State Of U.P And Others v. M.C Chattopadhyaya And Others

Order

1. These appeals arise out of the judgment of the Division Bench of the Allahabad High Court, wherein the Court has held that there cannot be any reservation in respect of the post of Professor in the university. The aforesaid conclusion is based upon the earlier Division Bench decision of the said Court in a batch of writ petitions which were disposed of by the judgment in Ram Niwas Pandey (Dr.) v. State of U.P (1996) 3 UPLBEC 1869 In the aforesaid judgment in paragraph 29, the Division Bench of the Allahabad High Court has held that the reservation has to be applied subjectwise and the Professors of the Departments cannot be clubbed together and treated as one cadre for the purpose of applying reservation. The aforesaid observation has been construed in the impugned judgment to be a total prohibition for applying the reservation policy to the post of Professor. Further, the Court in the impugned judgment is of the conclusion that because of a different selection mechanism for the post of Professor, principle of reservation will have no application. This judgment of the Allahabad High Court in Ram Niwas Pandey (Dr.) v. State of U.P (1996) 3 UPLBEC 1869 was assailed before this Court. But this Court being of the opinion that no exception can be taken to the judgment, did not entertain the special leave petition. The very advertisement of the University which had been issued in the year 1995 and was the subject-matter of challenge before the Allahabad High Court in the impugned judgment, had also come up for consideration before this Court in State of U.P v. Dr. Dina Nath Shukla (1997) 9 SCC 662, JT (1997) 2 SC 467. A Bench of two learned Judges of this Court construed the provisions of the Reservation Act and also the provisions of the university statute and came to hold that it would not be permissible to club all posts of Professors together and then apply the principle of reservation. It was felt that if the total posts are advertised without subjectwise specification in every faculty, discipline, speciality or superspeciality, it would be difficult for the candidate to know as to which of the posts would 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. Necessarily therefore, the Court approved a part of the earlier judgment of the Allahabad High Court in Ram Niwas Pandey case (1996) 3 UPLBEC 1869 even though that judgment had not been cited, by holding that the reservation has to be applied subjectwise and the Professors of all departments cannot be clubbed together and treated as one cadre. The Court, however, interfered with the conclusion of the Allahabad High Court on the question as to whether there can at all be a reservation on a single post. The Court was of the opinion that if there exists any isolated post, rule of rotation be applied and by application of roster for appointment and for achieving the said objective the Vice-Chancellor, who is the responsible authority under Section 4 has to enforce the Act, would ensure that single post in each category of Professors, Readers or Lecturers carrying the same scale of pay would be subject to reservation by applying the principle of rotation. This conclusion of the Court in the aforesaid case of Dr. Dina Nath Shukla (1997) 9 SCC 662, JT (1997) 2 SC 467 is no longer good law in view of the Constitution Bench judgment of this Court in the case of Post Graduate Institute of Medical Education and Research (1998) 4 SCC 1, JT (1998) 3 SC 223. Dr. Dina Nath Shukla (1997) 9 SCC 662, JT (1997) 2 SC 467 relied upon the judgment in Madhav case (1997) 2 SCC 332, JT (1996) 9 SC 320.

2. It has been unequivocally held in the aforesaid Constitution Bench decision that there cannot be any reservation in respect of an isolated post and the judgment of this Court in Union of India v. Madhav (1997) 2 SCC 332, JT (1996) 9 SC 320 has been overruled on which judgment the Court had relied upon in the case of Dr. Dina Nath Shukla (1997) 9 SCC 662, JT (1997) 2 SC 467.

3. Under the Uttar Pradesh State Universities Act, 1973, Section 2(19) defines the expression “teacher” to mean

“a teacher employed by the university for imparting instruction and guiding or conducting research either in the university or in an institute or in constituent college maintained by the university”.

