2. The background facts leading to the present appeals and cross objection
i. That the ceiling limit of 22% reservation for SC category candidates
prescribed under Section 5 of the West Bengal Schedule Castes
and Schedule Tribes (Reservation of Vacancies in Services and
Posts) Act, 1976 (in short 'the 1976 Act') had been breached.
2025:CHC-OS:259-DB
ii. That three SC candidates were already occupying posts of Deputy
Chief Engineer (Civil), out of a cadre strength of 19, permitting
promotion of only one more SC candidate in the normal course.
Promotion of five SC candidates would result in SC candidate
representation increasing to 26.31%, breaching the statutory limit.
iii. That even after accounting for a carry-forward vacancy as
submitted by the KMC, the appointment of six SC candidates still
violated the 22% ceiling limit prescribed by law. The appointments
of Ujjwal Kumar Sarkar and Sanjoy Kumar Mondal (Respondent
nos. 5 and 6) as UR candidates were illegal, as they were promoted
merely on the basis of seniority, without any merit-based
assessment, contrary to the rules of promotion.
iv. That the vires of Rule 10(d) of the Rules framed under the 1976 Act
was bad in law. Rule 10(d) permits appointment of an SC
candidate against an ST vacancy and vice versa, in case of
unavailability of the respective category candidate. The Petitioners
prayed for the said Rule to be struck down, and the promotion
granted to Respondent no. 10, Swapan Karmakar, on conversion of
an ST post into an SC post, be cancelled.
v. Lastly, the promotion granted to two SC candidates, Durjoy Sarkar
and Uday Ranjan Saha, (Respondent Nos. 8 and 9) were against
the 18th and 21st vacancies in the 50-point roster, both reserved
2025:CHC-OS:259-DB
for SC candidates. As per the 22% ceiling limit, only one SC
candidate could be accommodated at the relevant stage. The writ
Petitioners alleged these promotions to be contrary to the ceiling
limit prescribed in the Act, and further upheld by the Hon'ble SC
in R. S. Garg vs State of U.P. and Ors.1. Upon hearing the
parties, the Hon'ble Single Bench passed the impugned judgment
and order as aforesaid.
OBSERVATION OF THE SINGLE BENCH:
3. The Single Bench, while examining the challenge to the KMC's office order
dated 3rd March, 2021, promoting 6 scheduled caste candidates to the
post of Deputy Chief Engineer (Civil), held that even though the
reservation framework and Rule 10(d), permitting interchangeability
between SC and ST vacancies were valid, KMC had erred in applying the
roster and acted contrary to statutory requirement and constitutional
principles in a way that allowed individual promotions. The Court also
held that the two SC officers were wrongly accommodated against
unreserved vacancies without undergoing the merit-based assessment,
mandated under Rule 10(b), and that the 18th, 21st, and 24th roster
points were improperly manipulated to benefit certain junior SC officers,
resulting in excessive reservation and unjust supersession of eligible
general category candidates.
(2006) 6 SCC 430
2025:CHC-OS:259-DB
4. It was further observed that seniority lists had attained finality and that
the catch-up rule must operate to protect the legitimate expectations of
senior officers, who were appointed on merits. In this regard, the Court
held the promotions of Uday and Swapan to be illegal, and directed, that
while they may continue only in supernumerary posts, the posts
themselves shall stand abolished upon their retirement or further
promotion. Simultaneously, the Court set aside the promotions of Ujjwal,
Utpal, and Durjay to the post of Director General (Civil), clarifying that
they would be treated merely as officiating appointees, and mandated a
fresh selection process in which all eligible officers--both unreserved and
reserved--must be considered together since the post carries no
reservation.
5. The Court also directed that Subhasish and Santanu, belonging to the
general category, be accorded notional promotion from the date their
juniors were elevated, with full restoration of seniority and monetary
benefits, and that the remaining petitioners' seniority be corrected.
6. The Court further held that the seniority of Petitioner numbers 1, 4 to 8,
who have already been promoted to the post of Deputy Chief Engineer
(Civil), by virtue of being senior to Uday and Swapan (retired), must be
restored in the cadre of Deputy Chief Engineer (Civil) by applying the
catch-up rule. Necessary steps were directed to be taken forthwith.
