Madras High Court

Pankajam Girls Higher Secondary ... vs The State Of Tamil Nadu on 14 June, 2023

                                                                   Rev.Aplc(MD) No. 108 of 2018


                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 14.06.2023

                                                        CORAM:

                                       THE HON'BLE MR.JUSTICE R.SUBRAMANIAN
                                                        and
                                       THE HON'BLE DR.JUSTICE ANITA SUMANTH

                                            Rev.Aplc (MD) No.108 of 2018
                                           and C.M.P.(MD) No. 8166 of 2018

                     Pankajam Girls Higher Secondary School
                     Rep. By its Secretary,
                     Bodinayakkanur,
                     Theni District.                                 .. Review Petitioner
                                                     Vs

                     1.The State of Tamil Nadu
                       Rep. By its Principal Secretary,
                       School Education Department,
                       Fort St.George, Chennai – 600 009.

                     2.The Director of School Education,
                       DPI Campus, College Road,
                       Nungambakkam, Chennai 600 006.

                     3.The Chief Educational Officer,
                       Theni.

                     4.The District Educational Officer,
                       Uthamapalayam, Theni District.

                     5.G.Thangam                                     ..Respondents

                           Petition filed under Section 47 Rule 1 and 2 and Section 114 of
                     CPC to review the order dated 27.07.2018 in W.A.(MD) No. 748 of
                     2018.


                     1/9



https://www.mhc.tn.gov.in/judis
                                                                         Rev.Aplc(MD) No. 108 of 2018




                                       For Petitioner   :     Mr.Issac Mohanlan
                                                              Senior Advocate
                                                              for M/s. Issac Chambers

                                       For Respondents :      Mr.D.Sadiq Raja
                                                              Additional Government Pleader
                                                              for R1 to R4

                                                          ORDER

(Made by Dr.ANITA SUMANTH.,J)

This matter has been remanded to the file of this Court by an

order of the Hon'ble Supreme Court dated 14.02.2023 on a challenge

made by the Pankajam Girls Higher Secondary School (in short and

hereinafter referred to as ‘school’) challenging an order dated

25.04.2019 passed by this Court rejecting the Review Application filed

by it as against an order dated 27.07.2018.

2. The writ petition had been filed at the original instance by

a Record Clerk in the school to challenge the rejection by the

respondents in the writ petition, of a confirmation of his appointment.

A learned Single Judge allowed the writ petition and that decision come

to be reversed in writ appeal. The Division Bench at the first instance,

passed an order dated 27.07.2018, reversing the order of the learned

Single Judge and confirming the ineligibility of the petitioner to the

https://www.mhc.tn.gov.in/judis Rev.Aplc(MD) No. 108 of 2018

post of record clerk. That order had been passed on a consideration of

G.O.No.241 dated 29.10.2007 and G.O.No. 65 dated 27.05.2009.

3. As against order dated 27.07.2018, a petition for review came

to be filed by the School. The ground raised by the School in Review

Application was that the post of Record Clerk was a single post and

thus, the communal roster was itself inapplicable. This was a new

ground that had not hitherto figured as part of the writ petition

originally filed.

4. The review application came to be dismissed on 25.04.2019,

the Division Bench holding that the order passed by it at the first

instance on 27.07.2018 had not been challenged by the Record Clerk

and the review-applicant had not been represented either in the writ

petition or the writ appeal. It was thus held that School would have no

locus standi to seek a Review.

5. As against the dismissal of the review petition, the school filed

a petition for Special Leave. The Hon'ble Supreme Court, not finding

the need to go into the technicalities of the matter, and noting that an

important legal question has been raised by the School, has remitted

the matter vide judgement dated 14.02.2023 to the file of this Court

for decision on the issue raised in review.

https://www.mhc.tn.gov.in/judis Rev.Aplc(MD) No. 108 of 2018

6. The question raised in the Review Application touches upon

whether at all the communal roster would be applicable to determine

appointments in the cases of single cadre posts. We have heard

Mr.Issac Mohanlal, learned Senior Counsel for the review petitioner /

school and Mr.D.Sadiq Raja, learned Additional Government Pleader

for respondent nos. 1 to 4.

