Ajit
Singh & Ors Vs. The State of Punjab & Ors [1999] INSC 345 (16 September
1999)
S.P.
KURDUKAR, & M. JAGANNADHA RAO. M.JAGANNADHA RAO,J.
We
have before us these three Interlocutory Applications Nos. 1 to 3 filed for
"clarification" by the State of Punjab in Civil Appeal Nos.3792-94 of
1989 (Ajit Singh Januja & Others vs. State of Punjab) [1996 (2) SCC 215]
(hereinafter referred to as Ajit Singh in this judgment). The matter concerns a
dispute relating to seniority of reserved candidates and general candidates.
At the
outset we make it clear that in this judgment we are not concerned with the
reservation policy of the State or with the validity of any procedure fixing
roster points for purpose of promotion of reserved candidates. We are here
dealing only with a limited question relating mainly to seniority of the
reserved candidates promoted at roster points.
We
also make it clear that what we are deciding today is based on principles
already laid down by this Court since 1950 and in particular since 1963. Basing
on those principles, we are concerned with the limited question as to whether
Union of India vs. Virpal Singh [1993 (6) SCC 685] and Ajit Singh Januja vs.
State of Punjab [1996 (2) SCC 215], which were earlier decided in favour of the
general candidates are to be affirmed or whether the latter deviation made in
Jagdish Lal vs. State of Haryana [1997 (6) SCC 538] against the general
candidates, is to be accepted. How these IAs 1-3 came to be filed for
clarification:? The circumstances under which the State of Punjab has filed
these IAs for clarification are as follows:- Initially, in a case relating to
the Indian Railways, a two Judge Bench of this Court in Union of India vs.
Virpal Singh [1995 (6) SCC 685] (hereinafter referred to as Virpal) held that
it was "permissible" for the Railways to say that reserved candidates
who get promotion at the roster points would not be entitled to claim seniority
at the promotional level as against senior general candidates who got promoted
at a later point of time to the same level. It was further held that "it
would be open" to the State to provide that as and when the senior general
candidate got promoted under the rules, - whether by way of a seniority rule or
a selection rule - to the level to which the reserved candidate was promoted
earlier, the general candidate would have to be treated as senior to the
reserved candidate (the roster point promotee) at the promotional level as
well, unless, of course, the reserved candidate got a further promotion by that
time to a higher post. (This is described for convenience, as the 'catch up'
rule) Close on the heels of Virpal, came Ajit Singh from Punjab, before a three
Judge Bench and the Bench held that the question of seniority at the
promotional level had to be decided by applying the provisions of Article 14
and 16 (1) and if any order, circular or rule provided that such reserved
candidates who got promotions at roster points were to be treated as senior to
the senior general candidates who were promoted later, then such an order,
circular or rule would be violative of Article 14 and 16(1). It was, however,
held that the position would be different if by the time the senior general
candidate got his promotion under the normal rules of seniority or selection,
the reserved candidate who was promoted earlier at the roster point, had got a
further promotion. In other words, the `catch up' principle as laid down in
Virpal was accepted. In coming to the above conclusions, the three Judge Bench
relied upon the principles laid down by the nine Judge Bench in Indira Sawhney
vs. Union of India [1992 Suppl. (3) SCC 251] and by the Constitution Bench in
R.K.Sabharwal vs. State of Punjab [1995 (2) SCC 745]. These two cases had laid
down earlier the manner in which the rights of the general candidates and the
reserved candidates ought to be balanced.
In
Ajit Singh the Court said the balance must be maintained in such a manner that
there was no reverse discrimination against the general candidates and that any
rule, circular or order which gave seniority to the reserved candidates
promoted at roster point, would be violative of Articles 14 and 16(1) of the
Constitution of India. The Indian Railways following the law laid down in
Virpal issued a circular on 28.2.97 to the effect that the reserved candidates
promoted at roster points could not claim seniority over the senior general
candidates promoted later. The State of Punjab after following Ajit Singh was proceeding to revise seniority lists and
make further promotions of the senior general candidates who had reached the
level to which the reserved candidates had reached earlier. At that point of
time, another three Judge Bench came to decide a case from the State of Haryana
in Jagdish Lal vs. State of Haryana [1997 (6) SCC 538] and took a view contrary
to Virpal and Ajit Singh. It held that the general rule in the Service Rules
relating to seniority from the date of continuous officiation which was
applicable to candidates promoted under the normal seniority/selection
procedure would be attracted even to the roster point promotees as otherwise
there would be discrimination against the reserved candidates. The Bench also
observed that the right to promotion was a statutory right while the rights of
the reserved candidates under Article 16(4) and Article 16(4A) were fundamental
rights and in that behalf, it followed Ashok Kumar Gupta vs. State of U.P.
[1997 (5) SCC 201] where a similar principle had been laid down. The
Contentions in brief: Sri Hardev Singh, learned senior counsel for the State of
Punjab submitted that since Jagdish Lal decided something contrary to Virpal
and Ajit Singh the State was in a `quandary what to do. In these IAs and the
connected batch of cases which have been listed together and heard, contentions
have been raised by Sri Rajeev Dhawan for the State of Haryana and Sri Altaf
Ahmad, Additional Solicitor General of India for the State of Rajasthan and the
Union of India. According to the learned counsel the 'roster point promotees',
( i.e. a reserved candidate at Level 1 who is promoted to Level 2 at the roster
point meant for such promotion) namely, the reserved candidates cannot claim
seniority on the basis of continuous officiation.
However,
learned Additional Solicitor General, Sri C.S. Vaidyanathan for the Indian Railways
has taken a contrary stand-, in spite of the fact that Railways has already
accepted Virpal and issued a circular on 28.2.1997 -that roster point
promotions in the Railways did not confer seniority. Senior counsel Sri Harish
Salve and others for the general candidates contended that Virpal and Ajit
Singh were correctly decided and Jagdish Lal was wrongly decided.
Senior
counsel Sri K. Parasaran, Sri D.D. Thakur, Sri M.N. Rao, and others including
Sri Jose P. Verghese for the reserved candidates relied upon Jagdish Lal and
they contended that Virpal and Ajit Singh were wrongly decided.
The
validity of the 'catch-up' rule accepted in Virpal and Ajit Singh in favour of
general candidates was also put in issue. One additional point was also argued.
This related to the "prospectivity" of R.K.Sabharwal and Ajit Singh.
In R.K.Sabharwal this Court has held that once the roster point promotions were
all made in respect of the reserved candidates, the roster ceased to operate.
Unless any of the reserved candidates already promoted had retired or been
further promoted etc. and unless there was a vacancy generated at the points
already filled, fresh candidates from the reserved candidates could not be
promoted by further operation of the roster. Having so held, the Court said
that the judgment would be "prospective". The reserved candidates now
contend that the above direction means that not only the reserved candidates so
promoted in excess of the roster points could not be reverted but that their
seniority against such excess promotions was also protected vide Sabharwal.
Likewise,
in regard to Ajit Singh, the contention was as follows: Assume there are
rosters at Level 1 and again at Level 2. Assume that a reserved candidate has
been promoted from Level 1 to Level 2 on the basis of the roster point and
again from Level 2 to Level 3 on roster point. A senior general candidate at
Level 1 has later reached Level 3 and by that date the reserved candidate is
still at Level
3.
Assume that the plea of the general candidates that the general candidate
became senior at Level 3 to the earlier promoted reserved candidate, is
correct. Ignoring the senior general candidate at Level 3, the reserved
candidate has been further promoted to Level 4 before 1.3.96 when Ajit Singh was
decided. In that event, the prospective operation of Ajit Singh means,
according to the reserved candidates, that such a reserved candidate is not
only not to be reverted but his seniority at Level 4 is also to be protected.
The general candidates say that after Ajit Singh was decided on 1.3.96 the said
promotion made to Level 4, ignoring the case of the senior general candidate at
Level 3, is to be reviewed and seniority at Level 3 is to be refixed. At Level
4, - when the general candidate is also promoted to Level 4, the seniority of
the reserved candidate has also to be fixed on the basis as to when he would
have otherwise been promoted to Level 4, after considering the case of his
senior general candidate at Level 3. We shall be dealing with these main contentions
in this judgment. So far as the individual points raised in the Civil Appeals,
Contempt Cases and other IAs are concerned, we shall deal with them by separate
judgments for convenience.
