Sathi v. Cochin University Of Science & Technology

The Judgment of the Court was delivered by

K. Narayana Kurup, J.:— The petitioner is an Assistant Executive Engineer working in the Engineering Department of the 1st respondent University, viz., the Cochin University Science & Technology, Kochi. The post of Assistant Executive Engineer is an isolated post having no promotional avenue. The 1st respondent as per Ext. PI notification dated 27.8.1998 invited applications for appointment to the post of University Engineer and Technical Officer (Executive Engineer). Pursuant to Ext. PI application, the petitioner applied for appointment to the post of Technical Officer for which an interview was conducted on 27.11.1998 on which date the petitioner came to know that the post of Technical Officer is a reserved one. Accordingly, me very next day she submitted Ext. P.2 representation to the 1st respondent University pointing out the illegality of making any reservation to the post of Technical Officer and requesting them to make appointment to the cadre of Technical Officer on the basis of merit. It was also submitted by her that there is no avenue of promotion from the post of Assistant Executive Engineer which she presently holds and therefore the appointment to the post of Technical Officer should have been made by promotion from among the qualified Assistant Executive Engineers. Since Ext. P.2 did not elicit any response and apprehending that her request will not be acceded to she moved this Court with the” present Writ Petition seeking to declare that Ext. PI notification to the extent it provides that the appointments will be subject to the rules of communal reservation and rotation as provided for in S. 7(2) of the Cochin University of Science & Technology Act, 1986, for short ‘the Act’, collectively comprising each category illegal and for the issuance of a writ of mandamus commanding the 1st respondent University to make appointments to the category of the Technical Officer (Executive Engineer) on the basis of merit without applying any rules of reservation and for other incidental reliefs.

2. The 1st respondent University filed a statement contending, inter-alia: that the post of Technical Officer is not a single cadre post, whereas it is a post classified in the category of Class I Officers, if the post of Technical Officer is considered as a single cadre post, that will deprive the benefit of reservation contemplated by the Act and its First Statute, the petitioner having participated in the selection process is estopped from challenging the mode of recruitment contemplated by Ext. PI pursuant to which the selection was made, that there is express waiver of the petitioner's right to challenge the validity of Ext. PI notification and since the petitioner has failed to challenge the constitutional validity of S. 7(2) of the Act has forfeited her right to get any relief in the Original Petition. Later, the University has filed a counter affidavit reiterating its contention in the earlier statement and adding further in paragraph 8 that “one P. Ajithkumar was ranked below the petitioner has joined duty on the forenoon of 2.1.1999 since the Rule of Reservation was applied and his appointment is made subject to the result of this Writ Petition”. The petitioner has filed a reply affidavit stating that by reserving the post of Technical Officer, 100% reservation in respect of that post was made, that in Ext. PI notification the post of Technical Officer was not shown as reserved for any particular class or persons which is contrary to the earlier practice as borne out by Exts. P.3 and P.4, that the possibility of the post of Executive Engineer being reserved came to her knowledge only when she participated in the interview on 27.11.1998, there is no estoppel against statute and therefore the petitioner is well justified in challenging Ext. PI notification and S. 7(2) of the Act only makes the rule for reservation applicable, and the unconstitutionality is in implementing the reservation contrary to law declared by the Supreme Court which is binding on the 1st respondent University. The aforesaid Ajith Kumar got himself impleaded in the Writ Petition as additional 2nd respondent by virtue of order in C.M.P No. 44173 of 1998. A counter affidavit has been filed by him adopting the contentions of the University and further stating that he has “no lien in any earlier department and under these circumstances I may be protected in the present post.” A learned Single Judge before whom the Writ Petition came up for decision after hearing counsel on both sides formulating the question to be decided as whether the University is justified in grouping together the post mentioned in Class I (viz. University Engineer, University Librarian, Planning and Development Officer, Deputy Librarian, Maintenance Engineer, Technical Officer (Executive Engineer) and any other post created by the University) for the purpose of applying rules for Communal Reservation and Rotation and after so formulating the question adjourned the case to be placed before a Bench for an authoritative pronouncement having regard to the considerable general importance which is likely to occur in future appointments in the University. Accordingly, the matter has been posted before us for hearing. We heard counsel on both sides.

