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Manimegalai Janagaraj Etc., Etc. Vs. S. Alaghia Dass Etc., Etc. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.A. Nos. 122 and 208 of 1979 and W.P. No. 369 of 1979
Judge
Reported in(1983)ILLJ481Mad
ActsConstitution of India - Articles 14, 16, 16(1), 16(2), 16(4), 26(4), 226 and 335
AppellantManimegalai Janagaraj Etc., Etc.
RespondentS. Alaghia Dass Etc., Etc.
Cases ReferredAkhil Baratiya Soshit Karmachari Sangh (Railway) v. Union of India
Excerpt:
constitution of india, articles 16(1)(2) and (4)--equality of opportunity in public employment--roster system treating a single vacancy as reserved and filling up that vacancy with s.c. and s.t. candidates--whether reservation of a single vacancy for s.c. & s.t. would offend articles 16(1) and (2)--help in negative.;the respondent was promoted on ad hoc basis as head assistant in the only one post in the posts and telegraphs department. later on, he was promoted on regular basis, and subsequently he was further promoted as office superintendent in the only one vacancy. thereafter, on the basis of the instructions issued by the director-general of posts and telegraphs governing the appointment to the post of head assistant, the general manager, tele-communications cancelled the regular.....1. one alaghia doss was recruited as upper division clerk in the postal department by direct recruitment on 2nd february, 1942. afterwards, he was promoted as head clerk in the cadre of lower selection grade and was confirmed in that category of service in 1966. on a consideration of his merit and seniority, he was promoted by the general manager, tele communications, madras as head assistant in the cadre of higher selection grade on 25th february, 1978 with effect from 1st march, 1978. this promotion was on ad hoc basis. the post of head assistant in the cadre of higher selection grade is only one post. on 18th april, 1978, he was again promoted by the general manager, tele communications, madras as head assistant on a regular basis. subsequently, on 22nd august, 1978, he was further.....
Judgment:
1. One Alaghia Doss was recruited as Upper Division clerk in the Postal Department by direct recruitment on 2nd February, 1942. Afterwards, he was promoted as Head Clerk in the cadre of Lower Selection Grade and was confirmed in that category of service in 1966. On a consideration of his merit and seniority, he was promoted by the General Manager, Tele Communications, Madras as Head Assistant in the cadre of Higher Selection Grade on 25th February, 1978 with effect from 1st March, 1978. This promotion was on ad hoc basis. The post of Head Assistant in the cadre of Higher Selection Grade is only one post. On 18th April, 1978, he was again promoted by the General Manager, Tele Communications, Madras as Head Assistant on a regular basis. Subsequently, on 22nd August, 1978, he was further promoted as Office Superintendent and posted in the only vacancy of Office Superintendent in the office of the General Manager, Tele Communications, Madras, which post he claims he is still holding. Presumably, in accordance with the instructions issued by the Director General of Posts and Telegraphs to be considered in making an appointment in the Higher Selection Grade, the General Manager, Tele Communications, Madras passed orders on 21st June, 1978 cancelling the appointment of Alaghia Doss as Head Assistant on a regular basis and treated the same on ad hoc basis. Alaghia Doss preferred an appeal against the order dated 21st June, 1978 to the Director General of Posts and Telegraphs, New Delhi, alleging that the order is punitive and vitiative. The Director General, by order dated 7th September, 1978 found that the appeal of Alaghia Doss cannot be sustained in the light of the instructions contained "in the Department of Personnel and A.R.O.M. No. 1/9/74 Esst (SCT) dated 29th April, 1975". That order further states that the General Manager, Tele Communications Madras. will terminate the ad hoc promotion, and immediately take action to fill up the post on regular basis. That order further requires the consideration of the case of one Manimegalai Janagaraj, who appears to have made representations for her promotion on the ground that she is a Scheduled Tribe candidate entitled to roster reservation. It is at this stage, Alaghia Doss filed the Writ Petition seeking to quash the order of the Director General, Posts and Telegraphs, New Delhi and to direct the Director General and General Manager, Tele Communications, to treat the only post of Head Assistant (General) in the cadre of Higher Selection Grade in the Office of the General Manager, Tele Communications, Madras, as a single vacancy and hence not reserved for Scheduled Caste candidates.

