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CASE NO.: Appeal (civil)  2979 of 2008

PETITIONER: SHIV PRASAD

RESPONDENT: GOVERNMENT OF INDIA & ORS

DATE OF JUDGMENT: 25/04/2008

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.  2979 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 23900 OF 2003 WITH CIVIL APPEAL NO. 2989  OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.14514 OF 2004 Dr. (Mrs.) MADHU JAIN                    \005 APPELLANTS VERSUS GOVERNMENT OF INDIA & ORS.       \005 RESPONDENTS

C.K. THAKKER, J.

1.      Leave granted. 2.      Both these appeals have been instituted by  the appellants being aggrieved and dissatisfied  with the judgment and order passed by the High  Court of Uttranchal (now Uttrakahand) on  September 18, 2003 in Writ Petition No. 802  (S/B) of 2001. 3.              Shortly stated the facts of the case  are that on August 10, 2000, Roorkee University  issued an advertisement for filling up various  vacancies in different faculties.  The  controversy in present appeals relates to the  vacancy position in the Department of  Mathematics.  As observed in the impugned  judgment of the High Court, there were six  posts of Professors (unreserved) and three  posts of Associate/Assistant Professors.  Out  of three posts, two were reserved for Scheduled  Caste candidates while one was for General  Category: Unreserved (UR).  They were to be  filled under Flexible Cadre Structure (FCS) in  accordance with reserve roaster notified by the  Government of Uttar Pradesh under whose control  the University was functioning at the relevant  time.  Appellants in both the appeals applied  in March, 2001. Interviews were conducted on  March 20, 2001.  Selection Committee met on the  next day, i.e. March 21, 2001.  It is the case  of the writ petitioner that he was selected for  the post of Associate Professor.  According to  him, respondent No. 4 (Dr. Madhu Jain) was not

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found eligible and was neither selected nor  recommended. The writ petitioner, however, did  not receive an appointment letter for quite  some time. On the contrary, he came to know  that respondent No. 4 was intimated by the  University that she was selected and being  appointed as Assistant Professor in the  Department of Mathematics. The writ petitioner  made representations. Since there was no  favourable reply, he was constrained to  approach the High Court by filing a writ  petition. The Division Bench of the High Court  by the order impugned in the present appeals,  allowed his petition, set aside the appointment  of respondent No. 4 but directed the University  to re-advertise the post and to conduct the  selection process afresh.  Consequence of the  order passed by the High Court was that the  writ petitioner succeeded and selection and  appointment of respondent No. 4 to the post of  Assistant Professor in Mathematics had been set  aside, but no effective relief had been granted  in favour of writ petitioner.  The grievance of  the writ petitioner in the present appeal is  that though he was eligible, qualified, found  fit and recommended for appointment to the post  of Associate Professor, he was not appointed.  The High Court, no doubt, allowed his writ  petition but it was wrong in directing re- advertisement of the post and to conduct  selection process afresh.  The complaint of  respondent No. 4-appellant in the cognate  appeal, on the other hand, is that on the facts  and in the circumstances of the case, she was  rightly selected, recommended and appointed as  Assistant Professor in Mathematics and the High  Court was not justified in setting aside her  appointment. The action of the University in  appointing her was legal and valid and ought  not to have been disturbed by the High Court. 4.              On January 6, 2004, notice was issued  by this Court in Special Leave Petition  instituted by the writ petitioner.  The parties  were directed to exchange affidavits.   Meanwhile, respondent No. 4 also instituted  Special Leave Petition on January 29, 2004. In  that matter also notice was issued. Both the  matters were then ordered to be placed for  final hearing on a non-miscellaneous day and  that is how the matters have been placed before  us. 5.              We have heard the learned counsel for  the parties. 6.              The learned counsel for the appellant- writ petitioner contended that the writ  petitioner was working as Assistant Professor.   Pursuant to an advertisement issued by the  University for filling up posts of Associate/  Assistant Professor (Combined Cadre), the writ  petitioner applied and got himself selected and  was recommended for appointment to the post of  Associate Professor.  It was also submitted  that there was no merit list for the Combined  Cadre of Associate/Assistant Professor, and  horizontal reservation could not be applied.  

