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PETITIONER: AKHIL  BHARTIYA   SOSHIT  KARAMCHARI   SANGH,  THROUGH   ITS

       Vs.

RESPONDENT: UNION OF  INDIA THROUGH ITS SECRETARY, MINISTRY OF RAILWAY &

DATE OF JUDGMENT:       12/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R G.B.Pattanaik,J.      Special Leave  Petition was  listed before  us  on  6th September, 1996  and the  same  was  dismissed  but  it  was indicated  that   the  reasoned   order  will   follow   and accordingly this order is being passed.       The question  for consideration is whether the Central Administrative  Tribunal,  Allahabad  Bench,  committed  any error  in   dismissing  the   O.As.  filed   before  it   on interpretation of  the different  circulars  issued  by  the Railways and  following the  constitution bench  decision of this Court  in R.K.  Sabharwal’s & Ors. v. State of Punjab & Ors.(1995) 2  SCC 745,  on the  question of  promotion of  a reserved category  candidate on  the  basis  of  his  normal seniority in the cadre from which he is being promoted.      Petitioner Nos.  1 and  2 filed  O.A No.  304  of  1992 challenging the  promotion of Shri A.S. Rana, respondent no. 6 to the post of D.S.K.-I made on 26.2.1991. The case of the petitioners was that petitioner no. 2 joined the Railways as a Jr.  Clerk on  4.12.1956 and  was promoted as Sr. Clerk on 1.4.1966. He  was promoted  to D.S.K.-III  on 16.10.1978 and further promoted  to D.S.K.-II  on 24.3.1989. The respondent no. 6  belonging to  the reserved  category was appointed in the Railways  as Jr. Clerk on 30.10.1983 and was promoted as Sr. Clerk  on 16.8.1984.  He was  promoted as  D.S.K.-III on 26.11.1986. The said respondent no.6 was promoted earlier to petitioner no.  2 to the cadre of D.S.K. II on 8.10.1987, in view of the post available in the cadre of D.S.K.-II for the reserve category  people. When  the question of promotion to the cadre  of D.S.K.-I came up for consideration against the vacancies meant  for general  category said respondent no. 6 Shri Rana  was promoted  on 26.2.1991  on the  basis of  his accelerated  seniority,   he  having   taken  advantage   of accelerated  promotion   being  a  member  of  the  reserved category. The  petitioner no.2 filed a representation before the authorities  making the  grievance that respondent no. 6 could not  have been  promoted to  a most  meant for general category and the authorities illegally promoted him, but not being  successful   therein.  challenged  the  promotion  of respondent  no.   6  before   the  Tribunal.   The   railway

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administration filed  their  counter  affidavit  before  the Tribunal taking  several technical  objections regarding the maintainability of  the proceedings  at the  behest  of  the association, So far as the merits of the case are concerned. it was  contended that  no doubt  respondent no.  6 had been promoted to  the cadre  of D.S.K.-III  and D.S.K.-II against the reserved  vacancy following  the roster  but so  far  as promotion to  the cadre  of D.S.K.-I  is  concerned  he  was considered against  a vacant post in the general category on the basis of his normal seniority and ultimately he has been promoted in  accordance with  the circulars  issued  by  the railway administration  and in  accordance with the law laid down by this court in Sabnarwal’s case (supra). The Tribunal following the decisions of this Court in Sabharwal’s case as well as Virpal Singh Chauhan’s case rejected the application on the  conclusion that  the alleged promotion of respondent no. 6  was much  prior to  the decision  of  this  Court  in Sabharwal’s case in the year 1995 and promotion already made cannot made be interfered.      Dr.  Rajiv   Dhawan  appearing   for  the  petitioners, however, vehemently contended that the accelerated promotion of a   reserve  category candidate  cannot confer on him the seniority in  the promotion cadre and therefore the impugned promotion of  respondent no.  6 made in February 1991 to the cadre of D.S.K.-I must be held to be invalid and inoperative and Tribunal  committed gross error in rejecting the O.A. We find no  force in  the aforesaid  contention. In Sabharwal’s case this  Court was  considering the  question of promotion and the filling up of the post in the promoted cadre and the implementation of  the  rosters  indicating  the    reserved point. In  explaining legal  position this  Court held  that the" running  account" is  to operate  only till  the  quota provided under  the impugned instructions is reached and not thereafter. The  vacancies arising  in the  cadre. after the initial posts  are filled,  will pose  no difficulty. As and when there  is a vacancy whether permanent or temporary in a particular post  the same  has to be filled from amongst the category to which the post belonged in the roster but in the event of  non-availability of  a reserve  candidate  at  the roster point  it would  be open  to the  state Government to carry forward  the point  in a  just and fair manner. Having indicated the  law as  above it  was categorically held that the principle  should operate only prospectively. In further elaborating the  point of  computation of  the percentage of reservation this Court further held:      "When a  percentage of  reservation      is fixed in respect of a particular      cadre and  the roster indicates the      reserve  points, it has to be taken      that  the   posts  shown   at   the      reserve points  are  to  be  filled      from   amongst   the   members   of      reserved   categories    and    the      candidates belonging to the general      category are  not  entitled  to  be      considered for  the reserved posts.      On  the  other  hand  the  reserved      categories candidates  can  compete      for the  non-reserve posts  and  in      the event  of their  appointment to      the said posts their number  cannot      be    added    and    taken    into      consideration for working out   the      percentage of  reservation. Article      16(4) of  the Constitution of India

