R.R. Inamdar vs The State Of Karnataka

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 1495 of 2016

R R Inamdar .... Appellant(s)

Versus

State of Karnataka & Ors ....Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

This appeal arises from a judgment of a Division Bench of the High

Court of Karnataka dated 17 November 2015. The High Court, while

dismissing the Writ Appeal filed by the appellant, confirmed the judgment of

a learned Single Judge dated 1 October 2015 holding that since there was

a solitary post of a Lecturer in English, the appellant could not have been

appointed to the post on the basis of reservation and that the fifth

respondent, who was senior to the appellant, had a valid claim and

entitlement to the post.

The appeal relates to the services of the appellant and the fifth Signature Not Verified Digitally signed by SANJAY KUMAR respondent in an institution known as Sri Jagadaguru Annadaneshwari High Date: 2019.12.05 17:09:47 IST Reason:

School at Mundaragi, Gadag District of the State of Karnataka. The fifth

respondent was appointed as a teacher on 2 November 1988 and is senior 2

to the appellant, who was appointed on 1 December 1990. The appellant

belongs to a Scheduled Caste. On the retirement of the then incumbent

Lecturer in English on 31 March 2002, the post fell vacant. The appellant

was promoted to the post on 28 September 2002 on the basis of roster

points. The appointment of the appellant was approved by the Director of

Pre-University Education on 28 September 2002. The fifth respondent

challenged the approval initially by filing a writ petition before the Karnataka

High Court. By an order dated 2 March 2005, the fifth respondent was

relegated to the remedy of a revision before the Director of Pre-University

Education, Bangalore. The revision and a further review came to be

dismissed by the Director of Pre-University Education on 3 May 2006 and

by the Commissioner on 23 February 2007. The Government of Kerala

dismissed the appeal filed by the fifth respondent on 12 November 2008.

The fifth respondent then moved the High Court in a writ petition under

Article 226 which was allowed by a judgment of the learned Single Judge

dated 1 October 2015. The learned Single Judge held that the post of

Lecturer in English was a solitary post and in view of the law laid down by

this Court in State of Karnataka v K Govindappa1, the post could not have

been reserved. This view of the learned Single Judge was approved in a

writ appeal by the Division Bench on 17 November 2015 which gave rise to

the proceedings before this Court.

At the outset, it would be necessary to note that the decision of the

two-Judge Bench of this Court in K Govindappa (supra), which has been

followed by the learned Single Judge as well as by the Division Bench in

1 (2009) 1 SCC 1 3

appeal, dealt with the issue as to whether all posts of Lecturers taken

together constituted a cadre for the purpose of reservation or whether a

solitary post of Lecturer in History which was not interchangeable with other

posts constituted a separate cadre. The High Court held that the post of a

Lecturer in History could not be construed to be a cadre together with all

other posts of Lecturer. This Court noted that the Constitution Bench in

Post Graduate Institute of Medical Education and Research v Faculty

Association2 had approved the view in Dr. Chakradhar Paswan v State

of Bihar3 to the effect that there could be no reservation in respect of a

single post. This was, however, sought to be distinguished by the State in

K Govindappa (supra). This Court held:

“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.” (emphasis supplied)

The Court held that the case fell within the category of a single or

isolated post within a cadre in respect of which the rule of reservation was

inapplicable. In other words, each discipline which consisted of a single

post was required to be dealt with as a separate cadre for the said

discipline, particularly, having regard to the fact that the several disciplines

2 (1998) 4 SCC 1 3 (1988) 2 SCC 214 4

were confined only to one college.

A similar issue arose in a subsequent decision in State of Uttar

Pradesh v Bharat Singh4, where this Court held that:

“It is abundantly clear from the above that the attribute of interchangeability and transferability is missing in the case of Principals - in much the same measure as in the case of teachers, in the lower cadre. We have, therefore, no hesitation in holding that there is no cadre of Principals serving in different aided and affiliated institutions and that the Principal's post is a solitary post in an institution. Reservation of such a post is clearly impermissible not only because the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 provides for reservation based on the `cadre strength' in aided institutions but also because such strength being limited to only one post in the cadre is legally not amenable to reservations in the light of the pronouncement of this Court to which we shall presently refer.” (emphasis supplied)

We may also note at this stage that on 19 January 2017, a two-

Judge Bench of this Court in Sanjeev Kumar v State of Uttar Pradesh 5

affirmed a similar view of the Allahabad High Court, observing as follows:

“We have heard learned counsel for the parties at length. We are in agreement with the view taken in the impugned judgment. The judgment of the High Court is accordingly affirmed.

The civil appeals are accordingly dismissed. No costs.

