Full Judgment Text
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PETITIONER:
JAGDISH LAL & ORS.
Vs.
RESPONDENT:
STATE OF HARYANA & ORS.
DATE OF JUDGMENT: 07/05/1997
BENCH:
K. RAMASWAMY, S. SAGHIRAHMAD, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
Present:
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice S. Saghir Ahmad
Hon’ble Mr. Justice G.B. Pattanaik
K.B. Rohtagi, Mrs. Aparna Rohtagi Jain, Advs. for the
appellants.
Prem Malhotra,Jasbir Malik and K.S. Chauhan, Advs. for the
Respondents.
The following Judgment of the Court was delivered:
JU D G ME N T
K. Ramaswamy, J.
Leave granted
Wehave heard learned counsel on both sides.
This appeal by special leave arises fromthe Division
Bench Judgmentof Punjab & Haryana High Court, made on
November 5, 1996 in C.W.P. No.8755/96.
The appellant-general candidates,viz., JagdishLal,
Ram Dayal and Surinderjit Kapil, challenged thepromotion of
the Scheduled Caste and Scheduled Tribe candidates(for
short, the ‘reserved candidates’), viz., Ram Asra,H.S.
Hira, Sant Lal and Ajmer Singh,as Superintendents in Class-
III Service ofHaryana Government. Respectiveappointments
of theappellant and the respondents have beenreflected in
the judgment ofthe High Court as under:
S.No Name SeniorityDt. of As As As As As
no.inapptt.Asstt. Dy. Supdt. Bud-R.E.
theseni-as Supdt. get (Cla-
ority listClerk Offiass
cer-I)
of 1.1.95 (Cla-
ss II)
------------------------------------------------------------
APPELLANTS:
1. Jagdish 22 24.11.58 1.12.68 27.10.871.4.90 - -
Lal
2. Ram Dayal 28 22.2.61 1.12.68 16.1.89 9.8.91 - -
3. Surinderjit 56 1.9.66 10.4.72 2.2.96 - - -
Kapil
PRIVATERESPONDENTS
(Reserved Category candidates)
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1. Ram Asra 48 31.1.66 22.9.71 26.5.82 4.9.87 - -
2. H.S.Hira 64 18.4.67 31.5.73 27.10.83 27.5.88 - 2.2.96
promoted
on ad hoc
basis for
a period
of 4
months
only and
31.5.96
on
regular
basis.
3. SantLal 91 16.8.71 6.11.78 4.11.87 8.2.90 --
4. Ajmer Singh 99 24.8.72 9.9.79 31.10.88 1.7.90 --
Inthe lowest cadre post,i.e., Clerks and Assistants,
in theEducation Department, admittedly, the appellantwere
senior to the respondent. Butas Deputy Superintendents,
Respondent Nos. 1 and2 werepromoted respectively on May
26, 1982 and October 27 1983, while the appellantswere
promoted on different dates, viz., October 27, 1987, January
16, 1989 and February2, 1996. Sixthrespondent, Sant Lal
was promoted on November 4, 1987, that is, prior to the
promotion of Surinderjit Kapil. Equally, respondentNo.7
Ajmer Singh also was promotedearlier to Ram Dayal and
Surinderjit Kapil on October 31, 1988. While working as
Deputy Superintendent,Ram Asra was promoted to the post of
Superintendent on September 4,1987; H.S. Hirawas promoted
as Superintendent on May 27, 1988 whilethe first appellant,
JagdishLal was promoted on April 1,1990 and Ram Dayal,
appellant No.2was promoted on August 9, 1991; SantLal,
respondent No.6 was promoted on February 8, 1990, that is,
prior to the promotion of Jagdish Lal as Superintendent.
Equally, Ajmer Singh, 7th respondent waspromoted as
Superintendent on July1, 1990, that is, prior to the
promotion of second appellant, Ram Dayal on August 9 1991.
While all of them were working as Superintendents, H.S.Hira
was further promoted on ad hoc basisw.e.f.February 2,
1996 for a period of 4 months and from May31, 1996 on
regularbasis,in hisown right, as Registrar (Education)
which post is now classified as Class I post. On June 4,
1996, the appellants filed a writ petition claimingthat
right from the post of Clerk upto the post of
Superintendent,the Class III Service of the Education
Department, they were senior to the reserved candidates.
Thoughthey were promotedon the basisof rule of
reservation applying the 100 point roster maintained by the
Government, they stolea marchover the appellants whowere
being members of the same Class III Service.They further
claimed thatthoughthe reservedcandidates has got
promotion to the different posts earlier to them, the
appellants still were entitledto be senior tothem for the
purposeof promotion to ClassI posts. As aconsequence,
they were entitled tobe considered for promotion before
consideration of the reserved candidates includingH.S.
Hira, the fifth respondent asRegistrar (Education). The
sheet anchor oftheir case was the decision of this Court in
Ajit Singh Januja & Ors. v. State of Punjab [JT 1996(2) SC
727]. The HighCourt dismissedthe writ petition interalia
on the ground of abnormal delayin challenging the promotion
of the reserved candidate to thepost of Asstt./Dy.
Superintendentsand Superintendents. Itobserved that though
the reserved candidates were promoted on different dates as
Superintendentsetc. earlier to the appellants, they having
become members of the Service in the lower cadres earlier to
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the appellant,were entitled to be considered for further
promotion to the higher ladders ofthe Service; their
promotions arenot vitiated byan error of law. The Haryana
Eduction Deptt.(State Service Class II) are governed by the
HaryanaEducation Deptt. (StateServiceGroup B) Rules,1980
(For short, the ‘Rules’) Rule11 of the Rules dealswith
seniority. By operation thereof thereserved candidates
became senior to the appellants in the respective cadres.
