1

A.F.R.

Court No. - 37

Case :- WRIT - A No. - 43260 of 2016

Petitioner :- Vivekanand Tiwari And Anr.

Respondent :- Union Of India And 5 Ors.

Counsel for Petitioner :- Vimlendu Tripathi

Counsel for Respondent :- A.S.G.I.,Ajeet Kumar Singh,Ashok

Mehta,Rijwan Ali Akhtar,Shekhar Kr.Yadava,Vinay Kumar Pandey,Vinod

Kumar Shukla

Hon'ble Vikram Nath,J.

Hon'ble Daya Shankar Tripathi,J.

(Delivered by Vikram Nath, J.)

Petitioners who claim to be eligible for appointment as Assistant

Lecturers in Hindi and Physiotherapy have preferred this petition under

Article 226 of the Constitution, impleading (i) Union of India through

Secretary, Department of Higher Education Ministry of Human Resource

Development, New Delhi, (ii) The University Grants Commission (UGC),

through its Secretary, 35, Firoze Shah Road, New Delhi, (iii) The Joint

Secretary, University Grants Commission (UGC), 35 Firoze Shah Road,

New Delhi, (iv) The Banaras Hindu University, Varanasi through its

Registrar, (v) The Vice Chancellor, Banaras Hindu University, Varanasi and

(iv) The Registrar (Admin.), Recruitment and Assessment Cell, Banaras

Hindu University, Varanasi as respondent nos.1 to 6 respectively for the

following reliefs-

1. A writ order or direction in the nature of Certiorari by calling the

record to quash the Rolling Advertisement No.2 of 2016-2017

(Teaching and equivalent posts) dated 16.07.2016 (Annexure No.3 to

the Writ Petition) issued by the respondent no.4 and the order dated

19.02.2008 issued by respondent no.2 through respondent no.3

(Annexure 10 to the Writ Petition); and the impugned clause No.6(c)

and clause No.8 (a)(v) of the UGC Guidelines dated 25.08.2006

issued by the respondent no.2. (amendment made vide Court order

dated 09.01.2017).

2. A writ order or direction in the nature of Mandamus to command the

respondent nos.1 to 6 to issue a fresh advertisement for teaching posts

in BHU by treating each discipline/subject/department of BHU as a

separate “Unit” for the purpose of application of rules of reservation

in the matter of recruitment of teaching staff and to proceed with the

selection process in a time bound manner as may be stipulated by this

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Hon'ble Court.

3. Any other writ order or direction, which this Hon'ble Court may deem

fit and proper under the facts and circumstances of the present case.

4. To award the cost of writ petition.”

Banaras Hindu University (hereinafter referred to as BHU) a Central

University constituted and established under a Central Act No. 16 of 1915

issued an advertisement being Rolling Advertisement No.02/2016-2017,

inviting applications for various teaching and equivalent posts in different

departments of the University (Annexure 3 to the writ petition). Petitioner

no.1 claims to have applied for the post of Assistant Professor in respective

discipline and petitioner no.2 claims to be fully eligible for the post of

Assistant Professor in respective discipline but could not apply for the

same. The petitioners noticed that the reservation applied by the University

was by way of treating the University as a 'Unit' and the posts of the

Professor, Associate Professor, Reader and Assistant Professor as single

cadre at each level in the University. According to the petitioners the

reservation for the Scheduled Castes, Scheduled Tribes and Other Backward

Classes ought to have been applied by treating the posts of different levels

in each subject/department as a 'Unit' and not the whole University as a

'Unit'. After advertisement was published the petitioners alongwith other

applicants submitted a representation to the Vice-Chancellor requesting to

apply the reservation, treating each department as a 'Unit'. This

representation dated 25.07.2016 has been filed as Annexure 4 to the writ

petition. The basis of such representation, according to the learned counsel

for the petitioners, was the series of judgments delivered by the Supreme

Court and the Allahabad High Court and accordingly they annexed copies

of judgments alongwith their representations. The following judgments,

according to the petitioners, clearly lay down that the reservation is to be

applied in teaching positions department/subject-wise in the University.

(i) Dr. Suresh Chandra Verma & Others Vs. The Chancellor, Nagpur

University & others reported in AIR 1990 SC 2023.

(ii) State of U.P. Vs. Dr. Dina Nath Shukla reported in (1997) 9 SCC

662.

(ii) State of U.P. Vs. M. C. Chatopadhyay & others reported in (2004)

12 SCC 333.

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(iv)State of Karnataka & others Vs. K. Govindappa & another

reported in (2009) 1 SCC 1.

(v) Pramod Madhukarrao Padole and another vs. Chancellor, Nagpur

University and others, reported in 1991 Mh LJ 1487 (Full Bench-

Bombay High Court).

(vi)Dr. Raj Kumar v. Gulbarga university (FB) 1990 Kant 320-

Karnataka High Court.

(vii) Dr. Ram Niwas Pandey Vs. State of U.P. & others reported in (1996)

3 UPLBEC 1869.

(viii) Dr. Smt. Anupma Sharma Vs. State of U.P. & others reported in

2009 (4) AWC 3967. Amitava Lala and Shishir Kumar, JJ.

(ix)Dr. Vishwajeet Singh & others Vs. State of U.P. & others reported in

2009 (3) AWC 2929.

(x) Dr. Narendra Singh and others vs. State of U.P. and others, Writ-A-

No.39334 of 2012 decided on 18.02.2014 (Alld. HC).

Copy of the judgment in the case of Dr. Narendra Singh (supra) is

annexed with the petition as Annexure 6 and rest of the judgments have

been provided to us during course of the arguments. Petitioners have also

annexed a Government Order issued by the Principal Secretary, Higher

Education, Government of U.P. dated 19.02.2016 (Annexure-5 to the writ

petition) which is in compliance and consequence to the judgment delivered

by this Court on the above issue, meaning to say that the State Government

has accepted the view expressed in the aforesaid judgments and accordingly

all State Universities were directed to apply reservation on teaching posts in

the State Universities treating the department/subject as a 'Unit'. Petitioners

have further annexed a communication dated 19.02.2008 issued by the Joint

Secretary, University Grants Commission (hereinafter referred to as the

UGC) addressed to the Registrar, Banaras Hindu University, Varanasi

(Annexure 10 to the writ petition) communicating the recommendations of

the Standing Committee and directing to implement the reservation cadre-

wise/treating the University as a 'Unit' instead of department-wise/subject-

wise. The contents of the said letter are reproduced below-

“The Registrar,

Banaras Hindu University,

Varanasi-221005

Uttar Pradesh

Sub: Implementation of Reservation Policy for SC/ST in Universities

and Colleges-regarding.

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Sir,

A meeting of the Sub committee of the Standing Committee on

SC/ST was held in the UGC Office on 13

th

and 14

th

December 2006 and

discussed the status of the implementation of the Reservation Policy of

the SC/ST in Admission and appointment of the teaching and non-

teaching posts. The Committee noted that most of the Universities are

maintaining the Rosters department-wise or subject-wise instead of

cadre-wise as per the UGC Policy of Reservation. The Committee

advised that the University may be requested to prepare the revised

Rosters in the light of the UGC guidelines already issued to the

Universities.

Major decisions taken by the Standing Committee in the meeting are as

under-

1.Teaching posts. All teaching posts including Professors and Readers

filled up and to be filled up depending upon the sanctioned strength

should be entered in the 100 point Roster register separately for cadre of

Professor and Reader as prescribed by the Government of India passed

on the dates of joining of the incumbents in each cadre. All posts of

lecturer, irrespective of the fact that some are promoted as Readers or

Professors on personal basis shall be arranged in 100 point Roster

according to seniority. Roster register shall not be maintained in each

discipline or Department-wise for the post of any cadre.

2.Non-teaching posts. Non-teaching posts of Group A,B,C & D shall be

filled in separately in 100 point Roster. Also, all the posts of Group D

shall form one cadre under the permissible rules of grouping posts.

3.After having followed above procedure, the posts required to be filled up

by SC/ST and number of SC/ST personnel in position should be worked

out and backing in reservation is to be filled up in time bound manner.

4.The backlog SC/ST vacancies for teaching & Non-teaching staff should

be filled up before filling any general vacancy and those on ad-hoc

basis.

5.The system of appointment on ad hoc basis should be forthwith done

away with, when duly qualified candidates are available for

appointment on regular basis.

In view of the above recommendations of the Standing

Committee, you are requested to implement the reservation cadre-wise

instead of department-wise/subject-wise to work out the balance of

SC/ST vacancies to be filled up as backing vacancies, to initiate action

for filling up the backlog vacancies immediately and report the matter

to the SCT Section of UGC so that Standing Committee on SC/ST may

be apprised of the position in the next meeting as and when convened

by the UGC.

You are also requested to inform all the colleges of your University

accordingly for filling up of the backlog vacancies of SC/ST

immediately.”

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The petitioners also claimed to have met the Vice-Chancellor and

Registrar of the BHU claiming response to their request dated 25.07.2016

but when no heed was paid to their request and it appeared that the

University would proceed with the selection and appointment as per the

advertisement, they approached this Court by filing the present petition.

This Court while entertaining the Writ Petition on 12.09.2016

recorded that counsel for the University made a statement that the

advertisement under challenge had been temporarily withdrawn till such

time instructions are received from the UGC. The Court accordingly

granted 10 days time to the counsel for the UGC to obtain instructions and

fixed 28.09.2016 as the next date. Contents of the order dated 12.09.2016

are reproduced below-

“It is stated by Sri A.K. Upadhyay, learned Senior Counsel for the

Banaras Hindu University that the advertisement under challenge has

been temporarily withdrawn till such time as instructions are received

from the University Grants Commission.

Sri A.K. Upadhyay, learned Senior Counsel for the University and Sri

V.K. Shukla, learned counsel appearing for University Grants

Commission pray for and are granted ten days' time to seek instructions

in the matter.

Place this petition as fresh on 28 September 2016.”

The Court has thereafter granted further time to the UGC on

19.10.2016, 07.12.2016, 09.01.2017. Thereafter a short counter affidavit

was filed by the UGC on 23.01.2016 to which a reply was filed by the

petitioners. In the meantime the petitioners moved an amendment

application which was allowed by order dated 12.01.2017 whereby the

petitioners were permitted to assail the Clause Nos.6(c) and 8(a)(v) of the

UGC Guidelines dated 25.08.2006.

As the UGC is under direct control of the Central Government,

therefore, Union of India through Secretary, Department of Higher

Education Ministry of Human Resource Development was impleaded as

Respondent No.1. This Court granted time to the learned counsel

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representing respondent 1 by orders dated 09.01.2017, 23.01.2017 and

21.02.2017 to obtain instructions in the matter with regard to its reservation

policy. The instructions received from the Ministry of Human Resource

Development have been placed on record in which it has been stated that

the guidelines framed by the UGC in 2006 (to be specific 25.08.2006) need

to be strictly followed.

Elaborate arguments have been heard in the matter on 01.03.2017,

02.03.2017, 06.03.2017, 07.03.2017, 08.03.2017, 20.03.2017 and

27.03.2017.

We have heard Sri Vimlendu Tripathi, learned counsel for the

petitioners, Sri Ashok Mehta, learned Additional Solicitor General assisted

by Sri Shekhar Kumar Yadav, learned Senior Panel Counsel for the

Respondent No.1, Sri Rizwan Ali Akhtar, learned counsel representing

respondent nos.2 & 3 and Sri V.K. Upadhyay, learned Senior Advocate

assisted by Sri Ajit Kumar Singh, learned counsel representing respondent

nos.4 to 6.

The core question to be determined in the present petition is whether

the reservation in teaching posts in any University is to be applied treating

the University as a 'Unit' or the department/subject as a 'Unit' for different

levels of teachers. There are certain other ancillary and connected issues

raised and deliberated during course of arguments on which we have also

commented in our judgment for consideration of the Union of India and the

UGC.

BRIEF HISTORY OF RESERVATION AS APPLICABLE TO

TEACHING POSITIONS IN THE UNIVERSTIY.

Part III of the Constitution deals with fundamental rights. Article 14

of the Constitution mandates equality before law to all the citizens. It reads

as follows:-

“14. Equality before law.- The State shall not deny to any person

equality before the law or the equal protection of the laws within

the territory of India.”

Article 16 in Part III of the Constitution provides for equality of

opportunities in the matters of public employment. It reads as follows-

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“16. Equality of opportunity in matters of public employment.—

(1) There shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex,

descent, place of birth, residence or any of them, be ineligible for, or

discriminated against in respect of, any employment or office under the

State.