2. In this affidavit, Alaghia Doss alleged that the order relating to reservation for SC/ST is inapplicable as there is only one post in the cadre of Head Assistant (General), and that if reservation is applied, it would result in 100% filling up of the cadre by a SC/ST candidate with the help of the reservation orders, which reservation in a cadre cannot be more than 50% under the Constitution of India. He urged that the post of Higher Selection Grade is a single post and it should not be treated as reserved vacancy and the 40 point roster cannot be applied. The reservation contemplated under Art. 16(4) of the Constitution cannot have overriding effect or supersede the provisions under Art. 16(1) and Art. 16(2) of the Constitution providing for equality of opportunity for all citizens in matters relating to employment or appointment and protection against the discrimination on the ground only of religion, race, caste, etc. The impugned order cannot take away the permanent status conferred upon Alaghia Doss the procedure directed by the Director General of Posts and Telegraphs bristles with arbitrariness and is vitlated. The concession of Backward Classes and Scheduled Castes under Art. 16(4) of the Constitution is only for entering into service and not for subsequent happening and promotions based on seniority. The impugned order is illegal as the Roster cannot apply, for a promotional post which is filled up only on seniority basis. It cannot also apply to non-selection post of Higher Selection Grade according to Posts and Telegraphs Manual Volume IV. According to Rule 27(b) of the Post and Telegraphs Manual Volume IV promotion to the lower or higher selection grade is to be made in the order of seniority only. The impugned order is unconstitutional and opposed to Art. 335 of the Constitution as the provisions of Art. 16(4) of the Constitution are to be interpreted in the context and background of Art. 335, as efficiency of administration is of paramount importance and that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. It was also claimed by Alaghia Doss that no opportunity was given to him before the direction was issued by the Director General of Post and Telegraphs to promote Manimegalai Janagaraj in his place, and it is against the principles of natural justice. With these allegations Alaghia Doss sought the relief already referred to.

3. The allegatiosn of Alaghia Doss were countered by the Department stating that the promotion from the cadre of lower selection grade to higher selection grade is purely on the basis of seniority subject to observance of Roster points for SC/ST. The first fancy occurred on 6th February, 1975 when one Gopal Das was promoted as Head Assistant (General). According to the Roster, the first point for promotion goes to a Scheduled Caste candidate if there are a number of vacancies. Since the vacancy was only one, the post was filled-up on seniority basis by the seniormost official, viz. Gopal Das. Alaghia Doss was promoted in a vacancy which occurred for a second time. According to the rules of SC/ST reservation, this post should be filled by a Scheduled Caste candidate even though the vacancy happens to be a single vacancy in the light of the orders from the Department of Personnel Affairs in OM. No. 1/8/74 Esst (Act) dated 29th April, 1974. The promotion of Alaghia Doss was therefore not correct, therefore it was treated as an ad hoc promotion.

4. It was further contended that the orders of reservation of SC/ST candidates indicate that if there is a single vacancy, it will be treated as unreserved in the first instance and filled accordingly. But the reservation should be carried forward to subsequent years. In the recruitment for subsequent years, the reservation should be applied by treating the vacancy arising in that year as reserved even though there might be only a single vacancy in the subsequent year.

5. It was further contended that Alaghia Doss, though the seniormost in the lower selection grade, could be considered for a vacancy in the higher selection grade which is to be filled up by a non-Scheduled Caste or Tribe candidate. But, as he was promoted in a vacancy which occurred for a second time which has to be treated as reserved, the order of promotion of Alaghia Doss was liable to be revised. If by a mistake regular promotion had been ordered, it is open to the Department to correct it when the mistake is brought to its notice. Correctly the Department has treated the promotion as ad hoc promotion.

6. It was further contended that in as much as the formation of Departmental Promotion Committee has not been finalised, any promotion made has to be construed only as an ad hoc basis. That is why the regular promotion wrongly made was subsequently corrected into an ad hoc promotion in the higher selection grade. Finally, the Department contended that a vacancy that occurs in the post, whether it is single or not, has to be filled up according to the Roster system and following the guidelines given in the Departmental instructions.

