S.R. Singh, J.-

Advertisement No. 29 of 2000 issued by the U.P. Higher Secondary Education Service Commis­sion, Allahabad in so far as it pertains to the post of Lecturer in Geology in P.P.N. College, Kanpur is sought to be quashed by means of this petition under Article 226 of the Constitution of India. The petitioner who is working in the college as an Anshkalik teacher appointed as such by the management with the approval of the Director, Higher Education Service Com­mission in view of the provisions con­tained in Government Order No. 476 (1) Sattar-2-98- 3(9)/93 TC dated 7-4-1998, claims that she is eligible and fully qualified for being appointed as Lecturer Geology but stands precluded from apply­ing to the post in question because of the reason that it has been illegally reserved for scheduled caste candidate.

2. It has been submitted by Sri Ashok Khare, Senior Advocate appearing for the petitioner that the sole vacancy in the post of Lecturer in Geology mentioned in the impugned advertisement partisan to the P.P.N. College, Kanpur wherein there are only two sanctioned posts of Lecturer in the concerned discipline which cannot be sub­jected to reservation and roster provided in the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribe and other Backward Classes) Act, 1994 (hereinafter referred to as the U.P. Act No. 4 of 1994) for in order to apply the reservation and roster provided under the Act, there must exist at least five vacancies in the particular dis­cipline/subject. Reliance has been placed on Government Order No. 780/15-10-95(18)/94 Shiksha Anubhag-10, Lucknow dated 6th March, 1995 (Annexure No. 14 to the writ petition).

3. The submission, in our opinion, is based on misconstruction of the Govern­ment order aforestated which was issued in answer to queries made by certain Universities as to whether reservation as provided in U.P. Act No. 4 of 1994 would apply to a single post and if not what should be the minimum number of posts in a given service in order to attract reser­vation as provided under the U.P. Act No. 4 of 1994. The Government order afores­tated reads thus :

Hindi

4. It is evident from the Government Order aforestated that reservation is not applicable to a single post cadre. In other words where there is a single post created as sanctioned in a cadre reservation will not apply to such post. In service jurisprudence, the term 'cadre' has a definite legal connotation. fundamental rule 9(4) defines the word 'cadre' to mean the strength of a service or part of n service sanctioned as a separate unit. In the legal sense, the word 'cadre' is not synonymous with 'service'. The legal position stated in the Government order that reservation would not apply to a single post cadre is quite in conformity with the law declared by the Supreme Court in Dr. Chakradhar Paswan v. State of Bihar, AIR 1988 SC 959. In that case Bihar Public Service Commis­sion had invited applications for the posts of Deputy Director (Homeopathic) in the Directorate of Indigenous Medicines, Health Department, State of Bihar from scheduled caste candidates. Dr. Chakrad­har Paswan, a scheduled caste candidate was selected by the Commission and con­sequently appointed by the State Govern­ment vide order dated 30-5-1979. Validity of the advertisement issued by the Bihar Public Service Commission as also ap­pointment of Dr. Chakradhar Paswan was questioned in the High Court by Dr. Kameshwar Prasad, a candidate belonging to general class, on the ground that a single post was not liable to be reserved. Admit­tedly, in the Directorate of Indigenous Medicines, Health Department of State of Bihar, there was one sanctioned post of Director on which one Dr. Nagesh Dwivedi had already been appointed on ad hoc. In addition to the post of Director there were two posts initially in the Direc­torate of Indigenous Medicines. The sys­tem was initially a part of the Health Department of Government of Bihar. Subsequently, the State Government en 6-5-1978 directed creation of a separate Directorate of Indigenous Medicines, the Director being from one of the systems of medicines consisting of Ayurvedic, Unani and Homeopathic. At the time of creation of the separate Directorate, the Govern­ment sanctioned two posts of Deputy Directors one for each of the two remain­ing systems. The State Government by its circular dated 8-9-1975 had prescribed the 50 point roster to implement the policy of reservation to posts and appointments for members of the backward classes under Article 16 (4) of the Constitution. It was laid down therein, having regard to the language used in the Government order, 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."

