scheduled Castes and Scheduled Tribes was to be revised wherever necessary after taking into account the percentage of population of Scheduled Castes and Scheduled Tribes in the various States and Union Territories according to 1961 Census. Clause 2 pointed out that in vacancies in posts filled by promotion in which reservations have been provided, the percentage of reservation for Scheduled Castes and Scheduled Tribes in such posts was also to be raised from 12-1/2 per cent to 15 per cent in favour of Scheduled Castes and from 5 per cer to 7-1/2 per cent in favour of Scheduled Tribes. In our opinion once decision to reserve posts in favour of Scheduled Castes and Scheduled Tribes has been taken the necessary and logical corollary of that decision is to provide a roster so that proper effect can be given to the reservations prescribed and this roster has to be at any rate followed as to reservation according to the model roster. In order that full effect could be given to the reservation of 15 per cent for Scheduled Castes and 7-1/2 per cent for Scheduled Tribes, a model roster of 40 points was prepared by the Railway Board and circulated to all the appointing authorities, As appendix I-A at page 45 of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Railway Services, Second Edition 1976 issued by the Government of India, Ministry of Railways, New Delhi model roster for posts filled by Direct Recruitment on All India basis by open competition is laid down. The foot-note below the roster shows that this roster was applicable to promotion vacancies also in accordance with Railway Board's letter dated November 28, 1964. The note at the foot of the roster says-

If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved. If on this account, a reserved point is treated as unreserved the reservation may be carried forward to the subsequent three recruitment years.

'Recruitment years' for the purposes of these Rules of the Railways means the financial year from April 1 of each year to March 31 of the succeeding year. The rule as to carry forward is set out in Chapter VII at page 19 of the Brochure and that rule provides that if sufficient number of candidates of the communities for whom the reservation is made are not available for appointment/promotion, the vacancies remaining unfilled, shall be treated as unreserved after following the prescribed procedure for dereservation as given in paragraph 8 and carried forward to three subsequent recruitment/selection years. It may be pointed out that under the letter of the Railway Board dated April 20, 1970 the carry forward was uptil April 1970 for a period of two years but by virtue of paragraph 3 of this letter of April 20, 1970 the reserved vacancies were to be carried forward to the third recruitment year as well.

4. Miss Shah for the petitioners contends that Article 16(4) speaks of reservation of appointments or posts in favour of any backward class of citizens. Moreover, right from the beginning the reservation has been of posts and services and not of vacancies, She as further emphasized that the letter of April 20, 1970 speaks of reservations to be made for Scheduled Caste and Scheduled Tribes in posts and services which were to be filled by direct recruitment and paragraph 2 of that letter of April 20, 1970 also speaks of vacancies in posts filled by promotion in which reservations has been provided. She contended that since reservation is for posts and not for vacancies it is not open to the railway authorities, respondents Nos. 1, 2 and 3 herein, to bring in the concept of reservation 80 far as the vacancy, for the post of Chief Clerk is concerned. She contended that when there is a single post as is the case of post of Chief Clerk the Engineering Workshop at Sabarmati, there is no scope for application of the reservation rule and the railway authorities are acting contrary to the scheme of reservation and also to the principles regarding reservation particularly in the light of Article 16(4) in applying the roster as also the reservation rule to the vacancy arising in the post of Chief Clerk.

5. Miss Shah has relied upon the decision of the majority of the Judges in Devadasan v. Union of India : (1965)IILLJ560SC . In that case interpreting Article 16(4) of the Constitution the majority of the learned Judges of the Supreme Court struck down the carry forward rule under which there was a possibility of more than 50 per cent of the posts-in a particular cadre in the railways being reserved for Scheduled Castes and Scheduled Tribes in any particular year. This decision of the Supreme Court cannot help the petitioners, because, as pointed out by the Supreme Court in A.R. Choudhury v. Union of India : (1974)ILLJ239SC , the decision in Devadasan's case was rendered on August 29, 1963 and on December 4, 1963 the Ministry of Home Affairs issued a memorandum modifying the carry forward rule so as to comply with the decision. By para 2 of the Memorandum (as amended by the Memorandum of September 2 1964), the carry forward rule was amended by providing that 'in any recruitment year, the number of normal reserved vacancies and the carried forward reserved vacancies together shall not exceed 45 percent of the total number of vacancies'. Nevertheless, 'if there be only two vacancies, one of them may be treated as a reserved vacancy. But if there be only one vacancy, it shall be treated as unreserved. The surplus above 45 per cent shall be carried forward to the subsequent year of recruitment, subject however, to the condition that the particular vacancies carried forward do not become lime barred due to their becoming more than two years old'. In paragraph 20 in A.R. Choudhury's case Chandrachud, J., as he then was, speaking for the Supreme Court pointed out