7. On the above contentions, the Department prayed for a dismissal of Alaghia Doss's Writ Petition. Manimegalai Janagaraj was impleaded as the third respondent in the Writ Petition by order of Court and she filed a counter-affidavit refuting the allegations of Alaghia Doss. She is working as Head Clerk in the lower selection grade in the office of the General Manager. Tele Communications Tamil Nadu Circle. She belongs to SC. According to her, one post of Head Clerk (LSG) was upgraded as a post of Head Assistant (H.S.G.) with effect from 7th January, 1975. In the first vacancy which arose in the post of Head Assistant (HSG) Gopal Das, the seniormost LSG was appointed. The Writ Petitioner Alaghia Doss and Manimegalai Janagaraj continued as Head Clerks (LSG). As soon as Gopal Das was promoted as Office Superintendent, Alaghia Doss was promoted in his place as Head Assistant (HSG) with effect from 1st March, 1978. That vacancy being a second vacancy, it should have been filled up in accordance with the rules of reservation for Scheduled Castes and Scheduled Tribes. Even though promotion to the post of Head Assistant (HSG) is made on the basis of seniority-cum-fitness, it is also governed by the rules regarding reservation for Scheduled Castes and Scheduled Tribes.

8. Manimegalai Janagaraj would further contend that the expression backward class occurring in Art. 16(4) of the Constitution has been interpreted to include Scheduled Castes and Scheduled Tribes and that the reservation contemplated can be either in appointments or posts or in both. The Government of India have made rules regarding reservation of posts of Scheduled Castes and Scheduled Tribes and for carry-forward of reservations. As regards posts to which promotions are made on the basis of seniority subject to fitness, there is a reservation of 15% & 7 1/2% of the vacancies for the Scheduled Castes and Scheduled Tribes and a model 40 point Roster has been prescribed in this behalf. In OM. No. 1/9/74 Estt/SCT/dated 29th April, 1975, the Government of India have laid down that "in case where only one vacancy oddurs in the initial recruitment year and the corresponding Roster-point happens to be for a Scheduled Caste or Scheduled Tribe, it should be treated as unreserved and filled accordingly and the reservation carried forward to subsequent three recruitment years. In the subsequent recruitment year(s), even if there is only one vacancy, it should be treated as reserved against the carried forward reservation from the initial recruitment year, and a Scheduled Caste/Scheduled Tribe candidate, if available, should be appointed in that vacancy, although it may happen to be the only vacancy in that recruitment year(s)". To say, that if reservation orders are applied in this case, it will result in 100% filling up of the cadre by a Scheduled Caste/Scheduled Tribe candidate is to take a rather narrow view of the question. If reservation can be validly made in appointments under Art. 16(4) of the Constitution, vacancies occurring from time to time in a single post can also be filled up in accordance with the Roster. The post of Head Assistant (HSG) being a second vacancy, the first having been dereserved and given to a general candidate, the second should have been treated as reserved and filled in only by the promotion of a Scheduled Caste Candidate. That not having been done, it was perfectly right to treat the appointment of Alaghia Doss as an ad hoc appointment. Besides, the promotion of the petitioner Alaghia Doss as Head Assistant (HSG) was only ad hoc, because it was not made after consultation with the Departmental Promotion Committee, as no Departmental Promotion Committee had been Constituted at that time. Therefore, according to Manimegalai Janagaraj, the contention of Alaghia Doss that his right has been taken away and the impugned order is not bona fide in nature, cannot be sustained. She would further aver that the impugned order only directs the constitution of Departmental Promotion Committee to make promotion in accordance with the rules and points out that even in respect of a single vacancy, the Roster of reservation can be applied. It is not correct to say that there is a hundred per cent reservation in favour of Scheduled Castes/Scheduled Tribes. That allegation is not only factually incorrect, but also ignores the true effect of applying Roster of reservation to vacancies arising from time to time even in a single post. By the impugned order, no principle of natural justice has been violated. Alaghia Doss's promotion made on regular basis wrongly was rectified by the authorities concerned by treating it as an ad hoc promotion. The petitioner Alaghia Doss has not exhausted the alternative remedies available to him by preferring an appeal to the President of India and therefore, this Writ Petition has to be dismissed in limine.

9. A learned Single Judge of this Court who heard and disposed of the writ petition, observed in his judgment that this being a single post, reservation cannot be made as contemplated under Art. 16(4) of the Constitution, that Arts. 16(1) and 16(2) have been held to apply both for appointments and promotions and if so, every time the post becomes vacant, Arts. 16(1) and 16(2) will be applicable and any reservation will make these provisions illusory. The learned Judge held that for a single post, the rules of reservation cannot be applied and such application would offend Arts. 16(1) and 16(2). On this finding, the learned Judge upheld the contention of the writ petitioner Alaghia Doss and allowed his writ petition. It is against that judgment of the learned single judge, Manimegalai has preferred writ Appeal No. 122 of 1979 and the Department preferred writ Appeal No. 208 of 1979.

