VERY IMPORTANT POINTS
1. Application of roster of single post cadre and appointment by promotion to carry forward post is valid and constitutional and clubbing of the posts carrying the same scale of pay or grade is also constitutionally permissible.
2. Court cannot give mandamus to disobey the Constitution and principle of reservation by de-reserving the carry forward vacancies reserved for appointments of the Dalits and Tribes nor should direction be given to fill up the reserved posts with general candidates.
3. There is no prohibition on filling up backlog vacancies by special recruitment exclusively for the Dalits and Tribes and the bar of 50 would not apply in such cases.
4. Reservation in post graduation specialities or super specialities are not detrimental to the high degree of efficiency and it does not necessarily imply down-grading the excellence.

Headnote:(i) Service Law—Appointments —Single post cadre—Reservation—Application of roster to single post cadre and appointment by promotion to carry forward post—Valid and constitutional—Clubbing of posts in various disciplines carrying same scale of pay and grade—Constitutionally permissible—Reservation in appointment to posts of Assistant Professors in various disciplines in appellant Institute—Whether is violative of Articles 14 and 16(1) of Constitution?—(No)—Post Graduate Institute of Medical Education & Research, Chandigarh Act, 1966—Section 32.
       Held : It is settled legal position that application of roster to single post cadre and appointment by promotion to carry forward post is valid and constitutional. With a view to give adequate representation in public service to reserved category candidates, the opportunity given to them is not violative of Articles 14 and 16(1) of the Constitution; nor is it unconstitutional. (Para 15)
       (ii) Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966—Section 32—PGIMER, Chandigarh Rules, 1967—Rule 7—Recruitment to post of Assistant Professors in various faculties of appellant Institute—Reservation—Challenged on ground that as per circular of Government of India, scientific or research posts in Institute are exemptible from reservation policy—No direction to Institute to dereserve the post—Whether Committee of Institute has power to dereserve vacancies—(No)—It is bound to implement principle of reservation—Whether Court can give direction to throw open the reserved vacancies to general candidates by a writ of mandamus or direction ?—(No).
       Held that Court cannot give mandamus to disobey the Constitution and principle of reservation enshrined in Articles 15(4) and 16; nor is the Court competent to direct the authorities to disobey the constitutional mandate. It would, therefore, be manifestly illegal to seek a mandamus or direction; nor would the Court be justified to issue such mandamus or direction to the appropriate Government to de-reserve vacancy. It is common knowledge that selections are not objectively being made to select the candidates belonging to the Dalits and Tribes to fill up the vacancies reserved for them though qualified candidates are available to be promoted/appointed, with a view to see that reserved vacancies are not filled up and the same are passed off as eligible candidates being not available so as to ensure that carry forward vacancies either exceed 50 of the accumulated total vacancies or that selection goes beyond three years so as to make the Government de-reserve the vacancies. It would, therefore, be clear that the authorities should implement the executive/legislative/constitutional policy or principle in their true spirit, honestly and sincerely to effectuate the policy; no mandamus or direction should be issued to de-reserve the carry forward vacancies reserved for appointment of the Dalits and Tribes not should direction be given to fill up the reserved posts with general candidates. (Para 15)
       Further held that Regulation 32(2) itself makes the rules of reservation issued by the Government of India applicable from time to time. It is not in dispute that the Government of India was not spending the entire expenditure of the Institute from the public exchequer and, therefore, per force the appellants-Institute is enjoined to abide by the constitutional policy of reservation. (Para 18)
       Consequently held that a fool-proof procedure in regard to de-reservation has been provided. Before de-reservation could be made for recruitment of the Dalits and Tribes, special drive is made as is incumbent on the administration to fill up not only the current vacancies but also backlog vacancies. Only in exceptional cases, that too if in spite of all sincere efforts made to recruit the reserved candidates by special recruitment, the backlog vacancies or current vacancies in Class ‘A’ posts remain unfilled, for reasons to be recorded for dereservation, they are required to de-reserve the posts; the procedure indicated hereinbefore with prior consultation and concurrence of the Commission for SC/ST, should be obtained and the reserved vacancies be notified for recruitment by general candidates and the denotified vacancies are carried forward. (Para 14)
       As per Pattanaik, J.–(Concurring)
       Held : The two Office Memorandum issued by the Ministry of Home Affairs dated 2.11.1963 and 17.7.1964 no doubt contemplate that the reservation orders in favour of Scheduled Castes and Scheduled Tribes will not apply in case of appointments to the posts for conducting research or for organising, conducting and directing research and post classified as ‘Scientific or Technical’ in terms of Cabinet Sectt. Office Memorandum dated 28.12.1961 should be exempted from the purview of orders relating to reservation for Scheduled Castes and Scheduled Tribes. But until and unless the posts are classified as such to be scientific or technical, the provisions of sub-rule (2) of Rule 32 would continue to apply and the Director is duty-bound to make reservations in favour of candidates belonging to the Scheduled Castes and Scheduled Tribes in filling the vacancies in the posts and services. Until a concrete proposal emanates from the Institute identifying the post and the said proposal is examined by the Administrative Ministry, namely, the Ministry of Family and Health Welfare and a decision is taken thereon, it is not possible to conclude that the post of Assistant Professors are outside the purview of the reservation orders. No decision of the Ministry of Health and Family Welfare has been produced before us classifying the post of Assistant Professor as scientific post meant for carrying out the research and as such the reservation orders issued by the Government of India would continue to apply in filling up of the vacancies in the post of Assistant Professors in the Post Graduate Institute of Medical Education and Research at Chandigarh until such posts are classified by the Ministry of Health in the Government of India, to be Scientific and Technical posts. (Para 30)
