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PETITIONER:

S. S. GREWAL

Vs.

RESPONDENT:

STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT07/05/1993

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

SAWANT, P.B.

CITATION:

1994 AIR 1232 1993 SCR (3) 593

1993 SCC Supl. (3) 234 JT 1993 (4) 107

1993 SCALE (2)800

ACT:

Civil Services Punjab Superior Judicial Service Rules, 1963

Rule 8A and Government of punjab Communication dated June 6,

1974, November 9, 1974; May 5, 1975 and April 8,

1980--Reservation for Mazhbi Sikhs and

Balmikis--Implementation of instructions--Preparation of

roster--Inter se seniority, of General Category candidate

and Mazhbi Sikh through direct recruitment.

HEADNOTE:

Recruitment to the Punjab Superior Judicial Service was

governed by the Punjab Superior Judicial Service Rules,

1963. Rule 8-A inserted in the said rules by notification

dated June 14, 1977 provided that instructions issued by the

State Government from time to time in relation to

reservation of appointments for posts for Scheduled Castes

and Backward Classes were applicable for appointments to

posts in the Service.

The Secretary to the Government of Punjab, Welfare of

Scheduled Castes and Backward Classes Department by letter

dated June 6, 1974 Informed all Heads of Department etc.

that it had been decided to increase the percentage of

reservation in direct recruitment in all services from 20%

to 25 % in the case of members of Scheduled Castes and from

2% to 5 % in the case of members belonging to Backward

Classes, and Indicated the vacancies to be reserved for the

members of Scheduled Castes in a lot of 100 vacancies and

specified the points. It also directed that the Roster

already existing would not be abandoned, but would now be

maintained in continuation from the vacancy in the existing

Roster last filled up according to the new pattern of

reservation.

Circular dated November 19, 1974 made provision for carrying

forward of reservation for members of Scheduled

Castes/Backward Classes, and directed that the reservation

should be carried forward form vacancy to vacancy in the

same block until a Scheduled Caste or a Backward Class

person is appointed or promoted in the same block, and that

the reservation should be carried from vacancy to vacancy in

each Mock and from block to block until the carried forward

vacancies are filled up.

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594

By letter dated May 5,1975 the Secretary to the Government,

Welfare Department Communicated to all Heads of Department-;

that the Government has decided that henceforth, 50%

vacancies of the quata reserved for Scheduled Castes should

be offered to Balmikis and Mazhbi Sikhs as a first

preference from amongst the Scheduled Castes candidate,-..

The Under Secretary, Welfare Department Reservation Cell by

his letter dated April 8,1980, clarified the position with

regard to the implementation of instructions regarding

reservation for Mazhbi Sikhs and Balmikis contained in the

aforesaid letter dated May 5,1975, the Clarification was to

the effect that : (1) the combined merit list can be

disturbed while giving appointment to the candidate

belonging to Balmikis and MazhbiSikhs; (ii) the first

reserved vacancy can he offered to Balmikis and Mazhbi Sikhs

although their name may be below in the merit list, and

(iii) on the basis of 50% reservation Bal mikis and Mazhbi

Sikhs 1,3,5 and so on reserved vacancies shall go to the

candidates of these castes if available and 2,4,6 and so on

reserved vacancies shall go to other Scheduled Castes

candidates.

After introduction of Rule 8-A in the Punjab Superior

Judicial Service Rules, four persons were appointed by way

of direct recruitment to the Service in the year 1979. One

of them, Shri Balwant Rai, belonged to a Scheduled Caste

(other then Balmikis or Mazhbi Sikhs). Thereafter, in 1981

one post fell vacant but no person belonging to a Scheduled

Caste could be selected and candidate belonging to general

category was appointed against the said post In 1982,

selection was made for two posts but only one person could

he selected and he also belonged to the general category and

no person belonging to a Scheduled Caste was available for

appointment. In 1986, six persons including the appellant

and respondent No. 3 were appointed on the basis of direct

recruitment. Out of those six persons, four belonged to the

general category and two belonged to Scheduled Castes. One

of the two persons was Shri G.S. Samra who belonged to a

Scheduled Caste other than Balmikis or Mazhbi Sikh. In the

merit list for the said selection the appellant was placed

at No. 1, Shri G.S. Samra at No. 2, and respondent No. 3 at

No. 5. As per the Roster, Shri G.S. Samra was placed at

Point No. 7, the appellant at Point No. 8 and respondent No.

