Full Judgment Text
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CASE NO.:
Appeal (civil) 6970-6971 of 2000
PETITIONER:
M.G. BADAPPANAVAR AND ANR. ETC.
RESPONDENT:
STATE OF KARNATAKA AND ORS.
DATE OF JUDGMENT: 01/12/2000
BENCH:
M. JAGANNADHA RAO & M.B. SHAH & R.P. SETHI, JJ
JUDGMENT:
JUDGMENT
2000 Supp(5) SCR 302
The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave
granted
These appeals arising out of SLP (C) Nos. 24115-24116 of 1996 (hereinafter
called the main batch) are directed against the judgment of the Kamataka
Administrative Tribunal dated 20.11.1996 in Application No. 3756 of 1996
and 4849 of 1996. The Civil Appeal arising out of SLP (C) No. 11218 of 2000
is directed against an interlocutory order dated 11.4.2000 in RP 240/ 2000
filed by the State of Karnataka staying an earlier order passed by the
Karnataka High Court in W.P. 45205 to 45210 of 1999 on 11.1.2000, directing
disposal of a representation to be filed by the general candidates seeking
implementation of the recent judgment of this Court in Ajit Singh 11 v.
State of Punjab, [1999] 7 SCC 2091. That is now these cases have come
before us.
The facts in the main batch of Civil appeals are as follows :
In a group of OAs filed before the Tribunal, the basic contention raised by
the applicants (appellants in this Court) who were general candidates was
that when they and the reserved candidates were appointed at level 1 and
the Junior reserved candidates got promoted earlier at roster points to
level 2 and again by way of roster points to level 3, and when the senior
general candidate got promoted in due course to level 3, then the general
candidate would become senior to the reserved candidate at level 3. At
level 3, the reserved candidate had therefore to be considered along with
the senior general candidate for promotion to level 4. This was precisely
what was decided by the constitution Bench of this Court recently in Ajit
Singh II v. State of Punjab, [1999] 7 SCC 209, which was followed in Ram
Prasad v. D.K. Vijay, [1999] 7 SCC 251, Jatindrapal Singh v. State of
Punjab, [1999] 7 SCC 257 and Sube Singh Bahmani v. State of Haryana, [1999]
8 SCC 213, all decided on the same day.
The above contention raised by the appellants before us was rejected by the
Karnataka Administrative Tribunal in its judgment under appeal. It held on
a consideration of Rule 2(c), 4 and 4A and Article 16(1) & (4) of the
Karnataka Government Servants (Seniority) Rules, 1957 that the reserved
candidates promoted on the basis of roster at Levels 1 and 2 would become
seniors from the date of the roster point-promotions and even if a senior
general candidate reached Level 3 later, he would not be able to claim
seniority over the reserved candidate at Level 3 because the reserved
candidate had reached Level 3 earlier. In other words, reserved candidates;
could count their seniority at Level 3 from the date of promotion to Level
3. The Tribunal relied upon the words "it is open" to the Government
occurring in Union of India v. Virpal Singh, [1995] 6 SCC 684 (at 701, para
24) and distinguished Ajit Singh v. State of Punjab, [1995] 5 SCC 684,
Indira Sawhney v. Union of India, [1992] Suppl. 3 SCC 217, R.K. Sabharwal
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v. Slate of Punjab. [1995] 2 SCC 745 and other cases. The Tribunal further
observed that the parties would be governed by the law as it prevailed
prior to the date of the decision in Sabharwal. The Applications of the
general candidates were dismissed.
The general candidates have, therefore, filed these main batch of appeals.
So far as the other appeal arising out of the SLP(C) No. 11218 of 2000 is
concerned, the appellants are again the general candidates. After the
judgment of this Court in Ajit Singh II, the general candidates filed WPs
45205 to 45210 of 1999 seeking directions to the Government to follow A/it
Singh II. The High Court passed an order on 11.1.2000 directing the State
Government to consider the representation of the appellants to be filed by
the general candidates raising the above point. The appellants preferred
representation to the State Government, but the State filed RP 240/2000 for
recalling the order dated 11.1.2000 on the ground that the present batch of
appeals were pending in this Court. The High Court then passed orders on
11.4.200 slaying it earlier orders dated 11.1.2000. Against the said order
dated 11.4.2000, the present appeal has been preferred by the general
candidates.
On 9.1.98, the main batch was directed to be listed after disposal of the
appeals in Ajit Singh If. After the judgment in A/it Singh II was rendered
on 16.9.1999, an order was passed on 21.7.2000, to list the main batch on a
non-miscellaneous day. Thereafter the batch along with the other matter was
listed before this Bench on 23.11.2000.
In the meantime, the respondent 7 in the main appeal filed IAs 7-8/2000,
contending that one Jayachandra, a direct-recruit Executive Engineer,
Karnataka had filed an application on 6.8.2000, seeking
modification/clarification of paragraph 83 of Ajit Singh II’s judgment by
deleting the said para on the ground that Ajit Singh II was unworkable, and
that till the said IA filed in Ajit Singh II was decided, the hearing of
this batch should be postponed.