       (iii) Service Law—Reservation —Backlog vacancies—Special recruitment exclusively for Dalits and Tribes—Permissible—Special recruitment not treated as routine recruitment in any year—No compulsion on Government to fill up vacancies stage by stage—Bar of 50 not applicable.
       Held : There is no prohibition on filling up backlog vacancies by special recruitment. The special recruitment is not treated as routine recruitment in any year. The bar of 50 would apply only when general recruitment is made on both to the general as well as the reserved candidates in respect of the current vacancies. But when special recruitment is made for selection and appointment of the Dalits and Tribes, to the reserved backlog vacancies, the normal run for recruitment is inapplicable. Accordingly instead of conducting the exams for different categories in the manner indicated above, there is no constitutional prohibition on filling up of the backlog vacancies by a special recruitment in a single go. Thus we hold that the special recruitment is not violative of the principle of carry forward within one year’ equally, reservation within 50 quota is not violative. (Para 19)
       (iii) Service Law—Recruitment—Reservation in post graduate and doctoral courses—Whether violative of Art. 15(1) of the Constitution ?—(No)—Whether reservation for those posts is inconsistent with maintenance of high degree of excellence?—(No)—Applicability of reservation in post graduation courses under Art. 15(4) is constitutionally permissible—It is valid under Articles 14, 15(1) and 15(4) of Constitution.
       Held that what Constitution gives to the reserved candidates is a facility and opportunity to enjoy the right to equality enshrined under Articles 14, 15(1), 15(4), 16(1), 16(4) and 16(4A) respectively. For educational and economic empowerment and social justice, the arch of the Constitution in the Preamble and the relevant Articles in Part III & IV, protective discrimination ensures practical content applying the protective and actuality and equality in results, instead of legal equality, in favour of the disadvantages segments of the society. (Para 21)
       Further held, the benefit of reservation does not necessarily imply down-grading the excellence. Every student after admission into the post graduate speciality or super-speciality in required to undergo the same course of study, same standard and higher performance for qualifying the courses for conferment of the degrees in the respective specialities or super-speciality or technical subjects. In that regard, there is no relaxation given to the candidates belonging to reserved categories. A student who would pass post graduation on par with the general candidates is also expected to have the same degree of excellence on par with general candidate, with a lesser benefit of marks only for admission into the course of study by relaxing the same standard of marks. Securing marks is not the sure proof of higher proficiency, efficiency of excellence. These are matter of acquired ability by studious application of mind, skills in performance by the candidate concerned, be it general candidate or reserved candidate. It is a matter of application of the mind, constant assiduity to improve skills, capabilities and capacities and excellence in the subject or the field of action chosen by the candidate. In that behalf, it is common knowledge that marks would be secured in diverse modes. It is no indicia that particular percentage of the marks secured is an index of the proficiency, efficiency and excellence. They are awarded in internal examination on the basis of caste, creed, colour, religion etc. It is the constitutional imperative of the executive to provide opportunities and facilities to the handicapped to acquire the degree in specialities, super-specialities or technical posts. Denial thereof, is a total denial of right to enjoy equality. It is well-settled legal position that fundamental rights are to be interpreted broadly to enable the citizens to enjoy the rights enshrined in Part III and IV of the Constitution. (Para 23)
       Under these circumstances, the view of the High Court that the reservation in post graduation specialities or super-specialities are detrimental to the high degree of efficiency and violative of Article 14 is clearly incorrect, erroneous, illegal and unconstitutional. Thus, we hold that the reservation in post graduation speciality or super-speciality is valid under Articles 14, 15(1) and 15(4) of the Constitution. (Para 24)
       (iv) Rule of Interpretation —Constitution of India —Interpretation of constitutional provisions should always be such as to enable the availing of rights given in Constitution to citizens, and not to deny or denude them by process of interpretation.
       Held : The faith of the founding fathers of the Constitution in the Supreme Court Judges was so high that they chose to describe Supreme Court Judges as “Worthy Judges” to interpret the Constitution only to sustain the social order, integrate the people in united Bharat to elongate the constitutional rights and ensure the enjoyment of those rights and make these rights available to the Dalits, Tribes, poor, minorities and all sections in equal measure. It is repeatedly held by this Court that the interpretation of the constitutional provisions should always be such as to enable the availing of the rights given in the Constitution to the citizens, and not to deny or denude them by process of interpretation. The Judges of the constitutional Courts, in particular, as judicial statesmen, would always endeavour to ensure enjoyment of the rights enshrined in the Constitution to every section of the society consistent with the policies and principles laid down in the Constitution. (Para 22)

