A.K.Gautam vs Uoi & Ors.
2012 Latest Caselaw 3201 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on:   May 3, 2012
                                       Judgment pronounced on: May 14, 2012
+      W.P.(C) 3646/1999

A.K.GAUTAM                                                ..... Petitioner

                          Versus

UOI & ORS.                                                ..... Respondents


Advocates who appeared in this case:
For the Petitioner          :      Mr V.K.Rao, Senior Advocate with
                                   Mr Yatender Sharma
For Respondents 1 to 4      :      Mr R.V.Sinha and Mr A.S.Singh
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. This writ petition is directed against the order dated 08.03.1999 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter

referred to as "the Tribunal), whereby O.A. No. 2980/1997 filed by the private

respondents was allowed. The facts giving rise to filing of the writ petition can be

summarized as under:-

The petitioner as well as the private respondents are Group „C‟ Inspectors in

Central Excise and Customs. The next promotional post for the Inspectors in

Central Excise and Customs is Superintendent (Group „B‟) which is a Gazetted

post. The recruitment rules for the post of Superintendent in Central Excise and

Customs provide for 95% of the posts to be filled by promotion from the feeder

grade of Inspectors and remaining 5% are to be filled up by direct recruitment.

Inspectors with eight years of regular service in the grade are eligible to be

considered for promotion, on the basis of selection. Reservations for the SC/ST

officers are available in the promotional posts, as per the policy of the Government

of India on reservations. The Departmental Promotion Committee, for making

recommendations for promotion to the posts of Superintendent, met on

23/24.06.1997 and recommended promotion of 160 Inspectors to the post of

Superintendent Grade „B‟. The select list included 29 Scheduled Castes and 12

Scheduled Tribes officers. Respondent No.3 issued orders dated 30.09.1997,

promoting 134 Inspectors, including 23 Scheduled Castes and 9 Scheduled Tribes

officers to the grade of Superintendent, besides regularizing five ad-hoc

promotions. The Scheduled Castes and Scheduled Tribes officers were adjusted

against the reserved posts in the cadre of the Superintendent. The plea taken by the

applicants before the Tribunal was that since these SC/ST officers had been

promoted/appointed on the basis of their merit and seniority and not on the basis of

reservation, they should be adjusted against the general posts in terms of the

decision of the Supreme Court in R.K.Sabharwal & Others vs. State of Punjab &

Others : 1995 (1) SLR SC 791. Their contention was that had these SC/ST

officers been adjusted against general posts, they (applicants before the Tribunal)

would have been appointed against the reserved posts, they being SC/ST

candidates. In support of their contention, the applicants before the Tribunal also

placed reliance on OM dated 02.07.1997 issued by DoPT. The plea taken by the

respondents before the Tribunal was that SC/ST candidates appointed on their own

merit are to be adjusted against general category posts only in case of direct

appointment and not in the case of promotions. They also contended that some of

the reserved category officers had obtained benefit of reservation at the time of

confirmation in the grade of Inspectors and consequently had become senior in the

grade, thereby taking advantage of being from reserved categories. The plea taken

by them was that having taken benefit of early confirmation and thereby gaining

seniority over general category officers, they are not entitled to be adjusted against

general category posts in the promotional cadre of Superintendent („B‟ Grade).

2. The Tribunal vide impugned order 08.03.1999 allowed the OA and set aside

the order dated 30.09.1997 to the extent of promotions granted to respondents 5 to

13 in violation of „law on reservations‟. The official respondents were directed to

adjust 23 Scheduled Castes and 9 Scheduled Tribes Officers against general

category posts and thereafter determine the number of reserved posts, which were

to be filled-up by SC/ST Officers as per rules of reservations and make

appointments in terms of rules and regulations on the subject. They were also

directed to consider those of the applicants and other eligible SC/ST officers, who

were in the zone of consideration for promotion against reserved posts for

appointment in the manner directed by the Tribunal and if found suitable, promote

them with effect from 30.09.1997 with all consequential benefits as regards

seniority in the grade of Superintendent. No backwages, however, were to be paid

to them. They were also directed to hold review DPC to consider the cases of

applicants and other eligible SC/ST officers, for promotion against reserved

vacancies, which at the time of order of the Tribunal were occupied by respondents

5 to 34 in the OA.

3. We may note at the very outset that the constitutional validity of the OM

dated 2.7.1997, issued by DoP&T has not been challenged in this petition. A

number of OMs were issued during the pendency of this petition. Most of them

form part of the compilation submitted by the learned counsel for the petitioner.

The constitutional validity of none of these OMs has been challenged before us.

This is also not the contention of the petitioner before us, that reservation in

promotions to the cadre of Superintendent is unconstitutional.

