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CASE NO.: Appeal (civil)  1078-1081 of 2005

PETITIONER: SHIV NATH PRASAD

RESPONDENT: SARAN PAL JEET SINGH TULSI & ORS.

DATE OF JUDGMENT: 10/01/2008

BENCH: A.K. MATHUR & MARKANDEY KATJU

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.          1.      These appeals are directed against the order dated                 15th may 2003 passed by the Division Bench of Madhya Pradesh High Court  in Writ Petition No. 5634 of 1999, whereby Shiv Nath Prasad, appellant  (herein) challenged the order passed by the State Administrative  Tribunal challenging the promotion of petitioner/appellant before us  and private respondents who belong to non-scheduled caste.  The case  of the appellant (herein) was that he was appointed as Assistant  Engineer in the Public Works Department after selection through Madhya  Pradesh Public Service Commission.  Petitioner/Appellant (Scheduled  Caste) alongwith other Schedule Caste and other private respondents  (non-SC) were selected and appointed as Assistant Engineers on the  basis of Civil Services Examination conducted by the Madhya Pradesh  Public Service Commission.  The names of scheduled caste candidates  appeared at S.Nos. 23, 24 and 25 below the name of the respondent  Saran Pal Jeet Singh Tulsi (herein).  After their appointment, they  joined the duties on the post of Assistant Engineer on different dates  in the year 1972.  The names of the petitioner/appellant and other  scheduled caste candidates were shown in the select list prepared by  the Public Service Commission in lower position and their seniority  was also drawn on the post of Assistant Engineer in the order  mentioned in the select list.  In the gradation list, issued for the  post of Assistant Engineer as on 1.4.1982, the names of the  petitioner/appellant and other scheduled caste candidates duly  selected appeared at S. Nos 187, 189 and 190, while the name of the  respondent no. 1 (herein) and others appeared between S.Nos 168-186.   Therefore, admittedly, the respondents (herein) were senior to the  petitioner/appellant.  Thereafter, the petitioner/appellant was  promoted to the post of the Executive Engineer in July, 1980 against  the reserved post of the Executive Engineer, whereas, other private  respondents (non-scheduled caste candidates) were not considered for  promotion on account of non-availability of post in general category.   But, they were considered and appointed on the post of Executive  Engineer in the year 1985, i.e. much after the promotions of the  scheduled caste candidates including that of petitioner/appellant  before us.  A provisional gradation list was issued and published on  18.6.1991 and objections were invited and that list was finalized on  8.10.1991.  In this gradation list, the candidates who were appointed  against the scheduled caste vacancies were shown above the other  private respondents who were appointed against the general quota.   Persons who were promoted against the reserved category were placed  low in the merit prepared by the Public Service Commission, but shown  as senior, on account of their earlier promotion on the post of  Executive Engineer against reserved category, and thereby having march  over the persons of the general quota, who were promoted later than  these candidates, i.e. scheduled castes/scheduled tribes.  This list

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was challenged before Tribunal and a prayer was made that they be  placed above the scheduled caste candidates, because they were not  superseded by the scheduled caste candidates but on account of non- availability of post under general quota, they could not be promoted.   Therefore, there is no case of supersession and as such, the seniority  position of the Assistant Engineers, prepared on the basis of the  merit list of the Public Service Commission should be followed and  they be made senior to the persons, who were appointed against the  scheduled caste quota.  It was also contended before the Tribunal that  on account of General Administration Department circulars dated  2.5.1975 and 17.5.1975 and as per the provisions of the M.P. Civil  Service (General Conditions of Service) Rules, 1961 (hereinafter  referred to Rules of 1961), they are entitled to be placed higher in  the seniority list of Executive Engineer, though they might have been  promoted later.  This petition was opposed before Tribunal by private  respondents (Scheduled Caste candidates), as well as by the State.   The claim of the petitioner was denied before Tribunal and according  to the return filed by the private respondents, it was claimed that  since the private respondents, i.e., scheduled caste candidates were  promoted on recommendation of DPC in different years, therefore, by  virtue of their date of appointment, they became senior to the person  from general quota and as such they are entitled to higher seniority.   The objection of limitation was also raised.  The objection of  limitation was overruled by Tribunal and Tribunal allowed the  application of those applicants and directed to consider all the  petitioners before Tribunal and other persons similarly selected  against general quota, for promotion to the post of Superintending  Engineer from the date prior to the date on which private respondent  no. 2 (petitioner/appellant) was promoted by calling a Review  Departmental Promotion Committee and consequently, all benefits to be  given to them, if they were found suitable including for the post of  the Chief Engineer and if it would become necessary to revert the  private respondent no. 2 (petitioner/appellant) from the post of Chief  Engineer for want of the post, such order shall be made within two  months, however, no arrears shall be paid.  Aggrieved against this  order of Tribunal, the present writ petition was filed by the  petitioner/appellant challenging the order of the Tribunal. 2.      The contention raised before the High Court was that since the  appellant (herein) was promoted to the post of Executive Engineer  earlier than to the respondent (herein) and thereafter, he was  promoted to the post of Superintending Engineer and the respondent  (herein) was promoted to the post of Superintending Engineer later,  therefore, he cannot be equated with the petitioner as such order of  Tribunal is not sustainable.  He also claimed seniority over the  respondent (herein), because the petitioner/appellant was promoted to  the post of Executive Engineer much earlier than him.  He claimed  seniority in the cadre of Executive Engineer on account of longer  length of officiation.  Therefore, the challenge of the respondent  (herein) before the Tribunal, claiming seniority over and above him on  the post of Executive Engineer was not sustainable and in that  connection, the case of Akhil Bhartiya Soshit Karamchari Sangh was  relied (AIR 1996 SCC 3534).  As against this, it was contended on  behalf of respondent (herein) that since the respondent was placed  higher in the seniority in the post of Assistant Engineer, i.e. the  feeder cadre on the basis of the selection made by the Public Service  Commission, therefore, he will carry his seniority on promotion to the  post of Executive Engineer and that seniority cannot be disturbed,  simply because the petitioner got the promotion on the post of  Executive Engineer earlier than the petitioner on account of the  reserved post being available, the basic seniority cannot be disturbed  and in that connection, reliance was placed in the case of Ajit Singh  Juneja and others vs. State of Punjab and others (1996) 2 SCC 715 and  Ajit Singh and others vs. State of Punjab and others (1999) 7 SCC 209.   It was contended on behalf of the State that on account of the  amendment in the Article 16 (4A) in the Constitution, the law laid

