http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 26

CASE NO.:

Appeal (civil) 3792 of 1989

PETITIONER:

AJIT SINGH AND ORS.

RESPONDENT:

STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT: 16/09/1999

BENCH:

A.S.ANAND CJI & K.VENKATASWAMI & G.B.PATTANAIK & S.P.KURDUKAR & M.JAGANNADHA RAO

JUDGMENT:

JUDGMENT

DELIVERED BY:

M.JAGANNADHA RAO, J.

M.JAGANNADHA RAO,J.

We have before us these three Interlocutory

Applications Nos. 1 to 3 filed for "clarification" by the

State of Punjab in Civil Appeal Nos.3792-94 of 1989 (Ajit

Singh Januja & Others vs. State of Punjab) [1996 (2) SCC

215] (hereinafter referred to as Ajit Singh in this

judgment). The matter concerns a dispute relating to

of reserved candidates and general candidates.

At the outset we make it clear that in this

judgment we are not concerned with the reservation policy of

the State or with the validity of any procedure fixing

roster points for purpose of promotion of reserved

candidates. We are here dealing only with a limited

question relating mainly to seniority of the reserved

candidates promoted at roster points.

We also make it clear that what we are deciding

today is based on principles already laid down by this Court

since 1950 and in particular since 1963. Basing on those

principles, we are concerned with the limited question as to

whether Union of India vs. Virpal Singh [1993 (6) SCC 685]

and Ajit Singh Januja vs. State of Punjab [1996 (2) SCC

215], which were earlier decided in favour of the general

candidates are to be affirmed or whether the latter

deviation made in Jagdish Lal vs. State of Haryana [1997

(6) SCC 538] against the general candidates, is to be

accepted. How these IAs 1-3 came to be filed for

clarification:? The circumstances under which the State of

Punjab has filed these IAs for clarification are as

follows:- Initially, in a case relating to the Indian

Railways, a two Judge Bench of this Court in Union of India

vs. Virpal Singh [1995 (6) SCC 685] (hereinafter referred

to as Virpal) held that it was "permissible" for the

Railways to say that reserved candidates who get promotion

at the roster points would not be entitled to claim

seniority at the promotional level as against senior general

candidates who got promoted at a later point of time to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 26

same level. It was further held that "it would be open" to

the State to provide that as and when the senior general

candidate got promoted under the rules, - whether by way of

a seniority rule or a selection rule - to the level to which

the reserved candidate was promoted earlier, the general

candidate would have to be treated as senior to the reserved

candidate (the roster point promotee) at the promotional

level as well, unless, of course, the reserved candidate got

a further promotion by that time to a higher post. (This is

described for convenience, as the 'catch up' rule) Close on

the heels of Virpal, came Ajit Singh from Punjab, before a

three Judge Bench and the Bench held that the question of

seniority at the promotional level had to be decided by

applying the provisions of Article 14 and 16 (1) and if any

order, circular or rule provided that such reserved

candidates who got promotions at roster points were to be

treated as senior to the senior general candidates who were

promoted later, then such an order, circular or rule would

be violative of Article 14 and 16(1). It was, however, held

that the position would be different if by the time the

senior general candidate got his promotion under the normal

rules of seniority or selection, the reserved candidate who

was promoted earlier at the roster point, had got a further

promotion. In other words, the `catch up' principle as laid

down in Virpal was accepted. In coming to the above

conclusions, the three Judge Bench relied upon the

principles laid down by the nine Judge Bench in Indira

Sawhney vs. Union of India [1992 Suppl. (3) SCC 251] and

by the Constitution Bench in R.K.Sabharwal vs. State of

Punjab [1995 (2) SCC 745]. These two cases had laid down

earlier the manner in which the rights of the general

candidates and the reserved candidates ought to be balanced.

In Ajit Singh the Court said the balance must be maintained

in such a manner that there was no reverse discrimination

against the general candidates and that any rule, circular

or order which gave seniority to the reserved candidates

promoted at roster point, would be violative of Articles 14

and 16(1) of the Constitution of India. The Indian Railways

following the law laid down in Virpal issued a circular on

28.2.97 to the effect that the reserved candidates promoted

at roster points could not claim seniority over the senior

general candidates promoted later. The State of Punjab

after following Ajit Singh was proceeding to revise

seniority lists and make further promotions of the senior

general candidates who had reached the level to which the

reserved candidates had reached earlier. At that point of

time, another three Judge Bench came to decide a case from

the State of Haryana in Jagdish Lal vs. State of Haryana

[1997 (6) SCC 538] and took a view contrary to Virpal and

Ajit Singh. It held that the general rule in the Service

Rules relating to seniority from the date of continuous

officiation which was applicable to candidates promoted

under the normal seniority/selection procedure would be

attracted even to the roster point promotees as otherwise

there would be discrimination against the reserved

candidates. The Bench also observed that the right to

promotion was a statutory right while the rights of the

reserved candidates under Article 16(4) and Article 16(4A)

were fundamental rights and in that behalf, it followed

Ashok Kumar Gupta vs. State of U.P. [1997 (5) SCC 201]

where a similar principle had been laid down. The

Contentions in brief: Sri Hardev Singh, learned senior

counsel for the State of Punjab submitted that since Jagdish

Lal decided something contrary to Virpal and Ajit Singh the

State was in a `quandary what to do. In these IAs and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 26

connected batch of cases which have been listed together and

heard, contentions have been raised by Sri Rajeev Dhawan for

the State of Haryana and Sri Altaf Ahmad, Additional

Solicitor General of India for the State of Rajasthan and

the Union of India. According to the learned counsel the

'roster point promotees', ( i.e. a reserved candidate at

Level 1 who is promoted to Level 2 at the roster point meant

for such promotion) namely, the reserved candidates cannot

claim seniority on the basis of continuous officiation.

However, learned Additional Solicitor General, Sri C.S.

Vaidyanathan for the Indian Railways has taken a contrary

stand-, in spite of the fact that Railways has already

accepted Virpal and issued a circular on 28.2.1997 -that

roster point promotions in the Railways did not confer

seniority. Senior counsel Sri Harish Salve and others for

the general candidates contended that Virpal and Ajit Singh

were correctly decided and Jagdish Lal was wrongly decided.

Senior counsel Sri K. Parasaran, Sri D.D. Thakur, Sri M.N.

Rao, and others including Sri Jose P. Verghese for the

reserved candidates relied upon Jagdish Lal and they

contended that Virpal and Ajit Singh were wrongly decided.

The validity of the 'catch-up' rule accepted in Virpal and

Ajit Singh in favour of general candidates was also put in

issue. One additional point was also argued. This related

to the "prospectivity" of R.K.Sabharwal and Ajit Singh. In

R.K.Sabharwal this Court has held that once the roster point

promotions were all made in respect of the reserved

candidates, the roster ceased to operate. Unless any of the

reserved candidates already promoted had retired or been

further promoted etc. and unless there was a vacancy

generated at the points already filled, fresh candidates

from the reserved candidates could not be promoted by

further operation of the roster. Having so held, the Court

said that the judgment would be "prospective". The reserved

candidates now contend that the above direction means that

not only the reserved candidates so promoted in excess of

the roster points could not be reverted but that their

seniority against such excess promotions was also protected

vide Sabharwal.

Likewise, in regard to Ajit Singh, the contention

was as follows: Assume there are rosters at Level 1 and

again at Level 2. Assume that a reserved candidate has been

promoted from Level 1 to Level 2 on the basis of the roster

point and again from Level 2 to Level 3 on roster point. A

senior general candidate at Level 1 has later reached Level

3 and by that date the reserved candidate is still at Level

3. Assume that the plea of the general candidates that the

general candidate became senior at Level 3 to the earlier

promoted reserved candidate, is correct. Ignoring the

senior general candidate at Level 3, the reserved candidate

has been further promoted to Level 4 before 1.3.96 when Ajit

Singh was decided. In that event, the prospective operation

of Ajit Singh means, according to the reserved candidates,

that such a reserved candidate is not only not to be

reverted but his seniority at Level 4 is also to be

protected. The general candidates say that after Ajit Singh

was decided on 1.3.96 the said promotion made to Level 4,

ignoring the case of the senior general candidate at Level

3, is to be reviewed and seniority at Level 3 is to be

refixed. At Level 4, - when the general candidate is also

promoted to Level 4, the seniority of the reserved candidate

has also to be fixed on the basis as to when he would have

otherwise been promoted to Level 4, after considering the

case of his senior general candidate at Level 3. We shall

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 26

be dealing with these main contentions in this judgment. So

far as the individual points raised in the Civil Appeals,

Contempt Cases and other IAs are concerned, we shall deal

with them by separate judgments for convenience.

