1. Reservation for Scheduled Castes and Scheduled Tribes in the context of retrenchment of temporary employees under Article 309 of the Constitution. (Para 1 , 2 )
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1994 Supreme(SC) 1170
SUPREME COURT OF INDIA
BEFORE KULDIP SINGH AND B.L. HANSARJA, JJ.
GOVERNMENT OF A.P. AND OTHERS
Versus
BALA MUSALAIAH AND OTHERS.
Civil Appeal No. 797 of 1977,{From the Judgment and Order dated 22-7-1976 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 644 of 1975}
Decided on 23-11-1994
Advocates appeared:
A. Raghuvir, Senior Advocate (G. Prabhakar and T.V.S.N. Chad, Advocates, with him) for the Appellants;
S. Muralidhar, Ms Shomana Khanna and Ms Punam Kumari, Advocates, for the Respondents.
Important Points
The Court held that reservation in retrenchment cannot be arbitrary or violate Articles 14 and 16(1). Retrenching general category approved probationers before temporary SC/ST employees is invalid. Instead, retrenchment should follow the appointment roster (recycled roster) to maintain the reserved category's representation percentage in the service.
Subject
Employment Law - Reservation in Employment
Act Referred
Headnote
Constitution of India, 1950 - Article 16(1) - Civil Appeal - Demand of Reservation - Termination of Reserved Category Candidates - Order Retrenchment of Temporary Employees - Claims of different communities and has sought to introduce by back door an unlimited form of carry forward rule which it regarded as invalid because of what was held in Court further stated that GO does not merely postpone retrenchment of temporary employees belonging to Scheduled Castes and Scheduled Tribes to temporary employees of other communities, but postpones entrenchment of Scheduled Castes and Scheduled Tribes employees to probationers also and, what is worse, even approved probationers of other communities. Because of all these the GO was held to be violative of Article 16(1) of Constitution and was, declared as invalid - State of Andhra Pradesh has preferred this appeal by special leave – Held, Reservation in appointment, to effectuate which roster is prepared, makes an incumbent of the reserved category senior to the general category incumbent, as, though lower in merit the former gets appointed earlier as per the roster point -This in itself protects to some extent the interest of listed category candidates, as under the normal rule, the retrenchment starts from the junior most employee and it travels back step by step - GO as framed is not sustainable - It would, be open to State Government to recast the GO in the light of what has been stated by us, if deemed necessary by it. As, however, GO has been in operation for about three decades by now, we do not propose to upset the retrenchments which have already taken place pursuant to what has been provided in GO - GO would, therefore, become non-operative from today - Appeal dismissed
Legal Category Hierarchy
Advocates:
A.Raghuvir, G.Prabhakar, PUNAM KUMARI, S.MURALIDHARAN, Shomona Khanna, T.V.S.N.Chari
A.Raghuvir, G.Prabhakar, PUNAM KUMARI, S.MURALIDHARAN, Shomona Khanna, T.V.S.N.Chari
Table of Contents
2. Challenge to the validity of a government order prioritizing the retrenchment of general category employees over reserved category employees, regardless of probation status. (Para 3 , 6 )
3. Prioritizing temporary reserved category employees over approved probationers of the general category is arbitrary and violates the equality principles of Article 14 and Article 16(1). (Para 7 )
4. Retrenchment should follow the appointment roster operated backwards, ensuring reserved category candidates are retrenched only when the reserved roster point is reached. (Para 8 )
5. Appeal dismissed; government order declared non-operative prospectively, allowing the State to recast the order in accordance with the court's observations. (Para 10 , 11 )
6. Can reservation be applied to the retrenchment of employees?
Yes, but it must be reasonable. A system that retrenches approved probationers of the general category before temporary employees of reserved categories is arbitrary and violates Article 16(1) and Article 14. (Para 7 )
