IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 4067 of 2008 Judgement reserved on: 19.11.2010. Date of decision: 23.12.2010. Yash Pal Dhiman …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? 1 Yes For the petitioner : Mr. Ranjan Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh, Judge. The petitioner has prayed that promotion orders of respondents No. 3 to 5 to the post of Assistant Engineer (Electrical) dated 12.11.1993 vide Annexure A-8 may be quashed and set-aside. The action of respondents in not considering the case of the petitioner for promotion may be declared to be in violation of Articles 14,16, 21 and 335 of Constitution of India. The respondents may be directed to hold a review D.P.C. for considering the case of the petitioner for promotion to the post of Assistant Engineer (Electrical) in view of Recruitment and Promotion Rules and reservation policy. 2. The brief facts of the case are that petitioner was appointed as Junior Engineer (Electrical) for short, J.E. (E), on 17.6.1979. The next promotional post for petitioner is Assistant Engineer (Electrical) for short: A.E. (E). The respondent No. 1 has Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… framed Recruitment and Promotion Rules for the post of Assistant Engineer (Electrical) in the year 1995 (for short 1995 Rules). The post of A.E.(E) is a selection post. Rule 10 provides that 30% posts of A.E.(E) would be filled up by direct recruitment and remaining 70% posts from amongst J.E.(E) and Electricians. Rule 11 provides that J.E.(E) would become eligible for promotion to the post of A.E.(E) after seven years ad hoc or regular service as J.E.(E). Rule 16 provides for reservation in accordance with the orders issued the State from time to time. 3. It has been alleged that as per department of Personnel (Appointment II) letter dated 3/ 4.11.1981 for the purpose of determination of zone of consideration while making promotions to the selection posts like the post of A.E.(E), it has been stated that normal zone of consideration would be 3 persons against one post. It has also been mentioned in the said notification that if adequate number of Scheduled Caste/ Scheduled Tribe candidates are not available within normal zone of consideration the field of choice/ consideration has to be extended to five times and the SC/ ST candidates who fall within extended zone of consideration shall have to be considered for promotion subject to eligibility as per Recruitment and Promotion Rules. 4. The respondent No. 1 for the purpose of providing reservation has provided 15% reservation for SC category vide department of Personnel (Appointment II) letters dated 24.9.1973 and 10.10.1974 Annexure A-4. The respondent No. 1 has also prescribed 40 point roster which has to be followed while making promotion to …3… Class I and Class II posts vide Annexure A-4. According to petitioner, as per Annexure A-4 points No. 1, 8, 14, 22, 28 and 36 are reserved for SC candidates while making promotions to the higher posts. 5. The respondent No. 1 has issued notification on 31.1.1989 clarifying the procedure and manner in which reservation has to be given to SC/ ST and other backward classes candidates at the time of appointment, recruitment and promotion. The reservation for SC/ST and other backward classes has to be reckoned separately category-wise and percentage reservation of 15% for SC and 7½ % for ST etc. is to be allowed on the basis of roster as prescribed by the government. The operation of roster will be suspended only after the percentage reservation for a particular category has been filled up on the higher post. 6. The petitioner belongs to SC category. The petitioner has completed seven years of service as J.E. (E) on 17.6.1986. Therefore, as per Rule-11, he is eligible for promotion to the higher post of A.E.(E). The petitioner in final seniority list dated 21.9.1994 of Junior Engineers (Electrical) as it stood on 31.7.1987 is at Serial No. 31. 7. In the year 1993, the respondent No. 1 decided to fill up four posts of A.Es.(E) by way of promotion in the department. It was obligatory on the part of respondents to consider the cases of eligible SC/ST candidates and to provide adequate representation to them in promotion in accordance with the rules. There are 20 posts in the cadre of Assistant Engineers (Electrical), out of these posts 15% posts, which comes to 3 posts are reserved for SC candidates for …4… promotion. The respondent No. 1 has not considered the case of SC candidates for promotion to the post of A.E.(E) while promoting respondents No. 3 to 5 as A.Es.