No 110 of 1964
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights
B Sen and B N Kirpal for the petitioner
422 C K Daphtary Solicitor General and B R G K Achar for the respondent Nos 1 and 2
The Judgment of the Court was delivered by Wanchoo J
This petition under article 32 of the Constitution is a sequel to the judgment of this Court in T Devadasan vs Union of India1
The petitioner was Assistant in Grade IV of the Central Secretariat Service
The next post which the petitioner could expect to get was of Section Officer Assistant Superintendent
Recruitment to the post of Section Officer is made in the following manner  i50 by direct recruitment from those who obtain lower ranks in the Indian Administrative Service etc
examinations
ii25  by promotion from Grade IV on the basis of a departmental examination held at intervals by the Union Public Service Commission and iii 25  by promotion from Grade IV on the basis of seniority cum fitness
In February 1960 the Union Public Service Commission issued a notification to the effect that a limited competitive examination for promotion to the post of Section Officers would be held in June 1960
The notification further stated that reservation of 121 of the available vacancies would be made for members of scheduled castes and 5 for the members of scheduled tribes
The number of vacancies to be filled was to be announced later
The petitioner sat for this examination and he is said to have secured the 37th position in order of merit
Later a press communique was issued by the Union Public Service Commission in the which it was stated that the number of vacancies expected to be filled was 48 out of which 32 were reserved for schedule castes and scheduled tribes and 16 were unreserved
Eventually however the Union Public Service Commission recommended 45 names for appointment 16 of which were unreserved and 29 were reserved against vacancies for scheduled castes and scheduled tribes
Finally however the Government made only 43 appointments 15 in the unreserved quota and 28 in the reserved quota
This heavy reservation for scheduled castes and scheduled tribes was made on the basis of the carry forward rule which was put into force from 1955
According to the resolution of the Ministry of Home Affairs dated September 13 1950 reservation for scheduled castes and 1  423 scheduled tribes was fixed at 121 and 5 respectively without anything like the carry forward rule
In 1952 however supplementary instructions were issued in this connection in the following terms  53
If a sufficient number of candidates of the communities for whom the reservations are made who are eligible for appointment to the post in question and are considered by the recruiting authorities as suitable in all respects for appointment to the reserved quota of vacancies are not available the vacancies that remain unfilled will be treated as unre served and filled by the best available candidates but a corresponding number of vacancies will be reserved in the following year for the communities whose vacancies are thus filled up in addition to such number as would originally be reserved for them under theorders contained in the
Resolution
54
If suitably qualified candidates of the communities for whom the reservations have been made are again not available to fill the vacancies carried forward from the previous year under clause 3 above the vacancies not filled by them will be treated as unreserved and the reservations made in those vacancies will lapse
As a result of these instructions reserved vacancies for scheduled castes and scheduled tribes which could not be filled in one examination would be carried forward to the next examination
But if sufficient number of scheduled caste and scheduled tribe candidates were not available to fill the vacancies carried forward plus vacancies of the next year the vacancies were to be treatd as unreserved and the reservation made in those vacancies would lapse
Thus according to 1952 instructions the carry forward was only for two years and thereafter there was no carry forward in 1955 however
Government made further change in the carry forward rule and paras
5 3  and 5 4 of the instructions of 1952 were substituted thus 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 should be Mated as unreserved and filled by the best available candidates
The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the L3 Sup65 11 424 following year in the normal course and to the extent to which approved candidates are not available in that year against this additional quota a corresponding addition should be made to the number of reserved vacancies in the second following year Thus the number of reserved vacancies of 1954 which were treated as unreserved for want of suitable candidates in that year will be added to the normal number of reserved vacancies in 1955
Any recruitment against these vacancies in 1955 will first be counted against the additional quota carried forward from 1954
If however suitable candidates are not available in 1955 also and a certain number of vacancies are treated accordingly as unreserved  in that year the total number of vacancies to be reserved in 1956 will be un utilised balance of the quota carried forward from 1954 and 1955 plus the normal percentage of vacancies to be reserved in 1956
The un utilised quota will not however be carried forward in this manner for more than two years An annual report of reserved vacancies which were treated as unreserved for want of suitable candidates from scheduled castes or scheduled tribes as the case may be should be forwarded to the Ministry of Home Affairs in the form enclosed as Annexure I along with the annual communal returns already prescribed
In addition Ministries themselves will take adequate steps to ensure that any lapse on the part of subordinate authorities in observing the reservation rules cannot go unnoticed by a reviewing authority within the Ministry itself at a sufficiently early date  b In the event of a suitable scheduled caste candidate not being available a scheduled tribe candidate can be appointed to the reserved vacancy and vice versa subject to adjustment in the subsequent point of the roster
 The result of this change was to carry forward the unfilled vacancies for two years and thus in the third year the vacancies to be filled by scheduled caste and scheduled tribe candidates would be the un utilised balance from the previous two years plus the normal percentage of the vacancies reserved in the third year
Unlike the rule of 1952 this rule did not provide for any lapse 425 but said that the un utilised quota will not however be carried forward in this manner for more than two years
The result of the substitution of the 1955 rule was that paras
53 and 54 of the 1952 rule ceased to exist and it was in pursuance of the 1955 rule that the Union Public Service Commission announced as already indicated that out of 48 expected vacancies 16 would be unreserved and 32 would be reserved for scheduled caste and scheduled tribe candidate Ibis reservation was attacked in the case of Devadasan1 and this Court struck down the carry forward rule of 1955 in place of paras 53 and 54 of the 1952rule on the ground that the carry forward rule as modified in 1955 was unconstitutional
No other relief besides the declaration that the 1955 carry forward rule was unconstitutional was granted in Devadasan s case1
It was however hoped that the department concerned would implement the decision of this Court in an appropriate manner
The petitioner contends that the effect of this Court s judgment in Devadasan s case1 is that there is no carry forward rule in existence as the 1955 carry forward rule was struck down by this Court and the 1952 rule had ceased to exist by the substitution made by the Government of India in 1955
The petitioner further contends that in view of there being no carry forward rule either of 1952 or of 1955 after the judgment of this Court in Devadasan s case1 all that the Government of India could do in the matter of reservation for the examination conducted in 1960 was to reserve 12 12 of the vacancies for scheduled castes and for scheduled tribes
In the alternative it is submitted that if the carry forward rule of 1952 is still deemed to exist that rule is also bad being violative of article 16 of the Constitution
The petitioner finally contends that the carry forward rules of 1952 and 1955 being out of this way and the only reservation that was possible in the examination of 1960 being 12 12 for scheduled castes and 5  for scheduled tribes he was entitled to be appointed  on that basis
He therefore prays that a direction should be issued setting aside appointments of certain candidates belonging to scheduled castes and scheduled tribes over and above the reserved quota of 171  and the Union Public Service Commission should be directed to announce the result of the said examination afresh after receiving 12 12  of the vacancies for scheduled castes and 5 for scheduled tribes
The application is opposed on behalf of the Union of India and the main contention urged is that even if the carry forward rule 1  426 of 1952 is deemed to be non existent because it was substituted by the carry forward rule of 1955 the petitioner would not be entitled to be appointed in any case in view of the position he had secured in the examination
The first question therefore that arises is whether the carry forward rule of 1952 can still be said to exist
The next question is whether the carry forward rule of 1952 if it still exists is bad for the same reasons as the carry forward rule of 1955 as held by this Court in Devadasan s case1
The last question is whether the petitioner would be entitled to appointment even if the carry forward rule of 1952 does not exist
We shall first consider the question whether the carry forward rule of 1952 still exists
It is true that in Devadasan s case1 the final order of this Court wag in these terms  In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid
 That however does not mean that this Court held that the 1952rule must be deemed to exist because this Court said that the carry forward rule as modified in 1955 was declared invalid
The carry forward rule of 1952 was substituted by the carry forward rule of 1955
On this substitution the carry forward rule of 1952 clearly Ceased to exist because its place was taken by the carry forward rule of 1955
Thus by promulgating the new carry forward rule in 1915 the government of India itself cancelled the carry forward ruleof 1952
When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place could revive
We are therefore of opinion that after the judgment of this Court in Devadasan s case1 there is no carry forward rule at all for the carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955 in its place
But it must be made clear that the judgment of this Court in Devadasan s case2 is only concerned with that part of the instructions of the Government of India which deal with the carry forward rule it does not in any Way touch the reservation for scheduled castes and scheduled tribes at 12 12 and 5 respectively nor does it touch the filing up of scheduled tribes vacancies by scheduled  427 caste candidates where sufficient number of scheduled tribes are not available in a particular year or vice versa The effect of the judgment in Devadasan s case1 therefore is only to strike down the carry forward rule and it does not affect the year to year reservation for scheduled castes and sheduled tribes or filling up of scheduled tribe vacancies by a member of scheduled castes in a particular year if a sufficient number of scheduled tribe candidates are not available in that year or vice versa
This adjustment in the reservation between scheduled castes and tribes has nothing to do with the carry forward rule from year to year either of 1952 which had ceased to exist or of 1955 which was struck down by this Court
In this view of the matter it is unnecessary to consider whether the carry forward rule of 1952 would be unconstitutional for that rule no longer exists
This brings us to the last question whether the petitioner would be entitled to appointment on the basis that there was no carry forward rule in existence in 1960
Originally it was notified that the number of vacancies expected were 48
On that basis the reservation for scheduled castes would be 6 and for scheduled tribes would be 24
But as it is impossible to get 24 individuals and the reservation for scheduled tribes is a minimum of 5 they would be entitled to three vacancies
Thus out of 48 expected vacancies 9 would be reserved vacancies and 39 would be unreserved
Actually however the Public Service Commission recommended only 45 names
On the basis of 45 scheduled castes would be entitled to 5625 vacancies ie 6 vacancies while scheduled tribes would be entitled to 225 vacancies ie 3 vacancies
In actual effect however because one of the candidates recommended in the reserved quota died and one of the candidates out of the unreserved quota was appointed to another service the Government of India made only 43 appointments
On this basis the scheduled castes would be entitled to 5375 vacancies ie 6 vacancies and the scheduled tribes to 215 vacancies ie 3 vacancies
Thus on the actual appointments made the total reservation for scheduled castes and scheduled tribes would be 9 while 34 would be available for the unreserved quota
The petitioner secured 37th place in the unreserved quota
Out of these 37 one unreserved candidate was recruited to another service and thus the petitioner s position may conceivably be said to have bettered and become 36th
According to the calculation which we have already indicated 9 out of 43 vacancies actually filled will go to scheduled castes and scheduled tribes together and 34 1  428 would go to the unreserved quota
The petitioner however was 36th on the unreserved quota and therefore even on the basis of there being no carry forward rule only 34 candidates would be appointed from the unreserved quota and the petitioner being 36th on his own showing can not claim appointment
The petition therefore fails
In the circumstances we make no order as to costs
Petition dismissed


Summary:
In 1950 by a resolution of the Ministry of Home Affairs a reservation was fixed for scheduled castes and tribes to the extent of 12 12 and 5 respectively in respect of vacancies in public services to be filled from year to year
In 1952
a carry forward rule was introduced whereby the unfilled reserved vacancies of a particular year would be carried forward for on year only
In 1955 the above rule was substituted by another providing that the unfilled reserved vacancies of a particular year would be carried forward for two years
In 1960 a limited competitive examination was held by the Union Public Service Commission for promtion to the post of Section Officers
The petitioner who was an Assistant in the Central Secretariat Service appeared at this examination and secured the 37th rank
Although 43 appointments were made as a result of the examination the petitioner could not be appointed because under the 1955 carry forward rule as many as 28 vacancies were to be filled by Scheduled caste and scheduled tribes candidates
In 1963 the 1955 rule was declared invalid by this Court in Devadasan s case whereupon the petitioner filed a petition under article 32
He claimed that the 1952 carry forward rule having been substituted by the 1955 rule and the latter having been declared unconstitutional there was no carry forward rule in existence in 1960 and therefore by virtue of his rank in the examination he ought to be appointed to the post of Section Officer
HELD  i When L 1952 cary forward rule was substituted by the rule of 1955 the former ceased to exist
The 1955 rule having been declared unconstitutional in Devadasan s case there was no carry forward rule in existence in 1960 when the petitioner appeared at the examination
426 F G ii It must made clear that the judgment of this Court in Devadavans  case was only concerned with that part of the instructions of the Government of India which deal with the carry forward rule it did not in any way touch the reservation for scheduled castes and scheduled tribes at 12 12 and 5 respectively
This reservation had to be given effect to
After allowing for these reservations only 34 unreserved vacancies were left to be filled and the petitioner s rank being lower he could not succeed
426 G H 428 A B T Devadasan vs Union of India   explained