On the
above contentions, the following four main points arise for consideration:
Points:
..........L.....T.......T.......T.......T.......T.......T..J
(1) Can the roster point promotees ( reserved category) count their seniority
in the promoted category from the date of their continuous officiation
vis-a-vis general candidates who were senior to them in the lower category and
who were later promoted to the same level? (2) Have Virpal, Ajit Singh been
correctly decided and has Jagdish Lal been correctly decided? (3) Whether the
'catch-up' principles contended for by the general candidates are tenable? (4)
What is the meaning of the 'prospective' operation of Sabbarwal and to what
extent can Ajit Singh be prospective? .lm10 Points (1) and (2): A word with
regard to Article 16(4) & Article 16 (4A):
Learned
senior counsel for the general candidates submitted at the outset that while
Indira Sawhney permitted reservations for a period of five years, the
Constitution was amended within the said period and Article 16(4A) was
incorporated permitting reservation in promotions but restricting the same to
Scheduled Castes and Scheduled Tribes. Learned counsel submitted that it was
their contention that this amendment was not constitutionally permissible but
this question need not be decided in this batch as separate writ petitions
challenging the validity of Article 16(4A) are pending in this Court. In view
of the above stand, we shall proceed in these cases on the assumption that
Article 16(4A) is valid and is not unconstitutional. At the same time, we also
note the contention of the reserved candidates that Article 16(4A) must be
deemed to be constitutional unless otherwise declared. .pa Article 16(1), 16(4)
and 16(4A): In the context of the first and second questions, it is necessary
to refer to the relevant parts of Article 16 of the Constitution of India.
Sub-clauses (1), (4) and (4A) of Article 16 which have relevance in this case
read as follows: "Article 16(1)- Equality of appointment in matters of
public employment:- There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.
(2)......................................
(3)......................................
(4)
Nothing in this Article shall prevent the State from making any provision for
the reservation of appointment 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.
(4A)
Nothing in this Article shall prevent the State from making any provision for reservation
in matters of promotion of any class or classes of posts in the services under
the State in favour of Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State are not adequately represented in the services under the
State." I.......T.......T.......T.......T.......T.......T.......T..J
Constitution is not static: We shall at the outset deal with the contention
raised by Sri D.D.Thakur, learned senior counsel appearing for the reserved
candidates that Article 16(4) must be interpreted keeping in mind the
conditions prevailing fifty years ago when the Constitution was drafted and
when Article 16(4) was incorporated in the Constitution. Learned counsel
submitted that the founding fathers were conscious that a special provision for
reservation was necessary to see that the backward classes of citizens were
adequately represented in the services. Hence an interpretation which would
advance the said objective must be applied.
Reliance
was also placed on the Statement of Objects and Reasons in connection with the
incorporation of Article 16(4A). In fact, all the learned counsel appearing for
the reserved candidates contended that the said officers could not be treated
as equals to the general candidates and that their backwardness and past social
oppression must be borne in mind. Nobody can deny that the above approach is
the proper one while dealing with the reserved classes. The primary purpose of
Article 16(4) and Article 16(4A) is due representation of certain classes in
certain posts. However, we must bear in mind and not ignore that there are
other provisions, namely, Articles 14, 16(1) and Article 335 of the
Constitution which are also very important. The Constitution has laid down in
Articles 14 and 16(1) the permissible limits of affirmative action by way of
reservation under Articles 16(4) and 16(4A). While permitting reservations at
the same time, it has also placed certain limitations by way of Articles 14 and
16(1) so that there is no reverse discrimination. It has also incorporated
Article 335 so that the efficiency of administration is not jeopardized. While
interpreting provisions of the Constitution and in particular fundamental
rights of citizens, it is well to bear in mind certain fundamental concepts.
U.S.316),
Chief Justice Marshall cautioned that we must keep in mind
that it is the Constitution that we are expounding. He said that the
Constitution was intended to endure for ages to come and had consequently to be
adapted to the various crises of human affairs from time to time. Brandeis J
wrote : "Our Constitution is not a straight jacket. It is a living
organism. As such it is capable of growth, of expansion and of adaptation to
new conditions. Growth implies changes, political, economic and social. Growth
which is significant manifests itself rather in intellectual and moral
conceptions of material things" (Brandeis Papers, Harvard Law School).
Similarly,
in a beautiful metaphor Mr. J.M. Beck said as follows:
"The
Constitution is neither, on the one hand, a Gibraltor Rock, which wholly
resists the ceaseless washing of time and circumstances, nor is it, on the
other hand, a sandy beach, which is slowly destroyed by erosion of the waves.
It is rather to be likened to a floating dock which, while firmly attached to
its moorings, and not therefore at the caprice of the waves, yet rises and
falls with the tide of time and circumstances" (Constitution of the United
States, Yesterday, Today and Tomorrow' ( 1924) (Oxford University Press)."
L.........I.....T.......T.......T.......T.......T.......T..J Such should be and
would be our approach in resolving the important constitutional issues arising
in these IAs and in this batch of cases.
We
shall first deal with the fundamental rights under Articles 14 and 16(1) and
then with the nature of the rights of the reserved candidates under Articles
16(4) and 16(4A).
Articles
14 and 16(1): Is right to be considered for promotion a fundamental right?
Article 14 and Article 16(1) are closely connected. They deal with individual
rights of the person.
Article
14 demands that the "State shall not deny to any person equality before
the law or the equal protection of the laws". Article 16(1) issues a
positive command that "there shall be equality of opportunity for all
citizens in the matters relating to employment or appointment to any office
under the State". It has been held repeatedly by this Court that
sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its
roots from Article 14. The said sub- clause particularizes the generality in
Article 14 and identifies, in a constitutional sense "equality
opportunity" in matters of employment and appointment to any office under
the State. The word 'employment' being wider, there is no dispute that it takes
within its fold, the aspect of promotions to posts above the stage of initial
level of recruitment. Article 16(1) provides to every employee otherwise
eligible for promotion or who comes within the zone of consideration, a
fundamental right to be "considered" for promotion. Equal opportunity
here means the right to be "considered" for promotion. If a person
satisfies the eligibility and zone criteria but is not considered for
promotion, then there will be a clear infraction of his fundamental right to be
"considered" for promotion, which is his personal right.
"Promotion" based on equal opportunity and 'seniority' attached to
such promotion are facets of fundamental right under Article 16(1): Where
promotional avenues are available, seniority becomes closely interlinked with promotion
provided such a promotion is made after complying with the principle of equal
opportunity stated in Article 16(1). For example, if the promotion is by rule
of `seniority-cum- suitability', the eligible seniors at the basic level as per
seniority fixed at that level and who are within the zone of consideration must
be first considered for promotion and be promoted if found suitable. In the
promoted category they would have to count their seniority from the date of
such promotion because they get promotion through a process of equal
opportunity. Similarly, if the promotion from the basic level is by selection
or merit or any rule involving consideration of merit, the senior who is
eligible at the basic level has to be considered and if found meritorious in
comparison with others, he will have to be promoted first.
If he
is not found so meritorious, the next in order of seniority is to be considered
and if found eligible and more meritorious than the first person in the
seniority list, he should be promoted. In either case, the person who is first
promoted will normally count his seniority from the date of such promotion.
(There are minor modifications in various services in the matter of counting of
seniority of such promotees but in all cases the senior most person at the
basic level is to be considered first and then the others in the line of
seniority). That is how right to be considered for promotion and the
`seniority' attached to such promotion become important facets of the
fundamental right guaranteed in Article 16(1). Right to be considered for
promotion is not a mere statutory right: The question is as to whether the
right to be considered for promotion is a mere statutory right or a fundamental
right. Learned senior counsel for the general candidates submitted that in
Ashok Kumar Gupta down that the right to promotion is only a "statutory
right" while the rights covered by Articles 16(4) and 16(4A) are
"fundamental rights". Such a view has also been expressed in Jagdish
Lal and some other latter cases where these cases have been followed. Counsel
submitted that this was not the correct constitutional position. In this
connection our attention has been invited to para 43 of Ashok Kumar Gupta.
It
reads as follows:- "It would thus be clear that right to promotion is a
statutory right. It is not a fundamental right. The right to promotion to a
post or class of posts depends upon the operation of the conditions of service.
