STATE OF PUNJAB AND ORS.versusG.S. GILL AND ANR.

A                       STATE OF PUNJAB AND ORS.
                                     v.
                            G.S. GILL AND ANR.

                                 MARCH 27, 1997

B              [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

          Co11stit11tion of India, 1950: A1ticles 14, 16 and 335 :

          Scheduled Castes and T1ibeJ~Rese1vation-First respondent, a general
C candidate, appointed as a Junior Technical Assistant-Next promotio11al
  cadre-Assistant Superintendent-Single post cadre-Post reserved for
  Scheduled Caste candidate as per Roste~Second respondent promoted to
  sai~Wiit by first respondent to derese1ve the canied f01ward post and to
  consider his case as a ge11eral candidate-High Cowt held that si11ce it was
  a single post cadre there could not be any rese1vatio11 at all-Appeal before
D Supreme Cowt-Held, High Court, e1red i11 holding that reservation in promo-
  tion to a single post and application of cany f 01ward mle and of roster was
  unconstitutional-Application of roster to si11gle post cadre and appointment
  by promotion to cany f 01ward post is valid and constitutional.

          Scheduled Castes a11d T1ibes--Rese1vation---Ca11y forward Rule-17ie
E ca11y-f011vard 111le is constitutio11ally pennissible-It is an extension of the
  pli11ciple of providing facility a11d opportu11ity to secure adequacy of the
  representatio11 Dalits and T1ibes mandated by Alticle 335-It should be
  canied for three years-Even in the post when the vaca11cy as per roster was
  available, but candidates were not available, same could be canied forward
  for three years-Howeve1; in each recmitment yew; the ca11)1-f01ward mle
F cannot exceed 50% of the vacancies-17ze question does not alise in a
  situatio11 where there is si11gle post/cadre. No mandamus or direction sliould
  be issued to de-reserve the cmry forward vacancies reserved for appointment
  of the Scheduled Castes a11d T1ibes nor direction be given to fill up with
  ge11eral candidates.
G       Amti Ray Choudhwy v. Union of I11dia, [1974] 1 SCC 87; Indira
  Sawh11ey v. Union of India, [1992] Supp. SCC 217; S.S. Shanna & Ors. v.
  U11ion of I11dia & Ors., AlR (1981) SC 588; U.P. Sales Tax Service Associa-
  tion v. Ta.xatio11 Bar Association, Agra & Ors., [1995] 5 SCC 716; 171e Flag
  Officer Commanding-in-Chief & Anr. v. Mrs. MA. Raja11i & Anr., JT (1997)
H 4 SC 212; Union of India & Anr. v. Madhav, JT (1996) 9 SC 320; R.K
                                        412
                                 STATEv. G.S.GILL                            413

     Sabhanval & Ors. v. State of Punjab & Ors., [1995] 2 SCC 745; The A
     Ahmedabad St. Xavires College Society & Anr. v. State of Gujarat & Anr.,
     [1975] 1SCR173; Dr. Pradeep Jain & Ors. v. Union of India & Ors., [1984]
     3 SCC 654; Marri Chandra Sekhar Rao v. Dean, Seth G. S. Medical College
     & Ors., [1990] 3 SCC 130; As/wk Kumar Gupta & Anr. v. State of U.P. &
     Ors., [1997] 3 SCALE 289 and Unio11 of India & Ors. v. Brij Lal 17ialatr, JT B
     (1997) 4 SC 195, relied on.

             Devadasan v. Union of India, [1964] 4 SCR680: AIR (1964) SC 179,
     referred to.

             Dr. Panninder Kaur v. State of Punjab, (1976) 1 SLR 502, overruled.
                                                                                    c
             Dr. Chakradhar Pasvan v. State of Bihar, [1988] 1 SCC 496, explained
     & distinguished.

          A1ticle 261-Acts done by Executive-Full faith and credit to-Duty of
     bureaucracy not to f 01feit the full faith and credit.
                                                                                    D
           SC & ST Officers' Welfare Council v. State of U.P. & Anr., [1997] 1
     SCC 701 and Superintending Enginee1; Public Health, U. T. of Chandigarh &
     Ors. v. Ku/deep Singh & Ors., [1997) 2 SCALE 138, referred to .
..           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3005 of                 E
     1997.