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Moreover, the post of Associate Professor is a  promotional post from the post of Assistant  Professor which the writ petitioner was  holding.  In other words, the post of Assistant  Professor is the feeder post from which a  person may be promoted to the higher post of  Associate Professor.  Since there was only one  post of Associate Professor, even otherwise,  the rule of reservation does not apply to a  single post.  In the advertisement also, the  post was shown as UR (unreserved).  Respondent  No. 4 was an outside candidate, i.e. she was  from Agra University and she had wrongly been  selected under FCS [Flexible Cadre Structure]  as Assistant Professor in the Combined Cadre of  Associate/Assistant Professor.  It was also  submitted that the High Court wrongly  interpreted and applied a decision of this  Court in Swati Gupta v. State of Uttar Pradesh,  (1995) 2 SCC 560 : JT 1995 (2) SC 438 and  refused relief to the writ petitioner.  Once  the High Court upheld his contention that the  University was not right in appointing  respondent No. 4 as Assistant Professor, it  ought to have allowed the petition in its  entirety by directing the authorities to  appoint writ petitioner to the post of  Associate Professor.  To that extent,  therefore, the order passed by the High Court  deserves to be set aside by granting  consequential relief to the writ petitioner. 7.              The learned counsel for respondent No.  4 who has also approached this Court against  the order setting aside her appointment,  contended that the High Court has committed an  error of law in allowing the petition filed by  the writ petitioner and in quashing her  appointment.  It was submitted that admittedly,  the cadre of Associate Professor and Assistant  Professor is combined and even the  advertisement was issued showing both the  cadres as ’combined’ one.  One post was  reserved in women category.  According to the  policy of the U.P. Government, there should be  20% reservation for ’women candidates’.  The  said policy had been accepted and implemented  by the University.  Since there were three  posts in the ’Combined Cadre’, one was reserved  for a woman candidate.  Respondent No. 4 was a  woman candidate so far as Assistant Professor  (Mathematics) was concerned.  In view of the  said fact, the University was fully justified  in selecting her, recommending her name for  Assistant Professor and in giving appointment.   The writ petitioner could not have made  grievance against her appointment and the High  Court was not right in setting aside the  appointment of respondent No. 4.  She had,  therefore, prayed that the writ petition filed  by the writ petitioner may be dismissed and her  appointment may be restored by modifying the  direction of the High Court to re-advertise the  post and to undertake selection process afresh.  It was also urged that the writ petitioner had  made prayer only to quash appointment of

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respondent No. 4 in the writ petition and no  relief was sought seeking his appointment to  the post of Associate Professor.  Therefore,  even otherwise, he cannot be ordered to be  appointed as Associate Professor and his appeal  is liable to be dismissed. 8.              The learned counsel for the University  supported the action taken by the University.   According to him, there was no challenge to the  Combined Cadre of Associate Professor/Assistant  Professor. The contention of the writ  petitioner that he was already holding the post  of Assistant Professor and was seeking  selection and appointment to the higher and  promotional post of Associate Professor was  wholly irrelevant. Once it is conceded that  appointments were to be made to Combined Cadre,  the cases will have to be considered on that  basis.  In the instant case, one vacancy in the  Combined Cadre of Associate Professor/Assistant  Professor was reserved for women candidate and  since respondent No. 4 was available, she was  rightly selected, recommended and appointed as  Assistant Professor and the writ petitioner  could not have challenged that action.  The  counsel also stated that respondent No. 4 was  selected as Assistant Professor. The High Court  unfortunately failed to appreciate in its  proper perspective the concept of ’Combined  Cadre’ and wrongly allowed the petition, set  aside the appointment of respondent No. 4 and  directed re-advertisement and fresh process.   To that extent, therefore, the High Court was  in error.  He, therefore, submitted that the  appeal filed by the writ petitioner is liable  to be dismissed and the appeal of respondent  No. 4 deserves to be allowed.  9.              Having considered the rival  contentions of the parties, in our opinion, the  High Court was in error in allowing the  petition filed by the writ petitioner and in  setting aside the appointment of respondent No.  4 as Assistant Professor. 10.             It is no more in dispute that the  cadre of Associate Professor and Assistant  Professor is combined one.  An advertisement  was issued on that basis.  Applications were  invited and all candidates applied on that  footing.  Legality of ’Combined Cadre’ was not  challenged in the petition.  The Court is,  therefore, required to consider the case and  decide treating ’Combined Cadre’ as legal and  valid.  It is also clear that reservation  policy of the State Government has been  accepted by the University and has been  enforced in making various appointments.  This  is also clear from the letter, dated February  26, 1999 by the Secretary, Government of U.P.  to various authorities wherein it was expressly  stated that a decision of 20% reservation for  women in direct appointment had been taken by  the Government.  Moreover, even the  advertisement in question, dated August 10,  2000, pursuant to which applications were made  by the writ-petitioner as also by respondent

