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PETITIONER: S. RAJENDRAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       11/02/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      The appellant and respondent no.3 belong to the service of the jail Department of the Government of Pondicherry. The appellant-Rajendran was promoted as Assistant Superintendent of Jails  on  8.2.1980.  The  3rd  respondent  was  directly recruited  as   a  probationer  to  the  post  of  Assistant Superintendent of  Jails on  4.11.1988. The  3rd  respondent belongs to  a Scheduled  Caste. At the material time, in the seniority list  of Assistant  Superintendents, the appellant was at  serial no.1  and the  3rd respondent  was at  serial no.4. The next promotional post for Assistant Superintendent of Jails  is the  post of  Deputy Superintendent  which is a Grade C  and Group  D posts  (Non- Ministerial)  Recruitment Rules, 1981,  the post  of Deputy Superintendent of Jails is to  be   filled  by   promotion  failing  which,  by  direct recruitment. In  the case  of recruitment  by promotion, the Rules as  amended provide  that it will be by promotion from regular Assistant  Superintendents who  have put in not less than three years’ continuous service in that grade.      On 23.7.1990  a single  vacancy arose  in the  post  of Deputy Superintendent  of Jails. This vacancy was a reserved vacancy for a Scheduled Caste candidate. The respondent no.3 was the  only available Scheduled Caste candidates. However, he was  not eligible for promotion on that date since he had not completed  his period of probation and had not qualified for promotion  by passing  the departmental tests being jail Test  and   Executive  Officers’  Test.  Since  no  suitable Scheduled Caste  candidate was  available for promotion, the department applied  for de-reservation of the post so that a general category  candidate could be appointed to that post. This request,  however, was  turned down  and the department was advised  by the  Government to  fill up  the post  on an adhoc basis  until  a  suitable  Scheduled  Caste  candidate became available.  Accordingly, the  appellant was appointed Deputy Superintendent  by promotion  on an  adhoc basis.  On 6.2.1993 respondent no.3 became eligible for promotion since he was  declared to have satisfactorily completed his period of probation  and since he had also qualified by passing the two departmental  tests. By then he had also completed three

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years of  regular service.  The department accordingly moved the Government  for appointing  the 3rd  respondent  in  the reserved post.  Thereupon the appellant filed an application before the  Central Administrative  Tribunal at  Pondicherry for  regularisation   of  his   appointment  as   a   Deputy Superintendent.  His   application  was   allowed.  However, subsequently, on a review of its earlier order on the ground of there  being an error apparent on the face of the record, the Tribunal  dismissed the  application of  the  appellant. Hence, the  appellant had  come by  way  of  present  appeal against the order of the Tribunal in review.      The Brochure  on "Reservation  for Scheduled Castes and Scheduled Tribes  in Services"  issued by  the Government of India,  in   paragraph  11.3   in  Chapter   11  deals  with reservations and  carry forward  of a single vacancy arising in a year. It provides as follows :-      "In cases  where only  one  vacancy      occurs in  the initial  recruitment      year and  the corresponding  roster      point happens to be for a Scheduled      Caste  or  a  Scheduled  Tribe,  it      should be treated as unreserved and      filled    accordingly    and    the      reservation  carried   forward   to      subsequent three recruitment years,      but in  the subsequent  recruitment      year(s), even  if there is only one      vacancy, it  should be  treated  as      "Reserved"  against   the   carried      forward   reservation    from   the      initial  recruitment  year,  and  a      Scheduled   Caste/Scheduled   Tribe      candidate, if  available, should be      appointed in that vacancy, although      it  may   happen  to  be  the  only      vacancy   in    that    recruitment      year(s)."      In  this  connection  O.M.No.1/9/74=Estt.  (SCT)  dated 29.4.1975  further   provides  that   the  matter  has  been considered in the light of the judgment of the Supreme Court dated 11th  of October,  1973  in  the  case  of  Areti  Ray Choudhury vs.  Union of India (Railway Ministry) & Ors., and it has now been decided that in partial modification of O.M. dated 4th  of December,  1963, and  2nd of  September, 1964, while in  cases where only one vacancy occurs in the initial recruitment year  and the corresponding roster point happens to be  for a  Scheduled Caste or a Schedule Tribe, it should be treated  as unreserved  and filled  accordingly  and  the reservation carried-forward  to subsequent three recruitment years as hitherto. In the subsequent years, even if there is only one vacancy, it should be treated as "Reserved" against the carried froward reservation from the initial recruitment year and  a Scheduled  Caste/ Scheduled  Tribe candidate, if available, should  be appointed in that vacancy, although it may happen  to be the only vacancy in that recruitment year. For instance,  if a  single vacancy  arises in  the  initial recruitment year  1975, and  it falls at a reserved point in the roster,  it will  be treated  a ‘unreserved’  and filled accordingly in  that  year  but  the  reservation  would  be carried forward  to subsequent  recruitment  years.  In  the first subsequent  year i.e. 1976, if again, a single vacancy occurs, than  it should be treated as ‘reserved’ against the reservation  carried  forward  from  1975  and  a  Scheduled Caste/Scheduled Tribe  candidate not being available to fill the reserved  vacancy in  1976,  the  reservation  would  be

