Delhi High Court
Braham Pal Singh & Ors. vs M.C.D. & Ors. on 21 December, 2012
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P (C) No. 16955-60/2004
% Judgment reserved on: 13th September, 2012
Judgment delivered on:21 December, 2012
BRAHAM PAL SINGH & ORS. ..... Petitioners
Through: Mr.Rajat Aneja, Advocate.
versus
M.C.D. & ORS. ..... Respondents
Through: Mr.Arun Birbal and
Mr. Paramhans, Advocates for Respondent
DDA.
Mr.Jagat Rana, Advocate for
Respondent No.2/ Delhi Urban
Shelter Improvement Board.
Mr. Ashim Vachar, Advocate for
Respondent No.4.
Mr. H. D. Birdi, Advocate for
Respondent No.5.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the instant petition petitioners are seeking the reliefs as
under: -
"i. Issue a Writ in the nature of Prohibition and / or any
other appropriate writ / order / direction of like nature
thereby restraining the respondents no. 1 to 3 from giving
promotion to the respondent no. 4 and anybody else from the
reserved category to the post of Assistant Engineer (Civil)
ii. Further issue a Writ in the nature of Mandamus and /
or any other appropriate writ / order / direction of like
nature thereby directing the respondents no. 1 and 2 to
adopt the Post-Based Roster for the purposes of promotion
formulated on 02.07.1997 by the Department of Personnel
and Training, Government of India under the directions of
Hon‟ble Supreme Court of India."
2. Brief facts of the case are that petitioners were appointed as JE
(Civil) from General Category on 10.01.1983 by the Office of the
Slum and J.J. Department, which was under the Delhi Development
Authority at that point of time. The petitioners are qualified Engineers
holding Diploma in Civil Engineering from the respective Universities.
3. In the year 1992, Office of the Slum and JJ Department was
transferred to Municipal Corporation of Delhi on as is where is basis
and thus the petitioners continued to work as JEs.
4. The Department of Personnel and Training, Government of
India vide O.M. No. 36012/2/96-Estt. (Res.) dated 02.07.1997 decided
that the existing 200-point, 40-point and 120-point Vacancy-Based
Rosters shall be replaced by Post-Based Rosters. Thus, all the
Departments were required to prepare respective Rosters based on the
principle elaborated in the aforesaid O.M. and illustrated by the Model
Rosters annexed to the O.M. as Annexure II, III and IV. Annexure III,
which is the Model Roster of reservation with reference to posts for the
purposes of promotion, is annexed as Annexure P-2 to the present Writ
Petition.
5. It is submitted by the petitioners that the promotions made after
1997 to the Post of AE in the Department specifically keeping in view
the backlog to be completed and in this respect the last promotions
carried out on 05.09.2002 which were 18 in number, 06 candidates
from the Reserved Category i.e. SC/ST whereas from the General
Category there were 12 promotions in total which means that it clearly
exceeded the reservation quota of 22.5% for the Reserved Category.
Even prior to that, i.e. on 06.08.1996 there were total promotions of 16
persons, out of which six persons belonged to Reserved Category and
10 persons from General Category.
6. Mr. Rajat Aneja, ld. Counsel appearing on behalf of the
petitioners has pointed out that the backlog had already been achieved
and prescribed percentage of reservation, i.e., 15% for SC and 7.5% for
ST had also been put in place. Therefore, any more promotion from
the Reserved Category would exceed the prescribed percentage of
22.5% and would thus be in violation of Post-Based Roster formulated
under the direction of the Apex Court. The copy of the Chart relating
to the promotion made in the Department with respect to the said Post
after 1996 is annexed as Annexure P-4, which is as under:
"The Addl. Commissioner (S&JJ) vide his order dated
04.09.2002 has been pleased to promote the following
Junior Engineers (C) to the post of Asst. Engineer (C) in the
pay scale of Rs.6,500-200-10,500/- purely on ad-hoc and
emergent basis with immediate effect:
S. NO. Name
1. Sh. Subodh Kumar Mittal.
2. Sh. Y.P. Burmee
3. Sh. Karan Lal Maurya (SC)
4. Sh. Avinash Kumar Ghai
5. Sh. Anil Kumar Chaddha
6. Sh. Rakesh Kumar
7. Sh. Anil Kumar (SC)
8. Sh. Bal Raj (ST)
9. Sh. Dev Anand Yadav
10. Sh. Suresh Kumar (SC)
11. Sh. P.S. Gulati
12. Sh. R.K. Narula
13. Sh. Ashok Kumar
14. Sh. D.K. Arora
15. Sh. Rajender Singh Dahiya
16. Sh. Naveen Gulati
17. Sh. Dori Lal (SC)
18. Sh. V.S. Fonia (ST)"
7. The petitioners, being aggrieved, made a representation on
04.10.2004 through their Association in the light of the fact that SC
Assistant Engineers were already in excess of 4 seats in respect of their
existing quota earmarked for the Scheduled Castes by the Government
of India, no further promotion could be given to the SC Categories as
proposed by them.