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No. 4 refers to the advertisement and  specifically states that the reservation policy  of the Government will apply in filling up of  posts.  The High Court, in the circumstances,  ought to have considered and decided the  question proceeding on the basis that there was  reservation of 20% for women. 11.             Now, from the record, it is clear that  the writ-petitioner was selected and  recommended for the appointment as Associate  Professor since he was already working as  Assistant Professor (feeder cadre), was  eligible to be appointed as Associate Professor  and was found fit by the Selection Committee. 12.             But it also cannot be ignored or  overlooked that respondent No 4 had also  applied to be appointed as Assistant Professor.  The learned counsel for the writ petitioner  contended that respondent No. 4 was not  eligible to be considered for the post of  Associate Professor inasmuch as she was an  ’outsider’, i.e. not from the University of  Roorkee but from the University of Agra and  that she was not eligible and qualified to be  selected and appointed as Associate Professor  since she was not working as Assistant  Professor which is the feeder cadre. 13.             The learned counsel is right to that  extent.  The High Court, upholding the  contention of the writ petitioner, allowed his  petition and set aside the appointment of  respondent No. 4.  It is, however, important to  note that the cadre is a Combined Cadre of  Associate Professor as well as Assistant  Professor.  An advertisement was also issued on  the basis of Combined Cadre.  The said action  was never challenged by the writ-petitioner.   The reservation policy of the Government of  U.P. was applied by the University which is  also not in dispute.  Even the advertisement  refers to such policy.  In the circumstances,  the only question is whether appointment of  respondent No. 4 to the post of Assistant  Professor could legally have been made by the  University. 14.             In our considered opinion, in the  light of the above facts and circumstances,  namely, the cadre of Associate Professor and  Assistant Professor is a Combined Cadre, the  policy of reservation of U.P. Government  provides for 20% reservation for women, the  said policy has been accepted by the  University; that even the advertisement  referred to that policy, the advertisement also  provided for selection and appointment on the  Combined Cadre of Associate/ Assistant  Professor, that respondent No. 4 was a woman  candidate for the post of Assistant Professor  and was duly considered, selected and  recommended for the post of Assistant  Professor, selection and recommendation of the  writ petitioner as Associate Professor, in our  considered opinion, was irrelevant.  In view of  Combined Cadre of Associate/Assistant  Professor, the Selection Committee was enjoined

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to consider the matter on the policy of the  Government keeping in view reservation for  women.  Hence, even though the writ petitioner  was found fit, selected and recommended by the  Committee for the post of Associate Professor,  in the light of the reservation policy,  availability of respondent No. 4 and her  selection to the post of Assistant Professor,  the action of the University in appointing her  to that post and not appointing the writ  petitioner as Associate Professor cannot be  held illegal, unlawful or contrary to law and  could not have been set aside by the High  Court. 15.             It was contended by the learned  counsel for the writ-petitioner in the High  Court as also before us that there was only one  post of Associate/Assistant Professor and as  per settled principle of law, the rule of  reservation does not apply to ’Single Cadre  Post’.  The counsel, in this connection, relied  upon a decision of this Court in Post Graduate  Institute of Medical Education & Research,  Chandigarh v. Faculty Association & Ors.,  (1998) 4 SCC 1 : JT 1998 (3) SC 223. 16.             So far as the proposition of law is  concerned, there can be no two opinions about  it.  It was, however, the case of the  respondents that this was not a case of ’Single  Cadre Post’.  In this connection, the attention  of this Court was invited to an affidavit filed  by the Registrar of the University clarifying  the position. 17.             The deponent while dealing with  ’preliminary submissions’, in para (ii) stated;         The post of Associate Professor  and Asstt. Professor are in the Joint  Cadre under the ’Flexible Cadre  Structure’ and as such the number of  these posts is to be jointly counted  for the purpose of women’s reservation  in the advertisement issued by the  University, a copy of which is annexed  as Annexure P-1 to the S.L.P. one post  in General Category and two posts for  S.C. category (total three posts) have  been shown as vacant under the heading  of ’Associate Professor/ Asstt.  Professor’ and when the reservation of  20% for the women was calculated on  three vacancies, the figure came to  0.6 meaning thereby, that one post had  to be horizontally reserved for a  women candidate who may be found  eligible for selection.  Dr.  Madhu  Jain, a selected woman candidate, was  therefore, correctly given the  appointment of Asstt. Professor.  This  offer had also been accepted by Dr.  Madhu Jain.

