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CASE NO.:

Review Petition (civil) 1749 of 1997

PETITIONER:

POST GRADUATE INSTITUTE OF MEDICALEDUCATION AND RESEARCH CHANDIGARH

RESPONDENT:

FACULTY ASSOCIATION AND ORS.M.L.SEHGAL AND ORS K.SIVAN AND ORS,

DATE OF JUDGMENT: 17/04/1998

BENCH:

S.C.AGRAWAL & G.N.RAY & A.S.ANAND & S.P.BHARUCHA & S.RAJENDRA BABU

JUDGMENT:

JUDGMENT

WITH

CIVIL APPEAL NO. 2346 OF 1981

CIVIL APPEAL NO.2345 OF 1981

SPECIAL LEAVE PETITION (CIVIL) No 13148 OF 1997

SPECIAL LEAVE PETITION (CIVIL) NO. 2892 OF 1983

SPECIAL LEAVE PETITION (CIVIL) 9252 OF 1981

DELIVERED BY:

G.N.RAY, J.

G.N. RAY,J.

In all these matters a common question arises for

decision as to whether n a singh cadre post reservation for

the backward classes, namely, Scheduled Castes, Scheduled

Tribes and other backward classes can be made either

directly or by applying rotation of roster point. These are

conflicting decisions of this Court on the question of such

reservation in a single cadre post.

The learned counsel for the parties in all these

matters have agreed in the question of law as to the

constitutional validity of reservation in a single cadre

post is to be decided by the constitution Bench and

thereafter the cases will be placed before the appropriate

Bench for disposal on merits in accordance with decision

rendered by this Bench. therefore, the question of

constitutional validity of reservation in a single cadre

post either directly or by rotation of roster point has been

considered by us and we have not taken into consideration

other contentions raised in these matters.

In support of the contention that reservation can be

made not only in respect of the promotional post but also in

respect of a single post in a cadre, Mr. E.C. Agrawala,

learned counsel appearing for the appellant in CA No.

2346/81, Mr. Puri, learned counsel appearing for the

appellant in CA No. 2345 of 1981, Mr. R.K. Jain, learned

senior counsel appearing for the Intervenor in the review

petition filed in CA No. 3175 of 1997 on behalf of the

Scheduled Castes and scheduled tribes Employees Welfare

Association, Post Graduate Institute of medical Education

and Research, Chandigarh, and Mr. Andhyarujina, learned

Solicitor General appearing for the appellant in SLP [c] No.

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13148 of 1997 for the petitioner Union of India have made

elaborate submissions. Mr. kapil Sibal, learned senior

counsel appearing in support of the review petition in CA

No. 3175 of 1997 has opposed the contention that a

reservation can be made in respect of a single post cadre.

Other learned counsel appearing in these matters have

adopted the rival contentions, without advancing any

separate argument.

Mr. Kapil Sibal has submitted that there cannot be any

reservation either for initial appointment or for an

appointment on promotion in respect of a single post cadre

either directly or by the device of rotation or roster. Mr.

Sibal has contended that the very concept of carry forward

or the principle of roster is alien to a single post cadre.

he has also contended that the principle of carry forward

meaning thereby carrying forward reservation presupposes

existence of multi posts cadre. If there is only one post in

a cadre, the vacancy for such single post being filled up,

there will be no occasion for carrying forward reservation

for filling up such vacancy. Mr. Sibal has also contended

that the rationale of reservation under Article 16(4) of the

constitution is founded on the inadequacy of representation

of a class in the service under the state. The question of

adequacy of representation does not and cannot arise in a

single post cadre because only one person can be

accommodated against the single post, leaving no scope for

adequate representation of any particular class in such

single post.

Mr. Sibal has contended that the impugned judgment

cannot be supported because (a) reservation of super

speciality is against the decision of a Nine Judges' Bench

decision of this Court in Indra Sawhney etc. Vs. Union of

India and Ors. (1992 Supp. (3) SC 217), and (b) no

reservation in a single cadre post is permissible in law.

Mr. Sibal has submitted that both in the impugned judgment

and also in the judgment of Union of India and Anr. Vs.

Madhav and Anr. (1997 (2) SCC 332) on which reliance has

been made in the impugned judgment, the ratio in the

decision of Arati Ray Choudhury Vs. union of India and Ors.

(1974 (1) SCC 87) was wrongly appreciated and the ratio was

wrongly stated. Mr. Sibal has drawn the attention of the

Court to the observations of Justice Reddy speaking for

majority decision on Article 335 of the constitution as

contained in paragraph 112 of the decision in Indra

Sawhney's case which are as follows:-

"While on Article 335, we are

of the opinion that there are

certain services and positions

where either on account of the

nature of duties attached to them

or the level (in the hierarchy) at

which they obtain, merit as

explained hereinabove, alone

counts. in such situations it ma

not be advisable to provide for

reservations. for example,

technical posts in research and

development organisations/

departments/institutions, in

specialities and super-specialities

in medicine, engineering and other

such courses in physical sciences

and mathematics, in defence

services and in the establishments

connected therewith. Similarly, in

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the case of posts at the higher

echelons e.g. professors (in

Education), Pilots in Indian

Airlines and Air India, scientists

and Technicians in nuclear and

space application, provision for

reservation would not be advisable.

x x x Be that as it may we are

of the opinion that in certain

services and in respect of certain

posts, application of the rule of

reservation ma not be advisable for

the reason indicated hereinbefore.

Some of them are : (1) Defence

Services including all technical

posts therein but excluding civil

posts. () All technical posts in

establishments engaged in

production of defence equipment.

(3) Teaching posts of professors -

above if any, (4) Posts in super

specialities in Medicine,

engineering and other scientific

and technical subject. (5) Posts of

pilots (and co-pilots) in Indian

Airlines and air India. The list

given above is merely illustrative

and not exhaustive. It is for the

Government of India to consider and

specify the service and posts to

which the Rule of reservation shall

not apply but on that account the

implementation of impugned office

Memorandum dated 13th August, 1990

cannot be stayed or withheld.

We may point out that the

services posts enumerated above, on

account of their nature and duties

attached, are such as call for

highest level of intelligence,

skill and excellence. Some of them

are second level and third level

posts in the ascending order.

hence, they form a category apart.

Reservation therein may not be

consistent with "efficiency of

administration" contemplated by

Art. 335.

We may add that we see no

particular relevance of Article

38() in this context. Article 16(4)

is also a measure to ensure

equality of status besides equality

of opportunity."

Mr. Sibal has also submitted that the reservation for

the socially, economically and educationally backward

classes is made so that the members of such backward classes

do not fail to get adequate representation in public

employment on account of facing open competition. but such

reservation cannot be and should not be made for posts in

higher echelons where merit and expertise are essential and

also necessary for discharging the duties and

responsibilities of such positions in higher echelons of

service. Mr. Justice Reddy in the majority decision, which

was also concurred by Justice Pandian, has pointed out that

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there are some services and positions where either on

account of the nature of duties attached to them or the

level in the hierarchy at which they obtain, merit alone

counts. In such situations, it may not be advisable to

provide for reservation and in that context, by way of

illustration, enumerated certain positions including the

technical posts in the Establishment engaged in Research and

Development, the teaching posts of Professors and above, the

posts of super-specialities in Medicine, Engineering and

other Scientific and Technology subjects, and also posts of

pilots and co-pilots in Indian Airlines and Air India. Mr.

Sibal has submitted that by and large, in the higher

echelons of service, there is a single post cadre. The

appointment to the posts of Professors or Readers in the

super-speciality of Medicine in an advanced institution like

the Post Graduate Institute of Medical Research & Education

in Chandigarh appointments must be made strictly on the

basis of selection on merits and any attempt of reservation

by whatever method will not only be against law laid down by

this court but also against the larger interests of the

country.

Mr. Sibal has contended that in M.R. Balaji & Ors. v.

State of Mysore (1963 Supp. (1) SCR 439) this Court struck

down the order by which 68% of seats in educational

institutions were reserved for the members of Scheduled

Castes and Scheduled Tribes and other educationally backward

classes. This Court did not suggest any percentage which

should be reserved for such backward classes but indicated

that the reservation has to be made keeping in mind the

interests of the community as a whole and such percentage of

reservation would be less then 50%. How much less of 50% is

to be reserved, would however depend on the facts and

circumstances of a given case.

Mr. Sibal has also submitted tat in the Constitution

Bench decision of this Court in T.Devadasan v. The Union of

India & Anr. (1964 (4) SCR 680), the majority view is that

in order to effectuated the guarantee contained in Article

16(1), each year of recruitment is to be considered

separately by itself for the reservation for backward

classes. In Arati Ray Choudhury's case (supra) a

Constitution Bench of this Court has clearly held that the

reservation for backward community should not be so

excessive as to create a monopoly or to disturb unduly the

legitimate claim of other communities. It has also been

specifically indicated in the said decision that if there

are two vacancies to be filled up in a particular year, not

more than one vacancy can be treated as reserved. In the

decision in Arati Ray Choudhury's case, the earlier decision

in M.R. Balaji's case was noticed and followed and no

departure from the decision in Devadasan's case was made.

Mr. Sibal has submitted that in Dr. Chakradhar Paswan

v. State of Bihar & Ors. (1988 () SCC 14) after relying on

the decisions in Arati Roy Choudhury, M.R. Balaji and

Devadasan's cases, it has been held that for implementing

50-point roster, isolated and separate posts in different

specialities cannot be clubbed together. It has also been

held that reservation of posts by applying the roster can be

made only where there are more than one post and reservation

of only one post cannot be made because such reservation

would amount to 100% reservation thereby violating Article

16(1) and 16(4) of the Constitution.

Mr. Sibal has submitted that the three-Judges' Bench

decision in Madhav's case (supra) is the principal judgment

which has taken a contrary view by holding that even in case

of a single post cadre, reservation can be made by applying

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the principle of rotation and by that process can avoid the

bar of reservation of 100%. Such decision is based on a

wrong reading of the decision in Arati Roy Choudhury's case

and on an erroneous appreciation of Articles 16(1), 16(4)

and 16(4-A) of the Constitution. The impugned decision in

the case of Post-Graduate Institute of Medical Education &

Research has been made by relying on the decision in

Madhav's case and following the reasonings contained in the

said decision. Therefore, the said decision cannot be

sustained and the impugned judgment should be set aside by

allowing the review petition.

Mr. E.C. Agrawala, learned counsel for the appellant in

C.A. No. 346/1981, has however submitted that the principle

of carry forward in a single post cadre is a device which

serves the purpose of reservation for the backward classes,

consistent with the Directive Principles of the Constitution

and the policy of reservation enshrined in the constitution.

Such principle of carrying forward in a single post by

applying the rotation of roster, affords opportunities for

getting appointment of the members of backward classes on

some occasions but throwing such appointment for open

competition on other occasions by de-reserving the vacancy

on such occasions. If such principle of rotation of roster

is not applied in the case of single post cadre, the very

purpose of reservation under Article 16(4) will be made

nugatory. Mr. Agrawala has submitted that since some

observation was made against reservation to a promotional

post in the decision in Indra Sawhney's case, sub Article 4

A of Article 16 has been incorporated by the 77th Amendment

of the Constitution. Such amendment clearly reflects the

anxiety of the Legislature to ensure reservation at all

stages of public employment including promotional posts. Mr.

Agrawala has submitted that in Arati Roy Choudhury's case,

the Constitution Bench upheld the appointment of a member of

the Scheduled Caste Scheduled Tribe which was reserved for

such category even though at the relevant year, there was

only one vacancy to be filled up in respect of the post of

Head Mistress. Therefore, it will not be correct to contend

that the Constitution Bench in Arati Ray Choudhury's case

has not upheld reservation of a single vacancy in the cadre

in a particular year by applying the principle of roster.