          From the Judgment and Order dated 22.11.95 of the Punjab &
     Haryana High Court in L.P.A. No. 351of1981.

             R.S. Sodhi and Darshan Singh for the Appellants.
                                                                                    F
             Rajesh .K. Sharma and Rakesh K. Sharma for the Rm;pondents.

             The following Order of the Court was delivered :

           As per Office Report dated September 13, 1996, the notice sent to
     the first respondent was received back by the Registry with the postal         G
     endorsement "No such person" indicating avoidance thereof on his part.
     Consequently, he was set ex-parte. The second respondent was directed to
     file counter-affidavit. Even today the first respondent is not appearing
     either in person or through counsel.

             Leave granted. We have heard learned counsel for the appellant and     H
                                                                                      )U $
    414                  SUPREME COURT REPORTS                    [1997] 3 S.C.R.

A the second respondent.

         This appeal by special leave arises from the judgment passed by the
    High Court of Punjab & Haryana, Chandigarh on 22nd November, 1995 in
    LPA No. 351 of 1981.

B        The admitted facts are that the first respondent, a general candidate,
  was appointed as a Junior Technical Assistant in the Department of
  Industries of the State of Punjab. The post of Assistant Superintendent,
  Quality Marking Centre, (Textile), i.e., in the next promotional cadre, is
  the single post in that cadre. The said post was reserved for Scheduled
C Caste candidates as per the roster and in view of the judgment of this Court
  in Aaiti Ray Choudhury v. Union of India, [1974] 1 SCC 87. Bhagat Ram,
  the second respondent who was a qualified candidate was considered and
  duly promoted to the said post. The first respondent, feeling aggrieved,
  filed writ petition in the High Court seeking relief in the form of a
D mandamus or direction to the Government to dereserve the carried for-
  ward post and to consider his case for promotion as a general candidate.
  He contended that since it was the solitary post, reservation in favour of a
  Scheduled Caste would amount to 100% rese1vation violating Articles
   16(1) and 14 of the Constitution. The learned Single Judge observed that
   he felt bound by the Division Bench judgment in Dr. Pan11inder Kaur v.
E State of Punjab, 11976] 1 SLR 502 wherein it was held that "a solitary
   vacancy in the relevant year cannot be treated as reserved one as that
   would amount to reservation of 100% in violation of Article 14 and 16(1)
   of the Constitution". Thus though he was inclined to take the view that
   Constitutionally it was permissible, in view of the Division Bencli judgment
F in Dr. Panninder Kaur's case, he allowed the writ petition. On appeal, it
   was affirmed.by the Division Bench. When the matter was carried to
   this Court, it set aside the order and remitted the matter to the High
   Court for reconsideration. The Division Bench by the impugned judg-
   ment held thus :

             "Consequently, we are of the view that since it is a single post
             cadre, there could not be any reservation at all and the question
             of applicability of Pan11inder Kaur's case (supra) also does not arise
             on the facts of the present case."

H         Thus this appeal by special leave.
                          STATEv. G.S.GILL                              415

      The question for consideration, therefore, is : whether the view taken A
by the High Court is correct in law? This Court in Indira Sawhney v. Union
of India, [1992] Supp. SCC 217 has overruled the decision of the Constitu-
tion Bench in Devadasan v. Union of India, [1964] 4 SCR 680 : AIR (1964)
SC 179 declaring the carry forward rule as unconstitutional. In paragraph
817 at page 739, it was held thus :
                                                                               B
           "We are of the respectful opinion that on its own reasoning,
        the decision insofar as it strikes down the rule is not sustainable.
        The most that could have been done in that case was to quash the
        appointments in excess of 50%, inasmuch as, as a matter of fact
        more than 50% of the vacancies for the year 1960 came to be            C
        reserved by virtue of the said rule."

