S. RAJENDRA

v. >-

UNION OF INDIA AND ORS. .•

FEBRUARY 11, 1998

[SUJATA V. MANOHAR AND D.P. WADHWA, JJ.]

Service Law-Promotion on post reserved for SC/ST candidates-Carry forward of vacancy as per rules in case no suitable .candidate available for c recruitment on the post-Time limit for-Vacancy for the post of Deputy Superintendent of Jail notified in 1990-0nly SC candidate, had not completed three years of service to be eligible for promotion under the Rules to such post-Department applied for de-reservation of the post-Rejected by

Government_:_Government, however, allowed General category candidate to be appointed on an ad hoc basis-Reservation carried forward for three D calendar years-Reservation was to lapse in 1994-The SC candidate becoming eligible for promotion in year 1993 itself-Held general candidate appointed on an ad hoc basis is not entitled to be regularised-Government of Pondicherry, Jail Department Group C and Group D Posts (Non-A1inisterial) Recruitment Rules, 1981-Brochure on ''Reservation of Scheduled Casts and

E Scheduled Tribes'' issued by the Government of India, Chapter 11, paragraphs 11.3 and 11.1, Note (1)-Promotion-Ad hoc-Constitution of India, Article 16(4).

Words and Phrases-Phrase ''Recruitment Year' '-Meaning of-In the context of Chapter 11, paragraph 11.1 Note (1) of Brochure on ''Reservation F of Scheduled Castes and Scheduled Tribes" issued by the Government of India. y

The appellant was promoted as Assistant Superintendent of Jails on 8.2.1980. Respondent No. 3, a scheduled caste, was directly recruited as a probationer to the post of Assistant Jail Superintendent on 4.11.1988. At the G material time, the seniority list of Assistant Superintendent, the appellant was at serial No. 1 and respondent No. 3 was at serial No. 4. The next promotional post of Deputy Superintendent was to be filled as per Government -\.... --. of Pondicherry, Jail' Department, Group C and Group D Posts (Non- Ministerial) Recruitment Rules, 1981, by promotion failing which by direct

H recruitment. In the case of recruitment by promotion, the Rules as amended 786

S. RAJENDRA v. U.0.1. 787

provided that it would be by promotion from regular assistant Superintendents A

- "" who had put in not less than three years' continuous service in that grade.

Paragraph 11.3 in Chapter 11 of Brochure on "Reservation of Scheduled Castes and Scheduled Tribes" issued by the Government of India, provided for carry fonvard of reservation to subsequent three recruitment years in case of only one vacany reserved for SC or ST. But in subsequent recruitment B -·

year(s), even if there was only one vacancy, it should have been treated as "Reserved" against the carried fonvard reservation from the initial recruitment year, and a SC/ST candidate, if available, should be appointed in that vacancy.

' A single vacancy for the post of Deputy Superintendent against a c roster point which was reserved for a SC candidate arose in year 1978. In that year since no SC candidate was available it was treated as "unreserved"

~· and the reservation was carried fonvard to the next recruitment year which was 1983 when a single vacancy arose. This vacancy was treated as a

"reserved" vacancy. However, since no SC candidate was available for this D vacancy an ap1>lication was made for de-reserving this vacancy which was granted. IT was thereupon filled by a general category candidate and the reservation was carried forward or transferred to the next recruitment year which would now be the initial recruitment year for the reserved vacancy since the earlier point was de-reserved. The next recruitment year was 1990,

E when the next vacancy arose and the same was reserved for SC candidate.

Since no SC candidate was available in 1990, as respondent No. 3, being the only SC candidate, was not eligible for promotion as he had not completed his period of probation, the department applied for de-reservation, which was -

rejected and advised the Government to fill up the post on an ad hoc basis ., until a suitable SC candidate became available. Accordingly, appellant was F

--"°"' appointed Deputy Superintendent by promotion on an ad hoc basis. This vacancy was accordingly carried forward for three recruitment years being the years 1991, 1992 and 1993. In the meantime respondent No. 3 had completed three years of regular service Accordingly the department moved the Government for ap1iointing respondent No. 3 in the reserved post. The G appellant therefore, filed an application before the Central Administrative j-- Tribunal for regularisation of his appointment as a Deputy Superintendent, ~

which was allowed. However, on review of its earlier order on the ground of there being an error apparent on "the face of record, Tribunal dismissed the ap1ilication of the appellant Hence this appeal.