(3) Nothing in this article shall prevent Parliament from making any

law prescribing, in regard to a class or classes of employment or

appointment to an office under the Government of, or any local or

other authority within, a State or Union territory, any requirement as to

residence within that State or Union territory prior to such employment

or appointment.

(4) Nothing in this article shall prevent the State from making any

provision for the reservation of appointments or posts in favour of any

backward class of citizens which, in the opinion of the State, is not

adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any

provision for reservation in matters of promotion, with consequential

seniority, to any class or classes of posts in the services under the State

in favour of the Scheduled Castes and the Scheduled Tribes which, in

the opinion of the State, are not adequately represented in the services

under the State.

(4B) Nothing in this article shall prevent the State from considering any

unfilled vacancies of a year which are reserved for being filled up in

that year in accordance with any provision for reservation made under

clause (4) or clause (4A) as a separate class of vacancies to be filled up

in any succeeding year or years and such class of vacancies shall not

be considered together with the vacancies of the year in which they are

being filled up for determining the ceiling of fifty per cent. reservation

on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which

provides that the incumbent of an office in connection with the affairs

of any religious or denominational institution or any member of the

governing body thereof shall be a person professing a particular

religion or belonging to a particular denomination.”

Sub Article (1) clearly mandates that there shall be equality of

opportunity for all citizen in the matters relating to employment or

appointment to any office of the State. Sub Article (2) mandates that there

shall be no discrimination on the ground of religion, race, caste, sex,

descent, place of birth, residence or any of them, in any employment or

office under the State. Sub Article (3) gives liberty to the Parliament of

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making any law in regard to a class or classes of employment or

appointment to an office. Sub Article (4) gives liberty to the State to make

any provision for the reservation in appointments or posts in favour of any

backward class of citizens which, in the opinion of the State, are not

adequately represented in the services under the State. The provision

relevant for consideration is Sub Article (4) of Article 16 of the

Constitution. A careful reading of Article 16 (4) gives the following

analysis-

1.The State has the liberty to make provisions for reservation in

appointment or posts.

2.It should be in favour of any backward class of citizen.

3.The State has to form an opinion that such class is not

adequately represented in the service under the State.

4.It is not a mandate but a liberty given to the State. It is an

enabling provision.

Although its Sub Article does not mention of making law for the said

purpose but it has only used the word 'making any provision'. At the same

time once it provides that opinion is to be formed then in forming the

opinion the State has to necessarily deliberate upon and carry out an

exercise while making the provision for reservation justifying its decision.

Since we are dealing with the application of the reservation in teaching

positions at University level and that too of a Central University, the

relevant authority would be the Ministry of Human Resource Development

and the University Grants Commission which is a statutory body

constituted to primarily maintain standards of education in higher studies.

We had asked Sri Mehta, learned Additional Solicitor General to

provide us the relevant provisions, orders by which reservation was

introduced for teaching posts in the Central Universities. We had also

required the University Grants Commission's counsel Sri Akhtar to provide

similar policy/guidelines framed by the UGC. Learned counsel appearing of

the other parties also assisted the Court in providing the relevant

9

information as to when and on what basis the reservation was introduced in

teaching posts in the University.

We have been provided a copy of Ministry of Home Affair O.M.

No.39/40/74-(SCT)(I), dated 30

th

September, 1974, addressed to all

Ministries/Departments, etc. providing for steps to be taken to apply

reservation for SC and ST in the services of the autonomous

bodies/institutions, receiving grant in aid from the Govt. of India by making

suitable provision in the relevant statutes. The contents of this OM dated

30

th

September, 1974 reads as follows:-

“Ministry of Home Affairs O.M. No.39/40/74-(SCT)(I),

dated the 30

th

September, 1974, to all Ministries/Departments, etc.

Subject :- Reservation for Scheduled Castes and Scheduled Tribes in

autonomous bodies/institutions

The undersigned is directed to say that a suggestion was received from

the Commissioner for Scheduled Castes and Scheduled Tribes that

autonomous bodies, including Municipal Corporations, Co-operative

institutions, universities, etc. should be asked to make reservation for

Scheduled Castes and Scheduled Tribes in the matter of employment in

services under their control. He also suggested that if the word “State”

occurring in Article 12 of the Constitution did not cover these bodies,

the Constitution should be amended suitably.

2. The question was considered in consultation with the Ministry of Law

and Justice with particular reference to the interpretation or the word

“State” occurring in Article 12 of the Constitution. The opinion of the

Ministry of Law that the word “State” in this article of the Constitution

while covering the Municipal Corporations would not cover the other

autonomous bodies. Co-operative Institutions Universities, etc. but it

was not necessary to amend the Constitution as the purpose of making

reservations for Scheduled Castes and Scheduled Tribes in such bodies

could be achieved by suitable provision in the relevant statute or in the

Article of Association etc.

3. It is, therefore, requested that suitable action may kindly be taken

under advice to this Ministry to provide reservations for Scheduled

Castes and Scheduled Tribes in the services of the autonomous

bodies/institutions which are receiving grant-in-aid from the

Government of India by making suitable provision in the relevant

statutes or in the Article of the respective bodies.”

The UGC in its short-counter affidavit has firstly referred to an office

memorandum issued by the Ministry of Personnel, Public Grievances and

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Pension (Department of the Personnel and Training), Government of India

dated 2.7.1997 (Annexure-SCA-1). This office memorandum was issued in

consequence to the judgment of the Supreme Court in the case of R.K.

Sabharwal and others vs. State of Punjab, reported in 1995 (2) SCC p.

745. It basically lays down as to how the roster is to be applied.

The next reference in the short-counter affidavit of the UGC is to an

order issued by the Ministry of Human Resource Development (Department

of Secondary & Higher Education) dated 6.12.2005 (part of Annexure SCA-

2) whereby it directed the UGC to ensure effective implementation of the

reservation policy in the Central Universities and Deemed Universities

receiving grant-in-aid from the public funds.

Contents of this order reads as follows-

“F. No.6-30/2005U-5

Government of India

Ministry of Human Resource Development

(Depttt of Secondary & Higher Education

***

New Delhi dated the 6

th

December, 2005

O R D E R

“WHEREAS Article 46 of the Constitution states that, “The State shall

promote, with special care, the education and economic interests of the

weaker sections of the people and, in particular of the Scheduled Castes

and Scheduled Tribes, and shall protect them from social injustice and

all forms of social exploitation”,

AND WHEREAS, the policy of the Central Government is that in the

Central Universities and Institutions which are Deemed to be

Universities receiving grants-in-aid from the public exchequer, the

percentage of reservation in admissions and recruitments in teaching

and non-teaching posts is to be 15% for Scheduled Casters and 7.5% to

Scheduled Tribes;

AND WHEREAS, the University Grants Commission, New Delhi

hereinafter referred to as UGC, is a statutory autonomous organization

responsible for implementation of policy of the Central Government in

the matter of admissions as well as recruitment to the teaching and non-

teaching posts in the Central Universities and Institutions which are

Deemed to be Universities;

AND WHEREAS, the UGC has failed to ensure effective implementation

of the reservation policy in the Central Universities and grantee

Institutions which are deemed to be Universities'

NOW, THEREFORE, in exercise of the powers vested under Section

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20(1) of the University Grants Commission Act, 1956 the Government

hereby directs the UGC to ensure effective implementation of the

reservation policy in the Central Universities and those of Institutions

Deemed to be Universities receiving aid from the public funds except in

minority institutions under Article 30(1) of the Constitution.”

(Anupama Bhatnagr)

Deputy Secretary to the Government of India

Tele. No.23388641.”

The above order refers to Article 46 of the Constitution which talks

about the promotion of education and economic interests of weaker

sections. Article 46 of the Constitution reads as follows:-

“46. Promotion of educational and economic interests of Scheduled

Castes, Scheduled Tribes and other weaker sections.-The State shall

promote with special care the educational and economic interests of the

weaker sections of the people, and, in particular, of the Scheduled

Castes and the Scheduled Tribes, and shall protect them from social

injustice and all forms of exploitation.”

The next document referred to in the short counter affidavit is the

guidelines framed by the UGC for strict implementation of reservation

policy of the Government in the Universities, Deemed Universities,

Colleges and other grant-in-aid institutions and Centres and the same was

circulated to all the aforesaid institutions vide covering letter dated

25.08.2006 (Annexure-SCA-3). These guidelines refer to the order dated

06.12.2005 issued by the Ministry of Human Resource and Development.

The same has been reproduced above. In para 6(a) of the guidelines it has

been provided that the reservation would be applicable to all teaching posts

in all institutions referred to above. Clause 6(b) refers to reservation in

admissions to Under Graduate, Post Graduate, M. Phil. and Ph. D. courses.

Clause 6(c) of the guidelines provides the manner in which the grouping of

the posts is to be done. This clause has been challenged by the petitioners as

being arbitrary, unreasonable and contrary to the settled law on the point.

Clause 6(c) is reproduced below-

“6 (c).In the cases of reservations referred to in clause (a) above, the

Instructions issued by the Central Government for grouping of

posts shall be resorted to wherever applicable, especially when

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more than one University functions under a single Act, or

several colleges function under one University grouping of posts

are mandatory if the posts concerned are transferable on an

inter-university or inter-college levels. The practice of creating

department-wise cadres, which tends to create single posts or

cadres with artificially reduced number of posts in order to

avoid reservation, is strictly forbidden.”

The extent of reservation is provided in Clause 7 of the guidelines.

Clause 8 provides the procedure to be followed in the matters of

reservation. Clause 8(a)(v) refers to the applicability of Roster to be applied

to the total number of posts in the cadre as per the judgment in the case of

R.K. Sabharwal vs. State of Punjab (supra) and further that the cadre is

best indicative of seniority list governing the members with the same pay-

scales. This is other offending clause in the guidelines of which petitioners

have prayed for quashing. Clause 8(a)(v) of the guidelines reads as follows-

“8. Procedure to be followed in matters of reservation for teaching as

well as non-teaching staff:

(a).........

(v)The Roster, 40-point or 100-point as the case may be, shall be

applied to the total number of posts in cadre only, (R.K. Sabharwal v.

State of Punjab, (AIR 1995 SC 1371); cadre is best indicated by

seniority list governing the members with same pay-scales:

(vi)..........”

The short counter affidavit further refers to letter of UGC dated

19.02.2008 (Annexure-SCA-4) addressed to all Universities requiring them

to implement reservation cadre-wise instead of department-wise/subject-

wise. The contents of this letter has already been reproduced.

The Ministry of Human Resource Development in its instructions

dated 28.02.2017 has reiterated that the guidelines about reservation is to be

followed as per the clarification issued by the UGC on 19.02.2008 which

has been filed as Annexure 10 to the writ petition and also alongwith the

short counter affidavit of the UGC as Annexure-SCA-4.

Sri Mehta, learned Additional Solicitor General has reiterated the

stand taken by the UGC. He placed before the Court the instructions dated

28.02.2017 from the Ministry of HRD to the aforesaid effect. According to

the instructions the Ministry of HRD has observed that the guidelines

framed by UGC and the clarification letter of UGC dated 19.02.2008 be

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followed. The instructions dated 28.02.2017 of the Ministry of HRD is

reproduced below:-

“F. No.1-4/2017-CU.V

Government of India

Ministry of Human Resource Development

Department of Higher Education

Shastri Bhawan, New Delhi

Dated:28.02.2017.

To,

Shri Shekar Kumar Yadav,

Senior Panel Counsel,

Union of India, High Court of Allahabad,

Ch. No.41, Allahabad.

Subject: CMWP No.43260 of 2016 (Dr. Vivekanand Tewari Vs UOI &

Ors)-reg.

Sir,

I am directed to refer to your letter dated 10.02.2017 seeking

instruction of this Ministry in the matter of CMWP No.43260 of 2016

(Dr. Vivekanand Tewari Vs. UoI & Ors), which is coming up for

hearing on 01.03.2017.

2.In the above context, I am to inform that BHU is an autonomous

organization under the purview of this Ministry which is governed by

its Act, Statues and Ordinances framed thereunder, besides the

guidelines of UGC issued from time to time.

3.The University is following reservation for SC/ST/OBC in the

post of Asst. Professor, Associate Professor and Professor cadre-wise

in terms of the prescribed guidelines of the UGC vide letter no.F.1-

8/2008 (SCT) dated 19.02.2008 which has been approved for

implementation by the Executive Council of the University vide ECR

No.15 dated 16.10.2008. In view of contention of the petitioner, BHU

has sought clarification of UGC on its letter dated 19.02.2008

regarding guidelines about the reservation.

