SATHI Vs. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY

JUDGEMENT

(1.) THE petitioner is an Assistant Executive Engineer working in the Engineering Department of the 1st respondent University, viz. , the cochin University Science & Technology, Kochi . THE post of Assistant Executive engineer is an isolated post having no promotional avenue. THE 1st respondent as per Ext. P1 notification dated 27. 8. 1998 invited applications for appointment to the post of University Engineer and Technical Officer (Executive engineer ). Pursuant to Ext. P1 application, the petitioner applied for appointment to the post of Technical Officer for which an interview was conducted on 27. 11. 1998 on which date the petitioner came to know that the post of Technical Officer is a reserved one. Accordingly, the very next day she submitted Ext. P2 representation to the 1st respondent University pointing out the illegality of making any reservation to the post of Technical Officer and requesting them to make appointment to the cadre of Technical Officer on the basis of merit. It was also submitted by her that there is no avenue of promotion from the post of Assistant Executive Engineer which she presently holds and therefore the appointment to the post of Technical Officer should have been made by promotion from among the qualified Assistant Executive engineers. Since Ext. P2 did not elicit any response and apprehending that her request will not be acceded to she moved this Court with the present Writ petition seeking to declare that Ext. P1 notification to the extent it provides that the appointments will be subject to the rules of communal reservation and rotation as provided for in S. 7 (2) of the Cochin University of Science & technology Act, 1986, for short 'the Act', collectively comprising each category illegal and for the issuance of a writ of mandamus commanding the 1st respondent University to make appointments to the category of the Technical officer (Executive Engineer) on the basis of merit without applying any rules of reservation and for other incidental reliefs.

(2.) THE 1st respondent University filed a statement contending, inter-alia: that the post of Technical Officer is not a single cadre post, whereas it is a post classified in the category of Class I officers, if the post of Technical Officer is considered as a single cadre post, that will deprive the benefit of reservation contemplated by the Act and its First Statute, the petitioner having participated in the selection process is estopped from challenging the mode of recruitment contemplated by Ext. P1 pursuant to which the selection was made, that there is express waiver of the petitioner's right to challenge the validity of Ext. P1 notification and since the petitioner has failed to challenge the constitutional validity of S. 7 (2) of the act has forfeited her right to get any relief in the Original Petition. Later, the University has filed a counter affidavit reiterating its contention in the earlier statement and adding further in paragraph 8 that "one P. Ajithkumar was ranked below the petitioner has joined duty on the forenoon of 2. 1. 1999 since the Rule of Reservation was applied and his appointment is made subject to the result of this Writ Petition". THE petitioner has filed a reply affidavit stating that by reserving the post of Technical Officer, 100% reservation in respect of that post was made, that in Ext. P1 notification the post of Technical Officer was not shown as reserved for any particular class or persons which is contrary to the earlier practice as borne out by Exts. P3. and p4, that the possibility of the post of Executive Engineer being reserved came to her knowledge only when she participated in the interview on 27. 11. 1998, there is no estoppel against statute and therefore the petitioner is well justified in challenging Ext. P1 notification and S. 7 (2) of the Act only makes the rule for reservation applicable, and the unconstitutionality is in implementing the reservation contrary to law declared by the Supreme Court which is binding on the 1st respondent University. THE aforesaid Ajithkumar got himself impleaded in the Writ Petition as additional 2nd respondent by virtue of order in C. M. P. No. 44173 of 1998. A counter affidavit has been filed by him adopting the contentions of the University and further stating that he has "no lien in any earlier department and under these circumstances I may be protected in the present post. "

(3.) CONSIDERING the conflicting decisions and having regard to the review petition filed in P. O. Medical Institute case, the question whether in a single cadre post reservation for the backward classes can be made either directly or by rotation of Roster point was referred to a constitution Bench, The Constitution Bench in the decision in P. O. Institute of medical Education & Research v. Faculty Association (AIR 1998 SC 1767)approved the decision in Paswan's case and held that 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 device of rotation of Roster in a single cadre post is bound 4o create 100% reservation of such posts whenever such reservation is to be implemented. There can be no doubt that the expression "by whatever means" takes within its sweep the concept of grouping together also. The Supreme Court in P. G. Institute of Medical education & Research case noted supra (AIR 1998 SC 1767) took note of the fact that in a single cadre post, reservation at any point of time is bound to bring about a situation where such 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 and such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional frame work. As already noticed it was held that 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 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 Court sounded a word of caution when it observed that it cannot, however, be lost sight of the fact that in the anxiety for reservation of the backward classes, a situation should not be created by which the chance of appointment is completely taken away so far as the members of other segments of the society are concerned by making such single post cent percent reserved for the reserved categories to the exclusion of other members of the community even when such members are senior in service and is otherwise more meritorious. The Court reasoned that Arts. 14,15 and 16 including arts. 16 (4),16 (4a) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. The Court pointed out that Art. 15 (4) is an enabling provision like Art. 16 (4) and the reservation under either provision should not exceed legitimate limits, and in making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of citizens. The court further held that the special provision under Art. 15 (4) must, therefore, strike a balance between several relevant considerations and proceed objectively reconciling the doctrine of equality of opportunity in clause (1)of Art, 16 in favour of reservation for backward classes under clause (4) of art. 16 in such a manner that he latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality. Regarding the applicability of Arthi Ray Ckaudhary's case the Supreme Court set at rest all controversy and confusion in paragraph 23 of the judgment by holding as follows: "it has not been held in Arthi Ray Chaudhary's case. (AIR 1974 SC 532) that for a single post there can be a reservation for Scheduled castes, Scheduled Tribes or other Back ward Classes. What has been held in arthi Ray Chaudhary's case is that when there was a vacancy at Adra, according to the Model Roster, such vacancy was a reserved point and, therefore, the other vacancy was strictly a reserved vacancy but there being only one vacancy in that particular year of recruitment, such vacancy had to be treated as unreserved and, therefore, appointment was given to Smt. Biswas, who was not a reserved candidate. Therefore, it had to be compensated by carrying forward the reservation in two subsequent recruitment years when the vacancy in Kharagpur in the financial year 1968-69 a rose w. e. f. December31,1968. " In the light of the aforesaid discussion and the law laid down by the Hon'ble Supreme Court in clear, categoric and unmistakable terms we have no hesitation in holding that there cannot be any reservation to a single cadre post.