BHAGAT RAM Vs. G S GILL

JUDGEMENT

(1.) This judgment will dispose of both the Letters Patent Appeal Nos. 287 and 351 of 1981 arising out of the same judgment of the learned Single Judge. The facts relevant to dispose of these appeals may be noticed.

(2.) Shri G.S. Gill, writ petitioner (now respondent) was working as a Junior Technical Assistant in the Department of Industries of the State of Punjab. He made a grievance that since there were only two posts of Assistant Superintendent, Quality Marking Centre (Textile) and one of the posts was already being manned by one Chanan Singh, belonging to the Scheduled Castes category, the other post could not have been reserved for the members of Scheduled Castes as had been done by the State Government. This should have been filled from the general category. His writ petition was allowed by the learned Single Judge on January 7, 1981 mainly relying on a Division Bench judgment of this Court in Dr. Mrs. Parminder Kaur V. The State of Punjab and others,1976 1 SLR 502. According to the learned Single Judge, in view of the aforesaid Division Bench judgment of this Court and there being no dispute on facts that during the relevant year only one vacancy arose, the same could not have been reserved as it would have amounted to 100% reservation. Aggrieved by the said judgment, the State of Punjab as well as Shri Bhagat Ram, who was respondent in the writ petition and belongs to the Schedule Castes category and was eligible for appointment as Assistant Superintendent, Quality Marking Centre (Textile), if the post was reserved for scheduled castes, filed the two aforesaid Letters Patent Appeals. The Bench hearing the Letters Patent Appeals did not feel the necessity to go into the question whether a single vacancy which arose in a particular year could be reserved for the members of schedule castes or not inasmuch as the State Government in its affidavit dated November 13, 1980, filed before the learned Single Judge, had admitted that there were only two post of Assistant Superintendent Quality Marking Centre (Textile) and 50% of these posts were to be filled up by direct recruitment and 50% by promotion from amongst the Junior Technical Assistants of the Taxtile trade. The Bench hearing the Letters Patent Appeals was of the view that since out of the two posts, one had to be always filled by direct recruitment and one by promotion and separate running rosters had to be kept showing the reserved points for the posts to be filled by direct recruitment and by promotion, the question of reservation under the circumstances did not arise at all as it was a case of single post cadre as one post had to be filled by promotion and one by direct recruitment. The reliance was placed on the judgment of the Supreme Court in Dr. Chakardhar Paswan V. State of Bihar and others, 1988 AIR(SC) 959 which laid down that there can be no reservation for recruitment at initial stage or for filling up future vacancy in respect of the post where there is only one post in the cadre. Since in the present case it was a single post cadre inasmuch as against the post to be filled by promotion, no direct recruitment could be done and vice versa it was held that there was no question of any reservation. The Letters Patent Appeals were dismissed. The State of Punjab and Shri Bhagat Ram took the matter before the Apex Court. The Apex Court was of the view that the Division Bench hearing the Letters Patent Appeal did not consider the impact of the circular issued by the State Government, dated October 11, 1974 and further the learned Single Judge had observed that if he had not been bound by the Division Bench judgment in Parminder Kaur's case , he may not have interfered with the impugned order reserving the post for the scheduled castes category, even though it was a single vacancy. In these circumstances, the judgment of the Letters Patent Appeal was set aside and the case was remanded for redeciding the mater in accordance with law. Before advertising to the arguments of the learned counsel for the parties, we may refer to the instructions, dated October 11, 1974, which read as under :-

(3.) These instructions were issued in view of the judgment of the Supreme Court in Arati Ray Choudhary V. Union of India, 1974 AIR(SC) 532 According to these instructions, it was laid down that in a cadre of less than five posts, if there is only open vacancy, it should be treated as unreserved despite the fact that it may fall at reserved point and if on this account, the reserved post is treated as unreserved, the reservation is to be carried forward to the subsequent two recruitment years. In view of the judgment of the Supreme Court in Arati Ray Choudhary's case , it was decided that the reservation with respect to the solitary vacancy so un-reserved and carried forward must be given effect to on the occasion next arising when a solitary vacancy occurs in the cadre; meaning thereby that if initially a solitary vacancy arises and it is meant for the reserved category, it need not be given to the reserved category and be treated as unreserved as it might amount to 100% reservation. Such vacancy has to be carried forward and if subsequently again only one vacancy arises, it will be given to the reserved category irrespective of the fact that it amounts to 100% reservation. In other words, the carried forward vacancy can be given to the reserved category even if a solitary vacancy arises. In Parminder Kaur's case , the Division Bench was of the view that a solitary vacancy which may arise in a cadre of less than five cannot be treated reserved at all. It had not considered the impact of the aforesaid instructions regarding giving of the carried forward vacancy to a reserved category even though a single vacancy arises in a subsequent year.