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PETITIONER: JAGDISH LAL & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT:       07/05/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T                   THE 7TH DAY OF MAY, 1997 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: K. Ramaswamy, J.      Leave granted      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the Division Bench Judgment  of Punjab  & Haryana  High  Court,  made  on November 5, 1996 in C.W.P. No.8755/96.      The appellant-general  candidates, viz.,  Jagdish  Lal, Ram Dayal and Surinderjit Kapil, challenged the promotion 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  of Haryana  Government. Respective appointments of the  appellant and the respondents have been reflected in the judgment of the High Court as under: S.No  Name  Seniority   Dt. of    As   As   As    As     As             no. in      apptt.  Asstt. Dy. Supdt. Bud-  R.E.             the seni-   as            Supdt.      get  (Cla-             ority list  Clerk                     Offi  ass                                                   cer-  I)             of 1.1.95                             (Cla-                                                   ss II) ------------------------------------------------------------ APPELLANTS: 1. Jagdish    22      24.11.58 1.12.68 27.10.87 1.4.90 -  -    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 PRIVATE RESPONDENTS

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(Reserved Category candidates) 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. Sant Lal 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   -    -      In the  lowest cadre post, i.e., Clerks and Assistants, in the  Education Department, admittedly, the appellant were senior to  the respondent.  But as  Deputy  Superintendents, Respondent Nos.  1 and  2 were  promoted respectively on May 26, 1982  and October  27 1983,  while the  appellants  were promoted on different dates, viz., October 27, 1987, January 16, 1989  and February  2, 1996.  Sixth respondent, Sant Lal was promoted  on November  4, 1987,  that is,  prior to  the promotion of  Surinderjit Kapil.  Equally,  respondent  No.7 Ajmer Singh  also was  promoted earlier  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. Hira was promoted as Superintendent on May 27, 1988 while the first appellant, Jagdish Lal  was promoted  on April  1, 1990  and Ram Dayal, appellant No.2  was promoted  on August  9, 1991;  Sant Lal, 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  was  promoted  as Superintendent on  July 1,  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  basis w.e.f.  February  2, 1996 for  a period  of 4  months and  from May  31, 1996  on regular basis,  in his  own right,  as Registrar (Education) which post  is now  classified as  Class I  post. On June 4, 1996, the  appellants filed  a writ  petition claiming  that 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. Though  they   were  promoted   on  the  basis  of  rule  of reservation applying  the 100 point roster maintained by the Government, they  stole a march over the appellants who were being members  of the  same Class  III Service. They further claimed  that   though  the   reserved  candidates  has  got promotion to  the  different  posts  earlier  to  them,  the appellants still  were entitled to be senior to them for the purpose of  promotion to  Class I  posts. As  a consequence, they were  entitled to  be considered  for promotion  before consideration of  the  reserved  candidates  including  H.S. Hira, the  fifth respondent  as Registrar  (Education).  The sheet anchor of their case was the decision of this Court in Ajit Singh  Januja &  Ors. v. State of Punjab [JT 1996(2) SC 727]. The  High Court dismissed the writ petition inter alia on the ground of abnormal delay in challenging the promotion of  the   reserved  candidate  to  the  post  of  Asstt./Dy. Superintendents and Superintendents. It observed that though the reserved  candidates were promoted on different dates as Superintendents etc.  earlier to the appellants, they having

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become members of the Service in the lower cadres earlier to the appellant,  were entitled  to be  considered for further promotion to  the  higher  ladders  of  the  Service;  their promotions are  not vitiated by an error of law. The Haryana Eduction Deptt. (State Service Class II) are governed by the Haryana Education Deptt. (State Service Group B) Rules, 1980 (For short,  the ‘Rules’)  Rule 11  of the  Rules deals with seniority. By  operation  thereof  the  reserved  candidates became senior  to the  appellants in  the respective cadres. Fifth respondent, H.S. Hira was promoted to Group ‘B’ Class- I Service  in his  own right as a general candidate as there was no  reservation. Therefore,  their promotion is valid in law. It  was  also  held  that  even  otherwise,  since  the promotions of  the reserved candidates came to be made prior to the  decision 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 date of promotion of respondent  No.4  on  the  post  of  Superintendent,  the petitioners  has   not  been   promoted   even   as   Deputy Superintendents. Similarly,  as on  the date of promotion of respondent Nos.  4 and  5 , the petitioner No.2 has not been promoted as  Deputy Superintendent  and so far as petitioner No.3  is  concerned,  he  came  to  be  promoted  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; and after almost 4 and 5 years and  6 months of the promotion of respondent Nos.6 and 7 as  Superintendents. Thus  the petitioners cannot have any claim to  be assigned  seniority over  and above  respondent Nos. 4  to 7  as Superintendents."  The High Court negatived the contention  that the  appellants were denied of right to equality  on   account  of   the  application   of  rule  of reservation and roster point violating Articles 14 and 16 of the Constitution. The High Court further pointed out thus:      "A careful  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   favour   of   the      Scheduled   Castes   and   Backward      Classes and operation of the roster      system. In  Court was  dealing with      circulars  issued  by  the  Railway      Board with  particular reference to      the letter  dated 31st  Aug.,  1982      and held that the word "Panel" used      in that  circular meant  the  panel      prepared    by    the    recruiting      authority at  the time  of  initial      entry in  the service  and that the      seniority of  the employees  in the      higher   grades    must   also   be      determined with  reference to their      panel position. This very principle      has been reiterated in Ajit Singh’s      case in  which circular  issued  by      the Government  of Punjab  and  the      judgment of  the Full Bench case in      Jaswant Singh’s  case (supra)  came      up for  consideration. The Division      Bench  which  decided  Madan  Lal’s

