IMPORTANT POINTS
1. In case of regular appointment, confirmation of the appointee dates back to his initial date of appointment by promotion and by operation of Rule 11 of the Haryana Education Deptt. (State Service Group B) Rules, 1980, and the proviso, the seniority stands determined from the date of his appointment to the cadre/grade.
2. Protective discrimination envisaged in Articles 16(4) and 16(4A) of the Constitution of India is the armour to establish equilibrium between equality in law and equality in results as a fact to the disadvantaged as the principle of reservation in promotion provides equality in results.

Headnote:(i) Service Law-Haryana Education Deptt. (State Service Group B) Rules, 1980-Rule 11-Seniority -From what date seniority is required to be determined?-Held, from date of his appointment to cadre/grade-This principle is applicable equally to general as well as reserved candidates-Accelerated promotion given to reserved candidates to various cadre-It will grant them seniority from date of respective promotion-Whether such a rule becomes arbitrary or violative of equality enshrined under Art. 14 r/w Art. 16(1) of Constitution, when applied to Dalits and Tribes ?-(No)-Reserved candidates became senior to general candidates in each successive cadre/grade from Assistant to Superintendent in Class III Service and in Class I Service-Their seniority not wiped out after promotion of general candidates-Judgment of High Court upheld. (Haryana Education Department Class III Service Rules, 1974).
       Held : As soon as a person is appointed to a cadre/grade, he starts discharging the duties of his continuous length of service from the date of appointment to the post and his seniority is determined on the basis of that date unless he is appointed only as a stop-gap arrangement or on ad hoc basis and de hors the Rules. In case of regular appointment, the appointing authority is enjoined to put him on probation and on successful completion of the probation period of one year including the period spent on the higher post(s), unless the probation is extended upto a maximum of three years, he stands confirmed in the promoted post. Thus, his confirmation dates back to his initial date of appointment by promotion and by operation of Rule 11 and the proviso referred to hereinabove, the seniority stands determined from the date of his appointment to the cadre/grade. It would thus be manifest that as soon as the candidate, whether general or reserved, gets promoted from one cadre, e.g., a Clerk is promoted as Assistant on his completion of probation and on declaration thereof, he gets confirmed as Assistant and becomes a member of the Service from the initial date of appointment by promotion. Equally, when an Assistant becomes Deputy Superintendent and Deputy Superintendent becomes Superintendent, the method of computation of seniority would be the same, viz., as soon as his probation is declared, he becomes a member of the Service. On availability of permanent post, he get appointed to the post and thereafter ceases to be a member of the feeder/lower cadre. In this regard, under Fundamental Rule 14-A(a) a Government Servant s lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. Under Fundamental Rule 14-A(d) a Government servant s lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne. A conjoint reading, thus, would establish that a Government servant shall always have a lien on the post and, simultaneously, he shall not have right to hold any lien on more than one post. In other words, the articulated major premise is that an employee cannot simultaneously be a member of two posts/service/grade/cadre nor is he eligible to hold lien on two posts. On promotion from the post of Clerk as Assistant, on successful and satisfactory completion of probation and declaration thereof, he becomes a member of the Service in the cadre of Assistant and so on till the cycle is complete. Vice versa, there are various stages of promotion to the higher echelons or Service and the same resultant consequences follow. The same principle equally applies in Group B Service under 1980 Rules. This principle is applicable equally to the general as well as reserved candidates. On this principle, there is and there should be no dichotomy and this is the settled service jurisprudence. In the case of appointment by promotion of Dalits and Tribes, no different yard stick should be applied. This is the normal/common phenomenon in service jurisprudence in Service under, either the Union Government or the State Government, or for that matter, semi-Government authorities/ corporations/ undertakings. (Para 10)
       Further held : On promotion to the higher cadre, the reserved candidate steals a march over general candidates and becomes a member of the service in the higher cadre or grade earlier to the general candidates. Continuous length of service gives him the seniority as determined under Rule 11. Therefore, seniority cannot get re-opened, after the general candidate gets promoted to the higher cadre/grade, though he was erstwhile senior in the feeder cadre/grade. (Para 12)
