Dr. R. Shashidar Vs. State of Karnataka and Another - Court Judgment

Excerpt:
- sections 13(2) & 35: [mohan shantanagoudar, j] challenge valuation - emergency power of vice-chancellor - amendment of ordinance issued pursuant to policy decision taken by syndicate in exercise of - condition precedent for exercise of power held, neither the statement of objections filed by the respondent-university nor the impugned notification/ordinance would disclose the existence of any situation of taking immediate action in the university. the statement of objections and the impugned notifications are completely silent about the existence of need for taking immediate action. no details of any disturbing situation or law and order problem etc., have been forthcoming. nothing is stated as to what could happen if such a strict action is not immediately taken by the vice-chancellor of issuing the impugned ordinance. though the impugned notification was issued on 11.9.2008, the same was made applicable from january 2009 examination and onwards, which itself goes to show that there was no urgent situation to take immediate action prevailing in the university justifying to exercise the power under section 13(2) of the act. the power is entrusted to syndicate to make ordinances and amend or repeal the same. consequently, the syndicate has issued an ordinance dated 30.8.2008 introducing the provision of challenge valuation for the benefit of aggrieved students and on certain conditions. one of the condition was, for the final computation of the results, the average marks of the best of four computation of the results, the average marks of the best of four valuations or two evaluations (as the case may be) be considered. according to him, as the syndicate has no proposed any change in the said ordinance, the vice-chancellor did not have power to change the policy decision by invoking power under section 13(2) of the act. the syndicate, even assuming that it has ratified the action of the vice-chancellor, has given effect to the amended ordinance from march 2009 examination and onwards. in this view of the matter, clause 3(g) of the impugned notification/ordinance dated 11.9.2008 is not in conformity with law and has to be struck down. the process adopted by the vice-chancellor in issuing amended notification/ordinance dated 11.9.2008 cannot be sustained in the eye of law. accordingly, clause 3(g) of the impugned notification/ordinance dated 11.9.2008 issued by the respondent-university, stands quashed. the respondent-university is directed to recalculate the marks secured by the petitioners in the challenge valuation of the examinations conducted in january 2009 without applying clause 3(g) of the notification dated 11.9.2008, but by applying the notification dated 30.8.2008 issued by the university. it is made clear that the amended ordinance issued by the university dated 3.2.2009 is applicable from march 2009 examination and onwards. ordertirath s. thakur , j. 1. the challenge in this petition for a writ of certiorari is directed against a notification dated 17th may, 1997 issued by the respondent-university reserving a solitary post of professor in the postgraduate department of english for the scheduled tribe candidates only. the petitioner who was at the relevant time working as a reader in the said department, has assailed the reservation on the ground that such a reservation was legally impermissible as the same would amount to making a 100% reservation in favour of scheduled tribe candidates against other category of candidates. 2. counsel appearing for the petitioner argued that the question whether a single post available in the cadre could be reserved either directly or on rotational basis is no longer res integra in the light of the constitution bench decision of the supreme court in the case of postgraduate institute of medical education and research, chandigarh v faculty association and others. he contended that the reservation of the only post in the department of english amounted to making a 100% reservation against the said post which was impermissible and violative of rights guaranteed to the petitioner under articles 14 and 16 of the constitution. reliance was also placed by him upon a division bench decision of this court in dr. l. krishna v state of karnataka, in support of his argument that for purposes of reservations, the university is required to treat each subject as a different unit and cadre. the clubbing of post available in different departments of the university was not according to learned counsel permissible for that would be yet another ingenious method and device meant to create a 100% reservation. 3. the university has in the objections filed on its behalf justified the reservation on the basis of state government orders dated 22nd of february, 1994 and 20th of june, 1995. by the first of those orders the state government had directed that all posts of readers/professors as the case may be available, in the university shall be clubbed together and treated as a combined cadre for purposes of application of the roster prescribed by the latter order. 4. the supreme court has in postgraduate institute's case, supra, while reaffirming the view taken in dr. chakradhar paswan v state of bihar and others, authoritatively stated the legal position thus.-- '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 and cent per cent reservation for the backward classes is not permissible within the constitutional framework. the decisions of this court to this effect over the decades have been consistent. 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 devices 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 reservation 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'.5. by the same decision, the court overruled its earlier decisions in union of india and others v brij lal thakur; suresh chandra v j.b. agarwal and others and union of india and another v madhav gajanana chaubal and another. 6. the question whether different posts in different subjects carrying similar pay scales could be treated to be a combined cadre for purposes of application of the reservation roster fell for consideration of this court in dr. l. krishna's case, supra. while holding that the term cadre was incapable of any precise definition, the court declared that the reservation policy could never intend to envisage situations where all the posts in one department or subject were filled up by those belonging to re-served categories whereas all such posts in another subject or department were allotted to the general merit candidates. the reservations have according to the said decision to be provided for subject-wise meaning thereby that each subject would constitute an independent cadre so that if there is only one post available in a postgraduate department in any subject such a post could not be reserved. that view was re-affirmed by the full bench in dr. rajkumar and others v gulbarga university and others. relying upon the supreme court decision in dr. chakradhar's case, supra, this court declared that each one of the subjects was a distinct and separate unit for the purposes of employment and reservation. the following observations from the said decision are in this regard apposite.-- 'the next question for consideration is about the method which should be adopted in providing reservation for the cadres of professors, readers and lecturers for, though these posts are in different subjects they carry same designation and pay scale. therefore the question is as to whether reservation has to be worked out in respect of such cadres, separately. this question is also no longer res integra. this court in the case of dr. l. krishna, supra, has held that in the case of teaching cadres though the designation and pay scale of the posts of professors, readers and lecturers in different subjects are one and the same, still having regard to the fact that the posts of professors, readers and lecturers in each of the subject is distinct and separate, each subject has to be treated as independent unit for the purpose of recruitment and reservation. the said view stands confirmed by the decision of the supreme court in the case of dr. chakradhar, supra'.7. in the light of the above, it is evident that the impugned notification insofar as the same purported to reserve the post of professor in english for scheduled tribe candidates only is unsustainable and violative of the fundamental rights guaranteed to the petitioner under articles 14 and 16. the notification having been issued on the basis of the earlier government orders ought to have been withdrawn in view of the fact that the government had by a subsequent order dated 16th of november, 1995 annexure-b to the writ petition withdrawn the earlier instructions. 8. in the result, this petition succeeds and is hereby allowed. the impugned notification to the extent the same reserves the post of professor in english in the postgraduate department of english in the second respondent-university shall stand quashed reserving liberty to the university to re-advertise the post in accordance with law keeping in view the observations made hereinabove. no costs.