2025:CHC-OS:259-DB
7. With regard to petitioner numbers 9, 10 and 11, the Court held that they
are entitled to be promoted to the post of Deputy Chief Engineer (Civil). As
and when a vacancy arises, they shall be entitled to regain seniority over
those SC candidates who were promoted earlier, but were junior to them
and not entitled to be appointed.
8. Finally, while dismissing the challenge to the validity of Rule 10(d), the
Court issued comprehensive directions to reconstitute the promotion and
selection processes so that the cadre structure and seniority position
within the engineering wing of KMC reflect both statutory reservation
norms and constitutional requirements of fairness, merit, and equality.
SUBMISSIONS ON BEHALF OF KMC/APPELLANT IN APO 86 OF 2025:
9. Mr. Bhattacharya, learned Sr. Advocate appearing for KMC contended
that the learned Single Bench erred in holding that Petitioner nos. 2 and 3
ought to have been promoted against two unreserved posts allegedly
illegally filled by Ujjwal Sarkar and Sanjay Kumar Mondal. It was argued
that the learned Judge failed to appreciate Rule 10(b), wherein the said
candidates were fully eligible for promotion based on the gradation list
finally published.
10. It was next submitted that the learned Single Bench wrongly directed the
post, held by Uday Ranjan Saha and Swapan Karmakar, in the cadre of
Deputy Chief Engineer (C) of KMC, be treated as supernumerary and
stand abolished upon their retirement or further promotion. It was argued
2025:CHC-OS:259-DB
that the Single Bench failed to appropriately apply the provisions of the
1976 Act, the 50-point roster, and the gradation list; hence, the prayer for
the impugned order to be set aside and/or cancelled and/or quashed.
11. It was further submitted that the learned Single Bench erred in setting
aside the ad-hoc promotions to the post of Director General (Civil) granted
to Ujjwal Sarkar, Utpal Mistry and Durjay Sarkar for six months or until
regularization, subject to the recommendation of the selection committee.
Such cancellation was arbitrary and contrary to the statutory recruitment
scheme.
12. Learned senior counsel for the KMC strenuously argued that the
reservation under the 1976 Act is based on vacancy and not on cadre. By
virtue of Section 5 of the 1976 Act, 22% reservation for SC candidates is
to be applied to the 50-point roster, which may consequently result in
vacancies arising due to the carry-forward rule or conversion of ST
vacancy. By the order dated March 3, 2021, which has been challenged
before this court, 10 Executive Engineers (Civil) were promoted to the post
of Deputy Chief Engineer (Civil), out of which six vacancies were filled by
SC candidates, whereas four posts were filled by general category
candidates. The question whether the ten vacancies which had arisen out
of the sanctioned post of 19 could be filled up by six Executive Engineers
(Civil) in the SC category and four in the general category, could be
answered by referring to the vacancy in the roster number. As per the
2025:CHC-OS:259-DB
roster, the 15th vacancy was to be filled by an SC candidate. At the
material point in time (earlier promotional drive), no SC candidate was
available within the zone of consideration. The vacancy was filled by a UR
candidate. The 16th vacancy, although unreserved, was treated as a carry-
forward SC vacancy as no SC candidate had been available earlier for the
15th vacancy. It was contended that the promotions were strictly in
conformity with Rule 10(a) of the Reservation Rules and the 50-point
roster was to be filled by an SC candidate. This unreserved post was thus,
filled up by the carried forward SC. As there were ten vacancies for the
post of Deputy Chief Engineer (Civil), 50 candidates were considered in
the ratio of 1:5 as per Rule 10 (a) of the Reservation Rules of 1976. The
vacancies were required to be filled up from the 16 th point to the 25th
point of the 50-point roster.
