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CASE NO.: Review Petition (civil)  1749 of 1997

PETITIONER: POST GRADUATE INSTITUTE OF MEDICALEDUCATION AND RESEARCH CHANDIGARH

RESPONDENT: FACULTY ASSOCIATION AND ORS.M.L.SEHGAL AND ORS K.SIVAN AND ORS,

DATE OF JUDGMENT: 17/04/1998

BENCH: S.C.AGRAWAL & G.N.RAY & A.S.ANAND & S.P.BHARUCHA & S.RAJENDRA BABU

JUDGMENT: JUDGMENT

WITH CIVIL APPEAL NO. 2346 OF 1981 CIVIL APPEAL NO.2345 OF 1981 SPECIAL LEAVE PETITION (CIVIL) No 13148 OF 1997 SPECIAL LEAVE PETITION (CIVIL) NO. 2892 OF 1983 SPECIAL LEAVE PETITION (CIVIL) 9252 OF 1981

DELIVERED BY: G.N.RAY, J.  

G.N. RAY,J.

    In all  these matters  a  common  question  arises  for decision as  to whether n a singh cadre post reservation for the backward  classes, namely,  Scheduled Castes,  Scheduled Tribes  and  other  backward  classes  can  be  made  either directly or by applying  rotation of roster point. These are conflicting  decisions of this Court on the question of such reservation in a single cadre post.      The learned  counsel  for  the  parties  in  all  these matters have  agreed in  the  question  of  law  as  to  the constitutional validity  of reservation  in a  single  cadre post  is  to  be  decided  by  the  constitution  Bench  and thereafter the  cases will  be placed before the appropriate Bench for  disposal on  merits in  accordance with  decision rendered  by   this  Bench.   therefore,  the   question  of constitutional validity  of reservation  in a  single  cadre post either directly or by rotation of roster point has been considered by  us and  we have  not taken into consideration other contentions raised in these matters.      In support  of the  contention  that reservation can be made not only in respect of the promotional post but also in respect of  a single  post in  a cadre,  Mr. E.C.  Agrawala, learned counsel  appearing  for  the  appellant  in  CA  No. 2346/81,  Mr.   Puri,  learned  counsel  appearing  for  the appellant in  CA No.  2345 of  1981, Mr.  R.K. Jain, learned senior counsel  appearing for  the Intervenor  in the review petition filed  in CA  No. 3175  of 1997  on behalf  of  the Scheduled Castes  and  scheduled  tribes  Employees  Welfare Association, Post  Graduate Institute  of medical  Education and Research,  Chandigarh,  and  Mr.  Andhyarujina,  learned Solicitor General appearing for the appellant in SLP [c] No.

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13148 of  1997 for  the petitioner  Union of India have made elaborate  submissions.  Mr.  kapil  Sibal,  learned  senior counsel appearing  in support  of the  review petition in CA No.  3175   of  1997  has  opposed  the  contention  that  a reservation can  be made  in respect of a single post cadre. Other  learned  counsel  appearing  in  these  matters  have adopted  the  rival    contentions,  without  advancing  any separate argument.      Mr. Kapil  Sibal has submitted that there cannot be any reservation  either   for  initial  appointment  or  for  an appointment on  promotion in  respect of a single post cadre either directly  or by the device of rotation or roster. Mr. Sibal has  contended that  the very concept of carry forward or the  principle of roster is alien to a single post cadre. he has  also contended  that the  principle of carry forward meaning thereby  carrying  forward  reservation  presupposes existence of multi posts cadre. If there is only one post in a cadre,  the vacancy  for such single post being filled up, there will  be no  occasion for carrying forward reservation for filling  up such  vacancy. Mr.  Sibal has also contended that the rationale of reservation under Article 16(4) of the constitution is  founded on the inadequacy of representation of a  class in  the service under the state. The question of adequacy of  representation does  not and  cannot arise in a single  post   cadre  because     only  one  person  can  be accommodated against  the single  post, leaving no scope for adequate representation  of any  particular  class  in  such single post.      Mr. Sibal  has contended  that  the  impugned  judgment cannot  be   supported  because  (a)  reservation  of  super speciality is  against the  decision of a Nine Judges’ Bench decision of  this Court  in Indra  Sawhney etc. Vs. Union of India  and  Ors.  (1992  Supp.  (3)  SC  217),  and  (b)  no reservation in  a single  cadre post  is permissible in law. Mr. Sibal  has submitted  that both in the impugned judgment and also  in the  judgment of  Union of  India and  Anr. Vs. Madhav and  Anr. (1997  (2) SCC  332) on  which reliance has been made  in  the  impugned  judgment,  the  ratio  in  the decision of  Arati Ray Choudhury Vs. union of India and Ors. (1974 (1)  SCC 87) was wrongly appreciated and the ratio was wrongly stated.  Mr. Sibal  has drawn  the attention  of the Court to  the observations  of Justice  Reddy  speaking  for majority decision  on Article  335 of  the  constitution  as contained  in   paragraph  112  of  the  decision  in  Indra Sawhney’s case which are as follows:-           "While on  Article 335, we are      of  the   opinion  that  there  are      certain  services   and   positions      where  either  on  account  of  the      nature of  duties attached  to them      or the  level (in the hierarchy) at      which   they   obtain,   merit   as      explained    hereinabove,     alone      counts. in  such situations  it  ma      not be  advisable  to  provide  for      reservations.     for      example,      technical  posts  in  research  and      development          organisations/      departments/institutions,        in      specialities and super-specialities      in medicine,  engineering and other      such courses  in physical  sciences      and   mathematics,    in    defence      services and  in the establishments      connected therewith.  Similarly, in

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    the case  of posts  at  the  higher      echelons   e.g.    professors   (in      Education),   Pilots    in   Indian      Airlines and  Air India, scientists      and  Technicians   in  nuclear  and      space  application,  provision  for      reservation would not be advisable.           x x x Be that as it may we are      of  the  opinion  that  in  certain      services and  in respect of certain      posts, application  of the  rule of      reservation ma not be advisable for      the reason  indicated hereinbefore.      Some   of them  are :  (1)  Defence      Services  including  all  technical      posts therein  but excluding  civil      posts. ()  All technical   posts in      establishments      engaged      in      production  of  defence  equipment.      (3) Teaching  posts of professors -      above if  any, (4)  Posts in  super      specialities      in      Medicine,      engineering  and  other  scientific      and technical subject. (5) Posts of      pilots (and  co-pilots)  in  Indian      Airlines and  air India.  The  list      given above  is merely illustrative      and not  exhaustive. It  is for the      Government of India to consider and      specify the  service and  posts  to      which the Rule of reservation shall      not apply  but on  that account the      implementation of  impugned  office      Memorandum dated  13th August, 1990      cannot be stayed or withheld.           We  may  point  out  that  the      services posts enumerated above, on      account of  their nature and duties      attached,  are  such  as  call  for      highest  level   of   intelligence,      skill and  excellence. Some of them      are second  level and  third  level      posts  in   the  ascending   order.      hence, they  form a category apart.      Reservation  therein   may  not  be      consistent  with   "efficiency   of      administration"   contemplated   by      Art. 335.           We may  add  that  we  see  no      particular  relevance   of  Article      38() in this context. Article 16(4)      is  also   a  measure   to   ensure      equality of status besides equality      of opportunity."      Mr. Sibal  has also submitted that  the reservation for the  socially,   economically  and   educationally  backward classes is made so that the members of such backward classes do  not  fail  to  get  adequate  representation  in  public employment on  account of  facing open competition. but such reservation cannot  be and  should not  be made for posts in higher echelons  where merit and expertise are essential and also   necessary    for   discharging    the   duties    and responsibilities of  such positions  in higher  echelons  of service. Mr.  Justice Reddy  in the majority decision, which was also  concurred by Justice Pandian, has pointed out that

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there are  some  services  and  positions  where  either  on account of  the nature  of duties  attached to  them or  the level in  the hierarchy  at which  they obtain,  merit alone counts. In  such situations,  it may  not  be  advisable  to provide for  reservation and  in that  context,  by  way  of illustration, enumerated  certain  positions  including  the technical posts in the Establishment engaged in Research and Development, the teaching posts of Professors and above, the posts of  super-specialities in  Medicine,  Engineering  and other Scientific  and Technology subjects, and also posts of pilots and  co-pilots in  Indian Airlines and Air India. Mr. Sibal has  submitted  that  by  and  large,  in  the  higher echelons of  service, there  is a  single  post  cadre.  The appointment to  the posts  of Professors  or Readers  in the super-speciality of Medicine in an advanced institution like the Post  Graduate Institute of Medical Research & Education in Chandigarh  appointments must  be made  strictly  on  the basis of  selection on merits and any attempt of reservation by whatever method will not only be against law laid down by this court  but also  against the  larger interests  of  the country.      Mr. Sibal  has contended  that in M.R. Balaji & Ors. v. State of  Mysore (1963  Supp. (1) SCR 439) this Court struck down  the  order  by  which  68%  of  seats  in  educational institutions were  reserved for  the  members  of  Scheduled Castes and Scheduled Tribes and other educationally backward classes. This  Court did  not suggest  any percentage  which should be  reserved for  such backward classes but indicated that the  reservation has  to be  made keeping  in mind  the interests of the community as a whole and such percentage of reservation would  be less then 50%. How much less of 50% is to be  reserved, would  however  depend  on  the  facts  and circumstances of a given case.      Mr. Sibal  has also  submitted tat  in the Constitution Bench decision  of this Court in T.Devadasan v. The Union of India &  Anr. (1964  (4) SCR 680), the majority view is that in order  to effectuated  the guarantee contained in Article 16(1),  each   year  of  recruitment  is  to  be  considered separately  by  itself  for  the  reservation  for  backward classes.  In   Arati  Ray   Choudhury’s   case   (supra)   a Constitution Bench  of this  Court has clearly held that the reservation  for   backward  community   should  not  be  so excessive as  to create  a monopoly or to disturb unduly the legitimate claim  of other  communities. It  has  also  been specifically indicated  in the  said decision  that if there are two  vacancies to be filled up in a particular year, not more than  one vacancy  can be  treated as  reserved. In the decision in Arati Ray Choudhury’s case, the earlier decision in M.R.  Balaji’s case  was  noticed  and  followed  and  no departure from the decision in Devadasan’s case was made.      Mr. Sibal  has submitted  that in Dr. Chakradhar Paswan v. State  of Bihar  & Ors. (1988 () SCC 14) after relying on the decisions  in  Arati  Roy  Choudhury,  M.R.  Balaji  and Devadasan’s cases,  it has  been held  that for implementing 50-point roster,  isolated and  separate posts  in different specialities cannot  be clubbed  together. It  has also been held that reservation of posts by applying the roster can be made only where there are more than one post and reservation of only  one post  cannot be  made because  such reservation would amount  to 100%  reservation thereby violating Article 16(1) and 16(4) of the Constitution.      Mr. Sibal  has submitted  that the  three-Judges’ Bench decision in  Madhav’s case (supra) is the principal judgment which has taken a contrary view by holding that even in case of a  single post cadre, reservation can be made by applying

