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

1. The petitioner, Shrimati Arati Ray Choudhary, is a permanent employee in the South Eastern Railway - a Government of India undertaking - which runs two Higher Secondary Schools for girls one at Adra and the other at Kharagpur. Broadly stated, the question which we have to decide in this petition under Article 32 of the Constitution is whether the vacancy in the post of the Headmistresss of the Kharagpur School can be treated as being reserved for a Scheduled Caste candidate, a question which depends for its decision both on the interpretation and the validity of the Carry forward rule. The petitioner assails that rule and contends that the vacancy is open to all candidates while respondent No. 8, who belongs to Scheduled Caste, contends for a contrary position.2. In August 1966 a vacancy arose in the post of the Headmistress of the Adra School and was filled up on the footing that it was unreserved. The Headmistress of the Kharagpur school was due to retire with effect from January 1, 1969 and therefore on December 5, 1968 the Railway administration formed a panel of candidates for selection to that post and fixed December 18, 1968 as the date for holding interviews. The names of four Assistant Mistress called for selection were arranged in the panel seniority-wise, the petitioner occupying the top place and respondent No. 8 the third place. The meeting of the 18th was sayed by the Calcutta High Court in a Writ Petition (Civil Rule No. 2117 (W) of 1968) brought by respondent No. 8 for readjustment of her seniority. On December 28, 1968 the petitioner was asked to take over charge of the post and on January 4, 1969 she was promoted to officiate as a Head-mistress, "purely on local stop-gap basis", and on the express condition that the promotion will not confer upon her any right or title to the post.3. Respondent No. 8 then filed another Writ Petition in the Calcutta High Court (Civil Rule No. 499 (W) of 1969) asking that the notice of December, 5, 1968 be quashed as the vacancy in the post of the Headmistress of the Kharagpur school ought, under the relevant rules, to be treated as being reserved for a Scheduled Caste candidate. In the mean while the stay order issued in Writ Petition 2117 of 1968 was vacated by the High Court and therefore on April 15, 1969 the Railway administration issued a fresh notice fixing the interviews of the four candidates on April 29. This attempt also proved abortive as respondent No. 8 obtained in Writ Petition 499 of 1969 an injunction restraining the authorities from holding the interviews.4. On December 24, 1970 a learned single Judge of the Calcutta High Court allowed Writ Petition 499 of 1969, holding that the post in question must be treated as being reserved for a Scheduled Caste candidate and that therefore respondent No. 8 was "alone entitled to appear before the selection Board for her appointment as Headmistress of the said Girls School." Neither the petitioner nor the two other candidates were impleaded to this petition. The Union of India was the first respondent and the Chief Personnel Officer of the S.E. Railway, the second respondent to the petition. These respondents carried an appeal (No. 454 of 1971) from the Judgment of the single Judge but it was dismissed by a Division Bench on September 14, 1971.5. Respondent No. 8 filed three contempt petitions, one after another, against the Railway administration for their failure to comply with the directions issued by the Calcutta High Court in Writ Petition No. 499 of 1969. In the first of these petitions (Civil Rule No. 4014-W of 1971) a Division Bench of the High Court, by its Judgment of June 7, 1972, asked the Railway administration to comply within a period of three months with the directions issued earlier by the High Court by asking the petitioner to appear before the Selection Board. The learned Judge however made it clear that the Selection Board would be at liberty to consider the suitability of the petitioner. Whether such a clarification would be made in the contempt petition filed by respondent No. 8 is open to doubt, but nothing really turns on it. The course which the other two contempt petitions took is also not relevant for the purpose of the present petition.6. On November 6, 1971 the Chief Personnel Officer of the S.E. Railway issued a Memorandum stating that it was "decided to hold a selection to draw up a penel of 2 approved candidates to fill the post of Head-mistress", one post being reserved for the scheduled caste against the existing vacancy and another "to cover unforeseen requirement unreserved". The petitioner filed a writ petition (Civil Rule No. 1395W of 1972) in the Calcutta High Court to challenge the memorandum and in the fashion of connected proceedings, she impleaded to her petition the Railway administration and the Union of India but none of her three competitors who would be directly affected by any order passed in her favour. On February 11, 1972, a learned single Judge granted an injunction in that writ petition restraining the Railway administration from making any appointment on the basis of the memorandum of November 6, 1971. Later in August, 1972, the three other Assistant Mistresses, including respondent No. 8, were impleaded to the writ petition.7. Despite the order of injunction, the Railway administration issued a letter on August 19, 1972 asking respondent No. 8 to appear before a Selection Board on August 30. It is patent that in doing this the Railway administration acted contrary to the terms of the injunction dated February 11, 1972, But they were truly between Scylla and Charybdis. On the one hand, they had to comply with the orders passed in Writ Petition No. 499 of 1969 under which they were directed to treat the vacancy as being reserved for the scheduled caste and to interview respondent No. 8 only for the post. On the other hand, they were faced with the injunction of February 11, 1972 by which they were restrained from making any appointment to the post on the basis that the vacancy was reserved for the scheduled caste. We suppose that they escaped through the horns of the dilemma by making a breach of the order which was later in point of time. But this is not all. Shrimati Lila Bhattacharyya, respondent No. 9 before us, who was one of the four contenders for the Headmistress post had also obtained an injunction in a writ petition filed by her in the Calcutta High Court (Civil Rule No. 5680W of 1979), restraining the Administration from making appointment to the post of the Headmistress of the Kharagpur school, without considering her claim to the post. Finally, the petitioner approached the High Court once again and on September 18, 1972 obtained an injunction once again in terms of the earlier injunction of February 11, 1972. The Railway administration had to fend their way through this network of injunctions.8. Writ Petition No. 1395 of 1972 filed by the petitioner came for hearing before a learned single Judge on October 3, 1972 when he felt "no rule should have been issued and in any case, no interim order should have been granted contrary to the direction of the Appeal Court by the me and I did so only because I was entirely kept in the dark regarding the earlier proceeding". namely Writ Petition 499 of 1969, filed by respondent No. 8 in which the Railway administration was asked to treat the vacancy as a reserved vacancy. The learned Judge therefore recalled the Rule and dismissed the petition.9. The petitioner did not appeal from this judgment but on October 11, 1972 she filed the present petition under Article 32 of the Constitution impleading thereto, fortunately, all the necessary parties. Respondent 1 to the petition is the Union of India, respondents 2 to 5 are officers of the Railway administration, respondent 6 is the Union Public Service Commission while respondents 7 to 9 are the 3 rival claimants to the post of the Headmistress. The petitioner prays for a mandamus asking respondents 1 to 5 (i) not to give effect to the rules relating to reservation of posts for candidates belonging to scheduled castes and scheduled tribes, particularly the "Carry forward" rule; (ii) to withdraw the order dated Nov. 6, 1971; (iii) to allow her, the petitioner, to continue in her post as a Headmistress of the Kharagpur school and (iv) to allow her to continue in the revised scale of pay : Rs. 700-1100. Rule Nisi was issued on this petition an October 23, 1972 and it was directed that status quo be maintained pending the hearing of the notice of motion for stay. The interim order directing the maintenance of status quo was vacated on February 27, 1973 after hearing the respondents. The Chief Personnel Officer, thereafter, passed an order on March 21, 1973 that respondent No. 8 be posted immediately as the Headmistress of the Kharagpur school, subject to certain conditions.

Reasoning: 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.