H B SINGH Vs. POST MASTER GENERAL GUNTUR

JUDGEMENT

(1.) A contention is raised by Mr. D.V. Reddi Pantulu in this writ petition that what can be reserved under Art. 16(4) of the Constitution of India is only the 'Posts', and not 'vacancies' and, therefore, where there is only one post, the rule of reservation cannot be applied thereto.

(2.) The petitioner is a member of the ministerial service in the office of the Post-Master General, Andnra Pradesh, Hyderabad. There is only one post of Head Assistant (Postal) in the said unit. The petitioner says that he is the senior-most LSC clerk in the unit and that, in fact, he has been officiating in the said post of Head Assistant (Postal). According to him, promotion to the said post is on the basis of seniority-cum-fitness. The petitioner apprehends that though be is the senior-most LSC clerk fit for promotion to the said post, he is being ignored and a member of scbeduled-caste, who ts far junior to him, is being promoted thereto, applying the rule of reservation contained in Memorandum No. 1/9/74-Estt. (SCT). dated 29-4-1975, issued by the Cabinet Secretariat, Department of Personnel and Administrative Reforms. The petitioner contained that the said Memorandum, in so far as it provides for reservation of vacancies, even in case of one post, is inconsistent with Art. 16(4) and further that, such a reservation violates clause 4 of Article 16.

(3.) The aforesaid Memorandum dated 29 4-1975 was issued in the light of the decision of the Supreme Court in Arati Ray Choudhary vs. Union of lndia. It would be appropriate to notice the provisions of the said Memorandum. The Memorandum, in the first instance, refers to certain earlier orders which provide that, if there be only one vacancy in any recruitment year, it should be treated as unreserved, irrespective of its falling at a reserved point. It was noticed that the said provision was resulting in a situation whereby, in small cadres where recruitment is occasional and generally not more than one vacancy arises at a time, the members of Scheduled-Castes and Scheduled-Tribes were unable to get any benefit out of the reservation order. It is then stated that the matter has been , considered in the light of the aforementioned Supreme Court decision and it has been decided, in partial modification of the earlier orders, that "while in cases where only one vacancy occurs in the initial recruitment year and the corresponding roster point happens to be for a Scheduled Caste or Schedule Tribe, it should be treated as un-reserved and tilled accordingly, the reservation carried forward to subsequent three recruitment years as hitherto; in the subsequent recruitment years, even if there is only one vacancy it should be treated as 'reserved' against the carried forward reservation from the initial recruitment year, and a Scheduled Caste, Scheduled Tribe candidate if available, should be appointed in that vacancy, although it may happen to be the only vacancy in that recruitment year(s)". The, said Memorandum cancels the instructions contained in the earlier office Memorandum dated 11-6-1974, which stated that a recruitment year during which only a single vacancy arises and hence gets treated as un-reserved need not be counted as an effective year. Reference is then made to another earlier Memorandum dated 3-2-1973, and it is affirmed that the ordeu contained therein shall continue to apply in the case of promotions to the posts mentioned thereinthe effect being that the reservation carried forward on account of there being only one vacancy during the initial year of promotion, should be adjusted by treating the vacancy arising in the subsequent year (s) as reserved, even though there might be only one single vacancy in the subsequent year (s). According to the counter-affidavit, it is perfectly legitimate for the Government 10 reserve the vacancies under Art. 16 (4) and that, reservation can be applied in the case of a single post only by following the roster system with places reserved tor backward class of citizens. It is averred that the aforementioned decision oi the Supreme Courtjfully warrants the said view and the. impugned Memorandum. So far as the factual situation is concerned, it is stated that after t'ae issuance of the said Memorandum, a vacancy had arisen in the post of Head Assistant (Postal) which, according to the roster, had to be filled in by a member of the Scheduled Caste; but since it was a single post, the same was treated as unreserved, in accordance with the said Memorandum and it was filled in by a person not belonging to Scheduled Castes, but wnen the second vacancy arose, it was sough; to be tilled in by a member of the Scheduled Caste, as directed by the said Memorandum. For the above reasons, it is submitted, the petitioner has no valid grievance in the matter. Clauses (1) and (4) of Art. 16 of the Constitution, read as follows: