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2015 DIGILAW 561 (TRI)

Jayasree Paul v. State of Tripura

2015-07-20

S.TALAPATRA

body2015
JUDGMENT : By means of this writ petition, the petitioners have challenged the appointment of the respondent No.5 namely, Dalia Debbarma on promotion to the post of Senior Instructor (Stenography) by the order under No. F.DI/ESTT.IV32/2009/331317 dated 22.02.2010, Annexure-5 to the writ petition. [2] The undisputed fact as emerged from the records is that the petitioner No.1, Smt. Jayasree Paul entered into the service under the respondents No.1 and 2 as the Assistant Instructor (Stenography) on 22.12.1997 and the petitioner No.2, Sri Keshab Chakraborty entered into the service under the respondents No.1 and 2 as the Assistant Instructor (Stenography) on 23.12.1997 whereas the respondent No.5 entered into the service under the respondents No.1 and 2 as the Assistant Instructor (Stenography) 26.12.1997. It is also not in dispute that by the memorandum under No. F.DI/ESTT/II8/2005/59956023 dated 22.04.2006, Annexure-2 to the writ petition, the final seniority list of the Assistant Instructor of various branches has been published by the respondent No.2. By the said memorandum dated 22.04.2006, the draft seniority list as published on 31.03.2006 has been declared final. According to the said seniority list, the seniority positions of the petitioners and the respondent No.5 vis-a-vis the other particulars are as under:- Sl. No. Name of the employee with qualification /Place of posting Date of Birth Date of first entry into Govt. Service/Name of the post Present Post Educational qualification Technical qualification Date of eligibility to have the pay scale of Rs. 4200-8650/- Remarks Name of Post Date of appointment Scale of pay 1 2 3 4 5 6 7 8 9 10 11 NON ENGINEERING GROUP A. ASSTT. INSTRUCTOR (STENOGRAPHY) 1 Smt. Jayasree Paul 1.12.72 22.12.97 Astt. Instructor (Steno) Asstt. Instructor (Steno) 22.12.97 Rs. 3200-6030/- B.A. N.T.C. Steno 22.12.2014 - 2 Sri Keshab Chakraborty 21.1.70 23.12.97 Astt. Instructor (Steno) Asstt. Instructor (Steno) 23.12.97 Rs. 3200-6030/- B.A. N.T.C. Steno 23.12.2014 - 3 Smt. Dalia Debbarma 31.12.71 26.12.97 Astt. Instructor (Steno) Astt. Instructor (Steno) 26.12.97 Rs. 3200-6030/- B.A. N.T.C. Steno 26.12.2014 - [3] It is pertinent to point out that for the different branches and different categories, the seniority position of the persons working under the respondents No.3 and 4 has been shown separately. Thus no ambiguity is left that the petitioner No.1 is the senior most in the grade of Assistant Instructor (Stenography), the petitioner No.2 is in the position No.2, whereas the respondent No.5 is in the position No.3. Thus no ambiguity is left that the petitioner No.1 is the senior most in the grade of Assistant Instructor (Stenography), the petitioner No.2 is in the position No.2, whereas the respondent No.5 is in the position No.3. The respondent No.5 belongs to Scheduled Tribe. The recruitment rules for the post of Senior Instructor in the Industrial Training Institute, the ITI in short, (Nonengineering group) under the Directorate of Tripura Industries and Commerce, Government of Tripura had been published by the Notification under No. DI/ESTT/I20/2002/PartI/10,53362 dated 25.07.2009, Annexure1 to the writ petition. In that recruitment rules, for the Senior Instructors belonging to the various branches their respective qualification for direct recruitment and for promotion has been segmented and shown separately. It would be apparent from that notification that for the post of Senior Instructor (Stenography), the educational and other essential qualifications required for direct recruitments are provided in Rule 7 of the said recruitment rules, which reads as under:- (i) Academic H.S. (+2 Stage) or equivalent examination passed. (ii) Technical Possess NTC in Stenography. (iii) Practical Experience: 3(three) years in case of NTC. [4] It has been provided that the post is non-selection and 80% of the posts shall be filled up by direct recruitment and 20% by promotion, failing which by direct recruitment in terms of Rule 5 & 10 of the said recruitment rules. For purpose of promotion, the age as prescribed for the direct recruitment under Rule 6 is not applicable but for purpose of promotion to the Senior Instructor (Stenography) qualifying service of 10 years is in the grade of Assistant Instructor (Stenography) required under Rule 11 of the said rules. There is no dispute that the petitioners and the respondent No.5 have completed 10 years of qualifying service and they have all the qualifications as required under Rule 10 for promotion to the post of the Senior Instructor (Stenography). The grievance of the petitioners is that from the recruitment rules it transpires that there are 4(four) posts of Senior Instructor (Stenography) though the total number of the posts in the grade of Senior Instructor, I.T.I (Non-Engineering) is 33 plus additional posts as and when created. The grievance of the petitioners is that from the recruitment rules it transpires that there are 4(four) posts of Senior Instructor (Stenography) though the total number of the posts in the grade of Senior Instructor, I.T.I (Non-Engineering) is 33 