R.M.S Khandeparkar, J.:— Heard.

2. The points for consideration which arise in these references are whether the rule of 50 point roster will apply to the cases where total number of posts in a cadre are three or less and the total reservation is 24 percent and what should be the minimum strength of cadre for the applicability of 50 point roster?

3. The Division Bench of this Court in Somsingh Chandrasingh Thakur v. Head Master, Captain R.M Oak School, Kalyan (W), Dist. Thane, reported in 2005 (4) Mh. L.J 946, while dealing with the similar issue and relying upon the decisions in Dr. Chakradhar Paswan v. State of Bihar, reported in 1988 Mh. L.J (SC) 655 : AIR 1988 SC 959 and Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association, reported in 1998 (2) Mh. L.J 353 : 1998 (4) SCC 1 has held that under Rule 9(10) of the MEPS Rules permissible reservation is only 24% and therefore only one out of 4 such posts can be subjected to reservation.

4. When the matter in Writ Petition No. 4723 of 2005 came up for hearing before learned single Judge on 13-3-2006, attention was drawn to the said decision of the Division Bench. While recording the submissions on behalf of the respondent therein that the roster is to be applied to the vacancies occurring in the post and that therefore the Division Bench decision is wholly unsustainable as it goes to work out reservation qua the number of posts, without application of roster, which in turn operates on the number of vacancies arising in the posts, it is observed that the same would result in absurd consequences. It is further observed that the decision of the Division Bench in Somsingh's case (supra) is therefore per incurium as the roster was not brought to the notice of the Court and that the observations made by the Division Bench do not reflect the correct legal decision and therefore the matter was required to be referred to a larger Bench.

5. If one peruses para 10 in Somsingh's case, it clearly holds that under Rule 9(10) of the MEPS Rules, the permissible reservation is only 24% and, therefore, only one out of four such posts can be subjected to reservation. In other words, in cases where the reservation is to the extent of 24% and the cadre comprises of four posts, only one post can be subjected to reservation. The ground on which the learned single Judge has expressed disagreement with the decision of the Division Bench appears to be that the roster operates on number of vacancies arising in the posts and the reservation therefore is to be considered qua the number of vacancies and not posts. However, those observations by the learned single Judge are not preceded by any reasoning in support of those observations. The order expressing need for a reference to a larger Bench also does not refer to any statutory provision or the decision of the Apex Court which could reflect legal position contrary to the law laid down by the Division Bench. Be it as it may, irrespective of absence of reasonings for difference of opinion, we will have to answer the points for consideration.

6. It is the contention on behalf of the petitioners that as per Rule 10(a) of the MEPS Rules, only 24% reservation is prescribed, inclusive of different categories, namely 13% for S.C, 7% for S.T and 4% for D.T/N.T In other words, if there are three posts, each unit will have 33% out of 100 and in case of two posts, each unit will have 50% out of 100. Being so, either singularly of each category or all the categories taken together, in either of the cases it will not complete even one unit. In such circumstances, therefore, it is their contention that there can be no occasion to apply the 50 point roster. Besides, the law laid down by the Apex Court is very clear to the effect that at no point of time the reservation could exceed the percentage prescribed under the law. The total percentage of reservation in favour of the reserved candidates being 24 in the case in hand, at any point of time if one post out of two or three is reserved, it would exceed 24% of the total strength of the cadre. Hence there could be no reservation in cases where the cadre comprises of three or less number of posts and the reservation is to the extent of 24%.

7. On the other hand, it is the contention on behalf of the respondents that even in case of three or less posts in a cadre, the implementation of the roster is the mandate of the Constitution and the statutory requirement. Once the Government while enforcing its obligation under Article 16(4) has statutorily assured reservation to the extent of 24% in favour of the reserved category candidates, merely because there are three or less number of posts, that would not enable the Management to deny the rights assured to the reserved category candidates. It will not empower the Management to take away the constitutional and statutory guarantee to the reserved category candidates. It is their further contention that the roster invariably provides opportunity also for the open category candidates and even though there are two posts, since the roster is to be applied as a running account, there cannot be any occasion for denial of the rights to the reserved category to such post. It is their further contention that if the decision in Somsingh's case is applied to the case where there is reservation to the extent of 24% and the posts in the cadre are only two, it would virtually result in injustice to the reserved category candidates.

