judgement:
ivil Appeal Nos.
4339 4341 of 1990.
From the Judgment and Order dated 30.5.90 of the Allaha bad High Court in W.P. No. 1841 of 1990.
Kapil Sibbal, Satish Chandra, Ms. Shobha Dikshit, R.K. Virmani and N.D. Garg for the appearing parties.
The Judgment of the Court was delivered by RANGANATHAN, J.
These three petitions can be disposed of by a common order.
Since we have heard counsel at some length we grant special leave in these petitions and proceed to dispose of the appeals.
In the Moti Lal Nehru Medical College (M.L.N. College) at Allahabad there are 8 seats for a post graduate course in Obstetrics and Gynecology.
Of these, 6 seats are reserved for institutional candidates and two are reserved for exter nal candidates.
The principal of the college has filled up all the 8 seats by admitting institutional candidates and without considering the cases of any external candidate.
Among the institutional candidates Dr. Juhi Jain and Dr. Padma Panjwani, who had obtained the highest percentage of marks, have been admitted and Dr. Vandana Singh, who had applied for admission as an external candidate, was not considered.
Dr. Vandana Singh, therefore, approached the Allahabad High Court, which upheld her contention and held that the two seats in question should have been filled up in accordance with a notification published by the State Gov ernment on 26th April, 1986 (amending a previous notifica tion dated 15.12.
1982) which provided as follows: "In every speciality, seventy five percent seats in a par ticular medical college shall be reserved for the candidates who have passed the M.B.B.S examination from that college and against the remaining twenty five percent seats, candi dates who have passed M.B.B.S. examination from other Medi cal Colleges and are bona .fide resident of Uttar Pradesh.
shall be eligible for admission on the basis of merit along with the candidates who have passed the M.B.B .S. examina tion from that very college.
The court, therefore, set aside the admission of Dr. Juhi Jain and 877 Dr. Padma Panjwani and directed the principal of the Medical College to consider the cases of Dr. Vandana Singh and other external candidates, who were eligible for admission to the "open" twenty five per cent seats on merits and in accord ance with law.
The Principal of the Medical College, Dr. Juhi Jain and Dr. Padma Panjwani have preferred these appeals.
It has been submitted that the High Court has overlooked that the admis sions in question were to the second year or the post gradu ate degree course and were being considered under the terms of a residency scheme dated 22.8.89.
As per the terms of this scheme, 25% of the seats in the course (here, two seats) were to be filled in by candidates on the basis of an examination conducted by the All India Institute of Medical Sciences.
However, no such examination had been conducted by All India Institute and the college instead of leaving the seats vacant, decided to fill them up by internal candidates on the basis of merit.
In doing this, the principal of the college was only complying with the terms of a decision rendered by the Allahabad High Court in the case of Dr. R.P. Pandey, (Writ Petition No. 8181 of 1989) and a precedent approved by the Directorate General of Health Services, Medical Examination Cell, Nirman Bhavan, New Delhi, which in a letter to the principal of an Agra College, had, when unable to recommend candidates on the basis of an All India examination for a particular course released these seats in favour of internal candidates.
It has been submitted on behalf of Dr. Juhi Jain that, even assuming that the appli cation of Dr. Vandana Singh had to be considered, the High Court should have restricted itself to quashing the admis sion to one of the two seats and upheld the admission of Dr. Juhi Jain, who had secured higher marks than Dr. Padma Panjwani.
It is submitted on behalf of Dr. Padma Panjwani that even assuming that Dr. Vandana Singh 's application merited consideration, the interests of all the three candi dates could have been safeguarded by directing the State Government to create one additional seat and accommodate all the three candidates.
Reliance is placed in this respect on certain observations made by this Court in the case of one Mridula Avasthi; , Finally, it has also been submitted, on behalf of the appellants, that Dr. Vanda na Singh was not eligible for admission even on the terms of the notification dated 26.4.86 since she was not a bona fide resident of Uttar Pradesh.
It is stated that she had passed her M.B.B.S. examination from the State of Bihar and had also taken admission in a post Graduate Diploma Course in Gynecology and Obstetrics at Darbhanga Medical College, Laneriasarai, Bihar, a fact which she had concealed from her writ petition.
878 We have today passed a detailed judgment in regard to certain admissions made pending implementation of the resi dency scheme introduced by the State of U.P. in our judgment in a batch of appeals preferred by Dr. Harihar Prasad Singh & Ors.
as well as the State of Uttar Pradesh, [1990] 3 SCR 895 (Civil Appeal, Nos.
and, for reasons that will be appar ent later, the judgment in the present appeals will have to be read along with the judgment in the said appeals for a full and proper understanding of the issues involved.
That other decision 'turned on the interpretation of paragraph 5 of the residency scheme and also pertained to admissions to the second year of the post graduate degree course.
The scheme contained a transitory provision in para 5 in respect of certain persons who were house officers between 1987 and 1989.
the related batch of appeals raised a controversy pertaining to 75% of the seats in the second year of the post graduate courses which were reserved for institutional candidates.
Here the question arises in respect of the remaining 25% of the seats reserved for "external" candi dates.
To understand the point at issue, we shall briefly touch upon those aspects of the residency scheme which we had no occasion to consider in the batches of appeals above referred to but which are material for the purposes of these appeals.
By the notification dated 22.8.89 a scheme called the residency scheme was introduced, which dealt, inter alia, with the question of admission to post graduate specialities in medicinal courses.
These cases, like the other batches, have proceeded on the assumption that, so far as institu tional candidates are concerned, admissions to the second year of a degree course could be granted to persons like Dr. Juhi Jain and Dr. Padma Panjwani who had completed the M.B.B.S. degree examination, done one year of internship and had been working as house officers in the State of U.P. on 22.8.89.
There was a further controversy in those cases as to whether even persons who had been working as house offi cers since 1.8.1987 would be eligible for admission to this course and we have, by our judgment in the connected ap peals, answered this question in the affirmative.
That question would become relevant here only if we do not agree with the view taken by the High Court here.
We shall, there fore, keep that issue aside for the time being and shall deal with it later.
To continue the narration regarding the scheme, it provided for admission, to the three year post graduate course, of candidates who had passed the M.B.B.S. examina tion and completed one year 's internship.
Seventy five per cent of the admission to these courses was 879 to be available to institutional candidates on the basis of an entrance examination; the balance of twenty five per cent of the seats was to be filled up on the basis of an all India entrance examination.
This provision was in tune with certain directions given by this Court from time to time for regulating admission to medical colleges in various parts of the country.
This Court had in particular directed that while 75% seats in each medical college all over the country could be filled in by local or institutional candidates, the balance of 25% should be filled up on an all India basis.
Elaborate directions were also given by this Court to enable the All India Medical Institute (A.I.I.M.S.) to conduct a competitive test for selecting the candidates for these seats reserved on an all India basis.
The scheme obviously referred to the all India competitive entrance examination to be conducted by the A.I.I.M.S. every year.
Indeed such an examination had been held by he A.I.I.M.S. in January Febru ary 1989 and the candidates recommended had been taken into the medical colleges in U.P. as per the regulations then existing.
However, since the new scheme came into being in the middle of the year, there was no possibility of either a local entrance examination nor an all India examination being held to regulate the admissions to the new course.
C1.3(f) however provided that, for the 75 % institutional seats, competitive entrance examination shall be enforced from the fresh batch and that before its enforcement the admission to institutional seats in residency shall be done on the basis of the merit of the M.B.B.S. examination.
It was, however, silent in regard to the balance 25% seats.
The question arose, therefore, as to what was to be done in respect of the remaining 25% seats.
To meet the situation, the Direction of Medical Education issued directions, on 3.10.89, to the following effect: "Since there will be no admission of external students this year against 25 % open seats, therefore, after merging these open seats with 75% additional seats, the admission of students of 1982 supplementary batch and 1983 regular batch should be done against the entire 100% seats by making their combined merit.
" Accordingly, it seems admissions to 100% seats in the first year of the three year post graduate scheme was thrown open fully to internal candidates, the admissions being decided on the basis of their merit in the M.B.B.S. examination.
We are, however, not concerned with that issue here.
We are here concerned with admissions to the second year of the 880 residency scheme.
The scheme made a provision in the second sub para of para 5 for the adjustment of 'persons serving in U.P. as house officers by absorbing them into the second year of the residency scheme.
