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TMI Blog1995 (10) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No. 9272/95 arising from Special Leave Petition (C) No. 6468 of 1987. The appeal is preferred against the judgment of the Central Administrative Tribunal (Allahabad Bench) disposing of Original Application No. 647 of 1986 with certain directions. [It was originally filed as a writ petition in the Allahabad High Court which, on the Constitution of the Central Administrative Tribunal (Allahabad Bench), was transferred to the Tribunal] It was filed by, what may be called for the sake of convenience, employees not belonging to any of the reserved categories (hereinafter referred to as general candidates - which means open competition candidates). The Railway Administration as well as the employees belonging to reserved categories, i.e., Scheduled Castes and Scheduled Tribes were impleaded as respondents. The writ petition/original application came to be filed in the following circumstances : Among the category of Guards in the Railway service, there are four categories, viz., Grade 'C', Grade 'B', Grade 'A' and Grade 'A' special. The initial recruitment is made to Grade 'C' and they have to ascend rung after rung to go upwards. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve effect to the said rule - cannot be applied or followed any longer and (2) that the forty-point roster is prepared only to give effect to the rule of reservation. It may provide for accelerated promotion but it cannot give seniority also to a reserved category candidate in the promoted category. According to them, the seniority in Guard Grade 'C' should govern and should be reflected in all subsequent grades notwithstanding the earlier promotion of the members of the reserved categories. Their case was that even if a reserved category member 'X' is promoted from Grade 'C' to Grade 'B' earlier than his senior 'Y' (general candidate), the position should be that when the general candidate also gets promoted later to Grade 'B' he should regain is seniority over 'X' in Grade 'B' which means that in Grade 'B', 'Y' again becomes senior to 'X'. They submitted that this should be the rule to be followed to ensure that command of Articles 14 and 16 of the Constitution of India prevails. They relied upon two decisions of the Allahabad High Court and another decision of Madhya Pradesh in support of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with Articles 16 and 14. In fact, the very rule of reservation in promotions is meant to increase the representation of Scheduled Castes/Scheduled Tribes candidates in the higher echelons of services quickly. No exception can be taken to the said rule, they submitted. 5. Since the Tribunal has strongly relied upon two decisions of the Allahabad High Court and a decision of the Madhya Pradesh High Court, it would be appropriate to refer to their ratio briefly. 6. In Civil Writ Petition No. 1809 of 1972, J.C. Mallik v. Union of India, the Allahabad High Court held that the rule of reservation or the forty-point roster, as the case may be, cannot be followed and applied once the representation of Scheduled Castes/Scheduled Tribes in a particular grade, cadre or service, reaches the prescribed level of percentage. In other words, once the quota of 221/2% in favour of Scheduled Castes/Scheduled Tribes is satisfied, the rule of reservation/forty-point roster can no longer be followed and applied. It may be mentioned that this decision has since been referred with approval in the Constitution Bench decision in R.K. Sabharwal v. State of Punjab [1995]2SCR35 . 7. The other deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reserve quota for further promotion. If the reserve quota is already full in the next grade, the SC ST candidates just below that grade in the reserve quota will have to wait till vacancy occurs in the higher grade in the reserve quota. However, we want to make it clear that this will not apply to such SC ST candidates who on their own in competition with the general candidates have attained their present position and not due to reservation, they are entitled to compete further with the general candidates and they will not be affected for promotion in the general quota even if the reserved quota is full in the next higher grade. 9. On the basis of the aforesaid decisions and certain circulars of the Railway Board, which will be referred at a later stage, the Tribunal laid down the following principles in Para - 26 of its judgment. (We have split up the paragraph into several sub-paras to bring out the several principles distinctly) : 26. To clarify the position further we will enunciate the principles of determining seniority in situations as are under dispute here. The basic seniority in grade 'C' will be the guiding seniority list for the cadre of guards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d community candidate who gets promotion on his own merit and not on the basis of rule of reservation-cum- forty-point roster will be entitled to be promoted irrespective of the quota position. But those reserved community candidates who obtained promotion by jumping the queue on the basis of rule of reservation will get the promotion on the basis of the revised seniority list to be prepared in accordance with the directions contained in Para-26. 11. The Indian Railway Establishment Manual, Volume-I, contains instructions regulating inter alia seniority of non-gazetted Railway servants. They are contained in Chapter-Ill. Para 306 says, candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case covered by paragraph 305 above . Para 309 reads : SENIORITY ON PROMOTION. - Paragraph 306 above applies equally to seniority in promotion vacancies in one and the same category due allowance being made for delay, if any, in joining the new posts in the exigencies of service. Para 314 says that subject to Paragraph 302 to 306, when the dates of appointment to the grade are the same, the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tability . Para-4 of the letter reads: Against the above background, the matter has been reviewed by the Board. It has been decided that posting of Scheduled Caste/Scheduled Tribe candidates on promotions in non-selection posts should also be done as per the reserved points on the roster subject, however, to the condition that seniority of the Scheduled Caste/Scheduled Tribe candidates in comparison to other candidates will continue to be governed by the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided. (Emphasis added) 13. It is evident that this letter is speaking of the seniority position in the initial entry category/grade. It says that while posting shall be done as per roster points, seniority shall continue to be governed by the ranking given in the selection list/panel. This clearly brings out the departure being made from the normal principle that the date of entry in a category/grade determines the seniority. 14. Indeed, the Railway Board's letter dated January 19,1972 (pages 194-195 - Chapter-VIII dealing with promotion to selection posts - of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... training is not provided and in accordance with the merit position in the examination where training is provided. And finally at page 512, the circular/letter of the Railway Board dated August 31, 1982 is set out, which has already been extracted hereinbefore. 18. Pausing here for a moment, we must explain what does panel mean and signify in the case of promotions. Though we enquired repeatedly, this aspect could not be clarified by the learned Additional Solicitor General. In particular, we wanted to know whether a panel is prepared only in the case of selection posts or is it also prepared in the case of non-selection posts. The several instructions in Indian Railway Establishment Manual are also not helpful on this aspect. We are, there-lore, left to interpret the expression ourselves. Having regard to the fact ; that in all the above circulars/letters, the expression panel has been used to denote a merit list or select list, as it may be called, we think it reasonable to understand as a panel which is prepared in the case of selection posts only. In the case of non-selection posts, there is no question of such a panel. In their case, the senior is promoted automatically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefits to be extended to the backward classes. It is not as if there is only one particular method of providing reservations under the said clause. (ii) The purpose behind Article 16(4) is to ensure adequate representation to backward classes in the administrative apparatus of the State. The purpose of Article 16(4) is only to ensure adequate representation and not to confer additional benefits - other than those which logically flow from the rule of reservation. As soon as adequate representation is achieved, the rule of reservation must be kept in abeyance and if there is a roster the application of the rosier must be stopped. (iii) A harmonious construction of Clauses (4) and (1) of Article 16 both of which are indeed facets of the very same principle of equality -implies that while the members of reserved categories will be entitled to equal treatment in all matters relating to service conditions, they cannot claim accelerated seniority in addition to accelerated promotion. If this principle is not recognised, it would result in the reserved category members stealing an additional march over the general candidates which defeats the guarantee of equality extended by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be ascertained having regard to the context in which it occurs. The relevant words are, any provision for the reservation of appointments or posts'. The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like references, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration - the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh (1981)ILLJ209SC are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to seniority over his senior in the feeder category and that as and when a general candidate who was senior to him in the feeder category is promoted, such general candidate will regain his seniority over the reserved candidate notwithstanding that he is prompted subsequent to the reserved candidate. There is no unconstitutionality involved in this. It is permissible for the State to so provide. The only question is whether it is so provided in the instant case? 24. It is the common case of the parties before us that the rule of reservation in the Railway services - to be more precise to the category of Railway Guards, whether in the matter of initial appointment or in the matter or promotion, from one grade to another, is provided by the circulars/letters of the Railway Board. These circulars/letters have been issued by the Railway Board in exercise of the power conferred upon it by Rule 123 of the statutory rules framed by the President of India. We have referred to the circulars/letters of the Railway Board hereinbefore. In the circular/letter dated August 31, 1982 which deals with the subject of Reservation for Scheduled Castes and Scheduled Tribes in promotion in Group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 'B' grade and a person in 'A' grade. 25. Now let us see how does the above principle operate in practice. Selection is made for direct recruitment to Grade 'C' Guards. A panel is prepared by the selecting authority on the basis of and in the order of merit. Appointments have to be made from out of this list/panel. But appointment orders will not be issued in the order in which the candidates are arranged in this select list/panel; they will be issued following the roster. Suppose the forty-point roster is being operated afresh, then the first vacancy in the foster would go to a Scheduled Caste candidate though he may be down below in the select list/panel. The candidate at Sl. No. 1 in the said select list - a general candidate - will be appointed in the second vacancy. But once appointed, the general candidate (at Sl. No. 1 in the select list) will rank senior to the Scheduled Caste candidate though he (general candidate) is appointed subsequent to the Scheduled Caste candidate. Now take the case of promotions (based on seniority-cum-suitability, i.e., non-selection posts) to Grade 'B'. Roster applies even to promotions to Grade B'. Again a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. It is not brought to our notice that the said instructions are inconsistent in any manner with any of the statutory provisions or statutory rules relevant in this behalf. 27. So far as the other question considered by the Tribunal (viz., that once the representation of the reserved categories in a given unit of appointment reaches the prescribed percentage, the rule of reservation or the roster based on it cannot be given effect to), the Constitution Bench decision of this Court in R.K. Sabharwal v. State of Punjab, settles the issue. In this decision, it has been held that where the total number of posts in a cadre reserved for reserved candidates are filled by operation of a roster, the object of rule of reservation must be deemed to have been achieved and that thereafter there would be no justification to operate the roster. Para-5 of the said judgment brings out the reasons for the said rule and the rule itself: We see considerable force in the second contention raised by the learned Counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example, the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation. 28. The Constitution Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively [vide Para 11]. It has further been held in the said decision that the percentage of reservation has to be worked out in relation to the number of posts which from the cadre-strength (and that) the concept of 'vacancy' has no relevance in operating the percentage of reservation . (As a matter of fact, it is stated that this batch o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... didate even though the general candidate is promoted later to that category. 29. If the above three rules are observed and followed, there may not remain much room for grievance on the part of the general candidates. While in the very scheme of things, it is not possible to give retrospective effect to these rules - a fact recognised in R.K. Sabharwal - the above rules, operated conjointly, should go a long way in maintaining a balance between the demands of merit and social justice. 30. Sri Rajeev Dhawan, learned Counsel for the general candidates, pointed out, what according to him, are the inequitable and anomalous situations which would follow, if the candidate appointed/promoted on the basis of rule of reservation is not confined to reserved posts alone and is allowed to compete for general posts as well. In such a situation, he submits, the reserved candidate will enjoy yet another - third - advantage. Whenever, it is convenient to him, he will claim to be considered for a reserved post and where it is more convenient to him, he will claim to be considered for a general post, whereas a general candidate is restricted to general posts alone. In our opinion, however, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based as those rules were on an earlier Constitution Bench decision in General Manager, Southern Railway and Anr. v. Rangachari [1962]2SCR687 . It is another matter that since then a constitutional amendment has been brought in permitting reservation in promotions to the extent of Scheduled Castes and Scheduled Tribes only, we need express no opinion on the aside amendment. 32. Sri Dhawan points out yet another anomaly. Where a candidate belonging to Scheduled Caste gets selected on his own merit, i.e., in the general category, he will be treated as a general candidate and on that account he suffers prejudice vis-a-vis another reserved category candidate who could not be selected on his own merit (i.e. in the general category) and was selected only because of and under the rule of reservation. For illustrating his submission, learned Counsel says, take an instance where out of forty candidates selected, a Scheduled Caste candidate selected on merit stands at Sl. No. 18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at Sl. No. 33. But when the occasion for appointment arises, the Scheduled Caste candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our considered opinion, is to send all these matters back to the Tribunal to work out the rights of individuals concerned applying the three principles aforesaid. These appeals are accordingly disposed of in the above terms and matters remanded to the respective Tribunals. Writ Petitions are dismissed. No costs. SELECTION POSTS Civil Appeal No. 9276 of 1995 arising out of S.L.P. (C) No. 18370 of 1993 : 34. Delay condoned. Leave granted. 35. This appeal arises from the judgment of Central Administrative Tribunal (Madras Bench) allowing Original Application No. 869 of 1991 filed by the respondent, Sri D. Williams. The relevant facts drawn from the counter filed on behalf of the Railway Board and its officials before the Tribunal, are the following : 36. The cadre of Station Master is divided into five grades. The grades and inter se percentage is as follows : 37. The posts of Assistant Station Masters in the scale of Rs. 1200-2040 are filled by direct recruitment through Railway Recruitment Boards to the extent of fifty percent. The balance fifty percent is filled by promotion of departmental employees. The higher grades in the said cadre are filled by promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l candidates and for a further declaration that rule of reservation cannot be applied against vacancies. He sought a further declaration that the said rule of reservation is confined to recruitment to the scale of Rs. 1200-2040 alone i.e., to the lowest grade in the cadre - and not to higher grades. 41. The Tribunal allowed the original application filed by Sri Williams following its earlier decision in Original Application No. 85 of 1989. The Tribunal declared that for the purpose of promotion under the general quota, seniority of the Scheduled Castes/Scheduled Tribes candidates should not be determined on the basis of the date of their actual promotion but on the basis of the date on which they would have been promoted in due course if the rule of reservation were not applied. The Tribunal, however, declared that the seniority in the grade of Rs. 1600-2660 shall not be disturbed because the applicant had not approached the Tribunal in time to challenge the seniority in that scale. The relief granted by the Tribunal is in the following terms : In the result, we allow the application and pass the following orders : - We direct the respondents to revise the seniority of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of seniority is that all the top grades have come to be occupied exclusively by the reserved category members, a situation, which he characterizes as a total negation of the Rule of Equality underlying Articles 16(1) 16(4) and 14. He emphasises the fact that the Railways have not explained in their counter as to how the above situation has come about except stating baldly that since the Scheduled Castes/Scheduled Tribes candidates were seniors to Sri Williams in the grade of Rs. 2000-3200, they were rightly alerted for interview. 44. It is true that this case presents a rather poignant turn of events. Of the thirty three candidates being considered for eleven vacancies, all are Scheduled Castes/Scheduled Tribes candidates. Not a single candidate among them belongs to general category. The learned Counsel for the respondent is justified in complaining that appellants have failed to explain how such a situation has come about. Not only the juniors are stealing a march over their seniors but the march is so rapid that not only erstwhile compatriots are left far behind but even the persons who were in the higher categories at the time of entry of Scheduled Castes/Scheduled Tribes c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter is in the same terms as Para-4 of the Railway Board's circular/letter dated August 31, 1982 referred to supra). The said Para-3 reads : (3) The seniority of candidates belonging to Scheduled Castes and Scheduled Tribes vis-a-vis others will continue to be determined as at present, i.e., according to the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided. But inasmuch as the post of Station Superintendent/T.I. in the scale of Rs. 2375-3500 is a selection post, the panel referred to in the said circulars/letters would mean the panel prepared at the time of making selections for promotion to the said post (Rs. 2375-3500) - and not the panel/select list prepared at the time of entry into the initial grade, viz., Assistant Station Master (Rs. 1200-2040). It also means that members in one panel take precedence over the members in the next panel. The application of the rule of seniority referred to in the said circular/letter - and other circulars/letters referred to supra most, of which do not make any distinction between selection and non-selection posts -has to be sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remaining ten, only two are general candidates and the remaining eight belong to Scheduled Castes. Inspite of the same, the candidates now being considered for promotion are again Scheduled Castes candidates which is likely to result in an almost total reservation in the said category in favour of the Scheduled Castes/Scheduled Tribes candidates. The case of the appellants (respondents in the original application) is that they are considering the senior most candidates for the vacancies arising in the category of Superintendents and, therefore, no objection can be taken with the said course by any one. 50. The Tribunal has allowed the original application in the following terms : It appears that some mathematical mistake occurred on the part of the department in making the promotion and deciding the seniority. According to learned Counsel in view of Virpal Singh Chauhan's case these candidates are to be reverted. Whether they are to be reverted or not that is the matter for the respondents to decide all such observations which have been made in Virpal Singh case, but the respondents are directed to promote the members of the general community to the extent they are en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emaining two vacancies should go only to general candidates. Similar direction has been made with respect to other two categories as well. The Tribunal further directed that the rule of reservation must be applied with reference to posts and not with reference to vacancies. The main contention of the Union of India and the Railway Authorities in this appeal is that the rule of reservation in favour of Scheduled Castes/Scheduled Tribes should be applied to vacancies and not to total number of posts in the cadre. It is submitted that the Tribunal was in error in holding that the rule of reservation should be so applied as to ensure that the posts held by Scheduled Castes/Scheduled Tribes do not exceed that prescribed percentage. It is submitted that this was never the intention of the Constitution or the rule of reservation. 54. The only contention urged by the appellants herein is concluded against the appellants by the decision of this Court in R.K. Sabharwal, referred to hereinbefore. Following the said decision this appeal is dismissed with the clarification that the members of Scheduled Castes/Scheduled Tribes can also compete as general candidates. The appellant shall follow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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