R. R. INAMDAR versus STATE OF KARNATAKA & ORS. on 28 November 2019

1. This appeal arises from a judgment of a Division Bench of theHigh Court of Karnataka dated 17 November 2015. The High Court,while dismissing the Writ Appeal filed by the appellant, confirmed thejudgment of a learned Single Judge dated 1 October 2015 holding thatsince there was a solitary post of a Lecturer in English, the appellantcould not have been appointed to the post on the basis of reservation andthat the fifth respondent, who was senior to the appellant, had a validclaim and entitlement to the post.

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A2. The appeal relates to the services of the appellant and the fifthrespondent in an institution known as Sri Jagadaguru AnnadaneshwariHigh School at Mundaragi, Gadag District of the State of Karnataka.The fifth respondent was appointed as a teacher on 2 November 1988and is senior to the appellant, who was appointed on 1 December 1990.The appellant belongs to a Scheduled Caste. On the retirement of theBthen incumbent Lecturer in English on 31 March 2002, the post fell vacant.The appellant was promoted to the post on 28 September 2002 on thebasis of roster points. The appointment of the appellant was approvedby the Director of Pre-University Education on 28 September 2002.The fifth respondent challenged the approval initially by filing a writCpetition before the Karnataka High Court. By an order dated 2 March2005, the fifth respondent was relegated to the remedy of a revisionbefore the Director of Pre-University Education, Bangalore. The revisionand 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 filedDby the fifth respondent on 12 November 2008. The fifth respondent thenmoved the High Court in a writ petition under Article 226 which wasallowed by a judgment of the learned Single Judge dated 1 October2015. The learned Single Judge held that the post of Lecturer in Englishwas a solitary post and in view of the law laid down by this Court inEState of Karnataka v K Govindappa[1], the post could not have beenreserved. This view of the learned Single Judge was approved in a writappeal by the Division Bench on 17 November 2015 which gave rise tothe proceedings before this Court.

3. At the outset, it would be necessary to note that the decision of Fthe two-Judge Bench of this Court in K Govindappa (supra), whichhas been followed by the learned Single Judge as well as by the DivisionBench in appeal, dealt with the issue as to whether all posts of Lecturerstaken together constituted a cadre for the purpose of reservation orwhether a solitary post of Lecturer in History which was not interchangeable with other posts constituted a separate cadre. The HighGCourt held that the post of a Lecturer in History could not be construedto be a cadre together with all other posts of Lecturer. This Court notedthat the Constitution Bench in Post Graduate Institute of MedicalEducation and Research v Faculty Association[2]had approved the1 (2009) 1 SCC 1H2 (1998) 4 SCC 1

R. R. INAMDAR v. STATE OF KARNATAKA & ORS.

[DR. DHANANJAYA Y CHANDRACHUD, J]

view in Dr. Chakradhar Paswan v State of Bihar[3] to the effect thatthere 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 inrespect of different disciplines cannot exist as a separate cadrecannot be accepted. In order to apply the rule of reservationwithin a cadre, there has to be plurality of posts. Since thereis no scope of inter-changeability of posts in the differentdisciplines, each single post in a particular discipline hasto be treated as a single post for the purpose of reservationwithin the meaning of Article 16(4)of the Constitution. Inthe absence of duality of posts, if the rule of reservation isto be applied, it will offend the constitutional bar against100% reservation as envisaged in Article 16(1) of theConstitution.”(emphasis supplied)

4. The Court held that the case fell within the category of a singleor isolated post within a cadre in respect of which the rule of reservationwas inapplicable. In other words, each discipline which consisted of asingle post was required to be dealt with as a separate cadre for the saiddiscipline, particularly, having regard to the fact that the several disciplineswere confined only to one college.

5. A similar issue arose in a subsequent decision in State of UttarPradesh v Bharat Singh[4], where this Court held that:

“It is abundantly clear from the above that the attribute ofinterchangeability and transferability is missing in the caseof Principals - in much the same measure as in the case ofteachers, in the lower cadre. We have, therefore, nohesitation in holding that there is no cadre of Principalsserving in different aided and affiliated institutions and thatthe Principal’s post is a solitary post in an institution.Reservation of such a post is clearly impermissible not only becausethe Uttar Pradesh Public Services (Reservation for Scheduled 3 (1988) 2 SCC 214

4 (2011) 4 SCC 120

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ACastes, Scheduled Tribes and Other Backward Classes) Act, 1994provides for reservation based on the `cadre strength’ in aidedinstitutions but also because such strength being limited to onlyone post in the cadre is legally not amenable to reservations in thelight of the pronouncement of this Court to which we shall presentlyrefer.”

