Holding that when a single post was in the offering reserving it for specified backward classes would amount to hundred percent reservation and thus contrary to the intent of the constitutional framers, the Supreme Court in a recent decision [State of U.P. v. Bharat Singh] dismissed the appeal filed by the Government of Uttar Pradesh challenging the order of the Allahabad High Court. The High Court had set to naught the attempts of the State Government to provide reservation on the post of Principals in aided and affiliated Degree and Post-Graduate institutions.
The Court inter alia declared the legal position on this issue as under;
34. That brings us to the question whether similarity of the terms and conditions of the employees serving in the aided/affiliated colleges and the effect the payment of salary due to such teachers is reimbursed by the State Government would have the effect of creating a cadre of Principals. Our answer is in the negative. The fact that the State Government offers financial aid to the affiliated colleges in terms of payment of salary of those serving such institutions does not in our opinion have any relevance to the question whether the posts of Principals in different colleges under different managements constitute a cadre. Merely because the Government supports the institutions which are in all other respects autonomous in their functioning, and are managed by individual managements cannot by any stretch of reasoning be taken as a circumstance constituting the posts in such colleges into a single cadre. So also the fact that the terms and conditions of service of such teachers serving in different colleges including Principals are similar on account of such colleges being affiliated to the same university and being governed by the same set of Statutes, Rules and Regulations also does not have anything to do with the creation or the existence of a single cadre comprising such posts. There is no gainsaying that such common features do not in any way impinge upon the autonomous character of such institutions nor does payment of salaries and the similarity of conditions of service of the employees provide a test for holding that although serving in different institutions totally independent of each other the Principals appointed in such institution form a common cadre.
xxx
40. We may before referring to the decisions of this Court on the question whether a single post can be reserved, notice the decision of this Court in Balbir Kaur’s case (supra) relied upon by Mr. Patwalia. That was also a case from the State of U.P. It related to appointment of a Principal under the U.P. Secondary Education Services Commission and Selection Boards Act, 1982. One of the questions that fell for consideration was whether the post of Principal in institutions offering secondary education was amenable to reservation having regard to the Reservation Act of 1994 referred above. This Court answered the question in the negative and gave two reasons in support of that conclusion. Firstly, the Court found that Section 10 of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 expressly excluded the post of Principal from the purview of the Reservation Act of the year 1994. Secondly and more importantly the post of Principal in an educational institution being a single post in the cadre such a post was held not amenable to reservation for any such reservation would amount to making a 100% reservation which was found impermissible under Articles 15 and 16 of the Constitution. Relying upon the decision of this Court in Dr. Chakradhar Paswan v. State of Bihar & Ors. (1988) 2 SCC 214 and Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association & Ors. (1998) 4 SCC 1, this Court held that any reservation qua a single post cadre either directly or by the device of rotation of roster was not valid. The Court also held that since the Reservation Act, 1994 did not provide for clubbing of all the educational institutions in the State of U.P. for the purpose of reservation there is no question of clubbing the post of Principals in all the educational institutions for the purpose of applying the principles of reservation under the 1994 Act. The following passage is in this regard apposite:
“it was held that there cannot be any reservation in a single post cadre and the decisions to the contrary, upholding reservation in single post cadre either directly or by device of rotation of roster were not approved. Besides, as noted above, neither the principal Act, nor the Rules made thereunder or the 1994 Act provide for clubbing of all educational institutions in the State of U.P. for the purpose of reservation and, therefore, there is no question of clubbing the post of Principals in all the educational institutions for the purpose of applying the principle of reservation under the 1994 Act.”
xxx
45. The decision of this Court in Indra Sawhney and Ors. v. Union of India and Ors., 1992 Supp.(3) SCC 217, continues to be the locus classicus on the subject of reservation. This Court in that case held that reservation under Articles 14, 15 and 16 must be applied in a manner so as to strike a balance between opportunities for the reserved classes on the one hand and other members of the community on the other. Such reservation cannot exceed 50% in order to be constitutionally valid.
46. In Chakradhan Paswan’s case (supra) this Court relying upon the decision in Arati Ray Choudhury v. Union of India 1974 (1) SCC 87, M.R. Balaji v. State of Mysore AIR 1963 SC 649 and T. Devadasan v. Union of India AIR 1964 SC 179 held that separate posts in different institutions cannot be clubbed together for the purpose of reservation and that reservations may be made only where there are more than one posts. Reservation of only a single post in the cadre would amount to 100% reservation and thereby violate Articles 14(1) and 16(4) of the Constitution. In Bhide Girls Education Society v. Education Officer, Zila Parishad, Nagpur and Ors., 1993 Supp (3) SCC 527 this Court held that a single post of Headmistress of an institution could not be reserved as the same would amount to making a 100% reservation.
47. The controversy was authoritatively set at rest by the Constitution Bench decision of this Court in Post-graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association and Ors. (1998) 4 SCC 1 case (supra) where this Court overruled the decisions of this Court in Union of India and Anr. v. Madhav s/o Gajanan Chaubal and Anr. (1997) 2 SCC 332, Union of India v. Brij Lal Thakur (1997) 4 SCC 278 and State of Bihar v. Bageshwari Prasad 1995 Supp (1) SCC 432 and observed:
“34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent.
35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.”
48. In the light of the above decision, we have no hesitation in holding that the post of principals in each one of the aided/affiliated institution being a single post in the cadre is not amenable to any reservation. Question No.(ii) is accordingly answered in the affirmative.
No comments:
Post a Comment