P.M Muni Reddy (Petitioner) v. The Karnataka Public Service Commission And Others (S).

M. Rama Jois, J.:— In this writ petition, the following two questions of law arise for consideration:—

(i) Whether a person, who belongs to Scheduled Tribes of any State other than the State of Karnataka is entitled to be selected against one of the posts in the service of the State of Karnataka, reserved in favour of Scheduled Tribes by the order dated 4th March, 1977 made by the State Government under cl. (4) of Art. 16 of the Constitution?

(ii) Whether the procedure for selection prescribed in Appendix III to the Government order dated 4th March, 1977 issued under cl. (4) of Article 16 of the Constitution, is applicable for election to the posts of Lecturers in the Collegiate Education Department, in respect of which though the reservation of posts is made on the basis of total number of posts of Lecturers in various subjects, selection for appointment as Lecturers in each subject is required to be made only from among candidates possessing Master Degree qualification in that particulur subject, as persons eligible for selection as Lecturers in a subject are only those who possess Master Degree in the concerned subject?

2. Briefly, undisputed facts of the case are as follows:—

The petitioner passed M.A Degree in Telugu of Bangalore University in Second Class in April, 1976. He is ordinarily a resident of State of Tamil Nadu. He belongs of Konda Reddy Tribe of Tamil Nadu. The said tribe is one of the tribes declared as Scheduled Tribe by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. The Karnataka Public Service Commission (hereinafter referred to as ‘the Commission’) by its Notification dated 28th April, 1977 invited applications for 35 posts of Lecturers. The Notification also specified the number of Lecturers required to be selected in various subjects. In the notification, no post was reserved in favour of Scheduled Tribes. Three posts had been reserved in favour of ex-military personnel. As only one ex-military personnel applied for selection, readjustment of reservation was made. Subject-wise and category-wise break up was as follows:—

Posts subject-wise Reservation group-wise Urdu −1 Ex-military −1 English −6 Scheduled Castes −5 Sanskrit −1 Scheduled Tribes −1 Marathi −1 Backward Tribes −1 Economics −7 Backward Communities −7 Political Science −4 Backward Castes −4

1 2 3 Commerce −3 Special group −1 Chemistry −7 General merit −15 Tamil −2 Telugu −3 Total: 35 35 ** **”

3. The petitioner applied for selection to the Commission. He was called for interview. The Commission by its notification doted 30th Nov. 1978 (Exhibit-B) published the list of selected candidates. The petitioner was not selected. No candidate belonging to Scheduled Tribe has also been elected though one post was reserved, in spite of Scheduled Tribe candi dates eligible for selection including the petitioner were available. Aggrieved by the selection so made, the petitioner has presented this writ petition. The contention of the petitioner is that when one post was reserved in favour of Scheduled Tribe, and the petitioner, who belongs to Scheduled Tribe, was eligible for selection, it was obligatory for the Commission to have selected him against the post. He has impleaded the last candidate in merit among the three candidates selected for the three posts of Lecturers in Telugu on general merit as 3rd respondent.

4. In the statement of objection filed on behalf of the Commission, it was explained that as the Commission was required to follow the procedure prescribed in Appendix III to the Government Order dated 4th March, 1977 issued under cl. (4) of Art. 16 of the Constitution (hereinafter referred to as ‘the Order’) no person belonging to the Scheduled Tribes could be selected because, as a result of following the said procedure, three candidates came to be selected on general merit for the three pusts of Lecturers in Telugu and as the petitioner was qualified only for being appointed to the post of Lecturer in Telugu and on merit ???e was not Superior to the three candidates selected, he was not selected. It is this stand taken on behalf of the Commission that has given rise to the second question set out earlier.

5. Respondent No. 3 in his statement of objections has contended that as the petitioner belongs to Scheduled Tribes of the State of Tamil Nadu, he is not entitled to be selected against one of the posts reserved in favour of Scheduled Tribes in this State, it is this plea taken by the 3rd respondent that ha??? given rise to the first question set out earlier.