13. As per the roster, the vacancy positions were to be filled up by the
reserved and unreserved categories in the manner that, 16 th vacancy =
unreserved (carry forward Schedule caste); 17 th vacancy = unreserved,
18th vacancy = scheduled caste; 19th vacancy = unreserved; 20th vacancy =
unreserved; 21st vacancy = scheduled caste; 22nd vacancy = unreserved;
23rd vacancy = unreserved; 24th vacancy = scheduled tribe and 25th
vacancy = unreserved. Therefore, as per the roster of vacancies from the
16th to the 25th points, there were two vacancies to be filled up by the SC
candidate, one by the ST candidate, and the remaining vacancies were to
2025:CHC-OS:259-DB
be filled by unreserved candidates. Having due regard to the relevant
provisions of the reservation rules as amended, the available vacancies
were filled in the instant case by appointing six SC candidates. The 16 th
point vacancy was for an unreserved candidate but was treated as a
carried-forward (SC) vacancy.
SUBMISSION ON BEHALF OF APPELLANTS IN APOT 187 OF 2025:
14. Mr Mitra, the learned Senior Counsel appearing on behalf of the
appellants/respondent nos. 5 to 10, adopted most of the arguments and
submissions made on behalf of the KMC and further added that SC
candidates were promoted to the unreserved category posts on the basis
of merit-cum-seniority. Their performance was duly considered while
according promotion. The Gradation list prepared and published by the
KMC has never been challenged by the writ petitioners. While promoting
the SC and General category posts, the KMC has rightly followed the rules
of promotion. However, learned counsel contends that the Single Judge
erred in holding that the promotion of Ujjwal Kumar Sarkar and Sanjoy
Kumar Mondal (Respondent nos. 5 and 6) was illegal.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 1-6, 8-11 IN
APO 86 OF 2025/ CROSS-OBJECTORS:
15. Learned counsel representing the cross- objectors/respondent nos. 1 to 6,
8 to 11 vehemently opposes the prayer of the learned senior counsels for
the appellants of both appeals and support the impugned judgment
2025:CHC-OS:259-DB
passed by the Hon'ble Single Judge, wherein the office order dated 3 rd
March, 2021, passed by the Chief Manager (Personnel) was rightly
interfered with.
16. It was further argued that an SC/ST candidate can be accommodated in
an unreserved vacancy only based on merit and not otherwise. In the case
of the appellants/petitioners and/or the Respondents, admittedly, the
only merit assessment undertaken by KMC was at the stage of their initial
recruitment as Asst. Engineers (Civil). The merit list at that time
published by KMC, clearly demonstrates that Respondent nos. 5 and 6,
promoted as UR candidates, were not entitled to such consideration. Their
promotion, therefore, was illegal.
17. The writ petitioners/respondents herein have filed a cross-objection
against the judgment and order passed by the learned Single Judge, only
on the issue as to whether the learned Single Judge erred in granting
promotion and seniority to certain SC candidates by counting fortuitous
appointments against reserved vacancies, thereby exceeding the
prescribed roster and ignoring the seniority rules. It was further
contended that while the learned Single correctly appreciated the
Reservation Act and the Rules thereinunder, as well as the roster
mechanism, it erred in directing that the posts held by Uday Ranjan Saha
and Swapan Karmakar be treated as supernumerary and they shall
continue to hold the post till their retirement or promotion to the next
2025:CHC-OS:259-DB
higher post and, thereafter, those posts shall stand abolished. It is
submitted that the aforesaid specific direction was unwarranted in the
facts of the case. However, the remainder of the judgment required no
interference. It is denied that the Learned judge failed to appreciate the
reservation laws and/or the 50-point roster. Accordingly impugned order
is required to be modified.
18. It was further submitted that the Learned Judge rightly held that the
catch-up rule continues to apply to KMC. Ujjwal Sarkar, Utpal Mistry and
Durjay Sarkar have been promoted to the post of Director General (Civil)
on an ad hoc basis during the pendency of the writ petition for six months
or until regularization. The Learned Judge rightly interpreted the
provisions of law, the catch-up rule and the 50-point roster, and declared
the seniority of the persons belonging to SCs and STs on promotion
against roster points to be ultra vires Articles 14 and 16 of the
Constitution of India. A resolution of the Appellant Corporation dated
13.10.2012 implementing 85th amendment of the Constitution by the
grant of promotion to SC candidates against vacancies reserved for them
with consequential seniority by way of amendment of existing regulations
of KMC was sent to the State government on 17.10.2012 for its approval
but the same has not been approved by the State Government, till date, as
required under Section 604 of the KMC Act, 1980, promotion against
roster vacancies reserved for S.C candidates cannot be given to them with
2025:CHC-OS:259-DB
consequential seniority, and accordingly, Catch up Rule has to be
implemented in KMC. As such, the respondents have filed cross-
objections against the judgment and order.