4. Admittedly, rules for appointment by promotion to the post of

Superintendent (Grade „B‟) in Central Excise and Customs provide for promotion

on the basis of seniority-cum-merit. A perusal of the letter C.No.II/39/229/2007-

CF(CCA) dated 6.9.2007 from the office of Commissioner of Central Excise would

show that the post of Superintendent Group „B‟ is a selection post and the

benchmark prescribed for promotion to Superintendent Group „B‟ is „good‟. It was

an admitted position before us that under the method of selection applicable for

promotion to the post of Superintendent (Group „B‟), all those irrespective of

whether they belonged to general category or to the reserved categories, who are

graded „good‟ or above, are arranged in the order of seniority in the feeder cadre

and there is no supersession amongst them.

5. Primarily, the following two issues arise for our consideration in this writ

petition:-

a) Whether SC/ST officers „promoted to a higher post on their own merit‟ are to be adjusted against general category posts or against reserved posts, in cases where the promotions are made on the basis of seniority-cum-merit, or is this benefit available only in the case of direct recruitments?

b) Whether SC/ST candidates, having merit equal to the general category candidates and possessing the prescribed benchmark of „Good‟, can be said to have been promoted on the basis of their own merit, in a selection based on the norm of „seniority-cum-merit?

6. It was contended by the learned Senior Counsel for the petitioner that since

no element of merit is involved in promotion on the basis of seniority-cum-

merit/seniority-cum-fitness/seniority-cum-suitability which according to him are

identical terms, the principle of "promotion on his own merit" does not apply to

such promotions. His contention was that this principle, would apply only in cases

of promotion on the basis of merit, where comparative merit of the candidates

coming in the zone of consideration are evaluated and possibly in the cases of

promotions on the basis of Limited Departmental Examination. In support of his

contention he has relied primarily upon Ajit Singh Januja and Others v. State of

Punjab and Others (1996) 2 SCC 715 and K.Manorama v. Union of India

2010(10) Scale 304.

7. In R.K. Sabharwal (supra), reservation policy of Punjab Government was

challenged on two grounds. The first contention of the petitioner was that for

working out the percentage of reservation, the promotees/appointees belonging to

the Scheduled Castes and Backward Classes, whether appointed against the general

category posts or against the reserved posts are to be counted, meaning thereby that

if the reservation is 14% for Scheduled Castes candidates and more than 14% of

such candidates are appointed/promoted in a cadre on their own merit/seniority by

competing with the general category candidates, then the purpose of reservation in

the said cadre having been achieved, the Government instructions providing

reservations would become inoperative. The second contention of the petitioners

was that once the posts earmarked for Scheduled Castes/Tribes and Backward

Classes on the roster are filled, the reservation is complete and the roster cannot

operate any further. Any posts falling vacant in a cadre thereafter, are to be filled

from the categories, „reserved‟ or general, due to retirement etc. of whose member

the post fell vacant. Repelling the first contention, the Supreme Court inter-alia

held as under:-

"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. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or charged simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing Reservation for the said class but so long as the instructions/Rules

providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despite any number of appointees/promotes belonging to the backward classes against the general category posts the given percentage has to be provided in addition........."

(emphasis supplied)

The view taken on the second contention of the petitioner before Supreme

Court is not relevant for our purpose.

In Union of India v. Virpal Singh Chauhan: (1995) 6 SCC 684, the

Supreme Court was concerned with the nature of rule of reservation in promotions

obtaining in the Railway Service and the rule concerning the determination of

seniority between general candidates and the candidates belonging to the reserved

classes in the promoted category.

In para 29 of the judgment, the Supreme Court iner-alia observed as under:-

"Be that as it may, as a result of the decision in R.K. Sabharwal and the views/findings recorded by us hereinabove, the following position emerges:

(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para 5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation)

shall not be counted as reserved category candidates."

(emphasis supplied)

8. The use of the expression „appointed/promoted‟ in para 4 of the judgment in

R.K.Sabharwal (supra), coupled with the fact that the case before the Supreme

Court was a case of reservation in promotions, in Punjab Service of Engineers

(Class-1), we have no hesitation in holding that the decision of the Supreme Court

in this case applies not only to direct recruitments but also to the appointments by

way of promotion. This view gets support from the use of the expression

„promoted/appointed‟ in Veer Pal Singh Chauhan (supra) as well as in Ajit Singh

Januja (supra). In any case, even the expression „appointment‟, in the absence of

any indication to the contrary, includes appointment by promotion, as rightly held

by the Tribunal relying upon the decision of 09 members‟ Bench of the Supreme

Court in Indra Sawhney v. Union of India: (1992) Supp (3) SCC 217.

9. By the OM No. 36012/2/96-Estt.(Res.) dated 2.7.1997, DoP&T, inter alia,

stated as under:

"The undersigned is directed to say that under the existing instructions, vacancy-based rosters have been prescribed in order to implement the Government‟s policy relating to reservation of jobs for the Scheduled Castes, the Scheduled Tribes and the other backward classes. The application of reservation on the basis of these rosters was called into question before Courts. The Constitution Bench of the Supreme Court in case of R.K. Sabharwal vs. State of Punjab as well as J.C. Mallick Vs.

Ministry of Railways has held that the reservation of jobs for backward classes SC/ST/OBC should apply to posts and not to vacancies. The court further held that the vacancy based rosters can operate only till such time as the representation of person belonging to the reserved categories, in a cadre reaches the prescribed percentages of reservations. Thereafter, the rosters cannot operate and vacancies released by retirement, resignation, promotion etc. of the person belonging to the general and the reserved categories are to be filled by appointment of persons from the respective category so that the prescribed percentage of reservation is maintained. With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 200 point, 40 point and 120- point vacancy-based rosters shall be replaced by post based rosters. All Ministries/Departments and concerned Authorities are requested to prepare the respective rosters based on the principles elaborated in the explanatory notes given in Annexure-1 to this O.M. and illustrated in the model Rosters annexed to this O.M. as Annexure-II, III and IV. Similarly, the concerned authorities may prepare rosters to replace the existing 100-point rosters in respect of local recruitment to group C & D posts on the basis of the same principles.

x x x x At the stage of initial operation of a roster, it will be necessary to adjust the existing appointments in the roster. This will also help in identifying the excesses/shortage, if any, in the respective categories in the cadre. This may be done starting from the earliest appointment and making an appropriate remark-"utilized by SC/ST/OBC/GEN" as the case may be against each point in the rosters as explained in the explanatory notes appended to the model rosters. In making these adjustment, appointment of candidates belonging to SC/ST/OBCs which were made on merit (and not due to reservation) are not to be counted towards reservation so

far as direct recruitment is concerned. In other words, they are to be treated as general category appointments."

Vide OM No. 36038/17/2001-Estt.(Res.) dated 11.7.2002, DoP&T issued the

following clarifications regarding its earlier OM dated 2.7.1997, which it had

issued in implementation of the decision of Supreme Court in R.K.Sabharwal

(supra). The OM, to the extent it is relevant, reads as under:

"Subject: Reservation in promotion - Treatment of SC/ST candidates promoted on their own merit

The undersigned is directed to say that this Department has been receiving references from various Ministries etc. regarding adjustment of SC/ST candidates promoted on their own merit in the reservation rosters introduced vide DoPT‟s OM No. 36012/2/96-Estt.(Res.) dated 2.7.1997. While it is clear from the OM dated 2.7.1997 that the SC/ST/OBC candidates appointed by direct recruitment on their own merit and not owing to reservation will be adjusted against unreserved points of the reservation roster, doubts have been raised about SC/ST candidates promoted on their own merit. It is hereby clarified that:-

(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.

(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered

for promotion along with other candidates treating him as if he belongs to general category. In case he is selected he will be appointed to the post and will be adjusted against the unreserved point.

(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any."

By the OM No. 36028/17/2001-Estt.(Res.) dated 31.1.2005 DoP&T clarified

that since in case of promotions by non-selection, promotions are made on the basis

of seniority-cum-fitness and the concept of merit is not involved, the OM dated

11.7.2002 does not apply to the promotions made by non-selection method.

However, vide OM No. 36012/45/2005-Estt. (Res.) dated 10.8.2010, DoP&T after

examining the matter in the light of the decision of Madras High Court in Union of

India v. S.Kalugasalamoorthy WP No.15926/2007 withdrew the OM

No.36028/17/201-Estt. (Res.) dated 31.1.2005 and 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 that whether the promotion is

made by selection method or non-selection method. These instructions took effect

from 2.7.1997, the date on which post based reservation was introduced.

10. From a combined reading of the aforesaid OMs it becomes evident that the

OM dated 2.7.1997, issued towards implementation of the decision of Supreme

Court in R.K.Sabharwal (supra) for not counting appointments made on the basis

of merit, in the quota meant for reserved categories, applies not only to direct

appointments but also to promotions, including the promotions on the basis of

seniority-cum-merit (non-selection method). The OM dated 31.1.2005 having been

set aside by the Madras Bench of Central Administrative Tribunal in OA No.

900/2005, the order of the Tribunal having been upheld by the Madras High Court

and the decision of the High Court having been accepted by Government of India,

no reliance can be placed by the petitioner on the said OM dated 31.1.2005, to

interpret the OM dated 2.7.1997 issued by DoP&T since the OM No.

36012/45/2005-Estt. (Res.) dated 10.8.2010 is clarificatory in nature and not in its

modification/supersession. It is a settled proposition of law that an explanation or a

clarification has a retrospective effect (see S.B. Chattarjee v. S.D. Majumdar &

Ors, (2007) 10 SCC 513 and Ashok Lenka v. Rishi Dikshit and Ors. (2006) 9 SCC

90). It would mean that on issue of OM dated 2.7.1997, the principle of not

counting of SC/ST candidates promoted/appointed "on their own merit" against

reserved vacancies had become applicable to all promotions, including the

promotions on the basis of seniority-cum-merit (non selection method).

Even otherwise, the Supreme Court did not use the expression "comparative

merit" or "superior merit", but used the expression "on their own merit".

11. We also note that vide OM No. 36011/1/98-Estt. (Res.) dated 1.7.1998

DoP&T clarified that only such SC/ST/OBC candidates who are selected on the

same standards as is applied to general categories shall not be adjusted against

reserved vacancies. It was further stated that when a relaxed standard is applied in

selecting an SC/ST/OBC candidate, for example in the age limit, experience,

qualification, permitted number of chances in written examination, extended zone

of consideration larger than what is provided for general category candidates etc.

the SC/ST/OBC candidates are to be counted against reserved vacancies. The

benefit of the relaxed standard should have been taken by the reserved category

candidate, in promotion, if his promotion is to be counted against reserved vacancy.

We also take note of the fact that this OM was issued by way of clarification of

instructions contained in the OM dated 2.7.1997 which provided that the

SC/ST/OBC candidates selected on their own merit will be adjusted against

reserved vacancies. This OM clearly indicates that while issuing the OM dated

2.7.1997 Government of India was of the view that if the standard applied in

selection of SC/ST/OBC candidate is equal to the standard applied in selection of

general category candidates, the appointment of reserved category candidates

would not be counted against reserved vacancies.

In the case before us, admittedly, general category candidates as well as

reserved category candidates were subjected to the same standard for promotion to

the post of Superintendent (Group „B‟) in Central Excise and Customs. This is not

the case of the petitioner before us that while making promotions to the post of

Superintendent (Group „B‟) amongst reserved category candidates, any relaxation

was granted in age, experience, qualification etc. or that any extended zone of

consideration was applied in promotion of those, whom the Tribunal has directed to

be considered for appointment against general vacancies. As noted earlier by us,

the OM dated 2.7.1997 in view of subsequent clarification issued by DoP&T

applied not only to direct appointments but also to promotions, including

promotion by way of seniority-cum-fitness, as is evident from the clarification

dated 10.8.2010 issued by DoP&T. Therefore, in our opinion, OMs issued by

DoP&T envisaged that the SC/ST candidates, promoted on the basis of standards

equal to those prescribed for general category candidates will be considered to have

been promoted on their own merit and seniority and not owing to reservation.

12. The issue involved in this petition also came up for consideration before

another Division Bench of this Court in WP(C) No. 11371-73/2005 decided on

15.2.2008. That was a case of promotion of Inspectors of Central Excise to the

post of Superintendent Grade „B‟. The Recruitment Rules for the promotional post

provided that an Inspector with 8 years‟ service on regular basis would be eligible

for consideration for promotion to the next grade of Superintendent Grade B which

was a selection post. There were a total of 282 vacancies in the cadre of

Superintendent Grade B, out of which 39 were reserved for SC candidates, 24 for

ST candidates, the remaining 219 vacancies being unreserved. While making

promotions some of the persons belonging to SC/ST categories were adjusted

against unreserved posts meant for general category candidates. This was

challenged before the Tribunal which directed the respondents in the OA to apply

the principles, which it had evolved in its earlier decision in the case of

B.C.K.Ralu v. Chief Commissioner of Central Excise Andhra Pradesh Zone

and Anr. (decided by Hyderabad Bench of the Tribunal dated 31.7.2003). The

order of the Tribunal was challenged by the Government before this Court. On

examination of various OMs issued by DoP&T, this Court inter alia observed as

under:

"Conjoint reading of the aforesaid four clarifications would make it abundantly clear that when SC/ST candidates are appointed even by promotion on their merit and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points and not against reserved points. They would still retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions. Once such SC/ST candidates getting promotion on their own merit and not due to reserved points, even while calculating 50% points on reservation such persons would be excluded meaning thereby they would not be treated as promoted against reserved category.

For promotion to grades below the revised pay-scale of Rs. 12,000-16,500 where the mode of promotion is 'selection', the bench-mark prescribed is 'good'. Thus, those officers who qualify the bench-mark of good will be graded by the DPC as fit or unfit. Those who are graded as fit shall be included in the select panel prepared by the DPC in order of their inter-se seniority in the feeder grade and there shall be no supersession in promotion among those who are found fit by the DPC in terms of the prescribed bench mark of 'good'."

The respondents in that case contended that since as per OM dated 8.2.2002,

the mode of promotion was selection, and all the candidates who achieved the

benchmark of „good‟ were to be classified as fit and there being no supersession in

promotion, there was no element of merit as visualized in the OM dated 11.7.2002.

Dealing with the contention this Court inter alia observed and held as under:

"After considering the respective submissions and the position contained in various office memoranda, we are of the opinion that having regard to the recruitment rules, it cannot be said that the promotion to the post of Superintendent Grade B is merely on the basis of seniority. It is treated as selection post. The procedure to be observed by the DPC when the mode of promotion is selection as prescribed in OM dated 8.2.2002. As per this OM the bench mark 'good' is provided. No doubt, the persons are to be ultimately rated as 'fit' or 'unfit'. However, only those candidates would be eligible for promotion who are declared fit and to get the declaration of fit, DPC has to consider and arrive at a conclusion, on the basis of ACRs and other material provided to it, as to whether they are to be graded as good. There is an element of selection here and unless a candidate achieves

this bench mark, he would be treated as unfit. Fit or unfit Therefore has relevance to achieving the prescribed bench mark and does not have the same connotation as seniority-cum-fitness. The bench mark 'good' has the element of merit.

Therefore, what is relevant for us to note as to whether SC/ST candidates are selected for promotion to this post on the same standard as applied to general candidates. If that is so, they would not be adjusted against reserved vacancies. On the other hand, if relaxed standards are applied in making their promotions, for example lesser Bench Mark, lesser period of qualifying service, bringing them in zone of consideration because of the reason of their being SC/ST, comparatively lesser ACRs etc., then they would be deemed as promoted against reserved vacancies. The bench mark for general category candidates is good. It is not known and nothing has come on record to show as to what was the bench mark provided for those Inspectors who belonged to the categories of SC/ST. In the absence of such material provided before us or before the Tribunal it is not possible to come to a definite conclusion. At the same time, we find that without focusing on this aspect which was relevant, the Tribunal simply followed B.C.K. Ralu (supra) and directed the petitioners to pass a detailed and speaking order on the representation of the respondents herein. In these circumstances, having regard to the aforesaid legal position, we modify the directions contained in the order of the Tribunal and dispose of the writ petition by substituting the following directions:

Those candidates belonging to SC/ST category who were recommended for promotions applying the same bench mark of 'good' as applicable to the general candidates such SC/ST candidates would be adjusted against unreserved points. On the other hand such SC/ST candidates who are given promotion on the basis of

relaxed standards would be treated as promoted against reserved vacancies."

This Court, during the course of the judgment, noted that vide OM dated

11.7.2002 it had been clarified that those SC/ST candidates who were selected on

their own merit were to be adjusted against unreserved slots. This judgment

squarely applies to the case before us, as the rules for promotion for the feeder

cadre of Inspectors in Central Excise and Customs to Superintendent Grade B are

identical to the rules for promotion from cadre of Inspector in Central Excise to

Superintendent Grade B in Central Excise, which were subject matter of Bharat

Bhushan & Anr (supra). The benchmark prescribed is „good‟ in both the cadres.

Those, who achieved the prescribed benchmark are to be rated fit and those who

are declared fit are to be promoted in order of their seniority. As noted by this

Court, there is an element of selection in the benchmark „good‟ since those who

had not achieved the prescribed benchmark of „good‟ are required to be treated as

unfit and consequently are not to be promoted.

13. In Union of India v. Central Administrative Tribunal, Writ Petition No.

1311/1999, decided by Madras High Court on 28.1.2003 the decision of which was

affirmed by Supreme Court in K.Manorama (supra), Rule 204.8 of the relevant

rules provided that the candidates securing 80 marks and above would be graded as

"Outstanding" and candidates who were securing between 60% marks and 79%

marks would be graded as "Good". Rule 204.9 provided that employees securing

the gradation "Outstanding" were to be placed on top, followed by those securing

the gradation "Good", inter se seniority within each group being maintained. The

High Court noted that the selection of „outstanding‟ candidates was placed purely

on merit, without any other consideration, but, as far as rest of the candidates were

concerned, seniority was to prevail, irrespective of variation in their qualifying

marks. The „outstanding‟ candidates were to have a march over all other

candidates, irrespective of seniority, but, when it came to candidates coming in the

category of „Good‟, seniority alone was to prevail, irrespective of the qualifying

marks secured by them. Of the two vacancies notified, one was reserved and other

was unreserved. No candidate had secured 80 marks or more in the written

examination and therefore all the successful candidates were arrayed in accordance

with their seniority in the feeder cadre. The 03rd respondent who was a scheduled

caste candidate and was also the seniormost, was placed at sl. No. 1 while the 04th

respondent, who was a general category candidate, was placed at sl. No. 2. The

second respondent an SC candidate was placed at sl. No. 5 in the order of seniority.

