Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2379 OF 2005

K. Manorama                 …Appellant   

            Versus

Union of India rep. by Genl. Manager  Southern Railway & Ors.                                      …Respondents

J U D G M E N T

Gokhale J.

   This appeal seeks to challenge the judgment and order dated  

28.1.2003 rendered by the Madras High Court allowing Writ Petition No. 1311  

of 1999 filed by the Respondent Nos. 1 and 2, and setting aside the order  

passed by the Central Administrative Tribunal dated 27.11.1998 which had  

allowed the Original Application No. 891 of 1996 filed by the appellant herein.  

The  O.A.  filed  by  the  appellant  thus  stood  dismissed  by  the  impugned  

judgment and order of the High Court.

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2. Short  facts  leading  to  this  appeal  are  as  follows:-   At  the  

relevant time in November 1994, the appellant was working as a Chief Law  

Assistant which was a Group-‘C’ post in the Southern Railways.  The post  

higher to this post is that of the Assistant Law Officer which is a Group-‘B’  

post.  At the relevant time the total cadre strength of Assistant Law Officers  

in Southern Railway was three.  Initially when ‘Assistant Law Officer’ was a  

single  post  cadre,  in  the  year  1991,  it  was  filled  by  an  open  category  

candidate.   Subsequently,  when two more posts were created in the year  

1994, reservation was applicable.  The posts were to be filled on the basis of  

seniority-cum-suitability.    A notification holding 10 senior most candidates  

eligible for being considered for the two posts was issued on 10.11.1994.  

(The  second  respondent  herein  is  the  Chief  Personal  Officer  of  Southern  

Railways).   To determine their suitability,  a written examination was held.  

Eight Law Assistants obtained qualifying marks and became eligible for being  

called  for  the  interview  (one  out  of  them  opted  out).   The  concerned  

committee recommended Respondent Nos. 3 and 4 for those two posts.  Out  

of them, Respondent No. 3 is a Scheduled Caste candidate.  Accordingly, the  

promotion order for both of them was issued on 26.5.1995.   

3. The appellant also belongs to a Scheduled Caste and was of the  

view that the Respondent No. 3 (Mr. M. Siddiah), was promoted to the post  

of Assistant Law Officer on his merit and not because he was a Scheduled  

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Caste candidate.  It was her contention that instead of Respondent No. 4  

(Mr. K. Rajagopalan Nair) belonging to the open category, she should have  

been promoted to the post of Assistant Law Officer on the basis of her status  

as  a  Scheduled  Caste  candidate.   She,  therefore,  represented  to  the  

Chairman of the Railway Board on 14.2.1996 but there was no response.  

She, therefore,  filed the above referred O.A. in the Central  Administrative  

Tribunal (hereinafter referred to as Tribunal) at Chennai.   The respondents  

Nos. 1 and 2 filed their reply statement before the Tribunal and pointed out  

that  as per  the Railway Board’s  decision dated 29.7.1993 in  small  cadres  

having less than 4 posts, reservation had to be provided as per the 40 point  

roster when no SC/ST candidate was available in the Cadre.  As per model 40  

point  roster  the  first  point  will  have  to  be  filled  by  a  Scheduled  Caste  

candidate, and the next two points were to be treated as unreserved.  In  

para 1 & 2 of their reply the Respondent Nos. 1 and 2 stated as follows:-

“In this selection, the roster points to be filled up for   the two vacancies were point Nos. 2 and 3.  Both the points are UR   (i.e Un-Reserved) points.  As the first point which was a SC point  was filled up by an UR candidate, being a single vacancy, out of the   two  vacancies  for  which  notification  was  issued,  one  post  was   treated as SC.”

4. The appellant submitted before the C.A.T. that if a Scheduled  

Caste candidate competes for a non-reserved post and is selected, he should  

not be counted against the quota reserved for Scheduled Castes.   According  

to the appellant, if the senior most among eligible candidates belongs to a  

Scheduled  Caste,  on  being  promoted,  he  should  be  treated  as  an  open  

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category  candidate  and  should  not  be  counted  against  the  quota  for  

Scheduled Castes.  The judgment of a Constitution Bench of this Court in  

R.K. Sabharwal and Ors. vs. State of Punjab and Ors. [1995 (2) SCC  

745] was relied upon in support.    

