1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP NO. 734 of 2004 Date of decision: 5.9.2008 Bhim Singh Dogra …Petitioner Vs H.R.T.C & others ….Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Shrawan Dogra with Mr. Dalip Sharma, Advocates For the Respondent No.1 Mr. H.S. Rawat, Advocate. For respondent No.4 Mr. Praneet Gupta, Advocate Per Surjit Singh, J. (Oral) Challenge is made in this writ petition to the order dated 7.10.1999 ( (Annexure P-3) passed in Original Application No. 496 of 1989 and order dated 4.8.2004 passed in Review Petition No. 46/1999 arising out of OA No. 496/1989 by the State Administrative Tribunal, whereby dismissing the O.A No. 496/1989 filed by the present writ petitioner. It has been held that the writ petitioner was not entitled to be appointed against reserved vacancy in the year 1984 there being only one vacancy in that year nor was that vacancy required to be carried forward and, therefore, even on the occurrence of next vacancy in the subsequent year of recruitment (by promotion), he was not entitled to be considered for appointment against reserved point which was available in the year 1984. 1 Whether the reports of the local papers may be allowed to see the Judgment ?. 2 2. The relevant facts may be summed up thus. The writ petitioner and the private respondents were serving in feeder cadres of the cadre of Works Managers comprising of seven posts, 50% of which were to be filled by direct recruitment and the remaining 50% by promotion of the officials manning the aforesaid feeder category. The rules for appointment by promotion and direct recruitment to the cadre of Works manager came into force in the year 1983. As per Rules, first vacancy to be filled by promotion was reserved for scheduled caste category. First vacancy in the cadre of Works Manager, for being filled by promotion, became available in the year 1984. The writ petitioner was the only candidate of SC category. So he sought appointment by promotion against that post on account of the same being reserved for his category. It appears that since there was only one vacancy to be filled in by promotion, in the year 1984, writ petitioner was denied the benefit of reservation, even though according to the roster and the instructions issued by the Government from time to time, that post was reserved for SC candidates. This was done in view of the instructions issued by the Government of India (Cabinet Secretariat) vide OM No. 1/9/74-Estt (SCT) dated 29th April, 1975 as adopted by the State Government vide letter No. 2-11/72-DP (A- II) dated 5th April, 1976 and subsequently by the Corporations owned and controlled by the State Government. As per these instructions, when in the first year of recruitment to any cadre, there is only one vacancy and according to the roster the same is meant for any of reserved category, the same is required to be treated as un-reserved, because the filling up of the single vacancy in the first recruitment year would mean 100 % reservation which is not permissible under the Constitution and law. However, the said reserved point in the roster is to be carried forward up to the next following three 3 recruitment years and if a candidate of that particular reserved category is available, he is to be considered for appointment against that point, even if in the subsequent recruitment years also only a single vacancy may be there. The employer of the writ petitioner and the private respondents, namely, HRTC, respondent No.1 herein, followed the aforesaid instructions in denying the appointment to the writ petitioner in the initial year of appointment i.e. the year 1984, when single vacancy was there, but it did not follow the other particular instructions inasmuch as the reserved point was not carried forward and, therefore, when one vacancy again became available for being filled up by promotion in the year 1986, the petitioner being a candidate of the said reserved category was not considered for promotion. Writ petitioner felt aggrieved by the aforesaid actions of the HRTC, respondent No.1 herein and filed OA No. 496/1989 before the Tribunal. 3. Respondents took the plea that in the year 1986 also there was only one vacancy and, therefore, against that single vacancy also a candidate belonging to reserved category of SC could not have been appointed, as it would have meant 100 % reservation in that recruitment year ( 1986 ). Learned Tribunal dismissed the OA holding that the vacancy that became available in 1984 being a single vacancy in that recruitment year, could not have been filled up by appointing a SC candidate as it would have led to 100 % reservation. The learned Tribunal did not agree with the submission of the writ petitioner that the reserved point was to be carried forward up to the next three recruiting years, in view of the aforesaid instructions placing reliance upon a judgment of the Constitution Bench of the Hon’ble Supreme Court in Post Graduate Institute of Medical Education & Research Vs. Faculty Association and others, 4 (1998) 4 SCC 1. The ratio of the aforesaid Constitution Bench judgment is that where a cadre consists of only one post, it cannot be reserved for any scheduled category at any point of time because whenever a candidate of reserved category is appointed on account of reservation that would mean manning of the cadre to the extent of 100% by reserved category during the period that candidate holds the posts. 4. Writ petitioner filed a review petition before the Tribunal on the ground that the aforesaid judgment of the Constitution Bench had not been correctly applied and the ratio of the judgment was different from what was understood by the learned Tribunal. Review petition was dismissed on technical ground that case for review was not made out as per provisions of CPC. 5. Writ petitioner then filed the present writ petition. He has sought the setting aside of the orders of the Tribunal and has prayed that the order of promotion of private respondents against the reserved vacancy available in the year 1984 and/or 1986 be set aside and he be appointed as Works Manager from the year 1984 when the first vacancy occurred or in any case from 1986, when the second vacancy occurred and, which in accordance with the aforesaid instructions of 1975 was required to be filled up by a candidate of SC category, on account of reserved point, which was available in the year 1984, having been carried forward. 6. Plea taken by respondent No.1, i.e. H.R.T.C, is that the aforesaid instructions regarding carry forward of the reserved point are not applicable where the promotion is from the cadre of class II posts to a cadre of lowest rung of Class I posts, in view of the instructions issued vide letter No. 2-11/72 DP(A-II) dated 10.10.1974. 