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CASE NO.: Appeal (civil)  2866 of 1998

PETITIONER: RAM PRASAD ETC.ETC.

RESPONDENT: D.K.VIJAY AND ORS.ETC.ETC.       

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.

     Leave granted in the special leave petitions.  All the Civil  Appeals  arise out of the judgment of  the  Rajasthan High  Court  in a batch of writ petitions.  There are  three sets of appeals.

     The  Civil Appeals 2866/98, 2867/98, 2868/98, 3282/98, 4084/98 have been filed by the reserved candidates and arise out  of  (DB) CWPs.  2545/96, 2812/96, 3086/96, 2963/96  and 4918/97  respectively.  Civil Appeal 3935/98 is filed by the general  candidates  and arises out of CWP.   3080/96.   The State  of  Rajasthan has filed C.A.  Nos.  3147-3150/98  and they   arise   out  of  CWPs.    3086,  6208   and   4918/97 respectively.   The  Civil  Appeals   arising  out  of  SLPs 9185-88/99  have  also been filed by the State of  Rajasthan and  arise out of CWPs.  2545/96, 2675/96, 4726/97  (646/97) and  2963/96.   The High Court has disposed of all the  writ petitions  by  a  common judgment dated 2.4.1988.   All  the eight  writ  petitions were filed in the High Court  by  the general  candidates.   The  D.B.  CWPs.   2812/96,  3086/96, 6208/96  and  4918/97  were filed in the High Court  by  the general candidate officers of the Rajasthan Police Service ( for  short  R.P.S.)  seeking modification of  the  seniority list.   Similarly,  the  D.B.   Civil  Writ  Petitions  Nos. 2543/96,  2675/96, 4726/96 ( 646/97) and 2963/96 were  filed by   the  general  candidate   officers  of  the   Rajasthan Administrative Service ( for short ’R.A.S.’) challenging the mode  of  implementation of Rules 8 and 33 of the  Rajasthan Administrative  Service  Rules 1954.  Decision of  the  High Court:

     The  High  Court took up CWP.  2812/96 in  the  Police Service  and CWP.  2545/96 in the Administrative Service  as the  main  case.  The writ petitions were partly allowed  so far  as  the  seniority of the reserved  candidates  at  the promotional  level was concerned, by following the  judgment of  this  Court in Ajit Singh Januja Vs.  State of Punjab  ( 1996  (2)  SCC  715)  i.e.Ajit   Singh  No.1  dated  1.3.96. Promotions  in excess of 28% quota were quashed.  In  regard

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to   the  question  whether   the  placement  of  Additional Superintendents  of  Police  ( senior scale)  as  Additional Superintendents  ( Selection scale) amounted to a  promotion so  as  to  give  the reserved  candidates  the  benefit  of reservation  by way of roster points the High Court held  in favour  of  the  reserved candidates that it amounted  to  a promotion  and that reservation as per the roster points for promotion  to the selection scale has to be given.  The High Court in that context followed the decision of this Court in State  of Rajasthan Vs.  Fateh Singh Soni ( 1996(1) SCC 562) dated  12.12.95.   The general candidates are  aggrieved  in this behalf and filed C.A.  3935/98.

     The High Court has also followed Ajit Singh No.1 dated 1.3.96 and held that the reserved candidates on promotion at roster  points cannot count their seniority from the date of such  promotion  and their senior general candidates at  the lower  level,  on  promotion become seniors  to  them.   The reserved  candidates have preferred appeals C.A.2866-2868/98 and 3282/98 and 4084/98 in regard to this part the judgment. No submissions were made before us on behalf of the reserved candidates  that  reservation  should be in  excess  of  28% quota.  Contentions in this Court:

     The  State of Rajasthan while accepting the principles laid   down  in  Ajit  Singh   No.1,  has,  however,   filed C.A.3147-3150/98 and the appeals arising out of SLPs.  9185- 88/99  to contend that the seniority lists accepted in Fateh Singh  Soni by this Court could not have been altered by the High  Court,  under  the  impugned  judgment.   The  general candidates   contend   that  Fateh   Singh   Soni   requires reconsideration.   They  also  contend that, in  any  event, Fateh  Singh Soni’s case was decided on 12.12.95 and at that time  this Court was not dealing with the issue of seniority of  the  roster point promotees and hence after judgment  in Ajit  Singh No.1 dated 1.3.96, it becomes necessary for  the High  Court  to  modify the seniority lists as  accepted  in Fateh  Singh  Soni’s  case in implementation of  Ajit  Singh No.1.   The reserved candidates contend that Ajit Singh No.1 is  not  correctly  decided and Jagdish Lal  Vs.   State  of Punjab ( 1997(6) SCC 538) is to be followed.

