Raj Kumar Verma Petitioner v. State Of U.P And Another S

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice

Hon'ble Dilip Gupta, J.

The Uttar Pradesh Secondary Education Services Selection Board (‘Board’) issued an advertisement for direct recruitment to the post of Head of Government aided private Inter Colleges and High Schools. The petitioner applied for the post of Principal for Gorakhpur Region. It has been averred that no date for interview has been fixed thus far.

The grievance of the petitioner is that in consequence of the provisions of Section 10(1) of the U.P Secondary Education Services Selection Board Act, 1982, no reservation has been provided in respect of the post of the Head of the Institution to candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes in accordance with the provisions of the U.P Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. The petitioner challenges the provisions of Section 10(1) of the Act of 1982 as unconstitutional. In consequence, the petitioner seeks to challenge the advertisement of 2013 as well as an earlier advertisement of 2011 issued by the Board and seeks a mandamus for issuance of a fresh advertisement after providing for reservation. Section 10 of the Act of 1982 reads as follows:

“10. Procedure of selection by direct recruitment. - (1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed:

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1).”

Section 10 of the Act of 1982 specifically excludes the post of Head of the Institution from the purview of reservation. The issue, which is sought to be raised before the Court, is not res integra.

In Balbir Kaur v. U.P Secondary Education Services Selection Board 2008 12 SCC 1, the Supreme Court specifically dealt with the issue as to whether the post of the Head of the Institution was liable to be reserved when direct recruitment is carried out in pursuance of an advertisement issued under the Act of 1982. The issue was considered in the judgment of the Supreme Court from two perspectives. Firstly, the matter was considered having due regard to the provisions of Section 10 noted above, which specifically and expressly excludes the post of Principal from the purview of the Act of 1994. But this decision is sought to be distinguished by the learned counsel appearing on behalf of the petitioner by submitting that in that case there was no challenge to the constitutional validity of Section 10 of the Act of 1982. Now it is true that in Balbir Kaur (supra) there was no challenge to the constitutional validity of Section 10 of the Act of 1982. This aspect had been specifically noted in the judgment of the Supreme Court. However, the point, which we note, is that the decision in Balbir Kaur (supra) did not only rest on the provisions of Section 10 of the Act of 1982, which excludes the post of the Head of the Institution from the purview of reservation. Apart from this rationale, the Supreme Court also held, following the decision of the Constitution Bench in Chakradhar Paswan (Dr.) v. State of Bihar 1988 2 SCC 214, that the existence of a plurality of posts is a sine qua non for a valid reservation in a single post cadre. Moreover, it was also held that neither in the Act of 1982 nor in the Rules made thereunder or in the Act of 1994 is there any provision for clubbing of all educational institutions in the State for the purpose of reservation. The observations of the Supreme Court in that regard read as follows:-

“Moreover, the post of the Principal in an educational institution being in a single post cadre, in the light of the clear dictum laid down by this Court, such a post cannot be subjected to reservation. It will result in 100 per cent reservation, which is not permissible in terms of Articles 15 and 16 of the Constitution of India. In PGI Chandigarh's case (supra) a Constitution Bench of this Court, while holding that plurality of posts in a cadre is a sine qua non for a valid reservation, affirmed the view taken in Chakradhar Paswan v. State of Bihar. In that case, it was held that there cannot be any reservation in a single post cadre and the decisions to the contrary, upholding reservation in single post cadre either directly or by device of rotation of roster were not approved. Besides, as noted above, neither the Principal Act, nor the rules made thereunder or the 1994 Act provide for clubbing of all educational institutions in the State of U.P for the purpose of reservation and, therefore, there is no question of clubbing the post of the Principles in all the educational institutions for the purpose of applying the principle of reservation under the 1994 Act. We are, therefore, in agreement with the High Court that the advertisements impugned in the writ petition were not vitiated for want of provision for reservation. It is also pertinent to note that none of the respondents belong to the reserved category of Scheduled Castes or Scheduled Tribes or other Backward Classes.”