Admittedly, in the roster, SC point had to be filled in at the first instance and the

unreserved post had to be filled next. Since between 2 nd and 3rd respondents, who

belonged to reserved category, the 3rd respondent was the seniormost, having

achieved the first place in the gradation list, by virtue of minimum qualifying

marks scored by him his selection to the post of Assistant Law Officer at SC point

was imperative, the High Court was of the view that once the post in the reserved

category got filled up, there was no scope for the claim of the second respondent in

the reserved category. In unreserved category, since the fourth respondent was the

senior most as per the gradation list, he having secured the required marks for

getting a placement at the second level by virtue of his seniority, his selection

under unreserved category was also held to be correct. The contention raised on

behalf of the second respondent was that though the third respondent belonged to a

reserved category, on account of his position as No.1 in the gradation list, he ought

to have been selected against unreserved post, excluding the claim of the other

selected candidates. The High Court found no merit in the contention, the same

being applicable only to „outstanding‟ candidates and not to „good‟ candidates.

The High Court also held that the third respondent, who was a scheduled caste

candidate could not have been selected against unreserved category inasmuch as

once he stood first in the gradation list, by virtue of his „good performance‟ along

with others by virtue of his seniority, he had to be considered for selection in the

„SC category‟, which was the roster point in that selection and when once his

selection in that „SC category‟ was rightly made, there was no scope for

considering the claim of the second respondent in that category. It would thus be

seen that in the case before the High Court, it was the reserved point in the roster

which was to be filled up first. Respondent No.3 who was a reserved category

candidate, who on account of his having secured the qualifying marks and graded

as „good‟ and also being seniormost amongst the qualified candidates was required

to be considered against the reserved vacancy. It was not open to the Selection

Committee not to consider him against the reserved post, which was to be filled

before filling the unreserved post. Once respondent No.3 was selected against the

reserved post, there was no question of considering him again against the

unreserved post. It would thus be seen that the High Court upheld the selection of

respondent No.3 against the reserved post on account of the reserved post being the

first one in the roster to be filled up by promotion and respondent No.3 besides

being a reserved category candidate was also the seniormost qualified candidate.

When the matter was taken to Supreme Court, the appellant before the

Supreme Court who also belonged to a scheduled caste took the plea that

respondent No.3 Mr. M. Siddiah had been promoted on his own merit and not

because of his being a SC candidate and therefore he should have been adjusted

against the general category vacancy, whereas she should have been promoted

against the reserved post, on account of her being a scheduled caste. On

examination of the matter, Supreme Court found that, in fact, respondent No. 3 had

not obtained highest marks. He had obtained 124 marks, whereas respondent No. 4

obtained 128 marks. Two more candidates, who were not selected, had obtained

marks higher than the marks obtained by respondent No.3.

The Supreme Court noted that the Tribunal had observed in para 14 of its

order that respondent No.3 had obtained the highest number of marks in the

selection and therefore the question of his being the SC candidate had evaporated

on account of his being the most meritorious candidate in the entire selection. The

Tribunal had also observed that had respondent No.4 come up in the marks over

that of respondent No.3 and the question of the respondent No.3 being the senior in

the SC candidates, then respondent No.3 would have been justified in being

empanelled in the reserved category. The Supreme Court noted from the chart

quoted in the judgment that respondent No.4 had actually obtained the highest

marks i.e. 128, whereas respondent No.3 Mr. Siddaiah had obtained 124 marks.

There were two other candidates between respondent No.4 and respondent No.3,

one of them having obtained 127 marks and other having obtained 125 marks. The

Supreme Court observed that Mr. Siddaiah (respondent No.3) had been selected out

of them essentially because it was a scheduled caste vacancy, which came to be

allotted to him, keeping aside other candidates. The Court was of the view that

there was no occasion to apply the instruction contained in Railway Board‟s letter

dated 29.7.1993 nor the propositions in R.K.Sabharwal‟s case (supra). The

observations made by the Supreme Court in this regard are as under:

"In view of this position, there is no occasion to apply the instruction contained in Railway Board's letter dated 29.7.1993 nor the propositions in R.K. Sabharwal's judgment (supra) to the present case. Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of seniority-cum- suitability."