Article 16(4) read with Articles 16(1) and 14 guarantees a right to promotion
to Dalits and Tribes as a fundamental right where they do not have adequate
representation consistently with the efficiency of administration... before
expiry thereof (i.e. 5 years rule), Article 16(4) has come into force from
17.6.1995. Therefore, the right to promotion continues as a constitutionally
guaranteed fundamental right." A similar view was expressed in Jagdishlal
and followed in some latter cases. In the above passage, it was laid down that
promotion was a statutory right and that Articles 16(4) and 16(4A) conferred
fundamental rights. In our opinion, the above view expressed in Ashok Kumar
Gupta, and followed in Jagdish Lal and other cases, if it is intended to lay
down that the right guaranteed to employees for being "considered"
for promotion according to relevant rules of recruitment by promotion(i.e.
whether on basis of seniority or merit) is only a statutory right and not a
fundamental right, we cannot accept the proposition. We have already stated
earlier that the right to equal opportunity in the matter of promotion in the
sense of a right to be "considered" for promotion is indeed a
fundamental right guaranteed under Article 16(1) and this has never been
doubted in any other case before Ashok Kumar Gupta, right from 1950. Articles
16(4) and 16(4A) do not confer any fundamental right to reservation: We next
come to the question whether Article 16(4) and Article 16(4A) guaranteed any
fundamental right to reservation. It should be noted that both these Articles
open with a non-obstante clause - "Nothing in this Article shall prevent
the State from making any provision for reservation.....". There is a
marked difference in the language employed in Article 16(1) on the one hand and
Article 16(4) and Article 16(4A). There is no directive or command in Article 16(4)
or Article 16(4A) as in Article 16(1). On the face of it, the above language in
each of Articles 16(4) and 16(4A), is in the nature of an enabling provision
and it has been so held in judgments rendered by Constitution Benches and in
other cases right from 1963. We may in this connection point out that the
attention of the learned Judges who decided Ashok Kumar Gupta and Jagdish Lal
was not obviously drawn to a direct case decided by a Constitution Bench in
C.A.Rajendran vs. Union of India 1968 (1) SCC 721 which arose under Article
16(4). It was clearly laid down by the five Judge Bench that Article 16(4) was
only an enabling provision, that Article 16(4) was not a fundamental right and
that it did not impose any constitutional duty. It only conferred a discretion
on the State. The passage in the above case reads as follows:
"Our
conclusion therefore is that Article 16(4) does not confer any right on the
petitioner and there is no constitutional duty imposed on the government to
make reservation for Scheduled Castes and Scheduled Tribes, either at the
initial stage or at the stage of promotion.
In
other words, Article 16(4) is an enabling provision and confers discretionary
power on the State to make a reservation of appointment in favour of backward
class of citizens which, in its opinion, is not adequately represented in the
services of the State." The above principle was reiterated in two three
Judge Bench judgments in P&T SC/ST Employees' Welfare Association vs. Union
of India 1988 (4) SCC 147; and in SBI SC/ST Employees Welfare Association vs.
State Bank of India 1996 (4) SCC 119. In fact, as long
back as in 1963, in M.R.Balaji vs. State of Mysore 1963 Suppl. (1) SCR 439 (at
p.474) which was decided by Five learned Judges, the Court said the same thing
in connection with Articles 15(4) and Article 16(4). Stating that Article 15(4)
and 16(4) were only enabling provisions, Gajendragadkar, J. ( as he then was )
observed:
"In
this connection, it is necessary to emphasise that Article 15(4) like Article
16(4) is an enabling provision, it does not impose an obligation, but merely
leaves it to the discretion of the appropriate government to take suitable
action, if necessary." Unfortunately, all these rulings of larger Benches
were not brought to the notice of the Bench which decided Ashok Kumar Gupta and
Jagdish Lal and to the Benches which followed these two cases. In view of the
overwhelming authority right from 1963, we hold that both Articles 16(4) and
16(4A) do not confer any fundamental rights nor do they impose any
constitutional duties but are only in the nature of enabling provision vesting
a discretion in the State to consider providing reservation if the
circumstances mentioned in those Articles so warranted. We accordingly hold
that on this aspect Ashok Kumar Gupta, Jagdishlal and the cases which followed
these cases do not lay down the law correctly. Power is coupled with duty:
Learned senior counsel for the reserved candidates, Sri K.Parasaran however
contended that Article 16(4) and Article 16(4A) confer a power coupled with a
duty and that it would be permissible to enforce such a duty by issuing a writ
of mandamus.
Reliance
for that purpose was placed upon Comptroller and Auditor General of India, Gian Prakash vs. K.S.Jagannathan
[1986 (2) SCC 679] and also on Julius vs. Lord Bishop (1880) 5 AC 214 which
case was followed by this Court in Commissioner of Police vs. Gordhandas Bhanji
[1952 SCR 135]. We are unable to agree with the above contention. As pointed
out earlier, the Constitution Bench of this Court in that Article 16(4)
conferred a discretion and did not create any constitutional duty or
obligation. In fact, in that case, a mandamus was sought to direct the
Government of India to provide for reservation under Article 16(4) in certain
Class I and Class II services. The Government stated that in the context of
Article 335 and in the interests of efficiency of administration at those
levels, it was of the view that there should be no reservation. The said
opinion of the Government was accepted by this Court as reasonable and mandamus
was refused. Even in M.R. Balaji's case, the Constitution Bench declared that
Article 16(4) conferred only a discretion. It is true that in Jagannathan's
case, the three Judge Bench issued a mandamus, after referring to Article 142,
that the Government must add 25 marks to SC/ST candidates who had taken the
S.A.S.
Examination
for promotion as Sections Officers and also that, in future, a reduced minimum
marks must be provided and announced before the examination. The Court also
observed that the Department had not passed orders as per a general O.M. of the
Government dated 21.9.1977. But the attention of the Court was not drawn to the
judgment of the Constitution Bench in C.A. Rajendran's case and other cases to
which we have referred earlier. Further, if the State is of the opinion that in
the interests of efficiency of administration, reservation or relaxation in
marks is not appropriate, then it will not be permissible for the Court to
issue a mandamus to provide for reservation or relaxation. We also note that in
Superintending Engineer, Jagannathan's case was followed and reference was made
to Article 16(4) and Article 16(4A) and to the principle that the same could be
enforced by the Court. But we may point out that even in Kuldeep Singh's case,
no reference was made to C.A. Rajendran and other cases. We, accordingly, hold
that the view in Jagannathan and Kuldeep Singh's cases that a mandamus can be
issued either to provide for reservation or for relaxation is not correct and
runs counter to judgments of earlier Constitution Benches and, therefore, these
two judgments cannot be said to be laying down the correct law.
Balancing
of fundamental rights under Article 16(1) and the rights of reserved candidates
under Articles 16(4) and 16(4A):
Having
noticed that Article 16(1) deals with a fundamental right and Article 16(4) and
Article 16(4A) are enabling provisions, we next come to the need for balancing
Article 16(1) and Articles 16(4) and 16(4A). Such a balancing principle was
enunciated by the Constitution Bench (1) SCR 439 wherein it was stated that the
interests of the reserved classes must be balanced against the interests of
other segments of society. In Indira Sawhney's case, Jeevan Reddy, J. explained
how the fundamental right of the citizens as declared in Article 16(1) has to
be balanced against the claims of the reserved candidates in Article 16(4). The
learned Judge stated: (See page 734 para 808):
"It
needs no emphasis to say that the principal aim of Articles 14 and 16 is
equality and equality of opportunity and that clause (4) of Article 16 is a
means of achieving the very same objective. Clause (4) is a special provision -
though not an exception to clause (1). Both the provisions have to be
harmonised keeping in mind the fact that both are restatements of the
principles of equality enshrined in Article 14. The provision under Article
16(4) - conceived in the interests of certain sections of society - should be
balanced against the guarantee of equality enshrined in clause (1) of Article
16 which is a guarantee held out to every citizen and to the entire
society". The same principle was reiterated in the judgment of the
Constitution Bench in Post Graduate Institute of Medical Education and Research
vs. Faculty Association 1998 (4) SCC 1 after referring to several earlier
cases. It was stated :
(P.22)
" The doctrine of equality of opportunity in clause (1) of Article 16 is
to be reconciled in favour of backward classes under clause (4) of Article 16
in such a manner that the latter while serving the cause of backward classes
shall not unreasonably encroach upon the field of equality".
In
Ajit Singh, in the context of seniority for the roster point promotees it was
observed : (p.733 of SCC) "For attracting meritorious and talented persons
into service, 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...." The above
approach in Balaji in 1963, Indira Sawhney in 1991 later in Ajit Singh in 1996
and in PGI Case in 1998 for striking a balance between the individuals rights
under Articles 14 and 16(1) on the one hand and affirmative action under
Articles 16(4) & 16(4A) on the other, appears to us to be on the same lines
as the approach of the U.S. Supreme Court under the Equal Protection Clause
493). In that case, it was stated that while dealing with the affirmative
action taken in favour of African-Americans, the Equal Protection Clause which
conferred individual rights have to be kept in mind by the Courts. Justice
Sandra Day O'Connor observed:
"The
Equal Protection Clause of the Fourteenth Amendment provides that "No
State shall ....deny to any person within its jurisdiction the equal protection
of the laws" (emphasis added). As this Court has noted in the past, the
"rights created by the first section of the Fourteenth Amendment are, by
its terms, guaranteed to the individuals. The rights established are personal
rights" The same learned Judge, Justice Sandra Day O'Connor, stated again
recently in Adarand Constructors Inc to affirmative action, the Court would
launch an inquiry to ensure that the "personal right to equal protection
of the laws has not been infringed." Thus this Court has to ensure that,
in matters relating to affirmative action by the State, the rights under
Articles 14 and 16 of the individual to equality of opportunity, are not
affected. A reasonable balance has to be struck so that the affirmative action
does not lead to reverse discrimination. We shall here refer to the speech of
Dr. Ambedkar in the Constituent Assembly:
"Supposing,
for instance, we were to concede in full the demands of these communities who
have not been so far employed in the public services to the fullest extent,
what would really happen is, we shall be completely destroying the first
proposition upon which we are all agreed, that there shall be equality in
opportunity".
