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CASE NO.: Appeal (civil)  3792 of 1989

PETITIONER: AJIT SINGH AND ORS.

RESPONDENT: STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT: 16/09/1999

BENCH: A.S.ANAND CJI & K.VENKATASWAMI & G.B.PATTANAIK & S.P.KURDUKAR & M.JAGANNADHA RAO  

JUDGMENT: JUDGMENT

DELIVERED BY: M.JAGANNADHA RAO, J.

M.JAGANNADHA RAO,J.

         We  have  before  us   these  three  Interlocutory Applications  Nos.  1 to 3 filed for "clarification" by  the State  of  Punjab in Civil Appeal Nos.3792-94 of 1989  (Ajit Singh  Januja  & Others vs.  State of Punjab) [1996 (2)  SCC 215]  (hereinafter  referred  to  as   Ajit  Singh  in  this judgment).   The  matter  concerns  a  dispute  relating  to of reserved candidates and general candidates.

         At  the  outset  we  make it clear  that  in  this judgment we are not concerned with the reservation policy of the  State  or  with the validity of  any  procedure  fixing roster   points  for  purpose  of  promotion   of   reserved candidates.   We  are  here  dealing  only  with  a  limited question  relating  mainly  to  seniority  of  the  reserved candidates promoted at roster points.

         We  also  make it clear that what we are  deciding today is based on principles already laid down by this Court since  1950  and in particular since 1963.  Basing on  those principles, we are concerned with the limited question as to whether  Union of India vs.  Virpal Singh [1993 (6) SCC 685] and  Ajit  Singh Januja vs.  State of Punjab [1996  (2)  SCC 215],  which  were earlier decided in favour of the  general candidates  are  to  be  affirmed   or  whether  the  latter deviation  made  in Jagdish Lal vs.  State of Haryana  [1997 (6)  SCC  538]  against  the general candidates,  is  to  be accepted.    How  these  IAs  1-3   came  to  be  filed  for clarification:?   The circumstances under which the State of Punjab  has  filed  these  IAs   for  clarification  are  as follows:-  Initially,  in  a  case relating  to  the  Indian Railways,  a two Judge Bench of this Court in Union of India vs.   Virpal Singh [1995 (6) SCC 685] (hereinafter  referred to  as  Virpal)  held  that it  was  "permissible"  for  the Railways  to say that reserved candidates who get  promotion at  the  roster  points  would  not  be  entitled  to  claim seniority at the promotional level as against senior general candidates  who got promoted at a later point of time to the

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same  level.  It was further held that "it would be open" to the  State  to provide that as and when the  senior  general candidate  got promoted under the rules, - whether by way of a seniority rule or a selection rule - to the level to which the  reserved  candidate was promoted earlier,  the  general candidate would have to be treated as senior to the reserved candidate  (the  roster point promotee) at  the  promotional level as well, unless, of course, the reserved candidate got a further promotion by that time to a higher post.  (This is described  for convenience, as the ’catch up’ rule) Close on the  heels of Virpal, came Ajit Singh from Punjab, before  a three  Judge  Bench and the Bench held that the question  of seniority  at  the  promotional level had to be  decided  by applying  the provisions of Article 14 and 16 (1) and if any order,   circular  or  rule   provided  that  such  reserved candidates  who  got promotions at roster points were to  be treated  as senior to the senior general candidates who were promoted  later, then such an order, circular or rule  would be violative of Article 14 and 16(1).  It was, however, held that  the  position  would be different if by the  time  the senior  general candidate got his promotion under the normal rules  of seniority or selection, the reserved candidate who was  promoted earlier at the roster point, had got a further promotion.  In other words, the ‘catch up’ principle as laid down  in  Virpal  was  accepted.  In  coming  to  the  above conclusions,   the  three  Judge   Bench  relied  upon   the principles  laid  down  by the nine Judge  Bench  in  Indira Sawhney  vs.  Union of India [1992 Suppl.  (3) SCC 251]  and by  the  Constitution Bench in R.K.Sabharwal vs.   State  of Punjab  [1995  (2) SCC 745].  These two cases had laid  down earlier  the  manner  in  which the rights  of  the  general candidates and the reserved candidates ought to be balanced. In  Ajit Singh the Court said the balance must be maintained in  such  a manner that there was no reverse  discrimination against  the general candidates and that any rule,  circular or  order  which gave seniority to the  reserved  candidates promoted  at roster point, would be violative of Articles 14 and 16(1) of the Constitution of India.  The Indian Railways following  the law laid down in Virpal issued a circular  on 28.2.97  to the effect that the reserved candidates promoted at  roster points could not claim seniority over the  senior general  candidates  promoted  later.  The State  of  Punjab after   following  Ajit  Singh   was  proceeding  to  revise seniority  lists  and make further promotions of the  senior general  candidates  who had reached the level to which  the reserved  candidates had reached earlier.  At that point  of time,  another three Judge Bench came to decide a case  from the  State  of Haryana in Jagdish Lal vs.  State of  Haryana [1997  (6)  SCC 538] and took a view contrary to Virpal  and Ajit  Singh.   It held that the general rule in the  Service Rules  relating  to  seniority from the date  of  continuous officiation  which  was  applicable to  candidates  promoted under  the  normal  seniority/selection procedure  would  be attracted  even  to the roster point promotees as  otherwise there   would  be  discrimination   against   the   reserved candidates.   The  Bench  also observed that  the  right  to promotion  was  a  statutory right while the rights  of  the reserved  candidates under Article 16(4) and Article  16(4A) were  fundamental  rights  and in that behalf,  it  followed Ashok  Kumar  Gupta vs.  State of U.P.  [1997 (5)  SCC  201] where  a  similar  principle  had   been  laid  down.    The Contentions  in  brief:   Sri Hardev Singh,  learned  senior counsel for the State of Punjab submitted that since Jagdish Lal  decided something contrary to Virpal and Ajit Singh the State  was in a ‘quandary what to do.  In these IAs and  the

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connected batch of cases which have been listed together and heard, contentions have been raised by Sri Rajeev Dhawan for the  State  of  Haryana  and  Sri  Altaf  Ahmad,  Additional Solicitor  General  of India for the State of Rajasthan  and the  Union  of India.  According to the learned counsel  the ’roster  point  promotees’, ( i.e.  a reserved candidate  at Level 1 who is promoted to Level 2 at the roster point meant for  such promotion) namely, the reserved candidates  cannot claim  seniority  on  the basis of  continuous  officiation. However,  learned  Additional  Solicitor General,  Sri  C.S. Vaidyanathan  for  the Indian Railways has taken a  contrary stand-,  in  spite  of the fact that  Railways  has  already accepted  Virpal  and issued a circular on  28.2.1997  -that roster  point  promotions  in the Railways  did  not  confer seniority.   Senior counsel Sri Harish Salve and others  for the  general candidates contended that Virpal and Ajit Singh were  correctly decided and Jagdish Lal was wrongly decided. Senior counsel Sri K.  Parasaran, Sri D.D.  Thakur, Sri M.N. Rao,  and  others  including Sri Jose P.  Verghese  for  the reserved  candidates  relied  upon   Jagdish  Lal  and  they contended  that Virpal and Ajit Singh were wrongly  decided. The  validity of the ’catch-up’ rule accepted in Virpal  and Ajit  Singh in favour of general candidates was also put  in issue.   One additional point was also argued.  This related to  the "prospectivity" of R.K.Sabharwal and Ajit Singh.  In R.K.Sabharwal this Court has held that once the roster point promotions  were  all  made  in   respect  of  the  reserved candidates, the roster ceased to operate.  Unless any of the reserved  candidates  already promoted had retired  or  been further  promoted  etc.   and  unless there  was  a  vacancy generated  at  the points already filled,  fresh  candidates from  the  reserved  candidates  could not  be  promoted  by further  operation of the roster.  Having so held, the Court said that the judgment would be "prospective".  The reserved candidates  now contend that the above direction means  that not  only  the reserved candidates so promoted in excess  of the  roster  points  could not be reverted  but  that  their seniority  against such excess promotions was also protected vide Sabharwal.

         Likewise,  in regard to Ajit Singh, the contention was  as  follows:  Assume there are rosters at Level  1  and again at Level 2.  Assume that a reserved candidate has been promoted  from Level 1 to Level 2 on the basis of the roster point  and again from Level 2 to Level 3 on roster point.  A senior  general candidate at Level 1 has later reached Level 3  and by that date the reserved candidate is still at Level 3.   Assume that the plea of the general candidates that the general  candidate  became senior at Level 3 to the  earlier promoted  reserved  candidate,  is  correct.   Ignoring  the senior  general candidate at Level 3, the reserved candidate has been further promoted to Level 4 before 1.3.96 when Ajit Singh was decided.  In that event, the prospective operation of  Ajit Singh means, according to the reserved  candidates, that  such  a  reserved  candidate is not  only  not  to  be reverted  but  his  seniority  at  Level 4  is  also  to  be protected.  The general candidates say that after Ajit Singh was  decided  on 1.3.96 the said promotion made to Level  4, ignoring  the case of the senior general candidate at  Level 3,  is  to  be reviewed and seniority at Level 3  is  to  be refixed.   At Level 4, - when the general candidate is  also promoted to Level 4, the seniority of the reserved candidate has  also to be fixed on the basis as to when he would  have otherwise  been  promoted to Level 4, after considering  the case  of his senior general candidate at Level 3.  We  shall

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be dealing with these main contentions in this judgment.  So far  as  the individual points raised in the Civil  Appeals, Contempt  Cases  and other IAs are concerned, we shall  deal with them by separate judgments for convenience.

         On  the above contentions, the following four main points arise for consideration:  Points:

..........L.....T.......T.......T.......T.......T.......T..J           (1)  Can  the  roster point promotees  (  reserved           category)  count  their seniority in the  promoted           category  from  the  date   of  their   continuous           officiation  vis-a-vis general candidates who were           senior  to them in the lower category and who were           later  promoted  to  the  same  level?   (2)  Have           Virpal,  Ajit Singh been correctly decided and has           Jagdish  Lal been correctly decided?  (3)  Whether           the  ’catch-up’  principles contended for  by  the           general  candidates are tenable?  (4) What is  the           meaning   of   the   ’prospective’  operation   of           Sabbarwal  and  to what extent can Ajit  Singh  be           prospective?   .lm10  Points (1) and (2):  A  word           with  regard  to Article 16(4) & Article 16  (4A):           Learned  senior counsel for the general candidates           submitted  at the outset that while Indira Sawhney           permitted reservations for a period of five years,           the  Constitution  was  amended  within  the  said           period   and  Article   16(4A)  was   incorporated           permitting   reservation   in    promotions    but           restricting  the  same  to  Scheduled  Castes  and           Scheduled  Tribes.  Learned counsel submitted that           it  was  their contention that this amendment  was           not constitutionally permissible but this question           need not be decided in this batch as separate writ           petitions  challenging  the  validity  of  Article           16(4A)  are pending in this Court.  In view of the           above  stand,  we shall proceed in these cases  on           the assumption that Article 16(4A) is valid and is           not  unconstitutional.  At the same time, we  also           note  the  contention of the  reserved  candidates           that   Article  16(4A)  must  be  deemed   to   be           constitutional  unless  otherwise  declared.   .pa           Article  16(1), 16(4) and 16(4A):  In the  context           of the first and second questions, it is necessary           to  refer  to the relevant parts of Article 16  of           the  Constitution of India.  Sub-clauses (1),  (4)           and  (4A)  of Article 16 which have  relevance  in           this  case  read  as   follows:   "Article  16(1)-           Equality  of  appointment  in  matters  of  public           employment:-   There   shall    be   equality   of           opportunity  for all citizens in matters  relating           to  employment or appointment to any office  under           the State.

         (2)......................................

         (3)......................................

         (4)  Nothing  in  this Article shall  prevent  the           State   from   making  any   provision   for   the           reservation  of appointment or posts in favour  of           any  backward  class  of citizens  which,  in  the           opinion   of   the  State,   is   not   adequately           represented in the services under the State.

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         (4A)  Nothing  in this Article shall  prevent  the           State from making any provision for reservation in           matters  of  promotion of any class or classes  of           posts in the services under the State in favour of           Scheduled  Castes and the Scheduled Tribes  which,           in  the  opinion of the State are  not  adequately           represented in the services under the State."

         I.......T.......T.......T.......T.......T.......T.......T..J           Constitution  is  not  static:  We  shall  at  the           outset  deal  with  the contention raised  by  Sri           D.D.Thakur,  learned senior counsel appearing  for           the reserved candidates that Article 16(4) must be           interpreted   keeping  in   mind  the   conditions           prevailing  fifty years ago when the  Constitution           was   drafted   and  when    Article   16(4)   was           incorporated in the Constitution.  Learned counsel           submitted that the founding fathers were conscious           that  a  special  provision  for  reservation  was           necessary  to  see  that the backward  classes  of           citizens   were  adequately   represented  in  the           services.   Hence  an interpretation  which  would           advance  the  said  objective   must  be  applied.           Reliance  was  also  placed on  the  Statement  of           Objects  and  Reasons  in   connection  with   the           incorporation of Article 16(4A).  In fact, all the           learned   counsel  appearing   for  the   reserved           candidates  contended that the said officers could           not be treated as equals to the general candidates           and  that  their  backwardness   and  past  social           oppression must be borne in mind.  Nobody can deny           that  the  above approach is the proper one  while           dealing  with  the reserved classes.  The  primary           purpose of Article 16(4) and Article 16(4A) is due           representation  of  certain   classes  in  certain           posts.   However,  we  must bear in mind  and  not           ignore  that  there are other provisions,  namely,           Articles   14,  16(1)  and   Article  335  of  the           Constitution  which are also very important.   The           Constitution  has  laid  down in Articles  14  and           16(1) the permissible limits of affirmative action           by  way  of reservation under Articles  16(4)  and           16(4A).  While permitting reservations at the same           time,  it  has also placed certain limitations  by           way  of Articles 14 and 16(1) so that there is  no           reverse  discrimination.  It has also incorporated           Article   335   so   that    the   efficiency   of           administration   is   not    jeopardized.    While           interpreting provisions of the Constitution and in           particular  fundamental rights of citizens, it  is           well to bear in mind certain fundamental concepts.           In  McCulloch  Vs.  Maryland ( 1819) 4  Wheel  (17           U.S.316), Chief Justice Marshall cautioned that we           must keep in mind that it is the Constitution that           we  are expounding.  He said that the Constitution           was  intended  to endure for ages to come and  had           consequently  to be adapted to the various  crises           of  human  affairs from time to time.  Brandeis  J           wrote  :   "Our  Constitution is  not  a  straight           jacket.   It is a living organism.  As such it  is           capable  of growth, of expansion and of adaptation           to   new  conditions.    Growth  implies  changes,           political,  economic and social.  Growth which  is           significant    manifests    itself    rather    in

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         intellectual  and  moral conceptions  of  material           things"  (Brandeis  Papers, Harvard  Law  School).           Similarly, in a beautiful metaphor Mr.  J.M.  Beck           said as follows:

         "The  Constitution is neither, on the one hand,  a           Gibraltor Rock, which wholly resists the ceaseless           washing  of time and circumstances, nor is it,  on           the  other  hand, a sandy beach, which  is  slowly           destroyed  by erosion of the waves.  It is  rather           to  be  likened  to a floating dock  which,  while           firmly attached to its moorings, and not therefore           at  the caprice of the waves, yet rises and  falls           with   the  tide  of   time   and   circumstances"           (Constitution  of  the United  States,  Yesterday,           Today  and  Tomorrow’ ( 1924)  (Oxford  University           Press)."

L.........I.....T.......T.......T.......T.......T.......T..J           Such  should  be  and  would be  our  approach  in resolving  the  important constitutional issues  arising  in these IAs and in this batch of cases.

         We  shall  first deal with the fundamental  rights under  Articles 14 and 16(1) and then with the nature of the rights  of the reserved candidates under Articles 16(4)  and 16(4A).

         Articles  14 and 16(1):  Is right to be considered for promotion a fundamental right?

         Article   14  and  Article   16(1)   are   closely connected.   They deal with individual rights of the person. Article  14  demands that the "State shall not deny  to  any person  equality  before the law or the equal protection  of the  laws".   Article 16(1) issues a positive  command  that "there  shall be equality of opportunity for all citizens in the  matters  relating to employment or appointment  to  any office  under  the State".  It has been held  repeatedly  by this  Court that sub-clause (1) of Article 16 is a facet  of Article 14 and that it takes its roots from Article 14.  The said sub- clause particularizes the generality in Article 14 and   identifies,   in  a  constitutional  sense   "equality opportunity" in matters of employment and appointment to any office  under the State.  The word ’employment’ being wider, there  is  no  dispute that it takes within  its  fold,  the aspect  of  promotions to posts above the stage  of  initial level  of  recruitment.   Article 16(1)  provides  to  every employee  otherwise  eligible  for promotion  or  who  comes within  the zone of consideration, a fundamental right to be "considered"  for  promotion.  Equal opportunity here  means the  right  to be "considered" for promotion.  If  a  person satisfies  the  eligibility  and zone criteria  but  is  not considered  for  promotion,  then  there  will  be  a  clear infraction  of his fundamental right to be "considered"  for promotion,  which is his personal right.  "Promotion"  based on  equal  opportunity  and  ’seniority’  attached  to  such promotion  are  facets  of fundamental right  under  Article 16(1):   Where promotional avenues are available,  seniority becomes  closely interlinked with promotion provided such  a promotion  is  made  after complying with the  principle  of equal  opportunity stated in Article 16(1).  For example, if the  promotion  is by rule of ‘seniority-cum-  suitability’, the  eligible  seniors at the basic level as  per  seniority fixed  at  that  level  and  who  are  within  the  zone  of

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consideration  must be first considered for promotion and be promoted  if found suitable.  In the promoted category  they would  have  to count their seniority from the date of  such promotion  because  they get promotion through a process  of equal  opportunity.   Similarly, if the promotion  from  the basic  level is by selection or merit or any rule  involving consideration  of  merit, the senior who is eligible at  the basic level has to be considered and if found meritorious in comparison  with others, he will have to be promoted  first. If  he  is  not found so meritorious, the next in  order  of seniority is to be considered and if found eligible and more meritorious  than the first person in the seniority list, he should be promoted.  In either case, the person who is first promoted  will normally count his seniority from the date of such  promotion.  (There are minor modifications in  various services  in  the  matter of counting of seniority  of  such promotees  but  in all cases the senior most person  at  the basic level is to be considered first and then the others in the  line of seniority).  That is how right to be considered for promotion and the ‘seniority’ attached to such promotion become  important facets of the fundamental right guaranteed in  Article 16(1).  Right to be considered for promotion  is not  a mere statutory right:  The question is as to  whether the right to be considered for promotion is a mere statutory right  or  a fundamental right.  Learned senior counsel  for the  general candidates submitted that in Ashok Kumar  Gupta Vs.   State  of U.P.  (1997 (5) SCC 201), it has  been  laid down that the right to promotion is only a "statutory right" while  the  rights covered by Articles 16(4) and 16(4A)  are "fundamental  rights".  Such a view has also been  expressed in Jagdish Lal and some other latter cases where these cases have been followed.  Counsel submitted that this was not the correct  constitutional  position.  In this  connection  our attention  has been invited to para 43 of Ashok Kumar Gupta. It reads as follows:-