14. The learned counsel for the private respondents submitted that the decision

of Supreme Court in K.Manorama (supra) would not apply to the case before this

Court for the reasons that (i) respondent No. 3, in that case, who was promoted

against the reserved post had obtained lesser marks (124) than the general category

candidate who had obtained 128 marks and, therefore, did not have equal merit (ii)

the first vacancy to be filled up by promotion was a reserved vacancy and the SC

candidate having already been selected against that vacancy could not have been

considered against the general category vacancy and (iii) no office order or circular

similar to clarificatory OMs dated 11.7.2002 and 10.8.2010 had been issued. He

also submitted that in view of the decision of the Constitution Bench of Supreme

Court in R.K.Sabharwal (supra), it is no more res integra that not only those who

are appointed by way of direct recruitment, but also those who are promoted on the

basis of their own merit are to be adjusted against the general vacancies and not

against the reserved vacancies. We take note of the fact that in case of

K.Manorama (supra), it were rules 204.8 & 204.9 of the relevant rules which

applied to the case before the Court. Neither OM dated 2.4.1997 nor the OMs

dated 11.7.2002 & 10.8.2010 issued by DoP&T were applicable to the case before

the Supreme Court. Therefore, the observations made by the Supreme Court in the

context of the rules of Railways, would not ipso facto apply to the case before us,

where the promotions were to be made in terms of various OMs issued by DoP&T

from time to time.

15. Relying upon the decision of Supreme Court in Ajit Singh Januja (supra)

as well as the view taken by this Court in Bharat Bhushan (supra), it was

contended by the learned counsel for the petitioner that since some of the reserved

category candidates had, on account of reservation available in confirmation at the

relevant time, been granted earlier confirmation and consequently had become

senior to the petitioner, who was appointed earlier to them in point of time,

promotion of such candidates cannot be counted against general vacancies.

16. In Ajit Singh Januja (supra), the Government of Punjab had issued a

circular stating therein that those Scheduled Castes/Backward Classes employees

who get appointed/promoted against reserved points on the basis of their

merit/seniority could not be counted for the purpose of reservation but that reserve

point should be carried over to the next point on the roster and filled by a

candidate/employee belonging to Scheduled Castes/Backward Classes, so that the

deficiency of representation in service is made up. The issue which Supreme

Court was called upon to consider in that case was as to whether, the members of

Scheduled Casts/Tribes/Backward Classes, for whom specific percentage of posts

had been reserved and roster had been provided and who had been promoted

against those posts on the basis of "accelerated promotion", because of reservation

of posts and applicability of the roster system can claim promotion against general

category posts, in still higher grade, on the basis of their seniority, which itself was

the result of „accelerated promotion‟ on the basis of reservation in roster. Allowing

the appeal and setting aside the judgment of the Full Bench of Punjab and Haryana

High Court, Supreme Court observed and held as under:-

"In R.K. Sabharwal's case, this Court has treated the members of the Scheduled Castes and Backward Classes in two categories i.e. those who are appointed or promoted having competed with general category candidates on merit and those who are appointed/promoted on basis of reservation and roster. For those who have competed on merit it has been held that their number is not to be taken into consideration while working out the percentage of reservation. In respect of those members of Scheduled Castes and Backward Classes, who have been appointed/promoted on the basis of reservation and roster, it has been said in clear and unequivocal terms that the "running account" shall stop after the quota provided under the instructions is reached and the roster cannot be operated thereafter. In other words, there is no question of promoting further number of such candidates, who have been

appointed/promoted on the basis of reservation and roster.

If the contention of the respondents is accepted as has been done by the High Court that such appointees/promotees can be considered against posts meant for general category candidates merely because they have become senior on basis of accelerated promotions then, according to us, that exercise shall amount to circumventing the judgment of the Constitution Bench of this Court in the Sabharwal case, because for all practical purposes the promotions of such candidates are being continued like a running account although the percentage of reservation provided for them has been reached and achieved. Once such reserved percentage has been achieved and even the operation of the roster has stopped, then how it will be permissible to consider such candidates for being promoted against the general category posts on the basis of their accelerated promotion, which has been achieved by reservation and roster.