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further carried forward to 1977 and 1978, when also a single vacancy, if any, arising in those years should be treated as "reserved"  against   the   carried   forward   reservation, whereafter, the reservation will lapse.      In the  present case,  a single vacancy for the post of Deputy Superintendent  against  a  roster  point  which  was reserved for  a Scheduled  Caste candidate arose in the year 1978. This  was the  initial recruitment  year. In that year since no  Scheduled Caste  candidate was  available  it  was treated as  "unreserved" and  the  reservation  was  carried forward to  the next  recruitment year which was 1983 when a single  vacancy   arose.  This  vacancy  was  treated  as  a "reserved"  vacancy.   However,  since   a  Scheduled  Caste candidate was  not available for this vacancy an application was made for de-reserving this vacancy which was granted. It was thereupon filled by a general category candidate and the reservation was  carried forward  or transferee  to the next recruitment year  which would now be the initial recruitment year for  the reserved  vacancy since  the earlier point was de-reserved. The  next recruitment  year was  1990 when  the next vacancy  arose. This  is how the vacancy which arose on 23rd of  July, 1990  was  reserved  for  a  Scheduled  Caste candidate. Since  no Scheduled Caste candidate was available in 1990  and since the application of the department for de- reservation was  rejected, this vacancy as per the rules set out above,  was required  to be  carried forward  for  three recruitment  years.  The  vacancy  was  accordingly  carried forward for the next three recruitment years being the years 1991, 1992  and 1993.  In 1994  the reservation  would  have lapsed  if   no  suitable   Scheduled  Caste  candidate  was available. However, in 1993 the 3rd respondent was available for filling  up the  reserved vacancy in the Scheduled Caste category.  That  is  why,  to  prevent  the  appointment  of respondent no.3,  the appellant filed the application before the Central Administrative Tribunal in July 1993.      In the  background of this factual position, the action of respondents 1 and 2 in giving only an ad hoc promotion to the appellant  appears to  be justified.  Because they  were required to  carry-forward the  reserved vacancy  for  three subsequent years.  The reservation  would lapse  only in the year 1994.  The occasion, however, for making an appointment from the general category in 1994 did not arise.      In the case of Jogendra Sehti vs. Rabindranath Behura & Ors. (1995  Supp. (3)  SCC 693),  this Court  considered the provisions with  regard to reservation of posts and Services (For Scheduled  Castes and  Scheduled Tribes)  Act, 1971. It considered the  provision for  carry-forward of  vacancy for three  years   of  recruitment   and  held  that  the  first recruitment year  would be  the year  in which  the  vacancy arose and  it was  required to  be carried forward for three subsequent calendar  years  looking  to  the  definition  of "recruitment year"  in the  said Act.  Under the Brochure on "Reservation For  Scheduled Castes  and Scheduled  Tribes in Services" also,  in Chapter  11,  paragraph  11.1  Note  (1) ‘recruitment year’ to mean "a calendar year and for purposes of the  three years"  limit for  carry-forward  of  reserved vacancies it  shall mean  the year  in which  recruitment is actually made."  The vacancy,  therefore, was required to be carried forward for three calendar years starting with 1991. (See also  in this  connection Malkhan  Singh vs.  Union  of India & Ors. (1997 (2) SCC 33).      In the premises the Tribunal had correctly reviewed its earlier  order   and  dismissed   the  application   of  the appellant. The  present appeals  are, therefore,  dismissed. There will, however, be no order as to costs.

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