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PETITIONER: STATE OF PUNJAB & ORS.

       Vs.

RESPONDENT: G.S. GILL & ANR.

DATE OF JUDGMENT:       27/03/1997

BENCH: K. RAMASWAMY. G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:  O R D E R      Asper  office Report  dated September  13,  1996, the notice sent to the first respondent wasreceived back by the Registry  withthe  postal  endorsement  "No  such  person" indicating avoidance  thereof on  his part. Consequently, he was setex-parte. The second respondentwas directed tofile Counter-affidavit. Even today the  first respondent  is not appearing either in person or through counsel.      Leave granted.  Wehave  heard learned  counsel for the appellant  and the second respondent.      This appeal  by special  leave arises fromthe judgment passed by  the High Court of Punjab & Haryana, Chandigarh on 22nd November ,1995 inLPA No.351 of 1981.      The admitted  facts are  that thefirst respondent,  a generalcandidate,  was appointed  asa  junior  Technical Assistant in  the Department  of Industries  ofthe State of Punjab.The    post  of Assistant  Superintendent,  Quality MarkingCentre, (Textile), i.e.,  in the  next promotional cadre, is  the single  post in that cadre. The said post was reserved for  scheduledCaste  candidates as  per the roster and inview of the judgment  of thisCourt in  Aarti Ray Choudhury V/s.Union of India [(1974) 1 SCC 87] BhagatRam, the second  respondent,who  was a  qualified candidate was considered andduly promoted  to the  said post.  The first respondent, feeling  aggrieved,filed  writ petition  in the High Court  seeking relief  in the  form of  amandamus  or direction to the Government to dereserve the carried forward post and  to consider  his case for promotionas a general candidate. He contendedthat since it was the solitary post, reservation infavour of  a Scheduled Caste would amount to 100%  reservation   violating  Articles 16  (1)  an  14  of Constitution. The learned single judge observedthat hefelt bound by  the Division Bench  judgment in Dr. ParminderKaur V/s. State  of Punjab [(1976) 1SLR 502] wherein it washeld that "a solitary  vacancy inthe relevant  year cannot be treatedas  reserved one as that would amount to reservation of  100%  in  violation of  Article  14  an  16(1)  of the Constitution" Thus  though he  was inclined to take theview that constitutionally  it was  permissible, inview of the Division Benchjudgment in  Dr. Parminder  Kaur’s case,  he

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allowedthe  writ petition  . On  appeal, it was affirmed by the Division  Bench. When  the matter  was carried  tothis court, it set aside theorder and remitted the matter to the High Court  forreconsideration.  The DivisionBench by the impugned judgment held thus:      "Consequently, weare ofthe view      that since it  is a  single  post      cadre,  there   could  not be  any      reservation at alland thequestion      of  applicabilityof  thequestion      of  applicability  of   Parminder      Kaur’s case  (supra) alsodoes not      arise on  the facts  of the present      case,"      Thus this appeal by special leave.      The question  for consideration, therefore, is: whether the view  takenby  theHigh  Court iscorrectin law?This Court in  Indira Sawhney  V/s. Union  of India [(1992) Supp. SCC 217]  has overruled the decision  of  theConstitution Bench in  Devadasan V/s.  Unionof  India [(1964) 4 SCR680: AIR 1964  SC  179]  declaring  the  carry  forward  rule  as unconstitutional. In  paragraph817 at page 739, it washeld thus:   "We  are   of the  respectful      opinion that  on its own reasoning,      the decision  insofar as it strides      down the  rule is not sustainable.,      The most  that could have been done      in that  case  was  to  quash  the      appointments  inexcessof   50%      inasmuch as,  as a matterof  fact      more  than 50%  than  50% of  the      vacancies for the year 1960 came to      bereserved  by virtue  ofthe said      rule ."      Inparagraph  818,  it  was  held      thus:   "We my reiterate thata carry-      forward rule  neednot  necessarily      bein  thesame  terms asthe  one      found in  Devadasan. A  given  rule      may say  that the unfilledreserved      vacancies shall  not be  filled  by      unreservedcategory  candidates but      shall be  carried-forwardas  such      for a  period   ofthree  years. In      such a  case, a  contention may  be      raised that reserved postsremain a      separate  category altogether.  In      our opinion, however, the result of      application of  carry-forward rule,      inwhatever  manner it is operated,      should not resultin breach of 50%      rule".      Thus it  could  be seen  that  carry-forward  rule  is constitutionally permissible,.It is  an extention  of the principle of  providingfacility  and opportunity  to secure adequacy of therepresentation to Dalits and Tribes mandated by Article  335. It  should be carried for three years.Even in thepost when  the vacancyas per roster was available, but candidates were  not available,  same could be carried forwardfor  three years. However, in each recruitment year, the carry-forward  rulecannot exceed 50%  of the vacancies. That question  does not arise in a situation where there is single post/cadre. In S.S. Sharma & Ors. V/s. Union of India