Krishna
Iyer,J. also cautioned in Akhil Bharatiya (1) SCC 246 ( at P.286) that
"care must be taken to see that classification is not pushed to such an
extreme point as to make the fundamental right to equality cave in and
collapse". The learned Judge relied upon Triloki Nath Krishna Iyer, J.
stated in Soshit Karamchari Case, (para 102) that reservations cannot lead to
an `overkill'. At page 301, His Lordship said: "The remedy of
'reservations' to correct inherited imbalances must not be an overkill".
In
other words, affirmative action stops where reverse discrimination begins. (i)
Efficiency of administration and Article 335: It is necessary to see that the
rule of adequate representation in Article 16(4) for the Backward Classes and
the rule of adequate representation in promotion for Scheduled Castes and
Scheduled Tribes under Article 16(4A) do not adversely affect the efficiency in
administration. In fact, Article 335 takes care to make this an express
constitutional limitation upon the discretion vested in the State while making
provision for adequate representation for the Scheduled Castes/Tribes.
Thus,
in the matter of due representation in service for Backward Classes and
Schedule Castes and Tribes, maintenance of efficiency of administration is of
paramount importance.
As
pointed in Indira Sawhney, the provisions of the Constitution must be
interpreted in such a manner that a sense of competition is cultivated among
all service personnel, including the reserved categories. (ii) Reservation and
effect of the Roster Point reservation: It must be noted that whenever a reserved
candidate goes for recruitment at the initial level (say Level 1), he is not
going through the normal process of selection which is applied to a general
candidate but gets appointment to a post reserved for his group. That is what
is meant by `reservation'. That is the effect of `reservation'. Now in a case
where the reserved candidate has not opted to contest on his merit but has
opted for the reserved post, if a roster is set at Level 1 for promotion of the
reserved candidate at various roster points to level 2, the reserved candidate
if he is otherwise at the end of the merit list, goes to Level 2 without
competing with general candidates and he goes up by a large number of places.
In a roster with 100 places, if the roster points are 8, 16, 24 etc. at each of
these points the reserved candidate if he is at the end of the merit list, gets
promotion to Level 2 by side-stepping several general candidates. That is the
effect of the roster point promotion. It deserves to be noticed that the roster
points fixed at Level 1 are not intended to determine any seniority at Level 1
between general candidates and the reserved candidates. This aspect we shall
consider again when we come to Mervyn Continho vs.
Collector
of Customs [1966 (3) SCR 600] lower down. The roster point merely becomes
operative whenever a vacancy reserved at Level 2 becomes available. Once such
vacancies are all filled, the roster has worked itself out.
Thereafter
other reserved candidates can be promoted only when a vacancy at the reserved
points already filled arises.
That
was what was decided in R.K.Sabharwal vs. State of Punjab. (iii) Seniority of
roster promotees: Question is whether roster point promotions from Level 1 to
Level 2 to reserved candidates will also give seniority at Level 2? This is the
crucial question. We shall here refer to two lines of argument on behalf of the
reserved candidates.
Ajit
Singh was an appeal from the judgment of the Full Bench Secretary to Govt.
Punjab Education Department, 1989 (4) S.L.R. 257. In that case, reliance was
placed by the reserved candidates on a general Circular dated 19.7.69 issued by
the Punjab Government which stated that the roster point promotions would also
confer seniority. In fact, while dismissing the Writ petitions filed by the
general candidates the High Court declared that the State was obliged to count
seniority of the reserved candidates from the date of their promotion as per
the Circular dated 19.7.69. The judgment of the Full Bench was reversed by this
Court in Ajit Singh in the appeal filed by the general candidates. That
resulted in the setting aside of the above declaration regarding seniority of
roster point promotees as stated in the Punjab circular dated 19.7.69.. But
before us, reliance was placed by the reserved candidates as was done in
Jagdish Lal, upon the general seniority Rule contained in various Punjab
Service Rules applicable in the Civil Secretariat, Education, Financial
Commissioner, etc.
Departments
which Rules generally deal with method of recruitment, probation, seniority and
other service conditions. All these Rules provide a single scheme for
recruitment by promotion on the basis of seniority- cum-merit and then for
seniority to be determined in the promotional post from the date of
"continuous officiation", whenever the promotion is as per the method
prescribed in those Rules. It is on this seniority rule relating to `continuous
officiation' at the promotional level that reliance was placed before us by the
reserved candidates, as was done in Jagdish Lal. Question is whether roster
points promotees can rely on such a seniority rule? In this context it is
necessary to remember two fundamental concepts.
(a)
Statutory Rules relating to promotion and seniority:
We
shall take up the rules in one of these Services in Punjab - namely the rules
concerning Ajit Singh in which the present IAs have been filed.
There
are three sets of Rules for Class I, II and III Services. The Punjab
Secretariat Class III Service Rules, 1976 deal with the posts of clerk(Level
1), Assistant(Level 2) and Superintendent(Grade II)(Level 3).
At
each of these two levels 1 and 2, there is a roster which implements
reservation. The reservation is by way of the circular dated 19.7.1969 in
Punjab. For promotion from level 1 to 2 and from Level 2 to Level 3, the
employees are respectively governed by Rule 7 for promotion and by Rule 9 for
seniority. It is provided in proviso(iii) to Rule 7(1) that all promotions
shall be made by selection on the basis of seniority-cum-merit and no person
shall have a right of promotion on the basis of seniority alone. Rule 9 speaks
of seniority from the date of continuous officiation.
The
Civil Secretariat Service, Class-II Service rules, 1963 deal with
Superintendents(Grade I) i.e. Level 4 and Rule 8(2) states that promotion to
the above posts in Class II is by the method of seniority-cum-merit and Rule 10
states that seniority is to be counted from date of continuous officiation.
Above Class II is class I which consists of posts of Under Secretary(Level 5)
and Deputy Secretary(Level 6). Rule 6(3) of the Punjab Civil Secretariat (Class
I) Rules, 1974 refers to promotion by seniority-cum-merit while Rule 8 thereof
speaks of seniority by continuous officiation. For promotion to Class II and
Class I, there is no roster promotion i.e. no reservation.
There
is reservation only in Class III posts by way of roster at two stages.
It is
clear, therefore, that the seniority rule relating to `continuous officiation'
in promotion is part of the general scheme of recruitment -by direct recruitment,
promotion, etc.- in each of the Services in Class I, II and III - and is based
upon a principle of equal opportunity for promotion. In our opinion, it is only
to such promotions that the seniority rule of `continuous officiation' is
attracted.
(b)
Statutory rule of seniority cannot be delinked and applied to roster-point
promotions:
As
stated above in Ajit Singh, the promotion rule in Rule 7(1) proviso (iii) and
the seniority Rule in Rule 9 under the 1976 Rules for Class III form a single
scheme and are interlinked. In other words, only in case the officers have
reached the level of Superintendents Grade II(Level 3) in the manner mentioned
in the Rule 7(1) proviso (iii) by competition between the Assistants (Level 2)
and on consideration of their cases on the basis of seniority-cum-merit, can
the seniority Rule in Rule 9 relating to continuous officiation in the post of
Superintendent Grade II (Level 3) be applied. Here there is a roster in Ajit
Singh for promotion from Level 1 to Level 2 and from Level 2 to Level 3. The
consequence is that in the case of roster point promotees, the said candidates
who get promoted as Superintendents Grade II (Level 3) as per the roster, -
having not been promoted as per Rule 7(1) proviso (iii) of the 1976 Rules i.e.
upon consideration with their cases on the basis of seniority-cum-merit at the
Assistant level (Level 2), -they cannot rely upon Rule 9 of the 1976 Rules
dealing with seniority from the date of "continuous officiation" as
Superintendents Grade II(Level 3). It is not permissible to delink the
seniority Rule from the recruitment Rule based on equal opportunity and apply
it to promotions made on the basis of the roster which promotions are made out
side the equal opportunity principle. The proper balancing of rights: In the
light of the above discussion, the proper balancing of the rights, in our view,
will be as follows.