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    case     simply     applied     the      observations  made   in  the  three      decisions of  the Supreme Court and      held   that   reserved   categories      employees  have   no  right  to  be      assigned seniority  on the promoted      posts over  and above  the  general      category employees  who were senior      in the  lower  cadre  and  who  got      promotion in  the next  higher post      on a  later date. However, in Akhil      Bhartiya Soshit  Karamchari Sangh’s      case   (supra)    their   Lordships      clarified that  the principle  laid      down in  R.K. Sabharwal’s  case and      Virpal Singh Chauhan’s case (supra)      will operate  prospectively and not      retrospectively.           In our  opinion, none of these      decisions  is   of  any   help  for      interpreting  rules   relating   to      seniority which have been extracted      above. In  none of  the  decisions,      their  Lordships   of  the  Supreme      Court interpreted  a rule  like the      one which  is  under  consideration      before us. No doubt in  Madan Lal’s      case  a   similar  rules  has  been      referred   to    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 clear language used in      the substantive part of Rule 11 and      its first  proviso, seniority  will      have to  be determined in different      cadres  and   categories  of  posts      because the  services  governed  by      the Rules  of 1974 and 1980 consist      of  different   cadres.  Posts   of      Registrar,   Assistant    Registrar      (Examinations), Budget  Officer and      Superintendents          constitute      different  cadres  and,  therefore,      seniority   will    have   to    be      determined    in     each     cadre      separately. Similarly,  the post of      Deputy Superintendents,  Assistants      and Clerks, recruitment to which is      governed by ‘1974 Rules’ constitute      different cadres and seniority will      have to be determined separately in      each  of   these  cadres   and  the      general principle laid down in Ajit      Singh’s case  cannot be applied for      the  purpose  of  determination  of      seniority  in   a  case   like  the      present one.                On  the  basis  of  above      discussion, we hold that:-      (i)  the writ  petition deserves to      be dismissed on the ground of delay      and laches  in so  far as challenge

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    to   the    promotion      of   the      respondents                      as      Superintendents/Registrar        is      concerned;      (ii) the  principles laid  down  in      Virpal Singh Chauhan’s case (supra)      and Ajit  Singh’s case (supra) will      operate prospectively  and will not      affect   promotions   of   reserved      category candidates which were made      prior  to   the  decision  in  R.K.      Sabharwal’s case  (supra) or Virpal      Singh Chauhan’s case (supra);      (iii) the  decision in Virpal Singh      Chauhan’s  case  and  Ajit  Singh’s      case cannot  be applied  in a  case      like  the  present  one  where  the      seniority   is   required   to   be      determined in  different cadres and      categories of posts. In the absence      of any  challenge to  the vires  of      Rule  11   the  petitioners  cannot      claim fixation  of their  seniority      above the  Respondent Nos.  4 to  7      who   were   promoted   as   Deputy      Superintendents  earlier  than  the      petitioner."      Shri  Rohtagi,   learned  counsel  for  the  appellant, contended that in all the posts/grades starting from 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 by  operation of  ratio of  Ajit Singh’s case  and Union  of India  v. Vir  Pal Singh Chauhan [(1995) 6  SCC 684],  seniority is required to be determined keeping the seniority of the general and reserved candidates in the lower grade/cadre in fact as all the posts are of the same Service. As soon as the general candidates get promoted to the  higher cadre,  the inter se seniority of the general candidates and  the reserved  candidates is  required to  be redetermined on the 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  in Group  ‘B’ Class I Service should be redetermined. The promotion is required to 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  as  the  general candidates get  promoted, even  though later to the reserved candidates,  they   have  right   to  have  their  seniority restored. As  a   consequence, the  general  candidates  are eligible to  be considered  for promotion  in  higher  posts before consideration  of the  reserved candidates  since for the first  time the  inter se rights are being considered in Class-I Group  ‘B’ Service. This interpretation in Chauhan’s case and  Ajit Singh’s case is consistent with the principle laid down  in Articles  14 and  16 (1)  of the  Constitution granting equality of opportunity to both the general as well as the reserved candidates. The absence thereof would negate the  right  to  equality  to  general  candidates  violating Article 14 and 16 (1) of the Constitution. The mere delay in filing the  writ petitions  cannot made the base to deny the relief to  the general  candidates. The  right  to  equality being a  constitutional mandate,  as and  when the  right is

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required to  be determined,  the Court  has to  consider the facts of  each case and decide it on merits. The High Court, therefore, is  wrong in  law. Shri  Prem  Malhotra,  learned counsel for  the  State,  contended  that  whatever  be  the earlier legal  position, after  the judgment in Ajit 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  consistent with and is in implementation of the law laid  down by  this Court. The High Court, 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  Rule 11  of  the  Haryana Education Department  Class III  Service  Rules,  1974  [for short, the  "1974 Rules"]  and Rule  11 of the Rules provide for determination  of seniority of the employees in the said Service. The  Service as  per 1974 Rules consists of various cadres, starting  from Clerk to Superintendents in the Class III Service. Under 1980 Rules, the Gazetted Cadre consist of Budget  Officers,   Assistant  Registrar   (Education)   and Registrar  (Education)  all  of  which  constitute  Class  I Service. Rule  11 of  the respective  Rules is a substantive rules creating right to seniority. The moment the officer is appointed to  the service/cadre  on  putting  probation,  on successful completion  of the  probation period and on being duly declared,  they cease  to be  the members of the feeder cadre from  which they  came to be promoted, As and when the vacancies arise in the posts in the respective cadres as per the  roster   point,  the  candidates,  whether  general  or reserved, are  required to  be considered  for promotion and duly promoted  in accordance  with the  existing Rules. They became members  of the  service in  the respective cadres of Class III  or Group  B Class  I  Service.  The  moment  they started  discharging   the  duties   of  the  posts  and  on declaration of  the successful  and  satisfactory  probation period, they  became fullfledged  members of  that  Service. They also  ceased to  be members  of  the    feeding  cadre. Therefore, the  moment, the  termination  of  probation  was declared, they  ceased 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 not have the effect  of denying the seniority secured by the reserved candidates due  to their early promotion. Even if promotions to Group  ‘B’ Class  I service  are  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  claim  seniority  over  the respondent-reserved  candidates.   He  also  contended  that promotion to  the reserved  candidates is  as member  of the Dalits and  Tribes  as  a  Class.  Constitutional  right  to equality enshrined  under Article 14, the genus, and Article 16  (1),   the  species   thereof,  provide  for  protective discrimination in favour of the Dalit and Tribe. Appointment by promotion  to a  post or  Service under  the State  is  a constitutional right  given by  Article 16(1) or (4A) of the Constitution. Therefore,  when the  reserved candidates  are promoted in  accordance with  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 per  the roster,  no unconstitutionality result and it is not discriminatory or arbitrary, violating Article 14 of the

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Constitution. He also contended that the reserved candidates were promoted long prior the general candidates in Class III and Group  B Class  I Service.  The writ petition came to be filed after Ajit Singh’s case. The High Court, therefore, is right in  dismissing the  writ petitions  on the  ground  of delay as well.      In view  of the diverse contentions, the questions that 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 rule  of reservation, will not enure  to them the seniority from the date of respective promotion? Conversely,  whether on  the promotions  given to the   general  candidates  as  per  the  roster  point,  the promotions will have the effect of giving them the seniority over   the    reserved   candidates    in   the   respective feeder/promoted cadres?  Whether the  view taken by the High Court  is  correct  in  law?  In  order  to  appreciate  the contention, it  is necessary to refer to Rule 11 of the 1974 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      continuous service on 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 cadre or category of posts;           Provided further  that in  the      case of members appointed by direct      recruitment,  the  order  of  merit      determined by  the commission shall      not  be  disturbed  in  fixing  the      seniority      and       candidates      recommended earlier shall be senior      to the candidate recommended later;           Provide further  that  in  the      case  of   two  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 by  promotion or  by           transfer, seniority  shall  be           determined  according  to  the           seniority of  such members  in           the  appointments  from  which           they    were    promoted    or           transferred; and      (d)  in the  case members appointed           by  transfer   from  different           cadres their  seniority  shall           be  determined   according  to           pay, preference being given to           a member,  who was  drawing  a

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         higher  rate  of  pay  in  his           previous  appointment  and  if           the rates  of  pay  drawn  are           also the  same,  then  by  the           length of their service in the           appointments,   and   if   the           length of such service is also           the  same,  the  older  member           shall be senior to the younger           member.      ‘1980 Rules’ : Rules 11 : Seniority      of members  of the  service  :  The      seniority, inter  se, of members of      the Service  shall be determined by      the length of 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 cadre or category of posts;           Provided further  that in  the      case of members appointed by direct      recruitment,  the  order  of  merit      determined by  the Commission shall      not  be  disturbed  in  fixing  the      seniority      and       candidates      recommended earlier shall be senior      to   the   candidates   recommended      later;           Provided further  that in  the      case  of   two  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 by  promotion or  by           transfer, seniority  shall  be           determined  according  to  the           seniority of  such  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 to  pay,  preference           being given  to a  member, who           was drawing  a higher  rate of           pay   in    his       previous           appointment and  if the  rates           of  pay  drawn  are  also  the           same, the  y by  the length of           their    service     in    the           appointments,   and   if   the           length of such service is also           the  same,  the  older  member

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         shall be senior to the younger           member."      1974 Rules and 1980 Rules mutatis mutatis are the same. Rule 2  (g) of  1980 Rules  defines "Service" to mean Haraya Education Department (State Service, Group B). Under Rule 3, the Service  shall comprise the posts shown in Appendix A to the  Rules.   Rule  4  prescribes  the  general  eligibility criteria and  Rule 5  prescribes  age  requirement.  Rule  6 prescribes educational  qualifications as  per  Appendix  B. Rule 8  enumerates certain  grounds for disqualification for appointment to  any 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)  from  amongst   the  Assistant           Registrar      (Examinations),           Budget Officer  in the Service           or by   promotion from amongst           the  Superintendents   in  the           Service;"      In other  words, all feeder posts enumerated constitute source of recruitment to the post of Registrar.      "or      (c) in the case of Budget Officer,-      (i)  by promotion  from amonst  the           Superintendents; or      (ii) by transfer  or deputation  of           an   officer   of   equivalent           grade/experience,  already  in           the service  of Government  of           India or any State Government.      (d)  in      the       case      of           Superintendent,-      (i)  by promotion  from 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 of equivalent grade           already  in   the  service  of           Government of  India or of any           State Government; or      (iii) by direct recruitment."      (2) Whenever  any vacancy  occur or      is about  to occur  in the Service,      the  appointing   authority   shall      determine  in   what  manner   such      vacancy shall be filled.      (3) All  promotions,  whether  from      one grade  to another  or from  one      class of  service to  another class      of  service,   shall  be   made  by      selection based on merit and taking      into  consideration  seniority  but      seniority alone shall not given any      right to such promotions.      On appointment so made, by operation of Rule 10, person appointed to  nay  post  in  the  Service  shall  remain  on probation for  a period of two years, if appointed by direct recruitment and  one  year  if  he  is  appointed  otherwise (promotion). However,  under proviso  thereto, among others, any period before such appointment, spent on deputation on a corresponding post  or a higher post shall count towards the