Mr. Puri, learned counsel appearing for the appellant in CA

2345 of 1981 has also made similar submissions.

Mr. RK Jain, learned senior counsel appearing for the

intervenors in the review petition in the case of Post

Graduate Institute of Medical Education and Research has

submitted that there is no Government order to the effect

that reservation in a single cadre post to be excluded. If,

therefore, there is no prohibition under any law for

reservation of a single post and if the Government gives

effect to Article 16(4) of the Constitution in a single post

cadre which helps the case of social justice, consistent

with the Directive Principles of the Constitution, this

Court should be slow to react against such reservation. He

has also supported the contention of Mr. Agrawala that by

rotation of roster, the device of 100% reservation is

avoided. At the same time, such rotation gives opportunity

for appointment of members of socially backward classes in

the higher echelons of service even when the post is a

single post cadre. Mr. Jain has submitted that in the matter

of implementation of rotation of roster in a single post

cadre, even if the other view against such rotation is a

possible view, such view should not be accepted because in

the matter of a course of action which advances the cause of

social justice, the view in favour of furtherence of social

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justice is to be preferred. Mr. Jain has also submitted that

reservation is not to the post or the vacancy but

reservation must be viewed as a measure of giving adequate

opportunity in public employment to the socially and

economically backward classes, consistent with Article 16(4)

and 16(4)(A) of the Constitution and the Directive

Principles. Mr. Jain has submitted that Article 16 does not

speak of any post or vacancy but speaks of equality of

opportunity in public employment.

Mr. Jain has also submitted that in Chakradhar Paswan's

case (supra), the ratio in Arati Ray Choudhury's case was

not appreciated and followed. Referring to the decision in

Indra Sawhney's case, Mr. Jain has submitted that in Indra

Sawnhey's case the ratio in Arati Ray Choudhury's case or in

Paswan's case was not considered. Therefore, the decision in

Indira Sawhney's case is not an authority for the issues

involved in the case under consideration. Mr. Jain has

submitted that the mechanism of roster has been evolved to

balance justice for all segments of the society so that in

the higher echelons of service, a single post is also made

available to the backward classes by reserving such post

only periodically on the basis of rotation of the roster

point. Such mechanism does not offend any provision of the

Constitution. He has submitted that the three Judges' Bench

in Madhav's case has analysed all the decisions having

relevance on the question of reservation of a single post

cadre, and has upheld such reservation in a single post

cadre by applying the roster. Therefore, the impugned

decision in the Post Graduate Institute of Medical Education

and Research Chandigarh, does not warrant any interference

by this Court.

Mr.Andhyarujina, the learned Solicitor General has also

supported the reservation of a single post cadre with the

aid of rotation of roster. He has invited in attention of

the Court to Office Memorandum No. 3601//96-Estt. (Res)

issued by the Ministry of personnel, Public Grievances and

Pension (Department of Personnel and Training) of the

Government of India in respect of reservation roster for

implementation of the Supreme Court judgment in R.K.

Sabharwal and ors. Vs. State of Punjab and Ors. (1995 (2)

SCC 745). After indicating in short, the purport of the

decision of this Court in the said case, it has been

indicated in the said Office Memorandum that "with a view to

bringing the policy of reservation in line with the law laid

down by the supreme Court. it has been decided that the

existing 200 point, 40 point and 120 point vacancy-based

rosters shall be replaced by post based rosters. All the

Ministries/Departments and concerned authorities are

requested to prepare the respective rosters based on the

principles elaborated in the Explanatory Notes given in

Annexure - 1 to this O.M. and illustrated in the Model

Rosters annexed to this O.M. as Annexure-II, III and IV.

Similarly, the concerned authorities may prepare rosters to

replace the existing 100 point rosters n respect of local

recruitment to Group C and D posts on the basis of the same

principles."

Paragraph 4 of the said O.M. contains the principles

for preparing the rosters elaborated in the Explanatory

Notes. Clause (e) of the said paragraph 4 indicating the

principles for preparing the rosters is relevant for

consideration in this case and the same is to the following

effect:

"In small cadres of upto 13

posts, the method prescribed for

preparation of rosters does not

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permit reservation to be made for

all the three categories. In such

cases, the administrative

Ministries/Departments may consider

grouping of posts in different

cadres as prescribed in this

Department's O.M. No. 42/21/49-NGS

dated 28.1.1952 and subsequent

orders reproduced at pages 70 and

74 of the Brochure on Reservation

for Scheduled Castes and Scheduled

Tribes (Eighty Edition) and prepare

common rosters for such groups. In

the event it is not possible to

resort to such grouping the

enclosed rosters (Appendices to

Annexures-II, III and IV) for cadre

strength upto 13 posts may be

followed. The principles of

operating these rosters are

explained in the explanatory notes.

Appendix to Annexure III contains the model roster for

promotion in the cadre strength up to 13 posts; whereas

Appendix to Annexure IV contains the roster for direct

recruitment otherwise than through open competition for

cadre strength upto 13 posts. Charts indicating the Appendix

to Annexure III and the Appendix to Annexure IV are set out

as hereunder:

Cadre Initial 1st 2nd 3rd 4th 5th 6th 7th 8th 9th

10th 11th 12th 13th

1. UR UR UR UR UR UR SC UR UR UR UR UR UR ST

2. UR UR UR UR UR SC UR UR UR UR UR UR ST

3. UR UR UR UR SC UR UR UR UR UR UR ST

4. UR UR UR SC UR UR UR UR UR UR ST

5. UR UR SC UR UR UR UR UR UR ST

6. UR SC UR UR UR UR UR UR ST

7. SC UR UR UR UR UR UR ST

8. UR UR UR UR UR UR ST

9. UR UR UR UR UR ST

10. UR UR UR UR ST

11. UR UR UR ST

12. UR UR ST

13. UR ST

Note: For cadres of 2 to 13 posts the roster is to be read

from entry 1 under column Cadre Strength till the last post

and then horizontally till the last entry in the horizontal

row i.e. "L"

2. All the posts of a cadre are to

be earmarked or the categories

shown under column initial

appointment while initial filling

up will be by the earmarked

category, the replacement against

any of the post in the cadre shall

be by rotation as shown

horizontally against the last post

of the cadre.

