THE HON’BLE SRI JUSTICE C.V. RAMULU +W.P..No. 8814 of 2007 %Dated 26-2-2008 # Between: T.Jyothaiah … Petitioner and Tirumala Tirupati Devasthanam, represented by its Executive Officer, Tirupati & others. … Respondents !Counsel for the petitioner : MR.V.RAJA MANOHAR ^Counsel for Respondents 1 & 2 : MR.A.K.JAYAPRAKASH RAO ^Counsel for Respondent No.3 : MR.P.VEERA REDDY <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1995 SC 1371 THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.8814 of 2007 ORDER: This writ petition is filed seeking a Mandamus directing the first respondent to fill up the post of Executive Engineer which is going to fall vacant at point No.16, strictly in accordance with Article 16(4A) of the Constitution of India and G.O.Ms.No.5 dated 14.2.2003. It is the case of the petitioner that he was first appointed as Assistant Executive Engineer with effect from 10.9.1982 and was promoted as Deputy Executive Engineer with effect from 26.7.1999 and his probation in the said cadre was declared on 25.7.2001. Petitioner is presently working as Deputy Executive Engineer at Sri Venkateshwara Institute of Medical Sciences (Sub-Division), Tirupati. The next promotion from the post of Deputy Executive Engineer is to the post of Executive Engineer. The cadre strength of Executive Engineers in the department of Tirumala Tirupati Devasthanam is 16. The rule of reservation in promotion to Scheduled Castes and Scheduled Tribes is a constitutionally guaranteed right and since the cadre strength is 16, there should be three posts reserved for Scheduled Caste and as on today, there are two posts of Executive Engineers filled up with candidates belonging to Scheduled Caste. The sixteenth post is about to be filled and since the petitioner is eligible, he should be promoted as Executive Engineer. There are 12 posts in the cadre of Executive Engineers in the respondent establishment upto the year 2002. There were no reservations by way of promotions to the post of Executive Engineers till 2002. In the year 2002, four posts of Executive Engineers were sanctioned and in the year 2004, one Sri D.Nageshwar Rao belonging to Scheduled Caste category was promoted as Executive Engineer and was placed at serial No.2 in the roster. One P.Manohar who belongs to Scheduled Caste category was promoted as Executive Engineer in the year 2005 and placed at Serial No.7 in accordance with the roster fixed under Rule 22 of A.P. State and Subordinate Service Rules (for short ‘the Rules’). Thereafter, one K.Jayaram Naik who belongs to Scheduled Tribe was promoted as Executive Engineer and placed at Serial No.8, which was reserved for Scheduled Tribe category. All these promotions were made strictly in accordance with the rule of reservation in promotions and roster system to be followed under the said rules. Now, a further vacancy of Executive Engineer arisen by the end of April 2007, which falls at Serial No.16, which place is reserved for Scheduled Caste. In accordance with the seniority amongst Scheduled Caste, petitioner is the only candidate who is eligible to be promoted as Executive Engineer. The TTD has adopted the rules and the orders issued by the Government of Andhra Pradesh from time to time and all the relevant rules, which are issued by the second respondent in relation to the promotions have been adopted by the first respondent. All the promotions thereafter are being made strictly in accordance with the said rules. G.O.Ms.No.2, Social Welfare (ROR) Department dated 9.1.2004 is issued providing rules relating to reservations in promotions to Scheduled Castes and Scheduled Tribes. As per Rule 7 of the said rules, promotions are to be made in accordance with the 100-point roster already prescribed under Rule 22 of the Rules. In accordance with the said Rule, the post at Serial No.16 is reserved for Scheduled Caste. According to G.O.Ms.No.5, Social Welfare Department dated 14.2.2003, the existing 100-point roster already prescribed in Rule 22 shall be followed in case of promotions in all the categories where reservation in promotion in favour of Scheduled Castes and Scheduled Tribes is followed. According to G.O.Ms.No.21, Social Welfare (ROR) Department dated 18.3.2003, reservation in promotion in favour of Scheduled Castes and Scheduled Tribes shall be implemented in promotion in all the categories of positions in all services whose total cadre strength of positions is more than 5 and Rule 22 of the Rules shall apply in promotions in favour of Scheduled Castes and Scheduled Tribes, otherwise, it amounts to violation of Article 16(4)(A) of the Constitution of India and the rules made by the Government of A.P. in the matter of reservations in promotions. According to the petitioner, he made a representation to the first respondent on 25.2.2007 to the effect that the post at Serial No.16 has to be filled up by promoting him to the post of Executive Engineer in view of the rule position. However, it was reliably learnt that the first respondent was trying to fill up the said post with third respondent who does not belong to Scheduled Caste category. The very fact that the representation submitted by the petitioner was not answered so far lends support to his case. Further, the case of third respondent was very seriously being processed for the purpose of promotion. In this regard, first respondent sent a report to second respondent stating that the promotion of petitioner as Executive Engineer against sixteenth roster point is not feasible for