Fifth respondent, H.S. Hira waspromoted to Group ‘B’ Class-
I Service in his own right asa general candidate as there
was noreservation. Therefore, their promotion is valid in
law. It was also held thateven otherwise, since the
promotions of the reserved candidates came to be made prior
to thedecision in Sabharwal’s case,they could not be
declared invalid. The High Court has pointed out that "Here
it is important to mention that as on the dateof promotion
of respondent No.4 on the post ofSuperintendent, the
petitioners has notbeen promoted even as Deputy
Superintendents. Similarly, ason thedate ofpromotion of
respondent Nos. 4 and5 , thepetitioner No.2has notbeen
promoted as Deputy Superintendent andso far as petitioner
No.3 is concerned, he cameto bepromoted as Deputy
Superintended after almost 8 years and 6 months of the
promotion of respondent No.4; after 7 years and 9 months of
the promotion of respondent No.5; andafter almost 4 and 5
years and 6 months of the promotion ofrespondent Nos.6 and
7 as Superintendents. Thus the petitioners cannot have any
claim to be assigned seniority over and above respondent
Nos. 4to 7 as Superintendents." TheHigh Court negatived
the contentionthat the appellants were denied of right to
equality on accountof the applicationof rule of
reservation androster point violating Articles14 and 16 of
the Constitution. The High Court further pointed out thus:
"Acareful reading of the various
decisions of the Apex Court and the
decision of this Court, shows that
in R.K. Sabharwal’s case, their
Lordships were primarily concerned
with the interpretation of the
policy circulars issued by the
Government of Punjab regarding
reservation in favourof the
Scheduled Castes andBackward
Classes and operation of the roster
system. In Court was dealing with
circularsissuedby the Railway
Board with particular reference to
the letter dated 31st Aug., 1982
and held that the word "Panel" used
inthat circular meant the panel
prepared by the recruiting
authority at the time of initial
entry in the service andthat the
seniority of the employees in the
higher gradesmust also be
determinedwith referenceto their
panel position. This very principle
has been reiterated in Ajit Singh’s
case in which circular issued by
the Government ofPunjaband the
judgment of the Full Bench case in
Jaswant Singh’s case (supra) came
upfor consideration. TheDivision
Bench which decided Madan Lal’s
case simply applied the
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observations made in the three
decisions of the Supreme Court and
held that reserved categories
employeeshave no right to be
assigned seniority on thepromoted
posts over and above the general
category employees who were senior
inthe lower cadre andwho got
promotion in the next higher post
ona later date. However,in Akhil
Bhartiya Soshit Karamchari Sangh’s
case (supra) their Lordships
clarified that the principle laid
down in R.K. Sabharwal’scase and
Virpal Singh Chauhan’s case (supra)
will operate prospectively and not
retrospectively.
In our opinion, noneof these
decisionsis of any help for
interpreting rules relating to
seniority which have been extracted
above. Innone of the decisions,
their Lordshipsof the Supreme
Court interpreteda rulelike the
one whichis under consideration
before us.No doubt in Madan Lal’s
case a similarrules has been
referredto but instead of
interpreting that rules the
Division Bench has limited its
considerations made by the Supreme
Court in Ajit Singh’s case(supra).
We are of the opinion that in
view of the clearlanguage used in
the substantive part of Rule 11 and
its firstproviso, seniority will
have to be determined in different
cadres and categories of posts
because the services governed by
the Rulesof 1974and 1980 consist
of different cadres. Posts of
Registrar, Assistant Registrar
(Examinations), Budget Officer and
Superintendents constitute
differentcadresand, therefore,
seniority will haveto be
determined in each cadre
separately. Similarly, the post of
Deputy Superintendents, Assistants
and Clerks, recruitment towhich is
governed by ‘1974 Rules’ constitute
different cadres and seniority will
have to bedetermined separately in
each ofthese cadresand the
general principle laid down in Ajit
Singh’s case cannot be applied for
the purpose of determination of
seniorityin acase like the
present one.
On thebasis of above
discussion, we hold that:-
(i) the writ petition deserves to
bedismissed on the groundof delay
and laches in sofar as challenge
to the promotionof the
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respondents as
Superintendents/Registrar is
concerned;
(ii) the principles laiddown in
Virpal Singh Chauhan’s case (supra)
and Ajit Singh’s case (supra) will
operate prospectively andwill not
affect promotions ofreserved
category candidates which were made
prior to the decisionin R.K.
Sabharwal’s case (supra) or Virpal
Singh Chauhan’s case (supra);
(iii) thedecision in Virpal Singh
Chauhan’scase and Ajit Singh’s
case cannot be applied in a case
like thepresent one where the
seniority is required to be
determinedin different cadres and
categoriesof posts. In the absence
ofany challenge to the vires of
Rule 11the petitioners cannot
claim fixation oftheir seniority
above theRespondent Nos. 4 to 7
who were promoted as Deputy
Superintendents earlier than the
petitioner."
Shri Rohtagi, learned counselfor the appellant,
contended that in all the posts/grades startingfrom that of
Clerk to Superintendents in Class III Service and the posts
of Budget Officer, Assistant Registrar and Registrar in
Group ‘B’ Class I Service byoperation of ratio ofAjit
Singh’scase and Union of India v. Vir Pal Singh Chauhan
[(1995)6 SCC 684], seniorityis required to be determined
keepingthe seniority of the general and reserved candidates
in the lower grade/cadre in fact as allthe posts are of the
same Service. As soon as the general candidatesget promoted
to thehigher cadre, the inter se seniority of the general
candidates andthe reserved candidates is required to be
redetermined onthe basis of their inter se seniority in the
feeder grade/cadre. That was the view taken by this Court in
Veer Pal Singh Chauhan case. Even though the reserved
candidates were promoted earlier to the general candidates,
the inter se merit between the general candidates and the
reserved candidates inGroup ‘B’ Class I Service should be
redetermined. The promotion is requiredto be given to Class
I Service on that basis. Promotion at various levels in
Class II Service is also, accordingly,required to be given
and the seniority determined. As soon asthe general
candidates getpromoted, eventhough later tothe reserved
candidates, they have right to have their seniority
restored. As a consequence, the general candidates are
eligible to beconsidered forpromotion in higher posts
before consideration of the reserved candidates since for
the first timethe inter se rights are being considered in
Class-IGroup ‘B’ Service. This interpretationin Chauhan’s
case and Ajit Singh’s case is consistent with the principle
laid down in Articles14 and16 (1)of theConstitution
granting equality of opportunity to both the general aswell
as the reservedcandidates. Theabsencethereofwould negate
the right toequality to general candidates violating
Article14 and 16 (1) of the Constitution. The mere delay in
filing the writ petitions cannot madethe base to deny the
relief to the generalcandidates. The rightto equality
being a constitutionalmandate, as and when the right is
required to bedetermined, the Courthas toconsider the
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facts of each case anddecide it on merits. The High Court,
therefore, is wrong in law. Shri Prem Malhotra, learned
counselfor the State, contended that whatever be the
earlierlegal position, afterthe judgment inAjit Singh’s
case, the Government re-examined the matter and issued
proceedings restoring the seniority of the general candidate
in their respective feeder post/cadres from which reserved
candidates came to be promoted. The direction, it is
contend, is consistentwith and is in implementation of the
law laid down by thisCourt. The HighCourt, therefore, is
not right in refusing to grant the relief to the appellants.
Shri K.S. Chauhan, learned counsel for the reserved
candidates, contended that under Rule11 ofthe Haryana
Education Department Class III Service Rules, 1974[for
short, the "1974 Rules"] and Rule 11of the Rules provide
for determination of seniorityof the employees in thesaid
Service. The Service as per 1974 Rules consists of various
cadres,starting from Clerk toSuperintendentsin the Class
III Service. Under 1980Rules, the Gazetted Cadre consist of
BudgetOfficers, Assistant Registrar (Education) and
Registrar (Education)all of whichconstitute Class I
Service. Rule 11 of the respective Rules is a substantive
rules creating right toseniority. The moment the officer is
appointed to the service/cadre on putting probation, on
successful completion of the probation periodand on being
duly declared,they cease to be the members of the feeder
cadre from which theycame tobe promoted, Asand when the
vacancies arisein the posts inthe respective cadres as per
the roster point, the candidates,whether general or
reserved, are requiredto be considered for promotion and
duly promoted in accordance with theexisting Rules.They
became membersof theservicein therespective cadres of
Class III or Group B Class I Service. Themomentthey
started discharging the duties of the posts and on
declaration ofthe successfuland satisfactory probation
period,they became fullfledged members of that Service.
They also ceased to be members of the feeding cadre.
Therefore, themoment,the termination of probation was
declared, theyceased to be members of the Service of the
lower feeder cadres at various levels as cadre officers. The
subsequent promotions to the general candidates do nothave
the effect of denying the seniority secured bythe reserved
candidates dueto their early promotion. Even if promotions
to Group ‘B’ Class I serviceare to be made without
applying the rule of reservation, the reserved candidates
having become senior to general candidates, are entitled to
be considered for promotion as per Rules in their own merit.
Accordingly, the 5th respondent came to be promoted to the
post of Registrar (Education) in his own right. The
appellants have no right to claimseniority over the
respondent-reserved candidates. He also contendedthat
promotion to the reserved candidates is as member of the
Dalits and Tribes asa Class. Constitutional right to
equality enshrined under Article 14, the genus, and Article
16 (1), thespecies thereof, provide for protective
discrimination in favour of theDalit and Tribe. Appointment
by promotion to a post or Service under theState is a
constitutional right given byArticle16(1) or (4A) of the
Constitution. Therefore, when the reserved candidates are
promoted in accordancewith the Rules, applying rules of
reservation, and are promoted to posts as per the roster and
are appointed to the posts reserved for reserved candidates
as perthe roster, nounconstitutionality result and it is
not discriminatory or arbitrary, violating Article 14 of the
Constitution. He also contendedthat the reserved candidates
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were promoted long prior the general candidatesin Class III
and Group B Class I Service.The writ petition came to be
filed after Ajit Singh’s case. The HighCourt, therefore, is
right in dismissing the writ petitions on the ground of
delay as well.
Inview of the diverse contentions, the questionsthat
arise for consideration are: from what date seniority of
reserved or general candidates should be determined? Whether
the accelerated promotions given to the reserved candidates
to various cadres, applying the ruleof reservation,will
not enure to them the seniority from the date of respective
promotion? Conversely,whetheron thepromotions given to
the general candidates as per the roster point, the
promotions willhave the effectof giving them the seniority
over the reserved candidates in the respective
feeder/promotedcadres? Whether the view taken by theHigh
Court is correct inlaw? In order to appreciate the
contention, itis necessary torefer to Rule 11 of the1974
Rules and Rule 11 of the 1980 Rules. They read as under:
"1974 Rules : Rule 11 : The
seniority, inter-se seniority of
members of service shall be
determined by the length of
continuousserviceon a post in the
service;
Provided that where there are
different Cadres of categories of
the post in service, the seniority
will be determined separately for
each cadreor category of posts;
Provided further that in the
case of members appointed by direct
recruitment, theorder of merit
determinedby thecommission shall
not be disturbed in fixing the
seniority and candidates
recommended earlier shall be senior
tothe candidate recommended later;
Provide further that in the
case oftwo or more members
appointed on the same date, their
seniority shall be determined as
follows:
(a) a member appointed by direct
recruitment shall be senior to
a member appointed by
promotion or by transfer;
(b) a member appointed by
promotion shall be senior to a
member appointed by transfer;
(c) in the case of members
appointed bypromotion or by
transfer, seniority shall be
determined according to the
seniority ofsuch members in
the appointments from which
they were promoted or
transferred; and
(d) in the case members appointed
by transfer from different
cadres theirseniority shall
be determined according to
pay, preference beinggiven to
a member, who was drawing a
higher rateof pay in his
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previous appointment and if
the rates of pay drawn are
also the same, then by the
length of their service in the
appointments, andif the
length of such service is also
the same, the older member
shallbe senior to the younger
member.
‘1980 Rules’ : Rules 11 : Seniority
ofmembers of the service : The
seniority,inter se, of members of
the Service shallbe determined by
the lengthof continuous service on
a post in the service;
Provided that where there are
different cadres or categories of
posts in the service, the seniority
shall be determined separately for
each cadreor category of posts;
Provided further that in the
case of members appointed by direct
recruitment, theorder of merit
determinedby theCommission shall
not be disturbed in fixing the
seniority and candidates
recommended earlier shall be senior
to thecandidates recommended
later;
Provided further that in the
case oftwo or more members
appointed on the same date, their
seniority shall be determined as
follows:
(a) a member appointed by direct
recruitment shall be senior to
a member appointed by
promotion or by transfer;
(b) a member appointed by
promotion shall be senior to a
member appointed by transfer;
(c) in the case of members
appointed bypromotion or by
transfer, seniority shall be
determined according to the
seniority ofsuch member in
the appointment from which
they were promoted or
transferred; and
(d) in the case of members
appointed by transfer from
different cadres, their
seniority shall be determined
according topay, preference
beinggiven to a member, who
was drawing a higher rate of
payin hisprevious
appointment and if the rates
of pay drawn are also the
same,the y by the length of
their service in the
appointments, andif the
length of such service is also
the same, the older member
shallbe senior to the younger
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member."
1974 Rulesand 1980 Rules mutatis mutatis are the same.
Rule 2(g) of1980 Rules defines "Service" to mean Haraya
Education Department (State Service, Group B). Under Rule 3,
the Service shall comprise theposts shown in AppendixA to
the Rules. Rule 4 prescribes thegeneral eligibility
criteria and Rule 5 prescribes age requirement. Rule 6
prescribes educationalqualifications as perAppendix B.
Rule 8enumerates certain grounds fordisqualification for
appointment toany post in the service. Relevant part of
Rule 9 with which we are concerned reads as under :
"9. (1) Recruitment to the Service
shall be made,
(a) in the case of Registrar, -
(i) fromamongst the Assistant
Registrar (Examinations),
Budget Officer in the Service
or by promotion from amongst
the Superintendents in the
Service;"
Inother words, all feeder posts enumerated constitute
source of recruitment to the post of Registrar.
"or
(c) in thecase ofBudget Officer,-
(i) by promotionfrom amonst the
Superintendents; or
(ii) by transfer or deputation of
an officer of equivalent
grade/experience, already in
the service of Government of
Indiaor any State Government.