7. What is the constitutionally acceptable method for applying reservation during retrenchment?
The court suggests using a recycled roster, where the appointment roster is operated backwards. A reserved category candidate is retrenched only when the reserved point on the recycled roster is reached, thereby maintaining the percentage of representation in the service. (Para 8 )
8. How does the appointment roster inherently protect reserved category candidates during retrenchment?
Because the roster often allows reserved category candidates to be appointed earlier than general category candidates of higher merit, they often possess greater seniority, which protects them under the normal last-in-first-out retrenchment rule. (Para 9 )
B.L. HANSARIA, J.- The present is an unusual case despite it being related to the usual demand of reservation for Scheduled Castes and Scheduled Tribes. The peculiarity lies in the fact that the demand for reservation herein is not related to appointment, but is relatable to termination.
2. The Government of Andhra Pradesh issued an order (hereinafter referred to as the GO) on 3-8-1967 by which an ad hoc rule was framed in exercise of powers conferred by Article 309 of the Constitution prohibiting termination of reserved category candidates following normal rule applicable in such cases. The GO spells out in what order retrenchment of temporary employees has to take place. The order set out is as below:
"First - Persons, other than those belonging to the Scheduled Castes and the Scheduled Tribes, appointed temporarily, in the order of juniority;
Second - Probationers, other than those belonging to the Scheduled Castes and the Scheduled Tribes, in the order of juniority;
Third - Approved probationers, other than those belonging to the Scheduled Castes and the Scheduled Tribes, appointed temporarily in the order of juniority;
Fourth - Persons belonging to the Scheduled Castes and the Scheduled Tribes, appointed temporarily in the order of juniority; Fifth - Probationers belonging to the Scheduled Castes, and the Scheduled Tribes, in the order of juniority;
Sixth - Approved probationers belonging to the Scheduled Castes and the Scheduled Tribes, in the order of juniority."
(Explanation not relevant)
3. It came to be assailed before the High Court of Andhra Pradesh to meet its Waterloo. The High Court, after taking note of various decisions of this Court dealing with different facets of reservation, held that the GO did not strike a reasonable balance between the claims of different communities and has sought to introduce by the back door an unlimited form of carry forward rule which it regarded as invalid because of what was held in T. Devadasan v. Union of India{AIR 1964 SC 179}. The Court further stated that the GO does notmerely postpone the retrenchment of temporary employees belonging to the Scheduled Castes and Scheduled Tribes to temporary employees of other communities, but postpones the retrenchment of the Scheduled Castes and Scheduled Tribes employees to probationers also and, what is worse, even approved probationers of other communities. Because of all these the GO was held to be violative of Article 16(1) of the Constitution and was, therefore, declared as invalid. The State of Andhra Pradesh has preferred this appeal by special leave.
4. A nine-Judge Bench of this Court in Indra Sawhney v. Union of India1 (commonly known as Mandal Commission case) reviewed the entire law on reservation; and as such, no effort is necessary on our part to find out the parameters within which reservation has to operate.
5. The GO being of the year 1967 and the law relating to reservation having come to be crystallised by the decision in Indra Sawhney case{1992 Supp (3) SCC 217} delivered in 1992, we stated to Shri Raghubir appearing for the appellants that if the State Government were to undertake passing of fresh GO on the subject keeping in mind the view expressed in Indra Sawhney case{1992 Supp (3) SCC 217}, we could dispose of the appeal by allowing the stay order to continue for a period of three months within which the State could pass fresh GO. For want of instructions, Shri Raghubir could not give the undertaking and so we proceeded to hear the appeal instead adjourning the same as prayed for - the appeal being of the year 1977.
6. The High Court, as already noted, struck down the GO, inter alia, because of what has been stated in Devadasan case1. In view of the judgment of the majority in Indra Sawhney case{1992 Supp (3) SCC 217} Shri Raghubir contends that the judgment of the High Court merits to be set aside. But this is not all that the High Court had said, as would appear from what we have noted above.
7. The first observation we pro
