Holding

Rule 9(i)(d) creates a 75% promotion/25% direct‑recruitment quota applicable to each vacancy under Art.16(1), making the 16th vacancy a promotee vacancy and rendering the direct‑recruitment advertisement invalid.

Summary

The dispute concerned the appointment of a Professor of Ophthalmology in a government medical college. Rule 9(i)(d) of the Punjab Medical College Education Service (Class‑I) Rules, 1978 mandates that 75% of professor posts be filled by promotion and 25% by direct recruitment. The State argued that the 16th vacancy in the five‑post cadre should go to a direct recruit, while the respondent, a departmental promotee, claimed it should be filled by promotion, invoking the ratio reasoning from R.K. Sabharwal. The Supreme Court held that Rule 9 is a quota rule governed by Article 16(1) of the Constitution, not a reservation rule under Article 16(4); therefore the roster must be applied to each vacancy, not to the total number of posts. Applying the 3:1 roster showed that the 16th vacancy (roster point 11) was a promotee vacancy. Consequently, the advertisement for direct recruitment was illegal and the appeal was dismissed.

Issues considered

Whether Rule 9(i)(d) of the Punjab Medical College Education Service Rules refers to total posts or to vacancies.
Whether the ratio reasoning from R.K. Sabharwal (reservation under Art.16(4)) applies to the quota rule in Rule 9(i)(d).
How the 3:1 promotion‑direct recruitment roster should be operated for the 16th vacancy in a five‑post cadre.
Whether the proviso to Rule 3 can be raised as a new plea before the Supreme Court.

Legislation cited

Constitution of Indias. Art.16(1), s. Art.16(4)

Subjects

service lawpromotiondirect recruitmentquotarosterArticle 16reservationPunjab Medical Collegeprofessor appointment

Judgment

STATE OF PUNJAB A
v.
DR. R.N. BHATNAGAR AND ANR.

DECEMBER 18, 1998

[S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.] B

Service Law:

Punjab Medical College Education Service (Class /) Rules, 1978:
c
Rule 9(i)(d)-Promotion-Quota-rota rule-Vacancies-Filling up of-
By promotees and direct recruits-In the ratio of 3: I-Application of-Held:
Rule 9 deals with reservation of appointment from two sources i.e.,
departmental promotees and direct recruits-Hence, Art. 16(1) and not Art.
16(4) applicable-Constitution of India, 1950, Arts. 16(1) and 16(4).
D
, Rule 9- 'Post '-Meaning of-Does not refer to total posts in the cadre
but refers to vacancies-Once recruitment is made from two sources i.e.,
departmental promotees and direct recruitment, the candidates get fused and
their birthmarks obliterated-Discrimination in further promotion not
permitted.
E
Rule 3 proviso and Rule 9-Promotion-Quota-rota rule-Vacancies-
Fil/ing up of-By promatees and direct recruits-In the ratio of 3:1-Cadre
consisted of 5 posts-First three vacancies filled up by promotees, 41h by
direct recruits and 51h, 61h, and 7'h by promotees-Thereafter, 81h roster point
was to be filled up by direct recruit but as this took mare time, departmental F
promotee was promoted-validity of-Held: Such departmental promotee
could fill in only the 9'h vacancy earmarked for promotees and not the 81h
vacancy earmarked for direct recruits which is to be carried forward-
Therefare, when a direct recruit is appointed qua roster point 8, though he
was treated as junior to the said pramotee, he could be said to be appointed
on roster point 8 which was carried forward-Hence, counting 9'h roster G
point as starting point for a fresh cycle for 3 promotees, the J61h point must
go to a direct recruit.

Rule 3 proviso-Date of cammencement-28-7-1978-Recruitment of
,Professors-Under erstwhile executive instructions-Deeming fiction under- H
693
694 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A Applicability-Conditions and effect of-Cadre of Professors consisted of 5
posts-But only 4 posts were actually occupied since the second incumbent
had retired prior to the coming into force of the proviso to R.3-0ut of the
said 4 posts, 3 were occupied by promotees and the 4'h by a direct recruit-
Held: The incumbents of all posts in the cadre actually holding the posts on
,,.-..---
the said date would remain in the cadre irresp~ctive of their source of
B recruitment-Fifth incumbent not covered by proviso to R.3-Therefore, fresh
rotational cycle will start with the fifth incumbency since the earlier rotational
cycle envisaged under R.9 is complete-Consequently, roster point 16 has to
be filled up by a promotee.

c Statute Law:

Deeming fiction-Extension of-By analogy-Held: Cannot be extended
to cover any other field not meant to be covered.

Practice and Procedure:
D
New plea-Raising of-For the first time before Supreme Court-Held:
Can be raised if it is a pure question of law not involving disputed question
of/act.

Words and Phrases:
E
"Post"-Meaning of-Jn the context of R.9 of the Punjab Medical
College Education Service (Class I) Rules, 1978.

The respondent, an Assistant Professor in the Department of
Ophthalmology in Government Medical College, was a promotee from the
F post of Senior Lecturer. The question arose as to how the vacancy in the post
of Professor of Ophthalmology was to be filled in on the retirement of the
then incumbent. The relevant rule governing such posts is Rule 9(i)(d) of the
Punjab Medical College Education Service (Class-I) Rules, 1978. The said
rule reads as under:
G "(9) Method of Appointment:

(d) In the case of Professors:

(i) 75 percent posts by promotion from amongst the Additional
Professors, or, where Additional Professors are not available, from
H amongst the Associate Professors, or where Associate Professors
STA TE v. DR. R.N. BHATNAGAR 695
are not available, from amongst the Assistant Professors, or by A
transfer of official already in the service of the Government of India,
or the State Government;

(ii) 25 percent posts by direct recruitment;"

According to the appellant-State, as there were five posts in the cadre B
of Professors of Ophthalmology in the said College, on the basis of the
aforesaid quota rule governing the recruitment in question, every three
.... vacancies of Professors in the said cadre had to be filled in by departmental
promotees while the fourth vacancy would be filled in by direct recruitment
and thereafter succeeding vacancies to be filled in by promotees and direct
recruits in the successive cycles of 3: 1. The case of the appellant-State was C
·that in the cadre of Professors of Ophthalmology in the said College, right
from the beginning when the erstwhile executive instructions on the same
lines operated till the date of the falling of the vacancy in question, there
were in all 15 Professors including the said Dr. R, who retired, as aforesaid
and, therefore, on his retirement the 16th vacancy arose. As per the appellant- D
State, on the operation of the quota rule and the roster cycles of3:1, the 16th
vacancy would be available to a direct recruit as under:

1st vacancy to promotee, 2nd vacancy to promotee, 3rd vacancy to
promotee, 4th to direct recruit, 5th, 6th and 7th to promotees, 8th to direct
recruit, 9th, 10th and 11th to promotees, 12th to direct recruit, 13th, 14th E
and 15th to promotees and the 16th to direct recruit.

Consequently, the said vacancy was advertised for being filled up by
direct recruitment. That brought the respondent to the High Court by way
of a writ petition. His contention in the writ petition was that in the light of
the Constitution Bench judgment of this Court in R.K. Sabharwa/'s case, as F
there were total five posts in the cadre of Professors of Ophthalmology 75%
thereof, namely, 3.75 posts had to be reserved for promotees and 1.25% of
-· the remaining posts had to be reserved for direct recruits. Rounding up
these figures by taking digits upto .50 as nil and beyond .50 as 1, four posts
in the said cadre had to be filled in at a given point of time by promotees and G
one post had to be filled in by direct recruitment and as at the time when
the vacancy arose, there was already one direct recruit holding the post of
Professor, the vacancy in question had to go to the departmental promotee
as he was the senior most Assistant Professor in the Department of
Ophthalmology. His claim to be promoted to the said post should have been
processed in accordance with law and the said post should not have been H
696 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

·A advertised for direct recruitment. The Division Bench of the High Court
accepted this contention of the respondent. Hence this appeal.

On behalr of the appellant, it was contended that the decision in R.K.
Sabharwa/ 's case pertained to a scheme of reservation for Scheduled Caste
and Scheduled Tribe persons under Article 16(4) of the Constitution and had
B nothing to do with the present s.:heme of the rule regulating the recruitment
from two sources under Article 16(1) of the Constitution; and that a new plea
regarding the applicability of the proviso to Rule 3 should not be permitted
to be raised for the first time before this Court.