(d) in the case of
Superintendent,-
(i) by promotionfrom amonst the
Deputy Superintendents, or
Assistants in the Haryana
Education Department (State
Service, Group C) Services; or
(ii) by transfer or deputation of
an officer ofequivalent grade
already inthe service of
Government of India or of any
StateGovernment; or
(iii) by direct recruitment."
(2) Whenever any vacancyoccur or
isabout to occur in theService,
the appointing authority shall
determinein what manner such
vacancy shall be filled.
(3) All promotions, whether from
one gradeto another or from one
class of service to another class
of service, shall bemade by
selection based onmerit and taking
into consideration seniority but
seniority alone shall not given any
right to such promotions.
Onappointment so made, byoperation of Rule 10, person
appointed to nay post in the Service shall remain on
probation for a periodof two years, if appointed by direct
recruitment and one year ifhe isappointed otherwise
(promotion). However, under proviso thereto, among others,
any period before such appointment, spent on deputationon a
corresponding post or a higherpost shall count towards the
period of probation ofone year. Undersub-rule (2) ofRule
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10, ifin theopinionof the appointing authority thework
or conduct of aperson during the period of probation is not
satisfactory, it may, (a) if such person isappointed by
direct recruitment, dispense with hisservices; and (b) if
such person is appointed otherwise then by direct
recruitment (promotion) or transfer, (i) revert him to his
former post; or (ii) deal with him insuch other manner as
the terms and conditions of hisprevious appointment permit.
On completion of the period ofprobation by a person, under
sub-rule (3), the appointing authoritymay, (a) if hiswork
or conduct hasin itsopinion, beensatisfactory - (i)
confirmsuch person from the date ofhis appointment, if
appointed against a permanent vacancy;or (ii)confirmsuch
person from the date from which a permanent vacancy occurs,
if appointed against a temporary vacancy; or incase ofnon-
availability of permanent vacancy (iii) declare that he has
completed his probation satisfactorilyand awaits
appointment topermanent vacancy; or (b) If his work or
conducthas, in its opinion, not been satisfactory, - (i)
dispense with his services, if appointed by direct
recruitment orif appointed otherwise, revert him to his
former post ordeal with himin such other manner as the
terms and conditions ofhis previous appointment permits; or
(ii) extend hisperiod of probation andthereafter passsuch
order, as it could have passed on theexpiry of the period
of probation. Under proviso, however,the total period of
probation, including extension, if any, shall not exceed
three years. It would thus in the Service, either by direct
recruitment orby promotion/transfer, the incumbent officer
is required tobe put on probation andon completion of the
probation or extended probation period, uptoa maximum of
three years, the authority is enjoined to declare completion
of his probation. In other words, he stands confirmed to the
Service. He gets appointed to apermanent vacancy subject to
availability and thereafter he becomes full-fledged member
of the Service. It is settled legal positionthat
confirmation isan inglorious uncertainty. Continuous length
of service; if appointed according to the Rules on
consideration of claims of eligible persons ason thatdate
as perrules accords seniority and gets counted from the
date ofinitialappointment by direct recruitment/promotion/
transfer to thecadre/post.
The question thenarises: as to from what date the
seniority is required to be determined? As seen, underRule
11, the inter se seniority of the member ofthe Service
shall be determined bythe length of continuosserviceis a
post in the Service. However,exception are carved out to
the said general rule.Under the firstproviso, where there
are different cadres or categories of posts inthe Service,
the seniority shall bedetermined separately for each cadre
or category ofposts. The second proviso beingnot relevant
for our purpose, is omitted. Under the third proviso, in
case of two ormore members are appointed on the same date,
their seniorityshall be determined in the following manner:
"(a) a member appointed by direct
recruitment shall be senior to
a member appointed by
promotion or by transfer;
(b) a member appointed by
promotion shall be senior to a
member appointed by transfer;
(c) in the case of members
appointed bypromotion or by
transfer, seniority shall be
determined according to the
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seniority ofsuch members in
the appointments from which
they were promoted or
transferred;"
[Class (d) being irrelevant
for the present purpose, is
omitted]
Conjoint reading of the provisions referred to
hereinabove would indicate that according to1974 Rules,
there exist in the Servicecadre/grades consisting of
Clerks, Assistants, Deputy Superintendents and
Superintendentsin the Service.Similarly, under 1980 Rules,
there exist cadre/grade of Budget Officer, Assistant
Registrar and Registrar. It is also seen that under the
Rules, appointment by promotion to Grade B-Class-I, i.e.,
Gazetted cadre, is tobe made fromamongst the Budget
Officers or Superintendents. Therefore, promotion to the
post of Registrar (Education)one ofthe feeder posts is
Superintendent.It is seen that as soon as a person is
appointed to a cadre/grade, he starts discharging the duties
of appointmentto thepost and his seniority is determined
on thebasis of that date unless he is appointed onlyas a
stop-gap arrangement or on adhoc basis andde hors the
Rules.In case of regular appointment, the appointing
authority is enjoinedto put him on probation and on
successful completion of the probation period of oneyear
including the period spent onthe higher post (s), unless
the probation is extended upto a maximum of three year, he
stand confirmedin the promotedpost. Thus, hisconfirmation
dates back to his initial dated of appointmentby promotion
and by operation of Rule 11and the proviso referred to
hereinabove, the seniority stands determined from thedate
of hisappointment tothe cadre/grade. It would thus be
manifest that as soonas the candidate, whether general or
reserved, getspromoted from one cadre, e.g., a Clerk is
promoted as Assistant on his completion of probation and on
declaration thereof, he gets confirmed as Assistant and
becomesa member of the Service fromthe initial date of
appointment bypromotion. Equally, when an Assistant become
DeputySuperintendentand Deputy Superintendent becomes
Superintendent,the method of computation of seniority would
be thesame, viz., as soon as his probation isdeclared, he
becomes a member of the Service.On availability of
permanent post,he getsappointed to the post and thereafter
ceases to be a memberof thefeeder/lower cadre. Inthis
regard, under Fundamental Rule 14-A(a) a Government
Servant’s lienon a post may, in no circumstance, be
terminated, even with his consent, if the result will be to
leave him without a lien or a suspended lien upon a
permanent post.Under Fundamental Rules14-A(d)a Government
servant’s lienon a post shall stand terminated on his
acquiring a lien on apermanent post(whether under the
CentralGovernment or a State Government) outside the cadre
on which he is borne. A conjoint reading,thus, would
establish that a Government servant shall always have alien
on thepost and simultaneously, he shall not have right to
hold any lien on morethan one post. In other word, the
articulated bea member of twopost/service/grade/cadre nor
is he eligibleto holdlien ontwo posts. On promotionfrom
the post ofClerkas Assistant, on successful and
satisfactory completion of probation and declaration
thereof, he becomes a member of the Service inthe cadre of
Assistant and so on till the cycle is complete. Vice versa,
there are various stages of promotion to the higher echelons
of Service andthe same resultant consequence follow. The
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same principle equally applies in GroupB Service under1980
Rules. This principle is applicable equally to the general
as well as reserved candidates. On this principle, there is
and there should be no dichotomy andthis is the settled
service jurisprudence. In the case of appointment by
promotion of Dalits and Tribes, nodifferent yardstick
should be applied. This is the normal/common phenomenon is
servicejurisprudence in Service under, either the Union
Government or the State Government, or for that matter,
semi-Governmentauthorities/corporations/undertakings.