3. The relevant rotation by the

indicated reserved category could

be skipped over if it leads to more

then 50% representation of

reserved category.

Roster for direct recruitment otherwise than through open

competition for cadre strength upto 13 posts.

Cadre Initial 1st 2nd 3rd 4th 5th 6th 7th 8th 9th

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10th 11th 12th 13th

1. UR UR UR OBC UR UR SC OBC UR UR UR OBC SC ST

2. UR UR OBC UR UR SC OBC UR UR UR OBC SC ST

3. UR OBC UR UR SC OBC UR UR UR OBC SC ST

4. OBC UR UR SC OBC UR UR UR OBC SC ST

5. UR UR SC OBC UR UR UR OBC SC ST

6. UR SC OBC UR UR UR OBC SC ST

7. SC OBC UR UR UR OBC SC ST

8. OBC UR UR UR OBC SC ST

9. UR UR UR OBC SC ST

10. UR UR OBC SC ST

11. UR OBC SC ST

12. OBC SC ST

13. SC ST

Note 1. For cadres of 2 to 13 posts

the roster is to be read from entry

1 under column cadre strength till

the last post and then horizontally

till the last entry in the

horizontal tow i.e. like "L"

2. All the posts of a cadre are to

be earmarked for the

categories shown under column

initial appointment. While

initial filling up will be by

the earmarked category, the

replacement against any of the

post in the cadre shall be by

rotation as shown horizontally

against the last post of the

cadre.

3. The relevant rotation by the

indicated reserved category

could be skipped over it leads

to more than 50%

representation of reserved

category.

Referring to such model roster, the learned Solicitor

General has submitted that in case of promotion in a single

post cadre, for the initial recruitment, the post will

remain `unreserved'. Similarly, for the 1st 2nd 3rd 4th 5th

subsequent vacancies in such single cadre post, such posts

shall be treated as unreserved but for the 6th subsequent

vacancy, the post will be reserved for scheduled castes.

Again from 7th to 12th subsequent vacancy will be treated

as unreserved but the 13th vacancy will be treated as

reserved for Scheduled Tribes. So far as the roster for

direct recruitment, otherwise than through open competition,

the Appendix to Annexure IV indicates that if the cadre

strength is only one then the initial recruitment and the

first and second successive recruitment will be made on the

basis of open competition but the third successive vacancy

will be reserved for members of the backward classes. The

fourth successive vacancies will be treated as unreserved;

sixth successive vacancy will be reserved for the members of

Scheduled Castes; 7th successive vacancy shall be reserved

for members of other backward classes; 8th, 9th and 10th

successive vacancies will be filled up by open competition

but the 11th successive vacancy shall be reserved for OBCs',

the 12th for scheduled castes and 13th for scheduled tribes.

The learned Solicitor General has further submitted

with reference to the aforesaid Charts, that the Charts have

been prepared for balancing the felt need for reservation of

single cadre post, usually in the higher echelons of service

in such a manner that the opportunities for employment are

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shared by the members belonging to the reserved categories

and also by the other members i.e. members not belonging to

reserved categories. According to him, if the vacancies are

filled up in respect of single post cadre by following the

aforesaid Charts, the interests of socially and economically

backward classes and also other members of the community at

large will be met without seriously affection the interests

of either the members belonging to reserved classes or the

members not belonging to any of the reserved categories.

Under such mechanism, only of certain occasions the

vacancies are to be filled up by treating such vacancies

`reserved' for members of a particular class of reserved

categories, namely, scheduled castes, scheduled tribes and

other backward classes but on other occasions the post in

the single cadre will not be treated as reserved.

The learned Solicitor has submitted that the

constitutional validity of reservation for socially and

economically backward classes has been upheld by this Court.

The learned Solicitor has also submitted that after the

judgment of this Court in R.K. Sabharwal's case suitable

directions have been issued relating to rotation of roster

in conformity with the law laid down by this Court. He has

submitted if a reference is made to the Chart containing the

model roster for appointment by promotion for a single cadre

post, it will be crystal clear that the initial recruitment

is unreserved and out of subsequent 13 vacancies, only 7th

and 13th vacancies are meant for members of scheduled castes

and scheduled tribes. Similarly the roster for direct

recruitment otherwise than by promotion it is indicated that

if it is a single post cadre then not only the initial

recruitment but the first and second successive recruitment

will be treated as unreserved. Similarly, the 4th, 5th, 8th,

9th and 10th successive vacancies will also be treated as

`unreserved' but the 3rd, 6th, 7th, 11th, 12th, and 13th

will be kept reserved for members of other backward classes,

scheduled castes and scheduled tribes respectively. The

learned Solicitor has submitted that such device of

appointment by rotating the roster fulfils the felt need of

reservation and also eschews the vice of reservation beyond

50% for the members of the reserved classes. Since the post

is a single post in the cadre, unless such device is adopted

there will be no occasion for reservation of such post at

any point to time.

The learned Solicitor has also submitted that in Arati

Roy Chouhdry's case, the Constitution Bench has approved the

action taken in filling up of a single vacancy which

occurred in a particular year for the post of Head Mistress

by applying the rotation of roster, because such rotation of

roster served the avowed purpose of reservation by

delicately balancing the interests of the members of the

reserved classes and other members of the community not

belonging to any reserved class. The learned Solicitor has

further urged that the decision of the three Judges' Bench

in Madhav's case has indicated the correct principle by

giving very cogent reasons and such decision does not offend

any of the provisions of the Constitution and does not come

in conflict with the decisions of the larger Bench of this

Court. Therefore, no interference is called for against the

decision in madhav's case and the other decisions rendered

by following the decision in Madhav's case.