On the above contentions, the following four main

points arise for consideration: Points:

..........L.....T.......T.......T.......T.......T.......T..J

(1) Can the roster point promotees ( reserved

category) count their seniority in the promoted

category from the date of their continuous

officiation vis-a-vis general candidates who were

senior to them in the lower category and who were

later promoted to the same level? (2) Have

Virpal, Ajit Singh been correctly decided and has

Jagdish Lal been correctly decided? (3) Whether

the 'catch-up' principles contended for by the

general candidates are tenable? (4) What is the

meaning of the 'prospective' operation of

Sabbarwal and to what extent can Ajit Singh be

prospective? .lm10 Points (1) and (2): A word

with regard to Article 16(4) & Article 16 (4A):

Learned senior counsel for the general candidates

submitted at the outset that while Indira Sawhney

permitted reservations for a period of five years,

the Constitution was amended within the said

period and Article 16(4A) was incorporated

permitting reservation in promotions but

restricting the same to Scheduled Castes and

Scheduled Tribes. Learned counsel submitted that

it was their contention that this amendment was

not constitutionally permissible but this question

need not be decided in this batch as separate writ

petitions challenging the validity of Article

16(4A) are pending in this Court. In view of the

above stand, we shall proceed in these cases on

the assumption that Article 16(4A) is valid and is

not unconstitutional. At the same time, we also

note the contention of the reserved candidates

that Article 16(4A) must be deemed to be

constitutional unless otherwise declared. .pa

Article 16(1), 16(4) and 16(4A): In the context

of the first and second questions, it is necessary

to refer to the relevant parts of Article 16 of

the Constitution of India. Sub-clauses (1), (4)

and (4A) of Article 16 which have relevance in

this case read as follows: "Article 16(1)-

Equality of appointment in matters of public

employment:- There shall be equality of

opportunity for all citizens in matters relating

to employment or appointment to any office under

the State.

(2)......................................

(3)......................................

(4) Nothing in this Article shall prevent the

State from making any provision for the

reservation of appointment or posts in favour of

any backward class of citizens which, in the

opinion of the State, is not adequately

represented in the services under the State.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 26

(4A) Nothing in this Article shall prevent the

State from making any provision for reservation in

matters of promotion of any class or classes of

posts in the services under the State in favour of

Scheduled Castes and the Scheduled Tribes which,

in the opinion of the State are not adequately

represented in the services under the State."

I.......T.......T.......T.......T.......T.......T.......T..J

Constitution is not static: We shall at the

outset deal with the contention raised by Sri

D.D.Thakur, learned senior counsel appearing for

the reserved candidates that Article 16(4) must be

interpreted keeping in mind the conditions

prevailing fifty years ago when the Constitution

was drafted and when Article 16(4) was

incorporated in the Constitution. Learned counsel

submitted that the founding fathers were conscious

that a special provision for reservation was

necessary to see that the backward classes of

citizens were adequately represented in the

services. Hence an interpretation which would

advance the said objective must be applied.

Reliance was also placed on the Statement of

Objects and Reasons in connection with the

incorporation of Article 16(4A). In fact, all the

learned counsel appearing for the reserved

candidates contended that the said officers could

not be treated as equals to the general candidates

and that their backwardness and past social

oppression must be borne in mind. Nobody can deny

that the above approach is the proper one while

dealing with the reserved classes. The primary

purpose of Article 16(4) and Article 16(4A) is due

representation of certain classes in certain

posts. However, we must bear in mind and not

ignore that there are other provisions, namely,

Articles 14, 16(1) and Article 335 of the

Constitution which are also very important. The

Constitution has laid down in Articles 14 and

16(1) the permissible limits of affirmative action

by way of reservation under Articles 16(4) and

16(4A). While permitting reservations at the same

time, it has also placed certain limitations by

way of Articles 14 and 16(1) so that there is no

reverse discrimination. It has also incorporated

Article 335 so that the efficiency of

administration is not jeopardized. While

interpreting provisions of the Constitution and in

particular fundamental rights of citizens, it is

well to bear in mind certain fundamental concepts.

In McCulloch Vs. Maryland ( 1819) 4 Wheel (17

U.S.316), Chief Justice Marshall cautioned that we

must keep in mind that it is the Constitution that

we are expounding. He said that the Constitution

was intended to endure for ages to come and had

consequently to be adapted to the various crises

of human affairs from time to time. Brandeis J

wrote : "Our Constitution is not a straight

jacket. It is a living organism. As such it is

capable of growth, of expansion and of adaptation

to new conditions. Growth implies changes,

political, economic and social. Growth which is

significant manifests itself rather in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 26

intellectual and moral conceptions of material

things" (Brandeis Papers, Harvard Law School).

Similarly, in a beautiful metaphor Mr. J.M. Beck

said as follows:

"The Constitution is neither, on the one hand, a

Gibraltor Rock, which wholly resists the ceaseless

washing of time and circumstances, nor is it, on

the other hand, a sandy beach, which is slowly

destroyed by erosion of the waves. It is rather

to be likened to a floating dock which, while

firmly attached to its moorings, and not therefore

at the caprice of the waves, yet rises and falls

with the tide of time and circumstances"

(Constitution of the United States, Yesterday,

Today and Tomorrow' ( 1924) (Oxford University

Press)."

L.........I.....T.......T.......T.......T.......T.......T..J

Such should be and would be our approach in

resolving the important constitutional issues arising in

these IAs and in this batch of cases.

We shall first deal with the fundamental rights

under Articles 14 and 16(1) and then with the nature of the

rights of the reserved candidates under Articles 16(4) and

16(4A).

Articles 14 and 16(1): Is right to be considered

for promotion a fundamental right?

Article 14 and Article 16(1) are closely

connected. They deal with individual rights of the person.

Article 14 demands that the "State shall not deny to any

person equality before the law or the equal protection of

the laws". Article 16(1) issues a positive command that

"there shall be equality of opportunity for all citizens in

the matters relating to employment or appointment to any

office under the State". It has been held repeatedly by

this Court that sub-clause (1) of Article 16 is a facet of

Article 14 and that it takes its roots from Article 14. The

said sub- clause particularizes the generality in Article 14

and identifies, in a constitutional sense "equality

opportunity" in matters of employment and appointment to any

office under the State. The word 'employment' being wider,

there is no dispute that it takes within its fold, the

aspect of promotions to posts above the stage of initial

level of recruitment. Article 16(1) provides to every

employee otherwise eligible for promotion or who comes

within the zone of consideration, a fundamental right to be

"considered" for promotion. Equal opportunity here means

the right to be "considered" for promotion. If a person

satisfies the eligibility and zone criteria but is not

considered for promotion, then there will be a clear

infraction of his fundamental right to be "considered" for

promotion, which is his personal right. "Promotion" based

on equal opportunity and 'seniority' attached to such

promotion are facets of fundamental right under Article

16(1): Where promotional avenues are available, seniority

becomes closely interlinked with promotion provided such a

promotion is made after complying with the principle of

equal opportunity stated in Article 16(1). For example, if

the promotion is by rule of `seniority-cum- suitability',

the eligible seniors at the basic level as per seniority

fixed at that level and who are within the zone of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 26

consideration must be first considered for promotion and be

promoted if found suitable. In the promoted category they

would have to count their seniority from the date of such

promotion because they get promotion through a process of

equal opportunity. Similarly, if the promotion from the

basic level is by selection or merit or any rule involving

consideration of merit, the senior who is eligible at the

basic level has to be considered and if found meritorious in

comparison with others, he will have to be promoted first.

If he is not found so meritorious, the next in order of

seniority is to be considered and if found eligible and more

meritorious than the first person in the seniority list, he

should be promoted. In either case, the person who is first

promoted will normally count his seniority from the date of

such promotion. (There are minor modifications in various

services in the matter of counting of seniority of such

promotees but in all cases the senior most person at the

basic level is to be considered first and then the others in

the line of seniority). That is how right to be considered

for promotion and the `seniority' attached to such promotion

become important facets of the fundamental right guaranteed

in Article 16(1). Right to be considered for promotion is

not a mere statutory right: The question is as to whether

the right to be considered for promotion is a mere statutory

right or a fundamental right. Learned senior counsel for

the general candidates submitted that in Ashok Kumar Gupta

Vs. State of U.P. (1997 (5) SCC 201), it has been laid

down that the right to promotion is only a "statutory right"

while the rights covered by Articles 16(4) and 16(4A) are

"fundamental rights". Such a view has also been expressed

in Jagdish Lal and some other latter cases where these cases

have been followed. Counsel submitted that this was not the

correct constitutional position. In this connection our

attention has been invited to para 43 of Ashok Kumar Gupta.

It reads as follows:-

"It would thus be clear that right to promotion is

a statutory right. It is not a fundamental right. The

right to promotion to a post or class of posts depends upon

the operation of the conditions of service. Article 16(4)

read with Articles 16(1) and 14 guarantees a right to

promotion to Dalits and Tribes as a fundamental right where

they do not have adequate representation consistently with

the efficiency of administration... before expiry thereof

(i.e. 5 years rule), Article 16(4) has come into force from

17.6.1995. Therefore, the right to promotion continues as a

constitutionally guaranteed fundamental right." A similar

view was expressed in Jagdishlal and followed in some latter

cases. In the above passage, it was laid down that

promotion was a statutory right and that Articles 16(4) and

16(4A) conferred fundamental rights. In our opinion, the

above view expressed in Ashok Kumar Gupta, and followed in

Jagdish Lal and other cases, if it is intended to lay down

that the right guaranteed to employees for being

"considered" for promotion according to relevant rules of

recruitment by promotion(i.e. whether on basis of seniority

or merit) is only a statutory right and not a fundamental

right, we cannot accept the proposition. We have already

stated earlier that the right to equal opportunity in the

matter of promotion in the sense of a right to be

"considered" for promotion is indeed a fundamental right

guaranteed under Article 16(1) and this has never been

doubted in any other case before Ashok Kumar Gupta, right

from 1950. Articles 16(4) and 16(4A) do not confer any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 26

fundamental right to reservation: We next come to the

question whether Article 16(4) and Article 16(4A) guaranteed

any fundamental right to reservation. It should be noted

that both these Articles open with a non-obstante clause -

"Nothing in this Article shall prevent the State from making

any provision for reservation.....". There is a marked

difference in the language employed in Article 16(1) on the

one hand and Article 16(4) and Article 16(4A). There is no

directive or command in Article 16(4) or Article 16(4A) as

in Article 16(1). On the face of it, the above language in

each of Articles 16(4) and 16(4A), is in the nature of an

enabling provision and it has been so held in judgments

rendered by Constitution Benches and in other cases right

from 1963. We may in this connection point out that the

attention of the learned Judges who decided Ashok Kumar

Gupta and Jagdish Lal was not obviously drawn to a direct

case decided by a Constitution Bench in C.A.Rajendran vs.

Union of India 1968 (1) SCC 721 which arose under Article

16(4). It was clearly laid down by the five Judge Bench

that Article 16(4) was only an enabling provision, that

Article 16(4) was not a fundamental right and that it did

not impose any constitutional duty. It only conferred a

discretion on the State. The passage in the above case

reads as follows:

"Our conclusion therefore is that Article 16(4)

does not confer any right on the petitioner and there is no

constitutional duty imposed on the government to make

reservation for Scheduled Castes and Scheduled Tribes,

either at the initial stage or at the stage of promotion.

In other words, Article 16(4) is an enabling provision and

confers discretionary power on the State to make a

reservation of appointment in favour of backward class of

citizens which, in its opinion, is not adequately

represented in the services of the State."

The above principle was reiterated in two three

Judge Bench judgments in P&T SC/ST Employees' Welfare

Association vs. Union of India 1988 (4) SCC 147; and in

SBI SC/ST Employees Welfare Association vs. State Bank of

India 1996 (4) SCC 119. In fact, as long back as in 1963,

in M.R.Balaji vs. State of Mysore 1963 Suppl. (1) SCR 439

(at p.474) which was decided by Five learned Judges, the

Court said the same thing in connection with Articles 15(4)

and Article 16(4). Stating that Article 15(4) and 16(4)

were only enabling provisions, Gajendragadkar, J. ( as he

then was ) observed:

"In this connection, it is necessary to emphasise

that Article 15(4) like Article 16(4) is an enabling

provision, it does not impose an obligation, but merely

leaves it to the discretion of the appropriate government to

take suitable action, if necessary."

Unfortunately, all these rulings of larger Benches

were not brought to the notice of the Bench which decided

Ashok Kumar Gupta and Jagdish Lal and to the Benches which

followed these two cases. In view of the overwhelming

authority right from 1963, we hold that both Articles 16(4)

and 16(4A) do not confer any fundamental rights nor do they

impose any constitutional duties but are only in the nature

of enabling provision vesting a discretion in the State to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 26

consider providing reservation if the circumstances

mentioned in those Articles so warranted. We accordingly

hold that on this aspect Ashok Kumar Gupta, Jagdishlal and

the cases which followed these cases do not lay down the law

correctly. Power is coupled with duty: Learned senior

counsel for the reserved candidates, Sri K.Parasaran however

contended that Article 16(4) and Article 16(4A) confer a

power coupled with a duty and that it would be permissible

to enforce such a duty by issuing a writ of mandamus.

Reliance for that purpose was placed upon Comptroller and

Auditor General of India, Gian Prakash vs. K.S.Jagannathan

[1986 (2) SCC 679] and also on Julius vs. Lord Bishop

(1880) 5 AC 214 which case was followed by this Court in

Commissioner of Police vs. Gordhandas Bhanji [1952 SCR

135]. We are unable to agree with the above contention. As

pointed out earlier, the Constitution Bench of this Court in

C.A. Rajendran Vs. Union of India (1968(1) SCR 721) held

that Article 16(4) conferred a discretion and did not create

any constitutional duty or obligation. In fact, in that

case, a mandamus was sought to direct the Government of

India to provide for reservation under Article 16(4) in

certain Class I and Class II services. The Government

stated that in the context of Article 335 and in the

interests of efficiency of administration at those levels,

it was of the view that there should be no reservation. The

said opinion of the Government was accepted by this Court as

reasonable and mandamus was refused. Even in M.R. Balaji's

case, the Constitution Bench declared that Article 16(4)

conferred only a discretion. It is true that in

Jagannathan's case, the three Judge Bench issued a mandamus,

after referring to Article 142, that the Government must add

25 marks to SC/ST candidates who had taken the S.A.S.

Examination for promotion as Sections Officers and also

that, in future, a reduced minimum marks must be provided

and announced before the examination. The Court also

observed that the Department had not passed orders as per a

general O.M. of the Government dated 21.9.1977. But the

attention of the Court was not drawn to the judgment of the

Constitution Bench in C.A. Rajendran's case and other cases

to which we have referred earlier. Further, if the State is

of the opinion that in the interests of efficiency of

administration, reservation or relaxation in marks is not

appropriate, then it will not be permissible for the Court

to issue a mandamus to provide for reservation or

relaxation. We also note that in Superintending Engineer,

Public Health Vs. Kuldeep Singh ( 1997(9) SCC 199),

Jagannathan's case was followed and reference was made to

Article 16(4) and Article 16(4A) and to the principle that

where a power is coupled with a duty as in Julius Vs. Lord

Bishop and Commissioner of Police Vs. Gordhandas Bhanji,

the same could be enforced by the Court. But we may point

out that even in Kuldeep Singh's case, no reference was made

to C.A. Rajendran and other cases. We, accordingly, hold

that the view in Jagannathan and Kuldeep Singh's cases that

a mandamus can be issued either to provide for reservation

or for relaxation is not correct and runs counter to

judgments of earlier Constitution Benches and, therefore,

these two judgments cannot be said to be laying down the

correct law.

Balancing of fundamental rights under Article

16(1) and the rights of reserved candidates under Articles

16(4) and 16(4A):

Having noticed that Article 16(1) deals with a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 26

fundamental right and Article 16(4) and Article 16(4A) are

enabling provisions, we next come to the need for balancing

Article 16(1) and Articles 16(4) and 16(4A). Such a

balancing principle was enunciated by the Constitution Bench

in 1963 in M.R. Balaji Vs. State of Mysore : 1963 Suppl.

(1) SCR 439 wherein it was stated that the interests of the

reserved classes must be balanced against the interests of

other segments of society. In Indira Sawhney's case, Jeevan

Reddy, J. explained how the fundamental right of the

citizens as declared in Article 16(1) has to be balanced

against the claims of the reserved candidates in Article

16(4). The learned Judge stated: (See page 734 para 808):

"It needs no emphasis to say that the principal

aim of Articles 14 and 16 is equality and equality of

opportunity and that clause (4) of Article 16 is a means of

achieving the very same objective. Clause (4) is a special

provision - though not an exception to clause (1). Both the

provisions have to be harmonised keeping in mind the fact

that both are restatements of the principles of equality

enshrined in Article 14. The provision under Article 16(4)

- conceived in the interests of certain sections of society

- should be balanced against the guarantee of equality

enshrined in clause (1) of Article 16 which is a guarantee

held out to every citizen and to the entire society". The

same principle was reiterated in the judgment of the

Constitution Bench in Post Graduate Institute of Medical

Education and Research vs. Faculty Association 1998 (4) SCC

1 after referring to several earlier cases. It was stated :

(P.22) " The doctrine of equality of opportunity in clause

(1) of Article 16 is to be reconciled in favour of backward

classes under clause (4) of Article 16 in such a manner that

the latter while serving the cause of backward classes shall

not unreasonably encroach upon the field of equality".

In Ajit Singh, in the context of seniority for the

roster point promotees it was observed : (p.733 of SCC)

"For attracting meritorious and talented persons

into service, a balance has to be struck, while making

provisions for reservation in respect of a section of the

society. This Court from time to time has been issuing

directions to maintain that balance...."

