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PETITIONER: DR. CHAKRADHAR PASWAN

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT08/03/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1988 AIR  959            1988 SCR  (3) 130  1988 SCC  (2) 214        JT 1988 (1)   496  1988 SCALE  (1)459

ACT:      Constitution of  India-Article  16(4)-  Reservation  of posts and  appointments for members of backward classes read with Art.  16(1)- Equal opportunity to all citizens relating to public  employment-Reservation  of  posts  for  scheduled castes/tribes must not be so excessive which would in effect efface the guarantee of equal opportunity Reservation of the only post  in cadre for scheduled caste candidate amounts to 100  per   cent  reservation-100  per  cent  reservation  is excessive  and   is  not   permissible  under   Art.  16(4)- Reservation of  first vacancy  in  a  particular  cadre  for scheduled caste candidate is violative of Art. 16(1).

HEADNOTE: %      The State  of Bihar  had a  Directorate  of  Indigenous Systems  of  Medicines  which  was  a  part  of  its  Health Department and  one Dr.  Nagesh Dwivedi was its Director. On 6.5.1978 the State Government created a separate Directorate of Indigenous  Medicines, the Director being from one of the systems of  medicines consisting  of  Ayurvedic,  Unani  and Homeopathic.  At  the  time  of  creation  of  the  separate Directorate, the  Government sanctioned  the  posts  of  two Deputy Directors  for each of the two remaining systems. The State Government  had in the meanwhile prescribed a 50 point roster to  implement the  policy of reservation to posts and appointments for  members of the backward classes under Art. 16(4). It was laid down that ’if in any grade, there is only one vacancy for the first time, then it will be deemed to be unreserved and  for the  second time  also, if there be only one vacancy,  then it will be deemed to be reserved’. Acting upon this  roster the Government reserved the post of Deputy Director (Homeopathic)  for a scheduled caste candidate. The Public Service  Commission on being moved by the Government, issued an  advertisement inviting  applications from members of the  scheduled caste  and the  appellant was selected for appointment to  the post.  Respondent No.  4 challenged  the selection of  the appellant  in the  High Court  by filing a petition under  Article 226 of the Constitution. In October, 1982 an  additional post  of Deputy Director (Ayurvedic) was created and filled.

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    The High  Court allowed  the writ  petition and quashed the  said   advertisement  and   the  consequent   order  of appointment of the appel- 131 lant. The  High Court  was of  the view  that  the  post  of Director and  three Deputy  Directors could  not be  clubbed together for  reservation of  posts  and  appointments.  Nor could the  posts of  Deputy Directors Homeopathic, Ayurvedic and Unani  which  form  distinct  and  separate  systems  of medicines be grouped for purposes of reservation.      The appellant  contended that  there were four posts in the Directorate  of Indigenous  Medicines and  all the posts were Class  I posts  and therefore according to the 50 point roster  the   post  of   Director  having  been  treated  as unreserved by  the Rotational  system, the  post  of  Deputy Director (Homeopathic)  was rightly reserved for a scheduled caste candidate.      Dismissing the appeal, this Court, ^      HELD: The posts of the Director and those of the Deputy Directors constitute  different cadres of the service. It is manifest  that  the  post  of  the  Director  of  Indigenous Medicines, which  is the  highest post  in  the  Directorate carried on  a higher  grade or  scale, could not possibly be equated with  those of the Deputy Directors on a lower grade or scale. In view of this, according to the 50 point roster, if in  a particular  cadre a  single post  falls vacant,  it should, in  the case  of first  vacancy,  be  considered  as general. That  being so, the State Government could not have directed  reservation   of  the   post  of  Deputy  Director (Homeopathic) which  was the  first vacancy  in a particular cadre i.e.  that of  the Deputy  Directors,  for  candidates belonging to  the schedule  castes. Such reservation was not in conformity  with the principles laid down in the 50 point roster  and  was  impermissible  under  Art.  16(4)  of  the Constitution  and   clearly  violative   of  the   guarantee enshrined in Art. 16(1) of equal opportunity to all citizens relating to  public employment.  Clause (4) of Art. 16 is by way of  an exception of the proviso to Art. 16 (i). The High Court rightly  held that  the reservation  of  the  post  of Deputy Director  (Homeopathic) amounted  to 100% reservation which was  impermissible under  Art. 16(4)  as otherwise  it would render  the guarantee  of  equal  opportunity  in  the matter of  public employment under Art. 16(1) wholly elusive and meaningless. [137F-H; 138A-C]      If there is only one post in the cadre, there can be no reservation under  Art. 16(4) of the Constitution. The whole concept of  reservation for  application  of  the  50  point roster is  that there  are more  than  one  posts,  and  the reservation as laid down by this Court in M.R. Balaji’s case can be  upto  50%.  The  Government  cannot,  for  instance, declare  that   the  post  of  the  Director  of  Indigenous Medicines shall be reserved 132 for  candidates   belonging   to   scheduled   castes.   The Directorate is  a paramedical  service with  Director as its head and  the three  Deputy  Directors  belonging  to  three distinct and  separate disciplines  viz. Homeopathic,  Unani and Ayurvedic  under him.  In the  para-medical  system  the three posts  of Deputy  Directors pertain  to three distinct systems and  therefore each  of them  is an isolated post by itself. The same principles should, we think, as in the case of Director,  apply. We  refrain from expressing any opinion on the  aspect whether  the isolated posts like those of the Deputy Directors  can be subjected to the 50 point roster by