19. It was further submitted that during the pendency of the writ petition, the
Respondents nos. 13, 15 and 16 were promoted to the post of Director
General on ad hoc basis by an order issued by the Chief Manager
(Personnel) dated 02.08.2024. Since such promotions were given to them
to the post of Director General, which is a selection post, without
considering the candidatures of two candidates from the unreserved
category (Respondents nos. 2 and 3), who were illegally denied promotion
to the feeder post of Deputy Chief Engineer (Civil), by promoting two SC
candidates, the Ld. Judge rightly cancelled such promotion by moulding
reliefs, which was very much permissible in view of the order dated
16.03.2021 passed in the writ petition. Therefore, the actions of the
Respondent KMC are totally illegal, while Sukanta Das, Kamal Sarkar,
Ujjwal Kumar Sarkar, Durjoy Sarkar and Utpal Mistry are occupying five,
out of a total of eleven posts of Director General, though a selection post,
throwing the Constitutional provision of Article 335 to the wind.
Pertinently, Respondents nos. 13, 15 and 16 are holding on to such posts
even today notwithstanding the direction contained in the impugned order
dated 20.11.2024, although the said order has not been stayed.
2025:CHC-OS:259-DB
20. It was finally submitted that the Single bench has thoroughly discussed
the judgment of the Supreme Court, specifically R. K. Sabharwal v.
State of Punjab2, but the same does not apply in the present case.
21. In support of his contention that a Scheduled Caste candidate cannot be
accommodated against general caste vacancies unless the promotion is
merit-based, reliance was placed on the following cases: -
i. Indra Sawhney and Ors. v. Union of India and Ors.3 particularly
in paragraph no. 811;
ii. Ajit Singh Januja and Ors. v. State of Punjab and Ors. 4
particularly in paragraph no. 9;
iii. Ajit Singh and Ors. (II) v. State of Punjab and Ors. 5 particularly in
paragraph nos. 31 to 35;
iv. K. Manorama v. Union of India represented by General Manager
Southern Railway and Ors.6 particularly in paragraph no. 17.
22. In support of his contention that catch-up rule will apply in the absence
of legislation by State, reliance is placed in the case of B.K. Pavitra and
Ors. v. Union of India and Ors.7 particularly in paragraph nos. 16, 21,
28 and 29 and Municipal Commissioner, KMC and Ors. v. Tapan
Kumar Paul and Ors.8 particularly in paragraph no. 25.
(1995) 2 SCC 745
1992 Supp (3) SCC 217
(1996) 2 SCC 715
(1999) 7 SCC 209;
(2010) 10 SCC 323;
(2017) 4 SCC 620;
2019 SCC OnLine Cal 2370.
2025:CHC-OS:259-DB
FINDINGS AND ANALYSIS OF THIS COURT
23. We have heard the arguments and submissions of the learned counsels
for the respective parties, and upon perusal of the record, this Court finds
that the writ petition being no. 133 of 2021 was filed by the petitioner nos.
1-6 and 8-11/cross-objectors to challenge the promotions of the
respondent nos. 5-10 in the post of Deputy Chief Engineer (Civil) in
Kolkata Municipal Corporation without maintaining the actual provisions
as stipulated in the 50-point roster, as well as promotion to the post of
Director General (Civil), without following the catch up rule.
24. Before entering into the merits of the case, this Court would like to refer
to the relevant provisions applicable to promotions of the employees of
Kolkata Municipal Corporation for ready reference and for the purpose of
proper and effective disposal of this case.