plus additional posts as and when created. In terms of Rule 10 of the recruitment rules, Annexure1 to the writ petition, 80% posts are to be filled up by direct recruitment and 20% by promotion, failing which, by direct recruitment and hence, out of 4(four) posts 3 (three) posts would be filled up by direct recruitment whereas one post would be left to be filled up by promotion, failing which, by direct recruitment. According to the petitioners, the solitary post for promotion is an isolated and non-selection post. Therefore, the 100 point roster will not apply while making promotion form the eligible persons borne in the grade of Assistant Instructor (Stenography). [5] Mr. C.S. Sinha, learned counsel appearing for the petitioners has contended that the respondents No.1 and 2 have applied the reservation rules after clubbing all categories of Assistant Instructors borne in the various branches. The inspection of 100 point roster was carried on 11.08.2009. From the inspection report it appears that there were 27 vacancies in total (inclusive of direct recruitment and promotion). Out of 27(twenty seven) posts, 24 (twenty four) posts were earmarked for direct recruitment and 3(three) posts were to be filled up by promotion and to be adjusted against the following roster point:- UR01 (R.P. No.32) ST01 (R.P. No.31) SC01 (R.P. No.33) [6] In the process, the respondent No.5 has been appointed as the Senior Instructor (Stenography) on promotion by the order dated 22.02.2010, Annexur-5 to the writ petition. The petitioner No.1, in particular, by filing a representation dated 10.10.2009, Annexure4 to the writ petition, urged the respondent No.2 to consider her case for promotion against the post of Senior Instructor (Stenography) to be filled up by promotion but that did not bring any positive yield as is demonstrated by the impugned order dated 22.02.2010. [7] The respondents No.1 and 2 by filing a counter affidavit have asserted that all the posts of Senior Instructor pertaining to various branches have been bunched together and considered for promotion. [7] The respondents No.1 and 2 by filing a counter affidavit have asserted that all the posts of Senior Instructor pertaining to various branches have been bunched together and considered for promotion. It has been asserted in Para10 of the counter affidavit that; Class-III DPC held on 15.09.2009 for promotion of different category of posts under (Non-Engineering group) Sri Pinaki Dasgupta, Assistant Instructor (Basketry) was promoted under R.P. No.32 (UR) and Smti. Dalia Debbarma, Assistant Instructor (Stenography) was promoted to the post of Senior Instructor (Stenography) under R.P. No.31 (ST). There was no SC category candidate for consideration of promotion in the post of Senior Instructor (Social studies). DPC recommended for direct recruitment as per provision of Recruitment Rules. It has thus surfaced that even though the reservation has been applied by bunching or grouping the vacant posts of Senior Instructors irrespective of their branch but as no Scheduled Caste candidate for consideration for promotion to the post of Senior Instructor (Social studies) was available, that vacancy could not be filled up. The DPC had recommended for filling up that vacancy by direct recruitment, as the vacancy fallen under one category is not interchangeable. [8] Mr. Sinha, learned counsel has submitted that the manner in which the reservation rule has been applied is entirely unreasonable and de hors the constitutional principle. The method has been devised without regard to the relevant law. Apparent it is that the post of the Senior Instructor (Stenography) to be filled up by promotion is an isolated post. In the recruitment rules, the qualification for the post of Senior Instructor (Stenography) is well specified and hence, the post of Senior Instructor (Stenography) cannot be grouped with other Senior Instructor from other branches for applying reservation rule. For illustration, an Assistant Instructor (Social Studies) cannot be promoted to the post of Senior Instructor (Stenography). The recruitment rules thus itself creates a bar for grouping of isolated post. [9] From the other side, Mr. S. Chakraborty, learned Addl. For illustration, an Assistant Instructor (Social Studies) cannot be promoted to the post of Senior Instructor (Stenography). The recruitment rules thus itself creates a bar for grouping of isolated post. [9] From the other side, Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents No.1 to 4 has submitted that Rule 10 of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) (Amendment) Rules, 2007 framed in exercise of the powers conferred by Section 17 of the Tripura Scheduled Caste and Scheduled Tribe Reservation Act, 1991 authorises the appointing authorities to group the isolated individual post and small cadre of the same class/group of service having less than 4(four) posts for purpose of applying reservation rules. Mr. Chakraborty, learned Addl. G.A. has thus contended that grouping of 3(three) posts against 24 (twenty four) vacant posts of the Senior Instructors from various branches cannot be called in question when the constitutionality of the said Rule 10 is not under challenge. [10] On appreciating the records