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the rotational  system as  it does  not arise in the present case. Assuming that the 50 point roster applied, admittedly, the first  vacancy in the cadre of Deputy Directors was that of the  Deputy Director  (Homeopathic)  and  it  had  to  be treated as  unreserved, the  second reserved  and the  third unreserved.  The   first  vacancy  of  the  Deputy  Director (Homeopathic) in  the  cadre  being  treated  as  unreserved according to  the roster,  had to  be thrown  open to all. A candidate belonging  to the Scheduled caste had therefore to compete with others. [138C-G]      The three  posts of  Deputy  Directors  of  Homeopathic Unani and  Ayurvedic  are  distinct  and  separate  as  they pertain to  different disciplines  and each  one is isolated post by  itself carried  in the  same cadre. There can be no grouping of  isolated posts  even if they are carried on the same scale. The Government of India instructions relating to reservations of  posts and  appointments for  the  scheduled castes and  scheduled tribes  contained in  the Brochure  on Reservation for  Scheduled Castes  and Scheduled  Tribes  in Services and which have been issued to carry out the mandate of Art. 16(4) consistent with the equality clause under Art. 16(1) and  16(2) and  the requirements  of Art. 335, namely, the maintenance of efficiency of administration clearly show that there  can be no grouping of one or more isolated posts for purposes  of reservation.  To illustrate,  Professors in medical colleges  are carried on the same grade and scale of pay but  the posts  of Professor of Cardiology, Professor of Surgery,  Professor  of  Gynecology  pertain  to  particular disciplines  and   therefore  each   is  an  isolated  post. [138H; 139A-F]       Article  16(4) is  an exception to Art. 16(1) and Art. 16(2) and  therefore the  power to  make a special provision for reservation  of posts  and appointments in favour of the backward classes  must not  be so  excessive which  would in effect efface  the guarantee  of equal  opportunity  in  the matter of  public employment or at best make it illusory. We are not  aware of any decision of this Court where excessive reservation of  appointments  or  posts  in  favour  of  any backward class  of citizens  to the  extent of 100% has been upheld, except in the application of the carry forward rule. [139G-H] 133      M.R. Balaji  & Ors. v. State of Mysore, [1963] Suppl. 1 S.C.R. 439;  T. Devadasan v. Union of India & Anr., [1964] 4 S.C.R. 680;  State of  Kerala &  Anr. v. N.M. Thomas & Ors., [1976] 1 S.C.R. 906; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.  Union of  India &  Ors., [1981]  2 S.C.R. 185; State of  Karnataka v.  Shivaji Y.  Garge (C.A.  No. 4117 of 1984 decided  on 19th  October, 1984;  K.C. Vasanth  Kumar & Anr. v.  State of  Karnataka, [1985]  Suppl. S.C.C.  714 and Arati Ray  Choudhury v.  Union of  India &  Ors.,  [1974]  1 S.C.R. 1, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2315 of 1981.      From the  Judgment and  order dated  16.5.1980  of  the Patna High Court in Writ Jurisdiction Case No. 1430 of 1979.      S.R. Srivastava for the Appellant.      D. Goburdhan and A. Sharan, for the Respondents.      The Judgment of the Court was delivered by      SEN, J.  This appeal  by special  leave is  against the judgment and  order of  the Patna High Court dated 16th May,

