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PETITIONER: B. N. TIWARI

       Vs.

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT: 10/12/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. AYYANGAR, N. RAJAGOPALA SIKRI, S.M.

CITATION:  1965 AIR 1430            1965 SCR  (2) 421  CITATOR INFO :  D          1974 SC1480  (11)  RF         1977 SC 879  (19)  RF         1986 SC 515  (103,106,107)

ACT: Central  Services-Reserved  quota for Scheduled  Castes  and Tribes "Carry forward" rule of 1952 modified in 1955-Amended Rule declared invalid-Effect.

HEADNOTE: In  1950 by a resolution of the Ministry of Home  Affairs  a reservation was fixed for scheduled castes and tribes to the extent  of  12  1/2%  and  5%  respectively  in  respect  of vacancies in public services to be filled from year to year. In  1952. a "carry forward" rule was introduced whereby  the unfilled  reserved vacancies of a particular year  would  be carried forward for on year only. In 1955 the above rule was substituted by another providing that the unfilled  reserved vacancies of a particular year would be carried forward  for two  years.  In 1960 a limited competitive  examination  was held by the Union Public Service Commission for promtion  to the  post  of Section Officers.  The petitioner who  was  an Assistant  in  the Central Secretariat Service  appeared  at this  examination  and secured the 37th rank.   Although  43 appointments  were made as a result of the  examination  the petitioner  could  not be appointed because under  the  1955 "carry  forward"  rule as many as 28 vacancies  were  to  be filled  by Scheduled caste and scheduled tribes  candidates. In 1963 the 1955 rule was declared invalid by this Court  in Devadasan’.s case, whereupon the petitioner filed a petition under  Art.  32.  He claimed that the 1952  "carry  forward" rule  having  been  substituted by the 1955  rule,  and  the latter  having been declared unconstitutional there  was  no "carry  forward" rule in existence in 1960 and therefore  by virtue  of  his  rank  in the examination  he  ought  to  be appointed to the post of Section Officer. HELD  : (i) When L 1952 "cary forward" rule was  substituted by  the rule of 1955 the former ceased to exist.   The  1955 rule  having been declared unconstitutional  in  Devadasan’s

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case there was no "carry forward" rule in existence in  1960 when the petitioner appeared at the examination. [426 F-G] (ii) It  must made clear that the judgment of this Court  in Devada.vans’  case was only concerned with that part of  the instructions of the Government of India which deal with  the "carry  forward"  rule;  it did not in  any  way  touch  the reservation for scheduled castes and scheduled tribes at  12 1/2% and 5% respectively.  This reservation had to be  given effect  to.  After allowing for these reservations  only  34 unreserved  vacancies  were  left  to  be  filled  and   the petitioner’s rank being lower, he could not succeed. [426 G- H; 428 A-B] T.  Devadasan  v.  Union of India, A.I.R. 1964  S.  C.  179, explained.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 110 of 1964. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. B.   Sen and B. N. Kirpal, for the petitioner. 422 C.   K.  Daphtary, Solicitor-General and B. R. G. K.  Achar, for the respondent Nos.  1 and 2. The Judgment of the Court was delivered by Wanchoo, J.-This petition under Art. 32 of the  Constitution is a sequel to the judgment of this Court in T. Devadasan v. Union of India(1).  The petitioner was Assistant in Grade IV of the Central Secretariat Service.  The next post which the petitioner  could  expect  to get  was  of  Section  Officer (Assistant  Superintendent).   Recruitment to  the  post  of Section Officer is made in the following manner :-               (i)50%  by direct recruitment from  those  who               obtain    lower    ranks   in    the    Indian               Administrative Service etc. examinations.               (ii)25  %  by promotion from Grade IV  on  the               basis  of a departmental examination  held  at               intervals   by   the  Union   Public   Service               Commission, and               (iii) 25 % by promotion from  Grade IV on  the               basis of seniority cum-fitness. In February 1960 the Union Public Service Commission  issued a  notification  to the effect that  a  limited  competitive examination  for promotion to the post of  Section  Officers would be held in June 1960.  The notification further stated that reservation of 121% of the available vacancies would be made for members of scheduled castes and 5% for the  members of  scheduled tribes.  The number of vacancies to be  filled was  to  be announced later.  The petitioner  sat  for  this examination and he is said to have secured the 37th position in order of merit.  Later, a press communique was issued  by the  Union  Public Service Commission in the  which  it  was stated  that the number of vacancies expected to  be  filled was 48 out of which 32 were reserved for schedule castes and scheduled tribes and 16 were unreserved.  Eventually however the Union Public Service Commission recommended 45 names for appointment,  16  of  which  were  unreserved  and  29  were reserved   against  vacancies  for  scheduled   castes   and scheduled  tribes.   Finally, however, the  Government  made only  43 appointments, 15 in the unreserved quota and 28  in the  reserved quota.  This heavy reservation  for  scheduled castes  and  scheduled tribes was made on the basis  of  the "carry forward" rule which was put into force from 1955. According to the resolution of the Ministry of Home  Affairs

