A notification struck down in 2022 was used to reserve two-thirds of 5,772 teaching posts in 2023, and the advertisement has now been quashed
Justice Amitendra Kishore Prasad held the State could not treat a quashed notification as alive merely because an SLP was pending, but let the appointments stand with a mandatory condition written into every order.
On 19 September 2022 a Division Bench of the Chhattisgarh High Court quashed the State notification of 29 November 2012 which had raised total reservation from 50 per cent to 58 per cent. On 4 May 2023 the State issued an advertisement to recruit Assistant Teachers, Teachers and Lecturers which applied that notification and the model rosters framed under it. On 14 October 2026, after a batch of writ petitions by candidates who had cleared the written examination, the advertisement has been quashed to the extent that it gives effect to that arrangement — without, however, cancelling the recruitment or unseating anyone already appointed.
The roster, and the arithmetic that was challenged
The recruitment was run through the Chhattisgarh Professional Examination Board under the Chhattisgarh School Education (Teaching Cadre) Service Rules, 2019. The written examination was held on 10 June 2023 and the result declared on 2 July 2023. The petitioners held the prescribed qualifications, had participated, and claimed to have been declared successful.
Their grievance was the category-wise distribution of vacancies. Of 1,113 posts advertised for Teacher (E-Cadre), 698 were earmarked for Scheduled Tribe candidates, approximately 62.71 per cent, against 105 for Scheduled Caste candidates. Of 4,659 posts for Teacher (T-Cadre), 3,105 went to the Scheduled Tribe category, approximately 66.64 per cent. Senior counsel's point was that even under the notification of 29 November 2012 on which the State relied, reservation for Scheduled Tribes was 32 per cent — so allocating more than 60 per cent of the vacancies to a single reserved category could not be justified by reference to that notification or the roster framed under it, and the respondents had disclosed no lawful statutory or constitutional basis for such an allocation.
The State's answer was backlog. Of roughly 12,489 vacancies, about 3,746 were said to be backlog and 8,743 fresh; the distribution was defended by reference to the applicable reservation policy, the nature of the vacancies and the protection granted in the pending Supreme Court proceedings.
Where the notification came from, and where it went
Under the Chhattisgarh Lok Seva (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, reservation for direct recruitment was originally 16 per cent for Scheduled Castes, 20 per cent for Scheduled Tribes and 14 per cent for Other Backward Classes, aggregating to 50 per cent. The notification of 29 November 2012 altered that to 12, 32 and 14 per cent respectively, taking the aggregate to 58 per cent, and consequential model rosters were prepared for divisions including Bastar and Surguja.
That enhancement, together with the model roster applicable to the Surguja Division, was challenged in Writ Petition (C) No. 591 of 2012 and connected matters. By judgment of 19 September 2022 a Division Bench quashed the notification, among other grounds because the enhanced reservation exceeded the permissible ceiling of 50 per cent, and it also dealt with the special reservation arrangement applicable to Surguja. A related order of 12 May 2022 had quashed a circular of 17 January 2012 concerning the eligibility of local residents for appointments in the Surguja and Bastar Divisions.
The State took the 2022 judgment to the Supreme Court in SLP (C) Nos. 18816–18817 of 2022. During those proceedings it brought to the Court's notice that, before the High Court's judgment, various recruitment and promotion processes had already been initiated under the 2012 regime and were at different stages of completion. By order dated 1 May 2023 the Supreme Court permitted the State to proceed with and complete the selection processes already pending and to make appointments and promotions pursuant to them, subject to the final outcome.
Completing a process is not the same as starting one
The distinction on which the case was argued and won is between completing an existing selection and initiating a fresh one. The advertisement of 4 May 2023 issued after the High Court's judgment and three days after the Supreme Court's order. It was, the petitioners said, a fresh advertisement and therefore could not derive protection from an order confined to processes already under way; the Supreme Court had neither stayed the judgment of 19 September 2022 nor revived the notification of 29 November 2012 nor granted liberty to begin afresh on its basis.
