Monday, 4 December 2017

Important Judgement on Reservation on Promotion – Roster Point and Vacancy – Supreme Court Judgment dated 30.11.2017

Important Judgement on Reservation on Promotion – Roster Point and Vacancy – Supreme Court Judgment dated 30.11.2017

Important Judgement on Reservation on Promotion – Roster Point and Vacancy – Civil Appeal NO(S). 4751-4752/2011 dated 30.11.2017
CIVIL APPEAL  NO(S). 4751-4752/2011
1.  Though several contentions are raised in these appeals,  finally  the  learned  counsel  for  the appellants has come down to one submission, since according to him, he is entitled to succeed on that. That submission pertains to the direction in R.K. Sabharwal and Others v. State of Punjab and Others, (1995) 2 SCC 745, regarding post based roster in the matter of promotions.   It was made clear in R.K. Sabharwal (supra) that 10.02.1995 shall be the date for the purpose of following the post based roster. It  appears,  the  Respondent  No.2  was  still  not following the same which led to the decision in Union of India and Ors. v. Virpal Singh Chauhan and Others, (1995) 6 SCC 684.  In paragraph 33 in Virpal Singh Chauhan (supra) it was made clear that the Railways has to follow the principles as laid down in R.K. Sabharwal (supra).  Paragraph Nos. 29 and 33 of the same are extracted below:
“29. 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 to  the  number  of  posts  which  form  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 that this batch of cases were also posted for hearing before the Constitution Bench along with R.K. Sabharwal 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. Sabharwal.) Be that as it may, as a result of the decision in R.K. Sabharwal and the views/findings recorded by us hereinabove, the 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. Sabharwal.  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 cadre, class, category or grade (unit for the purpose of applying the  rule  of  reservation)  and  not  with respect to vacancies.
(iii)    So  far  as  Railway  Guards  in Railway service are concerned – that is the only category we are concerned herewith – the seniority position in the promoted category as between reserved candidates and general candidates 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 candidates and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch 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 Scheduled 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   ScheduledCaste/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.

xxx      xxx      xxx
33. Shri  Dhavan  points  out  yet  another anomaly. Where a candidate 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 on  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 Sl. No.18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at Sl. No.33. But when the occasion for appointment arises, the Scheduled Caste candidate at Sl. No.33 will  be  be  appointed  against  the  first roster-point, whereas the Scheduled Caste candidate at S. No.18, being a general candidate has to wait for his turn. This, the  learned  counsel  says,  amounts,  ineffect, to punishing the Scheduled Caste candidate  at  Sl.  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 disadvantages 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  appointment  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 herein concerned, of course, the rule of reservation/roster has already given rise to many distortions. According to them, the representation of the reserved  categories  in  Guard  Grade  ‘A’ Special has reached 40 per cent as against the prescribed 22.5 percent. It is not possible for us to 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. Sabharwal was not there and was not being followed. It may also be that such a result has been brought 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 effect now. The Constitution Bench in R.K. Sabharwal too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals are concerned, it is sufficient to direct that the Railway authorities shall hereinafter follows Rules (i), (ii) and  (iii) [stated in Para No.29] with effect from the date of judgment in R.K. Sabharwal, i.e., 10.02.1995. “ 
2.  However, it is the case of the Railways that it took some more time for them to take a call on the issue of following post based reservation and finally it was clarified on 14.09.2006 that the post based reservation would be followed only with effect from
16.11.2005.   In fact, it has been said so in an affidavit filed before this Court in an answer to a query from this Court in the order dated 25.10.2017. The query and answer given in the affidavit filed on
17.11.2017 read as follows:- 
 3.  We  are  afraid  that  this  stand  cannot  be justified.    This  Court  in  Virpal  Singh  Chauhan (supra), having directed the Railways to specifically follow the principles as laid down in R.K. Sabharwal (supra) with effect from 10.02.1995, the post based roster has to be followed from 10.02.1995.
4.  In the above circumstances, we dispose of these appeals with the following directions: 
ii. In the process, we also make it clear that  promotions  already granted to other incumbents  shall not be affected.  It is further made clear that as far as promotion to the post of Assistant Executive Engineer is concerned, the same shall be notional and as far as the post of Executive Engineer is concerned, both the appellants shall be entitled to the restoration of seniority, in case they are otherwise found eligible and entitled in the process of selection. We are informed that Appellant No.1 has already been promoted to the post of Executive Engineer, therefore, in his case only restoration of seniority and notional fixation of pay are required to be granted.  As far as Appellant No.2 is concerned, benefits regarding seniority shall be conferred in the light of the judgment referred to above, in case he is found eligible and entitled for the monetary benefits with effect from the date of his actual promotion to the post of Executive Engineer, as and when made.
5.  Pending  applications,  if  any,  shall  stand disposed of.
6.  There shall be no orders as to costs.

…………………..J. [KURIAN JOSEPH]
…………………..J. [S. ABDUL NAZEER]
NOVEMBER 22, 2017.

ITEM NO.109              COURT NO.5              SECTION XII

CIVIL APPEAL  NO(S). 4751-4752/2011
Date : 22-11-2017 These appeals were called on for hearing today.


For Appellant(s)   
Mr. C.K. Chander Shekhar,Adv.
Mr. S. R. Setia, AOR
For Respondent(s)
Ms.V. Mohana,Sr.Adv.
Mr.B. Ragunath,Adv.
Ms.N.C. Kavitha,Adv.
Mr.Vijay Kumar, AOR
Mr.A.K. Panda,Sr.Adv.
Ms. Alka Agrawal,Adv.
Mr. Raj Bahadur,Adv.
Mr. Mohan Prasad Gupta,Adv.
Ms. Sushma Verma,Adv.
Mrs. Anil Katiyar, AOR
UPON hearing the counsel the Court made the following
The appeals are disposed of in terms of the signed judgment.
(NARENDRA PRASAD)                              (RENU DIWAN)
COURT MASTER                                ASST. REGISTRAR
(Signed “Non-Reportable” Judgment is placed on the file)


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