3. The pivotal question that arises for consideration in the present petition viz., whether there can be any reservation to a single cadre post came up for consideration before the Constitution Bench of the Supreme Court in Arthi Ray Chaudhary v. Union of India ((1974) 1 SCC 87 : AIR 1974 SC 532) wherein the Court upheld such reservation on an interpretation of the carry forward rule. Later, in Dr. Chakryadhar Paswan v. State of Bihar ((1988) 2 SCC 214 : AIR 1988 SC 959) a Division Bench of the Supreme Court referring to Arthi Ray Chaudhary's case and distinguishing the same on the ground that it turned on the carry forward rule, held that there can be no reservation to a single cadre post. However, in Bhide Girls' Education Society v. Education Officer, Zilla Parishad Nagpur (1993 Supp (3) SCC 527) while upholding its view in Chakradhar Paswan's case, the. Supreme Court again referred to its decision in Arthi Ray's case but was not persuaded to take a different view from the one already taken in Paswan's case. The decision in Bhide Girls' Education Society case was sought to be reviewed on the ground of Constitution Bench decision in Arthi Ray Chaudhary's case and the 3 judge Bench decision in Vidhyulatha Arvind Kakade's case (Civil Appeal No. 242 of 1992 decided on 17.1.1992) in which a view has been taken that reservation applies in case of an isolated post also. The Apex Court in its decision in Chethna Dilip Motgarc v. Bhide Girls' Education Society, Nagpur (1995 Supp (1) SCC 157) did not accept the contention based on the decision in Arthi Ray's case and dismissed the review holding that “we are clearly of the view that Dr. Chakradhar Paswan's case holds the field and the decision by the three-Judge Bench dated 17.1.1992 does not lay down any law and is not an authority for holding that the principle of reservation has to be applied in case of even one isolated post also. Apart from the above circumstances, in the case before us, the Government of Maharashtra had also issued a circular dated 1.3.1989 after the decision in Dr. Chakradhar Paswan case to the effect that the principle of reservation would not apply in the case of an isolated post. In these circumstances, we find no force in this review petition and it is accordingly dismissed”. Since the question whether there can be any reservation to a single cadre post by rotation was left open in Chakradhar Paswan's case, a two Judge Bench of the Supreme Court in State of Bihar v. Bhageshwari Prasad (1995 Supp (1) SCC 432) held that successive vacancies in a single post can be subjected to Rules of Reservation. In Union of India v. Madhav ((1997) 2 SCC 332) a three-Judge Bench of the Supreme Court adverting to the Constitution Bench decision in Arthi Ray Chaudhary's case and concluding that the decision in Chethanna Mortgages case was rendered without proper appreciation of the ratio in Arthi Ray Chaudhary's case held that the provision for reservation in promotion to a single cadre post by rotating the vacancies as per the Roster point is not violative of Art. 16(1) of the Constitution. Again in P.G Institute of Medical Education v. K.I Narasimhan (JT 1997 (5) SC 313) another three-Judge Bench of the Supreme Court came to the conclusion that application of Roster to single cadre post is valid and constitutional and therefore there can be reservation of single cadre post by rotation of Roster points.

