B. N. Tiwari vs Union of India and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Writ Petition No. 110 of 1964

Decision Date: 10 December, 1964

Coram: K.N. Wanchoo, P.B. Gajendragadkar, J.C. Shah, N. Rajagopala Ayyangar, S.M. Sikri

In this case the Court recorded that a petition was filed by B N Tiwari against the Union of India and certain other respondents. The petition was presented on 10 December 1964 before the Supreme Court of India. The judgment was delivered by a Bench consisting of Justice K N Wanchoo, Justice P B Gajendragadkar who acted as Chief Justice, Justice J C Shah, Justice N Rajagopala Ayyangar and Justice S M Sikri. The case was cited as 1965 AIR 1430 and 1965 SCR (2) 421, and it appeared in later citations such as D 1974 SC1480, RF 1977 SC 879, RF 1986 SC 515 with references to paragraphs 103, 106 and 107. The matter concerned the Central Services Act and the reserved quota for candidates belonging to Scheduled Castes and Scheduled Tribes.

The Court explained the factual background by referring to a resolution of the Ministry of Home Affairs issued in 1950. That resolution had fixed a reservation of twelve and one half percent for Scheduled Castes and five percent for Scheduled Tribes in all vacancies in public services that were to be filled from year to year. In 1952 the Government introduced a “carry forward” rule whereby any unfilled reserved vacancies of a particular year were permitted to be carried forward for one year only. This rule was subsequently replaced in 1955 by a new rule which allowed the unfilled reserved vacancies to be carried forward for two years.

In 1960 the Union Public Service Commission conducted a limited competitive examination for promotion to the post of Section Officer. The petitioner, who at that time held the position of Assistant in the Central Secretariat Service, participated in the examination and secured the thirty‑seventh rank. Although the examination resulted in forty‑three appointments, the petitioner was not appointed because under the 1955 “carry forward” rule a total of twenty‑eight vacancies were required to be filled by candidates belonging to Scheduled Castes and Scheduled Tribes. In 1963 the Supreme Court, in the case of Devadasan v. Union of India, declared the 1955 rule to be invalid. Following that judgment the petitioner instituted a petition under Article 32 of the Constitution, contending that the 1952 “carry forward” rule had been superseded by the 1955 rule and, since the latter had been held unconstitutional, there was no “carry forward” rule applicable in 1960. Consequently, the petitioner argued that his rank entitled him to be appointed to the post of Section Officer.

The Court held that when the 1952 “carry forward” rule was replaced by the 1955 rule, the earlier rule ceased to have any effect. Because the 1955 rule was declared unconstitutional in Devadasan’s case, no “carry forward” rule existed at the time the petitioner appeared for the 1960 examination. The Court further clarified that the decision in Devadasan’s case dealt only with the specific provisions concerning the “carry forward” mechanism and did not affect the statutory reservation of twelve and one half percent for Scheduled Castes and five percent for Scheduled Tribes. Those reservations therefore remained operative. After satisfying the statutory reservations, only thirty‑four unreserved vacancies remained, and the petitioner’s rank of thirty‑seven was insufficient to secure an appointment.

In this case, the Court observed that after the application of the reservation policy, a number of vacancies remained unfilled and, because the petitioner’s rank was lower than the cutoff for the unreserved category, he was unable to obtain the appointment. The Court cited the earlier decision in T. Devadasan v. Union of India, A.I.R. 1964 S.C. 179, to explain the factual and procedural background of the present petition. The petition was filed as Writ Petition No. 110 of 1964 under article 32 of the Constitution of India for the enforcement of the petitioner’s fundamental rights. Counsel for the petitioner were B. Sen and B.N. Kirpal, while the Solicitor‑General, C.K. Daphtary, together with B.R.G.K. Achar, appeared for the two respondents. The judgment was delivered by Justice Wanchoo.