In order to appreciate the rival contentions of the

parties, it would be appropriate to refer to the

Constitution Bench decisions of this Court made in M.R.

Balaji, T. Devadasan and Arati Ray Choudhary's cases

(supra). In Arati Ray Choudhury's case, decision in Balaji

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and Devadasan were referred to and followed. Since both the

sides have relied on the decisions in Arati Ray Choudhury's

case, it will also be appropriate to consider the decision

in Arati Ray Choudhury's case in some detail.

In Balaji's case, the Constitution Bench has held that

the reservation should be allowed to advance the prospects

of weaker sections of the society, but while doing so, care

should be taken not to exclude admission to higher

educational standards of deserving and qualified conditions

of other communities. It has also been indicated that

reservation under Arts. 15(4) and 16(4) of the constitution

must be within a reasonable limit. The interests of the

weaker sections of the society, which are a first charge on

the States and the Centre, have to be adjusted with the

interests of the community as a whole. The objective of Art.

15(4) is to advance the interests of the weaker elements in

society. If a provision under Art. 15(4) ignores the

interests of the society that is clearly outside the purview

of Art. 15(4). It is therefore, quite evident that the

Constitution Bench in Balaji's case has clearly indicated

that in giving effect to reservations for the Scheduled

Castes, Scheduled Tribes and other backward classes, a

balance is to be struck so that the interests of the

backward classes and the members of the scheduled castes and

scheduled tribes are properly balanced with the interests of

the other segments of the society, and in order to safeguard

the interests of the reserved classes the interest of the

community as a whole can not be ignored. In Devadasan's case

(supra), the majority decision of four Judges (Justice Subba

Rao dissenting) was to the effect that the carry-forward

rule as a result of which the applicants belonging to

Scheduled Castes or Scheduled Tribes could get more than 50%

of the vacancies to be filled up in a particular year, is

unconstitutional. It has also been indicated that Art 14

will not be infringed if certain proportion of appointments

of the State in order to provide the backward classes an

opportunity equal to that of the members of more advanced

classes is made, provided that the reservation is not so

exercised which would amount to practically deny a

reasonable opportunity of employment to the members of the

other communities. It was indicated that under Art, 16 (4)

of the Constitution, reservation of a reasonable percentage

for the Scheduled Castes and Scheduled Tribes is valid and

within the competence of the States or the Centre. But it

necessary that a reasonable balance between backward classes

and other members of the society is to be struck and

maintained. In the decision of Devadasan's case (supra)

reliance was also placed on the decision in Balaji's case

and another constitution Bench decision of this court in

General Manager S.E.Railway Vs. Rangachari (1962 (2) SCR

586). In the majority decision in Rangachari's case, it has

been held that Arts. 16(1) and 16(2) are intended to give

effect to Arts. 14 and 15 of the Constitutional code of

guarantees and supplement each other. Art. 16(1) should,

therefore, be construed in a broad and general way, and not

in pedantic and technical way. When so construed, matters

relating to employment cannot mean merely matters prior to

the act of appointment nor can `appointment to any office'

mean merely the initial appointment but must include all

matters relating to employment, whether prior or subsequent

to the employment, that are either incidental to such

employment or form part of its terms and conditions.

The short fact in Arati Ray Choudhury's case is that

the Railway Board prepared a Roster in 1964 by which 12.5%

of the vacancies were reserved for Scheduled Castes and 5%

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for Scheduled Tribes. it was also mentioned that if there

would be only a single vacancy then it should be treated as

unreserved and if on account of that a reserved vacancy was

to be treated as unreserved then the reservation would be

carried forward to the subsequent two recruitment year. In

1966, a vacancy of Headmistress was treated as unreserved on

this basis. Another vacancy arose in January, 1969 and the

four Assistant Mistresses were called for selection. One of

the respondent challenged the selection on the ground that

the post should be treated as reserved for Scheduled Caste

candidate and such contention was accepted by the High

Court. In 1971 the Railways decided to hold a selection to

form a panel of two candidates for filling up one post

reserved for Scheduled Caste and another to cover unforeseen

requirements. At that stage, a writ petition was filed

challenging such decision of the Railway Administration and

an order of injunction was issued in such writ proceeding.

In spite of this, the said respondents was called by the

Selection board. The writ petition was ultimately dismissed

not on merits but on the ground that such writ petition was

barre by the principle of res judicata. This Court however

held that since the previous writ petition was not decided

on merits, the principle of res judicata or analogous to it

was not attracted. Therefore, the Court was competent to

consider the case on merits. In Arati Ray Choudhury's case,

reference was made to the decisions of Constitution Bench in

Balaji's case. Relying on the decision's case the

constitution Bench in Arati Ray Choudhury's case has held

that in Balaji's decision, this Court had struck down as

unconstitutional an order by which 68% of the seats in

educational institutions were reserved for Scheduled Castes

and Scheduled Tribes and other educationally and socially

backward classes. It was indicated in Arati Ray Choudhury's

case that following the decision in Balaji's case, in the

majority decision in Devadasan's case it was held that in

order to effectuate the guarantee contained in Article

16(1), each year recruitment has to be considered

separately 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."

