{"id":81408,"date":"1995-10-10T00:00:00","date_gmt":"1995-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-ors-etc-vs-virpal-singh-chauhan-etc-on-10-october-1995"},"modified":"2017-08-24T00:46:29","modified_gmt":"2017-08-23T19:16:29","slug":"union-of-india-and-ors-etc-vs-virpal-singh-chauhan-etc-on-10-october-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-ors-etc-vs-virpal-singh-chauhan-etc-on-10-october-1995","title":{"rendered":"Union Of India And Ors. Etc vs Virpal Singh Chauhan Etc on 10 October, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India And Ors. Etc vs Virpal Singh Chauhan Etc on 10 October, 1995<\/div>\n
Equivalent citations: 1996 AIR 448, \t\t 1995 SCC (6) 684<\/div>\n
Author: B Jeevan Reddy<\/div>\n
Bench: Jeevan Reddy, B.P. (J)<\/div>\n
           PETITIONER:\nUNION OF INDIA AND ORS. ETC.\n\n\tVs.\n\nRESPONDENT:\nVIRPAL SINGH CHAUHAN ETC.\n\nDATE OF JUDGMENT10\/10\/1995\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nAGRAWAL, S.C. (J)\n\nCITATION:\n 1996 AIR  448\t\t  1995 SCC  (6) 684\n JT 1995 (7)   231\t  1995 SCALE  (5)648\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t       J U D G M E N T
\nB.P. JEEVAN REDDY, J.\n<\/p>\n
     C.A. NOS.9272-73 & 9277 1995 (ARISING OUT OF S.L.P. (C)
\nNOS.6468 OF  1987, 1682\/88,  AND 8111\/94),  C.A. NO.2261\/87,
\n5044\/89, 4436\/90,  18\/90, W.P. (C) 1208\/87 AND 565\/93. [Main
\nOpinion]
\n     Leave granted in Special Leave Petitions.\n<\/p>\n
1.   These appeals\/writ\t petitions raise  an  important\t but
\ndifficult  question   concerning  the\tnature\tof  rule  or
\nreservation in\tpromotions obtaining  in the Railway service
\nand the\t rule  concerning  the\tdetermination  of  seniority
\nbetween\t general  candidates  and  candidates  belonging  to
\nreserved classes in the promoted category. The issue is best
\nillustrated by\ttaking the  facts  in  the  first  of  these
\nmatters, viz.,\tUnion of  India and  Ors.  v.  Virpal  Singh
\nChauhan<\/a> – civil appeal No.9272\/95 arising from Special Leave
\nPetition (C)  No.6468  of  1987.  The  appeal  is  preferred
\nagainst the  judgment of the Central Administrative Tribunal
\n(Allahabad Bench)  disposing of\t Original Application No.647
\nof 1986 with certain directions. [It was originally filed as
\na writ\tpetition in  the Allahabad  High Court which, on the
\nconstitution  of   the\t Central   Administrative   Tribunal
\n(Allahabad Bench),  was transferred to the Tribunal.] It was
\nfiled by,  what may  be called\tfor the sake of convenience,
\nemployees not  belonging to  any of  the reserved categories
\n(hereinafter referred  to as  “general candidates”  –  which
\nmeans\topen\tcompetition   candidates).    The    railway
\nAdministration\tas   well  as  the  employees  belonging  to
\nreserved categories,  i.e., Scheduled  Castes and  Scheduled
\nTribes\t were\t impleaded   as\t   respondents.\t  The\twrit
\npetition\/original  application\tcame  to  be  filed  in\t the
\nfollowing circumstances:\n<\/p>\n
     Among the\tcategory of  Guards in\tthe Railway service,
\nthere are  four categories,  viz., Grade `C’ Grade `B’ Grade
\n`A’ and Grade `A’special. The initial recruitment is made to
\nGrade `C’  and they  have to  ascend rung  after rung  to go
\nupwards. The  promotion from  one grade\t to another  in this
\ncategory is  by seniority-cum-suitability.  In other  words,
\nthey are  “non-selection posts”.  The rule of reservation is
\napplied not  only at  the initial  stage of  appointment  to
\nGrade `C’  but at  every stage\tof promotion. The percentage
\nreserved for  Scheduled Castes\tis fifteen  percent and\t for
\nScheduled Tribes  7.5%, a  total of  22.5 percent.  To\tgive
\neffect to  the rule of reservation, a forty-point roster was
\nprepared in which certain points were reserved for Scheduled
\nCastes and  Scheduled Tribes respectively, commensurate with
\nthe percentage of reservation in their favour. For Scheduled
\nCastes candidates,  the places\treserved in the roster were:
\n1, 8,  14, 22, 28 and 36 and in the case of Scheduled Tribes
\ncandidates,  they  were:  4,  17  and  31.  Subsequently,  a
\nhundred-point roster has been prepared, again reflecting the
\naforesaid percentages.\n<\/p>\n
2.   In the  year 1986,\t the  position\twas  that  both\t the
\npetitioners   in    the\t  original   appalication   (general
\ncandidates) and\t the party-respondents\tin the said original
\napplication  (members  of  Scheduled  Castes  and  Scheduled
\nTribes) were  in the  grade  of\t Guards\t Grade\t`A’  in\t the
\nNorthern Railway.  On August  1, 1986, the Chief Controller,
\nTundla passed orders promoting certain general candidates on
\nad hoc\tbasis to  Grade `A’  special. Within less than three
\nmonths, however,  they were  sought to\tbe reverted  and  in
\ntheir place,  members of  Scheduled Castes\/Scheduled  Tribes
\nwere sought  to be  promoted. Compalining that such a course
\nof action  is illegal,\tarbitrary and  unconstitutional, the
\ngeneral\t candidates   approached  the\tHigh  Court,   which
\npetition, as  stated above, was transferred to the Tribunal.
\nThe general candidates asked for three reliefs, viz., (a) to
\nrestrain the  Railway authorities  from filling up the posts
\nin the\thigher grades  in the category of Guards by applying
\nthe  rule  of  reservation;  (b)  to  restrain\tthe  Railway
\nAdministration from  acting upon  the illegal seniority list
\nprepared by  them; and\t(c) to\tdeclare that the petitioners
\n(general  candidates)\tare  entitled  to  be  promoted\t and
\nconfirmed in  Guard Grade  `A’ special\ton the\tstrength  of
\ntheir seniority\t earlier to the reserved category employees.
\nTheir contention,  in short,  was (1)  that once  the  quota
\nprescribed for a reserved category is satisfied, the rule of
\nreservation –  or the  forty-point roster  prepared to\tgive
\neffect to  the said rule – cannot be applied or followed any
\nlonger and  (2) that the forty-point roster is prepared only
\nto give\t effect to  the rule  of reservation. It may provide
\nfor accelerated\t promotion but it cannot give seniority also
\nto a  reserved category\t candidate in the promoted category.
\nAccording to  them, the\t seniority in Guard Grade `C’ should
\ngovern and  should be  reflected in  all  subsequent  grades
\nnotwithstanding the  earlier promotion of the members of the
\nreserved categories.  Their case was that even if a reserved
\ncategory member\t `X’ is promoted from Grade `C’ to Grade `B’
\nearlier\t than\this  senior  `Y’  (general  candidate),\t the
\nposition should be that when the general candidate also gets
\npromoted later\tto Grade  `B’ which means that in Grade `B’,
\n`Y’ again  becomes senior  to `X’.  They submitted that this
\nshould be  the rule to be followed to ensure that command of
\nArticles 14  and 16  of the  Constitution of India prevails.
\nThey relied  upon two  decisions of the Allahabad High Court
\nand another  decision of  Madhya Pradesh in support of their
\ncontention. They  also relied  upon certain circulars of the
\nRailway Board in this behalf.\n<\/p>\n
3.   The case  of  the\tRailway\t Administration\t (Respondent
\nNos.1 to  4  in\t the  original\tapplication)  was  that\t the
\nAdministration is  maintaining seperate\t seniority lists for
\neach of\t the grades  in the  category of Guards according to
\nthe policy  in voque.  The  ad\thoc  promotions\t of  general
\ncandidates ordered on August 1, 1986 were irregular inasmuch
\nas the\tseniors in  the category  of Grade  `A’ Guards\twere
\nignored\t and  juniors  promoted\t by  the  Chief\t Controller,
\nTundla. The  Chief Controller,\tTundla was  not competent to
\norder the  said ad  hoc promotions.  The promotions  ordered
\nlater of  Scheduled Castes\/Scheduled  Tribes  candidates  is
\nstrictly in  accordance with the seniority position in Grade
\n`A’ and\t is unobjectionable.  The Administration  submsitted
\nthat seniority\tis determined  on the  basis of\t the date of
\npromotion and  since promotion\teffected applying the forty-
\npoint roster  cannot be\t said to  be an\t ad hoc promotion, a
\nScheduled Caste\/Scheduled  Tribe candidate  promoted earlier
\nto a  particular grade\tbecomes senior to another candidate,
\ngeneral or  otherwise, who  is promoted to that grade later.
\nIn short,  according to\t them, the  date of  promotion to  a
\nparticular grade determines the seniority in that grade.\n<\/p>\n
4.   The reserved  candidates (respondents  in the  original
\napplication) supported the stand of the Administration. They
\nsubmitted that the seniority list pertaining to Guards Grade
\n`C’ is\tnot relevant and cannot be followed in the matter of
\npromotion to  Grade `A’\t special from  Grade  `A’.  For\t the
\npurpose of  promotion to Grade-a special, the seniority list
\npertaining to Grade `A’ should be followed and since in that
\ngrade, the Scheduled Castes\/Scheduled Tribes candidates were
\nseniors, they  were entitled  to be  promoted to  Grade\t `A’
\nSpecial earlier\t than their  juniors in that seniority list.
\nThey submitted\tthat the  seniority in\ta  grade  should  be
\ndetermined according to the date of promotion\/appointment to
\nthat grade  and not in any other manner. They submitted that
\ninasmuch as  in the  higher grades,  the  representation  of
\nScheduled  Castes\/Scheduled   Tribes   members\t was   quite
\ninadequate, the Scheduled Castes\/Scheduled Tribes candidates
\nobtained rapid\tpromotions from\t one grade to another but it
\nis neither contrary to the rules nor is it inconsistent with
\nArticles 16 and 14. In fact, the very rule of reservation in
\npromotions  is\tmeant  to  increase  the  representation  of
\nScheduled Castes\/Scheduled  Tribes candidates  in the higher
\nechelons of  services quickly.\tNo exception can be taken to
\nthe said rule, they submitted.\n<\/p>\n
5.   Since  the\t  Tribunal  has\t strongly  relied  upon\t two
\ndecisions of  the Allahabad High Court and a decision of the
\nMadhya Pradesh\tHigh COurt, it would be appropriate to refer
\nto their ratio briefly.\n<\/p>\n
6.   In Civil  Writ Petition No.1809 of 1972, J.C. Mallik v.
\nUnion of  India, the allahabad High Court held that the rule
\nof reservation\tor the\tforty-point roster,  as the case may
\nbe, cannot  be followed\t and applied once the representation
\nof Scheduled  Castes\/Scheduled Tribes in a particular grade,
\ncadre  or   service,  reaches\tthe  prescribed\t  level\t  of
\npercentage. In\tother words,  once the\tquota of  22 1\/2% in
\nfavour of  Scheduled Castes\/Scheduled  Tribes is  satisfied,
\nthe rule  of reservation\/forty-point roster can no longer be
\nfollowed and applied. It may be mentioned that this decision
\nhas since  been referred  with approval\t in the Constitution
\nBench decision\tin R.K.\t Sabharwal v.  State of Punjab<\/a> (1995
\n(2) S.C.C.745).\n<\/p>\n
7.   The other\tdecision of  the Allahabad  High Court is in
\nSecond Appeal  No.2745 of  1983 arising\t from Suit No.308 of
\n1981, M.P.  Dwivedi v.\tUnion of  India &  Ors. The  learned
\nDistrict Judge,\t whose decision was under appeal in the said
\nsecond appeal,\thad decreed  the suit  filed by\t the general
\ncandidates  in\t the  following\t  words:  “The\t defendants-
\nappellants, their agents and servnts are restrained by means
\nof permanent  injunction from filling up the posts of higher
\ngrade in  the category\tof Guards  by way  of reservation in
\nfavour of  Scheduled Castes  and Scheduled Tribes candidates
\nin excess  of  fixed  by  Railway  Board.  Their  claim\t for
\ndeclaration to\tthe effect  that they  are  entitled  to  be
\npromoted to  the higher\t grades in the category of Guards on
\nthe  strength  of  their  seniority  list  prepared  by\t the
\ndefendant for Guards Grade-C on their initial grades is also
\ndecreed”. When\tthe matter  came  to  the  High\t Court,\t the
\nlearned Single\tJudge, who  disposed of\t the second  appeal,
\nheld:\n<\/p>\n
     “(A)fter having  considered  the  entire
\n     position I am of the opinion that in the
\n     present case promotion from grade `A’ to
\n     `A’ Special  cannot be made on the basis
\n     of\t reservation   so  long\t  as   Guards
\n     belonging\t to   Scheduled\t  Castes   or
\n     Scheduled\tTribes\tclass  in  grade  1A’
\n     Special are  in excess of the percentage
\n     reserved\tfor   them.   The   position,
\n     however, will  always remain fluctuating
\n     and will  have to\tbe  reviewed  by  the
\n     authorities from  time to\ttime. But the
\n     right of  Scheduled Castes and Scheduled
\n     Tribes candidates to promotion merely on
\n     the  basis\t  or   their   seniority-cum-
\n     suitability  without  any\treference  to
\n     reservation will  not be  barred. As and
\n     when percentage  of Scheduled Castes and
\n     Scheduled\t Tribes\t  guards   in\tgrade
\n     Scpecial goes  down below\tthe requisite
\n     percentage their  right to\t promotion on
\n     the basis\tof reservation\twill  revive.
\n     Subject to\t this modification the decree
\n     for injunction passed by the Court below
\n     is\t confirmed   and  the\tappeals\t  are
\n     dismissed.”\n<\/p><\/blockquote>\n
8.   The judgment  of the  Madhya Pradesh  High Court  is in
\nG.C.  Jain  v.\tDivisional  Rail  Manager,  Central  Railway
\n(reported in 1986 (1) S.L.R.588). The passage relied upon by
\nthe Tribunal reads thus:\n<\/p>\n
     “Those SC\t& ST candidates who have come
\n     or\t been  promoted\t due  to  reservation
\n     quota, having  already jumped the queue,
\n     cannot  be\t permitted  to\tcompete\t with
\n     general\tcandidates     for    further
\n     promotion. They  are a  special class by
\n     themselves and  they have\tonly to go to
\n     the reserve quota for further promotion.
\n     If the  reserve quota is already full in
\n     the next  grade, the  SC & ST candidates
\n     just below\t that grade  in\t the  reserve
\n     quota will\t have to  wait\ttill  vacancy
\n     occurs  in\t  the  higher  grade  in  the
\n     reserve quota.  However, we want to make
\n     it clear  that this  will not  apply  to
\n     such SC & ST candidates who on their own
\n     in\t  competition\t with\tthe   general
\n     candidates have  atained  their  present
\n     position and  not\tdue  to\t reservation,
\n     they are  entitled\t to  compete  further
\n     with the  general\tcandidates  and\t they
\n     will not  be affected  for promotion  in
\n     the general  quota even  if the reserved
\n     quota is full in the next higher grade”.\n<\/p><\/blockquote>\n
9.   On the  basis of  the aforesaid  decisions and  certain
\ncirculars of  the Railway Board, which will be referred at a
\nlater stage, the Tribunal laid down the following principles
\nin Para-26  of its judgment. (We have split up the paragraph
\ninto several  sub-paras to  bring out the several principles
\ndistinctly):\n<\/p>\n
     “26. To clarify  the position further we
\n     will   enunciate\tthe   principles   of
\n     determining seniority  in situations  as
\n     are under dispute here.\n<\/p><\/blockquote>\n
\t  The basic  seniority in  grade  `C’
\n     will be  the quiding  seniority list for
\n     the cadre of quards.\n<\/p><\/blockquote>\n
\t  Reservations in promotions would be
\n     made against posts in the grades and not
\n     against vacancies.\n<\/p><\/blockquote>\n
\t  Persons who  are promoted by virtue
\n     of the  application of  roster would  be
\n     given accelerated\tpromotion but not the
\n     seniority.\n<\/p><\/blockquote>\n
\t  The seniority\t in a particular grde
\n     amongst  the  incumbents  available  for
\n     promotion to  the\tnext  grade  will  be
\n     recast each  time new  incumbents\tenter
\n     from the lower grade on the basis of the
\n     initial  grade   `C’  Guard   who\t gets
\n     promoted to  grade `B’ or from grade `B’
\n     to grade  `A’ and\tso on  will find  his
\n     position amongst  the incumbents of that
\n     grade on the basis of the original grade
\n     `C’ seniority.\n<\/p><\/blockquote>\n
\t  Such persons\tas are superseded for
\n     any reasons  other than  on  account  of
\n     reservation will  be excluded.  A person
\n     superseded on account of a punishment or
\n     unfitness will  count his\tseniority  on
\n     the revised  basis and  not on  original
\n     grade `C’ seniority.\n<\/p><\/blockquote>\n
\t  The reserved\tcommunity  candidates
\n     who  are\tsenior\tnot   by  virtue   of
\n     reservations  but\tby  the\t position  in
\n     grade `C’ selections which the grade `C’
\n     seniority list  will automatically\t take
\n     care of,  will not\t wait for reservation
\n     percentage to  be\tsatisfied  for\ttheir
\n     promotion. They  will  get\t promoted  in
\n     their normal  turn irrespective  of  the
\n     percentage\t  of\treserved    community
\n     candidates in  the higher\tgrade. Others
\n     who  get\tpromoted  as   a  result   of
\n     reservation by  jumping the  queue\t will
\n     wait for their turn.\n<\/p><\/blockquote>\n
\t  Reservation will  again have\tto be
\n     applied on\t depletion of the reservation
\n     quota in  the higher  grade to make good
\n     the shortfalls.”\n<\/p><\/blockquote>\n
10.  The Tribunal  directed that  a fresh  seniority list be
\ndrawn in  the light  of the  principles enunciated  by it in
\nPara-26 and  promotions made  on that  basis.  The  Tribunal
\nrejected the  contention of  the general candidates that “no
\npromotions at  all be made for reserved community candidates
\nbecause\t quota\t is  full”.   Similarly,  it   rejected\t the
\ncontention of  the general  candidates (petitioners  in\t the
\noriginal applaication)\tthat all  promotions in\t the  higher
\ngrades shall  be made  on the  basis of\t the seniority\tlist
\npertaining to  Grade `C’  alone. It  held that the seniority
\nlist  will   be\t separately   prepared\tfor  each  grade  in
\naccordance with the principles enunciated by it and that the
\nlist must  be updated  every time there is promotion to that
\ncategory. It  clarified that  a reserved community candidate
\nwho gets  promotion on his own merit and not on the basis of
\nrule of\t reservation-cum-forty-point roster will be entitled
\nto be promoted irrespective of the quota position. But those
\nreserved community  candidates\twho  obtained  promotion  by
\njumping the  queue on  the basis of rule of reservation will
\nget the promotion on the basis of the revised seniority list
\nto be  prepared in  accordance with the directions contained
\nin Para-26.\n<\/p>\n
11.  The  Indian  Railway  Establishment  Manual,  Volume-I,
\ncontains instructions  regulating inter\t alia  seniority  of
\nnon-gazetted  Railway\tservants.  They\t  are  contained  in
\nChapter-III.  Para   306  says,\t  “candidates  selected\t for
\nappointment at an earlier selection shall be senior to those
\nselected later\tirrespective of\t the dates of posting except
\nin the case covered by paragraph 305 above”. Para 309 reads:
\n“SENIORITY  ON\tPROMOTION.–  Paragraph\t 306  above  applies
\nequally to  seniority in  promotion vacancies in one and the
\nsame category due allowance being made for delay, if any, in
\njoining the  new posts\tin the\texigencies of service.” Para
\n314 says  that subject\tto Paragraphs  302 to 306, “when the
\ndates of  appointment to the grade are the same, the date of
\nentry  into   the  grade   next\t below\tit  shall  determine
\nseniority”. Para  319 deals  with seniority  on promotion to
\nnon-selection posts.  This paragraph  states that “promotion
\nto non-selection  posts shall  be on the basis of seniority-
\ncum-suitability, suitability  being judged  by the authority
\ncompetent to fill the post, by oral and\/or written test or a
\ndepartmental examination  or a\ttrade test or by scrutiny of
\nrecord of  service as considered necessary.” It further says
\nthat “a\t railway servant,  once promoted  in his  turn after
\nbeing found  suitable  against\ta  vacancy,  which  is\tnon-
\nfortuitous, should  be considered as senior in that grade to
\nall others  who are  subsequently promoted after being found
\nsuitable”.\n<\/p>\n
12.  So far as the rule of reservation is considered, it has
\nbeen made  applicable to Railway service by orders issued by
\nthe Railway  Board from\t time to  time pursuant\t to  and  in
\nobedience to  the policy  decisions of\tthe Ministry of Home
\nAffairs. The decision of this Court in Akhil Bhartiya Soshit
\nKaramchari Sangh  v. Union  of India  (1981  (1)  S.C.C.264)
\nrefers to  the several\torders issued  from time  to time in
\nthis behalf. They are also found at Pages 4 to 6 (Chapter-I)
\nand  Pages  59\tto  89\t(Chapter-III)  of  the\tBrochure  on
\nReservation for\t Scheduled Castes  and Scheduled  Tribes  in
\nRailway Services  (Third Edition-1985).\t We do\tnot think it
\nnecessary to  refer to\tthem in\t this judgment\tsince we are
\nconcerned herein  not with  the\t validity  of  the  rule  of
\nreservation but\t with its  nature and  its effect  upon\t the
\nquestion of  seniority. We  shall, therefore,  refer to\t the
\nRailway Board’s\t circulars alone  relevant on  this  aspect.
