R. K. Sabharwal
& Ors Vs. State of Punjab & Ors [1995] INSC 129 (10 February 1995)
Kuldip
Singh (J) Kuldip Singh (J) Mohan, S. (J) Mukherjee M.K. (J) Hansaria B.L. (J) Majmudar
S.B. (J)
CITATION:
1995 AIR 1371 1995 SCC (2) 745 JT 1995 (2) 351 1995 SCALE (1)685
ACT:
HEAD NOTE:
1. The
petitioners and respondents 4, 5 and 6 arc members of the Punjab Service of
Engineers (Class 1) (the Service) in the Irrigation Department of the State of
Punjab. The respondents are members of the Scheduled Castes whereas the
petitioners belong to the general category. The conditions of service of the
members of the Service are governed by the Rules called The Punjab Service of
Engineers Class I P.W.D. (I.B.) Rules, 1964 (the Rules). The Punjab Government
by the instructions dated May 4, 1974
provided reservations for the Scheduled Castes and Backward Classes in
promotions to and within Class I and II services under the State Government. It
was laid down under the said instructions that 16 per cent of the posts to be
filled by promotion were to be reserved for members of the Scheduled Castes and
Backward Classes (14 per cent for the Scheduled Casts and 2 per cent for the
Backward Classes) subject to the conditions that the persons to be considered
must possess the minimum necessary qualifications and they should have,
satisfactory record of service. The instructions further provided as under:
"(i)
In a lot of 100 vacancies occurring from time to time, those falling at serial
numbers mentioned below should be treated as reserved for the members of
Scheduled Castes; 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, 91 and so
on. Vacancies falling at serial numbers 26 and 76 should be treated as reserved
for the members of Backward Classes.
(ii)
The reservation prescribed shall be given effect to in accordance with a roster
to be maintained in each Department. The roster will be implemented in the form
of a running account from year to year." Rule 9 of the Rules which
provides for promotion within the service reads as under "Promotion within
service;- 354 (1) Subject to the provisions of sub-rules 2 and 3 members of the
Service shall be eligible for promotion to any of the posts in the Service,
namely, Executive Engineers, Superintending Engineers and Chief Engineers:
Provided
that a Member of the Service in whose case the qualifications mentioned in
clause (a) of Rule 6 have been waived, shall not be eligible for promotion to
the post of Superintending Engineer or above till he has acquired the necessary
qualification.
Explanation:- Once an officer has been
appointed a member of the Service, his promotion within it from one rank to an-
other shall be regarded as promotion within the same cadre.
(2)
Promotions shall be made by selection on the basis of merit and suitability in
all respects and no member of the Service shall have any claim to such
promotion as a matter of right or mere seniority.
(3) A
member of the Service shall not be eligible for promotion to the rank of--- (a)
Executive Engineer unless he has rendered five years service as an Assistant
Executive Engineer;
Provided
that an officer who has rendered six years or more service as an Assistant
Executive Engineer shall unless he is considered unsuitable for promotion, be
given preference for such promotion over an eligible Class II Officer;
(b)
Superintending Engineer, unless he has rendered seven years service as an
Executive Engineer;
(c)
Chief Engineer, unless he has rendered three years service as Superintending
Engineer;
Provided
that, if it appears to be necessary to promote an officer in public interest,
the Government may, for reasons to be recorded in writing, either generally for
a specified period or in any individual case reduce the period specified in
clauses (a), (b) and (c) to such extent as it may deem proper.
It is
stated in the writ petition that the petitioners are at serial Nos. 19, 23, 26,
29, 30, 31, 34 and 38 of the seniority list of the Service whereas the
respondents are at serial Nos. 46, 140 and 152. Respondent Rattan Singh was
promoted to the rank of Chief Engineer against the post reserved for the
Scheduled Castes by superseding 36 senior colleagues including the petitioners.
Similarly, respondents Surjit Singh and Om Prakash were promoted as
Superintending Engineers against the reserve vacancies by superseding 82 and 87
senior colleagues respectively.
According
to the petitioners at the time of promotion of these respondents the
petitioners were already working as Superintending Engineers for several years.
