JUDGMENT

Gokhale J. —

This appeal seeks to challenge the judgment and order dated 28.1.2003 rendered by the Madras High Court allowing Writ Petition No. 1311 of 1999 filed by the Respondent Nos. 1 and 2, and setting aside the order passed by the Central Administrative Tribunal dated 27.11.1998 which had allowed the Original Application No. 891 of 1996 filed by the appellant herein. The O.A. filed by the appellant thus stood dismissed by the impugned judgment and order of the High Court.

2. Short facts leading to this appeal are as follows:- At the relevant time in November 1994, the appellant was working as a Chief Law Assistant which was a Group-‘C’ post in the Southern Railways. The post higher to this post is that of the Assistant Law Officer which is a Group-‘B’ post. At the relevant time the total cadre strength of Assistant Law Officers in Southern Railway was three. Initially when ‘Assistant Law Officer’ was a single post cadre, in the year 1991, it was filled by an open category candidate. Subsequently, when two more posts were created in the year 1994, reservation was applicable. The posts were to be filled on the basis of seniority-cum-suitability. A notification holding 10 senior most candidates eligible for being considered for the two posts was issued on 10.11.1994. (The second respondent herein is the Chief Personal Officer of Southern Railways). To determine their suitability, a written examination was held. Eight Law Assistants obtained qualifying marks and became eligible for being called for the interview (one out of them opted out). The concerned committee recommended Respondent Nos. 3 and 4 for those two posts. Out of them, Respondent No. 3 is a Scheduled Caste candidate. Accordingly, the promotion order for both of them was issued on 26.5.1995.

3. The appellant also belongs to a Scheduled Caste and was of the view that the Respondent No. 3 (Mr. M. Siddiah), was promoted to the post of Assistant Law Officer on his merit and not because he was a Scheduled Caste candidate. It was her contention that instead of Respondent No. 4 (Mr. K. Rajagopalan Nair) belonging to the open category, she should have been promoted to the post of Assistant Law Officer on the basis of her status as a Scheduled Caste candidate. She, therefore, represented to the Chairman of the Railway Board on 14.2.1996 but there was no response. She, therefore, filed the above referred O.A. in the Central Administrative Tribunal (hereinafter referred to as Tribunal) at Chennai. The respondents Nos. 1 and 2 filed their reply statement before the Tribunal and pointed out that as per the Railway Board’s decision dated 29.7.1993 in small cadres having less than 4 posts, reservation had to be provided as per the 40 point roster when no SC/ST candidate was available in the Cadre. As per model 40 point roster the first point will have to be filled by a Scheduled Caste candidate, and the next two points were to be treated as unreserved. In para 1 & 2 of their reply the Respondent Nos. 1 and 2 stated as follows:-

“In this selection, the roster points to be filled up for the two vacancies were point Nos. 2 and 3. Both the points are UR (i.e Un-Reserved) points. As the first point which was a SC point was filled up by an UR candidate, being a single vacancy, out of the two vacancies for which notification was issued, one post was treated as SC.”

4. The appellant submitted before the C.A.T. that if a Scheduled Caste candidate competes for a non-reserved post and is selected, he should not be counted against the quota reserved for Scheduled Castes. According to the appellant, if the senior most among eligible candidates belongs to a Scheduled Caste, on being promoted, he should be treated as an open category candidate and should not be counted against the quota for Scheduled Castes. The judgment of a Constitution Bench of this Court in R.K. Sabharwal and Ors. vs. State of Punjab and Ors.1 [1995 (2) SCC 745] was relied upon in support.

5. The Central Administ