3 at Point No. 9. After joining the Service, Shri G.S. Samra

resigned and had ceased to be a member of the service prior.

to April, 1, 1988.

In the tentative seniority list as on April 1, 1988,the

appellant was placed at serial No. 52 and respondent No.3

was placed at serial No. 53. Respondent

595

No. 3 submitted a representation against his placement in

the seniority list and claimed that he should be placed

against the post reserved for scheduled castes at Serial No.

5 in the Roster and on that basis be given the seniority of

the year of 1981, and that since he is a Mazhbi Sikh, he is

entitled to preference over Shri G.S. Samra who belonged to

a Scheduled Caste other than Balmikis and Mazhbi Sikhs, and

he claimed that he should have been placed at Point No. 7 in

the Roster and Shri G.S. Samra should have been placed at

Point No. 9 and on that basis also respondent No. 3 is

senior to the appellant. Representation was also invited

from the appellant in this regard. After considering the

representations the High Court decided that respondent No. 3

was entitled to he placed above Shri G.S. Samra in view of

the Circular Letter dated May 5, 1975 and that he should

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have been placed against Point No. 7 in the roster and Shri

G.S. Samra should have been placed against Point No. 9 in

the Roster, In the revised seniority list Respondent No. 3

was placed at Serial No. 52 while the appellant was placed

at Serial No. 53.

Aggrieved by the aforesaid decision the appellant filed a

Writ petition in the High Court which was dismissed.

The appellant appealed to this Court and contended that the

first appointment, by direct recruitment, of a person

belonging to the Scheduled Castes was of Shri Balwant Rai

made in 1979, that was at Point No. 1 in the Roster, and

should have gone to a Balmiki or Mazhbi Sikh but since no

person belonging to these communities was available Shri

Balwant Rai who belonged to a Scheduled Caste was appointed.

Relying on the clarification contained in the letter dated

April 8, 1980 it was submitted that the vacancy at Point No.

5 reserved for Scheduled Castes was to be carried forwarded

to point No. 7 and Shri G.S. Samra had to he adjusted at

Point No. 7 in the Roster, that respondent No.3 being a

Mazhbi Sikh could not claim to be placed at Point No. 7

against a vacancy which was reserved for a candidate

belonging to Scheduled Castes other than Balmikis and Mazhbi

Sikhs and that he could the before be only placed against

the vacancy at Point No. 9 in the Roster.

The appeal was contested on behalf of Respondent No. 3 who

urged that in view of the order dated May 5,1975,50%

vacancies of the quota reserved for Scheduled Castes have to

be offered to Balmikis and Mazhbi Sikhs and since Shri

Balwant Rai belonging to a Scheduled Coste other than

Balmikis & Mazhbi Sikhs had been appointed in 1979, the next

post should go to Balmikis and Mazhbi sikhs, and on that

basis, respondent No. 3 was entitled to be appointed against

the second post at point No.7 of the Roster and Shri

596

GS. Samra could only be appointed against third post at

Point No. 9 in the Roster. It was also urged that the

clarification contained in the letter dated April 8, 1980

could only have prospective operation with effect from the

date of its issue, and the sub roster indicated therein

could be given effect to only from that date, and on that

basis also respondent No3 was entitled to be placed against

Point No. 7 in the 100 point roster and Shri GS. Samra

against Point No. 9 in the said roster.