The provision has been set out and its implications discussed elaborately in our judgment in the allied batches of appeals and need not be repeated here.
It is not quite clear whether the second sub para of para 5 of the scheme covers all the seats in the second year of the course or only 75% thereof.
However, it is apparently understood only as pertaining to the 75% seats reserved for institutional candidates and, as there was no other provi sion in regard to the balance of 25% of the seats, it was decided that those seats should also be filled in only by institutional candidates.
However, in the meanwhile, an advertisement had been issued by the Principal of M.L.N. Medical College, Allahabad on 21.9.89.
This advertisement pertained only to the filling up of the seats comprising the 75% reserved for institutional candidates.
There was no advertisement regarding the rest Dr. Vandana Singh applied for admission to the second year of the degree course.
In this state of affairs it is perhaps possible to dispose of the matter before us by holding that the application of Dr. Vandana Singh can only be treated as one in response to the advertisement of 21st September, 1989 and so could not have been entertained as she was not an institutional candidate and that she has no locus standi, on the basis of that application, to challenge the admission of other institu tional candidates.
It is also possible to interpret the second sub para of para 5 of the scheme as covering the entirety of the seats for the second year of the course and not merely 75% of them.
In this view also, the application of Dr. Vandana Singh would have to be rejected.
It could, however, be argued that as the High Court has proceeded on the footing that para 5 pertains only to 75% of the seats, quite irrespective of the basis of her applica tion, Dr. Vandana Singh has a right to insist that under the scheme 25% of the seats should be thrown open for all India competition and that the admissions based on a different basis were rightly quashed.
If we assume this postulate to be correct and go strictly by the terms of the notification, admissions should be on the basis of an all India examina tion.
There was, however, no immediate possibility of any such examination being held for admission to the course for 1989 90.
In this state of affairs, one possible view which the High Court has taken is that these seats must be kept reserved for external candidates and the college must now take steps to invite external candidates in accordance with the terms contained in the notification dated 26.4.86 if that notification were applicable and select them in the order of merit.
The college, however, 881 took the view that since no all India candidates were avail able on the basis postulated in the scheme, it would be appropriate to throw open the entire 100% to institutional candidates.
It is not suggested that this proposal was actuated by any mala fides.
In fact the State claims that this course of action has been approved by the decision of the High Court in the case of Dr. R.P. Pandey.
It may be that this is not the only view possible and that it is also possible to take the view that the college should have advertised these posts and filled them up by external candi dates on the basis of merit.
If this be so, such advertise ment cannot be continued to persons who are residents of U.P. as was envisaged by the notification dated 26th April, 1986.
That notification had been issued at a time when the concept of all India reservation for 25% Of the seats had not been adumbrated by this Court.
Even if we assume that the High Court was right in saying that external candidates were eligible for admission, that eligibility cannot be restricted only to those who had already applied indeed, Dr. Vandana Singh appears to have been the only one who had applied to the course in the M.L.N. College but should be thrown open to all external candidates fulfilling the quali fications.
This process cannot be completed within two weeks, as directed by the High Court.
To call for applica tion from all external candidates and select them, either on the basis of an examination or otherwise, will be a very lengthy and time consuming process.
In our opinion, the State Government and the college cannot be faulted for having decided to fill up the vacancies by offering these seats also to institutional candidates.
This is a decision taken only for a transitional period, because, from 1990 onwards, admissions will be regulated on the basis of an all India examination, and such an examination is conducted by All India Institute of Medical Sciences every year for all medical colleges in India.
In our opinion, the decision taken by the State Government and the college was a practi cal one to tide over a transitional difficulty and there is no justification to upset the same on the basis of a soli tary application from an external candidate.
For the reasons stated above, we are of the opinion that the High Court erred in quashing the admissions made on the grounds given by it, We uphold the rejection of Dr. Vandana Singh 's application.
In the view we have taken it is not necessary to express any opinion as to whether, even on the basis of the notification dated 26.4.86, Dr. Vandana Singh is eligible for consideration for admission to the course or she disqualified from such consideration for the reasons urged on behalf of the State, Dr. Juhi Jain and Dr. Padma Panjwani.
882 For the reasons mentioned above, we set aside the order of the High Court and hold that the application of Dr. Vandana Singh was rightly rejected by the college.
We should, however, like to point out that, in the connected batch of appeals, we have upheld that interpretation by the High Court of Para 5 of the scheme and held that the eligi bility for admission of institutional candidates is not confined to those who were on house jobs as on 22.8.89 but would also extend to those institutional candidates who have been in house jobs since 1.8.87.
The result of these two judgments read together will be that the entire 100% of the institutional seats should be filled up from out of all such applicants, subject to their fulfilling any other qualifica tions and requirements that may be in force.
Earlier, the admission of the six candidates to 75% of the seats as well as of Dr. Juhi Jain and Dr. Padma Panjwani to 25% of the seats had been made by excluding institutional candidates who had completed their house jobs between 1.8.87 and 22.8.89.
This will need to be reviewed now.
The entire process of admission will now have to be redone in the light of these decisions.
The selections of Dr. Juhi Jain and Dr. Padma Panjwani will be valid only if they come through successfully on merits on such reconsideration.
We have, therefore, to agree with the High Court that the admissions of Dr. Juhi Jain and Dr. Padma Panjwani should also be set aside but direct that the admissions be redone in the light of our observations in these two judgments.
These appeals are disposed of accordingly.
We, however, make no order as to costs.

summary/full:
For the academic year 1989 90, the appellant College had 8 seats in the post graduate course in Obsterics and Gyne cology.
Of these, six were reserved for institutional candi dates, and two for external candidates.
The Principal filled up all the eight seats by admitting institutional candidates without considering the case of any external candidate.
One of the external candidates approached the High Court by way of a Writ Petition.
The High Court set aside the admission of two .institutional candidates who were admitted against the quota for external candidates, and directed the Princi pal to consider the case of the petitioner and other exter nal candidates who were eligible for admission to the 'open ' 25% seats on merits, in accordance with law.
Aggrieved, the Principal and the two institutional candidates whose admis sion was set aside by the High Court, have preferred these appeals, by special leave.
Disposing of the appeals, HELD 1.
The appellant College, took the view that since no All India candidates were available on the basis postu lated in the Residency Scheme it would be appropriate to throw open the entire 100% to institutional candidates.
It is not suggested that this proposal was actuated by any mala fides.
In that the State claims that this course of action has been approved by the decision of the High Court in a case before it.
It may be that this is not the only view possible and that it is also possible to take the view that the college should have advertised these posts and filled them up by external candidates on the basis of merit.
If this be so, such advertisement cannot be confined to persons who are residents of U.P. as was envisaged by the notifica tion dated 26th April, 1986.
That notification been issued at a time when the 875 concept of All India reservation for 25% of the seats had not been adumbrated by this Court.
Even if it is assumed that the High Court was right in saying that external candi dates were eligible for admission, that eligibility cannot be restricted only to those who had already applied but should be thrown open to all external candidates fulfilling the qualifications.
This process cannot be completed within two weeks, as directed by the High Court.
To call for appli cations from all external candidates and select them, either on the basis of an examination or otherwise, will be a very lengthy and time consuming process.
The State Government and the college cannot be faulted for having decided to fill up the vacancies by offering these seats also to institutional candidates.
This is a decision taken only for a transitional period, because, from 1990 onwards, admissions will be regulated on the basis of an All India examination, and such an examination is conducted by the All India Institute of Medical Sciences every year for all medical colleges in India.
The decision taken by the State Government and the college was a practical one to tide over a transitional difficulty and there is no justification to upset the same on the basis of a solitary application from an external candidate.
[881A F] 2.
On a proper interpretation of Para 5 of the Residency Scheme the eligibility for admission of institutional candi dates is not confirmed to those who were on house jobs as on 22.8.89 but would also extend to these institutional candi dates who have been in house jobs since 1.8.87.
The result of these two judgments read together will be that the entire 100% of the institutional seats should be filled up from out of all such applicants, subject to their fulfilling any other qualifications and requirements that may be in force.
Earlier, the admission of the six candidates to 75% of the seats as well as the admission of the two candidates to 25% of the seats had been made by excluding institutional candi dates who had completed their house jobs between 1.8.87 and 22.8.89.