4.This Ministry is of the view that BHU should proceed further in

the mater as per the clarification of the UGC on its letter dated

19.02.2008 about the guidelines on reservation. MHRD has no further

instruction to give in the matter of reservation.

Yous faithfully,

(Surat Singh)

Deputy Secretary to the Government of India”

Sri V.K. Upadhyay, learned Senior Counsel appearing for the BHU

submitted that the guidelines framed by the UGC and the clarification

14

communicated to the University by the UGC vide letter dated 19.02.2008

has since been adopted by the University and it is according to the said

guidelines that the reservation is being applied in the teaching posts in the

University. He further submitted that the BHU is bound by the decisions

and the directions issued by the UGC and has to strictly follow the same.

According to him, the BHU while applying the reservation to the teaching

posts in the advertisement in question has strictly followed the UGC

guidelines, therefore, no fault can be found with the same.

Before starting with the discussion on the points raised in this petition

we may record some of the ancillary and connected issues that have been

touched upon by us though they may not have been specifically pleaded by

the petitioners. Nine Judges' Bench judgment of the Supreme Court in the

case of Indra Sawhney vs. Union of India and others, reported in AIR

1993 (SC) 477 and Constitution Bench of the Supreme Court judgment in

the case of M. Nagaraj & others vs. Union of India and others, reported

in 2006 (8) SCC 212 (supra) and a few other pronouncements have

compelled us to make certain observations which we feel is the need of the

hour and would be an honest attempt and bonafide effort to adhere to and

carry forward the mandate laid down in the Constitution of India. We will

first deal with the core question involved in this petition and thereafter will

proceed to record our observations.

Learned counsel for the petitioners raised the following arguments-

(i) Rolling Advertisement No.2 of 2016-17 (Teaching and equivalent

posts) has been issued by respondent no.4, 5 and 6 by treating the

entire University (BHU) as a “Unit” for all the teaching vacancies of

Assistant Professor and thereafter by applying 100 point roster on the

vacant posts and by calculating the status of reservation on the vacant

posts. Similar analogy has been adopted by the respondents for the

post of Associate Professor / Professor.

(ii) The aforesaid methodology is against the dictum of Division

Bench of this Hon'ble Court dated 18.02.2014 passed in Writ-A

No.39334 of 2012 “Dr. Narendra Singh and others Vs. State of U.P.

15

and others” as well as other connected writ petitions, wherein a

similar issue was raised, for which this Hon'ble Court held in

unequivocal terms that University cannot be treated to be the unit for

the purpose of application of reservation and reservation has to be

applied department-wise / subject-wise.

(iii) There are number of judgments of Hon'ble Supreme Court as

well as this Hon'ble Court regarding application of 100 point roster in

Universities by treating the department / subject / discipline as a

'Unit'.

(iv) The grouping of teaching posts sanctioned in any university by

treating University as a unit for the purpose of applying reservations

is illegal, arbitrary and unjust and violates the position of law

declared by Hon'ble Supreme Court as well as this Hon'ble Court.

(v) The UGC Guidelines dated 25.08.2006 contains clause no.6(c)

and clause no.8 (a)(v), which are not only self-contradictory but are

also in violation of settled position of law regarding application of

100 point roster by treating the department / subject /discipline as a

'Unit'.

(vi) The basic requirement for applying the rule of reservation for

OBCs / SCs / STs on teaching posts is that there has to be plurality of

posts in each discipline / subject / department and such posts should

be interchangeable. Hence, in the present case as well as in the matter

of recruitment of teaching staff in any university, the aforesaid basic

requirement cannot be ignored and hence, separate disciplines /

subjects / departments cannot be clubbed to make the whole

university as a “Unit” for the post of Assistant Professor and like-

wise. Hence, each discipline / subject / department of BHU makes out

a separate “Unit” for the purpose of application of rules of

reservation.

(vii) There cannot be any difference in Central University and State

University, so far as the aforesaid principle of treating each

discipline/subject/department of BHU as separate “Unit” for the

16

purpose of application of rules of reservation is concerned. The

position of Law reiterated by the Hon'ble Supreme Court as well as

this Hon'ble Court in its various case-laws is applicable in present

case also and hence, the action on the part of respondents is

unjustified and is not in consonance with the verdict of “Indra

Sawhney Vs. Union of India and others”, reported in AIR 1993 SC

477.

(viii) An incorrect application of reservation rules by not treating

each discipline/subject/department of BHU as a separate “Unit” for

the purpose of application of rules of reservation regarding

recruitment on teaching posts substantially decreases the reasonable

opportunity of selection of petitioners, who are prospective

candidates and hence, their fundamental rights under Article 14, 16

and 21 are being violated.

(ix) The Impugned order dated 19.02.2008 as well as the impugned

Clause No.6 (c) and Clause No.8 (a) (v) of the UGC Guidelines dated

25.08.2006 issued by the respondent no.2 and the advertisement

dated 16.07.2016 issued by the respondent nos. 4, 5 and 6 violates the

constitutional bar against 100% reservation as envisaged in Article 16

(1) of the Constitution as well as the same is not in consonance with

the position of law as stated hereinabove.

In support of the above submissions made on behalf of petitioners,

the relevant case-laws are as follows :-

1.Dr. Suresh Chandra Verma & others vs. The Chancellor, Nagpur

University & others reported in AIR 1990 SC 2023

In this case, the employment notice for the posts of Lecturers in

different subjects was issued by Nagpur University, wherein total number of

reservation was mentioned category-wise but not subject-wise. The

employment notice as well as the procedure followed in making

appointments was under dispute, which was decided by the Chancellor with

an order directing the Vice-Chancellor to terminate the service of all the

appointees. The Vice-Chancellor passed order to terminate the service of all

17

the appointee and also passed order in exercise of his emergency powers

appointing all such persons on temporary basis.

The dispute came up before Bombay High Court and was referred to

the Full Bench with an issue as "Is non-reserving the posts of University

teachers subjectwise in the employment notice a breach of letter and spirit

of reservation policy contained in Section 77C read with Section 57 of the

Act?". The Full Bench framed another issue as to "whether,

notwithstanding the illegality of the general reservation, the services of

the appellants were liable to be terminated” and finally decided these

issues. On the first issue, the Full Bench held that general reservations were

in breach of the provisions of the Act and against the reservation polity and,

therefore, illegal. On the second issue, by majority the Full Bench held that

since the appointments were not according to law from the beginning, the

termination of the appellants' services was legal. Thereafter one of the

appointee Dr. Suresh Chandra Verma came up before Supreme Court

against the judgment passed by the Bombay High Court. One of the issues

dealt with by Supreme Court was that "whether the employment notice

ought to have indicated reservations post-wise (subject-wise)?". While

dealing with said issue, the Supreme Court observed in following terms in

Para no. 7 and 8:

"According to us, the word "post" used in the context has a

relation to the faculty discipline, or the subject for which it is created.

When, therefore, reservations are required to be made "in posts", the

reservations have to be postwise, i.e., subjectwise. The mere

announcement of the number of reserved posts is no better than

inviting applications for posts without mentioning the subjects for

which the posts are advertised."

The Supreme Court also considered a Full Bench Judgment of

Karnataka High Court in Dr. Raj Kumar v. Gulbarga University, ILR (1990)

Kant 2125 and held as follows:

"On behalf of the appellants reliance was also sought to be

placed on a Full Bench decision of the Karnataka High Court in Dr.

Raj Kumar v. Gulbarga University, ILR (1990) Kant 2125. We do not

see how the decision in question helps the appellants, for the Full

18

Bench has observed there that generally reservation has to be cadre-

wise and subject-wise. But an exception could possibly be made in

cases like the one of professors in which post available in each of the

subjects is only one while grouping all of them together for purposes

of reservation so that at least in the subjects in which the candidates

belonging to the reserved category are available, they could be

accommodated. It is not necessary for us in this case to express our

opinion on the correct course to be adopted when only one post is

available in a particular subject at a given time. The course to be

adopted would depend upon the unit of reservations, the period over

which the backlog is to be carried, the number of appointments

already made in the said posts, the availability of candidates from the

reserved category etc. What is material from our point of view in this

case is to point out that even the Karnataka Full Bench has taken the

view that generally reservation has to be cadre-wise and subject-wise.

It was also a case of the filling in of the vacancies in teaching posts in

a University.

We are, therefore, in complete agreement with the view taken

by the Full Bench that the employment notice dated July 27, 1984 was

bad in law since it had failed to notify the reservations of the posts

subject-wise and had mentioned only the total number of reserved

posts without indicating the particular posts so reserved subject-

wise."

The Supreme Court further held as follows:

“When, therefore, the services of the appellants are to be

terminated in view of the change in the position of law and not-on

account of the demerits or misdemeanour of individual candidates, it

is not necessary to hear the individuals before their services are

terminated. The rule of audi alterem partem does not apply in such

cases and, therefore, there is no breach of the principles of natural

justice. In the result, we are of the view that there is no merit in this

case. The appeal, therefore, stands dismissed. In the circumstances of

the case, however, there will be no order as to costs.”

With aforesaid observation, the Supreme Court dismissed the

appeal.

2.State of U. P. vs. Dr. Dina Nath Shukla reported in (1997) 9 SCC

662

In this case, an advertisement was issued by the University of

Allahabad inviting applications for posts of Professors, Readers and

Lecturers including the posts reserved for Scheduled Castes, Scheduled

Tribes and Other Backward Classes, in respect of which a clarification was

issued by the Government stating that for recruitment to the posts of

Professors, Readers and Lecturers, University or College is treated as a unit

and the recruitment would be made applying the rule of reservation for the

19

SCs, STs and OBCs in respect of all the posts. That came to be questioned

before the Division Bench of this Court, which held that the said

notification was bad in law, against which an appeal was preferred before

Supreme Court.

The two judges division bench of Supreme Court relied upon Dr.

Suresh Chandra Verma's case (supra) and held as follows:

"13. Thus, it could be seen that if the subject-wise recruitment

is adopted in each service or post in each cadre in each faculty,

discipline, specialty or super-specialty, it would not only be clear to

the candidates who seek recruitment but also there would not be an

over-lapping in application of the rule of reservation to the service or

posts as specified and made applicable by Section 3 of the Act. On the

other hand, if the total posts are advertised without subject-wise

specifications, in every faculty, discipline, specialty or super-specialty,

it would be difficult for the candidates to know as to which of the

posts be available either to the general or reserved candidates or

whether or not they fulfill or qualify the requirements so as to apply

for a particular post and seek selection."

However, the Supreme Court in addition to aforesaid conclusion,

had further held that if there is any single post of Professor, Reader or

Lecturer in each faculty, discipline, speciality or super-speciality which

cannot be reserved for reserved candidates, it should be clubbed and roster

applied and be made available for the reserved candidates in terms of

Section 3(5) of the Act. Even if there exists any isolated post, rule of

rotation by application of roster should be adopted for appointment. For

achieving the said object, the Vice-Chancellor, who is responsible authority

under Section 4 to enforce the Act, would ensure that the single posts in

each category are clubbed since admittedly all the posts in each of the

categories of Professors, Readers or Lecturers carry the same scale of pay.

Therefore, their fusion is constitutional and permissible. The Vice-

Chancellor should apply the rule of rotation and the roster as envisaged

under sub-section (5) of Section 3.

In a subsequent decision of three judges division bench Supreme

Court in State of U. P. vs. M.C.Chatopadhyay & others reported in (2004)

12 SCC 333, the aforesaid subsequent part of the judgment of Dr. Dina Nath

20

Shukla's case was held to be no longer good law in view of the Constitutional

Bench Judgment of Post Graduate Institute of Medical Education and

Research vs. Faculty Association reported in (1998) 4 SCC 1.

3.State of U. P. vs. M.C. Chatopadhyay & others reported in (2004)

12 SCC 333:

In this case, Allahabad High Court had held that there cannot be any

reservation in respect of the post of Professor in the University and this

conclusion was based upon one earlier judgment of Allahabad High Court

in Ram Niwas Pandey (Dr.) vs. State of U. P. wherein it was held that the

reservation has to be applied subject-wise and the Professors of the

Departments cannot be clubbed together and treated as one cadre for the

purpose of applying reservation. In appeal, the Supreme Court re-

considered its earlier judgment in State of U. P. vs. Dr. Dina Nath Shukla

(supra) and declared its one part to be no longer good law in view of the

Constitutional Bench Judgment of Post Graduate Institute of Medical

Education and Research vs. Faculty Association reported in (1998) 4 SCC 1.

The Supreme Court held as follows:

"2. It has been unequivocally held in the aforesaid Constitutional

Bench decision (Post Graduate Institute of Medical Education and

Reserch vs. Faculty Asso., (1998) 1 SCC 1) that there cannot be any

reservation in respect of an isolated post and the judgment of this

court in Union of India v. Madhav, (1997) 2 SCC 332 has been

overrulled on which judgment the court had relied upon in the case of

Dr. Dina Nath Shukla, (1997) 9 SCC 662."

5....... Mr. Dwivedi strenuously urged before us that there should not

be a reservation on subject-wise basis particularly taking into

account the defenition of "Cadre" in the Act and the Statute already

referred to and it should be left to the discretion of the Vice-

Chancellor to decide the question as to which one of the given posts

at a given point of time could be reserved. We are unable to accept the

said submission of the learned counsel as, in our opinion, that would

lead to uncertainty and no candidate would be able to know as to

which post is being reserved and under what consideration.

6. While, therefore, we are of the considered opinion that there can be

a reservation in respect of post of Professor and the Provisions of the

Reservation Act would apply, but the same cannot be applied taking

all the Professors as a cadre and it has to be made subject-wise, as

has been earlier construed and held by this Court. We are also of the

opinion that there cannot be a reservation for an isolated post."

21

With such observations and conclusions, the Supreme Court

disposed of the matter by observing that since the position of law has been

indicated and explained, the Vice-Chancellor of the University would act

accordingly.

4.State of Karnataka & others vs. K. Govindappa & another

reported in (2009) 1 SCC 1

In this case, there was a single post of Lecturer of History subject in

an aided private college. One K. Govindappa was appointed on the post but

approval of his appointment was rejected by the State Government on the

Ground that the appointment had been made in violation of the Roster

Policy and that he had been appointed in a post which was reserved for a

Scheduled Caste. Such decision was challenged before Karnataka High

Court, whereupon the decision of State Government was set aside by

holding that since the post of Lecturer in History was a single post, the

reservation policy would not apply to the appointment made to the said

post. The matter came up before Supreme Court, which affirmed such view

of High Court and dismissed the appeal with following observations:

"18. We have carefully considered the submissions made on

behalf of the respective parties and the decisions cited by learned

counsel in support thereof. In dealing with the issue raised in this

appeal, it has to be kept in mind that some of the earlier decisions in

Madhavi's case (supra), in the case of Suresh Chandra as J.B.

Agarwal [(1997) 5 SCC 363 and Post Graduate Institute of Medical

Education & Research v. K.L. Narasimhan, [(1997) 6 SCC 283, in

which reservation by rotation even in respect of a single post had been

approved, was subsequently overruled in the Constitution Bench

decision in the case of Post Graduate Institute of Medical Education

& Research v. Faculty Association (supra) and it was held that in no

case could reservation be made applicable in respect of a single post.

The Constitution Bench approved the views expressed in Dr.

Chakradhar Paswan's case (supra) following those expressed by the

earlier Constitution Bench in Arati Roy Choudhary's case (supra). In

view of the above, the only question which we are called upon to

consider is whether the High Court was right in treating the post of

Lecturer in History in the respondent No. 2 college as a single

isolated post forming a separate cadre in itself and not part of the

cadre of Lecturers comprising all the different disciplines taught in

the college.

19. In this regard, Mr. Hegde has explained the difference

between "post" and "cadre" and that the two expressions could not be

22

equated with each other. He has also explained that the expression

"cadre" was not synonymous with "service" and that merely because

there were single posts in the different disciplines taught in the

college, it did not mean that each post constituted a separate cadre

within the cadre of Lecturers. While there can be no difference of

opinion that the expressions "cadre", "post" and "service" cannot be

equated with each other, at the same time the submission that single

and isolated posts in respect of different disciplines cannot exist as a

separate cadre cannot be accepted. In order to apply the rule of

reservation within a cadre, there has to be plurality of posts. Since

there is no scope of inter-changeability of posts in the different

disciplines, each single post in a particular discipline has to be treated

as a single post for the purpose of reservation within the meaning of

Article 16(4) of the Constitution. In the absence of duality of posts, if

the rule of reservation is to be applied, it will offend the constitutional

bar against 100% reservation as envisaged in Article 16(1) of the

Constitution.

20. The decision in Dr. Chakradhar Paswan's case (supra),

which has been subsequently approved by the Constitution Bench in

the Post Graduate Institute of Medical Education & Research case

(supra) makes it clear that isolated and separate posts can exist

within a cadre and in case of such posts, if there was only one post,

the same could not be set apart for a reserved candidate.

21. In our view, the present case falls within the category of

single isolated posts within a cadre in respect whereof the rule of

reservation is inapplicable and the said principle has been correctly

applied by the High Court in the facts of this case. As indicated by the

High Court, each discipline which consisted of a single post will have

to be dealt with as a separate cadre for the said discipline and in view

of the settled law that there can be no reservation in respect of a

single post, the appointment of the respondent No. 1 cannot be

faulted. This is particularly so having regard to the fact that the

several disciplines are confined to one College alone. That is what

distinguishes the facts of this case from those of Arati Roy

Choudhary's case (supra) in which the rule of rotation could be

applied on account of the fact that two posts of Headmistress were

available in two colleges run by the same management. Moreover, in

Dr. Chakradhar Paswan's case (supra) on which reliance was placed

by the High Court it was noticed that while upholding the rule of

rotation the Constitution Bench in Arati Roy Choudhary's case

(supra) did not support reservation in a single cadre post.

22. We, therefore, have no hesitation in upholding the

decision of the Karnataka High Court, in the facts of this case. The

appeal, therefore, must fail, and is dismissed without any order as to

costs."

5.Pramod Madhukarrao Padole and another Vs. Chancellor,

Nagpur University & others reported in 1991 Mh L J 1487 (Full

Bench-Bombay High Court)

23

According to the facts elaborated in this judgment, this case is in

fact the second stage of controversy cropped up in Dr. Suresh Chandra

Verma & others vs. The Chancellor, Nagpur University & others (supra),

which travelled up to Supreme Court and thereafter three fresh employment

notices were issued by the Nagpur University on the basis of 100 point

roster by reserving 5 out of 18 posts of Professors for Schedule Casts, 3 out

of 18 posts of Professors for Schedule Tribes and 1 out of 18 posts of

Professors for Denotified Tribes/Nomadic Tribes and by applying

reservation like-wise for the posts of Readers and Lecturers also. This

employment notice was challenged before the Bombay High Court and on a

difference of opinion between two learned Judges, who heard eleven writ

petitions under Article 226 of the Constitution of India, the matter was

referred to the third Judge, who was called upon to decide the following

questions:

(1) Whether there can be reservation of posts in any of the

three cadres of Professors, Readers and Lecturers, where there is a

solitary post in a particular discipline.

(2) Whether the reservation to be made must be only with

reference to the posts in the cadres, available in a particular

discipline, subject only to the availability of more than one post.

(3) Whether grouping would be permissible only of the posts

and appointments, if there be more than one in a particular discipline,

or grouping can be done of the posts and appointment of a single post

together with similar single posts in different disciplines.

The learned Judge mainly relied upon the judgment of the Apex

Court in the matter of Dr. Chakradhar Paswan, (cited supra). It was held that

cadre or unit, which should be subjected to the application of the rule of

reservation, at least so far as the University is concerned, should be the

department, subject or discipline. It was observed:

“38. What, then, is a cadre? Judgments of the two learned

Judges are replete with references to the dictionary meaning and

judicial dicta as to the connotation of this expression. The expression

'cadre' need not mean the entire strength of service. It could also mean

a part of service sanctioned as a separate unit (see the interpretatiion

given by the Supreme Court to Fundamental Rule 9(4) in G. R. Luthra

vs. Lt. Governor, Delhi and others, (1975) 3 SCC 258 at 262. Again in

Dr. Chakradhar Paswan s case (supra), the Supreme Court observed:

24

"... In service jurisprudence, the term 'cadre' has a

definite legal connotation. In the legal sense, the word

'cadre' is not synonymous with 'service'. Fundamental R.

9(4) defines the word 'cadre' to mean the strength or a

service or part of a service sanctioned as a separate unit."

Interpreted in the light of the observations of the Supreme

Court in Dr. Suresh Chandra Verma 's case, the cadre or unit

which should be subjected to the application of the rule of

reservation, at least so far as the University is concerned, should

be the department, subject or discipline.

39. If it is held that the posts of Professors, Lecturers and

Readers in each department formed three distinct cadres, there would

be no difficulty in applying the reservation policy. Both the learned

Judges (Deshpande and Wahane, JJ.) are agreed in the view that

special qualifications required for holding a particular post do not,

per se, make the post an isolated post or take it out of the cadre, for

the simple reason that, though several posts may require separate

specializations, the qualification, responsibility and the pay-scales

applicable to each of the specialized course would generally be the

same, barring the specialization required. Therefore, the

specialization, per se, would not take the post out of the cadre. I

agree that it would not be proper to treat a specialized post as an

isolated post on the ground that it requires a different specialization.

All such posts would be part of a cadre and would be subject to

reservation.”

The learned third Judge, after elaborated discussion over the

Supreme Court decisions, answered the questions in the following manner:

46, (i) There cannot be reservation of posts in any of the three

cadres of Professors, Readers and Lecturers, where there is a solitary

post in a particular discipline.

(ii) Reservation must be made only with reference to the posts

in the cadres, available in a particular discipline, subject only to the

availability of more than one post.

(iii) Grouping would be permissible only of the posts and

appointments, if there be more than one in a particular discipline.

Grouping cannot be done of the posts and appointment of a single post

together with similar single post in different disciplines.

6.Dr. Raj Kumar & others vs. Gulbarga University & others reported

in AIR 1990 Kant 320 (Full Bench-Karnataka High Court)

In this writ petition, the petitioners had questioned the legality of the

notification issued by the Gulbarga University established under the

provisions of the Karnataka State Universities Act, 1976 ('the Act' for

short), inviting applications for selection for appointment to 35 teaching

25

posts on the establishment of the University on the ground that out of 35

posts as many as 33 are reserved in favour of persons belonging to

backward classes and only two posts are made available for general merit

and therefore the reservation was violative of Arts. 14and 16 of the

Constitution of India.

The Full Bench of Karnataka High Court, while deciding the

controversy has held as follows:

“31. The next question for consideration is, as to whether in

respect of categories of Professors, Lecturers or Readers, as the case

may be, if there is only one post, could there be reservation at all. As

far as this aspect is concerned, the matter is no longer res integra.

The question is concluded by the decision of the Supreme Court in the

case of Chakradhar (1988) IILLJ 66 SC. The relevant paragraph 16

of the judgment reads :

"16. It is quite clear after the decision in

Devadasan's case that no reservation could be made under

Art. 16(4) so as to create a monopoly. Otherwise, it would

render the guarantee of equal opportunity contained in

Arts.16(1) and 16(2) wholly meaningless and illusory. These

principles unmistakably lead us to the conclusion that 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), pre-supposes the availability of at least more

than one post in that cadre."

In the above paragraph, the Supreme Court has ruled that in

respect of cadres where there is only one post, it does not admit of any

reservation at all.

32. The next question for consideration is about the method

which should be adopted in providing reservation for the cadres of

Professors, Readers and Lecturers for, though these posts are in

different subjects they any same designation and pay scale. Therefore

the question is as to whether reservation has to be worked out in

respect of such cadres separately. This question is also no longer res

integra. This Court in the case of Dr. Krishna v. State of Karnataka

ILR (1986) Kar 255 has held that in the case of teaching cadres

though the designation and pay scale of the posts of Professors,

Readers and Lecturers in different subjects are one and the same, still

having regard to the fact that the posts of Professors, Readers and

Lecturers in each of the subject is distinct and separate, each subject

has to be treated as independent unit for the purpose of recruitment

and reservation. The said view stands confirmed by the decision of the

Supreme Court in the case of Chakradhar (1988) IILLJ 66 SC . In

26

view of this position in law, the only reasonable method of giving

effect to reservation in the cadres in which the number of posts

available is smaller is by way of providing a reasonable roster. In

fact, in view of the judgment of this Court in Krishna, the State

Government by its order dated 28-1-1987 (Annexure-R1) prescribed a

100 point roster. The first 10 points prescribed are : (1) Scheduled

Caste, (2) Scheduled Tribe, (3) General Merit, (4) Group-A of the

backward classes, (5) Group-B of the Backward classes, (6)

Scheduled Caste, (7) General Merit, (8) Group 'C' of the backward

classes, (9) Group 'D' of the backward classes and (10) General Merit

and the roster continues up to 100 points. As number of posts

available in each of the departments in each of the cadres is generally

less than ten, and once a person is appointed against a vacancy,

normally he continues in service for several years, it appears to us

that 100 point roster is Unwieldy because, for the completion of the

roster it might take a few centuries. The validity of that order is not

challenged in this petition. We should, however, observe that it would

be reasonable to fix the roster for points as minimum as possible for

cadres in which the posts avail-I able are only a few and therefore the

roster requires to be reviewed and modified.

