Supreme Court of India

Union Of India And Ors. Etc vs Virpal Singh Chauhan Etc on 10 October, 1995

Equivalent citations: 1996 AIR 448, 1995 SCC (6) 684, AIR 1996 SUPREME COURT 448, 1995 (6) SCC 684, 1995 AIR SCW 4309, (1996) 1 SERVLJ 65, (1995) 7 JT 231 (SC), (1995) 31 ATC 813, (1995) 2 CURLR 1109, (1995) 2 ORISSA LR 615, 1996 SCC (L&S) 1, (1996) 1 ALL WC 105, (1995) 4 SCT 695

Author:
B.P. Jeevan Reddy

Bench:
B.P. Jeevan Reddy
,
S.C. Agrawal

PETITIONER:
UNION OF INDIA AND ORS. ETC.

Vs.

RESPONDENT:
VIRPAL SINGH CHAUHAN ETC.

DATE OF JUDGMENT10/10/1995

BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
AGRAWAL, S.C. (J)

CITATION:
1996 AIR 448 1995 SCC (6) 684
JT 1995 (7) 231 1995 SCALE (5)648

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T
B.P. JEEVAN REDDY, J.

C.A. NOS.9272-73 & 9277 1995 (ARISING OUT OF S.L.P. (C)
NOS.6468 OF 1987, 1682/88, AND 8111/94), C.A. NO.2261/87,
5044/89, 4436/90, 18/90, W.P. (C) 1208/87 AND 565/93. [Main
Opinion]
Leave granted in Special Leave Petitions.

1. These appeals/writ petitions raise an important but
difficult question concerning the nature of rule or
reservation in promotions obtaining in the Railway service
and the rule concerning the determination of seniority
between general candidates and candidates belonging to
reserved classes in the promoted category. The issue is best
illustrated by taking the facts in the first of these
matters, viz., Union of India and Ors. v. Virpal Singh
Chauhan - civil appeal No.9272/95 arising from Special Leave
Petition (C) No.6468 of 1987. The appeal is preferred
against the judgment of the Central Administrative Tribunal
(Allahabad Bench) disposing of Original Application No.647
of 1986 with certain directions. [It was originally filed as
a writ petition in the Allahabad High Court which, on the
constitution of the Central Administrative Tribunal
(Allahabad Bench), was transferred to the Tribunal.] It was
filed by, what may be called for the sake of convenience,
employees not belonging to any of the reserved categories
(hereinafter referred to as "general candidates" - which
means open competition candidates). The railway
Administration as well as the employees belonging to
reserved categories, i.e., Scheduled Castes and Scheduled
Tribes were impleaded as respondents. The writ
petition/original application came to be filed in the
following circumstances:

Among the category of Guards in the Railway service,
there are four categories, viz., Grade `C' Grade `B' Grade
`A' and Grade `A'special. The initial recruitment is made to
Grade `C' and they have to ascend rung after rung to go
upwards. The promotion from one grade to another in this
category is by seniority-cum-suitability. In other words,
they are "non-selection posts". The rule of reservation is
applied not only at the initial stage of appointment to
Grade `C' but at every stage of promotion. The percentage
reserved for Scheduled Castes is fifteen percent and for
Scheduled Tribes 7.5%, a total of 22.5 percent. To give
effect to the rule of reservation, a forty-point roster was
prepared in which certain points were reserved for Scheduled
Castes and Scheduled Tribes respectively, commensurate with
the percentage of reservation in their favour. For Scheduled
Castes candidates, the places reserved in the roster were:

1, 8, 14, 22, 28 and 36 and in the case of Scheduled Tribes
candidates, they were: 4, 17 and 31. Subsequently, a
hundred-point roster has been prepared, again reflecting the
aforesaid percentages.

2. In the year 1986, the position was that both the
petitioners in the original appalication (general
candidates) and the party-respondents in the said original
application (members of Scheduled Castes and Scheduled
Tribes) were in the grade of Guards Grade `A' in the
Northern Railway. On August 1, 1986, the Chief Controller,
Tundla passed orders promoting certain general candidates on
ad hoc basis to Grade `A' special. Within less than three
months, however, they were sought to be reverted and in
their place, members of Scheduled Castes/Scheduled Tribes
were sought to be promoted. Compalining that such a course
of action is illegal, arbitrary and unconstitutional, the
general candidates approached the High Court, which
petition, as stated above, was transferred to the Tribunal.
The general candidates asked for three reliefs, viz., (a) to
restrain the Railway authorities from filling up the posts
in the higher grades in the category of Guards by applying
the rule of reservation; (b) to restrain the Railway
Administration from acting upon the illegal seniority list
prepared by them; and (c) to declare that the petitioners
(general candidates) are entitled to be promoted and
confirmed in Guard Grade `A' special on the strength of
their seniority earlier to the reserved category employees.
Their contention, in short, was (1) that once the quota
prescribed for a reserved category is satisfied, the rule of
reservation - or the forty-point roster prepared to give
effect to the said rule - cannot be applied or followed any
longer and (2) that the forty-point roster is prepared only
to give effect to the rule of reservation. It may provide
for accelerated promotion but it cannot give seniority also
to a reserved category candidate in the promoted category.
According to them, the seniority in Guard Grade `C' should
govern and should be reflected in all subsequent grades
notwithstanding the earlier promotion of the members of the
reserved categories. Their case was that even if a reserved
category member `X' is promoted from Grade `C' to Grade `B'
earlier than his senior `Y' (general candidate), the
position should be that when the general candidate also gets
promoted later to Grade `B' which means that in Grade `B',
`Y' again becomes senior to `X'. They submitted that this
should be the rule to be followed to ensure that command of

Articles 14
and
of the Constitution of India prevails.
They relied upon two decisions of the Allahabad High Court
and another decision of Madhya Pradesh in support of their
contention. They also relied upon certain circulars of the
Railway Board in this behalf.

3. The case of the Railway Administration (Respondent
Nos.1 to 4 in the original application) was that the
Administration is maintaining seperate seniority lists for
each of the grades in the category of Guards according to
the policy in voque. The ad hoc promotions of general
candidates ordered on August 1, 1986 were irregular inasmuch
as the seniors in the category of Grade `A' Guards were
ignored and juniors promoted by the Chief Controller,
Tundla. The Chief Controller, Tundla was not competent to
order the said ad hoc promotions. The promotions ordered
later of Scheduled Castes/Scheduled Tribes candidates is
strictly in accordance with the seniority position in Grade
`A' and is unobjectionable. The Administration submsitted
that seniority is determined on the basis of the date of
promotion and since promotion effected applying the forty-
point roster cannot be said to be an ad hoc promotion, a
Scheduled Caste/Scheduled Tribe candidate promoted earlier
to a particular grade becomes senior to another candidate,
general or otherwise, who is promoted to that grade later.
In short, according to them, the date of promotion to a
particular grade determines the seniority in that grade.

4. The reserved candidates (respondents in the original
application) supported the stand of the Administration. They
submitted that the seniority list pertaining to Guards Grade
`C' is not relevant and cannot be followed in the matter of
promotion to Grade `A' special from Grade `A'. For the
purpose of promotion to Grade-a special, the seniority list
pertaining to Grade `A' should be followed and since in that
grade, the Scheduled Castes/Scheduled Tribes candidates were
seniors, they were entitled to be promoted to Grade `A'
Special earlier than their juniors in that seniority list.
They submitted that the seniority in a grade should be
determined according to the date of promotion/appointment to
that grade and not in any other manner. They submitted that
inasmuch as in the higher grades, the representation of
Scheduled Castes/Scheduled Tribes members was quite
inadequate, the Scheduled Castes/Scheduled Tribes candidates
obtained rapid promotions from one grade to another but it
is neither contrary to the rules nor is it inconsistent with

Articles 16
and
14.
In fact, the very rule of reservation in
promotions is meant to increase the representation of
Scheduled Castes/Scheduled Tribes candidates in the higher
echelons of services quickly. No exception can be taken to
the said rule, they submitted.

