Supreme Court of India

Jagdish Lal & Ors vs State Of Haryana & Ors on 7 May, 1997

Equivalent citations: AIR 1997 SUPREME COURT 2366, 1997 (6) SCC 538, 1997 AIR SCW 2257, 1997 LAB. I. C. 2301, 1997 (3) SERVLJ 162 SC, 1997 (4) SCALE 202, (1997) 3 SERVLJ 162, (1997) 5 JT 387 (SC), (1997) 5 SUPREME 1, (1997) 2 SCJ 251, (1997) 4 SERVLR 333, (1997) 4 SCALE 202, (1997) 4 LAB LN 22, 1997 SCC (L&S) 1550, (1998) 1 SCT 26

Author:
K. Ramaswamy

Bench:
K. Ramaswamy
,
S. Saghir Ahmad

PETITIONER:
JAGDISH LAL & ORS.

Vs.

RESPONDENT:
STATE OF HARYANA & ORS.

DATE OF JUDGMENT: 07/05/1997

BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T
THE 7TH DAY OF MAY, 1997
Present:

Hon'ble Mr. Justice K. Ramaswamy
Hon'ble Mr. Justice S. Saghir Ahmad
Hon'ble Mr. Justice G.B. Pattanaik
K.B. Rohtagi, Mrs. Aparna Rohtagi Jain, Advs. for the
appellants.

Prem Malhotra, Jasbir Malik and K.S. Chauhan, Advs. for the
Respondents.

The following Judgment of the Court was delivered:

K. Ramaswamy, J.

Leave granted
We have heard learned counsel on both sides.
This appeal by special leave arises from the Division
Bench Judgment of Punjab & Haryana High Court, made on
November 5, 1996 in C.W.P. No.8755/96.

The appellant-general candidates, viz., Jagdish Lal,
Ram Dayal and Surinderjit Kapil, challenged the promotion of
the Scheduled Caste and Scheduled Tribe candidates (for
short, the `reserved candidates'), viz., Ram Asra, H.S.
Hira, Sant Lal and Ajmer Singh, as Superintendents in Class-
III Service of Haryana Government. Respective appointments
of the appellant and the respondents have been reflected in
the judgment of the High Court as under:
S.No Name Seniority Dt. of As As As As As
no. in apptt. Asstt. Dy. Supdt. Bud- R.E.
the seni- as Supdt. get (Cla-

ority list Clerk Offi ass
cer- I)
of 1.1.95 (Cla-
ss II)

------------------------------------------------------------
APPELLANTS:

1. Jagdish 22 24.11.58 1.12.68 27.10.87 1.4.90 - -
Lal

2. Ram Dayal 28 22.2.61 1.12.68 16.1.89 9.8.91 - -

3. Surinderjit 56 1.9.66 10.4.72 2.2.96 - - -

Kapil
PRIVATE RESPONDENTS
(Reserved Category candidates)

1. Ram Asra 48 31.1.66 22.9.71 26.5.82 4.9.87 - -

2. H.S. Hira 64 18.4.67 31.5.73 27.10.83 27.5.88 - 2.2.96
promoted
on ad hoc
basis for
a period
of 4
months
only and
31.5.96
on
regular
basis.

3. Sant Lal 91 16.8.71 6.11.78 4.11.87 8.2.90 - -

4. Ajmer Singh 99 24.8.72 9.9.79 31.10.88 1.7.90 - -

In the lowest cadre post, i.e., Clerks and Assistants,
in the Education Department, admittedly, the appellant were
senior to the respondent. But as Deputy Superintendents,
Respondent Nos. 1 and 2 were promoted respectively on May
26, 1982 and October 27 1983, while the appellants were
promoted on different dates, viz., October 27, 1987, January
16, 1989 and February 2, 1996. Sixth respondent, Sant Lal
was promoted on November 4, 1987, that is, prior to the
promotion of Surinderjit Kapil. Equally, respondent No.7
Ajmer Singh also was promoted earlier to Ram Dayal and
Surinderjit Kapil on October 31, 1988. While working as
Deputy Superintendent, Ram Asra was promoted to the post of
Superintendent on September 4, 1987; H.S. Hira was promoted
as Superintendent on May 27, 1988 while the first appellant,
Jagdish Lal was promoted on April 1, 1990 and Ram Dayal,
appellant No.2 was promoted on August 9, 1991; Sant Lal,
respondent No.6 was promoted on February 8, 1990, that is,
prior to the promotion of Jagdish Lal as Superintendent.
Equally, Ajmer Singh, 7th respondent was promoted as
Superintendent on July 1, 1990, that is, prior to the
promotion of second appellant, Ram Dayal on August 9 1991.
While all of them were working as Superintendents, H.S. Hira
was further promoted on ad hoc basis w.e.f. February 2,
1996 for a period of 4 months and from May 31, 1996 on
regular basis, in his own right, as Registrar (Education)
which post is now classified as Class I post. On June 4,
1996, the appellants filed a writ petition claiming that
right from the post of Clerk upto the post of
Superintendent, the Class III Service of the Education
Department, they were senior to the reserved candidates.
Though they were promoted on the basis of rule of
reservation applying the 100 point roster maintained by the
Government, they stole a march over the appellants who were
being members of the same Class III Service. They further
claimed that though the reserved candidates has got
promotion to the different posts earlier to them, the
appellants still were entitled to be senior to them for the
purpose of promotion to Class I posts. As a consequence,
they were entitled to be considered for promotion before
consideration of the reserved candidates including H.S.
Hira, the fifth respondent as Registrar (Education). The
sheet anchor of their case was the decision of this Court in
Ajit Singh Januja & Ors. v. State of Punjab [JT 1996(2) SC
727]. The High Court dismissed the writ petition inter alia
on the ground of abnormal delay in challenging the promotion
of the reserved candidate to the post of Asstt./Dy.
Superintendents and Superintendents. It observed that though
the reserved candidates were promoted on different dates as
Superintendents etc. earlier to the appellants, they having
become members of the Service in the lower cadres earlier to
the appellant, were entitled to be considered for further
promotion to the higher ladders of the Service; their
promotions are not vitiated by an error of law. The Haryana
Eduction Deptt. (State Service Class II) are governed by the
Haryana Education Deptt. (State Service Group B) Rules, 1980
(For short, the `Rules') Rule 11 of the Rules deals with
seniority. By operation thereof the reserved candidates
became senior to the appellants in the respective cadres.
Fifth respondent, H.S. Hira was promoted to Group `B' Class-
I Service in his own right as a general candidate as there
was no reservation. Therefore, their promotion is valid in
law. It was also held that even otherwise, since the
promotions of the reserved candidates came to be made prior
to the decision in Sabharwal's case, they could not be
declared invalid. The High Court has pointed out that "Here
it is important to mention that as on the date of promotion
of respondent No.4 on the post of Superintendent, the
petitioners has not been promoted even as Deputy
Superintendents. Similarly, as on the date of promotion of
respondent Nos. 4 and 5 , the petitioner No.2 has not been
promoted as Deputy Superintendent and so far as petitioner
No.3 is concerned, he came to be promoted as Deputy
Superintended after almost 8 years and 6 months of the
promotion of respondent No.4; after 7 years and 9 months of
the promotion of respondent No.5; and after almost 4 and 5
years and 6 months of the promotion of respondent Nos.6 and
7 as Superintendents. Thus the petitioners cannot have any
claim to be assigned seniority over and above respondent
Nos. 4 to 7 as Superintendents." The High Court negatived
the contention that the appellants were denied of right to
equality on account of the application of rule of
reservation and roster point violating
Articles 14
and
of
the Constitution. The High Court further pointed out thus:

