UNION OF INDIA v.

MADHAV — A CRITICAL ANALYSIS

THE INDIAN Constitution incorporates certain special provisions under articles

14,15 and 16 to achieve one of the goals set by the preamble, namely equality of
status and of opportunity. The Constitution also includes certain enabling provi-
sions under these articles which confer a discretionary power on the state to make
reservations in favour of a certain class of citizens. The courts have been called
upon to interpret these provisions and their decisions occasionally, instead of
crystallising the position of law have caused a more fluid state as far as the policy
of reservations is concerned, be it for providing opportunities for education or for
appointmcnt\promotion as far as employment is concerned to the scheduled
caste\tribes or other backward classes.
Though the subject is as wide as an ocean, the specific points under study in
the light of the recent Supreme Court decision in Union of India v. Madhav1 are.
(/) whether the principles of reservation would be applicable to a lone post'.' (//}
If not, can the principles be extended by resorting to the roster system?
Before proceeding to the point in issue, a brief narration of the factual matrix
that led to the decision rendered by the Supreme Court would be helpful in
understanding the points under study. The Government of India created certain
posts in the National Savings Scheme Service. There were a number of posts o\~
superintendent but the post of secretary, to which the post of superintendent is the
feeder post, was only one. The post of secretary is the feeder post for promotion
as regional deputy director where also there were several posts. The respondent.
i.e., Madhav approached the Central Administrative Tribunal at Bombay when the
appellants filled up the post of secretary by promoting a scheduled tribe candidate
by resorting to the roster system. According to the appellants, it was a 4lh point
and in the 40 point roster it was shown as being reserved to be filled by a scheduled
tribe candidate. Following the decision rendered by the Supreme Court in
Chakradhar Paswan v. Stare of Bihar2 the tribunal had set aside the promotion
holding that since the post of secretary is a single post, no reservation could he
granted to the candidates. This was carried in appeal (hereinafter referred to as
present case) by the Union of India and as the decision in Chakradhar Paswan was
decided by a Division Bench of 2 judges, the matter was referred to a three-judge
Bench. The appeal was allowed by its judgment dated 18.9.1996.
This paper critically analyses the same in the light of the earlier judgments
rendered by the Supreme Court. The decision requires a reconsideration at the
hands of a Constitutional Bench in view of the importance of the issue. The
frequency with which this is cropping up before the tribunals and the courts
necessitates an authoritative pronouncement. With due respect the judgment in the
present case is erroneous for the following reasons:
The judgments rendered by the Supreme Court in General Manager, S. Rly v.
Rangachari3, where it was held that the application of reservation to the selection

1. AIR 1997 SC 3074.

2. AIR 1988 SC959.
3. AIR 1962 SC 36.

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456 JOURNAL OF THE INDIAN LA W INSTITUTE | Vol V) 2 4

post was not violative of article 16 (I) was in no way concerned or relevant lot
the decision in respect of the point under study. It is not disputed and at any rate
that was not which the Supreme Court was called upon to adjudicate in the present
case. It cannot be said that the above decision of the Constitution Bench in any
way lends support to the proposition laid down in the present ease.
Similarly, the reference to the cases of State of Kerala v. N. M. Thomas.1 Slate
of Punjab v. Hiralaf5 Akhil Bharatiya Soshit Karornchari Saiigh v. Union of
India6 and Comptroller and Auditor General v. S.K. Jagannathha which were
referred to a larger Bench were all relating to the applicability of principles of
reservation for promotions. This and the discussion regarding the 77th Amend-
ment which introduced article 16 (AA) was also not germane for determining the
question formulated. It may be stated that it is also now well settled that the
principles of reservation would be applicable even to promotions. But the question
which fell for consideration in the present case was not regarding applicability oi
reservations in respect of promotions.
It is beyond doubt that one of the modes to ensure equality to the depressed
c l a s s e s is the e x t e n s i o n of r e s e r v a t i o n and c o n c e s s i o n by the stale \'ov
appointment\promotions to an office or post under its service. This has been
approved by the Supreme Court and also in the light of the introduction of article
16 (AA) by way of the 77th Amendment to the Constitution, this proposition is no
longer open to any doubt.
The Supreme Court has been consistent in laying down that the reservations
should not normally exceed 50 per cent. The latest in this line is the judgment of
the court in Indra Sawhney's case 7 where it was held that the 50 per cent rule is
to be maintained. This would be a very vital point in deciding the questions
formulated at the beginning of this paper. Right from the decision in M.R.
Balaji's8 case the 50 per cent rule has been treated as a guideline for implemen-
tation of reservations including the carry forward rule. The applicability of
reservation where the percentage is excessively high, has been struck down by the
Supreme Court as being unconstitutional. Thus reserving the lone post would
undoubtedly violate the equality provisions of the Constitution. This was pre-
cisely the issue in Chakradhar Paswan's ease. 9 It was categorically stated therein
that it would be a moot point whether the isolated post can be subjected to the 50
point roster. The government in that case sought to fuse the post of director and
3 posts of deputy director in the Directorate of Indcgenous Medicine and apply
roster for filling up the posts of deputy directors. While dealing with this
contention, the court referred to para 6.1 of the Brochure on Reservation for
Scheduled Castes and Tribes in Services wherein it was provided that for the
purposes of direct recruitment, isolated individual posts can be grouped and small