The
general candidates who are senior at Assistants' level(Level 2) and who have
reached Superintendent Grade-II(Level 3) before the reserved candidate moved to
Level 4(Supdt. Grade- I), will have to be treated as senior at the level 3
also(Supdt. Grade-II) and it is on that basis that promotion to the post of
Level 4 must be made, upon first considering the cases of the senior general candidates
at Level 3. If the cases of the senior general candidates who have reached
Level 3 though at a latter point of time, are not first considered for
promotion to Level 4, and if the roster point promotee at Level 3 is treated
senior and promoted to level 4, there will be violation of Article 14 and 16(1)
of the Constitution of India. Such a promotion and the seniority at Level 4 has
to be reviewed after the decision of Ajit Singh. But if reserved category
candidate is otherwise eligible and posts are available for promotion to Level
4, they cannot be denied right to be considered for promotion to Level 4,
merely because erstwhile seniors at the entry levels have not reached Level 3.
What we have stated above accords, in fact, with what was actually stated in
Ajit Singh ( 1996(2) SCC 715). In that case, N.P. Singh, J observed ( P. 731):
"It
also cannot be overlooked that for the first promotion from the basic grade,
there was no occasion to examine their merit and suitability for
promotion".
That,
in our view, is the correct approach for balancing the fundamental rights under
Article 14 and Article 16(1) on the one hand and the provisions relating to
reservation in Article 16(4) and Article 16(4A).
Was
Jagdish Lal correctly decided:
Learned
senior counsel for the reserved candidates however relied upon Jagdish Lal to
contend that the roster promotees can count seniority in the promoted post from
the date of continuous officiation as against senior general candidates
promoted later. On the other hand, the learned senior counsel for the general
candidates contended that the said decision does not lay down the law
correctly. We shall, therefore, have to refer to Jagdishlal. We were initially
of the view that it may not be necessary to go into the correctness of Jagdish
Lal, and that we could distinguish the same on the ground that all the reserved
candidates there had got further promotions from the promotional level of
Dy.Superintendents* before the general candidates reached that Level. But from
the table set out in Jagdishlal, it would be noticed that in that case,
Jagdishlal, the general candidate, reached the post of Deputy Superintendent on
27.10.87 before the reserved candidate H.S. Hira was further promoted as
Superintendent on 27.5.88. Similarly, Ram Dayal, another general candidate got
promoted as Deputy Superintendent
_____________________________________________________________ * In Jagdishlal,
the hierarchy of posts is Clerk, Assistant, Deputy Superintendent,
Superintendent, etc.
____________________________________________________________
on 16.1.89 before the reserved candidates Sant Lal and Ajmer Singh got promoted
as Superintendent on 8.2.90 and 1.7.90.
In
that view of the matter, it becomes necessary to go into the correctness of
Jagdish Lal on merits. As we would presently show, in Jagdishlal, the seniority
rule which referred to continuous officiation and which applied to promotions
made after providing equal opportunity as per rules - was delinked from the
promotion rule and applied to roster promotees, which, in our view, was the
main reason for arriving at a different result. Jagdish Lal arose from Haryana.
The Haryana Education Directorate (State Service Class III) Rule 1974 provided
for recruitment to the posts of clerk (Level 1), Assistant (Level 2) and Deputy
Superintendent(Level 3). Rule 9(3) stated that all promotions would have to be
made by selection based on merit and taking into consideration seniority but
seniority alone would not give any right to such promotions. Rule 11 provided that
seniority would be counted from the date of "continuous officiation".
The Court held in Jagdishlal that the roster promotees who were promoted to
Level 3 could count their seniority from the date of continuous officiation in
that level in view of Rule 11. From Level 1 to Level 2 and from Level 2 to
Level 3, the rosters operated. From the level beyond Level 3, the posts were
Superintendent, Budget Officer, Assistant Registrar and Registrar and were
governed by the Haryana Education Department (State Service, Group B) Rule,
1980, and there was no reservation. In those Rules also, Rule 9(3) stated that
all promotions would have to be made by selection based on merit and taking
into consideration seniority but seniority alone was not to give any right to
such promotion.
Rule
11 of the 1980 Rules also stated that seniority would count from the dates of
continuous officiation. Thus, in the Class III as well as Class II(Group B)
Services, the "continuous officiation" rule was interlinked with the
promotion rule based on equal opportunity, as in Ajit Singh, and formed a
single scheme. The Court in Jagdish Lal delinked Rule 11 from the recruitment
rules and applied the same to the roster promotees. For the reasons given
already in regard to Ajit Singh, we hold that Jagdishlal arrived at an
incorrect conclusion because of applying a rule of continuous officiation which
was not intended to apply to the reserved candidates promoted at roster points.
The
various rulings relied upon in Jagdishlal do not, in our opinion, support the
conclusions arrived at in that case. Some of these rulings were those where it
was held that mere empanelment in a seniority list would not confer a right to
promotion. Some other cases relied upon were cases where it was held that mere
chances of promotions were not `conditions of service' which were protected. So
far as the cases which held that mere inclusion of a name in a panel did not
create any right to promotion, there could be no quarrel with the said
proposition. So far as the cases like State of Maharashtra vs. Chandrakant
Kulkarni 1981 (4) SCC 130, Mohd. Shujat Ali vs. Union of India 1975 (3) SCC 76,
which held that mere chances of promotion were not conditions of service, they
were not applicable to the present situation. It must be noticed that those
cases arose under the States Reorganisation Act, 1956 where the words
'conditions of service' were used in Section 115(7) of that Act. The factual
position there was that when employees of two different States were integrated,
their seniority in the parent States necessarily got affected.
The
proviso to Section 115(7) of the Act required that, if the State to which they
were allotted wanted to alter their "conditions of service", previous
permission of the Central Government was necessary. It was in that context that
it was held that mere chances of promotions were not conditions of service and
there was no question of seeking the sanction of the Central Government if
chances of promotion were affected after allotment to a new State. In fact, the
Central Government, had issued orders, under Section 115(7) that various other
conditions of service in the parent State like salary, leave etc. alone would
remain protected. The above cases were therefore not in point. The case in
Mohd.
Bhakar
vs. Y.Krishna Reddy 1967 SLR 753(SC) was in fact overruled in Mohd. Shujat Ali.
So far as K.Jagadeesan vs.
Union
of India 1990 (2) SCC 228 was concerned, it related to a case where a person's
seniority stood affected by an amendment to the Rules and it was held that that
did not make the rule retrospective. Syed Khalid Rizvi vs. Union of India 1993
Suppl. (3) SCC 575 no doubt said that there was no "right to
promotion" but even that case accepted that there was a right to be
"considered" for promotion. So far as Akhil Bhartiya Soshit
Karamchari Sangh vs. Union of India 1996 (6) SCC 65 to which one of us
(G.B.Pattanaik,J.
was
party). That case, in our view, was correctly decided on facts because by the
date the general candidate reached the higher category, the reserved category
promotee who reached that category earlier had got a further promotion.
Reference
was also made in Jagdish Lal, to A.K. Bhatnagar vs. Union of India 1991 (1) SCC
544. That was a case where adhoc recruits were regularised subsequently and were
placed below regular recruits. It was held that their past adhoc service could
not be taken into account since they remained out of the cadre until
regularisation. That case, in our view, has also no application. Jagdish Lal
is, therefore, not correctly decided.
Observations
in Ashok Kumar Gupta which run contrary to Indira Sawhney & Sabharwal do
not lay down correct law: We may state that there are various other
observations made in Ashok Kumar Gupta and we find that they run counter to the
principles laid down by the nine Judge Bench in Indira Sawhney and the
Constitution Bench in Sabharwal. In our view, these observations must,
therefore, be treated as not laying down the correct law. Learned counsel for
the parties were in agreement with this live of approach. We, therefore, leave
Ashok Kumar Gupta and do not deal with it any further.
Was
Virpal not decided correctly, as contended by reserved candidates?:
We
then come to another important point that was argued by learned senior counsel
Sri K.Parasaran. It was argued that in Virpal, the Court was concerned with a
circular of the Railways dated 31.8.82 which permitted discounting the
seniority of roster promotee from the date of continuous officiation and which
also stated that his seniority should be as per the ranking in the basic level.
