The Hindu : National : "General category post cannot be made reserved"

Online edition of India's National Newspaper
Sunday, Jul 30, 2006

National

National

"General category post cannot be made reserved"

Legal Correspondent

NEW DELHI: A post in the "general category" cannot be converted into the "reserved category" to the detriment of a meritorious candidate eligible for promotion to that post, the Supreme Court has held.

A Bench of Justice S.B. Sinha and Justice P.P. Naolekar said that a discretionary power could not be exercised in an arbitrary manner. The action of a statutory authority must be judged on the basis of the norms set up by it and on the basis of reasons assigned.

The Bench said that Articles 15 (4) and 16 (4) of the Constitution profess to bring the socially and educationally backward people to the forefront. "For the said purpose, however, the qualifications laid down in the Constitution must be held to be the sine qua non," the Bench said.

In this case, the allegation by the petitioner, R.S. Garg, was that at the instance of the Uttar Pradesh Chief Minister the post meant for promotion from the general category was converted into the reserved category and he was denied promotion. Instead, a person belonging to the Scheduled Caste was promoted though he was ineligible for that post. The Allahabad High Court dismissed his petition questioning the promotion of the SC candidate. The present appeal is directed against this judgment.

Setting aside the judgment, the apex court Bench said that the entire approach of the authorities was only for achieving a private interest and not public interest and such action suffered from the vice of malice in law.

Justice Sinha, writing the judgment, said: "Both the Chief Minister as well as the Principal Secretary themselves did not possess any authority to make any relaxation and they must be held to have misdirected themselves in law necessitating interference by the superior courts. When such an illegality is committed, the superior court cannot shut its eyes. Contention of such glaring illegality would create a dangerous trend in future."

The Bench said:

"It is one thing to say that conversion of one post to another may be done in accordance with law having regard to the public purpose in mind. But a statutory power, it is well-settled, cannot be exercised so as to promote a private purpose as it subverts the same ... This case points out how illegalities are committed by the State causing deprivation of legitimate right of promotion of more meritorious and senior candidates."

The authorities had failed to take note of the fact that by converting the post into a reserved category the percentage of reservation for reserved categories had also gone up over and above the prescribed limit, the Bench said and imposed Rs. 50,000 as costs to be shared equally by the State and the third respondent (the one who was promoted).

Printer friendly page
Send this article to Friends by E-Mail

National