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period of  probation of one year. Under sub-rule (2) of Rule 10, if  in the  opinion of the appointing authority the work or conduct of a person during the period of probation is not satisfactory, it  may, (a)  if such  person is  appointed by direct recruitment,  dispense with  his services; 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 in such other manner as the terms and conditions of his previous appointment permit. On completion  of the period of probation by a person, under sub-rule (3),  the appointing authority may, (a) if his work or conduct  has in  its opinion,  been  satisfactory  -  (i) confirm such  person from  the date  of his  appointment, if appointed against  a permanent vacancy; or (ii) confirm such person from  the date from which a permanent vacancy occurs, if appointed against a temporary vacancy; or in case of non- availability of  permanent vacancy (iii) declare that he has completed   his    probation   satisfactorily   and   awaits appointment to  permanent vacancy;  or (b)  If his  work  or conduct has,  in its  opinion, not  been satisfactory, - (i) dispense  with   his  services,   if  appointed   by  direct recruitment or  if appointed  otherwise, revert  him to  his former post  or deal  with him  in such  other manner as the terms and conditions of his previous appointment permits; or (ii) extend his period of probation and thereafter pass such order, as  it could  have passed on the expiry 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 or  by promotion/transfer, the incumbent officer is required  to be put on probation and on completion of the probation or  extended probation  period, upto  a 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 a permanent vacancy subject to availability and  thereafter he  becomes full-fledged member of  the   Service.  It   is  settled   legal  position  that confirmation is an inglorious uncertainty. Continuous length of  service;   if  appointed   according  to  the  Rules  on consideration of  claims of eligible persons as on that date as per  rules accords  seniority and  gets counted  from the date of initial appointment by direct recruitment/promotion/ transfer to the cadre/post.      The question  then arises  : as  to from  what date the seniority is  required to be determined? As seen, under Rule 11, the  inter se  seniority of  the member  of the  Service shall be  determined by the length of continuos service is a post in  the Service.  However, exception  are carved out to the said  general rule. Under the first proviso, where there are different  cadres or categories of posts in the Service, the seniority  shall be determined separately for each cadre or category  of posts. The second proviso being not relevant for our  purpose, is  omitted. Under  the third  proviso, in case of  two or more members are appointed on the same date, their seniority shall 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 by  promotion or  by           transfer, seniority  shall  be

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         determined  according  to  the           seniority of  such 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 to  1974  Rules, there  exist  in  the  Service  cadre/grades  consisting  of Clerks,    Assistants,     Deputy    Superintendents     and Superintendents in 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 to  be  made  from  amongst  the  Budget Officers or  Superintendents. Therefore,  promotion  to  the post of  Registrar (Education)  one of  the 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 appointment  to the  post and his seniority is determined on the  basis of  that date unless he is appointed only as a stop-gap arrangement  or on  ad hoc  basis and  de hors  the Rules.  In  case  of  regular  appointment,  the  appointing authority is  enjoined  to  put  him  on  probation  and  on successful completion  of the  probation period  of one year including the  period spent  on the  higher post (s), unless the probation  is extended  upto a maximum of three year, he stand confirmed in the promoted post. Thus, his confirmation dates back  to his initial dated of appointment by promotion and   by operation  of Rule  11 and  the proviso referred to hereinabove, the  seniority stands  determined from the date of his  appointment to  the cadre/grade.  It would  thus  be manifest that  as soon  as the candidate, whether general or reserved, gets  promoted 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 becomes a  member of  the Service  from the  initial date of appointment by  promotion. Equally, when an Assistant become Deputy  Superintendent  and  Deputy  Superintendent  becomes Superintendent, the method of computation of seniority would be the  same, viz., as soon as his probation is declared, he becomes  a   member  of  the  Service.  On  availability  of permanent post, he gets appointed to the post and thereafter ceases to  be a  member of  the feeder/lower  cadre. In this regard,  under   Fundamental  Rule   14-A(a)  a   Government Servant’s lien  on  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 Rules 14-A(d) a Government servant’s lien  on a  post shall  stand  terminated  on  his acquiring a  lien on  a permanent  post (whether  under  the Central Government  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 a lien on the  post and  simultaneously, he shall not have right to hold any  lien on  more than  one post.  In other  word, the articulated be  a member of two post/service/grade/cadre nor is he  eligible to hold lien on two posts. On promotion from the  post   of  Clerk   as  Assistant,   on  successful  and satisfactory  completion   of  probation   and   declaration thereof, he  becomes a member of the Service in the cadre of Assistant and  so on till the cycle is complete. Vice versa, there are various stages of promotion to the higher echelons