and submission of the learned counsel for the parties, the pertinent questions those fall for consideration of this Court may be framed as under:- (i) What would be the meaning of the same class/group of service as appearing in Rule 10 of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) (Amendment) Rules, 2007? (ii) Whether the available vacancies or the posts are liable to be segmented under the direct recruitment and promotion? (iii) If it is held that the post of Senior Instructor (Stenography) to be filled up by promotion, is an isolated post whether the reservation rule would apply? (iv) Whether the impugned order of promotion dated 22.02.2010, Annexure-5 to the writ petition can be maintained? What would be the meaning of the same class/group of service as appearing in Rule 10 of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) (Amendment) Rules, 2007? [11] Tripura Scheduled Castes and Scheduled Tribes (Reservation) Rules, 1992 provides as under:- 10. Grouping of isolated Posts: Isolated individual posts and small cadres of the same class/group of service having less than ten posts and having the same status, salary and the same minimum qualifications prescribed for direct recruitment shall be grouped together for the purposes of reservation. [11] Tripura Scheduled Castes and Scheduled Tribes (Reservation) Rules, 1992 provides as under:- 10. Grouping of isolated Posts: Isolated individual posts and small cadres of the same class/group of service having less than ten posts and having the same status, salary and the same minimum qualifications prescribed for direct recruitment shall be grouped together for the purposes of reservation. There cannot be any dispute that Senior Instructors (Stenography) constitute a very small cadre or class but whether the Senior Instructor (Stenography) can for that matter be called in the same class or group of service with other Senior Instructors, borne in distinctly different branch for purpose of grouping. The meaning of the same class or group of service has to be understood primarily by operation of the recruitment rules. As stated, the recruitment rules has segmented in such a manner that in the event of non-availability that post would be filled up by direct recruitment. If the vacancy is earmarked to be filled up by the reserved category and no eligible reserved category candidate is available, that post cannot be filled up by the unreserved category. It is further clear from the recruitment rules that even the essential qualification is at variance for direct recruitment of Senior Instructor of various branches. Hence, absence of ‘the same qualification’ prohibits grouping by rendering the promotion post an isolated post in the cadre of Senior Instructor (Stenography). Varying qualifications have been prescribed for the direct recruitment of the post of Senior Instructor in different branches. How has the roster point been posted against the discipline? Is there any rule? There is no rule. There is no reasoning. To resolve such puzzle, the apex court in State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors., reported in (2004) 12 SCC 333 has enunciated the law as under:- “While, therefore, we are of the considered opinion that there can be a reservation in respect of post of Professor and the provisions of the Reservation Act would apply, but the same cannot be applied taking all the Professors as a cadre and it has to be made subject-wise, as has been earlier construed and held by this Court. We are also of the opinion that there cannot be a reservation for an isolated post. We are also of the opinion that there cannot be a reservation for an isolated post. We further observe that in deciding the question of reservation the appropriate authority must follow the roster as has been published in exercise of power under Section 3(5) of the Reservation Act and then the roster should be duly complied with in accordance with the principles enunciated by this Court in R.K. Sabharwal and others vs. State of Punjab and others : (1995) 2 SCC 745 . [Emphasis supplied] Whether the available vacancies or the posts are liable to be segmented under the direct recruitment and promotion? [11] This Court is of the view that it is the posts which shall be segmented under direct recruitment and the promotion and those are to be filled up by two different sources as provided in the recruitment rules. As such, after filling up the vacancies under one segment, it will be only a matter of substitution following principles as laid down by the apex court in R.K. Sabharwal and others vs. State of Punjab and others, reported in (1995) 2 SCC 745 . Similarly, for the segment to be appointed by promotion there would be a separate roster. Whenever a vacancy falls, that has to be filled up by promotion from the respective feeder post. This is the safest method to avoid a complex situation but such method can fully be operational only when the posts under the respective segments are filled up. As far as the post of Senior Instructor of various branches under the respondent No.2 is concerned, for every branch there should be separate segment and roster in terms of the provision of Rule 13 of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of vacancies in