5. Since the Tribunal has strongly relied upon two
decisions of the Allahabad High Court and a decision of the
Madhya Pradesh High COurt, it would be appropriate to refer
to their ratio briefly.

6. In Civil Writ Petition No.1809 of 1972, J.C. Mallik v.
Union of India, the allahabad High Court held that the rule
of reservation or the forty-point roster, as the case may
be, cannot be followed and applied once the representation
of Scheduled Castes/Scheduled Tribes in a particular grade,
cadre or service, reaches the prescribed level of
percentage. In other words, once the quota of 22 1/2% in
favour of Scheduled Castes/Scheduled Tribes is satisfied,
the rule of reservation/forty-point roster can no longer be
followed and applied.
It may be mentioned that this decision
has since been referred with approval in the Constitution
Bench decision in
R.K. Sabharwal v. State of Punjab
(1995
(2) S.C.C.745).

7. The other decision of the Allahabad High Court is in
Second Appeal No.2745 of 1983 arising from Suit No.308 of
1981, M.P. Dwivedi v. Union of India & Ors. The learned
District Judge, whose decision was under appeal in the said
second appeal, had decreed the suit filed by the general
candidates in the following words: "The defendants-
appellants, their agents and servnts are restrained by means
of permanent injunction from filling up the posts of higher
grade in the category of Guards by way of reservation in
favour of Scheduled Castes and Scheduled Tribes candidates
in excess of fixed by Railway Board. Their claim for
declaration to the effect that they are entitled to be
promoted to the higher grades in the category of Guards on
the strength of their seniority list prepared by the
defendant for Guards Grade-C on their initial grades is also
decreed". When the matter came to the High Court, the
learned Single Judge, who disposed of the second appeal,
held:

"(A)fter having considered the entire
position I am of the opinion that in the
present case promotion from grade `A' to
`A' Special cannot be made on the basis
of reservation so long as Guards
belonging to Scheduled Castes or
Scheduled Tribes class in grade 1A'
Special are in excess of the percentage
reserved for them. The position,
however, will always remain fluctuating
and will have to be reviewed by the
authorities from time to time. But the
right of Scheduled Castes and Scheduled
Tribes candidates to promotion merely on
the basis or their seniority-cum-

suitability without any reference to
reservation will not be barred. As and
when percentage of Scheduled Castes and
Scheduled Tribes guards in grade
Scpecial goes down below the requisite
percentage their right to promotion on
the basis of reservation will revive.

Subject to this modification the decree
for injunction passed by the Court below
is confirmed and the appeals are
dismissed."

8. The judgment of the Madhya Pradesh High Court is in
G.C. Jain v. Divisional Rail Manager, Central Railway
(reported in 1986 (1) S.L.R.588). The passage relied upon by
the Tribunal reads thus:

"Those SC & ST candidates who have come
or been promoted due to reservation
quota, having already jumped the queue,
cannot be permitted to compete with
general candidates for further
promotion. They are a special class by
themselves and they have only to go to
the reserve quota for further promotion.
If the reserve quota is already full in
the next grade, the SC & ST candidates
just below that grade in the reserve
quota will have to wait till vacancy
occurs in the higher grade in the
reserve quota. However, we want to make
it clear that this will not apply to
such SC & ST candidates who on their own
in competition with the general
candidates have atained their present
position and not due to reservation,
they are entitled to compete further
with the general candidates and they
will not be affected for promotion in
the general quota even if the reserved
quota is full in the next higher grade".

9. On the basis of the aforesaid decisions and certain
circulars of the Railway Board, which will be referred at a
later stage, the Tribunal laid down the following principles
in Para-26 of its judgment. (We have split up the paragraph
into several sub-paras to bring out the several principles
distinctly):

"26. To clarify the position further we
will enunciate the principles of
determining seniority in situations as
are under dispute here.

The basic seniority in grade `C'
will be the quiding seniority list for
the cadre of quards.

Reservations in promotions would be
made against posts in the grades and not
against vacancies.

Persons who are promoted by virtue
of the application of roster would be
given accelerated promotion but not the
seniority.

The seniority in a particular grde
amongst the incumbents available for
promotion to the next grade will be
recast each time new incumbents enter
from the lower grade on the basis of the
initial grade `C' Guard who gets
promoted to grade `B' or from grade `B'
to grade `A' and so on will find his
position amongst the incumbents of that
grade on the basis of the original grade
`C' seniority.

Such persons as are superseded for
any reasons other than on account of
reservation will be excluded. A person
superseded on account of a punishment or
unfitness will count his seniority on
the revised basis and not on original
grade `C' seniority.

The reserved community candidates
who are senior not by virtue of
reservations but by the position in
grade `C' selections which the grade `C'
seniority list will automatically take
care of, will not wait for reservation
percentage to be satisfied for their
promotion. They will get promoted in
their normal turn irrespective of the
percentage of reserved community
candidates in the higher grade. Others
who get promoted as a result of
reservation by jumping the queue will
wait for their turn.

Reservation will again have to be
applied on depletion of the reservation
quota in the higher grade to make good
the shortfalls."

10. The Tribunal directed that a fresh seniority list be
drawn in the light of the principles enunciated by it in
Para-26 and promotions made on that basis. The Tribunal
rejected the contention of the general candidates that "no
promotions at all be made for reserved community candidates
because quota is full". Similarly, it rejected the
contention of the general candidates (petitioners in the
original applaication) that all promotions in the higher
grades shall be made on the basis of the seniority list
pertaining to Grade `C' alone. It held that the seniority
list will be separately prepared for each grade in
accordance with the principles enunciated by it and that the
list must be updated every time there is promotion to that
category. It clarified that a reserved community candidate
who gets promotion on his own merit and not on the basis of
rule of reservation-cum-forty-point roster will be entitled
to be promoted irrespective of the quota position. But those
reserved community candidates who obtained promotion by
jumping the queue on the basis of rule of reservation will
get the promotion on the basis of the revised seniority list
to be prepared in accordance with the directions contained
in Para-26.

11. The Indian Railway Establishment Manual, Volume-I,
contains instructions regulating inter alia seniority of
non-gazetted Railway servants. They are contained in
Chapter-III. Para 306 says, "candidates selected for
appointment at an earlier selection shall be senior to those
selected later irrespective of the dates of posting except
in the case covered by paragraph 305 above". Para 309 reads:

"SENIORITY ON PROMOTION.-- Paragraph 306 above applies
equally to seniority in promotion vacancies in one and the
same category due allowance being made for delay, if any, in
joining the new posts in the exigencies of service." Para
314 says that subject to Paragraphs 302 to 306, "when the
dates of appointment to the grade are the same, the date of
entry into the grade next below it shall determine
seniority". Para 319 deals with seniority on promotion to
non-selection posts. This paragraph states that "promotion
to non-selection posts shall be on the basis of seniority-
cum-suitability, suitability being judged by the authority
competent to fill the post, by oral and/or written test or a
departmental examination or a trade test or by scrutiny of
record of service as considered necessary." It further says
that "a railway servant, once promoted in his turn after
being found suitable against a vacancy, which is non-
fortuitous, should be considered as senior in that grade to
all others who are subsequently promoted after being found
suitable".