(E) on 12.11.1993. V.K.Patti, A.K.Puri, Nanak Chand and Durga Dass were promoted to the posts of A.Es.(E) on the basis of their own merit despite the fact that all these J.Es. (E) belong to SC category. Once these four SC Juniors Engineers (E) were promoted to the higher posts of A.Es.(E) on their own merit without following the reservation, then these persons cannot be treated to have been promoted to the posts of A.Es.(E) from amongst SC category. In these circumstances, the reserved SC posts will have to be treated as unfilled and petitioner being the only eligible candidate ought to have been considered for promotion to the post of A.E.(E) alongwith respondents No. 3 to 5 and one S.C.Dhiman, but the petitioner has been ignored illegally. The petitioner has filed representation dated 4.2.1995, but to no effect. 8. The respondents No. 1 and 2 have filed joint reply and have taken preliminary objection that post of A.E.(E) is a selection post and for making promotion to this post, instructions dated 3/ 4.11.1981 of the department of Personnel regarding zone of consideration is being followed. The instructions dated 3/ 4.11.1981 also provided that field of choice may be extended to five times where adequate number of SC/ ST candidates are not available within the normal field of choice and such SC/ ST candidates should also be considered against the vacancies reserved for them subject to eligibility. The petitioner had joined as Junior Engineer (Electrical) diploma holder on 17.6.1979. The respondents No. 3,4, 5 are senior …5… to petitioner as their dates of appointments are 18.11.1974, 15.11.1975 and 17.11.1975 respectively. The names of respondents No. 3, 4 and 5 appear in the seniority list of J.Es.(E) at Sr. No. 18, 19 and 20, whereas the name of the petitioner appears at Sr. No. 31. The respondents No. 3, 4, 5 were promoted to the posts of A.E.(E) on ad hoc basis vide notification dated 12.9.1993, subsequently respondents No. 4, 5 were appointed on officiating basis on 3.1.1996. The name of the petitioner did not fall in the zone of consideration at the relevant time when the recommendations to the posts of A.Es.(E) were made by DPC. The petitioner due to his original seniority could not find place for promotion even in the extended zone of consideration and he is trying to misrepresent his case. 9. It has also been stated on merits that name of the petitioner is much down in the seniority list of J.Es(E) for considering him for promotion to the next post. He was not eligible for considering at the time of promotion of respondents No. 3 to 5. It has been admitted that during the year 1993, the government had promoted 4 J.Es.(E) purely on ad hoc basis. The cadre strength of A.Es(E) is 18 and only three posts go to the share of SC category, whereas at the time of ad hoc promotion of J.Es(E), four A.Es.(E) belong to SC category were in existence. Moreover, the ad hoc promotions were ordered only on the basis of seniority subject to fit or unfit and no merit is prepared and neither the principle of zone of consideration was followed, hence no SC candidate was considered for promotion to the post of A.E.(E). However, subsequently all A.Es (E) who were working on ad hoc basis were promoted on officiating …6… basis after following requisite procedure. The representation to SC category J.E.(E) had already been achieved in the cadre, hence the petitioner was not considered for ad hoc promotion. There were total 6 posts of A.Es (E) from 1989 to 1993, the point Nos. 14 and 17 fell to the share of SC and ST officials during the year 1988 and 1991 respectively. No official belonging to SC/ST categories was available in both the categories i.e. diploma holder/ graduate J.E. even within the extended zone of consideration i.e. five times of number of vacancies. The reserved vacancies were filled up from amongst the officials belonging to general category. Thus if the name of petitioner had fallen in the zone of consideration, he would have been promoted. The petitioner filed the rejoinder and has reiterated his stand while denying the defence projected by respondents No. 1 & 2. 10. In the supplementary affidavit dated 27.9.2010 of Under Secretary (PW) to the Government of Himachal Pradesh, it has been stated that in the respondent- Department during the year 1993, four J.Es.