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& Ors.[AIR 1981  SC 588]  in paragraph 8 at page 592,this Court had  heldthat  the limited  Departmental Competitive examination for recruitment ofthe members of the Scheduled Castes and Scheduled Tribes fordetermination of eligibility for promotion  is not  invalid nor the Central Government be directed to  dereserve the  Vacancies meant forsuch members when  it  was  found  that  suitable  Scheduled Castes and Scheduled Tribe candidates were not available for inclusion within the  field of  selection.  Whether  or  not  reserved vacancies  should   bede-reserved   is  a  matter  falling primarily  within   the administrative discretion  of the Government. There  is no right in general candidates toseek fillingup  of the  vacancies belonging   to  the  reserved category  andto  insist  onde-reservationof  reserved vacancies so  long as  it is  possible in  law to  fill the reserved  vacancies.   in  other   words,  carried   forward (unfilled) vacancies  reserved for  Dalits and Tribes should be filled  up only  by the  reserved candidates and general candidates haveno right to seek direction for dereservation thereoffor filling up of the same by general candidates. It would thus be clear that carry-forward rule is a permissible constitutional rule.  Carry forward  would be done for three years. In  third case, the Government issued orders to carry forwardfor "two years"Therefore, the direction or mandamus to   de-reserve   the  solitary    post    was    clearly unconstitutional. ThisCourt  in  U.P. SalesTax  Service Association V/s.  Taxation  Bar Association,  Agra  &Ors. [(1995)5 SCC 716] had held that no mandamus could be issued to  disobey   the  lawor  prohibit  the  authoritiesfrom discharging  the   functions.  It   would,   therefore,  be manifestly illegal  to seek  a mandamus or  direction; nor would the  Court be  justified too  issue suchmandamus  or direction  tothe  appropriate  Government  to  de-reserve vacancy, It  iscommonknowledge thatselections  are not objectively being made to select the candidatesbelonging to the Dalits  andTribes to fill up the vacanciesreserved for them though  qualifiedcandidates    are  available  to  be promoted/appointed,  with   a  view  to see  that  reserved vacancies are  not filled  up and the same are passed off as eligible candidates being not availableso as to ensurethat carry forward vacancieseither exceed 50% of the accumulated total vacanciesor thatselection goes beyond three years so as to make the Government de-reserve the vacancies.      This Court in SC& ST  officers;Welfare Council  V. State of  U.P. &  Anr. [(1997) 1 SCC 701] has considered the mandateof  Article 261 of the Constitution which  accords full faith  andcredit to the acts doneby the executive and connects the  Union and the States to further the goals set down in the Constitution. In para 12 this Court has pointed out inthat behalf.  It  was  held  that  administrator  is primarily a  citizen and  the  State  wants  him  to  always remember that  his vision should be of nationalinterest and to actin concert withthe Government . It will do himgood to knowwhat that means. Nobodyis bornan administrator but no  body   is  always  a  goodadministrator.The  primary responsibilityof   an administratoris  toperform his functions in  the service  of the  nation as  an enlightened citizento  strengthen a  new democratic  State.  A  dynamic bureaucracy isone which discharges the functions to enrich the integration of the socialstructure by wise decisions. The State  in ademocratic society derives its strengthfrom the cooperative and dispassionate  will of  all as itsfree and equal citizens. Thepublic administration is responsible to  effectiveimplication  of  the  rule   of   law and constitutionalcommands   which   effectuatefairly the

