Ajit
Singh Januja & Ors Vs. State of Punjab & Ors [1996] INSC 351 (1 March 1996)
Singh
N.P. (J) Singh N.P. (J) Verma, Jagdish Saran (J) Venkataswami K. (J) N.P.Singh.J
CITATION:
1996 AIR 1189 JT 1996 (2) 727 1996 SCALE (2)526
ACT:
HEAD NOTE:
These
appeals have been filed against the judgment of a Full Bench of the Punjab
& Haryana High Court dated 23.8.1989 dismissing three writ petitions
(C.W.P.No.2190/88, C.W.P.No 7860/87 and C.W.P.No.7861/87) filed on behalf of
the appellants. The petitioners in C.W.P. No. 2190 of 1988 were working on the
posts of Superintendent Grade I, Superintendent Grade II and Assistant, in
Punjab Civil Secretariat, Chandigarh.
They were members of the cadre of Punjab Civil Secretariat. The petitioners in
C.W.P.No.7860 of 1987 were working on the posts of Under-
Secretaries/Superintendent Grade I, in the Punjab Civil Secretariat, Chandigarh, and were members of the cadre of
Punjab Civil Secretariat. The petitioners in C.W.P.No. 7861 of 1987 were
working against the posts of Deputy Secretaries/Under Secretaries in the Punjab
Civil Secretariat and were members of State Service Class-I. The primary
grievance made in all these writ petitions on behalf of the different
petitioners, was that the policy for reservation in respect of candidates
belonging to Scheduled Castes and Backward Classes, was being implemented by
the State Government in a manner, because of which the members belonging to the
Scheduled Castes and Backward Classes were holding posts in excess to their
reservation quota. This was not only prejudicial but detrimental to the right
of the petitioners for being considered for promotion to higher grade. Several
other similar writ petitions had also been filed on behalf of others which were
heard together and were dismissed by the common impugned Judgment.
The
State has been issuing from time to time Government Orders in respect of
reservations for members of Scheduled Castes and Backward Classes. One such
order was issued on 19.10.1949, making 15% reservation of posts in favour of
Scheduled Castes to be filled up from amongst candidates who held minimum
qualification for the posts. By another order dated 19.8.1952, the percentage
of 15% was increased to 19%.
By yet
another order, dated 29.1.1959 roster system was introduced for implementing
the policy of reservation. By an order dated 14.1.1964 reservation was fixed in
all classes of posts i.e. I, II, III and IV. However, by an order dated
23.8.1966, the State withdrew reservation for Class I and II posts but the
reservation in respect of Class III and IV posts were increased to 20%. On
19.7.1968 a clarification was issued by the State Government saying that in
direct recruitment the roster points shall be taken as seniority points for
Scheduled Castes. By an order dated 4.5.1974, reservation was re imposed even
in respect of Class I and II posts and it was fixed at 16% (14% for Scheduled
Castes and 2% for Backward Classes). This reservation was to be provided by
applying the roster system. The reservation of 14% posts for Scheduled Castes
was the substantive provision and the roster was a machinery provision. By an
Order dated 6.6.1974, the quota of reservation was increased to 25% for
scheduled Castes and 5% for Backward Classes w.e.f.6.3.1974.
On
7.1.1980 the State issued an order, the relevant part whereof says:
"....it
is made clear that those scheduled castes/Backward classes employees who get
appointed/promoted against reserve points on the basis of their merit/seniority
should not be counted for the purpose of reservation but that reserve point
should be carried over to the next point on the roster and filled by a
candidate/employee belong to Scheduled Castes/Backward Classes so that the
deficiency of representation in service is made up".
The
aforesaid Government Order dated 7.1.1980 was considered by the High Court in
the case of Joginder Singh Sethi vs.
Punjab Government, (1982 (2) SLR 307). The
operative part of the Judgment of the High Court is:
"For
working out this percentage the promotees/appointees in this cadre whether on
the basis of reservation or otherwise, have to be taken notice. In the light of
this conclusion of ours we hold that any promotions of the members of the
scheduled Castes and Backward the basis of above noted instructions of the
Government are void and honest".
Civil
Appeal Nos.3326-27 of 1982, which have been heard along with the present
appeals is against the aforesaid judgment of the High Court in the case of Joginder
Singh Sethi (supra). This Court in those appeals on 8.2.1983 passed an order of
stay saying:
"We
made it clear by our order dated 19.10.82 that there will be an interim order
of stay against reversion of any of the person already appointed on the basis
of instructions issued by the Govt of Punjab which have been held to be invalid
by the Judgment of the High Court impugned in these appeals and writ petition.
