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PETITIONER:

THE GOVERNMENT OF ANDHRA PRADESH AND OTHERS

Vs.

RESPONDENT:

BALA MUSALAIAH AND OTHERS

DATE OF JUDGMENT23/11/1994

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

KULDIP SINGH (J)

CITATION:

1995 SCC (1) 184 JT 1995 (1) 20

1994 SCALE (4)1036

ACT:

HEADNOTE:

JUDGMENT:

HANSARIA, J.:

1. The present is an unusual case despite it being

related to the usual demand of reservation for Scheduled

Castes and Scheduled Tribes. The peculiarity lies in the

fact that the demand for reservation hrein is not related to

appointment, but is relatable to termination.

2. The Government of Andhra Pradesh issued an order

(hereinafter referred to as the G.O.) on 3.8.67 by which an

ad hoe rule was framed in exercise of powers conferred by

Article 309 of the Constitution prohibiting termination of

reserved category candidates following normal rule

applicable in such cases. The G.O. spells out in what order

retrenchment of temporary employees has to take place. The

order set out is as below:-

"First persons, other than those belonging to

the Scheduled Castes and the Scheduled Tribes,

appointed temporarily, in the order of

juniority;

Second - probationers, other than whose

belonging to the Scheduled Castes and the

Scheduled Tribes, in the order of juniority;

Third-approved probationers, other than those

belonging to the Scheduled Castes and the

Scheduled Tribes, appointed temporarily in the

order of juniority;

Fourth -persons blonging to the Scheduled

Castes and the Scheduled Tribes, appointed

temporarily in the order of juniority;

Fifth - probationers belonging to the

Scheduled Castes, and the Scheduled Tribes, in

the order of juniority;

Sixth - approved probationers belonging to the

Scheduled Castes and the Schedules Tribes, in

the order of juniority."

(Explanation not relevant)

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3. It came to be assailed before the High Court of

Andhra Pradesh to meet its Wartoo. The High Court, after

taking note of various decisions of this Court dealing with

different facets of reservation. held that the GO. did not

strike a reasonable balance between the claims of different

communities and has sought to introduce by the hack door an

unlimited form of carry-forward rule which it regarded as

invalid because of what was held in T. Devadasan v. Union of

India, AIR 1964 SC 179. The Court further stated that the

G.O. does not merely postpone the retrenchment of temporary

employees belonging to the Scheduled Castes and Scheduled

Tribes to temporary employees of

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other communities, but postpones the retrenchment of the

scheduled Castes and Schedules Tribes employees to

probationers also and. what is worse. even approved

probationers of other communities. Because of all these the

G.O. was held to be violative of Article 16 (1) of the

Constitution and was. therefore, declared as invalid. The

State of Andhra Pradesh has preferred this appeal by special

leave.

4. A nine-Judge Bench of this Court in Indra Sawhney v.

Union of India, 1992 Supp.(3) SCC 217 (commonly known as

Mandal Commission case). reviewed the entire law on

reservation; and as such. no effort is necessary on our part

to find out the parameters within which reservation has to

operate.

5. The G.O. being of the year 1967 and the law relating

to reservation having come to be crystalised by the decision

in Indra Sawhney's case delivered in 1992, we stated to Shri

Raghuvir appearing for the appellants that if the State

Government were to undertake passing of fresh G.O. on the

subject keeping in mind the view expressed in Indra

Sawhney's case, we could dispose of the appeal by allowing

the stay order to continue for a period of three months

within which the State could pass fresh G.O. For want of

instructions, Shri Raghuvir could not give the undertaking

and so we proceeded to hear the appeal instead adjourning

the same as prayed for - the appeal being of the year 1977.

6. The High Court. as already noted, struck down the

G.O., inter alia. because of what has been stated in

Devadasan's case. In view of the judgment of the majority in

Indra Sawhney's case Shri Raghuvir contends that the

judgment of the High Court merits to be set aside. But this

is not all that the High Court had said. as would appear

from what we have noted above.

7. The first observation we propose to make regarding the

G.O. is that on the face of it the same is arbitrary in as

much as it requires retrenchment even of approved

probationers of general category before even temporary

incumbents belonging to the Scheduled Castes and Scheduled

Tribes could be retrenched. Such a provision cannot be in

tune even with Article 16(1) of the Constitution inasmuch as

this sub-article is a facet of Article 14 and though permits

affirmative action. as pointed out in Indra Sawhney's case,

the same cannot fly on the face of article 14. This would.

however. be so if the G.O. were to allow to stand as it is,

because giving of preference to temporary employees

belonging to the Scheduled Castes and Scheduled Tribes as

against approved probationers of general category is

definitely as unreasonable provision.

8. According to us. the principle and policy behind the

reservation would be adequately met and would receive

constitutional approval. if. while retrenching the

employees. the roster followed while making appointments is

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adhered to. To elucidate. if the roster is operated

backwards (which we shall call recycled) and if the employee

to be retrenched as per normal principle be on a non-

reserved point, a reserved category candidate would not be

retrenched. even if as per general rule of 'last is first

out' he would have been required to be retrenched. To state

it differently, a reserved category candidate would be

retrenched only when on the recycled

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path the reserved point is reached. This mode of following

roster would adequately protect the reserved category

candidates inasmuch as their percentage in the service or

cadre would remain as it came to be when appointments were

made. To explain further, if in the cadre or service

reserved category candidates were holding, say seven posts,

and seven persons are required to be retrenched, the

reserved category employees would not be retrenched even

when they be the last seven as per the seniority list, which

would have otherwise happened on following the normal

principle, Instead of the seven reserved category

candidates being retrenched as per the normal principle, the

reserved category candidate on the recycled roster point

alone would be retrenched, because of which the percentage

of representation of such candidates in the service, as it

got reflected in appointments made following the roster,

would remain unaffected.

9. May we mention that the reservation in appointment,

to effectuate which roster is prepared, makes an incumbent

of the reserved category senior to the general category

incumbent, as, though lower in merit the former gets

appointed earlier as per the roster point. This in itself

protects to some extent the interest of the listed category

candidates, as under the normal rule, the retrenchment

starts from the junior most employees and it travels back

step by step.

10. We, therefore, hold that the G.O. as framed is not

sustainable. It would, however, be open to State Government

to recast the G.O. in the light of what has been stated by

us, if deemed necessary by it. As, however, the G.O has

been in operation for about three decades by now, we do not

propose to upset the retrenchments which have already taken

place pursuant to what has been provided in the G.O. The

G.O. would, therefore, become non-operative from today.

11. For the aforesaid reasons, the appeal is dismissed

subject to the observation regarding prospectively. No order

as to costs.

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