IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No………… of 2008 (@ SPECIAL LEAVE PETITION (C) NO.231 of 2007)

State of Karnataka & Ors.                ..Appellants

Vs.

K. Govindappa & Anr.                 … Respondents

With

Civil Appeal No………… of 2008 (@ SPECIAL LEAVE PETITION (C) NO.5353 of 2007)

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. The  respondent  No.1,  Shri  K.  Govindappa  was

appointed as a Lecturer in History in an aided

private  college  owned  and  managed  by  the

Vinayaka  Rural  Education  Society,  the

respondent No.2 herein, with effect from 10th

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July,  1994.   The  said  college,  which  was

situated  at  Hegalavadi,  Gubbi  Taluk,  Tumkur

District,  applied  for  approval  of  the

appointment of the respondent No.1, but such

prayer  was  refused  by  the  Government  of

Karnataka on the ground that the appointment

had been made in violation of the Roster Policy

and that he had been appointed in a post which

was reserved for a Scheduled Caste candidate.

A review petition was filed by the respondent

No.1  before  the  Government  contending  that

since there was only a single post of Lecturer

in  History  in  the  college,  the  reservation

policy  would  not  apply  to  the  said  post  in

which the respondent No.1 had been appointed.

As  the  claim  of  the  respondent  No.1  was

rejected by the Government, he filed a Writ

Petition  before  the  Karnataka  High  Court

praying for quashing of the orders passed by

the Government and for a direction upon the

concerned  authorities  to  approve  his

appointment with effect from 21st July, 1994,

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from  which  date  he  had  joined  his  duties.

Contesting the claim of the respondent No.1 the

appellants contended before the Writ Court that

even though the Management was running only one

college, it had different disciplines for which

there were several Lecturers.  It was contended

that the college had to maintain the Roster for

the purpose of making appointments after taking

into  consideration  the  entire  cadre  of

Lecturers, irrespective of subjects.  It was

also contended that in the college in question

there were six posts of Lecturers and hence,

the post of Lecturer in History could not be

considered as a single post.

3.  The  submissions  made  on  behalf  of  the

appellants was rejected by the learned Single

Judge  upon  holding  that  since  the  post  of

Lecturer  in  History  was  a  single  post,  the

reservation  policy  would  not  apply  to  the

appointment made to the said post.  The learned

Single Judge quashed the orders passed by the

Government upon holding that the appointment of

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the  respondent  No.1  was  just  and  legal  and

directed the appellants to give approval to his

appointment.

4. The matter was taken up to the Division Bench

of the High Court by the State of Karnataka and

its officers, who are also the appellants in

these  proceedings.   While  considering  the

matter, the Division Bench posed the following

two questions which it considered relevant for

the purpose of deciding the appeal, namely :-

“(1) Whether the post of lecturer in History to

which the writ petitioner was appointed was a

single post; and

(2) If the said post was a single post whether

the fourth respondent Management was bound to

reserve the post for a member of the scheduled

caste as contended by respondent No.1 to 3 in

the writ petition.”  

5. The  Division  Bench  confirmed  the  views

expressed  by  the  learned  Single  Judge  and

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relying on the decision of this Court in the

case  of  Dr.  Chakradhar  Paswan  vs.  State  of

Bihar, [(1988) 2 SCC 214] and the Full Bench

decision of the Karnataka High Court in Dr.

Rajkumar  vs.  Gulbarga  University,  [ILR  1990

Karnataka 2125], held that the decision of the

learned  Single  Judge  did  not  require  any

interference.

6. The State of Karnataka and its authorities are

in appeal against the decision of the Karnataka

High  Court  in  Writ  Appeal  No.  3125  of  2005

dated 27th January, 2006.

