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PETITIONER: ARATI RAY CHOUDHURY

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT11/10/1973

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. RAY, A.N. (CJ) PALEKAR, D.G. BHAGWATI, P.N. KRISHNAIYER, V.R.

CITATION:  1974 AIR  532            1974 SCR  (2)   1  1974 SCC  (1)  87  CITATOR INFO :  D          1988 SC 959  (15)

ACT: Constitution  of India, Art. 16(1)-Reservation of posts  for Scheduled Caste candidates in Railway Service-Carry  forward Rule-Application  of, where there is only  one  post-Railway Board’s administrative instructions 1964, 1971Home  Ministry Memorandum, 1963.

HEADNOTE: After the decision of the Supreme Court in Devadasan’s  case [1964]  4  S.C.R. 680 holding that the reservation  for  the backward communities should not be so excessive as to create a monopoly or disturb unduly the legitimate claims of  other communities,   the  Ministry  of  Home  Affairs   issued   a memorandum  modifying  the  ’carry forward’ Rule  so  as  to comply with the decision.  The said memorandum was  suitably modified by the Railway Board in its application to  Railway services  by  their  letter dated 6th  October,  1964.   The Railway Board prepared a "Model Roster" signifying the turns of reserved and unreserved vacancies.  The note appended  to the  Roster provided "if there are only two vacancies to  be filled  on a particular occasion, not more than one  may  be treated  as  reserved and if there be only one  vacancy,  it should  be  treated as unreserved.  If on  this  account,  a reserved post is treated as unreserved, the reservation  may be carried forward in the subsequent two recruitment years". In  order  to minimise the chances of reserved  posts  being converted into unreserved posts, the Railway Board  modified the  Reservation Rule in 1971 by adding the following  words "if  there  is  one  post to  be  filled,  selection  should invariably  be held for two posts, i.e. one actual  and  the other to cover unforeseen circumstances".  The  SouthEastern Railway, a Government of India Undertaking, runs two  higher secondary  schools for girls, one at Adra and the  other  at Kharagpur.   A  vacancy in the post of Headmistress  of  the Adra  School arose in 1966.  According to the Roster,  being the first vacancy, it should have been treated as a reserved post.   But  since  there was only one post,  the  same  was

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treated  as an unreserved post and the appointment was  made on   that   footing.    In  December   1968,   the   Railway administration  was  to  hold interviews  for  the  post  of Headmistress  at  the  Kharagpur  school  as  the  incumbent Headmistress  was to retire with effect from 1-1-1969.   The selection  was stayed by the Calcutta High Court on  a  writ petition  filed  by  Respondent No.  8.  a  Scheduled  Caste candidate,  for readjustment of her  seniority.   Respondent No.  8 filed another writ petition under Civil Rule No.  499 (W)  of  1969 in the Calcutta High Court  calling  upon  the court  to declare that the Kharagpur post should be  treated as  a  reserved  post.  The second attempt  at  holding  the interview  by the Railway Administration was thwarted by  an injunction issued by Calcutta High Court at the instance, of Respondent  No.  8.  in Civil Rule No.  499(W)  of  1969,  a learned single Judge of the Calcutta High Court and then, on appeal  (No.  454 of 1971) the Division Bench  of  the  High Court  held  that the Kharagpur post was  a  reserved  post. Through the impugned letter of 6th November 1971 the Railway Administration made yet another attempt to MI the vacancy in terms of the modification of the Rule in 1971.  The same was obstructed  by an injunction issued by the single  Judge  of the  High Court in a writ petition filed by  the  petitioner (Civil Rule No. 1395 (W) of 1972).  However, at the time  of final  hearing, the learned single Judge recalled  the  Rule and the injunction issued on the ground that he was kept  in the  dark regarding the direction of the appellate court  in appeal  No. 454 of 1971.  The petitioner did not prefer  any appeal against the decision of the learned single Judge  but filed  a  writ  petition  in  this  Court.   The  petitioner contended  that on a true interpretation of the  Rules,  the vacancy in the post of Headmistress at Kharagpur ought to be treated  as  an unreserved vacancy and, secondly,  that  the carry  forward  provision  of  the  rules  is  violative  of articles  14  and 16 of the Constitution.   The  respondents raised a preliminary objection to the maintainability of the writ  petition  on the ground that the same  was  barred  by principles analogous to res-judicata. 2-1-447 Sup CI/74 2 Rejecting the petition, HELD  :  (1)  The vice of the original  carry  forward  rule contained  in  the  memorandum of January 28,  1952  of  the Ministry  of Home Affairs, regarding excessive weightage  to to the Scheduled Castes and Scheduled Tribes pointed out  by Devadasan’s case was cured by the Home Ministry’s Memorandum of December 4, 1963 (as modified from time to time) and  the Railway  Administration’s letter of October 6. 1964 and  its amendments.   The modified carry forward rule provided  that in  any  recruitment  year, the number  of  normal  reserved vacancies and the ’carried forward’ vacancies together shall not  exceed 45% of the total number of vacancies".  It  also provided  that the reservation shall not continue  for  more than two years.  The Rule also prescribed that if there  are two  vacancies,  not more than one should be  treated  as  a reserved  vacancy but if there was only one vacancy  in  the recruitment  year,  it should be treated  as  an  unreserved post.  The Roster prepared by letter dated January 16,  1964 of  the Railway Administration as also its  modification  on August 23, 1971, designed to recruit two people where  there was  only  one vacancy, reduced the eventual  hardship  that might  be caused to the Scheduled Castes & Scheduled  Tribes employees.  The Carry Forward rule is thus no longer open to the  ,objection that the reservation is so excessive  as  to create  in  Government employment a monopoly  in  favour  of