Allowing the appeal and setting aside the judgment of the

High Court, this Court,

HELD : 1. (a). There is no dispute in the instant case,

that respondent No3 has been appointed against the post

reserved for members of Scheduled Castes and the question is

about the inter se placement of two persons appointed

against vacancies reserved for Scheduled Caste candidates.

The Circular dated March 6, 1961 does not deal with the said

question and it has to be dealt with on the basis of the

instructions contained in the orders dated May 5,1975 and

April 8,1980. (605-E)

Jagjit Singh v. State of Punjab, [1978] 3 S.C.R. 547,

explained and distinguished.

1.(b). Respondent No.3 can only be treated to have been

appointed against the vacancy at point No. 9 in the Roster

and on that basis he must be placid below the appellant in

the seniority list. Respondent No 2 is directed to revise

the seniority list of the members of the Service

accordingly. The appellant would be entitled to

consequential benefits accruing as a result of revision in

the seniority. (605-F)

2. The letter dated April 8, 1980 gives clarifications on

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certain doubts that had been created by some Departments in

the matter of implementation of the instructions contained

in the earlier letter dated May 5,1975. Since the said

letter dated April 8, 1980 is only clarificatory in nature

there is no question of its having an operation independent

of the instructions contained in the letter dated May 5,

1975 and the clarifications contained in the letter dated

April 8,1980 have to be read as a part of the instructions

contained in the earlier letter dated May 5, 1975. (603-E)

3. A statute which is explanatory or clarificatory of the

earlier enactment is usually held to be retrospective.

597

Craies on Statute Law 7th Edn. p. 58, relied on. (603-F)

4. All appointments against vacancies reserved for Scheduled

Castes made after May 5,1975 (after May 14,1977 in so far as

the Punjab Superior Judicial Service is concerned) have to

be made in accordance with the instructions as contained in

the letter dated May 5, 1975 as clarified by letter dated

April 8, 1980. (603-F)

5. The appointment of Shri Balwant Rai in 1979 has to be

treated to be an appointment made under the said

instructions and operation of these instructions cannot be

postponed till April 8, 1980. The sub-roster as indicated

in the letter dated April 8, 1980 would have to be applied

in respect of the post on which Shri Balwant Rai was

appointed in 1979 and the said appointment has to be

regarded as having been made against the vacancy at Point

No. 1 in the roster which was reserved for Balmikis or

Mazhbi Sikhs but since no Balmiki or Mazhbi Sikh was

selected for that post, the said vacancy was assigned to

Shri Balwant Rai who belonged to a Scheduled Caste other

than a Balmiki or Sikh. (603-H, 604-A)

6. The vacancy at Point No. 1 which was reserved for

Balmikis or Mazhbi Sikhs could not he carried forward in

view of the directions contained in the letter dated April

8, 1980. (604-A)

7. The next post reserved for Scheduled Castes at Point No.

5 in the roster was meant for a person belonging to a

Scheduled Caste other than Balmikis and Mazhbi Sikhs. (604-

A)

8. In the selections that were made in 1981 and 1982 no

person belonging to a Scheduled Caste was selected and,

therefore, posts at Point Nos. 5 and 6 in the Roster became

available to candidates in the general category and the

vacancy at Point No. 5 reserved for Scheduled Castes was

carried forward to point No. 7. (604-B)

9. In 1986, two persons belonging to Scheduled Castes,

namely Shri G.S Samra and respondent No. 3 were selected.

(604-B)

10. Since the post appoint No. 5 which had been carried

forward to point No. 7 was reserved for a candidate

belonging to a Scheduled Caste other than Balmiki or Mazhbi

Sikh it had to be assigned to Shri G.S. Samra falling in

that category and respondent No.3 who was a Mazhbi Sikh

could only be ap-

598

pointed against the reserved vacancy at Point No. 9 in the

Roster. Respondent No.3 can not claim that the vacancy at

Point No.7 should be assigned to him. If respondent No.3. is

adjusted against the vacancy at Point No.9 in the Roster, he

has to be placed in seniority below the appellant who was

appointed against Point No. 8 in the Roster. (604-C)

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JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No.241 of 1993.