8. Attention is also drawn to the G.R dated 17-9-1980 whereunder the guidelines are laid down for the purpose of reservation of vacancies for the post of Head Masters and Assistant Head Masters for the Scheduled Tribes, Scheduled Castes and the Denotified Tribes and the Notified Tribes. It requires the Management of the aided secondary schools to maintain the prescribed percentage for the reserved category in the cadres of Head Masters and Assistant Head Masters by following the 50 point roster system. It provides that a separate 50 point roster, as shown in the Annexure-II to the said G.R, to determine the number of reserved vacancies in an area should be followed. Accordingly, the Management is required to find out on the basis of the model roster and with reference to the total number of vacancies filled in by promotion on or after 3-6-1977 in the cadre of Head Masters/Assistant Head Masters in the schools run by them as also the total number of vacancies in the cadre of Head Masters/Assistant Head Masters occurring/occurred on or after the date of issue of the said G.R falling under the categories reserved or open and should ensure that every appointment on or after the said date has been made according to the reservation in the 50 point roster appended to the said resolution. The Clause XI of the said G.R provides that if employees belonging to any three categories of backward classes i.e the Scheduled Castes, Scheduled Tribes and the Denotified/Nomadic Tribes are not available for reserved vacancies then the employees belonging to the other categories of the backward classes should be considered for promotion but only upto their quota. However, if employees belonging to any of those categories of backward classes are not available, then the vacancies, so far as the posts of Assistant Head Masters are concerned, should be kept vacant for three consecutive years and under no circumstances the vacancies should be filled up promoting the non-backward class persons. However, so far as the posts of Head Masters are concerned, the Management should be allowed to fill the reserved vacancies by promoting the non-backward class persons according to seniority after obtaining approval of the Education Officer/Educational Inspector, after a suitable candidate belonging to any of the three categories of the backward classes is not available.

9. The Clause XIII of the said G.R provides that in the case of small cadres and isolated posts, if only one vacancy occurs, in the initial recruitment year and the corresponding roster point happens to be reserved for any of the backward classes, it should be treated as unreserved and filled in accordingly and the reservation carried forward to the subsequent recruitment year/s; but in the subsequent recruitment year/s even if there is one vacancy; it should be reserved against the carried forward reservation from the initial recruitment year and should be filled in by the candidate belonging to backward class for whom the carried forward vacancy was reserved. Similar procedure should be followed in respect of subsequent vacancy and reservation for various sections of backward classes should be made strictly in accordance with the roster point by rotation. It is only when two or more vacancies occur at a time and if there are any carried forward vacancies the principle of not more than 50% reservation shall apply and the balance of the carried forward and/or current reservation will be further carried forward to subsequent three years.

10. The model 50 point roster prescribed under the said G.R discloses that the same has been prepared on the basis of reservation in favour of the Scheduled Castes to the extent of 7%, Scheduled Tribes 4% and the Denotified and the Nomadic Tribes to the extent of 2%, totalling to 13% reservation. The 50 point model roster discloses the vacancies at serial Nos. 1, 9, 17, 25, 33, 41 and 49 to be filled in by the candidates belonging to the Scheduled Castes; the vacancies at serial Nos. 2, 16, 30 and 44, to be filled in by the candidates belonging to the Scheduled Tribes; the vacancies at serial Nos. 3 and 28 to be filled in by the candidates belonging to the Denotified Tribes and the Nomadic Tribes; the vacancies at other points are to be filled in by the open category candidates. It further provides that the roster should be maintained in the form of a running account, year by year, for example, if the recruitment stops at point 24 at the end of the year, the recruitment in the following year should begin at point 25.