6. As the statement of objections on behalf of the Commission was silent on the question as to whether or not the petitioner, who belongs to Scheduled Tribes of Tamil Nadu is entitled to the benefit of reservation in this State, by an order dated 4th Sept. 1980, respondents Nos. 1 and 2 were directed to file an additional statement clarifying their stand on this question. Accordingly an additional statement has been filed on behalf of the Commission. In that statement, the Commission has stated that every person, who belongs to Scheduled Castes or Scheduled Tribes, even if he is from any State other than the State of Karnataka, is entitled to be selected against the posts reserved in fovour of the Scheduled Castes and Scheduled Tribes by this State. The Page: 175State Government has not filed any statement of objections. However, Sri B.B Mandappa, learned High Court Government Pleader, appearing for both the Commission and the Government, submitted that there was difference of opinion between the Commission and the Government on this question and the Government supports the stand taken the 3rd respondent.

7. I shall now take up the first question for consideration. The relevant portion of the Order issued under cl. (4) of Art. 16 of the Constitution reads as follows:

2. Accordingly, Government are pleased to direct that reservations in appointments and posts in the State Civil Services shall be made for the following classes of citizens to the extent indicated against them:

I. (1) Scheduled Castes, as defined in the Constitution of India15%

(2) Scheduled Tribes, as defined in the Constitution of India30%

(Italics by me)

8. The above portion of the Order provides reservation of posts in favour of Scheduled Castes and Scheduled Tribes as defined in the Constitution of India. Therefore, it is necessary to refer to the relevant provisions of the Constitution relating to, reservation of posts in favour of, declaration and definition of, Scheduled Castes and Scheduled Tribes. They are cls. (1) to (4) of Article 16, Arts. 335, 341, 342 and cls. (24) and (25) of Art. 366. They read:

“16. Equality of opportunity in matters of public employment.—

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shell prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union Territory, any requirement as to residence within that State of Union Territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State.

335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.—

The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of Page: 176administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

341. Scheduled Castes.—

(1) The President may with respect to any State or Union Territory and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under cl. (1) any caste, ???ace or tribe or part of or group within any caste, race or tribe, but save at aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

342. Scheduled Tribes.—

(1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save at aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

366. Definitions.—In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

(24) ‘Scheduled Castes’ means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Art. 341 to be Scheduled Castes for the purposes of this Constitution;

(25) ‘Scheduled Tribes’ meant such tribes or tribal communities or parts of or groups, within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purpose??? of this Constitution.”

9. Clause (1) of Art. 16 guarantees to all the citizens right to equal oppportunity in matters relating to employment under the State. Cl. (2) prohibits discrimination on any of the g???oundg specified in that clause in respect of employment under the State. Cl. (4) empowers the State to make reservation of posts in favour of any backward class of citizens which in the opinion of the State is not adequately representated in the services of the State. There is ho dispute that Scheduled Castes and Scheduled Tribes fall within the expression ‘backward class’ used in clause (4) of Article 16 of the Constitution. (See: (i) Rangachart v. General Manager, Southern Railway, Madras, A.I.R 1961 Mad. 35 at p. 39, paras 18 to 21 and (ii) Devadasan v. Union of India, A.I.R 1964 S.C 179 at pp. 187-188, para 17). Art. 335 creates a duty on the part of the State to have due regard to the claims of the members of Scheduled Castes and Scheduled Tribes consistent with the maintenance of efficiency in administration Cl. (1) of Art. 341 of the Constitution empowers the President after consultation with the Governor of the concerned State, by notification to specify any caste, race, or tribe or parts of or groups within any caste, race or tribe (hereinafter referred to as ‘caste’ or ‘castes’) which shall for the purpose of the Constitution be deemed to be Scheduled Castes in relation to the particular State. Under cl. (2) of Art. 341 it is competent for the Parliament by law to include in or exclude from the list of Scheduled Castes specified in a notification issued under cl. (1) of that Article any caste or castes. Similarly under Art. 342(1) it is competent for the President, after consultation with the Governor, to issue a notification specifying the tribes or tribal communities or parts of or groups within tribes or tribal communities (hereinafter referred to as ‘tribe’ or ‘tribes’) which shall for the purpose of the Constitution be deemed to be Scheduled Tribes in relation to the particular State. Cl. (2) of Art. 342 empowers the Parliament to include in or exclude from the list of Scheduled Tribes specified in a notification issued under cl. (1) any tribe or tribal community or part of or group within any tribe or tribal community. Cls. (24) and (25) of Art. 366 define the words Scheduled Castes' and ‘Scheduled Tribes’, as those declared as such under Arts. 341 and 342, respectively.

10. The President had issued notifications under Arts. 341(1) and 342(1), specifying the castes and tribes, which had to be considered as Scheduled Castes and Scheduled Tribes respectively for each State and Union territory. Thereafter the Parliament in exercise of its powers under cl. (2) of Art 341 and cl. (2) of Art. 342, enacted the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. Under the said enactment, the earlier notification issued by the President has been amended. ‘Konda Reddis’ is one of the tribes included in the list of Scheduled Tribes declared for the State of Tamil Nadu vide Sl. No. 12 of Part XIV to the First Schedule to the aforesaid Act. Therefore there can be to doubt that the petitioner b??? to the Scheduled Tribes as defined in the Constitution of India in whose favou??? the reservations have been made by the Order of the State Government dated 4th March 1977.

11. Sri Gangi Reddy, learned counsel appearing for respohdent-3, however, placed strong reliance on the words in relation to that State contained in Arts 341(1) and 342(1) of the Constitution, and argued that as the reservation is made by the State Government in favour of Scheduled Castes and Scheduled Tribes as defined by the Constitution of India and as according to the definition of ‘Scheduled Castes’ and ‘Scheduled Page: 178Tribes’ contained in Art. 366(24) and (25) the Scheduled Castes and Scheduled Tribes are those declared as such under Arts. 341 and 342 of the Constitution, respectivel), and as both these Articles provide that declaration of Scheduled Castes and Scheduled Tribes should be made in relation to each State, it follows that the reservation made by the State Government is also in favour of only such of the persons, who are declared as Scheduled Castes and Scheduled Tribes for this State and is not a reservation made in favour of Scheduled Castes and Scheduled Tribes declared in respect of any other State or States.

12. Sri G.N Seshagiri Rao, learned counsel appearing for the petitioner per contra contended that the castes and tribes declared as Scheduled Castes and Scheduled Tribes in respect of any State other than Karnataka, under Arts. 341 and 342 of the Constitution are as much Scheduled Castes and Scheduled Tribes as defined in the Constitution as the Scheduled Castes and Scheduled Tribes declared for the State of Karnataka. In particular, he pointed out that the Order does not state that the reservation provided for was in favour of Scheduled Castes and Scheduled Tribes declared for this State under the Constitution.

13. The answer of the question depends on the construction of the provisions of Arts. 341 and 342 read with Arts 335 and 16 as also the wording of the Order issued under cl. (4) of Art. 16. The first aspect for consideration is, whether a person, who belongs to Scheduled Castes or Tribes in one State, cannot be regarded as belonging to Scheduled Castes or Tribes, as the case may be, in another State. The construction suggested for respondent-3 that in view of the words ‘in relation to that State’ contained in Arts. 341(1) and 342(1) of the Constitution, a person belonging to Scheduled Castes or Tribes in one State cannot be regarded as belonging to Scheduled Castes or Tribes in another State though at first sight appears to have some force, on a closer scrutiny of the provisions read with Arts. 335 and 16, such a construe ion cannot be accepted as correct. It is true that Art. 341(1) empowers the President to specify any caste, or part of a caste in relation to a particular State as Scheduled Caste and similarly Art. 342(1) empowers the President to specify any trib??? or part of a tribe as belonging to Scheduled Tribe in relation to a particular State. In other words, a person belonging to a caste or tribe ordinarily resident in one State cannot claim to belong to Scheduled Castes and Scheduled Tribes even if the caste or tribe to which he belongs has been declared as Scheduled Caste or Tribe, a??? the case may be, in anther State, but not in his native State.