10. We have carefully gone through the pleadings and the relevant records including the judgment of the learned Single Judge of our High Court. The 40 point Roster prepared is being applied to the single post. In T. Devadasan v. Union of India [1965-II L.L.J. 560], which was referred to in support of the decision rendered by the learned Single Judge of our High Court, the Supreme Court found that the carry forward rule, by which the Scheduled Castes or Scheduled Tribes could get more than 50% of the vacancies to be filled up in a particular year, is unconstitutional. In a cadre strength, the reservation cannot exceed certain percentage so as to nullify the rights of the citizens guaranteed under Arts. 16(1) and 16(2). The basic principles set down in M. R. Balaji v. State of Mysore , which has not

been overruled in Devadasan's case, was succinctly referred to by Subba Rao, J. (as he then was) in his dissenting judgment in Devadasan's case. The learned Judge observed :

"The provision for 'Carry forward' is for the reservation of appointments for the Scheduled Castes and Tribes, and unless it is established that an unreasonably disproportionate part of the cadre strength is filled up with the said Castes and Tribes, it is not possible to contend that the provision is not one of reservation but amounts to a violation of the fundamental rights. It is inevitable in the nature of reservation that there will be lowering of standards to some extent; but on that account the provision cannot be said to be bad."

Ramaswami, J., undoubtedly considered Devadasan's case, but in applying the said case to the facts of the present case, the learned Judge thought that reservation of posts of Scheduled Castes and Tribes would amount to curtailment of the freedom guaranteed under Art. 16(1)(2). He further thought that such reservation could be made under Art. 16(4) only when there are more than one vacancy in a particular cadre. If this principle is accepted, the possibility of the Scheduled Castes or Scheduled Tribes or Backward Classes enjoying the benefit of a particular single post in that cadre, will be very remote. But, if that post, which is a single post in that cadre, is made available by rotation by a properly prepared roster, there will be definiteness in making the Scheduled Castes or Scheduled Tribes or Backward Classes enjoying that single post by rotation. This will not in any way make the cadre a cent per cent reservation either to Scheduled Castes or Scheduled Tribes or to the Backward Classes. On the other hand, they would have enough representation in the post.

11. By the present 40 point Roster System the post has not been completely reserved to a particular caste. By rotation the Scheduled Caste candidate gets it and it has also been made clear by the Roster that if there is a single vacancy, it will be treated as unreserved in the first instance and filled accordingly. But, the reservation should be carried forward to subsequent years. In the subsequent years of recruitment, the reservation should be applied by treating the vacancy arising in that year as reserved even though there might be only a single vacancy in the subsequent year. In this single post now in question, the first vacancy occurred on 6th February, 1975 when on Gopal Das was promoted as Head Assistant (General). Accordingly to the Roster, the first point for promotion goes to Scheduled Caste candidate if there are a number of vacancies. Since the vacancy was only one, the post was filled up on seniority basis by the senior most official viz. Gopal Das. Alaghia Doss was promoted in a vacancy occurred for a second time. This post should have been filled up by a Scheduled Caste candidate even though the vacancy happens to be a single vacancy in the light of the orders from the Department of Personnel Affairs in O.M. No. 1/9/74 Estt (SCT) dated 29th April, 1974. Hence, the promotion of Alaghia Doss was treated as ad hoc promotion and correctly the appellant, who belongs to Scheduled Caste, was considered for the post. Further, in this case, the Departmental Promotion Committee was not formed and it is incumbent that the post has to be finalised by the Departmental Promotion Committee. Hence, any promotion made must be considered only as on ad hoc basis.

12. In A. R. Choudhury v. Union of India the Supreme Court considered certain circulars of the Railway Board in the matter of applicability of the rule of reservation. A model roster signifying the runs of reserved and unreserved vacancies was prepared by the Railway Board in 1964. According to this roster, 12.5% of the vacancies was reserved for Scheduled Castes and 5% for Scheduled Tribes. The first vacancy as per the roster system had to go to a Scheduled Caste candidate and the second was an unreserved one. But, there was a note appended to it, according to which, if there are only two vacancies to be filled on a particular occasion, not more than one to be treated as reserved and if there is only one vacancy, it should be treated as unreserved. If on this account a reserved point was treated as unreserved, the reservation was directed to be carried over in the subsequent recruitment years. The Railway Board further clarified that selection should normally be made for two posts, i.e. one actual and the other to cover unforeseen circumstances. The argument on behalf of the petitioners in that case was that the said not, particularly the rule of carry forward contained therein, was hit by Arts. 14 and 16 of the Constitution as interpreted in T. Devadasan v. Union of India. The said contention was repelled and it was held that the said not and the clarification letter, which was in fact issued to accord with Devadasan's case, were perfectly valid and since the said note applied, no interference was called for.

13. The abovesaid principle evolved in A. R. Choudhury v. Union of India squarely applies to the facts of the present case. The principle evolved in T. Devadasan v. Union of India has no bearing on the facts of this case. In Devadasan's case, the Supreme Court visualizes situation in the carry forward rule since it may some time result in filling up the whole of the cadre strength or more than 50% of the cadre strength by Scheduled Caste/Scheduled Tribe : that is why the Supreme Court has held that such carry forward rule without relevance to the cadre strength has to be struck down. The principles laid down in A. R. Choudhury v. Union of India was followed in M. K. Janardan v. Union of India (1979) L.I.C. 394. In this case, the rule of reservation for a single post was dealt with. The petitioners in that case contended that since there is only one post of Chief Clerk in the Engineering Workshop of Sabarmati, the rule of directions regarding reservation of posts cannot apply and hence, the provisions of Art. 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 Arts. 16 and 14 of the Constitution. The petitioners therein prayed for the issuance of an appropriate writ, direction or order under Art. 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 Art. 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 among all the suitable candidates. In that case also a 40 point Roster system prepared by the Railway Board was applied. This Roster system was prepared in order to give reservation of 15% for scheduled castes and 7 1/2% for scheduled tribes. The Gujarat High Court in this case, following the principles laid down in A. R. Choudhury's case, has stated that

"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 logica underlying the reservation rule."

In yet another case decided by the Andhra Pradesh High Court in H. B. Singh v. P. M. G., A. P. (1979) L.I.C. 183, the Andhra Pradesh High Court has held,

"Clause (4) of Art. 16 provides for reservation not only in the case of 'post' but also in the case of 'appointment's. When the constitution has advisedly used both the expressions 'Appointments' and 'posts', it would be wholly impermissible to read 'appointments' as synonymous with 'posts'. One of the rules of interpretation is that no word in a statute should be treated as superfluous and the said rule applies with greater force in the case of constitution. The expression 'appointments' undoubtedly includes promotions. Even in the case of one post, more than one appointment may take place in a given period as a result of promotion, retirement, termination or resignation of the incumbent. The only and reasonable method of applying the rule of reservation in the case of a single post would be to apply the said rule to the vacancies arising in the said post, i.e. by reserving a certain number of appointments to be made to that post. Interpretation to the contrary would mean that the rule of reservation cannot be applied in cases where there are say four or five posts. Such an unreasonable interpretation cannot be accepted; nor can it be said that such a situation was intended."

14. We are of the view that the decisions reported in A. R. Choudhury v. Union of India, M. K. Janardan v. Union of India and H. B. Singh v. P. M. G. A. P. (supra) will squarely apply to the facts of the present case. Even in respect of a single post, by rotation the authorities can make it available to the Scheduled Castes, Scheduled Tribes by proper roster system. The 40 point roster system prepared in this case clearly makes the first vacancy as unreserved even though as per the roster, it has to go to a scheduled caste candidate. But, it has also been made clear by instructions that the same has to be carried forward and the second vacancy has to be filled up by the Scheduled Caste candidate. As rightly observed in H. B. Singh v. P. M. G., A. P. Art. 16(4) contemplates 'appointments' or 'posts'. Hence, the rule of reservation, even in case of a single post, can be made. The facts and circumstances of the present case squarely attract the principle laid down in A. R. Choudhury v. Union of India. Under these circumstances, were are of the view, that the impugned order of the administration neither violates Arts. 16 and 16(2)(1) and (2) nor offends any of the other provisions of the Constitution of India.

For all these reasons, the judgment of the learned single Judge will have to be set aside and the Writ Appeals, allowed.

15. W.P. No. 369 of 1979 :

The petitioner herein Mrs. Susan Cherryan, has in this petition prayed for the issue of writ of mandamus or any other appropriate writ, order or direction restraining the Chief Personnel Officer, Southern Railway, Madras, from treating the post of Matron Grade I (Class II) in the Headquarters Hospital, Southern Railway, Madras, as a "reserved" one.

