State Of Karnataka & Ors vs K. Govindappa & Anr

K. Govindappa & Anr. ... Respondents

With

Civil Appeal No............ of 2008 (@ SPECIAL LEAVE PETITION (C) NO.5353 of 2007)

J U D G M E N T

ALTAMAS KABIR,J.

1. Leave granted.

2. The respondent No.1, Shri K. Govindappa was

appointed as a Lecturer in History in an aided

private college owned and managed by the

Vinayaka Rural Education Society, the

respondent No.2 herein, with effect from 10th 2

July, 1994. The said college, which was

situated at Hegalavadi, Gubbi Taluk, Tumkur

District, applied for approval of the

appointment of the respondent No.1, but such

prayer was refused by the Government of

Karnataka 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 candidate.

A review petition was filed by the respondent

No.1 before the Government contending that

since there was only a single post of Lecturer

in History in the college, the reservation

policy would not apply to the said post in

which the respondent No.1 had been appointed.

As the claim of the respondent No.1 was

rejected by the Government, he filed a Writ

Petition before the Karnataka High Court

praying for quashing of the orders passed by

the Government and for a direction upon the

concerned authorities to approve his

appointment with effect from 21st July, 1994, 3

from which date he had joined his duties.

Contesting the claim of the respondent No.1 the

appellants contended before the Writ Court that

even though the Management was running only one

college, it had different disciplines for which

there were several Lecturers. It was contended

that the college had to maintain the Roster for

the purpose of making appointments after taking

into consideration the entire cadre of

Lecturers, irrespective of subjects. It was

also contended that in the college in question

there were six posts of Lecturers and hence,

the post of Lecturer in History could not be

considered as a single post.

3. The submissions made on behalf of the

appellants was rejected by the learned Single

Judge upon 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 learned

Single Judge quashed the orders passed by the

Government upon holding that the appointment of 4

the respondent No.1 was just and legal and

directed the appellants to give approval to his

appointment.

4. The matter was taken up to the Division Bench

of the High Court by the State of Karnataka and

its officers, who are also the appellants in

these proceedings. While considering the

matter, the Division Bench posed the following

two questions which it considered relevant for

the purpose of deciding the appeal, namely :-

"(1) Whether the post of lecturer in History to

which the writ petitioner was appointed was a

single post; and

(2) If the said post was a single post whether

the fourth respondent Management was bound to

reserve the post for a member of the scheduled

caste as contended by respondent No.1 to 3 in

the writ petition."

5. The Division Bench confirmed the views

expressed by the learned Single Judge and 5

relying on the decision of this Court in the

case of Dr. Chakradhar Paswan vs. State of

Bihar, [(1988) 2 SCC 214] and the Full Bench

decision of the Karnataka High Court in Dr.

Rajkumar vs. Gulbarga University, [ILR 1990

Karnataka 2125], held that the decision of the

learned Single Judge did not require any

interference.

6. The State of Karnataka and its authorities are

in appeal against the decision of the Karnataka

High Court in Writ Appeal No. 3125 of 2005

dated 27th January, 2006.

7. On behalf of the appellant, State of Karnataka,

Mr. Sanjay Hegde, learned advocate, submitted

that both the learned Single Judge and the

Division Bench of the High Court erroneously

applied the ratio of the decision in Chakradhar

Paswan's case (supra) upon holding that each

discipline in the college constituted a

separate cadre within a service in which 6

Lecturers were appointed and the isolated posts

could not be taken together for applying the

roster by rotation for reservations purposes.

Mr. Hegde urged that the posts in the different

disciplines were meant to be filled by

Lecturers who formed a cadre and each

discipline which consisted of a single post of

Lecturer did not constitute a separate cadre in

respect of the said discipline as otherwise

without applying the principle of roster

rotation, the said single post would always

have to be filled up from amongst general

candidates and a Scheduled Caste or Scheduled

Tribe candidate would always have to compete

against general candidate for such purpose

which would destroy and/or negate the very

object and purpose of Article 16(4) of the

Constitution.

8. Mr. Hegde submitted that all the posts of

Lecturers, irrespective of the subjects taught,

were treated by the college as one cadre for 7

the purpose of maintaining the roster system

for reservation of posts. However, by applying

the ratio in Chakradhar Paswan case (supra),

the High Court had quite erroneously quashed

the appointment of the respondent No.1 as

Lecturer in History which, according to the

roster, had been reserved for a Scheduled Caste

candidate.