The model roster accompanying the letter of the Railway Board dated. January-16, 1964 is designed to meet the requirements of the new situation arising out of the rules framed in deference to the judgment in Dewdawn's case. Both the letter and the Note appended to the roster state expressly that if there are only two vacancies to be filled on a particular occasion, not more than one may be treated as reserved and if there be only one vacancy it should be treated as unreserved. The word on a particular occasion' were suo statuted on September 2, 1964 by the words year of recruitment. Thus in me first place each year of recruitment is directed is be considered separately and by itself as laid down in Dewdasan's case, so that if there arc only two vacancies to be filled in & particular year of recruitment, not more than one vacancy can be treated as reserved. Secondly 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 rosier at a reserved point. The appointment then is not open to the charge that the reservation exceeds 50 per cent for, if the very first vacancy in the first year of recruitment is in practice treated as a reserved vacancy, the system may be open to the objection that the reservation not only exceeds 50 per cent but is in fact cent per cent. But, if 'on this account', that is to say, if on account of the requirement that the first vacancy must in practice be treated as unreserved even if it occurs in the model roster at a reserved point, 'a reserved point is treated as unreserved' the reservation can be carried forward to not more than two subsequent years of recruitment thus if two vacancies occur, say, within an initial span of three years, the first vacancy has to be treated as an unreserved vacancy and the second as reserved.

It may be pointed out that in A.R. Choudhury's case the petitioner before the Su preme Court, Shrimati Arati Ray Choudhury, was a permanent employee in the South Eastern Railway-a Government of India Undertaking' which runs two Higher Secondary Schools for girls one at Adra and the other at Kharagpur. The question before the Supreme Court was whether the vacancy in the post of the Headmistress of the Kharagpur School could be treated as being reserved for a Scheduled Cast candidate, a question which depended for its decision both on the interpretation and the validity of the 'Carry forward' rule. The petitioner assailed that rule and contended that the vacancy was open to all candidates while respondent No. 8 before the Supreme Court, who belonged to & Scheduled Caste, contended for a contrary position. After considering the impact of Devadasan's case and the new carry forward rule, Chandrachud J. speaking for the Supreme Court further observed in paragraph 22

Though each year of recruitment is to be treated separately and by itself a reserved vacancy has to carried forward over 2 years, if it is not filled in by the appointment of a reserved candidate. The open class reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas. If the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of scheduled castes and scheduled tribes until the close of the financial year 1968-69. The Kharagpur vacancy was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly, does not belong to the reserved class. The construe tion sought to be put on the rule by the petitioner would perpetuate a social injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the rule and its legislative history.

The period with which the Supreme Court was concerned in A.R. Choudhury's case was prior to the amendment of the reservation rules by the Railway Board's letter of April 20, 1970. In accordance with the decision set out in that letter the reservation to posts was increased from 12-1/2 per cent to 15 per cent in the case Scheduled Castes and from 5 per cent to 7-1/2 per cent in favour of Scheduled Tribes. The model roster, a copy of which is also annexed as Annexure 'B' to the petition was then drawn up to comply with these new reservation percentages and the note at the foot of the model roster, Annexure 'B' to the petition, is in language identical with that with which the Supreme Court was dealing in A.R. Choudhury's case the only difference being that under the model roster, Annexure 'B' to the petition the carry forward is to three recruitment years whereas the carry forward in the note with which the Supreme Court was dealing in A.R. Choudhury's case was for a period of two recruitment years. In our opinion, the instant case falls directly, fairly and squarely within the ratio to the decision of the Supreme Court in A.R. Choudhury's case. The question is not of posts but of vacancies.