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the principle  of rotation and by that process can avoid the bar of  reservation of  100%. Such  decision is  based on  a wrong reading  of the decision in Arati Roy Choudhury’s case and on  an erroneous  appreciation of  Articles 16(1), 16(4) and 16(4-A)  of the  Constitution. The  impugned decision in the case  of Post-Graduate  Institute of Medical Education & Research has  been  made  by  relying  on  the  decision  in Madhav’s case  and following the reasonings contained in the said  decision.  Therefore,  the  said  decision  cannot  be sustained and  the impugned  judgment should be set aside by allowing the review petition.      Mr. E.C. Agrawala, learned counsel for the appellant in C.A. No.  346/1981, has however submitted that the principle of carry  forward in  a single  post cadre is a device which serves the  purpose of reservation for the backward classes, consistent with the Directive Principles of the Constitution and the policy of reservation enshrined in the constitution. Such principle  of carrying  forward in  a  single  post  by applying the  rotation of  roster, affords opportunities for getting appointment  of the  members of  backward classes on some   occasions but  throwing  such  appointment  for  open competition on  other occasions  by de-reserving the vacancy on such  occasions. If such principle  of rotation of roster is not  applied in  the case  of single post cadre, the very purpose of  reservation under  Article 16(4)  will  be  made nugatory.  Mr.   Agrawala  has  submitted  that  since  some observation was  made against  reservation to  a promotional post in  the decision in Indra Sawhney’s case, sub Article 4 A of  Article 16 has been incorporated by the 77th Amendment of the  Constitution. Such  amendment clearly  reflects  the anxiety of  the Legislature  to ensure  reservation  at  all stages of public employment including promotional posts. Mr. Agrawala   has submitted that in Arati Roy Choudhury’s case, the Constitution Bench upheld the appointment of a member of the Scheduled  Caste Scheduled  Tribe which was reserved for such category  even though  at the relevant  year, there was only one  vacancy to  be filled up in respect of the post of Head Mistress.  Therefore, it will not be correct to contend that the  Constitution Bench  in Arati  Ray Choudhury’s case has not  upheld reservation of a single vacancy in the cadre in a  particular year  by applying  the principle of roster. Mr. Puri,  learned counsel appearing for the appellant in CA 2345 of 1981 has also made similar submissions.      Mr. RK  Jain, learned  senior counsel appearing for the intervenors in  the review  petition in  the  case  of  Post Graduate Institute  of Medical  Education and  Research  has submitted that  there is  no Government  order to the effect that reservation  in a single cadre post to be excluded. If, therefore,  there  is  no  prohibition  under  any  law  for reservation of  a single  post and  if the  Government gives effect to Article 16(4) of the Constitution in a single post cadre which  helps the  case of  social justice,  consistent with the  Directive Principles  of  the  Constitution,  this Court should  be slow  to react against such reservation. He has also  supported the  contention of  Mr. Agrawala that by rotation of  roster, the  device   of  100%  reservation  is avoided. At  the same  time, such rotation gives opportunity for appointment  of members  of socially backward classes in the higher  echelons of  service even  when the  post  is  a single post cadre. Mr. Jain has submitted that in the matter of implementation  of rotation  of roster  in a  single post cadre, even  if the  other view  against such  rotation is a possible view,  such view  should not be accepted because in the matter of a course of action which advances the cause of social justice,  the view in favour of furtherence of social

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justice is to be preferred. Mr. Jain has also submitted that reservation  is   not  to   the  post  or  the  vacancy  but reservation must  be viewed  as a measure of giving adequate opportunity  in   public  employment  to  the  socially  and economically backward classes, consistent with Article 16(4) and  16(4)(A)   of  the   Constitution  and   the  Directive Principles. Mr.  Jain has submitted that Article 16 does not speak of  any post  or vacancy  but speaks  of  equality  of opportunity in public employment.      Mr. Jain has also submitted that in Chakradhar Paswan’s case (supra),  the ratio  in Arati  Ray Choudhury’s case was not appreciated  and followed.  Referring to the decision in Indra Sawhney’s  case, Mr.  Jain has submitted that in Indra Sawnhey’s case the ratio in Arati Ray Choudhury’s case or in Paswan’s case was not considered. Therefore, the decision in Indira Sawhney’s  case is  not an  authority for  the issues involved in  the case  under  consideration.  Mr.  Jain  has submitted that  the mechanism of roster has been evolved  to balance justice  for all  segments of the society so that in the higher  echelons of  service, a single post is also made available to  the backward  classes by  reserving such  post only periodically  on the  basis of  rotation of  the roster point. Such  mechanism does  not offend any provision of the Constitution. He  has submitted that the three Judges’ Bench in Madhav’s  case has  analysed  all  the  decisions  having relevance on  the question  of reservation  of a single post cadre, and  has upheld  such reservation  in a  single  post cadre  by  applying  the  roster.  Therefore,  the  impugned decision in the Post Graduate Institute of Medical Education and Research  Chandigarh, does  not warrant any interference by this Court.      Mr.Andhyarujina, the learned Solicitor General has also supported the  reservation of  a single  post cadre with the aid of  rotation of  roster. He  has invited in attention of the Court  to Office  Memorandum  No.  3601//96-Estt.  (Res) issued by  the Ministry  of personnel, Public Grievances and Pension  (Department  of  Personnel  and  Training)  of  the Government of  India in  respect of  reservation roster  for implementation  of   the  Supreme  Court  judgment  in  R.K. Sabharwal and  ors. Vs.  State of  Punjab and Ors. (1995 (2) SCC 745).  After indicating  in short,  the purport  of  the decision of  this Court  in  the  said  case,  it  has  been indicated in the said Office Memorandum that "with a view to bringing the policy of reservation in line with the law laid down by  the supreme  Court. it  has been  decided that  the existing 200  point, 40  point and  120 point  vacancy-based rosters shall  be replaced  by post  based rosters.  All the Ministries/Departments   and   concerned   authorities   are requested to  prepare the  respective rosters  based on  the principles elaborated  in the  Explanatory Notes   given  in Annexure -  1 to  this O.M.  and illustrated  in  the  Model Rosters annexed  to this  O.M. as  Annexure-II, III  and IV. Similarly, the  concerned authorities may prepare rosters to replace the  existing 100  point rosters  n respect of local recruitment to  Group C and D posts on the basis of the same principles."      Paragraph 4  of the  said O.M.  contains the principles for preparing  the rosters  elaborated  in  the  Explanatory Notes. Clause  (e) of  the said  paragraph 4  indicating the principles  for   preparing  the  rosters  is  relevant  for consideration in  this case and the same is to the following effect:           "In small  cadres of  upto  13      posts, the  method  prescribed  for      preparation  of  rosters  does  not

