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CASE NO.:

Appeal (civil) 6970-6971 of 2000

PETITIONER:

M.G. BADAPPANAVAR AND ANR. ETC.

RESPONDENT:

STATE OF KARNATAKA AND ORS.

DATE OF JUDGMENT: 01/12/2000

BENCH:

M. JAGANNADHA RAO & M.B. SHAH & R.P. SETHI, JJ

JUDGMENT:

JUDGMENT

2000 Supp(5) SCR 302

The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave

granted

These appeals arising out of SLP (C) Nos. 24115-24116 of 1996 (hereinafter

called the main batch) are directed against the judgment of the Kamataka

Administrative Tribunal dated 20.11.1996 in Application No. 3756 of 1996

and 4849 of 1996. The Civil Appeal arising out of SLP (C) No. 11218 of 2000

is directed against an interlocutory order dated 11.4.2000 in RP 240/ 2000

filed by the State of Karnataka staying an earlier order passed by the

Karnataka High Court in W.P. 45205 to 45210 of 1999 on 11.1.2000, directing

disposal of a representation to be filed by the general candidates seeking

implementation of the recent judgment of this Court in Ajit Singh 11 v.

State of Punjab, [1999] 7 SCC 2091. That is now these cases have come

before us.

The facts in the main batch of Civil appeals are as follows :

In a group of OAs filed before the Tribunal, the basic contention raised by

the applicants (appellants in this Court) who were general candidates was

that when they and the reserved candidates were appointed at level 1 and

the Junior reserved candidates got promoted earlier at roster points to

level 2 and again by way of roster points to level 3, and when the senior

general candidate got promoted in due course to level 3, then the general

candidate would become senior to the reserved candidate at level 3. At

level 3, the reserved candidate had therefore to be considered along with

the senior general candidate for promotion to level 4. This was precisely

what was decided by the constitution Bench of this Court recently in Ajit

Singh II v. State of Punjab, [1999] 7 SCC 209, which was followed in Ram

Prasad v. D.K. Vijay, [1999] 7 SCC 251, Jatindrapal Singh v. State of

Punjab, [1999] 7 SCC 257 and Sube Singh Bahmani v. State of Haryana, [1999]

8 SCC 213, all decided on the same day.

The above contention raised by the appellants before us was rejected by the

Karnataka Administrative Tribunal in its judgment under appeal. It held on

a consideration of Rule 2(c), 4 and 4A and Article 16(1) & (4) of the

Karnataka Government Servants (Seniority) Rules, 1957 that the reserved

candidates promoted on the basis of roster at Levels 1 and 2 would become

seniors from the date of the roster point-promotions and even if a senior

general candidate reached Level 3 later, he would not be able to claim

seniority over the reserved candidate at Level 3 because the reserved

candidate had reached Level 3 earlier. In other words, reserved candidates;

could count their seniority at Level 3 from the date of promotion to Level

3. The Tribunal relied upon the words "it is open" to the Government

occurring in Union of India v. Virpal Singh, [1995] 6 SCC 684 (at 701, para

24) and distinguished Ajit Singh v. State of Punjab, [1995] 5 SCC 684,

Indira Sawhney v. Union of India, [1992] Suppl. 3 SCC 217, R.K. Sabharwal

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v. Slate of Punjab. [1995] 2 SCC 745 and other cases. The Tribunal further

observed that the parties would be governed by the law as it prevailed

prior to the date of the decision in Sabharwal. The Applications of the

general candidates were dismissed.

The general candidates have, therefore, filed these main batch of appeals.

So far as the other appeal arising out of the SLP(C) No. 11218 of 2000 is

concerned, the appellants are again the general candidates. After the

judgment of this Court in Ajit Singh II, the general candidates filed WPs

45205 to 45210 of 1999 seeking directions to the Government to follow A/it

Singh II. The High Court passed an order on 11.1.2000 directing the State

Government to consider the representation of the appellants to be filed by

the general candidates raising the above point. The appellants preferred

representation to the State Government, but the State filed RP 240/2000 for

recalling the order dated 11.1.2000 on the ground that the present batch of

appeals were pending in this Court. The High Court then passed orders on

11.4.200 slaying it earlier orders dated 11.1.2000. Against the said order

dated 11.4.2000, the present appeal has been preferred by the general

candidates.

On 9.1.98, the main batch was directed to be listed after disposal of the

appeals in Ajit Singh If. After the judgment in A/it Singh II was rendered

on 16.9.1999, an order was passed on 21.7.2000, to list the main batch on a

non-miscellaneous day. Thereafter the batch along with the other matter was

listed before this Bench on 23.11.2000.

In the meantime, the respondent 7 in the main appeal filed IAs 7-8/2000,

contending that one Jayachandra, a direct-recruit Executive Engineer,

Karnataka had filed an application on 6.8.2000, seeking

modification/clarification of paragraph 83 of Ajit Singh II's judgment by

deleting the said para on the ground that Ajit Singh II was unworkable, and

that till the said IA filed in Ajit Singh II was decided, the hearing of

this batch should be postponed.

After hearing learned senior counsel, Sri Rama Jois for the applicant in

IA7-8 and Dr. Rajeev Dhawan for the respondents, we have come to the

conclusion that the hearing of the present batch need not be postponed

because of the pendency of the said IA filed in Ajit Singh II. Firstly, the

present respondents before us are not direct recruits but are all

promotees. The said IA was filed by a direct recruit and, in our view., it

has no bearing on the dispute between the promotee general candidates and

promotee reserved candidates. Secondly, it has to be noticed that the said

IA was filed by a single direct recruit from Karnataka for clarification of

Ajit Singh II (when no other direct recruit from any State or Central or

public sector in the whole country had filed any similar clarification

petition and when neither the Central nor State Government nor Public

Sector undertakings found any difficulty in implementing Ajit Singh II to

review the seniority lists)-cannot come in the way of disposal of these

appeals before us. We, therefore, dismiss IAs 7-8 of 2000.

We shall now deal with the points in the main batch of appeals preferred by

the general candidates. As already stated, the Tribunal applied the

seniority Rules in favour of the reserved candidates from the dates of

their promotions under the roster at Level I and Level 2. Further,

promotions were made from Level 3 to Level 4 treating them as seniors even

to those general candidates (who were seniors at level I) who reached Level

3 before the reserved candidates moved to level 4.

We shall first refer to the rules relating to seniority. The said Rules of

1957 read as follows :

"Rule 2 (c) : Seniority inter se persons appointed on temporary basis will

be determined by the dates of their continuous officiation in that grade

and where the period of officiation is the same, the seniority inter se in

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the lower grade shall prevail.

Rule 4 : When promotion to a class of post or cadre ere made on the basis

of seniority-cum-merit at the same time, the relative seniority shall be

determined-

(i) if promotions are made from any one cadre of class of post, by their

seniority-inter-se in the lower cadre or class of post;

(ii) if promotions are made from several cadres or classes of posts of the

same grade, by the period of service in those grades;

(iii) if promotions are made from several cadres or classes of posts, the

grades of which are not the same, by the order in which the candidates are

arranged by the authority making the promotion, in consultation with Public

Service Commission where such consultation is necessary, taking into

consideration the order in which promotions are to be made from those

several cadres or classes of posts.

Rule 4A: When promotion to a class of post or cadre are made by selection

at the same time either from several cadres or classes of posts or from

same cadre or class of post by the order in which the candidates are

arranged in order of merit by the appointing authority making the

selection, in consultation with Public Service Commission where such

consultation is necessary

Explanation-For purposes of this rule, 'several cadres or classes of posts'

shall be deemed to include cadres or classes of posts of different grades

from which recruitment is made in any specified order of priority in

accordance with any special rules of recruitment."

There is no specific rule here permitting seniority to be counted in

respect of a roster promotion. In Ajit Singh I. [1995] 6 SCC 684, a

circular which gave seniority to the roster point promotees was held to be

violative of Articles 14 and 16. In Virpal. which was later decided, this

Court used the words "it is open to the State" and it gave an impression

that the State could give seniority to roster point promotees. But in Ajit

Singh II, this aspect has since been clarified. It was held that seniority

Rules like Rules 2(c), 4 and 4A permitting seniority to be counted from

date of initial promotion, govern normal promotions made according to rules

- by seniority at basic level, by seniority-cum-fitness or by seniority-

cum-merit or by selection - but not to promotions made by way of roster.

The roster promotions were, it was held, meant only for the limited purpose

of due representation of backward classes at various levels of service. If

the rules are to be interpreted in a manner conferring seniority to the

roster point promotees, - who have not gone through the normal channel

where basic seniority or selection process is involved, - then the rules,

it was held will be ultra-vires of Article 14 and Article 16 of the

Constitution of India. Article 16(4A) cannot also help. Such seniority, if

given, would amount to treating unequals equally, rather, more than equals.

In fact, while dealing with the fundamental right under Article 14 and

Article 16, this Court held in India Sawhney v. Union of India, (known as

the Kerala Creamy layer case). [2000] 1 SCC 168 at 202 while holding that

if creamy layer among backward classes were given same benefits as Backward

classes, it will amount to treating equals unequally. Equality is a basic

feature of the constitution of India and any treatment of equals unequally

or unequals as equals will be violation of basic structure of the

Constitution of India. That is one more reason why, according to us, the

roster point promotees cannot be given seniority. Therefore, if seniority

is given, it will violate the equality principle which is part of the basic

structure of the Constitution. Even Article 16(4A) cannot, therefore, be of

any help to the reserved candidates. That is the legal position under the

Constitution of India.

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It is clear on facts of this batch of cases that the initial recruitment of

these general candidates and the reserved candidates was as Junior

Engineers (now called Assistant Engineers) and then the next promotion was

to the post of Assistant Executive Engineer and then to the post of

Executive Engineer. At both these levels admittedly, there has been a

roster operating. Beyond Executive Engineer's post, there is no roster. The

appellants and respondents (reserved candidates) were recruited as Junior

Engineers and the appellant-general candidate were senior to one or other

of the reserved candidates at level 1. The reserved candidates thereafter

got promotion as per roster points from Level 1 to Level 2 (Assistant

Executive Engineer). From Level 2 the roster promotees were promoted again

to Level 3 as Executive Engineers by way of a further roster. The senior

general candidates got promoted as per rules -either by seniority at basic

level or by selection - and reached the Level 3. By that time the reserved

candidates were still at Level 3. But they were promoted to Level 4

treating them as senior to the general candidates. This was done taking

into account the fact that the reserved candidates reached the category of

Executive Engineers earlier than the general candidates. According to Ajit

Singh II, if by the date when the reserved candidates were promoted as

Superintending Engineers, the general candidates had already reached the

said level by normal promotion system, then the general candidates must be

treated as seniors as Executive Engineers to the reserved candidates. The

general candidates had a right under Articles 14 and 16 to be considered

for promotion as Superintending Engineers as seniors to the reserved

candidates. This was unfortunately not done. After A/it Singh II, this had

to be rectified.

It is, therefore, obvious that, in accordance with Ajit Singh II, the

seniority lists in the category of Executive Engineers has to be first

reviewed, treating the general candidates as seniors to such of the

reserved candidates provided the senior general candidates reached Level 3

(Executive Engineer) before the concerned reserved candidate was promoted

as Superintending Engineer. After reviewing the seniority and re-fixing the

same at the level of Executive Engineer, the promotions to the category of

Superintending Engineer have to be next reviewed. While considering the

promotions of the reserved candidates at Level 1 (Junior Engineer called

later as Assistant Engineer) and at Level 2 (Assistant Executive Engineer),

the principles laid down in R.K. Sabharwal's case have also to be kept in

mind, as explained in Ajit Singh II. Once the promotions at the level of

Superintending Engineers are reviewed, the further promotions to the post

of Chief Engineer or equivalent posts or posts higher up have also to be

reviewed.

However, in Ajit Singh II, reversions were directed not to be made in

respect of reserved candidates promoted on basis of roster-point seniority

before 1.3.96 In other words, notwithstanding the review of seniority at

various levels starting from the level of Executive Engineer and the

consequent downgradation of seniority. if any, at that level, any promotion

of a reserved candidate to the post of Superintending Engineer which took

place before 1.3.96, - contrary to principles now laid down in Ajit Singh

II - should not be disturbed. In Ajit Singh II, this Court also explained

what was meant by the prospectivity of Subharwal w.e.f. 10.2.95. That has

also to be borne in mind.

In view of the above general directions, we are therefore not going into

individual facts and seniority etc. details of which were placed before us

by way of various charts. In our view, the general directions given in this

judgment will be sufficient for the purposes of disposal of these appeals.

It was stated before us that the 1st appellant had retired but the 2nd

appellant is in service. It was stated that several respondents had also

retired. It was also stated that one Sri R.A. Audi, a reserved candidate is

now posted as Secretary, in the Department and that therefore, there is no

need to pass any orders. We do not agree.

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In fact, some general candidates who have since retired, were indeed

entitled to higher promotions, while in service if Ajit Singh II is to

apply, they would, get substantial benefits which were unjustly denied to

them. The decision in Ajit Singh II is binding on us. Following the same,

we set aside the judgment of the Tribunal and direct that the seniority

lists and promotions be reviewed as per the directions given above, subject

of course to the restriction that those who were promoted before 1.3.96 on

principles contrary to Ajit Singh II need not be reverted and those who

were promoted contrary to Sabharwal before 10.2.95 need not be reverted

This limited protection against reversion was given to those reserved

candidates who were promoted contrary to the law laid down in the above

cases, to avoid hardship.

We are here adding one more protection to the retired reserved candidates

in these cases. Though their seniority is revised at the level of Executive

Engineer or above and though they might not have been promoted if the law

laid down by this Court in Ajit Singh II and Sabharwal (as explained in

Ajit Singh II) were applicable to them at the relevant time, still for

purposes of their retiral benefits, the said benefits shall be computed on

the basis of the posts factually held by them at the time of retirement and

on the emoluments actually drawn by them and not on the basis of the result

of any review that is now directed.

So far as the general candidates are concerned, their seniority will be

restored in accordance with Ajit Singh II and Sabharwal (as explained in

Ajit Singh II) and they will get their promotions accordingly from the

effective dates. They will get notional promotions but will not be entitled

to any arrears of salary on the promotional posts. However, for purpose of

retiral benefits, their position in the promoted posts from the notional

dates - as per this judgment - will be taken into account and retiral

benefits will be computed as if they were promoted to the posts and drawn

the salary and emoluments of those posts, from the notional dates.

The main batch of appeals arising out of SLP(C) Nos. 24115-24116 of 1996 is

allowed but without costs and the judgment of the Tribunal is set aside and

the directions set out above will be implemented expeditiously from stage

to stage. The exercise may be completed, as far as possible, within six

month from today.

In view of the directions given in the main batch, the same shall apply in

the Civil appeal arising out of SLP 11218 of 2000.

All the appeals stand disposed of accordingly.