G. Ramanujam, J.
1. This appeal is directed against the order of Mohan, J., dismissing Writ Petition No. 6570 of 1981.
2. The appellant filed the said writ petition for a mandamus directing the first respondent, the General Manager, Integral Coach Factory, Madras, to forbear from enforcing the order dated 9th June, 1981, in which the second respondent herein has been promoted to officiate as Welfare Inspector, Grade I and the appellant has been ordered to continue as officiating Welfare Inspector, Grade I. The said order had been passed in the following circumstances: The appellant was recruited to the Railway Service on 18th August, 1949, initially as clerk, Grade II and after being promoted from stage to stage, he came to be promoted as Welfare Inspector, Grade II in the year 1974 in which post he was confirmed on 16th January, 1976. The next higher post is Welfare Inspector, Grade I on the pay scale of Rs. 700-900, which is a selection post. In the selection held on 6th March, 1979 a panel of two selected candidates was announced. The appellant and the second respondent were the selected candidates and the appellant has been given rank No. 1. By office order, dated 16th March, 1979, the appellant was promoted as Welfare Inspector, Grade I (Canteen) which is a permanent post on the basis of the said list of Selection. By another order, dated 9th June, 1981, the appellant was shifted from the regular post to a leave vacancy that had arisen as a result of the leave granted to one Sri A.K. Ananda Babu and the second respondent had been posted to that regular post. In the said order it was also notified that the regular post of Welfare Inspector, Grade I (Canteen) to which he was promoted on 16th March, 1979, was reserved for Scheduled Caste candidate and hence the second respondent has been posted to that regular post. The appellant made representations against the said order, dated 9th June, 1981 and by reply, dated 8th July, 1981, the Department informed him that the said post has been reserved for Scheduled Caste candidate by applying the rule of carry forward laid down in Railway Board's Letter No. 748 (SCT) 15/20, dated 9th July, 1975.
3. Aggrieved by the order, dated 9th June, 1981, which treated the post held by the appellant from 16th August, 1979, as reserved for Scheduled Caste candidate and removing him from that post and posting him in a temporary vacancy, the appellant filed the said writ petition to forbear the first respondent from giving effect to that order. According to the appellant as per the policy of reservation laid down in the Railway Board's earlier letters, dated 27th August, 1968 and 17th August, 1974, 15% of the posts is to be reserved for Scheduled Caste candidates on posts of promotion category and the 15% is to be determined according to what is popularly known as 40 point roster. According to the roster first post falling vacant in a promotion category should be reserved for Scheduled Caste community. Of the six vacancies arising in between, the first two should be treated as unreserved, the third as reserved for Scheduled Tribe community and the other three as unreserved. As regards the principles governing carrying forward unfilled vacancies, the Department has issued instructions from time to time and those in force are the Department's letters, dated 6th October, 1964 and 20th August, 1974. According to these instructions the unfilled vacancies can be carried over for a period of three years. The period of three years should be calculated by leaving out the year in which no recruitment or selection has taken place. It is also mandatory that the year in which there was only one vacancy, cannot be taken into account for the reason that if there is only one vacancy in a year it shall not be treated as reserved vacancy. The Board by its letter, dated 9th July, 1975, which has been taken as the basis for passing the impugned order in this case has modified the principles to the effect that in a year where the carry forward rule comes into play, in case there is Only One vacancy occurring then it should be treated as unreserved in the first year and if there is only one vacancy occurring in the subsequent year the only vacancy arising in the subsequent year should be treated as a reserved one.