It is further averred in the petition that respondents 4, 5 and 6 were in fact
working as Executive Engineers when the petitioners were holding the posts of
Superintending Engineers.
2. On
the above facts the petitioners have challenged the reservation-policy on
several grounds but Mr. Harish Salve, learned counsel for the petitioners, has
confined the arguments to the following two points:
(1)
The object of reservation is to provide adequate representation to the
Scheduled Castes/Tribes and Backward classes in services and as such any
mechanism provided to achieve that end must have nexus to the object sought to
be 355 achieved. The precise argument is that for working out the percentage of
reservation the promotees/appointees belonging to the Scheduled Castes and
Backward Classes whether appointed against the general category posts or
against the reserve posts are to be counted. In other words if more than 14% of
the Scheduled Castes candidates are appointed/promoted in a cadre on their own
merit/seniority by competing with the general category candidates then the
purpose of reservation in the said cadre having been achieved the Government
instructions providing reservations would become inoperative.
3.
Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes
on the roster are filled the reservation is complete. Roster cannot operate any
further and it should be stopped. Any post falling vacant, in a cadre
thereafter, is to be filled from the category - reserve or general - due to
retirement etc. of whose member of the post fell vacant.
4.
Adverting to the first point Mr. Harish Salve and Mr. Rajiv Dhawan, learned
counsel representing the petitioners, have contended that the total number of promotees/appointees
belonging to the reserve categories in a cadre are to be counted to work-out
the prescribed per- centage of reservation. According to the learned counsel
the reserve categories can take advantage of the reservation made in their favour
till their representation in the Service -- including those appointed against
general category posts -- reaches the prescribed percentage. For working out
the percentage the promotees/appointees belonging to reserve categories in the
Service, whether on the reserve posts or general category posts, are to be
counted.
Support
is sought from the judgment of the Punjab and Haryana High Court in Joginder Singh Sethi and others v. Punjab Government and other 1982 (2) SLR
307. In the said case 22% reservation was provided for the members of Scheduled
Castes/Tribes and Backward Classes. In the cadre strength of 202 posts the
Scheduled Castes candidates were entitled to 42 posts. There were already 47
members of the said category in the cadre but out of them 10 were promoted on
the basis of seniority-cum-merit against the general cat- egory posts. There
being only 37 persons who had been promoted against the reserved posts 4 more
Scheduled Castes were sought to be promoted against the reserve vacancies.
The
High Court quashed the promotion on the ground that the cadre was already
having more than 22% persons from the reserve categories. We are of the view
that the High Court in Joginder Singh Sethi's case fell into a patent error.
The
said case was subsequently considered by a Full Bench of Punjab & Haryana
High Court in Jaswant Singh v. Secretary to Government of Punjab, Education
Department [ 1989 (4) Services Law Reporter 257]. The Full Bench did not agree
with the ratio in Joginder Singh Sethi's case and reversed the same.
5.
When a percentage of reservation is fixed in respect of a particular cadre and
the roster indicates the reserve points, it has to be taken that the posts
shown at the reserve points are to be filled from amongst the members of
reserve categories and the candidates belonging to the general category are not
entitled to be considered for the reserve posts. On the other hand the reserve
category candidates can compete for the non-reserve posts and in the event of
their appointment to the said 356 posts their number cannot be added and taken
into consideration for working out the percentage of reservation.
Article
16(4) of the Constitution of India permits the State Government to make any
provision for the reservation of appointments or posts in favour of any
backward class of citizen which, in the opinion of the State is not adequately
represented in the Services under the State. It is, therefore, incumbent on the
State Government to reach a con- clusion that the backward class/classes for
which the reservation is made is not adequately represented in the State
Services. While doing so the State Government may take the total population of
a particular backward class and its representation in the State Services. When
the State Government after doing the necessary exercise makes the reservation
and provides the extent of percentage of posts to be reserved for the said
backward class then the per- centage has to be followed strictly. The
prescribed percentage cannot be varied or changed simply because some of the
members of the backward class have already been appointed/promoted against the
general seats. As mentioned above the roster point which is reserved for a
backward class has to be filled by way of appointment/promotion of the member
of the said class. No general category candidate can be appointed against a
slot in the roster which is reserved for the backward class. The fact that
considerable number of members of a backward class have been ap-
pointed/promoted against general seats in the State Services may be a relevant
factor for the State Government to review the question of continuing
reservation for the said class but so long as the instructions/ Rules providing
certain percentage of reservations for the backward classes are op- erative the
same have to be followed. Despit any number of appointment/promotees belonging
to the backward classes against the general category posts the given percentage
has to be provided in addition. We, therefore, see no force in the first
contention raised by the learned counsel and reject the same.
