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TMI Blog1997 (5) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1.1.95 Dt. of apptt. as Clerk As Asstt. As Dy. Supdt. As Supdt. As Budget (Officer class II) As R.E. (Class - I) APPELLANTS: 1. Jagdish Lal 22 24.11.58 1.12.68 27.10.87 1.4.90 - - 2. Ram Dayal 28 22.2.61 1.12.68 16.1.89 9.8.91 - - 3. i Surinderjit Kap 56 1.9.66 10.4.72 2.2.96 - - - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niority 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 determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 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 14 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romotion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination 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 uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vantageously 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 classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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-vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 reser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 16 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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