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CASE NO.:

Writ Petition (civil) 79 of 1979

PETITIONER:

R.K.SABHARWAL AND ORS.

RESPONDENT:

STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT: 10/02/1995

BENCH:

KULDIP SINGH & S.MOHAN & M.K.MUKHERJEE & B.L.HANSARIA & S.B.MAJMUDAR

JUDGMENT:

JUDGMENT

Delivered By:

KULDIP SINGH (J)

Kuldip Singh,J.

1.The petitioners and respondents 4, 5 and 6 are

members of the Punjab Service of Engineers (Class 1) (the

Service) in the Irrigation Department of the State of

Punjab. The respondents are members of the Scheduled Castes

whereas the petitioners belong to the general category. The

conditions of service of the members of the Service are

governed by the Rules called The Punjab Service of Engineers

Class I P.W.D. (I.B.) Rules, 1964 (the Rules). The Punjab

Government by the instructions dated May 4, 1974 provided

reservations for the Scheduled Castes and Backward Classes

in promotions to and within Class I and II services under

the State Government. It was laid down under the said

instructions that 16 per cent of the posts to be filled by

promotion were to be reserved for members of the Scheduled

Castes and Backward Classes (14 per cent for the Scheduled

Casts and 2 per cent for the Backward Classes) subject to

the conditions that the persons to be considered must

possess the minimum necessary qualifications and they should

have, satisfactory record of service. The instructions

further provided as under:

"(i) In a lot of 100 vacancies occurring from

time to time, those falling at serial numbers

mentioned below should be treated as reserved

for the members of Scheduled Castes;

1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80,

87, 91 and so on. Vacancies falling at serial

numbers 26 and 76 should be treated as

reserved for the members of Backward Classes.

(ii) The reservation prescribed shall be

given effect to in accordance with a roster to

be maintained in each Department. The roster

will be implemented in the form of a running

account from year to year."

Rule 9 of the Rules which provides for promotion within the

service reads as under

"Promotion within service;-

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(1) Subject to the provisions of sub-rules 2 and 3 members

of the Service shall be eligible for promotion to any of the

posts in the Service, namely, Executive Engineers,

Superintending Engineers and Chief Engineers:

Provided that a Member of the Service in whose case the

qualifications mentioned in clause (a) of Rule 6 have been

waived, shall not be eligible for promotion to the post of

Superintending Engineer or above till he has acquired the

necessary qualification.

Explanation:- Once an officer has been appointed a member of

the Service, his promotion within it from one rank to an-

other shall be regarded as promotion within the same cadre.

(2) Promotions shall be made by selection on the basis of

merit and suitability in all respects and no member of the

Service shall have any claim to such promotion as a matter

of right or mere seniority.

(3) A member of the Service shall not be eligible for

promotion to the rank of---

(a) Executive Engineer unless he has rendered five years

service as an Assistant Executive Engineer;

Provided that an officer who has rendered six years or more

service as an Assistant Executive Engineer shall unless he

is considered unsuitable for promotion, be given preference

for such promotion over an eligible Class II Officer;

(b) Superintending Engineer, unless he has rendered seven

years service as an Executive Engineer;

(c) Chief Engineer, unless he has rendered three years

service as Superintending Engineer;

Provided that, if it appears to be necessary to promote an

officer in public interest, the Government may, for reasons

to be recorded in writing, either generally for a specified

period or in any individual case reduce the period specified

in clauses (a), (b) and (c) to such extent as it may deem

proper.

It is stated in the writ petition that the petitioners are

at serial Nos. 19, 23, 26, 29, 30, 31, 34 and 38 of the

seniority list of the Service whereas the respondents are at

serial Nos. 46, 140 and 152. Respondent Rattan Singh was

promoted to the rank of Chief Engineer against the post

reserved for the Scheduled Castes by superseding 36 senior

colleagues including the petitioners. Similarly,

respondents Surjit Singh and Om Prakash were promoted as

Superintending Engineers against the reserve vacancies by

superseding 82 and 87 senior colleagues respectively.

According to the petitioners at the time of promotion of

these respondents the petitioners were already working as

Superintending Engineers for several years. It is further

averred in the petition that respondents 4, 5 and 6 were in

fact working as Executive Engineers when the petitioners

were holding the posts of Superintending Engineers.

2. On the above facts the petitioners have challenged the

reservation-policy on several grounds but Mr. Harish Salve,

learned counsel for the petitioners, has confined the

arguments to the following two points:

(1) The object of reservation is to provide adequate

representation to the Scheduled Castes/Tribes and Backward

classes in services and as such any mechanism provided to

achieve that end must have nexus to the object sought to be

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achieved. The precise argument is that for working out the

percentage of reservation the promotees/appointees belonging

to the Scheduled Castes and Backward Classes whether

appointed against the general category posts or against the

reserve posts are to be counted. In other words if more

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than 14% of the Scheduled Castes candidates are

appointed/promoted in a cadre on their own merit/seniority

by competing with the general category candidates then the

purpose of reservation in the said cadre having been

achieved the Government instructions providing reservations

would become inoperative.

3. Once the posts earmarked for the Scheduled

Castes/Tribes and Backward Classes on the roster are filled

the reservation is complete. Roster cannot operate any

further and it should be stopped. Any post falling vacant,

in a cadre thereafter, is to be filled from the category -

reserve or general - due to retirement etc. of whose member

of the post fell vacant.

4. Adverting to the first point Mr. Harish Salve and Mr.

Rajiv Dhawan, learned counsel representing the

petitioners, have contended that the total number of

promotees/appointees belonging to the reserve categories in

a cadre are to be counted to work-out the prescribed per-

centage of reservation. According to the learned counsel

the reserve categories can take advantage of the reservation

made in their favour till their representation in the

Service -- including those appointed against general

category posts -- reaches the prescribed percentage. For

working out the percentage the promotees/appointees

belonging to reserve categories in the Service, whether on

the reserve posts or general category posts, are to be

counted.

Support is sought from the judgment of the Punjab and

Haryana High Court in Joginder Singh Sethi and others v.

Punjab Government and other 1982 (2) SLR 307. In the said

case 22% reservation was provided for the members of

Scheduled Castes/Tribes and Backward Classes. In the cadre

strength of 202 posts the Scheduled Castes candidates were

entitled to 42 posts. There were already 47 members of the

said category in the cadre but out of them 10 were promoted

on the basis of seniority-cum-merit against the general cat-

egory posts. There being only 37 persons who had been

promoted against the reserved posts 4 more Scheduled Castes

were sought to be promoted against the reserve vacancies.

The High Court quashed the promotion on the ground that the

cadre was already having more than 22% persons from the

reserve categories. We are of the view that the High Court

in Joginder Singh Sethi's case fell into a patent error.

The said case was subsequently considered by a Full Bench of

Punjab & Haryana High Court in Jaswant Singh v. Secretary to

Government of Punjab, Education Department [ 1989 (4)

Services Law Reporter 257]. The Full Bench did not agree

with the ratio in Joginder Singh Sethi's case and reversed

the same.

5. 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

reserve categories and the candidates belonging to the

general category are not entitled to be considered for the

reserve posts. On the other hand the reserve category

candidates can compete for the non-reserve posts and in the

event of their appointment to the said

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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 permits the State

Government to make any provision for the reservation of

appointments or posts in favour of any backward class of

citizen which, in the opinion of the State is not adequately

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represented in the Services under the State. It is,

therefore, incumbent on the State Government to reach a con-

clusion 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 per-

centage has to be followed strictly. The prescribed

percentage cannot be 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 ap-

pointed/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 op-

erative the same have to be followed. Despit any number of

appointment/promotees belonging to the backward classes

against the general category posts the given percentage has

to be provided in addition. We, therefore, see no force in

the first contention raised by the learned counsel and

reject the same.

6. We see considered force in the second contention raised

by the learned counsel for the petitioners. The

reservations provided under the impugned Government

instructions are to be operated in accordance with the

roster to be maintained in each Department. The roster is

implemented in the form of running account from year to

year. The purpose of "running account" is to make sure that

the Scheduled Castes/Schedule Tribes and Backward Classes

get their percentage of reserved posts. The concept of

"running account" in the impugned instructions has to be so

interpreted that it does not result in excessive

reservation. "16% of the posts......are reserved for

members of the Scheduled Caste and Backward Classes. In a

lot of100 posts those falling at serial numbers 1,7, 15, 22,

30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved

and earmarked in the roster for-the Scheduled Castes.

Roster points 26 and 76 are reserved for the members of

Backward Classes. It is thus obvious that when recruitment

to a cadre starts then 14 posts earmarked in the roster are

to be filled from amongst the members of the Scheduled

Caste. To illustrate, first post in a cadre must go to the

Scheduled Caste and thereafter the said class is entitled to

7th, 15th, 22nd and onwards upto 91st post. When the total

number of posts in a cadre are filled by the operation of

the roster then the result envisaged by the impugned

instructions is achieved. In other words, in

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a cadre of 100 posts when the posts earmarked in the roster

for the Scheduled Castes and the Backward Classes are filled

the percentage of reservation provided for the reserved

categories is achieved. We see no justification to operate

the roster thereafter. The "running account" is to operate

only till the quota provided under the impugned instructions

is reached and not thereafter. Once the prescribed per-

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centage of posts is filled the numerical test of adequacy is

satisfied and thereafter the roster does not survive. The

percentage of reservation is the desired representation of

the Backward Classes in the State services and is consistent

with the demographic estimate based on the proportion worked

out in relation to their populations The numerical quota of

posts is not shifting boundary but represents a figure with

due application of mind. Therefore, the only way to assure

equality of opportunity to the Backward Classes and the

general category is to permit the roster to operate till the

time the respective appointees/ promotees occupy the posts

meant for them in the roster. The operation of the roster

and the running account" must come to an end thereafter.

The vacancies arising in the cadre, after the initial posts

arc 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. For example the Scheduled

Caste persons holding the posts at Roster - points 1, 7, 15

retire then these slots are to be filled from amongst the

persons belonging to the Scheduled Castes. Similarly, if

the persons holding the post at points 8 to 14 or 23 to 29

retire then these slots are to be filled from among the

general category By following this procedure them shall

neither be short-fall nor excess in the percentage of

reservation.

7. The expressions "posts" and "vacancies", often used in

the executive instructions providing for reservations, are

rather problematical. The word "post" means an appointment,

job, office or employment. A position to which a person is

appointed. "Vacancy" means an unoccupied post or office.

The plain meaning of the two expressions make it clear that

there must be a 'post' in existence to enable the 'vacancy'

to occur. The cadre - strength is always measured by the

number of posts comprising the cadre. Right to be consid-

ered for appointment can only be claimed in respect of a

post in a cadre. As a consequence the percentage of

reservation has to be worked out in relation to the number

of posts which form the cadre-strength. The concept of

'vacancy' has no relevance in operating the percentage of

reservation.

8. When all the roster-points in a cadre am filled the

required percentage of reservation is achieved. Once the

total cadre has full representation of the Scheduled

Casts/Tribes and Backward Classes in accordance with the

reservation policy then the vacancies arising thereafter in

the cadre are to be filled from amongst the category of

persons to whom the respective vacancies belong. Jeevan

Reddy, J. speaking for the majority in Indra Sawhney vs.

Union of India (AIR 1993 SC 477) observed as under:-

"Take a unit/service/cadre comprising 1000

posts. The reservation in favour of

scheduled Tribes Scheduled Cass and other

Backward Classes is 50% which means that out

Of the 1000 posts 500 must be held by the

members of these classes i.e- 270 by Other

Backward

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Classes, 150 by Scheduled Casts and 80 by

Scheduled Tribes. At a given point of time,

let us say the number of members of OBC in the

unit/ service/ category is only 50, a

shortfall of 220. Similarly the number of

members of scheduled Casts and Scheduled

Tribes is only 20 and 5 respectively,

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shortfall of 130 and 75. If the entire

service/cadre is taken as as unit and the

backlog is sought to be made up, then the open

competition channel has to be chocked

altogether for a number of years until the

number of members of all backward classes

reaches 500 i.e., till the quota meant for

each of them is filled up. This may take

quite a number of vacancies arising each year

are not many. Meanwhile, the members of open

competition category would become age barred

and ineligible. Equality of opportunity in

their case would become a mere mirage. It

must be remembered that the equality of

opportunity guaranteed by clause (1) is to

each individual citizen of the country while

clause (4) contemplates special provision

being made in favour of socially disadvantaged

classes. Both must be balanced against each

other. Neither should be allowed to eclipse

the other. For the above reason, we hold that

for the purpose of applying the rule of 50%

a year should be taken as the unit and not

the entire of the cadre, service or the unit

as the case may be"

9. The quoted observations clearly illustrate that the

rule of 50 % a year as unit and not entire strength of

the cadre has been adopted to protect the rights of the

general category under clause (1) of Article 16 of the

Constitution of India. These observations in Indra

Sawhney's case, arc only in relation to posts which are

filled initially in a cadre. 'The operation of a roster,

for filling the cadre strength, by itself ensures that the-

reservation remains within the 50 % limit. Indra Sawhney's

case- is not the authority for the point that the roster

survives after the cadre-strength is full and the percentage

of reservation is achieved.

10.A Division Bench of the Allahabad High Court in J.C.

Malik and others v. Union of India and others (1978)SLR 844)

interpreted Railway Board's circular dated April 20, 1970

providing 15% reservations for the Scheduled Casts. The

High Court held that the percentage of reservation is in

respect of the appointment to the posts in a cadre. On the

basis of the material placed before the High Court it

reached the conclusion that if the reservation is permitted

in the vacancies after all the posts in cadre are filled

then serious consequences would ensure and the general

category is likely to suffer considerably. We see no

infirmity in the view taken by the High Court.

11. We may examine the likely result if the roster is

permitted to operate in respect of the vacancies arising

after the total posts in a cadre are filled. In a 100 point

roster, 14 posts at various roster points are filled from

amongst the scheduled Casts/ Scheduled Tribes candidates, 2

posts arc filled from amongst the Backward Classes and the

remaining 84 posts are filled from amongst the general cat-

egory. Suppose all the posts in a cadre consisting of 100

posts are filled in accordance with the roster by December

31, 1994. Thereafter in the year 1995, 25 general category

persons (out of the 84) retire. Again in the 1996, 25 more

persons belonging to the general category persons (out of

the 84) retire. Again in the year 1996, 25 more persons

belonging to the general category retire. The position

which would emerge would be that the Sched-

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uled Casts and Backward Classes would claim 16% share out of

the 50 vacancies. If 8 vacancies are given to them then in

the cadre of 100 posts the reserve categories would be

holding 24 posts thereby increasing the reservation from 16%

to 24%. On the contrary if the roster is permitted to

operate till the total posts in a cadre are filled by the

same category of persons whose retirement etc. caused the

vacancies then the balance between the reserve category and

the general category shall always be maintained. We make it

clear that 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.

12. We, therefore, find considerable force in the second

point raised by the learned counsel for the petitioners.

We, however, direct that the interpretation given by us to

the working of the roster and our findings on this point

shall be operative prospectively.

13. The writ petition is, therefore, disposed of in the

above terms. No costs.

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