This will need to be reviewed now.
The entire process of admission will now have to be redone in the light of these decisions.
The selection of the two institutional candidates in question will be valid only if they come through successfully on merits on such reconsideration.
The High Court was right in holding that their admissions should be set aside.
The admission be redone in the light of the observations in these two judgments.
[882B E] Dr. Harihar Prasad Singh & Ors.
vs Principal, Moti Lal Nehru Medical College & Ors.
, [1990] 3 SCR 895 referred to.


judgement:
ivil Appeal No. 5336 & 5337 of 1983.
From the Judgment and Decree dated 15.7.
1982 of the Andhra Pradesh High Court in W.A. No. 194 of 1981.
P.P. Rao, section Sitaramayya, K. Parasaran, T.V.S.N. Chari, Ms. B. Sunita Rao, Ms. Manjula Gupta, B. Parthasarthi, A. Subba Rao, A.D.N. Rao and K.R. Choudhary for the appearing parties.
The Judgment of the Court was delivered by SAWANT, J.
These matters have a chequered history.
The appellants as well as most of the contesting respondents were appointed as Junior Engineers in the Andhra Pradesh Electricity Subordinate Service on emergency basis between 1959 and 1963.
While they were in service on April 24, 1963, the Andhra Pradesh Public Service Commission (hereinafter referred to as the "Commission") invited applications for regular appointment by direct recruitment to 246 posts of Junior Engineers and on December 21, 1963, the Commis 916 sion forwarded a list of selected candidates to the State Government.
This list was, however, not arranged according to merits and therefore according to seniority inter se among the candidates.
On April 15, 1964, the Commission forwarded to the Government the list of selected candidates arranging their names according to merits and seniority and after complying with the reservation prescribed by Rule 22(ii)(c) of the Andhra Pradesh State and Subordinate Serv ice Rules (hereinafter referred to as the "Rules") by which the relevant service was governed.
On August 11, 1964, the State Government amended the said Rules by deleting the said Rule 22(ii)(c) with retrospective effect from April 1, 1964.
This amendment was effected to comply with the decision of this Court in M.R. Balaji & Ors.
vs State of Mysore, ; Supp. 1 SCR.
In spite of the fact that the Rules were so amended on August 11, 1964 with retrospec tive effect, the State Government on April 29, 1965 gazetted the list of selected candidates as was sent to them by the Commission on April 15, 1964.
The result was the list as gazetted was in breach of the said Rules.
After the gazette notification, on April 29, 1965, the Chief Engineer of the Government appointed all the said candidates to the posts of Junior Engineers who included the appellants and the re spondents and others according to the order of seniority communicated by the Commission.
The candidates so appointed were put on probation for a total period of two years.
The seniority as notified in the said list was chal lenged by a Writ Petition No. 2 146 of 1966 in the High Court of Andhra Pradesh in November 1966 by 10 Junior Engi neers belonging to the non reserved category on the ground that the same was in breach of law since it was contrary both to the said decision of this Court as well as to the Rules as they stood amended on August 11, 1964 w.e.f. April 1, 1965.
The learned Single Judge disposed of the said Writ Petition on the assurance of the Government contained in their Memo.
No. 3373 E/70 dated July 17, 1970 addressed to the Government Pleader that the seniority list would be revised in compliance with the amended Rules so far as the petitioners were concerned.
Unfortunately, the learned Judge did not appreciate the discrimination to which the said assurance was to lead, since the assurance related only to the petitioners before him and had excluded the rest of the Junior Engineers similarly situated.
The matter, however, rested there.
On December 28, 1972, the State Government gave an option to all the Junior Engineers including the petitioners and the respondents to choose between the government service and a permanent 917 transfer to the Andhra Pradesh State Electricity Board.
Before the transfers could be effected, it appears that there was a correspondence between the Government and the Commission for changing the seniority list pursuant to the assurance given by the State Government to the learned Single Judge.
The Commission opined that the seniority list could not be altered in respect of only 10 petitioners in the said Writ Petition and had to be altered in respect of all the candidates selected, to comply with the amended Rules.
Accordingly, the Commission on June 27, 1973 sent the corrected seniority list to the State Government.
The Gov ernment accepted the said list, and on July 23, 1973 direct ed its Chief Engineer to circulate the said revised list and to invite objections to the same within a stipulated period. 'Accordingly, the Chief Engineer by his Memo.
dated August 8, 1973 circulated.the said seniority list and invited objections from all the concerned Junior Engineers.
Most of them including the respondents submitted their objections by October 1, 1973 on and from which date those of the Junior Engineers including the petitioners and respondents who had exercised their option to join the Electricity Board, were transferred to the Board.
The Government transferred the Junior Engineers who had opted for service with the Board by its Order of Novem ber 7, 1973 w.e.f. October 1, 1973 as stated above.
That order being G.O.M. No. 1166 assumes importance in the present case since the contents of paragraph 6(3) and 6(4) of the said document are relied on by the High Court as well as both sides in support of their respective contentions.
The said contents may be reproduced here at the outset: "6(3).
The transfer is on 'as is ' basis and the names in the Annexure are not arranged in the order of seniority on that basis; 6(4).
On transfer to the Andhra Pradesh State Electricity Board, the individuals will carry with them the seniority as it existed under Government as on 1.10.73 without prejudice of the seniority of the persons referred to in sub para (1) above, who may be transferred to the Board by a subsequent order of the Government and the seniority with reference to the position between 1.11.1956 to 1.10.1973 is liable to be altered by Government at any time with reference to pending appeals on Common Gradation Lists or with reference to the recommendations of High powered 918 Committee, State Advisory Committee, Central Advisory Com mittee etc.
On November 5, 1974, the Chief Engineer of the Elec tricity Board (to which the petitioners and respondents had stood transferred permanently from October 1, 1973) after considering the representations against the seniority list received from the affected Junior Engineers, issued a re vised seniority list.
This seniority list was challenged by the respondents and others who belonged to backward classes by a Writ Petition No. 6084/74 filed in the High Court in May 1972.
The learned Single Judge who tried the said writ petition, by his order of March 29, 1978 struck down the said list on the ground that the Chief Engineer of the Electricity Board had no power to alter the seniority of the transferred employees whose seniority was fixed by the State Government.
However, he observed that if the Government had retained any power under the transfer order and if it was so advised, the Government would be at liberty to revise the seniority list.
Aggrieved by the said order the petitioners on August 25, 1978 preferred an appeal before the Division Bench of the High Court dismissed it.
In view of the observations made by the learned Single Judge, the Government on August 23, 1979 issued show cause notices once again to all the persons belonging to backward classes (the respondents) to show cause why their seniority should not be revised as per the assurance given by the Government to the High Court while disposing of Writ Petition No. 2 146/66.
Some of the respondents replied to the show cause notice on November 18, 1979 and some of them filed a Writ Petition in the High Court being Writ Petition No.2 15 of 1980 on December 7, 1979 for restraining the Government from revising the seniority pursuant to the show cause notice.
At the same time, in February 1986, some of the petitioners in Writ Petition No. 2 146/66 filed Writ petition No. 582/80 before the High Court for seeking a direction to the Government to implement the assurance given by it while disposing of the said Writ Petition.
The learned Single Judge by his decision of February 5, 198 1 dismissed the respondents ' petition upholding the power of the Govern ment to revise the seniority list, and in view of the said order passed in respondents ' writ petition, no orders were passed in the petitioners ' petition.
Aggrieved by the said decision, the respondents preferred an appeal on March 30, 198 1 to the Division Bench.
Since no stay was granted pending the appeal, the Government by its order dated May 919 26, 198 1 issued a final revised seniority list after con sidering the representations of the persons belonging to the backward classes including the respondents.
Thereafter on July 15, 1982, the Division Bench of the High Court allowed the appeal of the respondents holding that the Government had no power to revise the seniority list.
It is this deci sion which is under challenge.
On behalf of the respondents some further connected developments have been brought to out notice.
It appears that along with the appellants and respondents who were the Degree holders, some Diploma holders were transferred to the Board w.e.f. the same date, namely, October 1, 1973.