25. Section 5 of the West Bengal Scheduled Castes and Scheduled Tribes
(Reservation or vacancies in Services and posts) Act, 1976, read as
follows: -
"Reservation for members or the Scheduled Castes and the Scheduled
Tribes in vacancies to be filled up by promotion in any establishment shall
be regulated in the following manner, namely: -
(a) ill ere shall be reservation at [twenty-two per cent.] for
members of the Scheduled Castes and- [six per cent.] for
members of the - "[Scheduled Tribes in the manner Setout in
Schedule II:]
Provided that the State Government may, from time to time,
by notification in the Official Gazette, increase the percentage so,
2025:CHC-OS:259-DB
however, that the reservation shall not exceed twenty-five per
cent, in the case of Scheduled Castes and ten per cent on the
case of Scheduled Tribes;
Provided further that the number of any Scheduled Caste or
Scheduled Tribe employee appointed on promotion to any
unreserved vacancy in a service or post in any establishment to
be filled up by promotion shall not be deducted from the quota
reserved in such service or post for the members of the
Scheduled Castes or the Scheduled Tribes under this section.
(b) There shall be no reservation in any post carrying the grade
pay exceeding Rs. 8,700,
(c) A separate fifty-point roster shall be maintained by every
establishment in the manner set out in the Schedule."
26. Rule 10(b) of the said Rules of 1976 provides that even a candidate from
SC or ST who has obtained promotion on the basis of merit with due
regard to the seniority, his promotion should be made against UR vacancy
and the reserved vacancy should be filled by candidates from remaining
SC or ST category, irrespective of merit, from those who were within the
normal zone of consideration and fit for promotion.
27. At the same time, Rule 10(d) of the said Rules of 1976 provides that an SC
employee may also be considered for appointment against a vacancy
reserved for STs or vice versa, where the appropriate reserved vacancies
could not be filled by SC or ST candidates, as the case may be.
28. The aforesaid provision reveals the promotion of employees in accordance
with the 50-point roster under Section 5 (Schedule II) of the West Bengal
SC and ST (Reservation of Vacancies in Services and Posts) Act, 1976, to
2025:CHC-OS:259-DB
the extent that 22% of the vacancies are reserved for SC candidates, 6 %
for ST, and the rest are for UR. With the introduction of the 50-point
roster, the concept of a post or vacancy-based reservation roster, where
specific slots are allocated to candidates belonging to the SC/ST/UR
category, had to be maintained while promoting employees. Thus, the
reservation for SC candidates is confined to 22% of the rostered
vacancies, irrespective of the cadre strength.
29. Section 5(c) of the 1976 Act makes it incumbent on KMC to maintain a
50-point roster in the manner specified in Schedule II of the 1976 Act in
promotional posts.
30. The roster must be permitted to operate till the 50th post in the cadre is
filled up. Once the roster cycle reaches the 50th point, subsequent
vacancy arising in the cadre must be filled by a candidate belonging to the
same category as that of the incumbent whose retirement, promotion,
resignation or death caused the vacancy.
31. Schedule II (iv) of the 1976 Act further provides that the roster is to be
implemented as a "running account" from year to year. Every Government
establishment must maintain a 50-point register for promotional posts to
know the actual vacancy and the starting roster point. The purpose of a
running account is to ensure that the SC/ST candidates secure the
appropriate percentage of reservation earmarked for them. Under the
running account concept, promotion to the cadre is to be given while
2025:CHC-OS:259-DB
maintaining the roster. When the operation of the roster fills the 50th
vacancy in a cadre, the result envisaged by the 1976 Act is achieved.
32. It is an admitted fact that there were 19 posts in the cadre of Deputy Chief
Engineer (Civil) in KMC. Therefore, in accordance with the 50-point roster,
a maximum of four posts could be reserved for the SC candidates. Since
the present dispute is with regard to the SC and UR categories, this Court
is concerned only with adherence to the 22% SC reservation. Learned
counsel for the KMC disputed the fact that the reservation was vacancy-
based and not cadre-based. The percentage of reservations applied to
vacancies arising at any given point is distinct from the number of
incumbents already occupying positions in the cadre due to carry-forward
circumstances or by conversion of ST to SC.
33. The writ petitioners had challenged the order dated 3 rd March, 2021
whereby 10 Executive Engineers (Civil) were promoted to the post of
Deputy Chief Engineer (Civil). Out of these ten vacancies, six were filled by
SC candidates, and four were filled by UR candidates. The question that
arises here is whether such distribution in reservation to fill vacancies is
consistent with the 50-point roster, particularly from a limited cadre of 19
posts. Therefore, such questions need to be answered whether the 10
vacancies that had arisen out of sanctioned posts of 19 could be filled up
by six Executive Engineers (Civil) in SC category and four in UR category
by referring to the vacancy in the roster principle.