14. The above position is illustrated by a case reported in K. Appa Rao v. Director of Potts and Telegraphs, (A.I.R 1969 Orissa 220). The petitioner in the said case belonged to a community called ‘Kondakapu’. He was ordinarily a resident of the State of Orissa. ‘Kondakapu’ community had been declared as Scheduled Tribe in the State of Andhra Pradesh, but not in the State of Orissa. He claimed that he was entitled to retain the promotion which had been given to him against one of the posts reserved in favour of persons belonging to Scheduled Tribes and with reduced qualification, in the Posts and Telegraphs Department of Union of India and from which position he was reverted on the ground that he was not a member of Scheduled Tribes. His claim was negatived by the High Court on the ground that though ‘Kondakapu’ tribe had been declared as Scheduled Tribe in the State of Andhra Pradesh, the same had not been declared as such in relation to the State of Orissa. Page: 179The said case shows that though the petitioner therein belonged to ‘Kondakapu’ tribe and that tribe had been declared as Scheduled Tribe in relation to Andhra Pradesh, he could not be regarded as a member of Scheduled Tribes as he was ordinarily resident in Orissa. Learned counsel for respondent-3 submitted that the said decision supports his contention. I am unable to agree. That was a simple case in that, the petitioner therein did not belong to Scheduled Tribe as be was ordinarily resident in the State of Orissa and as ‘Kondakapu’ was not included in the list of Scheduled Tribes in relation to that State. That was not a case in which a person belonging to ‘Kondakapu’ tribe and ordinarily resident in Andhra Pradesh, who did belong to Scheduled Tribe claimed eligibility for promotion against a post reserved for Scheduled Tribes in the State of Orissa. In the present case, it is not disputed that ‘Konda Reddies’ are declared Scheduled Tribe in relation to Tamil Nadu end that the petitioner is ordinarily resident in Tamil Nadu and he belongs to Konda Reddy tribe. There is also no dispute about the test to be applied for finding out as to whether or not a person belongs to Scheduled Castes or Scheduled Tribes. If the caste or tribe to which a person belongs has been declared as Scheduled Caste or Scheduled Tribe in relation to the State in which he is ordinarily resident, he can claim that status but not on the ground that the same caste or tribe has been declared as Scheduled Caste or Scheduled Tribe in some other State in which he is not ordinarily resident as was done by the petitioner in the Orissa case. It is admitted that by applying the above test, the petitioner belongs to Scheduled Tribe. Still it is contended for respondent-3 that the petitioner is Scheduled Tribe only in Tamil Nadu and not outside Tamil Nadu.

15. Explaining the scope of power of the President under Art. 341(1), the Supreme Court in the case of Bhaiyalal v. Harikishan Singh (A.I.R 1965 S.C 1557 at p. 1560) observed as follows;

“…The object of Art. 341(1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic had educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, bu??? in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Art. 341(1), an elab???rate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State Educational and social backwardness in regard to these castes, races or Page: 180tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question.”