Dismissing the appeal, this Court

HELD : The action of respondents 1 and 2 in giving only an ad hoc promotion to the appellant appears to he justified, because they were required to carry-forward the reserved vacancy for three subsequent years under paragraph 11.3 in Chapter 11 of Brochure on "Reservation of Scheduled Castes and Scheduled Tribes" issued by the Government of India. The same Brochure in Chapter 11, paragraph 11.1 Note (1) defines 'recruitment year' to mean "a calendar year and for purposes of the three years' limit for carryforward of reserved vacancies it shall mean the year in which recruitment, is actually made." The vacancy, therefore was required to be carried forward for three calendar years starting with 1991. The reservation would lapse only in the year 1994. The occasion, however for making an appointment from the general category in 1994 did not arise. [792-A-B; 791-F)

Jogendra Sethi v. Rabindranath Behura & Ors., [1995) Suppl. 3 SCC 693 and Ma/khan Singh v. Union of India Ors., (1997) 2 SCC 33, relied on.

Areti Ray Choudhury v. Union of India (Railway Ministry), and Ors., (date of decision 11.10.1973), referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5736-5737 of 1994.

From the Judgment and Order dated 25.4.94 of the Central Administrative Tribunal, Madras in R.A.No. 7 and 22 of 1994.

R. Mohan and T. Raja for the Appellant.

Mrs. Chandan Ramamurthy for M.A. Krishnamoorthy for the Respondent No. 1-2_

Sakesh Kumar for Mis. Hathi & Co. for the Respondent.

The Judgment of the Court was delivered by

MRS. SUJATA V .. MANO HAR, J. The appellant and respondent no.3 belong to the service of the Jail Department of the Government of Pondicherry.

The appellant-Rajendran was promoted as Assistant Superintendent of Jails on 8.2.1980. The 3rd respondent was directly recruited as a probationer to the H post of Assistant Superintendent of Jails on 4.11.1988. The 3rd respondent

;.._ -

I 7

S. RAJENDRA v. U.0.1. [SUJATA V. MANOHAR, J.] 789

belongs to a Scheduled Caste. At the material time, in the seniority list of A ...----"- Assistant Superintendents, the appellant was at serial no. I and the 3rd

-u respondent was at serial no. 4. The next promotfonal post for Assistant Superintendent of Jails is the post of Deputy Superintendent which is a Grade C post with the pay scale of Rs. 1400-2300. Under the Government of Pondicheny, Jail Department, Group C and Group D posts (Non- Ministerial) B ""' Recruitment Rules, 1981, the post of Deputy Superintendent of Jails is to be filled by promotion failing which, by direct recruitment. In the case of recruitment by promotion, tlie Rules as amended provide that it will be by promotion from regular Assistant Superintendents who have put in not less than three years' continuous service in that grade. c On 23 .7.1990 a single vacancy arose in the post. of Deputy Superintendent of Jails. This vacancy was a reserved vacancy for a Scheduled Caste candidate.

The respondent no.3 was the only available Scheduled Caste candidate.

However, he was not eligible for promotion on that date since he had not completed his period of probation and had not qualified for promotion by D passing the departmental tests being jail Test and Executive Officers' Test.

Since no suitable Ssheduled Caste candidate was available for promotion, the department applied for de-reservation of the post so that a general category candidate could be appointed to that post. This request, however, was turned down and the department was advised by the Government to fill up the post E on an ad hoc basis until a suitable Scheduled Caste candidate became available.

Accordingly, the appellant was appointed Deputy Superintendent by promotion on an ad hoc basis. On 6.2. I 993 respondent no.3 became eligible for promotion since he was declared to have satisfactorily completed his period of probation and since he had also qualified by passing the two departmental tests. By y then he had also completed three years of regular service. The department F

..J accordingly moved the Government for appointing the 3rd respondent in the ..-'

reserved post. Thereupon the appellant filed an application before the Central Administrative Tribunal at Pondicheny for regularisation of his appointment as a Deputy Superintendent. His application was allowed. However, subsequently, on a review of its earlier order on the ground of there being an error apparent on the face of the record, the Tribunal dismissed the G ,_ application of the appellant. Hence, the appellant has come by way of present appeal against the order of the Tribunal in review.

The Brochure on "Reservation for Scheduled Castes and Scheduled Tribes in Services" issued by the Government of India, in paragraph 11.3 in H

A Chapter 11 deals with reservations and carry forward of a single vacancy

arising in a year. It provides as follows :- ..1... --

"In cases where only one vacancy occurs in the initial recruitment year and the corresponding roster point happens to be for a Scheduled Caste or a Scheduled Tribe, it should be treated as unreserved and filled accordingly and the reservation carried forward to subsequent three recruitment years, but in the subsequent recruitment year(s), even if there is only one vacancy, it should be treated as "Reserved" against the carried forward reservation from the initial recruitment year and a Scheduled Caste/Scheduled Tribe candidate, if available, should be appointed in that vacancy, although it may happen to be the only vacancy in that recruitment year(s)."