2025:CHC-OS:259-DB
34. At the material point of time, vacancies in the roster corresponded with
the 16th vacancy to the 25th vacancy of the 50-point roster, so the starting
point would be the 16th point and the ending point would be the 25th point
of the 50-point roster. According to the 50-point roster, 16 th vacancy =
unreserved (carry forward Schedule caste from 15th vacancy) the said
point was provisionally filled by an employee belonging to the UR category;
17th vacancy = unreserved, 18th vacancy = scheduled caste; 19th vacancy =
unreserved; 20th vacancy = unreserved; 21st vacancy = scheduled caste;
22nd vacancy = unreserved; 23rd vacancy = unreserved; 24th vacancy =
scheduled tribe and 25th vacancy = unreserved.
35. Therefore, between the 16th and the 25th points, there were only two
vacancies that were to be filled by SC candidates, only one by an ST
candidate, and the remaining vacancies were to be filled by the
unreserved candidates. The 24th point was reserved for an ST candidate,
due to unavailability of ST candidate within the zone of consideration i.e.
converted to SC category candidate in view of the Rule 10(c) of the
Reservation Rules, 1976 which provides that in the absence of qualified
SC or ST candidates for a particular vacancy, the reserved vacancy should
be carried forward till the next reserved vacancy occurred in the 50 point
roster but not beyond that point.
36. The KMC has maintained a combined gradation list for both the
reservations in the UR category of employees. No separate gradation list
2025:CHC-OS:259-DB
was maintained in a particular cadre. Each category of employees had a
category-wise gradation. Such gradation list has not been challenged by
any of the employees, since the said gradation list was prepared and
published in accordance with the applicable statutory service rules and
settled administrative practice.
37. According to the submissions advanced by the learned counsel for the
KMC, at no stage were the vacancies in the post of Deputy Chief Engineer
(Civil) ever filled by the Reserved Category employees in excess of the
quota prescribed in the 50-point roster.
38. It further appears that currently there is no provision for a "catch-up rule"
in the rules and regulations governing the KMC. In the absence of such a
provision, the petitioners cannot claim the benefit of any catch-up
mechanism merely because employees belonging to the Reserved Category
were promoted without applying such a rule, as contested by the learned
counsel for KMC.
39. That being the position, the petitioners did not have any scope to avail the
catch-up rule when the employees in the reserved category were promoted
without complying with the catch-up rule, as per the contention of the
learned counsel representing the Municipality. However, the promotion to
the next higher post i.e. Director General (Civil), does not require any
reservation. The promotion to such posts must be according to the merit
list prepared at the time of selection to the cadre post. Experience for a
2025:CHC-OS:259-DB
certain number of years in the position of Deputy Chief Engineer (Civil) is
also essential for promotion to such post. Such promotion arises when
candidates occupy a higher-level post from its feeder grade or feeder
category at entry-level. Employees in a feeder post are eligible for
promotion to a higher post if they meet the required qualifications and are
considered suitable, often through the departmental promotional
committee.
40. Moreover, the post in question does not attract reservations in promotion,
and advancement to a higher cadre is required to be made strictly on the
basis of merit, as determined at the time of initial selection to the cadre
post. Promotion in the hierarchy arises when an employee moves from a
feeder grade to a higher level, provided that the candidate meets the
prescribed eligibility criteria. According to the current structure, Executive
Engineer (Civil) constitutes the feeder post. All the eligible officers from
this cadre are to be considered for promotion based on merit cum
seniority as per the applicable rules.
41. It appears from the records that 10 posts in the common cadre of Deputy
Chief Engineer (Civil) were lying vacant. These vacancies were to be filled
by way of promotion from the feeder post of Executive Engineer (Civil).
Those posts were sought to be filled by promotion from amongst the
Executive Engineer (Civil).
2025:CHC-OS:259-DB
42. It is revealed from the records that the last promotion to the cadre was
made against roster point no.15, which is a point reserved for an SC
candidate. However, due to the unavailability of an eligible SC candidate,
the said point was provisionally filled by an employee belonging to the UR
category. As per Rule 10(c) of the 1976 Rules reservation against the 15 th
vacancy has to be carried forward to the 16 th Vacancy.
