Case: Arati Ray Choudhury Vs. Union Of India &amp; Ors

unreserved".The words "on a particular occasion" were substituted on September 2, 1964 by the words "year of recruitment". Thus, in the first place each year of recruitment is directed to be considered separately and by itself as laid down in Devadasans case, (1964) 4 SCR 680 , 694-695 = (AIR 1964 SC 1790) so that if there are only two vacancies to be filled in a particular year of recruitment, not more than one vacancy can be treated as reserved. Secondly, and that is directly relevant for our purpose, if there be only one vacancy to be filled in a given year of recruitment, it has to be treated as unreserved irrespective of whether it occurs in the model roster at a reserved point. The appointment then is not open to the charge that the reservation exceeds 50% for, if the very first vacancy in the first year of recruitment is in practice treated as a reserved vacancy, the system may be open to the objection that the reservation not only exceeds 50% but is in fact cent per cent. But, if "on this account" that is to say, if on account of the requirement that the first vacancy must in practice be treated as unreserved even if it occurs in the model roster at a reserved point, "a reserved point is treated as unreserved" the reservation can be carried forward to not more than two subsequent years of recruitment. Thus, if two vacancies occur, say, within an initial span of three years, the first vacancy has to be treated as an unreserved vacancy and the second as reserved.22. That is precisely what happened here. The S. E. Railway runs only two Secondary Schools for girls, one at Adra and the other at Kharagpur. The vacancy at Adra was filled on August 16, 1966 by the appointment of the seniormost Assistant Mistress, Smt. Gita Biswas. In pursuance of the Memorandum dated December 4, 1963 of the Ministry of Home Affairs, the Railway Board revised the model roster by their letter of January 16, 1964. The first point in this roster is a reserved point and therefore the Adra vacancy was strictly a reserved vacancy. But there being only one vacancy in the particular year of recruitment it had to be treated as unreserved and therefore the appointment went to Smt. Biswas, an open, not a reserved candidate. This, however, had to be compensated for by carrying forward the reservation, though not over more than 2 subsequent recruitment years. For the purposes of Services under the Railway administration recruitment year means the financial year and the Adra appointment having been made in the financial year 1966-67, it was permissible to carry forward the reservation till the close of the financial year 1968-69. There was no vacancy in 1967-68. The vacancy in the post of the Headmistress of the Kharapur school occurred in the financial year 1968-69 by the retirement of Smt. Bina Devi with, effect from December 31, 1968.This vacancy, indubitably, had to be treated as a reserved vacancy and since from amongst the 4 Assistant Mistresses, respondent No. 8 was the only candidate belonging to the scheduled caste, she was entitled to be considered for selection to the post of the Headmistress, to the exclusion of the other 3.The claims, if any, of the petitioner who is not a reserved candidate have to be postponed, though in the normal course it may be quite some years before she gets her turn. The Adra Headmistress and respondent No. 8 would seem to have a long tenure in their respective offices.23. It is urged that only one vacancy occurred in 1968-69 and since the letter of the Railway Board dated January 16, 1964 says that "if there be only one vacancy, it should be treated as unreserved", the Kharagpur vacancy must be treated as unreserved. Such a construction would rob the rule of its prime significance and will render the carry forward provision illusory.24. Though each year of recruitment is to be treated separately and by itself, a reserved vacancy has to be carried forward over 2 years, if it is not filled in by the appointment of a reserved candidate. The open class reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas. If the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of Scheduled castes and scheduled tribes until the close of the financial year 1968-69. The Kharagpur vacancy was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly does not belong to the reserved class. The construction sought to be put on the rule by the petitioner would perpetuate a socal injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the rule and its legislative history.25. We may mention before we close that the posts of Headmistress of the Railway Higher Secondary Schools were upgraded in 1969 as Class II posts and in 1970 as Class I posts. The reservation for scheduled castes and scheduled tribes in Class II posts was abolished with effect from October 4, 1962 and in regard to Class I posts, there never was any such reservation. Different considerations may therefore apply to future recruitment to these posts, but with that we are not concerned here, Nor are we concerned to consider the Indian Railways Higher Secondary School Recruitment Rules, 1972, which, now are said to govern recruitment to the posts of Headmistresses.26. We hope that this judgment will finally ring down the curtain on the various proceedings pending in the Calcutta High Court together with various interim orders passed therein concerning the appointment to the Headmistresss post in the Kharagpur school.27.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have set out the rules leading to the final order in some fulness with a view to showing how, from time to time, the rules were adapted to meet the requirements of the law declared by this Court. The vice of rules impugned in Devadasans case. (1964) 4 SCR 680  : (AIR 1964 SC 179  ) was that though the unutilised reserved quota could not be carried forward for more than 2 years, the carry forward mechanism envisaged by the rules could almost completely swamp recruitment to open, general seats. The Court illustrated the "startling effect of the carry forward rule" contained in the Memorandum of January 28, 1952 as modified in 1955 by taking a hypothetical example: If in each of the first 2 years of recruitment, the total number of seats to be filled in was 100, 18 vacancies would have to be treated as reserved in each year. If suitable candidates were not available to fill these reserved vacancies, the reservation would have to be carried forward to the third year, though not beyond it. If the total number of seats for recruitment in the third year was 50, the backlog of 36 seats with the addition of 9 reserved seats for the current year would cover 45 out of 50 vacancies, leaving only 5 vacancies for open recruitment. This vice was effectively rectified soon after the judgment in Devadasans case, by the issuance of the Memorandum of December 4, 1963 as amended on September 2, 1964.It was specifically directed by these curative prescriptions that "in any recruitment year, the number of normal reserved vacancies and the carried forward reserved vacancies together shall not exceed 45 per cent of the total number of vacancies". The rules thus are no longer open to the objection that the reservation is so excessive as to create in Government employment a monopoly in favour of backward classes or to disturb unduly the legitimate claims of otheropen class reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas. If the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of Scheduled castes and scheduled tribes until the close of the financial year 1968-69. The Kharagpur vacancy was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly does not belong to the reservedconstruction sought to be put on the rule by the petitioner would perpetuate a socal injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the rule and its legislative history.We may mention before we close that the posts of Headmistress of the Railway Higher Secondary Schools were upgraded in 1969 as Class II posts and in 1970 as Class I posts. The reservation for scheduled castes and scheduled tribes in Class II posts was abolished with effect from October 4, 1962 and in regard to Class I posts, there never was any such reservation. Different considerations may therefore apply to future recruitment to these posts, but with that we are not concerned here, Nor are we concerned to consider the Indian Railways Higher Secondary School Recruitment Rules, 1972, which, now are said to govern recruitment to the posts of Headmistresses.We hope that this judgment will finally ring down the curtain on the various proceedings pending in the Calcutta High Court together with various interim orders passed therein concerning the appointment to the Headmistresss post in the Kharagpur school.