Deshmukh, J.:— Rule, returnable forthwith by consent of the parties. Leave to amend.

2. By this petition, the petitioners challenge the advertisement, dated 27 February, 1999, issued by the Pune University advertising 85 posts of teachers. By that advertisement, all the posts have been reserved for scheduled castes, scheduled tribes, denotifed tribes, nomadic tribes and other backward class candidates. The petitioners who according to them are eligible for these posts have challenged the advertisement on the ground that their right to apply for these posts which is guaranteed to them by Arts. 14 and 16 of the Constitution of India has been denied because all the posts have been reserved for scheduled castes, scheduled tribes, de notified tribes, nomadic tribes and other backward class candidates whereas the petitioners do not belong to any of these categories. According to the petitioners, the reservation of all the posts advertised amounts to 100 per cent reservation which is according to them violating the rights guaranteed under Art. 14 of the Constitution of India. The learned counsel appearing for the petitioners, in support of his contention, relies on a judgment of the Constitution Bench of the Supreme Court in the case of Indra Sawhney v. Union of India, [1992 Supp (3) SCC 217 : A.I.R 1993 S.C 477], and again a judgment of the Constitution Bench of the Supreme Court in the case of Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association, [1998 (4) L.L.N 101]. In the submission or the learned counsel, the Supreme Court in both these judgments has clearly held that the carry forward rule cannot be applied to reserve 100 per cent posts in a year in favour of me backward classes. The learned counsel appearing for the University, on the other hand, relying on a judgment of the Supreme Court in the case of Post-Graduate Institute of Medical Education and Research v. K.L Narasimhan, [1997 (2) L.L.N 626], submits that the Supreme Court in the above referred judgment has held that if the authority is filling in the posts as a special driver exclusively for the dalits and tribes, the rule that more than 50 per cent posts cannot be reserved does not apply. The learned counsel for the petitioners, on the other hand, points out that the judgment of the Supreme Court in Narasimhan case (vide supra), has been set aside by the Supreme Court by its subsequent judgment in the Post-Graduate Institute of Medical Education and Research case referred above.

3. Now, in the light of these rival submissions, if the record of the case is perused, it is an admitted position that by the advertisement which is impugned in this petition, 100 per cent vacancies in a year are being reserved for the backward classes. The Supreme Court in Para. 99 of its judgment in the case of Indra Sawhney (vide supra), has observed that:

“We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward a such for a period of three years. In such as case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50 per cent rule”.

Thus, the Constitution Bench of the Supreme Court has clearly laid down that the result of application of carry forward rule can in no case result in breach of 50 per cent ceiling. The Supreme Court has also held in the same judgment that a year should be taken as a unit or basis for applying the rule of 50 per cent and not the entire cadre. The Supreme Court in its judgment in Narasimhan case, [1997 (2) L.L.N 626] (vide supra), however, appears to have made an exception to this well established rule while accepting that in Indra Sawhney case, it is clearly mid down that the reservation of vacancies arising in a particular year cannot exceed 50 per cent. The Supreme Court, in Para. 20, at page 637 of its judgment in Narasimhan case (vide supra), has observed that:

“…On the facts in this case, it is not necessary to go into the aspect of that matter. Suffice to state that the case can be decided on another point without touching upon that issue and leaving it open. It is seen that this notification is only for a special recruitment exclusively for the Dalits and tribes. In the light of Sharma ratio [1981 (1) L.L.N 597], it is always open to the Government to carry out special recruitment to fill up the backlog vacancies reserved for SC/ST It is not the case that backlog vacancies should be thrown open to the general candidates unless they are dereserved and notified for recruitment by general candidates and equal number of posts are carried forward. There is no compulsion on the Government to fill up the vacancies stage by stage… There is no prohibition on filling up backlog vacancies by special recruitment. The special recruitment is not treated as routine recruitment in any year. The bar of 50 per cent would apply only when general recruitment is made on both to the general as well as the reserved candidates in respect of the current vacancies. But when special recruitment is made for selection and appointment of the dalits and tribes, to the reserved backlog vacancies, the normal run for recruitment is inapplicable…”.