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backward classes or to disturb unduly the legitimate  claims of other communities. [9E-G] (2)  The  petitioner’s objection to the letter dated  August 23,  1973  of the Railway Administration  and  the  impugned Memorandum  of  November 6, 1971, for the selection  of  two candidates,  on the ground that the Railway  Board’s  letter dated January 16, 1964, provided "that if there be only  one vacancy, it should be treated as unreserved", was untenable. Such  a construction would rob the rule of carry forward  of its  prime  significance and will render it  illusory.   The open  class  reaped the benefit in 1966-67 when  a  reserved vacancy at Adra was treated as unreserved by the appointment of  an  open  candidate, Smt.  Gita Biswas.   If  the  carry forward  rule is to be given any meaning the  vacancy  shall have  to  be carried forward for the  benefit  of  Scheduled Castes and Scheduled Tribes until the close of the financial year 1968-69.  The Kharagpur vacancy was to be filled in  on January  1,  1969 and hence it cannot go to  the  petitioner who, admittedly, does not belong to the reserved class.  The construction sought to be put on the rule, by the petitioner would  perpetuate a social injustice which has  clouded  the lives of a large section of humanity which is struggling  to find its feet.  Such a construction is contrary to the plain language of the letter of the Railway Board, the  intendment of the rule and its legislative history [10D-11C] T.   Devadasan  v. Union of India anr. [1964] 4  S.C.R.  680 explained. M.   R.  Balaji  & ors. v. State of Mysore  [1963]  Supp  1. S.C.R. 439 referred to. (3   )  As  the  petition  No. 1395 of  1971  filed  by  the petitioner  in the High Court was not dismissed  on  merits, the present petition cannot be barred by res judicata or  by the  application  of  any principle analogous  to  it.   The petitioner  was  not a party to the writ petition  filed  by respondent  No. 8 in the High Court and she had  not  sought any  relief, directly or indirectly, against the High  Court judgment   in  the  said  petition  but  had   independently challenged  the  legality of the carry  forward  rule.   The maintainability of the petitioner under Art. 32 is therefore not open to challenge. [6F-H]. Daryao and Ors. v. The State of U.P. & Ors., [1962] 1 S.C.R. 474 and Tilokchand Motichand & Ors. v. H. B. Munshi &  Anr., [1969] 2 S.C.R. 824. relied on. M.  K.  Gopalan and Ant-. v. The State  of  Madhya  Pradesh, [1955]  1  S.C.R. 168 and Tilokchand Motichand’s  v.  H.  D. Munshi,  [1969] 2 S.C.R. 824 and Mirajkar’s case,  [1966]  3 S.C.R. 744, distinguished.

