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Judgment
V. Ramaswami, J.—The Telecommunications Branch of the Posts and Telegraphs Department, Tamil Nadu Circle was separated and
constituted as a separate Telecommunications Branch Circle with effect from 1st September, 1974. An option was given to all the members of the
staff belonging to the erstwhile Posts and Telegraphs Department of the Tamil Nadu Circle and those who have opted were selected and taken
into the service of the Telecommunications Branch. The service conditions, promotional avenue, seniority and other matters connected with the
service of the staff of the Telecommunications Branch with effect from 1st September, 1974 are separate and distinct. The hierarchy of posts under
Class III of the Telecommunications are as follows:
Office Superintendent.
Higher Selection Grade (in the cadre of Head Assistant).
Lower Selection Grade (in the cadre of Head Clerk).
Upper Division Clerk, and
Lower Division Clerk.
The posts upto and inclusive of higher selection grade are not election posts and promotion was done to these posts on the basis of seniority. The
post of the Office Superintendent is a selection post. In the higher selection grade (in the cadre of Head Assistant), there was only one post. The
promotion to this cadre is purely on the basis of seniority from the lower election grade (in the cadre of Head Clerk). The post of higher selection
grade (in the cadre of Head Assistant) was created with effect from 6th February 1975. One Gopal Doss who was then the senior most in the
lower selection grade was promoted and posted to the higher selection grade as Head Assistant (General) with effect from 7th February 1975.
The said Gopal Doss was promoted as office Superintendent with effect from 1st March 1975. The Petitioner who was then the senior most lower
selection grade clerk was promoted and post to officiate as Higher Selection Grade Assistant in the place of the said Gopal with effect from 1st
March 1978. By another communication, dated 18th April 1978, the Director of Telecommunications in continuation of his earlier orders directed
the promotion and posting as Head Assistant in the higher selection grade on a regular basis with effect from 1st March 1978. It appears that the
Director General of Posts and Telegraphs in his communication, dated 3rd May 1978 informed the Director of Telecommunications to fill up the
vacancies in the Telecommunications Circle in accordance with the reservations applicable to the various posts. Probably, in the view that the
appointment of the Petitioner as Head Assistant in the higher selection grade also will have to be considered with reference to the instructions of the
Director- General of Posts and Telegraphs, a communication was sent to the Petitioner on 21st June 1978 that the posting of the Petitioner on a
regular basis will have to be treated as ad-hoc with effect from 1st March 1978.
The Petitioner preferred an appeal to the Director-General contending that there is only one post in the cadre of Head Assistant in the higher
selection grade and as such there could be no reservation under Article 16(4) of the Constitution and the rules of reservation are not applicable.
But the Director-General in his communication, dated 7th September 1978 instructed the General Manager, Telecommunications to terminate the
ad-hoc promotion and take action to fill up the post on a regular basis in the light of the instructions contained therein and applying the rules of
reservation. The Petitioner has filed this writ Petition praying for a certiorarified mandamus, directing the Respondents to treat the only post of
Head Assistant (General) in the cadre of higher selection grade in the Office of the General Manager, Telecommunications, Tamil Nadu Circle, as
not reserved and for consequential reliefs.
The various instructions issued by the Government of India relating to reservations for schedule castes and scheduled tribes in services are
contained in the Brochure published by the Government of India in this regard, Chapter II lists out the percentages of reservation that were in force
at the relevant time in filing vacancies in posts and services under the Government of India. Paragraph 1(iii)(c) of this chapter, which is relevant for
our purpose, states that where posts are filled by promotion:
on the basis of seniority subject to fitness, in Class I, II, III and IV posts, in grades or services in which the element of direct recriutment, if any,
does not exceed 50 percent.
15 percent is reserved for scheduled castes and 7� percent for the scheduled tribes. Paragraph 9 of Chapter IV provides that to give proper
effect to the reservations prescribed, every appointing authority should treat Vacancies as reserved or unreserved according to a model roster and
the pattern as in Appendix I to the Brochure. The model foster for posts filled by promotion to which reservation orders applied, takes 40 points.
The contention of the learned Counsel for the Petitioner is that the reservations are with reference to the posts and services and not with
reference to the vacancies. The rules relating to reservation for scheduled castes and scheduled tribes are not applicable where there is only one
post in the cadre. Article 16(4) of the Constitution also does not contemplate any reservation in favour of backward class of citizens when there is
only one post in the dadre.