4. Considering the conflicting decisions and having regard to the review petition filed in P.G Medical Institute case, the question whether in a single cadre post reservation for the backward classes can be made either directly or by rotation of Roster point was referred to a Constitution Bench. The Constitution Bench in the decision in P.G Institute of Medical Education & Research v. Faculty Association ((1998) 4 SCC 1 : AIR 1998 SC 1767) approved the decision in Paswan's case and held that 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 device of rotation of Roster in a single cadre post is bound to create 100% reservation of such posts whenever such reservation is to be implemented. There can be no doubt that the expression “by whatever means” takes within its sweep the concept of grouping together also. The Supreme Court in P.G Institute of Medical Education & Research case noted supra ((1998) 4 SCC 1 : AIR 1998 SC 1767) took note of the fact that in a single cadre post, reservation at any point of time 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 and such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional frame work. As already noticed it was held that 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 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 Court sounded a word of caution when it observed that it cannot, however, be lost sight of the fact that in the anxiety for reservation of the backward classes, a situation should not be created 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 members are senior in service and is otherwise more meritorious. The Court reasoned that Arts. 14, 15 and 16 including Arts. 16(4), 16(4A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. The Court pointed out that Art. 15(4) is an enabling provision like Art. 16(4) and the reservation under either provision should not exceed legitimate limits, and in making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of citizens. The Court further held that the special provision under Art. 15(4) must, therefore, strike a balance between several relevant considerations and proceed objectively reconciling the doctrine of equality of opportunity in clause (1) of Art. 16 in favour of reservation for backward classes under clause (4) of Art. 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality. Regarding the applicability of Arthi Ray Chaudhary's case the Supreme Court set at rest all controversy and confusion in paragraph 23 of the judgment by holding as follows:

“…………It has not been held in Arihi Ray Chaudhary's case ((1974) 1 SCC 87 : AIR 1974 SC 532) that for a single post there can be a reservation for Scheduled Castes, Scheduled Tribes or other Backward Classes. What has been held in Arthi Ray Chaudhary's case that when there was a vacancy at Adra, according to the Model Roster, such vacancy was a reserved point and, therefore, the other vacancy was strictly a reserved vacancy but there being only one vacancy in that particular year of recruitment, such vacancy had to be treated as unreserved and, therefore, appointment was given to Smt. Biswas, who was not a reserved candidate. Therefore, it had to be compensated by carrying forward the reservation in two subsequent recruitment years when the vacancy in Kharagpur in the financial year 1968–69 arose w.e.f December 31, 1968.”

5. In the light of the aforesaid discussion and the law laid down by the Hon'ble Supreme Court in clear, categoric and unmistakable terms we have no hesitation in holding that there cannot be any reservation to a single cadre post.

6. Of course, the University would contend for the position that the post of Technical Officer cannot be treated as a single cadre post and that there can be reservation by means of grouping together. We do not find any substance in the aforesaid contention raised by the University. In Paswan's case noted supra the Supreme Court while holding that there cannot be any reservation to a single cadre post thereby creating a monopoly of a particular category considered the question whether the posts carried on different grades can be clubbed together for purposes of reservation merely because they are Class I posts. The court ruled mat there can be no grouping of one or more isolated posts for purposes of reservation even if they are carried on the same scale. The Constitution Bench decision in P.G Institute of Medical Science case ((1998) 4 SCC 1 : AIR 1998 SC 1767) noted supra, though the Supreme Court noticed the contention, of the learned Solicitor General based on the Office Memorandum No. 36012/2/96-Estt (Rs) issued by the Ministry of Personnel, Public Grievances and Pension Cell which inter-alia provides for clubbing together, finally came to the conclusion that 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 cadre post is bound to create 100% reservation of such post whenever such reservation is to be implemented.

