ivil Appeal No 1451 of 1988
From the Judgment and Order dated 14388 of the Bombay High Court in WP No 1033 of 1987
MS Nesargi RC Mishra and Dr Meera Agarwal for the Appellants
Vinod Bobde Ms J Wad and AM Khanwilkar for the Respondents
VN Ganpule for the State
The Judgment of the Court was delivered by SAWANT J
The two questions raised in this appeal are i Whether the employment notice issued by the respondent University on July 27 1984 ought to have indicated reserva tions postwise and ii Whether assuming that the said notice was invalid the termination of services of the appellants on April 21 1987 was valid 2
The University issued the employment notice in ques tion inviting applications for a total of 77 posts which included 13 posts of Professors 29 posts of Readers and 35 posts of Lecturers in different subjects ranging from Eco nomics Politics and Sociology to Physics Pharmacy and Geology
The notice mentioned total number of reservations categorywise but not subjectwise as follows Professors Scheduled Castes 3 Scheduled Tribes 2 and VJNT 1 Readers Scheduled Castes 6 Scheduled Tribes 4 and VJNT 2 Lecturers Scheduled Castes 7 Scheduled Tribes 5 and VJ NT 4 A number of applications were received for the posts from candidates including the petitioners belonging to both reserved and nonreserved castes for all the three categories of posts viz Professors Readers and Lecturers
This advertisement was corrected by Corrigendum of February 1 1985
Thereafter a further employment notice 888 for additional posts in all the three categories was issued on August 1 1985 but we are not concerned with the same
Different selection committees in all 53 in number were constituted and they recommended 47 candidates for 53 posts
It appears that while recommending the selections the committees also gave weightage to the candidates belonging to the reserved castes
Thereafter the Executive Council constituted a sub committee to decide which posts should be reserved for the reserved castes
On the recommendation of the sub committee and after taking into consideration the backlog of reservations the Executive Council decided to keep apart 17 posts and made permanent appointments only to 30 out of 47 candidates by its appointment orders issued on March 30 1985 for the academic year 1985 86
As regards 17 posts which were kept apart for reserved candidates it decided to fill in the same by temporary appointments for those posts pending the availability of the suitable candi dates from reserved castes
It appears that against these appointments some social workers and organisations made representations to the Chancellor making a grievance both against the employment notice as well as the procedure followed in making the said appointments
By his order dated February 22 1986 the Chancellor appointed a one man committee under Section 76 of the Nagpur University Act 1974 hereinafter referred to as the Act  to inquire into the matter
The committee submit ted its report on September 24 1986 which was accepted by the Chancellor 4
In the meanwhile a batch of writ petitions was filed in the High Court challenging the employment notice on the ground that the non obtaining of the recommendation from the Board of University Teaching and Research  BUTR  for short before issuing the employment notice was bad in law in view of the provisions of Section 322 iii of the Act
The High Court accepting this contention quashed the employment notice and set aside the appointments to the posts which were challenged in those petitions
In all the petitions the Court also restrained the University from making any ap pointment without obtaining the recommendations from the BUTR
Taking into consideration both the report of the one man committee and also the decision of the High Court the Chancellor directed the Vice Chancellor to terminate the service of all the appointees including the appellants and accordingly the Vice Chancellor issued orders of termination of services of the appellants and others similarly appointed on April 21 1987
The termination orders mentioned four grounds as follows 889 a the reservation policy adopted by the University was contrary to Section 57 of the Act b the decision of the Executive Council allocating all reserved posts to VIth Plan posts were arbitrary and dis criminatory c the University had failed to comply with the mandatory provisions of Section 32 of the Act since it had not con sulted the BUTR and d that the employment notice was not in accordance with law
It may be mentioned here that although the services were thus terminated by the said order the Vice Chancellor on the same day issued another order in exercise of his emergency powers under Section 114 of the Act and appointed all the appellants and others to the same posts protecting their pay and allowances at the same time making it clear that the appointments were temporary
We are concerned in this appeal only with two grounds as stated at the outset
The third ground viz whether the recommendations of BUTR were mandatory before the issuance of the employment notice was not pressed before the Full Bench from which the present appeal arises
It appears that on the first ground viz whether the general reservation instead of the postwise reservation was illegal there was a difference of opinion between two Division Benches of the High Court
One Division Bench in Writ Petition No 1876 of 1984 hereinafter referred to as the Bhakre s case  decid ed on December 7 1984 took the view that the postwise reservation was not necessary whereas another Division Bench differed with the said view and sent the papers to the learned Chief Justice for referring the matter to a larger Bench and the issue referred to the larger Bench was as follows Is non reserving the posts of University teachers subject wise in the employment notice a breach of letter and spirit of reservation policy contained in Section 77C read with Section 57 of the Act That being the only issue the Full Bench was really called upon to answer it alone