5. The  Central  Administrative  Tribunal  accepted  this  submission  

and noted that the preposition in the R.K. Sabharwal and Ors. (supra) had  

been reiterated in para 11 of  Ajit Singh Januja and Ors. vs.  State of  

Punjab  and Ors.  [1996 (2)  SCC 715],  wherein  after  referring  to  the  

judgment in R.K. Sabharwal (supra) a bench of 3 Judges had observed that if  

a  Scheduled Caste  candidate has been appointed /  promoted on his  own  

merit, than such candidate shall not be counted towards the percentage of  

reservation fixed for them as stated in R.K. Sabharwal’s case.

6. The  Tribunal  therefore,  allowed  the  O.A.  by  its  order  dated  

27.11.1998.  It declared that the selection of Respondent No. 3 was in an  

unreserved vacancy on his own merit.  It directed Respondents Nos. 1 and 2  

to empanel  the appellant  in the reserved category provided that she was  

qualified according to the marks and seniority in the selection made, and if  

there was no SC candidate above her either on marks or in seniority.  The  

Selection of Respondent No. 4 was held to be erroneous.  However, since he  

had retired in the meanwhile, the emoluments received were directed not to  

be disturbed.  The Tribunal further directed that the appellant if found fit, will  

be deemed to be entitled to the seniority in the service from the date of  

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selection of Respondent No. 3, though she will not get the salary till the date  

she actually assumed charge of the higher post.

7. Being aggrieved by this judgment and order Respondent Nos. 1  

and 2 filed Writ Petition No. 1311 of 1999 in the High Court of Madras.  The  

High Court allowed the Writ Petition and set aside the order of the Tribunal.  

Being aggrieved thereby, the appellant has filed the present appeal.

8. The main-stay of the argument of the appellant was, as stated  

earlier, that since Respondent No. 3 had been selected on merits he should  

not  be  considered  as  occupying  a  Scheduled Caste  seat.   The  Scheduled  

Caste vacancy must therefore go to the next Scheduled Caste candidate as  

per  the  order  of  merit,  and  the  appellant  was  that  next  candidate.  

Respondent No. 4 (Mr. K. Rajagopalan Nair) should not have been therefore  

promoted as an open category candidate and that post should have been  

allotted to the appellant.  The appellant relied upon the Railway Board order  

dated 29.7.1993 in this behalf, which was issued to implement a full-bench  

decision  of  the  Tribunal  at  Hyderabad,  which  states  that  where  ST/SC  

candidates were promoted on their own merit, their seniority should not be  

counted as reserved candidates.  The relevant part of the Railway Board’s  

letter dated 29.7.1993 clarifies as follows in para (VI):-

“(VI) Whether a person belonging to SC/ST promoted on his  own  merit  and  seniority  should  be  treated  as  reserved  candidate for counting available SC/ST candidates-  

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As per judgment of the Full Bench of Central Administrative  Tribunal/Hyderabad,  the  SC/ST  candidates  who  have  been  promoted  on  their  own  merit  and  seniority  should  not  be  counted  as  reserved  candidates.   It  has  further  been  laid   down in Board’s letter dated 16.06.1992 that SC/ST candidate  can be placed on the panel/select list even in excess of the  reserved quota in case such candidates qualify against general   posts on merit/seniority.  These SC/ST candidate should be  excluded  for  the  purpose  of  counting  the  available  SC/ST  candidates while computing the reserved quota.”

9. Now, as far as this aspect is concerned, Respondent Nos. 1 and  

2 had made it clear that where the posts were less than 4, the 40 point roster  

was expected to be applied.  As per that roster the first point was meant for a  

Scheduled  Caste  candidate  and  second  and  third  points  were  meant  for  

candidates  from unreserved  category.   There  is  a  note  below this  model  

roster which reads as follows:-

“Note—If there are only two vacancies to be filled  in  a  particular  year,  not  more  than  one  may  be  treated  as   reserved and if there is only one vacancy, it should be treated   as unreserved.  If on this account, a reserved point is treated as   unreserved,  the  reservation  may  be  carried  forward  to  the  subsequent three recruitment years.”

10. It was submitted on behalf of Respondent Nos. 1 and 2 that in  

view of this note, and the first vacancy in the year 1991 having been treated  

as unreserved, when two vacancies occurred subsequently, one out of them  

was being treated as reserved.  This was as per the above note which stated  

that where the reserved point is treated as unreserved, the reservation is to  

be carried forward. Respondent Nos. 1 and 2 therefore, had to treat one of  

the two vacancies as a reserved vacancy.  

