S. Rajendran
Vs. Union of India & Ors [1998] INSC 84 (11 February 1998)
Sujata
V. Manohar, D.P. Wadhwa Mrs. Sujata V. Manohar, J.
ACT:
HEAD NOTE:
The
appellant and respondent no.3 belong to the service of the jail Department of
the Government of Pondicherry. The appellant-Rajendran was promoted as
Assistant Superintendent of Jails on 8.2.1980. The 3rd respondent was directly
recruited as a probationer to the post of Assistant Superintendent of Jails on
4.11.1988. The 3rd respondent belongs to a Scheduled Caste. At the material
time, in the seniority list of Assistant Superintendents, the appellant was at
serial no.1 and the 3rd respondent was at serial no.4. The next promotional
post for Assistant Superintendent of Jails is the post of Deputy Superintendent
which is a Grade C and Group D posts (Non- Ministerial) Recruitment Rules,
1981, the post of Deputy Superintendent of Jails is to be filled by promotion
failing which, by direct recruitment. In the case of recruitment by promotion,
the Rules as amended provide that it will be by promotion from regular
Assistant Superintendents who have put in not less than three years' continuous
service in that grade.
On
23.7.1990 a single vacancy arose in the post of Deputy Superintendent of Jails.
This vacancy was a reserved vacancy for a Scheduled Caste candidate. The
respondent no.3 was the only available Scheduled Caste candidates. However, he
was not eligible for promotion on that date since he had not completed his
period of probation and had not qualified for promotion by passing the
departmental tests being jail Test and Executive Officers' Test. Since no
suitable Scheduled Caste candidate was available for promotion, the department
applied for de-reservation of the post so that a general category candidate
could be appointed to that post.
This
request, however, was turned down and the department was advised by the
Government to fill up the post on an adhoc basis until a suitable Scheduled
Caste candidate became available. Accordingly, the appellant was appointed Deputy
Superintendent by promotion on an adhoc basis. On 6.2.1993 respondent no.3
became eligible for promotion since he was declared to have satisfactorily
completed his period of probation and since he had also qualified by passing
the two departmental tests. By then he had also completed three years of
regular service. The department accordingly moved the Government for appointing
the 3rd respondent in the reserved post. Thereupon the appellant filed an
application before the Central Administrative Tribunal at Pondicherry for regularisation of his
appointment as a Deputy Superintendent. His application was allowed. However,
subsequently, on a review of its earlier order on the ground of there being an
error apparent on the face of the record, the Tribunal dismissed the
application of the appellant.
Hence,
the appellant had come by way of present appeal against the order of the
Tribunal in review.
The
Brochure on "Reservation for Scheduled Castes and Scheduled Tribes in
Services" issued by the Government of India, in paragraph 11.3 in Chapter
11 deals with reservations and carry forward of a single vacancy arising in a
year. It provides as follows :- "In cases where only one vacancy occurs in
the initial recruitment year and the corresponding roster point happens to be
for a Scheduled Caste or a Scheduled Tribe, it should be treated as unreserved
and filled accordingly and the reservation carried forward to subsequent three
recruitment years, but in the subsequent recruitment year(s), even if there is
only one vacancy, it should be treated as "Reserved" against the
carried forward reservation from the initial recruitment year, and a Scheduled
Caste/Scheduled Tribe candidate, if available, should be appointed in that
vacancy, although it may happen to be the only vacancy in that recruitment
year(s)." In this connection O.M.No.1/9/74=Estt. (SCT) dated 29.4.1975
further provides that the matter has been considered in the light of the
judgment of the Supreme Court dated 11th of October, 1973 in the case of Areti
Ray Choudhury vs. Union of India (Railway Ministry) & Ors., and it has now
been decided that in partial modification of O.M. dated 4th of December, 1963,
and 2nd of September, 1964, while in cases where only one vacancy occurs in the
initial recruitment year and the corresponding roster point happens to be for a
Scheduled Caste or a Schedule Tribe, it should be treated as unreserved and
filled accordingly and the reservation carried-forward to subsequent three
recruitment years as hitherto. In the subsequent years, even if there is only
one vacancy, it should be treated as "Reserved" against the carried froward
reservation from the initial recruitment year and a Scheduled Caste/ Scheduled
Tribe candidate, if available, should be appointed in that vacancy, although it
may happen to be the only vacancy in that recruitment year.