         "It would thus be clear that right to promotion is a  statutory  right.   It is not a fundamental  right.   The right  to promotion to a post or class of posts depends upon the  operation of the conditions of service.  Article  16(4) read  with  Articles  16(1)  and 14 guarantees  a  right  to promotion  to Dalits and Tribes as a fundamental right where they  do not have adequate representation consistently  with the  efficiency of administration...  before expiry  thereof (i.e.  5 years rule), Article 16(4) has come into force from 17.6.1995.  Therefore, the right to promotion continues as a constitutionally  guaranteed  fundamental right." A  similar view was expressed in Jagdishlal and followed in some latter cases.   In  the  above  passage,  it  was  laid  down  that promotion  was a statutory right and that Articles 16(4) and 16(4A)  conferred  fundamental rights.  In our opinion,  the above  view expressed in Ashok Kumar Gupta, and followed  in Jagdish  Lal and other cases, if it is intended to lay  down that   the   right  guaranteed  to   employees   for   being "considered"  for  promotion according to relevant rules  of recruitment by promotion(i.e.  whether on basis of seniority or  merit)  is only a statutory right and not a  fundamental right,  we  cannot accept the proposition.  We have  already stated  earlier  that the right to equal opportunity in  the matter  of  promotion  in  the  sense   of  a  right  to  be "considered"  for  promotion is indeed a  fundamental  right guaranteed  under  Article  16(1) and this  has  never  been doubted  in  any other case before Ashok Kumar Gupta,  right from  1950.   Articles  16(4) and 16(4A) do not  confer  any

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fundamental  right  to  reservation:  We next  come  to  the question whether Article 16(4) and Article 16(4A) guaranteed any  fundamental  right to reservation.  It should be  noted that  both these Articles open with a non-obstante clause  - "Nothing in this Article shall prevent the State from making any  provision  for  reservation.....".  There is  a  marked difference  in the language employed in Article 16(1) on the one  hand and Article 16(4) and Article 16(4A).  There is no directive  or command in Article 16(4) or Article 16(4A)  as in  Article 16(1).  On the face of it, the above language in each  of  Articles 16(4) and 16(4A), is in the nature of  an enabling  provision  and  it has been so held  in  judgments rendered  by  Constitution Benches and in other cases  right from  1963.   We may in this connection point out  that  the attention  of  the  learned Judges who decided  Ashok  Kumar Gupta  and  Jagdish Lal was not obviously drawn to a  direct case  decided  by a Constitution Bench in C.A.Rajendran  vs. Union  of  India 1968 (1) SCC 721 which arose under  Article 16(4).   It  was clearly laid down by the five  Judge  Bench that  Article  16(4)  was only an enabling  provision,  that Article  16(4)  was not a fundamental right and that it  did not  impose  any constitutional duty.  It only  conferred  a discretion  on  the  State.  The passage in the  above  case reads as follows:

         "Our  conclusion  therefore is that Article  16(4) does  not confer any right on the petitioner and there is no constitutional  duty  imposed  on  the  government  to  make reservation  for  Scheduled  Castes  and  Scheduled  Tribes, either  at  the initial stage or at the stage of  promotion. In  other words, Article 16(4) is an enabling provision  and confers  discretionary  power  on  the   State  to  make   a reservation  of  appointment in favour of backward class  of citizens   which,   in  its   opinion,  is  not   adequately represented in the services of the State."

         The  above  principle was reiterated in two  three Judge  Bench  judgments  in  P&T  SC/ST  Employees’  Welfare Association  vs.   Union of India 1988 (4) SCC 147;  and  in SBI  SC/ST Employees Welfare Association vs.  State Bank  of India  1996 (4) SCC 119.  In fact, as long back as in  1963, in  M.R.Balaji vs.  State of Mysore 1963 Suppl.  (1) SCR 439 (at  p.474)  which was decided by Five learned  Judges,  the Court  said the same thing in connection with Articles 15(4) and  Article  16(4).  Stating that Article 15(4)  and  16(4) were  only enabling provisions, Gajendragadkar, J.  ( as  he then was ) observed:

         "In  this connection, it is necessary to emphasise that  Article  15(4)  like  Article  16(4)  is  an  enabling provision,  it  does  not impose an obligation,  but  merely leaves it to the discretion of the appropriate government to take suitable action, if necessary."

         Unfortunately, all these rulings of larger Benches were  not  brought to the notice of the Bench which  decided Ashok  Kumar Gupta and Jagdish Lal and to the Benches  which followed  these  two  cases.  In view  of  the  overwhelming authority  right from 1963, we hold that both Articles 16(4) and  16(4A) do not confer any fundamental rights nor do they impose  any constitutional duties but are only in the nature of  enabling provision vesting a discretion in the State  to

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consider   providing   reservation  if   the   circumstances mentioned  in  those Articles so warranted.  We  accordingly hold  that on this aspect Ashok Kumar Gupta, Jagdishlal  and the cases which followed these cases do not lay down the law correctly.   Power  is  coupled with duty:   Learned  senior counsel for the reserved candidates, Sri K.Parasaran however contended  that  Article 16(4) and Article 16(4A)  confer  a power  coupled with a duty and that it would be  permissible to  enforce  such  a  duty by issuing a  writ  of  mandamus. Reliance  for  that purpose was placed upon Comptroller  and Auditor  General of India, Gian Prakash vs.  K.S.Jagannathan [1986  (2)  SCC  679] and also on Julius  vs.   Lord  Bishop (1880)  5  AC 214 which case was followed by this  Court  in Commissioner  of  Police  vs.  Gordhandas Bhanji  [1952  SCR 135].  We are unable to agree with the above contention.  As pointed out earlier, the Constitution Bench of this Court in C.A.   Rajendran Vs.  Union of India (1968(1) SCR 721)  held that Article 16(4) conferred a discretion and did not create any  constitutional  duty or obligation.  In fact,  in  that case,  a  mandamus  was sought to direct the  Government  of India  to  provide  for reservation under Article  16(4)  in certain  Class  I  and Class II  services.   The  Government stated  that  in  the  context of Article  335  and  in  the interests  of efficiency of administration at those  levels, it was of the view that there should be no reservation.  The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused.  Even in M.R.  Balaji’s case,  the  Constitution Bench declared that  Article  16(4) conferred   only  a  discretion.   It   is  true   that   in Jagannathan’s case, the three Judge Bench issued a mandamus, after referring to Article 142, that the Government must add 25  marks  to  SC/ST  candidates who had  taken  the  S.A.S. Examination  for  promotion  as Sections Officers  and  also that,  in  future, a reduced minimum marks must be  provided and  announced  before  the  examination.   The  Court  also observed  that the Department had not passed orders as per a general  O.M.   of the Government dated 21.9.1977.  But  the attention  of the Court was not drawn to the judgment of the Constitution Bench in C.A.  Rajendran’s case and other cases to which we have referred earlier.  Further, if the State is of  the  opinion  that  in the interests  of  efficiency  of administration,  reservation  or relaxation in marks is  not appropriate,  then it will not be permissible for the  Court to   issue  a  mandamus  to   provide  for  reservation   or relaxation.   We also note that in Superintending  Engineer, Public  Health  Vs.   Kuldeep  Singh  (  1997(9)  SCC  199), Jagannathan’s  case  was followed and reference was made  to Article  16(4) and Article 16(4A) and to the principle  that where  a power is coupled with a duty as in Julius Vs.  Lord Bishop  and  Commissioner of Police Vs.  Gordhandas  Bhanji, the  same could be enforced by the Court.  But we may  point out that even in Kuldeep Singh’s case, no reference was made to  C.A.  Rajendran and other cases.  We, accordingly,  hold that  the view in Jagannathan and Kuldeep Singh’s cases that a  mandamus can be issued either to provide for  reservation or  for  relaxation  is  not correct  and  runs  counter  to judgments  of  earlier Constitution Benches and,  therefore, these  two  judgments cannot be said to be laying  down  the correct law.

         Balancing  of  fundamental  rights  under  Article 16(1)  and the rights of reserved candidates under  Articles 16(4) and 16(4A):

         Having  noticed  that Article 16(1) deals  with  a

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fundamental  right and Article 16(4) and Article 16(4A)  are enabling  provisions, we next come to the need for balancing Article  16(1)  and  Articles  16(4)  and  16(4A).   Such  a balancing principle was enunciated by the Constitution Bench in  1963 in M.R.  Balaji Vs.  State of Mysore :  1963 Suppl. (1)  SCR 439 wherein it was stated that the interests of the reserved  classes must be balanced against the interests  of other segments of society.  In Indira Sawhney’s case, Jeevan Reddy,  J.   explained  how  the fundamental  right  of  the citizens  as  declared in Article 16(1) has to  be  balanced against  the  claims of the reserved candidates  in  Article 16(4).  The learned Judge stated:  (See page 734 para 808):

         "It  needs  no emphasis to say that the  principal aim  of  Articles  14  and 16 is equality  and  equality  of opportunity  and that clause (4) of Article 16 is a means of achieving  the very same objective.  Clause (4) is a special provision - though not an exception to clause (1).  Both the provisions  have  to be harmonised keeping in mind the  fact that  both  are restatements of the principles  of  equality enshrined  in Article 14.  The provision under Article 16(4) -  conceived in the interests of certain sections of society -  should  be  balanced against the  guarantee  of  equality enshrined  in clause (1) of Article 16 which is a  guarantee held  out to every citizen and to the entire society".   The same  principle  was  reiterated  in  the  judgment  of  the Constitution  Bench  in Post Graduate Institute  of  Medical Education and Research vs.  Faculty Association 1998 (4) SCC 1 after referring to several earlier cases.  It was stated : (P.22)  " The doctrine of equality of opportunity in  clause (1)  of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality".

         In Ajit Singh, in the context of seniority for the roster point promotees it was observed :  (p.733 of SCC)

         "For  attracting meritorious and talented  persons into  service,  a  balance has to be  struck,  while  making provisions  for  reservation in respect of a section of  the society.   This  Court  from time to time has  been  issuing directions to maintain that balance...."

