AI Drafter 
TaxTMI 
TaxTMI 
1999 (9) TMI 989
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....-94 of 1989 (Ajit Singh Januja and Ors. v. State of Punjab) [1996] 2 SCC 215 (hereinafter referred to as Ajit Singh in this judgment). The matter concerns a dispute relating to seniority of reserved candidates and general candidates. 2. At the outset we make it clear that in this judgment we are not concerned with the reservation policy of the State or with the validity of any procedure fixing roster points for purpose of promotion of reserved candidates. We are here dealing only with a limited question relating mainly to seniority of the reserved candidates promoted at roster points. 3. We also make it clear that what we are deciding today is based on principles already laid down by this Court since 1950 and in particular since 1963. Basing on those principles, we are concerned with the limited question as to whether Union of India v. Virpal Singh [1993] 6 SCC 685 and Ajit Singh Januja v. State of Punjab [1996] 2 SCC 215, which were earlier decided in favour of the general candidates are to be affirmed or whether the latter deviation made in Jagdish Lal v. State of Haryana AIR1997SC2366 against the general candidates, is to be accepted. How these IAs 1-3 came to be filed ....
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.... the reserved candidates ought to be balanced. In Ajit Singh the Court said the balance must be maintained in such a manner that there was no reverse discrimination against the general candidates and that any rule, circular or order which gave seniority to the reserved candidates promoted at roster point, would be violative of Articles 14 and 16(1) of the Constitution of India. 7. The Indian Railways following the law laid down in Virpal issued a circular on 28.2.97 to the effect that the reserved candidates promoted at roster points could not claim seniority over the senior general candidates prompted later. The State of Punjab after following Ajit Singh was proceeding to revise seniority lists and make further promotions of the senior general candidates who had reached the level to which the reserved candidates had reached earlier. 8. At that point of time, another three Judge Bench came to decide a case from the State of Haryana in Jagdish lal v. State of Haryana AIR1997SC2366 and took a view contrary to Virpal and Ajit Singh. It held that the general rule in the Service Rules relating to seniority from the date of continuous officiation which was applicable to candidates ....
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....ates, the roster ceased to operate. Unless any of the reserved candidates already promoted had retired or been further promoted etc. and unless there was a vacancy generated at the points already filled, fresh candidates from the reserved candidates could not be promoted by further operation of the roster. Having so held, the Court said that the judgment would be "prospective". The reserved candidates now contend that the above direction means that not only the reserved candidates so promoted in excess of the roster points could not be reverted but that their seniority against such excess promotions was also protected vide Sabharwal. 12. Likewise, in regard to Ajit Singh, the contention was as follows: Assume there are rosters at Level 1 and again at Level 2. Assume that a reserved candidate has been promoted from Level 1 to Level 2 on the basis of the roster point and again from Level 2 to Level 3 on roster point. A senior general candidate at Level 1 has later reached Level 3 and by that date the reserved candidate is still at Level 3. Assume that the plea of the general candidates that the general candidate became senior at Level 3 to the earlier promoted reserved candidate, ....
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.... question need not be decided in this batch as separate writ petitions challenging the validity of Article 16(4A) are pending in this Court. In view of the above stand, we shall proceed in these cases on the assumption that Article 16(4A) is valid and is not unconstitutional. At the same time, we also note the contention of the reserved candidates that Article 16(4A) must be deemed to be constitutional unless otherwise declared. Articles 16(1), 16(4) and 16(4A): 16. In the context of the first and second questions, it is necessary to refer to the relevant parts of Article 16 of the Constitution of India. 17. Sub-clauses (1), (4) and (4A) of Article 16 which have relevance in this case read as follows: Article 16(1)--Equality of appointment in matters of public employment--There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2).... (3).... (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately ....
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....Maryland (1819) 4 Wheel (17 U.S. 316), Chief Justice Marshall cautioned that we must keep in mind that it is the Constitution that we are expounding. He said that the Constitution was intended to endure for ages to come and had consequently to be adapted to the various crises of human affairs from time to time. Brandeis J wrote : "Our Constitution is not a straight jacket. It is a living organism. As such it is capable of growth, of expansion and of adaptation to new conditions. Growth implies changes, political, economic and social. Growth which is significant manifests itself rather in intellectual and moral conceptions of material things" (Brandeis Papers, Harvard Law School). Similarly, in a beautiful metaphor Mr. J.M. Beck said as follows: The Constitution is neither, on the one hand, a Gibraltor Rock, which wholly resists the ceaseless washing of time and circumstances, nor is it, on the other hand, a sandy beach, which is slowly destroyed by erosion of the waves. It is rather to be likened to a floating dock which, while firmly attached to its moorings, and not therefore at the caprice of the waves, yet rises and falls with the tide of time and circumstances" (Const....
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.... level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the senior most person at the basic level is to be considered first and then the others in the line of seniority). That is how right to be considered for promot....
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....and this has never been doubted in any other case before Ashok Kumar Gupta, right from 1950. Articles 16(4) and 16(4A) do not confer any fundamental right to reservation: 30. We next come to the question whether Article 16(4) and Article 16(4A) guaranteed any fundamental right to reservation. It should be noted that both these Articles open with a non-obstante clause -"Nothing in this Article shall prevent the State from making any provision for reservation.....". There is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4A). There is no directive or command in Article 16(4) or Article 16(4A) as in Article 16(1). On the face of it, the above language in each of Articles 16(4) and 16(4A), is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963. 31. We may in this connection point out that the attention of the learned Judges who decided Ashok Kumar Gupta and Jagdish Lal was not obviously drawn to a direct case decided by a Constitution Bench in C.A. Rajendran v. Union of India [1997]3SCR269 which arose under Article 16....
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....pled with duty: 34. Learned senior counsel for the reserved candidates, Sri K. Parasaran however contended that Article 16(4) and Article 16(4A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Reliance for that purpose was placed upon Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan [1986]2SCR17 and also on Julius v. Lord Bishop which case was followed by this Court in Commissioner of Police v. Gordhandas Bhanji [1952]1SCR135 . We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran v. Union of India (1968)IILLJ407SC held that Article 16(4) conferred a discretion and did not create any constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reservation under Article 16(4) in certain Class I and Class II services. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accept....
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....f the reserved classes must be balanced against the interests of other segments of society. In Indira Sawhney's case, Jeevan Reddy, J. explained how the fundamental right of the citizens as declared in Article 16(1) has to be balanced against the claims of the reserved candidates in Article 16(4). The learned Judge stated: (See page 734 para 808): It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are restatements of the principles of equality enshrined in Article (14. The provision under Article 16(4) - conceived in the interests of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. 36. The same principle was reiterated in the judgment of the Constitution Bench in Post Graduate Institute of Medical Education and Research v. Faculty ....
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.... affected. A reasonable balance has to be struck so that the affirmative action does not lead to reverse discrimination. We shall here refer to the speech of Dr. Ambedkar in the Constituent Assembly: Supposing, for instance, we were to concede in full the demands of these communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, that there shall be equality in opportunity. 40. Krishna Iyer, J. also cautioned in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981)ILLJ209SC that "care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse". The learned Judge relied upon Triloki Nath Khosla v. State of Jammu and Kashmir (1974)ILLJ121SC and State of Kerala v. Thomas (1976)ILLJ376SC . Krishna Iyer, J. stated in Soshit Karamchari case, (para 102) that reservations cannot lead to an 'overkill'. At page 301, His Lordship said: The remedy of 'reservations' to correct inherited imbalances must not ....
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....or of Customs (1967)ILLJ749SC lower down. The roster point merely becomes operative whenever a vacancy reserved at Level 2 becomes available. Once such vacancies are all filled, the roster has worked itself out. Thereafter other reserved candidates can be promoted only when a vacancy at the reserved points already filled arises. That was what was decided in R.K. Sabharwal v. State of Punjab. (iii) Seniority of roster promotees: 45. Question is whether roster point promotions from Level 1 to Level 2 to reserved candidates will also give seniority at Level 2? This is the crucial question. 46. We shall here refer to two lines of argument on behalf of the reserved candidates. Ajit Singh was an appeal from the judgment of the Full Bench of the Punjab and Haryana High Court in Jaswant Singh v. Secretary to Govt. Punjab Education Department. In that case, reliance was placed by the reserved candidates on a general Circular dated 19.7.69 issued by the Punjab Government which stated that the roster point promotions would also confer seniority. In fact, while dismissing the Writ petitions filed by the general candidates the High Court declared that the State was obliged to count sen....
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....he Civil Secretariat Service, Class-II Service Rules, 1963 deal with Superintendents (Grade I) i.e. Level 4 and Rule 8(2) states that promotion to the above posts in Class II is by the method of seniority-cum-merit and Rule 10 states that seniority is to be counted from the date of continuous officiation. Above Class II is class I which consists of posts of Under Secretary (Level 5) and Deputy Secretary (Level 6). Rule 6(3) of the Punjab Civil Secretariat (Class I) Rules, 1974 refers to promotion by seniority-cum-merit while Rule 8 thereof speaks of seniority by continuous officiation. For promotion to Class II and Class I, there is no roster promotion i.e. no reservation. There is reservation only in Class III posts by way of roster at two stages. 52. It is clear, therefore, that the seniority rule relating to 'continuous officiation' in promotion is part of the general scheme of recruitment by direct recruitment, promotion, etc., in each of the Services in Class I, II and III - and is based upon a principle of equal opportunity for promotion. In our opinion, it is only to such promotions that the seniority rule of 'continuous officiation' is attracted. (b) S....
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....on of India. Such a promotion and the seniority at Level 4 has to be reviewed after the decision of Ajit Singh. But if reserved category candidates are otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3, What we have stated above accords, in fact, with what was actually stated in Ajit Singh (1996)IILLJ154SC . In that case, N.P. Singh, J observed (P. 731): It also cannot be overlooked that for the first promotion from the basic grade, there was no occasion to examine their merit and suitability for promotion. 56. That, in our view, is the correct approach for balancing the fundamental rights under Article 14 and Article 16(1) on the one hand and the provisions relating to reservation in Article 16(4) and Article 16(4A). Was Jagdish Lal correctly decided: 57. Learned senior counsel for the reserved candidates however relied upon Jagdish Lal to contend that the roster promotees can count seniority in the promoted post from the date of continuous officiation as against senior general candidates promoted ....
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....ule, 1980, and there was no reservation. In those Rules also, Rule 9(3) stated that all promotions would have to be made by selection based on merit and taking into consideration seniority but seniority alone was not to give any right to such promotion. Rule 11 of the 1980 Rules also stated that seniority would count from the date of continuous officiation. Thus, in the Class III as well as Class II (Group B) Services, the "continuous officiation" rule was interlinked with the promotion rule based on equal opportunity, as in Ajit Singh, and formed a single scheme. 60. The Court in Jagdish Lal delinked Rule 11 from the recruitment rules and applied the same to the roster promotees. For the reasons given already in regard to Ajit Singh, we hold that Jagdish Lal arrived at an incorrect conclusion because of applying a rule of continuous officiation which was not intended to apply to the reserved candidates promoted at roster points. 61. The various rulings relied upon in Jagdish Lal do not, in our opinion, support the conclusions arrived at in that case. Some of these rulings were those where it was held that mere empanelment in a seniority list would not confer a right to promo....
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....he reserved category promotee who reached that category earlier had got a further promotion. Reference was also made in Jagdish Lal, to A.K. Bhatnagar v. Union of India (1995)IIILLJ287SC . That was a case where ad hoc recruits were regularised subsequently and were placed below regular recruits. It was held that their past ad hoc service could not be taken into account since they remained out of the cadre until regularisation. That case, in our view, has also no application. Jagdish Lal is, therefore, not correctly decided. Observations in Ashok Kumar Gupta which run contrary to Indira Sawhney and Sabharwal do not lay down correct law: 62. We may state that there are various other observations made in Ashok Kumar Gupta and we find that they run counter to the principles laid down by the nine Judge Bench in Indira Sawhney and the Constitution Bench in Sabharwal. In our view, these observations must, therefore, be treated as not laying down the correct law. Learned Counsel for the parties were in agreement with this line of approach. We, therefore, leave Ashok Kumar Gupta and do not deal with it any further. Was Virpal not decided correctly, as contended by reserved candidat....
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....t, as per para 319 of the Railway Establishment Code, Vol.I, panels were required to be prepared at each level. 66. We have examined Virpal closely in the light of the above objection. In our view, the above criticism is wholly unjustified and is based upon a wrong mixing up of the separate conclusions arrived at in Virpal in regard to two different sets of employees. As stated earlier, the Court was there concerned with posts of Railway Guards and also with posts of Station Masters. The former (i.e. Guard posts) were posts governed by the rule of seniority-cum-suitability. In other words, for Guards, seniority would govern subject to omission of those found unsuitable for promotion. On the other hand, Station Masters' posts were governed by selection at every level of promotion. The learned Judge, Justice Jeevan Reddy, while dealing initially with the promotions of Guards (See P.702 of SCC) from C Grade to B, from B to A, and from A to Special Grade A pointed out that the seniority-cum-fitness rule applicable in their cases resulted in the seniority at the Level of Guard C in the initial panel being reflected from stage to stage, subject to fitness. When the learned Judge c....
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.... of any circular, order or rule issued or framed by the State Government or the Union of India. This has to be tested on the basis of our constitutional scheme of Articles 14 and 16 of the Constitution. 69. In our opinion, there is no conflict in the principles laid down in these two judgments, nor is there anything wrong in the above elucidation of the law. In Virpal it was not necessary for the Court to go into the question whether any circular - if it gave seniority to the roster point promotees (reserved candidates) - could be treated as valid. But, in Ajit Singh which was an appeal against the Full Bench Judgment in Jaswant Singh [1989] 4 SLR 257, this Court was dealing with a declaration made by the Full Bench for implementation of the Punjab circular dated 19.7.69 (see para 29 of Full Bench) which positively declared that the "roster points were seniority points". That was why in Ajit Singh this Court had to consider the validity of such a Circular. In Ajit Singh this Court held that the declaration granted in the impugned judgment of the Full Bench in Jaswant Singh on the basis of the Punjab circular would be in conflict with Article 14 and Article 16(1). This Court had ....
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....ment service. It was said that the anomaly arose out of the fortuitous circumstance that in the particular service of Appraisers, for one reason or other, direct recruitment had fallen short of the quota fixed for it. The Court said: "we are not prepared to say that the rotational system of fixing seniority itself offends equality of opportunity....", To this extent the Court held against the promotees in regard to seniority at the basic level of Appraisers. The point here is the roster points in the case of reserved candidates do not determine seniority at the basic level. 73. Learned senior counsel for the reserved candidates however relied upon the second part of Mervyn which related to seniority at the next level of Principal Appraisers. It was the contention of the direct recruits-respondents that here again the seniority should be alternated between direct recruits and promotees as done at the basic level, though there was no such rule. Here, the promotee Appraisers contended that the seniority at the level of Principal Appraisers would be governed by the rule of continuous officiation and that there can be no rotation alternatively at this higher level on the basis of bir....
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....oster was meant only for reservation and not for fixing inter-se-seniority and that seniority depended upon the merit list prepared by the Public Service Commission or Selection Board. But the appellant, the reserved candidate relied upon Rule 9 of the Punjab PWD (Electricity Branch) Service Class III (Subordinate Posts) Rules, 1952 where Rule 9 provided seniority to be determined from the date of "regular" promotion. The limited dispute was whether his case fell within the "Exception" in Rule 9 which related to "temporary" promotees who would not get seniority upon such temporary promotion. The contention of the Board that he was a temporary promotee was not accepted by this Court on the facts of the case. No question vis-`-vis a general candidate arose. There are indeed certain observations that seniority of the reserved candidate had to be counted from the date of regular promotion which, in our opinion, are not correct. No question of Article 16(1) or seniority as against a general candidate arose. That case is distinguishable. In Kailash Chand Joshi the appellant, who was senior, belonged to the non-reserved category in the cadre of Munsifs. The respondents 3 to 11 though juni....
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.... while Superintendents Grade I would be so manned to the extent of 53%. (ii) In Jatinderpal Singh's case (C.A.Nos. 316-317/99) the top 134 positions of Principals (from Head Masters' source) would be from Scheduled Castes while the top 72 positions (from Head Mistress's source) would be from Scheduled Castes. It is stated that "adding this to the number awaiting promotions", the position would be that top 217 and 111 in these categories would be Scheduled Caste candidates - which would be 100% and 71% (the ' posts being only 156 under each source). One does not know what will happen in posts beyond Principal, if all persons in the zone are from SC/ST category. (iii) In Kamal Kant (SLP.4945/97 from Haryana) as of today: (a) among Deputy Secretaries, the first 8 posts are occupied by the reserved category (Scheduled Castes and Backward Classes) (b) among Under Secretaries (Group A) (officiating) 14 posts at the higher levels are occupied by the reserved category. 77. The above factual position is not, in fact disputed but it is said that this could be because the roster was operated again and again till that was stopped after Sab....
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....tch-up rules. Extreme 'catch-up' rule: 83. So far as the extreme contention of the general candidates that at Level 3, the roster candidate must wait at Level 3 - before being promoted to Level 4 - till the last senior general candidate at Level 1 reached Level 3, - we reject the same in as much as that will not amount to a reasonable balancing of the rights of the candidates in the two groups. Nor do we accept that posts must be kept vacant and no promotions of the roster candidates be made. Other Catch-up rule: 84. As accepted in Virpal (see AIR1996SC448 and Ajit Singh (see [1996] 2 SCC 729, we hold that in case any senior general candidate at Level 2 (Assistant) reaches Level 3 (Superintendent Grade II) before the reserved candidate (roster point promotee) at Level 3 goes further up to Level 4 in that case the seniority at Level 3 has to be modified by placing such a general candidate above the roster promotee, reflecting their inter se seniority at Level 2. Further promotion to Level 4 must be on the basis of such a modified seniority at Level 3, namely, that the senior general candidate of Level 2 will remain senior also at Level 3 to the reserved candidate....
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.... promotion: 87. Before we leave point 3, we may refer to another submission made by Sri K. Parasaran, learned senior counsel for the reserved candidates. Learned Counsel submitted that even if the seniority of the reserved candidates had gone up to Level 3 earlier by the roster at two levels 1 & 2 is not counted, still the 'experience' gained by them at Level 3 well before the senior general candidate 'caught up' to that Level, cannot be disregarded for purposes of promotion to Level 4. 88. It is true that the roster point promotee who has reached the promotional level 3 even if he is not entitled to seniority would have gained considerable 'experience' at that level. That experience is, no doubt, of considerable relevance in considering his case for further promotion to Level 4. But, at the same time, it is to be noted that the general candidates had longer experience at level 1 and level 2 and have come up to level 3 by way of competition among the general candidates at two stages. The said longer 'experience' gained by them at the lower levels 1 and 2 and the manner in which they have reached the level 3 to which the reserved candidate had r....
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....y unjustified. This Court in Sabharwal therefore tried to prevent such reversions and declared (P. 753 of SCC, Para 11) as follows at the end of the judgment: We, however, direct that the interpretation given by us to the working of the roster and our findings on this point shall be operative prospectively. (ii) The rival contentions: 91. To the extent of saving the reversions of those from reserved classes promoted before 10.2.95 though such promotions were made contrary to what was decided in Sabharwal, there is no serious dispute from the side of the general candidates, but a contention is raised by the reserved candidates who got such promotions in excess of the reservation quota that they should in addition get the benefit of the seniority in the promotional post even if such promotion made before 10.2.95 was wrong in view of what was decided in Sabharwal. This plea is strongly opposed by the general candidates. (iii) Our conclusion: 92. It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. I....