After hearing learned senior counsel, Sri Rama Jois for the applicant in
IA7-8 and Dr. Rajeev Dhawan for the respondents, we have come to the
conclusion that the hearing of the present batch need not be postponed
because of the pendency of the said IA filed in Ajit Singh II. Firstly, the
present respondents before us are not direct recruits but are all
promotees. The said IA was filed by a direct recruit and, in our view., it
has no bearing on the dispute between the promotee general candidates and
promotee reserved candidates. Secondly, it has to be noticed that the said
IA was filed by a single direct recruit from Karnataka for clarification of
Ajit Singh II (when no other direct recruit from any State or Central or
public sector in the whole country had filed any similar clarification
petition and when neither the Central nor State Government nor Public
Sector undertakings found any difficulty in implementing Ajit Singh II to
review the seniority lists)-cannot come in the way of disposal of these
appeals before us. We, therefore, dismiss IAs 7-8 of 2000.
We shall now deal with the points in the main batch of appeals preferred by
the general candidates. As already stated, the Tribunal applied the
seniority Rules in favour of the reserved candidates from the dates of
their promotions under the roster at Level I and Level 2. Further,
promotions were made from Level 3 to Level 4 treating them as seniors even
to those general candidates (who were seniors at level I) who reached Level
3 before the reserved candidates moved to level 4.
We shall first refer to the rules relating to seniority. The said Rules of
1957 read as follows :
"Rule 2 (c) : Seniority inter se persons appointed on temporary basis will
be determined by the dates of their continuous officiation in that grade
and where the period of officiation is the same, the seniority inter se in
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the lower grade shall prevail.
Rule 4 : When promotion to a class of post or cadre ere made on the basis
of seniority-cum-merit at the same time, the relative seniority shall be
determined-
(i) if promotions are made from any one cadre of class of post, by their
seniority-inter-se in the lower cadre or class of post;
(ii) if promotions are made from several cadres or classes of posts of the
same grade, by the period of service in those grades;
(iii) if promotions are made from several cadres or classes of posts, the
grades of which are not the same, by the order in which the candidates are
arranged by the authority making the promotion, in consultation with Public
Service Commission where such consultation is necessary, taking into
consideration the order in which promotions are to be made from those
several cadres or classes of posts.
Rule 4A: When promotion to a class of post or cadre are made by selection
at the same time either from several cadres or classes of posts or from
same cadre or class of post by the order in which the candidates are
arranged in order of merit by the appointing authority making the
selection, in consultation with Public Service Commission where such
consultation is necessary
Explanation-For purposes of this rule, ’several cadres or classes of posts’
shall be deemed to include cadres or classes of posts of different grades
from which recruitment is made in any specified order of priority in
accordance with any special rules of recruitment."
There is no specific rule here permitting seniority to be counted in
respect of a roster promotion. In Ajit Singh I. [1995] 6 SCC 684, a
circular which gave seniority to the roster point promotees was held to be
violative of Articles 14 and 16. In Virpal. which was later decided, this
Court used the words "it is open to the State" and it gave an impression
that the State could give seniority to roster point promotees. But in Ajit
Singh II, this aspect has since been clarified. It was held that seniority
Rules like Rules 2(c), 4 and 4A permitting seniority to be counted from
date of initial promotion, govern normal promotions made according to rules
- by seniority at basic level, by seniority-cum-fitness or by seniority-
cum-merit or by selection - but not to promotions made by way of roster.
The roster promotions were, it was held, meant only for the limited purpose
of due representation of backward classes at various levels of service. If
the rules are to be interpreted in a manner conferring seniority to the
roster point promotees, - who have not gone through the normal channel
where basic seniority or selection process is involved, - then the rules,
it was held will be ultra-vires of Article 14 and Article 16 of the
Constitution of India. Article 16(4A) cannot also help. Such seniority, if
given, would amount to treating unequals equally, rather, more than equals.
In fact, while dealing with the fundamental right under Article 14 and
Article 16, this Court held in India Sawhney v. Union of India, (known as
the Kerala Creamy layer case). [2000] 1 SCC 168 at 202 while holding that
if creamy layer among backward classes were given same benefits as Backward
classes, it will amount to treating equals unequally. Equality is a basic
feature of the constitution of India and any treatment of equals unequally
or unequals as equals will be violation of basic structure of the
Constitution of India. That is one more reason why, according to us, the
roster point promotees cannot be given seniority. Therefore, if seniority
is given, it will violate the equality principle which is part of the basic
structure of the Constitution. Even Article 16(4A) cannot, therefore, be of
any help to the reserved candidates. That is the legal position under the
Constitution of India.