4. According to the appellant the Board's letter dated 9th July, 1975, offends Article 16 of the Constitution of India, inasmuch as the reservation in the second consecutive year where only one vacancy arises is total shutting- out of promotion of the non-scheduled candidates and such a principle has been declared ultra vires by the Supreme Court in M.R. Balaji v. State of Mysore : AIR1963SC649 . Even assuming that the said instruction contained in the Board's letter dated 9th July, 1975 is valid, the order of the first respondent declaring the only vacancy that arose in January, 1979 as a reserved one cannot be justified for the following reasons: (1) In the year 1976-77 two vacancies arose out of which one was treated as reserved to fill up the short fall and the other was treated as unreserved and no vacancy arose in the year 1977-78. In 1978-79 only one vacancy arose and that vacancy as per the rule enunciated in the letter dated 6th October, 1964, should be treated as unreserved as the rule provides that 'if there is only one vacancy in a year, it shall not be treated as a reserved vacancy'; (2) The application of the principle of reservation is also highly arbitrary resulting in gross indiscrimination infringing the right of equality enshrined in the Constitution of India; and (3) the second respondent who was below the appellant in the panel of selection made in the year cannot be posted on a permanent basis while the appellant has been posted in a leave vacancy.
5. The counter-affidavit filed by respondents 1 to 3 is to the following effect: The rules and instructions referred to by the appellant are not disputed. It is also true that the note originally appended to the model roster signifying the terms of reserved and unreserved vacancies provided as follows:
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. If on this account a reserved point is treated as unreserved, the reservation may be carried forward to the subsequent two recruitment years.
6. This has been modified by the Railway Board's letter dated 29th April, 1970, by carrying the reservation for the subsequent three recruitment years instead of two. In order to remove the grievances of the Scheduled Castes/Scheduled Tribes that inspite of the model roster they were denied appointments wherever there was a single vacancy, such vacancies being invariably treated as unreserved irrespective of the point of the roster at which they occur, the Railway Board by its letter dated 31st july, 1971, decided that if there is one post to be filled selection should be invariably held for two posts, i.e., one actual and the other to cover unforeseen circumstances . The Railway Board by its subsequent letter dated 9th July, 1975, decided that in the first year in which single vacancy occurs that vacancy shall continue to be treated as unreserved irrespective of the fact whether it has or has not occurred against a reserved point in the roster and that it will be filled up by next candidate due for promotion and if that person happens to be a candidate from a community other than that for whom the vacancy was reserved, the reservation should be carried forward to the subsequent recruitment year. Subsequently by a further letter dated 12th February, 1976, they had clarified that where a single vacancy in a particular year has been treated as unreserved prior to 9th July, 1975, the first vacancy occurring on and after 9th July, 1975, even though a single vacancy in the year, has to be treated as 'reserved' one in favour to the Scheduled Caste/Scheduled Tribe as the case may be. By a further letter dated 24th April, 1978, the Railway Board directed that where there is already a carried forward reservation, a single vacancy arising in a year whether it falls on a reserved or unreserved point will be treated as reserved against the carried forward.
7. Coming to the facts of this case, the respondents in their counter statement stated that in the year 1964-65 there were two vacancies of Welfare Inspectors, Grade I and to these vacancies two persons, one Jayavelu and Parathasarathy were promoted on 18th April, 1964, both of them belonging to the other community and the result was that the point of roster for the Scheduled Caste, was carried forward for want of availability of Scheduled Caste candidates as per the rules then in force. The third and fourth points of the said roster were also filled in by employees belonging to other community on 18th June, 1973 and 5th July, 1973, who were empanelled prior to 25th March, 1970. However, in 19th August, 1976, the short fall of scheduled caste candidates in the roster was wiped out by promoting one Adhimoolam. When the next vacancy occurred in 1976, one Ananda Babu belonging to other community was promoted against the second point of the roster. It is at that stage a new roster was prepared based on the increased percentage of reservation that is 15% for Scheduled Caste and 71/2% for Scheduled Tribe. As per that roster there was a carry forward vacancy of Scheduled Caste and therefore, the single vacancy that occurred in March, 1979, should have to be treated as a reserved vacancy in terms of the Railway Board's letters dated 5th October, 1955, 27th April, 1959 and 24th April, 1978. By giving effect to the carry forward rule the second respondent who belonged to the Scheduled Caste should have been promoted from 16th March, 1979. Instead the appellant was promoted as a Welfare Inspector, Grade I. In the year 1981-82 when the contraction in the cadre took place it was found that as per the rules and instructions issued by the Railway Board the second respondent should have been appointed on 16th March, 1979, in a permanent vacancy as a Welfare Inspector, Grade I, instead of the appellant as it is a reserved vacancy. It is on this basis the impugned order dated 9th June, 1981, was issued after giving a reasonable opportunity to the appellant. According to the respondents, the impugned order was passed quite in accord with the rules and instructions issued by the Railway Board from time to time and that the impugned order does not contravene Article 16 of the Constitution of India as contended.