On behalf of the respondent, it was alternatively contended that in view
C of the proviso to Rule 3 of the statutory rules, the cycle of 3: I would operate
in connection with all future vacancies that fell in the cadre w.e.f. 28-7-1978
and earlier cycle had to be ignored. It was also contended that even in the
working of the cycle in the cadre in question the 16th vacancy (which would
.become the I Ith vacancy if reckoned from a roster commencing from 28-7-
D 1978) would go to a promotee and not to a direct recruit.
'·
Dismissing the appeal, this Court

HELD: I.I. As per Article 16(4) of the Constitution which carves out
a separate field for itself from the general sweep of Article 16(1) which
E guarantees equality of opportunity in matters of appointments in Government
services to all citizens of India, the reservation for these categories of
employment has to be achieved by earmarking requisite percentage of posts
for the reserved category of candidates and by pitchforking these posts on
roster points on requisite points roster and when such a roster takes a full
cycle, posts earmarked on reserved point will enable the requisite reserved·
F category of candidates to fill up these posts. After that is done, the roster
would be treated to have achieved its purpose. Whenever a reserv~candidate
vacated a reserved post, the said post was liable to the fi!led in only by a
candidate belonging to the reserved category. If after.-the roster is first
/
·-
operated and thereafter it is again operated on future vacancies also, a
G situation may arise wherein a cadre may get reserved category exceeding
permitted quota of reservation. 1706-F-HI

I.2. So far as Rule 9 of the Punjab Medical College Education Service
(Class-I) Rules, 1978 is concerned it has nothing to do with reservation of
posts in the cadre of Professors. It is not a rule of reservation envisaged for
H a specified category of persons as permitted by Article (16)4 of the
STATE v. DR. R.N. BHATNAGAR 697
'. Constitution. On the contrary, it is a rule of recruitment from two different A.
sources, namely, in case of Professor's cadre 75% of posts has to be filled
in by promotion while 25% by direct recruitment. These two sources of
recruitment permit departmental promotees and direct recruits from the
open market to get absorbed in the cadre. They merely, serve as two entry
points for the cadre. Rule 9 deals with reservation of appointment to the post B
of Professor and does not deal with reservation of posts of Professor for any
special class or category of candidates. It is well settled that once recruitment
is made from two sources, i.e., departmental promotees and direct recruitment
from open market and once the concerned candidates enter into any cadre
through entry point reserved for them they get fused and blended into one
single cadre and their birthmarks get obliterated. This would be in consonance C
with the thrust of Article 16(1) of the Constitution of India. No question of
exception to the said general thrust of the constitutional provision would
survive as Article 16(4) would be out of picture in such a case. Consequently,
the decision rendered by the Constitution Bench in R.K. Sabharwa/'s case
in connection with Article 16(4) and the operation of roster for achieving D
the reservation of posts for STs, STs and BCs as per the scheme of reservation
cannot be pressed in service for the present scheme of Rule 9(1) is not as
per Article 16(4) but is governed by the general sweep of Article 16(1).
(707-A-D; 708-D-EJ
R.K. Sabharwa/v. State ofPunjab, (1995) 2 SCC 745, held inapplicable.
E
1.2. When under the recruitment Rule 9 in question there is no
reservation of any given category of candidates like SCs, STs or BCs to the
posts in the cadre of Professors, appointments to the posts in the cadre have
to be made in the light of the percentage of vacancies in the posts to be filled
in by promotees or direct recruits. The quota of percentage of departmental
promotees and direct recruits has to be worked out on the basis of the roster F
po!nts taking Into consideration vacancies that fall due at a given point of
time. As the roster for 3 promotees and one direct recruit moves forward,
there is no question of filling up the vacancy created by the retirement of
a direct recruit by a direct recruit or the vacancy created by a promotee.
Irrespective of the identity of the person retiring, the post is to be filled by G
~ t> the onward motion of 3 promotees and one direct recruit. Whenever in the
cadre of Professors of Ophthalmology vacancies arise for being filled in at
any given point of time, those vacancies in the posts have to be filled in by
operating the roster in such a way that available vacancies get filled up by
allotting 75% of them to departmental promotees and 25% to direct recruits.
(711-D-F; 712-A-Bl H
698 \, SUPREME COU!l.T REPORTS (1998) SUPP. 3 S.C.R.

A 2;1. Though the word "Post" is used in Rule 9 of the rules it cannot·
be said that it must necessarily refer to total posts in the cadre and not to
vacancies. It is obvious that recruitment to rm up the vacancies as may be
_ existing from time to time in the cadre is controlled by the quota or percentage
of posts earmarked for promotees as compared to direct recruits. For working
out the rule of recruitment envisaging appointments from two sources of
B promotees and direct recruits, vacancies in the cadre of Professors have to .
be kept in view and not the posts themselves. Rule 9 laying down quota and
rota for monitoring recruitment from two sources of departmental promotees
~ and direct recruits can work uniformly in all the departments for recruitment
of Professors wh~re the posts of Professor in the concerned cadres of_
C departments may consist of a solitary or two posts or more than two posts
or may be five posts, as in the present case. This would result in a harmonious
operation of Rule 4 and Rule 9 and no part of Rule 9 will be rendered otiose
__or truncated in such a case. [713-C-E; 715-A-B) · · '
' 2.2. As the perc~ntage for ~~ruil.;,ent of Prof.S.ors f~~m departmental
D candidates was 75% and 25% of the appointments to posts were reserved
for direct recruits, the first three vacaricies in the cadre '-'ould go to promotees
. · and the fourth vacancy would go to a direct recruit; similarly 5th, 6th and
7th were to be filled in by departmental candidat.S and the 8th vacancy would
'·go to a direct recruit, 9th 10th and 1lth would go to departmental promotees
and the 12th vacancy would go to a direct recruit, 13th, 14th and 15th
E vacancies would go to departmental promotees. Therefore, the disputed 16th
vacancy would necessarily go to a direct recruit. Thai is how the roster
points were worked out by the appellant for regulating the recruitment from
two sources i.~. promotees and direct recruits. The reasoning adopted by the
High Court in connection with the working of the afores~id Rule falls foul
0

c..-F- . on th"e touchstone or Article 16(1) read wUh statutory scheme as envisaged
by these' rules.
. [713-A-C;
.
715-B-CI .

Pai-amjit Singh v; Ram Rakha, [1975) 3 sec 478, ·'•
... State of Kash",,,irv. Xriloki Nath Khosa, [l974[ 1 SeR 771 and Roshan
G Lal.Tandon v. Union of India, )1968[ 1SeR185;relied on.
R.K. Sabharwalv. State ofPunjab, [1995[ 2 sec 745 and Post Graduate
Institute of Medical Education & Research.Chandigarh v. Faculty
Association. [1998) 4 sec 1, held inapplicable.

_/<. 3.1. There were five posts in the cadre of Professor or Ophthalmology.
H The first three vacancies would go to promotees, the fourth would go to a
STA TE v. DR. R.N. BHATNAGAR 699
direct recruit and the 5th, 6th and 7th posts would go to the promotees, A .
Thereafter, the 8th roster point was to be filled in by a direct recruit but as
this took more time a departmental promotee was promoted. Such a promotee
could fill in only the 9th vacancy, which was earmarked for a departmental
promotee, and not the 8th vacancy earmarked for a direct recruit. The 8th
vacancy was, therefore, carried forward and when a direct recruit came to
be appointed qua roster point No. 8 though he was treated as junior to the B
said departmental promotee, he could be said to be appointed on the roster
point No. 8 which was carried forward. Consequently, the 9th roster point
got exhausted by the said departmental promotee and counting 9th point as
starting point for a fresh cycle for 3 promotees the 16th point must go to
a direct recruit. [717-F-H; 718-A-E) C
3.2. If the proviso to Rule 3 were to operate, the following conditions
are to be satisfied before the deeming fiction laid down therein could give
signals in favour of incumbents in the cadre of Professors recruited earlier
under the erstwhile executive instructions for recruitment.

(i) The persons concerned must be holding post specified In
D
Appendix 'B'.
.,. (ii) They must be holding posts immediately before the
commencement of the Rules i.e. before 28-7-1978, meaning
thereby they must be working as Professors when the statutory E
rules came into force.
(iii) If the aforesaid two conditions were satisfied then such existing
incumbents to the posts in the cadre of professors would be
deemed to have been appointed in service in accordance with the
provisions of the rules meaning thereby, they will not be treated F
to be outside the cadre of Professors as envisaged by the statutory
rules I.e., not ex-cadre employees and their existing Incumbency
will be protected though actually when they were recruited,
Rule 9 was not in the picture and is not the case of any one that
Rule 9 has any retrospective effect. (720-C-G)
G
3.3. If the aforesaid three conditions are satisfied the deeming fiction
with reference to these incumbents holding posts of Professors in the cadre
on 28-7-1978 will operate and treat them to have been appointed regularly
with a view to protect their rank, grade and scale laid down in Appendix '8'
to the rules or the grade and pay scale for which they duly exercised their
option earlier. The deeming fiction created by the proviso has a limited effect H
700 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A It only regulates the incumbency of the holders of the post of Professors in
the cadre on the appointed day when the statutory rules operated and,
therefore, regularisation will be deemed to be under the new rules for the
purpose of protecting their rank, grade and scale of pay. The deeming fiction ('_._
has been created by the proviso for this limited purpose only. This deeming
fiction cannot be extended by analogy to cover any other field not meant to
B be covered by its sweep. If the aforesaid four conditions envisaged by the
proviso were satisfied then the incumbents of all posts in the cadre who were
actually holding such posts when the statutory rules applied would remain
in the cadre irrespective of the source of their earlier recruitment and
nothing more. How they came into service earlier when executive instructions
c held the field is a consideration, which is foreign to the express wordings
of the proviso. It is also obvious that the earlier method of recruiting these
persons cannot be said to have any role to play while constituting the statutory
service, namely, Punjab Medical Education Service (Class-I) which had to
be constituted as per Rule 9 read with Rule 3 first part with effect from 28-
7-1978 and in undertaking that exercise the proviso would remain out of
D picture. 1720-G-H; 721-A-B; G-H; 722-A)