16. The above observation indicates that a caste or part of a caste or a tribe or part of a tribe, residing in a State or even in specified parts of a State could be specified as Scheduled Caste or Tribe, as the case may be. Therefore, it is competent for the President to issue a notification or for the Parliament to make law declaring that particular castes or tribes are Scheduled Castes or Scheduled Tribes, as the case may be, in relation to any particular State, or even part of any State and once such a declaration is made, every person belonging to any of those castes or tribes, who is ordinarily a resident, in the State in respect of which those castes or tribes are declared as Scheduled Castes or Scheduled Tribes or in that part of the State specified in the notification becomes a person belonging to Scheduled Caste or Scheduled Tribe, as the case may be. But the fact that such a declaration has been made for each State or Union Territory, respectively, or the fact that certain castes or tribes residing only in the specified parts of a State or Union Territory are declared as Scheduled Castes of Scheduled Tribes, does not mean that such persons belonging to Scheduled Castes or Scheduled Tribes are to be regarded as belonging to that class i.e a Backward class only in that State or the specied part of a State, as the case may be, and those very persons should be treated as not belonging to Scheduled Castes/Scheduled Tribes, and consequently not belonging to Backward class, and as belonging to forward class when they claim the benefit of reservation in another State or another part of the same State, as the case may be. In my opinion, once persons belonging to a caste or tribe or a part thereof ordinarily resident in a State or part of a State are found to be so socially and educationally backward as to identify them as Scheduled Castes or Tribes, having regard to the object and purpose of Arts. 16(4) and 335, it becomes competent for Union as also every State to make special provisions in the matter of public employment in favour of all persons regarded as Scheduled Castes and Scheduled Tribes, which are intended for their upliftment. Therefore, in my view, the words “in relation to that State” have been used in Arts. 341(1) and 342(1) to indicate that it is competent for the President to specify a particular caste or tribe or even a group out of that caste or tribe in a particular State, as Scheduled Caste or Tribe, respectively, after taking into account all the relevant facts revealed in the socio-economic survey conducted for the purpose, if there is justification to make such a declaration and not to specify the same caste or group within such caste in another State as belonging to Scheduled Castes or Scheduled Tribes, as the case may be, if having regard to all the relevant facts the same caste or tribe is found to be not backward socially and economically so as to merit a declaration that they belong to Scheduled Castes or Scheduled Tribes in that another State or in other words, to indicate that it is not obligatory for the President to specify a particular caste or tribe as belonging to Scheduled Castes or Scheduled Tribes throughout the territory of India even though the persons belonging to such caste or tribe are backward only in one or more States and not in all the States. But once the declaration is made by the President or by an Act of Parliament as contemplated Page: 181under cls. (1) and (2) of Art. 341 and cls. (1) and (2) of Art. 342 of the Constitution, respectively, that certain castes and tribes belong to Scheduled Castes and Scheduled Tribes, respectively, in relation to each State all of them, irrespective of the State in respect of which the declaration is made, are persons who belong to Scheduled Castes and Scheduled Tribes as defined in the Constitution.

17. The object enshrined in Art. 335 and the special provisions which are permitted to be made under Art. 16(4) is in respect of all persons belonging to the Scheduled Castes and the Scheduled Tribes in the whole of the country. As far as Union Government is concerned, there could be no doubt and it was not disputed that as regards eligibility for selection against posts reserved in favour of Scheduled Castes and Scheduled Tribes, the eligibility cannot be restricted in favour of Scheduled Castes and Scheduled Tribes belonging to any particular State or region even if the recruitment is made in a department of the Central Government for any particular State or region, as even such appointments would be appointments in connection with the affairs of the Union. In my view, the position in the States would not be different, unless any State chooses to restrict the reservation of posts in the services of that State to persons declared as belonging to Scheduled Castes or Scheduled Tribes, for that State only if it is possible for the State to do so without violating the provisions of Arts. 14, 16(1) and 16(2) which prohibits discrimination on the ground of residence etc., and Art. 16(3) which empowers only the Parliament to prescribe residence as one of the qualifications; on which I do not express any opinion as such a question does not arise for consideration in this petition, the benefit of reservation of posts made in favour of persons belonging to Scheduled Castes and Scheduled Tribes in one State without any restrictive clause is available to all persons belonging to Scheduled Castes and Scheduled Tribes, irrespective of the State to which they belong.

