Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. Again at page 508, extracts of Railway January 19, 1972 are set out, which read : Board's letter <lated "3. The seniority of candidates belonging to Scheduled Castes and Scheduled Tribes vis-a-vis others will continue to be determined as at present, i.e., according to the panel position in the case of categories where training is not provided and in accordance \Vit h the merit position in the examination where training is pro\~<lcd. And finally at page 512, the circular/letter of the Railway Board dated August 31, 1982 is set out, which has already been extracted herein- before.
18. Pausing here for a moment, we must explain what does panel mean and signify in the case of promotions. Though we enquired repeatedly, this aspect could not be clarified by the learned Additional Solicitor General. In particular, we wanted to know whether a panel is prepared only in the ease of selection posts or is it also prepared in the case of non-selection posts. The s~veral instructions in Indian Railway Establishment Manual are also not helpful on this aspect. We are, there- fore, Jell to interpret the cxpn:ssion oursclvc~. Having regard to the fact i, that in all the above circulars/letters, the expression "panel" has been used.·;, to denote a merit list or sck:cl list, as it may be called, \Ve think it~." reasonable to understand as a panel \vhich is prepared in the case of selection posts only. In the case of non-selection posts, there is no question of such a panel. In their case, the senior is promoted automatically unless he is found to be unsuitable to hold the promotion post. No panel, i.e., merit list or select list is called for in the case of non-selection posts. May be, ultimately, a list of persons to be promoted is prepared but that is neither a merit list, nor a select lisl.
19. Sri Altaf Ahmed, learned Additional Solicitor General ques- U.0.1. v. Y.S. CHAUHAN [B.P . .JEEYAN REDD'r.J.j tioned the correctness and validity of t.hc principles enunciated by the A Tribunal in para-26 of its judgment. He submitted that according lo the Indian Railway Establishment Manual, seniority is determined by the date of promotion/appoinlmcnt to the concerned grade anJ that the said principle cannot he altered or departed fron1 in the nan1c of ens~ring equality. ()nee the rule of reserva~ion is i.1pplicd in the n1attcr of pro1no- tions and it is remc111bered that iri the higher echelons of administration, representation of Scheduled Castes/Scheduled Tribes has been inadequate all these years, there is nothing surprising if the members of Scheduled Castes/Scheduled Tribes get promotions sooner and earlier than the general candidates. This is the natural consequence of applying the rule of reservation in promotions – and not an unintended one. The said consc- qucnce cannot, therefore, be a basis for evolving a rule which partially off-sets the very purpose and meaning of the rule of reservation. Sri Altaf Ahmed further submitted that effecting promotions in accordance with the roster vacancies are not and cannot be callee.I "fortuitous promotion '. They are regular vacancies and pron1otion to then1 is a regular promotion. He D relied upon the decision of the Central Administrative Tribunal in Dwga Charan Ha/dar v.Union of India (Original Application No. 854 of 1990) wherein it has been held that the date of promotion, effected following the forty-point roster/hundred-point roster, is determinative of seniority. He submitted that the decision of the Central Administrative Tribunal (Patna Bench) lo the contrary is the subject matter of appeal in this batch. The E Patna Tribunal has followed the decision of the Allahabad Tribunal in Vilpal Singh Chauhan.
20. Sri Rajecv Dhawan, lc;trnc<l counsel appearing fur the respon- dents-general candidates, pul fnr\Vl:lrd the follo\ving suhn1issions \vhilc opposing the contentions of the learned Additional Solicitor General : (i) Article 16(4) of the .Constitution enables the State to define the extent and nature of the benefits to be extended lo the backward classes. lt is not as if there is only one particular method of providing reservations under the said clause. (ii) The purpose behind Article 16( 4) is to ensure adequate repre- sentation to backward classes in the adn1inistrative apparatus of the Stale. The purpose of Article 16(4) is only to ensure adequate representation an<l not to confer additional benefits – other than those which logically flow H from the rule of reservation. As .soon as adequate representation is achieved, the rule of reservation must be kept in abeyance and if there is a roster the application of the roster must he stopped. c (iii) A harmonious construction of clauses (4) and (1) of Article 16 – both of which are indeed facets of the very same principle of equality – implies that while the members of reserved categories will be entitled to equal treatment in all matters relating to service conditions, they cannot claim accelerated seniority in addition to accelerated promotion. If this principle is not recognised, it would result in the reserved category mem- bers stealing an additional march over the general candidates which defeats the guarantee of equality extended by Article 16(1) to general candidates. In other words, giving accelerated .seniority in addition to accelerated promotion amounts lo conferring double benefit upon the members of reserved category and is violative of rule of equality in Article 16(1). (iv) The command of Article 335 of the Constitution shall also have D to be kept in mind in this behalf. Accelerated promotion-cum-accelerated seniority is destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration come to be occupied almost entirely by members of reserved categories – at any rate, far beyond the percentage of reservation prescribed for them. (v) The decisions of this Court clearly establish the distinction be- tween promotion and seniority. It would be too simplistic to say that seniority automatically follows the promotion. (vi) A candidate belonging to reserved category appointed/promoted on the basi!-1 of rule of reservation shuu!U nnt he hcl<l entitl~<l to con1pcle for a general vacancy in the roster. They should be confined to reserved vacancies alone. Non-observance of this rule has resulted in a situation where in the higher grades of Railway Guards the representation of Scheduled Castes/Scheduled Tribes has risen upto seventy percent (in the case of Guard Super Grade) and forty percent (in the case of Guard Grade 'A' Special) instead of 22.5 percent. This anomaly cannot be allowed lo occur.