We do not think that there is any doubt in regard to what we said, namely that
no scheduled castes and scheduled Tribes employees who has already been
appointed or promoted pursuant to the instructions of the Government of Punjab
will not be reverted but so far as the future appointments/promotions are
concerned these shall be made according to the judgment of the High Court and
these will be ultimately subject to the result of the writ petition and
appeals. If the Govt. makes any appointment/promotions in accordance with the
judgment of the High Court the State Govt. will make it clear in the letter of
appointment/promotion that the appointment/promotion is subject to the result
of the writ petition and appeal so that there is no difficulty in future in
case the High Court judgment is reversed by this Court..........." So far
the appellants are concerned, they took a stand before the High Court in writ
petitions filed on their behalf that when the reservation quota was completes
the Scheduled Castes candidates should not further be appointed/promoted. It
was said on their behalf that Scheduled Castes and Backward Class candidates
who compete on merit, should also be adjusted against the quota reserved for
them, otherwise there shall be increase in the percentage of the quota reserved
for them. The writ petitions were referred to a Full Bench of the said High
Court. Before Full Bench it was also submitted that Scheduled Castes and Backward
Class candidates cannot be considered for appointment/promotion against general
category posts in a cadre. The Full Bench however said in the case of Jaswant
Singh vs. The Secretary to Govt. of Punjab, (1989) 4 SLR 257 that
non-consideration of Scheduled Castes candidates against general category posts
for purpose of appointment or promotion will be hit by Articles 14, 15 and 16
of the Constitution. It also observed that there was no bar to the
appointment/promotion of larger number of members of Scheduled Castes. The
members of the Scheduled Castes, appointed on merit or promoted on
seniority-cum- fitness basis shall not be taken into consideration for working
out the reserved percentage. The High Court also said that roster points were
seniority points. In result the Full Bench over-ruled the view taken by the
same High Court in the aforesaid Joginder Singh Sethi's case. The conclusion of
the Full Bench is:
"Thus,
while non-Scheduled Caste candidates are not eligible for appointment or
promotion to the reserved posts at the reserved point,the Scheduled Castes
candidate are eligible to compete with the general category candidate in
respect of the posts which are not reserved and also claim promotion to the
same if they are otherwise eligible by virtue of seniority and merit and merely
because they happen to be members of the Scheduled Caste, they cannot be
deprived of their right to compete for appointment or promotion on the basis of
seniority and merit that is constitutionally protected under Articles 14 and
16(1)(2) of the Constitution even when the total number of Scheduled Castes
members in that cadre holding posts are more than the prescribed percentage.
Secondly, where Scheduled Caste/Backward Class secure an appointment against 'a
reserved point" on the basis of his own merit and seniority and not on the
basis of only his being Scheduled Caste/Backward Class, such candidate should
not be counted while calculating the percentage of reservation meant for
Scheduled Caste/Backward Class, but that reserved point should be carried over
to the next point on the roster and filled by candidates belonging to Scheduled
Castes/Backward Classes. Thirdly, Scheduled Castes/Backward Classes candidates
who are appointed or promoted on the basis of appropriate reservation under the
prescribed roster point shall be assigned seniority as per the point reserved
for them in the relevant roster irrespective of their position in the general
merit list (in case of direct recruitment in Class I, II, III and IV services.
In
other words, roster points are the seniority points in respect of Scheduled
Castes Backward Classes.
In the
case of Scheduled Castes/Backward Classes candidate getting selected or
promoted on his own merit/seniority, he will retain his original higher
seniority position secured by him. The seniority cannot be ambivalent and
fluctuating.
It was
further said:
"We
have already held that reservation does not mean that the Scheduled Castes
candidates are deprived from being considered for promotion to the general category
seats on the basis of seniority- cum-merit or on the basis of selection on
merit. It also not possible to invoke the principle of reservation not
exceeding 60 per cent on the total strength as reaching above 50 per cent is
not by reason of any such reservation as such it so happened that the
candidates who competed for the selection belonged to a particular category in
the counter statements that on a number of occasions previously all these posts
were held by non-Scheduled Castes. But if two Schedule Castes had already come
purely on merit it is, to be taken as a matter gratifying and not to be frowned
upon. It is only if reservation in effect amounted to an unreasonable
percentage that could if at all be questioned. The percentage of reserved
candidates in this case is only 14 and if the Scheduled Castes candidates have
come and occupied that position in that cadre on account of their own merit and
ability, the reservation itself could not be questioned and they could not be
deprived of their right to be considered for selection on the basis of merit
and ability. We are, therefore, unable to accept the contention of the learned
counsel for the petitioners that the Scheduled Castes candidates cannot be
considered for the vacant post".
On the
aforesaid findings the different writ petitions were dismissed by a common
judgment as already referred to above.