Senior counsel pressed the related and more basic proposition. Once the parent notification stood quashed, the consequential reservation roster framed under it could not continue to operate as an independent source of power for making fresh appointments; a roster is merely a mechanism for implementing the parent policy and cannot survive it. Executive authorities are constitutionally bound to obey and implement judgments unless they are stayed, modified or set aside by a competent superior court, and the mere pendency of an appeal or special leave petition does not efface the binding effect of the judgment under challenge. There was no order staying the operation of the 2022 judgment and none expressly restoring the 2012 notification.
On backlog, the argument was that backlog and fresh vacancies stand on a distinct legal footing, and the existence of backlog has to be established by producing the relevant roster, the category-wise vacancy position, the recruitment year, the statutory provision governing carry-forward, and the methodology by which such vacancies have been adjusted against the present recruitment. The respondents had not furnished the foundational material to show that the excessive reservation in the advertisement was attributable exclusively to validly carried-forward backlog. And even assuming the backlog existed, such vacancies cannot revive a reservation notification already quashed by a constitutional court, nor confer jurisdiction to commence a fresh recruitment under an invalidated regime — the respondents must first establish a valid source of power before justifying how the vacancies were distributed.
Senior counsel was careful to say the controversy was not directed against the constitutional concept of reservation or affirmative action under Article 16(4), but was confined to the legality of the process begun on 4 May 2023.
The finding
The Court held the petitioners had made out a case for interference under Article 226. The advertisement of 4 May 2023, insofar as it proceeds upon and gives effect to the reservation arrangement founded upon the notification of 29 November 2012 and the consequential model rosters already declared unconstitutional in Writ Petition (C) No. 591 of 2012 and connected matters, cannot be sustained in law, and was quashed to that extent. The head-note records the proposition: executive authorities cannot act upon a reservation framework already held unconstitutional, unless protected by a subsequent order of the Supreme Court.
The Court was equally clear about what it was not deciding. It expressed no final opinion on the ultimate validity of the reservation framework presently before the Supreme Court, and said the relief granted was intended to give effect to the judgment of 19 September 2022 while preserving the liberty granted by the order of 1 May 2023 to continue the recruitment and promotion process subject to the final outcome.
Nobody loses a job, and nobody gains an equity
The remedial part of the judgment is the more practically significant. The Court considered it neither necessary nor appropriate to direct wholesale cancellation of the recruitment process or termination of candidates already appointed, particularly in view of the Supreme Court's order of 1 May 2023 permitting the State to proceed subject to the final outcome. The respondents were directed to proceed with the recruitment and promotion process in accordance with law and in conformity with that order, and to reconsider and regulate the vacancies and the reservation roster in accordance with the law declared by the High Court, subject to final adjudication by the Supreme Court.
Setting aside the advertisement will not result in automatic termination of those already appointed. Their appointments continue, but strictly subject to the final outcome of SLP (C) Nos. 18816–18817 of 2022 and connected matters and any further order of the Supreme Court, and no appointee may claim any indefeasible right on the basis of such appointment contrary to the final decision.
To make that stick, the Court imposed a drafting requirement. Every appointment order issued hereafter pursuant to this recruitment must contain, in clear and unambiguous terms, a specific stipulation that the appointment is “subject to the final outcome of SLP (C) Nos.18816-18817 of 2022 and connected proceedings pending before the Hon'ble Supreme Court and to any further order passed therein”. That stipulation is to be an integral condition of the appointment and must be incorporated in the order itself. Every promotion order connected with or affected by the reservation framework under challenge must record the same condition, and no such promotion order is to be issued without it. The condition must also be incorporated, wherever applicable, in orders relating to seniority, confirmation, regularisation or any other consequential service benefit arising out of appointments or promotions made during the pendency of the Supreme Court proceedings. The stated purpose is to ensure that no equity is created in favour of any individual which may operate to defeat or frustrate the final judgment.
On final adjudication, the respondent authorities are bound to give full and consequential effect to the Supreme Court's judgment, and if that necessitates re-determination of the reservation roster, selection, appointment, promotion, seniority or any other consequential service benefit, the competent authorities must undertake that exercise strictly in accordance with the final directions. The batch of writ petitions was allowed, all interim orders stand merged in the final order, and there was no order as to costs. Ms Naushina Afrin Ali appeared as senior counsel for the petitioners, with one petitioner appearing in person; Mr Anand Dadariya, Deputy Advocate General, for the State.