It would appear from the facts of that case that a proposal was made by the Joint Secretary to the Government, General Administration Department (Personnel) for reservation of the post of Deputy Director (Homeopathic) for members of the scheduled castes. In making this proposal the post of Director of Indigenous Medicines was taken into reckoning for applying the 50 point roster. Since the post of Director which had been filled by Dr. Nagesh Dwivedi was treated as un­reserved, the vacancy in the post of Deputy Director (Homeopathic) was treated by the Government as reserved for scheduled caste according to 50 point roster treating it to be the second vacancy and the Bihar Public Service Commissioner, according­ly, had advertised the post of Deputy Director (Homeopathic) as reserved for scheduled caste. Dr. Chakradhar Paswan a scheduled caste candidate was selected for, and appointed on the post. But on a writ petition filed by Dr. Kameshwar Prasad, the Patna High Court quashed the impugned advertisement as also the ap­pointment of Dr. Chakradhar Paswan to the post of Deputy Director (Homeopathic) on the ground that the post was illegally reserved for scheduled caste. The High Court took the view that (i) reservation to the only post of Deputy Director (Homeopathic) for members belonging to he scheduled caste amounted to 100% reservation ; (ii) the two posts of Deputy Director (Homeopathic) and Deputy Director (Ayurvedic) could not be clubbed together for purposes of reservation of posts and ; (iii) the order reserving the post of Deputy Director (Homeopathic) infringed the principles embodied in the Government circular introducing 50 point roster according to which the first vacancy should have been filled from amongst general candidates i.e. to say it should have been treated as unreserved. The Supreme Court held that the post of Director and the post of Deputy Director do not con­stitute one cadre and therefore, the vacan­cy in the post of Deputy Director (Homeopathic) being the first one in the cadre of Deputy Directors, ought to have gone to the general class. The relevant observations as under:

"According to the 50 point roster, if in a particular grade a single post falls vacant, it should, in the case of first vacancy be considered as unreserved i.e. general and on the second occasion when a single post again falls vacant the same must be treated as reserved. Admittedly, the post of the Director is the highest post in the Directorate of Indigenous Medicines and is car­ried in the higher pay sale or grade of Rs. 2225-75-2675 while the posts of the grade of Rs. 1900-75-2500. In service jurisprudence, the term 'cadre' has a definite legal connotation. In the legal sense the word 'cadre' is not synonymous with 'service'. fundamental rule 9(4) defines the word 'cadre' to mean the strength of a service or part of a service sanc­tioned as a separate unit. The post of the Direc­tor which is the highest post in the Directorate, is carried on a higher grade or scale while the posts of Deputy Directors are borne in a lower grade of scale and therefore, constitute two distinct cadres or grades............The conclusion is irresis­tible that the posts of the Director and those of the Deputy Directors constitute different cadres of the Service. It is manifest that the post of the Director of Indigenous Medicines which is the highest post in the Directorate carried on a higher grade or scale, could not possible be equated with those of the Deputy Directors on a lower grade or scale. In view of this according to the 50 point roster, if in a particular cadre a single post falls vacant it should in the case of first vacancy be considered as general. That being so the State Government could not have directed reservation of the post of Deputy Director (Homeopathic) which was the first vacancy in a particular cadre i.e. that of the Deputy Directors for candidates belonging to the Scheduled castes. Such reservation was not in conformity with the principles laid down in the 50 point roster and was impermissible under Article 16 (4) of the Constitution and clearly violative of the guarantee enshrined in Article 16(1) of equal opportunity to all citizens relating to public employment."

5. The question as to whether iso­lated posts could be subjected to the 50 point roster, albeit mooted was left un­decided. It was held as under:

"It is a moot point whether the isolated posts like those of the Deputy Directors can be subjected to the 50 point roster by the rotational system. We refrain from expressing any opinion on this aspect as it does not arise in the present case. Assuming that the 50 point roster applies admit­tedly the first vacancy in the cadre of Deputy Direc­tors was that of Deputy Director (Homeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved. The first vacancy of the Deputy Director (Homeopathic) in the cadre being treated as unreserved according to the roster had to be thrown open to all. A candidate belonging to the scheduled caste had therefore, to compete with others."

