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1996(2) SUPREME 436
SUPREME COURT OF INDIA
J.S. Verma, N.P. Singh and K. Venkataswami, JJ.
Ajit Singh Januja & Ors. -Appellant
versus
State of Punjab & Ors. -Respondents
Civil Appeal Nos. 3792-3794 of 1989
Decided on 1-3-1996
Held : We respectfully concur with the view in Union of India v. Virpal Singh Chauhan, Jt 1995(7) SC 231 that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated consequential category . 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/Scheduled 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 a 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 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 the 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. (Para 16)
Held then : According to us, the Full Bench was not justified in saying in the case of Jaswant Singh v. The Secretary to Government of Punjab, 1989(4) SLR 307 (P&H) that non consideration of Scheduled Castes candidates against general category posts on basis of their prior promotion will be hit by Articles 14, 15 and 16 of the Constitution. That view shall be deemed to be against the pronouncement of this Court by the nine Judges Bench in the case of Indra Sawhney v. UOI, 1992 Suppl. (3) SCC 217, as well as the view expressed by the Constitution Bench in the case of R.K. Sabharwal v. State of Punjab, 1995(2) SCC 745. Accordingly, the appeals are allowed and that part of the judgment of the Full Bench in the case of Jaswant Singh v. The Secretary to Government of Punjab (supra) is reversed. Now the case of the appellants and others similarly situated should be considered in the light of this judgment. We are not inclined to examine individual grievances and to work out the effect of the views expressed bu us. That shall be done by the State Government. In the facts and circumstances of the case, there shall be no orders as to cost. (Para 17)
JUDGMENT
N.P Singh. J.-These appeals have been filed against the judgment of a Full Bench of the Pubjab & Haryana High Court dated 23.8.1989 dismissing three writ petitions (C.W.P. No. 2190/88, C.W.P. No. 7860/87 and C.W.P. No. 7861/87) filed on behalf of the appellants. The petitioners in C.W.P. No. 2190 of 1988 were working on the posts of Superintendent Grade I, Superintendent Grade II and Assistant, in Pubjab Civil Secretariat, Chandigarh. They were members of the cadre of Punjab Civil Secretariat. The petitioners in C.W.P. No. 7860 of 1987 were working on the posts of Under-Secretaries/Superintendent Grade I, in the Punjab Civil Secretariat, Chandigarh, and were members of the cadre of Punjab Civil Secretariat. The petitioners in C.W.P. No. 7861 of 1987 were working against the posts of Deputy Secretaries/Under Secretaries in the Punjab Civil Secretariat and were members of State Service Class-I. The primary grievance made in all these writ petitions on behalf of the different petitioners, was that the policy for reservation in respect of candidates belonging to Scheduled Caste and Backward Classes, was being implemented by the State Government in a manner, because of which the members belonging to the Scheduled Castes and Backward Classes were holding posts in excess to their reservation quota. This was not only prejudicial but detrimental to the right of the petitioners for being considered for promotion to higher grade. Several other similar writ petitions had also been filed on behalf of others which were heard together and were dismissed by the common impugned judgment.
2. The State has been issuing from time to time Government Orders in respect of reservations for members of Scheduled Castes and Backward Classes. One such order was issued on 19.10.1949, making 15 reservation of posts in favour of Scheduled Castes to be filled up from amongst candidates who held minimum qualification for the posts. By another order dated 19.8.1952, the percentage of 15 was increased to 19 . By yet another order, dated 29.1.1959 roster system was introduced for implementing the policy of reservation. By an order dated 14.1.1964 reservation was fixed in all classes of posts i.e. I, II III and IV. However, by an order dated 23.8.1966, the State withdrew reservation for class I and II posts but the reservation in respect of class III and IV posts were increased to 20 . On 19.7.1968 a clarification was issued by the State Government saying that in direct recruitment the roster points shall be taken as seniority points for Scheduled Castes. By an order dated 4.5.1974, reservation was reimposed even in respect of Class I and II posts and it was fixed at 16 (14 for Scheduled Castes and 2 for Backward Classes). This reservation was to be provided by applying the roster system. The reservation of 14 posts for Scheduled Castes was the substantive provision and the roster was a machinery provision. By an Order dated 6.6.1974, the quota of reservation was increased to 25 for Scheduled Castes and 5 for Backward Classes w.e.f. 6.3.1974. On 7.1.1980 the State issued an order, the relevant part whereof says :-
"......it is made clear that those Scheduled Castes/Backward Classes employees who get appointed/promoted against reserve points on the basis of their merit/seniority should 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 belong to Schaduled Castes/Backward Classes so that the deficiency of representation in service is made up".
The aforesaid Government Order dated 7.1.1980 was considered by the High Court in the case of Joginder Singh Sethi v. Punjab Government1. The operative part of the judgment of the High Court is :
"For working out this percentage the promotees/appointees in this cadre whether on the basis of reservation or otherwise, have to be taken notice. In the light of this conclusion of ours we hold that any promotion
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