(E) in accordance with final seniority list as on 31.7.1987 i.e. Suresh Chand Dhiman Sr. No. 8, Surender Dutt Sr. No. 18, Raman Kumar Sr. No. 19 and Upender Gupta Sr. No. 20 were promoted against the posts of A.Es. (E) purely on ad hoc basis strictly on the basis of seniority. All these incumbents belong to general category and no candidate belonging to reserve category of Scheduled Caste was promoted on ad hoc basis. It has also been stated in the supplementary affidavit that on the basis of final seniority list as on 31.7.1987 Sudarshan Kumar at Sr. No. 27 (now retired), Yash Pal Dhiman (petitioner) at Sr. No. 31 and Bhagwan Dass Kaushal at Sr. …7… No. 48 belonging to Scheduled Caste category were promoted. Sudarshan Kumar and Yash Pal Dhiman have been promoted as per their own seniority and without any reservation benefit, whereas Bhagwan Dass has been promoted by giving the benefit of reservation being member of SC category. 11. I have heard the learned counsel for the parties. In order to appreciate the issue raised by the learned counsel for the petitioner, it is necessary to refer to some judgements relied by him on the points. In R.K. Sabharwal and others vs. State of Punjab and others AIR 1995 SC 1371, it has been held as follows:- “When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete for the non- reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation….” The Supreme Court has further held as under:- “……As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 …8… retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.” 12. In Union of India and others vs. Virpal Singh Chauhan and others (1995) 6 SCC 684, after noticing R.K. Sabharwal (supra), the Supreme Court has held in Para 29(i) as follows:- “(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in para 5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/ promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.” 13. The Supreme Court in Post Graduate Institute of Medical Education & Research, Chandigarh and others vs. K.L.Narasimhan and another (1997) 6 SCC 283 has held that it is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate. The Supreme Court in Rajesh Kumar Daria vs. …9… Rajasthan Public Service Commission and others (2007) 8 SCC 785 has held as follows:- “The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are “vertical reservation”. Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are ‘horizontal reservations”. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category……..’ 14. In Ravinder Kumar vs. State of Haryana and others (2010) 5 SCC 136, it was contended before the Supreme Court that two of the candidates selected in the reserved category having scored marks that were higher than those scored by the last candidate selected in the general category, the said candidates ought to have been selected against vacancies in the general merit category. If that were done, the appellant could be appointed against one of the said vacancies. The Supreme Court on those facts has held as follows:- …10… “It is evident from the above that in Ex-servicemen (General) category the last two candidates, namely, Subhash Chander and Taket Singh had scored only 25 marks each. Sube Singh and Veer Bhan selected in Ex- servicemen BC (B) category had however scored more marks than Subhash Chander and Taket Singh. Sube Singh and Veer Bhan could and indeed ought to have been selected against the vacancies in Ex-servicemen (General) category as per their merit. This in other words would require the select list to be recast and candidates suitably shifted from the reserved category to the general category in which event appointments can be offered to other candidates in the Ex-servicemen BC(B) category depending on their merit. Such an exercise long after the selection process was completed may unsettle the settled position and lead to removal of candidates who stand already selected and who have been serving for a long time after undergoing the prescribed training. This may also mean that candidates who have accepted the result of the selection and may even have become overage may have to be brought in. We do not see any compelling reason for us to adopt that course at this distant point of time especially when the same would upset what stands settled for a long time. Interest of justice would in our opinion be sufficiently served if we direct the appointment of the appellant against an Ex-servicemen BC(B) vacancy and if no such vacancy is available, against an Ex- servicemen (General) category vacancy. In the unlikely event of there being no vacancy in either one of these categories the appellant could be appointed against any other vacancy in the general category…….” 