Judgment:
ORDER

Tirath S. Thakur , J.

1. The challenge in this petition for a writ of certiorari is directed against a notification dated 17th May, 1997 issued by the respondent-University reserving a solitary post of Professor in the Postgraduate Department of English for the scheduled tribe candidates only. The petitioner who was at the relevant time working as a Reader in the said Department, has assailed the reservation on the ground that such a reservation was legally impermissible as the same would amount to making a 100% reservation in favour of scheduled tribe candidates against other category of candidates.

2. Counsel appearing for the petitioner argued that the question whether a single post available in the cadre could be reserved either directly or on rotational basis is no longer res integra in the light of the constitution Bench decision of the Supreme Court in the case of Postgraduate Institute of Medical Education and Research, Chandigarh v Faculty Association and Others. He contended that the reservation of the only post in the Department of English amounted to making a 100% reservation against the said post which was impermissible and violative of rights guaranteed to the petitioner under Articles 14 and 16 of the Constitution. Reliance was also placed by him upon a Division Bench decision of this Court in Dr. L. Krishna v State of Karnataka, in support of his argument that for purposes of reservations, the University is required to treat each subject as a different unit and cadre. The clubbing of post available in different Departments of the University was not according to learned Counsel permissible for that would be yet another ingenious method and device meant to create a 100% reservation.

3. The University has in the objections filed on its behalf justified the reservation on the basis of State Government Orders dated 22nd of February, 1994 and 20th of June, 1995. By the first of those orders the State Government had directed that all posts of Readers/Professors as the case may be available, in the University shall be clubbed together and treated as a combined cadre for purposes of application of the roster prescribed by the latter order.

4. The Supreme Court has in Postgraduate Institute's case, supra, while reaffirming the view taken in Dr. Chakradhar Paswan v State of Bihar and Others, authoritatively stated the legal position thus.--

'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 and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent.

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 devices 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 reservation 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'.

5. By the same decision, the Court overruled its earlier decisions in Union of India and Others v Brij Lal Thakur; Suresh Chandra v J.B. Agarwal and Others and Union of India and Another v Madhav Gajanana Chaubal and Another.

6. The question whether different posts in different subjects carrying similar pay scales could be treated to be a combined cadre for purposes of application of the reservation roster fell for consideration of this Court in Dr. L. Krishna's case, supra. While holding that the term cadre was incapable of any precise definition, the Court declared that the Reservation Policy could never intend to envisage situations where all the posts in one department or subject were filled up by those belonging to re-served categories whereas all such posts in another subject or department were allotted to the general merit candidates. The reservations have according to the said decision to be provided for subject-wise meaning thereby that each subject would constitute an independent cadre so that if there is only one post available in a Postgraduate Department in any subject such a post could not be reserved. That view was re-affirmed by the Full Bench in Dr. Rajkumar and Others v Gulbarga University and Others. Relying upon the Supreme Court decision in Dr. Chakradhar's case, supra, this Court declared that each one of the subjects was a distinct and separate unit for the purposes of employment and reservation. The following observations from the said decision are in this regard apposite.--

'The next question for consideration is about the method which should be adopted in providing reservation for the cadres of Professors, Readers and Lecturers for, though these posts are in different subjects they carry same designation and pay scale. Therefore the question is as to whether reservation has to be worked out in respect of such cadres, separately. This question is also no longer res integra. This Court in the case of Dr. L. Krishna, supra, has held that in the case of teaching cadres though the designation and pay scale of the posts of Professors, Readers and Lecturers in different subjects are one and the same, still having regard to the fact that the posts of Professors, Readers and Lecturers in each of the subject is distinct and separate, each subject has to be treated as independent unit for the purpose of recruitment and reservation. The said view stands confirmed by the decision of the Supreme Court in the case of Dr. Chakradhar, supra'.

7. In the light of the above, it is evident that the impugned notification insofar as the same purported to reserve the post of Professor in English for scheduled tribe candidates only is unsustainable and violative of the fundamental rights guaranteed to the petitioner under Articles 14 and 16. The notification having been issued on the basis of the earlier Government Orders ought to have been withdrawn in view of the fact that the Government had by a subsequent order dated 16th of November, 1995 Annexure-B to the writ petition withdrawn the earlier instructions.

8. In the result, this petition succeeds and is hereby allowed. The impugned notification to the extent the same reserves the post of professor in English in the Postgraduate Department of English in the second respondent-University shall stand quashed reserving liberty to the University to re-advertise the post in accordance with law keeping in view the observations made hereinabove. No costs.