11. The Rule 9(10) of the said Rules reads thus:

“10(a) The Management shall reserve 24 percent of the total number of posts (or vacancies) of Heads and Assistant Heads for the members of Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes and Nomadic Tribes as follows, namely:

(i) Scheduled Castes and Scheduled Castes converts to Buddhism - 13 per cent

(ii) Scheduled Tribes including those living outside the specified areas - 7 per cent

(iii) Denotified Tribes and Nomadic Tribes - 4 per cent

(b) In case it is not possible to fill in the post of a Head or Assistant Head for which a vacancy is reserved for a person belonging to the Castes and Tribes specified in Clause (a), the post may be filled in by promoting a candidate from the other remaining categories in the order specified in clause (a). So however that the percentage of filling up such vacancies does not exceed the limit laid down for each such category. If candidates belonging to any of these categories are not available, then the vacancy or vacancies—

(i) of the Head may be filled in by promoting any other teacher on the basis of seniority-cum-merit after obtaining previous approval of the Education Officer;

(ii) of the Assistant Head shall be kept unfilled for a period of three years unless such vacancy or vacancies could be filled in by promotion of any teachers belonging to such Castes or Tribes becoming available during that period.”

12. Plain reading of the said Rule 9(10) as well as the G.R dated 17-9-1980, it is apparent that in relation to the posts of Head Masters and Assistant Head Masters, the statutory reservation is to the extent of 24% which is divided into 13% in favour of the Scheduled Castes, 7% in favour of the Scheduled Tribes and 4% in favour of the Denotified and Nomadic Tribes.

13. The Division Bench of this Court in Somsingh's case was dealing with a case wherein an educational institution was running two schools, one was a Marathi medium and the other was an English medium. Somsingh had joined the Marathi medium school as an Assistant Teacher on 2-7-1982 and he belonged to Thakur Scheduled Tribe. On 3-12-1984 he was promoted as the Assistant Head Master, initially on probation for two years, duly approved by the Education Officer on 8-4-1985. The Head Mistress of the said school, namely Smt. Karmarkar retired on account of superannuation in September, 1992. One Smt. Sharayu Duraphe, an Assistant Teacher at that time, preferred a writ petition in this Court being Writ Petition No. 3744 of 1992 contending that the post of Head Master was an isolated post and the vacancy could not be filled by promoting a candidate from the reserved category, otherwise Somsingh being the Assistant Head Master was eligible to be considered for the said post. By an order passed in terms of the Minutes of Order dated 9-10-1992, it was agreed that subject to result of the said petition, Somsingh to be appointed as the Head Master and he was accordingly appointed as the Head Master with effect from 21-11-1992, initially on probation with effect from 1-10-1992 with the approval of the Education Officer on 11-2-1993. Meanwhile, Smt. Duraphe retired and the petition came to be disposed of on 10-2-2003. On 1-5-2003 Somsingh was demoted to the post of Assistant Teacher while promoting the respondent No. 4 therein to the post of Head Master, taking shelter of disposal of the Writ Petition No. 374 of 1992 and that he was appointed as an interim arrangement consequent to the order passed on the basis of the Minutes of Order dated 9-10-1992 and on the ground that as there was only one post of Head Master in the school, the rules of reservation were not applicable and the post was required to be filled on the basis of seniority. Somsingh protested against the said decision by his representation dated 3-5-2003. He filed Writ Petition No. 32/4 of 2003 which came to be dismissed while permitting Somsingh to file an appeal to the School Tribunal under the said Act. Immediately after filing of the said writ petition, interim relief was granted in favour of Somsingh and his appointment as the Head Master was protected and it continued till the disposal of the writ petition and for a period of three weeks thereafter. The petition was disposed of on 5-6-2003. Somsingh accordingly filed Appeal No. 24 of 2003 before the School Tribunal which came to be dismissed by its order dated 23-6-2003. Thereupon the Somsingh preferred Writ Petition No. 4499 of 2003. The learned single Judge accepted the contention of the Management that the posts of Head Master and that of the Assistant Head Master were isolated posts and could not be filled as per the reservation policy in view of the law laid down by the Apex Court in Dr. Chakradhar Paswan v. State of Bihar, 1988 Mh. L.J (SC) 655 : AIR 1988 SC 959 as well as of the Division Bench of this Court in Smt. Sulabha Govind Vidwans v. Shravan Shevale, 1995 (1) Mh. L.J 157 : 1995 (2) BCR 561. The matter when it was carried in appeal being Letters Patent Appeal No. 73 of 2004, the Division Bench while dealing with the contention that since the institution runs two schools, one post of the Head Master had to be filled according to the roster governing the reservation, held that the Apex Court in Dr. Chakradhar Paswan's case (supra) has held that a reservation could not be lawfully made to an isolated post and the said decision has been reiterated by the Constitutional Bench in the Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association, reported in 1998 (2) Mh. L.J 353 : 1998 (4) SCC 1 and, therefore, considering the Rule 9(10) of the MEPS Rules under which the permissible reservation is only 24%, only one out of four such posts can be subjected to reservation.