\nHere too,  we will  refer first to orders applicable to non-
\nselection posts.  Railway Board’s  letter dated 13th August,
\n1959 is of a general nature. It says that “as a general rule
\nthe seniormost candidate should be promoted to a higher non-
\nselection post,\t susbject to  his suitability. Once promoted
\nagainst a  vacancy which  is non-fortuitous,  he  should  be
\nconsidered as  senior in  the grade  to all  others who\t are
\nsubsequently promoted”.\t [Printed at Page 507 in Chapter-XII
\nof the\tBrochure aforesaid]*.  The  Railway  Board’s  letter
\ndated August  31, 1982\t(at Page  512 –\t Chapter XII  of the
\nBrochure) deals\t with the subject “Reservation for Scheduled
\nCastes and  Scheduled Tribes  in promotion  in Group `D’ and
\n`C’ (Class  IV and  III)  on  the  basis  of  seniority-cum-
\nsuitability”. Para-4 of the letter reads:\n<\/p>\n
     “Against  the   above  background,\t  the
\n     matter has\t been reviewed\tby the Board.<\/p><\/blockquote>\n
     It has  been  decided  that  posting  of
\n     Scheduled\t   Caste\/Scheduled\tTribe
\n     candidates\t  on   promotions   in\t non-
\n     selection posts  should also  be done as
\n     per the  reserved points  on the  roster
\n     susbject, however, to the condition that
\n     seniority\t   of\t   the\t    Scheduled
\n     Caste\/Scheduled  Tribe   candidates   in
\n     comparison\t to   other  candidates\t will
\n     continue to  be governed  by  the\tpanel
\n     position in the case of categories where
\n     training  is   not\t  provided   and   in
\n     accordance with  the merit\t position  in
\n     the  examination\twhere\ttraining   is
\n     provided.”\n<\/p><\/blockquote>\n
\t\t\t     (Emphasis added)\n<\/p><\/blockquote>\n
————————————————————\n<\/p><\/blockquote>\n
* The  several circulars  and orders  issued by\t the Railway
\nBoard from  time to  time are  arranged chapter-wise  in the
\nsaid Brochure. Chapter-V deals with Rosters, Chapter-IX with
\npromotion  to\tnon-selection  posts  and  Chapter-XII\twith
\nconfirmation and seniority. The Brochure is published by the
\nGovernment of  India, Ministry\tof Railways (Railway Board),
\nNew Delhi.\n<\/p>\n
13.  It is  evident that  this letter  is  speaking  of\t the
\nseniority position  in the  initial entry category\/grade. It
\nsays that  while posting shall be done as per roster points,
\nseniority shall continue to be governed by the ranking given
\nin the\tselection list\/panel.  This clearly  brings out\t the
\ndeparture being made from the normal principle that the date
\nof entry in a category\/grade determines the seniority.\n<\/p>\n
14.  Indeed, the  Railway Board’s  letter dated\t January 19,
\n1972 (Pages 194-195 – Chapter-VIII dealing with promotion to
\nselection posts\t – of  the Brochure)  shows that even in the
\ncase of\t promotions made  on the  basis of  merit, the\tsame
\nprinciple applies.\n<\/p>\n
15.  The Railway  Board’s  letter  dated  October  20,\t1960
\nreferred to  in the judgment of Madhya Pradesh High Court in
\nG.C. Jain  says,  “seniority  of  SC\/ST\t employees  will  be
\ndetermined under the normal rules. The reservation roster is
\nconsidered  only   a  machinery\t to  ensure  the  prescribed
\npercentage of reservation for SC\/ST employees and should not
\nbe related to the question of seniority and confirmation. If
\nany of the SC\/ST employee is confirmed in the post by virtue
\nof roster,  such confirmation will not give them any benefit
\nin respect  of seniority”.  Again, the very same idea stated
\nclearly.\n<\/p>\n
16.  At Page  503 of  the Brochure,  in Chapter-XXII dealing
\nwith confirmation  and\tseniority,  Railway  Board’s  letter
\ndated February\t11, 1972  is extracted, the relevant portion
\nwhereof reads:\n<\/p>\n
     “Sub: Reservation\tfor Scheduled  Castes
\n     and Scheduled Tribes–   Application  of
\n     roster  both  at  the  time  of  initial
\n     recruitment and confirmation.
\n\t  Reference Board’s  letter No.E(SCT)
\n     62CM15\/7 dated  20th  April  1963\twhich
\n     provides that  the reservation roster is
\n     to\t be  applied  only  at\tthe  time  of
\n     initial\t recruitment\t and\t that
\n     confirmation should be made in the order
\n     of seniority  which in  the case of non-
\n     trained categories\t is determined on the
\n     basis  of\tthe  position  in  the\tpanel
\n     supplied\tby    the   Railway   Service
\n     Commission and  in the  case of  trainee
\n     categories on  the basis  of  the\tmerit
\n     position in the examination.\n<\/p><\/blockquote>\n
     2.\t  The\t  Board\t    after     careful
\n     consideration have\t decided that  in the
\n     posts filled by direct recruitment on or
\n     after the\tdate of issue of this letter,
\n     reservation may  be made  for  Scheduled
\n     Castes and\t Scheduled Tribes both at the
\n     time of initial appointment on temporary
\n     basis  as\t well  as   at\tthe  time  of
\n     confirmation.   In\t  posts\t  filled   by
\n     promotion, however,  no  reservation  is
\n     admissible at  the stage of confirmation
\n     of promotees  and the existing procedure
\n     of\t confirming  employees\tin  order  of
\n     their panel position may continue.”
\n     (Emphasis added)\n<\/p><\/blockquote>\n
17.  Again at  Page 508,  extracts of Railway Board’s letter
\ndated January 19, 1972 are set out, which read:\n<\/p>\n
     “3.  The\tseniority    of\t   candidates
\n     belonging\tto   Scheduled\t Castes\t  and
\n     Scheduled Tribes  vis-a-vis others\t will
\n     continue to be determined as at present,
\n     i.e., according to the panel position in
\n     the case of categories where training is
\n     not provided  and in accordance with the
\n     merit position  in the examination where
\n     training is provided.”\n<\/p>\n
     And finally  at Page  512, the  circular\/letter of\t the
\nRailway Board  dated August  31, 1982  is set out, which has
\nalready been extracted hereinbefore.\n<\/p>\n
18.  Pausing here  for a  moment, we  must explain what does
\npanel mean  and signify in the case of promotions. Though we
\nenquired repeatedly,  this aspect  could not be clarified by
\nthe learned  Additional Solicitor General. In particular, we
\nwanted to  know whether a panel is prepared only in the case
\nof selection  posts or\tis it  also prepared  in the case of
\nnon-selection posts.  The  several  instructions  in  Indian
\nRailway Establishment  Manual are  also not  helpful on this
\naspect. We  are, therefore, left to interpret the expression
\nourselves. Having  regard to  the fact that in all the above
\ncirculars\/letters, the\texpression “panel”  has been used to
\ndenote a  merit list or select list, as it may be called, we
\nthink it  reasonable to\t understand  as\t a  panel  which  is
\nprepared in the case of selection posts only. In the case of
\nnon-selection posts,  there is\tno question of such a panel.
\nIn their  case, the  senior is promoted automatically unless
\nhe is  found to be unsuitable to hold the promotion post. No
\npanel, i.e.,  merit list or select list is called for in the
\ncase of\t non-selection posts.  May be, ultimately, a list of
\npersons to  be promoted\t is prepared  but that\tis neither a
\nmerit list, nor a select list.\n<\/p>\n
19.  Sri Altaf\tAhmed, learned\tAdditional Solicitor General
\nquestioned the\tcorrectness and\t validity of  the principles
\nenunciated by  the Tribunal  in Para-26\t of its judgment. He
\nsubmitted that according to the Indian Railway Establishment
\nManual,\t  seniority   is   determined\tby   the   date\t  of
\npromotion\/appointment to  the concerned\t grade and  that the
\nsaid principle\tcannot be  altered or  departed from  in the
\nname of\t ensuring equality.  Once the rule of reservation is
\nremembered that\t in the\t higher echelons  of administration,
\nrepresentation of Scheduled Castes\/Scheduled Tribes has been
\ninadequate all\tthese years,  there is nothing surprising if
\nthe  members   of  Scheduled   Castes\/Scheduled\t Tribes\t get
\npromotions sooner  and earlier\tthan the general candidates.
\nThis is\t the natural  consequence of  applying the  rule  of
\nreservation in\tpromotions –  and not an unintended one. The
\nsaid consequence  cannot, therefore, be a basis for evolving
\na rule which partially off-sets the very purpose and meaning
\nof  the\t  rule\tof  reservation.  Sri  Altaf  Ahmed  further
\nsubmitted that\teffecting promotions  in accordance with the
\nroster vacancies  are not  and cannot  be called “fortuitous
\npromotions”. They  are regular\tvacancies and  promotion  to
\nthem is\t a regular promotion. He relied upon the decision of
\nthe Central  Administrative Tribunal  in Durga Charan Haldar
\nv. Union  of India  (Original Application  No.854  of  1990)
\nwherein it  has\t been  held  that  the\tdate  of  promotion,
\neffected  following   the  forty-point\troster\/hundred-point
\nroster, is determinative of seniority. He submitted that the
\ndecision  of  the  Central  Administrative  Tribunal  (Patna
\nBench) to  the contrary\t is the\t subject matter of appeal in
\nthis batch.  The Patna Tribunal has followed the decision of
\nthe Allahabad Tribunal in Virpal Singh Chauhan.\n<\/p>\n
20.  Sri Rajeev\t Dhawan, learned  counel appearing  for\t the
\nrespondents-general candidates,\t put forward  the  following
\nsubmissions while  opposing the\t contentions of\t the learned
\nAdditional Solicitor General:\n<\/p>\n
(i)  Article 16(4)  of the Constitution enables the State to
\ndefine the  extent and nature of the benefits to be extended
\nto the\tbackward classes.  It is not as if there is only one
\nparticular method  of providing\t reservations under the said
\nclause.\n<\/p>\n
(ii) The purpose  behind Article 16(4) is to ensure adequate
\nrepresentation to  backward classes  in\t the  administrative
\napparatus of the State. The purpose of Article 16(4) is only
\nto  ensure   aequate  representation   and  not\t  to  confer
\nadditional benefits  – other than those which logically flow
\nfrom  the   rule  of   reservation.  As\t  soon\tas  adequate
\nrepresentation is  achieved, the rule of reservation must be
\nkept in abeyance and if there is a roster the application of
\nthe roster must be stopped.\n<\/p>\n
(iii)\t  A harmonious\tconstruction of\t clauses (4) and (1)
\nof Article  16 – both of which are indeed facets of the very
\nsame principle\tof equality – implies that while the members
\nof reserved  categories will  be entitled to equal treatment
\nin all\tmatters relating  to service conditions, they cannot
\nclaim  accelerated  seniority  in  addition  to\t accelerated
\npromotion. If  this principle  is not  recognised, it  would
\nresult\tin   the  reserved   category  members\tstealing  an
\nadditional march  over the  general candidates which defeats
\nthe quarantee  of equality  extended  by  Article  16(1)  to
\ngeneral\t candidates.  In  other\t words,\t giving\t accelerated
\nseniority in  addition to  accelerated promotion  amounts to
\nconferring double  benefit  upon  the  members\tof  reserved
\ncategory and  is violative  of rule  of equality  in Article
\n16(1).\n<\/p>\n
(iv) The command  of Article  335 of  the Constitution shall
\nalso have  to be  kept in  mind in  this behalf. Accelerated
\npromotion-cum-accelerated seniority  is destructive  of\t the
\nefficiency of  administration inasmuch\tas by this means the
\nhigher echelons of administration come to be occupied almost
\nentirely by  members of\t reserved categories  – at any rate,
\nfar beyond  the percentrage  of reservation  prescribed\t for
\nthem.\n<\/p>\n
(v)  The decisions  of\tthis  Court  clearly  establish\t the
\ndistinction between promotion and seniority. It would be too
\nsimplistic to  say that\t seniority automatically follows the
\npromotion.\n<\/p>\n
(vi) A\t candidate    belonging\t  to\treserved    category
\nappointed\/promoted on  the  basis  of  rule  of\t reservation
\nshould not be held entitled to compete for a general vacancy
\nin the roster. They should be confined to reserved vacancies
\nalone.\tNon-observance\tof  this  rule\thas  resulted  in  a
\nsituation where\t in the\t higher grades of Railway Guards the
\nrepresentation\tof  Scheduled  Castes\/Scheduled\t Tribes\t has
\nrisen upto  seventy percent  (in the  case  of\tGuard  Super
\nGrade) and  forty percent  (in the  case of  Guard Grade `A’
\nSpecial) instead  of 22.5  percent. This  anomaly cannot  be
\nallowed to occur.\n<\/p>\n
21.  Sri K.B.  Rohtagi, learned\t counsel appearing  for\t the
\nrespondents in\tCivil Appeal  No.2261 of  1987\t(for  Guards
\nbelonging to  Scheduled Castes\/Scheduled  Tribes categories)
\nsupported  the\t contentions  of   the\tlearned\t  Additional
\nSolicitor General.\n<\/p>\n
\t   ——- ——X————X————\n<\/p>\n
22.  Clause (4)\t of Article  16 of  the Constitution enables
\nthe State  to make  “any provision  for the  reservation  of
\nappointments or\t posts in  favour of  any backward  class of
\ncitizens  which,  in  the  opinion  of\tthe  State,  is\t not
\nadequately represented\tin the services under the State.” In
\nIndra  Sawhney\t v.  Union   of\t India<\/a>\t (1992\t Suppl.(III)
\nS.C.C.217), it has been held by the majority (in the opinion
\ndelivered by one of us, B.P. Jeevan Reddy, J.):\n<\/p>\n
     “The question then arises whether clause
\n     (4) of  Article 16\t is exhaustive of the
\n     topic  of\t reservations  in  favour  of
\n     backward classes.\tBefore we answer this
\n     question  it  is  well  to\t examine  the
\n     meaning and  content of  the  expression
\n     `reservation’. Its\t meaning  has  to  be
\n     ascertained having regard to the context
\n     in which  it occurs.  The relevant words
\n     are any provision for the reservation of
\n     appointments or  posts’. The question is
\n     whether the  said words contemplate only
\n     one form of provision namely reservation
\n     simpliciter, or  do they  take in\tother
\n     forms   of\t  special   provisions\t like
\n     preferences, concessions and exemptions.
\n     In\t our   opinion,\t reservation  is  the
\n     highest form of special provision, while
\n     preference, concession and exemption are
\n     lesser   forms.\tThe    constitutional
\n     schemeand\tcontext\t  of  Article\t16(4)
\n     induces us\t to take the view that larger
\n     concept of reservations takes within its
\n     sweep  all\t supplemental  and  ancillary
\n     provisions\t as   also  lesser  types  of
\n     special  provisions   like\t  exemptions,
\n     concessions and  relaxations, consistent
\n     no\t doubt\t with  the   requirement   of
\n     maintenance     of\t    efficiency\t   of
\n     administration  –\t the  admonition   of
\n     Article 335.  The\tseveral\t concessions,
\n     exemptions and  other measures issued by
\n     the Railway  administration and  noticed
\n     in Karamchari Sangh (1981 (1) S.C.C.246)
\n     are    instances\t of    supplementary,
\n     incidental and ancillary provisions made
\n     with a  view to  make the main provision
\n     of reservation effective i.e., to ensure
\n     that the  members of  the reserved class
\n     fully  avail   of\tthe   provision\t  for
\n     reservation in  their favour.  The other
\n     type of  measure is  the one  in  Thomas
\n     (1976  (2)\t  S.C.C.310).  There  was  no
\n     provision for  reservation in  favour of
\n     Scheduled Castes\/Scheduled Tribes in the
\n     matter of\tpromotion to  the category of
\n     Upper  Division  Clerks.  Certain\ttests
\n     were required  to\tbe  passed  before  a
\n     Lower Division  Clerk could  be promoted
\n     as Upper  Division Clerk. A large number
\n     of Lower  Division clerks\tbelonging  to
\n     SC\/ST were not able to pass those tests,
\n     with the  result they were stagnating in
\n     the category  of LDCs.  Rule  13-AA  was
\n     accordingly    made    empowering\t  the
\n     Government to grant exemption to members
\n     SC\/ST from\t passing those\ttests and the
\n     government\t  did\t exempt\t  them,\t  not
\n     absolutely,  but\tonly  for  a  limited
\n     period. This provision for exemption was
\n     a lesser  form of special treatment than
\n     reservation. There is no reason why such
\n     a special\tprovision should  not be held
\n     to be included within the larger concept
\n     of reservation.”\n<\/p><\/blockquote>\n
23.  This statement  of law  makes it clear that there is no
\nuniform or  prescribed method  of providing reservation. The
\nextent and  nature of  reservation is a matter for the State
\nto decide  having regard  to the  facts and  requirements of
\neach case.  Such  a  situation\twas  indeed  dealt  with  in
\nNational Federation of State Bank of India v. Union of India
\n& Ors.<\/a>\t(1995 (3)  S.C.C. 432)\t[rendered by one of us, B.P.
\nJeevan Reddy,  J. on behalf of the Bench which included R.M.
\nSahai and  S.C. Sen,  JJ.]. In\tthe case  of  service  under
\nPublic Sector  Banking Institutions,  while  reservation  in
\npromotions was provided in the case of promotion from Class-
\nIV to  Class-III, Class-III to Class-II and from Class-II to
\nClass-I,  no   such  reservation  was  provided\t so  far  as
\npromotions within  Class-I were concerned. Only a concession
\n(set  out  in  the  judgment)  was  provided  in  favour  of
\nScheduled Castes\/Scheduled  Tribes candidates with a view to
\nenable them  to obtain\tpromotions within  Clas-I which they
\nmay not\t have obtained\totherwise. It was held by this Court
\nthat such  a concession\t can also  be provided under Article
\n16(4). In  short, it  is open  to the  State, if  it  is  so
\nadvised, to  say that while the rule of reservation shall be
\napplied and  the roster followed in the matter of promotions
\nto or  within a\t particular service,  class or category, the
\ncandidate  promoted   earlier\tby   virtue   of   rule\t  of
\nreservation\/roster shall  not be  entitled to seniority over
\nhis senior  in the  feeder category  and that  as and when a
\ngeneral candidate  who was  senior  to\thim  in\t the  feeder
\ncategory is promoted, such general candidate will regain his
\nseniority over\tthe reserved  candidate notwithstanding that
\nhe is  promoted subsequent  to the reserved candidate. There
\nis  no\t unconstitutionality  involved\t in  this.   It\t  is
\npermissible for\t the State  to so provide. The only question
\nis whether it is so provided in the instant case?\n<\/p>\n
24.  It is the common case of the parties before us that the
\nrule of\t reservation in\t the Railway  services –  to be more
\nprecise to  the category  of Railway  Guards, whether in the
\nmatter of initial appointment or in the matter of promotion,
\nfrom  one   grade   to\t another,   is\t provided   by\t the
\ncirculars\/letters    of\t   the\t  Railway    Board.    These
\ncirculars\/letters have\tbeen issued  by the Railway Board in
\nexercise of  the power\tconferred upon it by Rule 123 of the
\nStatutory Rules\t framed by  the President  of India. We have
\nreferred to  the  circulars\/letters  of\t the  Railway  Board
\nhereinbefore. In  the circular\/letter  dated August 31, 1982
\nwhich deals  with the  subject of “Reservation for Scheduled
\nCastes and  Scheduled Tribes  in promotion  in Group `D’ and
\n`C’ (Class  IV and  III)  on  the  basis  of  seniority-cum-
\nsuitability” it\t is specifically ordered that while “posting
\nof Scheduled  Caste\/Scheduled Tribe candidates on promotions
\nin non-selection  posts should\talso  be  done\tas  per\t the
\nreserved points\t on the\t roster”, such\tpromotion  shall  be
\n“subject to  the condition  that seniority  of the Scheduled
\nCaste\/Scheduled Tribe  candidates  in  comparison  to  other
\ncandidates  will  continue  to\tbe  governed  by  the  panel
\nposition in  the case  of categories  where training  is not
\nprovided and  in accordance  with the  merit position in the
\nexamination where  training is\tprovided”.  So\tfar  as\t the
\nseveral grades\tamong  Railway\tGuards\tare  concerned,\t the
\nrelevant service  conditions do not provide for any training
\nfollowed by  examination on  promotion\tfrom  one  grade  to
\nanother. Hence,\t the seniority between the reserved category
\ncandidates and\tgeneral candidates  in the promoted category
\nshall continue\tto be  governed by  their panel position. We
\nhave discussed\thereinbefore the  meaning of  the expression
\n“panel” and  held that\tin case\t of non-selection  posts, no
\n“panel” is  prepared or\t is necessary to be prepared. If so,
\nthe question  arises, what  did\t the  circular\/letter  dated
\nAugust 31,  1982 mean  when  it\t spoke\ton  seniority  being
\ngoverned by  the panel\tposition? In  our opinion, it should
\nmean the  panel prepared  by the  selecting authority at the
\ntime of selection for Grade `C’. It is the seniority in this
\npanel which  must be  reflected in each of the higher grade.
\nThis  means   that  while  the\trule  of  reservation  gives
\naccelerated promotion, it does not give the accelerated – or
\nwhat may be called, the consequential – seniority. There is,
\nhowever, one  situation where  this rule  may not  have\t any
\npractical relevance.  In a given case, it may happen that by
\nthe time  the senior  general candidate gets promoted to the
\nhigher grade,  the junior  reserved category  candidate (who
\nwas promoted  to the  said higher  grade  earlier)  may\t got
\npromoted to  yet higher\t grade. In  other words, by the time
\nthe senior  general category  candidate enterss,  say, Grade
\n`B’, his junior Scheduled Caste\/Scheduled Tribe candidate is
\npromoted to  Grade `A’.\t It is\tobvious that in such a case,
\nthe rule  evolved in  the aforesaid circulars does not avail
\nthe senior general candidate for there can be no question of
\nany seniority  as between,  say, a person in `B’ grade and a
\nperson in `A’ grade.\n<\/p>\n
25.  Now let  us see how does the above principle operate in
\npractice. Selection  is made for direct recruitment to Grade
\n`C’ Guards.  A panel  is prepared by the selecting authority
\non the basis of and in the order of merit. Appointments have
\nto be  made from  out of  this list\/panel.  But\t appointment
\norders will  not  be  issued  in  the  order  in  which\t the
\ncandidates are arranged in this select list\/panel; they will
\nbe issued  following the  roster.  Suppose  the\t forty-point
\nroster is  being operated  afresh, then\t the  first  vacancy
\ninthe roster  would go to a Scheduled Caste candidate though
\nhe may be down below in the select list\/panel. The candidate
\nat Sl.\tNo.1 in the said select list – a general candidate –
\nwill be appointed in the second vacancy. But once appointed,
\nthe general  candidate (at Sl. No.1 in the select list) will
\nrank senior  to the  Scheduled\tCaste  candidate  though  he
\n(general candidate) is appointed subsequent to the Scheduled
\nCaste candidate.  Now take  the case of promotions (based on
\nseniority-cum-suitability,  i.e.,  non-selection  posts)  to
\nGrade `B’.  Roster applies  even to  promotions to Grade B’.
\nAgain assume  that the\tforty-point roster is opening now in
\nGrade `B’.  The first  vacancy has  again got  to  go  to  a
\nScheduled Caste\t candidate though  he may not be the senior-
\nmost in\t Grade `C’.  The senior-most  candidate in Grade `C’
\n(the general  candidate, who  was at  Sl. No.1 in the select
\nlist\/panel and\twho regained his seniority on appointment to
\nGrade `C’  as aforestated)  will be  promoted  in  the\tnext
\nvacancy. But  once promoted,  the  general  candidate  again
\nbecomes senior\tto  the\t Scheduled  Caste  candidate  though
\npromoted subsequent to the Scheduled Caste candidate. And so
\non and\tso forth.  It is  in this  manner that\tthe rule  of
\nreservation (and  the  roster)\tmerely\tenables\t a  reserved
\ncategory candidate to obtain an appointment or promotion, as
\nthe case  may be  – which he may not have obtained otherwise
\nor would  not have  obtained at the time he is now getting –
\nbut it\tdoes not  give him the seniority. In this sense, the
\nrule confers  a limited\t benefit –  a qualified\t benefit. We
\nhave already stated that such a rule of reservation does not
\nfall foul of Article 16(4).\n<\/p>\n
26.  We\t  are\t of   the   opinion   that   the   aforesaid
\ncirculars\/letters providing  for reservation  in  favour  of
\nScheduled Castes\/Scheduled  Tribes candidates,\trosters\t and
\ntheir operation\t and on\t the subject of seniority as between
\ngeneral candidates  and reserved  category candidates, being
\nin the\tnature of  special rules  prevail over\tthe  general
\ninstructions contained\tin Volume-I  of the  Indian  Railway
\nEstablishment Manual including those contained in Paras 306,
\n309 and 319 et al. Accordingly, we agree with the conclusion
\nof the\tTribunal in  the order\tunder appeal  (Virpal  Singh
\nChauhan) though\t we may not agree with all the reasons given
\nby the\tTribunal. In  other words, we may not agree with the
\nview expressed\tby the Tribunal that a harmonious reading of
\nClauses (1)  and (4)  of  Article  16  should  mean  that  a
\nreserved  category   candidate\tpromoted  earlier  than\t his
\nsenior-general category\t candidate in  the  feeder  category
\nshall necessarily be junior in the promoted category to such
\ngeneral category candidate. No such principle may be said to
\nbe implicit  in the  said clauses.  But inasmuch the Railway
\nBoard’s ciruclars  concerned herein  do provide specifically
\nfor such  a situation  and since  they cannot  be said to be
\nviolative  of\tthe  constitutional  provisions,  they\tmust
\nprevail and have to be given effect to. It is not brought to
\nour notice  that the  said instructions\t are inconsistent in
\nany manner with any of the statutory provisions or statutory
\nrules relevant in this behalf.\n<\/p>\n
27.  So far as the other question considered by the Tribunal
\n(viz.,\tthat   once  the   representation  of  the  reserved
\ncategories in  a  given\t unit  of  appointment\treaches\t the
\nprescribed percentage, the rule of reservation or the roster
\nbased on  it cannot  be given  effect to),  the Constitution
\nBench decision\tof this\t Court in R.K. Sabharwal v. State of
\nPunjab<\/a> settles the issue. In this decision, it has been held
\nthat where the total number of posts in a cadre reserved for
\nreserved candidates are filled by operation of a roster, the
\nobject of  rule of  reservation must  be deemed to have been
\nachieved and that thereafter there would be no justification
\nto operate  the roster.\t Para-5 of  the said judgment brings
\nout the reasons for the said rule and the rule itself:\n<\/p>\n
     “We see considerable force in the second
\n     contention raised by the learned counsel
\n     for the  petitioners.  The\t reservations
\n     provided under  the impugned  Government
\n     instructions  are\t to  be\t operated  in
\n     accordance\t with\tthe  roster   to   be
\n     maintained\t in   each  Department.\t  The
\n     roster is\timplemented in\tthe  form  of
\n     running account  from year\t to year. The
\n     purpose of\t `running account’ is to make
\n     sure that the Scheduled Castes\/Scheduled
\n     Tribes  and  and  Backward\t Classes  get
\n     their percentage  of reserved posts. The
\n     concept  of  `running  account’  in  the
\n     impugned  instructions   has  to  be  so
\n     interpreted that  it does\tnot result in
\n     excessive\treservation.   `16%  of\t  the
\n     posts…’ are  reserved for  members  of
\n     the  Scheduled   Castes   and   Backward
\n     Classes. In  a lot\t of 100\t posts\tthose
\n     falling at\t Serial Numbers 1, 7, 15, 22,
\n     30, 37,  44, 51,  58, 65, 72, 80, 87 and
\n     91 have  been reserved  and earmarked in
\n     the roster\t for  the  Scheduled  Castes.
\n     Roster points 26 and 76 are reserved for
\n     the members  of Backward  Classes. It is
\n     thus obvious  that when recruitment to a
\n     cadre starts  then 14 posts earmarked in
\n     the roster are to be filled from amongst
\n     the members  of the Scheduled Castes. To
\n     illustrate, first\tpost in\t a cadre must
\n     go\t  to   the   Scheduled\t Castes\t  and
\n     thereafter the said class is entitled to
\n     7th, 15th,\t 22nd and  onwards upto\t 91st
\n     post. When\t the total number of posts in
\n     a cadre  are filled  by the operation of
\n     the roster\t then the result envisaged by
\n     the impugned  instructions is  achieved.<\/p><\/blockquote>\n
     In other  words, in a cadre of 100 posts
\n     when the  posts earmarked\tin the roster
\n     for  the\tScheduled  Castes   and\t  the
\n     Backward\tClasses\t   are\t filled\t  the
\n     percentage of  reservation provided  for
\n     the reserved  categories is achieved. We
\n     see no  justification to  operate the is
\n     to operate\t only till the quota provided
\n     under  the\t  impugned  instructions   is
\n     reached and  not  thereafter.  Once  the
\n     prescribed percentage of posts is filled
\n     the  numerical   test  of\t adequacy  is
\n     satisfied and thereafter the roster does
\n     not   survive.    THe   percentage\t   of
\n     reservation is the desired repesentation
\n     of the  Backward Classes  in  the\tState
\n     Services  and  is\tconsistent  with  the
\n     demographic  estimate   based   on\t  the
\n     proportion worked\tout  in\t relation  to
\n     their population. The numerical quota of
\n     posts is  not a  shifting\tboundary  but
\n     represents a figure with due application
\n     of mind.  Therefore,  the\tonly  way  to
\n     assure equality  of opportunity  to  the
\n     Backward\tClasses\t  and\tthe   general
\n     category is  to  permit  the  roster  to
\n     operate till  the\ttime  the  respective
\n     appointees\/promotees  occupy  the\tposts
\n     meant  for\t  them\tin  the\t roster.  The
\n     operation of the roster and the `running
\n     account’ must come to an end thereafter.
\n     The  vacancies  arising  in  the  cadre,
\n     after the initial posts are filled, will
\n     pose no difficulty. As and when there is
\n     a vacancy whether permanent or temporary
\n     in a  particular post the same has to be
\n     filled  from  amongst  the\t category  to
\n     which the\tpost belonged  in the roster.
\n     For example, the Scheduled Caste persons
\n     holding the posts at roster points 1, 7,
\n     15, retire\t then roese  slots are\tto be
\n     filled   from    amongst\tthe   persons
\n     belonging\tto   the  Scheduled   Castes.
\n     Similarly, if  the persons\t holding  the
\n     post at  points 8\tto 14  or  23  to  29
\n     retire then these slots are to be filled
\n     from  among  the  general\tcategory.  By
\n     following\tthis  procedure\t there\tshall
\n     neither be\t shortfall nor\texcess in the
\n     percentage of reservation.”\n<\/p><\/blockquote>\n
28.  The Constitution Bench has, however, made it clear that
\nthe rule enunciated by them shall operate only prospectively
\n[vide Para  11]. It  has  further  been\t held  in  the\tsaid
\ndecision that  the “percentage\tof  reservation\t has  to  be
\nworked out in relation to the number of posts which form the
\ncadre-strength (and  that) the\tconcept of  `vacancy’ has no
\nrelevance in operating the percentage of reservation”. (As a
\nmatter of  fact, it  is stated that this batch of cases were
\nalso posted  for hearing before the Constitution Bench along
\nwith R.L.  Sabharwal batch of cases but these cases were de-
\nlinked on  the ground  that they  raise certain other issues
\nwhich did  not arise  in R.K. Sabharwal.) Be that as it may,
\nas a  result of\t the decision  in  R.K.\t Sabharwal  and\t the
\nviews\/findings recorded\t by us\thereinabove,  the  following
\nposition emerges:\n<\/p>\n
(i)  Once the  number of  posts reserved for being filled by
\nreserved category  candidates in  a cadre, category or grade
\n(unit for  application of rule of reservation) are filled by
\nthe operation  of roster,  the object of rule of reservation
\nshould be  deemed to  have been\t achieved and thereafter the
\nroster cannot  be followed except to the extent indicated in
\nPara-5 of R.K. Sabharwal. While determining the said number,
\nthe  candidates\t belonging  to\tthe  reserved  category\t but
\nselected\/promoted on  their own\t merit (and not by virtue of
\nrule of\t reservation)  shall  not  be  counted\tas  reserved
\ncategory candidates.\n<\/p>\n
(ii) The percentage  of reservation  has to be worked out in
\nrelation to  number of\tposts in  a particular cadre, class,
\ncategory or grade (unit for the purpose of applying the rule
\nof reservation) and not with respect to vacancies.\n<\/p>\n
(iii)\t  So far  as Railway  Guards in\t Railway service are
\nconcerned –  that is  the only\tcategory  we  are  concerned
\nherewith –  the seniority  position in the promoted category
\nas between  reserved candidates and general candidates shall
\nbe the\tsame as\t their inter  se seniority position in Grade
\n`C’ at\tany given  point of time provided that at that given
\npoint of  time, both  the general candidate and the reserved
\ncategory  candidates  are  in  the  same  grade.  This\trule
\noperates whether  the general  candidate is  included in the
\nsame batch  of promotees  or in a subsequent batch. (This is
\nfor the\t reason that  the circulars\/letters aforesaid do not
\nmake or\t recognise any\tsuch distinction.)  In other  words,
\neven if\t a  Scheduled  Caste\/Scheduled\tTribe  candidate  is
\npromoted earlier  by virtue  of rule  of  reservation\/roster
\nthan his  senior general  candidate and\t the senior  general
\ncandidate is  promoted later  to the  said higher grade, the
\ngeneral candidate  regains his\tseniority over\tsuch earlier
\npromoted  Scheduled  Caste\/Scheduled  Tribe  candidate.\t The
\nearlier promotion  of the  Scheduled  Caste\/Scheduled  Tribe
\ncandidate in  such a  situation does  not  confer  upon\t him
\nseniority over the general candidate even though the general
\ncandidate is promoted later to that category.\n<\/p>\n
29.  If the  above three  rules are  observed and  followed,
\nthere may  not remain much room for grievance on the part of
\nthe general  candidates. While in the very scheme of things,
\nit is  not possible  to give  retrospective effect  to these
\nrules -a  fact recognised  in R.K.  Sabharwal  –  the  above
\nrules,\toperated   conjointly,\tshould\tgo  a  long  way  in
\nmaintaining a  balance between\tthe  demands  of  merit\t and
\nsocial justice.\n<\/p>\n
30.  Sri Rajeev\t Dhawan, learned  counsel  for\tthe  general
\ncandidates, pointed  out, what\taccording to  him,  are\t the
\ninequitable and\t anamolous situations which would follow, if
\nthe candidate  appointed\/promoted on  the basis\t of rule  of
\nreservation is\tnot confined  to reserved posts alone and is
\nallowed to  compete for\t general posts\tas well.  In such  a
\nsituation, he submits, the reserved candidate will enjoy yet
\nanother –  third –  advantage. Whenever, it is convenient to
\nhim, he\t will claim to be considered for a reserved post and
\nwhere it  is more  convenient to  him, he  will claim  to be
\nconsidered for\ta general  post, whereas a general candidate
\nis restricted  to  general  posts  alone.  In  our  opinion,
\nhowever, the  plea of  the learned  counsel cannot simply be
\naccepted;  his\t submission  flies   in\t the   face  of\t the
\nestablished law on the subject.\n<\/p>\n
31.  Sri Dhawan then pointed out that Rule 3 stated above is
\nnot sufficient\tto do  justice to the general candidates and
\nthat in\t practice, it  has resulted in denial of just rights
\nto general  candidates. He elaborates his submission thus; a
\nreserved category  candidate may get promoted from Grade `C’
\nto Grade  `B’  earlier\tthan  his  senior  general  category
\ncandidate (senior  with reference  to the  select list\/panel
\nprepared at  the time of selection to Grade `C’ by operation
\nof rule\t of reservation\/roster. The general candidate who is
\nsenior to him in the said select list\/panel may get promoted
\nto Grade  `B’ later  but what may happen, meanwhile, is that
\nthe reserved  category candidate is no longer there in Grade
\n`B’ –  he has  ascended to  Grade `A’.\tIn such a situation,
\nthere will  be no occasion for applying the aforesaid Rule 3
\nas between  these two  candidates. Sri\tDhawan submits\tthat
\nthis is\t precisely what\t has happened in the case of Railway
\nGuards. Even  the Railway  Administration has  admitted this
\nsituation in  their  counter,  he  says,  though  they\thave
\nascribed it  to inadequate  representation of  the  reserved
\ncategories in  the higher  grades. Sri\tDhawan says that, in
\npractice, the  candidates belonging  to reserved  categories
\ngot rapid promotions, leaving their erstwhile senior general
\ncandidates in  the category  in which  they were  originally
\nappointed. May\tbe that\t Sri Dhawan’s complaint is true – we
\nhave already  dealt with  the possibility and consequence of
\nsuch a\tsituation –  but his  grievance, in  effect, is\t not
\nagainst Rule  3 aforestated  but against  the very  rule  of
\nreservation being  applied in promotions. It may be recalled
\nthat in\t Indra Sawhney,\t eight of  the nine  learned  Judges
\nconstituting the  Bench opined\tthat Article  16(4) does not
\npermit or  warrant reservation\tin the matter of promotions.
\nThis was precsely for the reason that such a rule results in
\nseveral untoward and inequitous results. The Bench, however,
\npermitted the existing rules in that behalf to operate for a
\nperiod of  five years  from the\t date of  judgment based  as
\nthose rules  were on  an earlier Constitution Bench decision
\nin General  Manager, Southern  Railway &  Anr. v. Rangachari<\/a>
\n(1962 (2) S.C.R.687). It is another matter that since then a
\nconstitutional amendment  has  been  brought  in  permitting
\nreservation in\tpromotions to the extent of Scheduled Castes
\nand Scheduled Tribes only, we need express no opinion on the
\nsaid amendment.\n<\/p>\n
32.  Sri Dhawan\t points out  yet another  anamoly.  Where  a
\ncandidate belonging  to Scheduled Caste gets selected on his
\nown merit, i.e., in the general category, he will be treated
\nas a  general candidate\t and  on  that\taccount\t he  suffers
\nprejudice vis-a-vis  another reserved category candidate who
\ncould not be selected on his own merit (i.e., in the general
\ncategory) and  was selected  only because  of and  under the
\nrule  of   reservation.\t For  illustrating  his\t submission,
\nlearned counsel\t says, take  an instance  where out of forty
\ncandidates selected, a Scheduled Caste candidate selected on
\nmerit stands at S. No.18 in the select list, whereas another
\nScheduled Caste candidate selected under and only because of
\nthe reserved quota stands at S. No.33. But when the occasion
\nfor appointment arises, the Scheduled Caste candidate at Sl.
\nNo.33 will  be be  appointed against the first roster-point,
\nwhereas the  Scheduled Caste  candidate at S. No.18, being a
\ngeneral candidate  has to  wait\t for  his  turn.  This,\t the
\nlearned counsel\t says, amounts,\t in effect, to punishing the
\nScheduled Caste candidate at S. No.18 for his merit. Because
\nhe ws  meritorious, he was selected in general gcategory and
\nis treated  as a  general  candidate.  He  suffers  all\t the
\ndisadvantages any  other  general  candidate  suffers  while
\nanother Scheduled  Caste candidate,  far  less\tmeritorieous
\nthan him  and who  was selected\t only by  virtue of  rule of
\nreservation, steals  a march  over  him\t in  the  matter  of
\ninitial\t appointment   and  in\t promotion  after  promotion
\nthereafter. This  is undoubtedly a piquant situation and may
\nhave to\t be appropriately rectified as and when the occasion
\narises. It  is not  pointed out\t that any such situation has
\narisen in  the appeals\tbefore us.  It is probable that many
\nsuch situations\t may arise  which cannot  be  foretold\tnow.
\nAccording  to  the  general  category  candidates  concerned
\nherein,\t of  course,  the  rule\t of  reservation\/roster\t has
\nalready given  rise to\tmany distortions. According to them,
\nthe representation of the reserved categories in Guard Grade
\n`A’  Special  has  reached  forty  percent  as\tagainst\t the
\nprescribed 22.5\t percent. It  is not possible for us to say,
\non the\tmaterial before\t us, how  and why the said situation
\nhas come  about. It  may be  partly  because  the  rule\t now
\nenunciated in R.K. Sabharwal was not there and was not being
\nfollowed. It may also be that such a result has been brought
\nabout by  a combined  operation of  the factors mentioned in\n<\/p>\n
(i) and\t (ii) above.  The fact\tremains that the situation –
\nassuming that  it  is  what  is\t described  by\tthe  general
\ncandidates –  cannot be\t rectified with retrospective effect
\nnow. The  Constitution\tBench  in  R.K.\t Sabharwal  too\t has
\ndirected that  the rule\t enunciated therein  shall have only
\nprospective operation.\tSo far\tas the\tpresent appeals\t are
\nconcerned, it  is sufficient  to  direct  that\tthe  Railway
\nauthorities shall  hereinafter follows\tRules (i),  (ii) and\n<\/p>\n
(iii) [stated  in Para\tNo.28] with  effect from the date of
\njudgment in R.K. Sabharwal, i.e., February 10, 1995.\n<\/p>\n
33.  Learned counsel  have sought  to bring  to\t our  notice
\nindividual facts  of some of the appeals before us but we do
\nnot  propose   to  enter   into\t those\tfacts  or  make\t any
\npronouncement thereon.\tThe proper  couse, in our considered
\nopinion, is  to send  all these matters back to the Tribunal
\nto work out the rights of individuals concerned applying the
\nthree principles  aforesaid. These  appeals are\t accordingly
\ndisposed of  in the  above terms and matters remanded to the
\nrespective Tribunals.  Write  petitions\t are  dismissed.  No
\ncosts.\n<\/p>\n
\t\t       SELECTION POSTS
\n\t\t CIVIL APPEAL NO.9276 OF 1995
\n\t ARISING OUT OF S.L.P. (C) NO.18370 OF 1993:\n<\/p>\n
34.  Delay condoned. Leave granted.\n<\/p>\n
35.  This  appeal   arises  from  the  judgment\t of  Central
\nAdministrative Tribunal\t (Madras  Bench)  allowing  Original
\nApplication No.869  of 1991  filed by the respondent, Sri D.
\nWilliams. The  relevant facts,\tdrawn from the counter filed
\non behalf  of the Railway Board and its officials before the
\nTribunal, are the following:\n<\/p>\n
36.  The cadre\tof Station  Masters  is\t divided  into\tfive
\ngrades. The grades and inter se percentage is as follows:\n<\/p>\n
————————————————————
\nSl. Category & Grade\tWhether selection\tPercentage
\nNo.\t\t\tor non-selection\tdistribution
\n\t\t\t\t\t\tof post in
\n\t\t\t\t\t\teach grade\n<\/p>\n
————————————————————<\/p>\n
\n1. Asst.  Station Master   Recruitment\/\t\t\t 10%\n     Rs.1200-2040\t Selection\n2. Station  Master\t      Non-Selection\t\t 70%\n     Rs.1400-2300\n3. Station  Master\/T.I\t    Non-Selection\/\t\t 10%\n     Rs.1600-2600\t Recruitment\n4. Dy.\tStation Supdt\/T.I.Selection\t\t\t 10%\n     Rs.2000-3200\n<\/pre>\n
5. Station Supdt.\/T.I\t Selection\t\t10% of posts
\n     Rs.2375-3500\t\t\t     in Rs.2000-3200\n<\/p>\n
————————————————————\n<\/p>\n
37.  The posts\tof Assistant Station Masters in the scale of
\nRs.1200-2040\/- are  filled  by\tdirect\trecruitment  through
\nRailway Recruitment  Boards to\tthe extent of fifty percent.
\nThe  balance   fifty  percent  is  filled  by  promotion  of
\ndepartmental employees.\t The higher grades in the said cadre
\nare filled  by promotion  from the  immediately lower  grde.
\nTwenty five  percent of\t the posts  in the scale of Rs.1600-
\n2600\/- are, however, filled by direct recruitment of Traffic
\nApprentices.\n<\/p>\n
38.  The first\trespondent, Sri\t Williams (petitioner in the
\noriginal application  before the  Tribunal) was\t promoted to
\nthe post  of Deputy Station Superintendent\/Traffic Inspector
\nin  the\t scale\tof  Rs.2000-3200\/-  on\tDecember  30,  1989.
\nActually, he  was initially  appointed as a Signaller in the
\nscale of  Rs.60-150\/-. Over  the years, he earned promotions
\none after  the other.  In the  scale of Rs.130-240\/-, he was
\nsenior to Respondent Nos.4 to 10 in the original application
\n(they are  not impleaded as respondents in this appeal), all
\nof whom belong to Scheduled Castes\/Scheduled Tribes. Because
\nof rule\t of reservation\t and the  manner  in  which  it\t was
\nimplemented,  the   said  Scheduled  Castes\/Schedule  Tribes
\ncandidates were\t promoted to  the higher categories soosner.
\nThey came  to be  promoted to  the post\t of  Deputy  Station
\nSuperintendent\/Traffic Inspector  in the  scale of  Rs.2000-
\n3200\/- far earlier to Sri Williams, i.e., on January 1, 1984
\nor   earlier.\t On   that   basis,   the   said   Scheduled
\nCastes\/Scheduled Tribes\t candidates were  being\t treated  as
\nseniors to  Sri\t Williams  who\tis,  of\t course,  a  general
\ncandidate.\n<\/p>\n
39.  The posts\tof Station  Superintendent\/Traffic Inspector
\nin the\tscale of  Rs.2375-3500\/- are controlled by and dealt
\nwith at\t Head Quarter’s\t level.\t They  are  filled  on\t“All
\nRailway” basis by a process of selection (which comprises of
\nviva-voce   only)    from   among    the   Deputy    Station
\nSuperintendents\/Traffic Inspectors  in the scale of Rs.2000-
\n3200\/-.\n<\/p>\n
40.  Eleven vacancies  arose in the scale of Rs.2375-3500\/-.
\nAccording to  rules, three  candidates have to be considered
\nfor every  vacancy. Accordingly,  a  list  of  thirty  three
\nsenior-most candidates\tin the\tsacle of  Rs.2000-3200\/- was
\nprepared on  the basis of their respective dates of entry in
\nthe said  grade. They  were `alerted’  to be ready to appear
\nfor the\t interview by  a letter dated July 12, 1991. All the
\nthirty three  senior-most employees  so\t alerted  belong  to
\nScheduled Castes\/Scheduled  Tribes.  Sri  Williams  was\t not
\namong  the  thery  three.  It  is  then\t that  Sri  Williams
\napproached the\tTribunal praying for setting aside the alert
\nnotice dated  July 12, 1991, to revise the seniority list of
\nall the\t grades in  the Station Masters’ category protecting
\nthe seniority  of  general  candidates\tand  for  a  further
\ndeclaration that  rule\tof  reservation\t cannot\t be  applied
\nagainst vacancies.  He sought a further declaration that the
\nsaid rule  of reservation  is confined to recruitment to the
\nscale of Rs.1200-2040\/- alone – i.e., to the lowest grade in
\nthe cadre – and not to higher grades.\n<\/p>\n
41.  The Tribunal  allowed the original application filed by
\nSri Williams  following its  earlier  decision\tin  Original
\nApplication No.85  of 1989.  The Tribunal  declared that for
\nthe purpose  of promotion under the general quota, seniority
\nof the\tScheduled Castes\/Scheduled  Tribes candidates should
\nnot be\tdetermined on  the basis of the date of their actual
\npromotion but  on the  basis of the date on which they would
\nhave been  promoted in due course if the rule of reservation
\nwere not  applied. The\tTribunal, however, declared that the
\nseniority in  the  grade  of  Rs.1600-2600\/-  shall  not  be
\ndisturbed because  the\tapplicant  had\tnot  approached\t the
\nTribunal in  time to  challenge the seniority in that scale.
\nThe relief  granted by\tthe Tribunal  is  in  the  following
\nterms:\n<\/p>\n
     “In the result, we allow the application
\n     and pass the following orders:-<\/p><\/blockquote>\n
     We direct\tthe respondents to revise the
\n     seniority\t of    the   applicants\t  and
\n     respondents in the scale of Rs.2000-3200
\n     taking into  account for  the  applicant
\n     his date of actual promotion and for the
\n     respondents 4  to 10  the date  on which
\n     they would\t have been  granted promotion
\n     in that  grade but\t for the preferential
\n     treatment\t  based\t   on\t reservation.
\n     Promotion shall  be made  according to a
\n     selection based on the revised list.”\n<\/p><\/blockquote>\n
42.  The learned  Additional Solicitor General appearing for
\nthe appellants\t(Union of India and the Railways) challenged
\nthe correctness\t of the\t decision of  that Tribunal  on\t the
\nground that  it has  evolved a\tprinciple of  seniority\t not
\nrecognised by  any rule\t or circular  orders of\t the Railway
\nBoard and  is unsustainable  in\t any  event.  He  submitted,
\nrelying upon  the decision  in Karam  Chand v. Haryana State
\nElectricity Board<\/a>  (1989 Suppl.(1)  S.C.C.342) that the date
\nof promotion  to a  particular grade  or category determines
\nthe seniority  in that\tgrade or  category. Inasmuch  as the
\nsaid thirty  three candidates  were alerted  (Called for) on
\nthe basis of their seniority for interview (for selection to
\neleven posts  in  the  grade  of  Rs.2375-3500\/-)  no  valid
\ngrievance can be made by any one to such a course.\n<\/p>\n
43.  Sri S.  Murlidhar, learned\t counsel for Sri D. Williams
\nsubmits that  this is a demonstrable case of injustice being
\ndone to\t general candidates by applying not only the rule of
\nreservation at every stage of promotion but also because the
\nrule of\t seniority enunciated  by the  Railway Board  in its
\nseveral circulars  was not  being followed  by the concerned
\nauthorities. He\t submits that  it is  for  the\tRailways  to
\nexplain how  the situation  has come  about  where  all\t the
\nthirty\tthree\tcandidates  being   considered\tfor   eleven
\nvacancies  happen   to\tbelong\t exclusively  to   Scheduled
\nCastes\/Scheduled Tribes\t categories. He\t subsmits  that\t Sri
\nWilliams ws  admittedly a  senior to  Respondent Nos.4 to 10
\n(in    the    original\t  application,\t  i.e.,\t   Scheduled
\nCastes\/Scheduled Tribes\t candidates) in the grade of Rs.130-
\n240\/- but  then the  said Scheduled  Castes\/Scheduled Tribes
\ncandidates obtained  rapid and\tpreferential  promotions  to
\nnext  higher   grades,\tviz.,\tRs.330-560\/-,  Rs.425-640\/-,
\nRs.455-700\/-,  Rs.1600-2600\/-  and  then  to  the  grade  of
\nRs.2000-3200\/-. They  reached the  grade  of  Rs.2000-3200\/-
\nmore than  five years  earlier to Sri Williams who was their
\nsenior in  the lower  category of Rs.130-240\/- The result of
\nfaulty implementation  of rule\tof reservation\tand rule  of
\nseniority is  that all\tthe  top  grades  have\tcome  to  be
\noccupied exclusively  by the  reserved category\t members,  a
\nsituation, which he characterises as a total negation of the
\nRule of Equality underlying Articles 16(1), 16(4) and 14. He
\nemphasises the\tfact that the Railways have not explained in
\ntheir counter  as to  how the above situation has come about
\nexcept\t stating    baldly   that    since   the   Scheduled
\nCastes\/Scheduled  Tribes  candidates  were  seniors  to\t Sri
\nWilliams in  the grade\tof Rs.2000-3200\/-, they were rightly
\nalerted for interview.\n<\/p>\n
44.  It is  true that this case presents a rather poiiignant
\nturn  of  events.  Of  the  thirty  three  candidates  being
\nconsidered  for\t  eleven  vacancies,   all   are   Scheduled
\nCastes\/Scheduled Tribes\t candidates. Not  a single candidate
\namong them  belongs to general category. The learned counsel
\nfor  the   respondent  is   justified  in  complaining\tthat
\nappellants have\t failed to  explain how such a situation has
\ncome about.  Not only  the juniors are stealing a march over
\ntheir seniors  but the\tmarch is  so  rapid  that  not\tonly
\nerstwhile compatriots  are left\t far  behind  but  even\t the
\npersons who  were in  the higher  categories at\t the time of
\nentry of Scheduled Castes\/Scheduled Tribes candidates in the
\nservice have  also been\t left behind.  Such a  configuration
\ncould not certainly have been intended by the framers of the
\nConstitution or\t the framers of the rules of reservation. In
\nthe absence  of any  explanation from  the authorities,\t the
\nbest we\t can do is to ascribe it as faulty implementation of
\nthe rule  of reservation.  In other words, not only have the
\nRailways not  observed the  principle that  the\t reservation
\nmust be vis-a-vis posts and not vis-a-vis vacancies but they
\nhad also  not kept  in mind  the rule  of seniority  in\t the
\npromotion posts\t enunciated in the Railway Board’s circulars
\nreferred  to   supra.  Yet   another  principle\t  which\t the
\nauthorities appeared  to have  not observed  in practice  is
\nthat once  the percentage reserved for a particular reserved
\ncategory is  satisfied in  that service\t category  or  grade
\n(unit of appointment) the rule of reservation and the roster
\nshould no longer be followed. Because of the breach of these
\nthree rules, it appears, the unusual situation complained of
\nby the\tgeneral candidates  has come  to pass.\tThe  learned
\ncounsel\t for   general\tcandidates  is\tright  that  such  a
\nsituation is  bound to lead to acute heart-burning among the
\ngeneral candidates  which is not conducive to the efficiency
\nof administration.  Be that  as it  may, the question is can
\nthe said  situation be\trectified. Probably  not,  until  we
\ndirect all  the promotions  to be reviewed and re-done. This
\nmay not\t be advisable at this distance of time. The enormity
\nof the\texercise should\t deter any  one from  launching upon
\nsuch a\tcourse. It  is evidently  for this  reason that\t the
\nConstitution Bench  has directed  in R.K. Sabharwal that the
\nrule affirmed  by them should be applied only prospectively.
