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PETITIONER:

AKHIL BHARTIYA SOSHIT KARAMCHARI SANGH, THROUGH ITS

Vs.

RESPONDENT:

UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF RAILWAY &

DATE OF JUDGMENT: 12/09/1996

BENCH:

K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

O R D E R

G.B.Pattanaik,J.

Special Leave Petition was listed before us on 6th

September, 1996 and the same was dismissed but it was

indicated that the reasoned order will follow and

accordingly this order is being passed.

The question for consideration is whether the Central

Administrative Tribunal, Allahabad Bench, committed any

error in dismissing the O.As. filed before it on

interpretation of the different circulars issued by the

Railways and following the constitution bench decision of

this Court in R.K. Sabharwal's & Ors. v. State of Punjab &

Ors.(1995) 2 SCC 745, on the question of promotion of a

reserved category candidate on the basis of his normal

seniority in the cadre from which he is being promoted.

Petitioner Nos. 1 and 2 filed O.A No. 304 of 1992

challenging the promotion of Shri A.S. Rana, respondent no.

6 to the post of D.S.K.-I made on 26.2.1991. The case of the

petitioners was that petitioner no. 2 joined the Railways as

a Jr. Clerk on 4.12.1956 and was promoted as Sr. Clerk on

1.4.1966. He was promoted to D.S.K.-III on 16.10.1978 and

further promoted to D.S.K.-II on 24.3.1989. The respondent

no. 6 belonging to the reserved category was appointed in

the Railways as Jr. Clerk on 30.10.1983 and was promoted as

Sr. Clerk on 16.8.1984. He was promoted as D.S.K.-III on

26.11.1986. The said respondent no.6 was promoted earlier to

petitioner no. 2 to the cadre of D.S.K. II on 8.10.1987, in

view of the post available in the cadre of D.S.K.-II for the

reserve category people. When the question of promotion to

the cadre of D.S.K.-I came up for consideration against the

vacancies meant for general category said respondent no. 6

Shri Rana was promoted on 26.2.1991 on the basis of his

accelerated seniority, he having taken advantage of

accelerated promotion being a member of the reserved

category. The petitioner no.2 filed a representation before

the authorities making the grievance that respondent no. 6

could not have been promoted to a most meant for general

category and the authorities illegally promoted him, but not

being successful therein. challenged the promotion of

respondent no. 6 before the Tribunal. The railway

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administration filed their counter affidavit before the

Tribunal taking several technical objections regarding the

maintainability of the proceedings at the behest of the

association, So far as the merits of the case are concerned.

it was contended that no doubt respondent no. 6 had been

promoted to the cadre of D.S.K.-III and D.S.K.-II against

the reserved vacancy following the roster but so far as

promotion to the cadre of D.S.K.-I is concerned he was

considered against a vacant post in the general category on

the basis of his normal seniority and ultimately he has been

promoted in accordance with the circulars issued by the

railway administration and in accordance with the law laid

down by this court in Sabnarwal's case (supra). The Tribunal

following the decisions of this Court in Sabharwal's case as

well as Virpal Singh Chauhan's case rejected the application

on the conclusion that the alleged promotion of respondent

no. 6 was much prior to the decision of this Court in

Sabharwal's case in the year 1995 and promotion already made

cannot made be interfered.

Dr. Rajiv Dhawan appearing for the petitioners,

however, vehemently contended that the accelerated promotion

of a reserve category candidate cannot confer on him the

seniority in the promotion cadre and therefore the impugned

promotion of respondent no. 6 made in February 1991 to the

cadre of D.S.K.-I must be held to be invalid and inoperative

and Tribunal committed gross error in rejecting the O.A. We

find no force in the aforesaid contention. In Sabharwal's

case this Court was considering the question of promotion

and the filling up of the post in the promoted cadre and the

implementation of the rosters indicating the reserved

point. In explaining legal position this Court held that

the" running account" is to operate only till the quota

provided under the impugned instructions is reached and not

thereafter. The vacancies arising in the cadre. after the

initial posts are filled, will pose no difficulty. As and

when there is a vacancy whether permanent or temporary in a

particular post the same has to be filled from amongst the

category to which the post belonged in the roster but in the

event of non-availability of a reserve candidate at the

roster point it would be open to the state Government to

carry forward the point in a just and fair manner. Having

indicated the law as above it was categorically held that

the principle should operate only prospectively. In further

elaborating the point of computation of the percentage of

reservation this Court further held:

"When a percentage of reservation

is fixed in respect of a particular

cadre and the roster indicates the

reserve points, it has to be taken

that the posts shown at the

reserve points are to be filled

from amongst the members of

reserved categories and the

candidates belonging to the general

category are not entitled to be

considered for the reserved posts.