      In paragraph 818, it was held thus :

           "We my reiterate that a carry-forward rule need not necessarily
        be in the same terms as the one found in Devadasan. A given rule D
        may say that the unfilled reserved vacancies shall not be filled by
        unreserved category candidates but shall be carried-forward as
        such for a period of three years. In such a case, a contention may
        be raised that reserved posts remain a separate category al-
        together. In our opinion, however, the result of application of
        carry-forward rule, in whatever manner it is operated, sho~id not E
        result in breach of 50% rule".

        Thus it could be seen that the carry-forward rule is constitutionally
  permissible. It is an .extention of the principle of providing facility and
  opportunity to secure adequacy of the representation to Dalits and Tribes F
  mandates by Article 335. It should be carried for three years. Even in the
. post when the vacancy as per roster was available, but candidates were not
  available, same could be carried forward for three years. However, in each
  recruitment year, the carry-forward rule cannot exceed 50% of the vacan-
  cies. That question does not arise in a situation where there is single
  post/cadre. In S.S. Shanna & Ors. v. Union of India & Ors., AIR (1981) SC G
  588 in paragraph 8 at page 592, this Court had held that the limited
  Departmental competitive examination for recruitment of the members of
  the Scheduled Castes and Scheduled Tribes for determination of eligibility
  for promotion is not invalid nor the Central Government be directed to
  dereserve the vacancies meant for such members when it was found that H
    416                   SUPREME COURT REPORTS                  (1997] 3 S.C.R.

A suitable Scheduled Caste and Scheduled Tribe candidates were not avail-
    able for inclusion within the field of selection. Whether or not reserved
    vacancies should be de-reserved is a matter falling primarily within the
    administrative discretion of the Government. There is no right in general
    candidates to seek filling up of the vacancies belonging to the reserved
    category and to irn;ist on de-reservation of reserved vacancies so long as it
B   is possible in law to fill the reserved vacancies. In other words, carried
    forward (unfilled) vacancies reserved for Dalits and Tribes should be filled
    up only by the reserved candidates and general candidates have no right
    to seek direction for dereservation thereof for filling up of the same by
    general candidates. It would thus be clear that carry-forward rule is a
C   permissible constitutional rule. Carry forward would be done for three
    years. In this case, the Government issued orders to carry forward for "two
    years". Therefore, the direction or mandamus to de-reserve the solitary
    post was clearly unconstitutional. This Court in U.P. Sales Tax Service
    Association v. Taxation Bar Association, Agra & Ors., (1995] 5 SCC 716 had
D   held that no mandamus could be issued to disobey the law or prohibit the
    authorities from discharging the functions. It would, therefore, be manifest-
    ly illegal to seek a mandamus or direction; nor would the Court be justified
     to issue such mandamus or direction to the appropriate Government to
    de-reserve vacancy. It is common knowledge that selections are not objec-
    tively being made to select the candidates belonging to the Dalits and
E   Tribes to fill up the vacancies reserved for them though qualified can-
     didates are available to be promoted/appointed, with a view to see that
    reserved vacancies are not filled up and the same are passed off as eligible
     candidates being not available so as to ensure that carry forward vacancies
     either excec;d 50% of the accumulated total vacancies or that selection goes
     beyond three years so as to make the Government de-reserve the vacancies.
F
        This Court in SC & ST Officers' Welfare Council v. State of U.P. &
  Anr., (1997] 1 SCC 701 has considered the mandate ofArticle 261 of the
  Constitution which accords full faith and credit to the acts done by the
  executive and connects the Union and the States to further the goals set
G down in the Constitution. In para 12 this Court has pointed out in that
  behalf. It was held that administrator is primarily a citizen and the State
  wants him to always remember that his vision should be of national interest
  and to act in concert with the Government. It will do him good to know
  what that means. Nodody is born an administrator but nobody is always a
H good administrator. The primary responsibility of an administrator is to
                            STATEv. G.S.GILL                              417