4. In the present case, when the statutory rules came into force on 28-
7-1978, in the cadre of Professors consisting of five posts only four were
actually occupied as the second incumbent had retired before the Rules came
into force and was no longer available to be covered by the sweep of the
E
proviso to Rule 3, as he was not a person holding the post of the Professor
immediately before the commencement of the rules. Thus, out of the five
posts in the cadre, three were filled in by departmental promotes and one was
filled in by a direct recruit. The rotational cycle, which was earlier envisaged
by the executive Instructions, was on the same lines as the statutory rotational
F cycle envisaged by Rule 9. Therefore, the 5th incumbency would naturally
have to be subjected to a new cycle pf rotation as per Rule 9(iXd) of the rules
meaning thereby the 1st, "lnd and 3rd vacancies after the rules came into
force would go to the promotees and the 4th would go to a direct recruit.
After the 5th incumbency at roster point No. 5, the 6th, 7th and 8th points
would become roster points nos. I, 2, 3 and would be available for filling up
G by promotion, when cycle of rotation under Rule 9 will operate for the first <J'"t-
time. Then roster point No. 9 would operate as point No. 4 for direct recruit.
Roster points 10,11,12 would operate as roster points 5, 6 and 7 for promotees;
roster point 13 occupied by the 12th incumbent will be tr'!ated as roster point ·-
No. 8 for direct recruit and roster point Nos. 14 and 15 will in effect become
H roster point Nos. 9 and 10 available to promotees. Therefore, the last vacancy
STATE v. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 701

of roster point shown at serial No. 16 in substance will become roster point A
No. 11 available to a promotee and only thereafter the next future vacancy
at point no. 17, which in substance, would be point no. 12 in the cycle
- ... envisaged by Rule 9(i)(d) would only go to a direct recruit. Uptill now that
vacancy has not arisen in the cadre. The disputed point at serial no. 16,
which in substance falls at roster point no. 11, therefore, goes to a promotee.
Consequently, on this alternative point, the conclusion is inevitable that the B
disputed point no. 16 which in substance is point No. 11 when considered in
the light of new cycle of rotation as per Rule 9(i)(d) as discussed earlier
would be a vacancy point available to be filled in by a departmental promotee.
(722-G-H; 723-A-H; 724-A-B)

5. A pure question of law not involving disputed question of fact can be
c
raised even for the first time before this Court.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6446 of 1998.

From the Judgment and Order dated 20.8.97 of the Punjab and Haryana D
High Court in C.W.P. No. 5893of1997.

H.K. Puri and R.S. Sodhi for the Appellants.

P.S. Patwalia and Manoj Swarup for the Respondent.

P.P. Rao, G.K. Bansal, Sanjay Bansal, Jamshed Bey and Ajay Talesara E
for the Respondent No. 2.

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. Leave granted.
F
By consent of learned counsel for the parties, we have heard this appeal
finally and the same is being disposed of by this judgment. The short question
involved in this appeal is as to how the quota and rota for recruiting Professors
in the Department of Ophthalmology in the medical college belonging to the

- appellant-State of Punjab is to be operated. The relevant factual matrix for
deciding this controversy may be noted at the outset.

Background facts :
G

The respondent, at the relevant time when this controversy arose, was
working as an Assistant Professor in the Department of Ophthalmology in the
Government Medical Colle_ge, Patiala. He was a promotee with effect from 20th H
702 SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.

A June, 1984. Earlier he was working as Senior Lecturer from 6.8.1981. The
question arose as to how the vacancy in the post of Professor of
Ophthalmology was to be filled in on the retirement of one Dr. Shiv Inder
Singh Rudra, Professor of Ophthalmology, with effect from 31. I 0.1996. The
relevant rule governing such posts is Rule 9(i)( d) of the Punjab Medical
B College Education Service (Class-I) Rules, 1978 (hereinafter referred to as the
Rules'). The said rule reads as under :

"(9) Method of Appointment :

( d) In the case of Professors :

c (i) 75 percent posts by promotion from amongst the Additional
Professors, or, where Additional Professors are not available, from
amongst the Associate Professors, or, where Associate Professors are
not available, from amongst the Assistant Professors, or by transfer
of official already in the service of the Government of India, or the
State Government;
D
(ii) 25 percent posts by direct recruitment;"

According to the appellant-State, as there were five posts in the cadre
of Professors of Ophthalmology in the said college, on the basis of the
aforesaid quota rule governing the recruitment in question, every three
E vacancies of Professors in the said cadre had to be filled in by departmental
promotees while the fourth vacancy would be filled in by direct recruitment
and thereafter succeeding vacancies to be filled in by promotees and direct
recruits in the successive cycles of 3: I. The case of the appellant-State is that
in the cadre of Professors of Ophthalmology in the said college, right from
F the beginning when the erstwhile executive instructions on the same lines
operated till the date of the falling of the vacancy in question, there were in
all 15 Professors including Dr. S.S. Rudra, who retired, as aforesaid, and,
therefore, on his retirement the 16th vacancy arose. As per the appellant-
State, on the operation of the quota rule and the roster cycles of 3: I, the 16th
vacancy would be available to a direct recruit as under :
G
I st vacancy to promotee, 2nd vacancy to promotee, 3rd vacancy to
promotee, 4th to direct recruit, 5th, 6th and 7th to promotees, 8th to
direct recruit, 9th, 10th and I Ith to promotees, 12th to direct recruit;
13th, 14th and 15th to promotees and the 16th to direct recruit.

H Consequently, the said vacancy was advertised for being filled up by direct
STATEv. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 703
recruitment. That brought the respondent to the High Court by way of writ A
petition. His contention in the writ petition was that in the light of the
Constitution Bench judgment of this Court in RK. Sabharwal and Ors. v.

- "
State of Punjab and Ors., [1995] 2 SCC 745, as there were total five posts in
the cadre of Professors of Ophthalmology 75% thereof, namely, 3.75 posts
had to be reserved for promotees and 1.25% of the remaining posts had to
be reserved for direct recruits. Rounding up these figures by taking digits B
upto .50 as nil and beyond .50 as 1, four posts in the said cadre had to be
filled in at a given point of time by promotees and one post had to be filled
in by direct recruitment and as at the time when the vacancy arose by
retirement of Dr. S.S. Rudra, there was already one direct recruit holding the
post of Professor, the vacancy in question had to go to the departmental C
promotee as he was the senior most Assistant Professor in the Department
of Ophthalmology. His claim to be promoted to the said post should have
been processed' in accordance with law and the said post should not have
been advertised for direct recruitment. This contention of the respondent was
accepted by the Division Bench of the High Court by its impugned judgment D
dated 20th August, 1997. The High Court noted that as Dr. S.S. Shergill is
already working as a Professor in the Department of Ophtalmology as a direct
recruit the vacancy in the post in question must go to a promotee as there
were only three promotee Professors occupying the posts of Professor in the
department at the relevant time. Thus, there was a clear vacancy of I post
for promotee in the said cadre of 5 posts of Professor. The fifth post, therefore, E
had necessarily to be filled in by promotion. The writ petition filed by the
respondent was, therefore, allowed and the advertisement dated May 10, 1997
issued by the appellant-State for filling up the post of Professor in the
Department of Ophthalmology by direct recruitment was quashed and set
aside. The appellant-State and its authorities were directed to fill up the post
by considering the eligible persons by way of promotion. F

It is now time for us to note the main contentions canvassed by learned
counsel for the appellant-State of Punjab Shri H.K. Puri and also by learned
senior counsel Shri P.P. Rao for the intervenor who is a prospective direct
recruit candidate for the said post on the one hand and the rival contentions G
canvassed by learned counsel for the respondent original writ petitioner on
the other.

Rival Contentions :

Learned counsel Shri H.K. Puri for the appellant and learned Senior H
704 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A Counsel Shri P .P. Rao, for the intervenor, submitted that the High Court had
misinterpreted the ratio of the Constitution Ber.ch judgment in the case of
R.K. Sabharwal and Ors. (supra). That the said decision pertained to a
scheme of reservation for Scheduled Caste and Scheduled Tribe persons
under Article 16(4) of the Constitution and had nothing to do with the present
scheme of the rule regulating the recruitment from two sources under Article
B 16(1) of the Constitution. It was next contended that under latter scheme, the
State authorities consistently followed the regulation of recruitment by ratio
3: I i.e. three promotees and one direct recruit in case of all future vacancies
in the cadre of Professors. That earlier by executive instructions and later by
the statutory rule this was consistently followed. Non-following the said
C practice would result in anomalies, which were tried to be demonstrated by
them. Reliance was placed also on a Division Bench Judgment of this Court
in the case of Paramjit Singh and Ors v. Ram Rakha and Ors., [1975] 3 SCC
478 as further clarified in the very same case in [1982] 3 sec 191 for supporting
their contention.

