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1972 DIGILAW 14 (KAR)

H. F. S. KNIGHT v. STATE OF MYSORE

1972-01-25

MALIMATH, NARAYANA PAI

body1972
NARAYANA PAI, C. J. ( 1 ) THESE ten cases raise the same questions. Hence the learned Counsel have argued in detail WP. No. 1726 of 1971 as it covers the entire controversy. Consideration of the arguments addressed therein and the disposal of WP. No. 1726 of 1971 will therefore dispose of all the ten cases. ( 2 ) IN 1966 there were promulgated the rules called the Mvsore recruitment cf Gazetted Probationers (Class I and II Posts Appointment by Competitive Examination) Rules, 1966, hereinaftee referred to as the gazetted Probationers Rules. Tn 1969, with a view to provide employment opportunities to the Military Personnel who had taken part in the wars on the borders of India, certain amendments were made to the Gazetted probations Rules. The most material amendment was the one made in respect of Rule 6. The said rule as amended read as follows:" 6. Qualification of candidates: No person shall be eligible for recruitment under these rules unless, (i) he is holder of a degree of any University established by law in India or any equivalent qualification; (ii) he is a Government servant or has served as an Emergency commissioned Officer or Short Service Commissioned Officer In the armed Force in the Union. (iii) Provided that the number of Government servants recruited shall not exceed fifty percent of the available vacancies determined under sub-rule (3) of Rule 3. " ( 3 ) THIS amendment was to come into force on 10th December 1969 and remain in force for a period of one year, i. e. , upto 9th December 1970. ( 4 ) PURSUANT to the rules as amended, a combined competitive examination for recruitment to both Class I and Class II posts of Gazetted probationers was held in September 1970. The results of the competitive examination were published in the Mysore Gazette dt. 10th December 1970, i. e. , one day after the expiry of the period of currency of the amendment. Hence, on 10th June 1971. the Governor of Mysore promulgated under the proviso to Art. 309 of the Constitution, rules called the Mysore recruitment of Gazetted Probationers (Class I and II Posts) (Special) rules. 1971. The effect of these Rules was to enable the appointment of persons selected by the Public Service Commission as stated above. Hence, on 10th June 1971. the Governor of Mysore promulgated under the proviso to Art. 309 of the Constitution, rules called the Mysore recruitment of Gazetted Probationers (Class I and II Posts) (Special) rules. 1971. The effect of these Rules was to enable the appointment of persons selected by the Public Service Commission as stated above. ther matter dealt with in the said Rules was the reservation of posts or scheduled Tribes and Castes and Backward Classes. On 6th Sentember 1969. the State Government had published a certain order dealing with the said matter in which the vacancies were divided into what are popularly known as cycles and the vacancies so categorised were expressly declared as capable of being filled bv reservations or otherwise. It was later discovered that the operation of the said order might be in contravention of the ruling of the Suprcme Court reported in Devadasan v. Union of India, AIR. 1964 SC. 179,. Therefore the order of 6th september 1969 was modified by a fresh order dt. 17th May 1971. The Special Rules of 1971 mentioned above provided that the appointment of persons from out of those selected by the Public Service Commission should be subiect to the reservations in favour of Scheduled Tribes Scheduled Castes and Backward classes, as indicated by the order of 17th May 1971. ( 5 ) SUBSEQUENTLY, the list of persons selected for appointment was published in the Mysore Gazette dt. 1st July 1971 by means of a Notification dt. 28th June 1971. ( 6 ) IN these cases we are concerned with the list of persons selected for appointment to Class II posts, of whom there are 35 Government servants and 27 Ex-Military Personnel. Out of 35 Government servants 2 belong to the Scheduled Tribes, 10 to the Scheduled Castes and 21 to backward Classes, making a total of 33 persons who have come in by reason of the reservations made in their favour. ( 7 ) ACCORDING to the order of the State Government bearing No. GAD 177 SRR 62 dt/16th September 1963, 30 per cent of the posts to be filled up by direct recruitment are reserved to candidates belonging to Backward classes, 15 percent to those belonging to Scheduled Castes and 3 percent to those belonging to Scheduled Tribes. ( 7 ) ACCORDING to the order of the State Government bearing No. GAD 177 SRR 62 dt/16th September 1963, 30 per cent of the posts to be filled up by direct recruitment are reserved to candidates belonging to Backward classes, 15 percent to those belonging to Scheduled Castes and 3 percent to those belonging to Scheduled Tribes. The same order also sets out the criteria for the determination of Backward Classes for purposes of article 16 (4) of the Constitution. ( 8 ) THE same criteria and the same extent of reservations are directed to be continued by Order No. GAD 42 SRR 69-1 dt. 6th September 1969, later modified by Order No. GAD 35 SRR-71 dt. l7th May 1971. ( 9 ) THE petitioners, who impugn the selection, do not question the validity of either Clause (ii) or Clause (iii) of Rule 6 of the Gazetted Probationers rules. The only points raised to invalidate the selection are: (1) that the determination of Backward Classes in the order dt. 6th september 1969 is unconstitutional and (2) that, in acutal event, the reservations have exceeded 50 percent of the posts available to Government servants and that therefore, the reservations are so excessive as to bring about a flagrant violation of Art. 14 of the Constitution. ( 10 ) THE first point is concluded against the petitioners by our decision in WP. 3591 of 1970 and connected cases, rendered on the 6th of December 1971. in which we upheld the validity of the previous Government order of 16th September 1963. Hence, this point was not argued at length in view of the previous decision. Mr. Rama Jois, however, added that two further points arise for consideration in connection with the present order of 6th September 1969. which did not arise in connection with the order considered in the previous cases. Firstly, he stated that the present order does not contain even a statement that the Backward Classes are not adequately represented in the services of the Government and secondly, that there is no assessment of improvement in the position in the matter of such representation since the date of the previous order. ( 11 ) WE do not find any substance in the said further contentions. ( 11 ) WE do not find any substance in the said further contentions. The reasoning in support of the validity of the