The question thenis : whether such a rule becomes
arbitrary or violativeof equality enshrined under Article
14 read with Article 16 (1)of the Constitution,when
appliedto Dalits andTribes?It would be appropriate at
this stage to have the benefit of case law onthe subject.
In theAll India Administrative Service (SAS) Association &
Ors. V/s. Union of India [(1993) Supp1 SCC 730], in paras
14 and15, a Bench ofthree Judges, to which one of us, K.
Ramaswamy, J., was a member, has held that no one has vested
right to promotion orseniority butan officer has an
interest in seniority acquiredby working out the rules. In
T.R. Kapoor V/s. Stat of Haryana [(1986) Supp. SCC 584 at
595], this Court observed that "unless it isspecifically
provided in the rules, theemployees whoare already
promoted before the Amendment of the Rules, cannot be
reverted and their promotions cannot be recalled". In State
of Maharashtra V/s. ChandrakantAnant Kulkarni [(1981) 4 SCC
130], another Bench ofthree Judges inparagraph 16 atpage
141 had held that "(M)ere chances of promotion are not
conditions of service, and the fact that there was reduction
in thechancesof promotion did not tantanmount to a change
in the conditions of service." In K. Jagadeesanvs. Union of
India & Ors. [(1990) 2 SCC 228 at 230], in para 6, it was
held that "a right to be considered for promotion is aterm
of service, but mere chances of promotion are not"; soalso
the eligibility for promotion. Passing of thedepartmental
examination isnothingbut a mere chance of promotion. In
Ashok Kumar Gupta V/sStat of U.P. [1997 (3)SCALE 289 at
299, para 22] this Court comprising allthe three of us, had
held that "in service jurisprudence, a distinction between a
right and interest hasalways been maintained.Seniority is
a facetof interest. When the Rules prescribed the method of
selection/recruitment, seniority is given as per the ranking
given and governed bysuch as was laid inthe rules".
Similarview taken inA.K. BhatnagarV/s. Union of India
[(1991)1 SCC 544] was upheld by this Court. In Akhil
Bhartiya SoshitKarmchariSangh V/s. Union of India [(1996) 6
SCC 65]to which tow ofus, K. Ramaswamy and G.B. Pattanaik,
were members, this Court has held that no member of the
servicehas a vested right to promotion or seniority but an
officerhas an interestin seniority acquired by working out
the rules. In Md. Shujat Ali & Ors. etc. v. Union of India &
Ors. etc. [(1975) 1 SCR 449] a Constitution Bench hadheld
that arule which confers a right of actual promotionor a
right to be considered for promotion is a rule prescribing
conditions of service.In Mohd. Bhakar vs. Krishna Reddy
[1970 SLR 268], a Bench of three Judges had held that any
rule which affects the promotion of a person, relates to
conditions of service.In State of Mysore v. G.B. [1967
S.L.R. 753] a Bench of two Judges hadheld that rule which
merely affectschancesof promotion cannot be regarded as
varyingthe condition of service. Chances of promotion are
not conditionsof service. InSyed Khalid Rizvi & Ors. v.
Union of India& Ors. [1993 supp. (3) SCC 575]to which one
of us K.R.S., J. was amembers, it washeld inpara 31that
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no employer hasa rightto promotion; the only right isthat
he is entitledto be considered for promotionaccording to
rules. Chancesof promotion are not conditions of service
which defeasible in accordance with the rules. Thus, it is
settledprinciple in the service jurisprudence thatmere
chancesof promotion are not conditions of service and a
candidate appointed inaccordance withthe rule and steal a
march over hiserstwhile seniors in the feeder/lower cadre.
On his having satisfactorily completed probation and
declaration thereof, he is given seniority in the higher
cadre. He become a member of the higher cadre from thedate
of starting discharging duty of the post towhich he is
promoted unless otherwise determined in accordance with the
rules. From that date, he ceases to be a Member of the
feedercadre/grade from which hewas promoted. The
hierarichal promotions tovarious cadres mentioned
hereinabove operate in the same manner and thereby on
successive promotion tovariouscadres/grades, though in the
same service, on would steal a marchover other, bythey
generalor reserved candidates.
On promotion to the higher cadre, the reserved
candidate steals a march over general candidates and becomes
a member of theservicein the higher cadre or grade earlier
to thegeneralcandidates. Continuous length of service
gives him the seniority cannot get re-opened, after the
generalcandidate getspromoted to the highercadre/grade,
though he was erstwhile senior in the feedercadre/grade.
Would adual principle of seniority of Dalits and Tribes and
general candidatesis valid and constitutionally
permissible? If a positive findingin that behalf is
recorded, it would runcontrary to thebed role of judicial
precedents andit would be fraughtwith irreconcilable
incongruities in matter of integratingemployees drawnfrom
different streams to forge intocommon seniority or promoted
according to rule whichhitherto is well-trenched in service
jurisprudence. In State of U.P. v. Dr. Dina Nath Shukla &
Anr. [JT 1997 (2) SC 467 para 8] itwas held that the
craving for equality generates clash of interest and
competing claims amongst thepeople, for emancipation of
the Dalits and Tribes from the pangs ofabsolute prohibition
of legal equality under Articles 15(1) and 16(1). Under
Article15(2) to (4) and Article 16(4) and 4(a) readwith
the DirectivePrinciples, protective discrimination has
poured forth practical content,softened the rigour of legal
equality andgiven practical content ofequality in
opportunity infavour of unequals to hold an office orpost
under the State in the democratic governance.In paragraph
9, it is further statedthat ina democracy governed byrule
of lawevery segment of the society is entitled to a share
in thegovernance of the country. Permanent bureaucrayis a
facet of our democraticgovernance and an integral scheme of
the Constitution. Recruitment to a post or anoffice under
State is governed by the Constitution, law and the rules
made under proviso toArticle309 ofthe Constitution or
administrative instructions in the absence of statutory
rules. Protective discrimination has been upheld bythis
Court which connotes mitigation of absoluteequality in
order to achieve equality in result in favour of the
disadvantaged segmentsof thesociety. Appointment to an
office or postgives an opportunity to haveequality of
status and dignity ofperson.The object, thereby, is to
provideeconomic equality, Social equality gets realised
throughfacilities and opportunities given to the Dalits and
Tribes to livewith dignity and withequal status in the
society. Economic equality also gives socio economic
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empowerment, ameasureto improve excellence in everywalk
of life. Equalopportunity ofappointment to a post or
office is available to all citizens and legitimately and
constitutionally entitles themto consider their claims for
employment/appointment to an office or post in accordance
with rules. Article 335mandates the State thatin the field
of competitionthe claims of Dalits and Tribes shall be
taken into consideration consistentlywith the maintenance
in appointment of promotion in favour of Dalit and Tribes is
a constitutional rightunder Article 16(1) and 16(4A)read
with Article 46 and other related Articles. Reservation in
promotion was upheld by this Court inR.K. Sabarwal &Ors.