services and posts) Rules, 1992. If it is held that the post of Senior Instructor (Stenography) to be filled up by promotion, is an isolated post whether the reservation rule would apply? [12] What has been decided by this Court, it is now obvious that the post of Senior Instructor (Stenography) to be filled up by promotion is an isolated post. In view of the decision of the apex court in Post Graduate Institute of Medical Education & Research, Chandigarh vs. Faculty Association and others, reported in (1998) 4 SCC 1 that in the single or isolated post reservation rules cannot be applied. In view of the decision of the apex court in Post Graduate Institute of Medical Education & Research, Chandigarh vs. Faculty Association and others, reported in (1998) 4 SCC 1 that in the single or isolated post reservation rules cannot be applied. It has been enunciated in Post Graduate Institute of Medical Education & Research, Chandigarh vs. Faculty Association and others as under:- 26. The decision in and it has been held in the said decision that when the post is a solitary post in the cadre, the roster and carry forward scheme underlying any reservation policy cannot apply. A contrary view, however, has been taken in the decision of State of Bihar and Ors. v. Bageshwari Prasad and Anr. : 1995 Supp (1) SCC 432; Suresh Chandra v. Shri J.B. Agarwal: (1997) 5 SCC 363 and later on in a three Judges' Bench decision in Union of India and Anr. v. Madhav : (1997) 2 SCC 332 . Following the said three Judges' Bench decision in Madhav's case, reservation in a single post cadre by rotation of roster point has been upheld in Union of India and others v. Brij Lai Thakur : (1997) 4 SCC 278 and the decision rendered in the case of Post Graduate Institute of Medical Education Research v. Faculty Association and others : (1997) 6 SCC 283 . The later decision is the subject matter of challenge in the Review Petition before us in C.A. No. 3175 of 1997. 27. Since the decision in Madhav's, case by a three Judges' Bench upholding the reservation for the backward classes even in single post cadre on the basis of rotation of roster point is the main decision, which has been followed in Post Graduate Institute of Medical Research case, we propose to consider the decision in Madhav's case in some detail. The brief facts in Madhav's case may be indicated as follows:- In the National Savings Scheme Service, only one post of Secretary was available. The Government applied the rule of reservation to that post by rotating the vacancies in accordance with the 40point roster. When point No. 4 vacancy in that post, reserved for Scheduled Tribe, was filled by promoting an ST candidate from the post below, such promotion was set aside by the Central Administrative Tribunal on the ground that the post of Secretary being a single point post, granting of reservation was unconstitutional. When point No. 4 vacancy in that post, reserved for Scheduled Tribe, was filled by promoting an ST candidate from the post below, such promotion was set aside by the Central Administrative Tribunal on the ground that the post of Secretary being a single point post, granting of reservation was unconstitutional. The correctness or the said decision was assailed in Madhav's case. 28. It has been held in Madhav's case that (i) appointment to an office or post under the State is one of the means to render socioeconomic justice; (ii) Article 16(4A) of the Constitution introduced in 1995 by the 77th Amendment of the constitution, has resuscitated the objectives of the Preamble to, and Articles 46 and 335 of the Constitution of India to enable the Dalit and Scheduled Tribe employees to improve excellence in higher echelons of service and a source of equality of opportunity in the matter of social and economic status; (iii) Parliament has removed the lacuna pointed out by the Supreme Court in Indra Sawhney's, case :1992 Supp (3) SCC 217 that Article 16(1) and 16(4) do not apply to appointment by promotion but apply to initial appointment. By the 77th Amendment of the Constitution, the legal position enunciated in Rangachari's decision: AIR 1962 SC 36 has been restored and reservation of promotion to 50% quota as per the Indra Sawhney's, case is available to members of Scheduled Castes and Scheduled Tribes; (iv) the carry forward scheme has been upheld in Indra Sawhney's, case; (v) reservation could be provided even to the isolated posts on the basis of the rule of rotation by relying on the decision in Arati Ray Choudhury's case : (1974) 1 SCC 87 ; (vi) extension of reservation is not unconstitutional. On the other hand, such scheme provides opportunity and facilities to Scheduled Castes and Scheduled Tribes for being considered for promotion to hold single post consistent with equality of opportunity on par with others; (vii) In Paswan's case even though it was held that a single post cannot be reserved because such reservation would amount to 100% reservation, the question whether the single post reservation by rotation could be granted and whether it would be violative of Article 16(1) was not gone into and such question has been kept open. In Arati Ray Choudhury's case, the application of rule of carry forward and appointment by rotation of roster in a single