The application of 40 point roster to the successive vacancies in the post of Secretary does not violate Article 16(1) of the Constitution.

JUDGMENT :

1. Delay condoned.

2. Leave granted.

3. On the last occasion when the matter had come up after notice, since the respondents were not represented either in person or through counsel and when the counsel had pointed out the decision followed by the Tribunal, namely, Dr. Chakradhar Paswan vs. State of Bihar, (1988) 2 SCC 214, this Court had referred the matter to three-Judge Bench. Thus, the matter has come up to-day. Even now, none is appearing for the respondents; nor are they appearing in person. We have taken the assistance of Sri Goswami; learned senior counsel. We requested him to place on record the decision for or against him. He has fairly argued case.

4. The admitted facts are that in the National Savings Scheme Service, the Government had created various posts upto the post of Superintendent; there are number of posts but there is only one post of Secretary. This post is a feeder post for promotion as Regional Deputy Director in which category there are several posts. The Government applied the rule of reservation by rotation to the vacancies in the post of Secretary. 40 point roster is also being applied to these vacancies. In the post of Secretary, point No. 4 vacancy was reserved for Scheduled Tribes. When that vacancy was sought to be filled up by promotion from the Superintendents in Group A category from Scheduled Tribes candidates, the respondent filed OA in the Central Administrative Tribunal at Bombay. The Tribunal, following the decision of this Court in Paswan's case (supra), by order dated March 11, 1992 in OA No. 613/90, set aside the promotion holding that since the post of Secretary is a single point post, no reservation could be granted to the reserved candidates as it would amount to 100% reservation; therefore, it is unconstitutional. Thus, this appeal by special leave.

5. The question is: whether the application of 40 point roster to the successive vacancies in the post of Secretary violates Article 16(1) of the Constitution? Shri Goswami has contended that in Paswan's case, that question was left open since the controversy did not arise therein on those facts. Since the Government have decided that when in a single post vacancy arises as per roster point and when candidates belonging to Scheduled Castes or Scheduled Tribes are available, then the vacancy reserved for respective Scheduled Caste or Scheduled Tribe could be considered as per rules for appointment by promotion to the post (sic) Secretary. In the absence of their availability, the vacancies would be and is being carried forward. Therefore, the principle of rotation applied to a single post is not violative of Article 16(1) of the Constitution. He has taken us through various judgments of this Court concerning the question.

6. In General Manager, Southern Railway vs. Rangachari, (1962) 2 SCR 586, the Constitution Bench, per majority, had held that appointment by reservation to the selection post was not violative of Article 16(1) of the Constitution. The same principle was followed in the case of promotion in State of Kerala vs. Thomas, (1976) 1 SCR 906. In The State of Punjab vs. Hira Lal, (1970) 3 SCC 567 and A.B.S.K. Sangh vs. Union of India, (1985) 2 SCR 185 and Comptroller and Auditor General vs. S.K. Jagannath, (1986) 2 SCR 17, the matters were referred to a larger Bench. In Indra Sawhney and Ors. vs. Union of India and Ors., (1992) Supp. 3 SCC 217, per majority, the Bench of nine Judges of this Court had held that Article 16(1) and 16(4) do not apply to appointment by promotion. They would be applicable only to initial appointments. By Section 2 of the Constitution (77th Amendment) Act, 1995, Article 16(4A) was introduced which envisages that nothing in this Article shall prevent the State from making any provision in reservation in matter of promotion to any class or classes of posts in the service under the State. It is well settled legal position that Preamble of the Constitution is part of the Constitution. In S.R. Bommai