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1980 allowing  the writ  petition filed  by respondent No. 4 Dr. Kameshwar Prasad and quashing the impugned advertisement No. 121/1978  issued by  the Bihar Public Service Commission inviting  applications  for  the  post  of  Deputy  Director (Homeopathic) in  the Directorate  of Indigenous  Medicines, Health Department,  State  of  Bihar  from  scheduled  caste candidates, and the consequent order of the State Government dated 30th  May, 1979  for the  appointment of the appellant Dr. Chakradhar Paswan to that post.      A few essential facts would elucidate the nature of the controversy. Prior  to 1974  the Directorate  of  Indigenous Systems of Medicines was a part of the Health Department. On 14th March,  1974 the  State Government appointed Dr. Nagesh Dwivedi,  Manager,   State  Ayurvedic   and  Unani   Medical Pharmacy, Bihar  on an  ad-hoc basis to the post of Director (Indigenous Medicines).  He assumed  charge on  the next day and was  confirmed in  that post on 11th December, 1976. The State Government on 6th May, 1978 directed the creation of a separate Directorate  of Indigenous  Medicines, the Director being from  one of  the systems  of medicines  consisting of Ayurvedic, Unani and Homeopathic. At the time of creation of the separate Directorate, 134 the Government  sanctioned the posts of two Deputy Directors for each  of the two remaining systems. The State Government had in  the meanwhile  on the  basis of the decision of this Court in  M.R. Balaji  & Ors.  v. State  of Mysore,  [ 1963] Suppl. 1  SCR 439  by its  circular dated 8th November, 1975 prescribed a  50 point  roster to  implement the  policy  of reservation to  posts and  appointments for  members of  the backward classes under Art. 16(4). It was laid down that ’if in any  grade, there is only one vacancy for the first time, then it  will be  deemed to be unreserved and for the second time also,  if there  be only  one vacancy,  then it will be deemed to  be reserved’.  Acting upon  the roster  the Joint Secretary  to   the   Government,   General   Administration Department (Personal) made a proposal on 13th June, 1978 for reservation of the post of Deputy Director (Homeopathic) for members of  the  scheduled  castes.  He  said  that  in  the Directorate of  Indigenous Medicines,  three posts  had been sanctioned-(1) Director  of Indigenous  Medicines (2) Deputy Director (Homeopathic)  and (3) Deputy Director (Unani). All these posts  were Class I posts. He suggested that according to the  roster of appointments, out of these three posts the first, namely, that of Director which had been filled by Dr. Nagesh Dwivedi,  be treated as unreserved, the second should be treated  as a  reserved for  a scheduled caste candidates and the  third should  be unreserved.  According to him, all the posts  could be  grouped together from the view-point of reservation. After the qualifications had been prescribed in consultation  with   Dr.  Jugal   Kishore,  Advisor  to  the Government, the  Health Minister  passed an  order  on  28th July, 1978  for  the  reservation  of  the  post  of  Deputy Director (Homeopathic)  for a scheduled caste candidate. The Public Service  Commission on being moved by the Government, issued the impugned advertisement inviting applications from members of  the  scheduled  castes  and  the  appellant  was selected for  appointment to the post. Apprehending that the Government  would   appoint  the   appellant  to  the  post, respondent No.  4 moved  the High  Court by a petition under Art. 226 of the Constitution for the grant of an appropriate writ, direction  or order.  The Government  however by order dated 30th  May, 1979 appointed the appellant to the post of Deputy Director  (Homeopathic) and he assumed charge to that post, and  was later  confirmed in  the post.  Although  the

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appointment of the appellant has been declared to be invalid by the  High Court,  he is  continuing to  hold the  post by virtue of  the interim  stay granted  by this  Court on 26th June, 1980.      It appears  that steps were thereafter taken to fill up the  post  of  Deputy  Director  (Unani)  and  Dr.  Mohammad Kamruzzama Kamar,  Pradhyapak,  Government  Tibbia  College, Patna was promoted and 135 appointed to  that post, and he is working on regular basis. On  5th   October,  1982   the  Government   sanctioned  the additional post of Deputy Director (Ayurvedic) and this post was filled  up by  promotion of Dr. (Smt.) Uma Sinha, who is holding additional  charge of  the post  in addition  to the charge of  her own  post as Pradhyapak, Government Ayurvedic College, Patna.  Thus,  in  the  Directorate  of  Indigenous Medicines for  the present  there are  four posts, all being Class I  posts. Out  of these,  the post  of Deputy Director (Homeopathic) is  held by  the appellant  who belongs  to  a scheduled caste, and the remaining three posts including the post of  Director are  held  by  members  belonging  to  the general category      Lalit Mohan  Sharma, J.  speaking for  a Division Bench held that  (1)  Reservation  to  the  only  post  of  Deputy Director  (Homeopathic)   for  members   belonging  to   the scheduled castes  is tantamount to 100% reservation. (2) The two  posts  of  Deputy  Director  (Homeopathic)  and  Deputy Director (Ayurvedic)  cannot be linked together for purposes of reservation  of posts.  And (3)  The order  reserving the post  of   Deputy  Director   (Homeopathic)  infringes   the principle embodied in the Government circular introducing 50 point roster according to which, if in a particular cadre, a single post  falls vacant,  it should,  in the case of first vacancy, be considered as general and on the second occasion when a  single post  again falls  vacant, the  same must  be treated as reserved. The learned Judge also said that it has been laid  down that  if in a particular cadre there is only one post,  then in  case when  it is being filled up for the second time, it will be considered reserved, that is, on the first occasion  it must  be treated  as a  general seat.  In substance, the  High Court was of the view that the posts of Director and  three Deputy  Directors could  not be  clubbed together for  reservation of  posts  and  appointments.  Nor could  the   posts  of   Deputy  Directors  of  Homeopathic, Ayurvedic and Unani which form distinct and separate systems of medicines be grouped for purposes of reservation.      The  main  contention  of  Dr.  Y.S.  Chitale,  learned counsel for  the appellant,  is that there are four posts in the Directorate  of Indigenous  Medicines and  all the posts are Class  I posts  and therefore  according to the 50 point roster,  the   post  of  Director  having  been  treated  as unreserved, by  the rotational  system, the  post of  Deputy Director (Homeopathic)  was rightly reserved for a scheduled caste candidate.  According to him, the High Court fell into an error  in assuming  that the  reservation of  the post of Deputy  Director   (Homeopathic)  for   a  scheduled   caste candidate under Art. 16(4) amounted to 100% reser- 136 vation and  suffered from  the vice of offending against the equality clause  under Art.  16(1) read  with Art. 14 of the Constitution. In  answer to  the argument  Shri L.N.  Sinha, learned counsel appearing for respondent No. 4, submits that firstly, the  posts of Director and Deputy Directors are not carried in  the same  cadre and  therefore they could not be grouped  for   purposes  of   implementing  the   policy  of