14. The Full Bench of this Court in Asha w/o Chakradhar Raut v. Deputy Director of Education (Secondary), Nagpur, reported in 2003 (3) Mh. L.J 1010 has held that where one Management runs different secondary schools, one of which is exclusively a girls school, the post of Head Mistress in the girls school must be treated as a single isolated post and cannot be subjected to reservation either by applying roster or as per Rule 9(10)(a) of the said Rules. After taking into consideration various decisions of the Apex Court including Dr. Chadradhar Paswan v. State of Bihar, reported in 1988 Mh. L.J (SC) 655 : 1988 (2) SCC 214, Chetana Dilip Motghare v. Bhide Girls' Education Society, reported in 1995 Supp. (1) SCC 157, State of Bihar v. Bageshwari Prasad, reported in 1995 Supp. (1) SCC 432, Sureshchandra v. J.B Agrawal, reported in 1997 (5) SCC 278, Union of India v. Madhava, reported in 1997 (2) SCC 332, Union of India v. Brijlal Thakur, reported in 1997 (4) SCC 278, Post graduate Institute of Medical Education and Research, Chandigarh v. K.L Narasimhan, reported in 1997 (6) SCC 283, Post Graduate Institute of Medical Education and Research, Chandigarh (supra) it was held that:

“It is evident that application of reservation policy in a single post cadre at any point of time on account of rotation of roster or otherwise if brings about a situation where such post remains reserved exclusively for the members of backward classes in complete exclusion of the members of other communities, which results in hundred percent reservation for backward classes, is not permissible within the constitutional framework and, therefore, would violate guarantee under Articles 14 and 16(1) of the Constitution of India.”

15. The Division Bench of this Court in V.S Joshi v. State of Maharashtra, reported in 2002 (3) All MR 882, had held that when an institution runs two schools, the post of Head Master in one school cannot be treated as an isolated post and even in such cases the reservation upto 50% is permissible and, therefore, one post of the Head Master should be treated as a reserved post. However, the Full Bench in Asha Chakradhar Raut's case (supra) had clearly held that

“In Shri S.V Joshi's case, the Division Bench on the basis of wrong criteria of separate seniority lists required to be maintained by the Management of the Girls' School and Boys' School in view of Note 7, treated these two Schools run by the Management as different Schools and, therefore, held that the post of Head Master in one of the Schools cannot be said to be an isolated post and observed that one of such posts shall have to be reserved for the teachers belonging to the reserved category while other post would be for teachers belonging to open category. …… the decision arrived at by the Division Bench treating the Heads of the Boys' School and Girls' School based on separate seniority lists required to be maintained by the Management and holding these to be two different Schools run by the same Management and by observing that since the posts of Heads were more than one, reservation is applicable, does not lay down the good law in this regard. …… Similarly, the aspect of application of reservation to such post would result in hundred percent reservation is also not considered by the Division Bench and, therefore, law laid down by the Division Bench of this Court in Shri S.V Joshi's case is not a good law and same is overruled.”

16. In Ajit Singhs (II) v. State of Punjab, reported in (1999) 7 SCC 209, the Apex Court after taking into consideration its earlier decisions in M.R Balaji v. State of Mysore, reported in AIR 1963 SC 649, C.A Rajendran v. Union Of India & Others, reported in AIR 1968 SC 507, P and T Scheduled Caste/Tribe Employees' Welfare Assn. (Regd.) v. Union of India, reported in (1988) 4 SCC 147, State Bank of India Scheduled Caste/Tribe Employees' Welfare Assn. v. State Bank of India, reported in (1996) 4 SCC 119 and Indra Sawhney v. Union of India, reported in 1992 Supp. (3) SCC 217, held that the provision of Article 16(4) of the Constitution is only an enabling provision and it neither imposes any constitutional duty nor confers any fundamental right for reservation. Further that though the reservation for backward classes was held as a reasonable classification and justified by the Apex Court, however, there is no deviation from the view that Article 16(4) is only an enabling provision.

