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TMI Blog1996 (3) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... retaries in the Punjab Civil Secretariat and were members of State Service Class-I. The primary grievance made in all these writ petitions on behalf of the different petitioners, was that the policy for reservation in respect of candidates belonging to Scheduled Castes and Backward Classes, was being implemented by the State Government in a manner, because of which the members belonging to the Scheduled Castes and Backward Classes were holding posts in excess to their reservation quota. This was not only prejudicial but detrimental to the right of the petitioners for being considered for promotion to higher grade. Several other similar writ petitions had also been filed on behalf of others which were heard together and were dismissed by the common impugned judgment. 2. The State has been issuing from time to time Government Orders in respect of reservations for members of Scheduled Castes and Backward Classes. One such order was issued on 19.10.1949, making 15% reservation of posts in favour of Scheduled Castes to be filled up from amongst candidates who held minimum qualification for the posts. By another order dated 19.8.1952, the percentage of 15% was increased to 19%. By y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an order of stay saying : We made it clear by our order dated 19.10.82 that there will be an interim order of stay against reversion of any of the person already appointed on the basis of instructions issued by the Govt. of Punjab which have been held to be invalid by the Judgment of the High Court impugned in these appeals and writ petition. We do not think that there is any doubt in regard to what we said, namely that no scheduled castes and scheduled Tribes employees who has already been appointed or promoted pursuant to the instructions of the Government of Punjab will not be reverted but so far as the future appointments/promotions are concerned these shall be made according to the judgment of the High Court and these will be ultimately subject to the result of the writ petition and appeals. If the Govt. makes any appointment/promotions in accordance with the judgment of the High Court the State Govt. will make it clear in the letter of appointment/promotion that the appointment/promotion is subject to the result of the writ petition and appeal so that there is no difficulty in future in case the High Court judgment is reversed by this Court.... So far the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of his own merit and seniority and not on the basis of only his being Scheduled Caste/Backward Class such candidate should not be counted while calculating the percentage of reservation meant for Scheduled Caste/Backward Class, but that reserved point should be carried over to the next point on the roster and filled by candidates belonging to Scheduled Castes/Backward Classes. Thirdly, Scheduled Castes/Backward Classes candidates who are appointed or promoted on the basis of appropriate reservation under the prescribed roster point shall be assigned seniority as per the point reserved for them in the relevant roster irrespective of their position in the general merit list in case of direct recruitment in Class I, II, III and IV service. In other words, roster points are the seniority points in respect of Scheduled Castes Backward Classes. In the case of Scheduled Castes/Backward Classes candidate getting selected or promoted on his own merit/seniority, he will retain his original higher seniority position secured by him. The seniority cannot be ambivalent and fluctuating. 3. It was further said : We have already held that reservation does not mean that the Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their own merit/seniority by competing with general category candidates then the purpose of reservation in the said cadre having been achieved the Government instructions in respect of reservation would become inoperative and (ii) once the posts earmarked for Scheduled Castes/Tribes and Backward Classes on the roster are filled, the reservation is complete and the roster cannot operate any further and has to be stopped. Any post falling vacant, in the cadre thereafter is to be filled from category reserved or general-due to retirement etc., of whose members the post fell vacant. In respect of the first question mentioned above, it was said : When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The running account is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. It was said thereafter that vacancies arising in the cadre after the operation of the roster and the running account comes to an end, they have to be filled up from amongst category to which posts belonged in the roster. It was illustrated by saying : For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all Backward Classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age-barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by Clause (1) is to each individual citizen of the country while Clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be. The controversy which has been raised in the present appeals is: whether, after the members of Scheduled Castes/Tribes or Backw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : I am directed to refer to the subject noted above and to say that at present reservation for Scheduled Castes and Backward Classes is applicable in promotions to and within class III and IV only. Since these Castes/Classes are poorly represented in various higher services in the State Government, it has been under the active consideration of the State Government that some reservation in promotions within higher services as well should be made for them. It has now been decided that except in the case of All India Services, 16% of the posts to be filled by promotion to or within Class I and II services under the State Government should be reserved for members of Scheduled Castes and Backward Classes (14% for members of Scheduled Caste and 2% for members of Backward Classes) subject to the following conditions: (a) the persons to be considered must possess the minimum necessary qualifications, and (b) they should have a satisfactory record of service. (2). In a lot of 100 vacancies occurring from time to time, those falling at serial numbers mentioned below should be treated as reserved for the members of Scheduled Castes: 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servation and system of roster can also claim to be promoted against general category posts in higher grade on basis of their 'accelerated promotions'. The appellants have also no objection if accelerated promotions in still higher grade posts are given to such appointees/promotes applying the roster system i.e. against the posts reserved for them till the period of five years fixed by this Court in the case of India Sawhney (supra) expires. But whether such appointees/promotes can claim promotion against general category posts in the higher grade, on basis of their seniority in the lower grade having been achieved because of the accelerated promotion or appointment by applying the roster. 8. In R.K. Sabharwal's case, this Court has treated the members of the Scheduled Castes and Backward Classes in two categories i.e. those who are appointed or promoted having competed with general category candidates on merit and those who are appointed/promoted on basis of reservation and roster. For those who have competed on merit it has been held that their number is not to be taken into consideration while working out the percentage of reservation. In respect of those members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. 11. It has been further said: In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category. 12. It was also said: It is true that this case presents a rather poignant turn of events. Of the thirty three candidates being considered for eleven vacancies, all are Scheduled Castes/Scheduled Tribes candidates. Not a single candidate among them belongs to general category. The learned Counsel for the respondent is justified in complaining that appellants have failed to explain how such a situation has come about. Not only the juniors are stealing a march over their seniors but the march is so rapid that not only erstwhile compatriots are left far behind but even the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Classes has got accelerated promotion to a higher grade and is to be considered for further promotion to still higher grade against general category posts. The accelerated promotions are to be made only against the posts reserved or roster prescribed. There is no question of that benefit being available when a member of Scheduled Castes or Backward Classes claims promotion against general category posts in the higher grade. It need hardly be pointed out that such candidates who are members of the Scheduled Castes or Backward Classes and have got promotion on basis of reservation and application of roster before their seniors in the lower grade belonging to general category, in this process have not superseded them, because there was no inter se comparison of merit between them. As such when such seniors who belong to general category, are promoted later it cannot be said that they have been superseded by such members of Scheduled Castes or Backward Class who have been promoted earlier. While considering them for further promotion against general category posts if the only fact that they have been promoted earlier being members of Scheduled Castes or Backward Class is taken into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inction can be made thereafter with reference to their birth-mark , as one of the learned Judges of this Court has said in another connection. They are expected to operate on equal footing with others. Crutches cannot be provided throughout one's career. That would not be in the interest of efficiency of administration nor in the larger interest of the nation. It is wrong to think that by holding so, we are confining the backward class of citizens to the lowest cadres. It is well- known that direct recruitment takes place at several higher levels of administration and not merely at the level of Class IV and Class III. Direct recruitment is provided even at the level of All India Services. Direct recruitment is provided at the level of District Judges, to give an example nearer home. It may also be noted that during the debates in the Constituent assembly, one referred to reservation in promotion; it does not appear to have been within their contemplation. 15. It cannot be disputed that the first promotion to such candidates was given without judging him on principle either seniority-cum-merit or merit-cum-seniority in the lower grade. It was given by applying principle of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete with the promotion of the reserved category candidate at Sl. No. 2 against one of the three posts. So out of the three posts in grade 'A' two shall be filled up by reserved category candidates beyond the limit of reservation and without any roster being available. In this process the merit of the reserved category candidate at SI. No. 6 has not been considered. It need not be pointed out that but for principle of reservation and roster, he could not have been promoted earlier than candidates at Sl. Nos. 1, 3 and 4 in grade 'C. In this background, can it not be said that he has been promoted to the second post in grade A because he is a member of Scheduled Caste, although the post was to be filled up from amongst general category candidates? 16. The Constitution Bench in R.K. Sabharwal has said in clear and unambiguous terms that after the quota is over and roster points are full, then the running account of roster shall stop and there is no question of promoting beyond the posts which had been reserved. In the said judgment it has been said in respect of members of Scheduled Castes that if they are appointed/promoted on their own merit, then such candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of Articles 14 and 16 of the Constitution. 19. On behalf of the respondents, a stand was also taken that in view of the Constitution Bench Judgment in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. [1990]2SCR900 , the date of entry in the service determines the seniority of the officer concerned. As the reserved category candidates in the aforesaid illustration had been promoted from grade 'C to grade 'B' before the general category candidates who were senior to them in the lower grade 'C', the seniority of the reserved category candidates is fixed and determined with reference to the dates of promotion in grade 'B' and they shall rank senior to the general category candidates who were promoted later although they were senior to them in the grade 'C. This Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. (supra) was not considering the question of inter se seniority of categories, who have been promoted on basis of reservation and roster and those who have been promoted from lower grade to higher grade on consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be in the larger interest of the society. It has been pointed out in the case of Indra Sawhney (supra) that reservation in promotions at various stages has resulted in considerable discontentment because many senior persons inspite of their efficiency and dedicated work find themselves superseded by their juniors belonging to the Scheduled Castes or Tribes for that reason alone. In many cases seniors to their horror find themselves made junior to even those who actually worked as their subordinates due to this factor alone. All concerned who are involved and interested in the uplift and growth of the nation have to work out a system by which the injustice done to a section of people in our society at certain period of history can be F rectified by providing protections to their descendants, but we have to be conscious, at the same time that the efficiency of the administration of the country is not harmed and there is no reverse discrimination. Promotion is an important incident of service. It covers both advancement between grades within the same class and between different classes. Seniority in service is one of the important factors in making promotion. Even where process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis-a-vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to candidate belonging to the scheduled caste/tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for scheduled caste/tribe candidate in still higher grade then such candidate belonging to scheduled caste/tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority cum merit or merit cum seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered in service on basis of reservation and roster but have excluded the general category candidates from being promoted to be posts r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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