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reservation  under  Art.  16(4),  and  secondly,  the  three systems  of   indigenous  medicines,   namely,  Homeopathic, Ayurvedic and  Unani are  distinct and  separate systems  of medicines and thus the 50 point roster could not be applied.      As we  had doubt and difficulty as to whether the posts of Director and Deputy Directors were Posts belonging to the same cadre,  we called  upon the parties to file further and better  affidavits   to  elucidate   the  point.  The  State Government has now placed on record the additional affidavit of the  Law officer in the Health Department, State of Bihar dated 10th  November, 1987.  The affidavit discloses certain facts, namely:  (1) The  pay scale of Director of Indigenous Medicines is  different from  that of  the Deputy Directors. (2) The  posts of  the Deputy Director (Homeopathic), Deputy Director (Ayurvedic) and Deputy Director (Unani) are carried in the  pay scale  of Rs.1900-75-2500.  (3) Although the pay scale of  all the  three Deputy  Directors is identical, the posts are  filled by doctors belonging to different branches of indigenous  medicines, namely, Homeopathic, Ayurvedic and Unani. (4)  The post  of Director is the highest post in the Directorate of  Indigenous Medicines and the said post is in the higher  pay scale  of Rs.2225-75-2675.  (5)  Though  the posts of Director and Deputy Directors in the Directorate do not  belong  to  unified  grade,  but  for  the  purpose  of determining the  quantum of reservation the three posts i.e. that of  the Director,  Deputy Director  (Homeopathic),  and Deputy Director (Unani) were grouped together as all of them were Class  I posts.  (6) The  newly-created post  of Deputy Director (Ayurvedic)  which at  present is  vacant is  being filled up  by following  the principle  of 50  point roster. These facts  are not  controverted by  the appellant  by any affidavit-in-rejoinder.      The questions  that fall for our determination are: (1) Is the  post of  Deputy Director  (Homeopathic) an ’isolated post’ and  therefore reservation of the post for a scheduled caste  candidate   amounts  to  100%  reservation  and  must therefore be  declared to be impermissible under Art. 16(4)? (2) Whether  the posts  of the Director and the three Deputy Directors  could   be  grouped   together  for  purposes  of implementing the  policy of reservation, according to the 50 point roster. 137 And (3) Could the posts of the Director and the three Deputy Directors  in.   the  Directorate  of  Indigenous  Medicines although they  are posts  carried on different grades, still be clubbed  together  for  purposes  of  reservation  merely because they are Class I posts?      The argument  of  learned  counsel  for  the  appellant suffers from the infirmity that it overlooks that though the Directorate of Indigenous Medicines comprises of four posts, namely, that  of the  Director and  three Deputy  Directors, which are  Class I  posts, the  posts of Director and Deputy Directors do not constitute one ’cadre’. They are members of the same  Service but  do not  belong  to  the  same  cadre. According to the 50 point roster, if in a particular grade a single post  falls vacant,  it should,  in the case of first vacancy, be considered as unreserved i.e. general and on the second occasion  when a  single post again falls vacant, the same must  be treated  as reserved.  Admittedly, the post of the Director  is the  highest post  in  the  Directorate  of Indigenous Medicines  and is carried in the higher pay scale or grade  of Rs.2225-75-2675  while the  posts of the Deputy Directors are  carried in the pay scale of grade of Rs.1900- 75-2500. In  service jurisprudence,  the term  ’cadre’ has a definite legal  connotation. In  the legal  sense, the  word