8. Counsel for the petitioners have further submitted that the
respondents did not reply to the representation of the petitioners and on
the contrary issued a letter dated 06.10.2004 fixing the date of review
DPC as 08.10.2004 at 4 PM in the Chamber of Chief Engineer,
Chairman of DPC. The said meeting notice also referred to some
recommendations by National Commission for Scheduled Caste.
9. Another representation made on 20.10.2004 reiterating the
earlier request was again sent to the respondents, however, the
respondents failed to accede to the legitimate request of the petitioners
and proceeded with the promotion process by conducting review DPC
in the near future.
10. Counsel for the petitioners has pointed out that DDA (Slum)
SC/ST Engineers Association (Regd.) filed a Writ Petition (C) No.
3126/1992 titled as DDA (Slum) SC/ST Engineers Association (Regd.)
and Ors. vs. DDA and Ors. In the said petition, Engineers Association
made the following prayers:
(i) That the act of non consideration of the petitioner 2 to
5 and other similarly placed persons in the Cadre of JE
(Civil) for promotion to the post of Assistant Engineer
(Civil) under Respondent no. 2 against the reserved post of
AE (Civil) for SC / ST Candidates by the respondents 1 & 2
is arbitrary, illegal, discriminatory and consequently further
declaration that the petitioners and other similarly placed
persons are entitled for being considered for promotion to
the posts of AE (Civil) under Respondent no. 2 against 14
posts reserved for SC / ST Category.
(ii) That the proposed act of the Respondent for de-
reserving the 14 Posts of A.E (Civil) or any other posts -
reserved for SC / ST Category of candidates is arbitrary,
discriminatory and illegal.
(iii) That act of Respondent 1 & 2 appointing the JE
(Civil) as AE (Civil) as on current basis and non grant of
pay based on equal pay for equal work and other
consequential relief.
(iv) Direction / order against all the respondents and in
particular 1 to 4 restraining them from de-reserving the 14
posts or any other posts for AE (Civil) arbitrarily and
without following the due procedure on the subject.
(v) Direction, order against respondent 1 & 2 directing
them to consider the plaintiffs and other similarly placed
JEs (Civil) for promotion to the 14 posts of AE (Civil)
against the reserved posts for SC / ST Category and further
directions to give them consequential benefits therefor
within the stipulated period by holding special D.P.C.
11. Ld. Counsel for the petitioners has submitted that respondents
have no power or authority to promote respondent no. 4 & 5 in the
light of the dictum laid down by the Apex Court in the case of R.K.
Sabharwal vs. State of Punjab (1995) 2 SCC 745 wherein it is held
that the reservation of jobs for the backward classes, i.e., SC / ST /
OBC should apply to the post and not to vacancies. It is further held
that the Vacancy-Based Roster can operate only till such time the
representation of persons belonging to the Reserved Category in a
cadre reaches a prescribed percentage of reservation. Therefore, the
Roster cannot operate and vacancies released by recruitment,
resignation, promotion etc. of the persons belonging to General and
Reserved Categories are to be filled up by appointment of the persons
from the Reserved Categories so that prescribed percentage of
reservation is maintained.
12. Pursuant to these observations, the Department of Personnel and
Training (DOP&T) vide O.M. dated 02.07.1997 decided that existing
200-point, 40-point and 120-point Vacancy-Based Roster shall be
replaced by the Post-Based Roster. Thus, all the Departments were
required to prepare their respective Rosters based on the principle
elaborated in the aforesaid O.M. and illustrated by the Model Rosters
annexed to the said O.M. The aforesaid Roster clearly stipulates 16
seats cumulatively for Reserved Category, i.e., SC/ST which is
calculated on the basis of current sanctioned strength of 76 AEs in the
Department. Moreover, it is also not a matter of dispute that there
were 14 SC candidates who were functioning as AEs which were in
excess of 3 seats. Thus, respondent Nos. 4 & 5 who are from the
Reserved Category could not be allowed to be promoted to the Post of
AEs.
13. It is pertinent to mention here that by amending the Writ Petition
respondent no. 5 Sh. D.K. Singh was also made a party to the instant
petition.
14. Counsel for the petitioner has relied upon a clarification dated
23.01.1998 made on Post-Based Reservation Roster. The same is as
under:
"C. & A.G, Cir. No. 9/NGE/98 No. 108/NGE (App.)/3-97
dated 23-1-1998
Subject:- Clarifications regarding Post-Based
reservation rosters.
Consequent on issue of Government of India, Department of
Personnel & Training O.M. NO. 36012/296-Estt. (Res.)
dated 2-7-1997 under Headquarters Circular Letter No.