         The  above  approach  in Balaji  in  1963,  Indira Sawhney  in 1991 later in Ajit Singh in 1996 and in PGI Case in  1998  for  striking a balance  between  the  individuals rights  under  Articles  14 and 16(1) on the  one  hand  and affirmative  action  under  Articles 16(4) & 16(4A)  on  the other, appears to us to be on the same lines as the approach of the U.S.  Supreme Court under the Equal Protection Clause in  Richmond Vs.  Croson and Co.  (1989) 488 U.S.  469 (  at 493).   In that case, it was stated that while dealing  with the affirmative action taken in favour of African-Americans, the  Equal  Protection  Clause  which  conferred  individual rights  have  to  be kept in mind by  the  Courts.   Justice Sandra Day O’Connor observed:

         "The  Equal  Protection Clause of  the  Fourteenth Amendment  provides  that  "No State shall ....deny  to  any person  within its jurisdiction the equal protection of  the

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laws"  (emphasis  added).   As this Court has noted  in  the past,  the  "rights  created  by the first  section  of  the Fourteenth  Amendment  are, by its terms, guaranteed to  the individuals.   The  rights established are personal  rights" (Shelly Vs.  Kraemer) 334 U.S.(1948) "

         The  same  learned  Judge,   Justice  Sandra   Day O’Connor,  stated again recently in Adarand Constructors Inc Vs.  Pena ( 1995) 515 U.S.200, that in such matters relating to  affirmative action, the Court would launch an inquiry to ensure that the

         "personal  right  to equal protection of the  laws has not been infringed."

         Thus  this  Court has to ensure that,  in  matters relating  to  affirmative  action by the State,  the  rights under  Articles  14 and 16 of the individual to equality  of opportunity,  are not affected.  A reasonable balance has to be  struck  so that the affirmative action does not lead  to reverse  discrimination.  We shall here refer to the  speech of Dr.  Ambedkar in the Constituent Assembly:

         "Supposing,  for  instance, we were to concede  in full  the demands of these communities who have not been  so far  employed in the public services to the fullest  extent, what  would  really  happen  is,   we  shall  be  completely destroying  the  first  proposition upon which  we  are  all agreed, that there shall be equality in opportunity".

         Krishna Iyer,J.  also cautioned in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Vs.  Union of India ( 1981 (1) SCC 246 ( at P.286) that "care must be taken to see that classification  is not pushed to such an extreme point as to make  the  fundamental  right  to   equality  cave  in   and collapse".   The  learned  Judge relied  upon  Triloki  Nath Khosla  Vs.   State of Jammu and Kashmir ( 1974 (1) SCC  19) and  State  of  Kerala  Vs.  Thomas (  1976  (2)  SCC  310). Krishna  Iyer,  J.  stated in Soshit Karamchari Case,  (para 102)  that  reservations cannot lead to an  ‘overkill’.   At page  301, His Lordship said:  "The remedy of ’reservations’ to correct inherited imbalances must not be an overkill".

         In  other  words, affirmative action  stops  where reverse   discrimination   begins.     (i)   Efficiency   of administration and Article 335:  It is necessary to see that the rule of adequate representation in Article 16(4) for the Backward  Classes and the rule of adequate representation in promotion  for  Scheduled Castes and Scheduled Tribes  under Article  16(4A)  do not adversely affect the  efficiency  in administration.   In  fact, Article 335 takes care  to  make this   an  express  constitutional   limitation   upon   the discretion  vested  in the State while making provision  for adequate  representation  for the  Scheduled  Castes/Tribes. Thus,  in  the matter of due representation in  service  for Backward Classes and Schedule Castes and Tribes, maintenance of  efficiency of administration is of paramount importance. As  pointed  in  Indira  Sawhney,   the  provisions  of  the Constitution  must  be interpreted in such a manner  that  a sense  of  competition  is   cultivated  among  all  service personnel,   including   the   reserved  categories.    (ii)

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Reservation  and effect of the Roster Point reservation:  It must  be  noted that whenever a reserved candidate goes  for recruitment  at  the initial level (say Level 1), he is  not going  through  the  normal process of  selection  which  is applied  to  a general candidate but gets appointment  to  a post  reserved  for  his group.  That is what  is  meant  by ‘reservation’.  That is the effect of ‘reservation’.  Now in a case where the reserved candidate has not opted to contest on  his  merit  but has opted for the reserved  post,  if  a roster  is  set  at Level 1 for promotion  of  the  reserved candidate  at various roster points to level 2, the reserved candidate  if he is otherwise at the end of the merit  list, goes  to  Level 2 without competing with general  candidates and  he  goes up by a large number of places.  In  a  roster with 100 places, if the roster points are 8, 16, 24 etc.  at each  of these points the reserved candidate if he is at the end  of  the  merit  list,  gets promotion  to  Level  2  by side-stepping  several  general  candidates.   That  is  the effect  of  the roster point promotion.  It deserves  to  be noticed  that  the  roster points fixed at Level 1  are  not intended  to  determine  any seniority at  Level  1  between general candidates and the reserved candidates.  This aspect we  shall consider again when we come to Mervyn Continho vs. Collector  of  Customs [1966 (3) SCR 600] lower  down.   The roster  point  merely becomes operative whenever  a  vacancy reserved  at Level 2 becomes available.  Once such vacancies are   all  filled,  the  roster   has  worked  itself   out. Thereafter  other  reserved candidates can be promoted  only when a vacancy at the reserved points already filled arises. That  was  what was decided in R.K.Sabharwal vs.   State  of Punjab.   (iii) Seniority of roster promotees:  Question  is whether  roster point promotions from Level 1 to Level 2  to reserved  candidates  will also give seniority at  Level  2? This  is  the crucial question.  We shall here refer to  two lines  of  argument  on behalf of the  reserved  candidates. Ajit Singh was an appeal from the judgment of the Full Bench of  the  Punjab  & Haryana High Court in Jaswant  Singh  Vs. Secretary  to  Govt.  Punjab Education Department, 1989  (4) S.L.R.   257.   In  that case, reliance was  placed  by  the reserved  candidates  on  a general Circular  dated  19.7.69 issued by the Punjab Government which stated that the roster point  promotions  would  also confer seniority.   In  fact, while  dismissing  the Writ petitions filed by  the  general candidates  the  High  Court  declared that  the  State  was obliged  to count seniority of the reserved candidates  from the  date  of  their  promotion as per  the  Circular  dated 19.7.69.   The  judgment of the Full Bench was  reversed  by this  Court in Ajit Singh in the appeal filed by the general candidates.  That resulted in the setting aside of the above declaration regarding seniority of roster point promotees as stated  in  the Punjab circular dated 19.7.69..  But  before us,  reliance  was placed by the reserved candidates as  was done  in  Jagdish  Lal,  upon  the  general  seniority  Rule contained  in various Punjab Service Rules applicable in the Civil  Secretariat, Education, Financial Commissioner,  etc. Departments  which  Rules  generally  deal  with  method  of recruitment,   probation,   seniority   and  other   service conditions.   All  these Rules provide a single  scheme  for recruitment   by  promotion  on   the  basis  of  seniority- cum-merit  and  then for seniority to be determined  in  the promotional  post from the date of "continuous officiation", whenever  the  promotion is as per the method prescribed  in those  Rules.   It  is on this seniority  rule  relating  to ‘continuous  officiation’  at  the  promotional  level  that reliance was placed before us by the reserved candidates, as

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was  done in Jagdish Lal.  Question is whether roster points promotees can rely on such a seniority rule?

         In  this  context it is necessary to remember  two fundamental concepts.

         (a)  Statutory  Rules  relating to  promotion  and seniority:

         We  shall  take  up  the rules  in  one  of  these Services  in Punjab - namely the rules concerning Ajit Singh in which the present IAs have been filed.

         There  are three sets of Rules for Class I, II and III  Services.   The  Punjab Secretariat Class  III  Service Rules,  1976  deal  with  the   posts  of  clerk(Level   1), Assistant(Level  2)  and Superintendent(Grade II)(Level  3). At each of these two levels 1 and 2, there is a roster which implements  reservation.   The reservation is by way of  the circular  dated  19.7.1969  in Punjab.  For  promotion  from level  1 to 2 and from Level 2 to Level 3, the employees are respectively  governed by Rule 7 for promotion and by Rule 9 for  seniority.  It is provided in proviso(iii) to Rule 7(1) that  all promotions shall be made by selection on the basis of  seniority-cum-merit and no person shall have a right  of promotion on the basis of seniority alone.  Rule 9 speaks of seniority from the date of continuous officiation.

         The  Civil  Secretariat Service, Class-II  Service rules, 1963 deal with Superintendents(Grade I) i.e.  Level 4 and  Rule  8(2) states that promotion to the above posts  in Class II is by the method of seniority-cum-merit and Rule 10 states  that  seniority  is  to  be  counted  from  date  of continuous  officiation.   Above Class II is class  I  which consists  of  posts of Under Secretary(Level 5)  and  Deputy Secretary(Level   6).   Rule  6(3)  of  the   Punjab   Civil Secretariat  (Class  I) Rules, 1974 refers to  promotion  by seniority-cum-merit while Rule 8 thereof speaks of seniority by  continuous  officiation.  For promotion to Class II  and Class  I, there is no roster promotion i.e.  no reservation. There  is  reservation  only in Class III posts  by  way  of roster at two stages.

         It  is  clear, therefore, that the seniority  rule relating to ‘continuous officiation’ in promotion is part of the  general  scheme of recruitment -by direct  recruitment, promotion,  etc.- in each of the Services in Class I, II and III - and is based upon a principle of equal opportunity for promotion.   In  our opinion, it is only to such  promotions that  the  seniority  rule of  ‘continuous  officiation’  is attracted.

