The main legal principle established is that the applicability of reservation and appointment against vacancies in a cadre with a small number of posts should be determined based on the rotation of the roster to give due representation to all categories.

Surjit Singh, J.

1. This writ petition, under Articles 226 and 227 of the Constitution India, is directed against the order dated 2nd July, 2003 of H.P. State Administrative Tribunal, whereby Original Application filed by the writ Petitioner has been dismissed. Prayer has been made for quashing the said order, by exercising the power of judicial review of this Court and granting the relief sought by the writ Petitioner, in the Original Application No. 3551 of 2000.

2. Relevant facts, which are admitted by both the sides, may be noticed. There is a cadre of Senior Law Officers in the Law Department of the State of Himachal Pradesh. It consists of three posts. Appointments to the cadre are made by promotion from the cadre of Law Officers. All the three posts in the cadre of Senior Law Officers had been filed. One post fell vacant on 31st August, 2000, on retirement of one Shri Krishan Chand Verma, who belonged to Scheduled Tribe category. Writ Petitioner, who belongs to Scheduled Caste category, made representation that he be considered for appointment against the said vacancy, on account of his belonging to reserved category of Scheduled Caste, because the post was earlier also manned by a person belonging to reserved category, i.e. of Scheduled Tribe. His claim was based on the plea that as per ratio of the Constitution Bench of the Supreme Court of India in R.K. Sabharwal and Ors. v. State of Punjab and Ors. (1995) 2 SCC 745, once all the posts in a cadre are filled, the roster, which is like a running account, ceases to be operative and the subsequent vacancies, occurring in the cadre, are required to be filled according to replacement theory, that is to say the person of the same category is to be appointed, to fill the vacancy, to which the person, who vacated the post, belonged. There was no response to the representation. So, the writ Petitioner filed an Original Application before the Tribunal. He alleged that no candidate of Scheduled Caste category had ever been appointed to the cadre and that since the post that fell vacant was earlier manned by a person belonging to Scheduled Tribe, another reserved category, he had the right to be appointed against that post.

3. Respondents denied that no person belonging to the Scheduled Caste category had ever been appointed as Senior Law Officer. They stated that one Sita Ram Dhaleta had been appointed as Senior Law Officer, who was lateron appointed as Assistant Legislative Counsel on 16th March, 1990, and thereafter Shri Krishan Chand Verma, who. belonged to Scheduled Tribe category, was appointed. Plea raised by the writ Petitioner that the matter was covered by the ratio of R.K. Sabharwal's case (supra) was disputed. It was stated that R.K. Sabharwal's case had no application in cases where strength of a cadre was less than 13. It was stated that following the judgment of the Constitution Bench in R.K. Sabharwal's case, the State Government had, vide notification dated 20th August, 1998, Annexure PD, issued instructions and Model Roster in respect of cadres with strength of 13 or less and to which appointments were to be made only by promotion. It was stated that according to Annexure PD and the Model Roster, where the total strength of a cadre is 13 or less and because of so low a strength representation to all the reserved categories, according to the percentage prescribed for them, is not possible, at every given point of time, a roster having number of points equivalent to the number of posts is not workable, as it would lead to excess representation to one category over the other for all times to come.

4. State Administrative Tribunal dismissed the Original Application holding that 13-Point Model Roster, prescribed by the State Government and appended to Annexure PD, had not been challenged and that, the judgment of Constitution Bench of Hon'ble Supreme Court in R.K. Sabharwal's case (supra) was meant for cadres where the total number of posts in the cadre was 40 or