v. State of Punjab & Ors. [(1995) 2SCC 745]. It iswell
settledconstitutionalprincipal that reservation in favour
of Dalits and Tribes is in favour of the community but not
to theindividuals belonging to thatcommunity, although
other ultimate beneficiaries are individuals. In Dr. Jagdish
Saran & Ors v. Union of India [(1980) 2 SCC768], it was
held that Dalits and Tribes for the purposeof admission
under Article 15(4) stand as aclass. "The Constitution has
assigned a special place for that factum and the problems of
inherited injustice demanding social surgery which, if
appliedthoughtlessly in other situation, may by a remedy
which extenuates theirmalody." In other words, in social
surgeryof effectuatingactuality in results, reservation in
favour of Dalits Tribes is aresultant surgical remedy to
the malody. InDr. Pradeep Jain & Ors. v. Union of India &
Ors. [(1984) 3 SCC 654] which wasapproved in Indira
Sawhney’s case, discrimination. Now the concept which takes
in itssweep every process of equalisation under the canopy
of protective discrimination.
Equality must not remain mere idleincantation butmust
become a vibrant living reality for the large masses of
people.In a hierarchical society with an indelible feudal
stamp and incurable actual inequality, it is absurd to
suggest thatprogressive measuresto eliminate group
disabilities and promotecollective equality are
antagonistic to and anathima of equality on the groundthat
every individual is entitled to equality of opportunity
based purely onmerit mantra judged by the marks obtained by
him. We cannotcountenance such a suggestion,for to do so
would make the equality clause becomessterile and
perpetuate existing inequalities. Equality of opportunity is
not simply a matter of legal equality. Its existence depends
not merely onthe absence of disabilitiesbut on the
presence of abilities and opportunity for excellence ineach
cadre/grade. Where, therefore, there isinequality, in fact,
legal equality always tends to accentuate inequality. It is,
therefore, necessaryto take into account de facto
inequalities which exist in the society and in order to
bring about real equality, affirmative action fills thebill
and allows to give preference to the socially and
economically disadvantaged persons byinflicting handicaps
on those more advantageously placed. Such affirmative
action though apparently discriminatory, is calculated to
produceequality in result on abroaderbasis by eliminating
de facto inequalities and placing the weaker section of the
community on afooting of equality with thestronger and
more powerful and a disadvantaged section so thateach
memberof the community, whatever is by his birth,
occupation or social position, may enjoy equal opportunity
of using to thefull, his natural endowments ofphysique, of
character and of intelligence. This principlewas approved
and reiterated by the Constitution Bench in Marri Chandra
ShekharRao v.Dean, Seth G.S. Medical College &Ors.
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[(1990)3 SCC 130]. It would, thus, i.e. , a settled
constitutional principle that facilities and opportunities
should be given to the Dalits and Tribes forpromotion to
higher cadre or grade, gain accelerated seniority by the
Dalit and Tribes and delimit the seniority of the erstwhile
generalcandidates in the lowercadre or grade in accordance
with the roster point. Thereby, the Dalits and Tribes are
gettingand accelerated placement in the higher echelons of
cadre or grade. Itis constitutionally a permissible
classification bearingreasonable nexus to the object of
equality in result ascomponent of economic and social
empowerment. It is just and reasonableprocedure prescribed
to achieve theconstitutionalobjectives ofequality in
result,of status andopportunity anddignityof person to
integrate themin themainstream of the national life, as
per the arch of theConstitution, i.e., the Preamble,
Article14, 15,16 and 46 and all other related Articles of
the Constitution consistentwith the efficiency of
administrationenvisaged under Article 335 of the
Constitution.
InA.K. Gupta & Anr. v. State of U.P. & Ors. [1997 (3)
SCALE 289 at 302 para28] we have held that as regards the
competing claims between Dalits and Tribes onthe onehand
and the general candidates onthe other, Article 14 and
16(1) render an balancing right toequality in result
adjusting the competingrights of all sections.In Ahmedabad
St. Xaviers College Society &Anr. v. Stateof Gujarat &
Anr. [(1975) 1 SCR 173 at 252] a largerBench of nine Judges
had held that to establish equality,if it would require
absolute identical treatmentof both the minority and
majority, thatwould result only in equalityin law but
inequality in fact. Equality inlaw precludes discrimination
of anykind whereas equality in fact mayinvolve the
necessity of differential treatment in orderto attain a
result which establishes an equilibrium between different
situations. This Courtheld that the fundamental rights are
to be construedbroadlyso as to enablethe citizen to enjoy
the fundamental right by succeeding generations. InA.K.
Gupta’scase, therefore, it was held that "to give adequate
representation to the Dalits and Tribes in all posts or
classesof posts of services to make it areality and
truism,facilities andopportunities are required to be
provided to the Dalits as enjoined in Article 38 for the
purposeof achieving equalityof representation as areal
content. In para 30, it wasobserved thatin abstract
application ofequality underArticle14, every citizen is
treated alike without there beingany discrimination.
Thereby, the equality, in fact,subsists. Equality prohibits
the State frommakingdiscrimination among citizen on any
ground.However, inequality in fact withoutdifferential
treatment between the advantaged and disadvantaged subsists.
In order to bridge the gap between inequality in results and
equality in fact, protective discrimination provides
equality of opportunity . Those who are unequals cannot be
treatedby identical standards. Equality in law certainly
would not be real equality. In the circumstances, equality
of opportunity depends notmerelyon the absence of
disparities but on the presenceof abilities and
opportunities. De jureequality must ultimately finds its
raisond’etre in de factoequality. TheState must,
therefore, resort to protective discrimination of the
purposeof making people, who are factually unequally, equal
in specific areas. It would, therefore,be necessary totake
into account defacto inequality in which exists the society
and totake affirmative action by giving preference and
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making reservation in promotion in favour of the Dalits and
Tribesor by inflicting handicaps onthosemore
advantageously placed,in order to bring about equality.
Such affirmative action, though apparently discriminatory,
is calculated to produce equality inresult on a broader
basis by eliminating de facto inequality and placing Dalits
and Tribes on the footing of equality with non-tribal,non-
Dalit employees so as to enable them toenjoy equal
opportunity inorder to unfold their fullpotentially.