perform his functions in the service of the nation as an enlightened citizen     A
to strengthen a new democratic State. A dynamic bureaucracy is one which
discharges the functions to enrich the integration of the social structure by
wise decision. The State in a democratic society derives its strength for the
cooperative and dispassionate will of all as its free and equal citizens. The
public administration is responsible to effective implication of the rule of     B
law and constitutional commands which effectuate fairly the objective
standard set for adjudging good administrative decisions. The public ad-
ministrator should rid off all mental observations on narrow considerations
of caste, religion sectional or regional. He should have wider concern for
society as a whole. Otherwise he is not worthy to be an administrator or
enlightened citizen to work for others; and consequently "there is every
chance of this enlightenment getting eroded and self interest ruling
supreme. And once the erosion takes place, they slide slowly down and join
the third group (damons manavarakshas) among whom are found all those
who indulge in all sorts of social malpractices, like bribery, corruption,
tax-evasion, smuggling, drug and food adulteration and fourth category           D
become sheer vandals." "God dwells in all - this great truth had never been
translated into the wide social and economic fields or transformed into a
social fact of human awareness affecting millions." "This should be made a
reality in modern democracy, political, economic and social" quoted from
'Eternal Values for a Changing Society' by Swamy Ranganathananda. In             E
public administration, responsibility is of highly personal and moral quality
and is not necessarily related to formal status or power, although it is
probably true that greater power brings greater responsibility. The
Departmental head is responsible for the actions of his subordinates,
although in actual fact, he is not responsible for their use of power which,     F
he must, of necessity, delegate to them. Legitimacy is primarily a feature
of constitutional system. They possess this quality by virtue of general
public support for their authority and may have it in greater or lesser
degree. The bureaucracy shares the collective responsibility with political
executive to effectuate the constitutional philosophy and public justice. The
administrative responsibility lies in giving shape and content not only to the   G
policies laid down in the Constitution and by the political executive but
also applies them in given set of facts. There, on the facts, it was found
that the bureaucracy had by mala fide actions issued successive orders to
deprive certain1:>alits and Tribe doctors of their chances of promotion by
colourable exercise of power depriving them of their right to promotion.         H
    418                   SUPREME COURT REPORTS                   (1997] 3 S.C.R.

A Soon after the selection, they were withdrawn. Further orders were issued
    in favour of the general candidates with most favourable conditions. There-
    by, the bureaucracy forfeited the full faith and credit which Article 261
    trusted them with. Therefore, this Court set aside the action and directed
    reconsideration of their cases.

B        In Supe1intending Engineer, Public Health, UT. of Chandigarh & Ors.
  v. Ku/deep Singh & Ors., (1997] 2 SCALE 138, though reserved candidate
  was available, the post was de-reserved and he was not selected. When he
  filed a petition in the Administrative Tribunal it was allowed and direction
  was given to consider his case in accordance with the rules. When the
C appeal was filed in this Court, it was held that the authorities have power
  coupled with duty. "(E)very public servant is a trustee of the society and
  in all facets of public administration, every public servant has to exhibit
  honest, integrity, sincerity and faithfulness in implementation of the politi-
  cal, social, economic and constitutional policies to integrate the nation, to
D achieve excellence and efficiency in the public administration. A public
  servant entrusted with duty and power to implement constitutional policy
  under Articles 16(4), 16(4-A), 15(4) and 335 and all inter related directive
  principles, should exhibit transparency in implementation and be account-
  able for due effectuation of constitutional goals." It was directed that the
  reservation and carry forward rule should be implemented in true spirit. It
E is settled legal principle that when bureaucracy has power coupled with a
  duty to implement the law and and a constitutional goal. State should be
   envisaged as a Canal through which the fruits of constitutional principles,
  philosophy and the backed-up law may flow, releasing its energy for the
   benefit of the people rather than as a dam to hold it back or cause breach
F thereof to· frustrate the goals. After all, the basic task any philosophy of
   Government is to figure out what the state must ·do not w)lat it would be
   prohibited from doing. Not is it to be forgotten that while tyrannical
   Governments destroy the freedom, constitutional Government enlarge the
   freedom.