Some of them had preferred on April 16, 1980 a Writ Petition being Writ Petition No. 1657/80 before the High Court for a direc tion to the Government to prepare a seniority list of As sistant Engineers who were appointed from June 15, 1963 in accordance with the statutory Rules and to communicate the same to the Board.
On April 16, 1982, a learned Single Judge allowed the said petition upholding the plea that the said order No. 1166 dated November, 7, 1973 had given powers to the State Government to settle the seniority of the trans ferred employees as on October 1, 1973.
This decision was upheld in appeal by a Division Bench of the High Court by its decision of March 26, 1987.
The Special Leave Petitions Nos. 8044 and 10783 of 1987 preferred against the said decision were dismissed by this Court on October 30, 1987 and this Court directed the Board to implement the order of the High Court subject to any decision which may be rendered by this Court in the present appeals.
On August 4, 1989, the State Government communicated the seniority list of the Assistant Engineers to the State Electricity Board and the Board is acting on the same.
The result is that whereas the petitioners, namely, the Diploma holders in the said Writ Petition No. 1657/80 are the beneficiaries of the revised seniority list, the present appellants are not.
The High Court has quashed the revised seniority list on .three grounds.
The first ground is that the employ ees having exercised their option under the Government Orders Nos. 1651 and 1166 dated December 28, 1972 and Novem ber 7, 1973 respectively subject to the terms and conditions mentioned therein, they were estopped from contending that the seniority which they carried with them as it existed under the Government as on October 1, 1973 cannot be contin ued further and was liable to be disturbed because the rule of reservation contained in old Rule 22(ii)(c) was declared by this Court to be violative of Articles 14 and 16 of the Constitution of India.
The High Court 920 further opined that there was a declaration in G.O. No. 1166 of November 7, 1973 which was binding on all the concerned, viz., the Government, the Board as well as the employees, that the exercise of the option was final.
Since the Govern ment and the Board had acted upon the option exercised by the employees and transferred them from Government service to the service of the Board, they were estopped from revis ing the seniority.
So also the employees were estopped from claiming that their seniority should be revised on any grounds whatsoever.
The second ground given by the High Court was that the transfer itself being subject to the terms and conditioned mentioned in the aforesaid Government Orders which stated that the transfers were on "as is" basis which included seniority, the seniority cannot be disturbed on any ground whatsoever.
The High Court stated in this connection that the employees concerned were specifically notified that the names mentioned in the Annexure were not arranged in the order of seniority and they were further notified that the employees would carry with them the sen iority as it existed on October 1, 1973, the only exception being of those employees who were mentioned specifically in sub para (1) of paragraph 6 of G.O. No. 1166.
Those persons were non gazatted technical staff, ministerial and few others whose options were not received by the Government on account of the delay in transit or for other reasons.
The High Court negatived the contention that clause 4 of G.O. No. 1166 which stated that the employees will carry with them their seniority as it existed under the Government on October 1, 1973 "without prejudiced to the seniority of the persons referred to in sub para (1) above who may be trans ferred to the Board by subsequent order of the Government the seniority with reference to the position between Novem ber 1, 1956 and November 1, 1973 was liable to be altered by Government at any time with reference to pending appeals on common gradation list or with reference to the recommenda tions of High Powered Committee (HPC), State Advisory Com mittee (SAC), Central Advisory Committee (CAC) etc." includ ed the cases of employees who had made their representations such as the present appellants who had initiated the pro ceedings by Writ Petition No. 2 146 of 1966 and which pro ceedings were not finally disposed of even by October 1, 1973.
The High Court held that the word "etc." was confined only to those employees who were affected by the States Re organisation Act or by orders on appeal against the Common Gradation Lists or representations made against the recom mendations of the HPC or SAC or CAC which were all matters referfable to the integration of the services of the Andhra and Telengana regions consequent upon the re organisation of the States.
That clause also referred, according to the High Court, to the revision of inter se 921 seniority list as on October 1, 1973 of other non gazetted technical staff, ministerial and few others who may be subsequently transferred.
But it did not refer to any of those who had already been transferred.
According to the High Court, if that was the intention, the Government would have specifically stated so.
The last ground given by the High Court was that the Government had no power to alter the seniority of the employees after October 1, 1973 since they had ceased to be the Government employees.
According to the High Court, the power given to the Government under Rule 36 A of the Rules to review the seniority could not be exercised to rectify the mistake.
According to the High Court, the question was not whether the earlier seniority list was valid but whether it could be revised and if so, by which authority.
The Government 's power of revising the seniority list was only in respect of those who were Govern ment servants on the date of the revision.
The High Court also held that merely because the Board had no jurisdiction to disturb the seniority so fixed, it did not follow that the Government continued to have jurisdiction in respect of those employees who were no more its employees.
To appreciate the reasoning of the High Court, it is first necessary to reproduce the relevant portions of G.Os.
1651 and 1166 of December 29, 1972 and November 7, 1973 respectively: "G.O. Ms. No. 1651 . . . . . . . . . . 3.
After carefully examining the matter in the light of the above, the Government consider that in view of the transfer of the bulk of the electricity projects to the Board and in view of the fact that the Board is in charge of Electricity Supply and distribution, it will be appropriate that the Board should have direct control over the staff and all the activities of the Board should be managed by the Board staff.
The Government therefore direct that an opportunity be given to the Government employees working in electricity supply and maintenance etc.
, to opt for service under the Andhra Pradesh State Electricity Board subject to the fol lowing Board subject to the following terms and conditions.
The employees on transfer to the Boards: i. shall cease to be Government servants and shall hence forth be the employees of the Andhra Pradesh State Electric ity Board.
922 ii.
shall be governed by the rules and regulations framed by the Board in all matters including matters pertaining to promotions and disciplinary action subject however to (iii) below and the Andhra Pradesh Civil Service (CC&A) Rules shall cease to apply to them . " "G.O. Ms. No. 1166 . . . . . . . . . . 4.
With reference to the above orders, the Board and the Chief Engineer have obtained the options from the officers referred to in the Annexure to this order, and forwarded them to the Government.
The options exercised by the individuals were carefully considered by the Government.
All the officers mentioned in the Annexure to this order, have opted to the Board service in the form prescribed in Annexure I to the G.O. first read above.
In view of the options exercised by the officers, the Government have decided to and accordingly transfer the services of the officers, mentioned in the Annexure to this G.O. to the A.P. State Electricity Board with effect from 1.10.1973 forenoon on the terms and conditions specified in paragraph 3 above and also those mentioned hereunder: (1) Orders in respect of the non gazetted technical staff, ministerial and of few others whose option forms have not been received by the Government on account of delay in transit or for other reasons, will issue separately; (2) . . . . . . . . . (3) The transfer is on "as is" basis and the names in the Annexure are not arranged in the order of seniority and do not therefore confer any right for seniority on that basis; (4) On transfer to the Andhra Pradesh State Electricity Board, the individuals will carry with them the seniority as it existed under Government as on 1.10.1973 without preju dice of the seniority of the persons referred to in sub para (1) above, who may be transferred to the Board by a subse 923 quent order of the Government and the seniority with refer ence to the position between 1.11.1956 to (sic.) 1.10.1973 is liable to be altered by Government at anytime with refer ence to pending appeals on Common Gradation Lists or with reference to the recommendations of High Powered Committee, State Advisory Committee, Central Advisory Committee etc., . " 12.
We should have thought that a mere reading of these two Government Orders and particularly G.O. No. 1166, was enough to uphold the contention of the appellants herein that their seniority as on October 1, 1973 was liable to be revised by the Government at any time.
This was so because firstly, clause (3) of paragraph 6 makes it clear that the names in the Annexure sent along with the order were not arranged in the order of seniority, and did not, therefore, confer any right for seniority on the basis, This shows that the Government had not finalised the seniority list, and the list which was sent to the Board with the said order was a provisional one.
The Government had to say so because admit tedly on that day the seniority of the employees was in flux on account of various reasons.
In the first place, as stated in paragraph 1 of the order, the seniority of non gazetted technical staff, ministerial and few others whose options were not received on account of various reasons, could not have been arranged.
As regards the gazetted technical staff such as the appellants as well as the nontechnical staff, there were appeals pending against the Common Gradation Lists prepared as per the recommendations of the HPC, SAC, CAC etc.
with reference to the seniority position between November 1, 1956 and October 1, 1973.