From the Judgment and Order dated 9.10.1991 of the Punjab

and Haryana High Court in Civil Writ Petition No. 5727 of

1991.

Harish N. Salve Jagdish Singh Kuhar, and A.K. Mahajan for

the Appellant.

Ujagar Singh, Ms. Naresh Bakshi R.S. Yadav and G.K. Bansal

for the Respondents.

The Judgment of the Court was delivered by

S.C. AGRAWAL ,J. : This appeal relates to the inter se

seniority of the appellant and respondent no. 3 in the

punjab Superior Judicial Service (hereinafter referred to as

'The Service'). The appellant and respondent No. 3 were

both appointed to the Service on May 26, 1986 on the basis

of selection by direct recruitment. The appellant belongs

to the general category whereas respondent No. 3 is a Mazhbi

Sikh, which is a Schedule Caste in Punjab.

The recruitment to the Service is governed by Punjab

Superior Judicial Service Rules, 1963 (hereinafter referred

to as 'The Rules'). By Rule 8-A, which was inserted in the

rules by notification dated June 14,1977, the instructions

issued by the State Government from time to time in relation

to reservation of appointments or posts for Scheduled Castes

and Backward Classes were made applicable for the purpose of

making appointments to the posts in the Service. The orders

of the State Government relating to persons belonging to

Scheduled Castes in this regard which have a bearing in this

appeal are as follows

(1) Letter dated June 6, 1974 from the Secretary to the

Government of Punjab, Welfare of Scheduled Castes and

Backward Classes Department to all Heads of Department etc.

It was communicated that it had been decided to increase the

percentage of reservation in direct recruitment in all

services from 20% to 25% in the case of members of Scheduled

Castes and from 2% to 5% in the case of members belonging to

Backward Classes. In the said letter, it was also indicated

599

that the vacancies to be reserved for the members of

Scheduled Castes in a lot of 100 vacancies would be at the

points specified below

1, 5, 9, 13, 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, 61,

65, 69, 73, 77, 8 1, 85, 89, 93 and 97 and so on.

It was also directed that the Roster already existing would

not be abondoned, but would now be maintained in

continuation from the vacancy in the existing Roster last

filled up according to the new pattern of reservation that

has been prescribed in the earlier paragraphs in the said

letter.

(2) Circular dated November 19,1974 relates to carrying

forward of reservation for members of Scheduled

Castes/Backward Classes. It was directed that "the

reservation should be carried forward from vacancy to

vacancy in the same block until a Scheduled Caste or a

Backward Class person, as the case may be, is appointed or

promoted in the same block. It was further directed that if

all the vacancies in any block determined on the basis of

prescribed Roster are filled up by other category-person due

to non-availability of Scheduled Castes or Backward Classes

persons, the reservation should be carried forward to the

subsequent blocks. The said letter required that the

reservation should be carried forward from vacancy to

vacancy in each block and from block to block until the

carried forward vacancies are filled up by the members of

the Scheduled Castes or Backward Classes. It was also

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provided that only one reserved vacancy out of the carried

forward vacancies should be filled in a block of appropriate

Roster in addition to the normal reserved point of the

block.

(3) Letter dated May 5, 1975, from the Secretary to the

Government, Punjab, Welfare of Scheduled Castes & Backward

Classes Department addressed to all Heads of Departments

etc. It was communicated that the Government have decided

that henceforth, 50% vacancies of the quota reserved for

Scheduled Casstes should be offered to Balmikis and Mazhbi

Sikhs, if available, as a first preference from amongst the

Scheduled Castes candidates.

(4) Letter dated. April 8, 1980 addressed by the Under

Secretary to the Government of Punjab, Welfare Department

Reservation Cell, to all Heads of Departments etc. The

position with regard to the implementation of instructions

regarding reservation for Mazhbi Sikhs and Balmikis under

the letter dated May 5, 1975 was clarified as follows

"i) Combined merit list can be disturbed while

giving appointment

600

to the candidate belonging to Balmikis and

Mazhbi Sikhs.

ii) On the basis of 50% reservation the first

reserved vacancy can be offered to Balmikis

and Mazhbi Sikhs although his name may be

below in the merit list.

iii)On the basis of 50% reservation, Balmikis

and Mazhbi Sikhs 1, 3, 5 and so on reserved

vacancies shall go to the candidates of these

castes if available and 2,4, 6 and so on

reserved vacancies shall go to other Scheduled

Castes candidates.

It is clarified here that these instructions

are to be implemented when the names of the

candidates of Balmikis and Mazhbi Sikhs are

included in the merit list after selection.

If no candidate belonging to these communities

has been selected or less candidate selected

then the reserved vacancy should be filled up

from amongst the other Scheduled Castes

candidates meaning thereby no reserve vacancy

reserved for Balmkis and Mazhbi Sikhs should

be carried forward."

After the introduction of Rule 8-A in the Rules, four

persons were appointed by way of direct recruitment to the

Service in the year 1979. One out of them, Shri Balwant

Rai, belonged to a Scheduled Caste (other than Balmikis or

Mazhbi Sikhs). Thereafter, in 1981, one post fell vacant

but no person belonging to a Scheduled Caste 'could be

selected and the candidate belonging to general category was

appointed against the said post. In the year 1982,

selection was made for two posts but only one person could

be selected and he also belonged to the general category and

no person belonging to a Scheduled Caste was available for

appointment. In 1986, six persons including the appellant

and respondent No.3 were appointed on the basis of direct

recruitment. Out of those six persons, four belonged to the

general category and two belonged to Scheduled Caste. One

of the two persons was Shri G.S. Sarma who belonged to a

Scheduled Caste other then Balmikis or Mazhbi Sikhs. In the

merit list for the said selection the appellant was placed

at No. 1, Shri G.S. Sarma was at No. 2 and respondent no. 3

was at No. 5. As per the Roster, Shri G.S. Samra was placed

at Point No.7, the appellant at Point No.8 and respondent

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no. 3 at Point no. 9. After joining the Service, Shri G.S.

Samra resigned from the same and had ceased to be a member

of the Service prior to April 1, 1988.

In the tentative seniority list of the members of the

Service as on April 1,

601

1988, the appellant was placed at Serial No. 52 and

respondent No. 3 was placed at Serial No.53. Respondent No.3

submitted a representation against his placement in the

seniority list and claimed that he should be placed against

the post reserved for Scheduled Caste at Serial No. 5 in the

Roster and on that basis he should be given the seniority of

the year of 198 1. He also submitted that since he is a

Mazhbi Sikh, he is entitled to preference over Shri G.S.

Samra who belonged to a Scheduled Caste other than Balmikis

and Mazhbi Sikhs, and he claimed that he should have been

placed at Point No.7 in the Roster and Shri G.S. Samra

should have been placed at Point No. 9 and on that basis

also respondent no. 3 is senior to the appellant.

Representation was also invited from the appellant. in this

regard. After considering the said representations the High

Court, on its administrative side, decided that the

respondent No. 3 was entitled to be placed above Shri G.S.

Samra in view of the Circular Letter dated May 5, 1975 and

that he should have been placed against Point No. 7 in the

roster and Shri G.S. Samra should have been placed against

Point No.9 in the Roster. On that basis the seniority list

was revised and respondent No.3 was placed at Serial No. 52

while the appellant were placed at Serial No. 53. Feeling

aggrieved by the revision in the seniority, the appellant

filed a writ petition in the High Court which was dismissed

by the High Court by judgment and order October 9, 199 1.

This appeal is directed against the said judgment of the

High Court.

There is no dispute that appellant has been rightly assigned

Point No. 8. If Respondent no. 3 has to be assigned Point

No.7 as found by the High Court, then he would be senior to

the appellant but if Respondent No. 3 is assigned Point no.