17. In the matter of Ajit Singh (II) (supra), while reiterating its earlier decision in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India, reported in (1981) 1 SCC 246, it was held that “care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse” and further that “The remedy of reservations to correct inherited imbalances must not be an overkill.” Referring to the decision in State of J and K v. Triloki Nath Khosa, reported in (1974) 1 SCC 19 as well as the State of Kerala v. N.M Thomas, reported in (1976) 2 SCC 310 it was warned that “affirmative action stops where reserve discrimination begins.”. It was also held that it is necessary to see that the rule of adequate representation in Article 16(4) for the backward classes and the rule of adequate representation in promotion for Scheduled Castes and Scheduled Tribes under Article 16(4-A) do not adversely affect the efficiency in administration and in that regard reference was made to Article 335 which specifically provides that the claim of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in making of appointment to services and posts in connection with the offices of Union or of a State. It was also observed that in the matter of due representation in service for the backward classes and Scheduled Castes and Scheduled Tribes, maintenance of efficiency of administration is of paramount importance.

18. In R.K Sabharwal v. State of Punjab, reported in (1995) 2 SCC 745, two points arose for consideration before the Apex Court. Firstly, that the object of reservation being to provide adequate representation to the Scheduled Castes/Tribes and the Backward Classes in services and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved and being so, for working out the percentage of the reservation the promotees/appointees belonging to the Scheduled Castes and the Backward Classes, whether appointed against the general category posts or against the reserved posts are to be counted. In other words, if more than the specified percentage of the Scheduled Castes candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates then the purpose of reservation in the said cadre having been achieved, the Government instructions providing reservation would become inoperative. Secondly, once the post earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled, the reservation is complete and therefore the roster cannot operate any further and it should be stopped and in such circumstances any post falling vacant, in a cadre thereafter, is to be filled from the category-reserve or general - due to retirement etc., of whose member the post fell vacant. It was specifically held therein that the reservation provided under the impugned Government instructions were to be operated in accordance with the roster which was required to be maintained in each department and the roster was to be implemented in the form of a running account from year to year. It was specifically ruled that:

“The purpose of “running account” is to make sure that the Scheduled Castes/Scheduled Tribes and Backward Classes get their percentage of reserved posts. The concept of “running account” in the impugned instructions has to be so interpreted that it does not result in excessive reservation.”

(emphasis supplied)

19. It was further held that

“In a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The “running account” is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive.”

20. It was also held thereafter that

“The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of ‘vacancy’ has no relevance in operating the percentage of reservation.”

(emphasis supplied)

21. The Apex Court in R.S Garg v. State of U.P, reported in (2006) 6 SCC 430, while dealing with a case where there were six posts in a cadre and the reservation was 22%, it was held that “If the roster was to be followed, 2 posts would be reserved for the Scheduled Caste candidates, which is impermissible.”. It was further held by the Apex Court that:

“We are not concerned with the reasonableness or otherwise of the percentage of reservation 21% of the posts have been reserved for the Scheduled Tribe (sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail.”

22. In fact, perusal of the decisions in Dr. Chakradhar Paswan's case, Post Graduate Institute of Medical Education and Research, Chandigarh and R.K Sabharwal's case (supra) would clearly reveal that the applicability of the 50 point roster could arise only in cases where the cadre strength is such that taking into consideration the percentage of reservation, fair and proper justice could be made to all the aspiring candidates, bearing in mind the mandate of Article 16(1) read with Article 14 of the Constitution, without ignoring the obligations of the State under articles 16(4) and (4-a) as well as the statutory provisions prescribing for reservation.

23. Smt. Chetana Dilip Motghare v. Bhide Girls Education Society, Nagpur, reported in AIR 1994 SC 1917, it was held that a single promotional post cannot be reserved. The said principle was upheld by the Constitutional Bench of the Apex Court in Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association (supra) and in clear terms it was held that

“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 members 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 framework. The decisions of this Court to this effect over the decades have been consistent.”