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’cadre’ is  not synonymous  with ’service’. Fundamental Rule 9(4) defines  the word  ’cadre’ to  mean the  strength of  a service or  part of a service sanctioned as a separate unit. The post  of the  Director which  is the highest post in the directorate, is  carried on  a higher  grade or scale, while the posts  of Deputy Directors are borne in a lower grade or scale  and  therefore  constitute  two  distinct  cadres  or grades. It  is open  to the Government to constitute as many cadres in  any particular service as it may choose according to the  administrative convenience  and  expediency  and  it cannot be  said that  the establishment  of the  Directorate constituted the  formation of  a joint cadre of the Director and  the   Deputy  Directors   because  the  posts  are  not interchangeable and  the incumbents  do not perform the same duties, carry  the same  responsibilities or  draw the  same pay. The  conclusion is  irresistible that  the posts of the Director  and  those  of  the  Deputy  Directors  constitute different cadres  of the  Service. It  is manifest  that the post of  the Director  of Indigenous  Medicine, which is the highest post in the Directorate carried on a higher grade or scale, could  not possibly  be equated  with  those  of  the Deputy Directors on a lower grade or scale. In view of this, according to  the 50 point roaster, if in a particular cadre a single  post falls vacant, it should, in the case of first vacancy, be  considered as general. That being so, the State Government could  not have  directed reservation of the post of Deputy Director (Homeopathic) which was the first vacancy in a particular cadre i.e. 138 that of  the Deputy  Directors, for  candidates belonging to the scheduled castes. Such reservation was not in conformity with the principles laid down in the 50 point roster and was impermissible under  Art.  16(4)  of  the  Constitution  and clearly violative  of the  guarantee enshrined in Art. 16(1) of equal  opportunity to  all citizens  relating  to  public employment. Clause  (4) of Art. 16 is by way of an exception of the  proviso to  Art. 16(1).  The High Court rightly held that  the   reservation  of  the  post  of  Deputy  Director (Homeopathic)  amounted   to  100%   reservation  which  was impermissible under  Art. 16(4) as otherwise it would render the guarantee  of equal  opportunity in the matter of public employment under Art. 16(1) wholly elusive and meaningless.      Another  serious  infirmity  in  the  argument  of  the learned counsel  for the  appellant is that it overlooks the basic principle that if there is only one post in the cadre, there  can  be  no  reservation  under  Art.  16(4)  of  the Constitution.  The   whole  concept   of   reservation   for application of  the 50  point roster  is that there are more then one  posts, and  the reservation  as laid  down by this Court in  M.R. Balaji’s case can be upto 50%. The Government cannot, for  instance, declare that the post of the Director of Indigenous  Medicines shall  be reserved  for  candidates belonging to  scheduled castes.  The Directorate  is a para- medical service  with Director  as its  head and  the  three Deputy Directors  belonging to  three distinct  and separate disciplines viz. Homeopathic, Unani and Ayurvedic under him. In  the  para-medical  system  the  three  posts  of  Deputy Directors pertain  to three  distinct systems  and therefore each of  them is  an  isolated  post  by  itself.  The  same principle should,  we think, as in the case of the Director, apply. It  is a  moot point  whether the isolated posts like those of  the Deputy  Directors can  be subjected  to the 50 point roster  by the  rotational  system.  We  refrain  from expressing any  opinion on this aspect, as it does not arise in the  present case.  Assuming that  the  50  point  roster