6. We
see considered force in the second contention raised by the learned counsel for
the petitioners. The reservations provided under the impugned Government
instructions are to be operated in accordance with the roster to be maintained
in each Department. The roster is implemented in the form of running account
from year to year. The purpose of "running account" is to make sure
that the Scheduled Castes/Schedule Tribes and Backward Classes get their
percentage of reserved posts. The concept of "running account" in the
impugned instructions has to be so interpreted that it does not result in
excessive reservation. "16% of the posts......are reserved for members of
the Scheduled Caste and Backward Classes. In a lot of100 posts those falling at
serial numbers 1,7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been
reserved and earmarked in the roster for-the Scheduled Castes.
Roster
points 26 and 76 are reserved for the members of Backward Classes. It is thus
obvious that when recruitment to a cadre starts then 14 posts earmarked in the
roster are to be filled from amongst the members of the Scheduled Caste. To
illustrate, first post in a cadre must go to the Scheduled Caste and thereafter
the said class is entitled to 7th, 15th, 22nd and onwards upto 91st post. When
the total number of posts in a cadre are filled by the operation of the roster
then the result envisaged by the impugned instructions is achieved. In other
words, in 357 a cadre of 100 posts when the posts earmarked in the roster for
the Scheduled Castes and the Backward Classes are filled the percentage of
reservation provided for the reserved categories is achieved. We see no
justification to operate the roster thereafter. The "running account"
is to operate only till the quota provided under the impugned instructions is reached
and not thereafter. Once the prescribed per- centage of posts is filled the
numerical test of adequacy is satisfied and thereafter the roster does not
survive. The percentage of reservation is the desired representation of the
Backward Classes in the State services and is consistent with the demographic
estimate based on the proportion worked out in relation to their populations
The numerical quota of posts is not shifting boundary but represents a figure
with due application of mind. Therefore, the only way to assure equality of
opportunity to the Backward Classes and the general category is to permit the
roster to operate till the time the respective appointees/ promotees occupy the
posts meant for them in the roster. The operation of the roster and the running
account" must come to an end thereafter.
The
vacancies arising in the cadre, after the initial posts arc filled, will pose
no difficulty. As and when there is a vacancy whether permanent or temporary in
a particular post the same has to be filled from amongst the category to which
the post belonged in the roster. For example the Scheduled Caste persons
holding the posts at Roster - points 1, 7, 15 retire then these slots are to be
filled from amongst the persons belonging to the Scheduled Castes. Similarly,
if the persons holding the post at points 8 to 14 or 23 to 29 retire then these
slots are to be filled from among the general category By following this
procedure them shall neither be short-fall nor excess in the percentage of
reservation.
7. The
expressions "posts" and "vacancies", often used in the
executive instructions providing for reservations, are rather problematical.
The word "post" means an appointment, job, office or employment. A
position to which a person is appointed. "Vacancy" means an
unoccupied post or office.
The
plain meaning of the two expressions make it clear that there must be a 'post'
in existence to enable the 'vacancy' to occur. The cadre - strength is always
measured by the number of posts comprising the cadre. Right to be consid- ered
for appointment can only be claimed in respect of a post in a cadre. As a
consequence the percentage of reservation has to be worked out in relation to
the number of posts which form the cadre-strength. The concept of 'vacancy' has
no relevance in operating the percentage of reservation.
8.
When all the roster-points in a cadre am filled the required percentage of
reservation is achieved. Once the total cadre has full representation of the
Scheduled Casts/Tribes and Backward Classes in accordance with the reservation
policy then the vacancies arising thereafter in the cadre are to be filled from
amongst the category of persons to whom the respective vacancies belong. Jeevan
Reddy, J. speaking for the majority in Indra Sawhney vs.