7. On behalf of the appellant, State of Karnataka,

Mr. Sanjay Hegde, learned advocate, submitted

that  both  the  learned  Single  Judge  and  the

Division Bench of the High Court erroneously

applied the ratio of the decision in Chakradhar

Paswan’s case (supra) upon holding that each

discipline  in  the  college  constituted  a

separate  cadre  within  a  service  in  which

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Lecturers were appointed and the isolated posts

could not be taken together for applying the

roster by rotation for reservations purposes.

Mr. Hegde urged that the posts in the different

disciplines  were  meant  to  be  filled  by

Lecturers  who  formed  a  cadre  and  each

discipline which consisted of a single post of

Lecturer did not constitute a separate cadre in

respect  of  the  said  discipline  as  otherwise

without  applying  the  principle  of  roster

rotation,  the  said  single  post  would  always

have  to  be  filled  up  from  amongst  general

candidates and a Scheduled Caste or Scheduled

Tribe candidate would always have to compete

against  general  candidate  for  such  purpose

which would destroy and/or negate the  very

object  and  purpose  of  Article  16(4)  of  the

Constitution.

8. Mr.  Hegde  submitted  that  all  the  posts  of

Lecturers, irrespective of the subjects taught,

were treated by the college as one cadre for

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the purpose of maintaining the roster system

for reservation of posts. However, by applying

the ratio in Chakradhar Paswan case (supra),

the High Court had quite erroneously quashed

the  appointment  of  the  respondent  No.1  as

Lecturer  in  History  which,  according  to  the

roster, had been reserved for a Scheduled Caste

candidate.

9. It  was  next  urged  by  Mr.  Hegde  that  the

expression “cadre”  could not be equated with

the expression “post” as defined in Fundamental

Rules 9 and 4, nor could the expression “cadre”

be understood as synonymous  to the expression

“service”. Mr. Hegde submitted that “cadre” as

defined in the Fundamental Rules refers to the

strength of a service and has no concern with

individual  posts  in  a  particular  discipline

which all form part of one cadre, particularly

when all the posts in the cadre of Lecturer

pertained to the same institution.

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10. Referring  to  the  decision  in  Chakradhar

Paswan’s case (supra) Mr. Hegde submitted that

the facts of the said case were unique to that

case  as  within  the  same  Directorate  three

separate  branches  of  indigenous  medicines,

namely, Homeopathy, Unani and Ayurvedic, were

treated  as  isolated  and  separate  posts,

although, they carried the same scale of pay,

and the three separate posts of Deputy Director

of each branch could not be grouped together

for  the  purpose  of  applying  the  50  point

roster. It is in that context that it was held

by this Court that isolated and separate posts

can exist in the same cadre without violating

Article 16(1) and (4) of the Constitution.

11. On the other hand, Mr. Hegde referred to the

Constitution Bench decision of this Court in

the case of Arati Ray Choudhary vs. Union of

India  [(1974)  1  SCC  87],  where  the  Rule  of

“carry forward” was applied in the case of a

reserved vacancy which remained unfilled. The

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principle  upheld  in  the  said  case  was  with

regard to two posts which were by their nature

isolated posts but belonging to the same cadre.

Although,  when the first post fell vacant it

was  meant  to  be  reserved  for  a  reserved

candidate,  it  was  filled  by  a  general

candidate, by applying the carry forward rule,

the subsequent vacancy had to be for a reserved

candidate  even  if  it  was  a  single  post  and

would not amount to 100% reservation so as to

offend Articles 14 and 16 of the Constitution.

12. Mr. Hegde also referred to the decision of this

Court in State of U.P. vs. Dr. Dina Nath Shukla

&  Another  [(1997)  9  SCC  662],  where  the

principle of rotation was upheld with regard to

isolated  posts  to  give  meaning  to  the

provisions of reservations and Articles 15(2)

to (4), 16(4) and 16(4-A) of the Constitution.

In dealing with the matters, the learned Judge

also took note of the decisions of this Court

in  i)  R.K.  Sabharwal  vs.  State  of  Punjab,

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[(1995) 2 SCC 745 and ii) Union of India vs.