"A careful reading of the various
decisions of the Apex Court and the
decision of this Court, shows that
in R.K. Sabharwal's case, their
Lordships were primarily concerned
with the interpretation of the
policy circulars issued by the
Government of Punjab regarding
reservation in favour of the
Scheduled Castes and Backward
Classes and operation of the roster
system. In Court was dealing with
circulars issued by the Railway
Board with particular reference to
the letter dated 31st Aug., 1982
and held that the word "Panel" used
in that circular meant the panel
prepared by the recruiting
authority at the time of initial
entry in the service and that the
seniority of the employees in the
higher grades must also be
determined with reference to their
panel position. This very principle
has been reiterated in Ajit Singh's
case in which circular issued by
the Government of Punjab and the
judgment of the Full Bench case in
Jaswant Singh's case (supra) came
up for consideration. The Division
Bench which decided Madan Lal's
case simply applied the
observations made in the three
decisions of the Supreme Court and
held that reserved categories
employees have no right to be
assigned seniority on the promoted
posts over and above the general
category employees who were senior
in the lower cadre and who got
promotion in the next higher post
on a later date. However, in Akhil
Bhartiya Soshit Karamchari Sangh's
case (supra) their Lordships
clarified that the principle laid
down in R.K. Sabharwal's case and
Virpal Singh Chauhan's case (supra)
will operate prospectively and not
retrospectively.

In our opinion, none of these
decisions is of any help for
interpreting rules relating to
seniority which have been extracted
above. In none of the decisions,
their Lordships of the Supreme
Court interpreted a rule like the
one which is under consideration
before us. No doubt in Madan Lal's
case a similar rules has been
referred to but instead of
interpreting that rules the
Division Bench has limited its
considerations made by the Supreme
Court in Ajit Singh's case (supra).
We are of the opinion that in
view of the clear language used in
the substantive part of Rule 11 and
its first proviso, seniority will
have to be determined in different
cadres and categories of posts
because the services governed by
the Rules of 1974 and 1980 consist
of different cadres. Posts of
Registrar, Assistant Registrar
(Examinations), Budget Officer and
Superintendents constitute
different cadres and, therefore,
seniority will have to be
determined in each cadre
separately. Similarly, the post of
Deputy Superintendents, Assistants
and Clerks, recruitment to which is
governed by `1974 Rules' constitute
different cadres and seniority will
have to be determined separately in
each of these cadres and the
general principle laid down in Ajit
Singh's case cannot be applied for
the purpose of determination of
seniority in a case like the
present one.

On the basis of above
discussion, we hold that:-

(i) the writ petition deserves to
be dismissed on the ground of delay
and laches in so far as challenge
to the promotion of the
respondents as
Superintendents/Registrar is
concerned;

(ii) the principles laid down in
Virpal Singh Chauhan's case (supra)
and Ajit Singh's case (supra) will
operate prospectively and will not
affect promotions of reserved
category candidates which were made
prior to the decision in R.K.
Sabharwal's case (supra) or Virpal
Singh Chauhan's case (supra);

(iii) the decision in Virpal Singh
Chauhan's case and Ajit Singh's
case cannot be applied in a case
like the present one where the
seniority is required to be
determined in different cadres and
categories of posts. In the absence
of any challenge to the vires of
Rule 11 the petitioners cannot
claim fixation of their seniority

above the Respondent Nos. 4 to 7

who were promoted as Deputy
Superintendents earlier than the
petitioner."

Shri Rohtagi, learned counsel for the appellant,
contended that in all the posts/grades starting from that of
Clerk to Superintendents in Class III Service and the posts
of Budget Officer, Assistant Registrar and Registrar in
Group `B' Class I Service by operation of ratio of Ajit
Singh's case and Union of India v. Vir Pal Singh Chauhan
[(1995) 6 SCC 684], seniority is required to be determined
keeping the seniority of the general and reserved candidates
in the lower grade/cadre in fact as all the posts are of the
same Service. As soon as the general candidates get promoted
to the higher cadre, the inter se seniority of the general
candidates and the reserved candidates is required to be
redetermined on the basis of their inter se seniority in the
feeder grade/cadre. That was the view taken by this Court in
Veer Pal Singh Chauhan case. Even though the reserved
candidates were promoted earlier to the general candidates,
the inter se merit between the general candidates and the
reserved candidates in Group `B' Class I Service should be
redetermined. The promotion is required to be given to Class
I Service on that basis. Promotion at various levels in
Class II Service is also, accordingly, required to be given
and the seniority determined. As soon as the general
candidates get promoted, even though later to the reserved
candidates, they have right to have their seniority
restored. As a consequence, the general candidates are
eligible to be considered for promotion in higher posts
before consideration of the reserved candidates since for
the first time the inter se rights are being considered in
Class-I Group `B' Service. This interpretation in Chauhan's
case and Ajit Singh's case is consistent with the principle
laid down in
Articles 14
and
16 (1)
of the Constitution
granting equality of opportunity to both the general as well
as the reserved candidates. The absence thereof would negate
the right to equality to general candidates violating