18. The second aspect of the first question is about the interpretation of the Government Order. Para 2 of the Order extracted earlier provides for reservation of posts in the services of the State to the extent of 15% and 3%, respectively, in favour of Scheduled Castes and Scheduled Tribes as defined in the Constitution without any qualification. If the intention of the State was that the reservation should be restricted to members of Scheduled Castes and Scheduled Tribes of this State only, the words ‘specified/declared for this State’ would have been incorporated in the Order. As reasoned earlier, though list of Scheduled Castes and Tribes is declared for each State separately, after the making of the declaration all persons, who by virtue of their castes and tribes and ordinary residence in any State, can be identified as belonging to Scheduled Castes or Scheduled Tribes, in any such State, are persons belonging to Scheduled Castes or Tribes as defined in the Constitution. Therefore, in the absence of any restrictive words in the Order the benefit of reservation made under the Order is available to all persons belonging to Scheduled Castes or Tribes, irrespective of the State from which he hails.

19. It is true, as pointed out earlier that cl. (4) of Art. 16 is only an enabling provision and it is competent, for any State without violating the provisions of the Constitution, to limit the benefit of reservation to persons, who in its opinion belong to backward class and who are in adequately represented in the services of the State. Therefore even Page: 182assuming that it was possible for the State to extend the benefit of reservation only in favour of persons belonging to Scheduled Castes and Scheduled Tribes declared for this State only without violating any other provision of the Constitution, the State Government has not imposed any such condition in its order. Obviously it was not in favour of imposing any such disability on the members of Scheduled Castes and Scheduled Tribes of other States. The State Government could not have been also unware of the fact that imposition of any such condition would have also invited the imposition of similar conditions by other States resulting in the deprivation of the benefit of reservation for the persons belonging to Scheduled Castes and Scheduled Tribes of this State in the matter of employment in the neighbouring State as also in other States. For these reasons, I reject the contention urged for respondent-3 and hold that the view taken by the Commission on the question is correct.

20. The second question is similar to the one which came up for consideration in an earlier case in S.S Annegowda v. Public Service, (1980 (2) Kant L.J 217) concerning the very selection which is the subject matter of this petition. The petitioner in the said case belonged to Backward Caste. Four posts were reserved in favour of Backward Castes. Not even one person belonging to Backward Castes was selected against the four reserved posts. It was admitted by the Commission that reservation of posts was not made on subject-wise basis but was made on the basis of total number of posts advertised i.e, thirty five. The petition was allowed holding that the reservation order was violated and the Commission was directed to reconsider the case of that petitioner against the posts reserved for Backward Castes. The said decision fully governs the case. Further consideration of the question is necessitated by the specific plea taken by the Commission, which is as follows:

“7. Re Para 6(i) and (ii): The mode of selection of candidates is prescribed in Appendix-III to GO. No. DPAR-1 SEC ??? 7 dated 4-3-1977 which has been followed by the first respondent and the mode of selection is as follows:

(a) The appropriate selecting authority shall first prepare consolidate dlist of all eligible applicants irrespective of classes to which they belong, arranging them in the order of merit (hereinafter called the first list).

(b) The selecting authority will then prepare from out of the first list a second list (hereinafter called the second list) containing the names of applicants equal to the number of posts to be filled up on the basis of general merit (i.e, the number of posts other than those reserved in favour of Scheduled Castes, Scheduled Tribes, and other Backward Classes) arranging them in the order of merit commencing with the first name in the first list.

(c) The selecting authority will then prepare from out of first list excluding the portion forming the second list, a third list (hereinafter called the third list) containing the names of applicants belonging to the Scheduled Castes, Scheduled Tribes, Backward Communities, Backward Castes, Backward Tribes and Special Group equal to the number of vacancies reserved for each category in the order of merit determined in the first list.

(d) The selecting authority will then prepare a final list of selected candidates for appointment to the category of posts for which selection is made, by arranging the names of candidates included in the second list and the third list in the order of merit.

