Bombay High Court
Chakradhar Paswan
Versus
State of Bihar and others
Decided On:

Headnote:Article 16 (4)-Reservation-Not permissible in case of isolated post.

       No reservation could be made under Article 16 (4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Articles 16 (1) and 16 (2) wholly meaningless and illusory. If there is only one post in the cadre, there can be no reservation with the reference to that post either for recruitment at the initial stage or for filing up a future vacancy in respect of that post. A reservation which would come under Article 16 (4) presupposes the availability or at least more than one posts in that cadre.

       “Cadre”- Meaning of.

       The contention of the Council for the appellant suffers from infirmity that it overlooks that though the Directorate of Indigenous Medicines comprises of four posts, namely that of the Director and three Deputy Directors, which are Class I posts, the posts of Director and Deputy Directors do not constitute one cadre. They are members of the same service but do not belong to the same cadre. According to the 50 point roster, if in a particular grade a single post falls vacant, it should in the case of first vacancy, be considered as unreserved i.e. general and on the second occasion when a single post again falls vacancy, the same must be treated as reserved. Admittedly, the post of the Director is the highest post in the Directorate of Indigenous Medicines and is carried in the higher pay scale or grade of Rs. 2225-752675 While the post of the Deputy Directors are carried in the pay scale or grade of Rs 1900-75-2500. In service jurisprudence, the term cadre has definite legal connotation. In the legal sense, the word cadre is not synonymous with service. Fundamental Rule 9 (4) defines the word cadre to mean the strength of a service or part of a service sanctioned as a separate unit. The post of the Director which is the highest post of Deputy Directors are borne in a lower grade or scale and therefore, constitute two distinct cadres or grades.

       It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that he establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform he same duties, carry the same responsibilities or draw the same pay. The conclusion is irresistible that the posts of the director and these of the Deputy Directors constitute different cadres of the service. It is manifest that the post of the Director of Indigenous Medicines, which is the highest post in the Directorate carried on a higher grade or scale. In view of this according to the 50 point roster, if in a particular cadre a single post falls vacant, it should in the case of first vacancy, be considered as general. That being so, the State Government could not have directed reservation of the post of Deputy Director (Homoeopathic) which was the first vacancy in a particular cadre i.e. that of the Deputy Directors, candidates belonging to the Scheduled castes. Such reservation was not in conformity with the principles laid down in the 50 point roster and was impermissible under Article 16 (4) of the Constitution and clearly violative of the guarantee enshrined in Article 16 (1) of equal opportunity to all citizens relating public employment Clause (4) of Article 16 is by way of an exception of the proviso to Article 16 (1). The High Court rightly held that the reservation of the post of Deputy Director (Homeopathic) amounted to 100% reservation which was impermissible under Article 16 (4) as otherwise it would render the guarantee of equal opportunity in the matter of public employment under Article 16 (1) wholly exclusive and meaningless.

       For Citation : 1988 Mah LJ 565 at pp. 574, 575