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of Service  and the  same resultant  consequence follow. The same principle equally applies in Group B Service under 1980 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  and this  is the settled service  jurisprudence.   In  the  case  of  appointment  by promotion of  Dalits  and  Tribes,  no  different  yardstick should be  applied. This  is the normal/common phenomenon is service jurisprudence  in Service  under, either  the  Union Government or  the State  Government, or  for  that  matter, semi-Government authorities/corporations/undertakings.      The question  then is  : whether  such a  rule  becomes arbitrary or  violative of  equality enshrined under Article 14 read  with Article  16  (1)  of  the  Constitution,  when applied to  Dalits and  Tribes? It  would be  appropriate at this stage  to have  the benefit of case law on the subject. In the  All India Administrative Service (SAS) Association & Ors. V/s.  Union  of India [(1993) Supp 1 SCC 730], in paras 14 and  15, a  Bench of three Judges, to which one of us, K. Ramaswamy, J., was a member, has held that no one has vested right to  promotion or  seniority  but  an  officer  has  an interest in  seniority acquired by 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 is specifically provided  in  the  rules,  the  employees  who  are  already promoted before  the  Amendment  of  the  Rules,  cannot  be reverted and  their promotions cannot be recalled". In State of Maharashtra V/s. Chandrakant Anant Kulkarni [(1981) 4 SCC 130], another  Bench of three Judges in paragraph 16 at page 141 had  held that  "(M)ere chances  of  promotion  are  not conditions of service, and the fact that there was reduction in the  chances of promotion did not tantanmount to a change in the conditions of service." In K. Jagadeesan vs. 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 a term of service,  but mere chances of promotion are not"; so also the eligibility  for promotion.  Passing of the departmental examination is  nothing but  a mere  chance of promotion. In Ashok Kumar  Gupta V/s  Stat of  U.P. [1997 (3) SCALE 289 at 299, para 22] this Court comprising all the three of us, had held that "in service jurisprudence, a distinction between a right and  interest has always been maintained. Seniority is a facet of interest. When the Rules prescribed the method of selection/recruitment, seniority is given as per the ranking given and  governed by  such as  was  laid  in  the  rules". Similar view  taken in  A.K. Bhatnagar  V/s. Union  of India [(1991) 1  SCC 544]  was upheld  by  this  Court.  In  Akhil Bhartiya Soshit KarmchariSangh V/s. Union of India [(1996) 6 SCC 65] to which tow of us, K. Ramaswamy and G.B. Pattanaik, were members,  this Court  has held  that no  member of  the service has  a vested right to promotion or seniority but an officer has an interest in 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 had held that a  rule which  confers a right of actual promotion or 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 had held that rule which merely affects  chances of  promotion cannot  be regarded as varying the  condition of  service. Chances of promotion are not conditions  of service.  In Syed  Khalid Rizvi & Ors. v. Union of  India & Ors. [1993 supp. (3) SCC 575] to which one

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of us  K.R.S., J. was a members, it was held in para 31 that no employer has a right to promotion; the only right is that he is  entitled to  be considered for promotion according to rules. Chances  of promotion  are not  conditions of service which defeasible  in accordance  with the rules. Thus, it is settled principle  in the  service jurisprudence  that  mere chances of  promotion are  not conditions  of service  and a candidate appointed  in accordance with the rule and steal a march over  his erstwhile 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 the date of starting  discharging duty  of the  post to  which he  is promoted unless  otherwise determined in accordance with the rules. From  that date,  he ceases  to be  a Member  of  the feeder  cadre/grade   from  which   he  was   promoted.  The hierarichal   promotions   to   various   cadres   mentioned hereinabove operate  in  the  same  manner  and  thereby  on successive promotion to various cadres/grades, though in the same service,  on would  steal a  march over  other, by they general or reserved candidates.      On  promotion   to  the   higher  cadre,  the  reserved candidate steals a march over general candidates and becomes a member of the service in the higher cadre or grade earlier to the  general candidates.  Continuous  length  of  service gives him  the seniority  cannot get  re-opened,  after  the general candidate  gets promoted  to the higher cadre/grade, though he  was erstwhile  senior in  the feeder cadre/grade. Would a dual principle of seniority of Dalits and Tribes and general   candidates    is   valid    and   constitutionally permissible?  If  a  positive  finding  in  that  behalf  is recorded, it  would run contrary to the bed role of judicial precedents and  it  would  be  fraught  with  irreconcilable incongruities in  matter of integrating employees drawn from different streams to forge into common seniority or promoted according to rule which hitherto is well-trenched in service jurisprudence. In  State of  U.P. v.  Dr. Dina Nath Shukla & Anr. [JT  1997 (2)  SC 467  para 8]  it was  held  that  the craving  for   equality  generates  clash  of  interest  and competing   claims amongst  the people,  for emancipation of the Dalits and Tribes from the pangs of absolute prohibition of legal  equality under  Articles 15(1)  and  16(1).  Under Article 15(2)  to (4)  and Article  16(4) and 4(a) read with the  Directive  Principles,  protective  discrimination  has poured forth practical content, softened the rigour of legal equality  and   given  practical   content  of  equality  in opportunity in  favour of unequals to hold an office or post under the  State in  the democratic governance. In paragraph 9, it is further stated that in a democracy governed by rule of law  every segment  of the society is entitled to a share in the  governance of the country. Permanent bureaucray is a facet of our democratic governance and an integral scheme of the Constitution.  Recruitment to  a post or an office under State is  governed by  the Constitution,  law and  the rules made under  proviso to  Article 309  of the  Constitution or administrative instructions  in  the  absence  of  statutory rules. Protective  discrimination has  been upheld  by  this Court which  connotes mitigation  of  absolute  equality  in order to  achieve  equality  in  result  in  favour  of  the disadvantaged segments  of the  society. Appointment  to  an office or  post gives  an opportunity  to have  equality  of status and  dignity of  person. The  object, thereby,  is to provide economic  equality, Social  equality  gets  realised through facilities and opportunities given to the Dalits and Tribes to  live with  dignity and  with equal  status in the

