TaxTMI 
TaxTMI 
1997 (5) TMI 425
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....ecialities and super-specialities. Advertisement No.6/90 dated November 16,1990 relates to recruitment to the post of Assistant Professor; out of 12 posts, 8 posts were reserved for Scheduled Castes (for short, `Dalits') and 4 posts were reserved fir Scheduled Tribes (for short, `tribes'), in the pay scale of Rs. 3500-4500/-. Essential qualifications were prescribed for the said posts; there being no dispute, vis- a-vis qualifications, it is not necessary to elaborate them except to state that these are backlog vacancies. Through advertisement No. 15/90 dated November 25,1990, the appellants had called for applications for appointment to the said posts and admission to Doctoral Courses and Ph.D. programme for the academic session starting from 1.1.1991 in which posts were reserved for the Dalits and Tribes. The contesting respondents in these appeals (for short, the `General Candidates') and the Faculty Association challenged the advertisement for recruitment to the post of Assistant Professor and admission to Doctoral Courses and Ph.d. Programme. Two learned single judges in different judgments held that the post of Assistant professor in various disciplines is single ....
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....equired to be considered by the Standing Academic Committee and all proposals for the creation of posts, by the standing Finance Committee. under Regulation 32, the Institute is competent to specify the age, experience and qualifications for a post subject to the conditions that non-medical persons shall not be appointed to the post of Director and Medical Superintendent. Regulation 32(2) postulates that while filling up vacancies in posts and services, including the vacancies in teaching faculty under the Institute, reservations in favour of the Dalits and Tribes is required to be made as per the reservation orders issued by the Central Government from time to time. "Teaching faculty" includes research post as well. in furtherance thereof, when the question of application of the rule of reservation to senior faculty posts was put up for consideration to the Governing Body of the Institute on September 28,1984, they resolved as under: "Reservation be applied on vacant posts of professors, Associate professors and Assistant Professors in addition to lecturers dn a 40 Point Roster be maintained for the same. As and when the advertisement was sent to the press, the number of posts ....
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....bove the lowest grade in Group A (Class I ) of the service concerned; (ii) They should be classified as `Scientific or technical' in terms of Cabinet Secretariat (Department of Cabinet Affairs) O.M.85/11/CF-61(1) dated 28.12.1961; and (iii) They should be posts for conducting research or for organising, guiding and directing research. The rule of reservation for Dalits and Tribes was applied while filling up various vacant teaching posts at the Institute and for that purpose all the vacant teaching posts at the level of lecturers, Assistant professors, Associate professors and Professors, though in different specialities /superspecialities, were clubbed altogether, because the posts were in the same pay scale under the same designation. While filling up the posts at each level in different teaching Department or specialities or superspecialities, different educational qualifications in specific field/specialities or super-speciality were prescribed. In the case of non-medical scientists or Ph.D. in the subject concerned, allied subjects also were required to be fulfilled. As the posts belong to different specialities/super- specialities for which qualifications p....
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....t post and were sought to be filled up by the candidate belonging to the reserved categories at the point on which they are eligible to be considered, such a rule is not violative of Article 16(1) of the Constitution". In that case, the post of Secretary carrying the pay scale of Rs. 1200-2400/- was a single post cadre. The Government applied 40 point roster for the post of Secretary. The vacancy available at the time of point No. 4 of the roster was reserved for Tribal. The Tribunal had set aside the appointment order on the ground that it amounted to 100% reservation, violating Article 14. While reversing the order of the Tribunal, this Court has applied the rule of rotation and roster and upheld the appointment by reservation in a carry forward post and followed the ratio of the Constitution Bench decision in Arati Roy Choudhary v. union of India [(1974) 2 SCR 1]. In State of Uttar Pradesh vs. Dr. Dina Nath Shukla & anr. [JT 1997 (2) SC 467=1997(3) Supreme Today 386], the question arose whether pooling of all the posts in similar grade or category for application of the rule of reservation ....
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....s questioned by the general candidate. The Tribunal Held that since it was solitary post, reservation amounted to 100% reservation and was, therefore, unconstitutional. Reversing the judgment and reiterating the law laid down in Madhav's case and State of Bihar vs. Bageshwari Prasad [1995 Supp. (1) SCC 432], this court had held that to the single post of E.C.G. Technician, application of 40 point roster and rule of rotation was not violative of Articles 14 and 16(1) of the Constitution. The Promotion was held to be legal and valid. Same was the question in Bageshwari Prasad case. In State of Punjab & Ors. vs. G.S.Gill & Anr. [CA 3005/97 decided on March 27, 1997], the single cadre post of Assistant superintendent, Quality Market Centre (Textile) was reserved for Dalit candidate applying rule of rotation and the roster. The High Court set aside the promotion as violative of Article 14. Reversing that judgment, it was held that " thus, it is settled legal position that application of roster to single post cadre and appointment by promotion to carry forward post is valid and constitutionl. With a view to give adequate representation in public service to reserved category candidate....