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It is clear on facts of this batch of cases that the initial recruitment of
these general candidates and the reserved candidates was as Junior
Engineers (now called Assistant Engineers) and then the next promotion was
to the post of Assistant Executive Engineer and then to the post of
Executive Engineer. At both these levels admittedly, there has been a
roster operating. Beyond Executive Engineer’s post, there is no roster. The
appellants and respondents (reserved candidates) were recruited as Junior
Engineers and the appellant-general candidate were senior to one or other
of the reserved candidates at level 1. The reserved candidates thereafter
got promotion as per roster points from Level 1 to Level 2 (Assistant
Executive Engineer). From Level 2 the roster promotees were promoted again
to Level 3 as Executive Engineers by way of a further roster. The senior
general candidates got promoted as per rules -either by seniority at basic
level or by selection - and reached the Level 3. By that time the reserved
candidates were still at Level 3. But they were promoted to Level 4
treating them as senior to the general candidates. This was done taking
into account the fact that the reserved candidates reached the category of
Executive Engineers earlier than the general candidates. According to Ajit
Singh II, if by the date when the reserved candidates were promoted as
Superintending Engineers, the general candidates had already reached the
said level by normal promotion system, then the general candidates must be
treated as seniors as Executive Engineers to the reserved candidates. The
general candidates had a right under Articles 14 and 16 to be considered
for promotion as Superintending Engineers as seniors to the reserved
candidates. This was unfortunately not done. After A/it Singh II, this had
to be rectified.
It is, therefore, obvious that, in accordance with Ajit Singh II, the
seniority lists in the category of Executive Engineers has to be first
reviewed, treating the general candidates as seniors to such of the
reserved candidates provided the senior general candidates reached Level 3
(Executive Engineer) before the concerned reserved candidate was promoted
as Superintending Engineer. After reviewing the seniority and re-fixing the
same at the level of Executive Engineer, the promotions to the category of
Superintending Engineer have to be next reviewed. While considering the
promotions of the reserved candidates at Level 1 (Junior Engineer called
later as Assistant Engineer) and at Level 2 (Assistant Executive Engineer),
the principles laid down in R.K. Sabharwal’s case have also to be kept in
mind, as explained in Ajit Singh II. Once the promotions at the level of
Superintending Engineers are reviewed, the further promotions to the post
of Chief Engineer or equivalent posts or posts higher up have also to be
reviewed.
However, in Ajit Singh II, reversions were directed not to be made in
respect of reserved candidates promoted on basis of roster-point seniority
before 1.3.96 In other words, notwithstanding the review of seniority at
various levels starting from the level of Executive Engineer and the
consequent downgradation of seniority. if any, at that level, any promotion
of a reserved candidate to the post of Superintending Engineer which took
place before 1.3.96, - contrary to principles now laid down in Ajit Singh
II - should not be disturbed. In Ajit Singh II, this Court also explained
what was meant by the prospectivity of Subharwal w.e.f. 10.2.95. That has
also to be borne in mind.
In view of the above general directions, we are therefore not going into
individual facts and seniority etc. details of which were placed before us
by way of various charts. In our view, the general directions given in this
judgment will be sufficient for the purposes of disposal of these appeals.
It was stated before us that the 1st appellant had retired but the 2nd
appellant is in service. It was stated that several respondents had also
retired. It was also stated that one Sri R.A. Audi, a reserved candidate is
now posted as Secretary, in the Department and that therefore, there is no
need to pass any orders. We do not agree.
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In fact, some general candidates who have since retired, were indeed
entitled to higher promotions, while in service if Ajit Singh II is to
apply, they would, get substantial benefits which were unjustly denied to
them. The decision in Ajit Singh II is binding on us. Following the same,
we set aside the judgment of the Tribunal and direct that the seniority
lists and promotions be reviewed as per the directions given above, subject
of course to the restriction that those who were promoted before 1.3.96 on
principles contrary to Ajit Singh II need not be reverted and those who
were promoted contrary to Sabharwal before 10.2.95 need not be reverted
This limited protection against reversion was given to those reserved
candidates who were promoted contrary to the law laid down in the above
cases, to avoid hardship.
We are here adding one more protection to the retired reserved candidates
in these cases. Though their seniority is revised at the level of Executive
Engineer or above and though they might not have been promoted if the law
laid down by this Court in Ajit Singh II and Sabharwal (as explained in
Ajit Singh II) were applicable to them at the relevant time, still for
purposes of their retiral benefits, the said benefits shall be computed on
the basis of the posts factually held by them at the time of retirement and
on the emoluments actually drawn by them and not on the basis of the result
of any review that is now directed.
So far as the general candidates are concerned, their seniority will be
restored in accordance with Ajit Singh II and Sabharwal (as explained in
Ajit Singh II) and they will get their promotions accordingly from the
effective dates. They will get notional promotions but will not be entitled
to any arrears of salary on the promotional posts. However, for purpose of
retiral benefits, their position in the promoted posts from the notional
dates - as per this judgment - will be taken into account and retiral
benefits will be computed as if they were promoted to the posts and drawn
the salary and emoluments of those posts, from the notional dates.
The main batch of appeals arising out of SLP(C) Nos. 24115-24116 of 1996 is
allowed but without costs and the judgment of the Tribunal is set aside and
the directions set out above will be implemented expeditiously from stage
to stage. The exercise may be completed, as far as possible, within six
month from today.
In view of the directions given in the main batch, the same shall apply in
the Civil appeal arising out of SLP 11218 of 2000.
All the appeals stand disposed of accordingly.