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dated  September 13, 1950 reservation for  scheduled  castes and (1)  A.I.R. 1964 S.C. 179. 423 scheduled  tribes  was  fixed at 121%  and  5%  respectively without  anything  like the ’carry forward" rule.   In  1952 however  supplementary  instructions  were  issued  in  this connection in the following terms : -               "5(3).   If a sufficient number of  candidates               of  the communities for whom the  reservations               are made, who are eligible for appointment  to               the post in question and are considered by the               recruiting  authorities  as  suitable  in  all               respects for appointment to the reserved quota               of vacancies, are not available the  vacancies               that remain unfilled will be treated as  unre-               served  and  filled  by  the  best   available               candidates;  but  a  corresponding  number  of               vacancies  will be reserved in  the  following               year  for the communities whose vacancies  are               thus  filled up in addition to such number  as               would  originally be reserved for  them  under               the,orders contained in the.  Resolution.               "5(4).   If suitably qualified  candidates  of               the communities for whom the reservations have               been made are again not available to fill  the               vacancies  carried forward from  the  previous               year under clause (3) above, the vacancies not               filled  by them will be treated as  unreserved               and  the reservations made in those  vacancies               will lapse. As  a  result of these instructions reserved  vacancies  for scheduled  castes  and scheduled tribes which could  not  be filled  in one examination would be carried forward  to  the next  examination.   But if sufficient number  of  scheduled caste  and scheduled tribe candidates were not available  to fill  the  vacancies carried forward plus vacancies  of  the next year the vacancies were to be treatd as unreserved  and the  reservation made in those vacancies would lapse.   Thus according  to 1952 instructions the carry forward  was  only for  two years and thereafter there was no carry forward  in 1955  however.  Government made further change in the  carry forward rule and paras. 5 (3 ) and 5 (4) of the instructions of 1952 were substituted thus               ’5  (3  )  (a).  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  year,  the  unfilled               vacancies  should be Mated 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 L3 Sup./65-11                424               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.               "Thus the number of reserved vacancies of 1954               which  were treated as unreserved for want  of               suitable candidates in that year will be added