         (b) Statutory rule of seniority cannot be delinked and applied to roster-point promotions:

         As  stated above in Ajit Singh, the promotion rule in  Rule 7(1) proviso (iii) and the seniority Rule in Rule 9 under  the 1976 Rules for Class III form a single scheme and are  interlinked.  In other words, only in case the officers have  reached the level of Superintendents Grade II(Level 3) in  the  manner mentioned in the Rule 7(1) proviso (iii)  by competition   between  the  Assistants   (Level  2)  and  on consideration   of   their   cases    on   the   basis    of seniority-cum-merit,  can  the  seniority  Rule  in  Rule  9 relating   to   continuous  officiation  in  the   post   of

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Superintendent Grade II (Level 3) be applied.  Here there is a roster in Ajit Singh for promotion from Level 1 to Level 2 and from Level 2 to Level 3.  The consequence is that in the case  of roster point promotees, the said candidates who get promoted  as  Superintendents Grade II (Level 3) as per  the roster,  - having not been promoted as per Rule 7(1) proviso (iii)  of the 1976 Rules i.e.  upon consideration with their cases  on the basis of seniority-cum-merit at the  Assistant level  (Level 2), -they cannot rely upon Rule 9 of the  1976 Rules  dealing  with seniority from the date of  "continuous officiation"  as  Superintendents Grade II(Level 3).  It  is not  permissible  to  delink  the seniority  Rule  from  the recruitment  Rule based on equal opportunity and apply it to promotions  made on the basis of the roster which promotions are  made  out  side the equal opportunity  principle.   The proper  balancing  of  rights:  In the light  of  the  above discussion, the proper balancing of the rights, in our view, will be as follows.

         The   general  candidates  who   are   senior   at Assistants’   level(Level   2)   and    who   have   reached Superintendent   Grade-II(Level  3)   before  the   reserved candidate  moved to Level 4(Supdt.  Grade- I), will have  to be  treated as senior at the level 3 also(Supdt.   Grade-II) and  it is on that basis that promotion to the post of Level 4  must  be  made, upon first considering the cases  of  the senior  general candidates at Level 3.  If the cases of  the senior general candidates who have reached Level 3 though at a  latter  point  of  time, are  not  first  considered  for promotion  to  Level 4, and if the roster point promotee  at Level  3  is treated senior and promoted to level  4,  there will   be  violation  of  Article  14  and  16(1)   of   the Constitution  of India.  Such a promotion and the  seniority at  Level  4 has to be reviewed after the decision  of  Ajit Singh.   But  if  reserved category candidate  is  otherwise eligible  and posts are available for promotion to Level  4, they  cannot be denied right to be considered for  promotion to  Level  4, merely because erstwhile seniors at the  entry levels  have not reached Level 3.  What we have stated above accords,  in  fact,  with what was actually stated  in  Ajit Singh  (  1996(2)  SCC 715).  In that case, N.P.   Singh,  J observed ( P.  731):

         "It  also cannot be overlooked that for the  first promotion  from  the basic grade, there was no  occasion  to examine their merit and suitability for promotion".

         That,  in  our view, is the correct  approach  for balancing  the  fundamental  rights  under  Article  14  and Article 16(1) on the one hand and the provisions relating to reservation in Article 16(4) and Article 16(4A).

         Was Jagdish Lal correctly decided:

         Learned senior counsel for the reserved candidates however  relied upon Jagdish Lal to contend that the  roster promotees  can count seniority in the promoted post from the date  of  continuous officiation as against  senior  general candidates  promoted later.  On the other hand, the  learned senior counsel for the general candidates contended that the said  decision  does  not lay down the  law  correctly.   We

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shall,  therefore,  have  to refer to Jagdishlal.   We  were initially  of  the view that it may not be necessary  to  go into  the  correctness  of Jagdish Lal, and  that  we  could distinguish  the  same on the ground that all  the  reserved candidates  there  had  got   further  promotions  from  the promotional  level of Dy.Superintendents* before the general candidates  reached that Level.  But from the table set  out in  Jagdishlal,  it  would  be noticed that  in  that  case, Jagdishlal,  the  general  candidate, reached  the  post  of Deputy  Superintendent  on  27.10.87   before  the  reserved candidate  H.S.  Hira was further promoted as Superintendent on 27.5.88.  Similarly, Ram Dayal, another general candidate got       promoted      as       Deputy       Superintendent _____________________________________________________________ * In Jagdishlal, the hierarchy of posts is Clerk, Assistant, Deputy      Superintendent,         Superintendent,     etc. ____________________________________________________________ on 16.1.89 before the reserved candidates Sant Lal and Ajmer Singh  got promoted as Superintendent on 8.2.90 and  1.7.90. In  that view of the matter, it becomes necessary to go into the  correctness  of  Jagdish Lal on merits.   As  we  would presently  show,  in  Jagdishlal, the seniority  rule  which referred  to  continuous  officiation and which  applied  to promotions  made  after providing equal opportunity  as  per rules  - was delinked from the promotion rule and applied to roster  promotees,  which, in our view, was the main  reason for  arriving at a different result.  Jagdish Lal arose from Haryana.   The Haryana Education Directorate (State  Service Class  III) Rule 1974 provided for recruitment to the  posts of  clerk  (Level  1),  Assistant   (Level  2)  and   Deputy Superintendent(Level   3).   Rule  9(3)   stated  that   all promotions would have to be made by selection based on merit and  taking into consideration seniority but seniority alone would  not  give  any  right to such  promotions.   Rule  11 provided  that  seniority would be counted from the date  of "continuous officiation".  The Court held in Jagdishlal that the  roster  promotees  who were promoted to Level  3  could count   their   seniority  from   the  date  of   continuous officiation  in that level in view of Rule 11.  From Level 1 to  Level  2  and  from  Level 2 to  Level  3,  the  rosters operated.   From  the level beyond Level 3, the  posts  were Superintendent,  Budget  Officer,  Assistant  Registrar  and Registrar  and  were  governed  by  the  Haryana   Education Department  (State  Service, Group B) Rule, 1980, and  there was  no reservation.  In those Rules also, Rule 9(3)  stated that all promotions would have to be made by selection based on  merit  and  taking   into  consideration  seniority  but seniority alone was not to give any right to such promotion. Rule  11 of the 1980 Rules also stated that seniority  would count  from  the dates of continuous officiation.  Thus,  in the  Class  III as well as Class II(Group B)  Services,  the "continuous  officiation"  rule  was  interlinked  with  the promotion rule based on equal opportunity, as in Ajit Singh, and  formed  a  single  scheme.  The Court  in  Jagdish  Lal delinked  Rule 11 from the recruitment rules and applied the same to the roster promotees.  For the reasons given already in  regard to Ajit Singh, we hold that Jagdishlal arrived at an  incorrect  conclusion  because  of applying  a  rule  of continuous  officiation  which was not intended to apply  to the reserved candidates promoted at roster points.

         The  various rulings relied upon in Jagdishlal  do not,  in our opinion, support the conclusions arrived at  in that  case.   Some of these rulings were those where it  was

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held  that  mere empanelment in a seniority list  would  not confer  a right to promotion.  Some other cases relied  upon were cases where it was held that mere chances of promotions were  not ‘conditions of service’ which were protected.   So far as the cases which held that mere inclusion of a name in a  panel did not create any right to promotion, there  could be  no  quarrel  with the said proposition.  So far  as  the cases  like  State of Maharashtra vs.  Chandrakant  Kulkarni 1981 (4) SCC 130, Mohd.  Shujat Ali vs.  Union of India 1975 (3)  SCC 76, which held that mere chances of promotion  were not  conditions of service, they were not applicable to  the present  situation.   It  must be noticed that  those  cases arose  under  the States Reorganisation Act, 1956 where  the words ’conditions of service’ were used in Section 115(7) of that  Act.   The  factual  position   there  was  that  when employees  of  two different States were  integrated,  their seniority  in  the parent States necessarily  got  affected. The  proviso to Section 115(7) of the Act required that,  if the  State to which they were allotted wanted to alter their "conditions  of service", previous permission of the Central Government  was  necessary.  It was in that context that  it was held that mere chances of promotions were not conditions of service and there was no question of seeking the sanction of  the  Central  Government if chances  of  promotion  were affected  after  allotment  to a new State.   In  fact,  the Central  Government, had issued orders, under Section 115(7) that various other conditions of service in the parent State like  salary, leave etc.  alone would remain protected.  The above  cases were therefore not in point.  The case in Mohd. Bhakar  vs.   Y.Krishna Reddy 1967 SLR 753(SC) was  in  fact overruled  in Mohd.  Shujat Ali.  So far as K.Jagadeesan vs. Union of India 1990 (2) SCC 228 was concerned, it related to a  case  where  a person’s seniority stood  affected  by  an amendment  to  the Rules and it was held that that  did  not make  the rule retrospective.  Syed Khalid Rizvi vs.   Union of  India 1993 Suppl.  (3) SCC 575 no doubt said that  there was no "right to promotion" but even that case accepted that there  was a right to be "considered" for promotion.  So far as  Akhil  Bhartiya  Soshit Karamchari Sangh vs.   Union  of India  1996 (6) SCC 65 to which one of us  (G.B.Pattanaik,J. was  party).  That case, in our view, was correctly  decided on  facts because by the date the general candidate  reached the  higher  category,  the reserved category  promotee  who reached  that category earlier had got a further  promotion. Reference  was also made in Jagdish Lal, to A.K.   Bhatnagar vs.  Union of India 1991 (1) SCC 544.  That was a case where adhoc recruits were regularised subsequently and were placed below  regular recruits.  It was held that their past  adhoc service  could not be taken into account since they remained out  of  the cadre until regularisation.  That case, in  our view,  has also no application.  Jagdish Lal is,  therefore, not correctly decided.

         Observations  in  Ashok  Kumar   Gupta  which  run contrary  to  Indira  Sawhney & Sabharwal do  not  lay  down correct  law:   We  may state that there are  various  other observations made in Ashok Kumar Gupta and we find that they run  counter  to the principles laid down by the nine  Judge Bench  in  Indira  Sawhney  and the  Constitution  Bench  in Sabharwal.  In our view, these observations must, therefore, be  treated  as  not laying down the correct  law.   Learned counsel  for the parties were in agreement with this live of approach.  We, therefore, leave Ashok Kumar Gupta and do not deal with it any further.