post has been approved (viii) In Sabharwal's case : (1995) 2 SCC 745 , a Constitution Bench considered whether reservation as per the roster for the purposes of promotion could be valid and consistent with Article 16(1) of the Constitution and held in favour of such reservation (ix) Smt. Chetana Dilip Motghare v. Bhide Girls' Education Society has not been correctly decided and the decisions in Vidyulata Arvind Kakade v. Digambar Gyanba Surwase : CA No.242 of 1992 dated 17.01.1992 and Arati Ray Choudhury's, cases were not properly appreciated in Bhide Girls' case (x) In State of Bihar & Ors. v. Bageshwari Prasad & Anr., the rule of rotation has been held valid by indicating that the said rule does not offend Articles 14 and 16(1) of the Constitution, (xi) The judgment in Chakradhar Paswan's, case was also distinguished in Bageshwari's decision. 29. In Madhav's, case, in support of the view that even in respect of single post cadre, reservation can be made for the backward classes by rotation of roster, the Constitution Bench decision in Arati Ray Choudhury's, case has been relied on. We have already indicated that in Arati's, case, the Constitution Bench did not lay down that in single post cadre, reservation is possible with the aid of roster point. The court in Arati's case considered the applicability of roster point in the context of plurality of posts and in that context the rotation of roster was upheld by the Constitution Bench. The Constitution Bench in Arati's, case has made it quite clear by relying on the earlier decisions of the Constitution Bench in Balaji's case: AIR 1963 SC 649 and Devadasan's case: AIR 1964 SC 179 that 100% reservation was not permissible and in no case reservation beyond 50% could be made. Even the circular on the basis of which appointment was made in Arati Ray Choudhury's, case was amended in accordance with the decision in Devadasan's, case. Therefore, the very premises that Constitution Bench in Arati's, case has upheld reservation in a single post cadre is erroneous and such erroneous assumption in Madhav's, case has been on account of misreading of the ratio in Arati Ray Choudhury's case. Therefore, the very premises that Constitution Bench in Arati's, case has upheld reservation in a single post cadre is erroneous and such erroneous assumption in Madhav's, case has been on account of misreading of the ratio in Arati Ray Choudhury's case. It may be indicated that the later decision of the Constitution Bench in R.K. Sabharwal's, case, has also proceeded on the footing that reservation in roster can operate provided in the cadre there is plurality of post. It has also been indicated in Sabharwal's decision that the post in a cadre different from vacancies. 30. It also appears that the decision in Indra Swhney's, case has also not been properly appreciated in Madhav's decision. In Indra Sawnhey's case, it has not been held that there can be reservation in a single cadre post. There is no dispute that a carry forward scheme, provided it does not result in reservation beyond 50% is constitutionally valid but that does not mean that by the device of carry forward scheme, 100% reservation on some occasions can be made even when the post is only a single cadre post. In Madhav's decision and Brij Lai's decision, reliance has been placed on Article 16(4A) of the Constitution for holding that even in respect of single post such reservation can be made with the aid of rotation of roster. In our view, Article 16(4A) relates to reservation in promotional post in the cadre, but the said Article 16(4A) does not deal with the question of reservation in a single cadre post. 31. There is no difficulty in appreciating that there is need for reservation for the members of the Scheduled Castes and Scheduled Tribes and other backward classes ad such reservation is not confined to the initial appointment in a cadre but also to the appointment in promotional post. It cannot however be lost sight of that in the anxiety for such reservation for the backward classes, a situation should not be brought by which the chance of appointment is completely taken away so far as the members of other segments of the society are concerned by making such single post cent per cent reserved for the reserved categories to the exclusion of other members of the community even when such member is senior in service and is otherwise more meritorious. 32. 32. Articles 14, 15 and 16 including Article 16(4), 16(4A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji's case, Devadasan's case and Sabharwal's case. Even in Indra Sawhney's case, the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of citizens. The special provision under Article 15(4) must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this court in The State of Andhra Pradesh and Ors. v. U.S. V. Balaram : (1972) 1 SCC 660 and C.A. Rajendran v. Union of India : AIR 1968 SC 507 . It has been indicated in Indra Swhney's case (supra) that clause (4) of Article 16 is not in the nature of an exception to Clauses (1) and (2) of Article 16 but an instance of classification permitted by clause (1). It has also been indicated in the said decision that clause (4) of Article 16 does not cover the entire field covered by clauses (1) and (2) of Article 16. In Indra Sawhney's case, this court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointment under the State or even majority of them. The doctrine of equality of opportunity in Clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality. 