It may
be mentioned that some of the questions raised in the cases of Joginder Singh Sethi
(supra) and Jaswant Singh (supra) came up for consideration before a
Constitution Bench in the case of R.K.Sabharwal vs. State of Punjab, (1995) 2
SCC 745, on a writ petition filed by members of the Punjab Service of Engineers
(Class I) in Irrigation Department, belonging to the general category
challenging the policy of reservation in connection with promotion to higher
posts. The respondents to the said writ petition were members of the Scheduled
Caste. On behalf of the petitioners in that case a stand was taken that the
(i)
object of reservation was to provide adequate representation to the Scheduled
Castes/Tribes and Backward Classes in service and if more than 14% of Scheduled
Castes candidates are appointed/promoted in a cadre on their own
merit/seniority by competing with general category candidates then the purpose
of reservation in the said cadre having been achieved the Government
instructions in respect of reservation would become inoperative and
(ii)
once the posts earmarked for Scheduled Castes/Tribes and Backward Classes on
the roster are filled, the reservation is complete and the roster cannot
operate any further and has to be stopped. Any post falling vacant, in the
cadre thereafter is to be filled from category reserved or general - due to
retirement etc., of whose members the post fell vacant. In respect of the first
question mentioned above, it was said:
"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 reserved 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 posts their number cannot be added and taken into
consideration for working out the percentage of reservation." It was
further said:
"The
fact that considerable number of members of a Backward Class have been appointed/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 operative the same have to be followed.Despite
any number of appointees/promotees belonging to the Backward Classes against
the general category posts the given percentage has to be provided in addition.
In
respect of the second question as to whether once the posts earmarked for
Scheduled Castes/Tribes and Backward Classes on the roster are filled and the
reservation is complete the roster can operate any further the constitution
Bench said:
"We
see considerable force in the second contention raised by the learned counsel
for the petitioners. The reservation provided are to be operative 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 castes and Backward
Classes. In a lot of 100 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 Castes. 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 up to 91st post. When
the total number of posts in a cadre are filled by the operation of the roster
then the result envisaged by impugned instructions is achieved.
In
other words, in 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 instruction is
reached and not thereafter. Once the prescribed test of adequacy is satisfied
and thereafter the roster does not survive.
It was
said thereafter that vacancies arising in the cadre after the operation of the
roster and the "running account" comes to an end, they have to be
filled up from amongst category to which posts belonged in the roster. It was
illustrated by saying:
"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 there shall neither be shortfall nor
excess in the percentage of reservation".
It was
also said that the operation of a roster for filling the cadre strength by
itself ensures that reservation remains within 15% limit. It was demonstrated
by an illustration as to what shall be the consequences if the roster is
permitted to operate in respect of the vacancies arising after the total posts
in a cadre are filled by saying:
"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 point are filled from amongst the
Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the
Backward Classes and the remaining 84 posts are filled from amongst the general
category.
Suppose
all the posts in a cadre consisting of 100 posts are filled in accordance with
roster by 31.12.1994. Thereafter in the year 1995, 25 general category persons
(out of 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
Scheduled Castes 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 and thereafter the vacancies falling in the
cadre are to be filled by the same category of parsons whose retirement etc.
caused
the vacancies then the balance between the reserve category and the general
category shall always be maintained." Reliance was also placed on the
judgment of nine Judges Bench in the case of Indra Sawhney vs. Union of India,
1992 Supp.(3) SCC 217 at page 737 para 814 where it was said:
"Take
a unit/service/cadre comprising 1000 posts. The reservation in favour of
Scheduled Tribes, Scheduled Castes 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 Classes, 150 by Scheduled Castes and 80 by
Scheduled Tribes. At a given point of time, let us say, the number of members
of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly
the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5
respectively, shortfall of 130 and 75. If the entire service/cadre is taken as
a unit and the backlog is sought to be made up, then the open competition
channel has to be choked 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 years because the number
of vacancies arising each year are 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
class (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 strength of the cadre, service or the unit as the case may
be".
The
controversy which has been raised in the present appeals is: whether, after the
members of Scheduled Castes/Tribes or Backward Classes for whom specific
percentage of posts have been reserved and roster has been provided having been
promoted against those posts on the basis of 'accelerated promotion' because of
reservation of posts and applicability of the roster system, can claim
promotion against general category posts in still higher grade on the basis of
their seniority which itself is the result of accelerated promotion on basis of
reservation and roster? The learned counsel, appearing for the appellants, took
a clear and definite stand that they have no grievance or objection if members
of the Scheduled Castes or Backward Classes, for whom reservation has been made
and roster has been prescribed even in the promotional posts, get accelerated
promotions against those Posts. But the question is:
whether,
on this basis such 'accelerated promotees' from lower grade to higher grade in
service can claim promotion against the general category posts in still higher
grade of service merely because they had been promoted before the general
category candidates, who were senior to them in the lower grade and have been
promoted later in their turn? In other words, is the benefit of extra seniority
obtained by a reserved category candidate by earlier promotion under the
reservation policy to the reserved post, also available to him for competing
with his otherwise senior general category candidate, who got promoted to the
same cadre later only because of the reservation policy, for promotion to a
general category post also in the next higher grade.