The
Court in Virpal held that it was "permissible" for the Government to
do so. It was argued by Sri K.Parasaran that it was one thing to say that it
was "open" to the Government to deprive the roster promotee of the
benefit of such seniority from the date of roster promotion but it was another
thing to say that even if the Government thought fit to give benefit of
seniority on the basis of roster promotion, the same should be tested on the
anvil of Article 14 and 16(1) of the Constitution of India. Thus, it was argued
that Ajit Singh went far beyond Virpal when it held that any circular, order or
rule granting seniority to the roster promotee would be violative of Article 14
and 16(1) of the Constitution of India. That brings us to a close examination
of the main principle laid down in Virpal and in Ajit Singh. We shall first
take up Virpal. In Virpal, the facts were that the Court was concerned with a
circular dated 31.8.82 of the Railways which stated that the seniority of the
roster promotees would be based on their panel position in the initial grade.
The case involved two services - Guards and Station Masters. Railways Guards
would be recruited as Guard C and promoted as Guard B, then as Guard A and as
Guard (Special). Promotion was to be by rule of seniority-cum-suitability. In
other words, these were non-selection posts. On the other hand, in the case of
Station Masters, a selection process was involved for purposes of promotion.
It is
argued by the reserved candidates that Virpal was not correctly decided because
in Virpal, the Court went by a printed Brochure and committed a factual mistake
in thinking that the circular of the Railways itself required the panel
seniority at the initial level to be reflected at higher levels. The same point
was raised by the Indian Railways in its intervention applications IAs
10-12/98. It was argued that in Virpal the Court erred in not noticing the full
text of the Circular dated 31.8.82 which, showed that, as per para 319 of the Railway
Establishment Code, Vol.1, panels were required to be prepared at each level.
We
have examined Virpal closely in the light of the above objection. In our view,
the above criticism is wholly unjustified and is based upon a wrong mixing up
of the separate conclusions arrived at in Virpal in regard to two different
sets of employees. As stated earlier, the Court was there concerned with posts
of Railway Guards and also with posts of Station Masters. The former ( i.e.
Guard
posts) were posts governed by the rule of seniority-cum-suitability. In other
words, for Guards, seniority would govern subject to omission of those found
unsuitable for promotion. On the other hand, Station Masters' posts were
governed by selection at every level of promotion. The learned Judge, Justice
Jeevan Reddy, while dealing initially with the promotions of Guards ( See P.702
of SCC) from C Grade to B, from B to A, and from A to Special Grade A pointed
out that the seniority- cum-fitness rule applicable in their cases resulted in
the seniority at the Level of Guard C in the initial panel being reflected from
stage to stage, subject to fitness. When the learned Judge came to discuss the
issues relating to Station Masters,(See SCC P.711) where merit and selection
were involved, the learned Judge stated that separate panels were to be
prepared at every level and also that those in an earlier panel would be senior
to those in a latter panel.
In
either situation, it was laid down that the reserved candidates could not count
their 'seniority' on the basis of roster point promotion. Learned Additional
Solicitor General, Sri C.S. Vaidyanathan, attempted to argue that what the
Court said in para 25, 26 was wrong as it assumed that seniority at Level 1
would get reflected in the levels higher up and what is stated in para 46, 47
in regard to one previous panel having priority over a later panel would apply
in all cases, even to Guards referred to in paras 25,
26.
The said contention, in our view, is based on a mixing up of the cases of
Station Masters and Guards who were governed by different rules of promotion.
We are satisfied that there is no factual mistake committed in the judgment in
Virpal. In fact, subsequent to Virpal, the Railways accepted the judgment and
issued an order on 28.2.1997 both in regard to non-selection and selection
posts. The point raised in the IAs by the Railways is therefore liable to be
rejected. We shall refer to these IAs again in our separate judgment relating
to individual cases. Did Ajit Singh go beyond Virpal and if so, was it
correctly decided? We now deal with the points raised by the reserved
candidates against the correctness of Ajit Singh. It was urged by learned
senior counsel Sri K.Parasaran, that Ajit Singh went far beyond Virpal. It is
pointed out that in Virpal, this Court was concerned with a circular of the
Railways which stated that the roster promotees could not, on that count, claim
seniority. In that context, Jeevan Reddy, J. no doubt stated in Virpal ( See
1995 (6) SCC 684 at 701) as follows:
"In
short, it is open to the State, if it is so advised ...... It is permissible
for the State to do so." But, according to learned senior counsel, Sri K.
Parasaran, in Ajit Singh, this Court went further and stated that any rule,
circular or order which gave seniority to the roster point promotees was bad
and that this view is not correct.
Our
attention is invited to 1996 (2) SCC 715 ( at 732) as follows:
"According
to us, this question cannot be examined only on the basis of any circular,
order or rule issued or framed by the State Government or the Union of India.
This has to be tested on the basis of our constitutional scheme of Articles 14
and 16 of the Constitution." In our opinion, there is no conflict in the
principles laid down in these two judgments, nor is there anything wrong in the
above elucidation of the law. In Virpal it was not necessary for the Court to
go into the question whether any circular - if it gave seniority to the roster
point promotees (reserved candidates) - could be treated as valid. But, in Ajit
Singh which was an appeal against the Full Bench Judgment in Jaswant singh 1989
(4) SLR 257, this Court was dealing with a declaration made by the Full Bench
for implementation of the Punjab circular dated 19.7.69 (see para 29 of Full
Bench) which positively declared that the "roster points were seniority
points".
That
was why in Ajit Singh this Court had to consider the validity of such a
Circular. In Ajit Singh this Court held that the declaration granted in the
impugned judgment of the Full Bench in Jaswant singh on the basis of the Punjab
circular would be in conflict with Article 14 and Article 16(1). This Court had
therefore to lay down that any circular, order or rule issued to confer
seniority to the roster point promotees, would be invalid. Thus, the decision
in Ajit Singh cannot be found fault with. Does Indira Sawhney protect seniority
of promotees at roster point: Learned senior counsel Sri K.Parasaran contended
that Indira Sawhney permitted reservations in promotions for a further period
of 5 years and that during that period Article 16(4A) was incorporated in Part
III of the Constitution and, therefore, the concept of seniority attached to
the roster promotion, as per certain rulings then in force, must be deemed to
continue and deemed to be permissible in view of Article 16(4A). We may point
out that Indira Sawhney did not have to go into issues relating to seniority
and on the other hand it referred to the principle of balancing Article 16(4)
against the rights of the individual under Article 16(1). It is, therefore, not
possible to accept that the 5 year rule and Article 16(4A) would keep out the
applicability of Article 16(1) to test the validity of any circular, order or
rule which conferred seniority to the roster point promotees. Do principles in
Mervyn Continho 1966 (3) SCR 60 apply to reserved candidates? Does the roster
point for reserved candidates at Level 1 decide seniority at Level 1?
Considerable reliance was placed by learned senior counsel Sri D.D.Thakur and
Sri Raju Ramachandran on the decision of this Court in Mervyn Continho &
Others vs. Collector of Customs 1966 (3) SCR 600.
In
that case, the service was constituted from two sources, namely direct recruits
and promotees. Question of seniority arose at two levels - at the level of
Appraisers and at the level of Principal Appraisers. At the initial level of
Appraisers, there was a roster for determining the seniority of the direct
recruits and promotees. The direct recruits were placed first in the roster and
then the promotees alternatively at the basic level. The promotees who joined
service earlier questioned the above rule as being violative of their seniority
at the level of Appraisers in view of Article 16(1). This challenge was
negatived by this Court on the ground that such 'anomalies arise not on account
of there being no direct recruitment for several years' and the roster point
seniority was not opposed to the principle of equality of opportunity in
Government service. It was said that the anomaly arose out of the fortuitous
circumstance that in the particular service of Appraisers, for one reason or
other, direct recruitment had fallen short of the quota fixed for it. The Court
said: "we are not prepared to say that the rotational system of fixing
seniority itself offends equality of opportunity....". To this extent the
Court held against the promotees in regard to seniority at the basic level of
Appraisers. The point here is the roster points in the case of reserved
candidates do not determine seniority at the basic level.
Learned
senior counsel for the reserved candidates however relied upon the second part
of Mervyn which related to seniority at the next level of Principal Appraisers.
