IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.550 of 2003 Reserved on : October 31, 2008 Date of decision : November 5, 2008 Dharam Pal …Petitioner. Versus State of H.P. and another …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Ms Jyotsna Rewal Dua, Advocate. For the Respondents : Mr. P.K. Sharma, Additional Advocate General, for respondent No.1. Surjit Singh, Judge This writ petition, under Articles 226 and 227 of the Constitution India, is directed against the order dated 2nd July, 2003 of H.P. State Administrative Tribunal, whereby Original Application filed by the writ petitioner has been dismissed. Prayer has been made for quashing the said order, by exercising the power of judicial review of this Court and granting the relief sought by the writ petitioner, in the Original Application No.3551 of 2000. 2. Relevant facts, which are admitted by both the sides, may be noticed. There is a cadre of Senior Law Officers in the Law Department of the State of Himachal Pradesh. It Whether reporters of the local papers may be allowed to see the judgment? …2… consists of three posts. Appointments to the cadre are made by promotion from the cadre of Law Officers. All the three posts in the cadre of Senior Law Officers had been filed. One post fell vacant on 31st August, 2000, on retirement of one Shri Krishan Chand Verma, who belonged to Scheduled Tribe category. Writ petitioner, who belongs to Scheduled Caste category, made representation that he be considered for appointment against the said vacancy, on account of his belonging to reserved category of Scheduled Caste, because the post was earlier also manned by a person belonging to reserved category, i.e. of Scheduled Tribe. His claim was based on the plea that as per ratio of the Constitution Bench of the Supreme Court of India in R.K. Sabharwal and others versus State of Punjab and others, (1995) 2 SCC 745, once all the posts in a cadre are filled, the roster, which is like a running account, ceases to be operative and the subsequent vacancies, occurring in the cadre, are required to be filled according to replacement theory, that is to say the person of the same category is to be appointed, to fill the vacancy, to which the person, who vacated the post, belonged. There was no response to the representation. So, the writ petitioner filed an Original Application before the Tribunal. He alleged that no candidate of Scheduled Caste category had ever been appointed to the cadre and that since the post that fell vacant was earlier manned by a person belonging to Scheduled Tribe, another reserved category, he had the right to be appointed against that post. …3… 3. Respondents denied that no person belonging to the Scheduled Caste category had ever been appointed as Senior Law Officer. They stated that one Sita Ram Dhaleta had been appointed as Senior Law Officer, who was lateron appointed as Assistant Legislative Counsel on 16th March, 1990, and thereafter Shri Krishan Chand Verma, who belonged to Scheduled Tribe category, was appointed. Plea raised by the writ petitioner that the matter was covered by the ratio of R.K. Sabharwal's case (supra) was disputed. It was stated that R.K. Sabharwal's case had no application in cases where strength of a cadre was less than 13. It was stated that following the judgment of the Constitution Bench in R.K. Sabharwal's case, the State Government had, vide notification dated 20th August, 1998, Annexure PD, issued instructions and Model Roster in respect of cadres with strength of 13 or less and to which appointments were to be made only by promotion. It was stated that according to Annexure PD and the Model Roster, where the total strength of a cadre is 13 or less and because of so low a strength representation to all the reserved categories, according to the percentage prescribed for them, is not possible, at every given point of time, a roster having number of points equivalent to the number of posts is not workable, as it would lead to excess representation to one category over the other for all times to come. 4. State Administrative Tribunal dismissed the Original Application holding that 13-Point Model Roster, …4… prescribed by the State Government and appended to Annexure PD, had not been challenged and that the judgment of Constitution Bench of Hon’ble Supreme Court in R.K. Sabharwal's case (supra) was meant for cadres where the total number of posts in the cadre was 40 or more. 5. Writ petitioner is not satisfied with the order of the State Administrative Tribunal. It is alleged that the order is contrary to the dictum of the Constitution Bench in R.K. Sabharwal's case (supra) and, hence, unsustainable and liable to be set aside, in exercise of the power, under Articles 226 and 227 of the Constitution of India. 6. We have gone through the record and heard the learned counsel for the parties. 7. Learned counsel representing the writ petitioner conceded that the petitioner had not challenged the 13-Point Model Roster, devised by the State Government and appended to the instructions Annexure PD. However, she stated that in view of the law laid down by the Constitution Bench in R.K. Sabharwal's case (supra) once all the posts in a cadre are filled, the roster becomes meaningless and inoperative, as its purpose is achieved, and future vacancies in the cadre are required to be filled, in accordance with the principle of replacement, that is to say the new appointee should belong to the same category as the person, on account of whose ceasing to hold the post, the vacancy occurs. She stated that the aforesaid ratio of the Constitution Bench in R.K. Sabharwal's case (supra) has been followed in subsequent …5… judgments, i.e., Union of India and others versus Virpal Singh Chauhan and others, (1995) 6 SCC 684; Prabhash Chand Jain versus State of Haryana and others with several other matters, (1996) 8 SCC 105; Ashok Kumar Gupta and another versus State of U.P. and others, (1997) 5 SCC 201; Post Graduate Institute of Medical Education & Research, Chandigarh versus Faculty Association and others with many other connected matters, (1998) 4 SCC 1; Ajit Singh and others (II) versus State of Punjab and others, (1999) 7 SCC 209; B.S. Gour versus Union of India and others, (2001) 9 SCC 706; and M. Nagraj and others versus Union of India and others, (2006) 8 SCC 212. 8. In R.K. Sabharwal's case (supra), Hon’ble Constitution Bench was dealing with a case where the cadre strength was more than 100. It was held that when appointments to all the posts, in a cadre, are made by giving due representation to all the categories, as per roster points, the purpose of the roster is achieved and, therefore, it becomes inoperative and future vacancies are required to be filled by following replacement theory, that is to say by appointing the persons of the categories who have vacated the posts. As already noticed, the cadre, in which the aforesaid judgment was given, consisted of more than 100 posts. 