Thus, it appears that though the Supreme Court in Narasimhan case, [1997 (2) L.L.N 626] (vide supra), has accepted that the law, laid down by the Constitution Bench in Indra Sawhney case (vide supra), was that the reservation for carry forward vacancies in any year cannot exceed 50 per cent, the Supreme Court made a distinction between general recruitment to which even according to Narasimhan case (vide supra), 50 per cent rule applies and special recruitment for filling in the backlog vacancies. It appears that the same judgment of the Supreme Court in Narasimhan case (vide supra), was being considering by the Supreme Court while deciding Post Graduate Institute of Medical Education and Research case, [1998 (4) L.L.N 101] (vide supra). In fact, in that case, the Supreme Court was considering the the review application filed against the judgment in Civil Appeal No. 3175 of 1997 which was decided by the Supreme Court in Narasimhan case (vide supra). The Supreme Court in Post-Graduate Institute of Medical Education and Research case (vide supra), in Para 20, at pages 637 and 638 of 1997 (2) L.L.N, has observed thus:

“It is then contended that in view of the decision of this Court in Indra Sawhney v. Union of India (vide supra), the recruitment to 12 posts reserved for dalits and tribes, is in violation of the carry forward principle adumbrated therein, he placed strong reliance on Paras. 817-18 at pages 739-40. The carried forward posts cannot be filled up or reservation cannot exceed 50 per cent of the 12 posts, proposed to be filled. It is contended that recruitment to the balance, i.e, 6 posts, whenever made or in whatever manner it is sought to be worked out, should be thrown open for general candidates. We find no force in the contention. The case therein did not relate to carried forward posts. Firstly, he admits that Indra Sawhney case (vide supra), is not a ratio decidendi” on carried forward rule since the facts therein do not relate to carried forward posts and, therefore, though it does not operate as a binding precedent, yet, he says, the ratio is obiter and would bind the smaller Benches; and, therefore, this Bench is bound by the said ratio. In view of the fair stand taken by Sn Rao that it does not operate as a ratio decidendi, the question arises whether it binds smaller Benches as obiter dicta. On the facts in this case, it is not necessary to go into that aspect of that matter. Suffice to state that the case can be decided on another point without touching upon that issue and leaving it open. It is seen that this notification is only for a special recruitment exclusively for the dalits and tribes. In the light of Sharma ratio (vide supra), it is always open to the Government to carry out special recruitment to fill up the backlog vacancies reserved for SC/ST. It is not the case that backlog vacancies should be thrown open to the general candidates unless they are dereserved and notified for recruitment by general candidates and equal number of posts are carried forward. There is no compulsion on the Government to fill up the vacancies stage by stage. For instance, all the 12 vacancies are meant exclusively for dalitas and tribes. The recruitment is by a special drive. Until the posts are thrown open after dereservation in accordance with the principle refened to hereinbefore, the posts would not be available to the general candidates. The obiter dicta in Indra Sawhney case (vide supra), on carry forward rule, even if applied, does not violate 50 per cent reservation principle for the reason that if 12 posts are advertised for recruitment, appointment to 6 posts could be made and the balance 6 posts again would be readvertised, three posts again would be filled up and; when three posts would be advertised; two could be filled up and one could be carried forward and the remaining one could be filled up in the last recruitment. There is no prohibition on filling up backlog vacancies by special recruitment. The special recruitment is not treated as routine recruitment in any year. The bar of 50 per cent would apply only when general recruitment is made on both to the general as well as the reserved candidates in respect of the current vacancies. But when special recruitment is made for selection and appointment of the dalits and tribes, to the reserved backlog vacancies, the normal run for recruitment is inapplicable. Accordingly instead of conducting the exams for different categories in the manner indicated above, there is no constitutional prohibition on filling up of the backlog vacancies by a special recruitment in a single go. Thus we hold that the special recruitment is not violative of the principle of carry forward within one year equally, reservation within 50 per cent quota is not violative. In this behalf, this Court in G.S Gill case had held as under:

Thus, it could be seen that they carry forward rule is constitutionally permissible. It is an extension of the principle of providing facility and opportunity to secure adequacy of the representation to dalits and tribes mandated by Art. 335. It should be carried for three years. Even in the post when the vacancy as per roster was available, but candidates were not available, same could be carried forward for three years. However, in each recruitment year, the carry forward rule cannot exceed 50 per cent of the vacancies. That question does not arise in a situation where there is single post/cadre, in S.S Sharma v. Union of India, [1981 (1) L.L.N 597] (vide supra), in Para. 8, at page 601, this Court had held that:

‘the limited departmental competitive examination in recruitment of the members of the scheduled castes and scheduled tribes for determination of eligibility for promotion is not invalid nor the Central Government be directed to dereserve the vacancies meant for such members when it was found that suitable scheduled caste and scheduled tribe candidates were not available for inclusion within the field of selection. Whether or not reserved vacancies should be dereserved is a matter falling primarily within the administrative discretion of the Government. There is no right in general candidates to seek filling up of the vacancies belonging to the reserved category and to insist on dereservation of reserved vacancies so long as, it is possible in law to fill the reserved vacancies.’