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             to the normal number of reserved vacancies  in               1955.  Any recruitment against these vacancies               in  1955  will first be  counted  against  the               additional  quota carried forward  from  1954.               If   however  suitable  candidates   are   not               available in 1955 also and a certain number of               vacancies    are   treated   accordingly    as               ’unreserved’ in that year, the total number of               vacancies  to be reserved in 1956 will be  un-               utilised balance of the quota carried  forward               from 1954 and 1955 plus the normal  percentage               of vacancies to be reserved in 1956.  The  un-               utilised  quota will not, however, be  carried               forward  in  this  manner for  more  than  two               years.               "An annual report of reserved vacancies  which               were   treated  as  unreserved  for  want   of               suitable  candidates from scheduled castes  or               scheduled tribes as the case may be should  be               forwarded  to the Ministry of Home Affairs  in               the form enclosed as Annexure I along with the               annual  communal returns  already  prescribed.               In  addition Ministries themselves  will  take               adequate steps to ensure that any lapse on the               part  of subordinate authorities in  observing               the reservation rules cannot go unnoticed by a               reviewing authority within the Ministry itself               at a sufficiently early date.               "  (b)  In the event of a  suitable  scheduled               caste   candidate  not  being   available,   a               scheduled tribe candidate can be appointed  to               the reserved vacancy and vice versa subject to               adjustment  in the subsequent point.%  of  the               roster." The result of this change was to carry forward the  unfilled vacancies  for  two  years and thus in the  third  year  the vacancies  to  be filled by scheduled  caste  and  scheduled tribe  candidates would be the un-utilised balance from  the previous  two  years  plus  the  normal  percentage  of  the vacancies  reserved in the third year.  Unlike the  rule  of 1952, this rule did not provide for any lapse 425 but  said  that the un-utilised quota will  not  however  be carried forward in this manner for more than two years.  The result of the substitution of the 1955 rule was that  paras. 5(3) and 5(4) of the 1952-rule ceased to exist and it was in pursuance  of  the 1955-rule that the Union  Public  Service Commission  announced  as already indicated that out  of  48 expected  vacancies, 16 would be unreserved and 32 would  be reserved for scheduled caste and scheduled tribe  candidate& Ibis  reservation was attacked in the, case of  Devadasan(1) and  this Court struck down the carry forward rule  of  1955 (in  place  of paras 5(3) and 5(4) of the 1952rule)  on  the ground  that the carry forward rule as modified in 1955  was unconstitutional.   No other relief besides the  declaration that  the 1955 carry forward rule was  unconstitutional  was granted  in Devadasan’s case(1).  It was however hoped  that the  department  concerned would implement the  decision  of this Court in an appropriate manner. The  petitioner  contends that the effect  of  this  Court’s judgment  in Devadasan’s case(1) is that there is  no  carry forward rule in existence as the 1955 carry forward rule was struck  down by this Court and the 1952 rule had  ceased  to exist by the substitution made by the Government of India in 1955.  The petitioner further contends that in view of there

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being no carry forward rule either of 1952 or of 1955  after the  judgment of this Court in Devadasan’s case(1) all  that the   Government  of  India  could  do  in  the  matter   of reservation  for  the examination conducted in 1960  was  to reserve  12 1/2% of the vacancies for scheduled  castes  and for  scheduled tribes.  In the alternative it  is  submitted that  if the carry forward rule of 1952 is still  deemed  to exist  that rule is also bad being violative of Art.  16  of the Constitution.  The petitioner finally contends that  the carry  forward rules of 1952 and 1955 being out of this  way and   the  only  reservation  that  was  possible   in   the examination of 1960 being 12 1/2% for scheduled castes and 5 % for scheduled tribes, he was entitled to be appointed’  on that  basis.  He therefore prays that a direction should  be issued  setting  aside appointments  of  certain  candidates belonging to scheduled castes and scheduled tribes over  and above  the  reserved  quota of 171 % and  the  Union  Public Service Commission should be directed to announce the result of  the said examination afresh after receiving 12 1/2 %  of the  vacancies  for scheduled castes and  5%  for  scheduled tribes. The  application is opposed on behalf of the Union of  India and  the  main contention urged is that even  if  the  carry forward rule (1)  A.I.R. 1964 S.C. 179. 426 of  1952  is  deemed  to  be  non-existent  because  it  was substituted   by  the  carry  forward  rule  of  1955,   the petitioner would not be entitled to be appointed in any case in view of the position he had secured in the examination. The  first  question therefore that arises  is  whether  the carry forward rule of 1952 can still be said to exist.   The next question is whether the carry forward rule of 1952,  if it  still  exists is bad for the same reasons as  the  carry forward  rule of 1955, as held by this Court in  Devadasan’s case(1).  The last question is whether the petitioner  would be entitled to appointment even if the carry forward rule of 1952 does not exist. We  shall  first  consider the question  whether  the  carry forward  rule  of  1952 still exists.  It is  true  that  in Devadasan’s  case(1), the final order of this Court  wag  in these terms : -               "In the result the petition succeeds partially               and the carry forward rule as modified in 1955               is declared invalid." That  however  does not mean that this Court held  that  the 1952rule  must  be deemed to exist because this  Court  said that the carry forward rule as modified in 1955 was declared invalid.  The carry forward rule of 1952 was substituted  by the  carry forward rule of 1955.  On this  substitution  the carry forward rule of 1952 clearly ,Ceased ’to exist because its place was taken by the carry forward rule of 1955.  Thus by  promulgating  the new carry forward rule  in  1915,  the government  of  India  itself cancelled  the  carry  forward rule,of  1952.   When therefore this Court struck  down  the carry  forward  rule as modified in 1955 that did  not  mean that the carry forward rule of 1952 which had already ceased to  exist, because the Government of India itself  cancelled it and had substituted a modified rule in 1955 in its place, could  revive.  We are therefore of opinion that  after  the judgment  of this Court in Devadasan’s case(1) there  is  no carry  forward  rule at all, for the carry forward  rule  of 1955  was struck down by this Court while the carry  forward rule  of  1952 had ceased to exist when  the  Government  of India  substituted  the carry forward rule of  1955  in  its