4. A look at the provisions of Sections 31(10), 31(3), 31(9) and 31-AA would indicate that the Act provides for recruitment to the post of Professor directly and there is a provision for promotion only in personal cases depending upon the preconditions prescribed under Section 31-AA. The statute of the University prescribes the procedure for direct recruitment as well as for personal promotion to the posts of Reader and Professor (see 10.02, 11.04, 11.12-B). It thus appears that the statute conceives of posts of Professor belonging to a single cadre. Under the provisions of the Reservation Act promulgated in the State of U.P called the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, “public services and posts” have been defined in Section 2(c) and sub-clause (iv) thereof would bring within its sweep a university established by or under an Uttar Pradesh Act. Section 3 of the Reservation Act provides for reservation in all public services and posts. It also says that the percentage of vacancies to which recruitments are to be made in accordance with roster referred to in sub-section (5) of Section 3 shall be reserved in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens. Sub-section (5) of Section 3 stipulates that the State Government shall, for applying the reservation under sub-section (1), by a notified order, issue a roster which shall be continuously applied till it is exhausted. It would thus be apparent that the principle of reservation could be applied to a post of Professor in accordance with a roster that has been issued by the State Government.

5. In course of the arguments before us, Mr Dwivedi, learned Senior Counsel appearing for the appellants submitted that there has been a 100-point roster in the State of U.P which has been published by the Governor in exercise of power under sub-section (5) of Section 3 of the Reservation Act. It may be borne in mind that in implementation of a roster as notified by the Governor, the principles enunciated in R.K Sabharwal v. State of Punjab (1995) 2 SCC 745, (1995) 29 ATC 481, JT (1995) 2 SC 351 have to be followed. We are not in a position to come to a conclusion on the basis of information available on record to hold whether the principles enunciated in Sabharwal case (1995) 2 SCC 745, (1995) 29 ATC 481, JT (1995) 2 SC 351 have been followed while issuing the advertisement in question and that apart the advertisement which was the subject-matter of challenge, never considered the case of reservation on subjectwise basis. Mr Dwivedi strenuously urged before us that there should not be a reservation on subjectwise basis particularly taking into account the definition of “cadre” in the Act and the statute already referred to and it should be left to the discretion of the Vice-Chancellor to decide the question as to which one of the given posts at a given point of time could be reserved. We are unable to accept the said submission of the learned counsel as, in our opinion, that would lead to uncertainty and no candidate would be able to know as to which post is being reserved and under what consideration.

6. While, therefore, we are of the considered opinion that there can be a reservation in respect of post of Professor and the provisions of the Reservation Act would apply, but the same cannot be applied taking all the Professors as a cadre and it has to be made subjectwise, as has been earlier construed and held by this Court. We are also of the opinion that there cannot be a reservation for an isolated post. We further observe that in deciding the question of reservation the appropriate authority must follow the roster as has been published in exercise of power under Section 3(5) of the Reservation Act and then the roster should be duly complied with in accordance with the principles enunciated by this Court in Sabharwal case (1995) 2 SCC 745, (1995) 29 ATC 481, JT (1995) 2 SC 351.

7. The conclusion of the impugned judgment on the basis of the earlier Division Bench judgment in the case of Ram Niwas Pandey (1996) 3 UPLBEC 1869 is possibly not a correct reading of the aforesaid judgment. We are told that the very advertisement that was issued in the year 1995, which came up for consideration before this Court in the case of Dr. Dina Nath Shukla (1997) 9 SCC 662, JT (1997) 2 SC 467 was the judgment which was under consideration before the Allahabad High Court in the impugned judgment. This Court in paragraph 16 having held that the law is declared and the Vice-Chancellor would work out the details and make a fresh advertisement and have the selection done in accordance with law and appointments made accordingly, we really fail to understand how anything survived for the High Court in the impugned judgment to give any direction contrary to the same. Be that as it may, since we have already indicated and explained the position of law, the Vice-Chancellor of the University would act accordingly.

8. These appeals are disposed of with the aforesaid observations and directions.