       It would, thus, i.e., a settled constitutional principle that facilities and opportunities should be given to the Dalits and Tribes for promotion to higher cadre or grade, gain accelerated seniority by the Dalits and Tribes and delimit the seniority of the erstwhile general candidates in the lower cadre or grade in accordance with the roster point. Thereby, the Dalits and Tribes are getting an accelerated placement in the higher echelons of cadre of grade. It is constitutionally a permissible classification bearing reasonable nexus to the object of equality in results as component of economic and social empowerment. It is just are reasonable procedure prescribed to achieve the constitutional objectives of equality in result, of status and opportunity and dignity of person to integrate them in the mainstream of the national life, as per the arch of the Constitution, i.e., the Preamble, Articles 14, 15, 16 and 46 and all other related Articles of the Constitution consistent with the efficiency of administration envisaged under Article 335 of the Constitution. (Para 13)
       Consequently held : Thus considered, we hold that the view taken by the High Court in that behalf is correct in law and is not vitiated by any infirmity in law. We further hold that the reserved candidates became senior to the general candidates in each successive cadre/grade from Assistant to Superintendent in Class III Service and 5th respondent in Class I Service. Their seniority is not and cannot have the effect of getting wiped out after the promotion of general candidates from their respective dates of promotion. The general candidates remain junior in higher echelons to the reserved candidates as was held by the High Court. (Para 15)
       (ii) Constitution of India-Arts. 14, 15, 16-Protective discrimination-Principle of reservation in promotion-Validity of.
       Held : Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities and opportunity for excellence in each cadre/grade. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate inequality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and in order to bring about real equality, affirmative action fills the bill and allows to give preference to the socially and economically disadvantaged persons by inflicting handicaps on those more advantageously placed. Such affirmative action though apparently discriminatory, is calculated to produce equality in results on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful and a disadvantaged sections so that each member of the community, whatever is by his birth, occupation or social position, may enjoy equal opportunity of using to the full, his natural endowments of physique, of character and of intelligence. (Para 13)
       Protective discrimination envisaged in Articles 16(4) and 16(4-A) is the armour to establish the said equilibrium between equality in law and equality in results as a fact to the disadvantaged. The principle of reservation in promotion provides equality in results. (Para 14)
       After the Constitution (77th Amendment) Act, Article 16(4-A) gives fundamental rights to the Dalits and Tribes to promotion to a post or a service in the State. The protective discrimination is a contour to bring about equality in results to the Dalits and Tribes. It is a facet of equality under Articles 14, 15 and 16 of the Constitution. Therefore, when competing rights between general and reserved candidates require adjudication and adjustment with the right of general candidates, the doctrine of violation of Article 14 has no role to play since protective discrimination itself is a facet of Article 14 and it does not again deny equality to the reserved candidates. (Para 15)
       (iii) Constitution of India-Arts. 226 and 32-Discretionary reliefs under-Delay in filing writ petition challenging promotion of reserved candidates-Writ petition rightly dismissed.
       Held; the delay disentitles the party to the discretionary relief under Article 226 or 32 of the Constitution. It is not necessary to reiterate all catena of precedents in this behalf. Suffice it to state that the appellants kept sleeping over their rights for long and elected to wake up when they had the impetus from Vir Pal Chauhan and Ajit Singh s ratios. But Vir Pal Chauhan and Sabharwal s cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation, to all the persons prior to the date of judgment in Sabharwal s case, which required to be examined in the light of law laid in Sabharwal s case. Thus earlier promotions cannot be reopened? Only those case arising after that date would be examined in the light of the law laid down in Sabharwal s case and Vir Pal Chauhan s case and equally Ajit Singh s case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed. Desperate attempts of the appellants to re-do the seniority had by them in various cadres/grades though in the same services according to 1974 Rules or 1980 Rules, are not amendable to judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well. (Para 16)

JUDGMENT

K. Ramaswamy, J.-Leave granted.

We have heard learned counsel on both sides.