9. In the case of Union of India and others versus Virpal Singh Chauhan and others (supra), placing reliance on R.K. Sabharwal's case (supra), it was held that once the number of posts reserved for being filled by reserved category …6… candidates in a cadre, category or grade 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. 10. In Prabhash Chand Jain’s case (supra), R.K. Sabharwal's case (supra) was referred to in a different context. That was a case where the cadre consisted of only two posts. There was a circular dated 9th February, 1979, which provided for reservation to persons of Scheduled Castes and Backward Classes, to the extent of 20 per cent and 5 per cent, respectively, and for giving representation to persons belonging to Scheduled Castes or Backward Classes, 100-Point roster was prescribed. Lateron instructions were issued by the Chief Secretary and Finance Commissioner, saying that reservation was not to be given in a cadre consisting of two posts. Instructions of the Chief Secretary and Finance Commissioner were held to be not in consonance with the instructions, dated 9th February, 1979, issued by the Government and reservation, in terms of the aforesaid circular of 9th February, 1979, which prescribed 100-Point roster, was upheld. The judgment instead of supporting the writ petitioner supports the respondents’ plea that where a cadre consists of 13 or less number posts, roster is required to be rotated to give due representation to all the categories. 11. Ashok Kumar Gupta’s case (supra) also does not come to the rescue of the writ petitioner. It has been observed that the judgment of the Constitution Bench in R.K. …7… Sabharwal's case (supra) points out that when the percentage of the reservation is fixed, in respect of a particular cadre, and the roster indicates the reserved points, it has to be taken that the posts shown at the reserved points are to be filled from amongst the members of the reserved categories. In the present case, as already noticed, reservation for Scheduled Caste candidates is 15 per cent in a cadre of three. Also, there is reservation for Scheduled Tribe candidates to the extent of 7.5 per cent. In a cadre of three posts, no post can be reserved permanently for Scheduled Castes and Scheduled Tribes, because in that case the percentage of reserved posts would always be 33.33 per cent or say much more than even the aggregated percentage of reservation for both the reserved categories of Scheduled Castes and Scheduled Tribes. 12. In Post Graduate Institute of Medical Education & Research, Chandigarh’s case (supra), it was held that in the case of a single post cadre reservation is not permissible, because whenever the post is held by a person of reserved category, that would mean 100 per cent reservation of the cadre during the period a person of reserve category holds the post. The judgment in no way advances the contention raised on behalf of the writ petitioner. 13. In Ajit Singh (II)’s case (supra), the question was whether the dictum of R.K. Sabharwal's case (supra) had prospective application or it was to be applied retrospectively. However, it was observed in Para-87 that, as per law laid …8… down in R.K. Sabharwal's case (supra), once appointments to all roster points are made and representation is given to the candidates of reserved categories, roster was not to be repeated, but future vacancies were to be filled by appointing the candidates of the categories, the members of which vacated the posts. 14. In B.S. Gour’s case (supra), the question was whether in a cadre of three posts, two persons of Scheduled Castes could have been promoted. The question was answered in the negative. The judgment is in no way relevant. 15. In M. Nagraj’s case (supra), it was observed by the Constitution Bench that the issue involved in R.K. Sabharwal's case (supra) concerned operation of roster system and then the Constitution Bench stated that the entire cadre strength should be taken into account to determine whether reservation upto required limit has been reached. It was further noticed that in R.K. Sabharwal's case (supra), it was held that if the roster is prepared, on the basis of the cadre strength, that by itself would ensure that the reservation would remain within ceiling limit of 50 per cent and that the Court, in substance, said that in the case of 100- Point roster, each post gets marked for the category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone, by following replacement theory. …9… 16. From the aforesaid observation in M. Nagraj’s case (supra), it appears that roster is to be treated as a running account and to come to an end once all the posts are filled, only when the total cadre strength is so much that it permits giving of due representation to each reserved category, within the prescribed limit (of percentage) at every given point of time. 17. In a cadre where the total strength is just three, as in the present case, reserving one post, even for both the reserved categories of Scheduled Castes and Scheduled Tribes, for all times to come, would result in making reservation in excess of the aggregated limit for both the categories, which is 15 per cent for Scheduled Castes + 7.5 per cent for Scheduled Tribes = 22.5 per cent. 18. It is with a view to obviating reservation, in excess of the prescribed percentage, that 13-Point Model Roster has been devised by the State Government, vide Annexure PD. As per this Model Roster, in the case of a cadre of three, initially persons of unreserved categories are to be promoted against all the three posts. Three vacancies occurring thereafter are also to be filled by appointment of candidates of unreserved categories. First vacancy occurring thereafter is to be filled by promoting Scheduled Caste candidate. Again, six vacancies occurring thereafter are to be filled by appointment of candidates of unreserved categories and against the next vacancy a Scheduled Tribe candidate is to be appointed and this roster is to be repeated again and again so that all the …10… three categories are given representation according to the percentage fixed for each category by rotation. 19. In view of the above discussion, we do not find any justifiable ground for interference with the order of the State Administrative Tribunal. Hence, the writ petition is dismissed. Writ petition stands disposed of. ( R.B. Misra ), J. November 5, 2008(sd) ( Surjit Singh ), J