In.this cormection O.M.No. 1/9/74-Estt. (SCI) dated 29.4.1975 further provides that the matter has been considered in the light of the judgment of the Supreme Court dated 11th of October, 1973 in the case of Areti Ray D Choudhury v. Union of India, (Railway Ministry) & Ors., and it has now been decided that in partial modification of O.M. dated 4th of December, 1963 and 2nd of September, 1964, while in cases where only one vacancy occurs in the initial recruitment year and the corresponding roster point happens to be for a Scheduled Caste or a Schedule Tribe, it should be treated as unreserved E and filled accordingly and the reservation carried-forward to subsequent three recruitment years as hitherto. ln the subsequent years, even if there is only one vac.ancy, it should be treated as "Reserved" against the carried frow.ard reservation from the initial recruitment year and a Scheduled Caste/ Scheduled Tribe candidate, if available, should be appointed in that vacancy, although F it may happen to be the only vacancy in that recruitment year. For instance, if a single vacancy arises in the initial recruitment year 1975 and it falls at a Y reserved point in the roster, it will be treated as 'unreserved' and filled accordingly in that year but the reservation would be carried forward to subsequent recruitment years. lILthe first subsequent year i.e. 1976, if again, a single vacancy occurs, then it should be treated as 'reserved' against the G reservation carried forward from 1975 and a Scheduled Caste/Scheduled Tribe candidate should be apppinted against that vacancy. In the event of a ~ Scheduled Caste/Scheduled Tribe candidate not being available to fill the reserved vacancy in 1976, the reservation would be further carried forward to 1977 and 1978, when also a single vacancy, if any, arising in those years H should be treated as "reserved" against the carried forward reservation,

S. RAJENDRA v. U.0.1. [SUJATA V. MANOHAR, J.] 791

whereafter, the reservation will lapse.

In the present case, a single vacancy for the post of Deputy Superintendent against a roster point which was reserved for a Scheduled Caste candidate arose in the year 1978. This was the initial recruitment year.

In that year since no Scheduled Caste candidate was availble it was treated as "unreserved" and the reservation was carried forward to the nex1 recruitment B year which was 1983 when a single vacancy arose. This vacancy was treated as a "reserved" vacancy. However, since a Scheduled Caste candidate was not available for this vacancy an application was made for de-reserving this vacancy which was granted. It was thereupon filled by a general category candidate and the reservation was carried forward or transferred to the next C recruitment year which would now be the initial recruitment year for the reserved vacancy since the earlier point was de-reserved. The next recruitment year was 1990 when the next vacancy arose. This is how the vacancy which arose on 23rd of July, 1990 was reserved for a Scheduled Caste candidate.

Since no Scheduled Caste candidate was available in 1990 and since the D application of the department for de-reservation was rejected, this vacancy as per the rules set out above, was required to be carried fonvard for three recruitment years. The vacancy was accordingl:y carried forward for the next three recruitment years being the.years 1991, 1992 and 1993. In 1994 the reservation would have lapsed if no suitable Scheduled Caste candidate was available. However, in 1993 the 3rd respondent was available for filling up the E reserved vacancy in the Scheduled Caste category. That is why, to prevent the appointment ofrespondent no.3, the appellant filed the application before the Central Administrative Tribunal in July 1993.

In the background of this factual position, the action of respondents 1 p and 2 in giving only an ad hoc promotion to the appellant appears to be justified. Because they were required to carry-forward the reserved vacancy for three subsequent years. The reservation would lapse only in the year

1994. The occasion, however for making an appointment from the general category in 1994 did not arise.

G In the case of Jogendra Sehti v. Rabindranath Behura & Ors., [1995] Supp. 3 SCC 693, this Court considered the provisions with regard to reservation of posts for Scheduled Castes and Schedule Tribes in Orissa made in the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1971. It considered the provision H

A for carry-forward of vacancy for three years of recruitment and held that the first recruitment year would be the year in which the vacancy arose and it was ;.... required to be carried forward for three subsequent calendar years looking to the definition of "recruitment year" in the said Act. Under the Brochure on "Reservation For Scheduled Castes and Scheduled Tribes in Services" also, B in Chapter 11, paragraph 11.1 Note (1) defines 'recruitment year' to mean "a

calendar year and for pmposes of the three years' limit for carry-forward of reserved vacancies it shall mean the year in which recruitment is actually made." The vacancy, therefore, was required to be carried forward for three calendar years starting with 1991. (See also in this connection Ma/khan Singh

v. Union of India & Ors., [1997] 2 SCC 33. c In the premises the Tribunal had correctly reviewed its earlier order and dismissed the application of the appellant. The present appeals are, therefore, dismissed. There will, however, be no order as to costs.

R.K.S.

Appeals dismissed.