The High
Court has relied on circulars dated 19.7.1969 and 8.9.1969 for purpose of
holding that even after the Percentage reserved in a cadre is filled and the
roster is complete, the members of the Scheduled Castes and Backward Classes
can be promoted against general category posts on basis of seniority. It may be
mentioned that the aforesaid circulars do not refer anything about reservation
in promotional posts or in respect of roster to be maintained in the form of a
"running account". It appears that it was by oversight that for
purpose of coming to the conclusion aforesaid reference has bean made to those
circulars.
However,
the circular which is relevant in this connection is No.1494-SWI-74/8105 dated
4.5.1974, which had been challenged by the appellants before the High Court.
The relevant part whereof is as follows:- "I am directed to refer to the
subject noted above and to say that at present reservation for Scheduled Castes
and Backward Classes is applicable in promotions to and within class III and IV
only. Since these Castes/Classes are poorly represented in various higher
services in the State Government, it has been under the active consideration of
the State Government that some reservation in promotions within higher services
as well should be made for them. It has now been decided that except in the
case of All India Services, 16% of the posts to be filed by promotion to or
within Class I and II services under the State Government should be reserved
for members of Scheduled Castes and Backward Classes (14% for members of
Scheduled Casts and 2% for members of Backward Classes) subject to the
following conditions:
(a) the
persons to be considered must possess the minimum necessary qualifications, and
(b) they
should have a satisfactory record of service.
(2).
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, 94 and so
on.
Vacancies
falling at serial numbers 26 and 76 should be treated as reserved for the
members of Backward Classes.
(3)
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........... " (emphasis supplied)
Before we examine the grievance of the appellants regarding the members of
Scheduled Castes and Backward Classes, who have been given 'accelerated
promotions' because of the policy of reservation and applicability of the
roster system, being considered against general category posts in still higher
grade, it will be proper to point out that the aforesaid circular dated
4.5.1974 shall be deemed to be invalid, so far it says that the reservation
prescribed shall be given effect to in accordance with a roster to be
maintained which will be 'implemented in the form of a running account from
year to year' because of the judgment of the aforesaid Constitution Bench of
this Court in the case of R.K.Sabharwal.(supra). the Constitution Bench has
clearly and categorically said that the "running account" is to
operate only till the quota provided under the instruction is reached and not
thereafter. Once the prescribed percentage of posts is filled thereafter the
roster does not survive. As such there is no question of implementing the
roster in the form of 'running account' from year to year as provided in the
circular dated 4.5.1974.
In
view of the judgment of this Court in the case of R.K.Sabharwal(supra) that a
member of Scheduled Castes or Backward Classes who enters in service by process
of direct recruitment and is appointed on his own merit belongs to a class
different from the class who are appointed at the initial stage or are promoted
thereafter, applying the principle of reservation and system of roster, the
appellants now cannot make any grievance if a member of Scheduled Castes or
Backward Class, who has entered into service on his own merit having competed
with the general category candidates, is considered and promoted in the higher
grade on the posts which are in the general category because of his seniority
and merit. The rub is as to whether the members of the Scheduled Castes or
Backward Class who have been appointed/promoted on basis of the Policy of
reservation and system of roster can also claim to be promoted against general
category posts in higher grade on basis of their 'accelerated promotions'. The
appellants have also no objection if accelerated promotions in still higher
grade posts are given to such appointees/promotees applying the roster system
i.e. against the posts reserved for them till the period of five years fixed by
this Court in the case of Indra Sawhney (supra) expires. But whether such
appointees/promotees can claim promotion against general category posts in the
higher grade, on basis of their seniority in the lower grade having been
achieved because of the accelerated promotion or appointment by applying the
roster.
In R.K.Sabharwal's
case, this Court has treated the members of the Scheduled Castes and Backward
Classes in two categories i.e. those who are appointed or promoted having
competed with general category candidates on merit and those who are
appointed/promoted on basis of reservation and roster. For those who have
competed on merit it has been held that their number is not to be taken into
consideration while working out the percentage of reservation. In respect of
those members of Scheduled Castes and Backward Classes, who have been
appointed/promoted on the basis of reservation and roster, it has been said in
clear and unequivocal terms that the "running account" shall stop
after the quota provided under the instructions is reached and the roster
cannot be operated thereafter. In other words, there is no question of
promoting further number of such candidates, who have been appointed/promoted
on the basis of reservation and roster.