9 then appellant would be senior to Respondent no. 3 It is,

therefore, necessary to determine whether respondent No. 3

is entitled to be placed at Point no. 7 in the Roster in

place of Shri G.S. Samra who should be placed at Point No.9

or that the respondent no.3 should be assigned Point No.9 of

the Roster. The said question requires consideration of the

various orders relating to reservation for Scheduled Castes

to which reference has been made earlier. As indicated

earlier by letter dated June 6, 1974 points 1, 5, 9, 13, 17,

21, 25, 29, 33, 37,41, 45, 49, 53, 57, 6 1, 65, 69, 73, 77,

81, 85, 89, 93 and 97 in the Roster are reserved for members

of Scheduled Castes. By letter dated May 5, 1975, 50% of

the vacancies of the quota reserved for Scheduled Castes are

required to be offered to Balmikis and Mazhbi Sikhs, if

available, as a first preference from amongst the Scheduled

Castes candidates. In view of the clarifications contained

in the letter dated April 8, 1980 on the basis of 50%

reservation the first reserved vacancy can be offered to

Balmikis and Mazhbi Sikhs although his name may be below in

the merit list and on the basis of 50% reservation, amongst

the vacancies reserved for Scheduled Caste, vacancies 1, 3,

5 and so on would go to Balmikis and Mazhbi Sikhs, if

available, and reserved vacancies 2, 4, 6 and so on would go

to other Scheduled

602

Castes candidates. It has also been clarified that if no

candidate belonging to the communities of Balmikis and

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Mazhbi Sikhs was selected or less number of candidates were

selected then the reserved vacancies should be filled up

amongst the other Scheduled Castes candidates and that no

vacancy reserved for Balmikis and Mazhbi Sikhs should be

carried forward. In view of the aforesaid clarifications

out of the posts reserved for Scheduled Castes in the

Roster, there was reservation for Balmikis and Mazhbi Sikhs

on the posts against the following points in the Roster

1, 9, 17, 25, 33, 41, 49, 57, 65, 73, 81, 89, and 97.

There was reservation for members of Scheduled Castes other

than Balmikis and Mazhbi Sikhs on the posts against the

following points in the Roster:

5, 13, 21, 29, 37, 45, 53, 61, 69, 77, 85, and 93.

The learned counsel for the appellant has urged that since

these orders relating to reservation for Scheduled Castes

became applicable to the Service with effect from June 14,

1977, when Rule 8-A was inserted, all appointments to the

Service after June 14, 1977 have to be made in accordance

with these orders. The submission is that the first

appointment, by direct recruitment, of a person belonging to

the Scheduled Castes was of Shri Balwant Rai made in 1979.

That was at point No. 1 in the Roster. That should have

gone to a Balmiki or a Mazhbi Sikh but since no person

belonging to those communities was available, Shri Balwant

Rai, who belongs to a Scheduled Caste other than Balmikis

and Mazhbi Sikhs, was appointed. It has been further urged

that in view of the clarification contained in the letter

dated April 8. 1980, a vacancy reserved for Balmikis and

Mazhbi Sikhs is not required to be carried forward and the

Balmikis and Mazhbi Sikhs cannot claim reservation in

respect of the next vacancy at Point no. 5 which was

reserved for Scheduled Castes other than Balmikis and Mazhbi

Sikhs and they can only claim the vacancy that was reserved

for Balmikis or Mazhbi Sikhs at point No.9. It was submitted

that Shri G.S. Samra who belonged to a Scheduled Caste other

than Balmikis and Mazhbi Sikhs was entitled to be appointed

against the reserved vacancy at Point No.5 reserved for a

candidate belonging to a Scheduled Caste other than Balmikis

and mazhbi Sikhs but since at the time of selections that

were made in the years 1981 and 1982, no person belonging to

a Scheduled Caste was available. The vacancy at Point No. 5

reserved for Scheduled Castes was carried forward to point

no. 7 and Shri G.S. Samra had to be adjusted at point No.7

in the Roster. The submission is that respondent no. 3,

being a Mazhbi Sikh, could not claim to be placed at point

No. 7 in the Roster against a vacancy which was reserved for

a candidate belonging to a Scheduled Castes other than

Balmikis and

603

Mazhbi Sikhs and he could be only placed against the vacancy

at point No.9 in the Roster.