(emphasis added)

It has also been indicated in Artai Ray Choudhury's case

that the Ministry of Home Affairs issued a Memorandum

modifying the carry forward rule so as to comply with the

decision in Devadasan's case. By para 2 of the Memorandum,

the carry-forward rule was amended by providing that "in any

recruitment year, the number of normal reserved vacancies

and the `carried forward reserved vacancies together shall

not exceed 45% of the total number of vacancies." It was

however indicated in the said Memorandum that if there be

only two vacancies, one of them may be treated as a reserved

vacancy. But if there be only one vacancy it shall be

treated as unreserved (emphasis added). The surplus above

45% shall be carried forward to the subsequent year of

recruitment, subject however to the condition that the

particular vacancies carried forward do not become time

barred due to their becoming more than two years old. It has

been specifically held in Arati Ray Choudhury's case that in

the first place each year of recruitment is to be considered

separately and by itself as held in Devadasan's case (supra)

so that if there are only two vacancies to be filled in a

particular year of recruitment, not more than one vacancy

can be treated as reserved. Secondly, if there be only one

vacancy to be filed in a given year of recruitment, it has

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to be treated as unreserved, irrespective of whether it

occurs in the Model Roster at a reserved point. the

appointment then is not open to the charge that the

reservation exceeds 50% for if the very first vacancy in the

first year of recruitment is in practice treated as a

reserved vacancy, the system may be open to the objection

that the reservation not only exceeds 50% but is, in fact,

cent per cent. But, if on this account, that is to say, if

on account of the requirement that the first vacancy must in

practice be treated as unreserved even if it occurs in the

Model Roster at a reserved point, the reservation can be

carried forward to not more than two subsequent year of

recruitment. Thus, if two vacancies occur, say , within an

initial span of three years, the first vacancy has to be

treated as an unreserved vacancy and the second as reserved.

It has not been held in Arati Ray Choudhury's case that for

a single post there can be a reservation for Scheduled

Castes, Scheduled Tribes or other backward classes. What has

been held in Arati Ray Choudhury's case is that when there

was a vacancy at Adra, according to the Model Roster, such

vacancy was a reserved point and therefore the other vacancy

was strictly a reserved vacancy but there being only one

vacancy in that particular year of recruitment, such vacancy

had to be treated as unreserved and therefore appointment

was given of smt. Biswas, who was not a reserved candidate.

Therefore, it had to be compensated by carrying forward the

reservation in two subsequent recruitment year when the

vacancy in Kharagpur in the financial year 1968-69 arose

w.e.f. December 31, 1968.

In Dr. Chakradhar Paswan's case (supra) in the State

Directorate of indigenous Medicines, Bihar, initially there

three Class I posts for (1) Director of Indigenous

Medicines, (2) Deputy Director (Homeopathic) and (3) Deputy

Director (Unani). Later the post of Deputy Director

(Ayurvedic) had also been added. The post of Director was

the highest in the Directorate; being the Director of

Indigenous Medicines as a whole and not of any particular

speciality of Indigenous Medicines.

By a Circular dated November 8, 1975, the State

Government prescribed a 50 point roster to implement the

policy of reservation to posts and appointments for members

of the backward classes under Article 16(4). It was laid

down that if in any grade, there is only one vacancy for the

first time, then it will be deemed to be unreserved and for

the second time also, if there be only one vacancy, then it

will be deemed to be reserved". For the purpose of

determining the quantum of reservation according to the

roster, the Government grouped together all the Class I

posts viz. the posts of Director as well as of Deputy

Directors and as the post of the Director had already been

filled up treating it to be unreserved, the second post viz.

the Deputy Director (Homeopathic) was treated as reserved.

Accordingly, the State Public Service commission issued

advertisement inviting applications from Scheduled Castes

candidates for selection to the same posts and ultimately

the State Government appointed a member of Scheduled Caste

to the post of Deputy Director (Homeopathic). A general

candidate thereafter filed a writ petition before the High

Court challenging the advertisement issued by the State

Public Service Commission and also the consequent order of

appointment. The High Court allowed the petition and quashed

the impugned advertisement and the appointment order. Such

decision of the High Court was assailed before this Court in

Dr. Chakradhar Paswan's case. The appeal was dismissed by

this Court by holding that in service jurisprudence, he term

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`cadre' has a definite legal connotation. It is not

synonymous with `service'. It is open to the Government to

constitute as many cadres in any particular service as it

may choose according to the administrative convenience and

expediency and it cannot be said that the establishment of

the Directorate constituted the formation of a joint cadre

of the Director and the Deputy Directors because the post

are not interchangeable and the incumbents do not perform

the same duties or carry the same responsibilities or draw

the same pay. The posts of the Director and those of the

Deputy Directors constitute different cadres of the service.

The first vacancy in the cadre of Deputy Directors was that

of the Deputy Director (Homeopathic) and it had to be

treated as unreserved, the second reserved and the third

unreserved. Therefore, for the first vacancy of the Deputy

Director (Homeopathic), a candidate belonging to the

Scheduled Caste had, therefore, to compete with other.

Relying on the decision in Balaji's case, it was held in

Chakradhar's case that once the power to make reservation in

favour of Scheduled Castes and Scheduled Tribes is

exercised, it must necessarily follow that for the purpose

of vacancies for which reservation has been made, must be

brought into effect and in order to do full justice, a carry

forward rule must be so applied that in any particular year

there is not more than 50% reservation. The whole concept of

reservation for application of the 50 point roster is that

there are more than one post, and the reservation can be up

to 50%. If there is only one post in the cadre, there can be

no reservation with reference to that post either for

recruitment at the initial stage or for filling up a future

vacancy in respect of that post. A reservation which would

come under Article 16(4), presupposes the availability of at

least more than one post in that cadre. No reservation could

be made under Article 16(4) so as to create a monopoly.

Otherwise, it would render the guarantee of equal

opportunity contained in Article 16(1) and (2) wholly

meaningless and illusory. The reservation of the post of

Deputy Director (Homeopathic) amounted to 100% reservation

which was impermissible under Article 16(4) as otherwise it

would render Article 16(1) wholly elusive and meaningless.

Article 16(4) is an exception to Article 16(1) and (2) and

therefore the power to make a special provision for

reservation of posts and appointments in favour of the

backward classes must not be so excessive which would in

effect efface the guarantee of equal opportunity in the

matter of public employment or at best make it illusory.

Reference was also made in Chakradhar's case to the

decision in Arati Ray Choudhury's case by indication that in

the facts of that case when the open class had reaped a

benefit in 1966-67 when a reserved vacancy was treated as

unreserved by the appointment of an open candidate, if the

carry forward rule had to be given any meaning, the vacancy

had to be carried forward for the benefit of Scheduled

Castes and Scheduled Tribes until the close of the financial

year 1968-69. It was pointed out in Chakradhar's case that

the decision in Arati Ray Choudhury's case turned on the

carry forward rule and such decision was clearly

distinguishable and the same does not support reservation

in a single cadre post.

The decision in Chakradhar Paswan's case that for a

single post cadre no reservation can be made for the

backward classes has also been followed in Chetana Dilip

Motghare Vs. Bhide Girls' Education Society (1995 Supp. 1

SCC 157) and it has been held in the said decision that when

the post is a solitary post in the cadre, the roster and

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carry forward scheme underlying any reservation policy

cannot apply. A contrary view, however, has been taken in

the decision of State of Bihar and Ors. Vs. Bageshwari

Prasad and Anr. (1995 Supp. 1 SCC 432), Shri Suresh Chandra

Vs. Shri J.B. Agarwal and others (JT 1997 (5) SC 72), and

later on in a three Judges' Bench decision in Union of India

and Anr. Vs. Madhav (1997 (2) SCC 332). Following the said

three Judges' Bench decision in Madhav's case, reservation

in a single post cadre by rotation of roster point has been

upheld in Union of India and others Vs. Brij Lal Thakur (JT

1997 (4) SC 195) and the decision rendered in the case of

Post Graduate Institute of Medical Education Research Vs.

Faculty Association and others. The later decision is the

subject matter of challenge in the Review Petition before us

in C.A. No. 3175 of 1997.

Since the decision in Madhav's case by a three Judges'

Bench upholding the reservation for the backward classes

even in single post cadre on the basis of rotation of roster

point is the main decision, when followed in Post Graduate

Institute of Medical Research case, we propose to consider

the decision in madhav's case in some detail. The brief

facts in Madhav's case may be indicated as follows:

In the national Savings Scheme Service, only one post

of Secretary was available. the Government applied the rule

of reservation to that post by rotation the vacancies in

accordance with the 40-point roster. When point No. 4

vacancy in that post reserved for Scheduled Tribe, was

filled by promoting an ST candidate from the post below,

such promotion was set aside by the Central Administrative

Tribunal on the ground that the post of Secretary being a

single point post, granting of reservation was

unconstitutional. The correctness or the said decision was

assailed in Madhav's case.

It has been held in Madhav's case that (i) appointment

to an office or post under the State is one of the means to

render socio-economic justice; (ii) Article 16(4-A) of the

Constitution introduced in 1995 by the 77th Amendment of the

constitution, has resuscitated the objectives of the

Preamble to, and Articles 46 and 335 of the constitution of

India to enable the Dalit and Scheduled tribe employees to

improve excellence in higher echelons of service and a

source of equality of opportunity in the matter of social

and economic status; (iii) Parliament has removed the lacuna

pointed out by the Supreme Court in Indra Sawhney's case

(supra) that Article 16(1) and 16(4) do not apply to

appointment by promotion but apply to initial appointment.

By the 77th Amendment of the constitution, the legal

position enunciated in Rangachari's decision has been

restored and reservation of promotion to 50% quota as per

the Indra Sawhney's case is available to members of

Scheduled Castes and Scheduled Tribes; (iv) the carry

forward scheme has been upheld in Indra Sawhney's case; ((v)

reservation could be provided even to the isolated posts on

the basis of the rule of rotation by relying on the decision

in Arati Ray choudhury's case; (vi) extension of reservation

is not unconstitutional. On the other hand, such scheme

provides opportunity and facilities to Scheduled Castes and

Scheduled Tribes for being considered for promotion to hold

single post consistent with equality of opportunity on par

with others; (vii) In Paswan's case even though it was held

that a single post cannot be reserved because such

reservation would amount to 100% reservation, the question

whether the single post reservation by rotation could be

granted and whether it would be violative of Article 16(1)

was not gone into and such question has been kept open. In

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Arati Ray Choudhury's case, the application of rule of carry

forward and appointment by rotation of roster in a single

post has been approved. (viii) In Sabharwal's case (supra),

a Constitution Bench considered whether reservation as per

the roster for the purposes of promotion could be valid and

consistent with Article 16(1) of the constitution and held

in favour of such reservation (ix) Smt. Chetana Dilip

Motghare v. Bhide Girls' Education Society (1995 Supp. 1 SCC

157) has not been correctly decided and the decisions in

Vidyulata Arvind Kakade v. Digambar Gyanba Surwase and

Arati Ray Choudhury's cases were not properly appreciated in

Bhide Girls' case (x) In State of Bihar & Ors. V. Bageshwari

Prasad & Anr. (1995 Supp. 1 SCC 432), the rule of rotation

has been held valid by indicating that the said rule does

not offend Articles 14 and 16(1) of the Constitution. (xi)

The judgment in Chakradhar Paswan's case was also

distinguished in Bageshwari's decision.

In Madhav's case, in support of the view that even in

respect of single post cadre, reservation can be made for

the backward classes by rotation of roster, the Constitution

Bench decision in Arati Ray Choudhury's case has been relied

on. We have already indicated that in Arati's case, the

Constitution Bench did not lay down that in single post

cadre, reservation is possible with the aid of roster point.

The court in Arati's case considered the applicability of

roster point in the context of plurality of posts and in

that context the rotation of roster was upheld by the

Constitution Bench. The Constitution Bench in Arati's case

has made it quite clear by relying on the earlier decisions

of the Constitution Bench in Balaji's case and Devadasan's

case that 100% reservation was not permissible and in no

case reservation beyond 50% could be made. Even the circular

on the basis of which appointment was made in Arati Ray

Choudhury's case was amended in accordance with the decision

in Devadasan's case. Therefore, the very premises that

Constitution Bench in Arati's case has upheld reservation

in a single post cadre is erroneous and such erroneous

assumption in Madhav's case has been on account of

misreading of the ratio in Arati Ray Choudhury's case. It

may be indicated that the later decision of the Constitution

Bench in R.K. Sabharwal's case (1995(2) SCC 745) has also

proceeded on the footing that reservation in roster can

operate provided in the cadre there is plurality of post. It

has also been indicated in Sabharwal's decision that the

post in a cadre different from vacancies.

It also appears that the decision in Indra Swhney's

case has also not been properly appreciated in madhav's

decision. In Indra Sawnhey's case, it has not been held that

there can be reservation in a single cadre post. There is

not dispute that a carry forward scheme, provided it does

not result in reservation beyond 50% is constitutionally

valid but that does not mean that by the device of carry

forward scheme, 100% reservation on some occasions can be

made even when the post is only a single cadre post. In

Madhav's decision and Brij Lal's decision, reliance has been

placed on Article 16(4A) of the Constitution for holding

that even in respect of single post such reservation can be

made with the aid of rotation of roster. In our view,

Article 16(4A) relates to reservation in promotional post in

the cadre, but the said Article 16(4A) does not deal with

the question of reservation in a single cadre post.

There is no difficulty in appreciating that there is

need for reservation for the members of the Scheduled Castes

and Scheduled Tribes and other backward classes ad such

reservation is not confined to the initial appointment in a

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cadre but also to the appointment in promotional post. It

cannot however be lost sight of that in the anxiety for such

reservation for the backward classes, a situation should not

be brought by which the chance of appointment is completely

taken away so far as the members of other segments of the

society are concerned by making such single post cent per

cent reserved for the reserved categories to the exclusion

of other members of the community even when such member is

senior in service and is otherwise more meritorious.

Articles 14, 15 and 16 including Article 16(4), 16(4A)

must be applied in such a manner so that the balance is

struck in the matter of appointments by creating reasonable

opportunities for the reserved classes and also for the

other members of the community who do not belong to reserved

classes. Such view has been indicated in the Constitution

Bench decisions of this Court in Balaji's case, Devadasan's

case and Sabharwal's case. Even in Indra Sawhney's case, the

same view has been held by indicating that only a limited

reservation not exceeding 50% is permissible. it is to be

approciated that Article 15(4) is an enabling provision

like Article 16(4) and the reservation under either

provision should not exceed legitimate limits. In making

reservations for the backward classes the State cannot

ignore the fundamental rights of the rest of citizens. the

special provision under Article 15(4) must therefore strike

a balance between several relevant considerations and

proceed objectively. In this connection reference may be

made to the decisions of this court in The State of Andhra

Pradesh and Ors. Vs. U.S.V. Balaram and C.A. Rajendran Vs.

Union of India (AIR 1972 SC 1375 and AIR 1968 SC 507). It

has been indicated in Indra Swhney's case (supra) that

clause (4) of Article 16 is not in the nature of an

exception to Clauses (1) and (2) of Article 16 but an

instance of classification permitted by clause (1). It has

also been indicated in the said decision that clause (4) of

Article 16 does not cover the entire field covered by

clauses (1) and (2) of Article 16. In Indra Sawhney's case,

this court has also indicated that in the interests of the

backward classes of citizens, the State can not reserve all

the appointment under the State or even majority of them.

the doctrine of equality of opportunity in Clause (1) of

Article 16 is to be reconciled in favour of backward classes

under clause (4) of Article 16 in such a manner that the

latter while serving the cause of backward classes shall not

unreasonably encroach upon the field of equality.

In Triloknath Vs. State of Jammu and Kashmir (AIR 1967

SC 1283), it has been held by this Court that where the

percentage of reservations is not reasonable, having regard

to employment opportunities of the general public to the

cadre of service in question, the population of the entire

State, the extent of their backwardness and the like, the

interference by Court against unreasonable reservation is

called for.

In a single post cadre, reservation at any point of

time on account of rotation of roster is bound to bring

about a situation where such single post in the cadre will

be kept reserved exclusively for the members of the backward

classes and in total exclusion of the general embers of the

public. Such total exclusion of general members of the

public and cent percent reservation for the backward classes

is not permissible within the constitutional frame work. The

decisions of this Court to this effect over the decades have

been consistent.

Hence, until there is plurality of posts in a cadre

the question of reservation will not arise because any

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attempt of reservation by whatever means and even with

device of rotation of roster in a single post cadre is bound

to create 100% reservation of such post whenever such

reservation is to be implemented. The device of rotation of

roster in respect of single post cadre will only mean that

on some occasions there will be complete reservation and the

appointment to such post is kept out of bound to the members

of a large segment of the community who do not belong to any

reserved class, but on some other occasions the post will be

available for open competition when in fact on all such

occasions, a single post cadre should have been filled only

by open competition amongst all segments of the society.

Mr. Kapil Sibal has contended that in some higher

echleon of service in educational and technical institution

where special expertise is necessary to hold superior posts,

like Professors and Readers there should not be reservation

even if there are plurality of posts in such cadre as

indicated in the majority view in Indra Sawhney's case. It

is, however, not necessary for us to decide the said

contention for the purpose of disposal of these matters,

where the question of reservation in single cadre post calls

for decision.

We, therefore, approve the view taken in Chakradhar's

case that there can not be any reservation in a single post

cadre and we do not approve the reasonings in Madhav's case,

Brij Lal Thakur's case and Bageswari Prasad's case upholding

reservation in a single post cadre either directly or by

device of rotation of roster point. Accordingly, the

impugned decision in the case of Post Graduate Institute of

Medical Education Research can not also sustained. The

Review Petition made in civil appeal No. 3175 of 1997 in the

case of Post Graduate Institute of Medical Education

Research, Chandigarh, is therefore allowed and the judgment

dated may 2, 1997 passed in civil Appeal No. 3175 of 1997 is

set aside.

As we do not propose to consider the facts and

circumstances i other cases which have been heard along with

the Review Petition, we direct that the said matters be

placed before the appropriate Bench for disposal on the

basis of this decision in Review Petition in C.A. No. 3175

of 1997. In the facts and circumstances of the case, there

will be no order as to costs.