If the
contention of the respondents is accepted as has been done by the High Court
that such appointees/promotees can be considered against posts meant for
general category candidates merely because they have become senior on basis of
accelerated promotions then, according to us, that exercise shall amount to
circumventing the judgment of the Constitution Bench of this Court in the Sabharwal's
case, because for all practical purposes the promotions of such candidates are
being continued like a running account although the percentage of reservation
provided for them has been reached and achieved. Once such reserved percentage
has been achieved and even the operation of the roster has stopped, then how it
will be permissible to consider such candidates for being promoted against the
general category posts on the basis of their accelerated promotion, which has
been achieved by reservation and roster.
Recently,
this Court in the case of Union of India vs. Virpal Singh Chauhan, J.T.(1995) 7
SC 231 = (1995) 6 SCC 684, Mr.Justice B.P.Jeevan Reddy, speaking for the Court,
has said:
"Hence,
the seniority between the reserved category candidates and general candidates
in the promoted category shall continue to be governed by their panel position.
We
have discussed hereinbefore the meaning of the expression "panel" and
held that in case of non- selection posts, no "panel" is prepared or is
necessary to be prepared. If so, the question arises, what did the
circular/letter dated August 31, 1982 mean when it spoke of seniority being
governed by the panel position? In our opinion, it should mean the panel
prepared by the selecting authority at the time of selection for Grade 'C'. It
is the seniority in this panel which must be reflected in each of the higher
grades. This means that while the rule of reservation gives accelerated
promotion, it does not give the accelerated - or what may be called, the
consequential - seniority." It has been further said:
"In
other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted
earlier by virtue of rule of reservation/roster than his senior general
candidate and the senior general candidate is promoted later to the said higher
grade, the general candidate regains his seniority over such earlier promoted,
Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the
Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer
upon him seniority over the general candidate even though the general candidate
is promoted later to that category." It was also said:
"It
is true that this case presents a rather poignant turn of events of the thirty
three candidates being considered for eleven vacancies, all are Scheduled
Castes/Scheduled Tribes candidates. Not a single candidate among them belongs
to general category. The learned counsel for the respondent is justified in
complaining that appellants have failed to explain how such a situation has
come about. Not only the juniors are stealing a march over their seniors but
the march is so rapid that not only erstwhile compatriots are left far behind
but even the persons who were in the higher categories at the time of entry of Scheduled
Castes/Scheduled Tribes candidates in the service have also been left behind.
Such a configuration could not certainly have been intended by the framers of
the Constitution or the framers of the rules of reservation. In the absence of
any explanation from the authorities, the best we can do is to ascribe it as
faulty implementation of the rule of reservation. In other words, not only have
the Railways not observed the principle that the reservation must be vis-a-vis
posts and not vis-a-vis vacancies but they had also not kept in mind the rule
of seniority in the promotion posts enunciated in the Railway Board's circulars
referred to supra. Yet another principle which the authorities appeared to have
not observed in practice is that once the percentage reserved for a particular
reserved category is satisfied in that service category or grade (unit of
appointment) the rule of reservation and the roster should no longer be
followed.
Because
of the breach of these three rules, it appears the unusual situation complained
of by the general candidates has come to pass. The learned counsel for general
candidates to right that such a situation is bound to lead to acute
heart-burning among the general candidates which is not conducive to the
efficiency of administration." (emphasis supplied) Once the quota is full
and roster has stopped for members of the Scheduled Castes and Backward Classes
in respect of whom reservation has been made and roster has been prescribed
then their case for promotion to still higher grade against general category
Posts have to be considered not treating them as members of the Scheduled
Castes or Backward Classes "on any crutch". They cannot be promoted
only on basis of their 'accelerated seniority' against the general category
posts. In R.K.Sabharwal's case it was said that the candidates belonging to
Scheduled Castes who compete on their own merit along with general category
candidates then they are not to be counted within the percentage of reservation
made for such candidates in the service, because they have competed with the
general category candidates on their own merit. The same principle which has
been enunciated by the Constitution Bench in the aforesaid case shall be
applicable whenever a member of Scheduled Castes or Backward Classes has got
accelerated promotion to a higher grade and is to be considered for further
promotion to still higher grade against general category posts. The accelerated
promotions are to be made only against the posts reserved or roster prescribed.
There is no question of that benefit being available when a member of Scheduled
Castes or Backward Classes claims promotion against general category posts in
the higher grade. It need hardly be pointed out that such candidates who are
members of the Scheduled Castes or Backward Classes and have got promotion on
basis of reservation and application of roster before their seniors in the
lower grade belonging to general category, in this process have not superseded
them, because there was no inter se comparison of merit between them. As such
when such seniors who belong to general category, are promoted later it cannot
be said that they have been superseded by such members of Scheduled Castes or
Backward Class who have been promoted earlier. While considering them for
further promotion against general category posts if the only fact that they
have been promoted earlier being members of Scheduled Castes or Backward Class
is taken into consideration, then it shall violate the equality clause and be
against the view expressed not only in the case of R.K. Sabharwal (supra) by
the Constitution Bench, but also by the 9 Judges Bench in the case of Indra Sawhney
(supra) where it has been held that in any cadra reservation should not exceed
beyond 50%. The 50% posts already being reserved against which promotions have
been made then any promotion against general category posts taking into
consideration that they are members of the Scheduled Castes or Backward
Classes, shall amount to exceeding the limit fixed in the case of Indra Sawhney
(supra).