The Court noted that the petition was a direct sequel to its earlier judgment in T. Devadasan v. Union of India. The petitioner held the position of Assistant in Grade IV of the Central Secretariat Service. The next higher post to which he could aspire was that of Section Officer, also known as Assistant Superintendent. Recruitment to the Section Officer post was carried out in three distinct ways. First, fifty percent of the posts were filled by direct recruitment of candidates who had secured lower ranks in examinations such as the Indian Administrative Service exam. Second, twenty‑five percent of the posts were filled by promotion from Grade IV on the basis of a departmental examination conducted periodically by the Union Public Service Commission. Third, the remaining twenty‑five percent were filled by promotion from Grade IV on the basis of seniority coupled with fitness.

The Court recorded that in February 1960 the Union Public Service Commission issued a notification announcing that a limited competitive examination for promotion to the Section Officer post would be held in June 1960. The notification further declared that a reservation of twelve and one‑half percent of the vacancies would be made for members of the scheduled castes and five percent for members of the scheduled tribes. The exact number of vacancies to be filled was to be fixed at a later stage. The petitioner appeared for the examination and, according to the records, secured the thirty‑seventh position in the order of merit.

Subsequently, a press communique issued by the Union Public Service Commission stated that the expected number of appointments was forty‑eight, of which thirty‑two would be reserved for scheduled castes and scheduled tribes and sixteen would be unreserved. However, the Commission later recommended forty‑five names for appointment, comprising sixteen unreserved candidates and twenty‑nine candidates for the reserved quota. Ultimately, the Government effected only forty‑three appointments, with fifteen filled from the unreserved quota and twenty‑eight from the reserved quota.

The Court explained that the unusually high level of reservation for scheduled castes and scheduled tribes resulted from the application of the “carry forward” rule that had been introduced in 1955. The Court referred to the resolution of the Ministry of Home Affairs dated 13 September 1950, which had fixed reservation at twelve and one‑half percent for scheduled castes and five percent for scheduled tribes, without any provision for a carry‑forward mechanism. In 1952, supplementary instructions were issued that introduced clause 5(3), which provided that if a sufficient number of candidates from the reserved communities were not available, the unfilled vacancies would be treated as unreserved and a corresponding number of vacancies would be reserved for the following year. The Court quoted the wording of this clause to illustrate the legal basis for the carry‑forward of unfilled reserved vacancies.

The Court explained that the 1952 instructions stipulated that when candidates belonging to the communities for whom reservations were made were eligible for a post and were judged by the recruiting authorities to be suitable in every respect, but such candidates were not available, the vacancies that remained unfilled would be treated as unreserved and would be filled by the best available candidates. However, the number of vacancies that were therefore treated as unreserved would be added as an additional quota to the number of vacancies that would be reserved for those communities in the following year, in addition to the quota originally prescribed under the resolution.

The instructions further provided in clause 5(4) that if, in the subsequent year, suitably qualified candidates of the reserved communities were again unavailable to fill the vacancies that had been carried forward under clause 5(3), those vacancies would also be treated as unreserved and the reservations made in those vacancies would lapse. As a result, the instruction created a mechanism whereby reserved vacancies for Scheduled Castes and Scheduled Tribes that could not be filled in one examination would be carried forward to the next examination, but if a sufficient number of candidates from those communities were not available to fill both the carried‑forward vacancies and the new vacancies of the next year, the unfilled positions would be treated as unreserved and the reservation in those positions would cease.

The Court noted that, according to the 1952 instructions, this carry‑forward arrangement applied only for two years, after which there was no further carry‑forward provision. In 1955 the Government amended the carry‑forward rule by substituting the earlier paragraphs 5(3) and 5(4) with a new provision labelled 5(3)(a). Under the revised clause 5(3)(a), if a sufficient number of candidates considered suitable by the recruiting authorities are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies shall be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved shall be added as an additional quota to the number that would be reserved in the following year in the normal course, and to the extent that approved candidates are not available against this additional quota, a corresponding addition shall be made to the number of reserved vacancies in the second year thereafter.

The Court illustrated the effect of this amendment by describing the situation for the year 1954. The reserved vacancies of 1954 that were treated as unreserved because suitable candidates were lacking were added to the normal number of reserved vacancies for 1955. Any recruitment undertaken in 1955 against those vacancies would first be counted against the additional quota carried forward from 1954. If suitable candidates were still unavailable in 1955 and certain vacancies were again treated as unreserved, the total number of vacancies to be reserved in 1956 would consist of the unused balance of the quota carried forward from 1954 and 1955 together with the normal percentage of vacancies that were to be reserved in 1956. The Court emphasized that the unused quota would not be carried forward beyond that point.

The guidelines required that an annual report be prepared of all reserved vacancies that had been treated as unreserved because suitable candidates from the Scheduled Castes or Scheduled Tribes were not available. This report had to be forwarded to the Ministry of Home Affairs in the format shown as Annexure I, together with the already prescribed annual communal returns. In addition, each Ministry was directed to take adequate steps so that any lapse by subordinate authorities in observing the reservation rules would be detected by a reviewing authority within the Ministry at a sufficiently early stage. The guidelines also stipulated that where a suitable Scheduled Caste candidate could not be found, a Scheduled Tribe candidate could be appointed to the same reserved vacancy, and conversely, provided that an appropriate adjustment was made in the subsequent roster. The effect of this amendment was to permit the unfilled reserved vacancies to be carried forward for a period of two years. Accordingly, in the third year the vacancies to be filled by Scheduled Caste and Scheduled Tribe candidates would consist of the unused balance from the preceding two years added to the normal percentage of vacancies reserved for that year. Unlike the rule of 1952, the 1955 rule expressly prohibited carrying forward the unused quota for more than two years. By substituting the 1955 rule, paragraphs 5(3) and 5(4) of the 1952 rule ceased to have effect, and under the 1955 rule the Union Public Service Commission announced that out of an expected forty‑eight vacancies, sixteen would be unreserved and thirty‑two would be reserved for Scheduled Caste or Scheduled Tribe candidates. This reservation scheme was challenged in the case of Devadasan, where the Court struck down the 1955 carry‑forward provision on the ground that the modification made in 1955 was unconstitutional. The Court granted no relief beyond a declaration that the 1955 carry‑forward rule was unconstitutional, although it expressed hope that the department concerned would implement the decision appropriately.

The petitioner argued that the Devadasan judgment eliminated any existing carry‑forward rule because the 1955 rule had been declared void and the 1952 rule had been displaced by the 1955 substitution. Consequently, the petitioner submitted that, for the examination conducted in 1960, the Government of India could only reserve twelve and a half percent of the vacancies for Scheduled Castes and five percent for Scheduled Tribes. In the alternative, the petitioner contended that if the 1952 carry‑forward rule were still deemed to exist, that rule would also be invalid because it violated Article 16 of the Constitution.

In this case the petitioner argued that if the 1952 carry‑forward rule were still considered to exist, it would also be unconstitutional because it violated Article 16 of the Constitution. He further maintained that, with both the 1952 and 1955 carry‑forward rules removed, the only reservation applicable to the 1960 examination was twelve and a half per cent for Scheduled Castes and five per cent for Scheduled Tribes, and that on that basis he was entitled to be appointed. Consequently, he prayed that the Court issue a direction setting aside the appointments of certain candidates belonging to Scheduled Castes and Scheduled Tribes who had been selected beyond the reserved quota of 171 per cent, and that the Union Public Service Commission be directed to announce the result of the examination afresh after allocating twelve and a half per cent of the vacancies to Scheduled Castes and five per cent to Scheduled Tribes. The application was opposed on behalf of the Union of India. The principal contention advanced by the Union was that even if the 1952 carry‑forward rule were deemed to be non‑existent because it had been superseded by the 1955 rule, the petitioner would still not be entitled to appointment in view of the position he had secured in the examination. The Court identified three questions for consideration. First, whether the 1952 carry‑forward rule can still be said to exist. Second, whether the 1952 rule, if it still exists, is invalid for the same reasons that rendered the 1955 rule invalid, as held in Devadasan’s case (1). Third, whether the petitioner would be entitled to appointment even if the 1952 rule does not exist. The Court first examined whether the 1952 rule continued to exist. It observed that in Devadasan’s case (1) the final order of this Court was expressed as follows: “In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid.” The Court clarified that this statement did not imply that the 1952 rule must be deemed to exist; rather, the Court merely declared the 1955‑modified rule invalid. The 1952 rule had been supplanted by the 1955 rule, and upon that substitution the 1952 rule clearly ceased to exist because its place was taken by the new rule. By promulgating the new carry‑forward rule in 1955, the Government of India itself cancelled the 1952 rule. Therefore, when this Court struck down the 1955‑modified rule, it did not revive the 1952 rule, which had already been annulled by the Government’s own substitution. Accordingly, the Court held that after the judgment in Devadasan’s case (1) there was no carry‑forward rule in existence.