G          Many of the functions which the modern state undertakes are
     designed to make opportunities more nearly equal for everybody and to
     protect weaker individuals from the rapacity of the strong .. In these days of
     fallen rectitude and honesty in the performance of public duty and the
     bureaucracy is too willing to sabotage public policy and constitutional
H    philosophy. J udiciary!fribunal should be astute in the declaration of law
                                STATEv. G.S.GILL                               419

    or in its solemn judicial review or dispensation of justice of issue to A
    directions or mandamus against the law, constitutional comments or public
    policy. In The Flag Officer Co111ma11di11g-i11- Chief & Anr. v. Mrs. M.A.
    Rajani & Anr., JT (1997) 4 212, this Court held that since the reservation
    was called for selection in a reserved vacancy and since candidate was
    available, resort to dereservation of the vacancy thereafter was clearly B
    illegal. It would, therefore, be clear that the authorities are to implement
    the rule, executive/legislative/constitutional policy or principle in true spirit,
    honestly and sincerely to effectuate the policy; no mandamus or direction
    should be issued to de-reserve the carry forward vacancies reserved for
    appointment of the Schedule Castes and Tribes nor direction be given to
    fill up with general candidates.                                                   C

           The next question for consideration is : whether reservation in
    promotion to a single post is unconstitutional being violative of Articles
    16(1) and 14 of the Constitution? InAalti Ray Chaudhwy's case (supra), a


-   Constitution Bench had held that reservation in promotion to a single post
    is not unconstitutional. This Court had re-surveyed the case law in Union
    of India & Anr. v. Madhav, JT (1996) 9 SC 320. In paragraph 10 at page
    326, it has been held that "we hold that even though there is single post, if
                                                                                     D



    the Government have applied the rule of rotation and the roster point to
    the vacancies that had arisen in the single point post and were sought to
    be filled up by the candidates belonging to the reserved categories at lhe       E
    point on which they were eligible to be considered, such a rule is not
    violative of Article 16(1) of the Constitution." Same view has been
    reiterated in several subsequent judgments. In Dr. Chakradhar Pasvan v.
    State of Bihar, [1988] 1 SCC 496 the ratio clearly is an authority for the
    proposition that two unequal posts carrying different scales of pay cannot        p
    be fused together for the purpose of applying the rule of reservation in
    promotion. That case stand on entirely a different footing but the ratio
    therein was misapplied to a case of reservation to a single post without
    following the Constitution Bench judgment in Aani Ray Chaudhwy's case
    (supra). That position was clarified in Madhav's case (supra). Thus it is
    settled legal position that application of roster to single post cadre and       G
    appointment by promotion to carry forward post is valid and constitutional.
    With a view to give adequate representation in public service to reserved
    category candidates, the opportunity given to them is not violative of
    Article 14 and 16(1) of the Constitution. In R.K Sabhmwal & Ors. v. State
    of Punjab & Ors., [1995] 2 sec 745, it was held that promotions in               H
    420                    SUPREME COURT REPORTS                    (1997] 3 S.C.R.

A accordance with roster are valid and constitutional. Even in Indira
    Sawhney's case this Court had reiterated the view that reservation for the
    Dalits and Tribes is as a class but not as individuals and, therefore, such a
    reservation is not violative of Article 14 or 16(1) of the Constitution. In 171e
    Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat & Anr.,
B   [1975] 1 SCR 173, a nine-Judge Bench had held that the fundamental rights
    should be broadly interpreted to enable the Citizen to enjoy them. Sarne
    view was reiterated in Dr. Pradeep Jain & Ors. v. Union of India & Ors.,
    (1984] 3 SCC 654; Mani Chandra Sekhar Rao v. Dean, Seth G.S. Medical
    College & Ors., (1990] 3 SCC 130 and Ashok Kumar Gupta & Anr. v. State
    of U.P. & 01:r., (1997] 3 SCALE 289. In Union of India & Ors. v. Brij Lal
C   77iakw; JT (1997) 4 195, this Court following Madhav's case has held that
    reservation provided to single post on the basis of rule of rotation is not
    unconstitutional. The High Court, therefore, is clearly in error in holding
    that reservation in promotion to a single post and application of carry
    forward rule and of roster is unconstitutional.
D        The appeal is accordingly allowed. The judgment of the Division
    Bench and of the learned Single Judge stand set aside. No costs.

    T.N.A.                                                        Appeal allowed.