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11. In our view, the submission of the respondents Nos. 1 and 2 is  

well taken.  They had to treat one out of the two vacancies which occurred in  

the year 1994 as reserved.  This is because the first point in the roster was  

otherwise meant for a reserved candidate.  Since, in the year 1991, it was a  

single post cadre, it had been treated as unreserved.  When the single post  

cadre  became  a  multi-post  cadre,  and  consequently  two  seats  became  

available in 1994, they had to treat one out of the two seats as a reserved  

seat. The selection of Mr. Siddiah, therefore, as a Scheduled Caste candidate  

cannot be faulted.

12. The submission of the appellant was that Respondent No. 3 had  

been selected on his merit and that Mr. K.Rajagopalan Nair was placed in the  

panel  contrary to the Railway Board letter dated 14.4.1983.  Respondents  

Nos. 1 and 2 had denied this averment in para 10 of their additional reply  

before the Tribunal.  In para 14 of its order the Tribunal observed as follows:-

“14.  Reference  made  in  paragraph  10  have  no  bearing  on the point  for  decision in  this  case.   It  is  also  the   contention on behalf of the respondents that since respondent   No. 3 is the senior most in the SC quota he is empanelled.  The  question is, he has obtained the highest number of marks in the   said  selection.   Therefore,  the  question  of  he  being  the  SC   candidate is evaporated on account of his being the meritorious  candidate in the entire selection.  If respondent No. 4 has come  up in the marks over that of respondent No. 3 and the question  of the respondent 3 being the senior in the SC candidates, then   respondent No. 3 would have been justified being empanelled in  the reserved vacancy.  But that was not the case here.

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13. Respondents  Nos.1  and  2  point  out  that  this  finding  is  

erroneous on facts.  The chart of the marks obtained by the candidates has  

been produced before us.  The chart reads as follows.

SELECTION FOR THE POST OF ASSISTANT LAW OFFICER IN SCALE RS. 2000-3500 VIVA VOICE ON 27.04.1995

NUMBER OF VACANCIES 2 (SC-1: UR-1)

COMMITTEE MEMBERS: 1. SDGM 2. FA & CAO

                                  3. CPO 4. CELE SHRI R. MOHAN DAS

Sl. No. Name  &  Designation

Date  of  Birth

Date  of  appointment

Date  of  promotion  to  present  grade

Educational  qualification

1. M. SIDDAIAH  (SC) CLA/HQRS

04.08.43 16.6.65 9.5.85 B.Sc, B.L.

Marks Obtained Total (200 marks)

Total Remarks

Professional  Ability  (150)

Record  of  service  (25)

Personality  address  &  leadership/Academic Technical/Qualification (25)

91 15 18 124       Sl. No. Name  &  

Designation Date  of  Birth

Date  of  appointment

Date  of  promotion  to  present  grade

Educational  qualification

2. K.  RAJAGOPALAN  NAIR ASST.  SEC.  (ADHOC) RRT

24.08.39 16.11.63 01.04.87 B.Sc., LLB

Marks Obtained Total (200 marks)

Total Remarks

Professional  Ability  (150)

Record  of  service  (25)

Personality  address  &  leadership/Academic Technical/Qualification (25)

91 21 16 128

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Sl. No. Name  &  Designation

Date  of  Birth

Date  of  appointment

Date  of  promotion  to  present  grade

Educational  qualification

3. V.  SUBRAMANIAN  L.O.  (ADHOC)  ICF

10.03.40 31.5.62 23.11.87 B.A.,  B.G.L.  Diploma  in  Labour Laws  with  Admn.  Law

Marks Obtained Total (200 marks)

Total Remarks

Professional  Ability  (150)

Record  of  service  (25)

Personality  address  &  leadership/Academic Technical/Qualification (25)

92 18 17 127

Sl. No. Name  &  Designation

Date  of  Birth

Date  of  appointment

Date  of  promotion  to  present  grade

Educational  qualification

4. M.  ABDUL  KHADER  CLA/DPO/O/MYS

01.11.43 11.09.64 01.04.90 B.A, LLB

Marks Obtained Total (200 marks)

Total Remarks

Professional  Ability  (150)

Record  of  service  (25)

Personality  address  &  leadership/Academic Technical/Qualification (25)

92 17 15 124

Sl. No. Name  &  Designation

Date  of  Birth

Date  of  appointment

Date  of  promotion  to  present  grade

Educational  qualification

5. K. MANORAMA (SC) CLA/HQRS

22.12.60 13.11.81 24.07.90 B.A., B.L.