D Shri Patwalia, learned counsel for the respondent, on the other hand,
submitted that the ratio of the decision in R.K. Sabharwa/'s case (supra) was
rightly applied by the High Court. It was also submitted in the alternative by
him that even if the submission of learned counsel for the appellant and
learned senior counsel for the intervenor is right even then in view of the
E proviso to Rule 3 of the statutory rules, the cycle of 3: I would operate in
connection with all future vacancies that fell in the cadre w.e.f. 28.7.1978 and
earlier cycle had to be ignored. It was also contended that even in the working
of the cycle in the cadre in question the 16th vacancy (which would become
the I Ith vacancy if reckoned from a roster commencing from 28.7.78) would
go to promotee and not to direct recruit. Both learned counsel for the appellant
F and learned counsel for the intervenor submitted that this new contention
regarding the applicability of the proviso to Rule 3 should not be permitted
to be raised for the first time in these proceedings. Therefore, once it is held
that the High Court had wrongly applied the ratio of the decision in R.K.
Subharwal's case (supra) the appeal is required to be allowed.

G In the light of the aforesaid rival contentions, the following points arise
for our determination : -
(i) Whether the interpretation of Rule 9(i)(d), which appealed to the
High Court, is a correct one;
·H (ii) Even if the roster operates on vacancies in such a way that from
STATEv. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 705
the very inception of the roster, vacancies on first three roster A
points will go to promotees and the vacancy on the fourth roster
point will go to a direct recruit and similarly, in future for further
vacancies, whether the disputed 16th vacancy should go to a
direct recruit or a promotee;

(iii) If the answer to the first point 1s m negative, whether the B
ultimate decision of the High Court can be sustained on the
conjoint reading of Rule 3 and Rule 9 (i) (d) of the statutory rules
as submitted by learned counsel for the respondent; and

(iv) What final order?
c
We shall deal with the aforesaid points in the same sequence in which
they are noted herein-above.

Point No. 1:

So far as the first point is concerned, the High Court, in the impugned D
judgment, has heavily relied upon the Constitution Bench de2ision of this
Court in the case of R.K. Sabharwal & Ors. (supra). Now it has to be kept
in view that the Constitution Bench of this Court in the aforesaid decision
was concerned with entirely a different question, namely, as to how the roster
indicating reserved points in connection with reservation of posts in a cadre E
to be filled in by Scheduled Caste (for short 'SC'), Scheduled Tribe (for short
'ST') and Backward Class (for short 'BC') candidates could be operated.
Paragraph 4 of the Report lays down that "when a percentage of reservation
is fixed in respect of a particular cadre and the roster indicates the reserve
poiJl!s, it has to be taken that the posts shown at the reserve points are to
be filled from amongst the members of reserve categories and the candidates F
belonging to the general category are not entitled to be considered for the
reserved posts." In this connection, reliance was placed by the Constitution
Bench on Article 16(4) of the Constitution of India which permits the State
Govt. to make any provision for reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion of the State, G
was not adequately represented in the services under the State. In the light
of the aforesaid scheme of the Constitution, the Bench had to consider
whether reservation of posts for SCs, STs and BCs when sought to be
secured by way of operation of roster could permit the operation of the roster
qua the posts or vacancies in the cadre. It was noted in this connection that
if the roster operated on vacancies then it may happen that at a given point H
706 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A of time the percentage of reservation of posts for SCs, STs and BCs may
exceed the permissible percentage ofreservation. In paragraph 5 of the Report; "
it was observed that reservations provided under the impugned Government
instructions permitted 16% of the posts to be reserved for members of SCs
and BCs and it could be achieved by the roster to be maintained in each
B department. The roster had to be implemented in the form of running account
from year to year. In connection with "16% of the posts ... " to be reserved for
members of SCs and BCs in promotional posts, it was held as under:-

" ....... when recruitment to a cadre starts then 14 posts earmarked in the
100 points roster are to be filled from amongst the members of Scheduled
c Castes ........... When the total number of posts in a cadre are filled by
the operation of the roster then the result envisaged by the impugned
instructions is achieved. In other words, in a cadre of I 00 posts when
the posts earmarked in the roster for Scheduled Castes and the
Backward Classes are filled the percentage of reservation provided for
the reserved categories is achieved. We see no justification to operate
D the roster. The "running account" is to operate only till the quota
provided under the impugned instructions is reached and not thereafter.
Once the prescribed percentage of posts is filled the numerical test of
adequacy is satisfied and thereafter the roster does not survive."

E The aforesaid observations, which were heavily relied on by the High Court,
and are also relied upon by the respondent's (writ petitioner's) counsel before
us, cannot be of any assistance to the appellant-State on the facts of the
present case. The result is obvious. As per Article 16(4) which carves out a
separate field for itself from the general sweep of Article 16( I) which guarantees
equality of opportunity in matters of appointments in Govt. services to all
F citizens of India, the reservation for these categories in employment has to
be achieved by earmarking requisite percentage of posts for the reserved
category of candidates and by pitchforking these posts on roster points on
requisite points roster and· when such a roster takes a full cycle, posts
earmarked on reserved points will enable the requisite reserved category of
G candidates to fill up these posts. After that is done, the roster would be
treated to have achieved its purpose. Whenever a reserved candidate vacated
a reserved post, the said post was liable to be filled only by a candidate 4
belonging to the reserved category If after the roster is first operated and
thereafter it is again operated on future vacancies also, a situation may arise
wherein a cadre may get reserved category exceeding permitted quota of
H reservation. It is to avoid this contingency that the Constitution Bench laid
STATEv. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 707
down in the aforesaid decision as indicated therein. So far as Rule 9 of the A
Rules in the present case is concerned, it has nothing to do with reservation
of posts in the cadre of Professors. It is not a rule of reservation envisaged
for a specified category of persons as permitted by Article 16(4) of the
Constitution. On the contrary, it is a rule of recruitment from two different
sources, namely, in case of Professor's cadre 75% of posts had to be filled
in by promotion while 25% by direct recruitment. These two sources of B
recruitment permit departmental promotees and direct recruits from the open
market to get absorbed in the cadre. They merely serve as two entry points
for the cadre. Rule 9 deals with reservation of appointment to the posts of
Professor and does not deal with reservation of posts of Professor for any
special class or category of candidates. It is well settled that once recruitment C
is made from two sources i.e. departmental promotees and direct recruitment
from open market and once the concerned candidates enter into any cadre
through entry point reserved for them, they get fused and blended into one
single cadre and their birth marks get obliterated. In this connection, we may
usefully refer to a Constitution Bench decision of this Court in State of
Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1 SCR 771. Chandrachud, D
J. (as he then was) speaking for the Constitution Bench while dealing with
recruitment to a cadre from two sources, namely, direct recruits and promotees
in. the light of an earlier judgment of this Court in Roshan Lal Tandon v. Union
of India, [1968] I SCR 185 made the following pertinent observations :
E
"The key words of the judgment are: "the recruits from both the
sources to Grade 'D' were integrated into one class and no
discrimination could thereafter be made in favour of recruits from one
source as against the recruits from the other source in the matter of
promotion to Grade C". (emphasis supplied). By this was meant that
in the matter of promotional opportunities to Grade 'C' ," no F
discrimination could be made between promotees and direct recruits
by reference to the source from which they were drawn. That is to s~y,
if apprentice Train Examiners who were recruited directly to Grade 'D'
as Train Examiners formed one common class with skilled artisans who
were promoted to Grade 'D' as Train Examiners, no favoured treatment G
could be given to the former merely because they were directly recruited
as Train Examiners and no discrimination could be made as against the
latter merely because they were promotees. This is the true meaning
of the observation extracted above no more than this can be read into
the sentence next following: "To put it differently, once the direct
recruits and promotees are absorbed into one cadre, they form one H
708 SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.

A class and they cannot be discriminated for the purpose of further
promotion to the higher Grade 'C' ". In terms, this was just a different
way of putting what had preceded.

Thus, all that Roshan Lal' case lays down is that direct recruits and
promotees lose their birth-marks on fusion into a common stream of
B service and they cannot thereafter be treated differently by reference
to the consideration that they were recruited from different sources.
Their genetic blemishes disappear once they are integrated into a
common class and cannot be revived so as to make equals unequals
once again".