Article 14
and
16 (1)
of the Constitution. The mere delay in
filing the writ petitions cannot made the base to deny the
relief to the general candidates. The right to equality
being a constitutional mandate, as and when the right is
required to be determined, the Court has to consider the
facts of each case and decide it on merits. The High Court,
therefore, is wrong in law. Shri Prem Malhotra, learned
counsel for the State, contended that whatever be the
earlier legal position, after the judgment in Ajit Singh's
case, the Government re-examined the matter and issued
proceedings restoring the seniority of the general candidate
in their respective feeder post/cadres from which reserved
candidates came to be promoted. The direction, it is
contend, is consistent with and is in implementation of the
law laid down by this Court. The High Court, therefore, is
not right in refusing to grant the relief to the appellants.
Shri K.S. Chauhan, learned counsel for the reserved
candidates, contended that under Rule 11 of the Haryana
Education Department Class III Service Rules, 1974 [for
short, the "1974 Rules"] and Rule 11 of the Rules provide
for determination of seniority of the employees in the said
Service. The Service as per 1974 Rules consists of various
cadres, starting from Clerk to Superintendents in the Class
III Service. Under 1980 Rules, the Gazetted Cadre consist of
Budget Officers, Assistant Registrar (Education) and
Registrar (Education) all of which constitute Class I
Service. Rule 11 of the respective Rules is a substantive
rules creating right to seniority. The moment the officer is
appointed to the service/cadre on putting probation, on
successful completion of the probation period and on being
duly declared, they cease to be the members of the feeder
cadre from which they came to be promoted, As and when the
vacancies arise in the posts in the respective cadres as per
the roster point, the candidates, whether general or
reserved, are required to be considered for promotion and
duly promoted in accordance with the existing Rules. They
became members of the service in the respective cadres of
Class III or Group B Class I Service. The moment they
started discharging the duties of the posts and on
declaration of the successful and satisfactory probation
period, they became fullfledged members of that Service.
They also ceased to be members of the feeding cadre.
Therefore, the moment, the termination of probation was
declared, they ceased to be members of the Service of the
lower feeder cadres at various levels as cadre officers. The
subsequent promotions to the general candidates do not have
the effect of denying the seniority secured by the reserved
candidates due to their early promotion. Even if promotions
to Group `B' Class I service are to be made without
applying the rule of reservation, the reserved candidates
having become senior to general candidates, are entitled to
be considered for promotion as per Rules in their own merit.
Accordingly, the 5th respondent came to be promoted to the
post of Registrar (Education) in his own right. The
appellants have no right to claim seniority over the
respondent-reserved candidates. He also contended that
promotion to the reserved candidates is as member of the
Dalits and Tribes as a Class. Constitutional right to
equality enshrined under
Article 14
, the genus, and
Article
16 (1)
, the species thereof, provide for protective
discrimination in favour of the Dalit and Tribe. Appointment
by promotion to a post or Service under the State is a
constitutional right given by
Article 16(1)
or (4A) of the
Constitution. Therefore, when the reserved candidates are
promoted in accordance with the Rules, applying rules of
reservation, and are promoted to posts as per the roster and
are appointed to the posts reserved for reserved candidates
as per the roster, no unconstitutionality result and it is
not discriminatory or arbitrary, violating
Article 14
of the
Constitution. He also contended that the reserved candidates
were promoted long prior the general candidates in Class III
and Group B Class I Service. The writ petition came to be
filed after Ajit Singh's case. The High Court, therefore, is
right in dismissing the writ petitions on the ground of
delay as well.

In view of the diverse contentions, the questions that
arise for consideration are: from what date seniority of
reserved or general candidates should be determined? Whether
the accelerated promotions given to the reserved candidates
to various cadres, applying the rule of reservation, will
not enure to them the seniority from the date of respective
promotion? Conversely, whether on the promotions given to
the general candidates as per the roster point, the
promotions will have the effect of giving them the seniority
over the reserved candidates in the respective
feeder/promoted cadres? Whether the view taken by the High
Court is correct in law? In order to appreciate the
contention, it is necessary to refer to Rule 11 of the 1974
Rules and Rule 11 of the 1980 Rules. They read as under:

"1974 Rules : Rule 11 : The
seniority, inter-se seniority of
members of service shall be
determined by the length of
continuous service on a post in the
service;

Provided that where there are
different Cadres of categories of
the post in service, the seniority
will be determined separately for
each cadre or category of posts;

Provided further that in the
case of members appointed by direct
recruitment, the order of merit
determined by the commission shall
not be disturbed in fixing the
seniority and candidates
recommended earlier shall be senior
to the candidate recommended later;
Provide further that in the
case of two or more members
appointed on the same date, their
seniority shall be determined as
follows:

(a) a member appointed by direct
recruitment shall be senior to
a member appointed by
promotion or by transfer;

(b) a member appointed by
promotion shall be senior to a
member appointed by transfer;

(c) in the case of members
appointed by promotion or by
transfer, seniority shall be
determined according to the
seniority of such members in
the appointments from which
they were promoted or
transferred; and

(d) in the case members appointed
by transfer from different
cadres their seniority shall
be determined according to
pay, preference being given to
a member, who was drawing a
higher rate of pay in his
previous appointment and if
the rates of pay drawn are
also the same, then by the
length of their service in the
appointments, and if the
length of such service is also
the same, the older member
shall be senior to the younger
member.

`1980 Rules' : Rules 11 : Seniority
of members of the service : The
seniority, inter se, of members of
the Service shall be determined by
the length of continuous service on
a post in the service;

Provided that where there are
different cadres or categories of
posts in the service, the seniority
shall be determined separately for
each cadre or category of posts;

Provided further that in the
case of members appointed by direct
recruitment, the order of merit
determined by the Commission shall
not be disturbed in fixing the
seniority and candidates
recommended earlier shall be senior
to the candidates recommended
later;

Provided further that in the
case of two or more members
appointed on the same date, their
seniority shall be determined as
follows:

(a) a member appointed by direct
recruitment shall be senior to
a member appointed by
promotion or by transfer;

(b) a member appointed by
promotion shall be senior to a
member appointed by transfer;

(c) in the case of members
appointed by promotion or by
transfer, seniority shall be
determined according to the
seniority of such member in
the appointment from which
they were promoted or
transferred; and

(d) in the case of members
appointed by transfer from
different cadres, their
seniority shall be determined
according to pay, preference
being given to a member, who
was drawing a higher rate of
pay in his previous
appointment and if the rates
of pay drawn are also the
same, the y by the length of
their service in the
appointments, and if the
length of such service is also
the same, the older member
shall be senior to the younger
member."

1974 Rules and 1980 Rules mutatis mutatis are the same.

Rule 2 (g) of 1980 Rules defines "Service" to mean Haraya
Education Department (State Service, Group B). Under Rule 3,
the Service shall comprise the posts shown in Appendix A to
the Rules. Rule 4 prescribes the general eligibility
criteria and Rule 5 prescribes age requirement. Rule 6
prescribes educational qualifications as per Appendix B.
Rule 8 enumerates certain grounds for disqualification for
appointment to any post in the service. Relevant part of
Rule 9 with which we are concerned reads as under :

"9. (1) Recruitment to the Service
shall be made,

(a) in the case of Registrar, -

(i) from amongst the Assistant
Registrar (Examinations),
Budget Officer in the Service
or by promotion from amongst
the Superintendents in the
Service;"

In other words, all feeder posts enumerated constitute
source of recruitment to the post of Registrar.