5 7. . We have heard learned counsel for the parties and also gone through the record. The plea taken by the respondents that where a single vacancy occurs in the first recruitment year and the post is meant to be filled up by promotion from a cadre of Class II to a cadre of lowest rung of Class I and that vacancy happens to be reserved for some scheduled category according to the roster, the same cannot be filled by giving reservation to the concerned category and even the reserved point is not to be carried forward, in view of the aforesaid instructions issued vide letter dated 10.10.1974, cannot be accepted because after the issuance of these instructions, the aforesaid OM dated 29th April, 1975 was issued, para 4 of which provides for carrying forward of the vacancy reserved for SC, against which, SC candidate is not appointed on account of that being a single vacancy in the initial year of recruitment, to subsequent three years of recruitment. These instructions were adopted by the State Government, as already noticed. Thus the letter dated 10.10.1974 relied upon by the respondents stands superseded, by implication. 8. The view taken by the learned Tribunal is erroneous, rather illegal on the face of it. Learned Tribunal noticed the instructions issued by the Govt. of India vide OM No. 1/9/74-Estt (SCT) dated 29th April, 1975 and adopted by the State Government vide letter No. 2- 11/72-DP (A- II) dated 5th April, 1976, but did not give the benefit of the same to the writ petitioner holding that the Hon’ble Supreme Court in Post Graduate Institute of Medical Education & Research Vs. Faculty Association and others, (1998) 4 SCC 1, has held that there cannot be any reservation at any point of time in a single post cadre. It appears that the learned Tribunal confused the term ‘single vacancy occurring in a 6 particular recruitment year’ with a single post cadre. The law laid down in the aforesaid judgment of the Hon’ble Supreme Court is that there cannot be any reservation at any point of time where the cadre consists of only one post. The reason is that whenever the post is manned by a person of reserved category, on account of his/her having been appointed by being given the benefit of reservation that would mean 100 % reservation of that cadre, during the period such a person holds the post. 9. In the present case, the cadre consists of seven posts. It is manned by persons recruited directly, and the persons to be promoted from the feeder cadres to the extent of remaining 50 % each. The writ petitioner and the respondents were in the feeder cadres. At least three posts, out of seven in the cadre were, therefore, available for being filled up by promotion from the feeder cadres of which the petitioner and the respondents were the members. Admittedly, the first vacancy to be filled up by promotion was reserved for SC candidate, as per roster maintained by respondent No.1, copy whereof has been placed on record which is annexed to Annexure P-7/1 ( Page97 of the Paper book). Year 1984 was the first recruitment year, for appointment to the cadre of Works Manager, by promotion. In that year, there was a single vacancy available for promotion of officials in the feeder cadres. That being a single vacancy in the initial recruitment year, could not have been filled up by promotion, as it would have amounted to 100 % reservation and also in view the aforesaid instructions issued by the Govt. of India vide OM dated 29th April, 1975 and adopted by HP Government vide letter dated 5th April, 1976. However, this roster point reserved for SC was required to be carried forward up to the subsequent three years of recruitment, in accordance with the aforesaid instructions. That having 7 not been done, the action of respondent no.1 was illegal and in contravention of the aforesaid instructions issued vide OM dated 29th April, 1975 and adopted by HP Govt. vide letter dated 5th April, 1976. 10. Learned Tribunal, as already noticed, has not properly followed the ratio of the judgment of Hon’ble Supreme Court in Post Graduate Institute of Medical Education & Research Vs. Faculty Association and others, (1998) 4 SCC 1, and has wrongly applied the same to the facts of the present case. That judgment, as noticed earlier applies only in a case where the cadre consists of a single post. Since in the year of initial recruitment, i.e. 1984, there was only a single vacancy to be filled by promotion from the feeder cadres, manned by the writ petitioner and the private respondents, the same could not have been filled by giving the benefit of reservation to the writ petitioner, even though according to the roster, point was reserved for SC candidate. However, reserved point was required to be carried forward and the writ petitioner being the only eligible candidate of reserved category was required to be considered for appointment against that carried forward reserved point. A vacancy to be filled by promotion became available for the first time, after the initial year of recruitment, i.e. 1984, in November, 1986. That vacancy was required to be treated as a vacancy reserved for SC candidate having been carried forward as per aforesaid instructions and the writ petitioner being the only eligible candidate, available at that time, ought to have been considered for appointment and if found fit be appointed against the same. 11. As a result of the above stated position, we hold that the orders of the learned Tribunal is illegal and contrary to law and based on misconstruction and misconception of the legal position. Hence it is 8 set aside. As a sequel to the setting aside of the aforesaid orders of the Tribunal and in view of the above discussion and the finding that the vacancy which was filled in the year 1986 was required to be treated as reserved and the writ petitioner was entitled to be considered for appointment against that vacancy, we direct respondent No.1 to consider the writ petitioner for appointment against the said vacancy, he (writ petitioner ) being a candidate belonging to SC and to appoint him against the said post if on such consideration he is found eligible and suitable. In case the writ petitioner is found eligible and suitable and appointed, in accordance with the aforesaid direction, he shall be entitled to all the consequential benefits, like pay, seniority and further promotion etc. We give three months’ time to respondent No.1 to comply with this order. In view of the disposal of the main writ petition, pending applications, if any, are also disposed of. ( R. B. Misra ), J. ( Surjit Singh ), J. 5th Sept, 2008 (sl) 9 10 11