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objective standard  setfor  adjudginggood  administrative decisions. Thepublicadministrator  should  rid  off all mentalobservations  on  narrow  considerations  of  caste, religion sectional or regional.He should have wider concern for society  asa whole. Otherwise he is not worthy to be an administrator or enlightened citizen towork for others; and consequently "there  isevery  chance of this  enlightenment gettingerodedand self  interest ruling  supreme. Andonce the erosion takes place, they slide slowly downand join the third group (damons manavarakshas) among  whom are found all those who indulge in all sorts of  social malpractices,like bribery, corruption,  tax-evasion, smuggling,  drug andfood adulteration and fourthcategory becomesheer vandals.""God dwells in  all -  this great truth had never been translated into the wide social and economic fields or transformedinto a social fact of human awareness  affecting millions." "This should be  madea  reality in  modern democracy,  political, economic and  social" quoted  from  ’Eternal  values  for  a Changing  Society’   by Swamy Ranganthananda.  In  public administration,responsibilityis of  highly  personal and moral quality  and is  not  necessarily related  to  formal status or  power, although  it is probably truethat greater power brings  greater responsibility.  The Departmentalhead is responsible for the actions of his subordinates, although in actual fact,he is not responsible for theiruse of power which, he  must, of  necessity,delegate to them. Legitimacy is  primarily  a  feature  of  constitutional  system.They possessthis quality byvirtue of general public support for their authority and   may have it  in greater  or  lesser degree.The bureaucracyshares the collective responsibility with politicalexecutive to  effectuate the  constitutional philosophy   and    public   justice.The   administrative responsibility lies  ingiving shape and content not only to the policie  laid  down in  the  Constitutionand  by the political executive  but also  applies them  ingiven set of facts. Therefor,  on  the  facts,  it  was  found  that the bureaucracy   had by  mala fide actions  issued  successive orders to  deprive certain Dalits and Tribe doctors of their chances of   promotion by  colourable exercise  of  power depriving themof their  rightto promotion, Soon after the selection, they were withdrawn.  Further orders were issued in favour  of the  general candidates  with most  favourable conditions.   Thereby, the  bureaucracyforfeited  thefull faith and  credit whichArticle261 trusted them. Therefore, this Court set aside the actionand directed reconsideration of their cases.      InSuperintendingEngineer,  Public  Health,  U.T.  of Chandigarh   & Ors. V/s.  Kuldeep Singh  & Ors.  [1997 (2) SCALE 138]  , though  reserved candidate  was available, the post was de-reserved and  he was not selected. When he filed a petition in the Administrative Tribunal it was allowed and direction was  given toconsider his case in accordancewith the rules.  when the  appeal was filed in this Court, it was held that the authorities have power coupled with duty."(E) very public  servant is a trustee of the society and in all facets of public administration, every public servant has to exhibithonesty,  integrity, sincerityand faithfulness  in implementation of  the  political,  social,  economic and constitutionalpolicies to integrate the nation, to achieve excellence andefficiency in  the public  administration. A public servantentrusted withduty and  powerto implement constitutional policy  under Articles 16(4) ,16(4-A) , 15(4) and 335 and all  interrelateddirective principles, should exhibittransparency  in implementation and be accountable for due effectuation of  constitutional  goals."    It was

