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1998 DIGILAW 320 (KER)

Muraleedharan Nair v. Kerala Agricultural University

1998-07-10

K.S.RADHAKRISHNAN

body1998
Judgment :- K.S. Radhakrishnan, J. Question that has come up for consideration in these cases is as to whether in a single cadre post reservation for Scheduled Caste and Scheduled Tribe community and other backward community can be made either directly or indirectly by applying the rules of rotation. 2. Kerala Agricultural University published a notification dated 5.11.1997 inviting applications from eligible candidates for appointment to the post of Dean in the Faculty of Veterinary and Animal Sciences and also in the Faculty of Agriculture. Notification, inter alia, stated that the post of Deans in the Faculty of Veterinary and Animal Sciences and Faculty of Agriculture will be filled up by candidates belonging to backward community entitled to be appointed following rotation of Rr.14 to 17 of Kerala State and Subordinate Services Rules. 3. Petitioners who were otherwise eligible to apply for the post of Deans did not apply since the post was reserved for candidates belonging to other backward community. According to petitioners, the post of Dean is an officer post, as per S.34 of the Kerala Agricultural University Act. S.34 of the Act states that a Dean shall be a full-time salaried officer of the University and shall hold office for such period as may be prescribed. Government framed statutes in exercise of the powers conferred under S.63 of the Act which provides for method of appointment, period of appointment and powers and duties of the Dean and other salaried officers of the University. Statute 2 prescribes the procedure for appointment. As per statute 2 the Vice Chancellor has to notify the post inviting applications from qualified candidates. The applications so received should be referred to a selection committee comprising of five persons with the Vice-Chancellor himself as the Chairman of the committee. Statute also prescribes the powers and duties of the Dean of Faculty. Teaching is not one of the duties of a Dean and for the purpose of the Act, Dean is not a teacher. S.2(26) of the Agricultural University Act defines the term 'teacher' as follows: "Teacher means the person appointed or recognised by the University for the purpose of imparting instructions or conducting and guiding research or extension education programmes, and includes any other person who may be declared by the statutes to be a teacher". S.2(26) of the Agricultural University Act defines the term 'teacher' as follows: "Teacher means the person appointed or recognised by the University for the purpose of imparting instructions or conducting and guiding research or extension education programmes, and includes any other person who may be declared by the statutes to be a teacher". It is evident from S.34(2) of the Act, Dean is an officer post and therefore, not a teacher's post. S.43 of the Act deals with reservation of appointments. The rules for the reservation of appointments to posts under the Governments in favour of Scheduled Castes, the Scheduled Tribes and other backward classes of citizens shall apply in the case of appointments of teachers and the non-teaching staff of the University. Since the post of Dean is an officer post, as per S.34(2) of the Act, the rules of reservation under S.43 cannot be made applicable. This point has been considered by a Division Bench of this Court in W.A. No. 347 of 1988. The question that came up for consideration before the Division Bench was as to whether the post of Dean is a teaching post or not. After considering all aspects of the matter, the Division Bench concluded that: "One thing that clearly emerges from an examination of these provisions is that there is a basic distinction between ax teacher' and an v officer' of the University, as clearly maintained through out the scheme of the Act. S.24 enumerates the officers of the University, which includes Dean of Facilities. The teachers' are not included in S.24 and are not therefore, regarded as officers of the University. S.42 of the Act again brings out this distinction clearly, as it expressly speaks of appointment of teachers, officers and staff. We have therefore, no hesitation in taking the view that a person who is appointed as an officer under the Act cannot be regarded as a Teacher. So far as the post of Dean of Faculties is concerned, he has been expressly declared as an officer of the University". 4. It is therefore, evident from the above mentioned decision of the Division Bench Deans of Faculty of Veterinary and Animal Sciences and Agriculture, etc. are not teachers within the expression of Teacher in S.2(26) of the Act. Consequently, the rules of reservation as provided in S.43 cannot be made applicable. 5. 4. It is therefore, evident from the above mentioned decision of the Division Bench Deans of Faculty of Veterinary and Animal Sciences and Agriculture, etc. are not teachers within the expression of Teacher in S.2(26) of the Act. Consequently, the rules of reservation as provided in S.43 cannot be made applicable. 5. Rules of reservation in Rr.14 to I7 of the K.S.& S.S.R. can be made applicable only in cases where there are several posts in a class or category. The principle of reservation cannot be made applicable in a single cadre post. Supreme Court in Chakradhar Paswan v. State of Bihar, (1988) 2 SCC 214, has taken the view that there cannot be any reservation in a single cadre post. However, a contrary view was taken in Union of India v. Madhav, (1997) 2 SCC 332 and in State of Bihar v. Bageshwari Prasad (1995) Suppl. (1) SCC 432. Following the said three Judges Bench decision, reservation in a single cadre post has been upheld in Union of India v. Brij Lai Thakur, (1997) 4 SCC 278; and in Post Graduate Institute of Medical Education and Research v. K.L. Narasimhan, (1997) 6 SCC 283. It is also pertinent to note that decision in Chakradhar Paswan's case was later followed in Chetana Dilip Motghare v. Bhide Girls Education Society, (1995) Supp. (1) SCC 157. 6. On a review Petition filed before the Supreme Court, a Constitution Bench of the Supreme Court reviewed its earlier decisions in K.L. Narasimhan's case in Post Graduate Institute of Medical Education and Research v. Faculty Association (1998) 4 SCC 1 Supreme Court held as follows: "In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and percent reservation for the backward classes is not permissible under the constitutional framework. Such total exclusion of general members of the public and percent reservation for the backward classes is not permissible under the constitutional framework. Until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of a single post cadre will only mean that on some occasions there will be complete reservations and the appointment to such posts is kept out of bounds to the members of a large segment of the country who do not belong to any reserved class, but on some other occasions the post will be available for open competition, when in fact, on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society". It is evident from the above mentioned decision of the Constitution Bench, there cannot be any reservation for a single cadre post. 7. In the instant case, the post of Dean is a single cadre post as per S.34 of the Act. This is also held to be not a teacher's post by a Division Bench of this Court. Consequently, rules of reservation under S.43 are not applicable. In view of the above mentioned settled legal position, notification issued by the University reserving the post of Dean in the Faculty of Veterinary and Animal Sciences and Faculty of Agriculture exclusively for the backward community cannot be sustained. Accordingly the said notification would stand quashed. Original Petitions are allowed.