27/NGE/97/1082-NGE (App.)/3-97, dated 10-9-1997 on the
above subject, various doubts were raised by the field offices
on the operation of the post-based revised reservation
rosters.
The doubts are clarified herewith in consultation with the
Department of Personnel & Training in the enclosed
Annexure.
DOUBTS AND CLARIFICATIONS IN RESPECT OF
MAINTENANCE OF POST-BASED REVISED
RESERVATION ROSTERS (REF. DOP&T O.M. No.
36012/2/96-Estt.(RES.) DATED 2-7-1997
Doubts Clarifications
1. Whether the new revised Government orders on post-
rosters will be effective based rosters are effective
from the panel year 1998, from July 2, 1997.
i.e., 1-1-1998 and whether Recruitments/promotions made
the concept of „panel year‟ on or after July 2, 1997 have
and „cut off date‟ (1st to be based on post-based
October of the panel year) Rosters.
will continue to be
applicable?
7.(a) How the total Representation of each
representation of reserved reserved category is first to
categories in a cadre is to be determined separately as
be determined when the per the prescribed
percentage of reservation in percentages of reservation
promotion and in direct applicable to different
recruitment are different? methods of appointment, i.e.
promotion and direct
recruitment and then the total
representation of respective
reserved category in the
cadre is to be worked out
7.(c) How the excess or less The representation of
representation of a reserved respective reserved
category ( or categories) in categories should not exceed
separate methods of the prescribed percentages,
appointment in a cadre are as worked out in Sl. No. 7(a),
to be adjusted? taking into account their
combined representation in
direct recruitment as well as
promotion. Adjustments of
representation of reserved
categories between different
methods of appointment in a
cadre may be effected
accordingly.
8. How the backlog of Backlog of SC/ST/OBCs is to
SC/ST/OBCs is to cleared be determined afresh as per
through future recruitments the revised post-based
in view of the 50% rosters. Vacancies against
limitation on recruitment reserved points will continue
and the total reservation to be filled keeping in view
limit being 50% of the the limit of 50% reservation
posts? on total vacancies being
filled in a panel year.
9.(a) Whether the existing Yes, the practice of
practice of dereservation dereservation would
would continue in the cases continue.
of non-availability of
eligible reserved category Detailed instructions in this
candidates or the reserved regard will follow
points in the roster are to
be kept unfilled till eligible
candidates of reserved
category become available.
9.(b) Whether carried- The reserved vacancies are
forward reserved vacancies to be determined afresh on
would be considered in the basis of post-based
fresh panels or would lapse revised rosters and are to be
due to implementation of carried forward for future
post-based revised rosters? adjustments.
15. Ld. Counsel for the petitioner has also relied upon Office
Memorandum dated 20.07.2000, on backlog, which is reproduced as
under:
" G.I., Dept. Of Per. & Trg., O.M. No. 36012/5/97-
Estt.(Res.)Vol.II dated 20.07.2000
Subject:-Backlog vacancies reserved for SCs & STs would
be treated as a distinct group and would not be subject to
50% ceiling.
2. In pursuance of the provisions of Article 16 (4-B) of
the Constitution, it has been decided that in partial
modification of the instructions issued vide this
Department‟s O.M. No. 36012/5/97-Estt.(Res.) dated 29-8-
1997, the reserved vacancies for Scheduled Castes and
Scheduled Tribes in all cases of direct recruitment and
promotion, wherever applicable, which have remained
unfilled in the earlier year(s), i.e., backlog and / or carried
forward vacancies would be treated as a separate and
distinct group and will not be considered together with the
reserved vacancies of the year in which they are being
filled up for determining the ceiling of 50 per cent
reservation on total number of vacancies of that year. In
other words, the ceiling of 50 per cent on filing up of
reserved vacancies would apply only on the reserved
vacancies which arise in the current year and the backlog /
carried forward reserved vacancies for SCs/STs of earlier
years would be treated as a separate and distinct group
and would not be subject to any ceiling. However, backlog
and/or carried forward reservation will automatically
lapse in a cadre as soon as combined representation of a
reserved category in direct recruitment as well as
promotion is either equal to or more than the prescribed
number of reserved posts in the relevant post-based
rosters.
3. As the Ministries are aware, reservation with effect from
2-7-1997 is linked to post-based rosters. The backlog of
vacancies would be determined with reference to the post-
based rosters keeping in view the instructions issued vide
this Department‟s O.M. No. 36012/2/96-Estt.(Res.) dated
2-7-1997."
16. He further relied upon Office Memorandum dated 31-01-2005,
which is reproduced as under:
" G.I., Dept. Of Per. & Trg., O.M. No.
36028/17/2001-Estt.(Res.) dated 31.01.2005
Subject:- Reservation in promotion - Treatment of SC / ST
candidates promoted on their own merit.