4. (1976) 2 SCC 310.

5. (1970) 3 SCC 567.
6. (1981) 1 SCC 246.
6a. AIR 1987 SC 537.
7. Indra Smvhnev v. Union of India, (1992) Supp (3) SCC 210 at 217.
8. MR. Balaji v. State of Mysore. AIR 1963 SC 649.
9. Supra note 2.

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19971 UNION OF V. MADHA V — A CRITICAL ANALYSIS 457

cadres may be grouped with posts in the same class for purpose of reservations
taking into account the status, salary and qualifications prescribed for the posts
in question. An illustration was provided to explain the concept as regards the
grouping of isolated posts. It was observed:

Professors in Medical Colleges are carried on the same grade or scale of

pay but the posts of Professor of Cardiology, Professor of Surgery,
Professor of Gynaecology pertain to particular disciplines and therefore
each is an isolated post. 1 0

The court arrived at the following conclusion:

These principles unmistakably lead us to the conclusion that if there is

only one post in the cadre, there can be no reservation with reference to
that post either for recruitment at the initial stage or for filling up a future
vacancy in respect of that post. A reservation which would come under
Art, 16 (4) pre-supposes the availability of at least more than one post in
that cadre. 1 1

From the above, the implication drawn that two or more single posts carrying
the same scale of pay could be fused, would be clearly erroneous. The criteria for
grouping of the isolated posts even if applicable to promotions ought to be viewed
taking into account the status, salary and qualifications for the post under question
but the scale of pay cannot be the sole criterion for determination of the equiva-
lence for the purpose of grouping.
A reference was also made to the decision rendered by the Constitution Bench
of the Supreme Court in Arati Ray Choudhury v. Union of India,xl The court stated
that it considered the question of single post and applied the rule of reservation
by rotation to the carried forward post and filled the post when reserved candidates
were available on carried forward posts. It is respectfully stated that the premise
itself is wrong and thus the conclusion drawn is also erroneous, It may be stated
that in that case there were 2 posts of headmistress in 2 schools run by the South
Eastern Railway, one at Adra and another at Kharagpur. While filling up the post
at Kharagpur by a scheduled caste candidate, the petitioner therein approached the
court. Taking into account the instructions in this respect by the Railway Board.
this was filled by a scheduled caste candidate. This is so because the vacancy at
Adra being only one in the particular year, it was to be treated as unreserved.
Against this one Mrs. Biswas an open candidate was appointed and this point
carried forward. The circular provides that if in the subsequent year also there is
only one vacancy, it is to be treated as reserved and this was to ensure thai the
fruits of the policy of reservation pass on to those at whose welfare it is aimed.
To meet such contingencies, the Railway Board circular further specified that in
the 2 recruitment years, though only one vacancy arises a panel of 2 is to be

H). Id. at 964, para 9

11. Id. at 968, para 16.
12. AIR 1974 SC 532.

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458 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 39 2 - 4