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    permit reservation  to be  made for      all the  three categories.  In such      cases,      the      administrative      Ministries/Departments may consider      grouping  of   posts  in  different      cadres  as   prescribed   in   this      Department’s O.M.  No. 42/21/49-NGS      dated  28.1.1952   and   subsequent      orders reproduced  at pages  70 and      74 of  the Brochure  on Reservation      for Scheduled  Castes and Scheduled      Tribes (Eighty Edition) and prepare      common rosters  for such groups. In      the event  it is  not  possible  to      resort   to   such   grouping   the      enclosed  rosters   (Appendices  to      Annexures-II, III and IV) for cadre      strength  upto   13  posts  may  be      followed.   The    principles    of      operating   these    rosters    are      explained in the explanatory notes.      Appendix to  Annexure III contains the model roster for promotion in  the cadre  strength up  to 13  posts;  whereas Appendix to  Annexure IV  contains  the  roster  for  direct recruitment otherwise  than  through  open  competition  for cadre strength upto 13 posts. Charts indicating the Appendix to Annexure  III and the Appendix to Annexure IV are set out as hereunder: Cadre Initial   1st   2nd  3rd  4th  5th  6th  7th  8th  9th  10th  11th  12th  13th 1.   UR UR UR UR UR UR SC UR UR UR UR UR UR ST 2.   UR UR UR UR UR SC UR UR UR UR UR UR ST 3.   UR UR UR UR SC UR UR UR UR UR UR ST 4.   UR UR UR SC UR UR UR UR UR UR ST 5.   UR UR SC UR UR UR UR UR UR ST 6.   UR SC UR UR UR UR UR UR ST 7.   SC UR UR UR UR UR UR ST 8.   UR UR UR UR UR UR ST 9.   UR UR UR UR UR ST 10.  UR UR UR UR ST 11.  UR UR UR ST 12.  UR UR ST 13.  UR ST Note: For  cadres of  2 to 13 posts the roster is to be read from entry  1 under column Cadre Strength till the last post and then  horizontally till the last entry in the horizontal row i.e. "L"      2. All  the posts of a cadre are to      be  earmarked   or  the  categories      shown    under    column    initial      appointment while  initial  filling      up  will   be  by   the   earmarked      category, the  replacement  against      any of  the post in the cadre shall      be    by    rotation    as    shown      horizontally against  the last post      of the cadre.      3. The  relevant  rotation  by  the      indicated reserved  category  could      be skipped over if it leads to more      then      50%   representation   of      reserved category. Roster for  direct recruitment  otherwise than  through open competition for cadre strength upto 13 posts. Cadre Initial   1st   2nd  3rd  4th  5th  6th  7th  8th  9th

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10th  11th  12th  13th 1.   UR UR UR OBC UR UR SC OBC UR UR UR OBC SC ST 2.   UR UR OBC UR UR SC OBC UR UR UR OBC SC ST 3.   UR OBC UR UR SC OBC UR UR UR OBC SC ST 4.   OBC UR UR SC OBC UR UR UR OBC SC ST 5.   UR UR SC OBC UR UR UR OBC SC ST 6.   UR SC OBC UR UR UR OBC SC ST 7.   SC OBC UR UR UR OBC SC ST 8.   OBC UR UR UR OBC SC ST 9.   UR UR UR OBC SC ST 10.  UR UR OBC SC ST 11.  UR OBC SC ST 12.  OBC SC ST 13.  SC ST      Note 1. For cadres of 2 to 13 posts      the roster is to be read from entry      1 under  column cadre strength till      the last post and then horizontally      till  the   last   entry   in   the      horizontal tow i.e. like "L"      2. All  the posts of a cadre are to           be    earmarked     for    the           categories shown  under column           initial   appointment.   While           initial filling  up will be by           the  earmarked  category,  the           replacement against any of the           post in  the cadre shall be by           rotation as shown horizontally           against the  last post  of the           cadre.      3. The  relevant  rotation  by  the           indicated  reserved   category           could be skipped over it leads           to     more      than      50%           representation   of   reserved           category.      Referring to  such model  roster, the learned Solicitor General has  submitted that in case of promotion in a single post cadre,  for the  initial  recruitment,  the  post  will remain ‘unreserved’.  Similarly, for the 1st 2nd 3rd 4th 5th subsequent vacancies  in such  single cadre post, such posts shall be  treated as  unreserved but  for the 6th subsequent vacancy, the  post will  be reserved  for scheduled  castes. Again   from 7th  to 12th subsequent vacancy will be treated as unreserved  but the  13th  vacancy  will  be  treated  as reserved for  Scheduled Tribes.  So far  as the  roster  for direct recruitment, otherwise than through open competition, the Appendix  to Annexure  IV indicates  that if  the  cadre strength is  only one  then the  initial recruitment and the first and  second successive recruitment will be made on the basis of  open competition  but the third successive vacancy will be  reserved for  members of  the backward classes. The fourth successive  vacancies will  be treated as unreserved; sixth successive vacancy will be reserved for the members of Scheduled Castes;  7th successive  vacancy shall be reserved for members  of other  backward classes;  8th, 9th  and 10th successive vacancies  will be  filled up by open competition but the 11th successive vacancy shall be reserved for OBCs’, the 12th for scheduled castes and 13th for scheduled tribes.      The learned  Solicitor General  has  further  submitted with reference to the aforesaid Charts, that the Charts have been prepared for balancing the felt need for reservation of single cadre post, usually in the higher echelons of service in such  a manner  that the opportunities for employment are