6. Even apart from the Supreme Court decision it is obvious that once the power to make reservation in favour of Scheduled Castes and Scheduled Tribes is exercised in the light of the provisions of Article 16(4) it would necessarily follow that a roster point wise for the purpose of 'vacancies for which reservation has been made must be brought into effect and in order to do full justice, a carry forward rule has to be property enacted particularly in the light of the decision of the Supreme Court in Devadawn's case. The carry forward rule has to be so applied that in any particular year, there is not more than 50 per cent reservation but as Chandrachud, J., as he then was, has pointed out in A.R. Choudhury's case the open candidates who are competing for an unreserved vacancy cannot complain if a preference has been given to them in the first instance and in the carried forward period Of three years if vacancy is reserved in favour of Scheduled Castes or Scheduled Tribes candidates. According to the model roster which was an accompaniment to the Railway Board's letter dated April 20, 1970 the first point in the roster is a reserved point is favour of Scheduled Caste but by virtue of the note, if there be only one vacancy in particular year, it has to be treated as unreserved and it on this account are served point is treated as unreserved, the reservation has to be carried forward to the subsequent three recruitment years. Since this model roster came into existence on April 20, 1970 and since so far as the post of Chief Clerk of the Engineering Workshop is concerned it is being made applicable for the first time, the present selection will have to be treated as on the footing of an unreserved vacancy even though the first point on the roster is of Scheduled Castes but that this reserved point which is at point No. 1 has to be carried forward for a subsequent period of three recuilment years and if that is done, as shown by A.R. Choudhury's case, it would be a perfectly valid action. In our opinion, in the light of the decision of the Supreme Court in A.R. Choudhury's case no other conclusion is possible. The contention that the reservation rule cannot apply when there is only one single post cannot be entertained in view of the principles laid down A.R. Choudhury's case by the Supreme Court and also on the logic behind the reservation, the roster and the carry forward rule. The logical corollary reservation of posts is roster and logical corollary to the roster is the carry forward rule for a particular number of years as may be prescribed. If taking railway services as a whole, the reservation of 15 per cent for Scheduled Castes and 7-1/2 per cent for Scheduled Tribes has to be brought about, it is only by treating vacancies in posts as reserved vacancies or unreserved vacancies that over a number of years a situation can be brought about where ultimately 15 per cent of all cadres where posts are reserved are manned by Scheduled Castes personnel and 7-1/2 per cent of the posts of the cadre are manned by Scheduled Tribes personnel. It is not a single post that has to be looked at but all posts in general and the roster which deals with vacancies and not with posts is meant to give effect to the logic underlying the reservation rule.

7. Miss Shah relied upon the decision of the Division Bench of the Allahabad High Court consisting of K.N. Singh and S.D. Agarwal JJ, in Civil Miscellaneous Writ No. 1809 of 1972 decided by the Division Bench on December 9, 1977. The Division Bench in that case was dealing with reservation for Guards Grade 'A', Grade 'B' and Grade 'C' and was dealing inter alia with the Railway circular dated April 20, 1970. The Division Bench of the Allahabad High Court read paragraph I of the letter dated April 20, 1970 of the Railway Board as laying down that-

there would be reservation for Scheduled Castes to the extent of 15 per cent for appointment to the posts filled by promotion. The reservation of 15 per cent has been made for appointment to the posts and not to the vacancies which may occur in the posts. This view finds support from the opening part of the said circular letter which clearly states that the question of revising the percentage of reservation for Scheduled Castes and Scheduled Tribes in the posts and services under the Government of India in the light of the population of these communities as shown in the 1961 census has been under consideration of the Government for some time.

According to the Division Bench of the Allahabad High Court, it was clear that reservation for Scheduled Castes has been made in the posts and services and not in vacancies occurring from time to time.

8. With great respect to the learned Judges of the Allahabad High Court, we are unable to agree with their conclusions. The decision of the Supreme Court in A.R. Choudhury's case (supra) does not appear, to have been pointed out to the learned Judges and it may be pointed out that they seem to have overlooked the basic principle underlying the reservation of posts and the logical corollary which follows from that principle of reservation of posts. Particularly in the light of the decision of the Supreme Court in A.R. Choudhury's case it is not possible for us to agree with this decision of the Allahabad High Court.

9. The decision in Sudama Prashad v. Divisional Supdt. W. Rly which was also relied upon by Miss Shah does not help the petitioners because in that particular case, the question was not whether the reservation should be in accordance with vacancies or merely posts but the question was whether reversion of an employee who was an open unreserved candidate who had been regularly promoted should be set aside in favour of another candidate who after the date of appointment put forward his claim as a Scheduled castes personnel. Hence it is not necessary for us to refer to that case any further.

9.1. Under these circumstances the contention urged on behalf of the petitioner and that is the only contention urged before us, fails and must be rejected. This Special Civil Application, therefore, fails and is dismissed. Rule is discharged. There will be no order as to costs in view of the special circumstances of the case.

10. After the above judgment was pronounced in open Court to-day, Miss Shah for the petitioners applied for leave under Article 133 of the Constitution for certificate for appeal to the Supreme Court. In our opinion, there is no substantial question of law of general importance which is now needed to be decided by the Supreme Court in this case. The only contention which was urged before us has been rejected in view of the decision of the Supreme Court in A.R. Choudhury's case (supra) and hence the requirements of Article 133 are not satisfied in this case. We have, therefore, rejected this oral application of Miss Shah.


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