This was a sequel to the re organisation of the States and the amalgamation of the different regions in the State.
Secondly, the Government could not have ignored the position that as on October 1, 1973 the dispute with regard to the seniority of the appel lants and the respondents herein was pending in the High Court right from November 1966 when, as stated earlier, 10 Junior Engineers including some of the present appellants had filed Writ Petition No. 2 146 of 1966 giving rise to further proceedings as narrated hereinabove.
In these cir cumstances, it will indeed be difficult to hold that whereas the Government reserved power and could reserve power to revise the seniority list on account of the disputes about seniority arising out of the States ' re organisation and/or on account of the non receipt of options of the non gazetted technical staff etc.
it did not or could not reserve such power to meet the situation arising out of the orders of the courts in the disputes pending between the appellants and the respondents herein.
According to us, even if no such powers 924 were specifically reserved in the said Government order, the Government would have been obliged to revise the seniority list to comply with such orders.
We are further afraid that the High Court, in this connection, placed too much emphasis on the expression "the transfer is on as is basis" and did not read into it what in the context of the whole order should have been quite obvi ous.
Clause 3 of the order itself states that the names mentioned in the Annexure were not arranged in the order of seniority and did not, therefore, confer any right for seniority on that basis.
Clause 4 of the order specifically stated that the seniority was liable to be altered by the Government at any time with reference to the pending appeals "etc." Even assuming that the Government by the word "etc.
" did not intend to refer to the matters pending in court and only intended to refer to the appeals arising out of the recommendations of the concerned committees, it should be clear to any one that whether the Government reserved such power or not with reference to the cases pending in courts, the Government would have been under an obligation to revise the seniority list to comply with such orders.
In the cir cumstances, the expression "the transfer is on as is basis" should have been confined to all service conditions except the seniority.
We are also unable to understand why the Government could revise the seniority list of some employees who were no longer its employees after October 1, 1973 merely because it had reserved its powers to do so while it had no power to do so in respect of the other employees merely because it had not reserved such power.
If the ground given by the High Court for such lack of power in respect of the latter class of employees is correct, viz., that they had ceased to be the Government servants, then for the same reason the Gov ernment could not have reserved and even if it had reserved, could not have had the power to change the seniority of the other employees since both had ceased to be the Government employees on and from October 1, 1973.
If the lack of power was on account of the severence of the relationship between the Government and the employees, then whether the Govern ment reserved the power or not, the Government could not have had such power.
On the other hand, if Government could exercise such power merely because it had reserved it, it could exercise it for any reason whatsoever and for any length of time even when the employees were not the Govern ment servants.
We are afraid that the Court failed to appre ciate that firstly, even if the Government so willed, it could not have reserved power to change the seniority of the employees after October 1, 1973.
Conversely, the Government had 925 always the power to revise the seniority list of the employ ees as on October 1, 1973 on account of reasons accruing prior to the said date.
To do it, it was not necessary for the Government to reserve any power, for it had inherent power to do so.
What is unfortunately lost sight of by the Court is that the Government had no reserved the power, as it could not, to change the seniority of the employees after October 1, 1973.
The Government had reserved the power, as it had every right to do so, to change the seniority of the employees as on October 1, 1973 or prior to that date when they were employees of the Government.
It is this initial wrong assumption which, we are afraid, had led the Court to the wrong conclusion.
We have pointed out above that the Government had not sent the list of the employees to the Board arranged accordingly to seniority and the expression "as is" in the circumstances referred to service conditions other than seniority.
We have further pointed out that even if the word "etc." at the end of clause (4) of paragraph 6 of the said Government Order was construed to exclude the dispute with regard to seniority pending in the court, that would not have exempted the Government from complying with the orders of the court.
To hold that the Government by its own order such as the present one could prevent operation of the order of any court is to invite conflict in the jurisdiction of the executive and the judiciary which, we are sure, the High Court did not intend.
But the reasoning of the Court unwit tingly and directly leads to such unconstitutional proposi tion.
For the same reasons, the Government could not have forced the employees to accept the term with regard to the seniority as an immutable one.
This is a part from the fact, as pointed out above, that in fact the said Government Order did not lay down any such term.
This being the case, it cannot be said that the appellants had accepted the seniori ty as was forwarded by the Government to the Board and they were estopped thereafter from agitating against it.
It is unnecessary to state that the decision of the court being the law, no plea of estoppel could be raised against it.
With respect, we are also unable to accept the reasoning of the High Court that since the Board had no power to change the seniority list, it could not be said that the Government had the said power.
As a first proposi tion, it is well settled that there cannot be a right with out a remedy.
Law abhors such vacuum.
But, as pointed out earlier, there are two periods with respect to which the power to alter seniority has to be examined.
The first period is upto October 1, 1973 926 and the second commences thereafter.
In the first period there was a relationship of employer employee between the Government and the transferred employees.
Hence, the Govern ment had ever? right to correct or amend the seniority of the employees upto that date.
therefore.
the Government had advertently or inadvertently committed any error in preparing the seniority list upto October 1, 1973, or be cause of the decisions of the courts it had to amend the said seniority list.
not only it had power to do so but it was the only authority which could do it.
The seniority list which was corrected by the Government was the seniority list as on or before October 1, 1973.
In the circumstances, we are of the view that the decision of the High Court suffers from legal infirmities and has to be set aside.
The result is that both the appeals are allowed.
The revised seniority list sent by the Govern ment to the Board with Government Order No. 233 of May 26, 198 1 is restored and the respondent Electricity Board is directed to act on the same.
In the circumstances of the case, there will be no order for costs in either of the appeals.
N.P.V. Appeals allowed.

dataset_name: IN-Abs

summary/full:
The appellants and the respondents who were originally appointed as Junior Engineers in the Andhra Pradesh Elec tricity Subordinate Service, were subsequently transferred along with other Junior Engineers to the State Electricity Board with effect from October 1, 1973 on the basis of options exercised by them to join the Board.
in response to G.O.Ms.
No. 1651 dated 28.12.1972.
The terms and conditions of transfer were stipulated in G.O.Ms.
No. 1166 dated 7.11.1973.
On the date of transfer, the seniority list of the Junior Engineers had not been finalised.
However a seniority list prepared by the State Public Service Commission, taking into account the deletion of rule 22(ii)(c) of the Andhra Pradesh State and Subordinate Rules with retrospective effect from April 1, 1964, had been circulated among the concerned Junior Engineers for objections, if any, and most of them.
including the petitioners and respondents, had submitted their objections before October 1, 1973.
After the transfers were effected, the State Electricity Board prepared a revised seniority list but the High Court struck down the same on the ground that the Board had no power to alter the seniority of the transferred employees, whose seniority was fixed by the Government.
However, it observed that if the Government had retained any power under the transfer order it would be at liberty to revise the seniority list.
In view of the aforesaid observations, the Government issued show cause notices once again to all the persons belonging to backward classes (the respondents) for revising the seniority.
913 In a writ petition filed by the respondents for re straining the Government from revising the seniority, a Single judge of the High Court, upheld the power of the Government to revise the seniority list.
During the pendency of appeal before the Division Bench, the Government issued a final revised seniority list, vide G.O. No. 233 of May 23, 1981.
Thereafter, the Division Bench quashed the revised seniority list on the grounds that there was a declaration in G.O. of November 7, 1973 that the exercise of the option was final, and since the Government and the Board had acted upon the option exercised by the employees and transferred them from Government service to the service of the Board, they were estopped from revising the seniority and similar ly, the employees were estopped from claiming that their seniority should be revised on any grounds whatsoever, that since the transfers were on "as is" basis which included seniority, the seniority could not be disturbed on any ground whatsoever, that the Government had no power to alter the seniority of the employees after October 1, 1973 since they had ceased to be Government employees, and the power given under Rule 36A of the Rules to review the seniority could not be exercised to rectify the mistake, and that merely because the Board had no jurisdiction to disturb the seniority so fixed, it did not follow that the Government continued to have jurisdiction in respect of those employees who were no more its employees.
This decision was challenged in the appeals before this Court.
Allowing the appeals, this Court, HELD: 1.1 The Government had reserved the power, as it had every right to do so, to change the seniority of the employees as on October 1, 1973 or prior to that date when they were employees of the Government.
It had not reserved the power, as it could not, to change the seniority of the employees after October 1, 1973.