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shared   by the members belonging to the reserved categories and also  by the other members i.e. members not belonging to reserved categories.  According to him, if the vacancies are filled up  in respect  of single post cadre by following the aforesaid Charts, the interests of socially and economically backward classes  and also other members of the community at large will  be met without seriously affection the interests of either  the members  belonging to reserved classes or the members not  belonging to  any of  the reserved  categories. Under  such   mechanism,  only   of  certain  occasions  the vacancies are  to be  filled up  by treating  such vacancies ‘reserved’ for  members of  a   particular class of reserved categories, namely,  scheduled castes,  scheduled tribes and other backward  classes but  on other  occasions the post in the single cadre will not be treated as reserved.      The  learned   Solicitor   has   submitted   that   the constitutional validity  of  reservation  for  socially  and economically backward classes has been upheld by this Court. The learned  Solicitor has  also submitted  that  after  the judgment of  this Court  in R.K.  Sabharwal’s case  suitable directions have  been issued  relating to rotation of roster in conformity  with the  law laid down by this Court. He has submitted if a reference is made to the Chart containing the model roster for appointment by promotion for a single cadre post, it  will be crystal clear that the initial recruitment is unreserved  and out  of subsequent 13 vacancies, only 7th and 13th vacancies are meant for members of scheduled castes and  scheduled  tribes.  Similarly  the  roster  for  direct recruitment otherwise than by promotion it is indicated that if it  is a  single post  cadre then  not only  the  initial recruitment but  the first and second successive recruitment will be treated as unreserved. Similarly, the 4th, 5th, 8th, 9th and  10th successive  vacancies will  also be treated as ‘unreserved’ but  the 3rd,  6th, 7th,  11th, 12th,  and 13th will be kept reserved for members of other backward classes, scheduled castes  and  scheduled  tribes  respectively.  The learned  Solicitor   has  submitted   that  such  device  of appointment by  rotating the roster fulfils the felt need of reservation and  also eschews the vice of reservation beyond 50% for  the members of the reserved classes. Since the post is a single post in the cadre, unless such device is adopted there will  be no  occasion for  reservation of such post at any point to time.      The learned  Solicitor has also submitted that in Arati Roy Chouhdry’s case, the Constitution Bench has approved the action taken  in  filling  up  of  a  single  vacancy  which occurred in  a particular year for the post of Head Mistress by applying the rotation of roster, because such rotation of roster  served   the  avowed   purpose  of   reservation  by delicately balancing  the interests  of the  members of  the reserved classes  and other  members of  the  community  not belonging to  any reserved  class. The learned Solicitor has further   urged that the decision of the three Judges’ Bench in Madhav’s  case has  indicated the  correct  principle  by giving very cogent reasons and such decision does not offend any of  the provisions of the Constitution and does not come in conflict  with the  decisions of the larger Bench of this Court. Therefore,  no interference is called for against the decision in  madhav’s case  and the other decisions rendered by following the decision in Madhav’s case.      In order  to appreciate  the rival  contentions of  the parties,  it   would  be   appropriate  to   refer  to   the Constitution Bench  decisions of  this Court  made  in  M.R. Balaji, T.  Devadasan    and  Arati  Ray  Choudhary’s  cases (supra). In  Arati Ray  Choudhury’s case, decision in Balaji

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and Devadasan  were referred to and followed. Since both the sides have  relied on the decisions in Arati Ray Choudhury’s case, it  will also  be appropriate to consider the decision in Arati Ray Choudhury’s case in some detail.      In Balaji’s  case, the Constitution Bench has held that the reservation  should be  allowed to advance the prospects of weaker  sections of the society, but while doing so, care should  be   taken  not   to  exclude  admission  to  higher educational standards  of deserving and qualified conditions of other  communities.  It  has  also  been  indicated  that reservation under  Arts. 15(4) and 16(4) of the constitution must be  within a  reasonable limit.  The interests  of  the weaker sections  of the 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. The objective of Art. 15(4) is  to advance the interests of the weaker elements in society.  If  a  provision  under  Art.  15(4)  ignores  the interests of the society that is clearly outside the purview of Art.  15(4). It  is therefore,  quite  evident  that  the Constitution Bench  in Balaji’s  case has  clearly indicated that in  giving effect  to reservations  for  the  Scheduled Castes, Scheduled  Tribes  and  other  backward  classes,  a balance is  to be  struck  so  that  the  interests  of  the backward classes and the members of the scheduled castes and scheduled tribes are properly balanced with the interests of the other segments of the society, and in order to safeguard the interests  of the  reserved classes  the interest of the community as a whole can not be ignored. In Devadasan’s case (supra), the majority decision of four Judges (Justice Subba Rao dissenting)  was to  the effect  that the  carry-forward rule as  a result  of  which  the  applicants  belonging  to Scheduled Castes or Scheduled Tribes could get more than 50% of the  vacancies to  be filled  up in a particular year, is unconstitutional. It  has also  been indicated  that Art  14 will not  be infringed if certain proportion of appointments of the  State in  order to  provide the  backward classes an opportunity equal  to that  of the  members of more advanced classes is  made, provided  that the  reservation is  not so exercised  which   would  amount   to  practically   deny  a reasonable opportunity  of employment  to the members of the other communities.  It was  indicated that under Art, 16 (4) of the  Constitution, reservation of a reasonable percentage for the  Scheduled Castes  and Scheduled Tribes is valid and within the  competence of  the States  or the Centre. But it necessary that a reasonable balance between backward classes and other  members of  the  society  is  to  be  struck  and maintained. In  the decision  of  Devadasan’s  case  (supra) reliance was  also placed  on the  decision in Balaji’s case and another  constitution Bench  decision of  this court  in General Manager  S.E.Railway Vs.  Rangachari (1962  (2)  SCR 586). In  the majority decision in Rangachari’s case, it has been held  that Arts.  16(1) and  16(2) are intended to give effect to  Arts. 14  and 15  of the  Constitutional code  of guarantees and  supplement each  other. Art.  16(1)  should, therefore, be  construed in a broad and general way, and not in pedantic  and technical  way. When  so construed, matters relating to  employment cannot  mean merely matters prior to the act  of appointment  nor can ‘appointment to any office’ mean merely  the initial  appointment but  must include  all matters relating  to employment, whether prior or subsequent to the  employment,  that  are  either  incidental  to  such employment or form part of its terms and conditions.      The short  fact in  Arati Ray  Choudhury’s case is that the Railway  Board prepared  a Roster in 1964 by which 12.5% of the  vacancies were  reserved for Scheduled Castes and 5%