     The  State  of Rajasthan made an additional plea  that between  1.3.96 when Ajit Singh No.1 was decided on  1.4.97, certain  further  promotions of the reserved candidates  had taken  place  and that the prospectivity of Ajit Singh  No.1 may  be  postponed  from 1.3.96 to 1.4.97  for  the  limited purpose  of  preventing  reversions  of  the  roster-  point promotees who were promoted upto 1.4.97 though in respect of seniority,  Ajit Singh No.1 could be given effect in respect of  reserved  candidates  promoted at roster  points  before 1.4.97.  The Rules:

     It may be noted that the R.P.S.  officers are governed by  the Rajasthan Police Service Rules, 1954 and the  Indian Police (Appointments by promotion, Regulations, 1955) issued in  pursuance of Sub-rule (1) of Rule 9 of the Indian Police Services  (Recruitment) Rules, 1954.  The relevant Rules are Rule  8, 9, 28-A and 33 of the 1954 Rules.  The above  Rules are  pari-materia with the Rajasthan Administrative  Service Rules,1954.

     Rule  8  of  the  R.P.S.    Rules,  1954  deals   with ’Reservation  of  vacancies  for the  Scheduled  Castes  and Scheduled  Tribes’.   Rule  9  deals   with  the  method  of

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determination  of  vacancies.  Rules 27, 27A, 28  deal  with criteria  for  selection  and  procedure  for  selection  by seniority-cum-merit,  eligibility  being reckoned as on  the first  day  of  April of the year of selection.   Rule  28-A refers  to the ’Revised criteria, Eligibility and  Procedure for promotion to Junior, Senior and other posts ex-cadred in the  services.   Rule 33 deals with ’seniority’.   Rajasthan Rule is consistant with Ajit Singh:  Today we have delivered judgment  in  IAs 1-3 in Civil Appeal  Nos.3792-94/89  (Ajit Singh  No.1)  and that is called for convenienc, Ajit  Singh No.2.

     It  is important to note that in Rajasthan, there is a general  Amendment  dated  1.4.97 made to  the  R.P.S.   and R.A.S.   Rules  of  1954  which  directs  that  roster-point promotees shall not be given such seniority.  That amendment reads as follows:

     "After  the existing last proviso of rule as mentioned in  column 3 against each of the Service Rules, as mentioned in  column 2 of the Schedule appended hereto, the  following new  proviso  at  the  next serial number  shall  be  added, namely:

     "That  if  a  candidate  belonging  to  the  Scheduled Caste/Scheduled  Tribe  is promoted to an  immediate  higher post/grade  against  a  reserved vacancy  earlier  than  his senior  general/O.B.C.   candidate who is promoted later  to the  said  immediate  higher   post/grade,  the  general/OBC candidate  will  regain  his  seniority  over  such  earlier promoted candidate of the Scheduled Caste/Scheduled Tribe in the immediate higher category."

     The  above circulars are consistent with what has been laid  down in regard to seniority of reserved candidates  in Ajit Singh No.1 and Ajit Singh No.2.

     Fateh Singh Soni correctly decided:  The contention of Sri  Gopal  Subramaniam  for  the  general  candidates  that appointment  from  senior scale to selection scale is not  a promotion and that Fateh Singh Soni requires reconsideration in view of the judgments in Union of India Vs.  S.S.  Ranade (1995(4)  SCC 462) and Lalit Mohan Deb Vs.  Union of India ( 1973(3)  SCC  862),  cannot be accepted.  We are  unable  to agree.   We find that both these cases have been referred to and  explained  in Fateh Singh Soni’s case.  Therefore,  the reserved  candidates  are  entitled to be  promoted  to  the selection  scale by way of the roster points.  But, this has to  be  done in the manner mentioned in R.K.  Sabbarwal  Vs. State  of  Punjab  ( 1995(2) SCC 745).  The  appeal  of  the general  candidates has to fail.  Seniority is to be decided as  per Ajit Singh No.1 and Ajit Singh No.2:  So far as  the seniority  of the roster point promotions is concerned,  the reserved  candidates  have contended that upon promotion  at the  roster  points, the promotees can reckon seniority  and that senior general candidates who later got promoted cannot be treated as seniors at the promotional stage.  But in view what has been decided in our separate judgment in Ajit Singh No.II today, the above contention cannot be accepted.  Thus, there  are  no merits in the appeals filed by  the  reserved candidates.