consideration. According to the petitioner, this act is arbitrary, illegal and unconstitutional and violative of Article 16(4A) of the Constitution of India and G.O.Ms.No.21 dated 18.3.2003, G.O.Ms.No.5 dated 14.2.2003, G.O.Ms.No.2 dated 9.1.2004 and Rule 22 of the Rules, therefore, the same is liable to be set aside. The first respondent filed a detailed counter affidavit denying the allegations made by the petitioner, inter alia stating that filling up the roster points shall continue till the required percentage of Scheduled Caste and Scheduled Tribe candidate is obtained. Once the required percentage is obtained by taking into account both the Scheduled Caste and Scheduled Tribe candidates who are found in the list of candidates fit for promotion on account of their seniority in the feeder category and those who are moved up to fill up the required roster point, further adjustment of Scheduled Caste and Scheduled Tribe employees against roster points has to be stopped. As per G.O. Ms. No.123 dated 19.4.2003, once the adequacy is achieved to the required percentage of 15% in respect of Scheduled Castes and 6% in respect of Scheduled Tribes in a category, the application of rule of reservation in promotions shall be stopped and the promotion shall be effected based on merit-cum-seniority as per G.O.Ms.No.18 dated 17.3.2005. The cadre strength of Executive Engineer (Civil) is 16, out of which, 15% of Scheduled Caste comes to 2.4 posts. As per rule 5 of G.O.Ms.No.2 dated 9.1.2004, the fraction shall be ignored. As per amendment issued to para 5 of G.O.Ms.No.2 dated 9.1.2004 vide G.O.Ms.No.76 dated 19.10.2004, the fraction of 0.5 or more shall be rounded off to the next higher digit. In the instant case, the fraction is 0.4, which shall be ignored. At present, there are two candidates belonging to Scheduled Caste community are working as Executive Engineers (Civil). Thus, the adequacy of 15% in Scheduled Caste category has been achieved and in view of the same, the sixteenth point has been allotted in panel according to merit-cum-seniority as per G.O.Ms.No.2 dated 9.1.2004 in the DPC held on 6.11.2006. Therefore the contention of the petitioner that he should be considered for promotion to the post of Executive Engineer in the sixteenth point, is not correct as per the rules governing the reservation policy in promotions. Likewise, third respondent also filed a detailed counter denying the allegations made by the petitioner and relying upon rule position as was done by the first respondent in his counter and further stated that he had become eligible for promotion to the post of Executive Engineer in the year 1999 after completion of five years in the cadre of Deputy Executive Engineer. Based on his seniority, he was at serial No.1 and due for promotion to the post of Executive Engineer as per tentative seniority list published by the first respondent through Circular Roc.No.TL1/17477/ 2006 dated 30.8.2006. In the said seniority list, his name was shown at serial No.1 and the petitioner’s name was shown at serial No.16. The tentative seniority would also show that the petitioner had entered into service of TTD seven years after the third respondent joined the service. Petitioner joined as Assistant Executive Engineer on 28.7.1992 and promoted to the post of Deputy Executive Engineer on 26.7.1999, therefore, it is clear that the third respondent is much senior to the petitioner in the cadre of Assistant Executive Engineer as well as Deputy Executive Engineer. The learned senior counsel Sri B.Tharakam appearing for writ petitioner strenuously contended that apart from satisfying 15 percentage, the roster has to be followed as per Rule 22 of the Rules. In the case on hand, the candidature of the petitioner was not considered on the ground that 15 percentage adequacy has been achieved, therefore, there is no necessity for filling up the sixteenth vacancy, though the sixteenth roster point is reserved for Scheduled Caste category as per Rule 22 of the Rules. The roster has to be followed strictly while percentage being kept in mind for the purpose of adequacy. Once the cadre strength of Executive Engineers in the TTD is 16 and second and seventh roster points were filled up by Scheduled Caste candidates, there was no hurdle in the way of the respondents in filling up the sixteenth point with Scheduled Caste community candidate. In fact, reservations in respect off promotions were introduced by the State of A.P. with effect from 14.2.2003 and the roster points started at Serial No.27. At that point of time, there were only nine vacancies and three more posts had arisen, thus making it twelve (12). Though the percentage of 15 comes to 1.8, which is rounded of to 2, only one vacancy is filled up with Scheduled Caste candidate i.e. at roster point No.2. This itself would show that the respondents were not properly filling up the posts. Whether 15 percentage of adequacy is achieved or not has no relevance since Rule 22 of the Rules needs to be followed strictly. Assuming that there is some explanatory part in G.O.Ms.No.5 dated 14.2.2003 and G.O.Ms.No.2 dated 9.1.2004, that cannot go beyond Rule 22 and the mandatory constitutional provision under Article 16(4A) of the Constitution of India. The roster is the running account and it has to be followed strictly. Once the roster point is available, as in the present case, the fifteen 15 percentage adequacy has no application. In this regard, the learned senior counsel also relied upon the decision in R.K.SABHARWAL AND