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         Was  Virpal not decided correctly, as contended by reserved candidates?:

         We  then come to another important point that  was argued  by  learned senior counsel Sri K.Parasaran.  It  was argued  that  in  Virpal,  the Court was  concerned  with  a circular  of  the  Railways dated  31.8.82  which  permitted discounting  the seniority of roster promotee from the  date of  continuous  officiation and which also stated  that  his seniority  should be as per the ranking in the basic  level. The  Court in Virpal held that it was "permissible" for  the Government  to do so.  It was argued by Sri K.Parasaran that it was one thing to say that it was "open" to the Government to  deprive  the  roster  promotee of the  benefit  of  such seniority  from  the  date of roster promotion  but  it  was another thing to say that even if the Government thought fit to  give  benefit  of  seniority  on  the  basis  of  roster promotion, the same should be tested on the anvil of Article 14  and  16(1) of the Constitution of India.  Thus,  it  was argued  that Ajit Singh went far beyond Virpal when it  held that  any circular, order or rule granting seniority to  the roster  promotee would be violative of Article 14 and  16(1) of  the  Constitution of India.  That brings us to  a  close examination of the main principle laid down in Virpal and in Ajit  Singh.  We shall first take up Virpal.  In Virpal, the facts  were  that  the Court was concerned with  a  circular dated  31.8.82  of  the  Railways   which  stated  that  the seniority  of  the roster promotees would be based on  their panel  position in the initial grade.  The case involved two services  -  Guards  and Station Masters.   Railways  Guards would  be recruited as Guard C and promoted as Guard B, then as  Guard A and as Guard (Special).  Promotion was to be  by rule  of  seniority-cum-suitability.  In other words,  these were non-selection posts.  On the other hand, in the case of Station  Masters,  a  selection  process  was  involved  for purposes of promotion.

         It  is  argued  by the  reserved  candidates  that Virpal  was  not  correctly decided because in  Virpal,  the Court  went  by a printed Brochure and committed  a  factual mistake in thinking that the circular of the Railways itself required  the  panel  seniority at the initial level  to  be reflected  at  higher levels.  The same point was raised  by the  Indian  Railways in its intervention  applications  IAs 10-12/98.   It was argued that in Virpal the Court erred  in not  noticing  the full text of the Circular  dated  31.8.82 which,  showed  that,  as  per   para  319  of  the  Railway Establishment  Code,  Vol.1,  panels  were  required  to  be prepared at each level.

         We  have  examined Virpal closely in the light  of the  above  objection.  In our view, the above criticism  is wholly  unjustified  and is based upon a wrong mixing up  of the  separate conclusions arrived at in Virpal in regard  to two  different  sets of employees.  As stated  earlier,  the Court  was there concerned with posts of Railway Guards  and also  with  posts  of Station Masters.  The  former  (  i.e. Guard   posts)   were  posts  governed   by  the   rule   of seniority-cum-suitability.   In  other  words,  for  Guards, seniority  would  govern subject to omission of those  found unsuitable  for  promotion.   On  the  other  hand,  Station Masters’  posts were governed by selection at every level of

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promotion.   The learned Judge, Justice Jeevan Reddy,  while dealing  initially with the promotions of Guards ( See P.702 of  SCC)  from  C  Grade to B, from B to A, and  from  A  to Special  Grade A pointed out that the seniority- cum-fitness rule  applicable in their cases resulted in the seniority at the  Level  of Guard C in the initial panel being  reflected from  stage to stage, subject to fitness.  When the  learned Judge  came  to  discuss  the  issues  relating  to  Station Masters,(See  SCC  P.711)  where merit  and  selection  were involved, the learned Judge stated that separate panels were to  be  prepared  at every level and also that those  in  an earlier  panel  would be senior to those in a latter  panel. In  either  situation,  it was laid down that  the  reserved candidates could not count their ’seniority’ on the basis of roster   point  promotion.    Learned  Additional  Solicitor General,  Sri  C.S.  Vaidyanathan, attempted to  argue  that what  the Court said in para 25, 26 was wrong as it  assumed that  seniority at Level 1 would get reflected in the levels higher up and what is stated in para 46, 47 in regard to one previous  panel  having  priority over a later  panel  would apply  in all cases, even to Guards referred to in paras 25, 26.   The said contention, in our view, is based on a mixing up  of  the  cases of Station Masters and  Guards  who  were governed  by different rules of promotion.  We are satisfied that  there is no factual mistake committed in the  judgment in  Virpal.   In  fact, subsequent to Virpal,  the  Railways accepted  the judgment and issued an order on 28.2.1997 both in  regard to non-selection and selection posts.  The  point raised  in the IAs by the Railways is therefore liable to be rejected.  We shall refer to these IAs again in our separate judgment  relating  to individual cases.  Did Ajit Singh  go beyond  Virpal and if so, was it correctly decided?  We  now deal  with  the  points raised by  the  reserved  candidates against  the  correctness  of Ajit Singh.  It was  urged  by learned senior counsel Sri K.Parasaran, that Ajit Singh went far  beyond Virpal.  It is pointed out that in Virpal,  this Court  was  concerned with a circular of the Railways  which stated  that the roster promotees could not, on that  count, claim  seniority.   In  that context, Jeevan Reddy,  J.   no doubt  stated  in Virpal ( See 1995 (6) SCC 684 at  701)  as follows:

         "In  short,  it is open to the State, if it is  so advised  ......  It is permissible for the State to do  so." But, according to learned senior counsel, Sri K.  Parasaran, in  Ajit Singh, this Court went further and stated that  any rule,  circular or order which gave seniority to the  roster point  promotees was bad and that this view is not  correct. Our  attention  is invited to 1996 (2) SCC 715 ( at 732)  as follows:

         "According to us, this question cannot be examined only  on the basis of any circular, order or rule issued  or framed  by the State Government or the Union of India.  This has  to be tested on the basis of our constitutional  scheme of Articles 14 and 16 of the Constitution."

         In  our  opinion,  there  is no  conflict  in  the principles  laid  down in these two judgments, nor is  there anything  wrong  in  the above elucidation of the  law.   In Virpal  it  was not necessary for the Court to go  into  the question  whether any circular - if it gave seniority to the roster  point  promotees  (reserved candidates) -  could  be

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treated  as  valid.  But, in Ajit Singh which was an  appeal against  the  Full Bench Judgment in Jaswant singh 1989  (4) SLR  257, this Court was dealing with a declaration made  by the  Full  Bench for implementation of the  Punjab  circular dated  19.7.69 (see para 29 of Full Bench) which  positively declared  that  the "roster points were  seniority  points". That  was  why in Ajit Singh this Court had to consider  the validity  of such a Circular.  In Ajit Singh this Court held that the declaration granted in the impugned judgment of the Full  Bench  in  Jaswant singh on the basis  of  the  Punjab circular  would  be in conflict with Article 14 and  Article 16(1).   This  Court  had  therefore to lay  down  that  any circular,  order  or rule issued to confer seniority to  the roster  point  promotees,  would  be  invalid.   Thus,   the decision  in  Ajit Singh cannot be found fault  with.   Does Indira  Sawhney  protect  seniority of promotees  at  roster point:   Learned  senior counsel Sri  K.Parasaran  contended that Indira Sawhney permitted reservations in promotions for a  further  period  of 5 years and that during  that  period Article  16(4A)  was  incorporated  in   Part  III  of   the Constitution  and,  therefore,  the   concept  of  seniority attached  to  the roster promotion, as per  certain  rulings then  in force, must be deemed to continue and deemed to  be permissible  in  view of Article 16(4A).  We may  point  out that  Indira Sawhney did not have to go into issues relating to  seniority  and  on  the other hand it  referred  to  the principle  of balancing Article 16(4) against the rights  of the  individual under Article 16(1).  It is, therefore,  not possible  to accept that the 5 year rule and Article  16(4A) would  keep  out the applicability of Article 16(1) to  test the  validity of any circular, order or rule which conferred seniority  to the roster point promotees.  Do principles  in Mervyn   Continho  1966  (3)  SCR   60  apply  to   reserved candidates?   Does the roster point for reserved  candidates at  Level  1  decide  seniority at  Level  1?   Considerable reliance was placed by learned senior counsel Sri D.D.Thakur and  Sri Raju Ramachandran on the decision of this Court  in Mervyn  Continho & Others vs.  Collector of Customs 1966 (3) SCR 600.

         In that case, the service was constituted from two sources,  namely direct recruits and promotees.  Question of seniority  arose at two levels - at the level of  Appraisers and  at  the level of Principal Appraisers.  At the  initial level  of Appraisers, there was a roster for determining the seniority  of the direct recruits and promotees.  The direct recruits  were  placed  first  in the roster  and  then  the promotees  alternatively at the basic level.  The  promotees who  joined  service  earlier questioned the above  rule  as being  violative  of  their  seniority   at  the  level   of Appraisers  in  view of Article 16(1).  This  challenge  was negatived  by this Court on the ground that such  ’anomalies arise  not  on account of there being no direct  recruitment for  several  years’ and the roster point seniority was  not opposed  to  the  principle of equality  of  opportunity  in Government  service.  It was said that the anomaly arose out of  the  fortuitous  circumstance  that  in  the  particular service  of  Appraisers,  for one reason  or  other,  direct recruitment had fallen short of the quota fixed for it.  The Court said:  "we are not prepared to say that the rotational system  of  fixing  seniority  itself  offends  equality  of opportunity....".  To this extent the Court held against the promotees  in  regard  to seniority at the  basic  level  of Appraisers.  The point here is the roster points in the case of  reserved  candidates do not determine seniority  at  the

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basic level.