8. After considering the rival contentions of parties, Mohan, J., held that the impugned order is not vitiated for violation of Article 16 of the Constitution and it is quite consistent with the relevant rules and instructions issued by the Railway Board. The view taken by Mohan, J., has been challenged in this writ appeal.
9. However, after a due consideration of the matter in the light of the relevant rules and instructions and also in the light of the relevant contentions, we are of the view that the learned judge has come to the right conclusion. On the facts and circumstances of the case the two questions that arise for consideration are: (1) whether the carry forward rule can be applied even in the case of a single vacancy arising in the year of recruitment; and (2) whether in applying the carry forward rule to a single vacancy the question of adequacy of representations could again be gone into.
10. Dealing with the first question, it is significant to note that the carry forward rule adopted by the Railway Board has been held not to violate Articles 14 and 16 of the Constitution in the decision of the Supreme Court in A. R. Chenidhury v. Union of India : (1974)ILLJ239SC . Therefore, the carry forward rule adopted by the railway is no longer open to challenge. It is not in dispute that at the relevant time the percentage of reservation for Scheduled Caste was 15 and the percentage of reservation for Scheduled Tribe was 71/2%. Based on the reservation of posts the revised roster had been prepared. In accordance with the roster the vacancy arisen is at the reserve point and if the reserved candidate is not available, then the carry forward rule comes into operation. That the carry forward rule will have to be applied even if the cadre consists of a single post has been held by a Division Bench of this Court in W.A. No. 122 of 1979 to which one of us (Ratnam, J.), was a party. In that case, after referring to all the earlier decisions of the Supreme Court, on the point, the Bench has taken the view that even in the case of a single post, the carry forward rule has to be applied. In view of the said decision with which we agree, we must hold that even in respect of a single vacancy arising in the year of recruitment, the carry forward rule has to be applied. The first question is therefore answered in the affirmative.
11. Coming to the second question that even if the carry forward rule is to be applied for filling up a single vacancy, the rule cannot be applied if there is too much representation of the Scheduled Caste candidates in the service or cadre in the year of recruitment, the learned Counsel for the appellant refers to the decision in Devadasan v. Union of India : (1965)IILLJ560SC , wherein the carry forward rule permitting reservation of more than 50% of vacancies in a particular year was held unconstitutional and invalid on the ground that it is likely to lead to an unreasonably disproportionate part of the cadre strength being filled up with Scheduled Caste and Scheduled Tribe Candidates which may ultimately lead to some deterioration in the standard of service and that a maximum of 50%. for reserved quotas in their totality is a rule which appears fair and reasonable. However, the Supreme Court has taken a different view in Akhil Bharatiya Sashit Karmachari Sangh (Rly.) v. Union of India : (1981)ILLJ209SC , wherein the Supreme Court upheld the Railway Board's directives or instructions raising the duration of the carry forward reserved posts, and raising the extent of reservation from 50% to 66-2|3% as being constitutionally valid. The Railway Board by its Order, dated 20th April, 1970, gave directives to the effect that consequent to the census picture and the population ratio, the percentage of reservation to Scheduled Caste will be raised from 12% to, 15% and from 5% to 7-1|2% to Scheduled Tribe. By the same order the duration of the carry forward rule was also raised from 2 years to 3 years. The Board, by its further letter dated 29th April, 1970, provided a note as follows:
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.