       It is significant to bring it to  the kind notice of this Hon’ble Court  that had Dr. Madhu Jain not accepted  the offer of appointment to the post

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of Asstt. Professor, the other woman  candidate on the combined panel,  namely, Dr. (Ms.) Pratibha, would have  been offered appointment.

       Thus it is submitted that the  positions of Associate Professor and  Asstt. Professor were both in the  ’Joint Cadre’ in the University under  the ’Flexible Cadre Structure’,  approved for the University by the  U.P. Govt. and according to the policy  of the U.P. Govt. (which was followed  in the University), 20 percent of all  the advertised posts in a Deptt. Other  than Professors, were to be reserved  "Horizontally" for the women  candidates.

       The University had implemented the  reservation policy of the Govt. for  reservation of the women in services  in letter and spirit, it was not  possible to offer an appointment to  the Petitioner first, when women  candidates were on the panel and  according to the provision for  horizontal reservation, they were  entitled in turn, to get the  appointment first.

18.             The University, through its Registrar,  further stated in the counter that the  University had considered the provisions of the  Roorkee University Act, 1947, the policy of  reservation framed by the Government of U.P.  and also the direction issued and law laid down  by this Court in Indra Sawhney v. Union of  India, 1992 Supp (3) SCC 217 : JT 1992 (6) SC  273 (Indra Sahney I) that the total reservation  of vacancies of all categories should not  exceed 50% of the total vacancies. 19.             The University, then stated;         If we apply the aforesaid mandate  to the facts of the present case in  the Department of Mathematics  reservation roster register worked  like this:

(a)     Upto the year 1999 and immediately  before the impugned advertisement  dated 10.8.2000 (R-3) the University  had utilized 10 roster points for the  Department of Mathematics.  Out of  these 10 roster points while 02  vacancies were to go to SCs, 03 were  to go to OBCs and 05 unreserved. 05  vacancies for OBCs and 05 unreserved  had been filled up, while 02 vacancies  reserved for SCs remained unfilled for  want of suitable candidates.  This  position emerged out after conducting  02 special recruitment drives in  addition to normal recruitment between  1995 to 1999.

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(b)     The 11th Roster point meant for a  Scheduled Caste was filled up during  this recruitment.  The 12th roster  point (for unreserved category) and  the 13th (for OBC) were separately  advertised for the Master of Computer  Applications (MCA Programme) an inter  disciplinary programme, being run by  the Department of Mathematics as the  Administrative Department. (c)     Came then the 14th roster point  meant for an unreserved candidate, on  which Dr. (Mrs.) Madhu Jain was  appointed. (d)     The net result thus is that out of  the 14 roster points so far utilized,  2 were meant for the MCA Programme,  while remaining 12 had the under- mentioned distribution:-

SC               -      3 (2 unfilled)

OBC             -       3 (filled)

Unreserved -    6 (filled)                  It is, therefore, crystal clear that  out of the 12 roster points utilised  till date, 6 went to the unreserved  candidates and 6 to the reserved  candidates of different categories,  thereby assiduously following the 50%  mandate of the Hon’ble Supreme Court  expounded in Indira Sawheny’s case  supra.

