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2015 DIGILAW 1149 (KAR)

Veerayya F. Kotyalmath v. State of Karnataka

2015-10-01

ANAND BYRAREDDY

body2015
ORDER 1. The petitioner is said to have been appointed as a teacher in English in the Shri Jagadguru Annadaneshwari High School, Mundargi, on 2.11.1988. His appointment is said to have been approved by the competent authority, on 19.11.1988, with retrospective effect from 2.11.1988. 2. Respondent no. 4 is said to have been appointed, also as an English teacher on 1.12.1990. It is the petitioner's grievance that Respondent No. 5 has been promoted as English Lecturer, overlooking the petitioner's seniority. It is his further contention that it was a single post and hence there could be no reservation in respect of the same, if that was the ground on which his seniority had been overlooked. The petitioner having unsuccessfully challenged the said order before the statutory authority, has filed this petition. It is contended that the matter stands covered by the decision of the Apex Court in State of Karnataka vs. K. Govindappa and Another, (2009) 1 SCC 1 . 3. It is contended on behalf of the State that the petitioner seeks to proceed on the wrong premise that there is a subject wise reservation of the posts of teachers and lecturers. The vacant post of English lecturer could be filled up by direct recruitment and also by promotion in the concerned Composite Junior College, as per the reservation policy and by following the roster system. The petitioner was certainly senior to Respondent No. 5, but the said Respondent No. 5 belonged to a Scheduled caste and hence, taking into consideration the combined seniority list of Assistant masters in the High School, Respondent No. 5 was senior to the petitioner and hence, her promotion was in accordance with the roster system. As per a Government Order No. ED 173 SLB 80, 15.11.1982, a lecturer's post in an aided Composite College could be filled up to the extent of 50% by direct recruitment and 50% by promotion from the cadre of Assistant masters based on the combined seniority cum merit cum reservation norms applicable for promotion to the post of lecturer. It was not in dispute that the 33point promotional roster prescribed in the Government Order DPAR 22 SBC 79, dated 30.8.1979, the first roster point was reserved for an SC candidate, the second for an ST candidate and the third point for a GM candidate upto the 33rd point roster. It was not in dispute that the 33point promotional roster prescribed in the Government Order DPAR 22 SBC 79, dated 30.8.1979, the first roster point was reserved for an SC candidate, the second for an ST candidate and the third point for a GM candidate upto the 33rd point roster. The promotional vacancies reserved for SC & ST could not be carried forward and the same could be filled by GM candidates in case of non-availability of eligible SC & ST candidates, as per GO No. DPAR 29 SBC 77 27.4.1978. Therefore, the promotion of respondent no. 5 was in order. 4. The learned counsel for Respondent No. 5 would also seek to justify the impugned order. 5. However, it would appear that the decision in Govindappa's case (supra) referred to by the learned counsel for the petitioner squarely covers the present case, in favour of the petitioner. Govindappa was a general category candidate who was appointed as a lecturer in a private aided college. The State Government did not approve his appointment on the ground that his appointment was made in violation of rules relating to reservations. It was urged that the post was reserved for an SC candidate and therefore could not be filled up by a general category candidate. In considering the question whether all posts of Lecturers taken together constituted the cadre for purposes of reservation, or whether a solitary post of a lecturer in History, which was apparently not interchangeable with other posts, constituted a separate cadre, the Apex Court held thus:- “20. We have carefully considered the submissions made on behalf of the respective parties and the decisions cited by learned counsel in support thereof. We have carefully considered the submissions made on behalf of the respective parties and the decisions cited by learned counsel in support thereof. In dealing with the issue raised in this appeal, it has to be kept in mind that some of the earlier decisions in Union of India vs. Madhav, (1997) 2 SCC 332 , in Suresh Chandra as J.B. Agarwal (1997) 5 SCC 363 and Post Graduate Institute of Medical Education and Research vs. K.L. Narasimhan, (1997) 6 SCC 283 , in which reservation by rotation even in respect of a single post had been approved, was subsequently overruled in the Constitution Bench decision in the case of Post Graduate Institute of Medical Education and Research vs. Faculty Association, (1998) 4 SCC 1 and it was held that in no case could reservation be made applicable in respect of a single post. The Constitution Bench approved the views expressed in Dr. Chakradhar Paswan vs. State of Bihar, (1988) 2 SCC 214 following those expressed by the earlier Constitution Bench in Arati Ray Choudhary vs. Union of India, (1974) 1 SCC 87 . In view of the above, the only question which we are called upon to consider is whether the High Court was right in treating the post of Lecturer in History in the respondent No. 2 college as a single isolated post forming a separate cadre in itself and not part of the cadre of Lecturers comprising all the different disciplines taught in the college. 22. While there can be no difference of opinion that the expressions cadre, post and service cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter-changeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution. 23. The decision in Dr. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution. 23. The decision in Dr. Chakradhar Paswan case (supra), which has been subsequently approved by the Constitution Bench in Post Graduate Institute of Medical Education & Research case (supra) makes it clear that isolated and separate posts can exist within a cadre and in case of such posts, if there was only one post, the same could not be set apart for a reserved candidate. 24. In our view, the present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High Court in the facts of this case. As indicated by the High Court, each discipline which consisted of a single post will have to be dealt with as a separate cadre for the said discipline and in view of the settled law that there can be no reservation in respect of a single post, the appointment of respondent No. 1 cannot be faulted. This is particularly so having regard to the fact that the several disciplines are confined to one College alone. That is what distinguishes the facts of this case from those of Arati Ray Choudhary's case (supra) in which the rule of rotation could be applied on account of the fact that two posts of Headmistress were available in two colleges run by the same management. Moreover, in Dr. Chakradhar Paswan case (supra) on which reliance was placed by the High Court it was noticed that while upholding the rule of rotation the Constitution Bench in Arati Ray Choudhary's case (supra) did not support reservation in a single cadre post.” 6. In the result the writ petition is allowed. Annexure-L, Annexure-F, Annexure-G and Annexure-C are quashed. The respondent nos. 1 to 4, are directed to consider the case of the petitioner for promotion to the post of English Lecturer in the Shri Jagadguru Annadaneshwari College and extend all consequential benefits attached to the post. The respondents shall do so within a period of 6 weeks, from the date of receipt of a copy of this order.