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    permits  the  State  Government  to      make   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.   It   is,   therefore,      incumbent on  the State  Government      to  reach  a  conclusion  that  the      Backward  Class/Classes  for  which      the  reservation  is  made  is  not      adequately represented in the State      Services. While  doing so the State      Government  may   take  the   total      population of a particular Backward      Class and its representation in the      State  Services.   When  the  State      Government    after    doing    the      necessary   exercise    makes   the      reservation and provides the extent      of  percentage   of  posts   to  be      reserved  for   the  said  Backward      Class then the percentage has to be      followed strictly.  The  prescribed      percentage  cannot   he  varied  or      changed simply  because some of the      members of  the Backward Class have      already   been   appointed/promoted      against  the   general  seats.   As      mentioned above  the  roster  point      which is  reserved for  a  Backward      Class has  to be  filled by  way of      appointment/promotion of the member      of  the   said  class.  No  general      category candidate can be appointed      against a  slot in the roster which      is reserved for the Backward Class.      The   fact that considerable number      of members of a Backward Class have      been   appointed/promoted   against      general  seats   in  the      State      Services may  be a  relevant factor      for the  State Government to review      the    question    of    continuing      reservation for  the said class but      so long  as the  instructions/rules      providing  certain   percentage  of      reservations   for   the   Backward      Classes are operative the same have      to be  followed. Despite any number      of  appointees/promotees  belonging      to the Backward Classes against the      General category  posts the   given      percentage has  to be  provided  in      addition."      In the  case of  Union of  India & Ors. v. Virpal Singh Chauhan  &   Ors.,  (1995)  6  SCC  684.  this  Court  again considered the  case of  accelerated promotion  and inter se seniority between  a general  and reserve  candidate in  the promoted  category   and  after   considering  the   several circulars issued by the railway administration, held:      "Hence the  seniority  between  the      reserved  category  candidates  and      general candidates  in the promoted

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    category  shall   continue  to   be      governed by  their panel  position.      We have  discussed hereinbefore the      meaning of  the  expression ’panel’      and  held  that  in  case  of  non-      selection  posts,   no  ’panel’  is      prepared  or  is  necessary  to  be      prepared.  If   so,  the   question      arises,      what      did      the      circular/letter   dated   31.8.1982      mean when  it  spoke  of  seniority      being   governed   by   the   panel      position in  our opinion. it should      mean  the  panel  prepared  by  the      selecting authority  at the time of      selection for  Grade ’C’. It is the      seniority in  this panel which must      he reflected  in each of the higher      grades. This  means that  while the      rule    of     reservation    gives      accelerated promotion,  it does not      give the  accelerated   what may be      called,     the      consequential-      seniority. There  is, however,  one      situation where  this rule  may not      have any  practical relevance. In a      given case   it  may happen that by      the   time   the   senior   general      candidate  gets   promoted  to  the      higher, grade,  the junior reserved      category   candidate    (who    was      promoted to   the said higher grade      earlier) may  have got  promoted to      yet higher  grade. In other words ,      by  the  time  the  senior  general      category  candidates  enters,  say,      Grade ’B’,  his junior    Scheduled      Caste/Scheduled Tribe  candidate is      promoted  to   grade  ’A’.   It  is      obvious that  in such  a  case  the      rule  evolved   in  the   aforesaid      circulars does not avail the senior      general candidate  for there can be      no question  of  any  seniority  as      between, say. a person in ’B’ grade      and a person in ’A’ grade."      This Court  in Chauhan’s case accepted the direction in Sabharwal’s  case  that  appointments  according  to  roster already made  prior to the judgement in Sabharwal’s case are legal and  valid. In  effect. they  were declared  legal and valid end  direction was given to determine seniority in the light of  the principles laid down therein. It was held that when the  panel/select list  was prepared  at  the  time  of making selections  for promoted  so the  selection  post  it would be  that panel  and not the panel/select list prepared at the  time of  appointment to the initial grade that would determine the  seniority to  the post.  It  would  obviously apply to  future cases  in accordance  with  the  rule,  the subject matter  of the  interpretation in  the, judgment  in Chauhan’s,  case.   Therefore.  the   two  judgments  become effective from  the date of the decision in Sbharwal’s case. All appointments  made prior  to that  date being  legal and valid a  including, right  to seniority  in promoted post or cadre, they required to be given effect to.      In Managing  director, ECIL,  Hyderabad &  Ors,. v.  B.