In accordance with the mode of selection 15 posts earmarked for open competition were filled up in the first instance on the basis of General Merit of the 15 candidates so selected, one was selected against one vacancy in Sanskrit, 3 in Telugu, 1 in Urdu, 5 in Chemistry, 1 each in English, Commerce and Marathi and 2 in Political Science. The remaining 20 posts were reserved for S.C, S.T and other groups as noted supra. Of these, 13 posts i.e, 7 in Economics, 2 in Political Science, 2 in Chemistry and 2 in Commerce were filled up by 7 B.C.M, 1 B.S.G, and 4 SC candidates by virtue of their higher merit, and the other one post by an Ex. M.P candidate by virtue of its separate reservation and merit. The remaining 7 posts i.e, 5 in English and 2 in Tamil which should have been filled up by 1 S.C, 4 B.C.T, 1 B.T, and 1 S.T were filled by 1 B.C.M candidate and the other 6 on the basis of General Merit, as there were no qualified candidates from among S.C, B.C.T, B.T, and S.T, candidates in the remaining subjects, i.e, in English and Tamil.

It is relevant to state at this stage that the first respondent has to select the candidates even from among the reserve groups only on the basis of merit subject to availability of posts in each subject. The petitioner has applied for the post of Lecturer in Telugu. All the posts in Telugu were filled up by 3 candidates out of the 15 candidates selected under General Merit. The petitioner could not be selected against the post of Lecturer in Telugu as the 3 posts in that subject had been already filled up in General Merit group. It is further submitted the other 2 S.T candidates who applied for the posts of Political Science could not also be selected against these posts at these 2 post were filled up by other reserve groups viz., B.C.M, and B.S.G, candidates by virtue of their higher merit. In fact these 2 S.T candidates had higher merit than the petitioner himself Since the selection is based on merit, subject to availability of posts in the concerned subject, the S.T candidates including the petitioner could not be selected in view of their lower merit ignoring the claims of other reserve group candidates who had higher merit. The candidate included at Sl. No. 16 was from General Merit as there was no candidate belonging to reserve groups in the subject Tamil. The one vacancy lost to S.C was however filled by B.C.M candidate in the subject English in accordance with Rules. The one vacancy in each post to S.C and S.T shall be carried forward on the next occasion of recruitment for the same category of posts as per Rules”.

21. I shall presently show that the procedure prescribed in Appendix III to the order could not govern the present case and, therefore, the Commission was not obliged to follow that procedure, it was not followed and it was not capable of being followed:

(1) A reading of the procedure prescribed indicates that it was meant to regulate general cases in which all the applicants are eligible for selection for all the posts advertised and not to a special case like the cadre of Lecturers in respect of which the reservation of posts is made on the basis of total number of posts, but selection is required to be made according to subject-wise requirements, which could obviously be only from among applicants who have Master Degree in the concerned subject as prescribed under the Cadre and Recruitment Rules of the Collegiate Education Department.

(2) The Commission has also not followed the procedure. If the procedure bad been strictly followed, they would have selected more number of Lecturers in some subjects than required and no Lecturers in some of the subjects though required. But what the Commission has done, as is clear from its statement, is it prepared a first list of candidates according to merit as prescribed in para-1 of appendix III and having regard to the number of posts in each subject. As it found that in respect of a few subjects sufficient number of candidates came to be selected on general merit itself, all the candidates claiming selection against reserved posts and who were eligible for selection in those subjects were eliminated, and reservation was confined only to the balance of the posts and again subject to subject-wise requirements. It is this method of adjusting the procedure with the subject-wise requirement, which is not contemplated by the procedure, which resulted in plain transgression of the reservation provided for in the order. As a result no candidate belonging to Scheduled Tribes was selected though one post was reserved and no candidate belonging to Backward Castes was also selected in the reserved category though four posts were reserved as pointed in Annegowda's case, even though qualified and eligible candidates from these groups were available.

(3) The procedure prescribed in Appendix III to the order was incapable of being followed, as all the candidates were not eligible for all the posts, for which the Commission was called upon to ma???e the selection. The said procedure makes no mention about subject-wise requirements. If the procedure were to be followed, for instance, if at a selection of this type, the first list is prepared strictly according to merit, it could so happen that all the candidates in the first list i.e, general merit would be holding Master Degree in Mathematics and the following of the procedure would result in the selection on general merit of only Mathematics Lecturers. A similar anomaly would also result in respect of selection against reserved posts. In any event the selection can never be according to subject-wise requirements, defeating the very object of selection i.e, selection of specified number of Lecturers in various subjects. In the present ???ease also the following of that procedure would have resulted in either selecting more candidates than required in the same subjects and no candidates in some other subjects. Page: 185The Commission had actually departed from the procedure in order to suit subject-wise requirements though it is not contemplated in the procedure which indicates that it was not possible to follow the procedure in order to make the selection of Lecturers according to subject-wise requirements.