It was the contention of the direct recruits-respondents that here again the
seniority should be alternated between direct recruits and promotees as done at
the basic level, though there was no such rule. Here, the promotee Appraisers
contended that the seniority at the level of Principal Appraisers would be
governed by the rule of continuous officiation and that there can be no
rotation alternatively at this higher level on the basis of birthmarks at the
level of Appraisers. This plea of the promotees was accepted by this Court. The
point here is that once the roster at the level of Appraisers is one which
fixed seniority at level 1, promotions to Level 2 for Principal Appraisers,
have necessarily to be made on that basis. For fixing seniority at Level 2,
there is no question of placing direct recruits and promotees alternatively. It
has to be on the basis of date of promotion of each of the officers to Level 2,
irrespective of their birthmarks. The above decision in Mervyn cannot apply to
a case of reservation because the roster in Mervyn was intended to determine
seniority while the roster in the cases of reservation under Article 16(4) or
Article 16(4A) are not intended to determine seniority but are merely intended
to provide "adequate representation" at the promotional level. To
what extent, Hiralal, Karamchand and Kailash Chand Joshi's cases help the
reserved candidates? Learned senior counsel for the reserved candidates placed
strong reliance on three other decisions of this Court namely, State of Punjab
vs. Hira Lal 1970 (3) SCC 567, Karam Chand vs. Haryana State Electricity Board
1989 Suppl. (1) SCC 342 and Kailash Chand Joshi vs.
Rajasthan
High Court 1996 (1) SCALE 752. In Hira Lal's case decided by a three Judge
Bench, there was a circular issued by the Punjab Government providing, for the
first time, reservation in promotional posts. The 1st respondent who was a
general candidate senior to the reserved candidate (respondent 3) was not
promoted while the reserved candidate though junior, was promoted. The High
Court allowed the writ petition filed by the general candidate (1st respondent)
on the ground of violation of Article 16(1).
The
said judgment was set aside in view of the law laid down in the General
Manager, Southern Railway vs. Rangachari 1962 (2) SCR 586 that reservation was
permissible at the promotional level. In that case, the Court had no occasion
to consider any circular prescribing seniority to the roster promotees. That
case is therefore not in point.
Karamchand,
decided by a two Judge Bench was, no doubt, concerned with the question of
seniority of the roster point promotee. The appellant, who was from the
reserved category, belonged to the Haryana State Electricity Board and the
Haryana Government's circular dated 27.4.72 pointed out that the roster was
meant only for reservation and not for fixing inter-se-seniority and that
seniority depended upon the merit list prepared by the Public Service
Commission or Selection Board. But the appellant, the reserved candidate relied
upon Rule 9 of the Punjab PWD(Electricity Branch) Service Class III(Subordinate
Posts) rules, 1952 where Rule 9 provided seniority to be determined from the
date of "regular" promotion. The limited dispute was whether his case
fell within the "Exception" in Rule 9 which related to
"temporary" promotees who would not get seniority upon such temporary
promotion. The contention of the Board that he was a temporary promotee was not
accepted by this Court on the facts of the case. No question vis-a-vis a
general candidate arose. There are indeed certain observations that seniority
of the reserved candidate had to be counted from the date of regular promotion
which, in our opinion, are not correct. No question of Article 16(1) or
seniority as against a general candidate arose. That case is distinguishable.
In Kailash Chand Joshi the appellant, who was senior, belonged to the non-
reserved category in the cadre of Munsifs. The respondents 3 to 11 though
junior in that cadre to the appellant, were promoted as Civil Judges earlier on
the basis of roster. The general candidate (appellant ) got promoted as Civil
Judge later and claimed seniority in the cadre of Civil Judge. By that date the
roster promotee did not get any further promotion. This was not accepted by
this Court in view of Rule 11. There are two aspects of this decision. Firstly,
the Court did not notice that once the general candidate, the appellant, who
was senior to the respondents reached the level of Civil Judge, the position
would be different. Such a principle, in fact, came to be laid down shortly
thereafter in Virpal by the same learned Judge who decided Kailash Chand Joshi.
Secondly, it was not noticed that Rule 22 relating to seniority from the date
of continuous officiation was closely interlinked with the promotional Rule
based on equal opportunity. We may state that any observations in the above
cases that the roster promotees will get seniority over the senior general
candidates who reach that level later, (but before the further promotion of the
reserved candidate) cannot be accepted as correct in view of the legal position
stated earlier. A 'poignant scenario' in some cases: We next come to the
poignant scenario in several of the matters before us. Virpal referred to such
a scenario where all the 33 candidates who were to be considered for 11
vacancies were from the SC/ST category ( see P.710 of SCC). Before us, similar
facts are placed by the general candidates. The factual position is not
disputed, though certain reasons have been set out by both sides which none has
scientifically examined. It is to be noticed that : (i) in Ajit Singh itself, -
(see p.76 and PP.200-215, 232 of paper book) as on 30.9.94 out of 107 officers
working as Superintendent Grade I, the first 23 officers are from Scheduled
Castes. At the level of Under Secretaries, out of 19, the first 11 are from SC
category. In the category of Dy. Secretary, out of four, 2 are from SC
category. As on 30.9.94, the position was that at these levels, the percentage
was 22.5%, 54% and 67% respectively in the above categories. If the seniority
is to be counted as per the case of the reserved candidates, the position would
be that Dy. Secretaries would be 100% manned by Scheduled Castes, and Under
Secretaries would again be 100% manned by Scheduled Castes while
Superintendents Grade I would be so manned to the extent of 53%.
(ii)
In Jatinderpal Singh's case ( C.A.Nos. 316- 317/99) the top 134 positions of
Principals ( from Head Masters' source) would be from Scheduled Castes while
the top 72 positions ( from Head Mistress's source) would be from Scheduled
Castes. It is stated that " adding this to the number awaiting
promotions", the position would be that top 217 and 111 in these
categories would be Scheduled castes candidates - which would be 100% and 71% (
the posts being only 156 under each source). One does not know what will happen
in posts beyond Principal, if all persons in the zone are from SC/ST category.
(iii)
In Kamal Kant (SLP.4945/97 from Haryana ) as of today: (a) among Deputy
Secretaries, the first 8 posts are occupied by the reserved category (
Scheduled Castes and Backward Classes) (b) among Under Secretaries (Group A)
(officiating) 14 posts at the higher levels are occupied by the reserved
category.
The
above factual position is not, in fact disputed but it is said that this could
be because the roster was operated again and again till that was stopped after
Sabbarwal was decided, but no body has gone into the extent to which excess
roster operation has created such a situation.
In the
written submissions of learned senior counsel, Sri Raju Ramachandran dated 5.8.99,
such a situation of almost all top posts being manned by reserved candidates is
sought to be justified as being not constitutionally inhibited. In our view,
such a situation was never intended by the founding fathers. One should only
read the speech of Dr. Ambedkar in the Constituent Assembly as quoted in Indira
Sawhney (see pp.660-661 SCC)(referred to earlier).
We
may, however, make it clear that our decision in regard to the Article 16(1),
Article 16(4) and Article 16(4A) that the rule of "continuous officiation"
is applicable only to promotions made as per rules which give equal opportunity
- and not otherwise, -is independently arrived at on the basis of the
constitutional position and is in no way coloured or influenced by the above
facts mentioned by the general candidates. Our Conclusions on Points 1 and 2:
We, therefore, hold that the roster point promotees (reserved category) cannot
count their seniority in the promoted category from the date of their
continuous officiation in the promoted post, - vis- a-vis the general
candidates who were senior to them in the lower category and who were later
promoted. On the other hand, the senior general candidate at the lower level,
if he reaches the promotional level later but before the further promotion of
the reserved candidate-he will have to be treated as senior, at the promotional
level, to the reserved candidate even if the reserved candidate was earlier
promoted to that level.
We
shall explain this further under Point 3. We also hold that Virpal and Ajit
Singh have been correctly decided and that Jagdishlal is not correctly decided.
Point 1 and 2 are decided accordingly. Point 3: During the discussion under
this "catch-up" point - for purposes of convenience, - we take the
example of the cadres in Ajit Singh i.e. there is roster point promotion for
reserved candidates for promotion from Level 1 to Level 2 and from Level 2 to
Level 3. There is no roster for promotion from Level 3 to Level 4. Two 'catch
up' rules contended for by general candidates: Now, as stated earlier, the
counsel for the general candidates argued for acceptance of two catch-up rules.
.pa Extreme 'catch-up' rule: So far as the extreme contention of the general
candidates that at Level 3, the roster candidate must wait at Level 3 - before
being promoted to Level 4 - till the last senior general candidate at Level 1
reached Level 3, - we reject the same in as much as that will not amount to a
reasonable balancing of the rights of the candidates in the two groups. Nor do
we accept that posts must be kept vacant and no promotions of the roster
candidates be made. Other Catch-up rule: As accepted in Virpal ( see 1995(6)
SCC 684 at 702) and Ajit Singh (see 1996(2) SCC at P.729), we hold that in case
any senior general candidate at Level 2 (Assistant) reaches Level 3 (
Superintendent Grade II) before the reserved candidate (roster point promotee)
at Level 3 goes further up to Level 4 in that case the seniority at Level 3 has
to be modified by placing such a general candidate above the roster promotee,
reflecting their inter se seniority at Level 2.