Once the quota is full and roster has stopped for members of the Scheduled Castes and Backward Classes in respect of whom reservation has been made and roster has been prescribed then their case for promotion to still higher grade against general category posts has to be considered not treating them as members of the Scheduled Castes or Backward Classes "on any crutch". They cannot be promoted only on basis of their 'accelerated seniority' against the general category posts. In R.K. Sabharwal's case it was said that the candidates belonging to Scheduled Castes who compete on their own merit along with general category candidates then they are not to be counted within the percentage of reservation made for such candidates in the service, because they have competed with the general category candidates on their

own merit. The same principle which has been enunciated by the Constitution Bench in the aforesaid case shall be applicable whenever a member of Scheduled Castes or Backward Classes has got accelerated promotion to a higher grade and is to be considered for further promotion to a still higher grade against general category posts. The accelerated promotions are to be made only against the posts reserved or roster prescribed. There is no question of that benefit being available when a member of Scheduled Castes or Backward Classes claims promotion against general category posts in the higher grade. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category candidate is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted scheduled caste/tribe candidate. As already pointed out above that when a scheduled caste/tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such scheduled caste/tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such scheduled caste/tribe candidate vis-a-vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to candidate belonging to the scheduled caste/tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for scheduled caste/tribe candidate in still higher grade then such candidate belonging to scheduled caste/tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his

case shall be considered first for promotion applying either principle of seniority cum merit or merit cum seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered in service on basis of reservation and roster but have excluded the general category candidates from being promoted to be posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution."

(emphasis supplied)

The case before us is not a case of second or subsequent promotion. We are

concerned with promotion to the cadre of Superintendent Grade „B‟ from the cadre

of Inspectors, who were directly appointed in that cadre. The case before us is not

a case of further promotion of those SC/ST candidates, who had already obtained

„accelerated promotion‟ in the feeder cadre. This was for the first time, they were

being considered against a promotional post. The principle laid down by Supreme

Court in Ajit Singh Januja (supra) is known as „catch up principle‟. However, a

contrary view was taken by a Three-Judge Bench of Supreme Court in Jagdish Lal

v. State of Haryana (1997) 6 SCC 538. That view was overruled by the

Constitution Bench in Ajit Singh (II) vs. State of Punjab (1999) 7 SCC 209 and

Ram Prasad v. D.K. Vijay, (1999) 7 SCC 251. The Constitution Bench re-affirmed

the view taken in Veer Pal Singh Chauhan (supra) and Ajit Singh Januja

(supra). The issue became alive again on enactment of Constitution (Eighty-fifth

Amendment) Act, 2001 which was aimed at restoring the benefit of consequential

seniority to the reserved categories w.e.f. 17.06.1995. The 77 th and 85th

Amendment to the Constitution were challenged before Supreme Court and the

matter was decided by a Constitution Bench in M. Nagaraj v. Union of India

(2006) 8 SCC 212. The Constitution Bench upheld the 77th, 81st, 82nd and 85th

Amendments to the Constitution as well as their retrospective effect. Certain

conditions were, however, imposed by the Constitution Bench. The view taken in

M. Nagraj (supra) was affirmed in Suraj Bhan v. State of Rajasthan, (2011) 1

SCC 467 as well as in a recent decision in U.P. Power Corporation Limited v.

Rajesh Kumar & Ors. 2012 (4) Scale 687. In the case before us, we are not

concerned with those conditions since the validity of the OMs issued by DOP&T

from time to time has not been challenged before us.

This decision, therefore, does not apply to the issues which we are called

upon to decide in this petition.

17. This Court in Bharat Bhushan (supra) gave certain examples of relaxed

standards in obtaining promotions, for example lesser benchmark, lesser qualifying

service, extended zones of consideration on account of being from reserved

categories, lesser number of ACRs etc. to be considered for promotion. Obtaining

early confirmation was not one of the examples of relaxed standard given by this

Court in the case of Bharat Bhusahn (supra). The learned counsel for the

petitioner has not drawn our attention to any judicial pronouncement holding that

obtaining early confirmation by a reserved category candidate would amount to

obtaining promotion on the basis of relaxed standards. More importantly, the

petitioner ought to have challenged the earlier confirmation granted to those

reserved category candidates who were junior to him in the feeder cadre of

Inspectors at the time when the confirmation leading to their becoming senior to

him in that cadre was granted. By not challenging their early confirmation, the

petitioner accepted the seniority granted to them by the department. Having

accepted the seniority by not challenging the same before an appropriate forum, the

petitioner cannot now rake up that issue in the form of the argument advanced by

him. It would be appropriate for us to note at this stage that in The Direct Recruit

Class-II Engineering Officers' Association and Others v. State of Maharashtra

and Others: (1990) 2 SCC 715, a Constitutional Bench of Supreme Court clearly

held that once an incumbent is appointed to a post according to rule, his seniority

has to be counted from the date of his appointment and not according to the date of

his confirmation. The petitioner therefore ought to have challenged, at the

appropriate time, the early confirmation and consequent seniority granted to those

reserved category Inspectors who were junior to him in the cadre of Inspectors. No

such course of action was however taken by the petitioner. We, therefore, find no

merit in this submission.

18. For reasons stated hereinabove we find no legal infirmity in the impugned

order. The writ petition is devoid of any merit and is hereby dismissed without any

order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J MAY 14, 2012 sn/rb/bg