2. This appeal by special leave arises from the Division Bench Judgment of Punjab & Haryana High Court, made on November 5, 1996 in C.W.P. No. 8755/96.

3. The appellants-general candidates, viz., Jagdish Lal, Ram Dayal and Surinderjit Kapil, challenged the promotion of the Scheduled Caste and Scheduled Tribes Candidates (for short, the reserved candidates ), viz., Ram Asra, H.S. Hira, Sant Lal and Ajmer Singh, as Superintendents in Class-III Service of Haryana Government. Respective appointments of the appellants and the respondents have been reflected in the judgment of the High Court as under :

S. Name Seniority Dt. of As Asstt. As Dy. As Supdt. As Budget As R.E. No. No. in the Apptt. Supdt. Officer (Class I) seniority as Clerk (Class II) list of

1.1.1995

Appellants :

1. Jagdish Lal 22 24.11.58 1.12.68 27.10.87 1.4.90 - -

2. Ram Dayal 28 22.2.61 1.12.68 16.1.89 9.8.91 - - 3. Surinderjit 56 1.9.66 10.4.72 2.2.96 - - Kapil

Private Respondents

(Reserved Category Candidates)

1. Ram Asra 48 31.1.66 22.9.71 26.5.82 4.9.87 - -

2. H.S. Hira 64 18.4.67 31.5.73 27.10.83 27.5.88 - 2.2.96

promoted on ad hoc basis for a period of 4 months only and 31.5.96 on regular basis.

3. Sant Lal 91 16.8.71 6.11.78 4.11.87 8.2.90 - -

4. Ajmer Singh 99 24.8.72 9.9.79 31.10.88 1.7.90 - -"

4. In the lowest cadre post, i.e., Clerks and Assistants, in the Education Department, admittedly, the appellants were senior to the respondents. But as Deputy Superintendents, Respondent Nos. 1 and 2 were promoted respectively on May 26, 1982 and October 27, 1983, while the appellants were promoted on different dates, viz., October 27, 1987, January 16, 1989 and February 2, 1996. Sixth respondent, Sant Lal was promoted on November 4, 1987, that is, prior to the promotion of Surinderjit Kapil. Equally, respondent No. 7, Ajmer Singh also was promoted earlier to Ram Dayal and Surinderjit Kapil on October 31, 1988. While working as Deputy Superintendent, Ram Asra was promoted to the post of Superintendent on September 4, 1987; H.S. Hira was promoted as Superintendent on May 27, 1988 while the first appellant, Jagdish Lal was promoted on April 1, 1990 and Ram Dayal, appellant No. 2 was promoted on August 9, 1991; Sant Lal, respondent No. 6 was promoted on February 8, 1990, that is, prior to the promotion of Jagdish Lal as Superintendent. Equally, Ajmer Singh, 7th respondent was promoted as Superintendent on July 1, 1990, that is, prior to the promotion of second appellant, Ram Dayal on August 9, 1991. While all of them were working as Superintendents, H.S. Hira was further promoted on ad hoc basic w.e.f. February 2, 1996 for a period of 4 months and from May 31, 1996 on regular basis, in his own right, as Registrar (Education) which post in now classified as Class I post. On June 4, 1996, the appellants filed a writ petition claiming that right from the post of Clerk upto the post of Superintendent, the Class III Service of the Education Department, they were senior to the reserved candidates. Though they were promoted on the basis of rule of reservation applying the 100 point roster maintained by the Government, they stole a march over the appellants who were being members of the same Class III Service. They further claimed that though the reserved candidates had got promotion to the di

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1997 Supreme(SC) 841

Cases Referred (17)