Thus the reservations of 15% and 7-1|2% for Scheduled Caste and Scheduled Tribe had been limited in such a manner as not to exceed 50% at a time even on the application of the carry forward formula. Subsequently, the Railway Board raised the said 50% by 66-2|3%. This was questioned as being violative of Articles 16, 46 and 355 of the Constitution. But in Akhil Bharatiya Sashit Karmachari Sangh (Rly.) v. Union of India : (1981)ILLJ209SC , the Supreme Court by a majority held that there is no fixed ceiling of reservation or preferential treatment in favour of Scheduled Caste and Scheduled Tribe though generally the reservation cannot be far in excess of 50% but there is no rigidity about 50% rule which is only a convenient guideline laid down by the Judges and that the case must be decided with reference to the particular facts of the case and not with reference to hypothetical results which the application of the rule may yield in future. Relying on that decision the stand taken by the Railways that while giving effect to the roster prepared in accordance with the rule of reservation and the carry forward Rule 50% of the vacancies alone should normally be taken to have been reserved and that some times also more than 50% can be allowed if the circumstances justified the same. In view of the said decision of the Supreme Court, it is not possible for us to accept the contention of the learned Counsel for the appellant that if the vacancy in question is filled up by a Scheduled Caste candidate as per the roster and the carry forward rule, the cadre will be represented by more than 50% Scheduled Caste candidates in the year of recruitment and this will amount to over representation in the cadre. This point has been, in a way, decided by a Bench of this Court in the case already referred to. In that case the carry forward rule was sought to be applied to a single post and that was objected to on the ground that the sigle post being reserved for Scheduled Caste will amount to 100% reservation for Scheduled Caste and therefore, it would be bad. But the learned Judges constituting the Bench have held that since the roster system has been prepared in order to give effect to the representation of 15% to Scheduled Caste and 7-1|2% to Scheduled Tribe, the carry forward rule has to be applied even if there is a single vacancy and that even in respect of a single post, the roster system and the carry forward rule have to be applied even though at a particular point of time the particular cadre may consist of more than 50% Scheduled Caste candidates. Therefore, the said decision should be taken to have decided the point as to the extent of reservation to be adopted in filing up the posts in any particular year.
12. In this case there are two rosters, one when the percentage of reservation was 12-1|2% for Scheduled Caste and 5% for Scheduled Tribe upto March, 1970, and the other one from the year April, 1970, when the percentage of reservation was enhanced to 15% to Scheduled Caste and 7-1|2% to Scheduled Tribe. According to the old roster four promotions have been made, all belonging to other communities. Therefore, there was one shortfall of Scheduled Caste from the previous roster. When a freshi roster was opened from the year 1970-71 the shortfall of the previous roster was wiped out by the promotion of one M. Adimoolam belonging to Scheduled Caste community on 19th August, 1976. In the year 1978-79 two employees were, empanelled for the posts of Welfare Inspectors Grade I, the petitioner and the second respondent, the second respondent being against the shortfall of the Scheduled Caste of the selection 1976-77. On 24th April, 1978, the Railway Board modified their orders, dated 9th July, 1975, to the effect that where there is already a carried forward reservation and the overall representation of Scheduled Castes/Scheduled Tribes in the concerned grade or cadre is found to be inadequate, a single vacancy arising in a year whether it falls against reserved or unreserved point in the roster, the same will be treated as reserved against the carry forward. The overall representation of Scheduled Caste employees in the cadre of Welfare Inspectors came to 13.3% for 15 posts as on 16th March, 1979, as against 15% and there being a shortfall of the Scheduled Caste point from the selection year 1976-77, it was treated as reserved irrespective of the fact whether it has or has not occurred against a reserved point in the roster. Therefore, the second respondent who was empanelled along with the appellant has to be promoted to the vacancy in which the petitioner was actually posted. Thus, there is no contravention of any constitutional provisions. The appeal, therefore fails and is dismissed. However, there will be no order as to costs.