Rejendra Nath Mittal, J. - (1.) The short question that arises for determination in the present case is that if the total number of carry forward and other vacancies meant for scheduled castes' candidates exceed 50 per cent in a particular year, whether appointments/promotions against such vacancies are hit by Articles 14 and 16 of the Constitution of India.
(2.) It is not necessary to deal with the matter at a great length as this question has been settled by a 7-Judges' Bench of the Supreme Court in State of Kerala Vs. N.M. Thomas (1976) 1 Serv. L.R. 805 : (1976 Lab IC 395). In that case, 34 out of 51 vacancies had been filled from amongst the candidates belonging to the scheduled castes and tribes. Thus, the number of scheduled caste candidates recruited was more than 50 per cent. It is relevant to point out that some of the vacancies were carry forward vacancies. It was observed in the judgment as follows (at p. 406 of Lab IC) : "It is true that in T. Devadasan's case (AIR 1964 SC 179) the majority judgment of this Court did strike down a rule which permitted carry forward of the vacancies. With respect, however, I am not able to agree with this view because such a rule sometimes defeats the ends of Art. 16 itself. By the carry forward rule what is meant is that if suppose there are 50 vacancies in a year, 25 of such vacancies are set apart for backward classes of citizens and if out of these 25 only 10 such candidates are available then the remaining 15 vacancies instead of being kept vacant which may result in inefficiency and stagnation are filled up from other classes but the deficiency is sought to be made up in the next year or in the year next to that. I can see no objection to this course being adopted which is fully in consonance with the spirit of Clause (4) of Art. 16. The main idea is to give adequate representation to the backward classes of citizens if they are not adequately represented in the services. What difference does it make if instead of keeping the reserved vacancies vacant, from year to year as a result of which work of the Government would suffer, they are allowed to be filled up by other candidates and the number of vacancies so filled up are kept reserved for the next year to accommodate candidates from backward classes. This does not and cannot destroy the concept of equality, nor result in hostile discrimination to one or the other. There can be no doubt that reservation to the extent of 50 per cent is permissible and if the candidates to that extent are not available, and those vacancies could not be filled up by other candidates then such candidates would not get any appointment at all. It is only by chance that some of the candidates of the backward classes not being available that the other candidates are appointed. In fact if the carry forward rule is not allowed to be adopted it may result in inequality to the backward classes of citizens who will not be able to be absorbed in public employment in accordance with the full quota reserved for them by the Government. Thus, if the carry forward rule is not upheld, then backwardness will be perpetrated and it would result ultimately in a vacuum. For these reasons, therefore, I am of the opinion that the High Court was in error in holding that the State's action in filling 34 vacancies out of 51 by members of the scheduled castes and tribes was illegal and could not be justified."
(3.) From the above observations, it is evident that if suitable scheduled castes Candidates are not available during the period when the vacancies are to be filled and these are carried forward, the same can be filled in by scheduled castes Candidates at one time ' even if their number exceeds more than 50 per cent. T. Devadasan Vs. Union of India, AIR 1964 SC 179 , referred to by the learned counsel for the petitioner is distinguishable.;