6. As regards the minimum number of posts required for invoking the law of reservation it is provided in the Govern­ment order aforestated that reservation would apply in recruitments in respect of five or more posts in a cadre. In the present case admittedly there are two sanctioned posts of Lecturer in the Department of Geology in P.P.N. College, Kanpur out of which only one post which is the subject-matter of impugned advertisement is reserved. There must be other posts in the college in the cadre of Lecturers. The present is therefore, not a case of single post cadre. Reservation of one of the two posts in the Geology Department does not create a monopoly nor does it violate the guarantee of equality of opportunity con­tained in Clauses 1 and 2 of Article 16 of the Constitution of India. Dr. Chakradhar is in our opinion an authority on the prin­ciples that, "if there is only one post in the cadre there can be no reseivation with refer­ence to that post either for recruitment at the initial stage or for filling up future vacancy in respect of that post." Section 3 of U.R Act No. 4 of 1994 provides 21% reservation in favour of the scheduled caste candidates in 'public service and posts', recruitment to which must be made in accordance with the roster prescribed by the State Govern­ment by a notified order i.e. notification No. 481/Ka-l-94-l-l-94 dated March 29, 1994 published in the U.P. Gazette, Extra, Part I (Ka) dated 29th March, 1994 being Annexure No. 10 to the writ petition. The term "public services and posts" as defined in Section 2(c) of U.P. Act No. 4 of 1994 means the services and posts in connection with the affairs of the State and includes, among others, "services and posts in an educational institution owned and con­trolled by the State Government or which receives grant in aid from the State Government including a University estab­lished by or under a Uttar Pradesh Act, except an institution established and ad­ministered by minorities referred to in clause (1) of Article 30 of the Constitu­tion." The word 'services' in the context would mean 'services of teachers' in P.P.N. College, Kanpur which is affiliated to a University established under the U.P. State Universities Act, 1973. "Teachers" in the State Universities are classified as Lec­turers. Readers and Professors. In af­filiated colleges there are only two categories: Lecturers and Principals. True under personal promotion scheme visual­ized in Section 31-A of the U.P. State Universities Act, 1973 status of Reader is perhaps admissible to Lecturers of the af­filiated colleges as well but this will not make any difference. The word 'posts' in Section 3 of the U.P. Act No. 4 of 1994 in relation to affiliated colleges would mean teaching and non- teaching posts in different cadres/grades. The posts of Lecturers, in a College affiliated to a University would be subject to reservation on a roster point prescribed under the Act. The Act will, in our opinion, apply whenever there is plurality of posts. The Government order cannot override the Act. Admittedly there are two sanctioned posts of Lecturer in the Department of Geology, P.P.N. College, Kanpur. The vacancy in question being the first vacancy in the Department of Geol­ogy must go to reserved category as per roster prescribed under Section 3 (5) of the U.P. Act 4 of 1994.

7. Sri Ashok Khare submits that each subject or discipline of study in a college should be treated as a separate 'cadre' for applying reservation and roster prescribed under the U.P. Act 4 of 1994. Reliance was placed by Sri Khare on Dr. Suresh Chandra Verma and others v. The Chancellor, Nagpur University and others, (1990) 4 SCC 55, in support of his contention that reserva­tion should be made 'subject wise'. In order to appreciate the law laid down by the apex Court in Suresh Chandra Verma (supra), it would be necessary to set out the facts of that case. The University of Nagpur had in that cases invited applica­tions for the total number of 77 posts of teachers which included posts of Profes­sors, Readers and Lecturers in different subjects. The notice mentioned the total number of reservations categorywise but not subject wise. A question arose as to whether general reservation categorywise instead of subjectwise was legal. In the High Court there was a difference of opinion between two Division Benches one taking the view that the postwise reservation was not necessary whereas another Division Bench differed with the said view and sent the papers to the Chief

Justice for referring the matter to a larger Bench. The issue referred to the larger Bench was:

"Is non- reserving the posts of University teachers subject-wise in the employment notice a breach of letter and spirit of reservation policy contained in Section 77-C read with Section 57 of the Act?"

The Full Bench held that general reservations were in breach of the provisions of the Act and against the reser­vation policy and therefore, illegal. The view taken by the Full Bench of the High Court was approved by the Supreme Court in the following words:

"According to us, the word "post" used in the context has a relation to the faculty, dis­cipline or the subject for which it is created. When therefore, reservations are required to be made "in posts", the reservations have to be postwise, i.e. subjectwise. The mere an­nouncement of the number of reserved posts is no better than inviting applications for posts without mentioning -the subject for which the posts are advertised. When therefore, section 57 (4)(a) requires that the advertisement or the employ­ment notice would indicate the number of reserved posts, if any, it implies that the employ­ment notice cannot be vague and has to indicate the specific post i.e. the subject in which the post is vacant and for which the applications are in­vited from the candidates belonging to the reserved classes. A non-indication of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates" the object of the reservation policy."

(Emphasis is ours)

And further:

"It is common knowledge that the vacan­cies in posts in different subjects occur from time to time according to the exigencies of the circumstances and they arise unequally in dif­ferent posts. There may not be vacancies in one or some posts whereas there may be a large number of vacancies in other posts. In such circumstances it is not possible to comply with the minimum reservation percentage of 34 vis­a-vis each post. It so for this reason that the resolution states that although minimum per­centage of reserved posts may not be filled in one or some posts, it will be enough if in that year it is filled in taking into consideration the total number of appointments in all the posts. This however does not absolve the appointing authority from advertising in advance the vacancies in each post and the number of posts in such vacancies meant for the reserved category and inviting applications from the candidates belong­ing to the reserved and unreserved categories with a clear statement in that behalf. In fact, the overall minimum percentage has to be kept in mind as stated in the resolution at the time of issuing the employment notice of the advertisement as the case may be"

. (Emphasis is ours).

