Appeal No 2544 of 1993
From the judgment and Order dated 75
1992 of the Calcutta High Court in Appeal No Nil of 1992 in Matter No 21 of 1991
PS Poti and SK Nandy for the Appellant
K Parasaran AK Ganouli GK Banerjee and
Som Mandal for the Respondent
RM SAHAI J
The short and the only question of law that arises for consideration in this appeal is if an appeal was maintainable against an order passed by the Learned Single Judge under Section 391 of the either under Section 392 of the Act or under the Letters patent jurisdiction
Facts are not in dispute
Since the State did not appoint any arbitrator as provided for in clause 25 of the agreement despite letters by the respondent to the Chief Engineer Public Works Department PWD and the Secretary PWD the respondent approached the High Court and a Learned Single Judge by order dated 6th September 1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one Shri DK Roy Chowdhury to act as the sole arbitrator as suggested by the respondent
Against this order State filed an appeal which has been dismissed by the Division Bench upholding the objection of the respondent as not maintainable
It has been held that the appeal was not maintainable either under Section 392 or under Letters Patent
It is the correctness of this view that has been assailed in this appeal
Section 39 of the came up for consideration in Union of India vs Mohindra Supply Company 19621 3 SCR 497
The Court after going into detail and examining various authorities given by different High Courts held that no second appeal lay under Section 39 2 against a decision given by a Learned Single Judge under Section 391
In respect of the jurisdiction under Letters Patent the Court observed that since was a consolidating and amending act relating to arbitration it must be construed without any assumption that it was not intended to alter the law relating to appeals
The Court held that in view of bar created by sub section 2 of Section 3 9 debarring an second appeal from an order passed in appeal under sub section 1 the conclusion was 643 inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39 
Therefore so far the second part is concerned namely the maintainability of the appeal under Letters Patent it stands concluded by this decision
The Learned counsel for the appellant vehemently argued that since the decision by the Supreme Court was in respect of an appeal directed against an order passed by a Learned Single Judge in exercise of appellate jurisdiction no second appeal lay but that principle could not be applied where the order of Learned Single Judge was passed not in exercise of appellate jurisdiction but original jurisdiction
The argument appears to be without any substance as Sub section 1 of Section 39 which is extracted below 1 An appeal shall lie from the following orders passed under this Act and from no others to the Court authorised by law to hear appeals from original decrees of the Court passing the order An order i superseding an arbitration ii on an award stated in form of a special case iii modifying or correcting an award iv filing or refusing to file an arbitration agreement v staying or refusing to stay legal proceedings where there is an arbitratio n agreement vi setting aside or refusing to set aside an award Provided that the provisions of this section shall not apply to any order passed by Small Cause Court
2 No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or take away any right to appeal to the Supreme Court
 644 provides that an appeal could lie only from the orders mentioned in the subsection itself Since the order passed by Learned Singe Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the Learned Single Judge Reliance was placed on certain orders passed by this Court and it was urged that settlement of dispute under clause 25 of the agreement being in exclusive domain of the Chief Engineer the High Court was not empowered to appoint anyone else
The submission is devoid of any merit
It is not made out from the agreement
Rather clause 25 itself permits appointment of another arbitrator if the Chief Engineer fails or omits to act as such
Relevant portion of the agreement is extracted below Should the Chief Engineer be for any reason unwiling or unable to act as such Arbitrator such questions and disputes shall be referred to an Arbitrator to be appointed by the Arbitrator shall be final conclusive and binding on all the parties to this contract
 In one of the decisions given by this Court the order of the High Court was set aside as the dispute being technical in nature the appointment of anon technical arbitrator was not justified
Here in this the High Court has appointed a retired Chief Engineer and not a non technical man
No allegation has been made against him
Therefore the order of the learned Single Judge also does not suffer from any infirmity
In the Circumstances the view taken by the Division Bench dismissing the appeal as not maintainable appears to be well founded
The appeal accordingly fails and is dismissed with costs
SK Appeal dismissed


Summary:
Recruitment to the Punjab Superior Judicial Service was governed by the Punjab Superior Judicial Service Rules 1963
Rule 8 A inserted in the said rules by notification dated June 14 1977 provided that instructions issued by the State Government from time to time in relation to reservation of appointments for posts for Scheduled Castes and Backward Classes were applicable for appointments to posts in the Service