15. The controversy involved in the petition is short. It is the case of the petitioner that on 12.11.1993 respondents No. 3 to 5 were …11… promoted from J.Es(E) to A.Es(E). The petitioner who belongs to SC category was not considered. It has been submitted that earlier V.K.Patti, A.K.Puri, Nanak Chand and Durga Dass who were promoted to the posts of A.Es(E) belong to SC category. These four Scheduled Caste J.E.s(E) were promoted to the post of A.Es.(E) on their own merit, therefore, these persons cannot be treated to have been promoted to the posts of A.Es (E) from amongst SC category. Thus reserved SC posts remained unfilled and petitioner being only eligible candidate from Scheduled Caste category ought to have been considered for the post of A.E.(E) alongwith respondents No. 3 to 5 and one S.C. Dhiman on 12.11.1003, but the petitioner was wrongly ignored. The respondents No. 1, 2 in their reply have admitted that in the year 1993 the Government had promoted four J.Es (E) purely on ad hoc basis. The cadre strength of A.Es.(E) is 18 and only three posts go to the share of SC category, whereas at the time of ad hoc promotion of J.Es.(E), four A.Es.(E) belonging to SC category were in existence. The ad hoc promotions were ordered only on the basis of seniority subject to fit or unfit and no merit was prepared and neither zone of consideration was followed, and therefore, no SC candidate was considered for promotion to the post of A.E.(E). Later on, all A.Es.(E), who were working on ad hoc basis were promoted on officiating basis after following the requisite procedure. The promotions were made on 12.11.1993. Therefore, 1995 Rules relied by petitioner for promotion are not relevant. But it is not the stand of respondents that on 12.11.1993 petitioner was not eligible for promotion from J.E.(E) to A.E.(E). …12… 16. The aforesaid stand of respondents No. 1 and 2 clearly indicates that at the time of ad hoc promotion, four posts of A.Es.(E) belonging to SC category were available. The department had promoted J.Es(E) to the posts of A.Es (E) only on the basis of seniority and zone of consideration was not followed, but later on the ad hoc A.Es.(E) were promoted on officiating basis. The respondents No. 1, 2 have not specifically denied the stand of the petitioner that V.K.Patti, A.K.Puri, Nanak Chand and Durga Dass Junior Engineers (E) belonging to Scheduled Caste category were promoted as A.Es (E) on their own merit. It has also not been denied by respondents No. 1 and 2 that in case the aforesaid four persons namely V.K.Patti, A.K.Puri, Nanak Chand and Durga Dass etc. are not counted in the category of SC for the purpose of giving them benefit of SC category for promotion to the post of A.E.(E), still the petitioner will not be entitled to promotion to the post of A.E.(E) after giving him the benefit of SC category. 17. The aforesaid judgements of the Supreme Court are clear on the point that once a reserved category person gets promotion on the basis of his own merit then such person cannot be counted against the reserved category and he will be counted in the general category. This being the position, V.K.Patti, A.K.Puri, Nanak Chand and Durga Dass cannot be counted as having been promoted after giving the benefit of SC category. The petitioner has made out a case for consideration of his case for promotion from the post of J.E.(E) to A.E.(E) alongwith respondents No. 3 to 5 as on 12.11.1993. The respondents No. 3 to 5 were promoted long time back on …13… 12.11.1993, now it will not be in the interest of justice and equity to unsettle the settled position so far promotion of respondents No. 3 to 5 made on 12.11.1993 is concerned. The case of the petitioner for promotion is to be considered against vacancy of Scheduled Caste which was available on 12.11.1993. 18. No other point was urged. 19. The result of above discussion, the petition is allowed. The respondents No. 1 and 2 are directed to convene review DPC in two months from the date of supply of copy of this judgement by the petitioner to competent authority for considering the case of the petitioner as on 12.11.1993 for promotion from the post of J.E.(E) to the post of A.E.(E) in Scheduled Caste Category together with the case of any other eligible SC J.E.(E) senior to petitioner alongwith respondents No. 3 to 5. The DPC in one month from its constitution shall make recommendation to the competent authority and competent authority shall implement the recommendation of the DPC in further one month with all consequential benefits. The promotions of respondents No. 3 to 5 made on 12.11.1993 to the post of A.Es(E) shall not be disturbed. December 23, 2010. ( Kuldip Singh ), (Hem) Judge.