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....nnel and the concerned Ministry of Health and Family Welfare, dereserve the posts. it is then contended that since the committee has deferred the issue requesting the Government of India to consider the dereservation and the same was reiterated in the year 1991, the declaration given by the High Court that the dereservation is constitutionally permissible, does not warrant interference. In respect thereof, he placed strong reliance on the decision of this court in Comptroller and Auditor General of India, Gian Prakash, New Delhi & Anr. vs. K.S.Jagannathan & Anr. [(1996) 2 SCR 78]. We find that there is no force in the contention. It is seen that though the Committee of the Institute had recommended to the Government of India to dereserve the post, so long as the Government of India has not given any direction to the Institute to dereserve the post, it has no power to do the same and is bound to implement the principle of reservation. The question arises: whether the Court can give such a direction in that behalf? The Department of personnel and Training in O.M. No. 36012, dated April 25,1989, had imposed a ban on de-reservation in direct recruitment to the vacancies under the Go....
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....backlog vacancies reserved for SC/ST and will be filled up by the concerned candidates belonging to reserved category without any without any restriction whatsoever as they belong to distinct group of backlog vacancies. " It was further stated that "while the vacancies reserved for SC/ST which remain unfilled will be carried forward to the next year of recruitment as backlog vacancies, the carried forward reservations for SC/ST as on 1.4.89 as a result of the filling up of the relevant vacancies after dereservation, will continue to be operated against a `current' vacancies following the existing orders dn instructions. If such reserved vacancies are still not filled up they will be carried forward as backlog vacancies under these orders. " With regard to Group `A' service, it was stated that "while the ban on dereservation comes into effect from 1.4.89 on direct recruitment on Groups A B C & D in case of direct recruitment to the vacancies in group A services, there may be rare and exceptional cases where after the non- availability of suitable SC and ST candidates posts cannot be allowed to remain vacant in public interest." In such situations, " the administrative Minist....
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....-reserve the post. This court pointed out that so long as the recruitment by a limited departmental competitive examination for the Dalits and Tribes could be adopted and followed, i.e., one of the methods to make recruitment, a mandamus cannot be issued by the Court to direct the Government to de-reserve the post. C.A.G. case is a reverse case. Therein , rule of reservation was applicable to all the Departments since the C.A.G. had not applied the relaxed standard in conducting the examination and making recruitment on the basis thereof, the Division Bench of the High Court had directed to relax the standard and make recruitment of the Dalits and Tribes by promotion. This court had upheld the judgment and held that when the authorities have a power coupled with discretion, they have also a duty to implement the policy of the Government. At page 39, this Court had pointed out that in order to prevent injustice resulting in injustice to the concerned parties, the Court may itself pass an order or give directions which the Government or the competent authority should have passed or given had it properly and lawfully exercised its, discretion. Far from helping the appellants, the rati....
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....dual and, therefore, such a reservation is not violative of Article 14 or 16 (1)l of the Constitution. This we hold that the fact the Government of India has not de-reserved the post as recommended by the appellent-P.G.I, itself is positive proof that the Government are not in favour of de-reservation; On the other had the aforesaid Government order is a positive mandate not to de-reserve any post. Only in exceptional case that too in group `A' posts, de-reservation could be resorted to in conformity with the procedure prescribed therein and as per the law above laid. Thus we do not find any force in the contention of Shri Rao. Shri Rao then contended that this Court in Madhav's case has noted the ratio of Sabharwal' case, upholding the right to reservation in promotion but it relates only to the post and not vacancy and that, therefore, in Madhav's case, the distinction was not considered. Accordingly, it requires reconsideration. We find no force in the contention. In every direct recruitment, appointment is only to the vacant post. Equally, when appointment by promotion is made, it is only to the vacant post. The `vacancy' and `post' are usually used i....
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....nt and as and when vacancy arises in accordance with the roster point, the posts/vacancies would subsequently be filled up by appointment. It would be a continuous process. The contention of Shri Rao that the Institute being an independent and autonomous statutory body, is not bound by the Government of India policy is devoid of base. It is seen that Regulation 32(2) itself makes rules of reservation issued by the Government of India Applicable from time to time. It is not in dispute that the Government of India was not spending the entire expenditure of the Institute from the public exchequer and, therefore, per force the appellants-Institute is enjoined to abide the constitutional policy of reservation. It is then contended that in view of the decision of this court in Indira Sawhney v. Union of India [(1992) Supp. SCC 217], the recruitment to 12 posts reserved for Dalits dn Tribes, is in violation of the carry forward principle adumbrated therein. he placed strong reliance on paragraphs 817-18 at pages 739-40. The carried-forward posts cannot be filled up or reservation cannot exceed 50% of the 12 posts, proposed to be filled. It is contended that recruitment to the balanc....