24. It was held therein that

“33. 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 and such reservation is not confined to the initial appointment in a cadre but also to the appointment in promotional post.”

25. Further, while emphasizing the need for applying Articles 14, 15 and 16, including 16(4) and 16(4-A) in such a manner that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for other members of the community who do not belong to reserved classes, it was observed that

“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.”

26. This view was reiterated in S.R Murthy v. State of Karnataka, reported in AIR 2000 SC 450.

27. The Apex Court therein has further held that the view taken in its earlier decision in Chakradhar's case that there could not be any reservation in a single post cadre was the correct view and the Apex Court disapproved the decisions in Madhav's case, Brij Lal Thakur's case and Bageshwari Prasad's case wherein the reservation in a single post cadre either directly or by device of rotation of roster point was upheld, and consequently the law laid down in Madhav's case, Brij Lal Thakur's case and Bageshwari Prasad's case in favour of reservation even in the single post cadre is no more a good law.

28. In Dr. Chakradhar Paswan's case the Apex Court had ruled that

“If there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Article 16(4), pre-supposses the availability of at least more than one post in the cadre.”

29. It is to be noted that the Apex Court in Dr. Chakradhar Paswan's case was dealing with the issue as to whether the post of Deputy Director (Homeopathy) is an isolated post and therefore reservation of the post for Scheduled Caste candidate amounts to 100% reservation and must therefore be declared to be impermissible under Article 16(4) of the Constitution.

30. The learned single Judge of this Court in Vinayak Krishnaji Joshi dead by LRs. Nalini wd/o Vinayak Joshi v. Akola Education Society, reported in 2006 (2) Mh. L.J 68, while considering the provisions of the said Act and the Government Resolution dated 17-9-1980, had held that where the education-society is running two schools, one at Akola and the other at Murtizapur, having two posts of Head Masters, the vacancies occurring in these two posts will be required to be filled in as per roster point in use at the time of occurrence of such vacancy and by rotation. Thus, the post of Head Master in either school may be reserved as per the roster point when vacancy arises, the cut-off date being 3-6-1977. It was further held that the Apex Court in Prabhash Chand Jain v. State of Haryana, reported in 1996 (8) SCC 105, had rejected the contention that whenever there are two posts, same cannot be filled by applying the reservation policy and had held that it is possible to implement the roster even in such circumstances. Reliance was placed on para 8 of the said decision. While arriving at the said finding, and more particularly to the observation by the Apex Court in the said para to the effect that “However, while filling the posts, it is the vacancies which are to be taken into consideration and these vacancies have to be filled in, according to roster points.”. With utmost respect to the learned single Judge, this sentence appears to have been emphasised totally out of context. In fact, the decision is contrary to the one delivered by the Full Bench in Asha Chakradhar Raut's case (supra) as well as of the Apex Court in Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association (supra).

31. In Prabhash Chand Jain's case (supra) the Apex Court had not dealt with the issue about the applicability of roster on consideration of the percentage of reservation. In the said case, Prabash Chand was relying upon letters dated 27-5-1988 by the Chief Secretary and 8-3-1989 by the Finance Commissioner while contending that those letters amount to amendment to the circular dated 9-2-1979. While rejecting the said contention, the Apex Court had held that

“unless the State Government completely gives up the policy of reservations, as enunciated in the earlier circular of 9-2-1979, it will not be possible to implement the latter decision. Mr. Rohtagi, learned counsel appearing for the State Government was pointed asked by us a question as to whether the Government had given up the policy of reservation enunciated in the circular of 9-2-1979. He fairly conceded that was not the case. However, he contended that when there are two posts, reservation policy enunciated earlier, cannot be implemented. When we pointed out to him that it is possible to implement it, and in fact it is to implement the policy that the roster was introduced, he had no answer. We are a little puzzled as to why the Chief Secretary and the Finance Commissioner should have in their letters in question stated that the reservation policy will not apply when there are only two posts available. It is obvious that none of them has applied his mind either to the roster and the roster points or to the law on the subject.”

