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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 1495 of 2016

R R Inamdar                   .... Appellant(s)

      Versus

State of Karnataka & Ors                  ....Respondent(s)

J U D G M E N T  

Dr Dhananjaya Y Chandrachud, J

This appeal arises from a judgment of a Division Bench of the High

Court  of  Karnataka  dated  17  November  2015.   The  High  Court,  while

dismissing the Writ Appeal filed by the appellant, confirmed the judgment of

a learned Single Judge dated 1 October 2015 holding that since there was

a solitary post of a Lecturer in English, the appellant could not have been

appointed  to  the  post  on  the  basis  of  reservation  and  that  the  fifth

respondent,  who  was  senior  to  the  appellant,  had  a  valid  claim  and

entitlement to the post.   

The appeal  relates  to  the  services  of  the appellant  and the fifth

respondent in an institution known as Sri Jagadaguru Annadaneshwari High

School at Mundaragi, Gadag District of the State of Karnataka.  The fifth

respondent was appointed as a teacher on 2 November 1988 and is senior

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to the appellant, who was appointed on 1 December 1990.  The appellant

belongs to a Scheduled Caste.  On the retirement of the then incumbent

Lecturer in English on 31 March 2002, the post fell vacant.  The appellant

was promoted to the post on 28 September 2002 on the basis of roster

points.  The appointment of the appellant was approved by the Director of

Pre-University  Education  on  28  September  2002.   The  fifth  respondent

challenged the approval initially by filing a writ petition before the Karnataka

High Court.   By an order dated 2 March 2005, the fifth respondent was

relegated to the remedy of a revision before the Director of Pre-University

Education,  Bangalore.   The  revision  and  a  further  review  came  to  be

dismissed by the Director of Pre-University Education on 3 May 2006 and

by the Commissioner on 23 February 2007.  The Government of Kerala

dismissed the appeal filed by the fifth respondent on 12 November 2008.

The fifth respondent then moved the High Court  in a writ  petition under

Article 226 which was allowed by a judgment of the learned Single Judge

dated 1 October 2015.  The learned Single Judge held that  the post of

Lecturer in English was a solitary post and in view of the law laid down by

this Court in State of Karnataka v K Govindappa1, the post could not have

been reserved.  This view of the learned Single Judge was approved in a

writ appeal by the Division Bench on 17 November 2015 which gave rise to

the proceedings before this Court.

At the outset, it would be necessary to note that the decision of the

two-Judge Bench of this Court in K Govindappa (supra), which has been

followed by the learned Single Judge as well as by the Division Bench in

1 (2009) 1 SCC 1

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appeal,  dealt  with  the  issue  as  to  whether  all  posts  of  Lecturers  taken

together constituted a cadre for the purpose of reservation or whether a

solitary post of Lecturer in History which was not interchangeable with other

posts constituted a separate cadre.  The High Court held that the post of a

Lecturer in History could not be construed to be a cadre together with all

other posts of Lecturer.  This Court noted that the Constitution Bench in

Post Graduate Institute of Medical Education and Research v Faculty

Association2 had approved the view in  Dr. Chakradhar Paswan v  State

of Bihar3 to the effect that there could be no reservation in respect of a

single post.  This was, however, sought to be distinguished by the State in

K Govindappa (supra).  This Court held:

“While  there  can  be  no  difference  of  opinion  that  the  expressions "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different  disciplines  cannot  exist  as  a  separate  cadre  cannot  be accepted.  In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter- changeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of  reservation within  the meaning of Article 16(4) of  the Constitution.  In  the  absence  of  duality  of  posts,  if  the  rule  of reservation is  to  be  applied,  it  will  offend  the constitutional  bar against  100%  reservation  as  envisaged  in  Article  16(1)  of  the Constitution.” (emphasis supplied)

The Court held that the case fell within the category of a single or

isolated post within a cadre in respect of which the rule of reservation was

inapplicable.  In other words, each discipline which consisted of a single

post  was  required  to  be  dealt  with  as  a  separate  cadre  for  the  said

discipline, particularly, having regard to the fact that the several disciplines

2 (1998) 4 SCC 1 3 (1988) 2 SCC 214

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were confined only to one college.   

A similar issue arose in a subsequent decision in  State of Uttar

Pradesh v Bharat Singh4, where this Court held that:

“It  is  abundantly  clear  from  the  above  that  the  attribute  of interchangeability  and  transferability  is  missing  in  the  case  of Principals - in much the same measure as in the case of teachers, in the lower cadre. We have, therefore, no hesitation in holding that there  is  no  cadre  of  Principals  serving  in  different  aided  and affiliated institutions and that the Principal's post is a solitary post in an institution. Reservation of such a post is clearly impermissible not only  because  the  Uttar  Pradesh  Public  Services  (Reservation  for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 provides  for  reservation based on the `cadre strength'  in  aided institutions but also because such strength being limited to only one post in the cadre is legally not amenable to reservations in the light of the pronouncement of this Court to which we shall presently refer.”

(emphasis supplied)

We may also note at this stage that on 19 January 2017, a two-

Judge Bench of this Court in  Sanjeev Kumar v State of Uttar Pradesh5

affirmed a similar view of the Allahabad High Court, observing as follows:

“We have heard learned counsel for the parties at length.  We are in agreement with the view taken in the impugned judgment.  The judgment of the High Court is accordingly affirmed.

The civil appeals are accordingly dismissed.  No costs.

Pending applications, if any, shall also stand disposed of.”

These decisions were sought to be distinguished by Mr S N Bhat,

learned  counsel  appearing  on  behalf  of  the  appellant,  by  relying  on  a

circular  of  the  State  of  Karnataka  dated  31  May  1991.   The  following

provisions of the circular were in particular sought to be emphasised:

“The roster system be maintained unit-wise (i.e, one school or college is an unit  even if  the management  is  running more than one school  or colleges).  The roster should be maintained for the teaching and non teaching staff separately and not subject-wise as is being done now.”

4 (2011) 4 SCC 120 5 Civil Appeal Nos 6385-6386 of 2010

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Mr Bhat urged that the above provisions would demonstrate that the

roster has to be maintained unit-wise so that each school or college would

be treated as a unit in a situation where a management is running more

than  one  institution.   Moreover,  the  roster  is  to  be  maintained  for  the

teaching  and  non-teaching  staff  separately  and  not  subject-wise.   The

submission  was  that  the  circular  dated  31  May  1991  did  not  fall  for

consideration before the two-Judge Bench in K Govindappa (supra).

We are unable to accept the submission for more than one reason.

The circular dated 31 May 1991 is prior to the decision of the Constitution

Bench in  Post Graduate Institute of Medical Education and Research

(supra).   As  a  matter  of  fact,  the  circular  is  prior  to  the  decision  in  K

Govindappa (supra) as well.  The principle which has been enunciated by

this Court is that there can be no reservation of a solitary post and that in

order  to  apply  the  rule  of  reservation  within  a  cadre,  there  must  be  a

plurality  of  posts.   Where  there  is  no  interchangeability  of  the  posts  in

different  disciplines,  each single post  in  a particular  discipline has to be

treated as a single post for the purpose of reservation within the meaning of

Article 16(4) of the Constitution.  If this principle were not to be followed,

reservation would be in breach of the ceiling governed by the decisions of

this Court.  A circular, of the nature that has been issued by the State of

Karnataka,  cannot  take away  the binding effect  of  the decisions of  this

Court interpreting the policy of reservation in the context of Article 16(4).  

For the above reasons, we are of the view that the judgment of the

High Court cannot be faulted and is consistent with the law which has been

laid down by this Court.  

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However,  in  the  alternative,  Mr  Bhat  has  submitted  that  the

appellant  has  continued  to  work  as  a  Lecturer  in  English  since  her

appointment  on  28  September  2002  and  during  the  pendency  of  this

appeal,  she  has  been  protected  by  an  order  of  status  quo since  16

February 2016.  He stated that the management has submitted a proposal

to the State of Karnataka for the appointment of the appellant to a second

post which was not acceded to by the State of Karnataka.   

We would request  the State of  Karnataka to consider  afresh the

request of the management for the creation of an additional post if such a

request falls within the parameters of the rules or regulations of the State of

Karnataka.  This exercise be completed expeditiously and within a period of

two months from the date of receipt of a certified copy of this order.  In the

event that it is not possible for the State of Karnataka to create another post

under its rules and regulations, the State of Karnataka shall consider, in the

alternative,  the creation of  a supernumerary post for such period until  a

substantive post is made available, having regard to the fact that the fifth

respondent  is  due to  attain  the age of  superannuation in  approximately

three years and seven months from today.

Since the appellant has continued to work as a Lecturer in English

since 28 September 2002, it would be appropriate to direct that no recovery

should be made from the appellant for the period during which she has

worked.  Insofar as the fifth respondent is concerned, her pay shall be fixed

notionally for the purpose of computing the salary which will be payable to

her effective from the date of her joining as Lecturer in English and in the

ultimate computation of her retiral dues on the date on which she attains

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superannuation.  We are not granting any benefits by way of payment of

arrears of salary for the period during which the fifth respondent did not

work as a Lecturer in English, since payment has already been made to the

appellant.

We further direct that the fifth respondent shall be considered for

promotion  in  pursuance  of  the  directions  issued  by  the  High  Court

expeditiously within one month from the date of receipt of a certified copy of

this order.

The appeal is accordingly disposed of.  There shall be no order as

to costs.

…………...…...….......………………........J.                                                                     [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.                              [Ajay Rastogi]

 New Delhi;  November 28, 2019

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ITEM NO.101               COURT NO.8               SECTION IV-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  No(s).1495/2016

R.R. INAMDAR                                       Appellant(s)

                               VERSUS

THE STATE OF KARNATAKA & ORS.                      Respondent(s)

Date : 28-11-2019 This appeal was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE AJAY RASTOGI

For Appellant(s) Mr. S. N. Bhat, AOR Mr. N.P.S. Panwar, Adv.

                   For Respondent(s) Mr. Chandrashekhar A. Chakalabbi, Adv.

Mr. Shiv Pandey, Adv.                   Mr. Awanish Kumar, AOR

Mr. Anshul, Adv.

                 Mr. V. N. Raghupathy, AOR Mr. Manendra Pal Gupta, Adv. Mr. Prakash Jadhav, Adv.                     

UPON hearing the counsel the Court made the following                               O R D E R

The  appeal  is  disposed  of  in  terms  of  the  signed

reportable judgment.

Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I)                (SAROJ KUMARI GAUR)      AR-CUM-PS                           COURT MASTER

(Signed reportable judgment is placed on the file)