9. It was next urged by Mr. Hegde that the

expression "cadre" could not be equated with

the expression "post" as defined in Fundamental

Rules 9 and 4, nor could the expression "cadre"

be understood as synonymous to the expression

"service". Mr. Hegde submitted that "cadre" as

defined in the Fundamental Rules refers to the

strength of a service and has no concern with

individual posts in a particular discipline

which all form part of one cadre, particularly

when all the posts in the cadre of Lecturer

pertained to the same institution. 8

10. Referring to the decision in Chakradhar

Paswan's case (supra) Mr. Hegde submitted that

the facts of the said case were unique to that

case as within the same Directorate three

separate branches of indigenous medicines,

namely, Homeopathy, Unani and Ayurvedic, were

treated as isolated and separate posts,

although, they carried the same scale of pay,

and the three separate posts of Deputy Director

of each branch could not be grouped together

for the purpose of applying the 50 point

roster. It is in that context that it was held

by this Court that isolated and separate posts

can exist in the same cadre without violating

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

11. On the other hand, Mr. Hegde referred to the

Constitution Bench decision of this Court in

the case of Arati Ray Choudhary vs. Union of

India [(1974) 1 SCC 87], where the Rule of

"carry forward" was applied in the case of a

reserved vacancy which remained unfilled. The 9

principle upheld in the said case was with

regard to two posts which were by their nature

isolated posts but belonging to the same cadre.

Although, when the first post fell vacant it

was meant to be reserved for a reserved

candidate, it was filled by a general

candidate, by applying the carry forward rule,

the subsequent vacancy had to be for a reserved

candidate even if it was a single post and

would not amount to 100% reservation so as to

offend Articles 14 and 16 of the Constitution.

12. Mr. Hegde also referred to the decision of this

Court in State of U.P. vs. Dr. Dina Nath Shukla

& Another [(1997) 9 SCC 662], where the

principle of rotation was upheld with regard to

isolated posts to give meaning to the

provisions of reservations and Articles 15(2)

to (4), 16(4) and 16(4-A) of the Constitution.

In dealing with the matters, the learned Judge

also took note of the decisions of this Court

in i) R.K. Sabharwal vs. State of Punjab, 10

[(1995) 2 SCC 745 and ii) Union of India vs.

Madhav {(1997) 2 SCC 332] where the same views

were expressed and it was reiterated that

application of the rule of rotation for filling

up a single post did not offend Articles 14 and

16(1) of the Constitution.

13. Reference was lastly made to another

Constitution Bench decision in the case of Post

Graduate Institute of Medical Education and

Research vs. Faculty Association [(1998) 4 SCC

1], wherein the views expressed in the earlier

decisions relating to reservation in a single

post again came up for consideration. Reversing

the views expressed earlier in Union of India

vs. Madhav (supra) and in other similar cases,

the Constitution Bench held that there could be

no reservation in respect of a single post

cadre as by applying the rule of rotation, the

single post could become a reserved post, which

was contrary to the Constitutional scheme which

did not permit 100% reservation in a single 11

post. While trying to reconcile the view of

the Constitution Bench in Arati Ray Choudhary's

case (supra), it was explained that the

decision rendered therein was in the context of

the "carry forward" principle and did not

support reservation in a single cadre post.

14. Mr. Hegde submitted that since the posts of

Lecturers in the college constituted one single

cadre, only the roster principle would apply,

as had been made applicable in the instant case

and the High Court had erred in treating each

discipline as a separate unit for the purpose

of reservation. It was submitted that the

impugned orders passed by the learned Single

Judge, as also the Division Bench, were liable

to be set aside.

15. Responding to Mr. Hegde's submissions, Mr. P.P.

Singh, learned advocate, reiterated the stand

taken on behalf of the respondent No.1 before

the High Court and submitted that the post of 12

Lecturer in History being a single post, the

question of reservation did not arise as that

would amount to 100% reservation, which would

offend the constitutional mandate of Articles

14 and 16(1) of the Constitution. Mr. Singh

referred to the letter dated 28th July, 1994,

addressed to the Joint Director, Department of

Public Instruction, Bangalore Division, on

behalf of the college seeking approval of the

appointment of the respondent No.1 as permanent

Lecturer in History, wherein it had been

explained that no application for appointment

had been received from any Scheduled Tribes

candidate and that the respondent No.1 was the

only candidate for the post.

16. Mr.Singh submitted that the judgment of the

High Court was based on sound principles of law

which did not warrant any interference in the

appeal.

13

17. While adopting Mr. Singh's submissions, Ms.

E.R. Sumathy, learned advocate appearing for

the respondent No.2 college, urged that the

decision in Arati Ray Choudhary's case involved

two schools being run by the South Eastern

Railways, where plurality of posts existed

which made it possible to apply the rule of

rotation since the bar of 100% reservation

would not be applicable in the facts of the

case. Mr. Sumathy submitted that the principle

enunciated in Arati Ray Choudhury's case would

not be applicable in the instant case where

only one institution was involved and Lecturers

of such separate discipline formed a single

cadre.

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 14

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 vs. 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 vs.

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 15

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 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. 16

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.

17

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 18

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.

23. Since the question in issue in this appeal is

the same as that in Civil Appeal No. ________(@

Special Leave Petition (Civil) No.5353 of 2007-

The Government of Karnataka and another vs.

Bidarambika Vidya Samasthe Regd. & others),

which is being heard along with this appeal,

the same is also dismissed since the decision

therein was rendered in the light of the

decision in Writ Appeal No.3125 of 2005, out of

which the present appeal arises. The same is, 19

therefore, dismissed along with the instant

appeal.

________________J.

(ALTAMAS KABIR)

_________________J.

(MARKANDEY KATJU)

New Delhi Dated: November 20, 2008