33. The doctrine of equality of opportunity in Clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality. 33. In Triloknath v. State of Jammu and Kashmir : AIR 1967 SC 1283 , it has been held by this Court that where the percentage of reservations is not reasonable, having regard to employment opportunities of the general public to the cadre of service in question, the population of the entire State, the extent of their backwardness and the like, the interference by Court against unreasonable reservation is called for. 34. 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 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 cent percent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent. 35. Hence, 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 single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bound to the members of a large segment of the community 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. [Emphasis supplied] [13] Having regard to the decision of State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors., it has been observed by the apex court as under:- “.... [Emphasis supplied] [13] Having regard to the decision of State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors., it has been observed by the apex court as under:- “.... The very advertisement of the University which had been issued in the year 1995 and was the subject-matter of challenge before the Allahabad High Court in the impugned judgment, had also come up for consideration before this Court in State of U.P. v. Dr. Dina Nath Shukla : (1997) 9 SCC 662 . A Bench of two learned Judges of this Court construed the provisions of the Reservation Act and also the provisions of the university statute and came to hold that it would not be permissible to club all posts of Professors together and then apply the principle of reservation. It was felt that if the total posts are advertised without subject-wise specification in every faculty, discipline, speciality or superspeciality, it would be difficult for the candidate to know as to which of the posts would be available either to the general or reserved candidates or whether or not they fulfil or qualify the requirements so as to apply for a particular post and seek selection. Necessarily therefore, the Court approved a part of the earlier judgment of the Allahabad High Court in Ram Niwas Pandey case even though that judgment had not been cited, by holding that the reservation has to be applied subject-wise and the Professors of all departments cannot be clubbed together and treated as one cadre. The Court, however, interfered with the conclusion of the Allahabad High Court on the question as to whether there can at all be a reservation on a single post. The Court was of the opinion that if there exists any isolated post, rule of rotation be applied and by application of roster for appointment and for achieving the said objective the Vice-Chancellor, who is the responsible authority under Section 4 has to enforce the Act, would ensure that single post in each category of Professors, Readers or Lecturers carrying the same scale of pay would be subject to reservation by applying the principle of rotation. This conclusion of the Court in the aforesaid case of Dr. This conclusion of the Court in the aforesaid case of Dr. Dina Nath Shukla : (1997) 9 SCC 662 is no longer good law in view of the Constitution Bench judgment of this Court in the case of Post Graduate Institute of Medical Education and Research v. Faculty Assn. : (1998) 4 SCC 1 . Dr. Dina Nath Shukla relied upon the judgment in Union of India v. Madhav : (1997) 2 SCC 332 .” [Emphasis supplied] Hence, the reservation rule cannot apply in an isolated or a single post. In the case in hand by operation of the recruitment rules one single post of the Senior Instructor (Stenography) has become an isolated post of such nature, that cannot be grouped by operation of Rule 10 of Tripura Scheduled Castes and Scheduled Tribes Reservation Rules), 1992. [14] This Court has observed that the post of Senior Instructor (Stenography) to be appointed on promotion is an isolated solitary post and the reservation rule will not apply to such post. Even the reservation can be allowed to be rotated against the isolated and solitary post. That post has to be treated open. As such, this Court is of the firm opinion that the appointment of the respondent No.5 in the post of Senior Instructor (Stenography) on promotion by applying reservation rule is wholly unsustainable. As such, the impugned order of promotion dated 20.02.2010, Annexure5 to the writ petition, is liable to be interfered with and accordingly, it is set aside. The respondent No.2 is directed to reconvene the DPC for purpose of filling up the said post of Senior Instructor (Stenography) on promotion within a period of 3(three) months from today in terms of the observation made hereinabove. Having held so, this writ petition stands allowed. There shall be no order as to costs.