On the other hand the reserved

categories candidates can compete

for the non-reserve posts and in

the event of their appointment to

the said posts their number cannot

be added and taken into

consideration for working out the

percentage of reservation. Article

16(4) of the Constitution of India

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permits the State Government to

make 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. It is, therefore,

incumbent on the State Government

to reach a conclusion that the

Backward Class/Classes for which

the reservation is made is not

adequately represented in the State

Services. While doing so the State

Government may take the total

population of a particular Backward

Class and its representation in the

State Services. When the State

Government after doing the

necessary exercise makes the

reservation and provides the extent

of percentage of posts to be

reserved for the said Backward

Class then the percentage has to be

followed strictly. The prescribed

percentage cannot he varied or

changed simply because some of the

members of the Backward Class have

already been appointed/promoted

against the general seats. As

mentioned above the roster point

which is reserved for a Backward

Class has to be filled by way of

appointment/promotion of the member

of the said class. No general

category candidate can be appointed

against a slot in the roster which

is reserved for the Backward Class.

The fact that considerable number

of members of a Backward Class have

been appointed/promoted against

general seats in the State

Services may be a relevant factor

for the State Government to review

the question of continuing

reservation for the said class but

so long as the instructions/rules

providing certain percentage of

reservations for the Backward

Classes are operative the same have

to be followed. Despite any number

of appointees/promotees belonging

to the Backward Classes against the

General category posts the given

percentage has to be provided in

addition."

In the case of Union of India & Ors. v. Virpal Singh

Chauhan & Ors., (1995) 6 SCC 684. this Court again

considered the case of accelerated promotion and inter se

seniority between a general and reserve candidate in the

promoted category and after considering the several

circulars issued by the railway administration, held:

"Hence the seniority between the

reserved category candidates and

general candidates in the promoted

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category shall continue to be

governed by their panel position.

We have discussed hereinbefore the

meaning of the expression 'panel'

and held that in case of non-

selection posts, no 'panel' is

prepared or is necessary to be

prepared. If so, the question

arises, what did the

circular/letter dated 31.8.1982

mean when it spoke of seniority

being governed by the panel

position in our opinion. it should

mean the panel prepared by the

selecting authority at the time of

selection for Grade 'C'. It is the

seniority in this panel which must

he reflected in each of the higher

grades. This means that while the

rule of reservation gives

accelerated promotion, it does not

give the accelerated what may be

called, the consequential-

seniority. There is, however, one

situation where this rule may not

have any practical relevance. In a

given case it may happen that by

the time the senior general

candidate gets promoted to the

higher, grade, the junior reserved

category candidate (who was

promoted to the said higher grade

earlier) may have got promoted to

yet higher grade. In other words ,

by the time the senior general

category candidates enters, say,

Grade 'B', his junior Scheduled

Caste/Scheduled Tribe candidate is

promoted to grade 'A'. It is

obvious that in such a case the

rule evolved in the aforesaid

circulars does not avail the senior

general candidate for there can be

no question of any seniority as

between, say. a person in 'B' grade

and a person in 'A' grade."

This Court in Chauhan's case accepted the direction in

Sabharwal's case that appointments according to roster

already made prior to the judgement in Sabharwal's case are

legal and valid. In effect. they were declared legal and

valid end direction was given to determine seniority in the

light of the principles laid down therein. It was held that

when the panel/select list was prepared at the time of

making selections for promoted so the selection post it

would be that panel and not the panel/select list prepared

at the time of appointment to the initial grade that would

determine the seniority to the post. It would obviously

apply to future cases in accordance with the rule, the

subject matter of the interpretation in the, judgment in

Chauhan's, case. Therefore. the two judgments become

effective from the date of the decision in Sbharwal's case.

All appointments made prior to that date being legal and

valid a including, right to seniority in promoted post or

cadre, they required to be given effect to.

In Managing director, ECIL, Hyderabad & Ors,. v. B.

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Karunalar & Ors [(1993) 4 SCC 727] the Constitution Bench

considered the scope of prospective operation of the

judgment and held that as on the date of the judgement the

order of the dismissal or action taken prior to the date of

the judgment, as held in Union of India. v. Mohd. Raman

Khan [1991 l SCC 580] could not be reopened. The judgement

will be prospective in nature. i.e., it will be operative

from the date when it is made; if the copy of the enquiry

was not supplied to the delinquent officer, from that date

the order or action would get vitiated under Article 311(2)

of the Constitution.

In Indian Administrative Service (S.C.S) vs. Union of

India & Ors. [ 1993 Supp. ( 1 ) SCC 730 at 745-46] in

paragraphs 14 and 15, a Bench of three Judges had held that

there is a distinction between right and interest. No one

has a vested, right to promotion or seniority, but an

officer has an interest to seniority acquired by working out

the rules. It could be taken away only by operation of valid

law.

In Mohd. Shujat Ali & Ors. vs. Union of India &

Ors.[(1975) 1 SCR 449] a constitution Bench had held rule

which confers a right of actual promotion or a right to be

considered for promotion, is a rule prescribing condition

of the service. Another constitution Bench in Mohd. Bakar

vs. Krishna Reddy [1970 SLR 768] had held that any rule

which affects the promotion of a person relates to his

condition of service and is not arbitrary or

unconstitutional. In State of Mysore vs. G.B Purohit [1967

SLR 753], another Bench of three Judges had held that the

rule which merely affects chances of Promotion cannot be

regarded as varying a condition of service. Chances of

promotion are cannot condition of service. which principle

was reiterated in another constitution Bench judgment in

Ramachandra Shankar Deodhar vs State of Maharashtra [(1974)

1 SSC 317] In Syed Khalid Rizvi & Ors vs Union of India &

Ors. [1993 Supp.. (3) SCC 575], another Bench of three

Judges referred with approval and relied on these cases and

had held in para 31 at page 602 that no employee has a right

to promotion but he has only the right to be considered for

promotion according to rules. Chances of promotion are not

conditions of service and are defeasible. An illustration

was given as regards the inter se claim between a general

candidate and a reserved candidate and their right to

seniority in the promotional post. When a reserved candidate

was promoted according, to the roster and got promotion to a

higher post, it was observed that such a reserved candidate

having scaled a arch over the senior general candidate to

higher service, the senior general candidate in the lower

cadre who was subsequently promoted to the higher cadre

cannot claim seniority over the reserved candidate.

In P.S. Ghalaut vs. State of Haryana & Ors. [(1995) 5

SSC 625], a Bench of two Judges has held that in fixing

inter se seniority as per the roster, order of merit

prepared by the Public Service Commission gets displaced and

the reserved candidate gets seniority over the general

candidate In accordance with the roster, though the

general candidate has been recommended by the Public

Service Commission to be more meritorious. It was held that

when the roster is maintained to give effect to the

constitutional policy of reservation in respect of places

reserved for reserved candidates and fitted the general

candidates and reserved candidates according to roster, the

changed order of merit invariably gets affected which is not

arbitrary or unconstitutional.

Thus by the time a senior person belonging to the

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general category gets Promoted to the higher grade if the

higher person belonging to a reserved category who had been

promoted to the said higher grade earlier has been promoted

to still higher grade, question of granting seniority to the

general category candidate in the promoted category could

not arise. This being the position, and the promotion of

respondent no. 6 to D.S.K.-I having been made as early as in

February, 1991 much prior to the judgement of this Court in

Sabharwal's case as well Virpal Singh Chauhan's case, the

Tribunal was wholly justified in rejecting the O.A. filed

before it. That apart in a particular cadre after following

the roster meant for reserved category candidate, there is

absolutely no bar for filling up the vacancies in the

general category even in favour of candidate belonging to

the reserved category if the said reserved category

candidate is entitled to the same on the basis cf his

general seniority. No materials have been placed before us

to hold that the promotion of respondent no. 6 was not on

the basis of his general seniority in D.S.K.-II. In the

aforesaid premises, we find no substance in the contention

of Dr. Rajiv Dhawan and the special leave petition must

fail.