"or

(c) in the case of Budget Officer,-

(i) by promotion from amonst the
Superintendents; or

(ii) by transfer or deputation of
an officer of equivalent
grade/experience, already in
the service of Government of
India or any State Government.

(d) in the case of
Superintendent,-

(i) by promotion from amonst the
Deputy Superintendents, or
Assistants in the Haryana
Education Department (State
Service, Group C) Services; or

(ii) by transfer or deputation of
an officer of equivalent grade
already in the service of
Government of India or of any
State Government; or

(iii) by direct recruitment."

(2) Whenever any vacancy occur or
is about to occur in the Service,
the appointing authority shall
determine in what manner such
vacancy shall be filled.

(3) All promotions, whether from
one grade to another or from one
class of service to another class
of service, shall be made by
selection based on merit and taking
into consideration seniority but
seniority alone shall not given any
right to such promotions.

On appointment so made, by operation of Rule 10, person
appointed to nay post in the Service shall remain on
probation for a period of two years, if appointed by direct
recruitment and one year if he is appointed otherwise
(promotion). However, under proviso thereto, among others,
any period before such appointment, spent on deputation on a
corresponding post or a higher post shall count towards the
period of probation of one year. Under sub-rule (2) of Rule
10, if in the opinion of the appointing authority the work
or conduct of a person during the period of probation is not
satisfactory, it may, (a) if such person is appointed by
direct recruitment, dispense with his services; and (b) if
such person is appointed otherwise then by direct
recruitment (promotion) or transfer, (i) revert him to his
former post; or (ii) deal with him in such other manner as
the terms and conditions of his previous appointment permit.

On completion of the period of probation by a person, under
sub-rule (3), the appointing authority may, (a) if his work
or conduct has in its opinion, been satisfactory - (i)
confirm such person from the date of his appointment, if
appointed against a permanent vacancy; or (ii) confirm such
person from the date from which a permanent vacancy occurs,
if appointed against a temporary vacancy; or in case of non-
availability of permanent vacancy (iii) declare that he has
completed his probation satisfactorily and awaits
appointment to permanent vacancy; or (b) If his work or
conduct has, in its opinion, not been satisfactory, - (i)
dispense with his services, if appointed by direct
recruitment or if appointed otherwise, revert him to his
former post or deal with him in such other manner as the
terms and conditions of his previous appointment permits; or

(ii) extend his period of probation and thereafter pass such
order, as it could have passed on the expiry of the period
of probation. Under proviso, however, the total period of
probation, including extension, if any, shall not exceed
three years. It would thus in the Service, either by direct
recruitment or by promotion/transfer, the incumbent officer
is required to be put on probation and on completion of the
probation or extended probation period, upto a maximum of
three years, the authority is enjoined to declare completion
of his probation. In other words, he stands confirmed to the
Service. He gets appointed to a permanent vacancy subject to
availability and thereafter he becomes full-fledged member
of the Service. It is settled legal position that
confirmation is an inglorious uncertainty. Continuous length
of service; if appointed according to the Rules on
consideration of claims of eligible persons as on that date
as per rules accords seniority and gets counted from the
date of initial appointment by direct recruitment/promotion/
transfer to the cadre/post.

The question then arises : as to from what date the
seniority is required to be determined? As seen, under Rule
11, the inter se seniority of the member of the Service
shall be determined by the length of continuos service is a
post in the Service. However, exception are carved out to
the said general rule. Under the first proviso, where there
are different cadres or categories of posts in the Service,
the seniority shall be determined separately for each cadre
or category of posts. The second proviso being not relevant
for our purpose, is omitted. Under the third proviso, in
case of two or more members are appointed on the same date,
their seniority shall be determined in the following manner:

"(a) a member appointed by direct
recruitment shall be senior to
a member appointed by
promotion or by transfer;

(b) a member appointed by
promotion shall be senior to a
member appointed by transfer;

(c) in the case of members
appointed by promotion or by
transfer, seniority shall be
determined according to the
seniority of such members in
the appointments from which
they were promoted or
transferred;"

[Class (d) being irrelevant
for the present purpose, is
omitted]
Conjoint reading of the provisions referred to
hereinabove would indicate that according to 1974 Rules,
there exist in the Service cadre/grades consisting of
Clerks, Assistants, Deputy Superintendents and
Superintendents in the Service. Similarly, under 1980 Rules,
there exist cadre/grade of Budget Officer, Assistant
Registrar and Registrar. It is also seen that under the
Rules, appointment by promotion to Grade B-Class-I, i.e.,
Gazetted cadre, is to be made from amongst the Budget
Officers or Superintendents. Therefore, promotion to the
post of Registrar (Education) one of the feeder posts is
Superintendent. It is seen that as soon as a person is
appointed to a cadre/grade, he starts discharging the duties
of appointment to the post and his seniority is determined
on the basis of that date unless he is appointed only as a
stop-gap arrangement or on ad hoc basis and de hors the
Rules. In case of regular appointment, the appointing
authority is enjoined to put him on probation and on
successful completion of the probation period of one year
including the period spent on the higher post (s), unless
the probation is extended upto a maximum of three year, he
stand confirmed in the promoted post. Thus, his confirmation
dates back to his initial dated of appointment by promotion
and by operation of Rule 11 and the proviso referred to
hereinabove, the seniority stands determined from the date
of his appointment to the cadre/grade. It would thus be
manifest that as soon as the candidate, whether general or
reserved, gets promoted from one cadre, e.g., a Clerk is
promoted as Assistant on his completion of probation and on
declaration thereof, he gets confirmed as Assistant and
becomes a member of the Service from the initial date of
appointment by promotion. Equally, when an Assistant become
Deputy Superintendent and Deputy Superintendent becomes
Superintendent, the method of computation of seniority would
be the same, viz., as soon as his probation is declared, he
becomes a member of the Service. On availability of
permanent post, he gets appointed to the post and thereafter
ceases to be a member of the feeder/lower cadre. In this
regard, under Fundamental Rule 14-A(a) a Government
Servant's lien on a post may, in no circumstance, be
terminated, even with his consent, if the result will be to
leave him without a lien or a suspended lien upon a
permanent post. Under Fundamental Rules 14-A(d) a Government
servant's lien on a post shall stand terminated on his
acquiring a lien on a permanent post (whether under the
Central Government or a State Government) outside the cadre
on which he is borne. A conjoint reading, thus, would
establish that a Government servant shall always have a lien
on the post and simultaneously, he shall not have right to
hold any lien on more than one post. In other word, the
articulated be a member of two post/service/grade/cadre nor
is he eligible to hold lien on two posts. On promotion from
the post of Clerk as Assistant, on successful and
satisfactory completion of probation and declaration
thereof, he becomes a member of the Service in the cadre of
Assistant and so on till the cycle is complete. Vice versa,
there are various stages of promotion to the higher echelons
of Service and the same resultant consequence follow. The
same principle equally applies in Group B Service under 1980
Rules. This principle is applicable equally to the general
as well as reserved candidates. On this principle, there is
and there should be no dichotomy and this is the settled
service jurisprudence. In the case of appointment by
promotion of Dalits and Tribes, no different yardstick
should be applied. This is the normal/common phenomenon is
service jurisprudence in Service under, either the Union
Government or the State Government, or for that matter,
semi-Government authorities/corporations/undertakings.

The question then is : whether such a rule becomes
arbitrary or violative of equality enshrined under
Article
read with
Article 16 (1)
of the Constitution, when
applied to Dalits and Tribes? It would be appropriate at
this stage to have the benefit of case law on the subject.
In the All India Administrative Service (SAS) Association &
Ors. V/s. Union of India [(1993) Supp 1 SCC 730], in paras
14 and 15, a Bench of three Judges, to which one of us, K.
Ramaswamy, J., was a member, has held that no one has vested
right to promotion or seniority but an officer has an
interest in seniority acquired by working out the rules. In
T.R. Kapoor V/s. Stat of Haryana [(1986) Supp. SCC 584 at
595], this Court observed that "unless it is specifically
provided in the rules, the employees who are already
promoted before the Amendment of the Rules, cannot be
reverted and their promotions cannot be recalled". In State
of Maharashtra V/s. Chandrakant Anant Kulkarni [(1981) 4 SCC
130], another Bench of three Judges in paragraph 16 at page
141 had held that "(M)ere chances of promotion are not
conditions of service, and the fact that there was reduction
in the chances of promotion did not tantanmount to a change
in the conditions of service."
In
K. Jagadeesan vs. Union of
India & Ors.
[(1990) 2 SCC 228 at 230], in para 6, it was
held that "a right to be considered for promotion is a term
of service, but mere chances of promotion are not"; so also
the eligibility for promotion. Passing of the departmental
examination is nothing but a mere chance of promotion. In
Ashok Kumar Gupta V/s Stat of U.P. [1997 (3) SCALE 289 at
299, para 22] this Court comprising all the three of us, had
held that "in service jurisprudence, a distinction between a
right and interest has always been maintained. Seniority is
a facet of interest. When the Rules prescribed the method of
selection/recruitment, seniority is given as per the ranking
given and governed by such as was laid in the rules".
Similar view taken in A.K. Bhatnagar V/s. Union of India
[(1991) 1 SCC 544] was upheld by this Court. In Akhil
Bhartiya Soshit KarmchariSangh V/s. Union of India [(1996) 6
SCC 65] to which tow of us, K. Ramaswamy and G.B. Pattanaik,
were members, this Court has held that no member of the
service has a vested right to promotion or seniority but an
officer has an interest in seniority acquired by working out
the rules. In Md. Shujat Ali & Ors. etc. v. Union of India &
Ors. etc. [(1975) 1 SCR 449] a Constitution Bench had held
that a rule which confers a right of actual promotion or a
right to be considered for promotion is a rule prescribing
conditions of service.
In Mohd. Bhakar vs. Krishna Reddy
[1970 SLR 268], a Bench of three Judges had held that any
rule which affects the promotion of a person, relates to
conditions of service.
In
State of Mysore v. G.B.
[1967
S.L.R. 753] a Bench of two Judges had held that rule which
merely affects chances of promotion cannot be regarded as
varying the condition of service. Chances of promotion are
not conditions of service.

In
Syed Khalid Rizvi & Ors. v.
Union of India & Ors.
[1993 supp. (3) SCC 575] to which one
of us K.R.S., J. was a members, it was held in para 31 that
no employer has a right to promotion; the only right is that
he is entitled to be considered for promotion according to
rules. Chances of promotion are not conditions of service
which defeasible in accordance with the rules. Thus, it is
settled principle in the service jurisprudence that mere
chances of promotion are not conditions of service and a
candidate appointed in accordance with the rule and steal a
march over his erstwhile seniors in the feeder/lower cadre.
On his having satisfactorily completed probation and
declaration thereof, he is given seniority in the higher
cadre. He become a member of the higher cadre from the date
of starting discharging duty of the post to which he is
promoted unless otherwise determined in accordance with the
rules. From that date, he ceases to be a Member of the
feeder cadre/grade from which he was promoted. The
hierarichal promotions to various cadres mentioned
hereinabove operate in the same manner and thereby on
successive promotion to various cadres/grades, though in the
same service, on would steal a march over other, by they
general or reserved candidates.

On promotion to the higher cadre, the reserved
candidate steals a march over general candidates and becomes
a member of the service in the higher cadre or grade earlier
to the general candidates. Continuous length of service
gives him the seniority cannot get re-opened, after the
general candidate gets promoted to the higher cadre/grade,
though he was erstwhile senior in the feeder cadre/grade.
Would a dual principle of seniority of Dalits and Tribes and
general candidates is valid and constitutionally
permissible? If a positive finding in that behalf is
recorded, it would run contrary to the bed role of judicial
precedents and it would be fraught with irreconcilable
incongruities in matter of integrating employees drawn from
different streams to forge into common seniority or promoted
according to rule which hitherto is well-trenched in service
jurisprudence.
In
State of U.P. v. Dr. Dina Nath Shukla &
Anr. [JT
1997 (2) SC 467 para 8] it was held that the
craving for equality generates clash of interest and
competing claims amongst the people, for emancipation of
the Dalits and Tribes from the pangs of absolute prohibition
of legal equality under
Articles 15(1)
and
16(1).
Under

Article 15(2)
to (4) and
Article 16(4)
and
4(a)
read with
the Directive Principles, protective discrimination has
poured forth practical content, softened the rigour of legal
equality and given practical content of equality in
opportunity in favour of unequals to hold an office or post
under the State in the democratic governance. In paragraph
9, it is further stated that in a democracy governed by rule
of law every segment of the society is entitled to a share
in the governance of the country. Permanent bureaucray is a
facet of our democratic governance and an integral scheme of
the Constitution. Recruitment to a post or an office under
State is governed by the Constitution, law and the rules
made under proviso to
Article 309
of the Constitution or
administrative instructions in the absence of statutory
rules. Protective discrimination has been upheld by this
Court which connotes mitigation of absolute equality in
order to achieve equality in result in favour of the
disadvantaged segments of the society. Appointment to an
office or post gives an opportunity to have equality of
status and dignity of person. The object, thereby, is to
provide economic equality, Social equality gets realised
through facilities and opportunities given to the Dalits and
Tribes to live with dignity and with equal status in the
society. Economic equality also gives socio economic
empowerment, a measure to improve excellence in every walk
of life. Equal opportunity of appointment to a post or
office is available to all citizens and legitimately and
constitutionally entitles them to consider their claims for
employment/appointment to an office or post in accordance
with rules.
Article 335
mandates the State that in the field
of competition the claims of Dalits and Tribes shall be
taken into consideration consistently with the maintenance
in appointment of promotion in favour of Dalit and Tribes is
a constitutional right under
Article 16(1)
and
16(4A)
read
with
Article 46
and other related Articles.

Reservation in
promotion was upheld by this Court in
R.K. Sabarwal & Ors.
v. State of Punjab & Ors.
[(1995) 2 SCC 745]. It is well
settled constitutional principal that reservation in favour
of Dalits and Tribes is in favour of the community but not
to the individuals belonging to that community, although
other ultimate beneficiaries are individuals.

In
Dr. Jagdish
Saran & Ors v. Union of India
[(1980) 2 SCC 768], it was
held that Dalits and Tribes for the purpose of admission
under
Article 15(4)
stand as a class. "The Constitution has
assigned a special place for that factum and the problems of
inherited injustice demanding social surgery which, if
applied thoughtlessly in other situation, may by a remedy
which extenuates their malody." In other words, in social
surgery of effectuating actuality in results, reservation in
favour of Dalits Tribes is a resultant surgical remedy to
the malody.

In
Dr. Pradeep Jain & Ors. v. Union of India &
Ors.
[(1984) 3 SCC 654] which was approved in Indira
Sawhney's case, discrimination. Now the concept which takes
in its sweep every process of equalisation under the canopy
of protective discrimination.

Equality must not remain mere idle incantation but must
become a vibrant living reality for the large masses of
people. In a hierarchical society with an indelible feudal
stamp and incurable actual inequality, it is absurd to
suggest that progressive measures to eliminate group
disabilities and promote collective equality are
antagonistic to and anathima of equality on the ground that
every individual is entitled to equality of opportunity
based purely on merit mantra judged by the marks obtained by
him. We cannot countenance such a suggestion, for to do so
would make the equality clause becomes sterile and
perpetuate existing inequalities. Equality of opportunity is
not simply a matter of legal equality. Its existence depends
not merely on the absence of disabilities but on the
presence of abilities and opportunity for excellence in each
cadre/grade. Where, therefore, there is inequality, in fact,
legal equality always tends to accentuate inequality. It is,
therefore, necessary to take into account de facto
inequalities which exist in the society and in order to
bring about real equality, affirmative action fills the bill
and allows to give preference to the socially and
economically disadvantaged persons by inflicting handicaps
on those more advantageously placed. Such affirmative
action though apparently discriminatory, is calculated to
produce equality in result on a broader basis by eliminating
de facto inequalities and placing the weaker section of the
community on a footing of equality with the stronger and
more powerful and a disadvantaged section so that each
member of the community, whatever is by his birth,
occupation or social position, may enjoy equal opportunity
of using to the full, his natural endowments of physique, of
character and of intelligence. This principle was approved
and reiterated by the Constitution Bench in
Marri Chandra
Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.

[(1990) 3 SCC 130]. It would, thus, i.e. , a settled
constitutional principle that facilities and opportunities
should be given to the Dalits and Tribes for promotion to
higher cadre or grade, gain accelerated seniority by the
Dalit and Tribes and delimit the seniority of the erstwhile
general candidates in the lower cadre or grade in accordance
with the roster point. Thereby, the Dalits and Tribes are
getting and accelerated placement in the higher echelons of
cadre or grade. It is constitutionally a permissible
classification bearing reasonable nexus to the object of
equality in result as component of economic and social
empowerment. It is just and reasonable procedure prescribed
to achieve the constitutional objectives of equality in
result, of status and opportunity and dignity of person to
integrate them in the mainstream of the national life, as
per the arch of the Constitution, i.e., the Preamble,

Article 14
, 15
, 16
and
and all other related Articles of
the Constitution consistent with the efficiency of
administration envisaged under
Article 335
of the
Constitution.

In A.K. Gupta & Anr. v. State of U.P. & Ors. [1997 (3)
SCALE 289 at 302 para 28] we have held that as regards the
competing claims between Dalits and Tribes on the one hand
and the general candidates on the other,
Article 14
and

16(1)
render an balancing right to equality in result
adjusting the competing rights of all sections.
In
Ahmedabad
St. Xaviers College Society & Anr. v. State of Gujarat &
Anr.
[(1975) 1 SCR 173 at 252] a larger Bench of nine Judges
had held that to establish equality, if it would require
absolute identical treatment of both the minority and
majority, that would result only in equality in law but
inequality in fact. Equality in law precludes discrimination
of any kind whereas equality in fact may involve the
necessity of differential treatment in order to attain a
result which establishes an equilibrium between different
situations. This Court held that the fundamental rights are
to be construed broadly so as to enable the citizen to enjoy
the fundamental right by succeeding generations.
In A.K.
Gupta's case, therefore, it was held that "to give adequate
representation to the Dalits and Tribes in all posts or
classes of posts of services to make it a reality and
truism, facilities and opportunities are required to be
provided to the Dalits as enjoined in
Article 38
for the
purpose of achieving equality of representation as a real
content. In para 30, it was observed that in abstract
application of equality under
Article 14
, every citizen is
treated alike without there being any discrimination.
Thereby, the equality, in fact, subsists. Equality prohibits
the State from making discrimination among citizen on any
ground. However, inequality in fact without differential
treatment between the advantaged and disadvantaged subsists.
In order to bridge the gap between inequality in results and
equality in fact, protective discrimination provides
equality of opportunity . Those who are unequals cannot be
treated by identical standards. Equality in law certainly
would not be real equality. In the circumstances, equality
of opportunity depends not merely on the absence of
disparities but on the presence of abilities and
opportunities. De jure equality must ultimately finds its
raison d'etre in de facto equality. The State must,
therefore, resort to protective discrimination of the
purpose of making people, who are factually unequally, equal
in specific areas. It would, therefore, be necessary to take
into account de facto inequality in which exists the society
and to take affirmative action by giving preference and
making reservation in promotion in favour of the Dalits and
Tribes or by inflicting handicaps on those more
advantageously placed, in order to bring about equality.
Such affirmative action, though apparently discriminatory,
is calculated to produce equality in result on a broader
basis by eliminating de facto inequality and placing Dalits
and Tribes on the footing of equality with non-tribal, non-
Dalit employees so as to enable them to enjoy equal
opportunity in order to unfold their full potentially.
Protective discrimination envisaged in
Article 16(4)
and

16(4-A)
is the armour to establish the said equilibrium
between equality in law and equality in results as a fact to
the disadvantaged. The principle of reservation in promotion
provides equality in results.

It is true that Indra Sawhney's ratio on reservation in
promotion became a torch bearer to the general candidates
but before it could become path-finder, the Parliament
enacted 77th Constitution (Amendment) Act and brought on the
Constitution
Article 16(4A)
as a part of the Constitutional
Scheme of reservation in promotion to a post. The
legislative judgment put off the stream generated by Indra
Sawhney's case. It is constitutionally a valid principle
which was declared to be so in several judgments referred to
and followed and ultimately held as valid in A.K. Gupta's
case.

Vir Pal Singh Chauhan's case followed by Ajit Singh's
case created euphoria among general candidates that
reservation in promotion, though till then had by the Dalits
and Tribes, slided back in the seniority scale to the bottom
as and when the general candidates in their own turn had got
promotion to higher echelons of service. The question is :

whether it is really so and whether it interjected the
normal service jurisprudence of continuous officiation in a
post or a cadre, unless promotion is not in accordance with
rule?
In
Direct Recruit Class II Engineering Officers'
Association v. State of Maharashtra & Ors.
[(1990) 2 SCC
715], the Constitution Bench had held in respect of
preposition No.1 in paragraph 47 that once an incumbent is
appointed to a post according to rule, his seniority has to
be counted from the date of his confirmation. The corrolary
of the above rules is that where the initial appointment is
only ad hoc and not according to rules and is made as a
stop-gap arrangement, the officiation in such post cannot be
taken into account for purpose of determination of the
seniority. to appreciate the effect and the real impact of
the above two decision, it is necessary to look into the
facts therein.
In Vir Pal Singh Chauhan's case the principle
consideration for promotion was seniority under the rules
made by the Railway Establishment Code. The Railway Board
issued circular letter dated August 31, 1982 which referred
the word `Panel'. It was a case of pure seniority rule.
Explaining the meaning of the word `panel prepared by the
recruiting authority and in the absence of any specific
rules as regards the nature of the effect of seniority in
the higher cadre/grade, the Bench of two Judges considered
its effect and held that the word `panel' used in that
circular meant the panel prepared by the recruiting
authority at the time of initial entry into service and that
the seniority of the employees in the higher grades was also
held to be determine with reference to the placement in the
initial appointment. It is settled legal position that the
ratio decidendi is based upon the facts actually decided. It
is an authority of those facts. In the light of the factual
position culled out by this Court on the panel position in
the lower cadre of the general as well as reserved
candidates, this Court in Vir Pal Chauhan's case, had held
that though the Dalit and Tribes were promoted earlier to
the general candidates to a higher cadre/grade, in the
absence of such a panel prepared in the promoted
cadre/grade, the panel prepared in the lower cadre remained
to be operative. Consequent, on promotion of the general
candidates, the inter se seniority vis-a-vis reserved
candidates remained the same as was found in the lower
cadre. That was the real ratio in that case, on the basis of
the circular letter referred to hereinbefore. Accordingly,
the said ratio, as pointed out by the High Court, does not
help the appellants-general candidates for the reason that
Rule 11 of 1974 Rules or 1980 Rules expressly occupies the
field and determines their inter se seniority in each
cadre/grade with reference to the date on which the
candidates, be it reserved or general, entered into the
service in the promoted cadre/grade. Vir Pal Chauhan's case,
therefore, is a class of its own and of no assistance when
the rules occupy the field governing the seniority position
in a particular manner. The Rules alone are required to be
looked into and seniority determined in accordance
therewith. In fact, this Court in Vir Pal Chauhan's case
further pointed out that when reserved candidates were
promoted from the initial stage to further stage, circular
letter has no application and the seniority of the reserved
candidates was required to be determined on the basis of
seniority position occupied by him in the promoted post.
This clearly explains that this Court did not intend to
depart from the normal service jurisprudence; nor did it
intend to lay down any separate rule of interpretation in
determining inter se seniority of the reserved candidates
and the general candidates and their fusion into common
seniority in the higher echelons over the erstwhile junior
reserved candidates. Equally, the ratio in Ajit Singh's
case, as rightly pointed out by the High Court, is
inapplicable. It did not lay down any separate rule in that
behalf. In that case it was not brought to the notice of
this Court the existence of operation of the service
conditions and seniority rule like Rule 11 of the Rule in
this case in each grade/cadre or services in Punjab &
Haryana Secretariat service or Civil Services. On the other
hand, this Court was invited to deal with the circular
letter issued by the Punjab & Haryana Government, on the
subject of reservation rules.
The primary question before
the Full Bench of Punjab & Haryana High Court in
Jaswant
Singh v. Secretary, Govt. of Punjab & Haryana
[1990 (4) SLR
257] was whether the reserved candidates were eligible for
consideration for promotion to the general vacancies? It was
held that they were entitled. The further question was :

whether their placement should be in the roster point
reserved for Scheduled Castes and Backward Classes, or they
are required to be adjusted in the general vacancies
specified in the roster? In Sabharwal's case, the
Constitution Bench upheld that the reserved candidates are
entitled to compete with the general candidates for
promotion to the general post in their own right. On their
selection, they are to be adjusted in the general post as
per the roster and the reserved candidates should be
adjusted in the points ear-marked in the roster to the
reserved candidates. Since a slight deviation to that
principle was required to be considered in other cases, Ajit
Singh case and other cases were delinked. These cases were
dealt with in Ajit Singh's case. Therein the question was as
to the effect of the consideration of inter se claims of
reserved candidates and general candidate to the
post/vacancy available to the general candidates. In that
background, this Court considered in Ajit Singh's case that
since the reserved candidates promoted accordingly to the
principal of reservation earlier to the general candidates
were not considered, the general candidates and reserved
candidates are required to the considered for promotion to
the general vacancies on the basis of erstwhile seniority.
the inter se seniority in the lower cadre is required to be
considered and to that extend the advantage had by the
reserved candidates of earlier promotion was not relevant.
It is also to be noted that the criteria for promotion in
Ajit Singh's case was seniority-cum-merit or merit-cum-
seniority in which event the principle of seniority also
gains relevancy and is one of the factors to be taken into
consideration. It is settled legal position that if the
selection is to be made for promotion on the principle of
merit and ability, the more meritorious, though junior,
steals a march over the less meritorious senior candidate,
be it general or reserved candidate. In this case H.S. Hira
has stolen a march over his senior Dalits. Where merit and
ability are approximately equal, only the seniority in the
lower cadre becomes relevant. When the merit-cum-seniority
or seniority-cum-merit principle is to be applied, as stated
earlier, the seniority being a relevant factor, this Court
in Ajit Singh's case has held that the advantage of prior
promotion to the reserved candidates is not material
circumstance when the general and reserved candidates
together are considered for promotion to a higher
cadre/grade. The ration in Ajit Singh's case should be
understood in the above backdrop and perspective. If so
understood, this Court in Ajit Singh's case has not laid
down any contra principle to the settled legal service
jurisprudence; nor it intended to cut down the effect of the
Rule in vogue for determination of the inter se seniority
in each cadre/grade in accordance with the Rules. Therefore,
it is a simplistic euphoria to think that at all events the
earlier promotions had by the reserved candidates have been
slide down and put back in the vanguard of the erstwhile
seniority position in the feeder cadre/grade. If this
clarity of though is kept in fore-front, there is no
occasion to adopt a mistaken application of the principle to
all facts in all circumstance. In Ajit Singh's case, this
Court did not, therefore, intend to lay down any principle
contra to the settled legal principle that continuous
officiation to a promoted post in accordance with the rules
gives right to seniority. The observation of this Court in
Ajit Singh's case that any other rule of construction would
be arbitrary violating
Article 14
is required to be
understood in that backdrop and context. As stated in A.K.
Gupta's case, it was held that both general and reserved
candidates being citizen of India are entitled to equality
of opportunity assured under
Article 14
and
16(1).

As held
in
Thomas v. State of Kerala
[1976 (1) SCR 906] and approved
in Indra Sawhney's case, the right to equality to the
reserved candidates is a fundamental right under
Article
16(1)
read with
Article 14
which itself guarantees a
fundamental right. After the Constitution (77th Amendment)
Act,
Article 16(4-A)
gives fundamental rights to the Dalits
and Tribes to promotion to a post or a service in the State,
The protective discrimination is a contour to bring about
equality in results to the Dalits and Tribes. It is a facet
of equality under
Article 14
, 15
and
of the Constitution.
Therefore, when competing rights between general and
reserved candidates require adjudication and adjustment with
the right of general candidates, the doctrine of violation
of
Article 14
has no role to play since protective
discrimination itself is a facet of
Article 14
and it does
not again deny equality to the reserved candidates.

Therefore, in Ajit Singh's case when this Court had held
that such a rule of reservation would be violative of

Article 14
and arbitrary, it does not appear to have meant
to destroy the protective discrimination which is a
consistent thread running through all situations when
reservation was applied in favour of the reserved candidates
and the equality in results in achieved. Thus, we hod that
the euphoria had by the general candidates from the ratios
in Vir Pal Chauhan's and Ajit Singh's cases is short lived;
it does not help in so realising the correct implications
arising from the aforesaid ratios. It is settled law that
administrative instructions supplement the law but do not
supplant the law. It fills only yawning gaps. The
administrative instructions issued by the Haryana Government
after Ajit Singh's case flies in the facet of statutory Rule
11 of the rules. Therefore, it crushes itself with the
grinding teeth of the above statutory Rule 11 and the
principle. Thus considered, we hold that the view taken by
the High Court in that behalf is correct in law and is not
vitiated by any infirmity in law. We further hold that the
reserved candidates became senior to the general candidates
in each successive cadre/grade from Assistant to
Superintendent in Class III Service and 5th respondent in
Class I Service. Their seniority is not and cannot have the
effect of getting wiped out after the promotion of general
candidates from their respective dates of promotion. The
general candidates remain junior in higher echelons to the
reserved candidates as was held by the High Court.

That apart, as this Court has repeatedly held, the
delay disentitles the party to the discretionary relief
under
Article 226
or 32 of the Constitution. It is not
necessary to reiterate all catena of precedents in this
behalf. Suffice it to state that the appellant kept sleeping
over their rights for long and elected to wake up when they
had the impetus from Vir Pal Chauhan and Ajit Singh's
ratios. But Vir Pal Chauhan and Sabharwal's cases, kept at
rest the promotion already made by that date, and declared
them as valid; they were limited to the question of future
promotions given by applying the rule of reservation, to all
the persons prior to the dated of judgment in Sabharwal's
case, which required to examined in the light of law laid in

Sabharwal
's case. Thus earlier promotions cannot be
reopened?
Only those cases arising after that date would be
examined in the light of the law
laid down in
Sabharwal's
case Vir Pal Chauhan's case and equally Ajit Singh's case.
If the candidate has already been further promoted to the
higher echelons of service, his seniority is not open to be
reviewed.
In
A.B.S. Karamchari Sangh
's case, Bench of two
Judge to which two of us, K. Ramaswamy and G.B. Pattanik,
JJ. were members, had reiterated the above view and it was
also held that all the prior promotions are not open
judicial review.
In Chander Pal & Ors. v. State of Haryana
[W.P. (C) Nos. 4715-18/93 dated December 4, 1996] a Bench of
two judges consisting of S.C. Agrawal and G.T. Nanavati, JJ.
considered the effect of Vir Pal Chauhan's, Ajit Singh,
Sabharwal and A.B.S Karmachari Sangh's cases and held that
the seniority of those respondents who had already retired
or promoted to higher posts could not be disturbed. The
seniority of the petitioner therein and the respondent who
were holding the post in the same level or in the same cadre
would be adjusted keeping in view the ratio in Vir Pal
Chauhan and Ajit Singh's cases; but promotion, if any, had
been given to any of them during the pendency of this writ
petition, was directed not to be disturbed. Therein, the
candidates appointed on the basis of economic backwardness,
social status or occupation etc. were eligible for
appointment against the post reserved for backward classes
if their income did not exceed Rs. 18,000/- per annum and
they were given accelerated promotion on the basis of
reservation. In that backdrop, the above directions came to
be issued. In fact, it did not touch upon
Article 16(4)
or
16(4-A). Therefore, desperate attempts of the appellants to
re-do the seniority had by them in various cadres/grades
though in the same services according to 1974 Rules or 1980
Rule, are not amenable to judicial review at this belated
stage. The High Court, therefore, has rightly dismissed the
writ petition on the ground of delay as well.

Thus we hold that the decision of the High Court is not
vitiated by any error of application of wrong principle of
law warranting interference.

The appeal is accordingly dismissed but, in the
circumstance, without costs.