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Karunalar &  Ors [(1993)  4 SCC  727] the Constitution Bench considered  the   scope  of  prospective  operation  of  the judgment and  held that  as on the date of the judgement the order of  the dismissal or action taken prior to the date of the judgment,  as held  in Union  of India.  v. Mohd.  Raman Khan [1991  l SCC  580] could not be reopened. The judgement will be  prospective in  nature. i.e.,  it will be operative from the  date when  it is  made; if the copy of the enquiry was not  supplied to  the delinquent officer, from that date the order  or action would get vitiated under Article 311(2) of the Constitution.      In Indian  Administrative Service  (S.C.S) vs. Union of India &  Ors. [  1993 Supp.  ( 1  ) SCC  730 at  745-46]  in paragraphs 14  and 15, a Bench of three Judges had held that there is  a distinction  between right  and interest. No one has a  vested, right  to  promotion  or  seniority,  but  an officer has an interest to seniority acquired by working out the rules. It could be taken away only by operation of valid law.      In Mohd.  Shujat Ali  &  Ors.  vs.  Union  of  India  & Ors.[(1975) 1  SCR 449]  a constitution Bench had held  rule which confers  a right of actual promotion or a  right to be considered for  promotion, is a rule   prescribing condition of the  service. Another  constitution Bench  in Mohd. Bakar vs. Krishna  Reddy   [1970 SLR  768] had  held that any rule which affects  the promotion  of a  person  relates  to  his condition   of    service   and    is   not   arbitrary   or unconstitutional. In  State of  Mysore vs. G.B Purohit [1967 SLR 753],  another Bench  of three  Judges had held that the rule which  merely affects  chances of  Promotion cannot  be regarded as  varying a  condition  of  service.  Chances  of promotion are  cannot condition  of service. which principle was reiterated  in another  constitution Bench  judgment  in Ramachandra Shankar  Deodhar vs State of Maharashtra [(1974) 1 SSC  317]   In Syed Khalid Rizvi & Ors vs Union of India & Ors. [1993  Supp.. (3)  SCC 575],  another  Bench  of  three Judges referred  with approval and relied on these cases and had held in para 31 at page 602 that no employee has a right to promotion  but he has only the right to be considered for promotion according  to rules.  Chances of promotion are not conditions of  service and  are defeasible.  An illustration was given  as regards  the inter  se claim between a general candidate and  a  reserved  candidate  and  their  right  to seniority in the promotional post. When a reserved candidate was promoted according, to the roster and got promotion to a higher post,  it was observed that such a reserved candidate having scaled  a   arch over the senior general candidate to higher service,  the senior  general candidate  in the lower cadre who  was subsequently  promoted to  the  higher  cadre cannot claim seniority over the reserved candidate.      In P.S.  Ghalaut vs.  State of Haryana & Ors. [(1995) 5 SSC 625],  a Bench  of two  Judges has  held that  in fixing inter se  seniority as  per the    roster,  order  of  merit prepared by the Public Service Commission gets displaced and the reserved     candidate gets  seniority over  the general candidate    In  accordance  with  the  roster,  though  the general   candidate has   been  recommended  by  the  Public Service Commission to be more meritorious. It was  held that when the  roster is  maintained  to  give    effect  to  the constitutional policy  of reservation  in respect  of places reserved for  reserved candidates  and  fitted  the  general candidates and  reserved candidates according to roster, the changed order of merit invariably gets affected which is not arbitrary or unconstitutional.      Thus by  the time  a senior  person  belonging  to  the

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general category  gets Promoted  to the  higher grade if the higher person  belonging to a reserved category who had been promoted to  the said higher grade earlier has been promoted to still higher grade, question of granting seniority to the general category  candidate in  the promoted  category could not arise.  This being  the position,  and the  promotion of respondent no. 6 to D.S.K.-I having been made as early as in February, 1991  much prior to the judgement of this Court in Sabharwal’s case  as well  Virpal Singh  Chauhan’s case, the Tribunal was  wholly justified  in rejecting  the O.A. filed before it.  That apart in a particular cadre after following the roster  meant  for reserved category candidate, there is absolutely no  bar for  filling  up  the  vacancies  in  the general category  even in  favour of  candidate belonging to the  reserved   category  if   the  said  reserved  category candidate is  entitled to  the same  on  the  basis  cf  his general seniority.  No materials  have been placed before us to   hold that  the promotion of respondent no. 6 was not on the basis  of his  general seniority  in D.S.K.-II.  In  the aforesaid premises,  we find  no substance in the contention of Dr.  Rajiv Dhawan  and the  special leave  petition  must fail.