The Secretary to the Government of Punjab Welfare of Scheduled Castes and Backward Classes Department by letter dated June 6 1974 Informed all Heads of Department etc
that it had been decided to increase the percentage of reservation in direct recruitment in all services from 20 to 25  in the case of members of Scheduled Castes and from 2 to 5  in the case of members belonging to Backward Classes and Indicated the vacancies to be reserved for the members of Scheduled Castes in a lot of 100 vacancies and specified the points
It also directed that the Roster already existing would not be abandoned but would now be maintained in continuation from the vacancy in the existing Roster last filled up according to the new pattern of reservation
Circular dated November 19 1974 made provision for carrying forward of reservation for members of Scheduled CastesBackward Classes and directed that the reservation should be carried forward form vacancy to vacancy in the same block until a Scheduled Caste or a Backward Class person is appointed or promoted in the same block and that the reservation should be carried from vacancy to vacancy in each Mock and from block to block until the carried forward vacancies are filled up
594 By letter dated May 51975 the Secretary to the Government Welfare Department Communicated to all Heads of Department  that the Government has decided that henceforth 50 vacancies of the quata reserved for Scheduled Castes should be offered to Balmikis and Mazhbi Sikhs as a first preference from amongst the Scheduled Castes candidate 
The Under Secretary Welfare Department Reservation Cell by his letter dated April 81980 clarified the position with regard to the implementation of instructions regarding reservation for Mazhbi Sikhs and Balmikis contained in the aforesaid letter dated May 51975 the Clarification was to the effect that  1 the combined merit list can be disturbed while giving appointment to the candidate belonging to Balmikis and MazhbiSikhs ii the first reserved vacancy can he offered to Balmikis and Mazhbi Sikhs although their name may be below in the merit list and iii on the basis of 50 reservation Bal mikis and Mazhbi Sikhs 135 and so on reserved vacancies shall go to the candidates of these castes if available and 246 and so on reserved vacancies shall go to other Scheduled Castes candidates
After introduction of Rule 8 A in the Punjab Superior Judicial Service Rules four persons were appointed by way of direct recruitment to the Service in the year 1979
One of them Shri Balwant Rai belonged to a Scheduled Caste other then Balmikis or Mazhbi Sikhs
Thereafter in 1981 one post fell vacant but no person belonging to a Scheduled Caste could be selected and candidate belonging to general category was appointed against the said post In 1982 selection was made for two posts but only one person could he selected and he also belonged to the general category and no person belonging to a Scheduled Caste was available for appointment
In 1986 six persons including the appellant and respondent No 3 were appointed on the basis of direct recruitment
Out of those six persons four belonged to the general category and two belonged to Scheduled Castes
One of the two persons was Shri GS Samra who belonged to a Scheduled Caste other than Balmikis or Mazhbi Sikh
In the merit list for the said selection the appellant was placed at No 1 Shri GS Samra at No 2 and respondent No 3 at No 5
As per the Roster Shri GS Samra was placed at Point No 7 the appellant at Point No 8 and respondent No 3 at Point No 9
After joining the Service Shri GS Samra resigned and had ceased to be a member of the service prior
to April 1 1988
In the tentative seniority list as on April 1 1988the appellant was placed at serial No 52 and respondent No3 was placed at serial No 53
Respondent 595 No 3 submitted a representation against his placement in the seniority list and claimed that he should be placed against the post reserved for scheduled castes at Serial No 5 in the Roster and on that basis be given the seniority of the year of 1981 and that since he is a Mazhbi Sikh he is entitled to preference over Shri GS Samra who belonged to a Scheduled Caste other than Balmikis and Mazhbi Sikhs and he claimed that he should have been placed at Point No 7 in the Roster and Shri GS Samra should have been placed at Point No 9 and on that basis also respondent No 3 is senior to the appellant
Representation was also invited from the appellant in this regard
After considering the representations the High Court decided that respondent No 3 was entitled to he placed above Shri GS Samra in view of the Circular Letter dated May 5 1975 and that he should have been placed against Point No 7 in the roster and Shri GS Samra should have been placed against Point No 9 in the Roster In the revised seniority list Respondent No 3 was placed at Serial No 52 while the appellant was placed at Serial No 53
Aggrieved by the aforesaid decision the appellant filed a Writ petition in the High Court which was dismissed
The appellant appealed to this Court and contended that the first appointment by direct recruitment of a person belonging to the Scheduled Castes was of Shri Balwant Rai made in 1979 that was at Point No 1 in the Roster and should have gone to a Balmiki or Mazhbi Sikh but since no person belonging to these communities was available Shri Balwant Rai who belonged to a Scheduled Caste was appointed