For
instance, if a single vacancy arises in the initial recruitment year 1975, and
it falls at a reserved point in the roster, it will be treated a `unreserved'
and filled accordingly in that year but the reservation would be carried
forward to subsequent recruitment years. In the first subsequent year i.e.
1976, if again, a single vacancy occurs, than it should be treated as
`reserved' against the reservation carried forward from 1975 and a Scheduled
Caste/Scheduled Tribe candidate not being available to fill the reserved
vacancy in 1976, the reservation would be further carried forward to 1977 and
1978, when also a single vacancy, if any, arising in those years should be
treated as "reserved" against the carried forward reservation, whereafter,
the reservation will lapse.
In the
present case, a single vacancy for the post of Deputy Superintendent against a
roster point which was reserved for a Scheduled Caste candidate arose in the
year 1978. This was the initial recruitment year. In that year since no
Scheduled Caste candidate was available it was treated as
"unreserved" and the reservation was carried forward to the next
recruitment year which was 1983 when a single vacancy arose. This vacancy was
treated as a "reserved" vacancy. However, since a Scheduled Caste
candidate was not available for this vacancy an application was made for
de-reserving this vacancy which was granted. It was thereupon filled by a
general category candidate and the reservation was carried forward or
transferee to the next recruitment year which would now be the initial
recruitment year for the reserved vacancy since the earlier point was
de-reserved. The next recruitment year was 1990 when the next vacancy arose. This
is how the vacancy which arose on 23rd of July, 1990 was reserved for a
Scheduled Caste candidate. Since no Scheduled Caste candidate was available in
1990 and since the application of the department for de- reservation was
rejected, this vacancy as per the rules set out above, was required to be
carried forward for three recruitment years. The vacancy was accordingly
carried forward for the next three recruitment years being the years 1991, 1992
and 1993. In 1994 the reservation would have lapsed if no suitable Scheduled
Caste candidate was available. However, in 1993 the 3rd respondent was
available for filling up the reserved vacancy in the Scheduled Caste category.
That is why, to prevent the appointment of respondent no.3, the appellant filed
the application before the Central Administrative Tribunal in July 1993.
In the
background of this factual position, the action of respondents 1 and 2 in
giving only an ad hoc promotion to the appellant appears to be justified. Because
they were required to carry-forward the reserved vacancy for three subsequent
years. The reservation would lapse only in the year 1994. The occasion,
however, for making an appointment from the general category in 1994 did not
arise.
In the
case of Jogendra Sehti vs. Rabindranath Behura & Ors. (1995 Supp. (3) SCC
693), this Court considered the provisions with regard to reservation of posts
and Services (For Scheduled Castes and Scheduled Tribes) Act, 1971. It
considered the provision for carry-forward of vacancy for three years of recruitment
and held that the first recruitment year would be the year in which the vacancy
arose and it was required to be carried forward for three subsequent calendar
years looking to the definition of "recruitment year" in the said
Act. Under the Brochure on "Reservation For Scheduled Castes and Scheduled
Tribes in Services" also, in Chapter 11, paragraph 11.1 Note (1)
`recruitment year' to mean "a calendar year and for purposes of the three
years" limit for carry-forward of reserved vacancies it shall mean the
year in which recruitment is actually made." The vacancy, therefore, was
required to be carried forward for three calendar years starting with 1991. (See
also in this connection Malkhan Singh vs. Union of India & Ors. (1997 (2)
SCC 33)
In the
premises the Tribunal had correctly reviewed its earlier order and dismissed
the application of the appellant. The present appeals are, therefore,
dismissed.
There
will, however, be no order as to costs.
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