         Learned senior counsel for the reserved candidates however  relied upon the second part of Mervyn which related to  seniority at the next level of Principal Appraisers.  It was  the contention of the direct recruits-respondents  that here again the seniority should be alternated between direct recruits  and  promotees as done at the basic level,  though there  was  no  such rule.  Here,  the  promotee  Appraisers contended  that  the  seniority at the  level  of  Principal Appraisers  would  be  governed by the  rule  of  continuous officiation  and that there can be no rotation alternatively at this higher level on the basis of birthmarks at the level of  Appraisers.  This plea of the promotees was accepted  by this  Court.  The point here is that once the roster at  the level of Appraisers is one which fixed seniority at level 1, promotions  to  Level  2   for  Principal  Appraisers,  have necessarily  to be made on that basis.  For fixing seniority at  Level 2, there is no question of placing direct recruits and  promotees alternatively.  It has to be on the basis  of date  of  promotion  of  each of the officers  to  Level  2, irrespective  of  their birthmarks.  The above  decision  in Mervyn  cannot  apply to a case of reservation  because  the roster  in Mervyn was intended to determine seniority  while the  roster in the cases of reservation under Article  16(4) or  Article  16(4A) are not intended to determine  seniority but are merely intended to provide "adequate representation" at   the  promotional  level.   To  what  extent,   Hiralal, Karamchand and Kailash Chand Joshi’s cases help the reserved candidates?   Learned  senior  counsel   for  the   reserved candidates  placed strong reliance on three other  decisions of this Court namely, State of Punjab vs.  Hira Lal 1970 (3) SCC  567,  Karam Chand vs.  Haryana State Electricity  Board 1989  Suppl.   (1)  SCC  342 and  Kailash  Chand  Joshi  vs. Rajasthan High Court 1996 (1) SCALE 752.  In Hira Lal’s case decided  by a three Judge Bench, there was a circular issued by  the  Punjab  Government providing, for the  first  time, reservation  in  promotional posts.  The 1st respondent  who was  a  general candidate senior to the  reserved  candidate (respondent 3) was not promoted while the reserved candidate though  junior,  was promoted.  The High Court  allowed  the writ   petition   filed  by   the  general  candidate   (1st respondent)  on  the ground of violation of  Article  16(1). The said judgment was set aside in view of the law laid down in  the  General Manager, Southern Railway  vs.   Rangachari 1962  (2)  SCR 586 that reservation was permissible  at  the promotional  level.  In that case, the Court had no occasion to consider any circular prescribing seniority to the roster promotees.    That   case  is   therefore  not   in   point. Karamchand,  decided  by  a two Judge Bench was,  no  doubt, concerned with the question of seniority of the roster point promotee.    The  appellant,  who   was  from  the  reserved category,  belonged  to the Haryana State Electricity  Board and  the Haryana Government’s circular dated 27.4.72 pointed out  that the roster was meant only for reservation and  not for  fixing  inter-se-seniority and that seniority  depended upon  the  merit  list  prepared   by  the  Public   Service Commission  or  Selection  Board.  But  the  appellant,  the reserved  candidate  relied  upon  Rule   9  of  the  Punjab PWD(Electricity Branch) Service Class III(Subordinate Posts) rules, 1952 where Rule 9 provided seniority to be determined from  the date of "regular" promotion.  The limited  dispute was  whether his case fell within the "Exception" in Rule  9 which  related  to "temporary" promotees who would  not  get seniority  upon such temporary promotion.  The contention of

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the  Board that he was a temporary promotee was not accepted by  this  Court  on  the facts of  the  case.   No  question vis-a-vis  a  general  candidate arose.   There  are  indeed certain   observations  that  seniority   of  the   reserved candidate  had  to  be  counted from  the  date  of  regular promotion  which,  in  our  opinion, are  not  correct.   No question  of Article 16(1) or seniority as against a general candidate  arose.  That case is distinguishable.  In Kailash Chand  Joshi the appellant, who was senior, belonged to  the non-  reserved  category  in  the  cadre  of  Munsifs.   The respondents  3  to  11 though junior in that  cadre  to  the appellant,  were  promoted  as Civil Judges earlier  on  the basis  of  roster.  The general candidate (appellant  )  got promoted  as Civil Judge later and claimed seniority in  the cadre  of Civil Judge.  By that date the roster promotee did not  get  any further promotion.  This was not  accepted  by this  Court  in view of Rule 11.  There are two  aspects  of this  decision.  Firstly, the Court did not notice that once the  general candidate, the appellant, who was senior to the respondents  reached the level of Civil Judge, the  position would  be different.  Such a principle, in fact, came to  be laid  down shortly thereafter in Virpal by the same  learned Judge who decided Kailash Chand Joshi.  Secondly, it was not noticed  that Rule 22 relating to seniority from the date of continuous  officiation  was  closely interlinked  with  the promotional  Rule based on equal opportunity.  We may  state that  any  observations in the above cases that  the  roster promotees  will  get  seniority   over  the  senior  general candidates  who  reach  that level later,  (but  before  the further  promotion  of  the reserved  candidate)  cannot  be accepted  as  correct in view of the legal  position  stated earlier.  A ’poignant scenario’ in some cases:  We next come to  the  poignant scenario in several of the matters  before us.   Virpal  referred to such a scenario where all  the  33 candidates  who were to be considered for 11 vacancies  were from  the  SC/ST category ( see P.710 of SCC).   Before  us, similar  facts  are placed by the general  candidates.   The factual  position  is not disputed, though  certain  reasons have   been   set  out  by   both  sides  which   none   has scientifically examined.  It is to be noticed that :  (i) in Ajit  Singh itself, - (see p.76 and PP.200-215, 232 of paper book)  as  on  30.9.94  out  of  107  officers  working   as Superintendent  Grade  I,  the first 23  officers  are  from Scheduled Castes.  At the level of Under Secretaries, out of 19,  the first 11 are from SC category.  In the category  of Dy.   Secretary, out of four, 2 are from SC category.  As on 30.9.94,  the  position  was  that   at  these  levels,  the percentage  was 22.5%, 54% and 67% respectively in the above categories.   If  the seniority is to be counted as per  the case  of the reserved candidates, the position would be that Dy.   Secretaries would be 100% manned by Scheduled  Castes, and  Under  Secretaries  would  again   be  100%  manned  by Scheduled  Castes while Superintendents Grade I would be  so manned to the extent of 53%.

         (ii)  In Jatinderpal Singh’s case ( C.A.Nos.  316- 317/99)  the  top  134 positions of Principals (  from  Head Masters’  source)  would be from Scheduled Castes while  the top  72  positions ( from Head Mistress’s source)  would  be from  Scheduled Castes.  It is stated that " adding this  to the  number awaiting promotions", the position would be that top  217  and  111 in these categories  would  be  Scheduled castes  candidates - which would be 100% and 71% ( the posts being  only 156 under each source).  One does not know  what

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will happen in posts beyond Principal, if all persons in the zone are from SC/ST category.

         (iii) In Kamal Kant (SLP.4945/97 from Haryana ) as of  today:  (a) among Deputy Secretaries, the first 8  posts are occupied by the reserved category ( Scheduled Castes and Backward  Classes)  (b)  among Under Secretaries  (Group  A) (officiating)  14 posts at the higher levels are occupied by the reserved category.

         The  above  factual  position  is  not,  in   fact disputed  but  it  is said that this could  be  because  the roster  was  operated again and again till that was  stopped after  Sabbarwal was decided, but no body has gone into  the extent  to which excess roster operation has created such  a situation.

         In  the  written  submissions  of  learned  senior counsel,   Sri  Raju  Ramachandran   dated  5.8.99,  such  a situation  of almost all top posts being manned by  reserved candidates   is  sought  to  be   justified  as  being   not constitutionally  inhibited.  In our view, such a  situation was never intended by the founding fathers.  One should only read the speech of Dr.  Ambedkar in the Constituent Assembly as quoted in Indira Sawhney (see pp.660-661 SCC)(referred to earlier).

         We  may, however, make it clear that our  decision in  regard  to the Article 16(1), Article 16(4) and  Article 16(4A)   that  the  rule  of  "continuous  officiation"   is applicable  only to promotions made as per rules which  give equal  opportunity  - and not otherwise,  -is  independently arrived  at on the basis of the constitutional position  and is  in  no  way coloured or influenced by  the  above  facts mentioned  by  the general candidates.  Our  Conclusions  on Points  1 and 2:  We, therefore, hold that the roster  point promotees  (reserved category) cannot count their  seniority in  the promoted category from the date of their  continuous officiation  in the promoted post, - vis- a-vis the  general candidates who were senior to them in the lower category and who  were  later  promoted.  On the other hand,  the  senior general  candidate  at  the lower level, if he  reaches  the promotional  level later but before the further promotion of the reserved candidate-he will have to be treated as senior, at  the promotional level, to the reserved candidate even if the  reserved candidate was earlier promoted to that  level. We  shall explain this further under Point 3.  We also  hold that  Virpal and Ajit Singh have been correctly decided  and that Jagdishlal is not correctly decided.  Point 1 and 2 are decided  accordingly.  Point 3:  During the discussion under this  "catch-up"  point - for purposes of convenience, -  we take  the example of the cadres in Ajit Singh i.e.  there is roster point promotion for reserved candidates for promotion from  Level 1 to Level 2 and from Level 2 to Level 3.  There is  no  roster for promotion from Level 3 to Level  4.   Two ’catch  up’ rules contended for by general candidates:  Now, as  stated  earlier, the counsel for the general  candidates argued  for  acceptance of two catch-up rules.  .pa  Extreme ’catch-up’  rule:   So far as the extreme contention of  the general  candidates  that at Level 3, the  roster  candidate must  wait  at Level 3 - before being promoted to Level 4  - till  the  last senior general candidate at Level 1  reached Level  3,  - we reject the same in as much as that will  not

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amount  to  a  reasonable  balancing of the  rights  of  the candidates  in the two groups.  Nor do we accept that  posts must  be  kept  vacant  and  no  promotions  of  the  roster candidates  be  made.  Other Catch-up rule:  As accepted  in Virpal  (  see 1995(6) SCC 684 at 702) and Ajit  Singh  (see 1996(2)  SCC  at  P.729), we hold that in  case  any  senior general  candidate at Level 2 (Assistant) reaches Level 3  ( Superintendent  Grade  II)  before  the  reserved  candidate (roster  point promotee) at Level 3 goes further up to Level 4  in that case the seniority at Level 3 has to be  modified by  placing  such  a  general  candidate  above  the  roster promotee,  reflecting  their inter se seniority at Level  2. Further  promotion to Level 4 must be on the basis of such a modified  seniority  at  Level 3, namely,  that  the  senior general  candidate  of  Level 2 will remain senior  also  at Level  3  to the reserved candidate, even if the latter  had reached  Level 3 earlier and remained there when the  senior general  candidate reached that Level 3.  In cases where the reserved  candidate  has  gone  upto Level  4  ignoring  the seniority  of  the  senior  general candidate  at  Level  3, seniority  at  Level  4 has to be refixed (when  the  senior general  candidate  is promoted to Level 4) on the basis  of when the time of reserved candidate for promotion to Level 4 would  have  come,  if  the   case  of  the  senior  general candidates  was  considered at Level 3 in due time.  To  the above  extent, we accept the first part of the contention of the  learned  counsel  for the general candidates.   Such  a procedure  in  our view will properly balance the rights  of the   reserved  candidates  and   the   fundamental   rights guaranteed  under  Article 16(1) to the general  candidates. No  difficulty  in  amending  seniority list:   One  of  the objections  raised before us and which appealed to the  Full Bench  in  Jaswant  Singh’s case was that  this  ’catch  up’ principle would lead to frequent alteration of the seniority list  at  Level  3.  We do not find any difficulty  in  this behalf.  The seniority list at Level 3 would have only to be merely amended whenever the senior general candidate reaches Level  3.   Examples  given by reserved candidates  -do  not create   any  anomaly:   Learned   senior  counsel  Sri   K. Parasaran  and  Sri  Raju Ramachandran then  adverted  to  a situation  which  according  to them  might  create  serious problems  if a senior general candidate is to be treated  as senior  at  the promotional level if he reaches  that  level before  the  roster promotee goes further up.   The  example given  refer to cases where after the roster point  promotee (reserved candidate) reaches the promotional level, there is direct  recruitment  or  recruitment  by  transfer  at  that promotional level.  Counsel submit that, if a senior general candidate  is  thereafter  promoted  and  placed  above  the reserved  candidate,  can  he became senior  to  the  direct recruit  and  transferee?  We do not find any anomaly.   The direct  recruit  or transferee who has no grievance  against the  reserved  candidate who was already there can  have  no grievance  against  a  senior general candidate  who  has  a superior  claim,  in  law, against the  reserved  candidate. Even  if seniority of roster point promotee does not  Count, experience of both groups can be considered as part of merit for  further  promotion:   Before we leave point 3,  we  may refer  to  another  submission made by  Sri  K.   Parasaran, learned senior counsel for the reserved candidates.  Learned counsel submitted that even if the seniority of the reserved candidates  had gone up to Level 3 earlier by the roster  at two  levels  1  & 2 is not counted, still  the  ’experience’ gained  by  them at Level 3 well before the  senior  general candidate  ’caught up’ to that Level, cannot be  disregarded

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for  purposes of promotion to Level 4.  It is true that  the roster  point promotee who has reached the promotional level 3  even if he is not entitled to seniority would have gained considerable  ‘experience’  at that level.  That  experience is,  no doubt, of considerable relevance in considering  his case  for  further promotion to Level 4.  But, at  the  same time,  it  is  to be noted that the general  candidates  had longer experience at level 1 and level 2 and have come up to level  3 by way of competition among the general  candidates at  two stages.  The said longer ‘experience’ gained by them at  the  lower levels 1 and 2 and the manner in  which  they have reached the level 3 to which the reserved candidate had reached  earlier, are also relevant factors.  The quality of the  experience  of  these groups also needs to be  kept  in view.   The above principle would be an equitable  balancing of the ‘experience’ of the candidates at various levels.  It will be appropriate for the Government of India or the State Government,  as the case may be, to formulate guidelines  by way  of  administrative  orders or by way of rules  in  this behalf.  Point 3 is disposed of accordingly.  Point 4:  This point  concerns  the  "prospective"  operation  of  the  two judgments  in Sabharwal and Ajit Singh.  The point regarding these  two cases directly arises in the appeals from Punjab, Haryana and Rajasthan.  The prospectivity of Virpal has been particularly raised by learned Additional Solicitor General, Sri  C.S.   Vaidyanathan, in the IAs filed by the  Railways. Once  again  our approach here is to prevent reversions  and avoid  hardship to the reserved candidates already  promoted before  the  two  judgments and at the same time to  try  to balance the rights to seniority of the general candidates as against  those  of the reserved candidates, in the light  of Article 16(1).  Prospectivity of Sabharwal:

         (i)   What   Sabbarwal    said    in   regard   to "prospectivity":

         Before  Sabharwal  was  decided on  10.2.1995,  it appears  that, in several services, the roster was initially put  in  operation and promotions at all the  roster  points were  filled up.  But the roster was once again operated  on future  vacancies,  even  though all the  required  reserved candidates  were  in position at the promotional level.   It was  not  realised  that  once the roster  points  were  all filled,  the roster had served its purpose and fresh members of  the reserved classes could claim promotional posts  only if  any  promotional  posts already filled by  the  reserved candidates  fell vacant.  This misapplication of the  roster came  to  be  removed  for the first time  on  10.2.95  when Sabharwal  was  decided.   Obviously, by that  time  several reserved  candidates  had got promotion in excess  of  their quota  because  of the wrong "re- operation" of  the  roster points.  If the law declared in Sabbarwal were to be treated as retroactive as is the normal position whenever the law is declared by this Court, it would have resulted in reversions of  several  officers  of  the  reserved  classes  as  their promotions  before  10.2.95  by the fresh operation  of  the roster  as aforesaid was wholly unjustified.  This Court  in Sabbarwal  therefore  tried to prevent such  reversions  and declared ( P.  753 of SCC, Para 11) as follows at the end of the judgment:

         "We, however, direct that the interpretation given by  us to the working of the roster and our findings on this

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point shall be operative prospectively".

         (ii)  The  rival  contentions:  To the  extent  of saving  the  reversions  of   those  from  reserved  classes promoted  before  10.2.95 though such promotions  were  made contrary  to  what  was decided in Sabharwal,  there  is  no serious dispute from the side of the general candidates, but a  contention  is raised by the reserved candidates who  got such promotions in excess of the reservation quota that they should  in addition get the benefit of the seniority in  the promotional  post even if such promotion made before 10.2.95 was  wrong in view of what was decided in Sabharwal .   This plea  is strongly opposed by the general candidates.   (iii) Our  conclusion:   It is axiomatic in service  jurisprudence that  any promotions made wrongly in excess of any quota are to  be treated as ad hoc.  This applies to reservation quota as much as it applies to direct recruits and promotee cases. If  a  Court decides that in order only to  remove  hardship such  roster  point promotees are not to face reversions,  - then  it  would,  in  our opinion be, necessary  to  hold  - consistent  with our interpretation of Articles 14 and 16(1) -  that  such  promotees  cannot  plead  for  grant  of  any additional  benefit  of  seniority   flowing  from  a  wrong application  of  the roster.  In our view, while Courts  can relieve immediate hardship arising out of a past illegality, Courts cannot grant additional benefits like seniority which have   no  element  of   immediate  hardship.   Thus,  while promotions  in  excess  of roster made  before  10.2.95  are protected, such promotees cannot claim seniority.  Seniority in  the  promotional  cadre  of  such  excess  roster  point promotees  shall have to be reviewed after 10.2.95 and  will count  only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously  occupied by a reserved candidate.  That disposes of  the  ’prospectivity’’  point in relation  to  Sabharwal. Prospectivity of Ajit Singh:

         Coming  to  the  ’prospectivity’  of  Ajit  Singh, decided on 1.3.96 the question is in regard to the seniority of  the  reserved candidates at the promotional level  where such  promotions  have taken place before 1.3.96.   We  have accepted,  while  dealing  with  Points 1  and  2  that  the reserved candidates who get promoted at two levels by roster points ( say) from Level 1 to Level 2 and level 2 to level 3 cannot  count  their seniority at Level 3 as against  senior general  candidates who reached Level 3 before the  reserved candidates moved upto Level 4.  The general candidate has to be  treated as senior at Level 3.  Where, before 1.3.96,i.e. the  date  of Ajit Singh’s judgment , at the level 3,  there were  reserved candidates who reached there earlier and also senior  general  candidates  who reached there  later,  (but before  the reserved candidate was promoted to level 4)  and when  in spite of the fact that the senior general candidate had  to  be  treated as senior at level 3 (in view  of  Ajit Singh),  the reserved candidate is further promoted to level 4  -  without considering the fact that the  senior  general candidate  was  also  available  at level 3  -  then,  after 1.3.96,  it becomes necessary to review the promotion of the reserved  candidate  to  level  4 and  reconsider  the  same (without  causing  reversion to the reserved  candidate  who reached  level  4  before 1.3.96).  As and when  the  senior reserved  candidate  is  later  promoted  to  level  4,  the seniority  at level 4 has also to be refixed on the basis of when  the  reserved candidate at level 3 would have got  his

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normal  promotion,  treating  him as junior  to  the  senior general  candidate  at level 3.  Chander Paul Vs.  State  of Haryana  (  1997(10)  SCC 474) has to be understood  in  the manner  stated  above.  We hold accordingly on Point 4.   We dispose  of  the  clarification applications IAs 1  to  3/98 filed  by the State of Punjab accordingly and hold that Ajit Singh  and  Virpal lay down the correct law and not  Jagdish Lal,  which  must  be  considered as  confined  to  its  own peculiar  facts.  We shall be passing separate orders in the Punjab,  Haryana and Rajasthan cases and Contempt Cases  and other  IAs on the basis of the principles laid down in  this judgment  which,  for convenience will be called Ajit  Singh II.  IAs Nos.1 to 3/98 are disposed of accordingly.