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....itment in any year. The bar of special recruitment is not treated as routine recruitment in any year. The bar of 50% would apply only when general recruitment is made on both to the general as well as the reserved candidates in respect of the current vacancies. But when special recruitment is made for selection and appointment of the Dalits and Tribes, to the reserved backlog vacancies, the normal run for recruitment is inapplicable. Accordingly instead of conducting the exams for different categories in the manner indicated above, there is no constitutional prohibition on filling up of the backlog vacancies by a special recruitment in a single go. Thus we hold that the special recruitment is not violative of the principle of carry forward within one year's equally, reservation within 50% quota is not violative of the principle of carry forward within one year's equally, reservation within 50% quota is not violative. In this behalf, this Court in G.S. Gill's case had held as under: "Thus it could be seen that the carry-forward rule is constitutionally permissible. It is an extention of the principle of providing facility and opportunity to secure adequacy of the repr....
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....ubjects. The reservation for those posts in inconsistent with the maintenance of high degree of excellence which the nation needs for the treatment of the patients suffering from critical diseases. the reservation in these specialities and super specialities Shri Gupta, learned counsel appearing for the General candidates, contends that the post graduate and doctoral courses are highly specialised subjects. The reservation for those posts in inconsistent with the maintenance of high degree of excellence which the nation needs for the treatment of the patients suffering from critical diseases. the reservation in these specialities and super specialities Shri Gupta, learned counsel appearing for the General candidates, contends that the post graduate and doctoral courses are highly specialised subjects. The reservation for those posts in inconsistent with the maintenance of high degree of excellence which the nation needs for the treatment of the patients suffering from critical diseases. the reservation in these specialities and super specialities Shri Gupta, learned counsel appearing for the General candidates, contends that the post graduate and doctoral courses are highly special....
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....ses, Ph.D., speciality or super-speciality or high technology by relaxation of a lesser percentage of marks for initial admission than the general candidates. For instance, if the general candidate is required to get 80% as qualifying marks for admission into speciality or super-speciality, the relaxation for admission to the reserved candidates is of 10 marks less, i.e., qualifying marks in his case would be 70%. A doctor or a technologist has to pass the post graduation or the graduation or the graduation with the same standard as had by general candidate and has also to posses the same degree of standard. However, with the facility of possessing even lesser marks the reserved candidate gets admission. Thereby, the proficiency is not affected. In Dr. Jagdish Saran's case, this Court pointed out that the reservation of seats on the basis of domicile or residence of the State of student of the same University was not consistent with the high degree of proficiency or excellence required. This Court took care to observe that the above ratio was not intended to be applied to the admission under Article 15(4) of the Constitution. It was expressly stated to be so in paragraph 25 thu....
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....iving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality.. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence." In Ajay Kumar singh & Ors. vs. State of Bihar & Ors. [(1994) 4 SCC 401], reservation in admission to the post graduate medical courses was challenged. Reliance was placed on Dr. Jagdish Saran and Dr. Pradeep Jain's cases. This Court, after noticing the law laid down in the aforesaid case, held in paragraph 13 that "it is again necessary to notice the context in which the said observation were made. In Pradeep Jain's case the Court was concerned with wholesale reservation made by some of the State Governments on the basis of fomicile or residence requirement within the state and admitting only those students....
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....on the fundamental rights guaranteed under the Constitution. The ration equally applies to the protective discrimination guaranteed to the Dalits and Tribes. The Dalits and Tribes are victims of social injustice, practice of untouchability and segregation from the mainstream of national life. The object of protective discrimination is to integrate them in the national mainstream so as to establish an integrated social order with equal dignity of person in which justice social, economic and political are enjoyed by them in equal measure with the general members of the society. Dr. B.R. Ambedkar in his closing speech, in reply to the Debates in the Constituent Assembly, had stated that the edifice in the Constitution was build up with laborious effect. There is no defect in the Constitution. if the Constitution fails, it fails not because there is defect in the Constitution but on account of the bad management by the administrators. Judiciary is a part of the State under the Constitution. Dr. K.M. Munshi, in reply to the Debates on the minority rights, had stated that one day the minority rights will be decided by 11 worthy judges was so high that they chose to describe Supreme Court....