Supreme Court of India

Ajit Singh Januja & Ors vs State Of Punjab & Ors on 1 March, 1996

Equivalent citations: 1996 AIR 1189, JT 1996 (2) 727, AIR 1996 SUPREME COURT 1189, 1996 (2) SCC 715, 1996 AIR SCW 1196, 1996 LAB. I. C. 1030, 1996 SCC (L&S) 540, (1996) 1 CURLR 962, (1996) 3 SCR 125 (SC), (1996) 2 LABLJ 154, (1996) 2 LAB LN 65, (1996) 1 PAT LJR 81, (1996) 2 SCT 278, 1996 UJ(SC) 2 81, (1996) 1 UPLBEC 658, (1996) 33 ATC 239, (1996) 2 JT 727 (SC)

Author:
N.P Singh

Bench:
N.P Singh
,
Jagdish Saran Verma
,
K Venkataswami

PETITIONER:
AJIT SINGH JANUJA & ORS.

Vs.

RESPONDENT:
STATE OF PUNJAB & ORS.

DATE OF JUDGMENT: 01/03/1996

BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
VERMA, JAGDISH SARAN (J)
VENKATASWAMI K. (J)

CITATION:
1996 AIR 1189 JT 1996 (2) 727
1996 SCALE (2)526

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T
N.P.SINGH.J
These appeals have been filed against the judgment of a
Full Bench of the Punjab & Haryana High Court dated
23.8.1989 dismissing three writ petitions (C.W.P.No.2190/88,
C.W.P.No 7860/87 and C.W.P.No.7861/87) filed on behalf of
the appellants. The petitioners in C.W.P. No. 2190 of 1988
were working on the posts of Superintendent Grade I,
Superintendent Grade II and Assistant, in Punjab Civil
Secretariat, Chandigarh. They were members of the cadre of
Punjab Civil Secretariat. The petitioners in C.W.P.No.7860
of 1987 were working on the posts of Under-

Secretaries/Superintendent Grade I, in the Punjab Civil
Secretariat, Chandigarh, and were members of the cadre of
Punjab Civil Secretariat. The petitioners in C.W.P.No. 7861
of 1987 were working against the posts of Deputy
Secretaries/Under Secretaries in the Punjab Civil
Secretariat and were members of State Service Class-I. The
primary grievance made in all these writ petitions on behalf
of the different petitioners, was that the policy for
reservation in respect of candidates belonging to Scheduled
Castes and Backward Classes, was being implemented by the
State Government in a manner, because of which the members
belonging to the Scheduled Castes and Backward Classes were
holding posts in excess to their reservation quota. This was
not only prejudicial but detrimental to the right of the
petitioners for being considered for promotion to higher
grade. Several other similar writ petitions had also been
filed on behalf of others which were heard together and were
dismissed by the common impugned Judgment.

The State has been issuing from time to time Government
Orders in respect of reservations for members of Scheduled
Castes and Backward Classes. One such order was issued on
19.10.1949, making 15% reservation of posts in favour of
Scheduled Castes to be filled up from amongst candidates who
held minimum qualification for the posts. By another order
dated 19.8.1952, the percentage of 15% was increased to 19%.
By yet another order, dated 29.1.1959 roster system was
introduced for implementing the policy of reservation. By an
order dated 14.1.1964 reservation was fixed in all classes
of posts i.e. I, II, III and IV. However, by an order dated
23.8.1966, the State withdrew reservation for Class I and II
posts but the reservation in respect of Class III and IV
posts were increased to 20%. On 19.7.1968 a clarification
was issued by the State Government saying that in direct
recruitment the roster points shall be taken as seniority
points for Scheduled Castes. By an order dated 4.5.1974,
reservation was reimposed even in respect of Class I and II
posts and it was fixed at 16% (14% for Scheduled Castes and
2% for Backward Classes). This reservation was to be
provided by applying the roster system. The reservation of
14% posts for Scheduled Castes was the substantive provision
and the roster was a machinery provision. By an Order dated
6.6.1974, the quota of reservation was increased to 25% for
scheduled Castes and 5% for Backward Classes w.e.f.6.3.1974.
On 7.1.1980 the State issued an order, the relevant part
whereof says:

"....it is made clear that
those scheduled castes/Backward
classes employees who get
appointed/promoted against reserve
points on the basis of their
merit/seniority should not be
counted for the purpose of
reservation but that reserve point
should be carried over to the next
point on the roster and filled by a
candidate/employee belong to
Scheduled Castes/Backward Classes
so that the deficiency of
representation in service is made
up".

The aforesaid Government Order dated 7.1.1980 was considered
by the High Court in the case of
Joginder Singh Sethi vs.
Punjab Government
, (1982 (2) SLR 307).
The operative part of
the Judgment of the High Court is:

"For working out this percentage
the promotees/appointees in this
cadre whether on the basis of
reservation or otherwise, have to
be taken notice. In the light of
this conclusion of ours we hold
that any promotions of the members
of the scheduled Castes and
Backward the basis of above noted
instructions of the Government are
void and honest".

Civil Appeal Nos.3326-27 of 1982, which have been heard
along with the present appeals is against the aforesaid
judgment of the High Court in the case of
Joginder Singh
Sethi
(supra). This Court in those appeals on 8.2.1983
passed an order of stay saying:

"We made it clear by our order
dated 19.10.82 that there will be
an interim order of stay against
reversion of any of the person
already appointed on the basis of
instructions issued by the Govt of
Punjab which have been held to be
invalid by the Judgment of the High
Court impugned in these appeals and
writ petition. We do not think that
there is any doubt in regard to
what we said, namely that no
scheduled castes and scheduled
Tribes employees who has already
been appointed or promoted pursuant
to the instructions of the
Government of Punjab will not be
reverted but so far as the future
appointments/promotions are
concerned these shall be made
according to the judgment of the
High Court and these will be
ultimately subject to the result of
the writ petition and appeals. If
the Govt. makes any
appointment/promotions in
accordance with the judgment of the
High Court the State Govt. will
make it clear in the letter of
appointment/promotion that the
appointment/promotion is subject to
the result of the writ petition and
appeal so that there is no
difficulty in future in case the
High Court judgment is reversed by
this Court..........."

So far the appellants are concerned, they took a stand
before the High Court in writ petitions filed on their
behalf that when the reservation quota was completes the
Scheduled Castes candidates should not further be
appointed/promoted. It was said on their behalf that
Scheduled Castes and Backward Class candidates who compete
on merit, should also be adjusted against the quota reserved
for them, otherwise there shall be increase in the
percentage of the quota reserved for them. The writ
petitions were referred to a Full Bench of the said High
Court. Before Full Bench it was also submitted that
Scheduled Castes and Backward Class candidates cannot be
considered for appointment/promotion against general
category posts in a cadre. The Full Bench however said in
the case of
Jaswant Singh vs. The Secretary to Govt. of
Punjab
, (1989) 4 SLR 257 that non-consideration of Scheduled
Castes candidates against general category posts for purpose
of appointment or promotion will be hit by
Articles 14
, 15

and
of the Constitution. It also observed that there was
no bar to the appointment/promotion of larger number of
members of Scheduled Castes. The members of the Scheduled
Castes, appointed on merit or promoted on seniority-cum-
fitness basis shall not be taken into consideration for
working out the reserved percentage. The High Court also
said that roster points were seniority points.

In result the
Full Bench over-ruled the view taken by the same High Court
in the aforesaid
Joginder Singh Sethi
's case.
The conclusion
of the Full Bench is:

"Thus, while non-Scheduled
Caste candidates are not eligible
for appointment or promotion to the
reserved posts at the reserved
point,the Scheduled Castes
candidate are eligible to compete
with the general category candidate
in respect of the posts which are
not reserved and also claim
promotion to the same if they are
otherwise eligible by virtue of
seniority and merit and merely
because they happen to be members
of the Scheduled Caste, they cannot
be deprived of their right to
compete for appointment or
promotion on the basis of seniority
and merit that is constitutionally
protected under
Articles 14
and

16(1)(2)
of the Constitution even
when the total number of Scheduled
Castes members in that cadre
holding posts are more than the
prescribed percentage. Secondly,
where Scheduled Caste/Backward
Class secure an appointment against
'a reserved point" on the basis of
his own merit and seniority and not
on the basis of only his being
Scheduled Caste/Backward Class,
such candidate should not be
counted while calculating the
percentage of reservation meant for
Scheduled Caste/Backward Class, but
that reserved point should be
carried over to the next point on
the roster and filled by candidates
belonging to Scheduled
Castes/Backward Classes. Thirdly,
Scheduled Castes/Backward Classes
candidates who are appointed or
promoted on the basis of
appropriate reservation under the
prescribed roster point shall be
assigned seniority as per the point
reserved for them in the relevant
roster irrespective of their
position in the general merit list
(in case of direct recruitment in
Class I, II, III and IV services.

In other words, roster points are
the seniority points in respect of
Scheduled Castes Backward Classes.

In the case of Scheduled
Castes/Backward Classes candidate
getting selected or promoted on his
own merit/seniority, he will retain
his original higher seniority
position secured by him. The
seniority cannot be ambivalent and
fluctuating.

It was further said:

"We have already held that
reservation does not mean that the
Scheduled Castes candidates are
deprived from being considered for
promotion to the general category
seats on the basis of seniority-
cum-merit or on the basis of
selection on merit. It also not
possible to invoke the principle of
reservation not exceeding 60 per
cent on the total strength as
reaching above 50 per cent is not
by reason of any such reservation
as such it so happened that the
candidates who competed for the
selection belonged to a particular
category in the counter statements
that on a number of occasions
previously all these posts were
held by non-Scheduled Castes. But
if two Schedule Castes had already
come purely on merit it is, to be
taken as a matter gratifying and
not to be frowned upon. It is only
if reservation in effect amounted
to an unreasonable percentage that
could if at all be questioned. The
percentage of reserved candidates
in this case is only 14 and if the
Scheduled Castes candidates have
come and occupied that position in
that cadre on account of their own
merit and ability, the reservation
itself could not be questioned and
they could not be deprived of their
right to be considered for
selection on the basis of merit and
ability. We are, therefore, unable
to accept the contention of the
learned counsel for the petitioners
that the Scheduled Castes
candidates cannot be considered for
the vacant post".

On the aforesaid findings the different writ petitions were
dismissed by a common judgment as already
referred to above
.

It may be mentioned that some of the questions raised
in the cases of
Joginder Singh Sethi
(supra) and
Jaswant
Singh
(supra) came up for consideration before a
Constitution Bench in the case of
R.K.Sabharwal vs. State of
Punjab
, (1995) 2 SCC 745, on a writ petition filed by
members of the Punjab Service of Engineers (Class I) in
Irrigation Department, belonging to the general category
challenging the policy of reservation in connection with
promotion to higher posts. The respondents to the said writ
petition were members of the Scheduled Caste. On behalf of
the petitioners
in that case
a stand was taken that the (i)
object of reservation was to provide adequate representation
to the Scheduled Castes/Tribes and Backward Classes in
service and if more than 14% of Scheduled Castes candidates
are appointed/promoted in a cadre on their own
merit/seniority by competing with general category
candidates then the purpose of reservation in the said cadre
having been achieved the Government instructions in respect
of reservation would become inoperative and (ii) once the
posts earmarked for Scheduled Castes/Tribes and Backward
Classes on the roster are filled, the reservation is
complete and the roster cannot operate any further and has
to be stopped. Any post falling vacant, in the cadre
thereafter is to be filled from category reserved or general

- due to retirement etc., of whose members the post fell
vacant. In respect of the first question mentioned above, it
was said:

"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 reserved 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 number cannot be added and
taken into consideration for
working out the percentage of
reservation."

It was further said:

"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 Backward
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.

In respect of the second question as to whether once the
posts earmarked for Scheduled Castes/Tribes and Backward
Classes on the roster are filled and the reservation is
complete the roster can operate any further the constitution
Bench said:

"We see considerable force in
the second contention raised by the
learned counsel for the
petitioners. The reservation
provided are to be operative 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/Schedule Tribes
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 Caste and
thereafter the said class is
entitled to 7th,15th,22nd and
onwards up to 91st post. When the
total number of posts in a cadre
are filled by the operation of the
roster then the result envisaged by
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 roster
thereafter. The "running account"

is to operate only till the quota
provided under the impugned
instruction is reached and not
thereafter. Once the prescribed
test of adequacy is satisfied and
thereafter the roster does not
survive.

It was said thereafter that vacancies arising in the cadre
after the operation of the roster and the "running account"

comes to an end, they have to be filled up from amongst
category to which posts belonged in the roster. It was
illustrated by saying:

"For example the Scheduled Caste
persons holding the posts at roster
points 1, 7, 15 retire then these
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".

It was also said that the operation of a roster for filling
the cadre strength by itself ensures that reservation
remains within 15% limit. It was demonstrated by an
illustration as to what shall be the consequences if the
roster is permitted to operate in respect of the vacancies
arising after the total posts in a cadre are filled by
saying:

"We may examine the likely result
if the roster is permitted to
operate in respect of the vacancies
arising after the total posts in a
cadre are filled. In a 100-point
roster, 14 posts at various roster
point are filled from amongst the
Scheduled Caste/Scheduled Tribe
candidates, 2 posts are filled from
amongst the Backward Classes and
the remaining 84 posts are filled
from amongst the general category.
Suppose all the posts in a cadre
consisting of 100 posts are filled
in accordance with roster by
31.12.1994. Thereafter in the year
1995, 25 general category persons
(out of 84) retire. Again in the
year 1996, 25 more persons
belonging to the general category
retire. The position which would
emerge would be that the Scheduled
Castes and Backward Classes would
claim 16% share out of the 50
vacancies. If 8 vacancies are given
to them then in the cadre of 100
posts the reserve categories would
be holding 24 posts thereby
increasing the reservation from 16%
to 24%. On the contrary if the
roster is permitted to operate till
the total posts in a cadre are
filled and thereafter the vacancies
falling in the cadre are to be
filled by the same category of
parsons whose retirement etc.
caused the vacancies then the
balance between the reserve
category and the general category
shall always be maintained."

Reliance was also placed on the judgment of nine Judges
Bench in the case of
Indra Sawhney vs. Union of India
, 1992
Supp.(3) SCC 217 at page 737 para 814 where it was said:

"Take a unit/service/cadre
comprising 1000 posts. The
reservation in favour of Scheduled
Tribes, Scheduled Castes and Other
Backward Classes is 50% which means
that out of the 1000 posts 500 must
be held by the members of these
classes i.e. 270 by Other Backward
Classes, 150 by Scheduled Castes
and 80 by Scheduled Tribes. At a
given point of time, let us say,
the number of members of OBCs in
the unit/service/category is only
50, a shortfall of 220. Similarly
the number of members of Scheduled
Castes and Scheduled Tribes is only
20 and 5 respectively, shortfall of
130 and 75. If the entire
service/cadre is taken as a unit
and the backlog is sought to be
made up, then the open competition
channel has to be choked altogether
for a number of years until the
number of members of all Backward
Classes reaches 500, i.e., till
the quota meant for each of them is
filled up. This may take quite a
number of years because the number
of vacancies arising each year are
competition category would become
age-barred and ineligible. Equality
of opportunity in their case would
become a mere mirage. It must be
remembered that the equality of
opportunity guaranteed by class (1)
is to each individual citizen of
the country while clause (4)
contemplates special provision
being made in favour of socially
disadvantaged classes. Both must be
balanced against each other.

Neither should be allowed to
eclipse the other. For the above
reason, we hold that for the
purpose of applying the rule of 50%
a year should be taken as the unit
and not the entire strength of the
cadre, service or the unit as the
case may be".

The controversy which has been raised in the present appeals
is: whether, after the members of Scheduled Castes/Tribes or
Backward Classes for whom specific percentage of posts have
been reserved and roster has been provided having been
promoted against those posts on the basis of 'accelerated
promotion' because of reservation of posts and applicability
of the roster system, can claim promotion against general
category posts in still higher grade on the basis of their
seniority which itself is the result of accelerated
promotion on basis of reservation and roster? The learned
counsel, appearing for the appellants, took a clear and
definite stand that they have no grievance or objection if
members of the Scheduled Castes or Backward Classes, for
whom reservation has been made and roster has been
prescribed even in the promotional posts, get accelerated
promotions against those Posts. But the question is:

whether, on this basis such 'accelerated promotees' from
lower grade to higher grade in service can claim promotion
against the general category posts in still higher grade of
service merely because they had been promoted before the
general category candidates, who were senior to them in the
lower grade and have been promoted later in their turn? In
other words, is the benefit of extra seniority obtained by a
reserved category candidate by earlier promotion under the
reservation policy to the reserved post, also available to
him for competing with his otherwise senior general category
candidate, who got promoted to the same cadre later only
because of the reservation policy, for promotion to a
general category post also in the next higher grade.

The High Court has relied on circulars dated 19.7.1969
and 8.9.1969 for purpose of holding that even after the
Percentage reserved in a cadre is filled and the roster is
complete, the members of the Scheduled Castes and Backward
Classes can be promoted against general category posts on
basis of seniority. It may be mentioned that the aforesaid
circulars do not refer anything about reservation in
promotional posts or in respect of roster to be maintained
in the form of a "running account". It appears that it was
by oversight that for purpose of coming to the conclusion
aforesaid reference has bean made to those circulars.
However, the circular which is relevant in this connection
is No.1494-SWI-74/8105 dated 4.5.1974, which had been
challenged by the appellants before the High Court. The
relevant part whereof is as follows:-

"I am directed to refer to the
subject noted above and to say that
at present reservation for
Scheduled Castes and Backward
Classes is applicable in promotions
to and within class III and IV
only. Since these Castes/Classes
are poorly represented in various
higher services in the State
Government, it has been under the
active consideration of the State
Government that some reservation in
promotions within higher services
as well should be made for them. It
has now been decided that except in
the case of All India Services, 16%
of the posts to be filed by
promotion to or within Class I and
II services under the State
Government should be reserved for
members of Scheduled Castes and
Backward Classes (14% for members
of Scheduled Casts and 2% for
members of Backward Classes)
subject to the following
conditions:

(a) the persons to be
considered must possess the minimum
necessary qualifications, and

(b) they should have a
satisfactory record of service.
(2). In a lot of 100 vacancies
occurring from time to time, those
falling at serial numbers mentioned
below should be treated as reserved
for the members of Scheduled
Castes:

1, 7, 15, 22, 30, 37, 44, 51, 58,
65, 72, 80, 87, 94 and so on.

Vacancies falling at serial numbers
26 and 76 should be treated as
reserved for the members of
Backward Classes.

(3) The reservation prescribed
shall be given effect to in
accordance with a roster to be
maintained in each Department. The
roster will be implemented in the
form of a running account from year
to Year........... "

(emphasis supplied)
Before we examine the grievance of the appellants regarding
the members of Scheduled Castes and Backward Classes, who
have been given 'accelerated promotions' because of the
policy of reservation and applicability of the roster
system, being considered against general category posts
in still higher grade, it will be proper to point out that
the aforesaid circular dated 4.5.1974 shall be deemed to be
invalid, so far it says that the reservation prescribed
shall be given effect to in accordance with a roster to be
maintained which will be 'implemented in the form of a
running account from year to year' because of the judgment
of the aforesaid Constitution Bench of this Court in the
case of
R.K.Sabharwal.
(supra). the Constitution Bench has
clearly and categorically said that the "running account" is
to operate only till the quota provided under the
instruction is reached and not thereafter. Once the
prescribed percentage of posts is filled thereafter the
roster does not survive. As such there is no question of
implementing the roster in the form of 'running account'
from year to year as provided in the circular dated
4.5.1974.

In view of the judgment of this Court in the case of

R.K.Sabharwal
(supra) that a member of Scheduled Castes or
Backward Classes who enters in service by process of direct
recruitment and is appointed on his own merit belongs to a
class different from the class who are appointed at the
initial stage or are promoted thereafter, applying the
principle of reservation and system of roster, the
appellants now cannot make any grievance if a member of
Scheduled Castes or Backward Class, who has entered into
service on his own merit having competed with the general
category candidates, is considered and promoted in the
higher grade on the posts which are in the general category
because of his seniority and merit. The rub is as to whether
the members of the Scheduled Castes or Backward Class who
have been appointed/promoted on basis of the Policy of
reservation and system of roster can also claim to be
promoted against general category posts in higher grade on
basis of their 'accelerated promotions'.

The appellants have
also no objection if accelerated promotions in still higher
grade posts are given to such appointees/promotees applying
the roster system i.e. against the posts reserved for them
till the period of five years fixed by this Court in the
case of
Indra Sawhney
(supra) expires. But whether such
appointees/promotees can claim promotion against general
category posts in the higher grade, on basis of their
seniority in the lower grade having been achieved because of
the accelerated promotion or appointment by applying the
roster.

In R.K.Sabharwal's case, this Court has treated the
members of the Scheduled Castes and Backward Classes in two
categories i.e. those who are appointed or promoted having
competed with general category candidates on merit and those
who are appointed/promoted on basis of reservation and
roster. For those who have competed on merit it has been
held that their number is not to be taken into consideration
while working out the percentage of reservation. In respect
of those members of Scheduled Castes and Backward Classes,
who have been appointed/promoted on the basis of reservation
and roster, it has been said in clear and unequivocal terms
that the "running account" shall stop after the quota
provided under the instructions is reached and the roster
cannot be operated thereafter. In other words, there is no
question of promoting further number of such candidates, who
have been appointed/promoted on the basis of reservation and
roster.

If the contention of the respondents is accepted as has
been done by the High Court that such appointees/promotees
can be considered against posts meant for general category
candidates merely because they have become senior on basis
of accelerated promotions then, according to us, that
exercise shall amount to circumventing the judgment of the
Constitution Bench of this Court in the
Sabharwal
's case,
because for all practical purposes the promotions of such
candidates are being continued like a running account
although the percentage of reservation provided for them has
been reached and achieved. Once such reserved percentage has
been achieved and even the operation of the roster has
stopped, then how it will be permissible to consider such
candidates for being promoted against the general category
posts on the basis of their accelerated promotion, which has
been achieved by reservation and roster.

Recently, this Court in the case of
Union of India vs.
Virpal Singh Chauhan, J.T.
(1995) 7 SC 231 = (1995) 6 SCC
684, Mr.Justice B.P.Jeevan Reddy, speaking for the Court,
has said:

"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 of
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 grades. 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."

It has been further said:

"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."

It was also said:

"It is true that this case presents
a rather poignant 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 to 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."

(emphasis supplied)
Once the quota is full and roster has stopped for
members of the Scheduled Castes and Backward Classes in
respect of whom reservation has been made and roster has
been prescribed then their case for promotion to still
higher grade against general category Posts have to be
considered not treating them as members of the Scheduled
Castes or Backward Classes "on any crutch". They cannot be
promoted only on basis of their 'accelerated seniority'
against the general category posts.
In
R.K.Sabharwal
's case
it was said that the candidates belonging to Scheduled
Castes who compete on their own merit along with general
category candidates then they are not to be counted within
the percentage of reservation made for such candidates in
the service, because they have competed with the general
category candidates on their own merit. The same principle
which has been enunciated by the Constitution Bench in the
aforesaid case shall be applicable whenever a member of
Scheduled Castes or Backward Classes has got accelerated
promotion to a higher grade and is to be considered for
further promotion to still higher grade against general
category posts. The accelerated promotions are to be made
only against the posts reserved or roster prescribed. There
is no question of that benefit being available when a member
of Scheduled Castes or Backward Classes claims promotion
against general category posts in the higher grade. It need
hardly be pointed out that such candidates who are members
of the Scheduled Castes or Backward Classes and have got
promotion on basis of reservation and application of roster
before their seniors in the lower grade belonging to general
category, in this process have not superseded them, because
there was no inter se comparison of merit between them. As
such when such seniors who belong to general category, are
promoted later it cannot be said that they have been
superseded by such members of Scheduled Castes or Backward
Class who have been promoted earlier.

While considering them
for further promotion against general category posts if the
only fact that they have been promoted earlier being members
of Scheduled Castes or Backward Class is taken into
consideration, then it shall violate the equality clause and
be against the view expressed not only in the case of
R.K.
Sabharwal
(supra) by the Constitution Bench, but also by
the 9 Judges Bench in the case of
Indra Sawhney
(supra)
where it has been held that in any cadra reservation should
not exceed beyond 50%.

The 50% posts already being reserved
against which promotions have been made then any promotion
against general category posts taking into consideration
that they are members of the Scheduled Castes or Backward
Classes, shall amount to exceeding the limit fixed in the
case of
Indra Sawhney
(supra).

In the
Indra Sawhney
's case in respect of the question
regarding providing reservation in promotion, it was said by
B.P. Jeevan Reddy, J with whom it appears seven out of nine
Judges constituting the Bench have agreed while one Hon'ble
Judge did not express any opinion on that question:

"We see no justification to
multiply 'the risk', which would be
the consequence of holding that
reservation can he provided even
in the matter of promotion. While
it is certainly just to say that a
handicap should be given to
backward class of citizens at the
stage of initial appointment, it
would be a serious and unacceptable
inroad into the rule of equality of
opportunity to say that such a
handicap should be provided at
every stage of promotion throughout
their career. That would mean
creation of a permanent separate
category apart from the mainstream

- a vertical division of the
administrative apparatus. The
members of reserved categories need
not have to compete with others but
only among themselves. There would
be no will to work, compete and
excel among them. Whether they work
or not, they tend to think, their
to promotion is assured. This in
turn is bound to generate a feeling
of despondence and 'heart-burning'
among open competition members. All
this is bound to affect the
efficiency of administration.

Putting the members of backward
classes on a fast-track would
necessarily result in leapfrogging
and the deleterious effects of
"leapfrogging" need no illustration
at our hands. At the initial stage
of recruitment reservation can be
made in favour of backward class of
citizens but once they enter the
service, efficiency of
administration demands that these
members too compete with others and
earn promotion like all others; no
further distinction can be made
thereafter with reference to their
"birth-mark", as one of the learned
Judges of this Court has said in
another connection. They are
expected to operate on equal
footing with others. Crutches
cannot be provided throughout one's
career. That would not be in the
interest of efficiency of
administration nor in the larger
interest of the nation. It is wrong
to think that by holding so, we are
confining the backward class of
citizens to the lowest cadres. It
is well-known that direct
recruitment takes place at several
higher levels of administration and
not merely at the level of Class IV
and Class III . Direct recruitment
is provided even at the level of
All India Services. Direct
recruitment is provided at the
level of District Judges, to give
an example nearer home. It may also
be noted that during the debates in
the Constituent assembly, one
referred to reservation in
promotions; it does not appear to
have been within their
contemplation."

It cannot be disputed that the first promotion to such
candidates was given without judging him on principle either
seniority-cum-merit or merit-cum-seniority in the lower
grade. It was given by applying principle of reservation and
roster. The impugned circular dated 4.5.1974 quoted above
itself says that it had been decided that the 16% of the
posts are to be filled up by promotion to Class-I and Class-
II services under the State Government, have been reserved
for members of the Scheduled Castes and Backward Classes
subject to the conditions (a) the persons to be considered
must possess the minimum necessary qualifications, and (b)
they should have a satisfactory record of service.
Thereafter the roster has been fixed in different grades for
their accelerated promotions. In this background, while
considering them for promotion to general category posts in
still higher grade posts, the fact that they had been
promoted earlier on basis of the policy of reservation and
applying the roster system cannot be overlooked. It also
cannot be overlooked that at the first promotion from the
basic grade, there was no occasion to examine their merit
and suitability for purpose of their promotion. The only
requirement prescribed is that they should possess the
minimum necessary qualifications and they should have
satisfactory record of service. In actual working, it can be
demonstrated by an example. In grade 'C' which is the grade
of initial entry in the service, there are 10 Posts. On
basis of roster the reserved category candidates are at
Serial Nos.2, 6 and 10 whereas general category candidates
are at Serial Nos. 1,3,4,5,7,8 and 9. On basis of
reservation and roster system, the reserved category
candidates at Sl.Nos. 2 and 6 are promoted to grade
'B' first. Thereafter Sl.Nos. 1,3 and 4 are promoted who
belong to general category. In grade 'A' which is still the
higher grade, there are only 3 posts, out of which one is
reserved for members of the Scheduled Castes. The candidate
who had been promoted on basis of reservation to post at
Sl.No.2 will be promoted before general category candidates
at Sl.Nos.1,3 and 4 to one of the 3 posts on basis of
reservation. Now so far the two remaining posts in grade `A'
are concerned, are meant for general category candidates.
But if the principle of "running account" is applied and
only the earlier promotion of the candidate who was at
Sl.No.6 is taken into consideration, then he shall be
promoted to grade `A' against the second, out of there posts
although the quota of reservation and roster is complete
with the reservation of the reserved category candidate at
Sl.No.2 against one of the three posts. So out of the three
posts in grade `A'two shall be filled up by reserved
category candidates beyond the limit of reservation and
without any roster being available. In this process the
merit of the reserved category candidate at Sl.No.6 has not
been considered. It need not be pointed out that but for
principle of reservation and roster, he could not have been
promoted earlier than candidates at Sl.Nos. 1,3 and 4 in
grade `C'. IN this background, can it not be said that he
has been promoted to the second post in grade A because he
is a member of Scheduled Caste, as though the post was to be
filled up from amongst general category candidates?

The Constitution Bench in R.K Sabharwal has said in
clear and unambiguous terms that after the quota is over and
roster points are full, then the "running account" of roster
shall stop and there is no question of promoting beyond the
posts which had been reserved. In
the said judgment
it has
been said in respect of members of Scheduled Castes that if
they are appointed/promoted on their own merit, then such
candidates shall not be counted towards the percentage of
reservation fixed for them. On the basis of the same logic,
whenever members of the Scheduled Castes are to be
considered for promotion against posts which are not
reserved for them, then they have to be selected on merit
only. They cannot claim that as they had been promoted
earlier from grade 'C' to grade 'B' on basis of reservation
and roster in this process they have superseded the
candidates belonging to the general category and even for
promotion against general category posts in grade 'A' only
requirement shall be satisfactory record of service.

On behalf of the respondents, reliance was placed on
the judgment of
P.S. Ghalaut v. State of Haryana and Others
,
(1995) 5 SCC 625,in support of contention that while
applying the roster point the merit list prepared for
candidates by process of direct recruitment can be disturbed
for placement of the candidates belonging to reserved
category, at the relevant roster point and it shall not be
violative of
article 14
or 16 of the Constitution. That
judgment has no bearing, so far the present case is
concerned. In that case roster was being applied in respect
of posts reserved under the relevant Rules, which were being
filled up by process of direct recruitment. That case
related to process of direct recruitment to the initial
cadre of service on basis of principle of reservation and
roster.

On behalf of the respondents it was urged that in the
case of
Union of India vs. Virpal Singh Chauhan
(supra) the
view expressed by this Court in respect of inter se
seniority between the reserved category candidates who had
been promoted on basis of reservation and roster earlier
than the general category candidates who were senior in the
lower grade, and who have been promoted later, has not to be
applied in all services. According to the respondents that
view was expressed on basis of the circular which was under

consideration
,
in that case
where it had been provided that
the seniority of the general category candidate was to be
restored vis-a-vis the reserved category candidate after the
general category candidate was promoted later, According to
us, this question cannot be examined only on basis of any
circular, order or rule issued or framed by any State
Government or the Union of India. This has to be tested on
basis of our constitutional scheme of
Articles 14
and
of
the Constitution.

On behalf of the respondents, a stand was also taken
that in view of the Constitution Bench Judgment in the case
of
Direct Recruit Class II Engineering Officers' Association
v. State of Maharashtra & Ors.
, 1990 (2) SCC 715, the date
of entry in the service determines the seniority of the
officer concerned. As the reserved category candidates in
the aforesaid illustration had been promoted from grade 'C'
to grade 'B' before the general category candidates who were
senior to them in the lower grade 'C', the seniority of the
reserved category candidates is fixed and determined with
reference to the dates of promotion in grade 'B' and they
shall rank senior to the general category candidates who
were promoted later although they were senior to them in the
grade 'C'.

This Court in the case of
Direct Recruit Class II
Engineering Officers' Association vs. State of Maharashtra &
Ors.
(supra) was not considering the question of inter se
seniority of categories, who have been promoted on basis of
reservation and roster and those who have been promoted from
lower grade to higher grade on consideration of seniority-
cum-merit or merit-cum-seniority. There the question under
consideration, was as to how to fix the seniority of persons
entering n service from different sources i.e. by process of
direct recruitment and promotion. The policy of reservation
cannot be implemented in a manner to block the merit channel
and to make it dry. It is so heartening to note that for
whom the founding fathers introduced the provision for
reservation to protect and encourage entry in service, now
are able to enter service on their own merit by competing
with candidates of general category. For promotion or
appointment of a member of Scheduled Caste against the post
reserved for him the primary question to be considered is as
to whether be belongs to a class for whom reservation has
been made. But for being considered for appointment or
promotion against a general category post, merit is the
primary consideration because the applicant is to enter into
the service or grade of service through merit channel.

When framers of the Constitution by
Article 16

guaranteed equality of opportunity in mattes of public
employment, they armed at combining democratization with
efficiency. In the process of democratization
Article 16(4)

enabled the State to make provisions for 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. As
has been pointed out by this Court that at the same time

Article 335
of the Constitution enjoins to take into
consideration the claims of the members of the Scheduled
Castes and Scheduled Tribes "consistently with the
maintenance of efficiency of the administration" while the
making of appointments to services and posts in connection
with the affairs of the union or of a State. Thus it has
been conceived by our Constitution that a process should be
adopted while making appointments through direct recruitment
or promotion in which the merit is not ignored. For
attracting meritorious and talented persons to the public
services, a balance has to be struck, while making
provisions for reservation in respect of a section of the
society. This Court from time to time has been issuing
directions to maintain that balance in the public services
so that there should not be discontentment, heart-burning
and frustration, which can never be held to be in the larger
interest of the society. It has been pointed out in the case
of
Indra Sawhney
(supra) that reservation in promotions at
various stages has resulted in considerable discontentment
because many senior persons inspite of their efficiency and
dedicated work find themselves superseded by their juniors
belonging to the Scheduled Castes or Tribes for that reason
alone. In many cases seniors to their horror find themselves
made junior to even those who actually worked as their
subordinates due to this factor alone. All concerned who are
involved and interested in the uplift and growth of the
nation have to work out a system by which the injustice done
to a section of people in our society at certain period of
history can be rectified by providing protections to their
descendants, but we have to be conscious, at the same time
that the efficiency of the administration of the country is
not harmed and there is no reverse discrimination. Promotion
is an important incident of service. It covers both
advancement between srades within the same class and between
different classes. Seniority in service is one of the
important factors in making promotion. Even where process of
promotion by selection is adopted, seniority has an
importance in case of equal merit. The principal object of a
promotion system is to secure the best possible incumbents
for the higher position while maintaining the morale of the
whole organization. The best public interest is served when
equal opportunities for promotion exists for all qualified
employees. Civil servants are able to move up 'the promotion
ladder' as the merit deserves and the vacancies occur. Right
to equality enshrined in the Constitution is to be reserved
by preventing reverse discrimination as well. The guarantee
of equality requires maintenance of original or panel inter
se seniority between the general category candidate and the
earlier promoted reserved category candidate under the
reservation policy, for promotion to the higher general
vacancy. The equality principle requires exclusion of the
factor of extra weightage of earlier promotion to a reserved
category candidate because of reservation alone, when he
competes for further promotion to a general category with a
general category candidate, senior to him in the panel. Any
other view would amount to reverse discrimination and
violative of the guarantee of equality in
Articles 14
to 16.

We respectfully concur with the view in
Union of India
vs. Virpal Singh Chauhan
, (supra) that seniority between the
reserved category candidates and general candidates in the
promoted category shall continue to be governed by their
panel position i.e. with reference to their inter se
seniority in the lower grade. The rule of reservation gives
accelerated promotion, but it does not give the accelerated
consequential seniority'. If a Scheduled Caste/Scheduled
Tribe candidate is promoted earlier because of the rule of
reservation/roster and his senior belonging to the general
category candidate is promoted later to that higher grade
the general category candidate shall regain his seniority
over such earlier promoted scheduled caste/tribe candidate.
As already pointed out above that when a scheduled
caste/tribe candidate is promoted earlier by applying the
rule of reservation/roster against a post reserved for such
scheduled caste/tribe candidate, in this process he does not
supersede his seniors belonging to the general category. In
this process there was no occasion to examine the merit of
such scheduled caste/tribe candidate vis-a-vis his seniors
belonging to the general category. As such it will be only
rational, just and proper to hold that when the general
category candidate is promoted later from the lower grade to
the higher grade, he will be considered senior to a
candidate belonging to the scheduled caste/tribe who had
been given accelerated promotion against the post reserved
for him. Whenever a question arises for filling up a post
reserved for scheduled caste/tribe candidate in still higher
grade then such candidate belonging to scheduled caste/tribe
shall be promoted first but when the consideration is in
respect of promotion against the general category post in
still higher grade then the general category candidate who
has been promoted later shall be considered senior and his
case shall be considered first for promotion applying either
principle of seniority cum merit or merit cum seniority. If
this rule and procedure is not applied then result will be
that majority of the posts in the higher grade shall be held
at one stage by persons who have not only entered in service
on basis of reservation and roster but have excluded the
general category candidates from being promoted to the posts
reserved for general category candidates merely on the
ground of their initial accelerated promotions. This will
not be consistent with the requirement or the spirit of

Article 16(4)
or
Article 335
of the Constitution.

According to us, the Full Bench was not justified in
saying in the case of
Jaswant Singh vs. The Secretary to
Govt. of Punjab
(supra) that non consideration of Scheduled
Castes candidates against general category posts on basis of
their prior promotion will be hit by
Articles 14
, 15
and
of the Constitution.

That view shall be deemed to be against
the pronouncement of this Court by the nine Judges Bench in
the case of
Indra Sawhney
(supra) as well as the view
expressed by the Constitution Bench in the case of

R.K.Sabharwal
(supra).

Accordingly, the appeals are allowed
and that part of the judgment of the Full Bench in the case
of
Jaswant Singh vs. The Secretary to Govt. of Punjab

(supra) is reversed. Now the case of the appellants and
others similarly situated should be considered in the light
of this judgment. We are not inclined to examine individual
grievances and to work out the effect of the views expressed
by us. That shall be done by the State Government. In the
facts and circumstances of the case, there shall be no
orders as to cost.