C It has, therefore, to be appreciated that when posts in a cadre are to be filled
in from two sources whether the candidate comes from the source of
departmental promotees or by way of direct recruitment once both of them
enter a common cadre their birth marks disappear and they get completely
integrated in the common cadre. This would be in consonance with the thrust
of Article 16(1) of the Constitution of India. No question of exception to the
D said general thrust of he constitutional provision would survive as Article 16
(4) would be out of picture in such a case. Consequently the decision rendered
by the Constitution Bench in R.K. Sabharwa/'s case (supra) in connection
with Article 16(4) and the operation ofroster for achieving the reservation of·
posts for SCs, STs and BCs as per the scheme of reservation cannot be
E pressed in service for the present scheme of Rule 9(1) is not as per Article
16(4) but is governed by the general sweep of Article 16(1). The attempt of
learned counsel for the respondent to treat a quota rule as reservation rule
would result in requiring the State authorities to continue the birth-marks of
direct recruits and promotees even after they enter the common cadre through
two separate entry points regulating their induction to the cadre. Therefore,
F the roster for 3 promotees and one direct recruit is to be continued every time
a vacancy arises and there is no question of filling up a vacancy arising out
of a retirement of a direct recruit by a direct recruit or on the retirement
vacancy of a promotee by a promotee. Consequently, the question of rotating
the vacancies as posts or for treating the posts mentioned in the rules of
G recruitment as necessarily referable to total posts in the cadre at a given point
of time in the light of R.K. Sabharwal's judgment (supra), therefore, cannot
survive for in the case of a quota rule between direct recruits and promotees
the same is to be judged on the touchstone of Article 16(1) and the statutory
rules governing the recruitment to the posts of Professor constituting the
Punjab Medical Education Service (Class-I) and not on the basis of Article
H 16(4). The Division Bench in the impugned judgment with respect wrongly
STATEv. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 709
applied the ratio of R.K. Sabharwal's case (supra) governing Article 16(4) to A
the facts of the present case which are governed by Article 16( I).

We may also mention that in brief written submissions filed on behalf
of the respondent an attempt is made to show that the word 'reserve' means
- to appropriate or to set aside. Dictionary meaning found in 'The Law Lexicon'
1997 edition of P. Ramanatha Aiyar is pressed in service in this connection. B
It is stated therein that reserve would mean 'to set apart' but as we have
already discussed Rule 9 is concerned with reservation of appointments from
two sources of recruitment. It does not envisage a scheme of reservation of
posts. Consequently, as the aforesaid dictionary meai,ing of term 'reserve'
cannot advance the case of the respondent.
c
On the other hand, the situation which has fallen for our consideration
in the present case in the light of Article 16(1) is squarely covered by a
decision of this Court in Paramjit Singh 's case (supra) as clarified by a latter
decision in the very same case reported in [ 1982] 3 SCC 191. In the aforesaid
main case, D.A. Desai, J., speaking for a bench of two learned Judges of this
Court, had to consider in paragraph 11 of the Report a recruitment rule which D
permitted fixed percentage of posts to be filled up in the given cadre from two
different sources, namely, promotees and direct recruits. Rule 6 of the Punjab
·' Police Service Rules, 1959, which came for consideration in that case provided
for a method of recruitment from two different sources i.e. 80% by promotion
from the rank of Inspectors and 20% by direct recruitment. Examining the E
working of the aforesaid quota rule for recruitment in the light of the relevant
rotational scheme of vacancies in the cadre to which such recruitment was
to be made, the following pertinent observations were made in paragraph 11
of the Report:

"Where recruitment to a cadre is from two sources and the Service F
Rules prescribe quota for recruitment for both sources a question
would always arise whether the quota rule would apply at the initial
stage of recruitment or also at the stage of confirmation. Ordinarily,
if quota is prescribed for recruitment to a cadre, the quota rule will
have to be observed at the recruitment stage. The quota would then
be co-related to vacancies to be filled in by recruitment but after G
recruitment is made from two different sources they will have to be
integrated into a common cadre and while so doing, the question of
their inter se seniority would surface ........ "

As there was some doubt about the observations found in the aforesaid
paragraph 11 and as to how the recruitment rule in question was to be H
710 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A operated in the light of the quota prescribed therein and the rotational method
of achieving the said quota of recruitment from two sources, a later Bench
clarified the position in the subsequent judgment in the case of Paramjit
Singh (supra). Another bench of two learned Judges, wherein D.A.Desai, J.,
was common, clarified the observation in paragraph 11 of the earlier Report
B as under :

"In our opinion there is no ambiguity in the judgment. Ordinarily
speaking, where recruitment is from two sources with a view to
integrating recruits from both sources after the recruitment seniority
is determined from the date of entry into the cadre except where there
c has been a substantial violation of the quota giving undeserved
advantage to one or the other source. Seniority ordinarily speaking is
determined with reference to the date of entry into the cadre which
in service jurisprudence is styled the date of continues officiation.
These notions of service jurisprudence may have to yield place to the
specific rules and the fact situation with reference to Rule 10 did
D compel this Court to depart from the normal concept in service
jurisprudence. However, introduction of a roster system is very well
known in service jurisprudence. What this Court meant while saying
that when a quota rule is prescribed for recruitment to a cadre it meant .
that quota should be co-related to the vacancies which are to be filled
E in. Who retired and from what source he was recruited may not be
very relevant because retirement from service may not follow the
quota rule. Promotees who came to the service at an advanced age
may retire, early and direct recruits who enter the service at a
comparatively young age may continue for a long time. If, therefore,
in a given year larger number of promotees retire and every time the
F vacancy is filled in by referring to the source from which the retiring
person was recruited it would substantially disturb the quota rule
itself. Therefore, while making recruitment quota rule is required to be
strictly adhered to. That was what was meant by this Court when it
said :
G "The quota rule would apply to vacancies and recruitment has to be
made keeping in view the vacancies available to the two sources
according to the quota. The quota in the present case is 4: 1 that is,
four promotees to one direct recruit. Therefore, whenever vacancies .
occur in the service the appointing authority has to go on recruiting
H according to quota. In other words, whenever vacancies occur, first
STATE v. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 711
recruit four promotees irrespective of the factors or circumstances A
causing the vacancies and as soon as four promotees are recruited
bring in a direct recruit. That was what was meant by this Court when
it said. that a roster has to be introduced and this roster must continue
while giving confirmation. The sentence which seems to have created
a difference of opinion reads as under :
B
"A roster is introduced while giving confirmation ascertaining
every time which post has fallen vacant and recruit from that
source has to be confirmed in the post available to the source."

The sentence cannot be read in isolation. It has to be read with
the earlier sentence that the quota rule would apply to the vacancies C
and recruitment has to be made keeping in view the vacancies available
to the two sources according to the quota. The Court then proceeded
to say that if the quota rule is strictly adhered to there will be no

-
difficulty in giving confirmation keeping in view the quota rule even
at the time of confirmation."
D
The aforesaid decision which squarely applies to the facts of the present
case, therefore, leaves no room for doubt that when under the recruitment
Rule 9 in question there is no reservation of any given category of candidates
like SCs, STs or BCs to the posts in the cadre of Professors, appointments
to the posts in the cadre have to be made in the light of the percentage of E
vacancies in the posts to be filled in by promotees or direct recruits. The
quota of percentage of departmental p~omotees and direct recruits has to be
worked out on the basis of the roster points taking into consideration vacancies
that fall due at a given point of time. As stated earlier, as the roster for 3
promotees and one direct recruit moves forward, there is no question of filling
up the vacancy created by the retirement of a direct recruit by a direct recruit F
or the vacancy created by a promotee by a promotee. Irrespective of the
identity of the person retiring, the post is to be filled by the onward motion
of 3 promotees and one direct recruit. Consequently, learned counsel for the
appellant and learned senior counsel for the intervenor were right when tliey
contended that the High Court in its impugned judgment had patently erred G
in invoking the ratio of decision of this Court in R.K. Sabharwa/'s case
(supra) which was rendered in an entirely different context for resolving an
entirely different controversy which did not arise on the facts of the present
case. They were also right in contending that the ratio of the decision of this
Court in Paramjit Singh 's case (supra) read with the decision of this Court
in the same case reported in [1982] 3 sec 191 would get squarely attracted H
712 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A in the facts of the present case. Once that conclusion is reached, the result
becomes obvious. Whenever in the cadre of Professors of Ophthalmology
vacancies arise for being filled in at any given point of time, those vacancies
in the posts have to be filled in by operating the roster in such a way that
available vacancies get filled up by allotting 75% of them to departmental
promotees and 25% to direct recruits. Exactly in this way the roster in the
B present case was operated by the appellant-State to regulate entry in the
cadre of Professors. The factual position in the present case, in the light of
,-
operation of the ros.ter for appointing candidates in the cadre of Professors
of Ophthalmology projects the following picture:

c AS PER THE STATE GOVERNMENT ROSTER POINT:

l. Dr. Dhanwant Singh 3.5.67 Promolion

2. Dr. Ranbir Singh 9.10.68 Promotion

3. Dr. Sohan Lal Sharma 10.9.69 Promotion
D
4. Dr. M.R.Chadha 13.12.71 Direct recruitment

5. Dr. Daljit Singh 26.6.74 Promotion
""'
6. Dr. K.K. Khanna 29.6.81 Promotion
E
7. Dr. D.C. Bansal 9.1.82 Promotion

8. Dr. Charanjit Lal 22.85 Direct recruitment

9. Dr. S.S. Rudra 1.11.83 Promotion
F
IO. Dr. D.C. Aggarwal 26.9.85 Promotion

11. Dr. M.S. Hora 3.10.85 Promotion

12. Dr. S.S. Shergill 8.7.94 Direct recruitment
G
13. Dr. Pawanjit Singh 20.I0.90A Promotion
Sandhu 9.I0.93R

14. Dr. M.S.Bhatia 6.12.% Promotion

H 15. Dr. Stal Paul 7.12.96 Promotion
STA TE v. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 713
As noted earlier, we are concerned with the disputed vacancy no. 16 which A
occurred at the roster point no. 16. As the percentage for recruitment of
Professors from departmental candidates was 75% and 25% of the appointments
to posts were reserved for direct recruits, the first three vacancies in the cadre
would go to promotees and fourth vacancy would go to a direct recruit,
similarly 5th, 6th and 7th were to be filled in by departmental candidates and B
the 8th vacancy go to direct recruit, 9th, I 0th and I Ith would go to
departmental promotees and the 12th vacancy would go to a direct recruit
13th, 14th and 15th vacancies would go to departmental promotees. Therefore,
the disputed 16th vacancy would necessarily go to a direct recruit. That is
how the roster points were worked out by the appellant for regulating the
recruitment from two sources i.e. promotees and direct recruits. Though the C
word "post" is used in Rule 9 of the rules it cannot be said that it must
necessarily refer to total posts in the cadre and not to vacancies. It is obvious
that recruitment to fill up the vacancies as may be existing from time to time
in the cadre is controlled by the quota or percentage of posts earmarked for
promotees as compared to direct recruits. As laid down by this Court in the
aforesaid two decisions rendered by the Division Benches of two learned D
Judges, speaking through D.A.Desai, J., it has to be held that for working out
the rule of recruitment envisaging appointments from two sources of promotees
and direct recruits vacancies in the cadre of Professors had to be kept in view
and not the posts themselves. Learned counsel for the appellant and learned
senior counsel for the intervenor were right when they contended that if the E
view which appealed to the High Court is to be accepted the very Rule 9 and
the scheme envisaged by it for effecting appointments to the cadre in the ratio
of 75% for promotees and 25% for direct recruits would get stultified and
frustrated. It was rightly submitted that if four vacancies are filled in from
promotees and only one vacancy is to be kept for a direct recruit on the basis
that there are total five posts in the cadre, then 75% of five posts would work F
out at 3.75 and have to be rounded up as four for the promotees and the
remaining 1.25 posts have to be rounded up as only one being less than 1.50.
Thus, in substance, the source of recruitment for promotees would get

, enhanced to 80% and that of direct recruits would be reduced to 20%. That
would fly in the face of the statutory rule which does not envisage such G
percentage ofreservation for promotees and direct recruits. It was also rightly
contended that the rule in question controls the recruitment to entire Punjab
Medical Education Service (Class 1). This service consist of various categories
of posts as specified in Appendix 'B' to the'rules. Rule 4 provides that the
service shall comprise the posts shown in Appendix 'B'. When we tum to
Appendix 'B', we find that there are number of posts of Professors sanctioned H
714 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A as on !st September, 1974 in various disciplines. For example, in the Department
of Phannacology there are only 2 posts, while in the Department of Forensic
Medicine there is only one post of Professor. Now, if the reasoning adopted
by the High Court is pressed in service for applicability of Rule 9 of the
recruitment rules then a very curious and anomalous situation would arise.
Jn the Department of Phannacology out of the two posts of Professor if 75%
B of the total posts in the cadre are to be eannarked for being filled in by
departmental promotees then it would result in eannarking of 1.50 posts for
promotees and only 0.50% posts for direct recruits. Ignoring these digits it
would result in earmarking one post for promotee and one post for a direct
recruit in the entire cadre of Professors of Phannacology. If that happens, then
C eannarking would reflect an entirely different scheme of recruitment rules
namely, 50% of posts of Professor would be available to be filled up by
promotees and 50% of posts would be available to be filled up by direct
recruits. That is not the scheme of Rule 9. Similarly, in case of Forensic
Medicine there is only one post of Professor. Adopting the line of reasoning
which appealed to the High Court for working·out Rule 9 if 75% of the said
D posts C': Professor is eannarked for promotees it would result into one as more
than 0.50% has to be rounded up to one. Therefore, there being only one post
of Professor in the cadre of Professor of Forensic Medicine, it will always to
go to a promotee and there will be no direct recruitment for that post.
Meaning thereby, Rule 9 in its applicability for regulating recruitment to the
E post of Professor in Forensic Medicine would result in eannarking the post
for a departmental promotee only by way of 100% reservation and there will
be no direct recruitment to the said post at any time in future making 0%
reservation for that service. This would stultify the operation of Rule 9 so far
as the cadre of Professors in Forensic Medicine goes. It must, therefore, be
held that Rule 9 which regulates appointments to the posts in the Punjab
F Medical Education Service (Class-I) has to be applied uniformly for recruitment
of Professors in all the cadres of disciplines. In such cases the method
followed by the appellant-State for recruitment of Professors in diverse cadres
of discipline as shown in Appendix 'B' to the rules remains the only workable
one. It is to the effect that as and when vacancy arises in the concerned cadre
G of posts in any of the discipline first three future vacam;ies would go to
departmental promotees and the fourth future vacancy would go to a direct
recruit. Meaning tliereby, even in the cadre of Professor of Forensic Medicine
where only one post of Professor is for the first time to be filled in, it will go
to a promotee and as and when such promotee retires or resigns or
unfortunately dies in harness the second vacancy would also go to a promotee,
H similarly, the third one but the fourth vacancy would go to a direct recruit.
STATE v. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 715
That is how Rule 9 laying down quota and rota for monitoring recruitment A
from two sources of departmental promotees and direct recruits can work
uniformly in all the departments for recruitment of Professors where the posts
of Professor in the concerned cadres of departments may consist of a solitary
post or two posts or more than two posts or may be five posts, as in the
present case. This would result in a harmonious operation of Rule 4 and Rule B
9 and no part of Rule 9 will be rendered otiose or truncated in such a case.
It must, therefore, be held that reasoning adopted by the High Court in
connection with the working of the aforesaid rule falls foul on the touchstone
of Article 16( 1) read with statutory scheme as envisaged by these rules. In
the light of our aforesaid conclusion, it become obvious that the disputed
16th vacancy in the cadre of Professors of Ophthalmology consisting of five C
posts would necessarily go to direct recruit and not a departmental promotee
as wrongly assumed by the High Court while allowing the writ petition.

Before parting with this discussion, we may mention one submission
placed for our consideration by learned counsel for the respondent. Placing
reliance on a latter Constitution Bench judgment in Post Graduate Institute D
of Medical Education & Research, Chandigarh v. Faculty Association and
Ors., [1998] 4 SCC 1, it was contended that this Court in the light of R.K.
Sabharwal's case (supra) held that where there was only one post in a cadre,
there could not be any reservation under Article 16 (4) for SCs and STs and
BCs. Similarly, if there is one post of a Professor, Rule 9 may not apply. In E
this connection, Paragraphs 34 and 35 of the Report at page 23 were pressed
in service. Ray, J., speaking for the Constitution Bench, stated in the said
paragraphs as under:

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

l:lence, 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 the device of rotation of roster in a
single post cadre is bound to create 100% reservation of such post H
716 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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 bounds 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
B
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 difficult to appreciate how this decision can be of any assistance to
C learned counsel for the respondent. It is obvious that in the a(oresaid case
the Constitution Bench was concerned with a similar scheme of reservation
for SC, ST & BC candidates and, therefore, Article 16(4) squarely arose for
consideration. To that extent the said decision falls in line with the legal
position examined by the earlier Constitution Bench in R. K. Sabharwa/'s case
D (supra). As we have' already opined earlier, the factual and legal situation in
the present case is entirely different. We are not concerned with any scheme
of reservation under Article 16(4). Therefore, R.K. Sabharwa/'s case (supra)
cannot be pressed in service, as seen earlier. If that is so, on the same lines
the ratio of the decision of this Court in the Post Graduate Institute of ·
Medical Education & Research case (supra) would also not apply. While
E deciding the question of working out the recruitment rule for ap;->ointment
from two sources ofpromotees and direct recruits wherein only Article 16(1)
would hold the field, un-inhibited by the exceptional category carved out from
said sub-article ( 1) by sub-article (4) thereof. The first point for determination
is, therefore, answered in favour of the appellants and against the respondent.