Pending applications, if any, shall also stand disposed of.”

These decisions were sought to be distinguished by Mr S N Bhat,

learned counsel appearing on behalf of the appellant, by relying on a

circular of the State of Karnataka dated 31 May 1991. The following

provisions of the circular were in particular sought to be emphasised:

“The roster system be maintained unit-wise (i.e, one school or college is an unit even if the management is running more than one school or colleges). The roster should be maintained for the teaching and non teaching staff separately and not subject-wise as is being done now.”

4 (2011) 4 SCC 120 5 Civil Appeal Nos 6385-6386 of 2010 5

Mr Bhat urged that the above provisions would demonstrate that the

roster has to be maintained unit-wise so that each school or college would

be treated as a unit in a situation where a management is running more

than one institution. Moreover, the roster is to be maintained for the

teaching and non-teaching staff separately and not subject-wise. The

submission was that the circular dated 31 May 1991 did not fall for

consideration before the two-Judge Bench in K Govindappa (supra).

We are unable to accept the submission for more than one reason.

The circular dated 31 May 1991 is prior to the decision of the Constitution

Bench in Post Graduate Institute of Medical Education and Research

(supra). As a matter of fact, the circular is prior to the decision in K

Govindappa (supra) as well. The principle which has been enunciated by

this Court is that there can be no reservation of a solitary post and that in

order to apply the rule of reservation within a cadre, there must be a

plurality of posts. Where there is no interchangeability of the posts in

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. If this principle were not to be followed,

reservation would be in breach of the ceiling governed by the decisions of

this Court. A circular, of the nature that has been issued by the State of

Karnataka, cannot take away the binding effect of the decisions of this

Court interpreting the policy of reservation in the context of Article 16(4).

For the above reasons, we are of the view that the judgment of the

High Court cannot be faulted and is consistent with the law which has been

laid down by this Court.

6

However, in the alternative, Mr Bhat has submitted that the

appellant has continued to work as a Lecturer in English since her

appointment on 28 September 2002 and during the pendency of this

appeal, she has been protected by an order of status quo since 16

February 2016. He stated that the management has submitted a proposal

to the State of Karnataka for the appointment of the appellant to a second

post which was not acceded to by the State of Karnataka.

We would request the State of Karnataka to consider afresh the

request of the management for the creation of an additional post if such a

request falls within the parameters of the rules or regulations of the State of

Karnataka. This exercise be completed expeditiously and within a period of

two months from the date of receipt of a certified copy of this order. In the

event that it is not possible for the State of Karnataka to create another post

under its rules and regulations, the State of Karnataka shall consider, in the

alternative, the creation of a supernumerary post for such period until a

substantive post is made available, having regard to the fact that the fifth

respondent is due to attain the age of superannuation in approximately

three years and seven months from today.

Since the appellant has continued to work as a Lecturer in English

since 28 September 2002, it would be appropriate to direct that no recovery

should be made from the appellant for the period during which she has

worked. Insofar as the fifth respondent is concerned, her pay shall be fixed

notionally for the purpose of computing the salary which will be payable to

her effective from the date of her joining as Lecturer in English and in the

ultimate computation of her retiral dues on the date on which she attains 7

superannuation. We are not granting any benefits by way of payment of

arrears of salary for the period during which the fifth respondent did not

work as a Lecturer in English, since payment has already been made to the

appellant.

We further direct that the fifth respondent shall be considered for

promotion in pursuance of the directions issued by the High Court

expeditiously within one month from the date of receipt of a certified copy of

this order.

The appeal is accordingly disposed of. There shall be no order as

to costs.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [Ajay Rastogi]

New Delhi;

November 28, 2019 8

ITEM NO.101 COURT NO.8 SECTION IV-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s).1495/2016

R.R. INAMDAR Appellant(s)

VERSUS

THE STATE OF KARNATAKA & ORS. Respondent(s)

Date : 28-11-2019 This appeal was called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE AJAY RASTOGI

For Appellant(s) Mr. S. N. Bhat, AOR Mr. N.P.S. Panwar, Adv.

For Respondent(s) Mr. Chandrashekhar A. Chakalabbi, Adv.

Mr. Shiv Pandey, Adv.

Mr. Awanish Kumar, AOR Mr. Anshul, Adv.

Mr. V. N. Raghupathy, AOR Mr. Manendra Pal Gupta, Adv.

Mr. Prakash Jadhav, Adv.

UPON hearing the counsel the Court made the following O R D E R

The appeal is disposed of in terms of the signed

reportable judgment.

Pending application, if any, stands disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER

(Signed reportable judgment is placed on the file)