Even if it so willed, it could not have reserved power to change the seniority of the employees after October 1, 1973.
Conversely the Government had always the power to revise the seniority list of the employees as on October 1. 1973 on account of reasons accru ing prior to the said date.
To do it, it was not necessary for it to reserve any power, for it had inherent power to do so.
[925B; 924H; 925A] 1.2 By a mere reading of two Government Orders, and particularly, G.O. No. 1166 it is clear that seniority of the appellants as on October 1, 1973 was liable to be re vised by the Government at any time.
Clause (3) of paragraph 6 makes it clear that the names in the Annexure sent along with the order were not arranged in the order of seniority, 914 and did not.
therefore, confer any right for seniority on that basis.
This shows that the Government had not finalised the seniority list and the list which was sent to the Board with the said order was a provisional one.
The Government had to say so.
because, admittedly, as on that day the seniority of the employees was in a flux on account of various reasons.
viz., non receipt of options of non gazet ted technical staff and pendency of appeals of the gazetted technical staff, like the appellants and non technical staff against the Common Gradation Lists prepared as per the recommendations of various committees with reference to seniority position between November 1, 1956 and October 1, 1973, sequel to reorganisation of the States and amalgama tion of different regions in the State.
Besides.
the Govern ment could not have ignored the position that as on October 1, 1973 the dispute with regard to the seniority of the appellants and the respondents was pending in the High Court right from November 1966 when, 10 Junior Engineers including some of the present appellants had filed Writ Petition giving rise to further proceedings.
In these circumstances, it cannot be held that whereas the Government reserved power and could reserve power to revise the seniority list on account of the disputes about seniority arising out of the States re organisation and/or on account of the non receipt of options of the non gazetted technical staff etc.it did not or could not reserve such power to meet the situations arising out of the orders of the courts in the disputes pending between the appellants and the respondents.
There fore, even if no such powers were specifically reserved in the said Government order, the Government would have been obliged to revise the seniority list to comply with such orders.
[923B H; 924A] 1.3 Since the Government had not sent the list of the employees to the Board arranged according to seniority, the expression "as is" in clause (3) of paragraph 6 of the Government Order in the circumstances referred to service conditions other than seniority.
Even if the word "etc" at the end of clause (4) was construed to exclude the dispute with regard to seniority pending in the court, that would not have exempted the Government from complying with the orders of the Court.
To hold that the Government by its own order, such as the present one, could prevent operation of the order of any court is to invite conflict in the juris diction of the executive and the judiciary.
Similarly, the Government could not have forced the employees to accept the term with regard to the seniority as an immutable one.
In fact the said Government Order did not lay down any such term.
Hence, it cannot be said that the appellants had accepted the seniority as was forwarded by the Government to the Board and they were estopped thereafter from agitating against it.
The decision of the Court being the law, no plea of 915 estoppel could be raised against it.
[925C F] 1.4 It is well settled that there cannot be a right without a remedy.
Law abhors such vacuum.
But, there are two periods with respect to which the power to alter seniority has to be examined.
The first period is upto October 1, 1973 and the second commences thereafter.
In the first period, there was a relationship of employer employee between the Government and the transferred employees.
Hence, the Govern ment had every right to correct or amend the seniority of the employees upto that date.
If, therefore, the Government had advertently or inadvertently committed any error in preparing the seniority list upto October 1, 1973, or be cause of the decisions of the courts it had to amend the said seniority list, not only it had power to do so but it was the only authority which could do it.
The seniority list which was corrected by the Government was the seniority list as on or before October 1, 1973.
[925H; 926A B] In the circumstances, the decision of the High Court suffers from legal infirmities and has to be set aside.
The revised seniority list sent by the Government to the Board with Government Order No. 233 of May 23, 1981 is restored and the respondent Electricity Board is directed to act on the same.
[926C]


judgement:
ivil Appeal No. 1451 of 1988.
From the Judgment and Order dated 14.3.88 of the Bombay High Court in W.P. No. 1033 of 1987.
M.S. Nesargi, R.C. Mishra and Dr. Meera Agarwal for the Appellants.
Vinod Bobde, Ms. J. Wad and A.M. Khanwilkar for the Respondents.
V.N. Ganpule for the State.
The Judgment of the Court was delivered by SAWANT, J.
The two questions raised in this appeal are: (i) Whether the employment notice issued by the respondent University on July 27, 1984 ought to have indicated reserva tions postwise, and (ii) Whether, assuming that the said notice was invalid the termination of services of the appellants on April 21, 1987 was valid? 2.
The University issued the employment notice in ques tion inviting applications for a total of 77 posts which included 13 posts of Professors, 29 posts of Readers and 35 posts of Lecturers in different subjects ranging from Eco nomics, Politics and Sociology to Physics, Pharmacy and Geology.
The notice mentioned total number of reservations categorywise but not subjectwise as follows: Professors Scheduled Castes 3, Scheduled Tribes 2 and VJ/NT 1 Readers Scheduled Castes 6, Scheduled Tribes 4 and VJ/NT 2 Lecturers Scheduled Castes 7, Scheduled Tribes 5 and VJ/ 'NT 4 A number of applications were received for the posts from candidates including the petitioners belonging to both reserved and nonreserved castes for all the three categories of posts, viz., Professors, Readers and Lecturers.
This advertisement was corrected by Corrigendum of February 1, 1985.
Thereafter, a further employment notice 888 for additional posts in all the three categories was issued on August 1, 1985 but we are not concerned with the same.
Different selection committees in all 53 in number were constituted and they recommended 47 candidates for 53 posts.
It appears that while recommending the selections, the committees also gave weightage to the candidates belonging to the reserved castes.
Thereafter, the Executive Council constituted a sub committee to decide which posts should be reserved for the reserved castes.
On the recommendation of the sub committee and after taking into consideration the backlog of reservations, the Executive Council decided to keep apart 17 posts and made permanent appointments only to 30 out of 47 candidates by its appointment orders issued on March 30, 1985 for the academic year 1985 86.
As regards 17 posts which were kept apart for reserved candidates, it decided to fill in the same by temporary appointments for those posts pending the availability of the suitable candi dates from reserved castes.
It appears that against these appointments some social workers and organisations made representations to the Chancellor making a grievance both against the employment notice as well as the procedure followed in making the said appointments.
By his order dated February 22, 1986, the Chancellor appointed a one man committee under Section 76 of the Nagpur University Act, 1974 (hereinafter referred to as the 'Act ') to inquire into the matter.
The committee submit ted its report on September 24, 1986 which was accepted by the Chancellor. 4.
In the meanwhile, a batch of writ petitions was filed in the High Court challenging the employment notice on the ground that the non obtaining of the recommendation from the Board of University Teaching and Research ( 'BUTR ' for short) before issuing the employment notice was bad in law in view of the provisions of Section 32(2) (iii) of the Act.
The High Court accepting this contention quashed the employment notice and set aside the appointments to the posts which were challenged in those petitions.
In all the petitions the Court also restrained the University from making any ap pointment without obtaining the recommendations from the BUTR.
Taking into consideration both the report of the one man committee and also the decision of the High Court, the Chancellor directed the Vice Chancellor to terminate the service of all the appointees including the appellants and accordingly the Vice Chancellor issued orders of termination of services of the appellants and others similarly appointed on April 21, 1987.
The termination orders mentioned four grounds as follows: 889 (a) the reservation policy adopted by the University was contrary to Section 57 of the Act; (b) the decision of the Executive Council allocating all reserved posts to VIth Plan posts were arbitrary and dis criminatory; (c) the University had failed to comply with the mandatory provisions of Section 32 of the Act since it had not con sulted the BUTR; and (d) that the employment notice was not in accordance with law.
It may be mentioned here that although the services were thus terminated by the said order the Vice Chancellor on the same day issued another order in exercise of his emergency powers under Section 11(4) of the Act and appointed all the appellants and others to the same posts protecting their pay and allowances at the same time making it clear that the appointments were temporary.
We are concerned in this appeal only with two grounds as stated at the outset.
The third ground, viz., whether the recommendations of BUTR were mandatory before the issuance of the employment notice was not pressed before the Full Bench from which the present appeal arises.
It appears that on the first ground, viz., whether the general reservation instead of the postwise reservation was illegal, there was a difference of opinion between two Division Benches of the High Court.