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society.  Economic   equality  also   gives  socio  economic empowerment, a  measure to  improve excellence in every walk of life.  Equal opportunity  of appointment  to  a  post  or office is  available to  all citizens  and legitimately  and constitutionally entitles  them to consider their claims for employment/appointment to  an office  or post  in accordance with rules. Article 335 mandates the State that in the field of competition  the claims  of Dalits  and Tribes  shall  be taken into  consideration consistently  with the maintenance in appointment of promotion in favour of Dalit and Tribes is a constitutional  right under  Article 16(1) and 16(4A) read with Article  46 and  other related Articles. Reservation in promotion was  upheld by  this Court in R.K. Sabarwal & Ors. v. State  of Punjab  & Ors.  [(1995) 2  SCC 745]. It is well settled constitutional  principal that reservation in favour of Dalits  and Tribes  is in favour of the community but not to the  individuals belonging  to that  community,  although other ultimate beneficiaries are individuals. In Dr. Jagdish Saran &  Ors v.  Union of  India [(1980)  2 SCC 768], it was held that  Dalits and  Tribes for  the purpose  of admission under Article  15(4) stand as a class. "The Constitution has assigned a special place for that factum and the problems of inherited  injustice  demanding  social  surgery  which,  if applied thoughtlessly  in other  situation, may  by a remedy which extenuates  their malody."  In other  words, in social surgery of effectuating actuality in results, reservation in favour of  Dalits Tribes  is a  resultant surgical remedy to the malody.  In Dr.  Pradeep Jain & Ors. v. Union of India & Ors. [(1984)  3  SCC  654]  which  was  approved  in  Indira Sawhney’s case,  discrimination. Now the concept which takes in its  sweep every process of equalisation under the canopy of protective discrimination.      Equality must not remain mere idle incantation but must 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  that   progressive  measures   to  eliminate  group disabilities   and    promote   collective    equality   are antagonistic to  and anathima of equality on the ground that every individual  is entitled  to  equality  of  opportunity based purely on merit mantra judged by the marks obtained by him. We  cannot countenance  such a suggestion, for to do so would  make   the  equality   clause  becomes   sterile  and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely  on  the  absence  of  disabilities  but  on  the presence of abilities and opportunity for excellence in each cadre/grade. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate inequality. It is, therefore,  necessary   to  take   into  account   de  facto inequalities which  exist in  the society  and in  order  to bring about real equality, affirmative action fills the bill and  allows   to  give   preference  to   the  socially  and economically disadvantaged  persons by  inflicting handicaps on those  more    advantageously  placed.  Such  affirmative action though  apparently discriminatory,  is calculated  to produce equality in result on a broader basis by eliminating de facto  inequalities and placing the weaker section of the community on  a footing  of equality  with the  stronger and more powerful  and a  disadvantaged  section  so  that  each member  of   the  community,   whatever  is  by  his  birth, occupation or  social position,  may enjoy equal opportunity of using to the full, his natural endowments of physique, of character and  of intelligence.  This principle was approved and reiterated   by  the Constitution Bench in Marri Chandra

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Shekhar Rao  v. Dean,  Seth  G.S.  Medical  College  &  Ors. [(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 for promotion to higher cadre  or grade,  gain accelerated  seniority by  the Dalit and  Tribes and delimit the seniority of the erstwhile general candidates in the lower cadre or grade in accordance with the  roster point.  Thereby, the  Dalits and Tribes are getting and  accelerated placement in the higher echelons of cadre  or   grade.  It  is  constitutionally  a  permissible classification bearing  reasonable nexus  to the  object  of equality in  result as  component  of  economic  and  social empowerment. It  is just and reasonable procedure prescribed to achieve  the constitutional  objectives  of  equality  in result, of  status and  opportunity and dignity of person to integrate them  in the  mainstream of  the national life, as per the  arch  of  the  Constitution,  i.e.,  the  Preamble, Article 14, 15, 16 and 46 and all other  related Articles of the  Constitution   consistent  with   the   efficiency   of administration  envisaged   under   Article   335   of   the Constitution.      In A.K.  Gupta & Anr. v. State of U.P. & Ors. [1997 (3) SCALE 289  at 302  para 28] we have held that as regards the competing claims  between Dalits  and Tribes on the one hand and the  general candidates  on the  other, Article  14  and 16(1) render  an  balancing  right  to  equality  in  result adjusting the competing rights of all sections. In Ahmedabad St. Xaviers  College Society  & Anr.  v. State  of Gujarat & Anr. [(1975) 1 SCR 173 at 252] a larger Bench of nine Judges had held  that to  establish equality,  if it  would require absolute  identical  treatment  of  both  the  minority  and majority, that  would result  only in  equality in  law  but inequality in fact. Equality in law precludes discrimination of any  kind  whereas  equality  in  fact  may  involve  the necessity of  differential treatment  in order  to attain  a result which  establishes an  equilibrium between  different situations. This  Court held that the fundamental rights are to be construed broadly so as to enable the citizen to enjoy the fundamental  right by  succeeding generations.  In  A.K. Gupta’s case,  therefore, it was held that "to give adequate representation to  the Dalits  and Tribes  in all  posts  or classes of  posts of  services to  make  it  a  reality  and truism, facilities  and opportunities  are  required  to  be provided to  the Dalits  as enjoined  in Article  38 for the purpose of  achieving equality  of representation  as a real content. In  para 30,  it  was  observed  that  in  abstract application of  equality under  Article 14, every citizen is treated  alike   without  there  being  any  discrimination. Thereby, the equality, in fact, subsists. Equality prohibits the State  from making  discrimination among  citizen on any ground. However,  inequality in  fact  without  differential 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 treated by  identical standards.  Equality in  law certainly would not  be real  equality. In the circumstances, equality of  opportunity   depends  not  merely  on  the  absence  of disparities  but   on  the   presence   of   abilities   and opportunities. De  jure equality  must ultimately  finds its raison  d’etre   in  de  facto  equality.  The  State  must, therefore,  resort   to  protective  discrimination  of  the purpose of making people, who are factually unequally, equal in specific areas. It would, therefore, be necessary to take into account de facto inequality in which exists the society