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applies, admittedly,  the first  vacancy  in  the  cadre  of Deputy  Directors   was  that   of   the   Deputy   Director (Homeopathic) and  it had  to be  treated as unreserved, the second reserved  and the third unreserved. The first vacancy of the  Deputy Director  (Homeopathic) in  the  cadre  being treated as  unreserved according  to the  roster, had  to be thrown open  to all.  A candidate belonging to the scheduled caste had therefore to compete with others.      There is  another aspect.  The three  posts  of  Deputy Directors of  Homeopathic, Unani  and Ayurvedic are distinct and separate  as they  pertain to  different disciplines and each one is isolated post by itself 139 carried in  the same  cadre. There  can be  no  grouping  of isolated posts  even if  they are carried on the same scale. The instructions issued by the Government of India from time to time  relating to  reservations of posts and appointments for the  scheduled castes and scheduled tribes are contained in the  Brochure on  Reservation for  Scheduled  Castes  and Scheduled Tribes  in Service.  Chapter 2  Part I  gives  the percentage of reservation of appointments or posts in favour of any  backward class  of citizens which, in the opinion of the State,  is not  adequately represented  in the  services under the  State. These  instructions have  been  issued  to carry out  the mandate  of Art.  16(4) consistent  with  the equality  clause   under  Art.   16(1)  and  16(2)  and  the requirements  of   Art.  335,  namely,  the  maintenance  of efficiency of  administration. Para  2.4 provides  that  the reservations  will   be  applied   to  each  grade  or  post separately but isolated posts will be grouped as provided in Chapter 6.  Paragraph 6.1 of Chapter 6 which is relevant for our purposes,  states that  in the  case where the posts are filled by direct recruitment, ’isolated individual posts and small cadres may be grouped with posts in the same class for purpose of  reservation, taking  into  account  the  status, salary  and   qualifications  prescribed  for-the  posts  in question’. For  this purpose,  it provides that a cadre or a grade or  a division of a service consisting of less than 20 posts may  be treated  as a  small cadre.  A group so formed should not ordinarily consist of 25 posts. It then adds:           "It is  not intended that isolated posts should be           grouped together only with other isolated posts. "      That precisely is the situation here. The Government of India  instructions  clearly  show  that  there  can  be  no grouping of  one or  more isolated  posts  for  purposes  of reservation. To  illustrate, Professors  in medical colleges are carried  on the same grade or scale of pay but the posts of Professor  of Cardiology, Professor of Surgery, Professor of  Gynaecology   pertain  to   particular  disciplines  and therefore each is an isolated post.      We are  not aware  of any  decision of this Court where excessive reservation  of appointments or posts in favour of any backward  class of  citizens to  the extent  of 100% has been upheld,  except in the application of the carry forward rule. Art.  16(4) is  an exception  to Art.  16(1) and  Art. 16(2) and  therefore the  power to  make a special provision for reservation  of posts  and appointments in favour of the backward classes  must not  be so  excessive which  would in effect efface  the guarantee  of equal  opportunity  in  the matter of public employment or at best 140 make it  illusory. In  Balaji’s case  which has  now  become locus classicus  on the  subject,  the  Court  attempted  to impose a  constitutional limit  to the extent of preference, not on  ’narrower ground  of  reservation’  but  on  broader

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grounds of policy. It spoke of ’adjusting’ the ’interests of the weaker  sections of  society to  the  interests  of  the community as  a whole’  and declared that a ’formula must be evolved which  would strike a reasonable balance between the several relevant  considerations’. While  striking  down  as unconstitutional government  order by which 68% of the seats in educational  institutions  were  reserved  for  Scheduled Castes, Scheduled  Tribes and  other Backward Classes on the ground of  excessive reservation  and  as  a  fraud  on  the Constitution, the Court observed:           "Speaking generally  and in a broad way, a special           provision should  be less  than 50  per cent;  how           much less  than 50  per cent would depend upon the           relevant prevailing circumstances in each case." It is   quite  obvious that the observations in Balaji about 50% limit were not to be taken as a precise formula.       In  less than  a year,  the Court  in T.  Devadasan v. Union of  India &  Anr., [1964] 4 SCR 680 while dealing with the  effect   of  a   carry  forward  rule  which  permitted reservation of  over 50% posts (in the third year) held that reservation of  64.4% posts  was unconstitutional. The Court by a  majority of 4: 1 held that Art. 16(4) was a proviso or an exception  to Art.  16(1) and  therefore  should  not  be interpreted so  as to nullify or destroy the main provision, as otherwise  it would  in effect  render the  guarantee  of equality of  opportunity in  the matter of public employment under Art. 16(1) wholly illusory and meaningless, and added:           "The overriding  effect of  cl. (4)  of Art. 16 on           cls. (1)  and (2)  could only extend to the making           of  a   reasonable  number   of  reservations   of           appointments and posts in certain circumstances. A           ’reasonable number’  is  one  which  &  strikes  a           reasonable  balance  between  the  claims  of  the           backward classes and those of other citizens " Thus, reservations  are legitimate  to the  extent that they provide the  backward classes  with an ’opportunity equal to that of  members of  the more advanced classes’. The maximum permissible limit for the backward classes, according to the majority in Devadasan’s case, is that 141 under  which   both  they  and  others  would  enjoy  ’equal opportunity’. The  Court further  added that the reservation for backward  communities should  not be  so excessive as to create a monopoly or unduly disturb the legitimate claims of other communities.  In State af Kerala & Anr. v. N.M. Thomas &  Ors.,   [1976]  1  SCR  906  the  majority  accepted  the dissenting opinion  of Subba Rao, J. in Devadasan’s case and held that  Art. 16(4) is not an exception to Art. 16(1), but is  a  legislative  device  by  which  the  framers  of  the Constitution have  preserved a  power  untrammelled  by  the other provisions of the Article. It is a facet of Art. 16(1) as  it   fosters  and  furthers  the  idea  of  equality  of opportunity with  special reference  to under-privileged and deprived classes  of citizens.  In his  dissenting  opinion, Khanna, J.  speaking for  himself and A.C. Gupta, J. adhered to the majority view in Devadasan’s case that Art. 16(4) was an exception to Art. 16(1) and (2). According to the learned Judges, Art.  16(1) only  embodies the  notion of  formal or legal equality  and therefore there is no scope for spelling out any  concept of preferential treatment from the language of  cl.(1)   of  Art.   16.  In  Thomas,  the  Court  upheld reservation to  the extent  of 68%  on the  basis of a carry forward rule  which related  to Class  III posts and allowed relaxation to  the scheduled caste candidates from appearing in the examination for promotion.

