Vijay Kumar Dhania vs Delhi University & Ors.
1999 Latest Caselaw 907 Del

ORDER

A.K. Sikri, J.

1. The point involved in this petition is very short. Respondent No. 2, Maitri Mahilla College (hereinafter to be referred as "College") issued an advertisement on 10.9.95, inter lia, adverting the post of Professional Assistant (Library) and invited application for the said post. The post was in General Category. Petitioner applied for the said post of professional Assistant (Library) and vide letter dated 27.9.95 he was called for interview. He appeared in interview on 11.10.95 but was not selected and one Mr. Pradeep Rai was selected. However, he made representations dated 12.10.95, 19.10.95 and 24.10.95 to the Principal of the College demanding that the post of professional Assistant (Library) should be reserved for Scheduled Caste candidate and he being the only eligible candidate for Scheduled Caste category, he should be appointed to the said post. These representations were followed by various other representations. Petitioner even approached the National Commission of Scheduled Castes and Scheduled Tribes and sent representation to Forum of Academic for Social Justice. It is alleged that before the National Commission, a compromise was arrived at wherein petitioner was offered the post of Care-Taker in lieu of Professional Assistant (Library) but he was not appointed to the post of CareTaker. Accordingly, on 19.8.1998 he made another representation to National Commission of Scheduled Castes and Scheduled Tribes but as he did not receive any reply for 2/3 months, petitioner filed present petition in October, 1998.

2. In this writ petition petitioner claims that the post of Professional Assistant (Library) should have been reserved for SC/ST category and he should be appointed to the said post. The prayer clause reads as under:

"(a) Allow the Writ.

(b) Issue a Writ of Certiorari, calling for the records of the Roster being maintained for giving effect to Reservation policy in favour of SC & ST kept by respondent No. 2 as well as the records of the impugned selection to the post of Professional Assistant (Library) under respondent No. 2, examine the same and quash the impugned selection.

(c) Issue a Writ of Mandamus, directing the respondents to appoint the petitioner to the post of Professional Assistant (Library) being the only eligible SC candidate by declaring the post to be reserved for the S.C. candidates.

(d) Quash the impugned selection to the post of Professional Assistant (Library).

(f) Grant any other relif which your Lordships may deem fit.

(g) Award the cost".

3. Counter-affidavit has bean filed by the Principal of the College in which it is stated that the post of Professional Assistant (Library) is a solitary post in the College and, therefore, there cannot be any reservation to the said post in SC/CT category. It is mentioned that reservation for SC/ST category prescribed by University does not apply to the said solitary post because application of a roster would amount to 100% reservation, which is impermissible under Article 16(4) of the Constitution. Thus according to respondents this post could not have been reserved for SC/ST category and action of the Respondent - College filling up of the post from candidate belonging to General Category was proper.

4. There is no dispute that the post of professional Assistant (Library) is a solitary post. However, the petitioner contends that the roster should be maintained for filling - up of the post and as per the roster when the vacancy falls at a point which belongs to SC/ST category, it should be reserved for SC/ST category.

5. The question, therefore, to be determined is as to whether there can be reservation in single cadre post either directly or by rotation of roster. This question is no more res integra and has already been finally determined by the Constitutional Bench Judgment of the Supreme Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and Ors. . In the said case, after analysing the entire gamut of case law on the point, the Supreme Court has set at rest the controversy by holding that there cannot be any reservation in single cadre post either directly or by rotation of roster and there has to be plurality of post for reservation.

6. In para - 1 of the said judgment, Constitutional Bench of the Supreme Court posed the question, which was to be determined in the said petition, as under:

"In all these matters a common question arises for decision as to whether in a single cadre post reservation for the backward classes, namely, Scheduled Castes, Scheduled Tribes and other Backward Classes can be made either directly or by applying rotation of roster point. There are conflicting decisions of this Court on the question of such reservation in a single cadre post".

7. The Court then noticed the earlier judgments of Supreme Court including M.R. Balaji & Ors. Vs. State of Mysore 1963 Supplementary (1) SCR 439, T. Devadasan Vs. The Union of India & Anr. 1964 (4) SCR 680, Arti Ray Choudhury Vs. Union of India & Ors. in which it was held that normally more than 50% of the post should not be reserved. Relying on these decisions, case of Dr. Chakradhar Paswan Vs. State of Bihar & Ors. was decided wherein it was held that reservation of post by applying the roster can be made only where there are more than one post and reservation of only one post cannot be made because such reservation would amount to 100% reservation, thereby violating Articles 16(1) and 16(4) of the Constitution.

8. After noticing the aforesaid decision in Para-26 of the judgment,Supreme Court observed as under:

"The decision in Chakradhar Paswan's case that for a single post cadre no reservation can be made for the backward classes has also been followed in Chetana Dilip Motghare Vs. Bhide Girls Education Society (1995 Supp. 1 SCC 157) and it has been held in the said decision that when the post is a solitary post in the cadre, the roster and carry forward scheme underlying any reservation policy cannot apply. A contrary view, however, has been taken in the decision of State of Bihar and Ors. Vs. Bageshwari Prasad and Anr. (1995 Supp. 1 SCC 432), Shri Suresh Chandra Vs. Shri J. B. Agarwal and others , and later on in a three Judges Bench decision in Union of India and Anr. Vs. Madhav . Following the said three Judges Bench decision in Madhav's case, reservation in a single post cadre by rotation of roster point has been upheld in Union of India and others Vs. Brij Lal Thakur and the decision rendered in the case of Post Graduate Institute of Medical Education Research Vs. Faculty Association and others. The later decision is the subject matter of challenge in the Review Petition before us in C. A. No. 3175 of 1997".

9. The Court, thereafter, considered the judgments, which had taken the contrary view in the cases of Union of India and Anr. Vs. Madhav and Anr. , Union of India and others Vs. Brij Lal Thakur and State of Bihar and Ors. Vs. Bageshwari Prasad and Anr. 1995 Supp. (1) SCC 432 but did not approve the reasoning mentioned in these cases and approved the view taken in Dr. Chakradhar case (supra). This conclusion, the Supreme Court arrived at by making the following observations:

"In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent.

Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bound to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society".

10. In view of the aforesaid authoritative pronouncement, there is no merit in the petition filed by the petitioner and the same is, accordingly, dismissed. However, there shall be no orders as to costs.