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and to  take affirmative  action by  giving  preference  and making reservation  in promotion in favour of the Dalits and Tribes  or   by   inflicting   handicaps   on   those   more advantageously placed,  in order  to bring  about  equality. Such affirmative  action, though  apparently discriminatory, is calculated  to produce  equality in  result 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  to  enjoy  equal opportunity in  order  to  unfold  their  full  potentially. Protective discrimination  envisaged in  Article  16(4)  and 16(4-A) is  the armour  to establish  the  said  equilibrium between equality in law and equality in results as a fact to the disadvantaged. The principle of reservation in promotion provides equality in results.      It is true that Indra Sawhney’s ratio on reservation in promotion became  a torch  bearer to  the general candidates but before  it  could  become  path-finder,  the  Parliament enacted 77th Constitution (Amendment) Act and brought on the Constitution Article  16(4A) as a part of the Constitutional Scheme  of   reservation  in   promotion  to   a  post.  The legislative judgment  put off  the stream generated by Indra Sawhney’s case.  It is  constitutionally a  valid  principle which was declared to be so in several judgments referred to and followed  and ultimately  held as  valid in A.K. Gupta’s case.      Vir Pal  Singh Chauhan’s  case followed by Ajit Singh’s case  created   euphoria  among   general  candidates   that reservation in promotion, though till then had by the Dalits and Tribes, slided back in the seniority scale to the bottom as and when the general candidates in their own turn had got promotion to  higher echelons  of service. The question is : whether it  is really  so and  whether  it  interjected  the normal service  jurisprudence of continuous officiation in a post or  a cadre, unless promotion is not in accordance with 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 paragraph  47 that once an incumbent is appointed to  a post according to rule, his seniority has to be counted  from the date of his confirmation. The corrolary of the  above rules is that where the initial appointment is only ad  hoc and  not according  to rules  and is  made as 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 Singh Chauhan’s case the principle consideration for  promotion was  seniority under  the rules made by  the Railway  Establishment Code.  The Railway Board issued circular  letter dated August 31, 1982 which referred the word  ‘Panel’. It  was a  case of  pure seniority  rule. Explaining the  meaning of  the word  ‘panel prepared by the recruiting authority  and in  the absence  of  any  specific rules as  regards the  nature of  the effect of seniority in the higher  cadre/grade, the  Bench of two Judges considered its effect  and held  that the  word ‘panel’  used  in  that circular  meant   the  panel   prepared  by  the  recruiting authority at the time of initial entry into service and that the seniority of the employees in the higher grades was also held to  be determine with reference to the placement in the initial appointment.  It is  settled legal position that the ratio decidendi is based upon the facts actually decided. It is an  authority of those facts. In the light of the factual position culled  out by  this Court on the panel position in

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the  lower   cadre  of  the  general  as  well  as  reserved candidates, this  Court in  Vir Pal Chauhan’s case, had held that though  the Dalit  and Tribes  were promoted earlier to the general  candidates to  a  higher  cadre/grade,  in  the absence  of   such  a   panel  prepared   in  the   promoted cadre/grade, the  panel prepared in the lower cadre remained to be  operative. Consequent,  on promotion  of the  general candidates,  the   inter  se  seniority  vis-a-vis  reserved candidates remained  the same  as was  found  in  the  lower cadre. That was the real ratio in that case, on the basis of the circular  letter referred  to hereinbefore. Accordingly, the said  ratio, as  pointed out by the High Court, does not help the  appellants-general candidates  for the reason that Rule 11  of 1974  Rules or 1980 Rules expressly occupies the field and  determines  their  inter  se  seniority  in  each cadre/grade  with   reference  to  the  date  on  which  the candidates, be  it reserved  or general,  entered  into  the service in the promoted cadre/grade. Vir Pal Chauhan’s case, therefore, is  a class  of its own and of no assistance when the rules  occupy the field governing the seniority position in a  particular manner.  The Rules alone are required to be looked  into   and  seniority   determined   in   accordance therewith. In  fact, this  Court in  Vir Pal  Chauhan’s case further pointed  out  that  when  reserved  candidates  were promoted from  the initial  stage to further stage, circular letter has  no application and the seniority of the reserved candidates was  required to  be determined  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  rule of interpretation in determining inter  se seniority  of the  reserved candidates and the  general candidates  and their  fusion  into  common seniority in  the higher  echelons over the 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 separate rule in that behalf. In  that case  it was  not brought  to the notice of this  Court  the  existence  of  operation  of  the  service conditions and  seniority rule  like Rule  11 of the Rule in this   case in  each grade/cadre  or services  in  Punjab  & Haryana Secretariat  service or Civil Services. On the other hand, this  Court was  invited to  deal  with  the  circular letter issued  by the  Punjab &  Haryana Government,  on the subject of  reservation rules.  The primary  question before the Full  Bench of  Punjab &  Haryana High  Court in Jaswant Singh v.  Secretary, Govt. of Punjab & Haryana [1990 (4) SLR 257] was  whether the  reserved candidates were eligible for consideration for promotion to the general vacancies? It was held that  they were  entitled. The  further question  was : whether their  placement  should  be  in  the  roster  point reserved for  Scheduled Castes and Backward Classes, or they are  required  to  be  adjusted  in  the  general  vacancies specified  in   the  roster?   In  Sabharwal’s   case,   the Constitution Bench  upheld that  the reserved candidates are entitled  to   compete  with   the  general  candidates  for promotion to  the general  post in 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 in  the  roster  to  the reserved  candidates.  Since  a  slight  deviation  to  that principle was required to be considered in other cases, Ajit Singh case  and other  cases were delinked. These cases were dealt with in Ajit Singh’s case. Therein the question was as to the  effect of  the consideration  of inter  se claims of