The learned Counsel for the third Respondent contended that the instructions relating to reservations speak of filling vacancies and there is
nothing in the rules to suggest that in a case where the cadre strength is only one, the rules of reservation are not applicable. He also contended that
the applicability of Article 16 (4) cannot he restricted in any way so as to make it not applicable to a case where there is only one post in the
cadre.
The Supreme Court has considered the scope of Article 16 in a number of cases. In one of the earliest cases reported in T. Devadasan Vs. The
Union of India (UOI) and Another, the Supreme Court observed that:
the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any
office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is
to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be
afforded an opportunity for seeking such employment or appointment wherever it is intended to be field.
The Supreme Court further observed:
Further this Court has already held that Clause (4) of Article 16 is by way of a proviso or an exception to Clause (1). A proviso or an exception
cannot be so interpreted as to nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under Clause
(4) would in effect efface the guarantee contained in Clause (1) or at best make it illusory. No provision of the Constitution or of any enactment
can be so construed as to destroy another provision contemporaneously enacted therein. It is true, as pointed out by Mr. Ganapathy Iyer on behalf
of the Respondent that effect must be given to the express words of Article 16(4). Nothing in this Article shall prevent the State from making any
provision for the reservation of appointments...etc., but that does not mean that the provisions made by the State should have the effect of virtually
obliterating the rest of the Article, in particular Clauses (1) and (2) thereof. The over-riding effect of Clause (4) on Clause (1) and (2) could only
extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. That is all.
It was further held in C.A. Rajendran v. Union of India AIR 1968 S.C. 597 that Article 16(4) is an enabling provision and confers a
discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not
adequately represented in services of the State. But there it no constitutional duty imposed on the Government to make a reservation either at the
initial stage of recruitment or at the stage of promotion.
It is also well settled that the principle of equality in Article 16 is applicable to employment at all stage in all respects namely initial recruitment,
promotion, retirement, payment of pension and gratuity. It may be seen from these decisions, particularly the decision in T. Devadasan Vs. The
Union of India (UOI) and Another, that there could be no reservation under Article 16(4) so as to create a monopoly. That as pointed out, would
efface the guarantee contained in Clause (1). These principles in my opinion, necessarily lead to the conclusion that if there is only one post in the
cadre there could not be any reservation with reference to that post either for recruitment at the initial stage or filling up a future vacancy in respect
of that post. A reservation, which would come under Article 16(4), thus presupposes the availability of at least more than one post in that cadre.
When there is only one post, there is no possibility of the exercise of portion or discretion by the Government to reserve the post for backward
class of citizens within the meaning of Article 16(4).
The argument of the learned Counsel for the third Respondent is that the reservation is with reference to the vacancy and that therefore even if
there is only one post, the points of vacancy for each time may be considered as reserved point or unreserved point as per the instructions in the
roster. I am unable to agree with this contention of the learned Counsel. Article 16(4) speaks of reservation of appointments or posts; it does mot
include reservation of vacancies. Further, as we have noticed already, Clauses (1) and (2) of Article 16 have been held to apply both for
appointments and promotions. If so, every time the post becomes vacant, Article 16(1) and (2) will be applicable and any reservation will make
these provisions illusory.
Though the rules of reservation contained in the Brochure are possible of the construction placed by the learned Counsel for the third
Respondent that the reservations are with reference to the vacancies and not with reference to the posts, since any such construction will invalidate
the rules themselves as being unconstitutional and offending Article 16(1) and (2) they will have to be interpreted in such a way as to make it
constionally valid. In other words, the rules are not applicable to a case where there is only one post in the particular cadre. It is not disputed that if
the rules of reservation are not applicable, the Petitioner as the senior most lower selection grade clerk is entitled to be promoted as Head
Assistant (General) in the higher selection grade.
For the foregoing reasons, the writ petition is allowed and there will be a direction to Respondents 1 and 2 to treat the only post of Head
Assistant (General) in the cadre of higher selection grade in the Office of the General Manager, Telecommunications, Tamil Nadu Circlets not a
post to which the rules of reservation are applicable and fill up the post by applying the rules of seniority for promotion. There will be no orders as
to costs.