Justice R.M. Sahai [1]
836. The rule (providing for carry forward of unfilled reserved vacancies as modified in 1955) struck down in Devadasan (AIR 1964 Supreme Court 179) read as follows :
“3(a) If a sufficient number of candidate considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made ‘in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a. corresponding addition should be made to the number of reserved vacancies in the second following year.”
837. The facts of the case relevant for our purpose are the following :
(i) Reservation in favour of Scheduled Castes and Scheduled Tribes was 12 1/2% and 5% respectively;
(ii) In 1960, U.P.S.C. issued a notification proposing to hold a limited competitive examination for promotion to the category of Assistant Superintendents in Central Secretariat Services. 48 vacancies were to be filled, out of which 16 were unreserved while 32 were reserved for Scheduled Castes/Scheduled Tribes, because of the operation of the carry forward Rule; 28 vacancies were actually carried forward;
(iii) U.P.S.C. recommended 16 for unreserved and 30 for reserved vacancies – a total of 46;
(iv) the Government however appointed in all 45 persons, out of whom 29 belonged to Scheduled Castes/Scheduled Tribes.
838. The said Rule and the appointments Made on that basis were questioned mainly on the ground that they violated the 50% rule enunciated in Balaji. It was submitted that by virtue of the carry forward Rule, 65% of the vacancies for the year in question came to be reserved for Scheduled Castes/Scheduled Tribes.
839. The majority, speaking through Mudholkar, J. upheld the contention of the petitioners and struck down the Rule purporting to apply the principle of Balaji (AIR 1963 Supreme Court 649). The vice of the Rule was pointed out in the following words :
“In order to appreciate better the import of this rule on recruitment, let us take an illustration. Supposing in two successive years no candidate from amongst the Scheduled Castes and Tribes is found to be qualified for filling any of the reserved posts. Supposing also that in each of those two years the number of vacancies to be filled in a particular service was 100. The reserved vacancies for each of those years would, according to the Government resolution, be 18 for each year.
Now, since these vacancies were not filled in those years a total of 36 vacancies will be carried forward to the third year. Supposing in the third year also the number of vacancies to be filled is 100. Then 18 vacancies out of these will also have to be reserved for members of the Scheduled Castes and Tribes. By operation of the carry forward rule the vacancies to be filled by persons from amongst the Scheduled Castes and Tribes would be 54 as against 46 by persons from amongst the more advanced classes. The reservation would thus be more than 50%.
840. We are of the respectful opinion that on its own reasoning, the decision in so far as it strikes down the Rule is not sustainable. The most that could have been done in that case was to quash the appointments in excess of 50%, inasmuch as, as a matter of fact, more than 50% of the vacancies for the year 1960 came to be reserved by virtue of the said Rule. But it would not be correct to presume that that is the necessary and the only consequence of that rule. Let us take the very illustration given at pp. 691-2, – namely 100 vacancies arising in three successive years and 18% being the reservation quota — and examine.
Take a case, where in the first year, out of 18 reserved vacancies 9 are filled up and 9 are carried forward. Similarly, in the second year again, 9 are filled up and another 9 are carried forward. Result would be that in the third year, 9 + 9 + 18 = 36 (out of a total of 100) would be reserved which would be far less than 50% the rule in Balaji (AIR 1963 Supreme Court 649) is not violated. But by striking down the Rule itself, carrying forward of vacancies even in such a situation has become impermissible, which appears to us indefensible in principle.
We may also point out that the premise made in Balaji and reiterated in Devadasan (AIR 1964 Supreme Court 179), to the effect that clause (4) is an exception to clause (1) is no longer acceptable, having been given up in Thomas (AIR 1976 Supreme Court 490). It is for this reason that in Karamchari Sangh (AIR 1981 Supreme Court 298), Krishna Iyer, J. explained Devadasan in the following words :
“In Devadasan’s case the Court went into the actuals, not into the hypotheticals. This is most important. The Court actually verified the degree of deprivation of the ‘equal opportunity’ right ….What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right….
Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC & ST candidates be actually appointed to substantially more than 50% of the promotional posts. Some excess will not affect as mathematical precision is different in human affairs, but substantial excess will void the selection. Subject to this rider or condition that the ‘carry foward’ rule shall not result, in any given year, in the selection of appointments of SC & ST candidates considerably in excess of 50% we uphold Annexure I”.
841. We are in respectful agreement with the above statement of law. Accordingly, we over-rule the decision in Devadasan (AIR 1964 Supreme Court 179). We have already discussed and explained the 50% rule in paras 93 to 96. The same position would apply in the case of carry forward rule as well. We, however, agree that a year should be taken as the unit or basis. as the case may be, for applying the rule of 50% and not the entire cadre strength.
842. We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50% rule.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448