Reservation policy cannot be applied to a single post as it would mean cent-percent reservation, which is unconstitutional.

S. B. Sinha, G. C. Bharuka, JJ.

1. The petitioner originally prayed for a writ or a direction from this court to promote him to the post of superintendent (Typing) in the Directorate of Industries and pay to him his arrear of salary and other emoluments from the date he has been working against this post since 1-8-1990.

2. The petitioner however, filed an application for amendment of the writ application on 11-5-1992 praying therein to quash the instructions issued by the State of Bihar contained in letter No.20165 dated 8-11-1975 read with letter No.148 dated 2-11-1991 as contained in Annexures-6 and 7 thereto.

3. Bereft of all unnecessary details the fact of the matter lies in a very narrow compass.

4. The petitioner is the senior most man in the cadre of Typists of the Directorate of Industries. He, by reason of the order, was directed to perform the duties of the vacant post of Superintendent, Typing. The said letter is contained in Annexure-1 to the writ application. Pursuant to the said order he joined the said post on 1-8-1990 but he had not been given a regular promotion to the said post. The petitioner filed a representation as also served legal notice which are contained in Annexures-3 series and 4 respectively. In a counter affidavit filed on behalf of the state it has been contended that only the post of Superintendent (Typing) has been created in the department which fell vacant on the retirement of one Shri Raj Behari sinha on 30-11-1985. It has been contended that the vacant post is meant for Scheduled Caste candidate and in support thereof the State has relied upon the circular letter dated 2-11-1991 (Annexure-A) and dated 8-11-1975 (Annexure-B) to the counter affidavit for the purpose of showing that in case there exists one post and although there can be no reservation therefor ; but once a post is held by a general candidate and the said post becomes vacant in future, it would be filled up by the reserved candidate and not by a general one.

5. It is not disputed at the bar that no reservation policy can be enforced when there exists only one post as the same would mean cent-percent reservation. The questions, therefore, which falls for consideration, is whether even 50 point Roster system can be applied in such a case.

6. The question is no longer res Integra. In Dr. Chakradhar Paswan v. State of Bihar and others, reported in 1988 (2) SCC 214, the question as to whether the post of Deputy Director (Homoeopathy) could be treated as a reserved post, the Supreme Court held :-

"another serious infirmity in the argument of the learned counsel for the appellant is that it overlooks the basic principle that if there is only one post in the cadre, there can be no reservation under Article 16 (4) of the Constitution, The whole concept of reservation for application of the 50 Point roster is that there are more than one post, and the reservation as laid down by this court in M. R. Balaji, case can be up to 50 per cent. The government cannot for instance declare, that the post of the director of Indigenous Medicine shall be reserved for the candidates belonging to Scheduled Castes. The Director is a para-medical service with Director in its head and the three deputy Directors belonging to three distinct and separate disciplines viz, Homoeopathic, Unani and Ayurvedic under him. In the para-medical system the three posts of Deputy Directors pertain to three distinct systems and therefore each of them is an isolated post by itself. The same principle should, we think, in the case of the Director, apply. "

It further held :

"it is quite clear after the decision in Devandaran case that no reservation could be made under Article 15 (4) so as to create a monopoly. Otherwise it would render the guarantee of equal opportunity contained in Articles 16 (1) and 15 (2) wholly meaningless and illwory. These principles unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservat