Supreme Court of India

Ajit Singh And Ors vs State Of Punjab And Ors on 16 September, 1999

Equivalent citations: AIR 1999 SUPREME COURT 3471, 1999 AIR SCW 3460, 1999 LAB. I. C. 3128, 2000 (1) UPLBEC 195, (2000) 2 KER LT 22, (1999) 7 JT 153 (SC), 1999 (7) JT 153, 1999 (5) SCALE 556, 1999 (7) SCC 209, (1999) 8 SUPREME 211, (1999) 4 LAB LN 652, (1999) 6 KANT LJ 159, (1999) 2 ORISSA LR 401, (1999) 4 SCT 1, (1999) 5 SERVLR 268, (2000) 1 UPLBEC 195, (1999) 5 SCALE 556, (1999) 3 ESC 2053, 1999 SCC (L&S) 1239

Author:
M.Jagannadha Rao

Bench:
K.Venkataswami
,
S.P.Kurdukar
,
M.Jagannadha Rao

CASE NO.:
Appeal (civil) 3792 of 1989

PETITIONER:
AJIT SINGH AND ORS.

RESPONDENT:
STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT: 16/09/1999

BENCH:
A.S.ANAND CJI & K.VENKATASWAMI & G.B.PATTANAIK & S.P.KURDUKAR & M.JAGANNADHA RAO

JUDGMENT:

JUDGMENT

DELIVERED BY:

M.JAGANNADHA RAO, J.

M.JAGANNADHA RAO,J.

We have before us these three Interlocutory
Applications Nos. 1 to 3 filed for "clarification" by the
State of Punjab in Civil Appeal Nos.3792-94 of 1989 (
Ajit
Singh Januja & Others vs. State of Punjab
) [1996 (2) SCC
215] (hereinafter referred to as Ajit Singh in this
judgment). The matter concerns a dispute relating to
of reserved candidates and general candidates.

At the outset we make it clear that in this
judgment we are not concerned with the reservation policy of
the State or with the validity of any procedure fixing
roster points for purpose of promotion of reserved
candidates. We are here dealing only with a limited
question relating mainly to seniority of the reserved
candidates promoted at roster points.

We also make it clear that what we are deciding
today is based on principles already
laid down by
this Court
since 1950 and in particular since 1963.

Basing on those
principles, we are concerned with the limited question as to
whether Union of India vs. Virpal Singh [1993 (
6) SCC 685]
and Ajit Singh Januja vs. State of Punjab
[1996 (2) SCC
215], which were earlier decided in favour of the general
candidates are to be affirmed or whether the latter
deviation made in
Jagdish Lal vs. State of Haryana
[1997
(6) SCC 538] against the general candidates, is to be
accepted. How these IAs 1-3 came to be filed for
clarification:?

The circumstances under which the State of
Punjab has filed these IAs for clarification are as
follows:- Initially, in a case relating to the Indian
Railways, a two Judge Bench of this Court in
Union of India
vs. Virpal Singh
[1995 (6) SCC 685] (hereinafter referred
to as Virpal) held that it was "permissible" for the
Railways to say that reserved candidates who get promotion
at the roster points would not be entitled to claim
seniority at the promotional level as against senior general
candidates who got promoted at a later point of time to the
same level. It was further held that "it would be open" to
the State to provide that as and when the senior general
candidate got promoted under the rules, - whether by way of
a seniority rule or a selection rule - to the level to which
the reserved candidate was promoted earlier, the general
candidate would have to be treated as senior to the reserved
candidate (the roster point promotee) at the promotional
level as well, unless, of course, the reserved candidate got
a further promotion by that time to a higher post. (This is
described for convenience, as the 'catch up' rule) Close on
the heels of Virpal, came Ajit Singh from Punjab, before a
three Judge Bench and the Bench held that the question of
seniority at the promotional level had to be decided by
applying the provisions of
Article 14
and
16 (1)
and if any
order, circular or rule provided that such reserved
candidates who got promotions at roster points were to be
treated as senior to the senior general candidates who were
promoted later, then such an order, circular or rule would
be violative of
Article 14
and
16(1).
It was, however, held
that the position would be different if by the time the
senior general candidate got his promotion under the normal
rules of seniority or selection, the reserved candidate who
was promoted earlier at the roster point, had got a further
promotion. In other words, the `catch up' principle as
laid
down in
Virpal was accepted.

In coming to the above
conclusions, the three Judge Bench relied upon the
principles
laid down by
the nine Judge Bench in
Indira
Sawhney vs. Union of India
[1992 Suppl.

(3) SCC 251] and
by the Constitution Bench in
R.K.Sabharwal vs. State of
Punjab
[1995 (2) SCC 745]. These two cases had laid down
earlier the manner in which the rights of the general
candidates and the reserved candidates ought to be balanced.

In Ajit Singh the Court said the balance must be maintained
in such a manner that there was no reverse discrimination
against the general candidates and that any rule, circular
or order which gave seniority to the reserved candidates
promoted at roster point, would be violative of
Articles 14

and
16(1)
of the Constitution of India. The Indian Railways
following the law
laid down in
Virpal issued a circular on
28.2.97 to the effect that the reserved candidates promoted
at roster points could not claim seniority over the senior
general candidates promoted later. The State of Punjab
after following Ajit Singh was proceeding to revise
seniority lists and make further promotions of the senior
general candidates who had reached the level to which the
reserved candidates had reached earlier.

At that point of
time, another three Judge Bench came to decide a case from
the State of Haryana in
Jagdish Lal vs. State of Haryana

[1997 (6) SCC 538] and took a view contrary to Virpal and
Ajit Singh. It held that the general rule in the Service
Rules relating to seniority from the date of continuous
officiation which was applicable to candidates promoted
under the normal seniority/selection procedure would be
attracted even to the roster point promotees as otherwise
there would be discrimination against the reserved
candidates.

The Bench also observed that the right to
promotion was a statutory right while the rights of the
reserved candidates under
Article 16(4)
and
Article 16(4A)

were fundamental rights and in that behalf, it followed

Ashok Kumar Gupta vs. State of U.P.
[1997 (5) SCC 201]
where a similar principle had been laid down. The
Contentions in brief: Sri Hardev Singh, learned senior
counsel for the State of Punjab submitted that since Jagdish
Lal decided something contrary to Virpal and Ajit Singh the
State was in a `quandary what to do. In these IAs and the
connected batch of cases which have been listed together and
heard, contentions have been raised by Sri Rajeev Dhawan for
the State of Haryana and Sri Altaf Ahmad, Additional
Solicitor General of India for the State of Rajasthan and
the Union of India. According to the learned counsel the
'roster point promotees', ( i.e. a reserved candidate at
Level 1 who is promoted to Level 2 at the roster point meant
for such promotion) namely, the reserved candidates cannot
claim seniority on the basis of continuous officiation.
However, learned Additional Solicitor General, Sri C.S.
Vaidyanathan for the Indian Railways has taken a contrary
stand-, in spite of the fact that Railways has already
accepted Virpal and issued a circular on 28.2.1997 -that
roster point promotions in the Railways did not confer
seniority. Senior counsel Sri Harish Salve and others for
the general candidates contended that Virpal and Ajit Singh
were correctly decided and Jagdish Lal was wrongly decided.
Senior counsel Sri K. Parasaran, Sri D.D. Thakur, Sri M.N.
Rao, and others including Sri Jose P. Verghese for the
reserved candidates relied upon Jagdish Lal and they
contended that Virpal and Ajit Singh were wrongly decided.
The validity of the 'catch-up' rule accepted in Virpal and
Ajit Singh in favour of general candidates was also put in
issue. One additional point was also argued. This related
to the "prospectivity" of R.K.Sabharwal and Ajit Singh. In
R.K.Sabharwal this Court has held that once the roster point
promotions were all made in respect of the reserved
candidates, the roster ceased to operate. Unless any of the
reserved candidates already promoted had retired or been
further promoted etc. and unless there was a vacancy
generated at the points already filled, fresh candidates
from the reserved candidates could not be promoted by
further operation of the roster. Having so held, the Court
said that the judgment would be "prospective". The reserved
candidates now contend that the above direction means that
not only the reserved candidates so promoted in excess of
the roster points could not be reverted but that their
seniority against such excess promotions was also protected
vide Sabharwal.

Likewise, in regard to Ajit Singh, the contention
was as follows: Assume there are rosters at Level 1 and
again at Level 2. Assume that a reserved candidate has been
promoted from Level 1 to Level 2 on the basis of the roster
point and again from Level 2 to Level 3 on roster point. A
senior general candidate at Level 1 has later reached Level
3 and by that date the reserved candidate is still at Level

3. Assume that the plea of the general candidates that the
general candidate became senior at Level 3 to the earlier
promoted reserved candidate, is correct. Ignoring the
senior general candidate at Level 3, the reserved candidate
has been further promoted to Level 4 before 1.3.96 when Ajit
Singh was decided. In that event, the prospective operation
of Ajit Singh means, according to the reserved candidates,
that such a reserved candidate is not only not to be
reverted but his seniority at Level 4 is also to be
protected. The general candidates say that after Ajit Singh
was decided on 1.3.96 the said promotion made to Level 4,
ignoring the case of the senior general candidate at Level
3, is to be reviewed and seniority at Level 3 is to be
refixed. At Level 4, - when the general candidate is also
promoted to Level 4, the seniority of the reserved candidate
has also to be fixed on the basis as to when he would have
otherwise been promoted to Level 4, after considering the
case of his senior general candidate at Level 3. We shall
be dealing with these main contentions in this judgment. So
far as the individual points raised in the Civil Appeals,
Contempt Cases and other IAs are concerned, we shall deal
with them by separate judgments for convenience.

On the above contentions, the following four main
points arise for consideration: Points:

..........L.....T.......T.......T.......T.......T.......T..J
(1) Can the roster point promotees ( reserved
category) count their seniority in the promoted
category from the date of their continuous
officiation vis-a-vis general candidates who were
senior to them in the lower category and who were
later promoted to the same level? (2) Have
Virpal, Ajit Singh been correctly decided and has
Jagdish Lal been correctly decided? (3) Whether
the 'catch-up' principles contended for by the
general candidates are tenable? (4) What is the
meaning of the 'prospective' operation of
Sabbarwal and to what extent can Ajit Singh be
prospective? .lm10 Points (1) and (2): A word
with regard to
Article 16(4)
&
Article 16 (4A):

Learned senior counsel for the general candidates
submitted at the outset that while Indira Sawhney
permitted reservations for a period of five years,
the Constitution was amended within the said
period and
Article 16(4A)
was incorporated
permitting reservation in promotions but
restricting the same to Scheduled Castes and
Scheduled Tribes. Learned counsel submitted that
it was their contention that this amendment was
not constitutionally permissible but this question
need not be decided in this batch as separate writ
petitions challenging the validity of
Article
16(4A)
are pending in this Court. In view of the
above stand, we shall proceed in these cases on
the assumption that
Article 16(4A)
is valid and is
not unconstitutional. At the same time, we also
note the contention of the reserved candidates
that
Article 16(4A)
must be deemed to be
constitutional unless otherwise declared. .pa

Article 16(1)
, 16(4)
and
16(4A):
In the context
of the first and second questions, it is necessary
to refer to the relevant parts of
Article 16
of
the Constitution of India. Sub-clauses (1), (4)
and (4A) of
Article 16
which have relevance in
this case read as follows: "
Article 16(1)-

Equality of appointment in matters of public
employment:- There shall be equality of
opportunity for all citizens in matters relating
to employment or appointment to any office under
the State.

(2)......................................

(3)......................................

(4) Nothing in this Article shall prevent the
State from making any provision for the
reservation of appointment 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.

(4A) Nothing in this Article shall prevent the
State from making any provision for reservation in
matters of promotion of any class or classes of
posts in the services under the State in favour of
Scheduled Castes and the Scheduled Tribes which,
in the opinion of the State are not adequately
represented in the services under the State."

I.......T.......T.......T.......T.......T.......T.......T..J
Constitution is not static: We shall at the
outset deal with the contention raised by Sri
D.D.Thakur, learned senior counsel appearing for
the reserved candidates that
Article 16(4)
must be
interpreted keeping in mind the conditions
prevailing fifty years ago when the Constitution
was drafted and when
Article 16(4)
was
incorporated in the Constitution. Learned counsel
submitted that the founding fathers were conscious
that a special provision for reservation was
necessary to see that the backward classes of
citizens were adequately represented in the
services. Hence an interpretation which would
advance the said objective must be applied.
Reliance was also placed on the Statement of
Objects and Reasons in connection with the
incorporation of
Article 16(4A).
In fact, all the
learned counsel appearing for the reserved
candidates contended that the said officers could
not be treated as equals to the general candidates
and that their backwardness and past social
oppression must be borne in mind. Nobody can deny
that the above approach is the proper one while
dealing with the reserved classes. The primary
purpose of
Article 16(4)
and
Article 16(4A)
is due
representation of certain classes in certain
posts. However, we must bear in mind and not
ignore that there are other provisions, namely,

Articles 14
, 16(1)
and
Article 335
of the
Constitution which are also very important. The
Constitution has
laid down in

Articles 14
and

16(1)
the permissible limits of affirmative action
by way of reservation under
Articles 16(4)
and

16(4A).
While permitting reservations at the same
time, it has also placed certain limitations by
way of
Articles 14
and
16(1)
so that there is no
reverse discrimination. It has also incorporated

Article 335
so that the efficiency of
administration is not jeopardized. While
interpreting provisions of the Constitution and in
particular fundamental rights of citizens, it is
well to bear in mind certain fundamental concepts.
In McCulloch Vs. Maryland ( 1819) 4 Wheel (17
U.S.316), Chief Justice Marshall cautioned that we
must keep in mind that it is the Constitution that
we are expounding. He said that the Constitution
was intended to endure for ages to come and had
consequently to be adapted to the various crises
of human affairs from time to time. Brandeis J
wrote : "Our Constitution is not a straight
jacket. It is a living organism. As such it is
capable of growth, of expansion and of adaptation
to new conditions. Growth implies changes,
political, economic and social. Growth which is
significant manifests itself rather in
intellectual and moral conceptions of material
things" (Brandeis Papers, Harvard Law School).
Similarly, in a beautiful metaphor Mr. J.M. Beck
said as follows:

"The Constitution is neither, on the one hand, a
Gibraltor Rock, which wholly resists the ceaseless
washing of time and circumstances, nor is it, on
the other hand, a sandy beach, which is slowly
destroyed by erosion of the waves. It is rather
to be likened to a floating dock which, while
firmly attached to its moorings, and not therefore
at the caprice of the waves, yet rises and falls
with the tide of time and circumstances"

(Constitution of the United States, Yesterday,
Today and Tomorrow' ( 1924) (Oxford University
Press)."

L.........I.....T.......T.......T.......T.......T.......T..J
Such should be and would be our approach in
resolving the important constitutional issues arising in
these IAs and in this batch of cases.

We shall first deal with the fundamental rights
under
Articles 14
and
16(1)
and then with the nature of the
rights of the reserved candidates under
Articles 16(4)
and

16(4A).

Articles 14
and
16(1):
Is right to be considered
for promotion a fundamental right?

Article 14
and
Article 16(1)
are closely
connected. They deal with individual rights of the person.

Article 14
demands that the "State shall not deny to any
person equality before the law or the equal protection of
the laws".
Article 16(1)
issues a positive command that
"there shall be equality of opportunity for all citizens in
the matters relating to employment or appointment to any
office under the State". It has been held repeatedly by
this Court that sub-clause (1) of
Article 16
is a facet of

Article 14
and that it takes its roots from
Article 14.
The
said sub- clause particularizes the generality in
Article 14

and identifies, in a constitutional sense "equality
opportunity" in matters of employment and appointment to any
office under the State. The word 'employment' being wider,
there is no dispute that it takes within its fold, the
aspect of promotions to posts above the stage of initial
level of recruitment.
Article 16(1)
provides to every
employee otherwise eligible for promotion or who comes
within the zone of consideration, a fundamental right to be
"considered" for promotion. Equal opportunity here means
the right to be "considered" for promotion. If a person
satisfies the eligibility and zone criteria but is not
considered for promotion, then there will be a clear
infraction of his fundamental right to be "considered" for
promotion, which is his personal right. "Promotion" based
on equal opportunity and 'seniority' attached to such
promotion are facets of fundamental right under
Article
16(1):
Where promotional avenues are available, seniority
becomes closely interlinked with promotion provided such a
promotion is made after complying with the principle of
equal opportunity stated in
Article 16(1).
For example, if
the promotion is by rule of `seniority-cum- suitability',
the eligible seniors at the basic level as per seniority
fixed at that level and who are within the zone of
consideration must be first considered for promotion and be
promoted if found suitable. In the promoted category they
would have to count their seniority from the date of such
promotion because they get promotion through a process of
equal opportunity. Similarly, if the promotion from the
basic level is by selection or merit or any rule involving
consideration of merit, the senior who is eligible at the
basic level has to be considered and if found meritorious in
comparison with others, he will have to be promoted first.
If he is not found so meritorious, the next in order of
seniority is to be considered and if found eligible and more
meritorious than the first person in the seniority list, he
should be promoted. In either case, the person who is first
promoted will normally count his seniority from the date of
such promotion.
(There are minor modifications in various
services in the matter of counting of seniority of such
promotees but in all cases the senior most person at the
basic level is to be considered first and then the others in
the line of seniority). That is how right to be considered
for promotion and the `seniority' attached to such promotion
become important facets of the fundamental right guaranteed
in
Article 16(1).
Right to be considered for promotion is
not a mere statutory right: The question is as to whether
the right to be considered for promotion is a mere statutory
right or a fundamental right. Learned senior counsel for
the general candidates submitted that in
Ashok Kumar Gupta
Vs. State of U.P.
(1997 (5) SCC 201), it has been laid
down that the right to promotion is only a "statutory right"

while the rights covered by
Articles 16(4)
and
16(4A)
are
"fundamental rights". Such a view has also been expressed
in Jagdish Lal and some other latter cases where these cases
have been followed. Counsel submitted that this was not the
correct constitutional position. In this connection our
attention has been invited to para 43 of Ashok Kumar Gupta.
It reads as follows:-

"It would thus be clear that right to promotion is
a statutory right. It is not a fundamental right. The
right to promotion to a post or class of posts depends upon
the operation of the conditions of service.
Article 16(4)

read with
Articles 16(1)
and
guarantees a right to
promotion to Dalits and Tribes as a fundamental right where
they do not have adequate representation consistently with
the efficiency of administration... before expiry thereof
(i.e. 5 years rule),
Article 16(4)
has come into force from
17.6.1995. Therefore, the right to promotion continues as a
constitutionally guaranteed fundamental right." A similar
view was expressed in Jagdishlal and followed in some latter
cases. In the above passage, it was laid down that
promotion was a statutory right and that
Articles 16(4)
and

16(4A)
conferred fundamental rights. In our opinion, the
above view expressed in Ashok Kumar Gupta, and followed in
Jagdish Lal and other cases, if it is intended to lay down
that the right guaranteed to employees for being
"considered" for promotion according to relevant rules of
recruitment by promotion(i.e. whether on basis of seniority
or merit) is only a statutory right and not a fundamental
right, we cannot accept the proposition. We have already
stated earlier that the right to equal opportunity in the
matter of promotion in the sense of a right to be
"considered" for promotion is indeed a fundamental right
guaranteed under
Article 16(1)
and this has never been
doubted in any other case before Ashok Kumar Gupta, right
from 1950.
Articles 16(4)
and
16(4A)
do not confer any
fundamental right to reservation: We next come to the
question whether
Article 16(4)
and
Article 16(4A)
guaranteed
any fundamental right to reservation. It should be noted
that both these Articles open with a non-obstante clause -
"Nothing in this Article shall prevent the State from making
any provision for reservation.....".
There is a marked
difference in the language employed in
Article 16(1)
on the
one hand and
Article 16(4)
and
Article 16(4A).
There is no
directive or command in
Article 16(4)
or
Article 16(4A)
as
in
Article 16(1).
On the face of it, the above language in
each of
Articles 16(4)
and
16(4A)
, is in the nature of an
enabling provision and it has been so held in judgments
rendered by Constitution Benches and in other cases right
from 1963. We may in this connection point out that the
attention of the learned Judges who decided Ashok Kumar
Gupta and Jagdish Lal was not obviously drawn to a direct
case decided by a Constitution Bench in
C.A.Rajendran vs.
Union of India
1968 (1) SCC 721 which arose under
Article
16(4).
It was clearly
laid down by
the five Judge Bench
that
Article 16(4)
was only an enabling provision, that

Article 16(4)
was not a fundamental right and that it did
not impose any constitutional duty. It only conferred a
discretion on the State. The passage
in
the above case

reads as follows:

"Our conclusion therefore is that
Article 16(4)

does not confer any right on the petitioner and there is no
constitutional duty imposed on the government to make
reservation for Scheduled Castes and Scheduled Tribes,
either at the initial stage or at the stage of promotion.
In other words,
Article 16(4)
is an enabling provision and
confers discretionary power on the State to make a
reservation of appointment in favour of backward class of
citizens which, in its opinion, is not adequately
represented in the services of the State."

The above principle was reiterated in two three
Judge Bench judgments in
P&T SC/ST Employees' Welfare
Association vs. Union of India
1988 (4) SCC 147; and in
SBI SC/ST Employees Welfare Association vs. State Bank of
India 1996 (4) SCC 119.

In fact, as long back as in 1963,
in
M.R.Balaji vs. State of Mysore
1963 Suppl. (1) SCR 439
(at p.474) which was decided by Five learned Judges, the
Court said the same thing in connection with
Articles 15(4)

and
Article 16(4).
Stating that
Article 15(4)
and
16(4)

were only enabling provisions, Gajendragadkar, J. ( as he
then was ) observed:

"In this connection, it is necessary to emphasise
that
Article 15(4)
like
Article 16(4)
is an enabling
provision, it does not impose an obligation, but merely
leaves it to the discretion of the appropriate government to
take suitable action, if necessary."

Unfortunately, all these rulings of larger Benches
were not brought to the notice of the Bench which decided
Ashok Kumar Gupta and Jagdish Lal and to the Benches which
followed these two cases. In view of the overwhelming
authority right from 1963, we hold that both
Articles 16(4)

and
16(4A)
do not confer any fundamental rights nor do they
impose any constitutional duties but are only in the nature
of enabling provision vesting a discretion in the State to
consider providing reservation if the circumstances
mentioned in those Articles so warranted. We accordingly
hold that on this aspect Ashok Kumar Gupta, Jagdishlal and
the cases which followed these cases do not lay down the law
correctly. Power is coupled with duty: Learned senior
counsel for the reserved candidates, Sri K.Parasaran however
contended that
Article 16(4)
and
Article 16(4A)
confer a
power coupled with a duty and that it would be permissible
to enforce such a duty by issuing a writ of mandamus.
Reliance for that purpose was placed upon
Comptroller and
Auditor General of India, Gian Prakash vs. K.S.Jagannathan

[1986 (2) SCC 679] and also on Julius vs. Lord Bishop
(1880) 5 AC 214 which case was followed by this Court in

Commissioner of Police vs. Gordhandas Bhanji
[1952 SCR
135]. We are unable to agree with the above contention.

As
pointed out earlier, the Constitution Bench of this Court in

C.A. Rajendran Vs. Union of India
(1968(1) SCR 721) held
that
Article 16(4)
conferred a discretion and did not create
any constitutional duty or obligation. In fact
,
in that
case
, a mandamus was sought to direct the Government of
India to provide for reservation under
Article 16(4)
in
certain Class I and Class II services. The Government
stated that in the context of
Article 335
and in the
interests of efficiency of administration at those levels,
it was of the view that there should be no reservation. The
said opinion of the Government was accepted by this Court as
reasonable and mandamus was refused. Even in M.R. Balaji's
case, the Constitution Bench declared that
Article 16(4)

conferred only a discretion.

It is true that in

Jagannathan
's case, the three Judge Bench issued a mandamus,
after referring to
Article 142
, that the Government must add
25 marks to SC/ST candidates who had taken the S.A.S.
Examination for promotion as Sections Officers and also
that, in future, a reduced minimum marks must be provided
and announced before the examination. The Court also
observed that the Department had not passed orders as per a
general O.M. of the Government dated 21.9.1977.

But the
attention of the Court was not drawn to the judgment of the
Constitution Bench in
C.A. Rajendran
's case and other cases
to which we have referred earlier. Further, if the State is
of the opinion that in the interests of efficiency of
administration, reservation or relaxation in marks is not
appropriate, then it will not be permissible for the Court
to issue a mandamus to provide for reservation or
relaxation.

We also note that in
Superintending Engineer,
Public Health Vs. Kuldeep Singh
(
1997(9) SCC 199),
Jagannathan
's case was followed and reference was made to

Article 16(4)
and
Article 16(4A)
and to the principle that
where a power is coupled with a duty as in Julius Vs. Lord
Bishop and
Commissioner of Police Vs. Gordhandas Bhanji
,
the same could be enforced by the Court.

But we may point
out that even in
Kuldeep Singh
's case, no reference was made
to C.A. Rajendran and other cases. We, accordingly, hold
that the view in Jagannathan and Kuldeep Singh's cases that
a mandamus can be issued either to provide for reservation
or for relaxation is not correct and runs counter to
judgments of earlier Constitution Benches and, therefore,
these two judgments cannot be said to be laying down the
correct law.

Balancing of fundamental rights under
Article
16(1)
and the rights of reserved candidates under
Articles
16(4)
and
16(4A):

Having noticed that
Article 16(1)
deals with a
fundamental right and
Article 16(4)
and
Article 16(4A)
are
enabling provisions, we next come to the need for balancing

Article 16(1)
and
Articles 16(4)
and
16(4A).
Such a
balancing principle was enunciated by the Constitution Bench
in 1963 in
M.R. Balaji Vs. State of Mysore
: 1963 Suppl.

(1) SCR 439 wherein it was stated that the interests of the
reserved classes must be balanced against the interests of
other segments of society.
In
Indira Sawhney
's case, Jeevan
Reddy, J. explained how the fundamental right of the
citizens as declared in
Article 16(1)
has to be balanced
against the claims of the reserved candidates in
Article
16(4).
The learned Judge stated: (See page 734 para 808):

"It needs no emphasis to say that the principal
aim of
Articles 14
and
is equality and equality of
opportunity and that clause (4) of
Article 16
is a means of
achieving the very same objective. Clause (4) is a special
provision - though not an exception to clause (1). Both the
provisions have to be harmonised keeping in mind the fact
that both are restatements of the principles of equality
enshrined in
Article 14.
The provision under
Article 16(4)

- conceived in the interests of certain sections of society

- should be balanced against the guarantee of equality
enshrined in clause (1) of
Article 16
which is a guarantee
held out to every citizen and to the entire society". The
same principle was reiterated in the judgment of the
Constitution Bench in
Post Graduate Institute of Medical
Education and Research vs. Faculty Association
1998 (4) SCC
1 after referring to several earlier cases. It was stated :

(P.22) " The doctrine of equality of opportunity in clause
(1) of
Article 16
is to be reconciled in favour of backward
classes under clause (4) of
Article 16
in such a manner that
the latter while serving the cause of backward classes shall
not unreasonably encroach upon the field of equality".