20.             It is thus clear that the action of  the University had neither violated any  provision of law nor was inconsistent with the  law laid down in Indra Sawheny I. 21.             The next question then is : How can  this woman-reservation be implemented and  enforced?  Whether such reservation will  violate Indra Sawheny (I) and exceed 50%  reservation which is maximum?  Our reply is in  the negative.  Let us consider the issue. 22.             In Indra Sawheny (I), Justice Jeevan  Reddy dealt with this aspect.  His Lordship  observed that there are two types of  reservations; (i) vertical reservations; and  (ii) horizontal reservations.  They must be so  applied as not to exceed the percentage of  reservations which is permissible under law.   This can be done by ’interlocking  reservations’. 23.             His Lordship proceeded to state;         There are two types of reservations,  which may, for the sake of convenience,  be referred to as ’vertical reservations’  and ’horizontal reservations’. The  reservations in favour of Scheduled  Castes, Scheduled Tribes and other  backward classes [under Article 16(4)]  may be called vertical reservations  whereas reservations in favour of

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physically handicapped [under clause (1)  of Article 16] can be referred to as  horizontal reservations. Horizontal  reservations cut across the vertical  reservations \027 what is called  interlocking reservations. To be more  precise, suppose 3% of the vacancies are  reserved in favour of physically  handicapped persons; this would be a  reservation relatable to clause (1) of  Article 16. The persons selected against  this quota will be placed in the  appropriate category; if he belongs to SC  category he will be placed in that quota  by making necessary adjustments;  similarly, if he belongs to open  competition (OC) category, he will be  placed in that category by making  necessary adjustments. Even after  providing for these horizontal  reservations, the percentage of  reservations in favour of backward class  of citizens remains \027 and should remain \027  the same. This is how these reservations  are worked out in several States and  there is no reason not to continue that  procedure.      (emphasis supplied)

24.             A similar question came up for  consideration in Swati Gupta.  There, the  petitioner appeared in the Combined Pre-Medical  Test (CPMT) held by the State.  She was not  selected.  She challenged a notification of the  State Government on the ground that the  reservation was 65% which exceeded 50% and was  thus violative of the constitutional guarantee  under Articles 14, 16, 19 and 21 of the  Constitution as also the ratio laid down in  Indra Sawhney (I).  The Government of U.P.,  however, issued another notification clarifying  its stand on reservations. 25.             In the amended notification, it was  clarified that the reservations for the  candidates belonging to other categories, such  as, dependents of freedom-fighters, sons/  daughters of deceased/disabled soldiers,  physically handicapped candidates, etc. would  be ’horizontal’ and the candidates selected in  those categories would be adjusted in the  categories to which they belong, i.e. either  reserved category of Schedule Castes (SC),  Schedule Tribes (ST), Other Backward Class  (OBC) or Open Category (OC) in ’vertical’  reservation and it would not violate  constitutional guarantee. 26.             The Court considered Indra Sawhney  (I), applied it to the case on hand and held  that the submission of the State was well  founded and the contention of the petitioner  that the reservation violated constitutional  guarantee of 50% was not well-founded. 27.             The Court stated;         The vertical reservation is now  50% for general category and 50% for  Scheduled Castes, Scheduled Tribes and

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Backward Classes. Reservation of 15%  for various categories mentioned in  the earlier circular which reduced the  general category to 35% due to  vertical reservation has now been made  horizontal in the amended circular  extending it to all seats. The  reservation is no more in general  category. The amended circular divides  all the seats in CPMT into two  categories\027 one, general and other  reserved. Both have been allocated  50%. Para 2 of the circular explains  that candidates who are selected on  merit and happen to be of the category  mentioned in para 1 would be liable to  be adjusted in general or reserved  category depending on to which  category they belong, such reservation  is not contrary to what was said by  this Court in Indra Sawhney.                                 (emphasis supplied)  