Union
of India (AIR 1993 SC 477) observed as under:- "Take a unit/service/cadre
comprising 1000 posts. The reservation in favour of scheduled Tribes Scheduled
Cass and other Backward Classes is 50% which means that out Of the 1000 posts
500 must be held by the members of these classes i.e- 270 by Other Backward 358
Classes, 150 by Scheduled Casts and 80 by Scheduled Tribes. At a given point of
time, let us say the number of members of OBC in the unit/ service/ category is
only 50, a shortfall of 220. Similarly the number of members of scheduled Casts
and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If
the entire service/cadre is taken as as unit and the backlog is sought to be
made up, then the open competition channel has to be chocked altogether for a
number of years until the number of members of all backward classes reaches 500
i.e., till the quota meant for each of them is filled up. This may take quite a
number of vacancies arising each year are not many. Meanwhile, the members of
open competition category would become age barred and ineligible. Equality of
opportunity in their case would become a mere mirage. It must be remembered
that the equality of opportunity guaranteed by clause (1) is to each individual
citizen of the country while clause (4) contemplates special provision being
made in favour of socially disadvantaged classes. Both must be balanced against
each other. Neither should be allowed to eclipse the other. For the above
reason, we hold that for the purpose of applying the rule of 50% a year should
be taken as the unit and not the entire of the cadre, service or the unit as
the case may be"
9. The
quoted observations clearly illustrate that the rule of 50 % a year as unit and
not entire strength of the cadre has been adopted to protect the rights of the
general category under clause (1) of Article 16 of the Constitution of India.
These observations in Indra Sawhney's case, arc only in relation to posts which
are filled initially in a cadre. 'The operation of a roster, for filling the
cadre strength, by itself ensures that the- reservation remains within the 50 %
limit. Indra Sawhney's case- is not the authority for the point that the roster
survives after the cadre-strength is full and the percentage of reservation is
achieved.
10.A
Division Bench of the Allahabad High Court in J.C. Malik and others v. Union of
India and others (1978)SLR 844) interpreted Railway Board's circular dated April 20, 1970 providing 15% reservations for the
Scheduled Casts. The High Court held that the percentage of reservation is in
respect of the appointment to the posts in a cadre. On the basis of the
material placed before the High Court it reached the conclusion that if the
reservation is permitted in the vacancies after all the posts in cadre are
filled then serious consequences would ensure and the general category is
likely to suffer considerably. We see no infirmity in the view taken by the
High Court.
11. We
may examine the likely result if the roster is permitted to operate in respect
of the vacancies arising after the total posts in a cadre are filled. In a 100
point roster, 14 posts at various roster points are filled from amongst the
scheduled Casts/ Scheduled Tribes candidates, 2 posts arc filled from amongst
the Backward Classes and the remaining 84 posts are filled from amongst the
general cat- egory. Suppose all the posts in a cadre consisting of 100 posts
are filled in accordance with the roster by December 31, 1994. Thereafter in
the year 1995, 25 general category persons (out of the 84) retire. Again in the
1996, 25 more persons belonging to the general category persons (out of the 84)
retire. Again in the year 1996, 25 more persons belonging to the general
category retire. The position which would emerge would be that the Sched- 359 uled
Casts and Backward Classes would claim 16% share out of the 50 vacancies. If 8
vacancies are given to them then in the cadre of 100 posts the reserve
categories would be holding 24 posts thereby increasing the reservation from
16% to 24%. On the contrary if the roster is permitted to operate till the
total posts in a cadre are filled by the same category of persons whose
retirement etc. caused the vacancies then the balance between the reserve
category and the general category shall always be maintained. We make it clear
that in the event of non-availability of a reserve candidate at the
roster-point it Would be open to the State Government to carry forward the
point in a just and fair manner.
12.
We, therefore, find considerable force in the second point raised by the
learned counsel for the petitioners.
We,
however, direct that the interpretation given by us to the working of the
roster and our findings on this point shall be operative prospectively.
13.
The writ petition is, therefore, disposed of in the above terms. No costs.
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