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directed that  the reservation and carry forward rule should be implemented in true spirit. It is settled legal principle that when  bureaucracy has  power coupled  with a  duty  to implement the  law anda constitutional goals,State should be  envisagedas  Canal   through  which   the  fruits  of constitutional principles,  philosophy and the backed-up law may flow, releasing itsenergy for the benefit of the people rather than  asa  Dam to  holdit  back  or  caused  breach thereofto  frustrate the  goals. After all, the basictask any philosophy of Government isto figure out what the state must do not what  it would be prohibited from doing. Not is it to be forgotten thatwhile tyrannical Governments destroy the freedom,  constitutional Government wouldenlarge the freedom.      Many of the functions which the modern state undertakes are designed  to make  opportunities more  nearly equal for everybody  and to  protect  weaker  individuals  from the rapacity of  the strong.  In these  days of fallen rectitude and honesty  inthe  performance  of  public  duty  and the bureaucracy istoo willing  tosabotage  public policy and constitutionalphilosophy.   Judiciary/Tribunal  would  be astute in  the declaration  of law or in its solemn judicial review or dispensation  of justice  to issue directions or mandamus against  the law, constitutional comments or public policy.In  TheFlag  officer Commanding-in-chief & Anr. vs. Mrs. M.A.  Rajani &  Anr. [JT 1997 (4) 212], this Courtheld that since  thereservation  was called for selectionin a reserved vacancy  and since  candidate was available, resort to  dereservation  of  the  vacacy  thereafterwas  clearly illegal. It would, therefore, be clear that  the authorities are   to    implementthe   rule,   executive/legislative/ constitutional policy or principle in true, spirit, honestly and sincerely  to effectuate  the  policy;  nomandamus  or direction should  be issued  tode-reserve the carry forward vacancies reserved  forappointment  ofthe Scheduled Castes and Tribes  nordirection  be given  tofill upwith general candidates.      The  next question  for considerationis:  whether reservation   in    promotionto    a  single   post  is unconstitutional beingviolative of Articles 16(1) an 14 of the constitution?  In Aarti RayChaudhury’s case (supra) , a Constitution Bench had held that reservation inpromotion to a single  post is  not unconstitutional.  This Court had re- surveyed the  case lawin union  of India & Anr. V/s Madhav [JT 1996  (9) SC  320].In  paragraph 10 at page 325, it has been held  that"we  hold that even though there is a single post, if  the Government  have appliedthe rule of rotation and theroster point tothe vacancies that had arisen in the single point  post andwere sought  tobe  filled up by the candidates belonging tothe reserved categoriesat the point on which they were eligible to be considered, such a rule is not violative  of Article 1691)of theConstitution ."Same view has been reiterated in several subsequent judgments. In Dr. Chakradhar Pasvan V/s. State of Bihar [91988) 1 SCC496] the ratio  clearly is  an authority forthe propositionthat two unequal posts carrying different scales of pay cannot be fused togetherfor the purpose of  applying  the  rule  of reservation inpromotion. That case stands  on entirely  a different footing  but the ratio therein was misappliedto a case of reservation to a single post without following the Constitution Bench  judgment in Aarti Ray  Choudhury’scase (supra).  Thatposition  was  clarified  in  Madhav’scase (supra). Thus  it is settled legal position that application of roster  to single post cadreand appointmentby promotion to carry  forward postis valid and constitutional . With a

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view to give adequaterepresentation in  public service to reserved category  candidates, the opportunity given tothem is  not  violative  of  Articles  14 and  16(1)  of the constitution .In R.K.Sabharwal & Ors. v. State of Punjab. & Ors.[(1995)2 SCc  745],   it was held that promotions in accordance withroster are valid and constitutional. Even in Indira Sawhney’s  case this  Court hadreiterated theview that reservation  for the  Dalits and Tribes isas a a class but notas individuals and, therefore, such a reservation is not violative of Article 14 or 16(1) ofthe constitution. In The Ahmedabad  St. Xaviers College Society & Anr. V/s. State of Gujarat & Anr. [(1975) 1 SCR173], anine-judge Bench had held  that   the  fundamentalrightsshould be  broadly interpreted toenable the  citizen to enjoy them. Sameview was reiteratedin Dr.PradeepJain  &Ors.  V/s. Union  of India & Ors. [(1984)  3 SCC  654], Marri Chandra Sekhar Rao V/s. Dean,  Seth G.S.  Medical College& Ors.[(1990)3 SCC 130]; and  Ashok KumarGupta & Anr. V/s.  State of  U.P. & Ors. [1997 (3) SCALE 289]. In Union of India & Ors. vs.Brij Lal Thakur  [JT1997 (4) 195], this court following Madhav’s case has  held that  reservation provided  to single post on the basis  of rule  of rotationis not unconstitutional. The High Court,  therefore,is  clearly in error inholdingthat reservation inpromotion to a single post  and application of carry forward rule and of roster is unconstitutional.      The appeal is accordinglyallowed. The judgment of the Division Benchand ofthe learned  single Judge  stand set aside. No Costs.