Protective discrimination envisaged in Article 16(4) and
16(4-A)is thearmourto establish the said equilibrium
betweenequality in lawand equality inresultsas a fact to
the disadvantaged. The principle of reservationin promotion
provides equality in results.
Itis truethat Indra Sawhney’s ratio on reservation in
promotion became a torch bearer to the general candidates
but before itcould become path-finder, the Parliament
enacted77th Constitution (Amendment) Act and brought on the
Constitution Article 16(4A) asa part of the Constitutional
Schemeof reservation in promotion to a post. The
legislative judgment put off the stream generated by Indra
Sawhney’s case. It isconstitutionally a valid principle
which was declared to be so in several judgments referred to
and followed and ultimately held as valid inA.K. Gupta’s
case.
Vir Pal Singh Chauhan’s case followed byAjit Singh’s
case createdeuphoria among general candidatesthat
reservation in promotion, though till then had by the Dalits
and Tribes, slided backin the seniority scale to the bottom
as and when thegeneralcandidates in their ownturn had got
promotion to higher echelons of service. The questionis :
whetherit is really so and whetherit interjected the
normal servicejurisprudence of continuous officiationin a
post or a cadre, unless promotion is not in accordancewith
rule? In Direct Recruit Class II Engineering Officers’
Association v.State of Maharashtra & Ors. [(1990) 2 SCC
715], the Constitution Bench had held in respect of
preposition No.1 in paragraph47 thatonce anincumbent is
appointed to apost according to rule,his seniority has to
be counted from the date of his confirmation. The corrolary
of theabove rules is that where the initial appointment is
only ad hoc and not according to rules and is madeas a
stop-gap arrangement, the officiation in such post cannot be
taken into account for purpose of determination of the
seniority. to appreciate the effect and the real impact of
the above two decision, it is necessary to look into the
facts therein. In Vir Pal SinghChauhan’s case the principle
consideration for promotion was seniority under the rules
made by the Railway Establishment Code. The Railway Board
issued circular letterdated August 31, 1982 which referred
the word ‘Panel’. It was a case of pure seniority rule.
Explaining themeaningof theword ‘panel prepared by the
recruiting authority and in the absence of any specific
rules as regards the nature of the effect ofseniority in
the higher cadre/grade, the Bench of two Judges considered
its effect andheld that theword ‘panel’ used inthat
circular meant the panel prepared by the recruiting
authority at the time of initial entry into service andthat
the seniority of the employees in the higher grades wasalso
held to be determine with reference tothe placement in the
initialappointment. It is settled legal position that the
ratio decidendiis based upon the factsactually decided. It
is an authority of those facts. In thelight of the factual
position culled out by this Court on the panel position in
the lower cadre ofthe general as wellas reserved
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candidates, this Courtin VirPal Chauhan’s case, hadheld
that though the Dalitand Tribes were promoted earlier to
the general candidatesto a higher cadre/grade, in the
absence of such apanel prepared in the promoted
cadre/grade, the panelprepared in thelower cadre remained
to be operative. Consequent, on promotion ofthe general
candidates, the inter se seniority vis-a-vis reserved
candidates remained the same as was found in the lower
cadre. That wasthe real ratio in that case, onthe basis of
the circular letter referred to hereinbefore.Accordingly,
the said ratio, as pointed out by theHigh Court, does not
help the appellants-general candidates for the reasonthat
Rule 11 of 1974 Rulesor 1980Rules expresslyoccupies the
field and determines their inter se seniority ineach
cadre/grade with reference to thedate on which the
candidates, beit reserved orgeneral, entered into the
servicein the promotedcadre/grade. Vir Pal Chauhan’s case,
therefore, is a classof its own and of no assistancewhen
the rules occupy the field governing the seniority position
in a particular manner. The Rules alone are required to be
lookedinto and senioritydetermined in accordance
therewith. In fact, this Court in Vir Pal Chauhan’scase
furtherpointed out that when reserved candidateswere
promoted from the initial stage to further stage, circular
letter has no application and the seniority ofthe reserved
candidates wasrequired to bedetermined on the basis of
seniority position occupied by him in the promoted post.
This clearly explains that this Court did not intend to
depart from the normal service jurisprudence; nor did it
intend to lay down any separate ruleof interpretation in
determining inter se seniority of the reserved candidates
and the general candidates and theirfusioninto common
seniority in the higher echelons overthe erstwhile junior
reserved candidates. Equally, the ratio in Ajit Singh’s
case, as rightly pointed out by the High Court, is
inapplicable. It did not lay down any separaterule inthat
behalf.In that case it was not brought to the notice of
this Court the existence of operation ofthe service
conditions andseniority rulelike Rule 11 of the Rule in
this case ineach grade/cadre or services in Punjab &
HaryanaSecretariat service orCivil Services.On the other
hand, this Court was invited to deal with the circular
letter issued by the Punjab & Haryana Government, on the
subjectof reservationrules.The primary question before
the Full Benchof Punjab & Haryana High Court in Jaswant
Singh v. Secretary, Govt. of Punjab & Haryana [1990 (4) SLR
257] was whether the reservedcandidates wereeligible for
consideration for promotion to the general vacancies? It was
held that theywere entitled.The further question was :
whethertheir placement should be in the roster point
reserved for ScheduledCastes and Backward Classes, orthey
are required to be adjusted in the general vacancies
specified inthe roster? In Sabharwal’s case, the
Constitution Bench upheld that the reserved candidates are
entitled to competewith the general candidates for
promotion to the general postin their own right. On their
selection, they are to be adjusted in the general post as
per the roster and the reserved candidates should be
adjusted in the points ear-marked inthe roster to the
reserved candidates. Since a slight deviation tothat
principle was required to be consideredin other cases,Ajit
Singh case andother cases were delinked. These caseswere
dealt with in Ajit Singh’s case. Therein the question was as
to theeffect of the consideration of interse claims of
reserved candidatesand generalcandidate to the
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post/vacancy availableto thegeneralcandidates. Inthat
background, this Courtconsidered in Ajit Singh’s casethat
since the reserved candidatespromoted accordingly to the
principal of reservation earlier to the general candidates
were not considered, the general candidates and reserved
candidates arerequired to the considered forpromotion to
the general vacancies on the basis oferstwhile seniority.
the inter se seniorityin the lower cadre is required to be
considered andto that extendthe advantagehad by the
reserved candidates ofearlier promotion was not relevant.