JUDGMENT: ORIGINAL JURISDICTION : Writ petition No. 459 of 1972. Under  article  32  of the Constitution  of  India  for  the enforcement of fundamental rights. Purshottam Chatterjee and Rathin Das, for the petitioner. 3 F.   S.  Nariman,  Additional Solicitor General  and  M.  N. Shroff for respondents Nos. 1-5. A.   N.  Sinha,  Dilip  Sinha  and  G.  S.  Chatterjee,  for respondent No. 9. Respondent No. 8 appeared in person. The Judgment of the Court wag delivered by CHANDRACHUD,  J.-The  petitioner, Shrimati Arati  Ray  Chou- dhury, is a permanent employee in the South Eastern Railway- a  Government  of India Undertaking-which  runs  two  Higher

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Secondary  Schools  for  girls  one at  Adra  and  other  at Kharagpur.   Broadly stated, the question which we  have  to decide in this petition under article 32 of the Constitution is  whether the vacancy in the post of the  Headmistress  of the Kharagpur school can be treated as being reserved for  a Scheduled Caste candidate, a question which depends for its decision both on the interpretation and the validity of  the ’Carry forward’ rule.  The petitioner assails that rule  and contends  that the vacancy is open to all  candidates  while respondent  No. 8, who belongs to Scheduled Caste,  contends for a contrary position. In  August  1966,  a  vacancy  arose  in  the  post  of  the Headmistress  of  the Adra school and was filled up  on  the footing  that  it was unreserved.  The Headmistress  of  the Kharagpur school was due to retire with effect from  January 1,  1969  and  therefore on December  5,  1968  the  Railway administration formed a panel of candidates for selection to that  post  and  fixed December 18, 1968 as  the’  date  for holding interviews.  The names of four Assistant  Mistresses called for selection, were arranged in the panel  seniority- wise, the petitioner occupying the top place and  respondent No.  8 the third place.  The meeting of the 18th was  stayed by  the Calcutta High Court in a Writ Petition  (Civil  Rule No.  2117W  of  1968)  brought  by  respondent  No.  8   for readjustment  of  her seniority.  On December 28.  1969  the petitioner was asked to take over charge of the post and  on January  4.  1969  she  was  promoted  to  officiate  as   a Headmistress,  "purely on local stop-gap basis", and on  the express  condition that the promotion will  not-confer  upon her any right or title to the Post. Respondent  No.  8 then filed another Writ Petition  in  the Calcutta  High Court (Civil Rule No. 499(W) of 1969)  asking that  the  notice  of December 5, 1968  be  quashed  as  the vacancy  in  the post of the Headmistress of  the  Kharagpur school  ought  under the relevant rules, to  be  treated  as being  reserved  for  a Schedule Caste  candidate.   In  the meanwhile,  the stay order issued in Writ Petition  2117  of 1968  was vacated by the High Court and therefore  on  April 15,  1969 the Railway administration issued a  fresh  notice fixing  the interviews of the four candidates on  April  29. This  attempt  also  proved abortive  as  respondent  No.  8 obtained  in  Writ  Petition  499  of  1969  an   injunction restraining the authorities from holding the interviews. On December 24, 1970 a learned single Judge of the  Calcutta High  Court allowed Writ Petition 499 of 1969, holding  that the post 4 in  question  must  be  treated as  being  reserved,  for  a Scheduled Caste candidate and that therefore respondent  No. 8  was alone entitled to appear before the  selection  Board for  her  appointment  as Headmistress of  the  said  Girls’ school." Neither the petitioner nor the two other candidates were impleaded to this petition.  The Union of India was the first  respondent and the Chief Personnel Officer of the  S. E.  Railway, the second respondent to the  petition.   These respondents  carried  an appeal (No. 454 of 1971)  from  the judgment of the learned single Judge but it was dismissed by a Division Bench on September 14, 1971. Respondent  No. 8 filed three contempt petitions, one  after another against the Railway administration for their failure to  comply with the directions issued by the  Calcutta  High Court  in  Writ Petition No. 499 of 1969, In  the  first  of these petitions (Civil Rule No. 4014 W of 1971), a  Division Bench  of, the High Court, by its judgment of June 7,  1972, asked  the Railway administration to comply within a  period

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of  three months with the directions issued earlier  by  the High  Court  by asking the petitioner to appear  before  the Selection  Board.  The learned Judge however made  it  clear that the Selection Board would be at liberty to consider the suitability of the petitioner.  Whether such a clarification could  be made in the contempt petition filed by  respondent No. 8 is open to doubt, but nothing really turns on it.  The course  which the other two contempt petitions took is  also not relevant for the purpose of the present petition. On November 6, 1971 the Chief Personnel Officer of the S. E. Railway issued a Memorandum stating that it was "decided  to hold a selection to draw up a panel of 2 approved candidates to  fill the post of Headmistress", one post being  reserved for  the  scheduled caste against the existing  vacancy  and another  "to cover unforeseen requirement-unreserved".   The petitioner  filed a writ petition (Civil Rule No.  1395W  of 1972) in the Calcutta High Court to challenge the memorandum and  in the fashion of connected proceedings, she  impleaded to her petition the Railway administration and the Union  of India  but  none  of  her three  competitors  who  would  be directly  affected  by any order passed in her  favour.   On February  11,  1972,  a  learned  single  Judge  granted  an injunction  in  that writ petition restraining  the  Railway administration  from making any appointment on the basis  of the  memorandum of November 6, 1971.  Later in August  1972, the  three other Assistant Mistresses, including  respondent No. 8, were impleaded to the writ petition. Despite the order of injunction, the Railway  administration issued a letter on August 19, 1972 asking respondent No.  8 to  appear  before a Selection Board on August  30.   It  is patent  that in doing this the Railway administration  acted contrary  to the terms of the injunction dated February  11, 1972.   But, they were truly between Scylla  and  Charybdis. On  the one hand, they had to comply with the orders  passed in  Writ  Petition  No. 499 of 1969 under  which  they  were directed  to  treat the vacancy as being  reserved  for  the scheduled caste ’lid to interview respondent No. 8 only  for the post.  On the other 5 hand,  they were faced with the injunction of  February  11, 1972   by  which  they  were  restrained  from  making   any appointment  to the post on the, basis that the vacancy  was reserved  for  the  scheduled caste, We  suppose  that  they escaped through the horns of the dilemma by making a  breach of the order which was later in point of time.  But this  is not  all.   Shrimati Lila Bhattacharyya,  respondent  No.  9 before  is,  who  was one of the  four  contenders  for  the Headmistresses’  post had also obtained an injunction  in  a writ petition filed by her in the Calcutta High Court (Civil Rule No. 5680W of 1970), restraining the Administration from making  appointment to the post of the Headmistress  of  the Kharagpur school, without considering her claim to the post, Finally, the petitioner approached the High Court once again and on September 18, 1972 obtained an injunction once  again in  terms  of the earlier injunction of February  11,  1972. The  Railway  administration had to fend their  way  through this network of injunctions. Writ Petition No. 1395 of 1972 filed by the petitioner  came for hearing before a learned single Judge on October 3, 1972 when  he  felt "no rule should have been issued and  in  any case, no interim order should have been granted contrary  to the  direction of the Appeal Court by me and I did  so  only because  I  was  entirely kept in  the  dark  regarding  the earlier proceeding", namely Writ Petition 499 of 1969, filed by respondent No. 8 in which the Railway administration  was

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asked  to  treat  the vacancy as a  reserved  vacancy.   The learned Judge therefore recalled the Rule and dismissed  the petition. The  petitioner  did not appeal from this  judgment  but  on October  1  1,  1972 she filed the  present  petition  under article   32   of  the  Constitution   impleading   thereto, fortunately,  all  the necessary parties.  Respondent  1  to petition  is  the  Union of India, respondents 2  to  5  are officers of the Railway administration, respondent 6 is  the Union Public Service Commission while respondents 7 to 9 are the 3 rival claimants to the post of the Headmistress.   The petitioner  prays for a mandamus asking respondents 1  to  5 (i) not to give effect to the rules relating to  reservation of  posts  for candidates belonging to schedule  castes  and scheduled  tribes,  particularly the "Carry  forward’  rule; (ii) to withdraw the order dated November 6, 1971; (iii)  to allow  her,  the  petitioner to continue in her  post  as  a Headmistress  of the Kharagpur school and (iv) to allow  her to continue in the revised scale of pay: Rs. 700-1100.  Rule Nisi was issued on this petition on October 23, 1972 and  it was  directed  that  status quo be  maintained  pending  the hearing of the notice of motion for stay.  The interim order directing  the  maintenance  of status quo  was  vacated  on February 27, 1973 after hearing the respondents.  The  Chief Personnel Officer, thereafter, passed an order on March  21, 1973  that  respondent No. 8 be posted  immediately  as  the Headmistress  of  the Kharagpur school, subject  to  certain conditions. The  learned Additional Solicitor General appearing for  the Union of India and respondent No. 8 appearing in person have raised  a  preliminary objection to the  maintainability  of this  petition.  They contend that the petitioner  ought  to have pursued her remedies against 6 the  judgment  dated  October 3, 1972  dismissing  her  writ petition  (1395W  of 1972) and since she has  acquiesced  in that-judgment  it is not open to her to bring this  petition under article 32 of the Constitution, for the same  reliefs. We  are  not disposed to accept this  objection.  and  would prefer to deal with the petition on its merits. it is true that long back in 1955 this Court had held in  M. K. Gopalan and Anr. v. The State of Madhya Pradesh(1)  that, except  for  good reasons the practice  of  approaching  the Supreme  Court  directly under article 32 in  matters  which have been taken to the High Court and found against, without obtaining   leave  to  appeal  therefrom,  is  not   to   be encouraged.   Recently in Tilokchand Motichand & Ors. v.  H. B.,  Munshi  &  Anr.(2)  it was  observed  that  this  Court refrains from acting under article 32 if the petitioner  had already moved the High Court under article 226. in the words of Hidayatullah C.J. "this constitutes a comity between  the Supreme Court and the High Court" and, since the  motivating factor  is  the  existence of  a  parallel  jurisdiction  in another  court,  if  that court has been  moved  this  Court insists on bringing the decision of that court before it for review.  But the distinguishing feature of the instant  case is  that the High Court dismissed the writ petition  not  on merits,  though  by  a speaking order.   The  learned  Judge thought  that  it  was  not just  and  proper"  for  him  to entertain the petition under article 226 because if he  were to  grant  any  relief  therein, it  would  clash  with  the judgment  rendered  by the Division Bench on  September  14, 1971  in appeal No. 455 of 1971 confirming the  judgment  of the  single Judge dated December 24, 1970, holding that  the vacancy  must  be  treated as a  reserved  vacancy  for  the

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schedule caste and that respondent No. 8 was alone  entitled to be considered for the post from amongst the 4 candidates. The   learned  Judge  therefore  "recalled"  the  Rule   and dismissed the petition without considering the merits of the contentions  raised, before him by the petitioner.   As  the petition  filed in the High Court under article 226 was  not dismissed  on merits, the present petition cannot be  barred by  res  judicata  or by the application  of  any  principle analogous  to it. (See Daryo and Ors. v. The State  of  U.P, and  Ors.  and  its true application .is  explained  in  the judgments of Sikri J., Bachawat J.,, Mitter J. and Hegde  J. in  Tilok Chand’s case at pp. 833, 839, 855 and 856  of  the Report.) Nor  do  we  see  any substance  in  the  other  preliminary objection that as in Mirajkar’s case (3), the true grievance of the petitioner is that the judgment of the High Court has infringed  her  right  to  equal  opportunity  and  such   a grievance cannot be made.  The petitioner was not a party to the  proceedings in which the judgment was rendered  by  the High Court and her contention now is that the various  rules and  notifications  including  the Carry  forward  rule  are violative  of  her rights and therefore  the  memorandum  of November 6, 1971 should be struck down as  unconstitutional. No relief is sought by her directly or indirectly, either as a  matter  of  substance or of form,  against  the  judgment rendered  by  the High Court in the writ petition  filed  by respondent No. 8. (1)  [1955] 1 S. C. R. 168, 174. (2) [1991] 2 S. C. R. 824. (3)  [1966] 3 S. C. R. 744. 7 That  takes  us to the merits of the challenge made  by  the petitioner  to the Rules providing for reservation of  posts for  scheduled castes and scheduled tribes.  The  contention is  that on a true interpretation of the Rules, the  vacancy in  the  post of the Headmistress of  the  Kharagpur  school ought  to be treated as an unreserved vacancy  and  secondly that  the Carry forward provision of the rules is  violative of articles 14 and 16 of the Constitution In M.  R. Balaji and Ors. v. State of Mysore (1) this Court struck down as uncontitutional an order by which 68 per cent of  the Seats in educational institutions were reserved  for scheduled   castes,   scheduled   tribes   and   the   other educationally and socially backward classes.  The court  was reluctant to suggest a proper percentage of reservation  but bearing  in mind that "the. interests of weaker sections  of society  which  are  a first charge on the  states  and  the Centre  have  to  be  adjusted with  the  interests  of  the community as a whole", it observed that .’speaking generally and in a broad way, a special provision should be less  than 50%;  how much less than 50% would depend upon the  relevant prevailing circumstances in each case". Following   this   decision,  the   majority   observed   in Devadasan’s  case that in order to effectuate the  guarantee contained in article 16(1), each year of recruitment has  to be considered separately by itself for, "the reservation for backward communities should not be so excessive as to create a  monopoly  or to disturb unduly the legitimate  claims  of other communities".  Then rule which fell for  consideration in that case was contained in a Memorandum dated January 28, 1952  of  the Ministry of Home Affairs, as modified  by  the Memorandum of May 7, 1955.  The Memorandum provided : "If  a sufficient  number of candidates considered suitable by  the recruiting   authorities,   are  not  available   from   the communities  for whom reservations are made in a  particular

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year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates.  The number  of reserved vacancies thus treated as unreserved will be  added as an additional quota to the number that would be  reserved in  the  following  year in the normal course;  and  to  the extent  to  which approved candidates are not  available  in that  year  against this additional quota,  a  corresponding addition should be made to the number of reserved  vacancies in  the  second following year".   However,  the  unutilised quota was not to be carried forward for more than two years. As a result of the Carry forward rule, 29 out of  45 vacancies were filled from amongst the members of  scheduled castes    and   scheduled   tribes,   the   percentage    of reservation coming to 64.4.   The  rule was struck  down  as reservation of vacancies in excess of 50 per cent was deemed unconstitutional. The  decision in Devadasan’s case was rended on  August  29, 1963  and on December 4, 1963 the Ministry of  Home  Affairs issued  a memorandum modifying the Carry forward rule so  as to  comply with the decision.  By Para 2 of  the  Memorandum (as  amended  by the Memorandum of September 2,  1964),  the Carry forward rule was (1) [1963] Supp.  1 S.C.R. 439. (2) [1964] 4 S.C.R 680. 8 amended  by  providing that "in any  recruitment  year,  the number  of  normal  reserved  vacancies  and  the   "carried forward’ reserved vacancies together shall not exceed 45 per cent  of  the total number of vacancies"  Nevertheless,  "if there be only two vacancies one of them may be treated as  a reserved  vacancy.   But if there be only  one  vacancy,  it shall be treated as unreserved. The surplus above 45%  shall be  carried forward to the subsequent year  of  recruitment, subject  however,  to  the  condition  that  the  particular vacancies  carried forward do not become time barred due  to their  becoming more than two years old." The Note  appended to  the  Rule defines a ’Recruitment year’  as  a  ’calendar year’  and says that for purposes of the two year limit  for the carry forward  of reserved vacancies,  recruitment  year shall mean the year in which recruitment is actually made. By a letter dated October 6, 1964 of the Railway Board, this Note was modified in its application to the Railway Services to  the  extent  that  ’Recruitment  year’  was  to  be  the financial year and not the calendar year. Acting in pursuance of the Home Ministry’s Memorandum  dated December 4, 1963 as modified from time to time, the  Railway Board  by  its  letter of January 16, 1964  prepared  a  new "Model   Roster"  signifying  the  turns  of  reserved   and unreserved  vacancies.  Under this Roster 12.5 per  cent  of the  vacancies were reserved for scheduled castes and 5  per cent for the scheduled tribes.  The Roster runs thus: Point on the Roster      Whether Unreserved or Reserved for 1                        Scheduled Castes 2-3                      Unreserved 4                        Scheduled Tribe 5-8                      Unreserved 9                        Scheduled Castes 10-16                    Unreserved 17                       Scheduled Castes 18-20                    Unreserved 22-24                    Scheduled Tribes 22-24                    Unreserved 25                       Scheduled Castes 26-32                    Unreserved 33                       Scheduled Castes