The undersigned is directed to refer to this Department‟s
O.M. No. 36028/17/2001-Estt. (Res.) dated 11-7-2002
whereby it was clarified that the Scheduled Caste and
Scheduled Tribe candidates appointed by promotion on
their own merit and not owing to reservation or relaxation
of qualification will be adjusted against unreserved points.
References have been received seeking clarification on the
following points:-
(i) The date of effect of the O.M. No. 36028/17/2001-
Estt. (Res.), dated 11-07-2002; and
(ii) Whether the order will apply in case of promotions
made by non-selection method."
17. Further relied upon Office Memorandum dated 06-11-2003,
which is reproduced as under:
" G.I., Dept. Of Per. & Trg., O.M. No.
36012/17/2002-Estt.(Res.) dated 06.11.2003
Subject:- Non-permissibility of exchange of reservations
between SC and ST.
The undersigned is directed to say that after introduction
of post-based reservation, various Ministries /
Departments have been seeking clarification whether it is
possible to fill up a post reserved for Scheduled Tribes by
a Scheduled Caste candidate or vice versa by applying the
principle of exchange of reservation between Scheduled
Cates and Scheduled Tribes as was possible when
vacancy-based rosters were in vogue.
2. Basic principle of post-based reservation is that, the
number of posts filled by reservation by any category in a
cadre should be equal to the quota prescribed for that
category. If exchange of reservation between SCs and STs
is permitted, number of employees of one reserved
category of employees appointed by reservation will go
beyond reservation prescribed for that category. It would
be against the spirit of post-based reservation. Therefore,
after introduction of post-based reservation, it is not
permissible to fill up a post reserved for Scheduled Tribes
by a Scheduled Caste Candidate or vice versa by exchange
of reservation between SCs and STs."
18. Respondents no. 1 & 2 have filed their Counter affidavits to the
instant petition wherein it is stated that only 13 persons were working
against SC / ST quota and two persons namely Sh. Suresh Kumar and
Sh. K.L. Morya were promoted as AE (C) on 05.09.2002 at their own
seniority and not based upon the quota.
19. It is further stated that in the last promotion carried out on
05.09.2002, six candidates from the Reserved Category were
promoted. However, 2 candidates out of 6 candidates were promoted
on the basis of their own seniority. It is denied that reservation quota
of 22.5% for Reserved Category had been exceeded. It is specifically
denied that any more promotion from the Reserved Category would
exceed the prescribed percentage of 22.5% or would be in violation of
the Post-Based Roster formulated under the direction of the Apex
Court.
20. As stated above, only 13 persons from SC / ST Category against
16 Reserved Posts were working as AE (C) and 2 Assistant Engineers
(C) namely Sh. K.L. Morya and Sh. Suresh Kumar had been promoted
at their own seniority. Therefore, if the above persons were promoted
at their own seniority and not based upon the quota, they would not be
considered in 22.5% reservation quota for the said Category.
Therefore, the respondents have not violated the Post-based Roster and
have fully followed the same in promoting the aforementioned two
persons.
21. Respondent no. 5 has filed their counter-affidavit wherein it is
stated that petitioner Association moved an application under Order
VI Rule 17 read with Section 151CPC in W.P.(C) 3126/1992 for
taking additional grounds in the said W.P.(C) as the respondent
Department had held DPC ignoring the claim of JE(C) belonging to SC
/ ST Category for promotion to AE (C) against 14 reserved backlog
vacancies and had promoted General Category JE (C) as AE (C). The
additional grounds (a) to (i) are contained in Para 11 of the said
application dated 17.01.1994 moved in the aforesaid petition and made
additional prayer as under:-
"In the premises set forth above it is most respectfully
prayed that this Hon‟ble Court be pleased to:-
i) Allow the application and set aside the promotion
orders dated 22.03.1993 and 30.04.1993.
ii) Take grounds (a) to (i) in this application on record
and treat them the grounds in the Writ Petition, in addition
to the grounds taken in the writ petition."
22. Ld. Counsel further submitted that petitioners in TA 282/2009
filed the amended Petition impleading respondent no. 4 (Shri Ram
Dayal Ram) and respondent no. 5 (Shri D.K. Singh) in the array of
parties dated 10.01.2006 filed Under Order VI Rule 17 r/w Section 151
CPC.
23. Respondent no. 5 filed reply on 18.10.2006 where it was brought
to the notice of this Court that another W.P. (C) 3126/1992, which was
admitted by this Court and made Rule vide order dated 23.07.1993.
Some of the Members of the Association had applied for copy under
the RTI Act which reveals that backlog of 4 Reserved Categories for
members of SC / ST have been worked out. This fact has been made
by the DPC starting from the beginning indicating the number of
sanctioned post at the point reserved for SC / ST category in the
vacancy Roster.
24. After review made by the DPC in its meeting held on
28.01.2010, there were still reserved posts which were required to be
filled up from amongst the SC / ST category JEs who were junior to
Sh. Ram Dayal Ram and Sh. D.K. Singh, R4 & R5.
25. The arguments of the ld. Counsel for the petitioner is that
respondent no. 4 & 5 have been promoted wrongly and in excess of the
percentage of reservation.
26. It is submitted that the provision of switching over from the
Vacancy-Based Roster to Post-Based Roster is that no promotion can
be made against the reserved vacancy after issuance of DOP&T
Memorandum dated 02.07.1997.
27. Ld. Counsel has submitted that on perusal of the Office
Memorandum as mentioned above, the Vacancy-Based Roster shall
continue to operate from the backlog vacancy as the Department is
bound to fill up the vacancy to the prescribed percentage of Reserved
Category as stipulated therein. The Government of India has further
issued clarification in this respect on 20.05.1998 wherein at Serial no.
13, Government had clarified the position that they have decided to
continue reservation for SC / STs under the Central Government
beyond 15.11.1997 till such time as representation reaches the
prescribed percentage of the Reservation.
28. During the year 1993-1996 DPCs were held to fill up Reserved
Posts for SC / ST from amongst the General Category candidates
without getting the reserved posts de-reserved by following the
prescribed procedure as laid down by Government of India from time
to time.
29. Ld. Counsel appearing on behalf of respondents no.4 & 5 have
submitted that Office Memorandum dated 31.01.2005 have been
withdrawn by the DOP&T vide Office Memorandum dated
10.08.2010. Same is reproduced as under:
"The matter has been examined in the light of the above
referred judgments and it has been decided to withdraw
O.M. NO. 36028/17/2001-Estt. (Res.) dated 31.01.2005
referred to above. It is clarified that SC/ST candidates
appointed by promotion on their own merit and seniority
and not owing to reservation or relaxation of
qualifications will be adjusted against unreserved points of
reservation roster, irrespective of the fact whether the
promotion is made by selection method or non-selection
method. These orders will take effect from 02.07.1997, the
date on which post based reservation was introduced."
30. He further relied upon Office Memorandum dated 20.07.2000.
Same is reproduced as under:
"G.I., Dept. of Per & Trg., O.M. NO. 36012/5/97-Estt.
(Res.)Vol. II dated 20.07.2000
Subject:- Backlog vacancies reserved for SCs & STs would
be treated as a distinct group and would not be subject to
50% ceiling.
The undersigned is directed to invite a reference to
Department of Personnel and Training‟s O.M. NO.
36012/5/97-Estt. (Res.) dated 29.08.1997 wherein it was
laid down that 50 per cent limit on reservation shall apply
to current as well as backlog vacancies and that backlog of
reserved vacancies shall not be treated as distinct group
for the purpose of 50 per cent limit on reservation and to
say that the matter has been reviewed. Consequently,
Article 16 (4-B) has been incorporated in the Constitution
by the Constitution (Eighty-First Amendment) Act, 2000,
which provides as under:-
"Nothing in this article shall prevent the State
from considering any unfilled vacancies of a year
which are reserved for being filled up in that year
in accordance with any provision for reservation
made under Clause (4) or Clause (4-A) as a
separate class of vacancies to be filled up in any
succeeding year or years and such class of
vacancies, shall not be considered together with
the vacancies of the year in which they are being
filled up for determining the ceiling of fifty per
cent reservation on total number of vacancies of
that year."
2. In pursuance of the provisions of Article 16 (4-B) of
the Constitution, it has been decided that in partial
modification of the instructions issued vide this
Department‟s O.M. No. 36012/5/97-Estt.(Res.) dated 29-8-
1997, the reserved vacancies for Scheduled Castes and
Scheduled Tribes in all cases of direct recruitment and
promotion, wherever applicable, which have remained
unfilled in the earlier year (s), i.e., backlog and / or
carried forward vacancies would be treated as a separate
and distinct group and will not be considered together with
the reserved vacancies of the year in which they are being
filled up for determining the ceiling of 50 per cent
reservation on total number of vacancies of that year. In
other words, the ceiling of 50 per cent on filing up of
reserved vacancies would apply only on the reserved
vacancies which arise in the current year and the backlog /
carried forward reserved vacancies for SCs/STs of earlier
years would be treated as a separate and distinct group
and would not be subject to any ceiling. However, backlog
and/or carried forward reservation will automatically
lapse in a cadre as soon as combined representation of a
reserved category in direct recruitment as well as
promotion is either equal to or more than the prescribed
number of reserved posts in the relevant post-based
rosters."