Madhav {(1997) 2 SCC 332] where the same views

were  expressed  and  it  was  reiterated  that

application of the rule of rotation for filling

up a single post did not offend Articles 14 and

16(1) of the Constitution.

13. Reference  was  lastly  made  to  another

Constitution Bench decision in the case of Post

Graduate Institute of Medical Education  and

Research vs. Faculty Association [(1998) 4 SCC

1], wherein the views expressed in the earlier

decisions relating to reservation in a single

post again came up for consideration. Reversing

the views expressed earlier in Union of India

vs. Madhav (supra)  and in other similar cases,

the Constitution Bench held that there could be

no  reservation  in  respect  of  a  single  post

cadre as by applying the rule of rotation,  the

single post could become a reserved post, which

was contrary to the Constitutional scheme which

did not permit 100% reservation in a single

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post.  While trying to reconcile the view of

the Constitution Bench in Arati Ray Choudhary’s

case  (supra),  it  was  explained  that  the

decision rendered therein was in the context of

the  “carry  forward”  principle  and  did  not

support reservation in a single cadre post.

14. Mr. Hegde submitted that since the posts of

Lecturers in the college constituted one single

cadre, only the roster principle would apply,

as had been made applicable in the instant case

and the High Court had erred in treating each

discipline as a separate unit for the purpose

of  reservation.  It  was  submitted  that  the

impugned orders passed by the learned Single

Judge, as also the Division Bench, were liable

to be set aside.

15. Responding to Mr. Hegde’s submissions, Mr. P.P.

Singh, learned advocate, reiterated the stand

taken on behalf of the respondent No.1 before

the High Court and submitted that the post of

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Lecturer in History being a single post, the

question of reservation did not arise as that

would amount to 100% reservation, which would

offend the constitutional mandate of Articles

14 and 16(1) of the Constitution. Mr. Singh

referred to the letter dated 28th July, 1994,

addressed to the Joint Director, Department of

Public  Instruction,  Bangalore  Division,  on

behalf of the college seeking approval of the

appointment of the respondent No.1 as permanent

Lecturer  in  History,  wherein  it  had  been

explained that no application for appointment

had  been  received  from  any  Scheduled  Tribes

candidate and that the respondent No.1 was the

only candidate for the post.

16. Mr.Singh  submitted  that  the  judgment  of  the

High Court was based on sound principles of law

which did not warrant any interference in the

appeal.

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17. While  adopting  Mr.  Singh’s  submissions,  Ms.

E.R.  Sumathy, learned  advocate appearing  for

the  respondent  No.2  college,  urged  that  the

decision in Arati Ray Choudhary’s case involved

two  schools  being  run  by  the  South  Eastern

Railways,  where  plurality   of  posts  existed

which made it possible to apply the rule of

rotation  since  the  bar  of  100%  reservation

would not be applicable  in the facts of the

case. Mr. Sumathy  submitted that the principle

enunciated in Arati Ray Choudhury’s case would

not be applicable in the instant case where

only one institution was involved and Lecturers

of  such  separate  discipline  formed  a  single

cadre.

18. We  have carefully  considered the  submissions

made on behalf of the respective parties and

the  decisions  cited  by  learned  counsel  in

support  thereof.  In  dealing  with  the  issue

raised in this appeal, it has to be kept in

mind  that  some  of  the  earlier  decisions  in

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Madhavi’s case (supra), in the case of Suresh

Chandra as J.B. Agarwal [(1997) 5 SCC 363 and

Post Graduate  Institute of Medical Education &

Research  vs.  K.L.  Narasimhan,  [(1997)  6  SCC

283, in which reservation by rotation even in

respect of a single post had been approved, was

subsequently  overruled  in  the  Constitution

Bench decision in the case of Post Graduate

Institute of Medical Education & Research vs.