In the
Indra Sawhney's case in respect of the question regarding providing reservation
in promotion, it was said by B.P. Jeevan Reddy, J with whom it appears seven
out of nine Judges constituting the Bench have agreed while one Hon'ble Judge
did not express any opinion on that question:
"We
see no justification to multiply 'the risk', which would be the consequence of
holding that reservation can he provided even in the matter of promotion. While
it is certainly just to say that a handicap should be given to backward class
of citizens at the stage of initial appointment, it would be a serious and
unacceptable inroad into the rule of equality of opportunity to say that such a
handicap should be provided at every stage of promotion throughout their
career. That would mean creation of a permanent separate category apart from
the mainstream - a vertical division of the administrative apparatus. The
members of reserved categories need not have to compete with others but only
among themselves. There would be no will to work, compete and excel among them.
Whether they work or not, they tend to think, their to promotion is assured.
This in turn is bound to generate a feeling of despondence and 'heart-burning'
among open competition members. All this is bound to affect the efficiency of
administration.
Putting
the members of backward classes on a fast-track would necessarily result in
leapfrogging and the deleterious effects of "leapfrogging" need no
illustration at our hands. At the initial stage of recruitment reservation can
be made in favour of backward class of citizens but once they enter the
service, efficiency of administration demands that these members too compete
with others and earn promotion like all others; no further distinction can be
made thereafter with reference to their "birth-mark", as one of the
learned Judges of this Court has said in another connection. They are expected
to operate on equal footing with others. Crutches cannot be provided throughout
one's career. That would not be in the interest of efficiency of administration
nor in the larger interest of the nation. It is wrong to think that by holding
so, we are confining the backward class of citizens to the lowest cadres. It is
well-known that direct recruitment takes place at several higher levels of
administration and not merely at the level of Class IV and Class III . Direct
recruitment is provided even at the level of All India Services. Direct
recruitment is provided at the level of District Judges, to give an example
nearer home. It may also be noted that during the debates in the Constituent
assembly, one referred to reservation in promotions; it does not appear to have
been within their contemplation." It cannot be disputed that the first
promotion to such candidates was given without judging him on principle either
seniority-cum-merit or merit-cum-seniority in the lower grade. It was given by
applying principle of reservation and roster. The impugned circular dated
4.5.1974 quoted above itself says that it had been decided that the 16% of the
posts are to be filled up by promotion to Class-I and Class- II services under
the State Government, have been reserved for members of the Scheduled Castes
and Backward Classes subject to the conditions
(a) the
persons to be considered must possess the minimum necessary qualifications, and
(b)
they should have a satisfactory record of service.
Thereafter
the roster has been fixed in different grades for their accelerated promotions.
In this background, while considering them for promotion to general category
posts in still higher grade posts, the fact that they had been promoted earlier
on basis of the policy of reservation and applying the roster system cannot be
overlooked. It also cannot be overlooked that at the first promotion from the
basic grade, there was no occasion to examine their merit and suitability for
purpose of their promotion. The only requirement prescribed is that they should
possess the minimum necessary qualifications and they should have satisfactory
record of service. In actual working, it can be demonstrated by an example. In
grade 'C' which is the grade of initial entry in the service, there are 10
Posts. On basis of roster the reserved category candidates are at Serial Nos.2,
6 and 10 whereas general category candidates are at Serial Nos. 1,3,4,5,7,8 and
9. On basis of reservation and roster system, the reserved category candidates
at Sl.Nos. 2 and 6 are promoted to grade 'B' first. Thereafter Sl.Nos. 1,3 and
4 are promoted who belong to general category. In grade 'A' which is still the
higher grade, there are only 3 posts, out of which one is reserved for members
of the Scheduled Castes. The candidate who had been promoted on basis of
reservation to post at Sl.No.2 will be promoted before general category
candidates at Sl.Nos.1,3 and 4 to one of the 3 posts on basis of reservation.
Now so far the two remaining posts in grade `A' are concerned, are meant for
general category candidates.