31. He has also Relied upon Office Memorandum dated 20.05.1998.
Same is reproduced as under:-
"G.I., Dept. of Posts, New Delhi Lr. No. 137-10/97-
SPB-II, dated 20.05.1998
Doubts Clarifications
13. It has been mentioned DOP&T, O.M. no. 36012/18-
that as per Judgment in the 95-Estt. (Res.) Pt. II dated 1-8-
Indira Sawhney case the 1997 is being circulated in
reservations in the matter which it has been decided to
of promotion are to continue reservations for SCs /
continue for a period of five STs as at present in services /
years with effect from 16- posts under the Central
11.1992. Since the Government beyond
stipulated period is already 15.11.1997 till such time as the
over, it may be clarified representation reaches the
whether the reservations for prescribed percentages of
SCs / STs in promotion are reservation whereafter the
still in operation or to reservation in promotion shall
discontinue with effect from continue to maintain the
17.11.1997. reservation to the extent of the
prescribed percentages for the
respective categories.
32. They further relied upon a case of R.K. Sabharwal & Ors. v.
State of Punjab & Ors. 1995 (1) SLR, wherein it is held as under:
"We may examine the likely result if the roster is permitted
to operate in respect of the vacancies arising after the total
posts in a cadre are filled. In a 100 point roster, 14 posts
at various roster-points are filled from amongst the
Scheduled Castes/ Scheduled Tribes candidates, 2 posts
are filled from amongst the Backward Classes and the
remaining 84 posts are filled from amongst the general
category. Suppose all the posts in a cadre consisting of
100 posts are filled in accordance with the roster by
31.12.1994. Thereafter in the year 1995, 25 general
category persons (out of the 84) retire. Again in the year
1996, 25 more persons belonging to the general category
retire. The position which would emerge would be that the
Scheduled Castes and Back ward Classes would claim
16% share out of the 50 vacancies. If 8 vacancies are
given to them then in the cadre of 100 posts the reserve
categories would be holding 24 posts there by increasing
the reservation from 16% to 24% . On the contrary if the
roster is permitted to operate till the total posts in a cadre
are to be filled by the same category of persons whose
retirement etc. caused the vacancies then the balance
between the reserve category and the general category
shall always be maintained. We make it clear that in the
event of non-availability of a reserve candidate at the
roster-point it would be open to the State Government to
carry forward the point in a just and fair manner."
33. After hearing ld. Counsel for the parties, it is established that
only 13 persons were working against SC / ST quota and two persons
namely Sh. Suresh Kumar and Sh. K.L. Maurya were promoted as AE
(C) on 05.09.2002 at their own seniority and not based upon the quota.
34. The issue for consideration is whether the petitioners are entitled
to get promotion on the basis of the implementation of the post based
roster system. It is undisputed that the post -based roster came into
effect on 02-07-1997 subsequent to the judgement in R.K. Sabharwal
and others(supra). It is also not disputed that the vacancy based roster
system had been existing in the respondent department, prior to the
implementation of the post based roster system. The main legal
grievance of the petitioner is that the respondent department is not
following the principle of reservation as it is envisaged in the post
based roster system, thus, promotions were denied. In consequence of
the non-compliance of reservation scheme in the post based roster
system, leads to the promotion of respondent No 4 and 5.
35. One of the objective that has been intended to achieve by
implementing the model roster of 'reservation in promotion' with
reference to posts, is that at no point of time the reservation prescribed
shall not exceed, and simultaneously it guarantees that the prescribed
reservation in promotion for the scheduled caste and scheduled tribes
are achieved. Accordingly, 15% of posts are reserved for SC and
7.5 % are reserved for ST respectively. Thus, at that point of time, the
strength in the cadre of Assistant Engineers (Civil) was 76. Therefore,
16 posts of Assistant Engineer (Civil) were earmarked for the SC and
ST category as per the roster. It is pertinent to mention that the
respondents, who were promoted to the post of Assistant Engineer,
(Civil) were eligible to be promoted as per the recruitment rules.
36. The contention of the petitioners is that the irregularity exists, in
the form of crossing the ceiling limit that is prescribed in the post
based roster. In this context, the implementation of the post based
roster system need to be examined in the light of M. Nagaraj Vs.
Union Of India(2006) 8 SCC 212, wherein, the Apex Court also
examined and evaluated the theory of post based roster and its practical
application, and observed as under:-
"62. In R.K. Sabharwal, the issue was concerning
operation of roster system. This court stated that the entire
cadre strength should be taken into account to determine
whether reservation up to the required limit has been
reached. It was held that if the roster is prepared on the
basis of the cadre strength, that by itself would ensure that
the reservation would remain within the ceiling-limit of
50%. In substance, the court said that in the case of
hundred-point roster each post gets marked for the
category of candidate to be appointed against it and any
subsequent vacancy has to be filled by that category
candidate alone (replacement theory).
The question which remained in controversy, however, was
concerning the rule of 'carry-forward'. In Indra
Sawhney this Court held that the number of vacancies to
be filled up on the basis of reservation in a year including
the 'carry-forward' reservations should in no case exceed
the ceiling-limit of 50%.
However, the Government found that total reservation in a
year for SCs, STs and OBCs combined together had
already reached 49 % and if the judgment of this Court in
Indra Sawhney had to be applied it became difficult to fill
"backlog vacancies". According to the Government, in
some cases the total of the current and backlog vacancies
was likely to exceed the ceiling- limit of 50%. Therefore,
the Government inserted Clause (4B) after Clause (4A) in
Article 16 vide the Constitution (Eighty-First Amendment)
Act, 2000.
63. By Clause (4B) the "carry-forward"/"unfilled
vacancies" of a year is kept out and excluded from the
overall ceiling-limit of 50% reservation. The clubbing of
the backlog vacancies with the current vacancies stands
segregated by the Constitution (Eighty-First Amendment)
Act, 2000. Quoted hereinbelow is the Statement of Objects
and Reasons with the text of the Constitution (Eighty-First
Amendment) Act, 2000:
THE CONSTITUTION (EIGHTY FIRST
AMENDMENT) ACT, 2000
(Assented on 9th June, 2000 and came into force 9.6.2000)
STATEMENT OF OBJECTS AND REASONS
Prior to August 29, 1997, the vacancies reserved for the
Scheduled Castes and the Scheduled Tribes, which could
not be filled up by direct recruitment on account of non-
availability of the candidates belonging to the Scheduled
Castes or the Scheduled Tribes, were treated as "Backlog
Vacancies". These vacancies were treated as a distinct
group and were excluded from the ceiling of fifty per cent
reservation. The Supreme Court of India in its judgment in
the Indra Sawhney v. Union of India held that the number
of vacancies to be filled up on the basis of reservations in a
year including carried forward reservations should in no
case exceed the limit of fifty per cent. As total reservations
in a year for the Scheduled Castes, the Scheduled Tribes
and the other Backward Classes combined together had
already reached forty-nine and a half per cent and the
total number of vacancies to be filled up in a year could
not exceed fifty per cent., it became difficult to fill the
"Backlog Vacancies" and to hold Special Recruitment
Drives. Therefore, to implement the judgment of the
Supreme Court, an Official Memorandum dated August 29,
1997 was issued to provide that the fifty per cent limit shall
apply to current as well as "Backlog Vacancies" and for
discontinuation of the Special Recruitment Drive.
Due to the adverse effect of the aforesaid order dated
August 29, 1997, various organisations including the
Members of Parliament represented to the central
Government for protecting the interest of the Scheduled
castes and the Scheduled Tribes. The Government, after
considering various representations, reviewed the position
and has decided to make amendment in the constitution so
that the unfilled vacancies of a year, which are reserved
for being filled up in that year in accordance with any
provision for reservation made under Clause (4) or Clause
(4A) of Article 16 of the Constitution, shall be considered
as a separate class of vacancies to be filled up in any
succeeding year or years and such class of vacancies shall
not be considered together with the vacancies of the year
in which they are being filled up for determining the
ceiling of fifty percent, reservation on total number of
vacancies of that year. This amendment in the Constitution
would enable the State to restore the position as was
prevalent before august 29, 1997.
The Bill seeks to achieve the aforesaid object.
THE CONSTITUTION (EIGHTY-FIRST
AMENDMENT) ACT, 2000
(Assented on 9th June, 2000 and came into force 9.6.2000)
An Act further to amend the Constitution of India. BE it
enacted by Parliament in the Fifty- first Year of the
Republic of India as follows:
1. Short title: This Act may be called the Constitution
(Eighty-first Amendment) Act, 2000.
2. Amendment of Article 16: In Article 16 of the
Constitution, after Clause (4A), the following Clause shall
be inserted, namely: -
(4B) Nothing in this Article shall prevent the State from
considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with
any provision for reservation made under Clause (4) or
Clause (4A) as a separate class of vacancies to be filled up
in any succeeding year or years and such class of
vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total
number of vacancies of that year.
The Constitution (Eighty-First Amendment) Act, 2000
gives, in substance, legislative assent to the judgment of
this Court in R.K. Sabharwal. Once it is held that each
point in the roster indicates a post which on falling vacant
has to be filled by the particular category of candidate to
be appointed against it and any subsequent vacancy has to
be filled by that category candidate alone then the question
of clubbing the unfilled vacancies with current vacancies
do not arise. Therefore, in effect, Article 16(4B) grants
legislative assent to the judgment in R.K. Sabharwal. If it
is within the power of the State to make reservation then
whether it is made in one selection or deferred selections,
is only a convenient method of implementation as long as it
is post based, subject to replacement theory and within the
limitations indicated hereinafter.
As stated above, Clause (4A) of Article 16 is carved out of
Clause (4) of Article 16. Clause (4A) provides benefit of
reservation in promotion only to SCs and STs. In the case
of S. Vinod Kumar and Anr. v. MANU/SC/1284/1996 :
Union of India and Ors. (1996)6SCC580 this Court held
that relaxation of qualifying marks and standards of
evaluation in matters of reservation in promotion was not
permissible under Article 16(4) in view of Article 335 of
the Constitution. This was also the view in Indra Sawhney.