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for Scheduled  Tribes. it  was also  mentioned that if there would be  only a single vacancy then it should be treated as unreserved and  if on account of that a reserved vacancy was to be  treated as  unreserved then  the reservation would be carried forward  to the  subsequent two recruitment year. In 1966, a vacancy of Headmistress was treated as unreserved on this basis.  Another vacancy  arose in January, 1969 and the four Assistant  Mistresses were called for selection. One of the respondent  challenged the  selection on the ground that the post  should be  treated as reserved for Scheduled Caste candidate and  such contention  was  accepted  by  the  High Court. In  1971 the  Railways decided to hold a selection to form a  panel of  two candidates  for filling  up  one  post reserved for Scheduled Caste and another to cover unforeseen requirements. At  that stage,  a  writ  petition  was  filed challenging such  decision of the Railway Administration and an order  of injunction  was issued in such writ proceeding. In spite  of this,  the said  respondents was  called by the Selection board.  The writ petition was ultimately dismissed not on  merits but on the ground that such writ petition was barre by  the principle  of res judicata. This Court however held that  since the  previous writ petition was not decided on merits,  the principle of res judicata or analogous to it was not  attracted. Therefore,  the Court  was competent  to consider the  case on merits. In Arati Ray Choudhury’s case, reference was made to the decisions of Constitution Bench in Balaji’s  case.   Relying  on   the  decision’s   case   the constitution Bench  in Arati  Ray Choudhury’s  case has held that in  Balaji’s decision,  this Court  had struck  down as unconstitutional an  order by  which 68%  of  the  seats  in educational institutions  were reserved for Scheduled Castes and Scheduled  Tribes   and other educationally and socially backward classes.  It was indicated in Arati Ray Choudhury’s case that  following the  decision in  Balaji’s case, in the majority decision  in Devadasan’s  case it  was held that in order to  effectuate the  guarantee   contained  in  Article 16(1),  each     year   recruitment  has  to  be  considered separately by  itself  and  "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."                                         (emphasis added) It has  also been  indicated in  Artai Ray  Choudhury’s case that the  Ministry  of  Home  Affairs  issued  a  Memorandum modifying the  carry forward  rule so  as to comply with the decision in  Devadasan’s case.  By para 2 of the Memorandum, the carry-forward rule was 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% of  the total  number of  vacancies." It was however indicated  in the  said Memorandum  that 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 (emphasis  added). 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. It has been specifically held in Arati Ray Choudhury’s case that in the first place each year of recruitment is to be considered separately and by itself as held in Devadasan’s case (supra) 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, if there be only one vacancy to  be filed  in a given year of recruitment, it has

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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  a 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,  the reservation  can be carried forward  to not  more than  two subsequent  year  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. It has  not been held in Arati Ray Choudhury’s case that for a single  post there  can be  a  reservation  for  Scheduled Castes, Scheduled Tribes or other backward classes. What has been held  in Arati  Ray Choudhury’s case is that when there was a  vacancy at  Adra, according to the Model Roster, such vacancy was a reserved point and therefore the other vacancy was strictly  a reserved  vacancy but  there being  only one vacancy in that particular year of recruitment, such vacancy had to  be treated  as unreserved  and therefore appointment was given  of smt. Biswas, who was not a reserved candidate. Therefore, it  had to be compensated by carrying forward the reservation in  two subsequent  recruitment  year  when  the vacancy in  Kharagpur in  the financial  year 1968-69  arose w.e.f. December 31, 1968.      In Dr. Chakradhar  Paswan’s case (supra) in the State Directorate of indigenous  Medicines, Bihar, initially there three  Class   I  posts   for  (1)  Director  of  Indigenous Medicines, (2)  Deputy Director (Homeopathic) and (3) Deputy Director  (Unani).  Later  the    post  of  Deputy  Director (Ayurvedic) had  also been  added. The  post of Director was the highest  in  the  Directorate;  being  the  Director  of Indigenous Medicines  as a  whole and  not of any particular speciality of Indigenous Medicines.      By  a  Circular  dated  November  8,  1975,  the  State Government prescribed  a 50  point roster  to implement  the policy of  reservation to posts and appointments for members of the  backward classes  under Article  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".  For  the  purpose  of determining the  quantum of  reservation  according  to  the roster, the  Government grouped  together all  the  Class  I posts viz.  the posts  of Director  as  well  as  of  Deputy Directors and  as the  post of the Director had already been filled up treating it to be unreserved, the second post viz. the Deputy  Director (Homeopathic)  was treated as reserved. Accordingly, the  State  Public  Service  commission  issued advertisement inviting  applications from  Scheduled  Castes candidates for  selection to  the same  posts and ultimately the State  Government appointed  a member of Scheduled Caste to the  post of  Deputy Director  (Homeopathic).  A  general candidate thereafter  filed a  writ petition before the High Court challenging  the advertisement  issued   by the  State Public Service  Commission and  also the consequent order of appointment. The High Court allowed the petition and quashed the impugned  advertisement and  the appointment order. Such decision of the High Court was assailed before this Court in Dr. Chakradhar  Paswan’s case.  The appeal  was dismissed by this Court by holding that in service jurisprudence, he term

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‘cadre’ has  a  definite    legal  connotation.  It  is  not synonymous with  ‘service’. 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 post are not  interchangeable and  the incumbents  do not perform the same  duties or  carry the same responsibilities or draw the same  pay. The  posts of  the Director  and those of the Deputy Directors constitute different cadres of the service. 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. Therefore,  for the  first vacancy of the Deputy Director  (Homeopathic),   a  candidate   belonging  to  the Scheduled Caste  had,  therefore,  to  compete  with  other. Relying on  the decision  in Balaji’s  case, it  was held in Chakradhar’s case that once the power to make reservation in favour  of   Scheduled  Castes   and  Scheduled   Tribes  is exercised, it  must necessarily  follow that 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 forward rule  must be so applied that in any particular year there is not more than 50% reservation. The whole concept of reservation for  application of  the 50 point roster is that there are  more than one post, and the reservation can be up to 50%. 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 Article 16(4), presupposes the availability of at least more than one post in that cadre. No reservation could be made  under Article  16(4) so  as to  create a  monopoly. Otherwise,  it   would  render     the  guarantee  of  equal opportunity  contained  in  Article  16(1)  and  (2)  wholly meaningless and  illusory. The  reservation of  the post  of Deputy Director  (Homeopathic) amounted  to 100% reservation which was  impermissible under Article 16(4) as otherwise it would render  Article 16(1)  wholly elusive and meaningless. Article 16(4)  is an  exception to Article 16(1) and (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. Reference   was also  made in  Chakradhar’s    case  to  the decision in Arati Ray Choudhury’s case by indication that in the facts  of that  case when  the open  class had  reaped a benefit in  1966-67 when  a reserved  vacancy was treated as unreserved by  the appointment  of an open candidate, 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.  It was  pointed out in Chakradhar’s case that the decision  in Arati  Ray Choudhury’s  case turned  on the carry  forward   rule  and   such   decision   was   clearly distinguishable   and the  same does not support reservation in a single cadre post.      The decision  in Chakradhar  Paswan’s case  that for  a single post  cadre  no  reservation  can  be  made  for  the backward   classes has  also been followed in Chetana  Dilip Motghare Vs.  Bhide Girls’  Education Society  (1995 Supp. 1 SCC 157) and it has been held in the said decision that when the post  is a  solitary post  in the  cadre, the roster and