But if
the principle of "running account" is applied and only the earlier
promotion of the candidate who was at Sl.No.6 is taken into consideration, then
he shall be promoted to grade `A' against the second, out of there posts
although the quota of reservation and roster is complete with the reservation
of the reserved category candidate at Sl.No.2 against one of the three posts. So
out of the three posts in grade `A'two shall be filled up by reserved category
candidates beyond the limit of reservation and without any roster being
available. In this process the merit of the reserved category candidate at
Sl.No.6 has not been considered. It need not be pointed out that but for
principle of reservation and roster, he could not have been promoted earlier
than candidates at Sl.Nos. 1,3 and 4 in grade `C'. IN this background, can it
not be said that he has been promoted to the second post in grade A because he
is a member of Scheduled Caste, as though the post was to be filled up from
amongst general category candidates? The Constitution Bench in R.K Sabharwal
has said in clear and unambiguous terms that after the quota is over and roster
points are full, then the "running account" of roster shall stop and
there is no question of promoting beyond the posts which had been reserved. In
the said judgment it has been said in respect of members of Scheduled Castes
that if they are appointed/promoted on their own merit, then such candidates
shall not be counted towards the percentage of reservation fixed for them. On
the basis of the same logic, whenever members of the Scheduled Castes are to be
considered for promotion against posts which are not reserved for them, then
they have to be selected on merit only. They cannot claim that as they had been
promoted earlier from grade 'C' to grade 'B' on basis of reservation and roster
in this process they have superseded the candidates belonging to the general
category and even for promotion against general category posts in grade 'A'
only requirement shall be satisfactory record of service.
On
behalf of the respondents, reliance was placed on the judgment of P.S. Ghalaut
v. State of Haryana and Others, (1995) 5 SCC 625,in support of contention that
while applying the roster point the merit list prepared for candidates by
process of direct recruitment can be disturbed for placement of the candidates
belonging to reserved category, at the relevant roster point and it shall not
be violative of article 14 or 16 of the Constitution. That judgment has no bearing,
so far the present case is concerned. In that case roster was being applied in
respect of posts reserved under the relevant Rules, which were being filled up
by process of direct recruitment. That case related to process of direct
recruitment to the initial cadre of service on basis of principle of
reservation and roster.
On
behalf of the respondents it was urged that in the case of Union of India vs. Virpal
Singh Chauhan (supra) the view expressed by this Court in respect of inter se
seniority between the reserved category candidates who had been promoted on
basis of reservation and roster earlier than the general category candidates
who were senior in the lower grade, and who have been promoted later, has not
to be applied in all services. According to the respondents that view was
expressed on basis of the circular which was under consideration, in that case
where it had been provided that the seniority of the general category candidate
was to be restored vis-a-vis the reserved category candidate after the general
category candidate was promoted later, According to us, this question cannot be
examined only on basis of any circular, order or rule issued or framed by any
State Government or the Union of India. This has to be tested on basis of our
constitutional scheme of Articles 14 and 16 of the Constitution.
On
behalf of the respondents, a stand was also taken that in view of the
Constitution Bench Judgment in the case of Direct Recruit Class II Engineering
Officers' Association v. State of Maharashtra & Ors., 1990 (2) SCC 715, the
date of entry in the service determines the seniority of the officer concerned.
As the reserved category candidates in the aforesaid illustration had been
promoted from grade 'C' to grade 'B' before the general category candidates who
were senior to them in the lower grade 'C', the seniority of the reserved
category candidates is fixed and determined with reference to the dates of
promotion in grade 'B' and they shall rank senior to the general category
candidates who were promoted later although they were senior to them in the
grade 'C'. This Court in the case of Direct Recruit Class II Engineering
Officers' Association vs. State of Maharashtra & Ors. (supra) was not
considering the question of inter se seniority of categories, who have been
promoted on basis of reservation and roster and those who have been promoted
from lower grade to higher grade on consideration of seniority- cum-merit or
merit-cum-seniority. There the question under consideration, was as to how to
fix the seniority of persons entering n service from different sources i.e. by
process of direct recruitment and promotion. The policy of reservation cannot
be implemented in a manner to block the merit channel and to make it dry. It is
so heartening to note that for whom the founding fathers introduced the
provision for reservation to protect and encourage entry in service, now are
able to enter service on their own merit by competing with candidates of
general category. For promotion or appointment of a member of Scheduled Caste
against the post reserved for him the primary question to be considered is as to
whether be belongs to a class for whom reservation has been made. But for being
considered for appointment or promotion against a general category post, merit
is the primary consideration because the applicant is to enter into the service
or grade of service through merit channel.