\nThere\tis   yet   another   circumstance:   the   Scheduled
\nCastes\/Scheduled Tribes\t candidates cannot  be\tbarred\tfrom
\ncompeting for  general posts.  We are  constrained to remark
\nthat it\t is the\t application of\t rule of  reservation in the
\nmatter of  promotions -which  entitles a  reserved  category
\ncandidate to  avail of the benefit of reservation any number
\nof times which is mainly responsible for such a situation.\n<\/p>\n
45.  While    referring\t    to\t  the\t  Railway    Board’s
\ncirculars\/letters in  civil appeals No.9272\/95 (arising from
\nS.L.P.(C) No.6468 of 1987 and batch), we had referred to the
\nRailway\t Boards\t  circular\/letter  dated  January  19,\t1972
\ndealing with  promotion to  selection posts.  (Para-3 of the
\nsaid letter  is in  the same  terms as Para-4 of the Railway
\nBoard’s circular\/letter\t dated August  31, 1982\t referred to
\nsupra.)\t The  said  Para-3  reads:  “(3)  The  seniority  of
\ncandidates belonging to Scheduled Cates and Scheduled Tribes
\nvis-a-vis others  will\tcontinue  to  be  determined  as  at
\npresent, i.e.,\taccording to  the panel position in the case
\nof  categories\t where\ttraining  is  not  provided  and  in
\naccordance with\t the merit position in the examination where
\ntraining is  provided.” But  inasmuch as the post of Station
\nSuperintendent\/T.I. in\tthe scale  of  Rs.2375-3500\/-  is  a
\nselection  post,   the\tpanel\treferred  to   in  the\tsaid
\ncirculars\/letters would\t mean the panel prepared at the time
\nof  making   selections\t for  promotion\t to  the  said\tpost
\n(Rs.2375-3500\/-) – and not the panel\/select list prepared at
\nthe time  of entry  into the  initial grade, viz., Assistant
\nStation Master\t(Rs.1200-2-40\/-). It also means that members
\nin one\tpanel take  precedence over  the members in the next
\npanel. The  application of the rule of seniority referred to
\nin the\tsaid circular\/letter  – and  other circulars\/letters
\nreferred to  supra most of which do not make any distinction
\nbetween selection  and\tnon-selection  posts  –\t has  to  be
\nsubject to the said limitation.\n<\/p>\n
46.  It may  be noticed\t that of  the  five  grades  in\t the
\nStation Masters’ category, two are non-selection posts while
\nthe remaining  three are  selection posts. While in the case
\nof non-selection  posts the  rule  enunciated  in  the\tmain
\nopinion (Virpal\t Singh Chauhan)\t would be applicable, in the
\ncase of selection posts, the rule explained herein has to be
\nfollowed. We  may clarify that Rules (i) and (ii) in Para 28
\nof Virpal  Singh Chauhan  apply to  both selection  and non-
\nselection posts. Rule (iii) also applies to both but subject
\nto the\tabove rider. As explained in the main opinion, while
\nthere is no question of a “panel” being prepared at the time
\nof promotion  to non-selection\tposts, a  panel\t has  to  be
\nprepared for promotion to selection posts.\n<\/p>\n
47.  This appeal  is  accordingly  allowed  and\t the  matter
\nremanded to  the Tribunal with a direction to dispose of the
\noriginal application  afresh in\t the light of the principles
\nenunciated herein. No costs.\n<\/p>\n
     CIVIL APPEAL NO.9275 OF 1995\n<\/p>\n
     —————————-\n<\/p>\n
     ARISING OUT OF S.L.P.(C) NO.4102 OF 1994:\n<\/p>\n
     —————————————–\n<\/p>\n
48.  Delay condoned. Leave granted.\n<\/p>\n
49.  The   respondent\t[petitioner   before   the   Central
\nAdministrative Tribunal\t (Allahabad Bench), Sri Mohd. Sabir,
\njoined the Railways as an Office Clerk on December 20, 1957.
\nHe was\tpromoted as  Head Clerk\t and then  as  an  Assistant
\nSuperintendent. His  promotion\tto  the\t post  of  Assistant
\nSuperintendent was  on March 12, 1985. The next promotion is
\nto the\tpost of\t Superintendent. He  approached the Tribunal
\ncomplaining that when two vacancies arose in the category of
\nSuperintendents,  the  Railway\tAuthorities  called  certain
\nScheduled Castes\/Scheduled  Tribes candidates  for interview
\nin preference  to him though they are far juniors to him. He
\ngave three  instances, viz.,  (1)  Sri\tA.P.  Pramanik,\t who
\njoined the  service twenty  years  after  him  and  who\t was
\npromoted as  Assistant Superintendent  only on\tFebruary 22,
\n1988. (2)  Sri Kamal Kishore, who was initially appointed as
\nClass IV  employee but who is being treated as senior to the
\npetitioner and (3) Sri Amrendra Kumar Das, who was appointed
\nas an  Office Clerk  twenty two\t years after his appointment
\nand who\t came to  be promoted as Assistant Superintendent on
\nFebruary 25, 1986. The grievance of Sri Mohd. Sabir is this:
\nthe  total   sanctioned\t strength   of\t the   category\t  of
\nSuperintendents\t (Grade\t Rs.2000-3200\/-\t RPS)  is  thirteen.
\nThere are  three vacancies.  Of the  remaining ten, only two
\nare general  candidates and  the remaining  eight belong  to
\nScheduled Castes.  Inspite of  the same,  the candidates now
\nbeing considered  for promotion\t are again  Scheduled Castes
\ncandidates which  is likely  to result\tin an  almost  total
\nreservation in\tthe said category in favour of the Scheduled
\nCastes\/Scheduled  Tribes   candidates.\tThe   case  of\t the
\nappellants (respondents in the original application) is that
\nthey are  considering the  senior most\tcandidates  for\t the
\nvacancies arising  in the  category of\tSuperintendents and,
\ntherefore, no objection can be taken with the said course by
\nany aone.\n<\/p>\n
50.  The Tribunal  has allowed\tthe original  application in
\nthe following terms:\n<\/p>\n
     “It  appears   that  some\t mathematical
\n     mistake occurred  on  the\tpart  of  the
\n     department in  making the\tpromotion and
\n     deciding  the  seniority.\tAccording  to
\n     learned counsel in view of Vir Pal Singh
\n     Chauhan’s case  these candidates  are to
\n     be reverted.  Whether  they  are  to  be
\n     reverted or  not that  is the matter for
\n     the  respondents\tto  decide  all\t such
\n     observations which have been made in Vir
\n     Pal Singh’s  case, but  the  respondents
\n     are directed  to promote  the members of
\n     the general community to the extent they
\n     are  entitled  to\tby  adhering  to  the
\n     seniority. Accordingly, since the matter
\n     is not  decided finally  by the  Hon’ble
\n     Supreme Court, However those persons who
\n     have already  been promoted,  keep\t them
\n     for the  post of  Supdt. and will adjust
\n     the  seniority   list   accordingly   in
\n     accordance with  Vir Pal  Singh’s\tcase.
\n     Let all  these be done within the period
\n     of\t  3   months   from   the   date   of
\n     communication of this order. No order as
\n     to the costs.”\n<\/p><\/blockquote>\n
51.  This appeal  is liable  to be  dismissed  applying\t the
\nprinciple enunciated  in R.K.  Sabharwal. It is evident that
\nout of\tthe cadre-strength  of thirteen,  there\t were  three
\nvacancies on  the date of filing of the original application
\nbefore the Tribunal and of the remaining ten posts, only two
\nwere occupied  by the  general candidates  and the remaining
\neight were  occupied by\t the members  of  Scheduled  Castes.
\nSince the  representation of Scheduled Castes is already far
\nbeyond their  quota, no\t further Scheduled Castes candidates
\ncould  have   been  considered\t for  the   remaining  three
\nvacancies. This\t means that  the Scheduled Castes candidates
\ncan be\tconsidered only as and along with general candidates
\nbut not\t as members  belonging to  a reserved  category. The
\nappeal\tis   accordingly  dismissed   with   the   aforesaid
\nclarification.\n<\/p>\n
     CIVIL APPEAL NO.9274 OF 1995\n<\/p>\n
     —————————-\n<\/p>\n
     ARISING OUT OF S.L.P.(C) NO.6924 OF 1988:\n<\/p>\n
     —————————————–\n<\/p>\n
52.  Delay condoned. Leave granted.\n<\/p>\n
53.  This matter  pertains to  promotion  to  the  posts  of
\nOffice Superintendents Grade-I, Office Superintendent Grade-
\nII and\tHead Clerk.  The original  application was  filed by
\nthree  candidates   belonging  to  general  category.  Their
\ngrievance  was\t that  the   representation   of   Scheduled
\nCastes\/Scheduled Tribes\t candidates has already exceeded the
\npercentage  reserved  for  them\t and  inspite  of  that\t the
\nScheduled Castes  candidates are  again being considered for
\nthe vacancies  arising in  the said  categories. By  way  of
\nillustration, they  pointed out,  the sanctioned strength of
\nthe category  of Head  Clerks is six. Four are filled up and
\nthere are  two vacancies.  Out of  the\tfour  posts  already
\nfilled up,  two are  held by general category candidates and
\ntwo by\tthe members  of Scheduled  Castes. The\tclaim of the
\noriginal petitioners (respondents in this appeal), which has
\nbeen upheld  by the Calcutta Tribunal, is that the remaining
\ntwo vacancies  should go only to general candidates. Similar
\ndirection has been made with respect to other two categories
\nas well.  The Tribunal\tfurther directed  that the  rule  of
\nreservation must  be applied with reference to posts and not
\nwith reference\tto vacancies.  The main\t contention  of\t the
\nUnion of India and the Railway Authorities in this appeal is
\nthat  the   rule  of  reservation  in  favour  of  Scheduled
\nCastes\/Scheduled Tribes\t should be  applied to vacancies and
\nnot to\ttotal number  of posts in the cadre. It is submitted
\nthat the  Tribunal was\tin error in holding that the rule of
\nreservation should be so applied as to ensure that the posts
\nheld by\t Scheduled Castes\/Scheduled Tribes do not exceed the
\nprescribed percentage.\tIt is  submitted that this was never
\nthe  intention\t of  the   Constitution\t or   the  rule\t  of
\nreservation.\n<\/p>\n
54.  The only  contention urged\t by the appellants herein is
\nconcluded against  the appellants  by the  decision of\tthis
\nCourt in R.K. Sabharwal, referred to hereinbefore. Following
\nthe  said   decision  this  appeal  is\tdismissed  with\t the
\nclarification that the members of Scheduled Castes\/Scheduled
\nTribes can also compete as general candidates. The appellant
\nshall follow and apply the said decision. No costs.\n<\/p>\n
     —————X——————–X————–
\n     Before parting  with these\t appeals, we feel obliged to
\nreiterate the  principle  affirmed  in\tIndra  Sawhney\tthat
\nproviding reservation  in  promotion  is  not  warranted  by
\nArticle 16(4).\tThe facts  of  these  cases  illustrate\t and
\ndemonstrate the\t correctness of\t the said holding. They also
\nbring home  the intractable  problems that  arise from\tsuch
\nprovision –  problems that  defy solutions.  No more need we
\nsay on this aspect. The decision in Indra Sawhney speaks for
\nitself.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India And Ors. Etc vs Virpal Singh Chauhan Etc on 10 October, 1995 Equivalent citations: 1996 AIR 448, 1995 SCC (6) 684 Author: B Jeevan Reddy Bench: Jeevan Reddy, B.P. (J) PETITIONER: UNION OF INDIA AND ORS. ETC. Vs. RESPONDENT: VIRPAL SINGH CHAUHAN ETC. DATE OF JUDGMENT10\/10\/1995 BENCH: JEEVAN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-81408","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India And Ors. 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