It is also tobe noted that the criteria forpromotion in
Ajit Singh’s case was seniority-cum-merit or merit-cum-
seniority in which event the principle of seniorityalso
gains relevancy and is one ofthe factors to be takeninto
consideration. It is settled legal position that if the
selection is to be made for promotion on theprinciple of
merit and ability, the more meritorious, though junior,
steals a marchover the less meritorious senior candidate,
be it general or reserved candidate. In this case H.S.Hira
has stolen a march over his senior Dalits. Where merit and
abilityare approximately equal, onlythe seniority in the
lower cadre becomes relevant.When the merit-cum-seniority
or seniority-cum-merit principle is to be applied, as stated
earlier, the senioritybeing a relevant factor, this Court
in Ajit Singh’s case has held that the advantage of prior
promotion to the reserved candidates is not material
circumstance when the general andreserved candidates
together areconsidered for promotion to a higher
cadre/grade. The ration in Ajit Singh’s case should be
understood in the above backdrop andperspective. If so
understood, this Courtin Ajit Singh’s case has notlaid
down any contra principle tothe settled legal service
jurisprudence; nor it intended to cut down the effect of the
Rule in vogue for determination of the interse seniority
in eachcadre/grade in accordance with the Rules. Therefore,
it is a simplistic euphoria tothink that at all events the
earlierpromotions hadby the reservedcandidates havebeen
slide down andput back in the vanguard of the erstwhile
seniority position in the feeder cadre/grade. Ifthis
clarityof though iskept in fore-front, there is no
occasion to adopt a mistaken application of theprinciple to
all facts in all circumstance. In Ajit Singh’s case,this
Court did not,therefore, intend to lay down any principle
contrato the settled legal principle that continuous
officiation toa promoted postin accordance with the rules
gives right toseniority. Theobservation of this Court in
Ajit Singh’s case thatany other rule of construction would
be arbitraryviolating Article 14is required to be
understood in that backdrop and context. As stated inA.K.
Gupta’scase, it was held that both generaland reserved
candidates being citizen of India areentitled to equality
of opportunityassuredunder Article 14 and 16(1). Asheld
in Thomas v. State of Kerala [1976 (1) SCR 906]and approved
in Indra Sawhney’s case, theright to equality to the
reserved candidates isa fundamental right under Article
16(1) read with Article 14which itself guarantees a
fundamental right. After the Constitution (77th Amendment)
Act, Article 16(4-A) gives fundamentalrights to the Dalits
and Tribes to promotionto a post or a service in the State,
The protectivediscrimination is a contour to bring about
equality in results tothe Dalits and Tribes. It is a facet
of equality under Article 14, 15 and 16of the Constitution.
Therefore, when competing rights betweengeneral and
reserved candidates require adjudication and adjustmentwith
the right of general candidates, the doctrineof violation
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of Article 14 has no role to play since protective
discrimination itself is a facet of Article 14 and itdoes
not again deny equality to the reserved candidates.
Therefore, in Ajit Singh’s case whenthis Court hadheld
that such a rule of reservation would be violative of
Article14 andarbitrary, it does notappear to have meant
to destroy the protectivediscriminationwhich is a
consistent thread running through all situationswhen
reservation wasappliedin favour of the reserved candidates
and the equality in results in achieved. Thus, we hodthat
the euphoria had by the general candidates from the ratios
in VirPal Chauhan’s and Ajit Singh’s cases isshort lived;
it does not help in so realising thecorrectimplications
arisingfrom the aforesaid ratios. It is settled lawthat
administrative instructions supplementthe law but do not
supplant thelaw. It fills only yawning gaps. The
administrative instructions issued by the Haryana Government
after Ajit Singh’s caseflies in the facet of statutoryRule
11 of the rules. Therefore, it crushes itself with the
grinding teethof theabove statutory Rule11 and the
principle. Thus considered, we hold that the view taken by
the High Courtin that behalfis correct in law and is not
vitiated by any infirmity in law. We further hold that the
reserved candidates became senior to the general candidates
in each successive cadre/grade from Assistant to
Superintendent in Class III Service and 5th respondent in
Class I Service. Theirseniority is not and cannot have the
effect of getting wiped out after thepromotion of general
candidates from their respective dates of promotion. The
generalcandidates remain junior in higher echelons to the
reserved candidates as was heldby the High Court.
That apart, as this Court has repeatedly held, the
delay disentitles the party to the discretionary relief
under Article 226 or 32 of the Constitution. It is not
necessary to reiterateall catena ofprecedents inthis
behalf.Sufficeit to state that the appellant kept sleeping
over their rights for long andelectedto wakeup whenthey
had the impetus from Vir Pal Chauhan and Ajit Singh’s
ratios.But Vir Pal Chauhan and Sabharwal’s cases, kept at
rest the promotion already made by that date,and declared
them as valid;they were limited to the question of future
promotions given by applying the rule of reservation, to all
the persons prior to the dated of judgment in Sabharwal’s
case, which required toexamined in thelight of law laid in
Sabharwal’s case. Thus earlier promotions cannot be
reopened? Onlythose cases arising after that date would be
examined in the lightof thelaw laid down in Sabharwal’s
case Vir Pal Chauhan’s case and equally Ajit Singh’s case.
If thecandidate has already been further promoted to the
higher echelons of service, his seniority is not open to be
reviewed. In A.B.S. Karamchari Sangh’s case,Bench of two
Judge to whichtwo ofus, K.Ramaswamy and G.B. Pattanik,
JJ. were members, hadreiterated the above view and it was
also held that all the prior promotions are notopen
judicial review. In Chander Pal & Ors. v. State of Haryana
[W.P. (C) Nos. 4715-18/93 datedDecember 4, 1996] a Bench of
two judges consisting of S.C. Agrawal and G.T. Nanavati, JJ.
considered theeffect of Vir Pal Chauhan’s,Ajit Singh,
Sabharwal and A.B.S Karmachari Sangh’s cases and heldthat
the seniority of those respondents who had already retired
or promoted tohigherposts could not be disturbed. The
seniority of the petitioner therein and the respondent who
were holding the post in the same levelor in the same cadre
would be adjusted keeping in view the ratioin Vir Pal
Chauhanand Ajit Singh’s cases; but promotion, if any, had
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been given to any of them during the pendencyof thiswrit
petition, was directednot tobe disturbed. Therein, the
candidates appointed on the basis of economic backwardness,
socialstatus or occupation etc.were eligible for
appointment against the post reservedfor backward classes
if their income did not exceed Rs. 18,000/- per annum and
they were given accelerated promotion on the basis of
reservation. In that backdrop,the above directions came to
be issued. In fact, it did not touch upon Article 16(4) or
16(4-A). Therefore, desperate attemptsof the appellants to
re-do the seniority had by them in various cadres/grades
though in the same services according to 1974 Rules or1980
Rule, are not amenable to judicial review atthis belated
stage. The High Court,therefore, has rightly dismissed the
writ petition on the ground of delay aswell.
Thus we hold that the decision of the HighCourt is not
vitiated by any errorof application of wrongprinciple of
law warranting interference.
The appeal is accordingly dismissed but, in the
circumstance, without costs.