OTHERS v. STATE OF PUNJAB AND OTHERS[1] and drawn the attention of the Court to para 4 of the said judgment, which reads as under: “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 numbers cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the members of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions / Rules providing certain percentage of reservations for the back ward classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.” and stated that in view of the above judgment, the question of bypassing the roster point does not arise. The learned counsel appearing for third respondent Sri P.Veera Reddy strenuously contended that there is a difference between direct recruitment roster and roster points in cases of promotion. As per Article 16(4A) of the Constitution of India, in promotions, 15% adequacy has to be strictly followed. The roster can be closed, in respect of promotions once 15% reservation is achieved. Therefore, G.O.Ms.No.2 dated 9.1.2004 read with G.O.Ms.No.5 dated 14.2.2003 would make the position very clear. In this case, admittedly, 15% comes to 2.4 and fraction being less than 0.5in the category of Scheduled Castes only two vacancies can be filled up and no further promotions shall be made even if the roster point is available. The learned counsel appearing for Tirumala Tirupati Devasthanams Sri A.K.Jayaprakash Rao reiterated the same stand as was taken by the first respondent in the counter and stated that the writ petition is misconceived and liable to be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record. The facts are not much in dispute. The crux of the matter is as to whether after satisfying the 15% adequacy, when a further roster point is available against Scheduled Caste category i.e. 16th point in the case on hand, whether the same has to be filled up with the Scheduled Caste category in spite of the fact that the 15% adequacy was achieved, or not. The cadre strength of Executive Engineers (Civil) in Tirumala Tirupati Devasthanams is 16. After introduction of reservation policy in promotions with effect from 14.2.2003, roster point in promotion started at serial No.27 and the roster point at serial Nos.2 and 7 were filled up with the candidates belonging to Scheduled Caste category. Now the petitioner claims that since he belongs to Scheduled Caste community, the sixteenth roster point is earmarked for SC candidate, as per rule 22 of the Rules, he is entitled for being promoted against roster point No.16. This appears to be unreasonable. Here it may be necessary to notice the contents of G.O.Ms.No.5 dated 14.2.2003 and G.O.Ms.No.2 dated 9.1.2004, which reads as under: G.O.Ms.No.5: “The existing 100 point roster already prescribed in Rule 22 of the Andhra Pradesh State and Subordinate Service Rules by the State Government shall be followed in cases of promotion in all the categories where reservation in promotion in favour of Scheduled Castes and Scheduled Tribes is followed.” G.O.Ms.No.2 “ROSTER POINTS: The reservation in promotions in respect of Scheduled Castes and Scheduled Tribes shall also include the gender based reservation. In respect of Scheduled Castes the reservation shall be sub-category based. The existing 100 point roster already prescribed in Rule 22 of Andhra Pradesh State and Subordinate Service Rules for direct recruitment shall be followed for implementing the rule of reservation for promotion for Scheduled Castes and Scheduled Tribes. However, insofar as providing reservation for Scheduled Castes based on sub- categorisation, the roster followed for direct recruitment shall be followed. The roster for promotion is at annexure.” Further, G.O.Ms.No.21, Social Welfare (ROR.1) Department dated 18.3.2003, which deals with rule of reservation in promotion in favour of Scheduled Castes and Scheduled Tribes under Article 16(4A) of the Constitution of India reads as under: (h) While preparing the panels of eligible candidates for promotion, the names of eligible Scheduled Caste and Scheduled Tribe employees from the feeder category have to be shown against the roster points earmarked for them irrespective of their seniority position in the feeder category. However, if a Scheduled Caste and Scheduled Tribe employee gets a higher place in the eligible candidates list by virtue of his seniority in the feeder category, he need not be adjusted in a lower position which is earmarked for a Scheduled Caste and Scheduled Tribe employee as per the roster system. Such roster point has to be filled up by moving up a Scheduled Caste and Scheduled Tribe employee who is below in the seniority list in the feeder category. Filling up the roster points shall continue till the required percentage of Scheduled Caste and Scheduled Tribe candidate is obtained. Once the required percentage is obtained by taking into account both the Scheduled Caste and Scheduled Tribe candidates who are found in the list of candidates fit for promotion on account of their seniority in the feeder category and those who are moved up to fill up the required roster point, further adjustment of Scheduled Caste and Scheduled Tribe employees against roster points has to be stopped. Clause (c) of G.O.Ms.No.123 General Administration dated 19.4.2003 reads as under: “Filling up the roster points shall continue till the required percentage of Scheduled Caste and Scheduled Tribe candidate is obtained. Once the required percentage is obtained by taking into account both the Scheduled Caste and Scheduled Tribe candidates who are