1. Petitioner Nataraian in these two writ petitions joined as a Sorter in the railway mail service, Madras Circle, of the Posts and Telegraphs Department of the Government of India, on 15-6-1953, and he is continuing as such at Erode, In the Posts and Telegraphs Department, there are four arms of service, and of them are the Postal arm and the RMS arm. In the RMS arm of the department, there is a cadre of posts called Inspectors of RMS, and in the postal arm there is a corresponding cadre called the Inspectors of Post Offices. These posts of Inspectors are filled up by promotion after holding a departmental competitive examination from among the candidates of the respective arms of service. Certain reservations are made for the 'Scheduled Castes and Scheduled Tribes, in making the selection. The petitioner appeared for the Departmental competitive examination held in December 1905 for the posts of inspectors, RMS in the. Madras Circle. The total number of Inspectors of Post Offices for the Madras Circle which had to be filled up was 29, while that among the inspectors in the RMS Branch was only 3. Out of the 32 posts of Inspectors, in both branches of service, four vacancies were reserved for Scheduled Castes. The first respondent treated the two branches of service as 'one unit, for purposes of making the said reservation with the result that the candidate who stood first among the persons who sat for the examination from the RMS section, viz., B. R. Kandhan, alone was selected among the members of the forward community (other communities) and the other two posts went to Scheduled Castes candidates, viz., P. S. Chandrasekar and S. Nagamani. 'Two other Scheduled Castes candidates were selected for the posts, of Inspectors of Post Offices. The petitioner's claim that he stood second in the list among the forward communities from the RMS section is not disputed by the first respondent in his counter. In fact, the plea in para 5 of the first respondent's counter is that the petitioner is not entitled by virtue of the marks obtained by him for selection, in view of the two vacancies having gone to Scheduled Castes candidates in accordance with the orders regarding special representation In services, The petitioner has filed the two writ petitions, one for a writ of certiorari and the other for a writ of Mandamus, for the purpose of quashing the selection of the second respondent S. Nagamani, and to direct the first respondent to select him.
2. There can be no doubt in this case that the manner of selection has- caused considerable hardship to the petitioner and it is likely to cause hardship to persons similarly placed. In fact, the first respondent has stated in the penultimate para of his counter that the orders of grouping of the two cadres have been subsequently cancelled. But he would, however, state that it is not because they were illegal but because it was realised that they had been resulting in an imbalance in the representation of Scheduled Castes and Scheduled Tribes in the two cadres and consequently caused hardship to individuals in some cases. Thus, in future, there is no scope for any one suffering from the injustice from which the petitioner has suffered.
3. The two cadres of RMS section and the Post Office section are independent, though they belong to the same department and no one belonging to one section can seek to be selected as Inspector in the other section. Thus, the two cadres of Inspectors, namely, the Inspector of RMS and Inspector of Post Offices are distinct cadres, and any administrative circular or order treating them as single unit for purpose of selecting Scheduled Castes candidates is not only bound to cause hardship, as would admittedly appear from the penultimate para of the counter of the first respondent, but also infringe the fundamental rights of persons belonging to one section or the other. Thus, in the present, case, if all the first four Scheduled Castes candidates according to rank happens to be employees of the RMS section, it would not be possible for the first respondent to give employment to them all as RMS Inspectors. If the first three Scheduled Castes candidates according to rank happen to belong to RMS section and they are to be provided for, there will be no vacancy available for a forward community candidate in the RMS section of the service though he may stand first in the examination. Thus, it is illegal to club the two cadres as one unit, for the sole purpose of selecting Scheduled Castes candidates,
4. In M.R. Balaji v. State, of Mysore, : AIR1963SC649 it was held that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Article 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that, would, by eliminating general competition in a large field and by creating widespread dissatisfaction among the employees, materially affect efficiency. In Devadasan v. Union of India, : (1965)IILLJ560SC , it is pointed out that the State can make rules providing for reservation of appointments and posts for backward classes. It is also pointed out that if the reservation is so excessive that it practically denies a reasonable opportunity for employment to members of other communities, the position may well be different, and it would be open then for a member of a more advanced class to complain that he has been denied equality 'by the State. In that decision, the practice of carrying forward unfilled ' vacancies for Scheduled Castes, so that in a particular year of selection the seats reserved for Scheduled Castes exceeded 50% of the total seats was held to be violative of Article 16(4) of the Constitution. At page 187 it is observed:--
'The guarantee is to each individual citizen and therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.'
The effect of treating two units as one for the purpose of calculating the number of Inspectors who should be selected from the Scheduled Castes, in spite of the posts of Inspectors of RMS and Inspectors of Post Offices being different cadres and different units, which are not interchangeable, is to infringe the rights of persons in the position of petitioner. Thus in the present case, two out of 3 posts of Inspectors of RMS section have been allotted to Scheduled Caste candidates, with the result that 66-2/3 per cent of the seats had gone to the Scheduled Castes, it is clear from the decision in : (1965)IILLJ560SC cited above, that reservation of anything over 50% for Scheduled Castes will be unreasonable and violative of the principles of Article 16(4) of the Constitution. I have already pointed out the anomaly of combining two independent cadres as one unit for the purpose of selecting the number of Scheduled Caste candidates who should be appointed as Inspectors, and it is unnecessary to reiterate the same. The fact that the total number of posts of Inspectors reserved for the scheduled Caste candidates in both sections comes to only 121/2% of the total number of Inspectors to be selected in both the sections is no answer to the attack made by the petitioner that the combining of the two cadres as one unit for the purpose of Selecting Scheduled Caste candidates is illegal as it violates his fundamental rights. It is true that by reason of the petitioner being selected in the place of the second respondent, the number of Scheduled Caste candidates who could be selected as Inspectors is reduced from four to three. But the second respondent can have no grievance as the fourth scat reserved for Scheduled Caste candidates should legitimately have gone to one in the post office section. There can be no doubt that fundamental rights of the petitioner for equal opportunity have been violated in this case. It is, however, open to the first respondent Without in any way infringing the fundamental rights to retain the second respondent, if it wants to do so, either by creating an additional vacancy of an Inspector in the RMS section or by treating the appointment of the second respondent as one made against a future vacancy.
5. It could not be said that a writ of Mandamus cannot be issued to direct the first respondent to appoint the petitioner as Inspector of RMS section. The decision in State of Mysore v. Syed Mahmood, : (1970)ILLJ370SC , can hardly apply to the facts of this case. It was held in that decision that the High Court was wrong in issuing a writ compelling the State Government to promote the petitioners therein without giving the State Government opportunity in the first instance to consider their fitness for promotion. The promotion to the posts of senior statistical assistants in that case had to be made by selection. In the present case.' selection to the posts of Inspectors has to be done from out of the successful candidates in the examination in accordance with the marks obtained by them. I have already pointed out that it is an undisputed' fact that the petitioner stood second among the list of candidates belonging to the forward community who sat for the examination.
6. Learned Advocate appearing for the Government Pleader urged that the petitioner should have impleaded all the candidates who appeared for the posts of Inspectors, whether in the RMS section or the Post Office section. I see no substance in this contention. The only person that is affected by the writ petitions of the petitioner is the second respondent, S. Nagamani, who alone is likely to be displaced by the petitioner being appointed as Inspector in the RMS section. Even If the other candidates had been impleaded, it would not, in any way, benefit them, whether the petitions are allowed or dismissed.
7. For the foregoing reasons, the writ petitions are allowed. The petitioner isentitled to his costs from the first respondent, which I fix at Rs. 200.