     On   behalf  of  the   State  of  Rajasthan,   learned Additional Solicitor General, Sri Altaf Ahmad contended that

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the  seniority  settled by Fateh Singh Soni could  not  have been  disturbed by the High Court.  We are unable to  agree. Fateh  Singh  Soni was decided on 12.12.95 while Ajit  Singh No.1 was decided on 1.3.96.  In Soni’s case, the question of the  seniority  of roster points promotees vis-a-vis  senior general  candidates  was not in issue.  Here, the  seniority lists  prepared in accordance with Fateh Singh Soni have  to be modified in the light of Ajit Singh No.1.  The High Court was, therefore, right in applying Ajit Singh No.1 and giving direction  to  implement  that judgment.  In our  view,  the question  of seniority of the roster point promotees will be on  the  basis  of what was decided in Ajit Singh  No.1  and under  Points  1 to 3 in Ajit Singh No.2.  Prospectivity  of Sabharwal and Ajit Singh No.1 We first make it clear that so far  as  the ’prospectivity’ of Sabharwal is concerned,  the decision in Point 4 in Ajit Singh No.2 will apply.  There is no  change  in  the  cut off date so  far  as  Sabharwal  is concerned.   So  far as prospectivity of Ajit Singh No.1  is concerned,  our  decision in Ajit Singh No.2 will  apply  in principle  but  with  a slight modification of the  cut  off date.

     It  was argued for the State of Rajasthan that on  the peculiar factual situation concerning the R.P.S.  and R.A.S. officers,  the  judgment of this Court in Ajit Singh  Januja Vs.   State of Punjab ( 1996(2) SCC 715) (called Ajit  Singh No.1),  could  not be implemented forthwith and hence a  few more  promotions of the reserved candidates took place  upto 1.4.97.   It  was  pointed out that as per Ajit  Singh  No.1 those  reserved  candidates who were promoted before  1.3.96 were  not  to  be reverted, though their  seniority  in  the promoted cadre, even if made before 1.3.96 would be governed by  Ajit Singh No.1.  It was submitted that this  concession of  non-  reversion  could  be extended  to  those  reserved candidates who were promoted before 1.4.97.

     In  view of the peculiar facts of these cases, we  are inclined  to accede to this contention.  The result is  that officers from the reserved category who were promoted at the roster  points before 1.4.97 shall not be reverted but their seniority  in the promoted category shall be governed by the principles enumerated under Points 1 to 3 in Ajit Singh No.1 and  Ajit  Singh No.II.  The prospectivity of  Sabharwal  as explained  under  Point  4  in   Ajit  Singh  No.II  is  not disturbed.   So  far as prospectivity of Ajit Singh No.1  is concerned,  the  principles in Ajit Singh No.II in  Point  4 will apply but subject to postponement of 1.3.96 to 1.4.97.

     In  other  words,  we agree that there is no  need  to revert  those  reserved  category  officers,  if  they  were promoted  even beyond 1.3.96 but before 1.4.97.  To give  an example - in the case of two rosters from Level 1 to Level 2 and  Level  2  to  Level 3, if the  reserved  candidate  was promoted  before 1.4.97 to Level 4, such reserved  candidate need  not  be reverted.  If by the date of promotion of  the reserved  candidate  before 1.4.97 from Level  3,the  senior general  candidate at Level 2 has reached Level 3, he has to be considered as senior at Level 3 to the reserved candidate because  the latter was still at Level 3 on that date.   But if  such a general candidate’s seniority was ignored and the reserved  candidate  was  treated as senior at level  3  and promoted  to Level 4, this has to be rectified after  1.3.96 by  following  Ajit  Singh No.1 as explained in  Ajit  Singh No.II.  In other words, if a reserved candidate was promoted

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to  Level  4 before 1.4.97, without considering the case  of the  senior general candidate who had reached Level 3 before such promotion, such reserved candidate need not be reverted but  the  said  promotion to Level 4 is to be  reviewed  and seniority  at Level 3 and Level 4 ( as and when the  general candidate is promoted to Level 4) is to be refixed.  .pa

     Thus,  we  reject the main contentions of the  general candidates  and  the reserved candidates but accede  to  the request  of  the State of Rajasthan to the extent  indicated above.  All the appeals are, therefore, dismissed subject to the above concession.