Marks Obtained Total (200 marks)

Total Remarks

Professional  Ability  (150)

Record  of  service  (25)

Personality  address  &  leadership/Academic Technical/Qualification (25)

91 15 16 122

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Sl. No. Name  &  Designation

Date  of  Birth

Date  of  appointment

Date  of  promotion  to  present  grade

Educational  qualification

6. R.  MUTHUSAMY CLA/DPO/O/MAS

05.05.55 22.12.79 03.4.91 B.Sc, LLB

Marks Obtained Total (200 marks)

Total Remarks

Professional  Ability  (150)

Record  of  service  (25)

Personality  address  &  leadership/Academic Technical/Qualification (25)

91 16 17 124

Sl. No. Name  &  Designation

Date  of  Birth

Date  of  appointment

Date  of  promotion  to  present  grade

Educational  qualification

7. T.P. BHASKAR CLA/MAS

26.08.55 31.07.91 24.7.91 MA, LLB

Marks Obtained Total (200 marks)

Total Remarks

Professional  Ability  (150)

Record  of  service  (25)

Personality  address  &  leadership/Academic Technical/Qualification (25)

95 15 15 125

(R. MOHANDAS) (V. NATARAJAN) (P.MURUGAN) __________________________________________________________________________

14. As can be seen from this chart it was Respondent No. 4 who  

had obtained the highest marks i.e. 128.  Mr. V. Subramanian and Mr. T.P.  

Bhaskar are next to him with 127 and 125 marks respectively.  Thereafter,  

there  are  other  candidates  i.e.  Mr.  Siddaiah,  Mr.  Abdul  Khader  and  Mr.  

Muthusamy who all get 124 marks.  Mr. Siddaiah has been selected out of  

them, essentially because it was a Scheduled Caste vacancy which came to  

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be allotted to him keeping aside other candidates.  Not only that, but he was  

placed  at  number  one  and respondent  No.  4  (having  higher  marks)  was  

placed at number two. The Tribunal held that if Respondent No. 3 got marks  

lesser than that of Respondent No. 4, only then he can be said to be selected  

against Scheduled Caste point.  The Tribunal did not realize that the third  

Respondent had in fact got marks lesser than the fourth Respondent, and his  

selection was basically because he was a Scheduled Caste candidate.  In view  

of this position, there is no occasion to apply the instruction contained in  

Railway  Board’s  letter  dated  29.7.1993  nor  the  propositions  in  R.K.  

Sabharwal’s  judgment  (supra)  to  the  present  case.   Even  otherwise,  the  

principle that when a member belonging to a Scheduled Caste gets selected  

in the open competition field on the basis of his own merit, he will not be  

counted against the quota reserved for Scheduled Castes, but will be treated  

as  open  candidate,  will  apply  only  in  regard  to  recruitment  by  open  

competition and not to the promotions effected on the basis of seniority-cum-

suitability.

15. The  appellant  had  argued  before  the  High  Court  that  the  

candidates who obtained 80% marks or above are to be placed at the top  

indicating that they are to be selected irrespective of the community factor.  

In appellant’s submission Mr. M. Siddiah, had to be considered as one such  

candidate.  Now the two relevant rules 204.8 and 204.9 read as follows:-

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“204.8 The successful candidates shall be arranged as follows:

(1) Those  securing  80%  marks  and  above  graded  as  ‘Outstanding’.

(2) Those  securing  between  60%  marks  and  79%  marks  graded as ‘Good’.

204.9  The  panel  should  consist  of  employees  who  had  qualified  in  the  selection,  corresponding  to  the  number  of   vacancies for which the selection was held.  Employees securing   the gradation ‘Outstanding’ will  be placed on top followed by  those  securing  the  gradation   ‘Good’  interse  seniority  within   each group being maintained.’

It  is  to  be noted,  as seen from the marks which have been  

referred  to  earlier,  that  none of  the candidates  obtained more than 80%  

marks, and therefore, could not be considered as outstanding to be eligible  

on that  footing.   On this  count  also Mr.  M. Siddiah’s  selection cannot  be  

considered as one only on merit irrespective of the community factor.

16. In the circumstances,  there is  no error  in the judgment  and  

order  rendered  by  the  High  Court.   The  appeal  is,  therefore,  dismissed.  

Original Application, filed by the first respondent before the Administrative  

Tribunal, shall stand dismissed.

    ……… …..……………………..J.  ( R.V. Raveendran)   

 …………………………………..J.  ( H.L. Gokhale )

New Delhi

Dated : September 29, 2010

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