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1996 DIGILAW 485 (KER)

K. Rajamohan v. Kerala Agrl University

1996-11-14

C.S.RAJAN

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JUDGMENT C.S. Rajan, J. 1. The first respondent published Ext. P5 notification for recruitment to the post of Director of Extension Education. The notification contains the details regarding scale of pay, essential qualifications, academic attainments, experience etc. It was also notified that reservation of appointments will be as per S.43 of the Kerala Agricultural University Act 1971. According to the petitioner the above post must be filled up from a candidate belonging to the backward community. S.43 of the Kerala Agricultural University Act enjoins that R.14 to 17 of the General Rules of the Kerala State and Subordinate Service Rules will apply to the appointments in the Agricultural University. Therefore, according to the petitioner, there is only one post of Director of Extension Education. When a vacancy arose in 1995, the above vacancy was filled up by a general candidate from the forward community. Therefore the next vacancy which arose in the post has necessarily to be filled up by a candidate from the backward community following the rules regarding reservation. 2. A statement has been filed on behalf of the University. According to the University, there is only a single post of Director of Extension Education and therefore the rules regarding communal rotation cannot be followed in respect of a single post. Reliance was placed by Sri. Haridas, learned standing counsel for the University on the decision of the Supreme Court reported in Chakradhar v. State of Bihar ( AIR 1988 SC 959 ). In the above case the Supreme Court was considering the application of the rules of reservation with reference to one post in the cadre. The learned counsel relied on the following observation of the Supreme Court in the above ruling: "It is quite clear after the decision in Devadasan's case that no reservation could be made under Art.16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Art.16(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Art.16(4) pre supposes the availability of atleast more than one post in that cadre. 3. On the other hand Sri. A reservation which would come under Art.16(4) pre supposes the availability of atleast more than one post in that cadre. 3. On the other hand Sri. N. N. Sugunapalan, learned counsel for the petitioner brought to my notice a subsequent ruling of the Supreme Court reported in State of Bihar and Ors. v. Bageshwari Prasad and Anr, (1995 Supp. (1) SCC 432). In the above ruling the Supreme Court took a slightly different view with regard to the filling up of a single post in a cadre. There may be cases where vacancies will arise in a single post in a cadre. Every time a vacancy may be considered as a single vacancy and that may go to a general candidate. Thus for all times to come, all the vacancies arising in a single post can be filled up only by appointing general candidates. That will clearly defeat the very purpose of the policy of reservation. The ruling of the Supreme Court in Paswan's case ( AIR 1988 SC 959 ) was based on the fact that if there is only one post of Director, that must be filled up by appointing a general candidate. If it is reserved for appointment from the candidates belonging to backward classes or scheduled caste, then that will be violative of equality of opportunity and exceeding the 50% limit prescribed in Paswan's case. But if vacancies are arising in the same post successively, then it is always scope for applying the communal rotation as enjoined in the rules. As happened in this case, a vacancy in the post of Director of Extension Education arose in 1995. Considering the fact that there is only a single vacancy/post, the above vacancy was filled up by a general candidate. He retired. Thereafter the present vacancy arose in 1996. Considering again the theory of a single post, the University is of the view that the same must be filled up by a general candidate. If this process goes on, there may not be any reservation for the successive vacancies arising in a single post. I do not think that is the reasoning of the Supreme Court in Paswan's case ( AIR 1988 SC 959 ). I am fortified in taking the above view on the basis of the subsequent Supreme Court ruling relied on by the learned counsel for the petitioner by which Paswan's case was distinguished. I do not think that is the reasoning of the Supreme Court in Paswan's case ( AIR 1988 SC 959 ). I am fortified in taking the above view on the basis of the subsequent Supreme Court ruling relied on by the learned counsel for the petitioner by which Paswan's case was distinguished. The following observation of the Supreme Court is relevant in this contest: "The ratio does not preclude the power of the Government to fuse all posts of equal scale of pay for applying rule of reservation under Art.16(1) and 16(4) or successive vacancies arising in single post. Therefore, the general candidates, when were promoted to the post of Office Superintendent, the second vacancy which ought to have been reserved for Scheduled Castes and fourth for Scheduled Tribes, have been filled by the general candidates since Scheduled Castes and Scheduled Tribes were not, then available. When sixth vacancy had arisen the claim of the reserved candidate was available and the authorities are enjoined to consider the claim of the reserved candidate. The High Court was clearly in error in relying the ratio in Paswan case which stood entirely on a different situation to hold that the post cannot be reserved". 4. Therefore the stand taken by the University in the statement that the vacancy now notified as per Ext. P5 is to be filled up not by a reserved candidate but by a general candidate is erroneous. Under these circumstances the first respondent is directed to issue a fresh notification stating clearly that the vacancy notified for appointment is to he filled up by candidates belonging to backward community entitled to be appointed following the communal rotation contained in R.14 to 17 of the General Rules of the KS & SSR. The first respondent is directed to take steps to issue revised notification in accordance with the above direction within one month from the date of receipt of a copy of this judgment. The original petition is allowed as indicated above.