However thereafter by the the consent of parties one more issue was raised before the Full Bench which is the second of the two questions which we have to decide in this appeal viz whether notwithstand ing the illegality of the general reservation the services of the appellants were liable to be terminated
On the first 890 issue the Full Bench held that general reservations were in breach of the provisions of the Act and against the reserva tion policy and therefore illegal
On the second issue by majority the Full Bench held that since the appointments were not according to law from the beginning the termina tion of the appellants  services was legal
As regards the first question we have narrated earlier the method which was adopted by the University for reserving the posts
It announced the posts categorywise as Professors Readers and Lecturers in different subject and made a blanket declaration that 6 of the posts of Professor 12 of the posts of Readers and 16 of the posts of Lecturers would be reserved for backward castes
Neither the Universi ty nor the candidates knew at that time as to for which of the subjects and in what number the said posts were re served
The result was that the candidates belonging to the reserved category in particular who wanted to apply for the reserved posts did not know for which of the posts they could apply and whether they could apply at a11 for the posts in the subjects in which they were qualified
That this could be the expected consequence of such an employment notice can legitimately be inferred and need not be and indeed cannot be demonstrated by evidence of what actually happened for there may be number of candidates who on account of the said uncertainty might have refrained from applying for the posts as against those who applied to take a chance
What is further the selection committees which were appointed to interview the candidates for the respec tive posts did not also know whether they were interviewing the candidates for reserved posts or not and to assess merits of the candidates from the reserved category as such candidates
The contention advanced on behalf of the appel lants that the selection committees even without know wheth er the posts concerned were reserved or not had given weightage to the candidates from the reserved category and therefore it cannot be said that any injustice had resulted to them is without merit
In the first instance the conten tion proceeds on the footing that all those belonging to the reserved category who wanted to apply for a11 the said posts had done so even without knowing that the concerned posts were reserved
Secondly it also presumes that all eligible candidates from unreserved category had applied for the posts without knowing whether the posts were reserved or not
The possibility that many eligible candidates belonging to both reserved and unreserved categories might not have taken the risk and chosen to gamble cannot be ruled out
This argument further ignores the fact that the suitability of a candidate from a reserved category to the particular post has to be adjudged by taking into consideration various factors and the desired 891 result cannot be obtained by merely giving uniform weightage marks to the candidates concerned which was the only method followed by the selection committees while selecting the candidates
Further there is nothing on record to show that this method of giving weightage to the candidate was not followed in respect of reserved category candidates even if they had not applied for the post in thereserved seats
What is more there is also nothing on record to show wheth er any candidates belonging to the reserved category has applied for a particular post in a reserved seat without the prior knowledge that the post was reserved
It is therefore difficult to understand as to how the selection committees proceeded to give weightage to the candidates without knowing whether they had applied for reserved or nonreserved seats
What is more objectionable in the proce dure was that its Executive Council proceeded to classify the posts in different subjects between reserved and non reserved posts after the lists of selected candidates were received from different selection committees
This method was open to an obvious objection since it gave a scope to eliminate unwanted selected candidates at  that stage
Whether it occurred in the present case or not is immaterial for testing the validity and the propriety of the method followed by the University
As has been stated earlier in fact after the receipt of the list of selected candidates not only the Executive Council constituted yet another committee to decide which of the subjectwise posts should be reserved or not but the Executive Council also decided that although candidates for 47 posts were selected only 30 of them should be appointed permanently
The latter included some backward class candidates for reserved posts so catego rised later
But 17 of the posts were set apart although the candidates were selected for them and they were so set apart for being filled in afresh by candidates belonging to the reserved category
Interestingly however the employ ment notice issued subsequently for these 17 posts mentioned reservations postwise subjectwise
The argument based on Section 574a of the Act to support the procedure adopted by the University is accord ing to us not well merited
The contention is that since Section 574a requires the University to state in the advertisement only the total number of posts and the number of reserved posts and not postwise ie subjectwise the employment notice in question was not bad in law
According to us the word post used in the context has a relation to the faculty discipline or the subject for which it is created
When therefore reservations are required to be made in posts the reservations have to be postwise ie subjectwise
The mere announcement of the number of 892 reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised
When therefore Section 574a requires that the advertisement or the employment notice would indi cate the number of reserved posts if any it implies that the employment notice cannot be vague and has to indicate the specific post ie the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes
A non indica tion of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy
That this is also the intention of the legislature is made clear by Section 574d which requires the selection committees to interview and adjudge the merits of each candidate and recommend him or her for appointment to the general posts and the reserved posts if any advertised
A support was also sought to be derived by the appel lants to their contention from the policy of reservation as enunciated in Government Resolution dated March 30 1981 wherein instructions were issued in the matter in exercise of the power conferred on the Government under Section 77c of the Act
The contention was that since in para 3b of the said Resolution it is stated that similarly at any given time of recruitment to the teaching posts only the total number of reserved vacancies and the sections from which they are to be filled in should be determined
It would be enough if the required percentage is fulfilled as a whole and not with reference to any particular post
If the reserved vacancies cannot be filled then so many posts as cannot be filled in may be kept vacant for six months and should be again advertised thrice
If even after readver tising the posts three times suitable candidates belonging to the reserved category do not become available they may be filled in by candidates belonging to the open category
We are afraid that this interpretation placed on the afore said contents of the Government Resolution stems from their misreading
Read in the context in which the said contents appear it is clear that what is sought to be conveyed by them is that although at any given time the total percentage of reservation viz 34 is not made up vis a vis particular post or posts it would be an enough compliance with the Resolution if the total number of vacancies filled in all the posts together conform to the said percentage
It is common knowledge that the vacancies in posts in different subjects occur from time to time according to the exigencies of the circumstances and they arise unequally in different posts
There may not be vacancies in one or some posts whereas there may be a large number of vacancies in other 893 posts
In such circumstances it is not possible to comply with the minimum reservation percentage of 34 vis a vis each post
It is for this reason that the Resolution states that although minimum percentage of reserved posts may not be filled in one or some posts it will be enough if in that year it is filled in taking into consideration the total number of appointments in all the posts
This however does not absolve the appointing authority from advertising in advance the vacancies in each post and the number of posts in such vacancies meant for the reserved category and inviting applications from the candidates belonging to the reserved and unreserved categories with a clear statement in that behalf
In fact the overall minimum percentage has to be kept in mind as stated in the Resolution at the time of issuing the employment notice or the advertisement as the case may be
On behalf of the appellants reliance was also sought to be placed on a Full Bench decision of the Karnataka High Court in Dr Raj Kumar vs Gulbarga University AIR 125
We do not see how the decision in question helps the appellants for the Full Bench has observed there that general reservation has to be cadrewise and subjectwise
But an exception could possibly be made in cases like the one of professors in which post available in each of the subjects is only one while grouping all of them together for purposes of reservation so that at least in the subjects in which the candidates belonging to the reserved category are available they could be accommodated
It is not necessary for us in this case to express our opinion on the correct course to be adopted when only one post is available in a particular subject at a given time
The course to be adopted would depend upon the unit of reservations the period over which the backlog is to be carried the number of appointments already made in the said posts the availability of candi dates from the reserved category etc
What is material from our point of view in this case is to point out that even the Karnataka Full Bench has taken the view that generally reservation had to be cadrewise and subjectwise
It was also a case of the filling in of the vacancies in teaching posts in a University
We are therefore in complete agreement with the view taken by the Full Bench that the employment notice dated July 27 1984 was bad in law since it had failed to notify the reservations of the posts subjectwise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subjectwise
The second contention need not detain us long
It is based primarily on the provisions of Section 575 of the Act
The contention 894 is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment was not in accord ance with the law at that time in force and since the law at that time in force viz on March 30 1985 when the appellants were appointed was the law as laid down in Bhakre s case supra which was decided on December 7 1984 the termination of the appellants is beyond the power of the Chancellor
The argument can only be described as naive
It is unnecessary to point out that when the court decides that the interpretation of a particular provision as given earli er was not legal it in effect declares that the law as it stood from the beginning was as per its decision and that it was never the law otherwise
This being the case since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre s case supra was erroneous it will have to be held that the appointments made by the University on March 30 1985 pursuant to the law laid down in Bhakre s case supra were not according to law