Judgement Key Points

The facts of this case involve the challenge to the validity and constitutionality of reservation policies implemented in public employment and educational institutions. The petitioner(s) argued that certain reservation practices, such as the use of roster systems, clubbing of posts with the same pay scale and grade, and reservation in specialized academic and research posts, violated fundamental rights under Articles 14 and 16 of the Constitution. The respondents maintained that these reservation measures are necessary for promoting social justice, ensuring adequate representation of reserved categories, and facilitating their integration into public service and higher education. The case also concerns the application of reservation policies in backlog vacancies, single post cadres, and postgraduate or super-specialty courses, with the parties disputing whether these policies are consistent with constitutional principles and whether they undermine merit or excellence (!) (!) .

JUDGMENT

K. Ramaswamy, J.—Leave granted.

2. These appeals and the writ petition arise out of the common cause relating to recruitment to the post of Assistant Professors in various faculties in the appellant Post Graduate Institute, Chandigarh and admission into specialities and super-specialities. Advertisement No. 6/90 dated November 16, 1990 relates to recruitment to the post of Assistant Professor; out of 12 posts, 8 posts were reserved for Scheduled Castes (for short, ‘Dalits’) and 4 posts were reserved for Scheduled Tribes (for short, ‘Tribes’), in the pay scale of rs. 3500-4500/-. Essential qualifications were prescribed for the said posts; there being no dispute, vis-a-vis qualifications, it is not necessary to elaborate them except to state that these are backlog vacancies. Through advertisement No. 15/90 dated November 25, 1990, the appellants had called for applications for appointment to the said posts and admission to Doctoral Courses and Ph. D. Programme for the academic session starting from 1.1.1991 in which 6 posts were reserved for the Dalits and Tribes. The contesting respondents in these appeals (for short, the ‘General candidates’) and the Faculty Association challenged the advertisement for recruitment to the post of Assistant Professor and admission to Doctoral Courses and Ph.D. Programme. Two learned single Judges in different judgments held that the post of Assistant Professor in various disciplines is single post cadre; reservation for the Dalits and Tribes would amount to 100 reservation; accordingly, it is unconstitutional. In respect of admission to the post of Doctoral Courses and Ph.D. programme, another learned single Judge held that the reservation in recruitment to the post of Doctoral Courses and Ph.D. programme undermines efficiency detrimental to excellence for which purpose the appellant-PGI is established and thereby it is unconstitutional. On appeal, the Division Bench in LPA Nos. 787/92, 7827/92 and batch dismissed the appeals. Thus, these appeals by special leave.

3. It is not in dispute that the post of Assistant Professor in diverse disciplines, in single post cadre but carries the same scale of pay and grade in all disciplines. The Institute is of national importance and is established with the object to develop patterns of teaching in undergraduate and postgraduate medical education in all its branches so as to demonstrate a high standard of medical education, to bring together, in one place, educational facilities of the highest order, for the training of personnel in all important branches of health activity; to teach undergraduate and postgraduate sciences of modern medicine and other allied sciences, including physical and biological sciences and to provide facilities for research in the various branches of such sciences etc. Section 32 of the Post-Graduate Institute of Medical Education & Research, Chandigarh Act, 1996 (51 of 1996) (for short, the ‘Act’) provides for grant of (i) the degree, diploma and other academic distinctions and titles by the Institute; (ii) the professorships, readerships, lecturership and other posts which may be instituted and persons who may be appointed to such professorships, readerships, lecturerships and other posts.

4. Rule 7 of the PGIMER, Chandigarh Rules, 1967 (for short, the ‘Rules), as amended from time to time, envisage (i) creation of posts, their classification into grades and specification of their designations provided that no post above the Associate Professor level shall be created except with the prior approval of the Central Government; (ii) determination of method of recruitment, the age limit, educational qualifications and other matters relating to the appointment to various posts in the Institute, in the manner provided for by the Regulations. Regulation 23 of the 1967 Regulations, as amended from time to time, provides that all matters relating to the administration of the academic affairs of the Institute are required to

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1997 Supreme(SC) 805

Cases Referred (16)