previous order will, in our opinion, apply equally to the present order, and the direction of the government in the present order that the extent of the reservations shall continue to be the same necessarily implies that the inadequacy of representation last noticed continues to exist. ( 12 ) THE first contention is therefore rejected. ( 13 ) THE argument of excessive reservation resulting in violation of Art. 14 of the Constitution is based, so far as legal position is concerned, on the observations of the Supreme Court contained in its judgment in the case of Balaji v. State of Mysore, AIR. 1963 SC. 649and so far as facts are concerned on the circumstance that out of 35 posts in respect of which Government servants have been selected for appointment, as many as 33 have gone in favour of those who come in by way of reservations. ( 14 ) IN Balaji's case (2) the Supreme Court observed that though the extent of the reservations must in the last analysis be left to the wisdom of the State Governments, a good working rule would be to hold that a reservation below 50 percent may not be open to challenge. ( 15 ) MR. Rama Joi's argument is that here are cases in which reservation has been made far in excess of 50 percent so far as 35 posts available for Government servants are concerned. The percentages of reservation have been fixed on the footing that 70 posts have to be filled and that they constitute a unit for purposes of reservation under the relevant order of the State Government. It is not disputtd that if 70 can be properly taken as the unit or basis for determining the extent of reservation, there is no contravention of what may be regarded as the rule or norm enunciated in Balaji's case (2 ). But Mr. Rama Jois argues that in the special circumstances of these cases that the special rules governing this recruitment, the only proper way of understanding the situation would be to hold that recruitment is being made, not from one source, but from two different sources. But Mr. Rama Jois argues that in the special circumstances of these cases that the special rules governing this recruitment, the only proper way of understanding the situation would be to hold that recruitment is being made, not from one source, but from two different sources. Giving the analogy of reservation of certain number of posts to be filled by promotion and certain others by recruitment, Mr. Rama Jois argues that the law as declared by the Supreme Court requires that in determining the reservation for purposes of direct recruitment, the number of posts filled by promotion and the number among them already occupied by persons coming in by way of reservation cannot be taken into account. ( 16 ) WHAT is stated above is the one and only basis for the argument that there has been in these cases excessive reservation. The question whether the argument can be accepted and given effect to, therefore, depends upon the answer to the question whether it) is correct to say that this is a case of recruitment from two different sources. ( 17 ) FOR the contention that there are two sources, the foundation or the basis is the provision of Rule 5 of the Gazetted Probationers Rules as amended, which we have already copied. Because clause (iii) provides that the number of Government servants recruited shall not exceed 50 percent of the available vacancies, Mr. Rama Jois says that there is implicit in the said provision a reservation of a minimum of 50 percent of the posts in favour of Ex-Military Personnel. According to him, by preventing government servants from getting more than 50 percent posts, the ex-Military Personnel are assured a minimum of 50 percent. ( 18 ) IT appears to us that the argument proceeds upon a fallacy. ( 19 ) IN the first place, the rule itself lays down qualifications for recruitment, one being an educational qualification and the other a service qualification. Secondly, there is no prescription of a fixed proportion of persons to be recruited as between the qualifications laid down. Thirdly, it is not beyond contemplation nor is it an impossibility that all the posts might be filled by Ex-Militarv Personnel which they could do, only on merit, and not on the ground that they belong to a particular qualification. Secondly, there is no prescription of a fixed proportion of persons to be recruited as between the qualifications laid down. Thirdly, it is not beyond contemplation nor is it an impossibility that all the posts might be filled by Ex-Militarv Personnel which they could do, only on merit, and not on the ground that they belong to a particular qualification. ( 20 ) ONE could say that recruitment is made from two sources only when, under all circumstances, the posts to which recruitment is made will be filled partly from one source and partly from another source. If, according to the rules, and as a result of competition on merit, all the posts can be filled by persons answering a particular description, then it is impossible to say that the scheme under the rules is a scheme for recruitment from different sources. ( 21 ) THE possibility of Ex-Military Personnel filling all the posts on the basis of pure merit excludes the idea of recruitment from two sources and emphasises the idea that the sixth Rule does no more than prescribe qualifications. The fact that an upper limit of 50 percent is prescribed for government servants makes no difference to the substance of the matter. ( 22 ) THE second contention therefore also fails. ( 23 ) THERE is, however, one matter on which the petitioners are entitled to succeed. ( 24 ) ALTHOUGH 70 posts were advertised to be filled, only 62 have been actually filled and the remaining 8 kept vacant for the reason that only 27 Ex-Military Personnel could be selected and no more than 35 Government servants could be selected. ( 25 ) IT, therefore, becomes clear that the number or the total number in respect of which reservation could be made in favour of Scheduled tribes, Scheduled Castes and Backward Classes could only be 62 and not 70. ( 26 ) WE therefore direct that the impugned list of persons selected for appointment to Class II posts notified in the Notification dt. 28th June 1971 published in the Mysore Gazette dt. ( 26 ) WE therefore direct that the impugned list of persons selected for appointment to Class II posts notified in the Notification dt. 28th June 1971 published in the Mysore Gazette dt. lst July 1971 shall be redone on the footing that the reservation of 3 percent of the posts in favour of Scheduled tribes, 15 percent in favour of Scheduled Castes and 30 percent in favour of Backward Classes is made on the basis of the total posts being only 62 and that appointments shall be made only of such persons as get included in the list as so recast. ( 27 ) THIS will issue as common order in all the above ten Writ petitions. --- *** --- .