The learned counsel for the respondent No.3 on the other

hand has urged that in view of the order dated May 5, 1975,

50% vacancies of the quota reserved for Scheduled Castes

have to be offered to Balmikis and Mazhbi Sikhs and since

Shri Balwant Rai belonging to a Scheduled Caste other than

Balmikis and Mazhbi Sikhs had been appointed in 1979, the

next post should go to Balmikis and Mazhbi Sikhs, and on

that basis, respondent No.3 was entitled to be appointed

against the second post at point No. 7 of the Roster and

Shri G.S. Samra could only be appointed against third post

at point No.9 in the roster. In the alternative, it was

urged that the order dated April 8, 1980 could only have

prospective operation with effect from the date of issue of

the said order and the sub-roster indicated by the said

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order could be given effect to only from that date and on

that basis the first post reserved for Scheduled Castes

should go to Balmikis or Mazhbi Sikhs and on that basis also

respondent No.3 was entitled to be placed against point No.7

in the 100point roster and Shri G.S. Samra against point

No.9 in the said roster.

From a parusal of the letter dated April 8,1980, we find

that it gives clarifications on certain doubts that had been

created by some Departments in the matter of implementation

of the instructions contained in the earlier letter dated

May 5,1975. Since the said letter dated April 8,1980 is

only clarificatory in nature, there is no question of its

having an operation independent of the instructions

contained in the letter dated May 5, 1975 and the

clarifications contained in the letter dated April 8, 1980

have to be read as a part of the instructions contained in

the earlier letter dated May 5, 1975. In this context it

may be stated that according to the principles of statutory

construction a statute which is explanatory or clarificatory

of the earlier enactment is usually held to be

restrospective. (See: Craies on Statute Law, 7th Ed., p.

58). It must, therefore, be held that all appointments

against vacancies reserved for Scheduled Castes made after

May 5, 1975 (after May 14, 1977 in so far as the Service is

concerned), have to be made in accordance with the

instructions as contained in the letter dated May 5, 1975 as

clarified by letter dated April 8, 1980. On that view, the

appointment of Shri Balwant Rai in 1979 has to be treated to

be an appointment made under the said instructions and

operation of these instructions cannot be postponed till

April 8, 1980. If the matter is considered in this light

then the sub-roster as indicated in the letter dated April

8, 1980 would have to be applied in respect of the post on

which Shri Balwant Rai was appointed in 1979 and the said

appointment has to be regarded as having been made against

the vacancy at point No 1. in the the roster which was

reserved for Balmikis or Mazhbi Sikhs but since no Balmiki

or Mazhbi

604

Sikh was selected for that post, the said vacancy was

assigned to Shri Balwant Rai who belonged to a scheduled

Caste other than a Balmiki or Mazhbi Sikh. The said vacancy

which was reserved for Balmikis or Mazhbi Sikhs could not be

carried forward in view of the directions contained in the

letter dated April 8, 1980. The next post reserved for

Scheduled Castes at point No. 5 in the roster was meant for

a person belonging to a Scheduled Caste other than Balmikis

and Mazhbi Sikhs. In the selections that were made in 1981

and 1982 no person belonging to a Scheduled Caste was

selected and, therefore, posts at Points nos. 5 and 6 in the

Roster became available to candidates in the general

category and the vacancy at Point no.5 reserved for

Scheduled Castes was carried forward to point No.7 In 1986,

two persons belonging to Scheduled Castes, namely Shri G.S.

Samra and respondent No.3 were selected. Shri G.S. Samra

belonged to a Scheduled Caste other than Balmiki and Mazhbi

Sikh whereas respondent No. 3 was a Mazhbi Sikh. Since the

post at point No.5 which had been carried forward to point

No.7 was reserved for a candidate belonging to a Scheduled

Caste other than Balmiki or Mazhbi Sikh it had to be

assigned to Shri G.S. Samra falling in that category and

respondent No. 3 who was a azhbi Sikh could only be

appointed against the reserved vacancy at point No.9 in the

Roster. Respondent No. 3 can not claim that the vacancy at

Point No.7 should be assigned to him. If respondent No.3 is

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adjusted against the vacancy at Point No. 9 in the Roster,

he has to be placed in seniority below the appellant who was

appointed against point No. 8 in the Roster.

In the judgment under appeal, the High Court has placed

reliance on the instructions dated March 6, 1961 and the

decision of this Court in Jagjit Singh v. State of Punjab,

[1978] 3 S.C.R. 547. The instructions dated March 6, 1961

deal with a situation where the services of a Government

Servant belonging to Scheduled Castes/Tribes and Backward

Classes are terminated and a resultant vacant occurred. It

has been directed as under

"With a view to safeguard the interests of the

members of the Scheduled Castes/Tribes and

Backward Classes, it has been decided that if

the services of a Government Servant belonging

to Scheduled Castes/Tribes or Backward Classes

are terminated, the resultant vacancy should

not be included in the normal pool of

vacancies to be filled in accordance with the

Block System but should be filled up on ad hoc

basis from the candidates belonging to these

castes and classes. In other words the

intention is that the posts vacated by members

of Scheduled Castes/Tribes and Backward

classes should remain earmarked and be filled

up by members belonging to these Classes."

605

In Jagjit Singh's case, this Court was dealing with

appointments to the Punjab Civil Service (Executive Branch).

These selection was made for appointment against 12

vacancies in the said Service and other vacancies in the

Allied Services. Two of the vacancies in the Punjab Civil

Service were reserved for Scheduled Castes candidates.

Three persons were selected from among the members of

Scheduled Castes. The appellant in the said appeal was at

third place in the merit list of the Scheduled Castes

candidates. The first two candidates on the merit list were

appointed and the appellant was appointed on the post of "A"

Class Tehsildar in one of the Allied Services.

Subsequently, one of the two candidates who had been

appointed to the Punjab Civil Service resigned his office

and a question arose as to whether the appellant was

entitled to be appointed to the Punjab Civil Service against

the vacancy arising on account of resignation of the

Scheduled Castes candidate who had been appointed earlier.

The appellant laid his claim for such appointment on the

basis of the instructions contained in the circular of March

6, 196 1. The said claim of the appellant was upheld by this

Court and it was held that the resultant vacancy caused by

resignation of one of the Scheduled Castes candidate should

have gone to the appellant. The Circular dated March 6,

1961 and the decision in Jagjit Singh v. State of Punjab

(supra) do not have a bearing on the question in controversy

in the instant case because here there is no dispute that

the respondent No.3 has been appointed against the post

reserved for members of Scheduled Castes and the question is

about the inter se placement of two persons appointed

against vacancies reserved for Scheduled Caste candidates.

The Circular dated March 6, 1961 does not deal with the said

question and it has to be dealt with on the basis of the

instructions contained in the orders dated May 5, 1975 and

April 8, 1980.

For the reasons aforementioned the appeal is allowed, the

judgment and the order of the High Court dated October 9,

1991 is set aside. The Civil Writ Petition filed by the

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appellant in the High Court is allowed and it is declared

that respondent No.3 can only be treated to have been

appointed against the vacancy at Point no.9 in the Roster

and on that basis he must be placed below the appellant in

the seniority list. Respondent No.2 is directed to revise

the seniority list of the members of the Service

accordingly. The appellant would be entitled to conse-

quential benefits if any, accruing to him as a result of

such revision in the seniority. The parties are left to

bear their own costs.

N.V.K.

Appeal allowed.

606