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place.  But it must be made clear that the judgment of  this Court  in  Devadasan’s case(2) is only concerned  with  that part  of the instructions of the Government of  India  which deal  with  the carry forward rule; it does not in  any  Way touch  the  reservation for scheduled castes  and  scheduled tribes at 12 1/2% and 5% respectively; nor does it touch the filing up of scheduled tribes vacancies by scheduled A.I.R. 1964 S.C. 179. 427 caste candidates where sufficient number of scheduled tribes are not available in a particular   year or vice versa,  The effect  of the judgment in Devadasan’s case(1) therefore  is only to strike down, the carry forward rule and it does  not affect the year to year reservation for scheduled castes and sheduled  tribes or filling up of scheduled tribe  vacancies by  a member of scheduled castes in a particular year  if  a sufficient  number  of scheduled tribe  candidates  are  not available  in that year or vice versa.  This  adjustment  in the  reservation  between scheduled castes  and  tribes  has nothing to do with the carry forward rule from year to  year either  of 1952 which, had ceased to exist or of 1955  which was  struck down by this Court.  In this view of the  matter it is unnecessary to consider whether the carry forward rule of  1952 would be unconstitutional, for that rule no  longer exists. This  brings us to the last question whether the  petitioner would be entitled to appointment on the basis that there was no  carry forward rule in existence in 1960.  Originally  it was notified that the number of vacancies expected were  48. On that basis the reservation for scheduled castes would  be 6  and  for  scheduled tribes would be 2.4.  But  as  it  is impossible  to get 2.4 individuals and the  reservation  for scheduled tribes is a minimum of 5%, they would be  entitled to  three vacancies.  Thus out of 48 expected  vacancies,  9 would  be  reserved vacancies and 39  would  be  unreserved. Actually  however the Public Service Commission  recommended only  45 names.  On the basis of 45, scheduled castes  would be  entitled  to 5.625 vacancies (i.e.  6  vacancies)  while scheduled tribes would be entitled to 2.25 vacancies (i.e. 3 vacancies).   In  actual effect however because one  of  the candidates recommended in the reserved quota died and one of the candidates out of the unreserved quota was appointed  to another  service,  the  Government of  India  made  only  43 appointments.  On this basis, the scheduled castes would  be entitled  to  5.375  vacancies (i.e. 6  vacancies)  and  the scheduled tribes to 2.15 vacancies (i.e. 3 vacancies).  Thus on  the actual appointments made the total  reservation  for scheduled  castes and scheduled tribes would be 9  while  34 would be available for the unreserved quota.  The petitioner secured  37th place in the unreserved quota.  Out  of  these 37,  one  unreserved  candidate  was  recruited  to  another service  and thus the petitioner’s position may  conceivably be said to have bettered and become 36th.  According to  the calculation  which  we have already indicated, 9 out  of  43 vacancies  actually filled will go to scheduled  castes  and scheduled tribes together and 34 (1)  A.I.R. 1964 S.C. 179. 428 would  go to the unreserved quota.  The  petitioner  however was  36th on the unreserved quota and therefore even on  the basis  of  there  being  no  carry  forward  rule  only   34 candidates would be appointed from the unreserved quota  and the  petitioner being 36th on his own showing can not  claim appointment.    The  petition  therefore  fails.    In   the circumstances we make no order as to costs.

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Petition dismissed.