Relying on the clarification contained in the letter dated April 8 1980 it was submitted that the vacancy at Point No 5 reserved for Scheduled Castes was to be carried forwarded to point No 7 and Shri GS Samra had to he adjusted at Point No 7 in the Roster that respondent No3 being a Mazhbi Sikh could not claim to be placed at Point No 7 against a vacancy which was reserved for a candidate belonging to Scheduled Castes other than Balmikis and Mazhbi Sikhs and that he could the before be only placed against the vacancy at Point No 9 in the Roster
The appeal was contested on behalf of Respondent No 3 who urged that in view of the order dated May 5197550 vacancies of the quota reserved for Scheduled Castes have to be offered to Balmikis and Mazhbi Sikhs and since Shri Balwant Rai belonging to a Scheduled Coste other than Balmikis  Mazhbi Sikhs had been appointed in 1979 the next post should go to Balmikis and Mazhbi sikhs and on that basis respondent No 3 was entitled to be appointed against the second post at point No7 of the Roster and Shri 596 GS
Samra could only be appointed against third post at Point No 9 in the Roster
It was also urged that the clarification contained in the letter dated April 8 1980 could only have prospective operation with effect from the date of its issue and the sub roster indicated therein could be given effect to only from that date and on that basis also respondent No3 was entitled to be placed against Point No 7 in the 100 point roster and Shri GS
Samra against Point No 9 in the said roster
Allowing the appeal and setting aside the judgment of the High Court this Court HELD  1 a
There is no dispute in the instant case that respondent No3 has been appointed against the post reserved for members of Scheduled Castes and the question is about the inter se placement of two persons appointed against vacancies reserved for Scheduled Caste candidates
The Circular dated March 6 1961 does not deal with the said question and it has to be dealt with on the basis of the instructions contained in the orders dated May 51975 and April 81980
605 E Jagjit Singh vs State of Punjab   explained and distinguished
1b
Respondent No3 can only be treated to have been appointed against the vacancy at point No 9 in the Roster and on that basis he must be placid below the appellant in the seniority list
Respondent No 2 is directed to revise the seniority list of the members of the Service accordingly
The appellant would be entitled to consequential benefits accruing as a result of revision in the seniority
605 F 2
The letter dated April 8 1980 gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 51975
Since the said letter dated April 8 1980 is only clarificatory in nature there is no question of its having an operation independent of the instructions contained in the letter dated May 5 1975 and the clarifications contained in the letter dated April 81980 have to be read as a part of the instructions contained in the earlier letter dated May 5 1975
603 E 3
A statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective
597 Craies on Statute Law 7th Edn
p 58 relied on
603 F 4
All appointments against vacancies reserved for Scheduled Castes made after May 51975 after May 141977 in so far as the Punjab Superior Judicial Service is concerned have to be made in accordance with the instructions as contained in the letter dated May 5 1975 as clarified by letter dated April 8 1980
603 F 5
The appointment of Shri Balwant Rai in 1979 has to be treated to be an appointment made under the said instructions and operation of these instructions cannot be postponed till April 8 1980
The sub roster as indicated in the letter dated April 8 1980 would have to be applied in respect of the post on which Shri Balwant Rai was appointed in 1979 and the said appointment has to be regarded as having been made against the vacancy at Point No 1 in the roster which was reserved for Balmikis or Mazhbi Sikhs but since no Balmiki or Mazhbi Sikh was selected for that post the said vacancy was assigned to Shri Balwant Rai who belonged to a Scheduled Caste other than a Balmiki or Sikh
603 H 604 A 6
The vacancy at Point No 1 which was reserved for Balmikis or Mazhbi Sikhs could not he carried forward in view of the directions contained in the letter dated April 8 1980
604 A 7
The next post reserved for Scheduled Castes at Point No 5 in the roster was meant for a person belonging to a Scheduled Caste other than Balmikis and Mazhbi Sikhs
604 A 8
In the selections that were made in 1981 and 1982 no person belonging to a Scheduled Caste was selected and therefore posts at Point Nos 5 and 6 in the Roster became available to candidates in the general category and the vacancy at Point No 5 reserved for Scheduled Castes was carried forward to point No 7
604 B 9
In 1986 two persons belonging to Scheduled Castes namely Shri GS Samra and respondent No 3 were selected
604 B 10
Since the post appoint No 5 which had been carried forward to point No 7 was reserved for a candidate belonging to a Scheduled Caste other than Balmiki or Mazhbi Sikh it had to be assigned to Shri GS Samra falling in that category and respondent No3 who was a Mazhbi Sikh could only be ap 598 pointed against the reserved vacancy at Point No 9 in the Roster
Respondent No3 can not claim that the vacancy at Point No7 should be assigned to him
If respondent No3
is adjusted against the vacancy at Point No9 in the Roster he has to be placed in seniority below the appellant who was appointed against Point No 8 in the Roster
604 C