43. It is also important to note that the roster at Schedule II of the 1978 Act is
post-based, and not vacancy-based. Following the 50-point roster,
including clause (iv) of Schedule II of the 1978 Act, read with Rule 10 (c)
of the 1978 Rules, the next ten vacancies must be filled up in the
following manner: -
"16th vacancy- Unreserved (Reserved for Schedule Caste under carry
forward rule)
17th vacancy = unreserved,
18th vacancy = scheduled caste;
19th vacancy = unreserved;
20th vacancy = unreserved;
21st vacancy = scheduled caste;
22nd vacancy = unreserved;
23rd vacancy = unreserved;
24th vacancy = scheduled tribe and
25th vacancy = unreserved
However, if no qualified Scheduled Caste employee is available for
promotion to the post reserved for Scheduled Castes, such post may
be filled up by Scheduled Tribe employee and vice versa. For non-
availability of reserved category candidate, the carry forward rule to
2025:CHC-OS:259-DB
the extent permitted under Rule 10 (c) of the 1976 Rules should be
applied.
Reservation 22% and 6% respectively for the Scheduled Castes and
Scheduled Tribes employees can be maintained if the 50-point roster
is followed. Many reserved category employees are presently
occupying the said post is irrelevant.
44. Having examined the statutory framework governing reservation in
promotional posts, this Court is now required to determine whether the
impugned promotions in the cadre of Deputy Chief Engineer (Civil) were
made in accordance with the 50-point roster prescribed under the 1976
Act.
45. It is well settled that in matters of reservation in promotion, the post-
based roster system must be followed. The Hon'ble Supreme Court, in the
case of R.K. Sabharwal (Supra), has held that reservation has to be
determined with reference to the number of posts in the cadre, and not
with reference to the vacancies arising from time to time, a principle now
firmly deep-rooted in-service jurisprudence.
46. It was further held in the said case that once the prescribed quota of
reserved posts in a cadre is filled, no further reservation can be made
until such reserved posts fall vacant by retirement or other modes of
cessation.
47. It is also duly noted that in the absence of catch-up rule in the service
regulations of the KMC, employees of the reserved category who have been
validly promoted under the roster cannot be placed below their general
2025:CHC-OS:259-DB
category counterparts merely because the latter obtained a promotion
later. In B.K. Pavitra (Supra), the Supreme Court upheld the validity of
consequential seniority given to reserved category promotees in the
absence of catch-up rule. The said decision has also been relied upon by
the cross-objectors as well as the Single Bench.
48. The doctrine of catch-up rule has been judicially evolved to balance the
equality mandate under Art. 14 and 16(1) of the Constitution with the
enabling provisions of reservation in promotion under Art. 16(4) and
16(4A). This principle postulates that accelerated promotion granted to a
junior belonging to a reserved category does not automatically confer
accelerated seniority over a senior belonging to the general category,
unless consequential seniority is validly provided by law.
49. Applying the aforesaid principles to the present case, it is undisputed that
although the KMC passed a resolution seeking to implement
consequential seniority pursuant to the 85th amendment, the same has
admittedly not received approval of the State Government. In the absence
of such approval, no statutory force can be attached to the said
resolution. Therefore, the learned Single Judge rightly held that the catch-
up rule continues to govern promotions within the KMC.
50. Since the catch-up rule is applicable, officers in the reserved categories,
though entitled to promotion against roster vacancies, cannot claim
seniority over their seniors in the feeder list, who were appointed on merit.
2025:CHC-OS:259-DB
Any such conferment of seniority would be ultra vires Article 14 and 16,
as repeatedly held by the Supreme Court.
51. Another settled principle that is equally fundamental is that a scheduled
caste/scheduled tribe candidate may be appointed or promoted against an
unreserved vacancy only on the basis of merit and not reservation. In the
case of R. K. Sabharwal (Supra), the Court held that reservations cannot
be extended to unreserved posts and that merit appointments do not
count against the reserved quota.
52. The same principle was reiterated in Jitendra Kumar Singh v. State of
Uttar Pradesh9, wherein the Hon'ble Supreme Court held that if a
reserved category candidate is promoted against an unreserved post, the
employer must demonstrate that such promotion was based purely on
merit, independent of reservation.