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34-40                    Unreserved The  Note  appended  to the  Roster  contains  an  important explanation:  "If there are only two vacancies to be  filled on  a particular occasion, not more than one may be  treated as  reserved and if there be only one vacancy, it should  be treated as unreserved.  If on this account a reserved  point is  treated  as unreserved, the reservation may  be  carried forward  in the subsequent two recruitment years." In  order to  remove  a  still surviving grievance  of  the  scheduled castes  and  scheduled  tribes that in spite  of  the  model roster  they were denied appointments whenever there  was  a single  vacancy, such vacancies being invariably treated  as unreserved irrespective of the point of the roster at  which they 9 occur, the Railway Board by their letter of August 23,  1971 "desired" that "if there is one post to be filled, selection should  invariably be held for two posts, i.e.,  one  actual and the other to cover unforeseen circumstances." It was  in pursuance of these instructions that on November 6, 1971 the Chief  Personnel  Officer  of the S.E.  Railway  issued  the impugned  order  stating  that it was  "decided  to  hold  a selection  to  draw up a panel of 2 approved  candidates  to fill the post of Headmistress.... (i) One post (Reserved for Scheduled Caste) against an existing vacancy. (ii) One  post to cover unforeseen requirement-unreserved". We have set out the rules leading to the final order in some fulness  with a view to showing how, from time to time,  the rules  were  adapted  to meet the requirements  of  the  law declared  by  this  Court.  The vice of  rules  impugned  in Devadasan’s  case  was that though the  unutilised  reserved quota  could not be carried forward for more than  2  years, the  carry  forward mechanism envisaged by the  rules  could almost completely swamp recruitment to open, general  seats. The  court  illustrated the "startling effect of  the  carry forward  rule"  contained in the Memorandum of  January  28, 1952  as modified in 1955 by taking a hypothetical  example: If  in each of the first 2 years of recruitment,  the  total number of seats to be filled in was 100, 18 vacancies  would have  to be treated as reserved in each year.   If  suitable candidates  were  not  available  to  fill  these   reserved vacancies, the reservation would have to carried forward  to the  third year, though not beyond it.  If the total  number of  seats  for  recruitment in the third year  was  50.  the backlog  of 36 seats with the addition of 9  reserved  seats for  the  current year would cover 45 out of  50  vacancies, leaving  only 5 vacancies for open recruitment.   This  vice was  effectively  rectified  soon  after  the  judgement  in Devadasan’s  case by the issuance of the Memorandum of  Dec- ember  4,  1963  as amended on September 2,  1964.   It  was specifically  directed by these curative prescriptions  that "in  any  recruitment year, the number  of  normal  reserved vacancies  and  the  ’carried  forward’  reserved  vacancies together shall not exceed 45 per cent of the total number of vacancies".   The  rules  thus are no  longer  open  to  the objection that the reservation is so excessive as to  create in  Government employment a monopoly in favour  of  backward classes or to disturb unduly the legitimate claims of  other communities. The  model  roster accompanying the letter  of  the  Railway Board  dated  January  16,  1964 is  designed  to  meet  the requirements  of the new situation arising out of the  rules framed  in  deference to the judgment in  Devadasan’s  case. Both  the letter and the Note appended to the  roster  state expressly that if "there are only two vacancies to be filled