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carry  forward  scheme  underlying  any  reservation  policy cannot apply.  A contrary  view, however,  has been taken in the decision  of State  of Bihar  and  Ors.  Vs.  Bageshwari Prasad and  Anr. (1995 Supp. 1 SCC 432), Shri Suresh Chandra Vs. Shri  J.B. Agarwal  and others  (JT 1997 (5) SC 72), and later on in a three Judges’ Bench decision in Union of India and Anr.  Vs. Madhav  (1997 (2) SCC 332). Following the said three Judges’  Bench decision  in Madhav’s case, reservation in a  single post cadre by rotation of roster point has been upheld in  Union of India and others Vs. Brij Lal Thakur (JT 1997 (4)  SC 195)  and the  decision rendered in the case of Post Graduate  Institute of  Medical Education  Research Vs. Faculty Association  and others.  The later  decision is the subject matter of challenge in the Review Petition before us in C.A. No. 3175 of 1997.      Since the  decision in Madhav’s case by a three Judges’ Bench upholding  the reservation  for the  backward  classes even in single post cadre on the basis of rotation of roster point is  the main  decision, when followed in Post Graduate Institute of  Medical Research  case, we propose to consider the decision  in madhav’s  case in  some detail.  The  brief facts in Madhav’s case may be indicated as follows:      In the  national Savings  Scheme Service, only one post of Secretary  was available. the Government applied the rule of reservation  to that  post by  rotation the  vacancies in accordance with  the  40-point  roster.  When  point  No.  4 vacancy in  that post  reserved  for  Scheduled  Tribe,  was filled by  promoting an  ST candidate  from the  post below, such promotion  was set  aside by the Central Administrative Tribunal on  the ground  that the  post of Secretary being a single   point    post,   granting    of   reservation   was unconstitutional. The  correctness or  the said decision was assailed in Madhav’s case.      It has  been held in Madhav’s case that (i) appointment to an  office or post under the State is one of the means to render socio-economic  justice; (ii)  Article 16(4-A) of the Constitution introduced in 1995 by the 77th Amendment of the constitution,  has   resuscitated  the   objectives  of  the Preamble to,  and Articles 46 and 335 of the constitution of India to  enable the  Dalit and Scheduled tribe employees to improve excellence  in higher  echelons  of  service  and  a source of  equality of  opportunity in  the matter of social and economic status; (iii) Parliament has removed the lacuna pointed out  by the  Supreme Court  in Indra  Sawhney’s case (supra) that  Article  16(1)  and  16(4)  do  not  apply  to appointment by  promotion but  apply to initial appointment. By  the  77th  Amendment  of  the  constitution,  the  legal position  enunciated   in  Rangachari’s  decision  has  been restored and  reservation of  promotion to  50% quota as per the  Indra   Sawhney’s  case  is  available  to  members  of Scheduled  Castes  and  Scheduled  Tribes;  (iv)  the  carry forward scheme has been upheld in Indra Sawhney’s case; ((v) reservation could  be provided even to the isolated posts on the basis of the rule of rotation by relying on the decision in Arati Ray choudhury’s case; (vi) extension of reservation is not  unconstitutional. On  the other  hand,  such  scheme provides opportunity  and facilities to Scheduled Castes and Scheduled Tribes  for being considered for promotion to hold single post  consistent with  equality of opportunity on par with others;  (vii) In Paswan’s case even though it was held that  a   single  post   cannot  be  reserved  because  such reservation would  amount to  100% reservation, the question whether the  single post  reservation by  rotation could  be granted and  whether it  would be violative of Article 16(1) was not  gone into  and such question has been kept open. In

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Arati Ray Choudhury’s case, the application of rule of carry forward and  appointment by  rotation of  roster in a single post has  been approved. (viii) In Sabharwal’s case (supra), a Constitution  Bench considered  whether reservation as per the roster  for the purposes of promotion could be valid and consistent with  Article 16(1)  of the constitution and held in favour  of  such  reservation  (ix)  Smt.  Chetana  Dilip Motghare v. Bhide Girls’ Education Society (1995 Supp. 1 SCC 157) has  not been  correctly decided  and the  decisions in Vidyulata Arvind  Kakade v.  Digambar   Gyanba  Surwase  and Arati Ray Choudhury’s cases were not properly appreciated in Bhide Girls’ case (x) In State of Bihar & Ors. V. Bageshwari Prasad &  Anr. (1995  Supp. 1 SCC 432), the rule of rotation has been  held valid  by indicating  that the said rule does not offend  Articles 14  and 16(1) of the Constitution. (xi) The  judgment   in  Chakradhar   Paswan’s  case   was   also distinguished in Bageshwari’s decision.      In Madhav’s  case, in  support of the view that even in respect of  single post  cadre, reservation  can be made for the backward classes by rotation of roster, the Constitution Bench decision in Arati Ray Choudhury’s case has been relied on. We  have already  indicated that  in Arati’s  case,  the Constitution Bench  did not  lay down  that in  single  post cadre, reservation is possible with the aid of roster point. The court  in Arati’s  case considered  the applicability of roster point  in the  context of  plurality of  posts and in that context   the  rotation of  roster was  upheld  by  the Constitution Bench.  The Constitution  Bench in Arati’s case has made  it quite clear by relying on the earlier decisions of the  Constitution Bench  in Balaji’s case and Devadasan’s case that  100% reservation  was not  permissible and  in no case reservation beyond 50% could be made. Even the circular on the  basis of  which appointment  was made  in Arati  Ray Choudhury’s case was amended in accordance with the decision in Devadasan’s  case.  Therefore,  the  very  premises  that Constitution Bench  in Arati’s   case has upheld reservation in a  single post  cadre is  erroneous  and  such  erroneous assumption  in   Madhav’s  case   has  been  on  account  of misreading of  the ratio  in Arati  Ray Choudhury’s case. It may be indicated that the later decision of the Constitution Bench in  R.K. Sabharwal’s  case (1995(2)  SCC 745) has also proceeded on  the footing  that reservation  in  roster  can operate provided in the cadre there is plurality of post. It has also  been indicated  in Sabharwal’s  decision that  the post in a cadre different from vacancies.      It also  appears that  the decision  in Indra  Swhney’s case has  also not  been properly  appreciated  in  madhav’s decision. In Indra Sawnhey’s case, it has not been held that there can  be reservation  in a  single cadre post. There is not dispute  that a  carry forward  scheme, provided it does not result  in reservation  beyond 50%  is  constitutionally valid but  that does  not mean  that by  the device of carry forward scheme,  100% reservation  on some  occasions can be made even  when the  post is  only a  single cadre  post. In Madhav’s decision and Brij Lal’s decision, reliance has been placed on  Article 16(4A)  of the  Constitution for  holding that even  in respect of single post such reservation can be made with  the aid  of rotation  of   roster. In  our  view, Article 16(4A) relates to reservation in promotional post in the cadre,  but the  said Article  16(4A) does not deal with the question of reservation in a single cadre post.      There is  no difficulty  in appreciating  that there is need for reservation for the members of the Scheduled Castes and Scheduled  Tribes and  other backward  classes  ad  such reservation  is not confined to the initial appointment in a