8. The core and essence of the ratio deciendi of the above case is that notice for recruitment should not be vague and rather it must specifically state the post actually meant for reserve category. It does not rule against clubbing of posts belong­ing to a given cadre/grade so as to workout the total umber of reserved posts. In the instant case advertisement very clearly states the number of posts reserved for scheduled caste 'subject-wise'. The adver­tisement, in our opinion is well in accord­ance with law laid down by the Supreme Court in Dr. Suresh Chandra Verma's case. The .argument advanced by Sri Ashok Khare, Senior Advocate that computation of the number of reserved posts should be subject-wise does not appeal to us. In fact the total number of reserved posts under Section 3 of U.P. Act No. 4 of 1994 is to be worked out on the basis of the total vacan­cies in a given cadre and recruitment to such number of reserved posts should be made in accordance with roster prescribed under sub-section (5) of Section 3 of the U.P. Act No. 4 of 1994. 'Cadre' in relation to teaching staff of affiliated colleges means the cadre of' Lecturer'. In our opinion, posts of Lecturers in various subjects should be clubbed in order to work out the exact num­ber of posts to be reserved under the act 4 of 1994 and then it should be determined as to which post is to be reserved and for whom. That, in our opinion, appears to be the thrust of the exposition laid down in Dr. Suresh Chandra.

9. The other decision on which reliance was placed during the course of argument is the case of P.G. Institute of Medical Education and Research v. Faculty of Associations and others, JT 1998 (3) SC 223. The question that arose in the said case was as to 'whether in a single cadre post reservation for the backward class....can be made directly "or by applying rotation of roster point.' The said decision reiterates the law laid down in Dr. Chandradhar Paswan's case and is an authority on the principle that reservation will not apply in respect of a single post cadre for, if applied, it would result in exclusion of general candidates and there would be cent percent reservation for backward classes which is not permissible within the constitutional framework. The observation made therein that "until there is plurality of posts in a cadre the question of reservation will not arise" necessarily im­plies that if there is a plurality of posts in cadre or grade reservation will apply. In Indira Sawhney's case, AIR 1993 SC477 it has been propounded by a nine Judge Bench of Supreme Court that there should be adequate representation in each cadre and each grade. In our opinion, therefore, the number of reserved posts is to be worked out on the basis of posts/vacancies in each cadre and if there exists a plurality of posts in a cadre/grade the advertisement must specifically state as to which post in the cadre/grade is reserved. In other words the advertisement must state the reserved post with reference to the subject of study in a cadre. Admittedly, there exists a plurality of posts both in the concerned discipline as also in the cadre/grade of Lec­turers. It being not a case of single post cadre the law of reservation and roster has rightly been applied by the respondents. Advertise­ment in question does not suffer from any infirmity and warrants no interference by the Court. The following observations made by the apex Court in State of U.P v. Dr. Dina Nath Shukla, on which reliance was placed by the learned Counsel too should be construed in the like manner:

"Thus, it could be seen that if the subject-wise recruitment is adopted in each service or post in each cadre in each faculty, discipline, speciality or super-speciality it would not only be clear to the candidates who seek recruitment but also there would not be an over-lapping in application of the rule of reservation to the ser­vice or posts as specified and made applicable by Section 3 of the Act. On the other hand if the total posts are advertised without subjectwise specifications in every faculty discipline speciality or super-speciality, it would be difficult for the candidates to know as to which of the posts be available either to the general or reserved candidates or whether or not they fulfil or qualify the requirements so as to apply for a particular post and seek selection."

10. The word 'subject-wise recruitment' in Dina Nath Shukla's case and the words 'the reservations have to be post wise i.e. subject -wise' used in the case of Dr. Suresh Chandra Verma means only this that the recruitment notice/advertise­ment must clearly state the posts Le. the subject/discipline reserved under the U.P. Act 4 of 1994. These expressions, in our opinion, do not support the contention that total number of reserved posts should be worked out subject-wise and not cadre/grade-wise. While appreciating the ratio laid down in the above cases the question raised of consideration before the apex Court must be borne in mind. Nothing in these decisions precludes link­ing of posts in the same grade/cadre, though in different subjects for the pur­pose of working out the quota for reserved category candidates. It must also be borne in mind that selection is made in respect of vacancies at the State level. Sub-section (3) of Section 12 of U.P. Higher Education Services Commission Act, 1980 provides for notification to the Commission "a sub­ject-wise consolidated list of vacan­cies.......from all colleges." This also sug­gests integration of vacancies in a grade/cadre for the purpose of working out the number of reserved post.

11. In the result the petition being devoid of merits, fails and is dismissed in limine.

Petition dismissed.