Faculty  Association  (supra)  and  it  was  held

that  in  no  case  could  reservation  be  made

applicable in respect of a single post. The

Constitution Bench approved the views expressed

in  Dr.  Chakradhar  Paswan’s  case  (supra)

following  those  expressed  by  the  earlier

Constitution  Bench  in  Arati  Roy  Choudhary’s

case (supra). In view of the above, the only

question which we are called upon to consider

is whether the High Court was right in treating

the  post  of  Lecturer  in  History  in  the

respondent No.2 college as a single isolated

post forming a separate cadre in itself and not

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part of the cadre of Lecturers comprising all

the  different  disciplines  taught  in  the

college.

19. In this regard, Mr. Hegde has explained the

difference between “post” and “cadre” and that

the two expressions could not be equated with

each  other.  He  has  also  explained  that  the

expression  “cadre”  was  not  synonymous  with

“service” and that merely because there were

single  posts  in  the  different  disciplines

taught in the college, it did not mean that

each post constituted a separate cadre within

the cadre of Lecturers. While there can be no

difference  of  opinion  that  the  expressions

“cadre”, “post” and “service” cannot be equated

with  each  other,  at  the  same  time  the

submission that single and isolated posts  in

respect of different disciplines cannot exist

as  a  separate  cadre  cannot  be  accepted.  In

order to apply the rule of reservation within a

cadre, there has to be  plurality of posts.

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Since there is no  scope of inter-changeability

of  posts  in  the  different  disciplines,  each

single post in a particular discipline has to

be treated as a single post for the purpose of

reservation within the meaning of Article 16(4)

of the Constitution.  In the absence of duality

of posts, if the rule of reservation is to be

applied, it will offend the constitutional bar

against  100%  reservation  as  envisaged  in

Article 16(1) of the Constitution.

20. The decision in Dr. Chakradhar Paswan’s case

(supra), which has been subsequently approved

by the Constitution Bench in the Post Graduate

Institute of Medical Education & Research case

(supra)  makes  it  clear  that  isolated  and

separate posts can exist within a cadre and in

case of such posts, if there was only one post,

the same could not be  set apart for a reserved

candidate.

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21. In our view, the present case falls within the

category  of  single  isolated  posts  within  a

cadre  in  respect  whereof  the  rule  of

reservation  is  inapplicable  and  the  said

principle  has  been  correctly  applied  by  the

High  Court  in  the  facts  of  this  case.  As

indicated by the High Court, each discipline

which consisted of a single post will have to

be dealt with as a separate cadre for the said

discipline  and in view of the settled law that

there can be no reservation in respect of a

single post, the appointment of the respondent

No.1 cannot be faulted. This is particularly so

having  regard  to  the  fact  that  the  several

disciplines are confined to one College alone.

That is what distinguishes the facts of this

case from those of Arati Roy Choudhary’s case

(supra) in which  the rule of rotation could be

applied on account of the fact that two posts

of Headmistress were available in two colleges

run by the same management. Moreover, in Dr.

Chakradhar  Paswan’s  case  (supra)  on  which

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reliance was placed by the High Court it was

noticed  that  while  upholding  the  rule  of

rotation the Constitution Bench in Arati Roy

Choudhary’s  case  (supra)did  not  support

reservation in a single cadre post.

22. We, therefore, have no hesitation in upholding

the decision of the Karnataka High Court, in

the facts of this case. The appeal, therefore,

must fail, and is dismissed without any order

as to costs.

23. Since the question in issue in this appeal is

the same as that in Civil Appeal No. ________(@

Special Leave Petition (Civil) No.5353 of 2007-

The  Government  of  Karnataka  and  another  vs.

Bidarambika  Vidya  Samasthe  Regd.  &  others),

which is being heard along with this appeal,

the same is also dismissed since the decision

therein  was  rendered  in  the  light  of  the

decision in Writ Appeal No.3125 of 2005, out of

which the present appeal arises. The same is,

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therefore,  dismissed  along  with  the  instant

appeal.

________________J. (ALTAMAS KABIR)

_________________J. (MARKANDEY KATJU)

New Delhi Dated: November 20, 2008  

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