One Division Bench in Writ Petition No. 1876 of 1984 (hereinafter referred to as the 'Bhakre 's case ' (decid ed on December 7, 1984 took the view that the postwise reservation was not necessary whereas another Division Bench differed with the said view and sent the papers to the learned Chief Justice for referring the matter to a larger Bench and the issue referred to the larger Bench was as follows: "Is non reserving the posts of University teachers subject wise in the employment notice a breach of letter and spirit of reservation policy contained in Section 77C read with Section 57 of the Act?" That being the only issue, the Full Bench was really called upon to answer it alone.
However, thereafter by the the consent of parties one more issue was raised before the Full Bench which is the second of the two questions which we have to decide in this appeal, viz., whether, notwithstand ing the illegality of the general reservation, the services of the appellants were liable to be terminated.
On the first 890 issue, the Full Bench held that general reservations were in breach of the provisions of the Act and against the reserva tion policy and, therefore, illegal.
On the second issue, by majority the Full Bench held that since the appointments were not according to law from the beginning, 'the termina tion of the appellants ' services was legal.
As regards the first question, we have narrated earlier the method which was adopted by the University for reserving the posts.
It announced the posts categorywise as Professors, Readers and Lecturers in different subject and made a blanket declaration that 6 of the posts of Professor, 12 of the posts of Readers and 16 of the posts of Lecturers would be reserved for backward castes.
Neither the Universi ty nor the candidates knew at that time as to for which of the subjects and in what number the said posts were re served.
The result was that the candidates belonging to the reserved category in particular, who wanted to apply for the reserved posts did not know for which of the posts they could apply and whether they could apply at a11 for the posts in the subjects in which they were qualified.
That this could be the expected consequence of such an employment notice can legitimately be inferred and need not be and indeed cannot be, demonstrated by evidence of what actually happened, for there may be number of candidates who on account of the said uncertainty might have refrained from applying for the posts as against those who applied to take a chance.
What is further, the selection committees which were appointed to interview the candidates for the respec tive posts did not also know whether they were interviewing the candidates for reserved posts or not, and to assess merits of the candidates from the reserved category as such candidates.
The contention advanced on behalf of the appel lants that the selection committees even without know wheth er the posts concerned were reserved or not, had given weightage to the candidates from the reserved category and, therefore, it cannot be said that any injustice had resulted to them is without merit.
In the first instance, the conten tion proceeds on the footing that all those belonging to the reserved category who wanted to apply for a11 the said posts had done so even without knowing that the concerned posts were reserved.
Secondly, it also presumes that all eligible candidates from unreserved category had applied for the posts without knowing whether the posts were reserved or not.
The possibility that many eligible candidates belonging to both reserved and unreserved categories might not have taken the risk and chosen to gamble cannot be ruled out.
This argument further ignores the fact that the suitability of a candidate from a reserved category to the particular post has to be adjudged by taking into consideration various factors and the desired 891 result cannot be obtained by merely giving uniform weightage marks to the candidates concerned which was the only method followed by the selection committees while selecting the candidates.
Further, there is nothing on record to show that this method of giving weightage to the candidate was not followed in respect of reserved category candidates even if they had not applied for the post in the.reserved seats.
What is more, there is also nothing on record to show wheth er any candidates belonging to the reserved category has applied for a particular post in a reserved seat, without the prior knowledge that the post was reserved.
It is, therefore, difficult to understand as to how the selection committees proceeded to give weightage to the candidates without knowing whether they had applied for reserved or nonreserved seats.
What is more objectionable in the proce dure was that its Executive Council proceeded to classify the posts in different subjects between reserved and non reserved posts after the lists of selected candidates were received from different selection committees.
This method was open to an obvious objection since it gave a scope to eliminate unwanted selected candidates at ' that stage.
Whether it occurred in the present case or not is immaterial for testing the validity and the propriety of the method followed by the University.
As has been stated earlier, in fact, after the receipt of the list of selected candidates not only the Executive Council constituted yet another committee to decide which of the subjectwise posts should be reserved or not but the Executive Council also decided that although candidates for 47 posts were selected only 30 of them should be appointed permanently.
The latter included some backward class candidates for reserved posts so catego rised later.
But 17 of the posts were set apart although the candidates were selected for them, and they were so set apart for being filled in afresh by candidates belonging to the reserved category.
Interestingly, however, the employ ment notice issued subsequently for these 17 posts mentioned reservations postwise (subjectwise).
The argument based on Section 57(4)(a) of the Act to support the procedure adopted by the University is, accord ing to us, not well merited.
The contention is that since Section 57(4)(a) requires the University to state in the advertisement only the total number of posts and the number of reserved posts and not postwise, i.e., subjectwise, the employment notice in question was not bad in law.
According to us, the word "post" used in the context has a relation to the faculty, discipline, or the subject for which it is created.
When, therefore, reservations are required to be made "in posts", the reservations have to be postwise, i.e., subjectwise.
The mere announcement of the number of 892 reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised.
When, therefore, Section 57(4)(a) requires that the advertisement or the employment notice would indi cate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post, i.e., the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes.
A non indica tion of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy.
That this is also the intention of the legislature is made clear by Section 57(4)(d) which requires the selection committees to interview and adjudge the merits of each candidate and recommend him or her for appointment to "the general posts" and "the reserved posts", if any, advertised.
A support was also sought to be derived by the appel lants to their contention from the policy of reservation as enunciated in Government Resolution dated March 30, 1981 wherein instructions were issued in the matter in exercise of the power conferred on the Government under Section 77(c) of the Act.
The contention was that since in para 3(b) of the said Resolution it is stated that "similarly, at any given time of recruitment to the teaching posts, only the total number of reserved vacancies and the sections from which they are to be filled in should be determined.
It would be enough if the required percentage is fulfilled as a whole and not with reference to any particular post.
If the reserved vacancies cannot be filled, then so many posts as cannot be filled in, may be kept vacant for six months and should be again advertised thrice.
If, even after readver tising the posts three times, suitable candidates belonging to the reserved category do not become available, they may be filled in by candidates belonging to the "open category".
We are afraid that this interpretation placed on the afore said contents of the Government Resolution stems from their misreading.
Read in the context in which the said contents appear, it is clear that what is sought to be conveyed by them is that although at any given time the total percentage of reservation, viz. 34 is not made up vis a vis particular post or posts, it would be an enough compliance with the Resolution if the total number of vacancies filled in all the posts together conform to the said percentage.
It is common knowledge that the vacancies in posts in different subjects occur from time to time according to the exigencies of the circumstances and they arise unequally in different posts.
There may not be vacancies in one or some posts whereas there may be a large number of vacancies in other 893 posts.
In such circumstances, it is not possible to comply with the minimum reservation percentage of 34 vis a vis each post.
It is for this reason that the Resolution states that although minimum percentage of reserved posts may not be filled in one or some posts, it will be enough if in that year it is filled in taking into consideration the total number of appointments in all the posts.
This, however, does not absolve the appointing authority from advertising in advance the vacancies in each post and the number of posts in such vacancies meant for the reserved category, and inviting applications from the candidates belonging to the reserved and unreserved categories with a clear statement in that behalf.
In fact, the overall minimum percentage has to be kept in mind, as stated in the Resolution, at the time of issuing the employment notice or the advertisement as the case may be.
On behalf of the appellants reliance was also sought to be placed on a Full Bench decision of the Karnataka High Court in Dr. Raj Kumar vs Gulbarga University, AIR 125.
We do not see how the decision in question helps the appellants, for the Full Bench has observed there that general reservation has to be cadrewise and subjectwise.
But an exception could possibly be made in cases like the one of professors in which post available in each of the subjects is only one while grouping all of them together for purposes of reservation so that at least in the subjects in which the candidates belonging to the reserved category are available, they could be accommodated.
It is not necessary for us in this case to express our opinion on the correct course to be adopted when only one post is available in a particular subject at a given time.
The course to be adopted would depend upon the unit of reservations, the period over which the backlog is to be carried, the number of appointments already made in the said posts, the availability of candi dates from the reserved category etc.
What is material from our point of view in this case is to point out that even the Karnataka Full Bench has taken the view that generally reservation had to be cadrewise and subjectwise.