22. In the result, my answer to the two questions arising for consideration in the petition is as follows:—

(i) A person, who belongs to Scheduled Tribes of any State other than the State of Karnataka is entitled to be selected against one of the posts in the service of the State of Karnataka, reserved in favour of Scheduled Tribes by the Order dated 4th March, 1977 made by the State Government under cl. (4) of Art 16 of the Constitution.

(ii) The procedure for selection prescribed in Appendix III to the Government Order dated 4th March, 1977 issued under cl. (4) of Art. 16 of the Constitution, is not applicable for selection, to the posts of Lecturers in the Collegiate Education Department, in respect of which though the reservation of posts is made on the basis of total number of posts of Lecturers in various subjects, selection for appointment as Lecturers in each subject is required to be made only from among candidates possessing Master Degree qualification in that particular subject, as persons eligible for selection as Lecturers in a subject are only those who possess Master Degree in the concerned subject.

23. As the procedure prescribed in Appendix III of the Order was not applicable having regard to the fact that the candidates who competed for selection with each other were only those possessing Master Degree in the concerned subjects and that reservation of posts has been made on the basis of total number of posts, the correctness of which is not questioned in this petition, the only course which was open to the Commission wa??? to accommodate the best among the candidates eligible for selection against the posts reserved for each category such as Scheduled Castes. Scheduled Tribes, Backward Castes etc., in the first instance and thereafter to proceedc to select for the balance of the required number from among other candidates strictly according to merit subject however to the required number of Lecturers in each subject. This shall be the procedure which the Commission shall follow until any other special procedure is prescribed by the Government for selection of Lecturers in Collegiate ???ducation Department at all selections where selection of Lecturers in more “, than one subject is required to be made and posts are reserved on the basis of total number of posts.

24. The only question which remains for consideration is about the form of the Order. As I have upheld the right of the petitioner for consideration for selection against post reserved for Scheduled Tribes and as I have also held that the procedure prescribed in Appendix III to the Order was inapplicable, the Commission should be directed to modify the list in the light of this Order. This necessarily involves the deletion of the names of some of the selected candidates. From the date of selection it is nearly ???two yea's. Though the selected candidates ??? parties in Anne???odw???s case, (1980) 2 Kant LJ 217 and consequently bound by then direction issued in that case, which as I was told is yet to be implemented Page: 186by the Commission, having regard to the facts and circumstances which lead to the error committed by the Commission, I consider it just and expedient to leave liberty for the Government to adjust the candidates already selected and appointed, but who are found to be in excess after accommodating the candidates entitled to be selected against the reserved posts in the subsequent vacancies. In the result, I make the following order.

(i) The Public Service Commission is directed to reconsider the case of the petitioner in accordance with the direction contained in para 19 of this Order and to modify the list of selected candidates dated 30-11-1978 (Exhibit-B) by including in it, requisite number of candidates eligible and qualified for selection against posts reserved in favour of Scheduled Castes, Scheduled Tribes and various categories of Other Backward Classes by the Government Order dated 4th Mar. 1977 i ???sued under Art 16(4) of the Constitution if available and give appropriate ranking and intimate the Covernment about their inclusion.

(ii) The State Government is directed to consider the cases of persons so included in the select list for appointment immediately thereafter in accordance with law.

(iii) The State Government is at liberty to adjust the candidates already appointed, who are found in excess, against ‘subsequent vacancies, and is also at liberty to avsiga appropriate lower ranking to them in the seniority list of Lecturers.

(iv) No costs.

25. Order accordingly.