JUDGMENT

Rajendra Babu, J.-

Civil Appeal No. 6461 of 1994 :

A writ petition was filed before the High Court of Punjab and Haryana by the respondents. Facts, in brief, giving rise of this appeal are as follows.

2. Respondent No. 1 was selected as Ziledar and after completion of training was appointed in the Irrigation Department in January 1975. Under the relevant recruitment rules three sources were provided for appointment to the post of Tehsildar ( B Class)-(i) 40% by direct recruitment, (ii) 40% by promotion, and (iii) 20% by transfer from amongst the following categories :-

(i) Superintendent of the office of the Deputy Commissioners;

(ii) Assistant Superintendent of Commissioners and Deputy Commissioners office;

(iii) District Kanungoes;

(iv) Zonal Ziledars of P.W.D. (lrrigation Branch); Or

(v) Head Assistant of Director Land Records Office.

3. The Government on February 9, 1979 issued intructions wherein it was stated that the quantum of reservation would be to the extent of 20% for Scheduled Castes in the case of direct recruitment to Class I, II, III, and IV posts. It was clarified that in all appointments by promotion 20% reservation will be granted in favour of the Scheduled Castes but such reservation would be limited to Class III and Class IV posts on the basis of seniority-cum-merit. It was expressly stated that in respect of appointments by promotion there will be no reservation in Class I and Class II posts. It was further clarified in the instructions issued on June 10, 1982 that if posts were filled by transfer to an idential time scale of pay, there would be no reservation but if a higher post was filled by transfer then the benefit of reservation would be given. Process of selection was announced to the post of Tehsildar ( B Class) for appointment by transfer in the year 1986. Eight persons were appointed in 1986, four in 1990 and six in 1992. In the recruitment made as per the rules in 1986 the benefit of reservation was not given to the post of Tehsildar which is a Class II post. Respondent No. 1 filed a writ petition claiming his right to appointment on the ground that he is a senior Ziledar and also on the basis of reservation. The High Court made an order on the basis that reservation was available in the case of appointment by transfer to Class II post. The High Court did not consider the fact that even assuming that reservation had to be granted in this category, the claim of all the Scheduled Castes candidates in the five posts from which the recruitment was to be made by transfer. This order is in challenge before us in this appeal.

4. The first respondent contended that he is entitled to the post in question not only on the basis of reservation in favour of a Scheduled Caste candidate but also that he is being appointed by way of transfer from a lower scale of Ziledar in the Irrigation Department to a different department, that is, Revenue Department to the post of Tehsildar. The instructions issued by the Government would not be applicable and on the other hand he would be entitled to such appointment. A bar, if any, is implied and that the instructions are applicable to each and every Schedule Caste candidate wherever transfer is made to an equivalent post and for purpose of getting the benefit of the reserved post by way of transfer it must be from a post carrying lower pay scale to another post in any department carrying a higher pay scale. On that basis it is contended that the view taken by the High Court is in order.

5. We have carefully examined the facts arising in the case. The facts available on record clearly disclose that Ziledar is a Class III post and Tehsildar and Deputy Collector are Class II posts. The posts of Clerk, Assistant and Assistant Superintendent are Class III posts, while the post of Superintendent, Deputy Collector and Tehsildar are Class II posts. Respondent No. 1 had worked for about two