The above approach in Balaji in 1963, Indira

Sawhney in 1991 later in Ajit Singh in 1996 and in PGI Case

in 1998 for striking a balance between the individuals

rights under Articles 14 and 16(1) on the one hand and

affirmative action under Articles 16(4) & 16(4A) on the

other, appears to us to be on the same lines as the approach

of the U.S. Supreme Court under the Equal Protection Clause

in Richmond Vs. Croson and Co. (1989) 488 U.S. 469 ( at

493). In that case, it was stated that while dealing with

the affirmative action taken in favour of African-Americans,

the Equal Protection Clause which conferred individual

rights have to be kept in mind by the Courts. Justice

Sandra Day O'Connor observed:

"The Equal Protection Clause of the Fourteenth

Amendment provides that "No State shall ....deny to any

person within its jurisdiction the equal protection of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 26

laws" (emphasis added). As this Court has noted in the

past, the "rights created by the first section of the

Fourteenth Amendment are, by its terms, guaranteed to the

individuals. The rights established are personal rights"

(Shelly Vs. Kraemer) 334 U.S.(1948) "

The same learned Judge, Justice Sandra Day

O'Connor, stated again recently in Adarand Constructors Inc

Vs. Pena ( 1995) 515 U.S.200, that in such matters relating

to affirmative action, the Court would launch an inquiry to

ensure that the

"personal right to equal protection of the laws

has not been infringed."

Thus this Court has to ensure that, in matters

relating to affirmative action by the State, the rights

under Articles 14 and 16 of the individual to equality of

opportunity, are not affected. A reasonable balance has to

be struck so that the affirmative action does not lead to

reverse discrimination. We shall here refer to the speech

of Dr. Ambedkar in the Constituent Assembly:

"Supposing, for instance, we were to concede in

full the demands of these communities who have not been so

far employed in the public services to the fullest extent,

what would really happen is, we shall be completely

destroying the first proposition upon which we are all

agreed, that there shall be equality in opportunity".

Krishna Iyer,J. also cautioned in Akhil Bharatiya

Soshit Karamchari Sangh (Railway) Vs. Union of India ( 1981

(1) SCC 246 ( at P.286) that "care must be taken to see that

classification is not pushed to such an extreme point as to

make the fundamental right to equality cave in and

collapse". The learned Judge relied upon Triloki Nath

Khosla Vs. State of Jammu and Kashmir ( 1974 (1) SCC 19)

and State of Kerala Vs. Thomas ( 1976 (2) SCC 310).

Krishna Iyer, J. stated in Soshit Karamchari Case, (para

102) that reservations cannot lead to an `overkill'. At

page 301, His Lordship said: "The remedy of 'reservations'

to correct inherited imbalances must not be an overkill".

In other words, affirmative action stops where

reverse discrimination begins. (i) Efficiency of

administration and Article 335: It is necessary to see that

the rule of adequate representation in Article 16(4) for the

Backward Classes and the rule of adequate representation in

promotion for Scheduled Castes and Scheduled Tribes under

Article 16(4A) do not adversely affect the efficiency in

administration. In fact, Article 335 takes care to make

this an express constitutional limitation upon the

discretion vested in the State while making provision for

adequate representation for the Scheduled Castes/Tribes.

Thus, in the matter of due representation in service for

Backward Classes and Schedule Castes and Tribes, maintenance

of efficiency of administration is of paramount importance.

As pointed in Indira Sawhney, the provisions of the

Constitution must be interpreted in such a manner that a

sense of competition is cultivated among all service

personnel, including the reserved categories. (ii)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 26

Reservation and effect of the Roster Point reservation: It

must be noted that whenever a reserved candidate goes for

recruitment at the initial level (say Level 1), he is not

going through the normal process of selection which is

applied to a general candidate but gets appointment to a

post reserved for his group. That is what is meant by

`reservation'. That is the effect of `reservation'. Now in

a case where the reserved candidate has not opted to contest

on his merit but has opted for the reserved post, if a

roster is set at Level 1 for promotion of the reserved

candidate at various roster points to level 2, the reserved

candidate if he is otherwise at the end of the merit list,

goes to Level 2 without competing with general candidates

and he goes up by a large number of places. In a roster

with 100 places, if the roster points are 8, 16, 24 etc. at

each of these points the reserved candidate if he is at the

end of the merit list, gets promotion to Level 2 by

side-stepping several general candidates. That is the

effect of the roster point promotion. It deserves to be

noticed that the roster points fixed at Level 1 are not

intended to determine any seniority at Level 1 between

general candidates and the reserved candidates. This aspect

we shall consider again when we come to Mervyn Continho vs.

Collector of Customs [1966 (3) SCR 600] lower down. The

roster point merely becomes operative whenever a vacancy

reserved at Level 2 becomes available. Once such vacancies

are all filled, the roster has worked itself out.

Thereafter other reserved candidates can be promoted only

when a vacancy at the reserved points already filled arises.

That was what was decided in R.K.Sabharwal vs. State of

Punjab. (iii) Seniority of roster promotees: Question is

whether roster point promotions from Level 1 to Level 2 to

reserved candidates will also give seniority at Level 2?

This is the crucial question. We shall here refer to two

lines of argument on behalf of the reserved candidates.

Ajit Singh was an appeal from the judgment of the Full Bench

of the Punjab & Haryana High Court in Jaswant Singh Vs.

Secretary to Govt. Punjab Education Department, 1989 (4)

S.L.R. 257. In that case, reliance was placed by the

reserved candidates on a general Circular dated 19.7.69

issued by the Punjab Government which stated that the roster

point promotions would also confer seniority. In fact,

while dismissing the Writ petitions filed by the general

candidates the High Court declared that the State was

obliged to count seniority of the reserved candidates from

the date of their promotion as per the Circular dated

19.7.69. The judgment of the Full Bench was reversed by

this Court in Ajit Singh in the appeal filed by the general

candidates. That resulted in the setting aside of the above

declaration regarding seniority of roster point promotees as

stated in the Punjab circular dated 19.7.69.. But before

us, reliance was placed by the reserved candidates as was

done in Jagdish Lal, upon the general seniority Rule

contained in various Punjab Service Rules applicable in the

Civil Secretariat, Education, Financial Commissioner, etc.

Departments which Rules generally deal with method of

recruitment, probation, seniority and other service

conditions. All these Rules provide a single scheme for

recruitment by promotion on the basis of seniority-

cum-merit and then for seniority to be determined in the

promotional post from the date of "continuous officiation",

whenever the promotion is as per the method prescribed in

those Rules. It is on this seniority rule relating to

`continuous officiation' at the promotional level that

reliance was placed before us by the reserved candidates, as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 26

was done in Jagdish Lal. Question is whether roster points

promotees can rely on such a seniority rule?

In this context it is necessary to remember two

fundamental concepts.

(a) Statutory Rules relating to promotion and

seniority:

We shall take up the rules in one of these

Services in Punjab - namely the rules concerning Ajit Singh

in which the present IAs have been filed.

There are three sets of Rules for Class I, II and

III Services. The Punjab Secretariat Class III Service

Rules, 1976 deal with the posts of clerk(Level 1),

Assistant(Level 2) and Superintendent(Grade II)(Level 3).

At each of these two levels 1 and 2, there is a roster which

implements reservation. The reservation is by way of the

circular dated 19.7.1969 in Punjab. For promotion from

level 1 to 2 and from Level 2 to Level 3, the employees are

respectively governed by Rule 7 for promotion and by Rule 9

for seniority. It is provided in proviso(iii) to Rule 7(1)

that all promotions shall be made by selection on the basis

of seniority-cum-merit and no person shall have a right of

promotion on the basis of seniority alone. Rule 9 speaks of

seniority from the date of continuous officiation.

The Civil Secretariat Service, Class-II Service

rules, 1963 deal with Superintendents(Grade I) i.e. Level 4

and Rule 8(2) states that promotion to the above posts in

Class II is by the method of seniority-cum-merit and Rule 10

states that seniority is to be counted from date of

continuous officiation. Above Class II is class I which

consists of posts of Under Secretary(Level 5) and Deputy

Secretary(Level 6). Rule 6(3) of the Punjab Civil

Secretariat (Class I) Rules, 1974 refers to promotion by

seniority-cum-merit while Rule 8 thereof speaks of seniority

by continuous officiation. For promotion to Class II and

Class I, there is no roster promotion i.e. no reservation.

There is reservation only in Class III posts by way of

roster at two stages.

It is clear, therefore, that the seniority rule

relating to `continuous officiation' in promotion is part of

the general scheme of recruitment -by direct recruitment,

promotion, etc.- in each of the Services in Class I, II and

III - and is based upon a principle of equal opportunity for

promotion. In our opinion, it is only to such promotions

that the seniority rule of `continuous officiation' is

attracted.

(b) Statutory rule of seniority cannot be delinked

and applied to roster-point promotions:

As stated above in Ajit Singh, the promotion rule

in Rule 7(1) proviso (iii) and the seniority Rule in Rule 9

under the 1976 Rules for Class III form a single scheme and

are interlinked. In other words, only in case the officers

have reached the level of Superintendents Grade II(Level 3)

in the manner mentioned in the Rule 7(1) proviso (iii) by

competition between the Assistants (Level 2) and on

consideration of their cases on the basis of

seniority-cum-merit, can the seniority Rule in Rule 9

relating to continuous officiation in the post of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 26

Superintendent Grade II (Level 3) be applied. Here there is

a roster in Ajit Singh for promotion from Level 1 to Level 2

and from Level 2 to Level 3. The consequence is that in the

case of roster point promotees, the said candidates who get

promoted as Superintendents Grade II (Level 3) as per the

roster, - having not been promoted as per Rule 7(1) proviso

(iii) of the 1976 Rules i.e. upon consideration with their

cases on the basis of seniority-cum-merit at the Assistant

level (Level 2), -they cannot rely upon Rule 9 of the 1976

Rules dealing with seniority from the date of "continuous

officiation" as Superintendents Grade II(Level 3). It is

not permissible to delink the seniority Rule from the

recruitment Rule based on equal opportunity and apply it to

promotions made on the basis of the roster which promotions

are made out side the equal opportunity principle. The

proper balancing of rights: In the light of the above

discussion, the proper balancing of the rights, in our view,

will be as follows.

The general candidates who are senior at

Assistants' level(Level 2) and who have reached

Superintendent Grade-II(Level 3) before the reserved

candidate moved to Level 4(Supdt. Grade- I), will have to

be treated as senior at the level 3 also(Supdt. Grade-II)

and it is on that basis that promotion to the post of Level

4 must be made, upon first considering the cases of the

senior general candidates at Level 3. If the cases of the

senior general candidates who have reached Level 3 though at

a latter point of time, are not first considered for

promotion to Level 4, and if the roster point promotee at

Level 3 is treated senior and promoted to level 4, there

will be violation of Article 14 and 16(1) of the

Constitution of India. Such a promotion and the seniority

at Level 4 has to be reviewed after the decision of Ajit

Singh. But if reserved category candidate is otherwise

eligible and posts are available for promotion to Level 4,

they cannot be denied right to be considered for promotion

to Level 4, merely because erstwhile seniors at the entry

levels have not reached Level 3. What we have stated above

accords, in fact, with what was actually stated in Ajit

Singh ( 1996(2) SCC 715). In that case, N.P. Singh, J

observed ( P. 731):

"It also cannot be overlooked that for the first

promotion from the basic grade, there was no occasion to

examine their merit and suitability for promotion".

That, in our view, is the correct approach for

balancing the fundamental rights under Article 14 and

Article 16(1) on the one hand and the provisions relating to

reservation in Article 16(4) and Article 16(4A).

Was Jagdish Lal correctly decided:

Learned senior counsel for the reserved candidates

however relied upon Jagdish Lal to contend that the roster

promotees can count seniority in the promoted post from the

date of continuous officiation as against senior general

candidates promoted later. On the other hand, the learned

senior counsel for the general candidates contended that the

said decision does not lay down the law correctly. We

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 26

shall, therefore, have to refer to Jagdishlal. We were

initially of the view that it may not be necessary to go

into the correctness of Jagdish Lal, and that we could

distinguish the same on the ground that all the reserved

candidates there had got further promotions from the

promotional level of Dy.Superintendents* before the general

candidates reached that Level. But from the table set out

in Jagdishlal, it would be noticed that in that case,

Jagdishlal, the general candidate, reached the post of

Deputy Superintendent on 27.10.87 before the reserved

candidate H.S. Hira was further promoted as Superintendent

on 27.5.88. Similarly, Ram Dayal, another general candidate

got promoted as Deputy Superintendent

_____________________________________________________________

* In Jagdishlal, the hierarchy of posts is Clerk, Assistant,

Deputy Superintendent, Superintendent, etc.

____________________________________________________________

on 16.1.89 before the reserved candidates Sant Lal and Ajmer

Singh got promoted as Superintendent on 8.2.90 and 1.7.90.

In that view of the matter, it becomes necessary to go into

the correctness of Jagdish Lal on merits. As we would

presently show, in Jagdishlal, the seniority rule which

referred to continuous officiation and which applied to

promotions made after providing equal opportunity as per

rules - was delinked from the promotion rule and applied to

roster promotees, which, in our view, was the main reason

for arriving at a different result. Jagdish Lal arose from

Haryana. The Haryana Education Directorate (State Service

Class III) Rule 1974 provided for recruitment to the posts

of clerk (Level 1), Assistant (Level 2) and Deputy

Superintendent(Level 3). Rule 9(3) stated that all

promotions would have to be made by selection based on merit

and taking into consideration seniority but seniority alone

would not give any right to such promotions. Rule 11

provided that seniority would be counted from the date of

"continuous officiation". The Court held in Jagdishlal that

the roster promotees who were promoted to Level 3 could

count their seniority from the date of continuous

officiation in that level in view of Rule 11. From Level 1

to Level 2 and from Level 2 to Level 3, the rosters

operated. From the level beyond Level 3, the posts were

Superintendent, Budget Officer, Assistant Registrar and

Registrar and were governed by the Haryana Education

Department (State Service, Group B) Rule, 1980, and there

was no reservation. In those Rules also, Rule 9(3) stated

that all promotions would have to be made by selection based

on merit and taking into consideration seniority but

seniority alone was not to give any right to such promotion.

Rule 11 of the 1980 Rules also stated that seniority would

count from the dates of continuous officiation. Thus, in

the Class III as well as Class II(Group B) Services, the

"continuous officiation" rule was interlinked with the

promotion rule based on equal opportunity, as in Ajit Singh,

and formed a single scheme. The Court in Jagdish Lal

delinked Rule 11 from the recruitment rules and applied the

same to the roster promotees. For the reasons given already

in regard to Ajit Singh, we hold that Jagdishlal arrived at

an incorrect conclusion because of applying a rule of

continuous officiation which was not intended to apply to

the reserved candidates promoted at roster points.

The various rulings relied upon in Jagdishlal do

not, in our opinion, support the conclusions arrived at in

that case. Some of these rulings were those where it was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 26

held that mere empanelment in a seniority list would not

confer a right to promotion. Some other cases relied upon

were cases where it was held that mere chances of promotions

were not `conditions of service' which were protected. So

far as the cases which held that mere inclusion of a name in

a panel did not create any right to promotion, there could

be no quarrel with the said proposition. So far as the

cases like State of Maharashtra vs. Chandrakant Kulkarni

1981 (4) SCC 130, Mohd. Shujat Ali vs. Union of India 1975

(3) SCC 76, which held that mere chances of promotion were

not conditions of service, they were not applicable to the

present situation. It must be noticed that those cases

arose under the States Reorganisation Act, 1956 where the

words 'conditions of service' were used in Section 115(7) of

that Act. The factual position there was that when

employees of two different States were integrated, their

seniority in the parent States necessarily got affected.

The proviso to Section 115(7) of the Act required that, if

the State to which they were allotted wanted to alter their

"conditions of service", previous permission of the Central

Government was necessary. It was in that context that it

was held that mere chances of promotions were not conditions

of service and there was no question of seeking the sanction

of the Central Government if chances of promotion were

affected after allotment to a new State. In fact, the

Central Government, had issued orders, under Section 115(7)

that various other conditions of service in the parent State

like salary, leave etc. alone would remain protected. The

above cases were therefore not in point. The case in Mohd.

Bhakar vs. Y.Krishna Reddy 1967 SLR 753(SC) was in fact

overruled in Mohd. Shujat Ali. So far as K.Jagadeesan vs.

Union of India 1990 (2) SCC 228 was concerned, it related to

a case where a person's seniority stood affected by an

amendment to the Rules and it was held that that did not

make the rule retrospective. Syed Khalid Rizvi vs. Union

of India 1993 Suppl. (3) SCC 575 no doubt said that there

was no "right to promotion" but even that case accepted that

there was a right to be "considered" for promotion. So far

as Akhil Bhartiya Soshit Karamchari Sangh vs. Union of

India 1996 (6) SCC 65 to which one of us (G.B.Pattanaik,J.

was party). That case, in our view, was correctly decided

on facts because by the date the general candidate reached

the higher category, the reserved category promotee who

reached that category earlier had got a further promotion.

Reference was also made in Jagdish Lal, to A.K. Bhatnagar

vs. Union of India 1991 (1) SCC 544. That was a case where

adhoc recruits were regularised subsequently and were placed

below regular recruits. It was held that their past adhoc

service could not be taken into account since they remained

out of the cadre until regularisation. That case, in our

view, has also no application. Jagdish Lal is, therefore,

not correctly decided.

Observations in Ashok Kumar Gupta which run

contrary to Indira Sawhney & Sabharwal do not lay down

correct law: We may state that there are various other

observations made in Ashok Kumar Gupta and we find that they

run counter to the principles laid down by the nine Judge

Bench in Indira Sawhney and the Constitution Bench in

Sabharwal. In our view, these observations must, therefore,

be treated as not laying down the correct law. Learned

counsel for the parties were in agreement with this live of

approach. We, therefore, leave Ashok Kumar Gupta and do not

deal with it any further.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 26

Was Virpal not decided correctly, as contended by

reserved candidates?:

We then come to another important point that was

argued by learned senior counsel Sri K.Parasaran. It was

argued that in Virpal, the Court was concerned with a

circular of the Railways dated 31.8.82 which permitted

discounting the seniority of roster promotee from the date

of continuous officiation and which also stated that his

seniority should be as per the ranking in the basic level.

The Court in Virpal held that it was "permissible" for the

Government to do so. It was argued by Sri K.Parasaran that

it was one thing to say that it was "open" to the Government

to deprive the roster promotee of the benefit of such

seniority from the date of roster promotion but it was

another thing to say that even if the Government thought fit

to give benefit of seniority on the basis of roster

promotion, the same should be tested on the anvil of Article

14 and 16(1) of the Constitution of India. Thus, it was

argued that Ajit Singh went far beyond Virpal when it held

that any circular, order or rule granting seniority to the

roster promotee would be violative of Article 14 and 16(1)

of the Constitution of India. That brings us to a close

examination of the main principle laid down in Virpal and in

Ajit Singh. We shall first take up Virpal. In Virpal, the

facts were that the Court was concerned with a circular

dated 31.8.82 of the Railways which stated that the

seniority of the roster promotees would be based on their

panel position in the initial grade. The case involved two

services - Guards and Station Masters. Railways Guards

would be recruited as Guard C and promoted as Guard B, then

as Guard A and as Guard (Special). Promotion was to be by

rule of seniority-cum-suitability. In other words, these

were non-selection posts. On the other hand, in the case of

Station Masters, a selection process was involved for

purposes of promotion.

It is argued by the reserved candidates that

Virpal was not correctly decided because in Virpal, the

Court went by a printed Brochure and committed a factual

mistake in thinking that the circular of the Railways itself

required the panel seniority at the initial level to be

reflected at higher levels. The same point was raised by

the Indian Railways in its intervention applications IAs

10-12/98. It was argued that in Virpal the Court erred in

not noticing the full text of the Circular dated 31.8.82

which, showed that, as per para 319 of the Railway

Establishment Code, Vol.1, panels were required to be

prepared at each level.

We have examined Virpal closely in the light of

the above objection. In our view, the above criticism is

wholly unjustified and is based upon a wrong mixing up of

the separate conclusions arrived at in Virpal in regard to

two different sets of employees. As stated earlier, the

Court was there concerned with posts of Railway Guards and

also with posts of Station Masters. The former ( i.e.

Guard posts) were posts governed by the rule of

seniority-cum-suitability. In other words, for Guards,

seniority would govern subject to omission of those found

unsuitable for promotion. On the other hand, Station

Masters' posts were governed by selection at every level of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 26

promotion. The learned Judge, Justice Jeevan Reddy, while

dealing initially with the promotions of Guards ( See P.702

of SCC) from C Grade to B, from B to A, and from A to

Special Grade A pointed out that the seniority- cum-fitness

rule applicable in their cases resulted in the seniority at

the Level of Guard C in the initial panel being reflected

from stage to stage, subject to fitness. When the learned

Judge came to discuss the issues relating to Station

Masters,(See SCC P.711) where merit and selection were

involved, the learned Judge stated that separate panels were

to be prepared at every level and also that those in an

earlier panel would be senior to those in a latter panel.

In either situation, it was laid down that the reserved

candidates could not count their 'seniority' on the basis of

roster point promotion. Learned Additional Solicitor

General, Sri C.S. Vaidyanathan, attempted to argue that

what the Court said in para 25, 26 was wrong as it assumed

that seniority at Level 1 would get reflected in the levels

higher up and what is stated in para 46, 47 in regard to one

previous panel having priority over a later panel would

apply in all cases, even to Guards referred to in paras 25,

26. The said contention, in our view, is based on a mixing

up of the cases of Station Masters and Guards who were

governed by different rules of promotion. We are satisfied

that there is no factual mistake committed in the judgment

in Virpal. In fact, subsequent to Virpal, the Railways

accepted the judgment and issued an order on 28.2.1997 both

in regard to non-selection and selection posts. The point

raised in the IAs by the Railways is therefore liable to be

rejected. We shall refer to these IAs again in our separate

judgment relating to individual cases. Did Ajit Singh go

beyond Virpal and if so, was it correctly decided? We now

deal with the points raised by the reserved candidates

against the correctness of Ajit Singh. It was urged by

learned senior counsel Sri K.Parasaran, that Ajit Singh went

far beyond Virpal. It is pointed out that in Virpal, this

Court was concerned with a circular of the Railways which

stated that the roster promotees could not, on that count,

claim seniority. In that context, Jeevan Reddy, J. no

doubt stated in Virpal ( See 1995 (6) SCC 684 at 701) as

follows:

"In short, it is open to the State, if it is so

advised ...... It is permissible for the State to do so."

But, according to learned senior counsel, Sri K. Parasaran,

in Ajit Singh, this Court went further and stated that any

rule, circular or order which gave seniority to the roster

point promotees was bad and that this view is not correct.

Our attention is invited to 1996 (2) SCC 715 ( at 732) as

follows:

"According to us, this question cannot be examined

only on the basis of any circular, order or rule issued or

framed by the State Government or the Union of India. This

has to be tested on the basis of our constitutional scheme

of Articles 14 and 16 of the Constitution."

In our opinion, there is no conflict in the

principles laid down in these two judgments, nor is there

anything wrong in the above elucidation of the law. In

Virpal it was not necessary for the Court to go into the

question whether any circular - if it gave seniority to the

roster point promotees (reserved candidates) - could be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 26

treated as valid. But, in Ajit Singh which was an appeal

against the Full Bench Judgment in Jaswant singh 1989 (4)

SLR 257, this Court was dealing with a declaration made by

the Full Bench for implementation of the Punjab circular

dated 19.7.69 (see para 29 of Full Bench) which positively

declared that the "roster points were seniority points".

That was why in Ajit Singh this Court had to consider the

validity of such a Circular. In Ajit Singh this Court held

that the declaration granted in the impugned judgment of the

Full Bench in Jaswant singh on the basis of the Punjab

circular would be in conflict with Article 14 and Article

16(1). This Court had therefore to lay down that any

circular, order or rule issued to confer seniority to the

roster point promotees, would be invalid. Thus, the

decision in Ajit Singh cannot be found fault with. Does

Indira Sawhney protect seniority of promotees at roster

point: Learned senior counsel Sri K.Parasaran contended

that Indira Sawhney permitted reservations in promotions for

a further period of 5 years and that during that period

Article 16(4A) was incorporated in Part III of the

Constitution and, therefore, the concept of seniority

attached to the roster promotion, as per certain rulings

then in force, must be deemed to continue and deemed to be

permissible in view of Article 16(4A). We may point out

that Indira Sawhney did not have to go into issues relating

to seniority and on the other hand it referred to the

principle of balancing Article 16(4) against the rights of

the individual under Article 16(1). It is, therefore, not

possible to accept that the 5 year rule and Article 16(4A)

would keep out the applicability of Article 16(1) to test

the validity of any circular, order or rule which conferred

seniority to the roster point promotees. Do principles in

Mervyn Continho 1966 (3) SCR 60 apply to reserved

candidates? Does the roster point for reserved candidates

at Level 1 decide seniority at Level 1? Considerable

reliance was placed by learned senior counsel Sri D.D.Thakur

and Sri Raju Ramachandran on the decision of this Court in

Mervyn Continho & Others vs. Collector of Customs 1966 (3)

SCR 600.

In that case, the service was constituted from two

sources, namely direct recruits and promotees. Question of

seniority arose at two levels - at the level of Appraisers

and at the level of Principal Appraisers. At the initial

level of Appraisers, there was a roster for determining the

seniority of the direct recruits and promotees. The direct

recruits were placed first in the roster and then the

promotees alternatively at the basic level. The promotees

who joined service earlier questioned the above rule as

being violative of their seniority at the level of

Appraisers in view of Article 16(1). This challenge was

negatived by this Court on the ground that such 'anomalies

arise not on account of there being no direct recruitment

for several years' and the roster point seniority was not

opposed to the principle of equality of opportunity in

Government service. It was said that the anomaly arose out

of the fortuitous circumstance that in the particular

service of Appraisers, for one reason or other, direct

recruitment had fallen short of the quota fixed for it. The

Court said: "we are not prepared to say that the rotational

system of fixing seniority itself offends equality of

opportunity....". To this extent the Court held against the

promotees in regard to seniority at the basic level of

Appraisers. The point here is the roster points in the case

of reserved candidates do not determine seniority at the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 26

basic level.

Learned senior counsel for the reserved candidates

however relied upon the second part of Mervyn which related

to seniority at the next level of Principal Appraisers. It

was the contention of the direct recruits-respondents that

here again the seniority should be alternated between direct

recruits and promotees as done at the basic level, though

there was no such rule. Here, the promotee Appraisers

contended that the seniority at the level of Principal

Appraisers would be governed by the rule of continuous

officiation and that there can be no rotation alternatively

at this higher level on the basis of birthmarks at the level

of Appraisers. This plea of the promotees was accepted by

this Court. The point here is that once the roster at the

level of Appraisers is one which fixed seniority at level 1,

promotions to Level 2 for Principal Appraisers, have

necessarily to be made on that basis. For fixing seniority

at Level 2, there is no question of placing direct recruits

and promotees alternatively. It has to be on the basis of

date of promotion of each of the officers to Level 2,

irrespective of their birthmarks. The above decision in

Mervyn cannot apply to a case of reservation because the

roster in Mervyn was intended to determine seniority while

the roster in the cases of reservation under Article 16(4)

or Article 16(4A) are not intended to determine seniority

but are merely intended to provide "adequate representation"

at the promotional level. To what extent, Hiralal,

Karamchand and Kailash Chand Joshi's cases help the reserved

candidates? Learned senior counsel for the reserved

candidates placed strong reliance on three other decisions

of this Court namely, State of Punjab vs. Hira Lal 1970 (3)

SCC 567, Karam Chand vs. Haryana State Electricity Board

1989 Suppl. (1) SCC 342 and Kailash Chand Joshi vs.

Rajasthan High Court 1996 (1) SCALE 752. In Hira Lal's case

decided by a three Judge Bench, there was a circular issued

by the Punjab Government providing, for the first time,

reservation in promotional posts. The 1st respondent who

was a general candidate senior to the reserved candidate

(respondent 3) was not promoted while the reserved candidate

though junior, was promoted. The High Court allowed the

writ petition filed by the general candidate (1st

respondent) on the ground of violation of Article 16(1).

The said judgment was set aside in view of the law laid down

in the General Manager, Southern Railway vs. Rangachari

1962 (2) SCR 586 that reservation was permissible at the

promotional level. In that case, the Court had no occasion

to consider any circular prescribing seniority to the roster

promotees. That case is therefore not in point.

Karamchand, decided by a two Judge Bench was, no doubt,

concerned with the question of seniority of the roster point

promotee. The appellant, who was from the reserved

category, belonged to the Haryana State Electricity Board

and the Haryana Government's circular dated 27.4.72 pointed

out that the roster was meant only for reservation and not

for fixing inter-se-seniority and that seniority depended

upon the merit list prepared by the Public Service

Commission or Selection Board. But the appellant, the

reserved candidate relied upon Rule 9 of the Punjab

PWD(Electricity Branch) Service Class III(Subordinate Posts)

rules, 1952 where Rule 9 provided seniority to be determined

from the date of "regular" promotion. The limited dispute

was whether his case fell within the "Exception" in Rule 9

which related to "temporary" promotees who would not get

seniority upon such temporary promotion. The contention of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 26

the Board that he was a temporary promotee was not accepted

by this Court on the facts of the case. No question

vis-a-vis a general candidate arose. There are indeed

certain observations that seniority of the reserved

candidate had to be counted from the date of regular

promotion which, in our opinion, are not correct. No

question of Article 16(1) or seniority as against a general

candidate arose. That case is distinguishable. In Kailash

Chand Joshi the appellant, who was senior, belonged to the

non- reserved category in the cadre of Munsifs. The

respondents 3 to 11 though junior in that cadre to the

appellant, were promoted as Civil Judges earlier on the

basis of roster. The general candidate (appellant ) got

promoted as Civil Judge later and claimed seniority in the

cadre of Civil Judge. By that date the roster promotee did

not get any further promotion. This was not accepted by

this Court in view of Rule 11. There are two aspects of

this decision. Firstly, the Court did not notice that once

the general candidate, the appellant, who was senior to the

respondents reached the level of Civil Judge, the position

would be different. Such a principle, in fact, came to be

laid down shortly thereafter in Virpal by the same learned

Judge who decided Kailash Chand Joshi. Secondly, it was not

noticed that Rule 22 relating to seniority from the date of

continuous officiation was closely interlinked with the

promotional Rule based on equal opportunity. We may state

that any observations in the above cases that the roster

promotees will get seniority over the senior general

candidates who reach that level later, (but before the

further promotion of the reserved candidate) cannot be

accepted as correct in view of the legal position stated

earlier. A 'poignant scenario' in some cases: We next come

to the poignant scenario in several of the matters before

us. Virpal referred to such a scenario where all the 33

candidates who were to be considered for 11 vacancies were

from the SC/ST category ( see P.710 of SCC). Before us,

similar facts are placed by the general candidates. The

factual position is not disputed, though certain reasons

have been set out by both sides which none has

scientifically examined. It is to be noticed that : (i) in

Ajit Singh itself, - (see p.76 and PP.200-215, 232 of paper

book) as on 30.9.94 out of 107 officers working as

Superintendent Grade I, the first 23 officers are from

Scheduled Castes. At the level of Under Secretaries, out of

19, the first 11 are from SC category. In the category of

Dy. Secretary, out of four, 2 are from SC category. As on

30.9.94, the position was that at these levels, the

percentage was 22.5%, 54% and 67% respectively in the above

categories. If the seniority is to be counted as per the

case of the reserved candidates, the position would be that

Dy. Secretaries would be 100% manned by Scheduled Castes,

and Under Secretaries would again be 100% manned by

Scheduled Castes while Superintendents Grade I would be so

manned to the extent of 53%.

(ii) In Jatinderpal Singh's case ( C.A.Nos. 316-

317/99) the top 134 positions of Principals ( from Head

Masters' source) would be from Scheduled Castes while the

top 72 positions ( from Head Mistress's source) would be

from Scheduled Castes. It is stated that " adding this to

the number awaiting promotions", the position would be that

top 217 and 111 in these categories would be Scheduled

castes candidates - which would be 100% and 71% ( the posts

being only 156 under each source). One does not know what

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 26

will happen in posts beyond Principal, if all persons in the

zone are from SC/ST category.

(iii) In Kamal Kant (SLP.4945/97 from Haryana ) as

of today: (a) among Deputy Secretaries, the first 8 posts

are occupied by the reserved category ( Scheduled Castes and

Backward Classes) (b) among Under Secretaries (Group A)

(officiating) 14 posts at the higher levels are occupied by

the reserved category.

The above factual position is not, in fact

disputed but it is said that this could be because the

roster was operated again and again till that was stopped

after Sabbarwal was decided, but no body has gone into the

extent to which excess roster operation has created such a

situation.

In the written submissions of learned senior

counsel, Sri Raju Ramachandran dated 5.8.99, such a

situation of almost all top posts being manned by reserved

candidates is sought to be justified as being not

constitutionally inhibited. In our view, such a situation

was never intended by the founding fathers. One should only

read the speech of Dr. Ambedkar in the Constituent Assembly

as quoted in Indira Sawhney (see pp.660-661 SCC)(referred to

earlier).

We may, however, make it clear that our decision

in regard to the Article 16(1), Article 16(4) and Article

16(4A) that the rule of "continuous officiation" is

applicable only to promotions made as per rules which give

equal opportunity - and not otherwise, -is independently

arrived at on the basis of the constitutional position and

is in no way coloured or influenced by the above facts

mentioned by the general candidates. Our Conclusions on

Points 1 and 2: We, therefore, hold that the roster point

promotees (reserved category) cannot count their seniority

in the promoted category from the date of their continuous

officiation in the promoted post, - vis- a-vis the general

candidates who were senior to them in the lower category and

who were later promoted. On the other hand, the senior

general candidate at the lower level, if he reaches the

promotional level later but before the further promotion of

the reserved candidate-he will have to be treated as senior,

at the promotional level, to the reserved candidate even if

the reserved candidate was earlier promoted to that level.

We shall explain this further under Point 3. We also hold

that Virpal and Ajit Singh have been correctly decided and

that Jagdishlal is not correctly decided. Point 1 and 2 are

decided accordingly. Point 3: During the discussion under

this "catch-up" point - for purposes of convenience, - we

take the example of the cadres in Ajit Singh i.e. there is

roster point promotion for reserved candidates for promotion

from Level 1 to Level 2 and from Level 2 to Level 3. There

is no roster for promotion from Level 3 to Level 4. Two

'catch up' rules contended for by general candidates: Now,

as stated earlier, the counsel for the general candidates

argued for acceptance of two catch-up rules. .pa Extreme

'catch-up' rule: So far as the extreme contention of the

general candidates that at Level 3, the roster candidate

must wait at Level 3 - before being promoted to Level 4 -

till the last senior general candidate at Level 1 reached

Level 3, - we reject the same in as much as that will not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 26

amount to a reasonable balancing of the rights of the

candidates in the two groups. Nor do we accept that posts

must be kept vacant and no promotions of the roster

candidates be made. Other Catch-up rule: As accepted in

Virpal ( see 1995(6) SCC 684 at 702) and Ajit Singh (see

1996(2) SCC at P.729), we hold that in case any senior

general candidate at Level 2 (Assistant) reaches Level 3 (

Superintendent Grade II) before the reserved candidate

(roster point promotee) at Level 3 goes further up to Level

4 in that case the seniority at Level 3 has to be modified

by placing such a general candidate above the roster

promotee, reflecting their inter se seniority at Level 2.