F Point No. 2:

So far as this point is concerned, learned counsel for the respondent
heavily relied upon the factual position regarding constitution of the cadre
of Professors of Ophthalmology, which according to him, would show the
G correct application of the roster points. It was submitted that even assuming
that the interpretation of learned counsel for the appellant for working out the
roster for future vacancies is correct, and which we have found to be correct
while answering point no. I as aforesaid, according to learned counsel for the
respondent, when vacancies were filled up from the very inception in the
cadre consisting of five posts of Professor of Opthalmology, the following
H picture emerged :
STATEv. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 717
THE CORRECT POSITION ACCORDING TO LEARNED A
COUNSEL FOR THE RESPONDENT:

I. Dr. Dhanwant Singh 3.5.67 Promotion

2. Dr. Ranbir Singh 9.10.68 Promotion

3. Dr. Sohan Lal Sharma lD.9.69 Promotion B
4. Dr. M.R.Chadha 13.12.71 Direct recruitment

5. Dr. Daljit Singh 26.6.74 Promotion

6. Dr. K.K. Khanna 29.6.81 Promotion
'
7. Dr. D.C. Bansal 9.1.82 Promotion c
8. Dr. S.S. Rudra 1.11.83 Promotion

9. Dr. Charanjit Lal 22.85 Direct recruitment

10. Dr. D.C. Aggarwal 26.9.85 Promotion
D
11. Dr. M.S. Hora 3.10.85 Promotion

12. Dr. Pawanjit Singh 20.I0.90A Promotion

Sandhu l.10.93R
'
·I 13. Dr. S.S. Shergill 8.7.94 Direct recruitment
E
14. Dr. M.S.Bhatia 6.12.96 Promotion

15. Dr. Sat Paul 7.12.96 Promotion
It was submitted that let us assume that the first three vacancies in the said
cadre of five Professors would go to promotees and the fourth point would
go to a direct recruit, then up to Dr D.C. Bansal at point no. 7, rotational cycle F
can be said to have correctly operated. However when we go to roster point
no. 8, that was filled in by Dr. S.S. Rudra on 1.11.83 by promotion, it could
be said that the 8th point which would have been reserved for direct recruit
was made available by the department on account of the exigency of service
to a promotee. Therefore, 8th point was shifted to 9th point which was given
G
- to Dr. Charanjit Lal by way of direct recruitment. Thereafter when the cycle
was to operate vacancies arising beyond the 9th vacancy I Oth, I Ith and 12th
. vacancies would go to promotees, the 13th vacancy would go to a direct
recruit and thereafter the next 14th, 15th and 16th vacancies would go to
promotees as per the methodology adopted by the appellants themselves
while working out this roster. It was, therefore, contended that 16th vacancy H
718 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A which is the disputed vacancy must go to a promotee. It is difficult to
appreciate this contention. Reason is obvious. The so-called correct position
of incumbency in the cadre of Professo~s consisting of five posts as submitted
for our consideration by learned counsel for the respondent clearly reflects the
seniority list and has nothing to do with the situation emerging from the
working out of th1: roster controlling the entry points for recruitment to the
B said posts from two different sources. It is obvious that the 8th roster point
was to be filled in by a direct recruit and as the counter filed by the appellant
in the present proceedings shows that the filling up of the post by direct
recruitment took more time because it had to be done through Public Service
Commission. Hence the departmental promotee Dr S.S. Rudra was promoted on
C 1.11.83 but while he was so promoted, he could fill in only the 9th vacancy
which was earmarked for a departmental promotee. The 8th roster point
earmarked for a direct recruit was, therefore, carried forward and when Dr.
Charanjit Lal came to be appointed qua roster point no. 8 on 2.2.85 though he
I
was treated as junior to Dr S.S. Rudra, he could be said to be appointed on
the roster point no. 8 which was carried forward. He could not be said to have
D occupied roster point no. 9 which was meant only for a departmental promotee
and on which point Dr S.S. Rudra got advance or accelerated promotion.
Consequently, the 9th roster point got exhausted by promotee Dr. Rudra and
I0th, I Ith points went to promotees, counting 9th point as starting point for
fresh cycle for 3 promotees and 12th point then was for direct recruit- Dr S.S.
E Shergill. Similarly, 13th, 14th and 15th vacancies went to promotees and
consequently, th«~ 16th vacancy must go to a direct recruit as rightly submitted
by learned counsel for the appellants and learned senior counsel for the
intervenor and that is how the roster on reservation of vacancies operated
from the inception i.e. from 1967 onwards firstly, as per executive instructions
and later on with effect from 28th July, 1978 as per the statutory rules. The
F working of the roster points up to 15 as indicated in an earlier part of this
judgment subject to what has to be considered while deciding point no. 3,
cannot be found fault with. In the result, the second point for determination
also has to be answered in favour of the appellant and against the respondent.

Point No. 3:
G
In the light of our conclusions on point nos. I and 2, this appeal would -
have been required to be allowed and the decision of the High Court would
have been required to be set asid~. However, a fresh contention canvassed
for our consideration in the alternative by learned counsel for the respondent
H requires a closer scrutiny, as in our view the decision thereon in favour of the
STATE v. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 719

respondent may entitle him to succeed and get the final decision of the High A
Court allowing the writ petition sustained on this alternative ground.

We may, however, mention at the outset, one primary objection pressed
in service by Shri Rao, learned senior counsel for the intervenor in this
connection. He submitted that this alternative contention in any case should
not be entertained for the first time in this appeal as such a contention was B
not canvassed before the High Court in the writ petition. That may be so.
However, we fail to appreciate how a pure question of law centering round
the construction of the proviso to statutory Rule 3 cannot be agitated by
learned counsel for the respondent for our consiJeration in these proceedings.
No disputed question of fact arises for consideration as wrongly assumed by C
learned senior counsel for the intervenor. Accepting the facts as well
established on the record the only question which would become relevant for
considering this alternative contention would be the correct scope and ambit
of the proviso to statutory Rule 3 of the rules. For raising such a pure
question of law, therefore, respondent's learned counsel, cannot be told off-
the-gates. This preliminary objection is, therefore, overruled. D

In support of this point, it was submitted by learned counsel for the
respondent that the Punjab Medical Education Service (Class-I) was constituted
for the first time by the statutory rules with effect from 28th July, 1978. That
Rule 4 of the rules lays down that the service shall comprise of posts shown E
in Appendix 'B'. We have referred to Rule 4 and entries in Appendix 'B' while
considering point no. I Rule 9(i) lays down that appointment to the posts in
the service shall be made in the manner provided therein. As noted earlier,
Rule 9(i)(d) enjoins that in case of Professors 75% of posts were to be filled
in by promotion while 25% posts by direct recruitment. Therefore, the Punjab
Medical Education Service (Class-I) which was constituted with effect from F
28th July, I 978 as per the statutory rules had to comprise of cadre of Professors
mentioned in Appendix 'B'. The recruitment to such cadres of Professors
would be governed by Rule 9(i)(d). It becomes, therefore, clear that from 28th
July, 1978 onwards while working out the statutory scheme of the rules for
the purpose of constitution of the service in question, the rotational cycle G
envisaged by the quota of rule as aforesaid had to start from the very first
vacancy in the cadre occurring on or after 28th July, 1978. This conclusion
is reached on a conjoint reading of Rules 3 and 9 of the rules as aforesaid.
As Rule 3 clearly provides that there shall be the constitution of service to
be known as the "Punjab Medical Education Service (Class-I)" con~isting of
persons recruited to the service under Rule 9 after the commencement of H
720 SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.

A these rules. Thus, fresh recruitment to the service had to be made under Rule
9 after the commencement of the rules. However, a question arose as to what
was to be done with respect to those incumbents in the cadre who were earlier
recruited when the erstwhile executive instructions were holding the fleld and
wherein the same quota rule governing the recruitment from two sources i.e.
B promotion and direct recruitment was holding the field. For answering that
question proviso to Rule 3 got enacted. It has to be examined closely. It lays
down that "the persons holding the posts specified in Appendix 'B' to these
rules immediately before such commencement shall be deemed to be appointed
to the service in accordance with the provisions of the rules on the designation,
grade and any scale laid down in Appendix 'B' to these rules or the grade
C and pay scale for which they duly exercised their option". If the proviso was
to operate, the following conditions were to be satisfied before the deeming
fiction laid down therein could give signals in favour of incumbents in the
cadre of Professors recruited earlier under the erstwhile executive instructions
for recruitment :

D (i) The persons concerned must be holding posts specified in
Appendix 'B';

(ii) They must be holding posts immediately before the

E
commencement i.e. immediately before 28th July, 1978, meaning
thereby they must be working as Professors when the statutory
rules ~ame into force;
-
(iiO If the aforesaid two conditions were satisfied then such existing
incumbents to the posts in the cadre of Professors would be
deemed to have been appointed in service in accordance with
the provisions of the rules meaning thereby, they will not be
F treated to be outside the cadre of Professors as envisaged by
the statutory rules i.e. not ex-cadre employees and their existing
incumbency will be protected though actually when they were
recruited, Rule 9 was not in the picture and it is not the case of
any one that Rule 9 has any retrospective effect; if the aforesaid
three conditions are satisfied the deeming fiction with reference
G
to these incumbents holding posts of Professors in the cadre on
28th July 1978, will operate and treat them to have been appointed
regularly with a view to protect their rank, grade and scale laid
down in Appendix 'B' to the rules or the grade and pay scale
for which they duly exercised their option earlier. The deeming
H fiction created by the proviso has a limited effect. It only regulates
STATEv. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 721
the incumbency of the holders of the post of Professors in the A
cadre on the appointed day when the statutory rules operated