In this case the Court observed that there was no longer any carry‑forward rule because the rule of 1955 had been struck down while the earlier rule of 1952 had already ceased to exist when the Government of India substituted the 1955 rule in its place. The Court emphasized that the decision in Devadasan’s case concerned only the portion of the Government’s instructions that dealt with the carry‑forward rule; it did not at all affect the statutory reservations for Scheduled Castes, which are set at twelve and a half per cent, or for Scheduled Tribes, which are set at five per cent. Nor did the judgment alter the provision that allows vacancies reserved for Scheduled Tribes to be filled by candidates from the Scheduled Castes when an adequate number of Scheduled Tribe candidates are not available in a particular year, and similarly the converse situation. Consequently, the effect of the judgment was limited to the annulment of the carry‑forward rule and did not impinge upon the annual reservation percentages for the two categories or the mechanism of cross‑filling vacancies. The Court noted that any adjustment in the allocation of reservations between Scheduled Castes and Scheduled Tribes was unrelated to the carry‑forward rule, whether the earlier 1952 rule that had already ceased to exist or the 1955 rule that had been declared invalid. Because the 1952 rule no longer existed, it was unnecessary to examine its constitutionality. The Court then turned to the final question of whether the petitioner could claim appointment on the ground that no carry‑forward rule existed in 1960. Initially, the notification anticipated forty‑eight vacancies, which would translate into six vacancies for Scheduled Castes (12.5 per cent) and 2.4 vacancies for Scheduled Tribes (5 per cent). Since a fractional vacancy cannot be created and the minimum reservation for Scheduled Tribes is five per cent, the practical entitlement was three Scheduled‑Tribe vacancies, making a total of nine reserved vacancies and thirty‑nine unreserved vacancies out of the forty‑eight expected. However, the Public Service Commission ultimately recommended only forty‑five names. On the basis of forty‑five vacancies, the entitlement for Scheduled Castes worked out to 5.625, rounded to six, and for Scheduled Tribes 2.25, rounded to three, again yielding nine reserved vacancies and thirty‑six unreserved vacancies. In the actual appointment process one of the reserved‑category candidates died and one unreserved‑category candidate was appointed to another service, so the Government made only forty‑three appointments. Accordingly, the Scheduled Castes were entitled to 5.375, rounded to six, and the Scheduled Tribes to 2.15, rounded to three, preserving the total of nine reserved vacancies and leaving thirty‑four unreserved vacancies among the forty‑three appointments.

In the final tally of positions, the number of posts that remained open for candidates belonging to the unreserved category was thirty‑four. The petitioner had originally been placed thirty‑seventh in the order of merit among the unreserved candidates. Subsequently, one of the candidates who had been ranked within the unreserved list was appointed to a different service; as a result, the petitioner’s relative position in that list could be considered to have improved by one place, raising him to the thirty‑sixth position. The Court had already set out the method of calculation for the distribution of the forty‑three vacancies that were actually filled. Under that method, nine of the filled vacancies were to be allocated to candidates belonging to the Scheduled Castes and Scheduled Tribes taken together, while the remaining thirty‑four vacancies were to be allocated to candidates from the unreserved category, as reflected in the reference to the case reported at (1) A.I.R. 1964 S.C. 179. Because the petitioner’s final standing in the unreserved ranking was thirty‑sixth, and because the law does not recognise any carry‑forward mechanism that would allow candidates beyond the thirty‑fourth position to be appointed, the petitioner could not lawfully claim entitlement to one of the unreserved vacancies. Consequently, the petition was found to be without merit. The Court declined to award any costs and ordered that the petition be dismissed.