In Ajit Singh, in the context of seniority for the
roster point promotees it was observed : (p.733 of SCC)

"For attracting meritorious and talented persons
into service, 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...."

The above approach in Balaji in 1963, Indira
Sawhney in 1991 later in Ajit Singh in 1996 and in PGI Case
in 1998 for striking a balance between the individuals
rights under Articles 14 and 16(1) on the one hand and
affirmative action under Articles 16(4) & 16(4A) on the
other, appears to us to be on the same lines as the approach
of the U.S. Supreme Court under the Equal Protection Clause
in Richmond Vs. Croson and Co. (1989) 488 U.S. 469 ( at

493). In that case, it was stated that while dealing with
the affirmative action taken in favour of African-Americans,
the Equal Protection Clause which conferred individual
rights have to be kept in mind by the Courts. Justice
Sandra Day O'Connor observed:

"The Equal Protection Clause of the Fourteenth
Amendment provides that "No State shall ....deny to any
person within its jurisdiction the equal protection of the
laws" (emphasis added). As this Court has noted in the
past, the "rights created by the first section of the
Fourteenth Amendment are, by its terms, guaranteed to the
individuals. The rights established are personal rights"

(Shelly Vs. Kraemer) 334 U.S.(1948) "

The same learned Judge, Justice Sandra Day
O'Connor, stated again recently in Adarand Constructors Inc
Vs. Pena ( 1995) 515 U.S.200, that in such matters relating
to affirmative action, the Court would launch an inquiry to
ensure that the

"personal right to equal protection of the laws
has not been infringed."

Thus this Court has to ensure that, in matters
relating to affirmative action by the State, the rights
under
Articles 14
and
of the individual to equality of
opportunity, are not affected. A reasonable balance has to
be struck so that the affirmative action does not lead to
reverse discrimination. We shall here refer to the speech
of Dr. Ambedkar in the Constituent Assembly:

"Supposing, for instance, we were to concede in
full the demands of these communities who have not been so
far employed in the public services to the fullest extent,
what would really happen is, we shall be completely
destroying the first proposition upon which we are all
agreed, that there shall be equality in opportunity".

Krishna Iyer,J. also cautioned in
Akhil Bharatiya
Soshit Karamchari Sangh (Railway) Vs. Union of India
( 1981
(1) SCC 246 ( at P.286) that "care must be taken to see that
classification is not pushed to such an extreme point as to
make the fundamental right to equality cave in and
collapse".

The learned Judge relied upon
Triloki Nath
Khosla Vs. State of Jammu and Kashmir
(
1974 (1) SCC 19)
and State of Kerala Vs. Thomas
( 1976 (2) SCC 310).

Krishna Iyer, J. stated in
Soshit Karamchari
Case, (para

102) that reservations cannot lead to an `overkill'. At
page 301, His Lordship said: "The remedy of 'reservations'
to correct inherited imbalances must not be an overkill".

In other words, affirmative action stops where
reverse discrimination begins. (i) Efficiency of
administration and
Article 335:
It is necessary to see that
the rule of adequate representation in
Article 16(4)
for the
Backward Classes and the rule of adequate representation in
promotion for Scheduled Castes and Scheduled Tribes under

Article 16(4A)
do not adversely affect the efficiency in
administration. In fact,
Article 335
takes care to make
this an express constitutional limitation upon the
discretion vested in the State while making provision for
adequate representation for the Scheduled Castes/Tribes.
Thus, in the matter of due representation in service for
Backward Classes and Schedule Castes and Tribes, maintenance
of efficiency of administration is of paramount importance.
As pointed in Indira Sawhney, the provisions of the
Constitution must be interpreted in such a manner that a
sense of competition is cultivated among all service
personnel, including the reserved categories. (ii)
Reservation and effect of the Roster Point reservation: It
must be noted that whenever a reserved candidate goes for
recruitment at the initial level (say Level 1), he is not
going through the normal process of selection which is
applied to a general candidate but gets appointment to a
post reserved for his group. That is what is meant by
`reservation'. That is the effect of `reservation'. Now in
a case where the reserved candidate has not opted to contest
on his merit but has opted for the reserved post, if a
roster is set at Level 1 for promotion of the reserved
candidate at various roster points to level 2, the reserved
candidate if he is otherwise at the end of the merit list,
goes to Level 2 without competing with general candidates
and he goes up by a large number of places. In a roster
with 100 places, if the roster points are 8, 16, 24 etc.
at
each of these points the reserved candidate if he is at the
end of the merit list, gets promotion to Level 2 by
side-stepping several general candidates. That is the
effect of the roster point promotion. It deserves to be
noticed that the roster points fixed at Level 1 are not
intended to determine any seniority at Level 1 between
general candidates and the reserved candidates. This aspect
we shall consider again when we come to
Mervyn Continho vs.
Collector of Customs
[1966 (3) SCR 600] lower down. The
roster point merely becomes operative whenever a vacancy
reserved at Level 2 becomes available. Once such vacancies
are all filled, the roster has worked itself out.
Thereafter other reserved candidates can be promoted only
when a vacancy at the reserved points already filled arises.

That was what was decided in
R.K.Sabharwal vs. State of
Punjab
. (iii) Seniority of roster promotees: Question is
whether roster point promotions from Level 1 to Level 2 to
reserved candidates will also give seniority at Level 2?
This is the crucial question. We shall here refer to two
lines of argument on behalf of the reserved candidates.

Ajit Singh was an appeal from the judgment of the Full Bench
of the Punjab & Haryana High Court in
Jaswant Singh Vs.
Secretary to Govt. Punjab Education Department
, 1989 (4)
S.L.R. 257. In that case, reliance was placed by the
reserved candidates on a general Circular dated 19.7.69
issued by the Punjab Government which stated that the roster
point promotions would also confer seniority. In fact,
while dismissing the Writ petitions filed by the general
candidates the High Court declared that the State was
obliged to count seniority of the reserved candidates from
the date of their promotion as per the Circular dated
19.7.69. The judgment of the Full Bench was reversed by
this Court in Ajit Singh in the appeal filed by the general
candidates. That resulted in the setting aside of the above
declaration regarding seniority of roster point promotees as
stated in the Punjab circular dated 19.7.69.. But before
us, reliance was placed by the reserved candidates as was
done in Jagdish Lal, upon the general seniority Rule
contained in various Punjab Service Rules applicable in the
Civil Secretariat, Education, Financial Commissioner, etc.
Departments which Rules generally deal with method of
recruitment, probation, seniority and other service
conditions. All these Rules provide a single scheme for
recruitment by promotion on the basis of seniority-
cum-merit and then for seniority to be determined in the
promotional post from the date of "continuous officiation",
whenever the promotion is as per the method prescribed in
those Rules. It is on this seniority rule relating to
`continuous officiation' at the promotional level that
reliance was placed before us by the reserved candidates, as
was done in Jagdish Lal. Question is whether roster points
promotees can rely on such a seniority rule?

In this context it is necessary to remember two
fundamental concepts.

(a) Statutory Rules relating to promotion and
seniority:

We shall take up the rules in one of these
Services in Punjab - namely the rules concerning Ajit Singh
in which the present IAs have been filed.

There are three sets of Rules for Class I, II and
III Services. The Punjab Secretariat Class III Service
Rules, 1976 deal with the posts of clerk(Level 1),
Assistant(Level 2) and Superintendent(Grade II)(Level 3).
At each of these two levels 1 and 2, there is a roster which
implements reservation. The reservation is by way of the
circular dated 19.7.1969 in Punjab. For promotion from
level 1 to 2 and from Level 2 to Level 3, the employees are
respectively governed by Rule 7 for promotion and by Rule 9
for seniority. It is provided in proviso(iii) to Rule 7(1)
that all promotions shall be made by selection on the basis
of seniority-cum-merit and no person shall have a right of
promotion on the basis of seniority alone. Rule 9 speaks of
seniority from the date of continuous officiation.

The Civil Secretariat Service, Class-II Service
rules, 1963 deal with Superintendents(Grade I) i.e. Level 4
and Rule 8(2) states that promotion to the above posts in
Class II is by the method of seniority-cum-merit and Rule 10
states that seniority is to be counted from date of
continuous officiation. Above Class II is class I which
consists of posts of Under Secretary(Level 5) and Deputy
Secretary(Level 6). Rule 6(3) of the Punjab Civil
Secretariat (Class I) Rules, 1974 refers to promotion by
seniority-cum-merit while Rule 8 thereof speaks of seniority
by continuous officiation. For promotion to Class II and
Class I, there is no roster promotion i.e. no reservation.
There is reservation only in Class III posts by way of
roster at two stages.

It is clear, therefore, that the seniority rule
relating to `continuous officiation' in promotion is part of
the general scheme of recruitment -by direct recruitment,
promotion, etc.- in each of the Services in Class I, II and
III - and is based upon a principle of equal opportunity for
promotion. In our opinion, it is only to such promotions
that the seniority rule of `continuous officiation' is
attracted.

(b) Statutory rule of seniority cannot be delinked
and applied to roster-point promotions:

As stated above in Ajit Singh, the promotion rule
in Rule 7(1) proviso (iii) and the seniority Rule in Rule 9
under the 1976 Rules for Class III form a single scheme and
are interlinked. In other words, only in case the officers
have reached the level of Superintendents Grade II(Level 3)
in the manner mentioned in the Rule 7(1) proviso (iii) by
competition between the Assistants (Level 2) and on
consideration of their cases on the basis of
seniority-cum-merit, can the seniority Rule in Rule 9
relating to continuous officiation in the post of
Superintendent Grade II (Level 3) be applied. Here there is
a roster in Ajit Singh for promotion from Level 1 to Level 2
and from Level 2 to Level 3. The consequence is that in the
case of roster point promotees, the said candidates who get
promoted as Superintendents Grade II (Level 3) as per the
roster, - having not been promoted as per Rule 7(1) proviso

(iii) of the 1976 Rules i.e. upon consideration with their
cases on the basis of seniority-cum-merit at the Assistant
level (Level 2), -they cannot rely upon Rule 9 of the 1976
Rules dealing with seniority from the date of "continuous
officiation" as Superintendents Grade II(Level 3). It is
not permissible to delink the seniority Rule from the
recruitment Rule based on equal opportunity and apply it to
promotions made on the basis of the roster which promotions
are made out side the equal opportunity principle. The
proper balancing of rights: In the light of the above
discussion, the proper balancing of the rights, in our view,
will be as follows.

The general candidates who are senior at
Assistants' level(Level 2) and who have reached
Superintendent Grade-II(Level 3) before the reserved
candidate moved to Level 4(Supdt. Grade- I), will have to
be treated as senior at the level 3 also(Supdt. Grade-II)
and it is on that basis that promotion to the post of Level
4 must be made, upon first considering the cases of the
senior general candidates at Level 3. If the cases of the
senior general candidates who have reached Level 3 though at
a latter point of time, are not first considered for
promotion to Level 4, and if the roster point promotee at
Level 3 is treated senior and promoted to level 4, there
will be violation of
Article 14
and
16(1)
of the
Constitution of India. Such a promotion and the seniority
at Level 4 has to be reviewed after the decision of Ajit
Singh. But if reserved category candidate is otherwise
eligible and posts are available for promotion to Level 4,
they cannot be denied right to be considered for promotion
to Level 4, merely because erstwhile seniors at the entry
levels have not reached Level 3. What we have stated above
accords, in fact, with what was actually stated in Ajit
Singh ( 1996(2) SCC 715). In that case, N.P. Singh, J
observed ( P. 731):

"It also cannot be overlooked that for the first
promotion from the basic grade, there was no occasion to
examine their merit and suitability for promotion".

That, in our view, is the correct approach for
balancing the fundamental rights under
Article 14
and

Article 16(1)
on the one hand and the provisions relating to
reservation in
Article 16(4)
and
Article 16(4A).

Was Jagdish Lal correctly decided:

Learned senior counsel for the reserved candidates
however relied upon Jagdish Lal to contend that the roster
promotees can count seniority in the promoted post from the
date of continuous officiation as against senior general
candidates promoted later. On the other hand, the learned
senior counsel for the general candidates contended that
the
said decision
does not lay down the law correctly. We
shall, therefore, have to refer to Jagdishlal. We were
initially of the view that it may not be necessary to go
into the correctness of Jagdish Lal, and that we could
distinguish the same on the ground that all the reserved
candidates there had got further promotions from the
promotional level of Dy.Superintendents* before the general
candidates reached that Level. But from the table set out
in Jagdishlal, it would be noticed that
in that case
,
Jagdishlal, the general candidate, reached the post of
Deputy Superintendent on 27.10.87 before the reserved
candidate H.S. Hira was further promoted as Superintendent
on 27.5.88. Similarly, Ram Dayal, another general candidate
got promoted as Deputy Superintendent
_____________________________________________________________
* In Jagdishlal, the hierarchy of posts is Clerk, Assistant,
Deputy Superintendent, Superintendent, etc.
____________________________________________________________
on 16.1.89 before the reserved candidates Sant Lal and Ajmer
Singh got promoted as Superintendent on 8.2.90 and 1.7.90.
In that view of the matter, it becomes necessary to go into
the correctness of Jagdish Lal on merits. As we would
presently show, in Jagdishlal, the seniority rule which
referred to continuous officiation and which applied to
promotions made after providing equal opportunity as per
rules - was delinked from the promotion rule and applied to
roster promotees, which, in our view, was the main reason
for arriving at a different result. Jagdish Lal arose from
Haryana. The Haryana Education Directorate (State Service
Class III) Rule 1974 provided for recruitment to the posts
of clerk (Level 1), Assistant (Level 2) and Deputy
Superintendent(Level 3). Rule 9(3) stated that all
promotions would have to be made by selection based on merit
and taking into consideration seniority but seniority alone
would not give any right to such promotions. Rule 11
provided that seniority would be counted from the date of
"continuous officiation". The Court held in Jagdishlal that
the roster promotees who were promoted to Level 3 could
count their seniority from the date of continuous
officiation in that level in view of Rule 11. From Level 1
to Level 2 and from Level 2 to Level 3, the rosters
operated. From the level beyond Level 3, the posts were
Superintendent, Budget Officer, Assistant Registrar and
Registrar and were governed by the Haryana Education
Department (State Service, Group B) Rule, 1980, and there
was no reservation. In those Rules also, Rule 9(3) stated
that all promotions would have to be made by selection based
on merit and taking into consideration seniority but
seniority alone was not to give any right to such promotion.
Rule 11 of the 1980 Rules also stated that seniority would
count from the dates of continuous officiation. Thus, in
the Class III as well as Class II(Group B) Services, the
"continuous officiation" rule was interlinked with the
promotion rule based on equal opportunity, as in Ajit Singh,
and formed a single scheme. The Court in Jagdish Lal
delinked Rule 11 from the recruitment rules and applied the
same to the roster promotees. For the reasons given already
in regard to Ajit Singh, we hold that Jagdishlal arrived at
an incorrect conclusion because of applying a rule of
continuous officiation which was not intended to apply to
the reserved candidates promoted at roster points.

The various rulings relied upon in Jagdishlal do
not, in our opinion, support the conclusions arrived at
in
that case
. Some of these rulings were those where it was
held that mere empanelment in a seniority list would not
confer a right to promotion. Some other cases relied upon
were cases where it was held that mere chances of promotions
were not `conditions of service' which were protected. So
far as the cases which held that mere inclusion of a name in
a panel did not create any right to promotion, there could
be no quarrel with the said proposition.

So far as the
cases like
State of Maharashtra vs. Chandrakant Kulkarni

1981 (
4) SCC 130, Mohd. Shujat Ali vs. Union of India
(3) SCC 76, which held that mere chances of promotion were
not conditions of service, they were not applicable to the
present situation. It must be noticed that those cases
arose under the
States Reorganisation Act, 1956
where the
words 'conditions of service' were used in
Section 115(7)
of
that Act. The factual position there was that when
employees of two different States were integrated, their
seniority in the parent States necessarily got affected.

The proviso to
Section 115(7)
of the Act required that, if
the State to which they were allotted wanted to alter their
"conditions of service", previous permission of the Central
Government was necessary. It was in that context that it
was held that mere chances of promotions were not conditions
of service and there was no question of seeking the sanction
of the Central Government if chances of promotion were
affected after allotment to a new State. In fact, the
Central Government, had issued orders, under
Section 115(7)

that various other conditions of service in the parent State
like salary, leave etc. alone would remain protected. The
above cases were therefore not in point. The case in Mohd.
Bhakar vs. Y.Krishna Reddy 1967 SLR 753(SC) was in fact
overruled in Mohd. Shujat Ali.
So far as
K.Jagadeesan vs.
Union of India
1990 (2) SCC 228 was concerned, it related to
a case where a person's seniority stood affected by an
amendment to the Rules and it was held that that did not
make the rule retrospective.

Syed Khalid Rizvi vs. Union
of India
1993 Suppl. (3) SCC 575 no doubt said that there
was no "right to promotion" but even that case accepted that
there was a right to be "considered" for promotion.

So far
as
Akhil Bhartiya Soshit Karamchari Sangh vs. Union of
India
1996 (6) SCC 65 to which one of us (G.B.Pattanaik,J.
was party). That case, in our view, was correctly decided
on facts because by the date the general candidate reached
the higher category, the reserved category promotee who
reached that category earlier had got a further promotion.

Reference was also made in
Jagdish Lal, to A.K. Bhatnagar
vs. Union of India
1991 (1) SCC 544. That was a case where
adhoc recruits were regularised subsequently and were placed
below regular recruits. It was held that their past adhoc
service could not be taken into account since they remained
out of the cadre until regularisation. That case, in our
view, has also no application. Jagdish Lal is, therefore,
not correctly decided.

Observations in Ashok Kumar Gupta which run
contrary to Indira Sawhney & Sabharwal do not lay down
correct law: We may state that there are various other
observations made in Ashok Kumar Gupta and we find that they
run counter to the principles
laid down by
the nine Judge
Bench in Indira Sawhney and the Constitution Bench in
Sabharwal. In our view, these observations must, therefore,
be treated as not laying down the correct law. Learned
counsel for the parties were in agreement with this live of
approach. We, therefore, leave Ashok Kumar Gupta and do not
deal with it any further.

Was Virpal not decided correctly, as contended by
reserved candidates?:

We then come to another important point that was
argued by learned senior counsel Sri K.Parasaran. It was
argued that in Virpal, the Court was concerned with a
circular of the Railways dated 31.8.82 which permitted
discounting the seniority of roster promotee from the date
of continuous officiation and which also stated that his
seniority should be as per the ranking in the basic level.
The Court in Virpal held that it was "permissible" for the
Government to do so. It was argued by Sri K.Parasaran that
it was one thing to say that it was "open" to the Government
to deprive the roster promotee of the benefit of such
seniority from the date of roster promotion but it was
another thing to say that even if the Government thought fit
to give benefit of seniority on the basis of roster
promotion, the same should be tested on the anvil of
Article
and
16(1)
of the Constitution of India. Thus, it was
argued that Ajit Singh went far beyond Virpal when it held
that any circular, order or rule granting seniority to the
roster promotee would be violative of
Article 14
and
16(1)

of the Constitution of India. That brings us to a close
examination of the main principle
laid down in
Virpal and in
Ajit Singh. We shall first take up Virpal. In Virpal, the
facts were that the Court was concerned with a circular
dated 31.8.82 of the Railways which stated that the
seniority of the roster promotees would be based on their
panel position in the initial grade. The case involved two
services - Guards and Station Masters. Railways Guards
would be recruited as Guard C and promoted as Guard B, then
as Guard A and as Guard (Special). Promotion was to be by
rule of seniority-cum-suitability. In other words, these
were non-selection posts. On the other hand, in the case of
Station Masters, a selection process was involved for
purposes of promotion.

It is argued by the reserved candidates that
Virpal was not correctly decided because in Virpal, the
Court went by a printed Brochure and committed a factual
mistake in thinking that the circular of the Railways itself
required the panel seniority at the initial level to be
reflected at higher levels. The same point was raised by
the Indian Railways in its intervention applications IAs
10-12/98. It was argued that in Virpal the Court erred in
not noticing the full text of the Circular dated 31.8.82
which, showed that, as per para 319 of the Railway
Establishment Code, Vol.1, panels were required to be
prepared at each level.

We have examined Virpal closely in the light of
the above objection. In our view, the above criticism is
wholly unjustified and is based upon a wrong mixing up of
the separate conclusions arrived at in Virpal in regard to
two different sets of employees. As stated earlier, the
Court was there concerned with posts of Railway Guards and
also with posts of Station Masters. The former ( i.e.
Guard posts) were posts governed by the rule of
seniority-cum-suitability. In other words, for Guards,
seniority would govern subject to omission of those found
unsuitable for promotion. On the other hand, Station
Masters' posts were governed by selection at every level of
promotion. The learned Judge, Justice Jeevan Reddy, while
dealing initially with the promotions of Guards ( See P.702
of SCC) from C Grade to B, from B to A, and from A to
Special Grade A pointed out that the seniority- cum-fitness
rule applicable in their cases resulted in the seniority at
the Level of Guard C in the initial panel being reflected
from stage to stage, subject to fitness. When the learned
Judge came to discuss the issues relating to Station
Masters,(See SCC P.711) where merit and selection were
involved, the learned Judge stated that separate panels were
to be prepared at every level and also that those in an
earlier panel would be senior to those in a latter panel.
In either situation, it was laid down that the reserved
candidates could not count their 'seniority' on the basis of
roster point promotion. Learned Additional Solicitor
General, Sri C.S. Vaidyanathan, attempted to argue that
what the Court said in para 25, 26 was wrong as it assumed
that seniority at Level 1 would get reflected in the levels
higher up and what is stated in para 46, 47 in regard to one
previous panel having priority over a later panel would
apply in all cases, even to Guards referred to in paras 25,

26. The said contention, in our view, is based on a mixing
up of the cases of Station Masters and Guards who were
governed by different rules of promotion. We are satisfied
that there is no factual mistake committed in the judgment
in Virpal. In fact, subsequent to Virpal, the Railways
accepted the judgment and issued an order on 28.2.1997 both
in regard to non-selection and selection posts. The point
raised in the IAs by the Railways is therefore liable to be
rejected. We shall refer to these IAs again in our separate
judgment relating to individual cases. Did Ajit Singh go
beyond Virpal and if so, was it correctly decided? We now
deal with the points raised by the reserved candidates
against the correctness of Ajit Singh. It was urged by
learned senior counsel Sri K.Parasaran, that Ajit Singh went
far beyond Virpal. It is pointed out that in Virpal, this
Court was concerned with a circular of the Railways which
stated that the roster promotees could not, on that count,
claim seniority. In that context, Jeevan Reddy, J. no
doubt stated in Virpal ( See 1995 (6) SCC 684 at 701) as
follows:

"In short, it is open to the State, if it is so
advised ...... It is permissible for the State to do so."

But, according to learned senior counsel, Sri K. Parasaran,
in Ajit Singh, this Court went further and stated that any
rule, circular or order which gave seniority to the roster
point promotees was bad and that this view is not correct.
Our attention is invited to 1996 (2) SCC 715 ( at 732) as
follows:

"According to us, this question cannot be examined
only on the basis of any circular, order or rule issued or
framed by the State Government or the Union of India. This
has to be tested on the basis of our constitutional scheme
of
Articles 14
and
of the Constitution."

In our opinion, there is no conflict in the
principles
laid down in
these two judgments, nor is there
anything wrong in the above elucidation of the law. In
Virpal it was not necessary for the Court to go into the
question whether any circular - if it gave seniority to the
roster point promotees (reserved candidates) - could be
treated as valid. But, in Ajit Singh which was an appeal
against the Full Bench Judgment in Jaswant singh 1989 (4)
SLR 257, this Court was dealing with a declaration made by
the Full Bench for implementation of the Punjab circular
dated 19.7.69 (see para 29 of Full Bench) which positively
declared that the "roster points were seniority points".
That was why in Ajit Singh this Court had to consider the
validity of such a Circular. In Ajit Singh this Court held
that the declaration granted in the impugned judgment of the
Full Bench in Jaswant singh on the basis of the Punjab
circular would be in conflict with
Article 14
and
Article
16(1).
This Court had therefore to lay down that any
circular, order or rule issued to confer seniority to the
roster point promotees, would be invalid. Thus, the
decision in Ajit Singh cannot be found fault with. Does
Indira Sawhney protect seniority of promotees at roster
point: Learned senior counsel Sri K.Parasaran contended
that Indira Sawhney permitted reservations in promotions for
a further period of 5 years and that during that period

Article 16(4A)
was incorporated in Part III of the
Constitution and, therefore, the concept of seniority
attached to the roster promotion, as per certain rulings
then in force, must be deemed to continue and deemed to be
permissible in view of
Article 16(4A).
We may point out
that Indira Sawhney did not have to go into issues relating
to seniority and on the other hand it referred to the
principle of balancing
Article 16(4)
against the rights of
the individual under
Article 16(1).
It is, therefore, not
possible to accept that the 5 year rule and
Article 16(4A)

would keep out the applicability of
Article 16(1)
to test
the validity of any circular, order or rule which conferred
seniority to the roster point promotees. Do principles in
Mervyn Continho 1966 (3) SCR 60 apply to reserved
candidates? Does the roster point for reserved candidates
at Level 1 decide seniority at Level 1?
Considerable
reliance was placed by learned senior counsel Sri D.D.Thakur
and Sri Raju Ramachandran on the decision of this Court in

Mervyn Continho & Others vs. Collector of Customs
1966 (3)
SCR 600.

In that case, the service was constituted from two
sources, namely direct recruits and promotees. Question of
seniority arose at two levels - at the level of Appraisers
and at the level of Principal Appraisers. At the initial
level of Appraisers, there was a roster for determining the
seniority of the direct recruits and promotees. The direct
recruits were placed first in the roster and then the
promotees alternatively at the basic level. The promotees
who joined service earlier questioned the above rule as
being violative of their seniority at the level of
Appraisers in view of
Article 16(1).
This challenge was
negatived by this Court on the ground that such 'anomalies
arise not on account of there being no direct recruitment
for several years' and the roster point seniority was not
opposed to the principle of equality of opportunity in
Government service. It was said that the anomaly arose out
of the fortuitous circumstance that in the particular
service of Appraisers, for one reason or other, direct
recruitment had fallen short of the quota fixed for it. The
Court said: "we are not prepared to say that the rotational
system of fixing seniority itself offends equality of
opportunity....". To this extent the Court held against the
promotees in regard to seniority at the basic level of
Appraisers. The point here is the roster points in the case
of reserved candidates do not determine seniority at the
basic level.