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reserved   candidates   and   general   candidate   to   the post/vacancy available  to the  general candidates.  In that background, this  Court considered in Ajit Singh’s case that since the  reserved candidates  promoted accordingly  to the principal of  reservation earlier  to the general candidates were not  considered, the  general candidates  and  reserved candidates are  required to  the considered for promotion to the general  vacancies on  the basis of erstwhile seniority. the inter  se seniority in the lower cadre is required to be considered and  to that  extend the  advantage  had  by  the reserved candidates  of earlier  promotion was not relevant. It is  also to  be noted  that the criteria for promotion in Ajit Singh’s  case  was  seniority-cum-merit  or  merit-cum- seniority in  which event  the principle  of seniority  also gains relevancy  and is  one of the factors to be taken into consideration. It  is settled  legal position  that  if  the selection is  to be  made for  promotion on the principle of merit and  ability, the  more  meritorious,  though  junior, steals a  march over  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 ability are  approximately equal,  only the 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  seniority being  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  and  reserved  candidates together  are   considered  for   promotion  to   a   higher cadre/grade. The  ration in  Ajit  Singh’s  case  should  be understood in  the above  backdrop and  perspective.  If  so understood, this  Court in  Ajit Singh’s  case has  not laid down any  contra principle  to  the  settled  legal  service jurisprudence; nor it intended to cut down the effect of the Rule   in vogue  for determination of the inter se seniority in each cadre/grade in accordance with the Rules. Therefore, it is  a simplistic euphoria to think that at all events the earlier promotions  had by the reserved candidates have been slide down  and put  back in  the vanguard  of the erstwhile seniority  position  in  the  feeder  cadre/grade.  If  this clarity of  though  is  kept  in  fore-front,  there  is  no occasion to adopt a mistaken application of the principle to all facts  in all  circumstance. In  Ajit Singh’s case, this Court did  not, therefore,  intend to lay down any principle contra  to  the  settled  legal  principle  that  continuous officiation to  a promoted post in accordance with the rules gives right  to seniority.  The observation of this Court in Ajit Singh’s  case that any other rule of construction would be  arbitrary   violating  Article  14  is  required  to  be understood in  that backdrop  and context. As stated in A.K. Gupta’s case,  it was  held that  both general  and reserved candidates being  citizen of  India are entitled to equality of opportunity  assured under  Article 14 and 16(1). As held in Thomas v. State of Kerala [1976 (1) SCR 906] and approved in Indra  Sawhney’s case,  the  right  to  equality  to  the reserved candidates  is a  fundamental right  under  Article 16(1)  read  with  Article  14  which  itself  guarantees  a fundamental right.  After the  Constitution (77th Amendment) Act, Article  16(4-A) gives fundamental rights to the Dalits and Tribes to promotion to a post or a service in the State, The protective  discrimination is  a contour  to bring about equality in  results to the Dalits and Tribes. It is a facet of equality under Article 14, 15 and 16 of the Constitution. Therefore,  when   competing  rights   between  general  and reserved candidates require adjudication and adjustment with

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the right  of general  candidates, the doctrine of violation of  Article   14  has  no  role  to  play  since  protective discrimination itself  is a  facet of Article 14 and it does not  again   deny  equality   to  the  reserved  candidates. Therefore, in  Ajit Singh’s  case when  this Court  had held that such  a rule  of  reservation  would  be  violative  of Article 14  and arbitrary,  it does not appear to have meant to  destroy   the  protective   discrimination  which  is  a consistent  thread   running  through  all  situations  when reservation was applied in favour of the reserved candidates and the  equality in  results in achieved. Thus, we hod that the euphoria  had by  the general candidates from the ratios in Vir  Pal Chauhan’s and Ajit Singh’s cases is short lived; it does  not help  in so  realising the correct implications arising from  the aforesaid  ratios. It  is settled law that administrative instructions  supplement the  law but  do not supplant  the   law.  It   fills  only   yawning  gaps.  The administrative instructions issued by the Haryana Government after Ajit Singh’s case flies in the facet of statutory Rule 11 of  the rules.  Therefore, it  crushes  itself  with  the grinding teeth  of the  above  statutory  Rule  11  and  the principle. Thus  considered, we  hold that the view taken by the High  Court in  that behalf is 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. Their seniority is not and cannot have the effect of  getting wiped  out after the promotion of general candidates from  their respective  dates of  promotion.  The general candidates  remain junior  in higher echelons to the reserved candidates as was held by 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  reiterate all  catena of  precedents  in  this behalf. Suffice it to state that the appellant kept sleeping over their  rights for long and elected to wake up when they 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 to examined in the light of law laid in Sabharwal’s  case.   Thus  earlier   promotions  cannot   be reopened? Only  those cases arising after that date would be examined in  the light  of the  law laid down in Sabharwal’s case Vir  Pal Chauhan’s  case and equally Ajit Singh’s case. If the  candidate 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  which two  of us,  K. Ramaswamy and G.B. Pattanik, JJ. were  members, had  reiterated the above view and it was also held  that  all  the  prior  promotions  are  not  open judicial review.  In Chander  Pal & Ors. v. State of Haryana [W.P. (C) Nos. 4715-18/93 dated December 4, 1996] a Bench of two judges consisting of S.C. Agrawal and G.T. Nanavati, JJ. considered the  effect of  Vir Pal  Chauhan’s,  Ajit  Singh, Sabharwal and  A.B.S Karmachari  Sangh’s cases and held that the seniority  of those  respondents who had already retired or promoted  to higher  posts could  not be  disturbed.  The seniority of  the petitioner  therein and the respondent who were holding the post in the same level or in the same cadre would be  adjusted keeping  in view  the ratio  in  Vir  Pal

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Chauhan and  Ajit Singh’s  cases; but promotion, if any, had been given  to any  of them during the pendency of this writ petition, was  directed not  to be  disturbed. Therein,  the candidates appointed  on the basis of economic backwardness, social  status   or  occupation   etc.  were   eligible  for appointment against  the post  reserved for 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 attempts of the appellants to re-do the  seniority had  by them  in various  cadres/grades though in  the same services according to 1974 Rules or 1980 Rule, are  not amenable  to judicial  review at this belated stage. The  High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well.      Thus we hold that the decision of the High Court is not vitiated by  any error  of application of wrong principle of law warranting interference.      The  appeal   is  accordingly  dismissed  but,  in  the circumstance, without costs.