G.N.RAY - (1.) .-
(2.) 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. The learned counsel for the parties in all these matters have agreed that the question of law as to the constitutional validity of reservation in single cadre post is to be decided by the Constitution bench and thereafter 6 the cases will be placed before the appropriate bench for disposal on merits in accordance with the decision rendered by this bench. Therefore, the question of constitutional validity of reservation in a single cadre post either directly or by rotation of roster point has been considered by us and we have not taken into consideration other contentions raised in these matters. In support of the contention that reservation can be made not only in respect of the promotional post but also in respect of a single post in a cadre, Mr E.C. Agarwala, learned counsel appearing for the appellant in CA No. 2346 of 1981, Mr Puri, learned counsel appearing for the appellant in CA No. 2345 of 1981, Mr R.K. Jain, learned Senior Counsel appearing for the intervenor in the review petition filed in CA No. 3175 of 1997 on behalf of the Scheduled Castes and Scheduled Tribes Employees' Welfare Association, Post Graduate Institute of Medical Education and Research, Chandigarh, and Mr Andhyarujina, learned Solicitor General appearing for the appellant in Special Leave Petition (C) No. 13148 of 1997 for the petitioner Union of India, have made elaborate submissions. Mr Kapil Sibal, learned Senior Counsel appearing in support of the review petition in CA No. 3175 of 1997, has opposed the contention that a reservation can be made in respect of a single post cadre. Other learned counsel appearing in these matters have adopted the rival contentions, without advancing any separate argument.
(3.) MR Kapil Sibal has submitted that there cannot be any reservation either for initial appointment or for an appointment on promotion in respect of a single post cadre either directly or by the device of rotation of roster. MR Sibal has contended that the very concept of carry forward or the principle of roster is alien to a single post cadre. He has also contended that the principle of carry forward meaning thereby carrying forward reservation presupposes existence of multi-posts cadre. If there is only one post in a cadre, the vacancy for such single post being filled up, there will be no occasion for carrying forward reservation for filling up such vacancy. MR Sibal has also contended that the rationale of reservation under Article 16(4 of the Constitution is founded on the inadequacy of representation of a class in the service under the State. The question of adequacy of representation does not and cannot arise in a single post cadre because only one person can be accommodated against the single post, leaving no scope for adequate representation of any particular class in such single post. Mr Sibal has contended that the impugned judgment cannot be supported because (a) reservation of super-speciality is against the decision of a nine-Judge bench decision of this court in Indra Sawhney v. Union of India and (b) no reservation in a single cadre post is permissible in law. Mr Sibal has submitted that both in the impugned judgment and also in the judgment of Union of India v. Madhav on which reliance has been placed in the impugned judgment, the ratio in the decision of Arati Ray Choadhury v. 7 Union of India was wrongly appreciated and the ratio was wrongly stated. a Mr Sibal has drawn the attention of the court to the observations of Justice Reddy speaking for majority decision on Article 335 of the Constitution as contained in para 112 of the decision in Indra Sawhney case which are as follows: "838. while on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons, e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable . 839. ... Be that as it may, we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are: (1 Defence Services including all technical posts therein but excluding civil posts. (2 All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defence equipment. (3 Teaching posts of Professors - and above, if any. (4 Posts in super-specialities in Medicine, engineering and other scientific and technical subjects. (5 Posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. It is for the government of India to consider and specify the service and posts to which the rule of reservation shall not apply but on that account the implementation of impugned Office Memorandum dated 13/8/1990 cannot be stayed or withheld . 840. We may point out that the services/posts enumerated above, on account of their nature and duties attached, are such as call for highest level of intelligence, skill and excellence. Some of them are second level and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may not be consistent with 'efficiency of administration' contemplated by Article 335. 841. We may add that we see no particular relevance of Article 38(2 in this context. Article 16(4 is also a measure to ensure equality of status besides equality of opportunity." 8;