It was also a case of the filling in of the vacancies in teaching posts in a University.
We are, therefore, in complete agreement with the view taken by the Full Bench that the employment notice dated July 27, 1984 was bad in law since it had failed to notify the reservations of the posts subjectwise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subjectwise.
The second contention need not detain us long.
It is based primarily on the provisions of Section 57(5) of the Act.
The contention 894 is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment "was not in accord ance with the law at that time in force" and since the law at that time in force, viz., on March 30, 1985 when the appellants were appointed, was the law as laid down in Bhakre 's case (supra) which was decided on December 7, 1984, the termination of the appellants is beyond the power of the Chancellor.
The argument can only be described as naive.
It is unnecessary to point out that when the court decides that the interpretation of a particular provision as given earli er was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise.
This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre 's case (supra) was erroneous, it will have to be held that the appointments made by the University on March 30, 1985 pursuant to the law laid down in Bhakre 's case (supra) were not according to law.
Hence, the termination of the services of the appellants were in compliance with the provisions of Section 57(5) of the Act.
When, therefore, the services of the appellants are to be terminated in view of the change in the position of law and not on account of the demerits or misdemeanour of indi vidual candidates, it is not necessary to hear the individu als before their services are terminated.
The rule of audi altrem partem does not apply in such cases and, therefore, there is no breach of the principles of natural justice.
In the result.
we are of the view that there is no merit in this case.
The appeal, therefore, stands dismissed.
In the circumstances of the case, however, there will be no order as to costs.
However, it is pointed out to us that some of the appellants had resigned from their earlier jobs and joined the University, some of them have become overaged for making any fresh application while others will have no chance either because the posts as per the new advertisement of 1987 are either reserved or non reserved and they belong to the other category.
We can, therefore, only recommend that the University may take into consideration the relevant facts pertaining to each of the appellants, and if it is possible, accommodate them without transgressing the law and the claims of other eligible candidates.
We make it clear that this recommendation is not a direction and is made purely on compassionate grounds.
It is to be followed only if it is possible for the University to do so without giving rise to further litigation by candidates who may be ag grieved on that account.
G.N. Appeal dismissed.

summary/full:
The respondent University issued an employment notice inviting applications for the posts of Professors, Readers and Lecturers in different subjects.
The notice mentioned the number of reservations category wise, but not subject wise.
Including the petitioners, a number of candidates belonging to both reserved and non reserved categories applied.
Selection Committees were constituted which recom mended 47 candidates for 53 posts; weightage was given to candidates belonging to the reserved category.
Thereafter the Executive Council constituted a sub Committee to decide which posts should be reserved.
On its recommendations and on consideration of the backlog of reservations, the Execu tive Council decided to set apart 17 posts and gave perma nent appointments only to 30 candidates.
It also decided that in respect of the 17 posts reserved, temporary appoint ments would be made pending the availability of suitable candidates from the reserved category.
On receipt of some representations expressing grievances against the employment notice as also the procedure followed in making the appointments, the Chancellor appointed a one man Committee to in 884 quire into the matter.
The Committee submitted its report which was accepted by the Chancellor.
Meanwhile, a batch of writ petitions was filed in the High Court challenging the employment notice on the ground that the non obtaining of the recommendation from the Board of University Teaching and Research before issuing the employment notice was bad in law in view of the provisions of Section 32(2)(iii) of the Act.
The High Court quashed the employment notice and set aside the appointments made to the posts.
It also restrained the University from making any appointment without obtaining the recommendations as afore said.
Taking into consideration the report of the one man committee and the decision of the High Court, the Chancellor directed the Vice Chancellor to terminate the services of all the appointees including the appellants.
Accordingly, the Vice Chancellor issued orders of termination of the services of the appellants and other similarly appointed.
Although the services were thus terminated, the Vice Chancellor on the same day issued another order in exercise of his emergency powers under Section 11(4) of the Act and appointed all the appellants and others to the same posts protecting their pay and allowances and making it clear to the appointments were temporary.
However the matter went before a Full Bench since one Division Bench took the view that post wise reservation was not necessary, and another Division Bench differed from it.
The Full Bench held that general reservations were in breach of the provisions of the Act and against reservation policy and hence illegal.
It also held that since the appointments were not in accordance with law from the beginning, the termination of the appellants ' services was legal.
Aggrieved, the appellants have preferred the present appeal against the decision of the Full Bench.
Dismissing the appeal, this Court, HELD: 1.
The employment notice dated July 27, 1984 was bad in law since it had failed to notify the reservations of the posts subject wise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subject wise.
[893G] 2.
The word "post" used in section 57(4)(a) of the Nagpur University Act, 1974 has a relation to the faculty, disci pline, or the subject for 885 which it is created.
When therefore, reservations are re quired to be made "in posts", the reservations have to be postwise, i.e., subjectwise.
The mere announcement of the number of reserved posts is no better than inviting applica tions for posts without mentioning the subjects for which the posts are advertised.
When, therefore, Section 57(4)(a) requires that the advertisement or the employment notice would indicate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post, i.e. the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes.
A nonindication of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy.
That this is also the intention of the legislature is made clear by Section 57(4)(d) which requires the selection committee to interview and adjudge the merits of each candidate and recommend him or her for appointment to "the general posts" and "the reserved posts", if any, advertised.
[891H; 892A C] 3.1 It is common knowledge that the vacancies in posts in different subjects occur from time to time according to the exigencies of the circumstances and they arise unequally in different posts.
There may not be vacancies in one or some posts whereas there may be a large number of vacancies in other posts.
In such circumstances, it is not possible to comply with the minimum reservation percentage of 34 visa vis each post.
It is for this reason that the Government Resolution dated 30.3.81 states that although minimum per centage of reserved posts may not be i"filed in one or some posts, it will be enough if in that year it is filled in, taking into consideration that total number of appointments in all the posts.
This, however, does not absolve the ap pointing authority from advertising in advance the vacancies in each post and the number of posts in such vacancies meant for the reserved category, and inviting applications from candidates belonging to the reserved and unreserved catego ries with a clear statement in that behalf.
In fact, the overall minimum percentage has to be kept in mind, as stated in the Resolution, at the time of issuing the employment notice or the advertisement as the case may be.
[892H; 893A C] 3.2 However, the course to be adopted would depend upon the unit of reservations, the period over which the backlog is to be carried, the number of appointments already made in the relevant posts, the availability of candidates from the reserved category etc.
[893F] Dr. Raj Kumar vs Gulbarga University, I.L.R. , referred to.
886 4.
In the instant case, there is nothing on record to show that the method of giving weightage to the candidates was not followed in respect of reserved category candidates even if they had not applied for the post in the reserved seats.
There is also nothing on record to show whether any candidate belonging to the reserved category had applied for a particular post in a reserved seat, without the prior knowledge that the post was reserved.
It is, therefore, difficult to understand as to how the selection committees proceeded to give weightage to the candidates without know ing whether they had applied for reserved or nonreserved seats.
What is more objectionable in the procedure was that its Executive Council proceeded to classify the posts in different subjects between reserved and non reserved posts after the lists of selected candidates were received from different selection committee.
This method was open to an obvious objection since it gave a scope to eliminate unwant ed selected candidates at that stage.
[891A D] 5.
When the court decides that the interpretation of a particular provision as given earlier was not legal it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise.
This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre 's case was erroneous, it will have to be held that the ap pointments made by the University on March 30, 1985 pursuant to that decision were not according to law.
Hence, the termination of the services of the appellants was in compli ance with the provisions of section 57(5) of the Act.
[894B D] 6.
Since the services of the appellants are to be termi nated in view of the change in the position of law and not on account of the demerits or misdemeanour of individual candidates, it is not necessary to hear the individuals before their services are terminated.
The rule of audi alterem partem does not apply in such cass, and therefore, there is no breach of the principles of natural justice.
[894D E] 7.
It seems, some of the appellants had resigned from their earlier jobs and joined the University.
Some of them have become overaged for making any fresh application, while others will have no chance either because the posts as per the new advertisements of 1987 are reserved or non reserved and they belong to the other category.
It is recommended on compassionate grounds that the University may take into consideration the relevant facts pertaining to each of the appellants, and if it is possible, accommodate them without transgressing the law and the claim of other eligible candi dates.
[894F G] 887