Subhash Chandra Agarwal vs Choudhry Charan Singh University,Meerut through its Registrar & Ors.

Sanjay Misra, J.—Heard learned Counsel for the parties. Affidavits have been exchanged and with the consent of learned Counsel this writ petition is being decided finally at this stage itself.

According to the petitioner there are two sanctioned posts of Reader in the Education Department of Chaudhary Charan Singh University, Meerut. One post had fallen vacant in 1994 and after advertisement (in the year 2000) in the OBC category it was filled by an OBC candidate namely Sri Indrajit Singh Sindu. The other post also fell vacant in the year 2003. It has been advertised for being filled up by a scheduled caste candidate. The petitioner contends that in case the second post of Reader in the education department is filled by a scheduled caste candidate then it would amount to a 100% reservation of the posts of Reader in the department. This according to him is not permissible in law.

The State respondents contend that in view of the decision of the Hon''ble Supreme Court in the case of State of U.P. v. M.C. Chattopadhyaya, (2004) 12 SCC 333, they have issued the Government order dated 182003 providing therein that reservation will be applied for the posts of Readers and Lecturers by taking the University as one unit. It provides that all the posts of Readers in the University will be clubbed together and the reservation will be done as per the roaster prepared under the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) Act, 1994. The same procedure has been provided for in the case of lecturers of the University. It is, therefore, contended that the advertisement issued by the University for filling up the second post of Reader of the Education Department is in accordance with the Government Order and the University has been taken as a unit for the purpose of selection on the post of Readers. Consequently they state that reservation on the post of Readers in the University has not exceeded 50%. The University has adopted the reasoning of the Stale respondents.

The post in question was earlier advertised twice in the general category and the petitioner claiming himself to be duly qualified had applied for being selected. However, on both the occasions no selection was held. He has, therefore, filed the present writ petition seeking quashing of the advertisement No. 1/2 K.4 in so far as it reserves the post in question for the scheduled caste candidate and also to quash the Government order dated 182003 where it applies reservation for the post of Reader treating the University as a unit. Admittedly no selection has taken place till date in pursuance of the impugned advertisement.

In the case of State of U.P. v. Dina Nath Shukla & Anr., 1997 SCC (L&S) 1231, the Hon''ble Supreme Court held that if there is any single post of Professor, Reader or Lecturer in each faculty etc. which cannot be reserved, it should be clubbed, roster should be applied and be made available for the reserved candidates in terms of Section 3(5) of the Reservation Act of 1994. It was also held that if there exists any isolated post, rule of rotation by application of roster should be adopted for appointment. The Hon''ble Supreme Court had relied upon an earlier decision in the case of Union of India v. Madhav, 1997(1) LBESR 17 (SC) : (1997) 2 SCC 332 and held that the said ratio was consistent with the law laid down therein. A constitution Bench of the Hon''ble Supreme Court in the case of Post Graduate Institute of Medical Education and Research v. Faculty Association, 2000(3) LBESR 572 (SC) : (1998) 4 SCC 1, held that there cannot be any reservation in respect of an isolated post and the judgment in the case of Union of India v. Madhav (supra) was overruled. Since the judgment of Madhav''s case was relied upon in Dina Nath Shukla''s case the Hon''ble Supreme Court held the conclusion in the case of Dina Nath Shukla as no longer good law in the case of State of U.P. v. M.C. Chattopadhyaya (supra).

In Dina Nath Shukla''s case the Hon''ble Supreme Court held as quoted hereunder:

�13. Thus it could be seen that if the subjectwise recruitment is adopted in each service or post in each cadre in each faculty, discipline, speciality or super speciality, it would not only be clear to the candidates who seek recruitment but also there would not be an overlapping in application of the rule of reservation to the service or posts as specified and made applicable by Section 3 of the Act.......�

The Hon''ble Supreme Court considered the contrary argument advanced on behalf of the State of U.P. in the case of M.C. Chattopadhyaya (supra) and held as quoted hereunder:

�5. In the course of argument before us Mr. Dwivedi, learned Senior Counsel appearing for the appellants submitted that there has been a 100 point roster in the State of U.P. which has been published by the Governor in exercise of power under subsection (5) of Section 3 of the Reservation Act. It may be borne in mind that in implementation of a roster as notified by the Governor, the principles enunciated in R.K. Sabarwal v. State of Punjab, have to be followed. We are not in a position to come to a conclusion on the basis of information available on record to hold whether the principles enunciated in Sabarwal''s case have been followed while issuing the advertisement in question and that apart the advertisement which was the subjectmatter of challenge, never considered the case of reservation on subject wise basis. Mr. Dwivedi strenuously urged before us that there should not be a reservation on subject wise basis particularly taking into account the definition of �cadre� in the Act and the statute already referred to and it should be left to the discretion of the ViceChancellor to decide the question as to which one of the given posts at a given point of time could be reserved. We are unable to accept the said submission of the learned Counsel as, in our opinion, that would lead to uncertainty and no candidate would be able to know as to which post is being reserved and under what consideration.�

The Hon''ble Supreme Court then laid down the law in paragraph 6 of the judgment which is quoted hereunder:

�6. While, therefore, we are of the considered opinion that there can be a reservation in respect of post of Professor and the provisions of the Reservation Act would apply, but the same cannot be applied taking all the Professors as a cadre and it has to be made subject wise, as has been earlier construed and held by this Court............�

In the case of Dina Nath Shukla (supra) the Hon''ble Supreme Court was considering reservation on the posts of Professors, Readers and Lecturers and it was held that subjectwise recruitment should be adopted. In M.C. Chattopadhyaya''s case (supra) the Hon''ble Supreme Court was considering reservation on the post of Professor only. However, it was clearly laid down that reservation cannot be applied retaking all the Professors as a cadre. It was clearly held that reservation has to be made subjectwise. Therefore, the view as construed and held in the case of Dina Nath Shukla (supra) on subjectwise recruitment and application of the rule of reservation was upheld in the case of M.C. Chattopadhyaya (supra).

In view of the law laid down by the Hon''ble Supreme Court the State could not have issued a Government Order in the nature of a clarification providing that reservation will be applied on recruitment to the posts of Readers and Lecturers by taking the University as unit or that all the posts of Readers in the University will be clubbed together for the purpose of reservation as per the roster prepared under the Reservation Act of 1994 while issuing advertisement for recruitment on a post of Reader. The Government order dated 182003 is not in accordance with law and is, therefore, quashed to the extent as held above. The advertisement No. 1/2 K4 published on 2842004 in the news paper (Annexure1 to the writ petition) in so far as it relates to the post of Reader in Education Department of Chaudhary Charan Singh University, Meerut is also quashed. The respondents are directed to readvertise the post for recruitment subjectwise and apply the rules of reservation accordingly.

This writ petition is allowed as above. No order is passed as to costs.