7. The learned Additional Government Pleader would, even at

the outset, bring to our notice order dated 16.05.2023 passed by the

District Educational Officer on the heels of judgment dated

14.02.2023, confirming the appointment of the petitioner in writ

petition, as record clerk. With this, the stand of the State and the

authorities in the Education Department is clear and categoric as to the

eligibility of the petitioner to the post.

8. The question of applicability of communal roster to single

cadre posts was the subject-matter of various judgments of the

Hon'ble Supreme Court. The first judgment on this score is Chakradhar

Paswan v State of Bihar and others ((1998) 2 SCC 214). In that

judgment, where the Hon'ble Supreme Court considered a challenge to

an order of the Patna High Court, the questions that fell for

determination are as follows:

https://www.mhc.tn.gov.in/judis Rev.Aplc(MD) No. 108 of 2018

“(1) Is the post of Deputy Director (Homeopathic) an 'isolated post' and therefore reservation of the post for a scheduled caste candidate amounts to 100% reservation and must therefore be declared to be impermissible under Art. 16(4)? (2) Whether the posts of the Director and the three Deputy Directors could be grouped together for purposes of implementing the policy of reservation, according to the 50 point roster. And (3) Could the posts of the Director and the three Deputy Directors in. the Directorate of Indigenous Medicines although they are posts carried on different grades, still be clubbed together for purposes of reservation merely because they are Class I posts?”

9. While considering the questions, the Hon'ble Supreme

Court noted that the Directorate of Indigenous Medicines comprised of

four posts, one Director and three Deputy Directors, the latter being

Class I posts. The post of Director was an isolated post that fell within

a cadre of its own. They observed that the post of a Director was

senior / superior to that of Deputy Director and hence could not be

grouped together with that post.

10. Considering the inter play between the reservation for the

said posts, the conclusion was that if there is only one post in a cadre,

there could be no reservation with reference to that post either for

recruitment at the initial stage or for filling up of future vacancies in

https://www.mhc.tn.gov.in/judis Rev.Aplc(MD) No. 108 of 2018

respect of that post. Thus, a reservation which would come under

Article 16(4) would pre-suppose the availability of multiple posts or at

least more than one post in that cadre.

11. A subsequent judgment in the case of Union of India v

Madhav ((1997) 2 SCC 332), took a slightly divergent view from the

judgment in Chakradhar's case holding that in the case of an isolated

or single cadre post, reservation at the first instance should be general

but in the second instance should be considered as reserved.

12. By virtue of this cleavage of opinion, the issue was referred

to the attention of a Constitution Bench and in Post Graduate Institute

of Medical Education and Research v Faculty Association and others

((1998) 4 SCC 1), the question was decided once and for all approving

the view taken in Chakradhar's case. At paragraph 37 the Bench holds

as follows:-

“37.We, therefore, approve the view take in Chakradhar case that there cannot be any reservation in a single post cadre and we do not approve the reasonings in Madhav case, Brij Lal Thakur case and Bageshwari Prasad case, upholding reservation in a single post cadre either directly or by device of rotation of roster point.

Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education & Research cannot also be sustained. The review petition made in Civil Appeal No.3175 of 1997 in

https://www.mhc.tn.gov.in/judis Rev.Aplc(MD) No. 108 of 2018

the case of Post Graduate Institute of Medical Education & Research, Chandigarh, is therefore allowed and the judgment dated 2-5-1997 passed in Civil Appeal No.3175 of 1997 is set aside.”

13. In light of the detailed discussion as above, the legal issue

in regard to the applicability of the communal roster and reservation in

case of single cadre / isolated posts is answered to state that in such

instances there can be no application of the communal roster at all. To

clarify, in the case of a single cadre, isolated post, the communal

roster does not apply.

14. This Review Application stands allowed. No costs.

Connected miscellaneous petition is closed.

(R.S.M., J.) (A.S.M., J.) 14.06.2023 Index:Yes Neutral Citation : Yes ssm

https://www.mhc.tn.gov.in/judis Rev.Aplc(MD) No. 108 of 2018

To :

1.The Principal Secretary, School Education Department, Fort St.George, Chennai – 600 009.