53. In the present case, despite repeated assertions that promotions were
made on "merit-cum-seniority," the Appellant/Corporation has failed to
place any material on record to substantiate such a claim that SC
category employees were accommodated in unreserved category. No
Departmental Promotion Committee proceedings, no comparative
evaluation, no grading or performance matrix, and no marks or
assessment criteria or ACR have been produced before this Court. Rather,
(2010) 3 SCC 119
2025:CHC-OS:259-DB
KMC admitted that there was no separate test as interview and no ACR
evaluation as there was no ACR maintained.
54. Significantly, the only merit assessment relied upon by the Corporation
pertains to the initial recruitment of the officers as Assistant Engineers.
Such an entry-level assessment, conducted decades earlier, cannot legally
or logically substitute a merit evaluation at the stage of promotion to the
post of Deputy Chief Engineer, which is a senior supervisory position
involving distinct responsibilities and higher administrative competence.
55. In the absence of any contemporaneous merit-based evaluation, the
promotion of reserved category officers against unreserved vacancies
ceases to be a case of merit promotion and becomes a colourable
extension of reservation, which is constitutionally impermissible. The
Supreme Court has consistently frowned upon such indirect reservation,
holding it to be violative of Articles 14 and 16.
56. Therefore, the learned Single Judge was fully justified in concluding that
the promotions in question were not supported by any demonstrable merit
assessment and that the catch-up rule necessarily applied. The
interference with the promotional exercise was thus a corrective measure
to restore the constitutional balance between reservation and equality of
opportunity.
57. The learned Single Bench has correctly applied the reservation framework
under the 1976 Act, the Rules and the roster mechanism, and has rightly
2025:CHC-OS:259-DB
held that promotion of reserved category officers against unreserved
vacancies, in the absence of any demonstrable merit-based assessment, is
legally unsustainable. The appellant-Corporation failed to place any
material to establish that such promotions were made on merit.
58. This Court also concurs with the finding that the catch-up rule should
apply to the engineering cadre of the Kolkata Municipal Corporation. In
the absence of State approval under Section 604 of the KMC Act, 1980, no
consequential seniority could have been conferred pursuant to the Eighty-
Fifth Constitutional Amendment, and seniority had to be restored in
accordance with settled constitutional principles.
59. The directions issued by the learned Single Judge, including the setting
aside of ad hoc promotions to the post of Director General (Civil) and the
grant of notional promotion and seniority to eligible officers, are
proportionate, corrective and well within the jurisdiction of the writ court.
60. The Single Judge has further rightly turned down the prayer of the cross
objectors seeking a declaration that Rule 10(d) of the West Bengal
Schedules Castes and Scheduled Tribes (Reservation or vacancies of
Services and posts) Rules,1976, providing for filling up of Scheduled
Tribes vacancies by Scheduled Castes Candidates and Vice versa in the
event of non-availability of ST/SC Candidates (as the case may be), is bad
2025:CHC-OS:259-DB
in law and ultra vires The cross-objectors have failed to assign satisfactory
reasons in support of such challenge.
61. This Court does not see the need to advert to the challenge to the vires of
Rule 10(d) in view of the clear powers conferred under article 16(4A) of the
Constitution.
62. In appellate jurisdiction, interference is unwarranted unless the impugned
judgment is shown to suffer from perversity or patent illegality. No such
ground is made out in the present case.
63. Accordingly, the appeals as well as cross objection fail. The judgment and
order dated 20th November 2024 passed by the Single Bench calls for no
interference and same is hereby affirmed.
64. Consequently, APO 86/2025, APOT/187/2025 and OCOT/5/2025
stand dismissed without order as to costs.
65. All connected pending applications are also, thus, disposed of.
66. Parties to act on the server copy of the Judgment, duly downloaded from
the official website of this Hon'ble High Court.
2025:CHC-OS:259-DB
67. Urgent photostat certified copy of this Judgment, if applied for, is to be
given as expeditiously to the parties on compliance of all legal formalities.
I Agree.
(Rajasekhar Mantha, J) (Ajay Kumar Gupta, J.)