found in the list of candidates fit for promotion on account of their seniority in the feeder category and those who are moved up to fill up the required roster point, further adjustment of Scheduled Caste and Scheduled Tribe employees against roster point has to be stopped.” From the above, it is clear that for the purpose of computing adequacy of representation of Scheduled Castes (15%) and Scheduled Tribes (6%) in various categories, it was clarified that if in respect of any category, adequate representation had already exists as on 14.2.2003 or is attained at a later date, the rule of reservation in promotion in favour of Scheduled Castes and Scheduled Tribes shall not be applied further. Once the adequacy is achieved to the required percentage of 15% in respect of Scheduled Castes and 6% in respect of Scheduled Tribes, in a category, the application of the rule of reservation in promotions shall be stopped and the promotions shall be effected based on merit-cum- seniority. The candidates so promoted shall be fitted into the same roster, without earmarking the reserved roster points. G.O.Ms.No.2 further contemplates that for the purpose of arriving at number of vacancies to be filled up based on rule of reservation in promotions in respect of Scheduled Castes and Scheduled Tribe categories to achieve adequacy of reservation, the fraction shall be ignored. It appears, there was some confusion about the expression ‘fraction shall be ignored’, therefore, Government issued G.O.Ms.No.76 dated 19.10.2004 amending the said expression ‘fraction shall be ignored’ and in its place, ‘the fraction of 0.5 or more shall be rounded off to the next higher digit’. In the case on hand, the cadre strength is 16. The second and seventh roster points were filled up and the 15% adequacy comes to 2.4, therefore, the fraction is 0.4 needs to be ignored and no further roster shall be followed since the adequacy insofar as Scheduled Caste category concerned, was achieved. Therefore, the submission made by the learned senior counsel appearing for petitioner that when there were (9) vacancies, only 2 vacancies were filled up and other vacancies shall be filled up when the cadre was became 16 has no relevance and thus, injustice was done to the Scheduled Caste category has no relevance to be considered at this point of time. May be, some injustice was done at one point of time, however, later the same was cured and adequacy was achieved. Therefore, that cannot be taken into consideration for the purpose of filling up the sixteenth vacancy. Once 15% adequacy is achieved and since 15% comes to 2.4 and the fraction being less than 0.5, no further point can be reserved for Scheduled Caste category. In fact, as per the Government Orders referred above, once the adequacy is achieved, the roster need not be followed and in fact it stops running. Against further vacancies, there is no necessity of following any reservation. However, if some more vacancies are added and the cadre strength becomes more than 16 and if 15% adequacy satisfies the criteria of 2.5 and more, it is necessary for the respondents to reserve another vacancy for Scheduled Caste category. In the case on hand, since the rule position i.e. G.O.Ms.No.5 dated 14.2.2003, G.O.Ms.No.2 dated 9.1.2004, G.O.Ms.No.76 dated 19.10.2004 read with Rule 22 of the Rules would make things clear that the sixteenth vacancy of Executive Engineer cannot be further reserved to Scheduled Caste category since it is a roster point as per Rule 22 of the Rules. Once the percentage of adequacy is achieved, the roster stops there and the roster does not run further and there is no necessity to follow the roster and as per merit-cum-seniority, the rest of the vacancies can be filled up. Further, the G.Os. issued by the Government particularly with regard to percentage of adequacy and ignoring fraction as explained in G.O.Ms.No.5 dated 14.2.2003 read with G.O.Ms.No.76 dated 19.10.2004 have not been challenged by the petitioner. Under those circumstances, I am of the opinion that the claim of the petitioner that he is entitled to be considered against sixteenth roster point of Executive Engineer in the TTD since the sixteenth roster point meant for Scheduled Caste category as per Rule 22 of the Rules cannot be countenanced. The method of following the roster in the direct recruitment is altogether different from following the roster while following the policy of reservation in promotion as per Article 16(4A) of the Constitution of India. For example, in a given case, the first two vacancies in the cadre of Executive Engineers are filled up by Scheduled Caste candidates on their own merit and seniority, even thus, there is no further reservation is available for Scheduled Caste category since 15% of adequacy is achieved. Thus, what is to be seen is in the total cadre strength, there should be atleast 15% of employees belonging to Scheduled Caste community should represent in promotional channel. Therefore, the contention of the learned senior counsel appearing for petitioner that whether 15% adequacy is achieved or not, since the roster is the running account, it has to be followed strictly, has no bearing insofar as promotions made under Article 16(4A) of the Constitution of India. Even following the roster seems to be only for the purpose of maintaining seniority in the promotional cadre that too upto adequacy percentage. The operation of the roster and the ‘running account’ must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether