TMI Blog1999 (9) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... uja and Ors. v. State of Punjab) [1996] 2 SCC 215 (hereinafter referred to as Ajit Singh in this judgment). The matter concerns a dispute relating to seniority of reserved candidates and general candidates. 2. 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. 3. 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 v. Virpal Singh [1993] 6 SCC 685 and Ajit Singh Januja v. 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 v. State of Haryana AIR1997SC2366 against the general candidates, is to be accepted. How these IAs 1-3 came to be filed for clari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates 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. 7. 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 prompted 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. 8. At that point of time, another three Judge Bench came to decide a case from the State of Haryana in Jagdish lal v. State of Haryana AIR1997SC2366 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. 12. 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir 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. Articles 16(1), 16(4) and 16(4A): 16. 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. 17. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in particular fundamental rights of citizens, it is well to bear in mind certain fundamental concepts. In McCulloch v. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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: 30. 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. 31. We may in this connection point out that the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding 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: 34. 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 v. K.S. Jagannathan [1986]2SCR17 and also on Julius v. Lord Bishop which case was followed by this Court in Commissioner of Police v. Gordhandas Bhanji [1952]1SCR135 . We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran v. Union of India (1968)IILLJ407SC 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 Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions, 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 v. 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 16 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch 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 16 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. 40. Krishna Iyer, J. also cautioned in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981)ILLJ209SC 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 v. State of Jammu and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide-stepping several general candidates. That is the effect of the roster point promotion. 44. 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 Contindo v. Collector of Customs (1967)ILLJ749SC 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 v. State of Punjab. (iii) Seniority of roster promotees: 45. 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. 46. 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 and Haryana High Court in Jaswant Singh v. Secretary to Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 I on the basis of seniority alone. Rule 9 speaks of seniority from the date of continuous officiation. 51. 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 the 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. 52. It is clear, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 Articles 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 candidates are 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)IILLJ154SC . 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. 56. That, in our view, is the correct approach for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuous officiation . The Court held in Jagdish Lal 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 I 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 date 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. 60. The Court in Jagdish Lal delinked Rule 11 from the recruitment rules and applied the same to the roster promotees. For the reasons given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot make the rule retrospective. Syed Khalid Rizvi v. 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 v. Union of India AIR1996SC3534 to which one of us (G.B. Pattanaik, J. was a 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 v. Union of India (1995)IIILLJ287SC . That was a case where ad hoc recruits were regularised subsequently and were placed below regular recruits. It was held that their past ad hoc 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 and Sabharwal do not lay down correct law: 62. We may state that there are various other o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65. It is argued by the reserved candidates that Virpul 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.I, panels were required to be prepared at each level. 66. 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 fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . no doubt stated in Virpal See AIR1996SC448 as follows: In short, it is open to the State, if it is so advised .... It is permissible for the State to do so. 68. 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)IILLJ154SC 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 16 of the Constitution. 69. 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 73. Learned senior coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the law laid down in the General Manager, Southern Railway v. Rangachari (1970)IILLJ289SC 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 Caste candidates - which would be 100% and 71% (the ' posts being only 156 under each source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold that Virpal and Ajit Singh have been correctly decided and that Jagdish Lal is not correctly decided. Points 1 and 2 are decided accordingly. Point 3: 81. 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: 82. Now, as stated earlier, the counsel for the general candidates argued for acceptance of two catch-up rules. Extreme 'catch-up' rule: 83. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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: 87. 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled, 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 Sabharwal 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 Sabharwal 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: 91. To the extent of saving the reversions of those from reserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reserved candidates moved upto Level 4. The general candidate has to be treated as senior at Level 3. 95. 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 v. State of Haryana : (1997)10SCC47 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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