16. The petitioner's case is : She has been working in the Southern Railway Headquarters Hospital, Perambur, as Matron Grade (Class II) on an ad hoc promotion since 31st May, 1976. The vacancy to this post arose on 31st May, 1976 when one Mrs. Rajathi proceeded on leave from that post preparatory to retirement. Since the writ petitioner was the senior most Matron Grade II at the time when Mrs. Rajathi proceeded on leave preparatory to retirement, she was given ad hoc promotion as Matron Grade I (Class II) by the Chief Personnel Officer, Souther Railway, Madras (third respondent herein) in his letter HPB/o/340/76 dated 29th May, 1976. Accordingly the writ petitioner took charge as Matron grade I (Class II) on and from 31st May, 1976. While so, one S. Gajendri, who is the fourth respondent herein, filed writ petition No. 2107 of 1977 (Mrs. G. Gajendri - Petitioner v. Chief Personnel Officer Headquarters Officer, Personnel Branch, Southern Railway, Madras 3 and 2 others Respondents) in this High Court, praying for the issue of a writ of mandamus directing the Railway authorities to promote only a Schedule Caste candidate to the post of Matron Grade I (Class II). The said W.P. No. 2107/1977 was admitted and in W.M.P. No. 3161 of 1977 the High Court directed that the interview proposed to be held on 2nd August, 1977 could go on and that the order of promotion would await further orders of court. While the matter stood thus, the Railway Board, by communication No. 77(E) (SCT) 14/39 dated 4th April, 1978, decided to treat the post of Matron Grade I (Class II) as a reserved post to be filled by Scheduled Caste employees only. Consequent on that decision of the Board, W.P. No. 2107 of 1977 was dismissed. The fourth respondent, Gajendri, was called for an interview to be held on 8th February, 1978 for selection to the post of Matron Grade I (Class II) by letter No. P. (G) J. 32/VIII/Matron dated 23rd January, 1979 from the third respondent, Chief Personnel Officer, Southern Railway, questioning the Railway Board's decision treating the post of Matron Grade I (Class II) as reserved one, the writ petitioner has come forward with this writ petition. According to her, the reservation of the post of Matron Grade I (Class II) to the Scheduled Caste candidate is unconstitutional, in as much as it destroys the fundamental rights guaranteed to the writ petitioner under Arts. 14 and 16(1) and 16(2) of the Constitution. The writ petitioner also drew to her support the decision of this Court rendered in W.P. No. 3756 of 1978 (out of which W.A. Nos. 122 and 208 of 1979 have arisen, which are being disposed of by this judgment). According to the writ petitioner, if the only post of Matron Grade I (Class II) is treated as reserved post, it would virtuall create a monopoly in favour of person belonging to the scheduled caste only. Such monopoly would be unreasonable and would clearly violate the principles of equality of opportunity in matter of employment guaranteed under Art. 16(1) of the Constitution. When there is only one post, according to the petitioner, the authorities cannot reserve that post to the Scheduled Caste candidates. The writ petitioner would further submit that the petitioner being the seniormost Matron in Grade II, having put is 31 years of service, has a right to be confirmed as Matron in Grade I (Class II), as against the 18 years of experience of the fourth respondent, Gajendri. Such reservation of the post in favour of the fourth respondent, who is a scheduled caste candidate, will definitely affect the efficiency of administration.

17. Respondents 1 to 3, in their common counter-affidavit, inter alia, have stated that the promotion of the writ petitioner was only on an ad hoc basis and it would not confer any right upon her to hold the post of Matron Grade I (Class II). Respondents 1 to 3 further submitted that the reservation rule for the Scheduled Caste and Scheduled Tribes candidates is followed, and it can be applied both for selection and non-selection posts. The vacancy in the post of Matron Grade I (Class II) arose with effect from 31st May, 1976 consequent on the permanent incumbent to the post viz., Rajathi, proceeding on leave preparatory to retirement. Pending selection for filling up the post on a regular basis, the writ petitioner was promoted to that post purely on a temporary measure with the specific condition that the said promotion would not confer on her nay claim for continuance or seniority or further promotion confirmation etc. in class II service. Such ad hoc promotees have to be replaced by regular selected candidates after the selections are finalised. Respondents 1 to 3 would further submit that treating the post of Matron Grade I (Class II) as reserved to candidates belonging to Scheduled Castes, is not violative of Arts. 14 and 16 of the Constitution of India. Since the present vacancy is a second vacancy it is reserved for scheduled caste candidates in terms of the Board's letter No. 74E(SCT)CM 15/70 dated 9th July, 1975 and 12th February, 1976. The first incumbent to this post, Mrs. Rajathi, was not a scheduled caste candidate, the next turn of appointment to the post, according to the Board's letter read with 40 point roster, should go to a Scheduled caste candidate. It has been specifically mentioned in the counter-affidavit that reservation rules are applicable to vacancies that arise in each post. The number of posts in a category makes no difference as the vacancies in the a post or posts are to be filled in the order of the Reservation Roster prescribed for the purpose. It is perfectly legitimate for the Railway Administration to reserve the vacancies under Art. 16(4) of the Constitution and reservation rule can be made applicable and given effect to even in the case of vacancies in a single post by following the Roster system. With the above contentions, respondents 1 to 3 have prayed for the dismissal of the writ petition.