Further
promotion to Level 4 must be on the basis of such a modified seniority at Level
3, namely, that the senior general candidate of Level 2 will remain senior also
at Level 3 to the reserved candidate, even if the latter had reached Level 3
earlier and remained there when the senior general candidate reached that Level
3. In cases where the reserved candidate has gone upto Level 4 ignoring the
seniority of the senior general candidate at Level 3, seniority at Level 4 has
to be refixed (when the senior general candidate is promoted to Level 4) on the
basis of when the time of reserved candidate for promotion to Level 4 would
have come, if the case of the senior general candidates was considered at Level
3 in due time. To the above extent, we accept the first part of the contention
of the learned counsel for the general candidates. Such a procedure in our view
will properly balance the rights of the reserved candidates and the fundamental
rights guaranteed under Article 16(1) to the general candidates.
No
difficulty in amending seniority list: One of the objections raised before us
and which appealed to the Full Bench in Jaswant Singh's case was that this
'catch up' principle would lead to frequent alteration of the seniority list at
Level 3. We do not find any difficulty in this behalf. The seniority list at
Level 3 would have only to be merely amended whenever the senior general
candidate reaches Level 3. Examples given by reserved candidates -do not create
any anomaly: Learned senior counsel Sri K.
Parasaran
and Sri Raju Ramachandran then adverted to a situation which according to them
might create serious problems if a senior general candidate is to be treated as
senior at the promotional level if he reaches that level before the roster
promotee goes further up. The example given refer to cases where after the
roster point promotee (reserved candidate) reaches the promotional level, there
is direct recruitment or recruitment by transfer at that promotional level.
Counsel submit that, if a senior general candidate is thereafter promoted and
placed above the reserved candidate, can he became senior to the direct recruit
and transferee? We do not find any anomaly. The direct recruit or transferee
who has no grievance against the reserved candidate who was already there can
have no grievance against a senior general candidate who has a superior claim,
in law, against the reserved candidate.
Even
if seniority of roster point promotee does not Count, experience of both groups
can be considered as part of merit for further promotion: Before we leave point
3, we may refer to another submission made by Sri K. Parasaran, learned senior
counsel for the reserved candidates. Learned counsel submitted that even if the
seniority of the reserved candidates had gone up to Level 3 earlier by the
roster at two levels 1 & 2 is not counted, still the 'experience' gained by
them at Level 3 well before the senior general candidate 'caught up' to that
Level, cannot be disregarded for purposes of promotion to Level 4. It is true
that the roster point promotee who has reached the promotional level 3 even if
he is not entitled to seniority would have gained considerable `experience' at
that level. That experience is, no doubt, of considerable relevance in
considering his case for further promotion to Level 4. But, at the same time,
it is to be noted that the general candidates had longer experience at level 1
and level 2 and have come up to level 3 by way of competition among the general
candidates at two stages. The said longer `experience' gained by them at the
lower levels 1 and 2 and the manner in which they have reached the level 3 to
which the reserved candidate had reached earlier, are also relevant factors.
The quality of the experience of these groups also needs to be kept in view.
The above principle would be an equitable balancing of the `experience' of the
candidates at various levels. It will be appropriate for the Government of
India or the State Government, as the case may be, to formulate guidelines by
way of administrative orders or by way of rules in this behalf. Point 3 is
disposed of accordingly. Point 4: This point concerns the
"prospective" operation of the two judgments in Sabharwal and Ajit
Singh. The point regarding these two cases directly arises in the appeals from
Punjab, Haryana and Rajasthan. The prospectivity of Virpal has been
particularly raised by learned Additional Solicitor General, Sri C.S.
Vaidyanathan, in the IAs filed by the Railways.
Once
again our approach here is to prevent reversions and avoid hardship to the
reserved candidates already promoted before the two judgments and at the same
time to try to balance the rights to seniority of the general candidates as
against those of the reserved candidates, in the light of Article 16(1).
Prospectivity of Sabharwal:
(i)
What Sabbarwal said in regard to "prospectivity":
Before
Sabharwal was decided on 10.2.1995, it appears that, in several services, the
roster was initially put in operation and promotions at all the roster points
were filled up. But the roster was once again operated on future vacancies,
even though all the required reserved candidates were in position at the
promotional level. It was not realised that once the roster points were all
filled, the roster had served its purpose and fresh members of the reserved
classes could claim promotional posts only if any promotional posts already
filled by the reserved candidates fell vacant. This misapplication of the
roster came to be removed for the first time on 10.2.95 when Sabharwal was
decided. Obviously, by that time several reserved candidates had got promotion
in excess of their quota because of the wrong "re- operation" of the
roster points. If the law declared in Sabbarwal were to be treated as
retroactive as is the normal position whenever the law is declared by this
Court, it would have resulted in reversions of several officers of the reserved
classes as their promotions before 10.2.95 by the fresh operation of the roster
as aforesaid was wholly unjustified. This Court in Sabbarwal therefore tried to
prevent such reversions and declared ( P. 753 of SCC, Para 11) as follows at
the end of the judgment:
"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".
(ii)
The rival contentions: To the extent of saving the reversions of those from
reserved classes promoted before 10.2.95 though such promotions were made
contrary to what was decided in Sabharwal, there is no serious dispute from the
side of the general candidates, but a contention is raised by the reserved
candidates who got such promotions in excess of the reservation quota that they
should in addition get the benefit of the seniority in the promotional post
even if such promotion made before 10.2.95 was wrong in view of what was
decided in Sabharwal . This plea is strongly opposed by the general candidates.
(iii) Our conclusion: It is axiomatic in service jurisprudence that any
promotions made wrongly in excess of any quota are to be treated as ad hoc.
This applies to reservation quota as much as it applies to direct recruits and
promotee cases.
If a
Court decides that in order only to remove hardship such roster point promotees
are not to face reversions, - then it would, in our opinion be, necessary to
hold - consistent with our interpretation of Articles 14 and 16(1) - that such
promotees cannot plead for grant of any additional benefit of seniority flowing
from a wrong application of the roster. In our view, while Courts can relieve
immediate hardship arising out of a past illegality, Courts cannot grant
additional benefits like seniority which have no element of immediate hardship.
Thus, while promotions in excess of roster made before 10.2.95 are protected,
such promotees cannot claim seniority. Seniority in the promotional cadre of
such excess roster point promotees shall have to be reviewed after 10.2.95 and
will count only from the date on which they would have otherwise got normal
promotion in any future vacancy arising in a post previously occupied by a
reserved candidate. That disposes of the 'prospectivity'' point in relation to
Sabharwal.
Prospectivity
of Ajit Singh:
Coming
to the 'prospectivity' of Ajit Singh, decided on 1.3.96 the question is in
regard to the seniority of the reserved candidates at the promotional level
where such promotions have taken place before 1.3.96. We have accepted, while
dealing with Points 1 and 2 that the reserved candidates who get promoted at
two levels by roster points ( say) from Level 1 to Level 2 and level 2 to level
3 cannot count their seniority at Level 3 as against senior general candidates
who reached Level 3 before the reserved candidates moved upto Level 4. The
general candidate has to be treated as senior at Level 3. Where, before
1.3.96,i.e.
the
date of Ajit Singh's judgment , at the level 3, there were reserved candidates
who reached there earlier and also senior general candidates who reached there
later, (but before the reserved candidate was promoted to level 4) and when in
spite of the fact that the senior general candidate had to be treated as senior
at level 3 (in view of Ajit Singh), the reserved candidate is further promoted
to level 4 - without considering the fact that the senior general candidate was
also available at level 3 - then, after 1.3.96, it becomes necessary to review
the promotion of the reserved candidate to level 4 and reconsider the same
(without causing reversion to the reserved candidate who reached level 4 before
1.3.96). As and when the senior reserved candidate is later promoted to level
4, the seniority at level 4 has also to be refixed on the basis of when the
reserved candidate at level 3 would have got his normal promotion, treating him
as junior to the senior Haryana ( 1997(10) SCC 474) has to be understood in the
manner stated above. We hold accordingly on Point 4. We dispose of the
clarification applications IAs 1 to 3/98 filed by the State of Punjab
accordingly and hold that Ajit Singh and Virpal lay down the correct law and
not Jagdish Lal, which must be considered as confined to its own peculiar
facts. We shall be passing separate orders in the Punjab, Haryana and Rajasthan
cases and Contempt Cases and other IAs on the basis of the principles laid down
in this judgment which, for convenience will be called Ajit Singh II. IAs Nos.1
to 3/98 are disposed of accordingly.
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