32. Evidently, the decision is not on the point under consideration. The decision is on the point that the letters issued by the officers of the Government contrary to the circular disclosing the Government policy on reservation, cannot ipso facto amount to amendment to the Government policy nor on the strength of the said letters, the authorities can ignore to apply the rosters merely because there are two posts. It is pertinent to note that the Apex Court was not dealing with a case where the cadre consisted of two posts. The subject-matter related to two vacancies which had arisen then. In that case, the facts recorded by the Apex Court in the judgment reveal that

“The reservations in favour of Scheduled Castes was 20 per cent and that in favour of Backward Classes was 5 per cent. The roster indicated points at which the Scheduled Caste and Backward Class candidates would be given appointment both in direct recruitment and in promotion. We are concerned in the present case with appointments of the Scheduled Caste and Backward Class candidates by promotion to the said post of Deputy Superintendent, which is a Class III post. According to the roster points introduced, the Scheduled Caste candidates should be appointed at points 4, 8, 14, 18 and so on up to 100 and the Backward Class candidates at points 10, 16, 32 and so on. Between 9-2-1979 and 15-7-1987, candidates all belonging to the General category were appointed by promotion to the said post in some of the departments ignoring the claims of the Scheduled Caste candidates who ought to have been appointed, as stated above at the relevant roster points. On the other hand, the candidates appointed earlier according to the roster points in some other departments were reverted.”

33. It was in the background of those facts, the Apex Court while explaining the decision in R.K Sabharwal's case, held that

“The Court has then gone on to explain that the word ‘post’ means the position to which the person is to be appointed. The vacancy means a non-occupied post or office. The plain meaning of the two expressions makes it clear that there must be posts to enable the vacancies to occur. The cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in post is achieved. The roster point in a cadre can be filled in only when the vacancies occur and not otherwise.”

(emphasis supplied)

34. If out of two posts, one post is reserved by applying the roster, it would obviously exceed 24%. Besides, the reservation is not 24% in favour of any one particular category. The maximum reservation is in favour of the Scheduled Castes which is to the extent of 13%, whereas the minimum is 4% in case of the Denotified and the Nomadic Tribes. As rightly submitted by the learned Advocate Shri A.D Mohgaonkar, if the reservation in the categories of Denotified and Nomadic Tribes is considered as one unit, it would consist of 4% i.e 8 out of 100. If there are only two posts, and one of them is specified for reservation in favour of the Denotified Tribes or the Nomadic Tribes, who are entitled for reservation to the extent of only 8 out of 100, it would virtually amount to granting reservation by 42% in excess of the statutory entitlement in favour of the said category, which is not permissible and it would be in excess of the reservation under the statutory provision. Similar is the case in relation to the Scheduled Castes which is entitled for 13% reservation. In other words, 26 out of 100 and even reservation of one post would be in excess of total reservation of 24%.

35. Undoubtedly, the Constitution mandates implementation of reservation policy. However, at the same time, it assures opportunities to all the open class category candidates. The implementation of the reservation policy should not lead to absurd result. The application of reservation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutorily recognised reservation percentage does not exceed while implementing the reservation policy. Undisputedly, the relevant rule requires 24% of reservation out of which 13% for the S.C, 7% for the S.T and 4% for the D.T/N.T Considering the 24% reservation, if one applies the 50 point roster, it would result in reservation in excess of the statutorily specified percentage. In a cadre comprising of three posts with 24% reservation rule, if one applies the 50 point roster, then the reservation even in respect of one post would exceed 24% reservation. One-third cannot be equated to 24%. It is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category. Considering the same, we are in respectful agreement with the view expressed by the Division Bench in Somsingh's case that 24% reservation can be applicable only in cases where there are minimum of four posts in a cadre and not otherwise.

36. The fall out of the above discussion is that in case the cadre consists of three or less number of posts and the total percentage of reservation is 24%, there cannot be any reservation in such a case and it would be only in case of four posts that one of those will have to be filled in by the reserved category candidate. The applicability of the reservation policy would depend upon the number of posts in a cadre and the percentage of reservation. The 50 point roster can be made applicable only when the applicability thereof would not result in implementation of reservation policy in excess of the percentage statutorily prescribed for the reserved category candidates. The reference and the points formulated above are answered accordingly. The matters now are required to be placed before the regular Bench dealing with the similar matters.

Order accordingly.