7. The reliance placed by the University on the decision reported in University of Cochin v. Dr. N. Raman Nair ((1975) 3 SCC 628 : AIR 1974 SC 2319) is thoroughly misplaced as it is of no help to come to a conclusion that reservation by means of clubbing together of isolated cadre post is permissible. What was considered in that case was whether exclusion of the category of Professors from the operation of Rr. 14 to 17 of K.S & S.S.R, was legal or not The Syndicate of the University passed a resolution dated 17.7.1972 laying down that the principles of reservation for appointment should be applied to posts in a service or class or category collectively and not separately. However, the same resolution placed appointments to the post of Professor outside the reservation and rotation rules altogether. This court quashed the resolution dated 17.7.1972 against which the University filed an appeal which came to be dismissed by the Supreme Court. While dismissing the appeal certain passing observations were made to the effect that the University may treat all teaching posts as belonging to one class for the application of the Rules or it may treat only posts of Readers in all subjects or in a particular subject as a category by itself for the application of the rules. In our considered opinion this passing observations cannot be understood as laying down any dictum. That apart, no ratio is contained in the aforesaid decision to the effect that there can be reservation by means of clubbing together of isolated cadre posts. The reliance placed by the University on the decision reported in Jose v. Cochin University (1993 (2) KLT 347) is also of no assistance for the reason that clubbing attempted in the present case is that of different and distinct cadres carrying different scales of pay, whereas in the above cited decision what is ultimately found is that clubbing of posts of lecturers of all departments in one unit and readers of all departments into one unit for the purpose of applying Rules of Reservation. Accordingly, we reject the submission based on the aforesaid decision.

8. It was further contended that the petitioner having failed to challenge the vires of S. 7(2) of the Act is not entitled to any relief in this petition. We failed to appreciate the logic of this contention. S. 7(2) of the Act only makes the Rules of Reservation applicable to recruitment. The unconstitutionality alleged is in implementing the reservation contrary to law declared by the Supreme Court which is binding on the 1st respondent University. Therefore, there is nothing wrong on the part of the petitioner in not challenging the vires of S. 7(2) of the Act. In this connection we are remained of the solemn principles that the constitutionality of a statute shall not be challenged unless it is absolutely essential to do so. In our considered opinion the constitutionality of S. 7(2) does not stand in the way of the petitioner's claim being considered on merits. Accordingly, we reject this contention. The further contention raised by the University is that the petitioner having participated in the interview pursuant to Ext. P.1 is estopped from challenging the action of the University in treating the single post of Executive Engineer in a cadre as a reserved one. Here again, the contention is misconceived. We are of opinion that the mere fact of participation by the petitioner in the interview will not stand in the petitioner's way of challenging the action of the University in treating the single post of Executive Engineer in a cadre as reserved one. Such a reservation is in violation of the constitutional provisions in Arts. 14 and 16 and therefore, the contention of the University on the ground of estoppel and waiver will not hold good. There can be estoppel against law.

9. Thus, on the whole we are of opinion that the University is entirely on the wrong track by applying the Rule of Reservation to a single cadre post. Evidently the posts grouped in Class I by the University as noted above are posts carried on different scales of pay. Their nature of duties are also different. Status, salary and qualification of those posts also differ. In order to apply the principle of reservation, there must be plurality of posts in a cadre. Posts which are different in nature of duties, qualification, scale of pay etc. cannot be grouped together so as to apply the rules of reservation and rotation. The Supreme Court in P.G Institute of Medical Education & Research case ((1998) 4 SCC 1 : AIR 1998 SC 1767) approved the principle laid down by it in Paswan's case supra. In this connection, it is pertinent to note that in Paswan's case, the Supreme Court recognized the post of Director as a solitary post, and therefore there cannot be 100% reservation for the solitary post. University Engineer, University Librarian etc are top posts in the department and the post of Technical Officer (Executive Engineer) etc. come below them. Therefore, going by the decision of the Supreme Court in Paswan's case, the post of University Engineer or University Librarian or Technical Officer has to be considered as a solitary post to which the principle of reservation will not apply. The inevitable conclusion is that there cannot be 100% reservation for the solitary post and that dissimilar posts cannot be grouped together for the purpose of applying rules of reservation. In the result, we allow this O.P and declare that Ext. PI notification to the extent it provides that the appointments will be subject to the Rules for communal reservation and rotation as provided for in S. 7(2) of the Act, collectively comprising each category is illegal and direct the 1st respondent University to make appointments to the category of Technical Officer (Executive Engineer) on the basis of merit without applying any rules of reservation.

10. Original Petition allowed as above.