When
framers of the Constitution by Article 16 guaranteed equality of opportunity in
mattes of public employment, they armed at combining democratization with
efficiency. In the process of democratization Article 16(4) enabled the State
to make provisions for reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State is not adequately
represented in the services under the State. As has been pointed out by this
Court that at the same time Article 335 of the Constitution enjoins to take
into consideration the claims of the members of the Scheduled Castes and
Scheduled Tribes "consistently with the maintenance of efficiency of the
administration" while the making of appointments to services and posts in
connection with the affairs of the union or of a State. Thus it has been
conceived by our Constitution that a process should be adopted while making
appointments through direct recruitment or promotion in which the merit is not
ignored. For attracting meritorious and talented persons to the public
services, a balance has to be struck, while making provisions for reservation
in respect of a section of the society. This Court from time to time has been
issuing directions to maintain that balance in the public services so that
there should not be discontentment, heart-burning and frustration, which can
never be held to be in the larger interest of the society. It has been pointed
out in the case of Indra Sawhney (supra) that reservation in promotions at
various stages has resulted in considerable discontentment because many senior
persons inspite of their efficiency and dedicated work find themselves
superseded by their juniors belonging to the Scheduled Castes or Tribes for
that reason alone. In many cases seniors to their horror find themselves made
junior to even those who actually worked as their subordinates due to this
factor alone. All concerned who are involved and interested in the uplift and
growth of the nation have to work out a system by which the injustice done to a
section of people in our society at certain period of history can be rectified
by providing protections to their descendants, but we have to be conscious, at
the same time that the efficiency of the administration of the country is not
harmed and there is no reverse discrimination. Promotion is an important
incident of service. It covers both advancement between srades within the same
class and between different classes. Seniority in service is one of the
important factors in making promotion. Even where process of promotion by
selection is adopted, seniority has an importance in case of equal merit. The
principal object of a promotion system is to secure the best possible
incumbents for the higher position while maintaining the morale of the whole
organization. The best public interest is served when equal opportunities for
promotion exists for all qualified employees. Civil servants are able to move
up 'the promotion ladder' as the merit deserves and the vacancies occur. Right
to equality enshrined in the Constitution is to be reserved by preventing
reverse discrimination as well. The guarantee of equality requires maintenance
of original or panel inter se seniority between the general category candidate
and the earlier promoted reserved category candidate under the reservation
policy, for promotion to the higher general vacancy. The equality principle
requires exclusion of the factor of extra weightage of earlier promotion to a
reserved category candidate because of reservation alone, when he competes for
further promotion to a general category with a general category candidate,
senior to him in the panel. Any other view would amount to reverse
discrimination and violative of the guarantee of equality in Articles 14 to 16.
We
respectfully concur with the view in Union of India vs. Virpal Singh Chauhan,
(supra) that seniority between the reserved category candidates and general
candidates in the promoted category shall continue to be governed by their
panel position i.e. with reference to their inter se seniority in the lower
grade. The rule of reservation gives accelerated promotion, but it does not
give the accelerated consequential seniority'. If a Scheduled Caste/Scheduled
Tribe candidate is promoted earlier because of the rule of reservation/roster
and his senior belonging to the general category candidate is promoted later to
that higher grade the general category candidate shall regain his seniority
over such earlier promoted scheduled caste/tribe candidate.
As already
pointed out above that when a scheduled caste/tribe candidate is promoted
earlier by applying the rule of reservation/roster against a post reserved for
such scheduled caste/tribe candidate, in this process he does not supersede his
seniors belonging to the general category. In this process there was no
occasion to examine the merit of such scheduled caste/tribe candidate vis-a-vis
his seniors belonging to the general category. As such it will be only
rational, just and proper to hold that when the general category candidate is
promoted later from the lower grade to the higher grade, he will be considered
senior to a candidate belonging to the scheduled caste/tribe who had been given
accelerated promotion against the post reserved for him. Whenever a question
arises for filling up a post reserved for scheduled caste/tribe candidate in
still higher grade then such candidate belonging to scheduled caste/tribe shall
be promoted first but when the consideration is in respect of promotion against
the general category post in still higher grade then the general category
candidate who has been promoted later shall be considered senior and his case
shall be considered first for promotion applying either principle of seniority
cum merit or merit cum seniority. If this rule and procedure is not applied
then result will be that majority of the posts in the higher grade shall be
held at one stage by persons who have not only entered in service on basis of
reservation and roster but have excluded the general category candidates from
being promoted to the posts reserved for general category candidates merely on
the ground of their initial accelerated promotions. This will not be consistent
with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.
According
to us, the Full Bench was not justified in saying in the case of Jaswant Singh
vs. The Secretary to Govt. of Punjab (supra) that non consideration of
Scheduled Castes candidates against general category posts on basis of their
prior promotion will be hit by Articles 14, 15 and 16 of the Constitution. That
view shall be deemed to be against the pronouncement of this Court by the nine
Judges Bench in the case of Indra Sawhney (supra) as well as the view expressed
by the Constitution Bench in the case of R.K.Sabharwal (supra). Accordingly,
the appeals are allowed and that part of the judgment of the Full Bench in the
case of Jaswant Singh vs. The Secretary to Govt. of Punjab (supra) is reversed.
Now the case of the appellants and others similarly situated should be
considered in the light of this judgment. We are not inclined to examine
individual grievances and to work out the effect of the views expressed by us.
That shall be done by the State Government. In the facts and circumstances of
the case, there shall be no orders as to cost.
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