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(emphasis supplied)

6. 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 Pradesh[5]affirmed a similar view of the Allahabad High Court, observing as follows:

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

The civil appeals are accordingly dismissed. No costs.

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

7. These decisions were sought to be distinguished by Mr S NBhat, learned counsel appearing on behalf of the appellant, by relying ona circular of the State of Karnataka dated 31 May 1991. The followingprovisions of the circular were in particular sought to be emphasised:

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

F8. Mr Bhat urged that the above provisions would demonstratethat the roster has to be maintained unit-wise so that each school orcollege would be treated as a unit in a situation where a management isrunning more than one institution. Moreover, the roster is to be maintainedfor the teaching and non-teaching staff separately and not subject-wise.The submission was that the circular dated 31 May 1991 did not fall forGconsideration before the two-Judge Bench in K Govindappa (supra).

9. We are unable to accept the submission for more than onereason. The circular dated 31 May 1991 is prior to the decision of theConstitution Bench in Post Graduate Institute of Medical Education H5 Civil Appeal Nos 6385-6386 of 2010

R. R. INAMDAR v. STATE OF KARNATAKA & ORS.[DR. DHANANJAYA Y CHANDRACHUD, J]

and Research (supra). As a matter of fact, the circular is prior to thedecision in K Govindappa (supra) as well. The principle which hasbeen enunciated by this Court is that there can be no reservation of asolitary post and that in order to apply the rule of reservation within acadre, there must be a plurality of posts. Where there is nointerchangeability of the posts in different disciplines, each single post ina particular discipline has to be treated as a single post for the purposeof reservation within the meaning of Article 16(4) of the Constitution. Ifthis principle were not to be followed, reservation would be in breach ofthe ceiling governed by the decisions of this Court. A circular, of thenature that has been issued by the State of Karnataka, cannot take awaythe binding effect of the decisions of this Court interpreting the policy ofreservation in the context of Article 16(4).

10. For the above reasons, we are of the view that the judgmentof the High Court cannot be faulted and is consistent with the law whichhas been laid down by this Court.

11. However, in the alternative, Mr Bhat has submitted that theappellant has continued to work as a Lecturer in English since herappointment on 28 September 2002 and during the pendency of thisappeal, she has been protected by an order of status quo since 16February 2016. He stated that the management has submitted a proposalto the State of Karnataka for the appointment of the appellant to a secondpost which was not acceded to by the State of Karnataka.

12. We would request the State of Karnataka to consider afreshthe request of the management for the creation of an additional post ifsuch a request falls within the parameters of the rules or regulations ofthe State of Karnataka. This exercise be completed expeditiously andwithin a period of two months from the date of receipt of a certifiedcopy of this order. In the event that it is not possible for the State ofKarnataka to create another post under its rules and regulations, theState of Karnataka shall consider, in the alternative, the creation of asupernumerary post for such period until a substantive post is madeavailable, having regard to the fact that the fifth respondent is due toattain the age of superannuation in approximately three years and sevenmonths from today.

13. Since the appellant has continued to work as a Lecturer inEnglish since 28 September 2002, it would be appropriate to direct that AB

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Ano recovery should be made from the appellant for the period duringwhich she has worked. Insofar as the fifth respondent is concerned, herpay shall be fixed notionally for the purpose of computing the salarywhich will be payable to her effective from the date of her joining asLecturer in English and in the ultimate computation of her retiral dues onthe date on which she attains superannuation. We are not granting anyBbenefits by way of payment of arrears of salary for the period duringwhich the fifth respondent did not work as a Lecturer in English, sincepayment has already been made to the appellant.

14. We further direct that the fifth respondent shall be consideredfor promotion in pursuance of the directions issued by the High CourtCexpeditiously within one month from the date of receipt of a certifiedcopy of this order.

15. The appeal is accordingly disposed of. There shall be no orderas to costs.

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Devika Gujral

Appeal disposed of.

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