21. Sri K.B. Rohtagi, learned counsel appearing for the respondents in Civil Appeal No. 2261 of 1987 (for Guards belonging to Scheduled H Castes/Scheduled Tribes categories) supported the contentions of the U.O.l. v. V.S. CHAUHAN [B.P.JEEVAN REDDY.J.] learned Additional Solicitor General.
22. Clause (4) of Article 16 of the Constitution enables the State to make "any provision for the reservation of appointn1ents or posts in favour of any back\vard class of citizens \Vhich, in the opinion of the State, is not adequately represented in the services under the State." In Indra Sawhney v. Union of India, (1992] Suppl. 3 S.C.C. 217, it has been hdd by the majority (in the opinion delivered by one of us, B.P. Jeevan Reddy, J.): "The question then arises whether clause ( 4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we ans\ver this question it is well to examine the meaning and content of the expression 'reservation'. Its meaning has to be ascertained having regard to the context in which it occurs. The relevant \Vords are, any provision for the reservation c of appointments or posts'. The question is whether the said words contemplate only one form of provision namely reservation D simpliciter, or do they take in other forms of special provisions like references, concessions and exemptions. In our opinion, reserva- tion is the highest form of special provision, while preference, concession and exemption are . lesser forms. The constitutional scheme and context of Article 16( 4) induces. us to take the view that larger concept of reservations takes within its sweep all sup- plemental and ancillary provisions as also lesser types of special provisions like exen1ptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration – the admonition of Article 335. The several con- cessions, exemptions and other n1easurcs issued by the Railv.. 1ay Administration and noticed in Karamchmi Sangh [19811 l S.C.C. 246 are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reser- vation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour. The other type of measure is the one in Thomas (1976] 2 S.C.C. 310. G There was no provision for reservation in favour of Scheduled Castes/Scheduled Tribes in the matter of promotion to the category of Upper Division Clerks. Certain tests were required to be passed before a Lower Division Clerk could be promoted as Upper Division Clerk. A large number of Lower Division Clerks H c belonging lo SC/ST were not ahle to pass those tests, with the result they \Vere stagnating in the category of LDC:s. Ruic :13-AA \vas accordingly n1a<lc cn1po\vcring the (Jovcrnmcnt to grant exen1p- tion Lo n1e1nbcrs SC:/ST fro1n passing those tests and the govern- ment did exempt them, not absolutely, but only for a limited period. This provision for exen1ption \Vas a lesser form of special treatn1cnt than rcser\·ation. There is no reason why such a special provision should not be held to be included within the larger concept of rescrvation.'
23. This statement of la\V n1akcs it clear that there is no uniform or prescribed method of providing reservation. The extent and nature of reservation is a matter for the State to decide having regard to the facts and requirements of each case. Such a situation was indeed dealt with in National Federation of State Bank of India v. Union of India and Oi:>., [1995] 3 S.C.C. 432 rendered by one of us, B.P. Jeevan Reddy, .I. on behalf of the Bench which included R.M. Sahai and S.C. Sen JJ. In the case of service under Public Sector Banking Institutions, \vhile reservation in promotions was provided in the case of promotion from Class-IV to Class-III, Class-Ill to Class-II and from Class- II to Class-I, no such reservation was provided so far as promotions within Class-I were concerned. Only a Concession (set out in the judgment) was provided in favour of Scheduled Cas- tes/Scheduled Tribes candidates with a view to enable them to obtain promotions within Class-I which they may not have obtained otherwise. It was held by this Court that such a concession can also be provided under Article 16( 4). In short, it is open to the Stale, if it is so advised, to say that while the rule of reservation shall he applied and the roster followed in the n1attcr of pron1otions to or \Vithin a parlicul<Jr service, class nr category, the candidate pron1oted earlier by virtue of. rule of reservation/roster shall not be entitled to seniority over his senior in the feeder category and that as and when a general candidate \vho \Vas senior to him in the feeder category is pron1oted, such general candidate will regain his seniority over the reserved candidate not\vithstanding that he is prompted subsequent to the reserved candidate. There is no unconstitutionality involved in this. It is permissible for the State to so provide. The only question is whether it is so provided in the instant ca.sc?