The judgement of Balbir Kaur (supra) was subsequently followed by the Supreme Court in State of Uttar Pradesh v. Bharat Singh.3. In Bharat Singh (supra), the Supreme Court referred to the decision of the Constitution Bench in Chakradhar Paswan (supra) and the subsequent decisions and held that separate posts in different institutions cannot be clubbed together for the purpose of reservation. Any reservation where there is only a single post in the cadre would amount to 100% reservation, which would violate Articles 14(1) and 16(4) of the Constitution. In that context, the Supreme Court held as follows:-

“71. In Chakradhar Paswan (Dr.) case this Court relying upon the decision in Arati Ray Choudhury v. Union of India, M.R Balaji v. State of Mysore and T. Devadasan v. Union of India held that separate posts in different institutions cannot be clubbed together for the purpose of reservation and that reservation may be made only where there are more than one posts. Reservation of only a single post in the cadre would amount to 100% reservation and thereby violate Articles 14(1) and 16(4) of the Constitution. In Bhide Girls Education Society v. Education Officer this Court held that a single post of Headmistress of an institution could not be reserved as the same would amount to making a 100% reservation.

72. The controversy was authoritatively set at rest by the Constitution Bench decision of this Court in Postgraduate Institute of Medical Education & Research v. Faculty Assn. case where this Court overruled the decisions of this Court in Union of India v. Madhav, Union of India v. Brij Lal Thakur and State of Bihar v. Bageshwari Prasad and observed: (Faculty Assn. case, SCC p. 23, paras 34-35).

“34. 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 a 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 per cent 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.

35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the 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 bounds 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.”

73. In the light of the above decision, we have no hesitation in holding that the post of Principals in each one of the aided/affiliated institution being a single post in the cadre is not amenable to any reservation. Question (ii) is accordingly answered in the affirmative.”

In our view, the submission that there was no challenge to the constitutional validity of Section 10 of the Act of 1982 in Balbir Kaur (supra) and that the subsequent decisions would not be precedents must fail. The foundation of the decision in Balbir Kaur (supra) is two fold. Firstly, the decision rests on the express provisions of Section 10 of the Act of 1982, which excludes reservation on a single post cadre. But the second and more fundamental point is that the decision follows the long line of precedent of the Supreme Court in which the consistent view is that where there is a single post cadre, any reservation would amount to cent per cent reservation and would hence offend Articles 14 and 16 of the Constitution. Hence, the exclusion of reservation from the post of the Head of the Institution in Section 10 of the Act of 1982 is in conformity with the provisions of the Constitution and is, in fact, intended to ensure that there is no violation of Articles 14 and 16 of the Constitution. As a matter of fact, Rule 12(6) of the U.P Secondary Education Services Selection Board Rules, 1998 makes a clear distinction between recruitment of teachers in the lecturer and trained graduate scale on the one hand and the recruitment of the Principals/Headmasters on the other hand. In the case of the latter, there is no provision for reservation consistent with the provisions of Section 10 of the Act of 1982.

In this view of the matter, we are unable to accept the challenge to the constitutional validity of the provisions of Section 10 of the Act of 1982 insofar as it excludes the post of Head of the Institution from the ambit of reservation. As a matter of fact, the constitutional validity of Section 10 of the Act of 1982 is squarely covered by the decision of the Supreme Court in Chakradhar Paswan (supra) and the subsequent line of judgments, which have been noted in the judgments of Balbir Kaur (supra) and Bharat Singh (supra). The decisions in Balbir Kaur (supra) and Bharat Singh (supra) emanated from the State of Uttar Pradesh. As a matter of fact, Balbir Kaur (supra) considered both the Act of 1994 and the Act of 1982. Since we are governed by binding precedent and the law laid down by the Supreme Court, there would be no occasion for this Court to exercise its jurisdiction under Article 226 of the Constitution in view of the clear proposition of law as interpreted in successive decisions of the Supreme Court. The Government Order dated 12 January 2011 (Anneuxre No. 7), on which reliance has been placed by the petitioner, is similarly of no avail since the administrative decision must necessarily be read in the context of the provisions of the relevant Act and the law laid down by the Supreme Court.

For these reasons, we see no ground to entertain the petition. The petition is, accordingly, dismissed. There shall be no order as to costs.