Whatever that may be, in view of the decision in the case of

Chakradhar, if there is only one post in the cadre of Professor or

Reader or Lecturer in any subject, there can be no reservation at all.

7.Dr. Ram Niwas Pandey vs. State of U.P. & others reported in (1996)

3 UPLBEC 1869

In this case, a batch of writ petitions came up for consideration

before Division Bench of Allahabad High Court, wherein few questions

were formulated, in which the question relevant for present controversy is

being quoted herein below:

“(2) Whether all the posts of Professors in various

departments can be clubbed together and treated as one cadre for the

purposes of U.P. Act No. 494 providing for reservation?

Relying upon the decision of Supreme Court in Dr. Suresh Chandra

Verma's case (Supra) and one another judgment of Allahabad High Court,

the division bench of this court held as follows:

"Thus, in view of the decision in the case of Dr. Suresh

Chandra Verma (supra) and the Division Bench case, mentioned

above, it is clear that the reservation has to be applied subject wise

and the Professors of all the departments cannot be clubbed together

and treated as one cadre for the purposes of applying reservation.

Thus, it is held that the advertisement issued in the year 1995 cannot

be upheld and is liable to be quashed."

8.Dr. Smt. Anupma Sharma vs. State of U.P. & others reported in

27

2009 (4) AWC 3967

In this case, division bench of this court was dealing with the

grievance of petitioner that the post of Reader in Political Science as

notified in the advertisement cannot be said to be reserved category post

being the single cadre post but the same was opposed by the respondents

saying that the posts of Lecturer, Reader and Professor can be clubbed

together and form a "cadre" for such purpose, hence, any of such posts

within such cadre can be reserved.

The division bench of this court held as follows:

“We find that initially in [(1997) 9 SCC 662], State of U.P. vs.

Dr. Dina Nath Shukla it was held that when such posts form a cadre

subject wise then rule of reservation will be applicable but thereafter

in [(2004) 12 SCC 333] State of U.P. & others vs.

M.C.Chattopadhyaya and others three Judges' Bench of Supreme

Court has held that the conclusions of Supreme Court in the case of

Dr. Dina Nath Shukla (supra) is no longer good law in view of the

Constitution Bench judgment reported in [(1998) 4 SCC 1] Post

Graduate Institute of Medical Education & Research vs. Faculty

Association and others and therefore, we have further checked up and

ultimately found that the latest view on the point is similar. Following

the ratio propounded by 5 Judges' Constitution Bench recently it has

been held in [(2009) 1 SCC 1] State of Karnataka and others vs.

K.Govindappa and another as follows:

"The expressions "cadre", "post" and "service" cannot

be equated with each other, but at the same time the

submission that single and isolated posts in respect of

different disciplines cannot exist as a separate cadre cannot

be accepted. In order to apply the rule of reservation within a

cadre, there has to be plurality of posts. Since there is no

scope of interchangeability of posts in the different disciplines,

each single post in a particular discipline has to be treated as

a single post for the purpose of reservation within the

meaning of Article 16(4) of the Constitution. In the absence of

duality of posts, if the rule of reservation is to be applied, it

will offend the constitutional bar against 100% reservation as

envisaged in Article 16 (1) of the Constitution."

Therefore, in totality, we find that impugned

advertisement cannot be sustained, hence, it is set aside to be

issued afresh in future keeping eyes open with regard to the

judgments of this Court as well as the apex Court. Accordingly,

the writ petition is disposed of, however, without any order as to

cost.”

9.Dr. Vishwajeet Singh & others vs. State of U. P. & others reported

28

in 2009 (3) AWC 2929

In this case, a batch of writ petitions were decided by the division

bench of this Court with leading petition of Dr. Vishwajeet Singh and

others, wherein petitioners of the writ petition, who were four in numbers

claimed to be duly qualified for appointment on the post of Lecturer in

Graduate / Post Graduate Colleges in the State of U.P., had challenged the

advertisement No. 37 dated 9.7.2003 published on 16.7.2003 and had also

prayed for quashing of the relevant Government orders. By advertisement

No. 37, the U.P. Higher Education Service Commission had advertised 838

posts of Lecturers in different subjects in various Post Graduates/Graduate

Colleges in the State of U.P. by special recruitment to fill up the carry

forward and backlog vacancies of reserved categories candidates. All the

posts in different subjects were shown to be reserved for Scheduled Castes,

Schedule Tribes and Other Backward Classes. The advertisement was

mentioning number of vacancies in different subjects. The applications

were called separately for different subjects. The advertisement was further

mentioning that guidelines and list of the colleges shall be made available

along with the application form. The Government order dated 3.7.2002 was

issued for filling up the backlog vacancies of reserved category candidates

referring to U.P. Public Services (Reservation of Scheduled Castes,

Schedule Tribes and Other Backward Class Amendments) Ordinances 2003

(U.P. Ordinance No. 2 of 2002). The Government order was mentioning

that calculation of reserved vacancies shall be made not on the basis of

vacancies but on the cadre strength. Along with other grievances,

petitioner's case in the writ petition was that the entire cadre cannot be taken

as a unit for computing reservation for applicability of U.P. Public Services

(Reservation of Scheduled Castes, Schedule Tribes and Other Backward

Classes) Act, 1994 (hereinafter referred to as 1994 Act).

The division bench of this court framed few issues and it would be

in fitness of things to reproduce the same which is as follows:

(i) Whether 467 vacancies, which were available because of

retirement, resignation and death up to 30.6.2003, could have been

29

included and reserved for Scheduled Castes, Schedule Tribes, Other

Backward Classes only along with 371 carry forward vacancies in

advertisement No. 37 of 2003 ?

(ii) Whether 467 vacancies were rightly reserved only for

Scheduled Castes, Schedule Tribes, Other Backward Classes without

they having been earlier advertised or offered to General Category

candidates ?

(iii) What is a unit for applying the Rules of Reservation

according to 1994 Act and the roster framed thereunder ?

(iv) Whether the reservation is to be applied by

consolidating all the vacancies of the Lecturers in different

degree colleges/ postgraduate colleges ?

(v) Whether in case, each college is treated to be a

separate unit, the reservation is to be applied by clubbing all

the sanctioned posts of Lecturers in a college or the reservation

and roster are to be applied subject-wise ?

(vi) Whether advertisement No. 37 is in accordance with

1994 Act and whether the number of carry forward vacancies i.e.

371 have been correctly determined ?

(vii) What is the minimum number of posts in a cadre for

applicability of roster issued under sub section (5) of Section 3 of

1994 Act?

The issue no.(iii) and (v) are relevant to the present controversy and

as such, the determination of the division bench of this court on these issues

was consolidated by dealing issue no. 3, 4 and 5 being inter-related, which

is being reproduced hereinafter:

“From the above mentioned discussions, it is amply clear that

it is now well settled by various pronouncements of the apex Court

that in a State University, the provisions of U.P. Public Services

(Reservation of Scheduled Castes, Schedule Tribes And Other

Backward Classes) Act, 1994 have to be applied not by clubbing all

the posts of Lecturers, Readers or Professors but reservation has to

be applied subject-wise. Although all the post of lecturers in a

university are in a common pay scale but that cannot be basis for

clubbing of the posts of Lecturers and applying the reservation and

roster on all the posts together rather the reservation has to be

applied subject-wise. The question to be answered is as to whether,

while applying the reservation in the post of Lecturers in post

graduate colleges and degree colleges affiliated to different

universities governed by the provisions of U.P. State Universities Act,

1973, the same principle of applying the reservation i.e. subject-wise,

college-wise are to be adopted or as contended by learned Additional

Advocate General and counsel appearing for the U.P. Higher

Education Services Commission, reservation has to be applied by

30

clubbing all the posts of lecturers together.

............................

............................

The apex Court by its pronouncements in the cases of Dr.

Suresh Chandra Verma, Dr. Dina Nath Shukla and State of U.P. Vs.

M.C. Chattopadhyaya (supra) has laid down that the posts of

Lecturers in a University cannot be clubbed together for the purpose

of applying reservation and roster and the reservation and roster in

the post of Lecturers have to be applied subject-wise. Thus, each

subject of study has been treated to be a unit for applying the rules of

reservation. As noticed above, the petitioners have advocated for

applying the same principle regarding reservation, which has been

accepted in a University, whereas learned Advocate General

appearing for the respondents have made two alternative submissions

firstly; different posts in different colleges in each subject are to be

clubbed together and thereafter reservation has to be applied in the

manner as mentioned in the affidavit of Principal Secretary, Higher

Education, quoted above and in alternative if a college is treated to

be a unit, all the posts of Lecturers in a college have to be clubbed

together and reservation has to be applied as is being applied in the

Secondary institutions governed by the provisions of U.P. Secondary

Education Services Selection Board Act, 1982. For coming to a

correct conclusion, it has to be first found out as to whether concept

of Faculty, department and subject is also present in Degree colleges

or post graduate colleges as it exists in a University.

............................

............................

A person, who acquires a qualification for appointment in one

particular subject has right to participate in the selection only against

the said subject. Not applying the reservation subject-wise, will lead

to uncertainty and violation of the rights under Articles 14 and 16 of

the Constitution of India. The Division Bench of our Court in the case

of Dr. Dina Nath Shukla Vs. State of U.P. and another, reported in

1996 ALJ 1579 have laid down in paragraph 8, quoted above, that

subject wise reservation if not applied, uncertainty and serious

consequences including violation of Article 16 of the Constitution of

India shall be the result. Thus, the submission that provisions of 1994

Act shall be frustrated by accepting the submission of learned counsel

for the petitioner, cannot be accepted. 1994 Act is fully applicable in

the post of lectures in a college and its full effect shall be given but

while applying the reservation, college-wise subject-wise unit is to be

followed in view of the law laid down by the apex court in the above

mentioned judgments.

............................

............................

As noticed above, the Lecturer in different subjects required to

possess different qualifications as provided by the Statute of the

University and the posts are not interchangeable. Different subjects in

a college are in a different disciplines and post in a college is created

subject-wise. Thus, it is held that neither all the posts of one subject in

31

different colleges can be clubbed together for applying the rules of

reservation nor all the post of Lecturers in one college can be

grouped together for applying the reservation. The reservation

according to 1994 Act and roster thereunder, is to be applied college-

wise and subject-wise.”

While coming to such conclusions, the Division Bench of this court

considered and followed all the above noted judgments cited by petitioners

in present case and allowed the writ petitions by quashing the advertisement

and government orders.

10.Writ Petition No. 39334 of 2012 "Dr. Narendra Singh & others vs.

State of U. P. & others", Judgment dated 18.02.2014

In this case, two writ petitions were filed by the prospective

candidates for the posts of Readers and Lecturers, subject matter of the

advertisement No.1 of 2009 dated 25.07.2009 published by Dr. Bheem Rao

Ambedkar University, Agra (hereinafter referred to as the Agra University)

and the petitions raised common question of law in the matter of reservation

to be applied against posts of Readers and Lecturers. In the impugned

advertisement, the posts were clubbed together.

The division bench of this court recorded contention of petitioners

in following terms:

"The case of the petitioners is that reservation on the posts of

Lecturers and Readers, under the advertisement has been applied

treating the entire University as one unit. Having regard to the

percentage of the reservation provided under the U.P. Act No.4 of

1994 the Agra University has worked out the number of the posts to

be reserved in various departments. This according to the petitioners

is illegal inasmuch as a division Bench of this Court in the case of Dr.

Dina Nath Shukla Vs. State of U.P. and another, ALR 1996 (28) page

323 has clearly explained that reservation in the matter of the

appointment of faculty members in the University has to be applied

treating the department and subject as the unit and not the University

as a whole as the unit."

After discussing various case-laws of this court and Apex Court, this

court ultimately concluded in following terms:

"As on date the law declared by the Apex Court in the case of

Dr. Dina Nath Shukla, M.C. Chattopadhyay (supra) and Mamta Verma

holds the fields. So far as posts of Professors, Readers and Lecturers

in the University are concerned, reservation has to be applied

32

department-wise subject-wise. Therefore, the University cannot be

treated to be the unit for the purpose of application of reservation."

It is clear from the above judgments that the proposition of law laid

down consistently with regard to the application of reservation in teaching

posts of the University is that reservation is to be applied department-wise

or subject-wise treating it as a 'Unit' and not the University as a 'Unit'.