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cadre but  also to  the appointment  in promotional post. It cannot however be lost sight of that in the anxiety for such reservation for the backward classes, a situation should not be brought  by which the chance of appointment is completely taken away  so far  as the  members of other segments of the society are  concerned by  making such  single post cent per cent reserved  for the  reserved categories to the exclusion of other  members of  the community even when such member is senior in service and is otherwise more meritorious.      Articles 14, 15 and 16 including Article  16(4), 16(4A) must be  applied in  such a  manner so  that the  balance is struck in  the matter of appointments by creating reasonable opportunities for  the reserved  classes and  also  for  the other members of the community who do not belong to reserved classes. Such  view has  been indicated  in the Constitution Bench decisions  of this Court in Balaji’s case, Devadasan’s case and Sabharwal’s case. Even in Indra Sawhney’s case, the same view  has been  held by  indicating that only a limited reservation not  exceeding 50%  is permissible.  it is to be approciated that  Article 15(4)  is an  enabling   provision like  Article   16(4)  and   the  reservation  under  either provision should  not exceed  legitimate limits.  In  making reservations for  the  backward  classes  the  State  cannot ignore the  fundamental rights  of the rest of citizens. the special provision  under Article 15(4) must therefore strike a  balance   between  several  relevant  considerations  and proceed objectively.   In  this connection  reference may be made to  the decisions  of this court in The State of Andhra Pradesh and  Ors. Vs.  U.S.V. Balaram and C.A. Rajendran Vs. Union of  India (AIR  1972 SC  1375 and AIR 1968 SC 507). It has been  indicated in  Indra  Swhney’s  case  (supra)  that clause (4)  of Article  16  is  not  in  the  nature  of  an exception to  Clauses (1)  and (2)  of  Article  16  but  an instance of  classification permitted  by clause (1). It has also been  indicated in the said decision that clause (4) of Article 16  does not  cover the  entire   field  covered  by clauses (1)  and (2) of Article 16. In Indra Sawhney’s case, this court  has also  indicated that in the interests of the backward classes  of citizens, the State can not reserve all the appointment   under  the State or even majority of them. the doctrine  of equality  of opportunity  in Clause  (1) of Article 16 is to be reconciled in favour of backward classes under clause  (4) of  Article   16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.      In Triloknath  Vs. State of Jammu and Kashmir (AIR 1967 SC 1283),  it has  been held  by this  Court that  where the percentage of  reservations is not reasonable, having regard to employment  opportunities of  the general  public to  the cadre of  service in  question, the population of the entire State, the  extent of  their backwardness  and the like, the interference by  Court against  unreasonable reservation  is called for.      In a  single post  cadre, reservation  at any  point of time on  account of  rotation of  roster is  bound to  bring about a  situation where  such single post in the cadre will be kept reserved exclusively for the members of the backward classes and  in total exclusion of the general embers of the public. Such  total exclusion  of  general  members  of  the public and cent percent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent.      Hence, until  there   is plurality  of posts in a cadre the question  of reservation  will  not  arise  because  any

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attempt of  reservation by  whatever  means  and  even  with device of rotation of roster in a single post cadre is bound to create  100% reservation  of   such  post  whenever  such reservation  is to be implemented. The device of rotation of roster in  respect of  single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bound to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for  open competition  when in  fact on  all  such occasions, a single post cadre should have been  filled only by open competition amongst all segments of the society.      Mr. Kapil  Sibal has  contended  that  in  some  higher echleon of  service in educational and technical institution where special expertise is necessary to hold superior posts, like Professors  and Readers there should not be reservation even if  there are  plurality of  posts  in  such  cadre  as indicated in  the majority  view in Indra Sawhney’s case. It is, however,  not  necessary  for  us  to  decide  the  said contention for  the purpose  of disposal  of these  matters, where the question of reservation in single cadre post calls for decision.      We, therefore,  approve the  view taken in Chakradhar’s case that  there can not be any reservation in a single post cadre and we do not approve the reasonings in Madhav’s case, Brij Lal Thakur’s case and Bageswari Prasad’s case upholding reservation in  a single  post   cadre either directly or by device  of   rotation  of  roster  point.  Accordingly,  the impugned decision  in the case of Post Graduate Institute of Medical Education  Research  can  not  also  sustained.  The Review Petition made in civil appeal No. 3175 of 1997 in the case  of   Post  Graduate  Institute  of  Medical  Education Research, Chandigarh,  is therefore allowed and the judgment dated may 2, 1997 passed in civil Appeal No. 3175 of 1997 is set aside.      As  we  do  not  propose  to  consider  the  facts  and circumstances i other cases which have been heard along with the Review  Petition, we  direct that  the said  matters  be placed before  the appropriate  Bench for  disposal on   the basis of  this decision  in Review Petition in C.A. No. 3175 of 1997.  In the  facts and circumstances of the case, there will be no order as to costs.