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on  a particular occasion, not more than one may be  treated as  reserved and if there be only one vacancy, it should  be treated   as  unreserved".   The  words  "on  a   particular occasion" were substituted on September 2, 1964 by the words "year  of recruitment".  Thus, in the first place each  year of  recruitment is directed to be considered separately  and by  itself  as laid down in Devadasan’s(1) case so  that  if there  are only two vacancies to be filled in  a  particular year  of.  recruitment,  not more than one  vacancy  can  be treated as reserved.  Secondly, (1)  [1964] 4 S.C.R. 680. 694- 695. 10 and  that is directly relevant for our purpose, if there  be only   one  vacancy  to  be  filled  in  a  given  year   of recruitment, it has to be treated as unreserved irrespective of  whether  it  occurs in the model roster  at  a  reserved point.  The appointment then is not open to the charge that the  reservation exceeds 50% for, if the very first  vacancy in  the first year of recruitment is in practice treated  as reserved  vacancy, the system may be open to  the  objection that  the  reservation not only exceeds 50% but is  in  fact cent  per cent.  But, if "on this account", that is to  say, if on account of the requirement that the first vacancy must in  practice be treated as unreserved even if it  occurs  in the  model roster at a reserved point, "a reserved point  is treated as unreserved the reservation can be carried forward to not more than two subsequent years of recruitment.  Thus, if  two  vacancies occur, say, within an  initial  span  (if three  years,  the  first vacancy has to be  treated  as  an unreserved vacancy and the second as reserved. That  is  precisely what happened here.  The S.  E.  Railway runs  only two Secondary Schools for girls, one at Adra  and the  other at Kharagpur.  The vacancy at Adra was filled  on August  16,  1966  by the appointment  of  the  senior  most Assistant Mistress, Smt.  Gita Biswas.  In pursuance of  the Memorandum  dated December 4, 1963 of the Ministry  of  Home Affairs, the Railway Board revised the model roster by their letter of January 16, 1964.  The first point in this  roster is  a  reserved  point and therefore the  Adra  vacancy  was strictly  a  reserved  vacancy.  But there  being  only  one vacancy in the particular year of recruitment, it had to  be treated as unreserved and therefore the appointment, went to Smt.   Biswas,  an open, not a  reserved  candidate.   This, however, had to be compensated for by carrying forward  the, reservation,   though  not  over  more  than  2   subsequent recruitment  years.  For the purposes of Services under  the Railway   administration   ’recruitment  year’   means   the financial year’ and the Adra appointment having been made in the  financial  year 1966-67, it was  permissible  to  carry forward the reservation till the close of the financial year 1968-69.   There was no vacancy in 1967-68.  The vacancy  in the  post  of  the  Headmistress  of  the  Kharagpur  school occurred in the financial year 1968-69 by the, retirement of Smt.   Bina Devi with effect from December 31,  1968.   This vacancy,  indubitably,  had  to be  treated  as  a  reserved vacancy  and since from amongst the 4 Assistant  Mistresses, respondent  No.  8 was the only candidate belonging  to  the scheduled  caste,  she  was entitled to  be  considered  for selection to the post of the Headmistress, to the  exclusion of the other 3. The claims, if any, of the petitioner who is not a reserved candidate have to be postponed, though in the normal course it may be quite some years before she gets her turn.  The Adra Headmistress and respondent No. 8 would seem to have a long tenure in their respective offices. It  is urged that only one vacancy occurred in  1968-69  and

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since the letter of the Railway Board dated January 16, 1964 says  that  "if  there be only one  vacancy,  it  should  be treated  was  unreserved",  the Kharagpur  vacancy  must  be treated  as unreserved.  Such a construction would  rob  the rule  of  its prime significance and will render  the  carry forward provision illusory.  Though each year of recruitment is  to  be  treated separately and  by  itself,  a  reserved vacancy has to be carried forward 11 over 2 years, if it is not filled in by the appointment of a reserved  candidate.   The open class reaped  a  benefit  in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt.  Gita Biswas.  If the  carry  forward rule, has to be given any  meaning,  the vacancy shall have to be carried forward for, the benefit of scheduled castes and scheduled tribes until the close of the financial  year  1968-69.  The Kharagpur vacancy was  to  be filled  in on January 1, 1969 and hence it cannot go to  the petitioner who, admittedly, does not belong to the  reserved class.  The construction sought to be put on the rule by the petitioner  would  perpetuate a social injustice  which  has clouded  the lives of a large section of humanity  which  is struggling  to  find  its  feet.   Such  a  construction  is contrary to the plain language of the letter of the  Railway Board,  the  intendment  of the  rule  and  its  legislative history. We   may  mention  before  we  close  that  the   posts   of Headmistresses of the Railway Higher Secondary Schools  were upgraded  in  1969  as Class posts and in 1970  as  Class  I posts.  The reservation for scheduled. castes and  scheduled tribes  in  Class II posts was abolished  with  effect  from October 4, 1962 and in regard to Class I posts, there  never was  any  such reservation.   Different  considerations  may therefore  apply to future recruitment to these  posts,  but with  that we are not concerned here.  Nor are we  concerned to  consider  the Indian Railways  Higher  Secondary  School Recruitment  Rules,  1972,  which, now are  said  to  govern recruitment to the posts of Headmistresses. We  hope  that  this judgment will  finally  ring  down  the curtain  on the various proceedings pending in the  Calcutta High  Court  together  with various  interim  orders  passed therein  concerning  the appointment to  the  Headmistress’s post in the Kharagpur school. In the result the petition fails and the rule is discharged, but there will be no order as to costs. Petition dismissed. 12