Further promotion to Level 4 must be on the basis of such a

modified seniority at Level 3, namely, that the senior

general candidate of Level 2 will remain senior also at

Level 3 to the reserved candidate, even if the latter had

reached Level 3 earlier and remained there when the senior

general candidate reached that Level 3. In cases where the

reserved candidate has gone upto Level 4 ignoring the

seniority of the senior general candidate at Level 3,

seniority at Level 4 has to be refixed (when the senior

general candidate is promoted to Level 4) on the basis of

when the time of reserved candidate for promotion to Level 4

would have come, if the case of the senior general

candidates was considered at Level 3 in due time. To the

above extent, we accept the first part of the contention of

the learned counsel for the general candidates. Such a

procedure in our view will properly balance the rights of

the reserved candidates and the fundamental rights

guaranteed under Article 16(1) to the general candidates.

No difficulty in amending seniority list: One of the

objections raised before us and which appealed to the Full

Bench in Jaswant Singh's case was that this 'catch up'

principle would lead to frequent alteration of the seniority

list at Level 3. We do not find any difficulty in this

behalf. The seniority list at Level 3 would have only to be

merely amended whenever the senior general candidate reaches

Level 3. Examples given by reserved candidates -do not

create any anomaly: Learned senior counsel Sri K.

Parasaran and Sri Raju Ramachandran then adverted to a

situation which according to them might create serious

problems if a senior general candidate is to be treated as

senior at the promotional level if he reaches that level

before the roster promotee goes further up. The example

given refer to cases where after the roster point promotee

(reserved candidate) reaches the promotional level, there is

direct recruitment or recruitment by transfer at that

promotional level. Counsel submit that, if a senior general

candidate is thereafter promoted and placed above the

reserved candidate, can he became senior to the direct

recruit and transferee? We do not find any anomaly. The

direct recruit or transferee who has no grievance against

the reserved candidate who was already there can have no

grievance against a senior general candidate who has a

superior claim, in law, against the reserved candidate.

Even if seniority of roster point promotee does not Count,

experience of both groups can be considered as part of merit

for further promotion: Before we leave point 3, we may

refer to another submission made by Sri K. Parasaran,

learned senior counsel for the reserved candidates. Learned

counsel submitted that even if the seniority of the reserved

candidates had gone up to Level 3 earlier by the roster at

two levels 1 & 2 is not counted, still the 'experience'

gained by them at Level 3 well before the senior general

candidate 'caught up' to that Level, cannot be disregarded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 26

for purposes of promotion to Level 4. It is true that the

roster point promotee who has reached the promotional level

3 even if he is not entitled to seniority would have gained

considerable `experience' at that level. That experience

is, no doubt, of considerable relevance in considering his

case for further promotion to Level 4. But, at the same

time, it is to be noted that the general candidates had

longer experience at level 1 and level 2 and have come up to

level 3 by way of competition among the general candidates

at two stages. The said longer `experience' gained by them

at the lower levels 1 and 2 and the manner in which they

have reached the level 3 to which the reserved candidate had

reached earlier, are also relevant factors. The quality of

the experience of these groups also needs to be kept in

view. The above principle would be an equitable balancing

of the `experience' of the candidates at various levels. It

will be appropriate for the Government of India or the State

Government, as the case may be, to formulate guidelines by

way of administrative orders or by way of rules in this

behalf. Point 3 is disposed of accordingly. Point 4: This

point concerns the "prospective" operation of the two

judgments in Sabharwal and Ajit Singh. The point regarding

these two cases directly arises in the appeals from Punjab,

Haryana and Rajasthan. The prospectivity of Virpal has been

particularly raised by learned Additional Solicitor General,

Sri C.S. Vaidyanathan, in the IAs filed by the Railways.

Once again our approach here is to prevent reversions and

avoid hardship to the reserved candidates already promoted

before the two judgments and at the same time to try to

balance the rights to seniority of the general candidates as

against those of the reserved candidates, in the light of

Article 16(1). Prospectivity of Sabharwal:

(i) What Sabbarwal said in regard to

"prospectivity":

Before Sabharwal was decided on 10.2.1995, it

appears that, in several services, the roster was initially

put in operation and promotions at all the roster points

were filled up. But the roster was once again operated on

future vacancies, even though all the required reserved

candidates were in position at the promotional level. It

was not realised that once the roster points were all

filled, the roster had served its purpose and fresh members

of the reserved classes could claim promotional posts only

if any promotional posts already filled by the reserved

candidates fell vacant. This misapplication of the roster

came to be removed for the first time on 10.2.95 when

Sabharwal was decided. Obviously, by that time several

reserved candidates had got promotion in excess of their

quota because of the wrong "re- operation" of the roster

points. If the law declared in Sabbarwal were to be treated

as retroactive as is the normal position whenever the law is

declared by this Court, it would have resulted in reversions

of several officers of the reserved classes as their

promotions before 10.2.95 by the fresh operation of the

roster as aforesaid was wholly unjustified. This Court in

Sabbarwal therefore tried to prevent such reversions and

declared ( P. 753 of SCC, Para 11) as follows at the end of

the judgment:

"We, however, direct that the interpretation given

by us to the working of the roster and our findings on this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 26

point shall be operative prospectively".

(ii) The rival contentions: To the extent of

saving the reversions of those from reserved classes

promoted before 10.2.95 though such promotions were made

contrary to what was decided in Sabharwal, there is no

serious dispute from the side of the general candidates, but

a contention is raised by the reserved candidates who got

such promotions in excess of the reservation quota that they

should in addition get the benefit of the seniority in the

promotional post even if such promotion made before 10.2.95

was wrong in view of what was decided in Sabharwal . This

plea is strongly opposed by the general candidates. (iii)

Our conclusion: It is axiomatic in service jurisprudence

that any promotions made wrongly in excess of any quota are

to be treated as ad hoc. This applies to reservation quota

as much as it applies to direct recruits and promotee cases.

If a Court decides that in order only to remove hardship

such roster point promotees are not to face reversions, -

then it would, in our opinion be, necessary to hold -

consistent with our interpretation of Articles 14 and 16(1)

- that such promotees cannot plead for grant of any

additional benefit of seniority flowing from a wrong

application of the roster. In our view, while Courts can

relieve immediate hardship arising out of a past illegality,

Courts cannot grant additional benefits like seniority which

have no element of immediate hardship. Thus, while

promotions in excess of roster made before 10.2.95 are

protected, such promotees cannot claim seniority. Seniority

in the promotional cadre of such excess roster point

promotees shall have to be reviewed after 10.2.95 and will

count only from the date on which they would have otherwise

got normal promotion in any future vacancy arising in a post

previously occupied by a reserved candidate. That disposes

of the 'prospectivity'' point in relation to Sabharwal.

Prospectivity of Ajit Singh:

Coming to the 'prospectivity' of Ajit Singh,

decided on 1.3.96 the question is in regard to the seniority

of the reserved candidates at the promotional level where

such promotions have taken place before 1.3.96. We have

accepted, while dealing with Points 1 and 2 that the

reserved candidates who get promoted at two levels by roster

points ( say) from Level 1 to Level 2 and level 2 to level 3

cannot count their seniority at Level 3 as against senior

general candidates who reached Level 3 before the reserved

candidates moved upto Level 4. The general candidate has to

be treated as senior at Level 3. Where, before 1.3.96,i.e.

the date of Ajit Singh's judgment , at the level 3, there

were reserved candidates who reached there earlier and also

senior general candidates who reached there later, (but

before the reserved candidate was promoted to level 4) and

when in spite of the fact that the senior general candidate

had to be treated as senior at level 3 (in view of Ajit

Singh), the reserved candidate is further promoted to level

4 - without considering the fact that the senior general

candidate was also available at level 3 - then, after

1.3.96, it becomes necessary to review the promotion of the

reserved candidate to level 4 and reconsider the same

(without causing reversion to the reserved candidate who

reached level 4 before 1.3.96). As and when the senior

reserved candidate is later promoted to level 4, the

seniority at level 4 has also to be refixed on the basis of

when the reserved candidate at level 3 would have got his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 26

normal promotion, treating him as junior to the senior

general candidate at level 3. Chander Paul Vs. State of

Haryana ( 1997(10) SCC 474) has to be understood in the

manner stated above. We hold accordingly on Point 4. We

dispose of the clarification applications IAs 1 to 3/98

filed by the State of Punjab accordingly and hold that Ajit

Singh and Virpal lay down the correct law and not Jagdish

Lal, which must be considered as confined to its own

peculiar facts. We shall be passing separate orders in the

Punjab, Haryana and Rajasthan cases and Contempt Cases and

other IAs on the basis of the principles laid down in this

judgment which, for convenience will be called Ajit Singh

II. IAs Nos.1 to 3/98 are disposed of accordingly.