prepared, one for the existing vacancy and another to cover unforeseen circum-
stances. It was in this background, the Supreme Court dismissed the writ petition
under article 32 of the Constitution filed by the petitioner therein. It cannot at any
rate be stated that this is an authority for the principle decided in the present case
as admittedly there were 2 posts and thus principles of reservation and conse-
quently, the roster were made applicable. The court, while drawing the principle
from Arati Ray Choudhury that reservations would be applicable to carried
forward posts even if a single vacancy arises, returns a finding that it would be
applicable even in a cadre with single post by following rotation.
The observation that "Article 14 and 16(1) equally applies to Scheduled
Castes and Scheduled Tribes and they too are entitled to seek equal opportunity
to hold the single post by promotion. Otherwise, it would amount to total
prohibition of opportunity to hold the single point post which also violates Arts.
14 and 16 (I)", 1 3 is startling. Not reserving a post or not applying the principles
of reservation cannot be said to be violative of articles 14 and 16(1) for the simple
reason that both these articles provide for equality. Reservations and concession
to the scheduled castes and tribes under article 16(4) is only to ensure equality of
opportunity to the oppressed and downtrodden, popularly termed as 'protective
discrimination'and are considered an exception to the equality clause in article 16
(1). Where a post is reserved, candidates of open category would not be selected
or appointed against these posts. But it is not the case where a post is unreserved.
A candidate belonging to the scheduled caste, tribe or backward classes, if he is
meritorious, would be considered even against an open category post. He would
be treated as a general candidate and would not be deprived of the post if he is
otherwise suitable on the sole ground that the post is unreserved and he belongs
to the scheduled caste\tribe or backward class as the case may be. Thus, it can be
seen that no violation of equality clause would be done. The observation that non-
application of a rotation system in respect of a lone post would amount to a total
prohibition may not be an argument that can be logically sustained in view of the
dictum of the Supreme Court in Akhil Bhartiya Soshit Karmachari Sangh v. Union
of India.u The next question that remains is as to the applicability of the roster
in respect of a single post. In this regard the judgment of the Constitution Bench
in R.K SabharwaP5 has to be seen. Here, the object of the maintanence of roster
or a running account was stated- It was observed;

The reservations provided under the impugned Government instructions

are to be operated in accordance with the roster to be maintained in each
department. The roster is implemented in the form of running account
from year to year. The purpose of "running account" is to make sure that
the Scheduled Castes\Scheduled Tribes and Backward Classes get their
percentage of reserved posts. The running account is to operate only till
the quota provided under the impugned instructions is reached and not

13. Supra note 1 at 3077, para 8.

14. (1996) 6 SCC 65.
15. R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.

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I997J UNION OF V. MADHAV — A CRITICAL ANALYSIS 459

thereafter. Once the prescribed percentage of posts is filled the numerical

test of adequacy is satisfied and thereafter the roster does not survive. 16

Further in respect of "posts" and "vacancies", it was pointed out:

The cadre strength is always measured by the number of posts comprising

the cadre. Right to be considered for appointment can only be claimed in
respect of a post in a cadre. As a consequence the percentage of reserva-
tion has to be worked out in relation to the number of posts which form
the cadre-strength. The concept of \vacancy' has no relevance in operat-
ing the percentage of reservations. 17

A combined reading of the above in the judgment rendered by the Constitution

Bench leads to the following conclusions:
(i) The percentage of reservation is to be worked out based on the cadre
strength. If this is so, no reservation can be made in a cadre having a
single post as it would amount to cent per cent reservation which was
held to be unconstitutional by the Supreme Court right from the case of
M R Balaji to the recent case of Indra Sawhney.

(ii) Roster is for the purpose of ensuring the arithmetic accuracy as far as
reservation is concerned. Thus, when reservation itself cannot be made
in view of the conclusion (/) above, the applicability of the roster or
running account itself would be inapplicable.
But the judgment in the present case stated as follows:

In R.K. Sabharwal v. State of Punjab, a Constitution Bench of this Court

considered whether the reservation as per the roster by promotion could
be valid and consistent with Art. 16 (I) of the Constitution. This court had
pointed out that the reservation to the post as per the roster for the purpose
of promotion is valid in law.18

It may be pointed out that the facts of that case were regarding applicability
of roster. After all the posts as per the cadre strength is filled up in accordance with
the roster or running account. It was a case where the court was not called upon
to examine the applicability of roster in respect of a single post cadre. Thus, it may
not be proper to telescope the ratio of that judgment into the facts of the present
case.
The court in the present case held:19

(T)hat even though there is a single post, if the Government have applied
the rule of rotation and the roster point to the vacancies that had arisen

16. Id. at 750-51, para 5.

17. Id. at 751-52, para 6.
18. Supra note 1 at 3077, para 9.
19. Id. at 3078, para 10.

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in the single point post and were sought to be filled up by the candidates
belonging to the reserved categories at the point on which they arc
eligible to be considered, such a rule is not violative of Art. 16 (I) of the
Constitution.

While allowing the present case, it further held that since the government has
adhered to the rule of rotation to a single post and 40 point roster was made
applicable, the vacancy reserved for the scheduled castes and scheduled tribes as
and when it arises is to be filled up by such candidates as and when they arc
available. In the light of the discussion above, it would be doubtful as to whether
the government can apply the principle of following the roster to the single post
cadres as in the present case.
This needs an authoritative pronouncement of a larger Bench of the Supreme
Court.

Siva*

Advocate, Andhra Pradesh High Court.

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