28.             A similar question was raised in Anil  Kumar Gupta & Ors. V. State of U.P. & Ors.,  (1995) 5 SCC 173 : JT 1995 (5) SC 505.   Referring to Indra Sawhney (I), and Swati  Gupta, the Court observed;          Now, coming to the correctness of  the procedure prescribed by the  revised notification for filling up  the seats, it was wrong to direct the  fifteen per cent special reservation  seats to be filled up first and then  take up the OC (merit) quota (followed  by filling of OBC, SC and ST quotas).  The proper and correct course is to  first fill up the OC quota (50%) on  the basis of merit; then fill up each  of the social reservation quotas,  i.e., SC, ST and BC; the third step  would be to find out how many  candidates belonging to special  reservations have been selected on the  above basis. If the quota fixed for  horizontal reservations is already  satisfied \027 in case it is an overall  horizontal reservation \027 no further  question arises. But if it is not so  satisfied, the requisite number of  special reservation candidates shall  have to be taken and adjusted/  accommodated against their respective  social reservation categories by  deleting the corresponding number of  candidates therefrom. (If, however, it  is a case of compartmentalised  horizontal reservation, then the  process of verification and  adjustment/ accommodation as stated  above should be applied separately to  each of the vertical reservations. In  such a case, the reservation of  fifteen per cent in favour of special

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categories, overall, may be satisfied  or may not be satisfied.) Because the  revised notification provided for a  different method of filling the seats,  it has contributed partly to the  unfortunate situation where the entire  special reservation quota has been  allocated and adjusted almost  exclusively against the OC quota.

       [see also Mahesh Gupta & Ors. V. Yashwank  Kumar Ahirwar & Ors., (2007) 8 SCC 621 : JT  2007 (10) SC 556]. 29.             It is thus clear that the reservation  for women candidates cannot be held invalid or  in excess of permissible quota.  In fact,  reservation policy itself makes this position  clear.  A letter, dated February 26, 1999  referred to above and annexed as Annexure P1 is  explicitly clear.  Para 2 reads thus;         Reservation will be of Horizontal  nature i.e. if any Woman candidate  selected on the basis of reservation  on any category then she will be fixed  of the said category.

30.             In the affidavit-in-reply by the  University, it was clarified that three posts  in the Flexible Cadre Structure (1 General :  unreserved + 2 Schedule Caste) were vacant  under the heading ’Associate Professor/  Assistant Professor’.  Since there was 20%  reservation for women and three posts were to  be filled in, it came to 0.6% i.e. more than  0.5% and as such one post had to be  horizontally reserved for a woman candidate.   As respondent No. 4 was found eligible and  qualified, she was selected and recommended for  appointment as Assistant Professor and no  grievance can be raised against such lawful  action of the University. 31.             It is no doubt true that in the High  Court, at one stage, it was contended by the  University that respondent No. 4 was found more  meritorious and was preferred to the writ- petitioner though it was neither the assertion  of the University at the initial stage nor in  the affidavit-in-reply filed in the High Court. 32.             The learned counsel for the University  stated that the cases of the candidates, i.e.  writ-petitioner and respondent No. 4 were  totally different and distinct. Case of writ- petitioner was considered for the post of  Associate Professor whereas the case of  respondent No. 4 was considered for the post of  Assistant Professor.  It was only because there  was Combined Cadre of Associate/Assistant  Professor that only one of them could be  appointed.  And in view of horizontal  reservation, it was respondent No. 4 who could  be selected and recommended for appointment as  Assistant Professor and writ-petitioner had no  occasion to make complaint against such  appointment.  The post was of Open Category  (OC), i.e. General and respondent No. 4 was

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accommodated on that post on Open Category in  Women Reservation Quota. 33.             For completion of record, it may be  stated that in 2005, writ-petitioner (Dr. Shiv  Prasad) was selected and has joined as  Associate Professor from February 14, 2006  (A.N.). 34.             For the foregoing reasons, in our  view, the appeal filed by Dr. Shiv Prasad  (Petitioner of Writ Petition No. 802 (S/B) of  2001) deserves to be dismissed and is hereby  dismissed.  The appeal filed by Dr. (Mrs.)  Madhu Jain (respondent No. 4 in Writ Petition  No. 802 (S/B) of 2001) deserved to be allowed  and is accordingly allowed.  Her selection,  recommendation and appointment as Assistant  Professor is held legal, valid and in  accordance with law and could not have been set  aside by the High Court.  The order of the High  Court to that extent is set aside upholding the  action of the University.  On the facts and in  the circumstances of the case, however, all the  parties are directed to bear their own costs.