In other words, carried forward (unfilled) vacancies reserved for dalits and tribes should be filled up only by the reserved candidates and general candidates have no right to seek direction for dereservation thereof for filling up of the same by general candidates. It would thus be clear that carry forward rule is a permissible constitutional rule. Carry forward would be done for three years”.

It is thus clear that the Supreme Court has held that an isolated single post cannot be reserved even by operating the roster system because whenever that post is reserved, it amounts to 100 per cent reservation of the vacancy. The learned counsel appearing for the University, however, submits that the Supreme Court in Post-Graduate Institute of Medical Education and Research case, [1998 (4) L.L.N 101] (vide supra), was considering only one of the aspect, viz., reservation of isolated post. In the submission of the learned, counsel, the carry forward rule was not being considered by the Supreme Court in the aforesaid matter. In our opinion, the submission is not well founded. For considering validity of the rule, for non-reservation of a single isolated post, the carry forward rule has to be considered unless the Court accepts that reservation for not more than 50 per cent posts as illegal, the Court cannot come to the conclusion that a single isolatead post cannot be reserved. Thus, it is clear that the Constitution Bench of the Supreme Court in Post-Graduate Institute of Medical Education and Research case (vide supra), has held that single isolated post cannot be reserved and reservation for more than 50 per cent vacancies is impermissible. In our opinion, these two question cannot be said to be separate issues. It is further to be seen here that the judgment in the case of K.L Narasimhan, [1997 (2) L.L.N 625], (vide supra), was the judgment in several appeals. There are no separate judgments given and the Supreme Court, in Para 39, at page 117 of its judgment in the case of Post-Graduate Institute of Medical Education and Research (vide supra), has observed thus:

“We, therefore, approve the view taken in Chakradhar case, [1988 (1) L.L.N 940], that there cannot be any reservation in a Single post cadre and we do not approve the reasonings in Madhav case, [1997 (2) L.L.N 549], Brij Lal Thakur case, [1997 (4) L.L.N 52] and Bageshwari Prasad case, [1995 Supp (1) SCC 432], 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 and Research cannot also be sustained. The review petition made in Civil Appeal No. 3175 of 1997 in the case of Post-Graduate Institute of Medical Education and Research, Chandigarh, is, therefore, allowed and the judgment, dated 2 May, 1997, passed in Civil Appeal No. 3175 of 1997 is set aside”.

It is thus clear that the judgment of the Supreme Court in Narasimhan case (vide supra), dated 2 May, 1997, has been set aside and, therefore, the learned counsel appearing for the University was not justified in relying on that judgment. To our mind, there cannot be any doubt now as a result of the judgment of the Constitution Bench in Indra Sawhney case (vide supra), and Post-Graduate Institute of Medical Education and Research case (vide supra), that 100 per cent reservation for vacancies is impermissible and in any case, reservation beyond 50 per cent could be made. It is further to be seen her that even if it is assumed that the judgment of the Supreme Court in Narasimhan case (vide supra), is intact and still survives, the Supreme Court holds that the bar of 50 per cent applies to general recruitment and it does not apply when special recruitment of backlog vacancies is being taken. Before us, it is an admitted position that while issuing the advertisement, which is impugned in the petition, the University has issued another advertisement making recruitment to the general as also reserved posts. In this view of the matter therefore, m our opinion, the advertisement cannot be said to be proper even by the judgments of the Supreme Court in Narasimhan case (vide supra).

4. In the result, therefore, the petition succeeds and is allowed, rule is made absolute in terms of prayer Cls. (a) and (b)(ii) which read thus:

“(a) for a writ of certiorari, for a writ in the nature of certiorari or for any other appropriate writ, direction or order calling for the records and proceedings of the advertisement, dated 27 February, 1999, issued by respondents 1 and 2 and after examining the legality, validity and propriety thereof the said impugned advertisement, dated 27 February, 1999, be quashed and set aside.

(b)(ii) directing the respondents to advertise 50 per cent of total vacancies for reserved category candidates and remaining 50 per cent for open category candidates”.

5. No order as to costs.

6. Certified copy is expedited.