24. It is the common case of the parties before us that the rule of reservation in the Raihvay services – lo he more precise to the category of lJ.0.1. v. V.S. CHAUHAN [B.P. JEEV AN REDDY, J.] Railway Guards, whether in· the matter of initial appointment or in the A matter or promotion, from one grade to another, is provided by the circulars/letters of the Railway Board. These circulars/letters have been · issued by the Railway Board in exercise of the power conferred upon it by Rule 123 of the statutory rules framed by the President of India. We have referred to the circulars/letters of the Railway Board hereinbefore. In the B circular/letter dated August 31, 1982 which deals with the subject of "Reservation for Scheduled Castes and Scheduled Tribes in promotion in Group 'D' and 'C' (Class IV and III) on the basis of seniority-cum- suitability" it is specifically ordered that while "posting of Scheduled Caste/Scheduled Tribe candidates on promotions in non-selection posts should also be done as per the reserved points on the roster", such C promotion shall be "subject to the condition that seniority of the Scheduled Caste/Scheduled Tribe candidates in comparison to order candidates will continue to be governed by the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided". So far as the several grades D among Railway Guards are concerned, the relevant service conditions do not provide for any training followed by examination on promotion from one grade to another. Hence, the seniority between the reserved category candidates and general candidates in the promoted 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 E posts, no "panel" is prepared or is necessary to be prepared. If so, tlie question arises, what did the circular/letter dated August 31, 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 be reflected in each of the higher grades. This means that while the rule of reservation gives accelerated promotion, it does not give the ac- celerated – or 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 G candidate (who was promoted to the said higher grade earlier) may got promoted to yet higher grade. In other words, by the time the senior general category candidate enters, say, Grade 'B', his junior Scheduled Caste/Scheduled Tribe candidate is promoted to Grade 'A'. It is obvious A 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. c
25. Now let us see how does the above principle operate in practice. Selection is made for direct recruitment to Grade 'C' Guards. A panel is prepared by the selecting authority on the basis of and in the order of merit. Appointments have to be made from out of this list/panel. But appointment orders will not be issued in the order in which the candidates are arranged in this select list/panel; they will be issued following the roster. Suppose the forty-point roster is being operated afresh, then the first vacancy in the roster would go to a Scheduled Caste candidate though he may be down below in the select list/panel. The candidate at SI. No.l in the said select list – a general candidate – will be appointed in the second vacancy. But once appointed, the general candidate (at SI. No. 1 in the select list) will rank senior to the Scheduled Caste candidate though he (general candidate) is appointed subsequent to the Scheduled Caste can- didate. Now take the case of promotions (based on seniority-cum- suitability, i.e., non-selection posts) to Grade 'B'. Roster applies even to promotions to Grade B'. Again assume that the forty-point roster is open- ing now in Grade 'B'. The first vacancy has again got to go to a Scheduled Caste candidate though he may not be the senior-most in Grade 'C'. The senior-most candidate in Grade 'C' (the general candidate, who was at SI. No. 1 in the select list/panel and who regained his seniority on appointment to Grade 'C' as aforestated) will be promoted in the next vacancy. But once promoted, the general candidate again becomes senior to the Scheduled Caste candidate though promoted subsequent to the Scheduled Caste candidate. And so on and so forth. It is in this manner that the rule of reservation (and the roster) merely enables a reserved category candidate to obtain an appointment or promotion, as the case may be – which he may not have obtained otherwise or would not have obtained at the time he is now getting – but it does not give him the seniority. In this sense, the rule confers a limited benefit – a qualified benefit. We have already stated that G such a rule of reservation does not fall foul of Article 16( 4).
26. We are of the opinion that the aforesaid circulars/letters provid- ing for reservation in favour of Scheduled Castes/Scheduled Tri! :s can- didates, rosters and their operation and on the subject of seniority as between general candidates and reserved category candidates, being in the U.0.1. v. V.S. CHAUHAN [B.P . .TEEVAN REDDY • .T.J nature of special rules prevail over lhc general instructions contained in Volume-I of the Indian Railway Establishment Manual including those contained in Paras 306, 309 and 319 ct u/. Accordingly, we agree with the conclusion of the Tribunal in the order under ·appeal (Vi1pal Singh Chauhan) though we may not agree with all the reasons given by the Tribunal. In other words, we may not agree with the view expressed by the Tribunal that a harmonious reading of Clauses (1) and (4) of Article 16 should mean that -a reserved category candidate promoted earlier than his senior-general category candidate in the feeder category shall necessarily be junior in the promoted category to such general category candidate. No such principle may be said to be implicit in the ~aid clauses. But inasmuch the Railway Board's circulars concerned herein do provide specifically for such a situation and since they cannot be said to be violative of the constitutional provisions, they must prevail and have to be given effect to. It is not brought to our notice that the said instructions are inconsistent in any manner with any of the statutory provisions or statutory rules relevant in this behalf.
27. So far as the other question considered by the Tribunal (\1z., that once the representation of the reserved categories in a given unit of appointment reaches the prescribed percentage, the rule of reservation or c the roster based on it cannot he given effect to), the Constitution Bench decision of this Court in R.K. Sabhmwal v. State of Punjab, settles the issue. E In this decision, it has been held that where the total number of posts in a cadre reserved for reserved candidates are filled by operation of a roster, the object of rule of reservation must be deemed to have been achieved and that thereafter there would be no justification to operate the roster. Para-5 of the said judgn1ent hrings out the reasons for the said rule and the rule itself : ''We see considerable 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 Depart- mcnt. The roster is i1nplcn1ented in the form of running account fro1n year to year. The purpose of 'running account' is to make sure that the Scheduled Castes/Scheduled Tribes and Backward Classes get their percentage of reserved posts. The concept of 'running account' in the in1pugned instructions has to be so inter- c pretcd that it does not result in excessive reservation. '16% of the posts …. ' are reserved for members of the Scheduled Castes and Backward Classes. In a lot of JOO posts those falling al Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 811, 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 Castes. 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 9lst 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 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 sec no jus- tification to operate the roster thereafter. The 'running account' is to operate only till the quota provided under the impugned instruc- tions is reached and not thereafter. Once the prescribed percent- age of posts is filled the numerical test of adequacy is satisfied and thereafter the roster docs not survive. The percentage of reserva- tion 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 population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure ettuality of opportunity to the Back\vard 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' 1nust come to an en<l 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 pcrn1anent 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 U.0.1. V. V.S.CHAUHAN[B.P.JEEVANREDDY.J.] persons belonging to the Scheduled Castes Similarly, if the persons A holding the post at points 8 to 14 or 23 lo 29 retire then these slots arc to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the per- centage of reservation."
28. The Constitution Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively [vide Para 11[. It has further been held in the said decision that the "percentage of reservation has to be worked out in relation lo the number of posts which from the cadre-strength (and that)° the concept of 'vacancy' has no relevance in operating the percentage of reservation". (As a matter of fact, it is stated c that this batch of cases were also posted for hearing before the Constitution Bench along with R.K. Sabhaiwal batch of cases but these cases were de-linked on the ground that they raise certain other issues which did not arise in R.K. S_abhaiwal.) Be that as it may, as a result of the decision in R.K. Sabhmwa/ and the views/findings recorded by us hereinabove, the D following position emerges: (i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para-5 of R.K. Sabhmwa/. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. (ii) The percentage of reservation has to be worked out in relation to number of posts in a particular c~dre, class, category or grade (unit for the purpose of applying_ the rule of reservation) and hot with respect to vacancies. (iii) So far as Railway Guards in Railway service are concerned – that G is the only category we are concerned herewith – the seniority position in the promoted category as between reserved candidates and general can- didates shall be the same as their inter se seniority position in Grade 'C' at any given point of time provided that at that given point of time, both the general candidate and the reserved category candidates arc in the same H c grade. This rule operates whether the general candidate is included in the same hatch of promotees or in a subsequent batch. (This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction.) In other words, even if a Schedule-0 Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the. said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.
29. If the above three rules are observed and followed, there may not remain much room for grievance on the part of the general candidates. While in the very scheme of things, it is not possible to give retrospective effect to these rules – a fact recognised in R.K. Sablzwwal – the above rules, operated conjointly, should go a long way in maintaining a balance between the demands of merit and social justice.
30. Sri Rajeev Dhawan, learned counsel for the general candidates, pointed out, what according to him, are the inequitable and anomalous situations which wouid follow, if the candidate appointed/promoted on the basis of rule of reservation is not confined to reserved posts alone and is allowed to compete for general posts as well. In such a situation, he submits, the reserved candidate will enjoy yet another – third – advantage. Whenever, it is convenient lo hin1, he will claim to be considered for a reserved post and where it is more convenient to him, he will claim to be considered for a general post, whereas a general candidate is restricted to general posts alone. In our opinion,· however, the plea of the learned counsel cannot simply be accepted; his submission flies in the fac~ of the established law on the subject.
31. Sri Dhawan then pointed out that Rule 3 stated above is not sufficient to do justice to the general candidates and that in practice, it has resulted in denial of just rights to general candidates. He elaborates his submission thus : a reserved category candidate may get promoted from H Grade 'C' to Grade 'B' earlier than his senior general category candidate :=.- . 'I'· ll.01. v. V.S. CHAUHAN [B.P.JEEVAN REDDY,J.] (senior with reference to the select list/panel prepared at the time of A selection to Grade 'C') by operation of rule of reservation/roster. The general candidate who is senior to him in the said select list/panel may get promoted to Grade 'B' later but what may happen, meanwhile, is that the reserved category candidate is further promoted to Grade 'A'. In other words, by the time the senior general category candidate gets promoted to B grade 'B', the reserved category can<li<latc is no longer there in Grade 'B' – he has ascended to Grade 'A'. In such a situation, there will be no occasion for applying the aforesaid Rule 3 as between these two can- didates. Sri Dhawan submits that this is precisely what has happened in the case of Railway Guards. Even the Railway Administration has admitted this situation in their counter, he says, though they have ascribed it to inadequate representation of the reserved categories in the higher grades. c Sri Dhawan says that, in practice, the candidates belonging to reserved categories got rapid promotions, leaving their erstwhile senior general candidates in the category in which they were originally appointed. May be that Sri Dhawan's complaint is true – we have already dealt with the D possibility and consequence of such a situation – but his grievance, in effect, is not against Rule 3 aforcstated but against the very ru]e of reservation being applied in promotions. It may be recalled that in Indra Sawhney, eight of the nine learned Judges constituting the Bench opined that Article 16(4) does not permit or warrant reservation in the matter of promotions. This E was precisely for the reason that such a rule results in several untoward and inequitous results. The Bench, however, permitted the existing rules in that behalf to operate for a period of five years from the date of judgment based as those rules were on an earlier Constitution Bench decision in Geneml Managw; Southem Railway & Anr. v. Rangachmi, [1962] 2 S.C.R. 687. lt is another matter that since then a constitutional amendment has been brought in permitting reservation in promotions to the extent of Scheduled Castes and Scheduled Tribes only, we need express no opinion on the aside amendment.
32. Sri Dhawan points out yet another anomaly. Where a candidate G belonging to Scheduled Caste gets selected on his own merit, i.e., in the general category, he will be treated as a general candidate and 011 that account he suffers prejudice vis-a-vis another reserved category candidate who could not be selected on his own merit (i.e. in the general category) and was selected only because of and under the rule of reservation. For illustrating his submission, learned counsel says, take an instance where out of forty candidates selected, a Scheduled Caste candidate selected on merit stands at S. No. 18 in the select list, whereas another Scheduled Caste candidate selected under and only bec<J,llse of the reserved quota stands at c S. No. 33. But when the occasion for appoinlmenl arises, the Scheduled Caste candidate at SI. No. 33 will be appointed against the first rosler- point, whereas the Scheduled Caste candidate al S. No. 18, heing a general candidate has to wait for his turn. This, the learned counsel says, amounts, in effect, to punishing the Scheduled Caste candidate at S. No. 18 for his merit. Because he was meritorious, he was selected in general category and is treated as a general candidate. He suffers all the disad- vantages any other general candidate suffers while another Scheduled Caste candidate, far less meritorious than him and who was selected only by virtue of rule of reservation, steals a march over him in the matter of initial appointn1cnt and in promotion after promotion thereafter. This is undoubtedly a piquant situation and may have to be appropriately rectified as and when the occasion arises. It is not pointed out that any such situation has arisen in the appeals before us. It is probable that many such situations may arise which cannot be foretold now. According to the general category candidates concerned herein, of course, the rule of reservation/roster has already given rise to many distortions. According to them, the repre- sentation of the reserved categories in Guard Grade 'A' Special has reached forty percent as against the prescribed 22.5 percent. It is not possible for us lo say, on the material before us, how and why the said situation has come about. It may be partly because the rule now enunciated in R.K. Sabhanval \Vas not there and \Vas not heing followed. It may also he that such a result has been hrought about by a combined operation of the factors mentioned in (i) and (ii) above. The fact remains that the situation – assuming that it is what is described by the general candidates – cannot be rectified with retrospective effcCt no\v. The Constitution Bench in R.K. Sabhmwal too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals arc con- G cerned, il is sufficient to direct that the Railway authorities shall hereinafter follow Rules (i), (ii) and (iii) [stated in Para No. 28J with effect from the date of judgment in R.K. Sabhanval i.e., February 10, 1995.
33. Learned counsel have sought to bring to our notice individual facts of some of the appeals before us but we do not propose to enter into U.0.1. "· V.S. CHAUHAN [B.P. JEEV AN REDDY, J.J those facts or make any pronouncement thereon. The proper course, in our considered opinion, is to send all these matters back to the Tribunal to work out the rights of individuals concerned applying the three principles aforesaid. These appeals are accordingly disposed of in the above terms and matters .remanded to the respective Tribunals. Writ Petitions are dismissed. No costs. SELECTION POSTS Civil Appeal No. 9276 of 1995 arising out of S.L.P. (C) No. 18370 of 1993:
34. Delay condoned. Leave granted. c
35. This appeal arises from the judgment of Central Administrative Tribunal (Madras Bench) allowing Original Application No. 869 of 1991 filed by the respondent, Sri D. Williams. The relevant facts drawn from the counter filed on behalf of the Railway Board and its officials before the D Tribunal, arc the following :
36. The cadre of Station Master is divided into five grades. The grades and inter se percentage is as follows : SI. Whether selection Percentage No. Category & Grade or non-selection distribution of post in each grade 1. Asst. Station Master Recruitment/ Rs. 1200-2040 Selection 10% 2. Station Master Non-Selection Rs. 1400-2300 70% 3. Station Master/ T.J. Non-Selection/ Rs. 1600-2660 Recruitment 10% 4. Dy. Station Supdt./T.i. Seiection Rs. 2000-3200 10% 5. Station Supdt./T.I. 10% of posts in Rs. 2375-3500 Selection Rs. 2000-3200
37. The posts of Assistant Station Masters in the scale of Rs. 1200- 2040 arc filled by direct recruitment through Railway Recruitment Boards H to the extent of fifty percent. The balance fifty percent is filled by promo- tion of departmental employees. The higher grades in the said cadre arn filled by promotion from the immediately lower grade. Twenty five percent of the posts in the scale of Rs. 1600-2660 are, however, filled by direct recruitment of Traffic Apprentices. c
38. The first respondent, Sri Williams (petitioner in the original application before the Tribunal) was promoted to the post of Deputy Station Superintcndent(fraffic Inspector in the scale of Rs. 2000-3200 on December 30, 1989. Actually, he was initially appointed as a Signaller in the scale of Rs. 60-150. Over the years, he earned promotions one after the other. In the scale of Rs. 130-240, he was senior to Respondent Nos. 4 to 10 in the original application (they are not impleaded as respondents in this appeal), all of whom belong to Scheduled Castes/Scheduled Tribes. Because of rule of reservation and the manner in which it was imple- mented, the said Scheduled Castes/Scheduled Tribes candidates were D promoted to the higher categories sooner. They came to be promoted to the post of Deputy Station Supcrintendentffraffic Inspector in the scale of Rs. 2000-3200 far earlier to Sri Williams, i.e., on .January 1, 1984 or earlier. On that basis, the said Scheduled Castes/Scheduled Tribes candidates were being treated as seniors to Sri Williams whO is, of course, a general candidate.
39. The post of Station Supcrintendcnt(fraffic Inspector in the scale of Rs. 2375-3500 are controlled by and dealt with at Head Quarter's level. They are filled on "All Railway" basis by a process of selection (which cn1npriscs of viva-voce only) fnn11 an1ong the Deputy Station Superintcn- dents(fraflic Inspectors in the scale of Rs. 2000-3200.
40. Eleven vacancies arose in the scale of Rs. 2375-3500. According to rules, three candidates have to be considered for every vacancy. Accord- ingly, a list of thirty three senior-most candidates in the scale of Rs. G 2000-3200 was prepared on the basis of their respective dates of entry in the said grade. They were 'alerted' to be ready to appear for the interview by a letter dated July 12, 1991. All the thirty three senior-most employees so alerted belong to Scheduled Castes/Scheduled Tribes. Sri Williams was not among the thirty three. ll is then that Sri Williams approached the H Tribunal praying for setting aside the alert notice dated July 12, 1991, to U.0.1. v. V.S. CHAUHAN [B.P. JEEV AN REDDY, J.J revise the seniority list of all the grades in the Station Masters' category A protecting the seniority of general candidates and for a further declaration that rule of reservation cannot be applied against vacancies. He sought a further· declaration that the said rule of reservation is confined to recruit- ment lo the scale of Rs. 1200-2040 alone i.e., lo the lowest grade in the cadre – and nol to higher grades.
41. The Tribunal allowed the original application tiled by Sri Wil- liams following its earlier decision in Original Application No. 85 of 1989. The Tribunal declared that for the purpose of promotion under the general quota, seniority of the Scheduled Castes/Scheduled Tribes candidates should not be determined on the basis of the date of their actual promotion C but on the basis of the date on which they would have been promoted in due course if the rule of reservation were not applied. The Tribunal, however, declared that the seniority in the grade of Rs. 1600-2660 shall not be disturbed because the applicant had .not approached the Tribunal in time to challenge the seniority in that scale. The relief granted by the D Tribunal is in the following terms : "Jn the result, we allow the application and pass the following orders :·· We direct the respondents to revise the seniority of the applicants E and respondents in the scale of. Rs. 2000-3200 taking into account for the applicant his date of actual promotion and for the respon- dents 4 to 10 the dale on which they would have been 6'l"anted promotion in that grade but for the preferential treatment based on reservation. Promotion shall be made according to a selection based on the revised list.''
42. The learned Additional Solicitor General appearing for the ap- pellants (Union of India and the Railways) challenged the correctness of the decision of the Tribunal on the ground that it has evolved a principle of seniority not recognised by any rule or circular order of the Railway Board and is unsustainable in any event. He submitted, relying upon the G decision in Karam Chand v. Haryana State Elec/licity Board, (1989] Suppl. (1) S.C.C. 342 that the date of promotion to a particular grade or category determines the seniority in that grade or category. Inasmuch as the said thirty three candidates were alerted (called for) on the basis of their seniority for interview (for selection to eleven posts in the grade of Rs. H 2375-3500) \io valid grievance can be made by any one to such a course. c
43. Sri S. Murlidhar, learned counsel for Sri D. Williams submits that this is a demonstrable ca'c of injustice being done to general candidates by applying not only the rule of reservation at every stage of promotion but also because the rule of seniority enunciated by the Railway Board in its several circulars was not being followed by the concerned authorities. He submits that it is for the Railways to explain how the situation has come about where all the thirty three candidates being considered for eleven vacancies happen to belong exclusively lo Scheduled Castes/Scheduled Tribes categories. He submits that Sri Williams was admittedly a senior to Respondent Nos. 4 to 10 (in the original application, i.e., Scheduled Castes/ Scheduled Tribes candidates) in the grade of Rs. 130-240 but then the said Scheduled Castes/Scheduled Tribes candidates obtained rapid and preferential promotion to next higher grades, viz., Rs. 330-560, Rs. 425-640, Rs. 455-700, Rs. 1600-2660 and then to the grade of Rs. 2000-3200. They D reached the grade of Rs. 2000-3200 more than five years earlier to Sri Williams who was their senior in the lower category of Rs. 130-240. The result of faulty implementation of rule of reservation and rule of seniority is that all the top grades have come to be occupied exclusively by the reserved category members, a situation, which he characterises as a total negation of the Rule of Equality underlying Articles 16(1), 16(4) and 14. He emphasises the fact that the Railways have not explained in their counter as to how the above situation has come about except stating baldly that since the Scheduled Castes/Scheduled Tribes candidates were seniors to Sri Williams in the grade of Rs. 2000-3200, they were rightly alerted for interview.
44. It is true that this case presents a rather poignant turn of events. Of the thirty three candidates being considered for eleven vacancies, all are Scheduled Castes/Scheduled Tribes candidates. Not a single candidate among them belongs to general category. The learned counsel for the respondent is justified in complaining that appellants have failed to explain G how such a situation has come about. Not only the .iuniors are stealing a march over their seniors but the march is so rapid that not only erstwhile compatriots are left far behind but even the persons who were in the higher categories at the time of entry of Scheduled Castes/Scheduled Tribes candidates in the service have also been left behind. Such a configuration H could not certainly have been intended by the framers of the Constitution U.0.1. v. V.S. CHAUHAN [B.P. JEEVAN REDDY, J.] or the framers of the rules of reservation. In the absence of any explanation A from the authorities, the best we can do is to ascribe it ;:is faulty implemen- tation of the rule of reservation. In other \Vords, not only have the Railways not observed the principle that the reservation must be vis-a-vis posts and not vis-a-vis vacancies but they had also not kept in mind the rule of seniority in the pro1notion posts enunciated in the Railway Board's cir- culars referred to supra. Yet another principle which the authorities ap- peared to have not observed in practice is that once the percentage reserved for a particular reserved category is satisfied in that ~Grvice category or grade (unit of appointment) the rule of reservation and the roster should no longer be followed. Because of the breach of these three rules, it appears, the unusual situation complained of by the general candidates has come to pass. The learned counsel for general candidates i.s right that .such a situation is bound to lead to acute heart-burning among c the general candidates which is not conducive to the efficiency of ad- ministration. Be that as it may, the question is can the said situation be rectified. Probably not, until we direct all the promotions to be reviewed D and re-done. This may not be advisable at this distance of time. The enormity of the exercise should deter any one from launching upon such a course. It is evidently for this reason that the Constitution Bench has directed in R.K. Sabhmwal that the rule affirmed by them should be applied only prospectively. There is yet another circumstance : the Scheduled Castes/Scheduled Tribes candidates cannot be barred from competing for general posts. We are constrained lo remark that it is the application of rule of reservation in the matter of promotions_ – which entitles a reserved category candidate to avail of the benefit of reservation any number of times which is n1ainly responsible for such a situation.
45. While referring to the Railway Board's circulars/letters in civil appeals No. 9272/95 (arising from S.L.P. (C) No. 6468 of 1987 and batch), we had referred to the Railway Boards circular/letter dated .January 19, 1972 dealing with promotion to selection posts. (Para-3 of the said letter is in the same terms as Para-4 of the Railway Board's circular/letter dated August 31, 1982 referred to supra). The said Para-3 reads : "(3) The G seniority of candidates belonging to Scheduled Castes and Scheduled Tribes vis-u-11is others will continue to be detern1ine<l as al prcsr.::nt, i,e., according to the panel position in the case of categories \Vhcre training is not provided and in accordance \Vith the merit position in the exan1ination \Vhcre training is provided.' 1 But inasmuch as the post of Station Superin- 192 •· tendentff.I. in the scale of Rs. 2375-3500 is a selection post, the panel referred to in the said circulars/letlers Would mean the panel prepared at the time of making selections for promotion to the said post (Rs. 2375- 3500) – and not the panel/select list prepared at the_ time of entry into the· initial grade, viz., Assistant Station Master (Rs. 1200-2040). It also means that members in one panel take precedence over the members in the next panel. The applicaticiO- of the rule of seniority referred to in the said circular/letter – and other circulars/letters referred to supra most of which do not make any distinction between selection and non-selection posts has to be subject to the said limitation. ·46. It may be noticed that of the five grades in the Station Masters' category, two are non-selection posts while the remaining three are selecc tion posts. While in the case of non-selection posts the rule enunciated in the main opinion Virpal Singh Chauhan would be applicable, in the case of selection posts, the rule explained herein has to be followed. We may clarify that Rules (i) and (ii) in Para 28 of Virpal Singh Chauhan apply to D both selection and non-selection posts. Rule (iii) also applies to both but subject to the above rider. As explained in the main opinion, while there is no question of a "panel" being prepared at the time of promotion to non-selection posts, a panel has to be prepared for promotion to selection posts. 47. This appeal is accordingly allowed and the matter remanded to the Tribunal with a direction to dispose of the original application afresh in the light of the principles enunciated herein. No costs. CWIL APPEAL NO. 9275 OF 1995 ARISING OUT OF S.L.P. (C) NO. 4102 OF 1994: 48. Delay condoned. Leave granted. 