12. So far as the rule of reservation is considered, it has
been made applicable to Railway service by orders issued by
the Railway Board from time to time pursuant to and in
obedience to the policy decisions of the Ministry of Home
Affairs. The decision of this Court in
Akhil Bhartiya Soshit
Karamchari Sangh v. Union of India
(1981 (1) S.C.C.264)
refers to the several orders issued from time to time in
this behalf. They are also found at Pages 4 to 6 (Chapter-I)
and Pages 59 to 89 (Chapter-III) of the Brochure on
Reservation for Scheduled Castes and Scheduled Tribes in
Railway Services (Third Edition-1985). We do not think it
necessary to refer to them in this judgment since we are
concerned herein not with the validity of the rule of
reservation but with its nature and its effect upon the
question of seniority. We shall, therefore, refer to the
Railway Board's circulars alone relevant on this aspect.
Here too, we will refer first to orders applicable to non-
selection posts. Railway Board's letter dated 13th August,
1959 is of a general nature. It says that "as a general rule
the seniormost candidate should be promoted to a higher non-
selection post, susbject to his suitability. Once promoted
against a vacancy which is non-fortuitous, he should be
considered as senior in the grade to all others who are
subsequently promoted". [Printed at Page 507 in Chapter-XII
of the Brochure aforesaid]*. The Railway Board's letter
dated August 31, 1982 (at Page 512 - Chapter XII of the
Brochure) deals with the subject "Reservation for Scheduled
Castes and Scheduled Tribes in promotion in Group `D' and
`C' (Class IV and III) on the basis of seniority-cum-
suitability". Para-4 of the letter reads:

"Against the above background, the
matter has been reviewed by the Board.

It has been decided that posting of
Scheduled Caste/Scheduled Tribe
candidates on promotions in non-

selection posts should also be done as
per the reserved points on the roster
susbject, however, to the condition that
seniority of the Scheduled
Caste/Scheduled Tribe candidates in
comparison to other candidates will
continue to be governed by the panel
position in the case of categories where
training is not provided and in
accordance with the merit position in
the examination where training is
provided."

(Emphasis added)

------------------------------------------------------------
* The several circulars and orders issued by the Railway
Board from time to time are arranged chapter-wise in the
said Brochure. Chapter-V deals with Rosters, Chapter-IX with
promotion to non-selection posts and Chapter-XII with
confirmation and seniority. The Brochure is published by the
Government of India, Ministry of Railways (Railway Board),
New Delhi.

13. It is evident that this letter is speaking of the
seniority position in the initial entry category/grade. It
says that while posting shall be done as per roster points,
seniority shall continue to be governed by the ranking given
in the selection list/panel. This clearly brings out the
departure being made from the normal principle that the date
of entry in a category/grade determines the seniority.

14. Indeed, the Railway Board's letter dated January 19,
1972 (Pages 194-195 - Chapter-VIII dealing with promotion to
selection posts - of the Brochure) shows that even in the
case of promotions made on the basis of merit, the same
principle applies.

15. The Railway Board's letter dated October 20, 1960
referred to in the judgment of Madhya Pradesh High Court in
G.C. Jain says, "seniority of SC/ST employees will be
determined under the normal rules. The reservation roster is
considered only a machinery to ensure the prescribed
percentage of reservation for SC/ST employees and should not
be related to the question of seniority and confirmation. If
any of the SC/ST employee is confirmed in the post by virtue
of roster, such confirmation will not give them any benefit
in respect of seniority". Again, the very same idea stated
clearly.

16. At Page 503 of the Brochure, in Chapter-XXII dealing
with confirmation and seniority, Railway Board's letter
dated February 11, 1972 is extracted, the relevant portion
whereof reads:

"Sub: Reservation for Scheduled Castes
and Scheduled Tribes-- Application of
roster both at the time of initial
recruitment and confirmation.

Reference Board's letter No.E(SCT)
62CM15/7 dated 20th April 1963 which
provides that the reservation roster is
to be applied only at the time of
initial recruitment and that
confirmation should be made in the order
of seniority which in the case of non-
trained categories is determined on the
basis of the position in the panel
supplied by the Railway Service
Commission and in the case of trainee
categories on the basis of the merit
position in the examination.

2. The Board after careful
consideration have decided that in the
posts filled by direct recruitment on or
after the date of issue of this letter,
reservation may be made for Scheduled
Castes and Scheduled Tribes both at the
time of initial appointment on temporary
basis as well as at the time of
confirmation. In posts filled by
promotion, however, no reservation is
admissible at the stage of confirmation
of promotees and the existing procedure
of confirming employees in order of
their panel position may continue."

(Emphasis added)

17. Again at Page 508, extracts of Railway Board's letter
dated January 19, 1972 are set out, which read:

"3. The seniority of candidates
belonging to Scheduled Castes and
Scheduled Tribes vis-a-vis others will
continue to be determined as at present,
i.e., according to the panel position in
the case of categories where training is
not provided and in accordance with the
merit position in the examination where
training is provided."

And finally at Page 512, the circular/letter of the
Railway Board dated August 31, 1982 is set out, which has
already been extracted hereinbefore.

18. Pausing here for a moment, we must explain what does
panel mean and signify in the case of promotions. Though we
enquired repeatedly, this aspect could not be clarified by
the learned Additional Solicitor General. In particular, we
wanted to know whether a panel is prepared only in the case
of selection posts or is it also prepared in the case of
non-selection posts. The several instructions in Indian
Railway Establishment Manual are also not helpful on this
aspect. We are, therefore, left to interpret the expression
ourselves. Having regard to the fact that in all the above
circulars/letters, the expression "panel" has been used to
denote a merit list or select list, as it may be called, we
think it reasonable to understand as a panel which is
prepared in the case of selection posts only. In the case of
non-selection posts, there is no question of such a panel.
In their case, the senior is promoted automatically unless
he is found to be unsuitable to hold the promotion post. No
panel, i.e., merit list or select list is called for in the
case of non-selection posts. May be, ultimately, a list of
persons to be promoted is prepared but that is neither a
merit list, nor a select list.

19. Sri Altaf Ahmed, learned Additional Solicitor General
questioned the correctness and validity of the principles
enunciated by the Tribunal in Para-26 of its judgment. He
submitted that according to the Indian Railway Establishment
Manual, seniority is determined by the date of
promotion/appointment to the concerned grade and that the
said principle cannot be altered or departed from in the
name of ensuring equality. Once the rule of reservation is
remembered that in the higher echelons of administration,
representation of Scheduled Castes/Scheduled Tribes has been
inadequate all these years, there is nothing surprising if
the members of Scheduled Castes/Scheduled Tribes get
promotions sooner and earlier than the general candidates.
This is the natural consequence of applying the rule of
reservation in promotions - and not an unintended one. The
said consequence cannot, therefore, be a basis for evolving
a rule which partially off-sets the very purpose and meaning
of the rule of reservation. Sri Altaf Ahmed further
submitted that effecting promotions in accordance with the
roster vacancies are not and cannot be called "fortuitous
promotions". They are regular vacancies and promotion to
them is a regular promotion. He relied upon the decision of
the Central Administrative Tribunal in Durga Charan Haldar
v. Union of India (Original Application No.854 of 1990)
wherein it has been held that the date of promotion,
effected following the forty-point roster/hundred-point
roster, is determinative of seniority. He submitted that the
decision of the Central Administrative Tribunal (Patna
Bench) to the contrary is the subject matter of appeal in
this batch. The Patna Tribunal has followed the decision of
the Allahabad Tribunal in Virpal Singh Chauhan.

20. Sri Rajeev Dhawan, learned counel appearing for the
respondents-general candidates, put forward the following
submissions while opposing the contentions of the learned
Additional Solicitor General:

(i)
Article 16(4)
of the Constitution enables the State to
define the extent and nature of the benefits to be extended
to the backward classes. It is not as if there is only one
particular method of providing reservations under the said
clause.

(ii) The purpose behind
Article 16(4)
is to ensure adequate
representation to backward classes in the administrative
apparatus of the State. The purpose of
Article 16(4)
is only
to ensure aequate representation and not to confer
additional benefits - other than those which logically flow
from the rule of reservation. As soon as adequate
representation is achieved, the rule of reservation must be
kept in abeyance and if there is a roster the application of
the roster must be stopped.

(iii) A harmonious construction of clauses (4) and (1)
of
Article 16 -
both of which are indeed facets of the very
same principle of equality - implies that while the members
of reserved categories will be entitled to equal treatment
in all matters relating to service conditions, they cannot
claim accelerated seniority in addition to accelerated
promotion. If this principle is not recognised, it would
result in the reserved category members stealing an
additional march over the general candidates which defeats
the quarantee of equality extended by
Article 16(1)
to
general candidates. In other words, giving accelerated
seniority in addition to accelerated promotion amounts to
conferring double benefit upon the members of reserved
category and is violative of rule of equality in
Article
16(1).

(iv) The command of
Article 335
of the Constitution shall
also have to be kept in mind in this behalf. Accelerated
promotion-cum-accelerated seniority is destructive of the
efficiency of administration inasmuch as by this means the
higher echelons of administration come to be occupied almost
entirely by members of reserved categories - at any rate,
far beyond the percentrage of reservation prescribed for
them.

(v) The decisions of this Court clearly establish the
distinction between promotion and seniority. It would be too
simplistic to say that seniority automatically follows the
promotion.

(vi) A candidate belonging to reserved category
appointed/promoted on the basis of rule of reservation
should not be held entitled to compete for a general vacancy
in the roster. They should be confined to reserved vacancies
alone. Non-observance of this rule has resulted in a
situation where in the higher grades of Railway Guards the
representation of Scheduled Castes/Scheduled Tribes has
risen upto seventy percent (in the case of Guard Super
Grade) and forty percent (in the case of Guard Grade `A'
Special) instead of 22.5 percent. This anomaly cannot be
allowed to occur.

21. Sri K.B. Rohtagi, learned counsel appearing for the
respondents in Civil Appeal No.2261 of 1987 (for Guards
belonging to Scheduled Castes/Scheduled Tribes categories)
supported the contentions of the learned Additional
Solicitor General.

------- ------X------------X------------

22. Clause (4) of
Article 16
of the Constitution enables
the State to make "any provision for the reservation of
appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not
adequately represented in the services under the State."
In

Indra Sawhney v. Union of India
(1992 Suppl.(III)
S.C.C.217), it has been held by the majority (in the opinion
delivered by one of us, B.P. Jeevan Reddy, J.):

"The question then arises whether clause
(4) of
Article 16
is exhaustive of the
topic of reservations in favour of
backward classes. Before we answer this
question it is well to examine the
meaning and content of the expression
`reservation'. Its meaning has to be
ascertained having regard to the context
in which it occurs. The relevant words
are any provision for the reservation of
appointments or posts'. The question is
whether the said words contemplate only
one form of provision namely reservation
simpliciter, or do they take in other
forms of special provisions like
preferences, concessions and exemptions.

In our opinion, reservation is the
highest form of special provision, while
preference, concession and exemption are
lesser forms. The constitutional
schemeand context of
Article 16(4)

induces us to take the view that larger
concept of reservations takes within its
sweep all supplemental and ancillary
provisions as also lesser types of
special provisions like exemptions,
concessions and relaxations, consistent
no doubt with the requirement of
maintenance of efficiency of
administration - the admonition of

Article 335.
The several concessions,
exemptions and other measures issued by
the Railway administration and noticed
in Karamchari Sangh (1981 (1) S.C.C.246)
are instances of supplementary,
incidental and ancillary provisions made
with a view to make the main provision
of reservation effective i.e., to ensure
that the members of the reserved class
fully avail of the provision for
reservation in their favour. The other
type of measure is the one in Thomas
(1976 (2) S.C.C.310). There was no
provision for reservation in favour of
Scheduled Castes/Scheduled Tribes in the
matter of promotion to the category of
Upper Division Clerks. Certain tests
were required to be passed before a
Lower Division Clerk could be promoted
as Upper Division Clerk. A large number
of Lower Division clerks belonging to
SC/ST were not able to pass those tests,
with the result they were stagnating in
the category of LDCs. Rule 13-AA was
accordingly made empowering the
Government to grant exemption to members
SC/ST from passing those tests and the
government did exempt them, not
absolutely, but only for a limited
period. This provision for exemption was
a lesser form of special treatment than
reservation. There is no reason why such
a special provision should not be held
to be included within the larger concept
of reservation."

23. This statement of law makes it clear that there is no
uniform or prescribed method of providing reservation. The
extent and nature of reservation is a matter for the State
to decide having regard to the facts and requirements of
each case. Such a situation was indeed dealt with in

National Federation of State Bank of India v. Union of India
& Ors.
(1995 (3) S.C.C. 432) [rendered by one of us, B.P.
Jeevan Reddy, J. on behalf of the Bench which included R.M.
Sahai and S.C. Sen, JJ.]. In the case of service under
Public Sector Banking Institutions, while reservation in
promotions was provided in the case of promotion from Class-
IV to Class-III, Class-III to Class-II and from Class-II to
Class-I, no such reservation was provided so far as
promotions within Class-I were concerned. Only a concession
(set out in the judgment) was provided in favour of
Scheduled Castes/Scheduled Tribes candidates with a view to
enable them to obtain promotions within Clas-I which they
may not have obtained otherwise. It was held by this Court
that such a concession can also be provided under
Article
16(4).
In short, it is open to the State, if it is so
advised, to say that while the rule of reservation shall be
applied and the roster followed in the matter of promotions
to or within a particular service, class or category, the
candidate promoted earlier by virtue of rule of
reservation/roster shall not be entitled to seniority over
his senior in the feeder category and that as and when a
general candidate who was senior to him in the feeder
category is promoted, such general candidate will regain his
seniority over the reserved candidate notwithstanding that
he is promoted subsequent to the reserved candidate. There
is no unconstitutionality involved in this. It is
permissible for the State to so provide. The only question
is whether it is so provided in the instant case?

24. It is the common case of the parties before us that the
rule of reservation in the Railway services - to be more
precise to the category of Railway Guards, whether in the
matter of initial appointment or in the matter of promotion,
from one grade to another, is provided by the
circulars/letters of the Railway Board. These
circulars/letters have been issued by the Railway Board in
exercise of the power conferred upon it by Rule 123 of the
Statutory Rules framed by the President of India. We have
referred to the circulars/letters of the Railway Board
hereinbefore. In the circular/letter dated August 31, 1982
which deals with the subject of "Reservation for Scheduled
Castes and Scheduled Tribes in promotion in Group `D' and
`C' (Class IV and III) on the basis of seniority-cum-
suitability" it is specifically ordered that while "posting
of Scheduled Caste/Scheduled Tribe candidates on promotions
in non-selection posts should also be done as per the
reserved points on the roster", such promotion shall be
"subject to the condition that seniority of the Scheduled
Caste/Scheduled Tribe candidates in comparison to other
candidates will continue to be governed by the panel
position in the case of categories where training is not
provided and in accordance with the merit position in the
examination where training is provided". So far as the
several grades among Railway Guards are concerned, the
relevant service conditions do not provide for any training
followed by examination on promotion from one grade to
another. Hence, the seniority between the reserved category
candidates and general candidates in the promoted category
shall continue to be governed by their panel position. We
have discussed hereinbefore the meaning of the expression
"panel" and held that in case of non-selection posts, no
"panel" is prepared or is necessary to be prepared. If so,
the question arises, what did the circular/letter dated
August 31, 1982 mean when it spoke on seniority being
governed by the panel position? In our opinion, it should
mean the panel prepared by the selecting authority at the
time of selection for Grade `C'. It is the seniority in this
panel which must be reflected in each of the higher grade.
This means that while the rule of reservation gives
accelerated promotion, it does not give the accelerated - or
what may be called, the consequential - seniority. There is,
however, one situation where this rule may not have any
practical relevance. In a given case, it may happen that by
the time the senior general candidate gets promoted to the
higher grade, the junior reserved category candidate (who
was promoted to the said higher grade earlier) may got
promoted to yet higher grade. In other words, by the time
the senior general category candidate enterss, say, Grade
`B', his junior Scheduled Caste/Scheduled Tribe candidate is
promoted to Grade `A'. It is obvious that in such a case,
the rule evolved in the aforesaid circulars does not avail
the senior general candidate for there can be no question of
any seniority as between, say, a person in `B' grade and a
person in `A' grade.

25. Now let us see how does the above principle operate in
practice. Selection is made for direct recruitment to Grade
`C' Guards. A panel is prepared by the selecting authority
on the basis of and in the order of merit. Appointments have
to be made from out of this list/panel. But appointment
orders will not be issued in the order in which the
candidates are arranged in this select list/panel; they will
be issued following the roster. Suppose the forty-point
roster is being operated afresh, then the first vacancy
inthe roster would go to a Scheduled Caste candidate though
he may be down below in the select list/panel. The candidate
at Sl. No.1 in the said select list - a general candidate -
will be appointed in the second vacancy. But once appointed,
the general candidate (at Sl. No.1 in the select list) will
rank senior to the Scheduled Caste candidate though he
(general candidate) is appointed subsequent to the Scheduled
Caste candidate. Now take the case of promotions (based on
seniority-cum-suitability, i.e., non-selection posts) to
Grade `B'. Roster applies even to promotions to Grade B'.
Again assume that the forty-point roster is opening now in
Grade `B'. The first vacancy has again got to go to a
Scheduled Caste candidate though he may not be the senior-
most in Grade `C'. The senior-most candidate in Grade `C'
(the general candidate, who was at Sl. No.1 in the select
list/panel and who regained his seniority on appointment to
Grade `C' as aforestated) will be promoted in the next
vacancy. But once promoted, the general candidate again
becomes senior to the Scheduled Caste candidate though
promoted subsequent to the Scheduled Caste candidate. And so
on and so forth. It is in this manner that the rule of
reservation (and the roster) merely enables a reserved
category candidate to obtain an appointment or promotion, as
the case may be - which he may not have obtained otherwise
or would not have obtained at the time he is now getting -
but it does not give him the seniority. In this sense, the
rule confers a limited benefit - a qualified benefit. We
have already stated that such a rule of reservation does not
fall foul of
Article 16(4).

26. We are of the opinion that the aforesaid
circulars/letters providing for reservation in favour of
Scheduled Castes/Scheduled Tribes candidates, rosters and
their operation and on the subject of seniority as between
general candidates and reserved category candidates, being
in the nature of special rules prevail over the general
instructions contained in Volume-I of the Indian Railway
Establishment Manual including those contained in Paras 306,
309 and 319 et al. Accordingly, we agree with the conclusion
of the Tribunal in the order under appeal (Virpal Singh
Chauhan) though we may not agree with all the reasons given
by the Tribunal. In other words, we may not agree with the
view expressed by the Tribunal that a harmonious reading of
Clauses (1) and (4) of
Article 16
should mean that a
reserved category candidate promoted earlier than his
senior-general category candidate in the feeder category
shall necessarily be junior in the promoted category to such
general category candidate. No such principle may be said to
be implicit in the said clauses. But inasmuch the Railway
Board's ciruclars concerned herein do provide specifically
for such a situation and since they cannot be said to be
violative of the constitutional provisions, they must
prevail and have to be given effect to. It is not brought to
our notice that the said instructions are inconsistent in
any manner with any of the statutory provisions or statutory
rules relevant in this behalf.

27. So far as the other question considered by the Tribunal
(viz., that once the representation of the reserved
categories in a given unit of appointment reaches the
prescribed percentage, the rule of reservation or the roster
based on it cannot be given effect to), the Constitution
Bench decision of this Court in
R.K. Sabharwal v. State of
Punjab
settles the issue. In this decision, it has been held
that where the total number of posts in a cadre reserved for
reserved candidates are filled by operation of a roster, the
object of rule of reservation must be deemed to have been
achieved and that thereafter there would be no justification
to operate the roster. Para-5 of
the said judgment
brings
out the reasons for the said rule and the rule itself:

"We see considerable force in the second
contention raised by the learned counsel
for the petitioners. The reservations
provided under the impugned Government
instructions are to be operated in
accordance with the roster to be
maintained in each Department. The
roster is implemented in the form of
running account from year to year. The
purpose of `running account' is to make
sure that the Scheduled Castes/Scheduled
Tribes and and Backward Classes get
their percentage of reserved posts. The
concept of `running account' in the
impugned instructions has to be so
interpreted that it does not result in
excessive reservation. `16% of the
posts...' are reserved for members of
the Scheduled Castes and Backward
Classes. In a lot of 100 posts those
falling at Serial Numbers 1, 7, 15, 22,
30, 37, 44, 51, 58, 65, 72, 80, 87 and
91 have been reserved and earmarked in
the roster for the Scheduled Castes.
Roster points 26 and 76 are reserved for
the members of Backward Classes. It is
thus obvious that when recruitment to a
cadre starts then 14 posts earmarked in
the roster are to be filled from amongst
the members of the Scheduled Castes. To
illustrate, first post in a cadre must
go to the Scheduled Castes and
thereafter the said class is entitled to
7th, 15th, 22nd and onwards upto 91st
post. When the total number of posts in
a cadre are filled by the operation of
the roster then the result envisaged by
the impugned instructions is achieved.

In other words, in a cadre of 100 posts
when the posts earmarked in the roster
for the Scheduled Castes and the
Backward Classes are filled the
percentage of reservation provided for
the reserved categories is achieved. We
see no justification to operate the is
to operate only till the quota provided
under the impugned instructions is
reached and not thereafter. Once the
prescribed percentage of posts is filled
the numerical test of adequacy is
satisfied and thereafter the roster does
not survive. THe percentage of
reservation is the desired repesentation
of the Backward Classes in the State
Services and is consistent with the
demographic estimate based on the
proportion worked out in relation to
their population. The numerical quota of
posts is not a shifting boundary but
represents a figure with due application
of mind. Therefore, the only way to
assure equality of opportunity to the
Backward Classes and the general
category is to permit the roster to
operate till the time the respective
appointees/promotees occupy the posts
meant for them in the roster. 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 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 roese 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
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."

28. The Constitution Bench has, however, made it clear that
the rule enunciated by them shall operate only prospectively
[vide Para 11]. It has further been held in
the said
decision
that the "percentage of reservation has to be
worked out in relation to the number of posts which form the
cadre-strength (and that) the concept of `vacancy' has no
relevance in operating the percentage of reservation". (As a
matter of fact, it is stated that this batch of cases were
also posted for hearing before the Constitution Bench along
with R.L. Sabharwal batch of cases but these cases were de-
linked on the ground that they raise certain other issues
which did not arise in R.K. Sabharwal.) Be that as it may,
as a result of the decision in R.K. Sabharwal and the
views/findings recorded by us hereinabove, the following
position emerges:

(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.

(ii) The percentage of reservation has to be worked out in
relation to number of posts in a particular cadre, class,
category or grade (unit for the purpose of applying the rule
of reservation) and not with respect to vacancies.

(iii) So far as Railway Guards in Railway service are
concerned - that is the only category we are concerned
herewith - the seniority position in the promoted category
as between reserved candidates and general candidates shall
be the same as their inter se seniority position in Grade
`C' at any given point of time provided that at that given
point of time, both the general candidate and the reserved
category candidates are in the same grade. This rule
operates whether the general candidate is included in the
same batch of promotees or in a subsequent batch. (This is
for the reason that the circulars/letters aforesaid do not
make or recognise any such distinction.) In other words,
even if a Scheduled Caste/Scheduled Tribe candidate is
promoted earlier by virtue of rule of reservation/roster
than his senior general candidate and the senior general
candidate is promoted later to the said higher grade, the
general candidate regains his seniority over such earlier
promoted Scheduled Caste/Scheduled Tribe candidate. The
earlier promotion of the Scheduled Caste/Scheduled Tribe
candidate in such a situation does not confer upon him
seniority over the general candidate even though the general
candidate is promoted later to that category.

29. If the above three rules are observed and followed,
there may not remain much room for grievance on the part of
the general candidates. While in the very scheme of things,
it is not possible to give retrospective effect to these
rules -a fact recognised in R.K. Sabharwal - the above
rules, operated conjointly, should go a long way in
maintaining a balance between the demands of merit and
social justice.

30. Sri Rajeev Dhawan, learned counsel for the general
candidates, pointed out, what according to him, are the
inequitable and anamolous situations which would follow, if
the candidate appointed/promoted on the basis of rule of
reservation is not confined to reserved posts alone and is
allowed to compete for general posts as well. In such a
situation, he submits, the reserved candidate will enjoy yet
another - third - advantage. Whenever, it is convenient to
him, he will claim to be considered for a reserved post and
where it is more convenient to him, he will claim to be
considered for a general post, whereas a general candidate
is restricted to general posts alone. In our opinion,
however, the plea of the learned counsel cannot simply be
accepted; his submission flies in the face of the
established law on the subject.

31. Sri Dhawan then pointed out that Rule 3 stated above is
not sufficient to do justice to the general candidates and
that in practice, it has resulted in denial of just rights
to general candidates. He elaborates his submission thus; a
reserved category candidate may get promoted from Grade `C'
to Grade `B' earlier than his senior general category
candidate (senior with reference to the select list/panel
prepared at the time of selection to Grade `C' by operation
of rule of reservation/roster. The general candidate who is
senior to him in the said select list/panel may get promoted
to Grade `B' later but what may happen, meanwhile, is that
the reserved category candidate is no longer there in Grade
`B' - he has ascended to Grade `A'. In such a situation,
there will be no occasion for applying the aforesaid Rule 3
as between these two candidates. Sri Dhawan submits that
this is precisely what has happened in the case of Railway
Guards. Even the Railway Administration has admitted this
situation in their counter, he says, though they have
ascribed it to inadequate representation of the reserved
categories in the higher grades. Sri Dhawan says that, in
practice, the candidates belonging to reserved categories
got rapid promotions, leaving their erstwhile senior general
candidates in the category in which they were originally
appointed.
May be that Sri Dhawan's complaint is true - we
have already dealt with the possibility and consequence of
such a situation - but his grievance, in effect, is not
against Rule 3 aforestated but against the very rule of
reservation being applied in promotions. It may be recalled
that in Indra Sawhney, eight of the nine learned Judges
constituting the Bench opined that
Article 16(4)
does not
permit or warrant reservation in the matter of promotions.
This was precsely for the reason that such a rule results in
several untoward and inequitous results. The Bench, however,
permitted the existing rules in that behalf to operate for a
period of five years from the date of judgment based as
those rules were on an earlier Constitution Bench decision
in
General Manager, Southern Railway & Anr. v. Rangachari

(1962 (2) S.C.R.687). It is another matter that since then a
constitutional amendment has been brought in permitting
reservation in promotions to the extent of Scheduled Castes
and Scheduled Tribes only, we need express no opinion on the
said amendment.

32. Sri Dhawan points out yet another anamoly. Where a
candidate belonging to Scheduled Caste gets selected on his
own merit, i.e., in the general category, he will be treated
as a general candidate and on that account he suffers
prejudice vis-a-vis another reserved category candidate who
could not be selected on his own merit (i.e., in the general
category) and was selected only because of and under the
rule of reservation. For illustrating his submission,
learned counsel says, take an instance where out of forty
candidates selected, a Scheduled Caste candidate selected on
merit stands at S. No.18 in the select list, whereas another
Scheduled Caste candidate selected under and only because of
the reserved quota stands at S. No.33. But when the occasion
for appointment arises, the Scheduled Caste candidate at Sl.
No.33 will be be appointed against the first roster-point,
whereas the Scheduled Caste candidate at S. No.18, being a
general candidate has to wait for his turn. This, the
learned counsel says, amounts, in effect, to punishing the
Scheduled Caste candidate at S. No.18 for his merit. Because
he ws meritorious, he was selected in general gcategory and
is treated as a general candidate. He suffers all the
disadvantages any other general candidate suffers while
another Scheduled Caste candidate, far less meritorieous
than him and who was selected only by virtue of rule of
reservation, steals a march over him in the matter of
initial appointment and in promotion after promotion
thereafter. This is undoubtedly a piquant situation and may
have to be appropriately rectified as and when the occasion
arises. It is not pointed out that any such situation has
arisen in the appeals before us. It is probable that many
such situations may arise which cannot be foretold now.
According to the general category candidates concerned
herein, of course, the rule of reservation/roster has
already given rise to many distortions. According to them,
the representation of the reserved categories in Guard Grade
`A' Special has reached forty percent as against the
prescribed 22.5 percent. It is not possible for us to say,
on the material before us, how and why the said situation
has come about. It may be partly because the rule now
enunciated in R.K. Sabharwal was not there and was not being
followed. It may also be that such a result has been brought
about by a combined operation of the factors mentioned in

(i) and (ii) above. The fact remains that the situation -
assuming that it is what is described by the general
candidates - cannot be rectified with retrospective effect
now. The Constitution Bench in R.K. Sabharwal too has
directed that the rule enunciated therein shall have only
prospective operation. So far as the present appeals are
concerned, it is sufficient to direct that the Railway
authorities shall hereinafter follows Rules (i), (ii) and

(iii) [stated in Para No.28] with effect from the date of
judgment in R.K. Sabharwal, i.e., February 10, 1995.

33. Learned counsel have sought to bring to our notice
individual facts of some of the appeals before us but we do
not propose to enter into those facts or make any
pronouncement thereon. The proper couse, in our considered
opinion, is to send all these matters back to the Tribunal
to work out the rights of individuals concerned applying the
three principles aforesaid. These appeals are accordingly
disposed of in the above terms and matters remanded to the
respective Tribunals. Write petitions are dismissed. No
costs.

SELECTION POSTS
CIVIL APPEAL NO.9276 OF 1995
ARISING OUT OF S.L.P. (C) NO.18370 OF 1993:

34. Delay condoned. Leave granted.

35. This appeal arises from the judgment of Central
Administrative Tribunal (Madras Bench) allowing Original
Application No.869 of 1991 filed by the respondent, Sri D.
Williams. The relevant facts, drawn from the counter filed
on behalf of the Railway Board and its officials before the
Tribunal, are the following:

36. The cadre of Station Masters is divided into five
grades. The grades and inter se percentage is as follows:

------------------------------------------------------------
Sl. Category & Grade Whether selection Percentage
No. or non-selection distribution
of post in
each grade

------------------------------------------------------------

1. Asst. Station Master Recruitment/ 10%
Rs.1200-2040 Selection

2. Station Master Non-Selection 70%
Rs.1400-2300

3. Station Master/T.I Non-Selection/ 10%
Rs.1600-2600 Recruitment

4. Dy. Station Supdt/T.I.Selection 10%
Rs.2000-3200

5. Station Supdt./T.I Selection 10% of posts
Rs.2375-3500 in Rs.2000-3200

------------------------------------------------------------

37. The posts of Assistant Station Masters in the scale of
Rs.1200-2040/- are filled by direct recruitment through
Railway Recruitment Boards to the extent of fifty percent.
The balance fifty percent is filled by promotion of
departmental employees. The higher grades in the said cadre
are filled by promotion from the immediately lower grde.
Twenty five percent of the posts in the scale of Rs.1600-
2600/- are, however, filled by direct recruitment of Traffic
Apprentices.

38. The first respondent, Sri Williams (petitioner in the
original application before the Tribunal) was promoted to
the post of Deputy Station Superintendent/Traffic Inspector
in the scale of Rs.2000-3200/- on December 30, 1989.
Actually, he was initially appointed as a Signaller in the
scale of Rs.60-150/-. Over the years, he earned promotions
one after the other. In the scale of Rs.130-240/-, he was
senior to Respondent Nos.4 to 10 in the original application
(they are not impleaded as respondents in this appeal), all
of whom belong to Scheduled Castes/Scheduled Tribes. Because
of rule of reservation and the manner in which it was
implemented, the said Scheduled Castes/Schedule Tribes
candidates were promoted to the higher categories soosner.
They came to be promoted to the post of Deputy Station
Superintendent/Traffic Inspector in the scale of Rs.2000-
3200/- far earlier to Sri Williams, i.e., on January 1, 1984
or earlier. On that basis, the said Scheduled
Castes/Scheduled Tribes candidates were being treated as
seniors to Sri Williams who is, of course, a general
candidate.

39. The posts of Station Superintendent/Traffic Inspector
in the scale of Rs.2375-3500/- are controlled by and dealt
with at Head Quarter's level. They are filled on "All
Railway" basis by a process of selection (which comprises of
viva-voce only) from among the Deputy Station
Superintendents/Traffic Inspectors in the scale of Rs.2000-
3200/-.

40. Eleven vacancies arose in the scale of Rs.2375-3500/-.
According to rules, three candidates have to be considered
for every vacancy. Accordingly, a list of thirty three
senior-most candidates in the sacle of Rs.2000-3200/- was
prepared on the basis of their respective dates of entry in
the said grade. They were `alerted' to be ready to appear
for the interview by a letter dated July 12, 1991. All the
thirty three senior-most employees so alerted belong to
Scheduled Castes/Scheduled Tribes. Sri Williams was not
among the thery three. It is then that Sri Williams
approached the Tribunal praying for setting aside the alert
notice dated July 12, 1991, to revise the seniority list of
all the grades in the Station Masters' category protecting
the seniority of general candidates and for a further
declaration that rule of reservation cannot be applied
against vacancies. He sought a further declaration that the
said rule of reservation is confined to recruitment to the
scale of Rs.1200-2040/- alone - i.e., to the lowest grade in
the cadre - and not to higher grades.

41. The Tribunal allowed the original application filed by
Sri Williams following its earlier decision in Original
Application No.85 of 1989. The Tribunal declared that for
the purpose of promotion under the general quota, seniority
of the Scheduled Castes/Scheduled Tribes candidates should
not be determined on the basis of the date of their actual
promotion but on the basis of the date on which they would
have been promoted in due course if the rule of reservation
were not applied. The Tribunal, however, declared that the
seniority in the grade of Rs.1600-2600/- shall not be
disturbed because the applicant had not approached the
Tribunal in time to challenge the seniority in that scale.
The relief granted by the Tribunal is in the following
terms:

"In the result, we allow the application
and pass the following orders:-

We direct the respondents to revise the
seniority of the applicants and
respondents in the scale of Rs.2000-3200
taking into account for the applicant
his date of actual promotion and for the
respondents 4 to 10 the date on which
they would have been granted promotion
in that grade but for the preferential
treatment based on reservation.
Promotion shall be made according to a
selection based on the revised list."

42. The learned Additional Solicitor General appearing for
the appellants (Union of India and the Railways) challenged
the correctness of the decision of that Tribunal on the
ground that it has evolved a principle of seniority not
recognised by any rule or circular orders of the Railway
Board and is unsustainable in any event. He submitted,
relying upon the decision in
Karam Chand v. Haryana State
Electricity Board
(1989 Suppl.(1) S.C.C.342) that the date
of promotion to a particular grade or category determines
the seniority in that grade or category. Inasmuch as the
said thirty three candidates were alerted (Called for) on
the basis of their seniority for interview (for selection to
eleven posts in the grade of Rs.2375-3500/-) no valid
grievance can be made by any one to such a course.

43. Sri S. Murlidhar, learned counsel for Sri D. Williams
submits that this is a demonstrable case of injustice being
done to general candidates by applying not only the rule of
reservation at every stage of promotion but also because the
rule of seniority enunciated by the Railway Board in its
several circulars was not being followed by the concerned
authorities. He submits that it is for the Railways to
explain how the situation has come about where all the
thirty three candidates being considered for eleven
vacancies happen to belong exclusively to Scheduled
Castes/Scheduled Tribes categories. He subsmits that Sri
Williams ws admittedly a senior to Respondent Nos.4 to 10
(in the original application, i.e., Scheduled
Castes/Scheduled Tribes candidates) in the grade of Rs.130-
240/- but then the said Scheduled Castes/Scheduled Tribes
candidates obtained rapid and preferential promotions to
next higher grades, viz., Rs.330-560/-, Rs.425-640/-,
Rs.455-700/-, Rs.1600-2600/- and then to the grade of
Rs.2000-3200/-. They reached the grade of Rs.2000-3200/-
more than five years earlier to Sri Williams who was their
senior in the lower category of Rs.130-240/- The result of
faulty implementation of rule of reservation and rule of
seniority is that all the top grades have come to be
occupied exclusively by the reserved category members, a
situation, which he characterises as a total negation of the
Rule of Equality underlying
Articles 16(1)
, 16(4)
and
14.
He
emphasises the fact that the Railways have not explained in
their counter as to how the above situation has come about
except stating baldly that since the Scheduled
Castes/Scheduled Tribes candidates were seniors to Sri
Williams in the grade of Rs.2000-3200/-, they were rightly
alerted for interview.

44. It is true that this case presents a rather poiiignant
turn of events. Of the thirty three candidates being
considered for eleven vacancies, all are Scheduled
Castes/Scheduled Tribes candidates. Not a single candidate
among them belongs to general category. The learned counsel
for the respondent is justified in complaining that
appellants have failed to explain how such a situation has
come about. Not only the juniors are stealing a march over
their seniors but the march is so rapid that not only
erstwhile compatriots are left far behind but even the
persons who were in the higher categories at the time of
entry of Scheduled Castes/Scheduled Tribes candidates in the
service have also been left behind. Such a configuration
could not certainly have been intended by the framers of the
Constitution or the framers of the rules of reservation. In
the absence of any explanation from the authorities, the
best we can do is to ascribe it as faulty implementation of
the rule of reservation. In other words, not only have the
Railways not observed the principle that the reservation
must be vis-a-vis posts and not vis-a-vis vacancies but they
had also not kept in mind the rule of seniority in the
promotion posts enunciated in the Railway Board's circulars
referred to supra. Yet another principle which the
authorities appeared to have not observed in practice is
that once the percentage reserved for a particular reserved
category is satisfied in that service category or grade
(unit of appointment) the rule of reservation and the roster
should no longer be followed. Because of the breach of these
three rules, it appears, the unusual situation complained of
by the general candidates has come to pass. The learned
counsel for general candidates is right that such a
situation is bound to lead to acute heart-burning among the
general candidates which is not conducive to the efficiency
of administration. Be that as it may, the question is can
the said situation be rectified. Probably not, until we
direct all the promotions to be reviewed and re-done. This
may not be advisable at this distance of time. The enormity
of the exercise should deter any one from launching upon
such a course. It is evidently for this reason that the
Constitution Bench has directed in R.K. Sabharwal that the
rule affirmed by them should be applied only prospectively.
There is yet another circumstance: the Scheduled
Castes/Scheduled Tribes candidates cannot be barred from
competing for general posts. We are constrained to remark
that it is the application of rule of reservation in the
matter of promotions -which entitles a reserved category
candidate to avail of the benefit of reservation any number
of times which is mainly responsible for such a situation.

45. While referring to the Railway Board's
circulars/letters in civil appeals No.9272/95 (arising from
S.L.P.(C) No.6468 of 1987 and batch), we had referred to the
Railway Boards circular/letter dated January 19, 1972
dealing with promotion to selection posts. (Para-3 of the
said letter is in the same terms as Para-4 of the Railway
Board's circular/letter dated August 31, 1982 referred to
supra.) The said Para-3 reads: "(3) The seniority of
candidates belonging to Scheduled Cates and Scheduled Tribes
vis-a-vis others will continue to be determined as at
present, i.e., according to the panel position in the case
of categories where training is not provided and in
accordance with the merit position in the examination where
training is provided." But inasmuch as the post of Station
Superintendent/T.I. in the scale of Rs.2375-3500/- is a
selection post, the panel referred to in the said
circulars/letters would mean the panel prepared at the time
of making selections for promotion to the said post
(Rs.2375-3500/-) - and not the panel/select list prepared at
the time of entry into the initial grade, viz., Assistant
Station Master (Rs.1200-2-40/-). It also means that members
in one panel take precedence over the members in the next
panel. The application of the rule of seniority referred to
in the said circular/letter - and other circulars/letters
referred to supra most of which do not make any distinction
between selection and non-selection posts - has to be
subject to the said limitation.

46. It may be noticed that of the five grades in the
Station Masters' category, two are non-selection posts while
the remaining three are selection posts. While in the case
of non-selection posts the rule enunciated in the main
opinion (Virpal Singh Chauhan) would be applicable, in the
case of selection posts, the rule explained herein has to be
followed. We may clarify that Rules (i) and (ii) in Para 28
of Virpal Singh Chauhan apply to both selection and non-
selection posts. Rule (iii) also applies to both but subject
to the above rider. As explained in the main opinion, while
there is no question of a "panel" being prepared at the time
of promotion to non-selection posts, a panel has to be
prepared for promotion to selection posts.

47. This appeal is accordingly allowed and the matter
remanded to the Tribunal with a direction to dispose of the
original application afresh in the light of the principles
enunciated herein. No costs.

CIVIL APPEAL NO.9275 OF 1995

----------------------------

ARISING OUT OF S.L.P.(C) NO.4102 OF 1994:

-----------------------------------------

48. Delay condoned. Leave granted.

49. The respondent [petitioner before the Central
Administrative Tribunal (Allahabad Bench), Sri Mohd. Sabir,
joined the Railways as an Office Clerk on December 20, 1957.
He was promoted as Head Clerk and then as an Assistant
Superintendent. His promotion to the post of Assistant
Superintendent was on March 12, 1985. The next promotion is
to the post of Superintendent. He approached the Tribunal
complaining that when two vacancies arose in the category of
Superintendents, the Railway Authorities called certain
Scheduled Castes/Scheduled Tribes candidates for interview
in preference to him though they are far juniors to him. He
gave three instances, viz., (1) Sri A.P. Pramanik, who
joined the service twenty years after him and who was
promoted as Assistant Superintendent only on February 22,
1988. (2) Sri Kamal Kishore, who was initially appointed as
Class IV employee but who is being treated as senior to the
petitioner and (3) Sri Amrendra Kumar Das, who was appointed
as an Office Clerk twenty two years after his appointment
and who came to be promoted as Assistant Superintendent on
February 25, 1986. The grievance of Sri Mohd. Sabir is this:

the total sanctioned strength of the category of
Superintendents (Grade Rs.2000-3200/- RPS) is thirteen.
There are three vacancies. Of the remaining ten, only two
are general candidates and the remaining eight belong to
Scheduled Castes. Inspite of the same, the candidates now
being considered for promotion are again Scheduled Castes
candidates which is likely to result in an almost total
reservation in the said category in favour of the Scheduled
Castes/Scheduled Tribes candidates. The case of the
appellants (respondents in the original application) is that
they are considering the senior most candidates for the
vacancies arising in the category of Superintendents and,
therefore, no objection can be taken with the said course by
any aone.

50. The Tribunal has allowed the original application in
the following terms:

"It appears that some mathematical
mistake occurred on the part of the
department in making the promotion and
deciding the seniority. According to
learned counsel in view of Vir Pal Singh
Chauhan's case these candidates are to
be reverted. Whether they are to be
reverted or not that is the matter for
the respondents to decide all such
observations which have been made in Vir
Pal Singh's case, but the respondents
are directed to promote the members of
the general community to the extent they
are entitled to by adhering to the
seniority. Accordingly, since the matter
is not decided finally by the Hon'ble
Supreme Court, However those persons who
have already been promoted, keep them
for the post of Supdt. and will adjust
the seniority list accordingly in
accordance with Vir Pal Singh's case.
Let all these be done within the period
of 3 months from the date of
communication of this order. No order as
to the costs."

51. This appeal is liable to be dismissed applying the
principle enunciated in R.K. Sabharwal. It is evident that
out of the cadre-strength of thirteen, there were three
vacancies on the date of filing of the original application
before the Tribunal and of the remaining ten posts, only two
were occupied by the general candidates and the remaining
eight were occupied by the members of Scheduled Castes.
Since the representation of Scheduled Castes is already far
beyond their quota, no further Scheduled Castes candidates
could have been considered for the remaining three
vacancies. This means that the Scheduled Castes candidates
can be considered only as and along with general candidates
but not as members belonging to a reserved category. The
appeal is accordingly dismissed with the aforesaid
clarification.

CIVIL APPEAL NO.9274 OF 1995

----------------------------

ARISING OUT OF S.L.P.(C) NO.6924 OF 1988:

-----------------------------------------

52. Delay condoned. Leave granted.

53. This matter pertains to promotion to the posts of
Office Superintendents Grade-I, Office Superintendent Grade-
II and Head Clerk. The original application was filed by
three candidates belonging to general category. Their
grievance was that the representation of Scheduled
Castes/Scheduled Tribes candidates has already exceeded the
percentage reserved for them and inspite of that the
Scheduled Castes candidates are again being considered for
the vacancies arising in the said categories. By way of
illustration, they pointed out, the sanctioned strength of
the category of Head Clerks is six. Four are filled up and
there are two vacancies. Out of the four posts already
filled up, two are held by general category candidates and
two by the members of Scheduled Castes. The claim of the
original petitioners (respondents in this appeal), which has
been upheld by the Calcutta Tribunal, is that the remaining
two vacancies should go only to general candidates. Similar
direction has been made with respect to other two categories
as well. The Tribunal further directed that the rule of
reservation must be applied with reference to posts and not
with reference to vacancies. The main contention of the
Union of India and the Railway Authorities in this appeal is
that the rule of reservation in favour of Scheduled
Castes/Scheduled Tribes should be applied to vacancies and
not to total number of posts in the cadre. It is submitted
that the Tribunal was in error in holding that the rule of
reservation should be so applied as to ensure that the posts
held by Scheduled Castes/Scheduled Tribes do not exceed the
prescribed percentage. It is submitted that this was never
the intention of the Constitution or the rule of
reservation.

54. The only contention urged by the appellants herein is
concluded against the appellants by the decision of this
Court in R.K. Sabharwal, referred to hereinbefore. Following
the said decision this appeal is dismissed with the
clarification that the members of Scheduled Castes/Scheduled
Tribes can also compete as general candidates. The appellant
shall follow and apply the said decision. No costs.

---------------X--------------------X--------------
Before parting with these appeals, we feel obliged to
reiterate the principle affirmed in Indra Sawhney that
providing reservation in promotion is not warranted by

Article 16(4).
The facts of these cases illustrate and
demonstrate the correctness of the said holding. They also
bring home the intractable problems that arise from such
provision - problems that defy solutions. No more need we
say on this aspect. The decision in Indra Sawhney speaks for
itself.