Learned senior counsel for the reserved candidates
however relied upon the second part of Mervyn which related
to seniority at the next level of Principal Appraisers. It
was the contention of the direct recruits-respondents that
here again the seniority should be alternated between direct
recruits and promotees as done at the basic level, though
there was no such rule. Here, the promotee Appraisers
contended that the seniority at the level of Principal
Appraisers would be governed by the rule of continuous
officiation and that there can be no rotation alternatively
at this higher level on the basis of birthmarks at the level
of Appraisers. This plea of the promotees was accepted by
this Court. The point here is that once the roster at the
level of Appraisers is one which fixed seniority at level 1,
promotions to Level 2 for Principal Appraisers, have
necessarily to be made on that basis. For fixing seniority
at Level 2, there is no question of placing direct recruits
and promotees alternatively. It has to be on the basis of
date of promotion of each of the officers to Level 2,
irrespective of their birthmarks. The above decision in
Mervyn cannot apply to a case of reservation because the
roster in Mervyn was intended to determine seniority while
the roster in the cases of reservation under
Article 16(4)

or
Article 16(4A)
are not intended to determine seniority
but are merely intended to provide "adequate representation"

at the promotional level. To what extent, Hiralal,
Karamchand and Kailash Chand Joshi's cases help the reserved
candidates? Learned senior counsel for the reserved
candidates placed strong reliance on three other decisions
of this Court namely,
State of Punjab vs. Hira Lal
1970 (
3)
SCC 567, Karam Chand vs. Haryana State Electricity Board

1989 Suppl.

(
1) SCC 342 and Kailash Chand Joshi vs.
Rajasthan High
Court 1996 (1) SCALE 752.

In
Hira Lal
's case
decided by a three Judge Bench, there was a circular issued
by the Punjab Government providing, for the first time,
reservation in promotional posts. The 1st respondent who
was a general candidate senior to the reserved candidate
(respondent 3) was not promoted while the reserved candidate
though junior, was promoted. The High Court allowed the
writ petition filed by the general candidate (1st
respondent) on the ground of violation of
Article 16(1).

The said judgment was set aside in view of the law
laid down
in
the
General Manager, Southern Railway vs. Rangachari

1962 (2) SCR 586 that reservation was permissible at the
promotional level. In that case, the Court had no occasion
to consider any circular prescribing seniority to the roster
promotees. That case is therefore not in point.
Karamchand, decided by a two Judge Bench was, no doubt,
concerned with the question of seniority of the roster point
promotee. The appellant, who was from the reserved
category, belonged to the Haryana State Electricity Board
and the Haryana Government's circular dated 27.4.72 pointed
out that the roster was meant only for reservation and not
for fixing inter-se-seniority and that seniority depended
upon the merit list prepared by the Public Service
Commission or Selection Board. But the appellant, the
reserved candidate relied upon Rule 9 of the Punjab
PWD(Electricity Branch) Service Class III(Subordinate Posts)
rules, 1952 where Rule 9 provided seniority to be determined
from the date of "regular" promotion. The limited dispute
was whether his case fell within the "Exception" in Rule 9
which related to "temporary" promotees who would not get
seniority upon such temporary promotion. The contention of
the Board that he was a temporary promotee was not accepted
by this Court on the facts of the case. No question
vis-a-vis a general candidate arose. There are indeed
certain observations that seniority of the reserved
candidate had to be counted from the date of regular
promotion which, in our opinion, are not correct. No
question of
Article 16(1)
or seniority as against a general
candidate arose. That case is distinguishable. In Kailash
Chand Joshi the appellant, who was senior, belonged to the
non- reserved category in the cadre of Munsifs. The
respondents 3 to 11 though junior in that cadre to the
appellant, were promoted as Civil Judges earlier on the
basis of roster. The general candidate (appellant ) got
promoted as Civil Judge later and claimed seniority in the
cadre of Civil Judge. By that date the roster promotee did
not get any further promotion. This was not accepted by
this Court in view of Rule 11. There are two aspects of
this decision. Firstly, the Court did not notice that once
the general candidate, the appellant, who was senior to the
respondents reached the level of Civil Judge, the position
would be different. Such a principle, in fact, came to be
laid down shortly thereafter in Virpal by the same learned
Judge who decided Kailash Chand Joshi. Secondly, it was not
noticed that Rule 22 relating to seniority from the date of
continuous officiation was closely interlinked with the
promotional Rule based on equal opportunity. We may state
that any observations in the above cases that the roster
promotees will get seniority over the senior general
candidates who reach that level later, (but before the
further promotion of the reserved candidate) cannot be
accepted as correct in view of the legal position stated
earlier. A 'poignant scenario' in some cases: We next come
to the poignant scenario in several of the matters before
us. Virpal referred to such a scenario where all the 33
candidates who were to be considered for 11 vacancies were
from the SC/ST category ( see P.710 of SCC). Before us,
similar facts are placed by the general candidates. The
factual position is not disputed, though certain reasons
have been set out by both sides which none has
scientifically examined. It is to be noticed that : (i) in
Ajit Singh itself, - (see p.76 and PP.200-215, 232 of paper
book) as on 30.9.94 out of 107 officers working as
Superintendent Grade I, the first 23 officers are from
Scheduled Castes. At the level of Under Secretaries, out of
19, the first 11 are from SC category. In the category of
Dy. Secretary, out of four, 2 are from SC category. As on
30.9.94, the position was that at these levels, the
percentage was 22.5%, 54% and 67% respectively in the above
categories. If the seniority is to be counted as per the
case of the reserved candidates, the position would be that
Dy. Secretaries would be 100% manned by Scheduled Castes,
and Under Secretaries would again be 100% manned by
Scheduled Castes while Superintendents Grade I would be so
manned to the extent of 53%.

(ii) In
Jatinderpal Singh
's case ( C.A.Nos. 316-

317/99) the top 134 positions of Principals ( from Head
Masters' source) would be from Scheduled Castes while the
top 72 positions ( from Head Mistress's source) would be
from Scheduled Castes. It is stated that " adding this to
the number awaiting promotions", the position would be that
top 217 and 111 in these categories would be Scheduled
castes candidates - which would be 100% and 71% ( the posts
being only 156 under each source). One does not know what
will happen in posts beyond Principal, if all persons in the
zone are from SC/ST category.

(iii) In Kamal Kant (SLP.4945/97 from Haryana ) as
of today: (a) among Deputy Secretaries, the first 8 posts
are occupied by the reserved category ( Scheduled Castes and
Backward Classes) (b) among Under Secretaries (Group A)
(officiating) 14 posts at the higher levels are occupied by
the reserved category.

The above factual position is not, in fact
disputed but it is said that this could be because the
roster was operated again and again till that was stopped
after Sabbarwal was decided, but no body has gone into the
extent to which excess roster operation has created such a
situation.

In the written submissions of learned senior
counsel, Sri Raju Ramachandran dated 5.8.99, such a
situation of almost all top posts being manned by reserved
candidates is sought to be justified as being not
constitutionally inhibited. In our view, such a situation
was never intended by the founding fathers. One should only
read the speech of Dr. Ambedkar in the Constituent Assembly
as quoted in Indira Sawhney (see pp.660-661 SCC)(referred to
earlier).

We may, however, make it clear that our decision
in regard to the
Article 16(1)
,
Article 16(4)
and
Article
16(4A)
that the rule of "continuous officiation" is
applicable only to promotions made as per rules which give
equal opportunity - and not otherwise, -is independently
arrived at on the basis of the constitutional position and
is in no way coloured or influenced by the above facts
mentioned by the general candidates. Our Conclusions on
Points 1 and 2: We, therefore, hold that the roster point
promotees (reserved category) cannot count their seniority
in the promoted category from the date of their continuous
officiation in the promoted post, - vis- a-vis the general
candidates who were senior to them in the lower category and
who were later promoted. On the other hand, the senior
general candidate at the lower level, if he reaches the
promotional level later but before the further promotion of
the reserved candidate-he will have to be treated as senior,
at the promotional level, to the reserved candidate even if
the reserved candidate was earlier promoted to that level.
We shall explain this further under Point 3. We also hold
that Virpal and Ajit Singh have been correctly decided and
that Jagdishlal is not correctly decided. Point 1 and 2 are
decided accordingly. Point 3: During the discussion under
this "catch-up" point - for purposes of convenience, - we
take the example of the cadres in Ajit Singh i.e. there is
roster point promotion for reserved candidates for promotion
from Level 1 to Level 2 and from Level 2 to Level 3. There
is no roster for promotion from Level 3 to Level 4. Two
'catch up' rules contended for by general candidates: Now,
as stated earlier, the counsel for the general candidates
argued for acceptance of two catch-up rules. .pa Extreme
'catch-up' rule: So far as the extreme contention of the
general candidates that at Level 3, the roster candidate
must wait at Level 3 - before being promoted to Level 4 -
till the last senior general candidate at Level 1 reached
Level 3, - we reject the same in as much as that will not
amount to a reasonable balancing of the rights of the
candidates in the two groups. Nor do we accept that posts
must be kept vacant and no promotions of the roster
candidates be made. Other Catch-up rule: As accepted in
Virpal ( see 1995(6) SCC 684 at 702) and Ajit Singh (see
1996(2) SCC at P.729), we hold that in case any senior
general candidate at Level 2 (Assistant) reaches Level 3 (
Superintendent Grade II) before the reserved candidate
(roster point promotee) at Level 3 goes further up to Level
in that case
the seniority at Level 3 has to be modified
by placing such a general candidate above the roster
promotee, reflecting their inter se seniority at Level 2.
Further promotion to Level 4 must be on the basis of such a
modified seniority at Level 3, namely, that the senior
general candidate of Level 2 will remain senior also at
Level 3 to the reserved candidate, even if the latter had
reached Level 3 earlier and remained there when the senior
general candidate reached that Level 3. In cases where the
reserved candidate has gone upto Level 4 ignoring the
seniority of the senior general candidate at Level 3,
seniority at Level 4 has to be refixed (when the senior
general candidate is promoted to Level 4) on the basis of
when the time of reserved candidate for promotion to Level 4
would have come, if the case of the senior general
candidates was considered at Level 3 in due time. To the
above extent, we accept the first part of the contention of
the learned counsel for the general candidates. Such a
procedure in our view will properly balance the rights of
the reserved candidates and the fundamental rights
guaranteed under
Article 16(1)
to the general candidates.

No difficulty in amending seniority list: One of the
objections raised before us and which appealed to the Full
Bench in
Jaswant Singh
's case was that this 'catch up'
principle would lead to frequent alteration of the seniority
list at Level 3. We do not find any difficulty in this
behalf. The seniority list at Level 3 would have only to be
merely amended whenever the senior general candidate reaches
Level 3. Examples given by reserved candidates -do not
create any anomaly: Learned senior counsel Sri K.
Parasaran and Sri Raju Ramachandran then adverted to a
situation which according to them might create serious
problems if a senior general candidate is to be treated as
senior at the promotional level if he reaches that level
before the roster promotee goes further up. The example
given refer to cases where after the roster point promotee
(reserved candidate) reaches the promotional level, there is
direct recruitment or recruitment by transfer at that
promotional level. Counsel submit that, if a senior general
candidate is thereafter promoted and placed above the
reserved candidate, can he became senior to the direct
recruit and transferee? We do not find any anomaly. The
direct recruit or transferee who has no grievance against
the reserved candidate who was already there can have no
grievance against a senior general candidate who has a
superior claim, in law, against the reserved candidate.
Even if seniority of roster point promotee does not Count,
experience of both groups can be considered as part of merit
for further promotion: Before we leave point 3, we may
refer to another submission made by Sri K. Parasaran,
learned senior counsel for the reserved candidates. Learned
counsel submitted that even if the seniority of the reserved
candidates had gone up to Level 3 earlier by the roster at
two levels 1 & 2 is not counted, still the 'experience'
gained by them at Level 3 well before the senior general
candidate 'caught up' to that Level, cannot be disregarded
for purposes of promotion to Level 4. It is true that the
roster point promotee who has reached the promotional level
3 even if he is not entitled to seniority would have gained
considerable `experience' at that level. That experience
is, no doubt, of considerable relevance in considering his
case for further promotion to Level 4. But, at the same
time, it is to be noted that the general candidates had
longer experience at level 1 and level 2 and have come up to
level 3 by way of competition among the general candidates
at two stages. The said longer `experience' gained by them
at the lower levels 1 and 2 and the manner in which they
have reached the level 3 to which the reserved candidate had
reached earlier, are also relevant factors. The quality of
the experience of these groups also needs to be kept in
view. The above principle would be an equitable balancing
of the `experience' of the candidates at various levels. It
will be appropriate for the Government of India or the State
Government, as the case may be, to formulate guidelines by
way of administrative orders or by way of rules in this
behalf. Point 3 is disposed of accordingly. Point 4: This
point concerns the "prospective" operation of the two
judgments in Sabharwal and Ajit Singh. The point regarding
these two cases directly arises in the appeals from Punjab,
Haryana and Rajasthan. The prospectivity of Virpal has been
particularly raised by learned Additional Solicitor General,
Sri C.S. Vaidyanathan, in the IAs filed by the Railways.
Once again our approach here is to prevent reversions and
avoid hardship to the reserved candidates already promoted
before the two judgments and at the same time to try to
balance the rights to seniority of the general candidates as
against those of the reserved candidates, in the light of

Article 16(1).
Prospectivity of Sabharwal:

(i) What Sabbarwal said in regard to
"prospectivity":

Before Sabharwal was decided on 10.2.1995, it
appears that, in several services, the roster was initially
put in operation and promotions at all the roster points
were filled up. But the roster was once again operated on
future vacancies, even though all the required reserved
candidates were in position at the promotional level. It
was not realised that once the roster points were all
filled, the roster had served its purpose and fresh members
of the reserved classes could claim promotional posts only
if any promotional posts already filled by the reserved
candidates fell vacant. This misapplication of the roster
came to be removed for the first time on 10.2.95 when
Sabharwal was decided. Obviously, by that time several
reserved candidates had got promotion in excess of their
quota because of the wrong "re- operation" of the roster
points. If the law declared in Sabbarwal were to be treated
as retroactive as is the normal position whenever the law is
declared by this Court, it would have resulted in reversions
of several officers of the reserved classes as their
promotions before 10.2.95 by the fresh operation of the
roster as aforesaid was wholly unjustified. This Court in
Sabbarwal therefore tried to prevent such reversions and
declared ( P. 753 of SCC, Para 11) as follows at the end of
the judgment:

"We, however, direct that the interpretation given
by us to the working of the roster and our findings on this
point shall be operative prospectively".

(ii) The rival contentions: To the extent of
saving the reversions of those from reserved classes
promoted before 10.2.95 though such promotions were made
contrary to what was decided in Sabharwal, there is no
serious dispute from the side of the general candidates, but
a contention is raised by the reserved candidates who got
such promotions in excess of the reservation quota that they
should in addition get the benefit of the seniority in the
promotional post even if such promotion made before 10.2.95
was wrong in view of what was decided in Sabharwal . This
plea is strongly opposed by the general candidates. (iii)
Our conclusion: It is axiomatic in service jurisprudence
that any promotions made wrongly in excess of any quota are
to be treated as ad hoc. This applies to reservation quota
as much as it applies to direct recruits and promotee cases.
If a Court decides that in order only to remove hardship
such roster point promotees are not to face reversions, -
then it would, in our opinion be, necessary to hold -
consistent with our interpretation of
Articles 14
and
16(1)

- that such promotees cannot plead for grant of any
additional benefit of seniority flowing from a wrong
application of the roster. In our view, while Courts can
relieve immediate hardship arising out of a past illegality,
Courts cannot grant additional benefits like seniority which
have no element of immediate hardship. Thus, while
promotions in excess of roster made before 10.2.95 are
protected, such promotees cannot claim seniority. Seniority
in the promotional cadre of such excess roster point
promotees shall have to be reviewed after 10.2.95 and will
count only from the date on which they would have otherwise
got normal promotion in any future vacancy arising in a post
previously occupied by a reserved candidate. That disposes
of the 'prospectivity'' point in relation to Sabharwal.
Prospectivity of Ajit Singh:

Coming to the 'prospectivity' of Ajit Singh,
decided on 1.3.96 the question is in regard to the seniority
of the reserved candidates at the promotional level where
such promotions have taken place before 1.3.96. We have
accepted, while dealing with Points 1 and 2 that the
reserved candidates who get promoted at two levels by roster
points ( say) from Level 1 to Level 2 and level 2 to level 3
cannot count their seniority at Level 3 as against senior
general candidates who reached Level 3 before the reserved
candidates moved upto Level 4. The general candidate has to
be treated as senior at Level 3. Where, before 1.3.96,i.e.
the date of Ajit Singh's judgment , at the level 3, there
were reserved candidates who reached there earlier and also
senior general candidates who reached there later, (but
before the reserved candidate was promoted to level 4) and
when in spite of the fact that the senior general candidate
had to be treated as senior at level 3 (in view of Ajit
Singh), the reserved candidate is further promoted to level

4 - without considering the fact that the senior general
candidate was also available at level 3 - then, after
1.3.96, it becomes necessary to review the promotion of the
reserved candidate to level 4 and reconsider the same
(without causing reversion to the reserved candidate who
reached level 4 before 1.3.96). As and when the senior
reserved candidate is later promoted to level 4, the
seniority at level 4 has also to be refixed on the basis of
when the reserved candidate at level 3 would have got his
normal promotion, treating him as junior to the senior
general candidate at level 3. Chander Paul Vs. State of
Haryana ( 1997(10) SCC 474) has to be understood in the
manner stated above. We hold accordingly on Point 4. We
dispose of the clarification applications IAs 1 to 3/98
filed by the State of Punjab accordingly and hold that Ajit
Singh and Virpal lay down the correct law and not Jagdish
Lal, which must be considered as confined to its own
peculiar facts. We shall be passing separate orders in the
Punjab, Haryana and Rajasthan cases and Contempt Cases and
other IAs on the basis of the principles laid down in this
judgment which, for convenience will be called Ajit Singh
II. IAs Nos.1 to 3/98 are disposed of accordingly.