As already recorded above the reservation has been applied by way of

Executive Instructions and not by way of any Legislation. The Executive

Instructions and guidelines framed by the UGC are in direct conflict and in

violation of the law laid down by the Apex Court and different High Courts

consistently from 1990 till date. We also find that in all the cases referred

to above, the Courts have quashed the advertisements issued and

appointments made by the different Universities but in none of the cases the

guidelines framed by the University Grants Commission in 2006 providing

for reservation treating the University as a 'Unit' had been quashed. All

Universities and Institutes of higher education and learning are governed by

the policy / guidelines / directions / standards determined by the UGC. They

could be State or Central Universities and Institutes. There is no distinction

amongst them. The guidelines of UGC of 2006 impugned in this petition

also apply to all Universities in the country, be it State or Central without

any modification or variance. All the judgments delivered so far on the

question as to how reservation is to be applied in Universities and Institutes

relate to State Universities. However as the policy and guidelines issued by

UGC are the same for the State and Central managed and funded

Universities the judgments referred to above would apply with equal force

to Central University and to BHU which is a Central University. The State

of UP vide Notification No.6/2015-16/Sattar-1-2015-17(13)/1995 following

various judgments has already directed all State Universities to apply

reservation on different levels of teaching treating the department/subject as

a 'Unit'.

From the guidelines framed by the UGC regarding application of

reservation in teaching posts we find that the UGC has applied it in a

33

blanket manner. There is no consideration as to why non-interchangeable

posts have been clubbed in for treating them as a cadre/unit. No exercise

apparently has been carried out by the UGC. The direction contained in the

order of the Ministry of HRD dated 06.12.2005 did not contain any

direction to the UGC to make blanket reservation or to treat the University

as a 'unit'. UGC being the Apex body to consider the matter relating to

Universities and Institutes involved in imparting higher education ought to

have considered and taken an overall conspectus.

We may also record here that in the teaching posts, the qualifications

of teachers for each department/subject is different.

The qualification of the candidate must be possessing Master's

Degree, Ph.D, Research Work and NET (being suitability test) for the

subject for which the post is advertised. Thus for Assistant Professor of

different subjects the qualification would be in different subjects. Similarly

the qualification as per the UGC Guidelines for appointment as

Reader/Associate Professor, Professor is also in addition to the educational

qualifications the minimum prescribed period of teaching in the lower level

be it Assistant Professor, Associate Professor in the relevant subject for

which the post is available. An Assistant Professor in subject 'A' cannot be

an applicant for direct appointment as Associate Professor or Professor in

subject 'B', 'C' or 'D'. He can only apply for the post in the subject 'A'. The

seniority for becoming Head of the Department would be of the teachers in

the same subject. There is no interse competition between the teachers in

the same level of different subjects as all posts of higher level from entry

level are by way of selection. There is no such provision in the teaching

cadre in the Universities of promotion being granted on the basis of

seniority irrespective of the department or the subject. Their competition is

with candidates of their subject/department and not of different subjects.

Merely because Assistant Professor, Reader, Associate Professor and

Professor of each subject or the department are placed in the same pay-scale

but their services are neither transferable nor they are in competition with

each other. It is for this reason also that clubbing of the posts for the same

level treating the University as a 'Unit' would be completely unworkable

34

and impractical. It would be violative of Article 14 and 16 of the

Constitution.

If the University is taken as a 'Unit' for every level of teaching and

applying the roster it could result into some departments/subjects having all

reserved candidates and some having only unreserved candidates. Such

proposition again would be discriminatory and unreasonable. This again

would be violative of Article 14 and 16 of the Constitution.

Thus for all the reasons recorded above we are of the firm view that

Clause 6(c) and 8(a)(v) of the UGC Guidelines 2006 and the letter of the

UGC dated 19.02.2008 can not be sustained and are liable to be quashed

and consequently the impugned advertisement applying the reservation in

tune with the guidelines and the letter dated 19.02.2008 also deserves to be

quashed.

Sri V.K. Upadhyay, learned Senior Advocate appearing for the BHU

informed the Court that some appointments have been made during the

pendency of this petition. He submitted that such appointments may be

saved as according to him, they would not affect in any manner the category

for which such posts were earmarked even if the University issues a fresh

advertisement as per the directions issued by us treating the

department/subject as a 'Unit'.

We are not inclined to accept this request for two reasons. Firstly, the

University itself made a statement before the Court on 12.09.2016 that it

had temporarily withdrawn the Rolling Advertisement No.2 of 2016-2017

till such time instructions are received from the UGC. The order dated

12.09.2016 has already been quoted above. Although it is not recorded in

the order, but apparently as the Senior Counsel for the BHU made a

statement of temporarily withdrawing the advertisement the Court did not

pass any restraint order. Subsequently BHU republished the same

Advertisement No.02 of 2016-17 which was exactly the same as the

advertisement in question except that it carried a 'Note' mentioned in the

advertisement that any appointment made would be subject to final outcome

of the present petition. This advertisement was published on 13.12.2016.

Thereafter the University has proceeded to make the appointments.

35

We are of the view that the University ought not to have proceeded in

such a manner as it would amount to overreaching and by-passing the Court

proceedings. BHU did not take any permission from the Court nor did it

inform the Court that it was proceeding in this manner. We therefore find

ourselves unable to approve this conduct of the University.

The other reason is that the University has not placed any details of

the department, the posts and the teachers appointed. No affidavit has been

filed by the University placing such facts on record. We have no idea as to

how many appointments have been made, on which posts and in which

department. We, therefore, merely on the statement given cannot allow such

appointments to continue. The appointments, in our opinion, made during

the pendency of the writ petition have to necessarily go for the above

reasons.

There is yet another reason why the request of University Counsel

cannot be accepted. As we have held that the relevant clauses of the policy

viz. 6(c) and 8(a)(v) of the UGC dated 25.08.2006 as also the letter of the

UGC dated 19.02.2008 to be unsustainable the entire advertisement in

question relating to teaching posts has to be quashed. Further as we have

held that the advertisement published by the BHU was in violation of the

settled law and it also being arbitrary, unreasonable, unworkable by

applying the reservation on teaching posts treating the University as a 'Unit'

for the different level of teachers and not the department/subject as a 'Unit

we are of the view that the entire advertisement has to go. There can be no

two yardstick to apply reservation in different departments. We are of the

view that confining the relief only to the respective subjects/departments for

which the petitioners are the applicants and allowing the posts in the

remaining subjects/departments of the University to be filled up treating the

University as a 'Unit' would create further complication and would not only

be impracticable, unworkable but also unfair and unreasonable. We are also

directing the University to apply the reservation policy afresh in the light of

the settled law. The University has to carry out fresh exercise of calculating

the reservation for each department/subject. The relief, in our opinion,

cannot be confined only to the department/subject in which the petitioners

36

are the applicants.

Accordingly the writ petition succeeds and is allowed. The impugned

Rolling Advertisement No.02/2016-2017, in so far as it relates to the

teaching posts is quashed. Any appointment on teaching posts made

pursuant to the said advertisement are also quashed. We also quash Clause

6(c) and 8(a)(v) of the Guidelines framed by the UGC and circulated vide

covering letter dated 25.08.2006 and also its letter dated 19.02.2008.

Further we direct the respondent University to carry out the exercise

of applying the reservation to the posts under advertisement treating the

department/subject as a 'Unit' for all levels of teachers and thereafter

publish the fresh advertisement and then proceed for selection and

appointment.

There shall be no order as to costs.

Having gone through the judgments in the case of Indra Sawhney

(supra), M. Nagaraj (Supra) and a couple of other judgments, before

parting we would like to share a few thoughts which crossed our mind.

We now come to the larger question involved with regard to the

reservation being applicable to teaching positions in higher education. It

needs no elaboration that the Universities impart education and learning of

higher level. It is only at the level of the higher education that the research

work is also carried out and large number of projects are also undertaken

which are sanctioned not only by the Ministry of Human Resource

Development, UGC but also by the department of Science and Technology

and other national council set up in the field of Science and Research. The

Universities also have departments of electronics, atomic energy, advance

medical science. The core issues in this regard are as follows-

1.Exercise, if any, undertaken by the Central Government as to

whether reservation is a must in teaching posts of higher

education, learning and research?

2.Whether there is any need to apply reservation in a blanket

way without identifying the posts, departments and subjects?

3.Whether any exercise has been undertaken to review/revise the

37

impact and effect of the reservation having continued for

decades together?.

4.Whether Executive Instructions should be treated to be

adequate and sufficient compliance of the enabling provisions

mentioned in Article 16(4) of the Constitution?

5.Whether the observations made by the nine Judges judgment in

the case of Indra Sawhney and the Constitution Bench in the

case of M. Nagaraj and others can be ignored by the State?

6.Whether the State has acted bonafide in not paying any heed to

the observations in the aforesaid judgments for not undertaking

any exercise as observed by the Supreme Court?.

Sri Ashok Mehta, learned Addl. Solicitor General, objected to our

considering the matter any further beyond the pleadings on record.

According to him there is neither any pleading, nor any foundation laid in

the petition nor any relief claimed in this regard by the petitioners as such

this Court may confine to the pleadings and material on record.

We are conscious of our powers and scope. We indicated that we are

not issuing any mandamus or direction but only wish to remind the

respondents. Despite the fact that there are no pleadings or relief claimed

for this part of our consideration, we find ourselves unable to completely

ignore this aspect of the matter. We leave it to the discretion and wisdom of

the respondents to deal with this aspect of the matter as may be advised.

There can be no issue with regard to the powers of the State to make

provisions for reservation to appointments or posts in favour of any

backward class citizen as the same has been conferred by Article 16(4) of

the Constitution. Merely because the word 'provision' has been used in

Article 16(4) can it be said that the State is free to issue executive directions

for applying reservation in a blanket manner to all the posts for service

under the State.

There is no issue left for adjudication to hold whether Article 16(4) is

mandatory provision or enabling provision. It has already been held in

numerous cases that Article 16(4) is only enabling and not mandatory. On

the other hand it has also been held that the provisions of Article 16(1) and

38

16(2) have mandatory force. If this is legal and settled position then is the

State not required to carry out the exercise, deliberate upon and after due

application of mind and for justifiable reasons apply reservation for

backward class citizens in service where they are not adequately

represented. The posts on which reservation is to be applied also needs to be

identified, considering the relevant observation in various pronouncements.

In respect of present controversy, the relevant observation of

Supreme Court in various case-laws in respect of reservation in connection

of merit are as follows:

Indra Sawhney's case:

In realisation of the constitutional mandate for affirmative action

enshrined in Articles 14, 15 (4), 16 (4), 338 (10) and 340 (1) and in the light

of Article 46 of the Constitution of India, the Second Backward Classes

Commission, commonly known as "Mandal Commission", was set up in the

year 1979 and its report was submitted on 31.12.1980, which was tabled

and discussed in Parliament till 1990 and on 07.08.1990, the Central

Government made announcement to accept the recommendation of Mandal

Commission to provide reservation of 27 percent of the jobs in all Central

Government offices and public institutions. Thereafter, two Office

Memorandums dated 13.08.1990 and 02.09.1991 were issued by the Central

Government. In the backdrop of widespread unrest among the public at

large, especially among students, in every part of the country, the Supreme

Court took up the task to settle the legal position on reservations in the case

of Indra Sawhney etc. vs. Union of India and others, etc. reported in AIR

1993 (SC) 477 : 1992 (Supp. 3) SCC 217. A nine Judges Constitutional

Bench (Comprising M. H. Kania. CJI, Kuldip Singh, P.B. Sawant, M.N.

Venkatachaliah, A.M. Ahmadi, T.K. Thommen, S.R. Pandian, R.M.

Sahai, B.P. Jeevan Reddy) delivered judgment dated 16.11.1992, wherein

the Supreme Court settled the legal position on various aspects of

reservation including the outer limit thereof. The office memorandums

issued by the Central Government and various constitutional issues were

under consideration before the Supreme Court.

39

With the majority view, Justice B. P. Jeevan Reddy (for himself and

the Chief Justice M. H. Kania, Justice M. N. Venkatachaliah, Justice A.

M. Ahmadi) delivered common judgment and Justice P.B. Sawant delivered

concurring judgment and it was held that the first office memorandum is

valid and enforceable, subject to the exclusion of the creamy layer from the

notified socially and educationally backward classes as per clause (i) of the

second office memorandum on preference to the proper sections and clause

(ii) on 10 percent reservations for economically backward sections as

invalid.

While the minority view, Justice S. R. Pandian held the first office

memorandum as valid in toto and both clauses of the second office

memorandum as invalid.

While the minority view, Justice T.K. Thommen, Kuldip Singh and

R.M. Sahai held both the office memorandums as invalid for want of

convincing proof of proper identification of the Other Backward Classes by

recourse to relevant criteria.

While upholding reservation policy in the said judgment, the

Constitutional Bench fixed the outer limit of reservation as 50 percent. The

Constitutional Bench dealt with various aspects of reservation, one of such

aspect is requirement to maintain the merit while applying reservation. The

relevant excerpt of judgment of Indra Sawhney's case is quoted herein

below:

Excerpt of Judgment delivered by P. B. Sawant J.:

(Concurring view)

"506. While deciding upon a particular percentage of

reservations, what should further not be forgotten is that between the

backward and the forward classes, there exists a sizeable section of the

population, who being socially not backward are not qualified to be

considered as backward. At the same time they have no capacity to

compete with the forwards being educationally and economically not as

advanced. Most of them have only the present generation acquaintance

with education. They are, therefore, left at the mercy of chance-crumbs

that may come their way. They have neither the benefit of the statutory

nor of the traditional in-built reservations on account of the unequal

social advantages. It is this section sandwiched between the two which

is most affected by the reservation policy. The reservation-percentage

40

has to be adjusted to meet their legitimate claims also.

507. In this connection, one more fact need to be considered from

a realistic angle. A mechanical approach in keeping reservations in all

fields and at all levels of administration and that too at a uniform

percentage is unrealistic. There is no reason why the authorities

concerned should not apply their mind and evolve a realistic policy in

this behalf. There are fields and levels of administration where either

there may be no candidates from backward classes available or may not

be available in adequate number. In such cases, either no reservations

should be kept or reservations kept should be at an appropriate

percentage. On the other hand, in fields and at levels where the

candidates from the backward classes are available in suitable number,

the maximum permissible reservations can be kept. The adjustment of

the reservations and their percentages, field and grade-wise as well as

from time to time, as per the availability of the candidates from the

backward classes, is not only implicit in the constitutional provisions

but is also warranted for purposeful and effective implementation of the

spirit of those provisions.

508. In this connection, it is worth serious consideration whether

reservations in the form of preference instead of exclusive quota should

not be resorted to in the teaching profession in the interests of the

backward classes themselves. Education is the source of advancement

of the individual in all walks of life. The teaching profession, therefore,

holds a key position in societal life. It is the quality of education

received that determines and shapes the equipment and the competitive

capacity of the individual, and lays the foundation for his career in life.

It is, therefore, in the interests of all sections of the society - socially

backward and forward-and of the nation as a whole, that they aim at

securing and ensuring the best of education. The student whether he

belongs to the backward or forward class is also entitled to expect that

he receives the best possible education that can be made available to

him and correspondingly it is the duty and the obligation of the

management of every educational institution to make sincere and

diligent efforts to secure the services of the best available teaching

talent. In the appointments of teachers, therefore, there should be no

compromise on any ground. For as against the few who may get

appointments as teachers from the reserved quota, there will be over the

years thousands of students belonging to the backward classes

receiving education whose competitive capacity needs to be brought to

the level of the forward classes. What is more, incompetent teaching

would also affect the quality of education received by the students from

the other sections of the society. However, whereas those coming from

the advanced sections of the society can make up their loss in the

quality of education received, by education at home or outside through

private tuitions and tutorial classes, those coming from the backward

classes would have no means for making up the loss. The teachers

themselves must further command respect which they will do more

when they do not come through any reserved quota. The indiscipline in

the educational campus is not a little due to the incompetence of the

teachers from whatever section they may come, forward or backward .

It is, therefore, necessary that there should be no exclusive quota kept in

41

the teaching occupation for any section at all. However, if the

candidates belonging to both backward and forward classes are equal

in merit, preference should be given to those belonging to the backward

classes. For one thing, they must also have a "look into" the teaching

profession as in other professions. Secondly, in this vital profession

also, the talent, the social experience and the new approach and

outlook of the members of the backward classes is very much necessary.

That will enrich the profession and the national life. Thirdly, it will also

help to meet the complaints of the alleged step-motherly treatment

received by the students from the backward classes and of the lack of

encouragement to them even when they are more meritorious. Hence in

the teaching profession, it is preference rather than reservation, which

should be resorted to under Article 16(4) of the Constitution. A

precaution, however, has to be taken to see that the selection body has a

representation from the backward classes.

509. It must, however, be added that in judging the merits of the

individuals for the profession of teaching as for any other profession, it

is not the traditional test of marks obtained in examinations, but a

scientific test based, among other things, on the aptitude in teaching,

the capacity to express and convey thoughts, the scholarship, the

character of the person, his interest in teaching, his potentiality as a

teacher judged on the considerations indicated generally at the outset,

should be adopted.

510. What is stated that regard to the teaching profession above is

only by way of an illustration as to how the policy of reservation if it is

to subserve its larger purpose can be modulated and applied rationally

to different fields instead of clamping it mechanically in all the fields or

withholding it from some areas altogether. It is not meant to lay down

any proposition of law in that behalf."

Extract of common Judgment delivered by Justice B. P. Jeevan Reddy

(for himself and the Chief Justice M. H. Kania, Justice M. N.

Venkatachaliah, Justice A. M. Ahmadi):

(Majority view)

"Question No. 8: Whether Reservations are anti -meritarian?

832. In Balaji (AIR 1963 SC 649) and other cases, it was assumed

that reservations are necessarily anti-meritarian. For example, in

Janaki Prasad Parimoo (AIR 1973 SC930) it was observed, "it is

implicit in the idea of reservation that a less meritorious person be

preferred to another who is more meritorious." To the same effect is the

opinion of Khanna, J. in Thomas (AIR 1976 SC 490), though it is a

minority opinion. Even Subba Rao, J. who did not agree with this view

did recognise some force in it. In his dissenting opinion in Devadasan

(AIR 1964 SC 179), while holding that there is no conflict between

Article 16(4) and Article 335, he did say, " it is inevitable in the nature

of reservation that there will be a lowering of standards to some

extent", but, he said, on that account the provision cannot be said to be

42

bad, inasmuch as in that case, the State had, as a matter of fact,

prescribed minimum qualifications, and only those possessing such

minimum qualifications were appointed. This view was, however, not

accepted by Krishna lyer, J. in Thomas. He said efficiency means, in

terms of good Government, not marks in examinations only, but

responsible and responsive service to the people. A chaotic genius is a

grave danger to public administration. The inputs of efficiency rule

include a sense of belonging and of accountability (not pejoratively

used) if its composition takes in also the weaker segments of "We, the

people of India". No other understanding can reconcile the claim of a

radical present and the hangover of the unjust past."

833. A similar view was expressed in Vasant Kumar (AIR 1985 SC

1495) by Chinnappa Reddy, J. The learned Judge said "the mere

securing of high marks at an examination may not necessarily mark out

a good administrator. An efficient administrator, one takes it, must be

one who possesses among other qualities the capacity to understand

with sympathy and, therefore, to tackle bravely the problems of a large

segment of population constituting the weaker sections of the people.

And, who better than the ones belonging to those very sections? Why

not ask ourselves why 35 years after Independence, the position of the

Scheduled Castes etc. has not greatly improved? Is it not a legitimate

question to ask whether things might have been different, had the

district administrators and the State and Central Bureaucrats been

drawn in larger numbers from these classes? Courts are not equipped

to answer these questions, but the courts may not interfere with the

honest endeavours of the Government to find answers and solutions.

We do not mean to say that efficiency in the civil service is unnecessary

or that it is a myth. All that we mean to say is that one need not make a

fastidious fetish of it."

834. It is submitted by the learned counsel for petitioners that

reservation necessarily means appointment of less meritorious persons,

which in turn leads to lowering of efficiency of administration. The

submission, therefore, is that reservation should be confined to a small

minority of appointments/ posts, - in any event, to not more than 30%,

the figure referred to in the speech of Dr. Ambedkar in the Constituent

Assembly. The mandate of Article 335, it is argued, implies that

reservations should be so operated as not to affect the efficiency of

administration. Even Art. 16 and the directive of Art. 46, it is said,

should be read subject to the aforesaid mandate of Art. 335.

835. The respondents, on the other hand, contend that the marks

obtained at the examination/ test/ interview at the stage of entry into

service is not an indicia of the inherent merit of a candidate. They rely

upon the opinion of Douglas, J. in Defunis (1974 (40) Law Ed 2d 164)

where the learned Judge illustrates the said aspect by giving example

of a candidate coming from disadvantaged sections of society and yet

obtaining reasonably good scores - thus manifesting his "promise and

potential" - vis-a-vis a candidate from a higher strata obtaining higher

scores. (His opinion is referred to in para 44). On account of the

disadvantages suffered by them and the lack of opportunities, - the

Respondents say - members of backward classes of citizens may not

43

score equally with the members of socially advanced classes at the

inception but in course of time, they would. It would be fallacious to

presume that nature has endowed intelligence only to the members of

the forward classes. It is to be found everywhere. It only requires an

opportunity to prove itself. The directive in Art. 46 must be understood

and implemented keeping in view these aspects, say the Respondents.

836. We do not think it necessary to express ourselves at any

length on the correctness or otherwise of the opposing points of view

referred to above. (It is, however, necessary to point out that the

mandate -- if it can be called that - of Article 335 is to take the claims

of members of SC/ST into consideration, consistent with the

maintenance of efficiency of administration. It would be a misreading

of Article to say that the mandate is maintenance of efficiency of

administration.) May be, efficiency, competence and merit are not

synonymous concepts; May be, it is wrong to treat merit as synonymous

with efficiency in administration and that merit is but a component of

the efficiency of an administrator. Even so, the relevance and

significance of merit at the stage of initial recruitment cannot be

ignored. It cannot also be ignored that the very idea of reservation

implies selection of a less meritorious person. At the same time, we

recognise that this much cost has to be paid, if the, constitutional

promise of social justice is to be redeemed. We also firmly believe that

given an opportunity, members of these classes are bound to overcome

their initial disadvantages and would compete with - and may, in some

cases, excel - members of open competitor candidates. It is undeniable

that nature has endowed merit upon members of backward classes as

much as it has endowed upon members of other classes and that what

is required is an opportunity to prove it. It may not, therefore, be said

that reservations are anti-meritian. Merit there is even among the

reserved candidates and the small difference, that may be allowed at

the stage of initial recruitment is bound to disappear in course of time.

These members too will compete with and improve their efficiency

along with others.

837. Having said this we must append a note of clarification. In

some cases arising under Art. 15, this court has upheld the removal of

minimum qualifying marks, in the case of Scheduled Caste/Scheduled

Tribe candidates, in the matter of admission to medical courses. For

example, in State of M.P. v. Nivedita Jain (1982) 1 SCR 759: AIR 1981

SC 2045) admission to medical course was regulated by an entrance

test (called PreMedical Test). For general candidates, the minimum

qualifying marks were 50% in the aggregate and 33% in each subject.

For Scheduled Caste/ Scheduled Tribe candidates, however, it was 40%

and 30% respectively. On finding that Scheduled Caste Scheduled

Tribe candidates equal to the number of the seats reserved for them did

not qualify on the above standard, the Government did away with the

said minimum standard altogether. The Government's action was

challenged in this court but was upheld. Since it was a case under Art.

15, Art. 335 had no relevance and was not applied. But in the case of

Art. 16, Art. 335 would be relevant and any order on the lines of the

order of the Government of M.P. (in Nivedita Jain) could not be

permissible, being inconsistent with the efficiency of administration. To

44

wit, in the matter of appointment of Medical Officers, the Government

or the Public Service Commission cannot say that there shall be no

minimum qualifying marks for Scheduled Caste/ Scheduled Tribe

candidates, while prescribing a minimum for others. It may be

permissible for the Government to prescribe a reasonably lower

standard for Scheduled Castes/ Scheduled Tribes / Backward Classes -

consistent with the requirements of efficiency of administration --- it

would not be permissible not to prescribe any such minimum standard

at all. While prescribing the lower minimum standard for reserved

category, the nature of duties attached to the post and the interest of the

general public should also be kept in mind.

838. While on Art. 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 may 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 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.

839. As a matter of fact, the impugned Memorandum dated 13th

August, 1990 applies the rule of reservation to "civil posts and services

under the Government of India" only, which means that defence forces

are excluded from the operation of the rule of reservation though it may

yet apply to civil posts in defence services. 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 may not be advisable for the

reason indicated hereinbefore. Some of them are : (1) Defence Services

including all technical posts therein but excluding civil posts. (2) All

technical posts in establishments engaged in Research and

Development including those connected with atomic energy and space

and establishments engaged in production of defence equipment. (3)

Teaching posts of Professors - and above, if any. (4) Posts in super-

specialities in Medicine, engineering and other scientific and technical

subjects. (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 the impugned Office Memorandum

dated 13th August 1990 cannot be stayed or withheld.

840. 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."

45

Faculty Association of AIIMS vs. Union of India & Ors. reported in 2013

(10) JT 526 : 2013 (9) Scale 198 : 2013 (5) Supreme 360 :

The issue of merit vis a-vis reservation came up for consideration

before Supreme Court again in this judgment, for which 5 judges

Constitutional Bench (Altamas Kabir; CJI, Surinder Singh Nijjar J., Ranjan

Gogoi J., M.Y.Eqbal J., Vikramajit Sen J.) delve into the requirement of

merit for speciality and super-speciality faculty posts in the All India

Institute of Medical Sciences. The relevant excerpt of the judgment, which

may throw light to the aspect being considered by this Court in present

matter, is being quoted herein below:

"2. Although the matter is now before a Bench of five Judges, the

terms of reference are not very clear. From what we have been able to

gather from the pleadings and the judgment of the Division Bench of the

High Court, the question to be considered is whether reservation was

inapplicable to specialty and super-specialty faculty posts in the All

India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.

Faced with the decisions of this Court in the case of Indra Sawhney v.

Union of India & Ors. [(1992) Supp. (3) SCC 215]; Jagdish Saran &

Ors. v. Union of India & Ors. [(1980) 2 SCR 831]; and Dr. Pradeep

Jain etc. v. Union of India & Ors. etc. [(1984) 3 SCR 942], wherein

reservation in admission to specialty and super-specialty courses was

disallowed, the Division Bench of the High Court confined itself to the

limited issue, namely, whether reservation policy was inapplicable for

making appointments to the entry level faculty post of Assistant

Professor and to super specialty posts and also whether the resolutions

adopted by AIIMS on 11.1.1983 and 27.5.1994 were liable to be struck

down.

..................

..................

17. Although, the matter has been argued at some length, the main

issue raised regarding reservation at the super-specialty level has

already been considered in Indra Sawhney’s case (supra) by a Nine-

Judge Bench of this Court. Having regard to such decision, we are not

inclined to take any view other than the view expressed by the Nine-

Judge Bench on the issue. Apart from the decisions rendered by this

Court in Dr. Jagadish Saran’s case (supra) and Dr. Pradeep Jain’s case

(supra), the issue also fell for considerate in Preeti Srivastava’s case

(supra) which was also decided by a Bench of Five Judges. While in Dr.

Jagadish Saran’s case (supra) and in Dr. Pradeep Jain’s case (supra) it

was categorically held that there could be no compromise with merit at

the super specialty stage, the same sentiments were also expressed in

Preeti Srivastava’s case (supra) as well. In Preeti Srivastava’s case

(supra), the Constitution Bench had an occasion to consider Regulation

27 of the Post Graduate Institute of Medical Education and Research,

Chandigarh Regulations, 1967, whereby 20% of seats in every course of

46

study in the Institute was to be reserved for candidates belonging to the

Scheduled Castes, Scheduled Tribes or other categories of persons, in

accordance with the general rules of the Central Government

promulgated from time to time. The Constitution Bench came to the

conclusion that Regulation 27 could not have any application at the

highest level of super specialty as this would defeat the very object of

imparting the best possible training to selected meritorious candidates,

who could contribute to the advancement of knowledge in the field of

medical research and its applications. Their Lordships ultimately went

on to hold that there could not be any type of relaxation at the super

specialty level.

18. In paragraph 836 of the judgment in Indra Sawhney’s case

(supra), it was observed that while the relevance and significance of

merit at the stage of initial recruitment cannot be ignored, it cannot also

be ignored that the same idea of reservation implies selection of a less

meritorious person. It was also observed that at the same time such a

price would have to be paid if the constitutional promise of social

justice was to be redeemed. However, after making such suggestions, a

note of caution was introduced in the very next paragraph in the light of

Article 15 of the Constitution. A distinction was, however, made with

regard to the provisions of Article 16 and it was held that Article 335

would be relevant and it would not be permissible not to prescribe any

minimum standard at all. Of course, the said observation was made in

the context of admission to medical colleges and reference was also

made to the decision in State of M.P. v. Nivedita Jain [(1981) 4 SCC

296], where admission to medical courses was regulated by an entrance

test. It was held that in the matter of appointment of medical officers,

the Government or the Public Service Commission would not be entitled

to say that there would not be minimum qualifying marks for Scheduled

Castes/Scheduled Tribes candidates while prescribing a minimum for

others. In the very next paragraph, the Nine-Judge Bench while

discussing the provisions of Article 335 also observed that there were

certain services and posts where either on account of the nature of

duties attached to them or the level in the hierarchy at which they stood,

merit alone counts. In such situations, it cannot be advised to provide

for reservations. In the paragraph following, the position was made

even more clear when Their Lordships observed that they were of the

opinion that in certain services in respect of certain posts, application

of rule of reservation may not be advisable in regard to various

technical posts including posts in super specialty in medicine,

engineering and other scientific and technical posts.

19. We cannot take a different view, even though it has been

suggested that such an observation was not binding, being obiter in

nature. We cannot ascribe to such a view since the very concept of

reservation implies mediocrity and we will have to take note of the

caution indicated in Indra Sawhney’s case. While reiterating the views

expressed by the Nine-Judge Bench in Indra Sawhney’s case, we

dispose of the two Civil Appeals in the light of the said views, which

were also expressed in Dr. Jagadish Saran’s case, Dr. Pradeep Jain’s

case, Dr. Preeti Srivastava’s case. We impress upon the Central and

State Governments to take appropriate steps in accordance with the

views expressed in Indra Sawhney’s case and in this case, as also the

other decisions referred to above, keeping in mind the provisions of

47

Article 335 of the Constitution.

M. Nagaraj & Others vs. Union of India & Others reported in 2006 (8)

SCC 212 : AIR 2007 (SC) 71 :

In this case, the Constitution (Eighty-Fifth Amendment] Act, 2001

inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995

providing reservation in promotion with consequential seniority was

challenged as being unconstitutional and violative of the basic structure.

The ground in support of challenge was that by attaching consequential

seniority to the accelerated promotion, the impugned amendment violates

equality in Article 14 read with Article 16(1). Further contention of the

petitioners in that case was that by providing reservation in the matter of

promotion with consequential seniority, there is impairment of efficiency.

The Constitutional Bench (Comprising Y.K.Sabharwal; C.J.I,

K.G.Balakrishnan J., S.H.Kapadia J., C.K.Thakker J., P.K.Balasubramanyan

J.) upheld the said constitutional amendment and rejected the petition,

however while doing so, following observations were made:

"ROLE OF ENABLING PROVISIONS IN THE CONTEXT

OF ARTICLE 14:

109. The gravamen of Article 14 is equality of treatment.

Article 14 confers a personal right by enacting a prohibition which is

absolute. By judicial decisions, the doctrine of classification is read

into Article 14. Equality of treatment under Article 14 is an objective

test. It is not the test of intention. Therefore, the basic principle

underlying Article 14 is that the law must operate equally on all

persons under like circumstances. [Emphasis added]. Every

discretionary power is not necessarily discriminatory. According to the

Constitutional Law of India, by H.M. Seervai, 4th Edn. 546, equality is

not violated by mere conferment of discretionary power. It is violated by

arbitrary exercise by those on whom it is conferred. This is the theory

of 'guided power'. This theory is based on the assumption that in the

event of arbitrary exercise by those on whom the power is conferred

would be corrected by the Courts. This is the basic principle behind the

enabling provisions which are incorporated in Articles 16(4A) and

16(4B). Enabling provisions are permissive in nature. They are enacted

to balance equality with positive discrimination. The constitutional law

is the law of evolving concepts. Some of them are generic others have

to be identified and valued. The enabling provisions deal with the

concept, which has to be identified and valued as in the case of access

vis-a-vis efficiency which depends on the fact- situation only and not

abstract principle of equality in Article 14 as spelt out in detail in

Articles 15 and 16. Equality before the law, guaranteed by the first part

48

of Article 14, is a negative concept while the second part is a positive

concept which is enough to validate equalizing measures depending

upon the fact-situation.

110. It is important to bear in mind the nature of constitutional

amendments. They are curative by nature. Article 16(4) provides for

reservation for backward classes in cases of inadequate representation

in public employment. Article 16(4) is enacted as a remedy for the past

historical discriminations against a social class. The object in enacting

the enabling provisions like Articles 16(4), 16(4A) and 16(4B) is that

the State is empowered to identify and recognize the compelling

interests. If the State has quantifiable data to show backwardness and

inadequacy then the State can make reservations in promotions keeping

in mind maintenance of efficiency which is held to be a constitutional

limitation on the discretion of the State in making reservation as

indicated by Article 335. As stated above, the concepts of efficiency,

backwardness, inadequacy of representation are required to be

identified and measured. That exercise depends on availability of data.

That exercise depends on numerous factors. It is for this reason that

enabling provisions are required to be made because each competing

claim seeks to achieve certain goals. How best one should optimize

these conflicting claims can only be done by the administration in the

context of local prevailing conditions in public employment. This is

amply demonstrated by the various decisions of this Court discussed

hereinabove. Therefore, there is a basic difference between 'equality in

law' and 'equality in fact' (See: 'Affirmative Action' by William Darity).

If Articles 16(4A) and 16(4B) flow from Article 16(4) and if Article

16(4) is an enabling provision then Articles 16(4A) and 16(4B) are also

enabling provisions. As long as the boundaries mentioned in Article

16(4), namely, backwardness, inadequacy and efficiency of

administration are retained in Articles 16(4A) and 16(4B) as

controlling factors, we cannot attribute constitutional invalidity to these

enabling provisions. However, when the State fails to identify and

implement the controlling factors then excessiveness comes in, which is

to be decided on the facts of each case. In a given case, where

excessiveness results in reverse discrimination, this Court has to

examine individual cases and decide the matter in accordance with law.

This is the theory of 'guided power'. We may once again repeat that

equality is not violated by mere conferment of power but it is breached

by arbitrary exercise of the power conferred.

APPLICATION OF DOCTRINE OF "GUIDED POWER"-

ARTICLE 335 :

111. Applying the above tests to the proviso to Article 335

inserted by the Constitution (Eighty-Second Amendment) Act, 2000, we

find that the said proviso has a nexus with Articles 16(4A) and 16(4B).

Efficiency in administration is held to be a constitutional limitation on

the discretion vested in the State to provide for reservation in public

employment. Under the proviso to Article 335, it is stated that nothing

in Article 335 shall prevent the State to relax qualifying marks or

standards of evaluation for reservation in promotion. This proviso is

also confined only to members of SCs and STs. This proviso is also

49

conferring discretionary power on the State to relax qualifying marks

or standards of evaluation. Therefore, the question before us is -

whether the State could be empowered to relax qualifying marks or

standards for reservation in matters of promotion. In our view, even

after insertion of this proviso, the limitation of overall efficiency in

Article 335 is not obliterated. Reason is that "efficiency" is variable

factor. It is for the concerned State to decide in a given case, whether

the overall efficiency of the system is affected by such relaxation. If the

relaxation is so excessive that it ceases to be qualifying marks then

certainly in a given case, as in the past, the State is free not to relax

such standards. In other cases, the State may evolve a mechanism

under which efficiency, equity and justice, all three variables, could be

accommodated. Moreover, Article 335 is to be read with Article 46

which provides that the State shall promote with special care the

educational and economic interests of the weaker sections of the people

and in particular of the scheduled castes and scheduled tribes and

shall protect them from social injustice. Therefore, where the State

finds compelling interests of backwardness and inadequacy, it may

relax the qualifying marks for SCs/STs. These compelling interests

however have to be identified by weighty and comparable data.

112. In conclusion, we reiterate that the object behind the

impugned Constitutional amendments is to confer discretion on the

State to make reservations for SCs/STs in promotions subject to the

circumstances and the constitutional limitations indicated above."

It appears to us that the various directions and observations made by

the Apex Court as noted above are yet to receive attention by the

respondents.

We, therefore, by means of this judgment wish to remind and request

the UGC which is a statutory body constituted under the University Grants

Commission Act, 1956 to examine all aspects referred to in the above

judgments of the Apex Court and submit its recommendations to the

Ministry of Human Resource Development for its consideration and

appropriate decision.

With the above request we rest our hands.

Dated:07.04.2017

RPS