IMPORTANT POINT
Reservation in promotion to a single post on the basis of rule of rotation and application of carry forward rule and of roster is not unconstitutional.

ORDER

As per Office Report dated September 13, 1996, the notice sent to the first respondent was received back by the Registry with the postal endorsement "No such person" indicating avoidance thereof on his part. Consequently, he was set ex parte. The second respondent was directed to file counter-affidavit. Even today the first respondent is not appearing either in person or through counsel.

2. Leave granted. We have heard learned counsel for the appellant and the second respondent.

3. This appeal by special leave arises from the judgment passed by the High Court of Punjab & Haryana, Chandigarh on 22nd November, 1995 in LPA No. 351 of 1981.

4. The admitted facts are that the first respondent, a general candidate, was appointed as a Junior Technical Assistant in the Department of Industries of the State of Punjab. The post of Assistant Superintendent, Quality Marking Centre, (Textile), i.e., in the next promotional cadre, is the single post in that cadre. The said post was reserved for Scheduled Caste candidates as per the roster and in view of the judgment of this Court in Aarti Ray Choudhury v. Union of India1. Bhagat Ram, the second respondent who was a qualified candidate was considered and duly promoted to the said post. The first respondent, feeling aggrieved, filed writ petition in the High Court seeking relief in the form of a mandamus or direction to the Government to dereserve the carried forward post and to consider his case for promotion as a general candidate. He contended that since it was the solitary post, reservation in favour of a Scheduled Caste would amount to 100% reservation violating Articles 16(1) and 14 of the Constitution. The learned Single Judge observed that he felt bound by the Division Bench judgment in Dr. Parminder Kaur v. State of Punjab2 wherein it was held that "a solitary vacancy in the relevant year cannot be treated as reserved one as that would amount to reservation of 100% in violation of Article 14 and 16(1) of the Constitution". Thus though he was inclined to take the view that Constitutionally it was permissible, in view of the Division Bench judgment in Dr. Parminder Kaur s case, he allowed the writ petition. On appeal, it was affirmed by the Division Bench. When the matter was carried to this Court, it set aside the order and remitted the matter to the High Court for reconsideration. The Division Bench by the impugned judgment held thus :

"Consequently, we are of the view that since it is a single post cadre, there could not be any reservation at all and the question of applicability of Parminder Kaur s case (supra) also does not arise on the facts of the present case."

Thus this appeal by special leave.

5. The question for consideration, therefore, is : whether the view taken by the High Court is correct in law ? This Court in Indira Sawhney v. Union of India3 has overruled the decision of the Constitution Bench in Devadasan v. Union of India4 declaring the carry forward rule as unconstitutional. In paragraph 817 at page 739, it was held thus:

"We are of the respectful opinion that on its own reasoning, the decision insofar as it strikes down the rule is not sustainable. The most that could have been done in that case was to quash the appointments in excess of 50%, inasmuch as, as a matter of fact more than 50% of the vacancies for the year 1960 came to be reserved by virtue of the said rule."

In paragraph 818, it was held thus :

"We my reiterate that a carry-forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried-forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, should not result in breach of 50% rule".

6. Thus it could be seen