- --.
and, therefore, regularisation will be deemed to be under the new
rules for the purpose of protecting their rank, grade and scale
of pay. The deeming fiction has been created by the proviso for
this limited purpose only. It, therefore, becomes obvious that B
this deeming fiction cannot be extended by analogy to cover
any other field not meant to be covered by its sweep. It is
difficult to accept the contention of learned senior counsel Shri
Rao for the intervenor that because of this deeming fiction it can
also be visualised that all those Professors who were earlier
recruited under the erstwhile executive instructions can be C
deemed to have been recruited as per 75% quota of departmental
promotees and 25% quota of direct recruits as envisaged by
Rule 9(i)( d). To accept this contention would amount to re-
writing the proviso to the effect that the persons appointed to
the posts specified in Appendix 'B' of these rules immediately
before such commencement including those who have retired D
and were not holding any post as on 28th July, 1978 shall be
deemed to be in service in accordance with the provisions of
.... these rules on the designation, grade and any scale laid down
in Appendix 'B' etc. to these rules or the grade and pay scale
for which duly exercised their option. It is obvious that the E
proviso has purposely not used the phraseology "persons
appointed to the posts" but has only used the phrase "persons
holding posts as found in Appendix B". The source of their
appointments under the erstwhile executive instructions and the
erstwhile percentage of reservation earmarking posts for
promotees and direct recruits as per executive instructions earlier F
operating, would remain outside the scope and sweep of the
proviso. In other words, ifthe aforesaid four conditions envisaged
by the proviso were satisfied then the incumbents of all posts
in the cadre who were actually holding such posts when the
statutory rules applied would remain in the cadre irrespective of G
the source of their earlier recruitment and nothing more. How
they came into service earlier when executive instructions held
the. field is a consideration which is foreign to the express
wordings of the proviso. It is also obvious that the earlier
method of recruiting these persons cannot be said to have any
role to play while constituting the statutory service, namely, H
722 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A Punjab Medical Education Service (Class-I) which had to be
constituted as per Rule 9 read with Rule 3 first part with effect
from 28-7-78 and in undertaking that exercise the proviso would
remain out of picture. Valiant effort made by learned senior
counsel Shri Rao for the intervenor to extend the scope and
reach of the proviso so as to import earlier cycles of rotation of
B vacancies which had got filled in past when executive scheme
of quota and rota operated and to treat them as cycles of
rotation under Rule 9 cannot be countenanced.

Once it is held on the correct construction of the proviso to Rule 3 that
C the incumbents who were holding the posts of Professor in the cadre of
Professors of Ophthalmology on 28th July, 1978 were protected and remained
employed in that cadre, let us see what factual position emerges by the
operation of the proviso on which there is no dispute between the parties.
In fact Shri Rao, learned senior counsel for the intervenor in fairness placed
for our consideration a chart showing the exact factual data, which is also
D accepted by learned counsel for the respondent. The chart submitted by Shri
Rao for our consideration is as under:

Appointments made according to roster in the cadre of Professors of
Ophthalmology from time to time :

E SI. No. Name Dt. of Joining Dt. of Retitrement

I. Dr. Dhanwant Singh 3.5.67(P) After 28.7.1978

2. Dr. Ranbir Singh 9.I0.68(P) Retired on 1.6.1974

F '
.). Dr. Sohan Lal Sharma I0.9.69(P) After 28.7.1978

4. Dr. M.R.Chadda 13.12.7l(D) After 28.7.1978

5. Dr. Daljit Singh 26.6.74(P) After28.7.1978

G Now, a mere look at this chart shows that on 28th July, 1978 when the
statutory rules came into force, in the cadre of Professors consisting of five
posts only four were actually occupied as Dr. Ranbir Singh who had joined
on 9.10.1968 being a promotee had retired from 1st June, 1974 and was no
longer available to be covered by the sweep of the proviso to Rule 3, as he
was not a person holding the post of the Professor immediately before the
H commencement of the rules. Once Dr.Ranbir Singh is excluded from
STA.TEv. DR. R.N. BHATNAGAR [S.B. MAJMUDAR, J.] 723
consideration and is not within the sweep of the proviso to Rule 3, the latter A
will project the following picture qua incumbents to the posts of Professor
in the cadre in question. Dr. Dhanwant Singh, Dr. Sohan Lal Sharma and Dr.
Daljit Singh were promotee Professors while Dr M.R.Chadda was a direct
recruit. Thus, out of the five posts in the cadre, three were filled in by
departmental promotees and one was filled in by a direct recruit. The rotational
cycle which was earlier envisaged by the executive instructions was on the B
same lines as the statutory rotational cycle envisaged by Rule 9. Meaning
thereby, the first three vacancies will go to promotees and the fourth vacancy
will go to a direct recruit. Consequently, by the time the statutory rules came
into force and constituted the Punjab Medical Education Service (Class-I) in
the cadre of Professors of Ophthalmology three posts were filled in by C
promotees and one post was filled in by a direct recruit and the proviso would
protect them and treat them as cadre employees. That resulted in the complete
running up of the first rotational cycle as according to learned counsel for
the appellant and learned senior counsel for the intervenor the rotational
cycle for the purpose of earmarking the posts in the cadre of Professors
would be 75% of posts for promotees and 25% of posts for direct recruits. D
Meaning thereby, out of four vacancies three will go to promotees and one
will go to a direct recruit. Moment that is achieved, the cycle took a full tum
• r
even under the proviso, as on 28-7-78. As per the proviso to Rule 3 in the
light of the aforesaid factual data, therefore, there is no deviation from the
conclusion that the earlier cycle of rotation envisaged by the erstwhile executive E
instructions had taken a full tum. Therefore, any vacancies arising after Dr.
Daljit Singh's incumbency would naturally have to be subjected to a new
cycle of rotation as per Rule 9(i)(d) of the rules meaning thereby the 1st, 2nd
and 3rd vacancies after the rules came into force would go to promotees and
4th would go to a direct recruit. When we tum to the incumbency position
in the light of the roster points in the cadre in question, as per the chart at F
page 30 of the judgment, we find that after Dr. Daljit Singh at roster points
no.5, the 6th, 7th and 8th points would become roster points nos. I, 2, 3 and
would be available for filling up by promotion, when cycle of rotation under
rule 9 will operate for the first time. Then roster point no.9 would operate as
point no.4 for direct recruit. Roster points IO, 11, 12 would operate as roster G
.. ,.
__
points 5, 6 and 7 for promotees; roster point 13 occupied by Dr. Pawanjit
Singh will be treated as roster point no.8 for direct recruit and roster point
~ nos. 14, 15 will in effect become roster point nos.9 and 10 available to promotees.
j Therefore, the last vacancy of roster point shown at serial no. 16 in substance
will become roster point no. 11 available to a promotee and only thereafter
the next future vacancy at point no. 17, which in substance, would be point H
724 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A no. 12 in the cycle envisaged by Rule 9(i)(d) would only go to a direct recruit.
Uptill now that vac:ancy has not arisen in the cadre. The disputed point at
serial no. 16 which in substance falls at roster point no. 11, therefore, goes
to the promotees. Consequently, on this alternative point, the conclusion is
inevitable that the disputed point no. 16 which in ~ubstance is point no. I I
when considered in the light of new cycle of rotation as per Rule 9(i)(d) as
B discussed earlier would be a vacancy point available to be filled in by a
departmental promotee. The submission of learned senior counsel, Shri Rao
for the intervenor that even though Dr. Ranbir Singh was not holding the post
on the appointed day when the statutory rules came into force his vacancy
has to be treated to have been occupied by roster point under the earlier
C rotational system of executive instructions meant for a promotee and that may
be considered for working out the cycle under the erstwhile executive
instructions cannot be countenanced for the simple reason that the said
submission would n:sult in enlarging the scope of the proviso and the deeming
fiction beyond the limited periphery on which it is required to be operated,
as discussed earlier. In the result, it must be held that the alternative point
D no. 3 is well sustained and has to be answered in favour of the respondent
and against the appellants and the intervenor. Once this conclusion is reached,
the final decision rendered by the High Court in the impugned judgment to
the effect that the advertisement dated I 0th May, 1977 has to be quahed when
it sought to fill up the post of Professor in the Department of Ophthalmology
E by direct recruitment, has to be sustained. The final decision of the High
Court is upheld by us entirely on a different reasoning centering round the
consideration of the new alternative point no.3, though the reasoning adopted
by the High Court for coming to the said conclusion is not accepted by us
while deciding point no. I as seen in earlier part of this judgment. It is,
therefore, held that the impugned advertisement was unauthorised and illegal
F as it was in connection with roster point no. 16 which in substance was roster
point no. 11 and was to be filled in only by a departmental promotee.

Point No.4:

In the result, this appeal fails and is dismissed. However, on the facts
G and circumstance of the case, there will be no order as to costs.
v.s.s. Appeal dismissed.