64. By the Constitution (Eighty-Second Amendment) Act,
2000, a proviso was inserted at the end of Article 335 of
the Constitution which reads as under:
Provided that nothing in this article shall prevent in
making of any provision in favour of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation
in qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of
promotion to any class or classes of services or posts in
connection with the affairs of the Union or of a State.
This proviso was added following the benefit of reservation
in promotion conferred upon SCs and STs alone. This
proviso was inserted keeping in mind the judgment of this
Court in Vinod Kumar which took the view that relaxation
in matters of reservation in promotion was not permissible
under Article 16(4) in view of the command contained in
Article 335. Once a separate category is carved out of
Clause (4) of Article 16 then that category is being given
relaxation in matters of reservation in promotion. The
proviso is confined to SCs and STs alone. The said proviso
is compatible with the scheme of Article 16(4A)."
37. As stated above, Article 16(4B) lifts the 50% cap on carry-over
vacancies (backlog vacancies). The ceiling- limit of 50% on current
vacancies continues to remain.
38. The office memorandum issued on 29-8-1997, in pursuance of
judgment of the Apex Court in the case of Indira Sawahney vs Union
of India, (2000)1SCC168 reiterated the scheme of reservation based on
50% ceiling limit. In other words, the number of vacancies to be filled
on the basis of reservation in a year, including the carried forward,
however, the reservation should not exceed 50 % limit. In consequence
of the same, the Article 16(4B) incorporated in the constitution and
subsequently, the office memorandum dated 20-7-2000 has been
issued wherein, it prescribes the limit of reservation shall be based on
the post based roster system. It is also significant to note that the
office memorandum dated 29-8-1997 has been modified by the office
memorandum dated 20-7-2000. The said office memorandum also
clarifies the aspect of treating the backlog/ carried forward as a
separate and distinct group. In other words, the ceiling of 50 % would
apply on the reserve vacancies which arise in the current year and the
backlog/ carried forward vacancies for SC/ST of earlier years would be
treated as a separate and distinct group, and would not be subject to
any ceiling. Therefore, the general rule of reservation at present is post
based roster system; but as per the special provision, which regulate
the scheme of reservation, is based on the 50 % ceiling limit. The case
of the petitioner is not that the ceiling of 50 % has been breached in the
process of reservation in promotion; in turn, the reservation limit of
22.5% got violated by promoting the respondent no. 4-5. The court
also took in to account the rights flowing from the Article 16 (1) and
the enabling powers vest in article 16 (4) (4A), (4B). The promotions
to the respondent No 4 & 5 as Assistant Engineers (Civil) were not
eclipsed the right accrued in favour of the Petitioner under article
16(1), since, there is no breaching in the maximum ceiling limit.
39. Importantly, the list of the persons, working as Assistant
Engineer (Civil) from the reserved category, has been placed on record
in the writ petition. Out of which fourteen people are belonging to the
SC quota and two persons belonging to ST quota. The significant point
to be noted is that two persons, namely, K.L. Maurya and Suresh
Kumar were promoted on the basis of merit. Therefore, they were not
placed in the category of reserved quota; but in the general category.
The promotion of two SC candidates based on the merit would fall
under the general category. The Apex Court has already examined this
issue and held in R.K.Sabharwal vs State of Punjab and others,
(1995)2 SCC 745 as under:-
"4. 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
reserve 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 consideration for
working out the percentage of reservation."
40. Accordingly, the Office Memorandum dated 31.01.2005 has
been withdrawn by Memorandum dated 10.08.2010 wherein it is
clarified that SC / ST candidates appointed by promotion on their own
merit and seniority and not owing to reservation or relaxation of
qualifications will be adjusted against unreserved points. It is further
clarified that these orders will take effect from 02.07.1997, the date on
which post-based reservation was introduced.
41. Therefore, the tag of caste loses its identity when the promotions
are effected on merit. Accordingly, the promotion that has been carried
out by the respondent department does not cross the prescribed limit.
42. In view of the above reasons the petition is dismissed with no
order as to costs.
43. Before parting with this judgment, it is also important to note
that the promotion in question in the instant petition is related to 19-4-
2005. Prior to the said promotion, the respondent department had also
carried out the promotions on 05.09.2002 and 06.08.1996. The
Petitioners have placed the reliance on the facts and figures of the said
promotion. The respondent brought to the notice of the Court that the
Writ Petition no. 3126/1992 titled as DDA (SLUM SC/ST Engineers
Association (Regd.) and Others Vs. D.D.A and others is related to the
promotion to the post of Assistant Engineers (Civil) which is due from
1988. Therefore, the dismissal of this writ petition shall not stand in the
way of the implementation of the orders passed in the Writ Petition
No.3126/1992 as mentioned above.
SURESH KAIT, J
DECEMBER 21, 2012
Jg/RS