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    What is  of significance  is that  Krishna Iyer, J. who formed the  majority in  Thomas, has gone back upon his view in Akhil Bharatiya Soshit Karamchari Snagh(Railway) v. Union of India  & ors., [1981] 2 SCR 185, and held that Art. 16(4) is an  exception to  Art. 16(1)  and (2).  While considering whether scheduled  castes or  scheduled tribes  were already duly represented  or not  in specific cadres of the service, the  Court   reaffirmed  the  principle  of  reservation  of appointments or  posts under Art. 16(4) and upheld the carry forward rule. It was emphasised that what had to be seen was the overall  picture and  not  restricted  to  a  particular service or  cadre. The maximum of 50% for reserved quotas in their totality was held to be fair and reasonable. Chinnappa Reddy, J. in his concurring judgment observed:           "(W)hen posts  whether at  the  stage  of  initial           appointment or  at  the  stage  of  promotion  are           reserved  or   other  preferential   treatment  is           accorded  to  members  of  the  Scheduled  Castes,           Scheduled   Tribes    and   other   socially   and           economically  backward   classes  it   is  not   a           concession or privilege extended to them; it is in           recognition of  their undoubted  Fundamental Right           to Equality of opportunity and in discharge of the           Constitutional obligation imposed upon the 142           State to  secure to  all  its  citizens  ’Justice,           social, economic  and political’, and ’Equality of           status and opportunity’, to assure ’the dignity of           the individual  among all  citizens;  to  ’promote           with special  care the  educational  and  economic           interests of the weaker section of the people’, to           ensure their  participation on  equal basis in the           administration of  the affairs  of the country and           generally to  foster the  ideal of  a  ’Sovereign,           Socialist, Secular,  Democratic  Republic’.  Every           lawful method  is permissible to secure the due re           presentation of the Scheduled Castes and Scheduled           Tribes in  the Public  Services. There is no fixed           ceiling to  reservation or  preferential treatment           in favour  of the  Scheduled Castes  and Scheduled           Tribes though generally reservation may not be far           in excess of fifty per cent." It follows that though the maximum limit of 50% as indicated was not  an inflexible  rule but in making special provision for reservation  of posts  or appointments,  the State  must seek to  strike a  balance of adjusting the interests of the weaker sections of society to the interests of the community as a whole. In State of Maharashtra v. Shivaji Y. Garge C.A. No. 4117/84  decided on  19th October,  1984 this Court held the reservation  of posts  to the extent of 80% as excessive and destructive  of the principle of equality of opportunity in matters  relating to  public employment  guaranteed under Art. 16(1)  of the  Constitution and directed that the State Government would  step down the reservation for economically weaker sections  of the  society from  46% to 21% in future, leaving in  tact 34%  posts reserved  for scheduled  castes, scheduled  tribes,   denotified  nomadic  tribes  and  other backward  classes.   Thus,  the  overall  picture  was  that reservation of  posts and  appointments under Art. 16(1) was reduced from 80% to 55%.      Once  the  power  to  make  reservation  in  favour  of scheduled castes  and scheduled tribes is exercised, it must necessarily follow  that a  roster pointwise for the purpose of vacancies  for which  reservation has  been made, must be brought into effect and in order to do full justice, a carry