18. In the reply affidavit, the petitioner has stated that as per Art. 335 read with Art. 26(4) of the Constitution, the present reservation is not consistent with the maintenance of efficiency of administration. Efficiency of administration is of paramount importance and reservation which is at the cost of efficiency is impermissible under Art. 335 of the Constitution. According to the writ petitioner, the nursing service is one which requires a great degree of skill and experience. The writ petitioner has experience for over 31 years as a Nurse, while the fourth respondent has only eighteen years of service to her credit, and such a context, overlooking the writ petitioner will be detrimental to the welfare of thousands of patients in the hospital. With these allegations, the writ petitioner prayed for allowing the writ petition.

19. Mrs. Ramani Natarajan, learned counsel appearing for the Writ petitioner submitted that the only post of Matron Grade I (Class II) cannot be reserved for Scheduled Caste candidates, and such a reservation would amount to cent per cent reservation in favour of a particular community which would offend Art. 16(1) and 16(2) of the Constitution of India. Referring to the years of service put in by the various candidates working as Nurses in Grade II, the learned counsel submitted that in future practically the scheduled caste candidates alone would have the benefit of enjoying the post in question According to the learned counsel, such reservation at the cost of experience and efficiency, is detrimental to the administration of the department and it will definitely offend Art. 335 of the Constitution.

20. Mr. G. Ramaswami, learned counsel appearing for respondents 1 to 3 and Mr. P. Jayaraman, learned counsel appearing for the fourth respondent submitted that reservation of one post for selection caste as per the 40 point Roster will not offend either Arts. 16(1) and 16(2) or 335 of the Constitution. According to the learned counsel, the reservation of the post is applicable equally for the selection and non-selection posts.

21. We have elaborately discussed reservation of single post by a properly framed Roster system while dealing with W.A. Nos. 122 and 208 of 1979 in the foregoing paragraphs. The same reasoning will squarely apply to W.P. No. 369 of 1979 also. Our attention was also drawn to the decision reported in Akhil Baratiya Soshit Karmachari Sangh (Railway) v. Union of India [1981-I L.L.J. 209]. Dealing with the Roster System in the Railways, the Supreme Court has held in the above decision as follows :

"Heated arguments about the hurt caused by Annexure 'J' have been addressed to us. If deals with the 40 point roster and the posts allotted to SC. and ST. allottees. Once the fundamental premises are accepted there is nothing unreasonable or wrong in Annexure 1 and 2 to Annexure J. It is significant that with a view to prevent total exclusion of others there is a provision that if there are only two vacancies in a given year, not more than one may be treated as reserved and if there is only one vacancy, it should be treated as unreserved. Implementation of reservations necessarily involves practical steps like evolving a roster system. Once the parameters of reservations are within the framework of the fundamental right, minute scrutiny of every administration measure and hunting for constitutionality is not permissible."

The Supreme Court has clearly stated that reservation as per 40 point roster is available both for selection and non-selection posts.

22. Thus, from the foregoing discussion we are of the view that the roster system applied in this case and allotting the vacancy to Scheduled Caste candidate by rotation are perfectly valid. In these circumstances we hold that reservation of single post of Scheduled Caste candidate in the above two cases in not unconstitutional.

23. In the result, W.A. Nos. 122 and 208 of 1979 are allowed and consequently W.P. No. 3756 of 1978 filed by Alaghia Doss is dismissed. W.A. No. 369 of 1979 filed by Mrs. Susan Cherryan is also dismissed. There will be no order as costs in all the cases.


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