Hence the termination of the services of the appellants were in compliance with the provisions of Section 575 of the Act
When therefore the services of the appellants are to be terminated in view of the change in the position of law and not on account of the demerits or misdemeanour of indi vidual candidates it is not necessary to hear the individu als before their services are terminated
The rule of audi altrem partem does not apply in such cases and therefore there is no breach of the principles of natural justice
In the result
we are of the view that there is no merit in this case
The appeal therefore stands dismissed
In the circumstances of the case however there will be no order as to costs
However it is pointed out to us that some of the appellants had resigned from their earlier jobs and joined the University some of them have become overaged for making any fresh application while others will have no chance either because the posts as per the new advertisement of 1987 are either reserved or non reserved and they belong to the other category
We can therefore only recommend that the University may take into consideration the relevant facts pertaining to each of the appellants and if it is possible accommodate them without transgressing the law and the claims of other eligible candidates
We make it clear that this recommendation is not a direction and is made purely on compassionate grounds
It is to be followed only if it is possible for the University to do so without giving rise to further litigation by candidates who may be ag grieved on that account
GN Appeal dismissed


Summary:
For the academic year 1989 90 the appellant College had 8 seats in the post graduate course in Obsterics and Gyne cology
Of these six were reserved for institutional candi dates and two for external candidates
The Principal filled up all the eight seats by admitting institutional candidates without considering the case of any external candidate
One of the external candidates approached the High Court by way of a Writ Petition
The High Court set aside the admission of two institutional candidates who were admitted against the quota for external candidates and directed the Princi pal to consider the case of the petitioner and other exter nal candidates who were eligible for admission to the open  25 seats on merits in accordance with law
Aggrieved the Principal and the two institutional candidates whose admis sion was set aside by the High Court have preferred these appeals by special leave
Disposing of the appeals HELD 1
The appellant College took the view that since no All India candidates were available on the basis postu lated in the Residency Scheme it would be appropriate to throw open the entire 100 to institutional candidates
It is not suggested that this proposal was actuated by any mala fides
In that the State claims that this course of action has been approved by the decision of the High Court in a case before it
It may be that this is not the only view possible and that it is also possible to take the view that the college should have advertised these posts and filled them up by external candidates on the basis of merit
If this be so such advertisement cannot be confined to persons who are residents of UP as was envisaged by the notifica tion dated 26th April 1986
That notification been issued at a time when the 875 concept of All India reservation for 25 of the seats had not been adumbrated by this Court
Even if it is assumed that the High Court was right in saying that external candi dates were eligible for admission that eligibility cannot be restricted only to those who had already applied but should be thrown open to all external candidates fulfilling the qualifications
This process cannot be completed within two weeks as directed by the High Court
To call for appli cations from all external candidates and select them either on the basis of an examination or otherwise will be a very lengthy and time consuming process
The State Government and the college cannot be faulted for having decided to fill up the vacancies by offering these seats also to institutional candidates
This is a decision taken only for a transitional period because from 1990 onwards admissions will be regulated on the basis of an All India examination and such an examination is conducted by the All India Institute of Medical Sciences every year for all medical colleges in India
The decision taken by the State Government and the college was a practical one to tide over a transitional difficulty and there is no justification to upset the same on the basis of a solitary application from an external candidate
881A F 2
On a proper interpretation of Para 5 of the Residency Scheme the eligibility for admission of institutional candi dates is not confirmed to those who were on house jobs as on 22889 but would also extend to these institutional candi dates who have been in house jobs since 1887
The result of these two judgments read together will be that the entire 100 of the institutional seats should be filled up from out of all such applicants subject to their fulfilling any other qualifications and requirements that may be in force
Earlier the admission of the six candidates to 75 of the seats as well as the admission of the two candidates to 25 of the seats had been made by excluding institutional candi dates who had completed their house jobs between 1887 and 22889
This will need to be reviewed now
The entire process of admission will now have to be redone in the light of these decisions
The selection of the two institutional candidates in question will be valid only if they come through successfully on merits on such reconsideration
The High Court was right in holding that their admissions should be set aside
The admission be redone in the light of the observations in these two judgments
882B E Dr Harihar Prasad Singh  Ors
vs Principal Moti Lal Nehru Medical College  Ors
 1990 3 SCR 895 referred to