49. The respondent [petitioner before the Central Administrative Tribunal (Allahabad Bench)], Sri Mohd. Sabir, joined the Railways as an G Office Clerk on December 20, 1957. He was promoted as head Clerk and then as an Assistant Superintendent. His promotion to the post of Assistant Superintendent was on March 12, 1985. The neXt promotion is to the post of Superintendent. He approached the Tribunal complaining that when two vacancies arose in the category of Superintendents, the Railway Authorities H called certain Scheduled Castes/Scheduled Tribes candidirtes for interview U.0.1. "· V.S. CHAUHAN [B.P. JEEV AN REDDY, J.] in preference to him though they are far juniors to _him. He gave three A instances, viz., (l) Sri A.P. Pramanik, who joined the service twenty years after hin1 and \Vho \Vas promoted as Assistant Superintendent only on February 22, 1988. (2) Sri Kamal Kishore, who was initially appointed as Class IV employee but who is being treated as senior lo the petitioner and (3) .Sri Amrendra Kumar Das, who was appointed as an Office Clerk twenty two years after his appointment and who came lo be promoted as Assistant Superintendent on February 25, 1986. The grievance of Sri Mohd. Sabir is this : the total sanctioned strength of the category of Superinten- dents (Grade Rs.2000-3200 RPS) is thirteen. There are three vacancies. Of the remaining ten, only two are general candidates and the remaining eight belo_ng to Scheduled Castes. Inspite of the same, the candidates now being considered for promotion are again Scheduled Castes candidates which is likely to result in an almost total reservation in the said category in favour c of the Scheduled Castes/Scheduled Tribes candidates. The case of the appellants (respondents in the original application) is that they are con- sidering the senior most candidates for the vacancies arising in the category D of Superintendents and, therefore, no objection can be taken with the said course by any one. 50. The Tribunal has allowed the original application in the following terms : "It appears that some mathematical mistake occurred on the part of the department in making the promotion and deciding the seniority. According to learned counsel in view of Vi1pal Singh Clzauhan's case these candidates are to be reverted. Whether they are to be reverted or not that is the matter for the respondents to decide all such observations which have been made in Vi1pal Singh case, but the respondents are directed to promote the members of the general community to the extent they arc entitled to by adher- ing to the seniority. Accordingly, since the matter is not decided finally by the Hon'ble Supreme Court, however those persons who have already been promoted, it is for the respondents to make G arrangement either for the excadre post for them otherwise if they are now interested, keep them for the post of Supdt. and will adjust the seniority list accordingly in accordance with Vilp.al Singh 's case. Let all these be done within the period of three months from the date of communication of this order. No order as to the costs." c 51. This appeal is liable to be dismissed applying the principle enunciated in R.K. SiJhharwa/. It is evident that out of the cadre-strength of thirteen, there \Vere thn.:.c vacancies on the date of filing of the original application before the Tribunal an<l of the ren1aining tl'.n posts, only t\vo \Vere occupied by the gencr~tl candidates and the remaining eight were occupied by the members of Scheduled Castes. Since the representation of Scheduled Castes is already far beyor.d their quota, no further Scheduled Castes candidates could have been considered for the remaining three vacancies. This means that the Scheduled Castes candidates can be con- sidered only as and along with general candidates but not as members belonging to a reserved category. The appeal is accordingly dismissed with the aforesaid clarification. CIVIL APPEAL NO. 9274 OF 1995 ARISING OUT OF SL.I'. (C) NO. 6924 OF 1988: 52. Delay condoned. Leave granted. 53. This mal!er pertains to promotion to the posts of Office Super- intendents Grade-I, Office Superintendent Grade-II and Head Clerk. The original application was filed by three candidates belonging to general category. Their grievance w,as that the representation of Scheduled Cas- tes/Scheduled Tribes candidates has already exceeded the percentage reserved for them a11d mspite of that the Scheduled Castes candidates are again being considered tor the vacancies arising in the said categories. By way of illustration, they pointed out, the sanctioned strength of the category of Head Clerks is six. Four arc filled up and there are two vacancies. Out of the four posts already filled up, two are held by general category candidates and two by the memoers of Scheduled Castes. The claim of the original petitioners (respondents in this appeal), which has been upheld by the Calcutta Tribunal, is that the remaining two vacancies should go only to general candidates. Similar direction h(:js been made with respect to other two categories as well. The Tribunal further directed that the rule of reservation must be applied with refe·rence to posts and not with reference to vacancies. The n1ain contention of the Union of India and the Railway Authorities in this appeal is that the rule of reservation in favour of Scheduled Castes/Scheduled Tribes should be applied to vacancies and not to total number of posts in the cadre. ll is submitted that the Tribunal was in error in holding that the rule of reservation should be so applied as to U.0.1. v. VS CHAUHAN [B.P. JEEV AN REDDY, J.] ·ensure that the posts held by Scheduled Castes/Scheduled Tribes do not A exceed that prescribed percentage. It is submitted that this was never the intention of the Constitution or the rule of reservation. 54. The only contention urged by the appellants herein is concluded against the appellants by the decision of this Court in R.K. Sabhanval, referred to hereinbeforc. Following the said decision this appeal is dis- missed with the clarification that the members of Scheduled Cas- tes/Scheduled Tribes can also compete as general candidates. The appellant shall follow and apply the said decision. No costs. Before parting with these appeals, we feel obliged to reiterate the C principle affirmed in Indra Sawhney that providing reservation in promo- tion is not warranted by Article 16( 4). The facts of these cases illustrate and demonstrate the correctness of the said holding. They also bring home the intractable problems that arise from such provision – problems that defy solutions. No more need we say on this aspect. The decision in Indra Sawhney speaks for itself. B.K.M. Appeal dismi5sed.