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forward rule must be so applied that in any particular year, there is  not more than 50% reservation. According to the SO point  roster,  admittedly,  the  post  of  Deputy  Director (Homeopathic) was  the first  vacancy in the cadre of Deputy Directors and therefore it had to be treated as general i.e. unreserved.      In the recent case of KC. Vasanth Kumar & Anr. v. State of Karnataka,  [1985] Suppl.  SCC 714,  one of  us (Sen, J.) dealing with the 143 extent of  reservation under  Art.  15(4)  and  Art.  16(4), observed that  the  doctrine  of  protective  discrimination embodied therein  and the  mandate of Art. 29(2) was subject to the  requirements of  Art. 335 and could not be stretched beyond a particular limit. It was observed:           "Questions as  to the  validity  or  otherwise  of           reservations  have  been  agitated  several  times           before this  Court and resolved. The frequency and           vigour with  which these questions are raised is a           disturbing indication of the tension and unease in           society in  regard to  the manner  in  which  Art.           15(4) and  Art. 16(4)  are operated  by the State.           The  Preamble   to  our   Constitution  shows  the           nation’s resolve  to secure  to all  its citizens:           Justice-social,  economic   and   political.   The           State’s   objective    of   bringing   about   and           maintaining  social   justice  must   be  achieved           reasonably having  regard to the interests of all.           Irrational and  unreasonable moves  by  the  State           will slowly  but surely  tear apart  the fabric of           society. It  is primarily the duty and function of           the State  to inject moderation into the decisions           taken under Arts. 15(4) and 16(4), because justice           lives in  the hearts of men and a growing sense of           injustice and  reverse discrimination,  fuelled by           unwise State  action, will  destroy, not  advance,           social  justice.  If  the  State  contravenes  the           constitutional mandates  of Art.  16(1)  and  Art.           335, this  Court will  of course,  have to perform           its duty." A note of caution was then added:           "The State  exists to  serve its people. There are           some services where expertise and skill are of the           essence. For  example, a hospital run by the State           serves the  ailing members  of the public who need           medical aid.  Medical services directly affect and           deal with  the health  and life  of the  populace.           Professional  expertise,  born  of  knowledge  and           experience,  of   a  high   degree  of   technical           knowledge and  operational skill  is  required  of           pilots  and   aviation  engineers.  The  lives  of           citizens depend  on such  persons. There are other           similar  fields  of  governmental  activity  where           professional, technological,  scientific or  other           special skill  is called  for. In such services or           posts under  the Union  or States,  we think there           can be  no room  for reservation  of posts;  merit           alone must  be the sole and decisive consideration           for appointments." 144      There  is   one  more   decision  that  calls  for  our attention, namely,  that of  Arati Ray Choudhury v. Union of India &  Ors., [1974]  1 SCR  1 where  the effect of a carry forward  rule   resulted  in  100%  reservation.  After  the decision in  Devadasan’s case,  the Ministry of Home Affairs

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issued a  memorandum modifying  the carry forward rule so as to com  ply with  the  decision.  The  said  memorandum  was suitably modified by the Railway Board in its application to Railway Services  by its 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  that  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 minimise  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   unforseen           circumstances." It was  contended on behalf of the petitioner that the carry forward rule  was violative  of  Arts.  14  and  16  of  the Constitution and  the vacancy in the post of Headmistress of the Kharagpur  School ought  to  be  treated  as  unreserved vacancy.  In   repelling  the  contention,  Chandrachud,  J. observed:           "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  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 145           recruitment   is   directed   to   be   considered           separately  and   by  itself   as  laid   down  in           Devadasan’s 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,   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

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         than two subsequent years of recruitment. Thus, if           two vacancies  occur, say,  within an initial span           of three  years,  the  first  vacancy  has  to  be           treated as an unreserved vacancy and the second as           reserved." The learned  Judge held that 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 had to be given any meaning, the vacancy had  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  could  not therefore go  to the  petitioner which,  admittedly, did not belong to  the reserved  class. It was further observed that 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  was contrary to  the plain language of the letter of the Railway Board, the  intendment  of  the  rule  and  its  legislative history.  The   decision  in   Arati  Ray  Choudhury’s  case therefore turned  on the  carry forward  rule and is clearly distinguishable on facts      It is  quite clear  after the  decision in  Devadasan’s case that  no reservation  could be made under Art. 16(4) so as to  create a  monopoly. Otherwise,  it would  render  the guarantee of  equal opportunity contained in Arts. 16(1) and 16(2) wholly meaningless and illusory. 146 These principles unmistakably lead us to the conclusion that if there  is only  one post  in the  cadre, there  can be no reservation  with   reference  to   that  post   either  for recruitment at  the initial stage or for filling up a future vacancy in  respect of  that post. A reservation which would come under  Art. 16(4),  pre-supposes the availability of at least more than one posts in that cadre.      We would, for these reasons, uphold the judgment of the High Court quashing the impugned advertisement issued by the Bihar Public  Service Commission  as also the appointment of the appellant  to the post of Deputy Director (Homeopathic). We direct the Public Service Commission to take steps to re- advertise the  post with advertence to the observations made above. However, having regard to the fact that the appellant has continued  to hold  that post  ever since 30th May, 1979 and  confirmed  against  that  post,  we  direct  the  State Government to adjust him in an equivalent post in the Health Department. At  the time  of his  appointment, the appellant was  Medical   officer  (Homeo)  of  Government  Homeopathic Dispensary, Raharia  (Saharsa) and  his appointment  to  the higher  grade   of  Deputy  Director  (Homeopathic)  in  the directorate  of   Indigenous  Medicines   was  virtually   a promotion  for  him.  This  may  be  kept  in  view  by  the Government while passing suitable orders.      There shall be no order as to costs. H.S.K.                                Appeal dismissed. 147