http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: THE GOVERNMENT OF ANDHRA PRADESH AND OTHERS

       Vs.

RESPONDENT: BALA MUSALAIAH AND OTHERS

DATE OF JUDGMENT23/11/1994

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) KULDIP SINGH (J)

CITATION:  1995 SCC  (1) 184        JT 1995 (1)    20  1994 SCALE  (4)1036

ACT:

HEADNOTE:

JUDGMENT: HANSARIA, J.: 1.      The  present  is an unusual case  despite  it  being related  to  the usual demand of reservation  for  Scheduled Castes  and  Scheduled Tribes. The peculiarity lies  in  the fact that the demand for reservation hrein is not related to appointment, but is relatable to termination. 2.      The  Government of Andhra Pradesh  issued  an  order (hereinafter referred to as the G.O.) on 3.8.67 by which  an ad  hoe rule was framed in exercise of powers  conferred  by Article  309 of the Constitution prohibiting termination  of reserved   category   candidates   following   normal   rule applicable in such cases.  The G.O. spells out in what order retrenchment of temporary employees has to take place.   The order set out is as below:-               "First persons, other than those belonging  to               the Scheduled Castes and the Scheduled Tribes,               appointed   temporarily,  in  the   order   of               juniority;               Second   -  probationers,  other  than   whose               belonging  to  the Scheduled  Castes  and  the               Scheduled Tribes, in the order of juniority;               Third-approved probationers, other than  those               belonging  to  the Scheduled  Castes  and  the               Scheduled Tribes, appointed temporarily in the               order of juniority;               Fourth  -persons  blonging  to  the  Scheduled               Castes  and  the Scheduled  Tribes,  appointed               temporarily in the order of juniority;               Fifth   -   probationers  belonging   to   the               Scheduled Castes, and the Scheduled Tribes, in               the order of juniority;               Sixth - approved probationers belonging to the               Scheduled Castes and the Schedules Tribes,  in               the order of juniority."                                  (Explanation not relevant)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

3.      It  came  to be assailed before the  High  Court  of Andhra  Pradesh  to meet its Wartoo. The High  Court,  after taking note of various decisions of this Court dealing  with different  facets of reservation. held that the GO. did  not strike a reasonable balance between the claims of  different communities and has sought to introduce by the hack door  an unlimited  form of carry-forward rule which it  regarded  as invalid because of what was held in T. Devadasan v. Union of India,  AIR 1964 SC 179. The Court further stated  that  the G.O. does not merely postpone the retrenchment of  temporary employees  belonging to the Scheduled Castes  and  Scheduled Tribes to temporary employees of 22 other  communities,  but postpones the retrenchment  of  the scheduled   Castes   and  Schedules  Tribes   employees   to probationers   also  and.  what  is  worse.  even   approved probationers of other communities.  Because of all these the G.O.  was  held  to be violative of Article 16  (1)  of  the Constitution  and was. therefore, declared as invalid.   The State of Andhra Pradesh has preferred this appeal by special leave. 4.     A nine-Judge Bench of this Court in Indra Sawhney  v. Union  of  India, 1992 Supp.(3) SCC 217 (commonly  known  as Mandal   Commission  case).  reviewed  the  entire  law   on reservation; and as such. no effort is necessary on our part to  find out the parameters within which reservation has  to operate. 5.     The G.O. being of the year 1967 and the law  relating to reservation having come to be crystalised by the decision in Indra Sawhney’s case delivered in 1992, we stated to Shri Raghuvir  appearing  for the appellants that  if  the  State Government  were to undertake passing of fresh G.O.  on  the subject  keeping  in  mind  the  view  expressed  in   Indra Sawhney’s  case, we could dispose of the appeal by  allowing the  stay  order to continue for a period  of  three  months within  which  the State could pass fresh G.O. For  want  of instructions,  Shri Raghuvir could not give the  undertaking and  so we proceeded to hear the appeal  instead  adjourning the same as prayed for - the appeal being of the year 1977. 6.      The  High Court. as already noted, struck  down  the G.O.,  inter  alia.  because  of what  has  been  stated  in Devadasan’s case. In view of the judgment of the majority in Indra  Sawhney’s  case  Shri  Raghuvir  contends  that   the judgment of the High Court merits to be set aside. But  this is  not  all that the High Court had said. as  would  appear from what we have noted above. 7.    The first observation we propose to make regarding the G.O.  is that on the face of it the same is arbitrary in  as much   as   it  requires  retrenchment  even   of   approved probationers  of  general  category  before  even  temporary incumbents  belonging to the Scheduled Castes and  Scheduled Tribes  could be retrenched.  Such a provision cannot be  in tune even with Article 16(1) of the Constitution inasmuch as this sub-article is a facet of Article 14 and though permits affirmative action. as pointed out in Indra Sawhney’s  case, the  same cannot fly on the face of article 14. This  would. however. be so if the G.O. were to allow to stand as it  is, because   giving  of  preference  to   temporary   employees belonging  to the Scheduled Castes and Scheduled  Tribes  as against   approved  probationers  of  general  category   is definitely as unreasonable provision. 8.     According to us. the principle and policy behind  the reservation  would  be  adequately  met  and  would  receive constitutional   approval.   if.   while   retrenching   the employees. the roster followed while making appointments  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

adhered  to.  To  elucidate.  if  the  roster  is   operated backwards (which we shall call recycled) and if the employee to  be  retrenched  as per normal principle  be  on  a  non- reserved  point, a reserved category candidate would not  be retrenched.  even if as per general rule of ’last  is  first out’ he would have been required to be retrenched. To  state it  differently,  a  reserved category  candidate  would  be retrenched only when on the recycled 23 path the reserved point is reached.  This mode of  following roster  would  adequately  protect  the  reserved   category candidates  inasmuch as their percentage in the  service  or cadre  would remain as it came to be when appointments  were made.   To  explain  further, if in  the  cadre  or  service reserved category candidates were holding, say seven  posts, and  seven  persons  are  required  to  be  retrenched,  the reserved  category  employees would not be  retrenched  even when they be the last seven as per the seniority list, which would  have  otherwise  happened  on  following  the  normal principle,    Instead   of  the  seven   reserved   category candidates being retrenched as per the normal principle, the reserved  category  candidate on the recycled  roster  point alone  would be retrenched, because of which the  percentage of  representation of such candidates in the service, as  it got  reflected  in appointments made following  the  roster, would remain unaffected. 9.      May we mention that the reservation in  appointment, to  effectuate which roster is prepared, makes an  incumbent of  the  reserved category senior to  the  general  category incumbent,  as,  though  lower  in  merit  the  former  gets appointed earlier as per the  roster point.  This in  itself protects to some extent the interest of the listed  category candidates,  as  under  the normal  rule,  the  retrenchment starts  from the junior most employees and it  travels  back step by step. 10.    We,  therefore, hold that the G.O. as framed  is  not sustainable.  It would, however, be open to State Government to  recast the G.O. in the light of what has been stated  by us,  if  deemed necessary by it.  As, however, the  G.O  has been in operation for about three decades by now, we do  not propose to upset the retrenchments which have already  taken place  pursuant  to what has been provided in the  G.O.  The G.O. would, therefore, become non-operative from today. 11.    For  the aforesaid reasons, the appeal  is  dismissed subject to the observation regarding prospectively. No order as to costs. 24