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down in the case of Ajit Singh I and Ajit Singh II(Supra) lost their  basis and, therefore, they are not applicable.  It was also contended  by the State that since they were promoted against the reserved  category on the post of Executive Engineer by five years earlier than  the general quota candidates, therefore, they would carry their  seniority in the cadre of the Executive Engineer from their date of  promotion.  It was also contended that subsequently, candidates from  reserved category including petitioner/appellant was promoted to the  post of Superintending Engineer on 7.4.1993, while general category  persons as Superintending Engineer on 8.6.1995.  In this background,  the High Court framed two questions which reads as under:

       \0231.  Whether the general category candidates are entitled to  higher seniority in the promotional cadre of Executive Engineer  as they were senior in the feeder cadre of Assistant Engineer  irrespective of their date of promotion?

       2.      Whether the reserved category candidates should be held to  be senior to that of general category candidates on account of  their length of seniority in the cadre of Executive Engineer from  the date of their actual officiation based on their regular  promotion to this post?"

3.      The recruitment to the promotions within the service are governed  by the provisions of the M.P. Public Works Department Engineering  (Gazzetted Service Recruitment) Rules 1969 (hereinafter referred to  Rules of 1969).  The promotion to the post of Executive Engineer, as  per these rules is hundred per cent from the post of Assistant  Engineer.  Therefore, the feeder cadre for the post Executive Engineer  is Assistant Engineer.  The selection is required to be made on the  basis of merit-cum-suitability.  It further contemplates that a person  with exceptional merit and suitability can be recommended by the  Departmental Promotion Committee for promotion to the post of  Executive Engineer and that list is to be sent to the Public Service  Commission for approval and, thereafter, the Government makes  appointment on the recommendation so made by the Departmental  Promotion Committee.  Therefore, the feeder cadre for promotion is the  Assistant Engineer on the basis of seniority list so prepared.  But  the rules did not provide that  in case the promotion is made against  the scheduled caste vacancy, then how seniority will be assigned.  In  order to fill up this gap, Executive Memoranda were issued by the  State Government on 2.5.1975 and 17.5.1975, which provide for  reservation in promotion as well as provisions made for fixation of  inter-se seniority between those who were promoted against reserved  quota on the basis of roster-point.  Para 3(3) of the Memorandum  contemplated that though the persons may have been promoted against  reserved category but their inter-se seniority between the general  category candidates and the reserved category candidates so promoted  shall be maintained as was in the feeder cadre from which they were  promoted.  In the present case, the appellant (herein) was not  selected on account of exceptional merit, but on account of the post  being available against the roster-point, scheduled caste category.   Therefore, his promotion was on account of the reserved quota and as  such he will carry his seniority as was in the feeder post, i.e.,  Assistant Engineer.  Sub-para 3 of para 3 of the above said  memorandum, which is reproduced, reads as under:

       \023All the persons selected in the promoted post including  Scheduled Caste and Scheduled Tribe persons, their inter-se  seniority will be determined according to their seniority in the  post from which they have been promoted.  But if any person has  been placed above the persons so promoted on the basis of his  special qualification, his seniority in the promoted post will be  fixed according to his seniority.\024

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4.      Therefore, in this background it was held that the  petitioner/appellant will carry his seniority as was given in the  feeder post and he cannot have a march on account of his earlier  promotion against the reserved category.  The Division Bench of the  High Court relied on the decision of this Court in the case of Ajit  Singh I and Ajit Singh II (Supra).  In this background, High Court  confirmed the order of the Tribunal and dismissed the writ petition of  appellant aggrieved by this order of the Division Bench of High Court  dated 15.5.2003, the present appeal was filed. 5.      Learned counsel for the appellant submitted that since the  petitioner/appellant was promoted on the post of Executive Engineer in  1980 and respondents were promoted in 1985, therefore,  petitioner/appellant had already had a march over the respondent and  he also submitted that by virtue of the 77th and 85th constitutional  amendment of Article 16 (4A), the promotion of these persons shall be  deemed to be validly made, therefore, the petitioners are entitled to  that higher seniority and consequential benefit of earlier promotion  to the post of Executive Engineer, Superintending Engineer and  likewise to the post of Chief Engineer.  It was submitted that this  was a constitutional mandate and Court cannot ignore the  constitutional mandate.  Therefore, the learned counsel submitted that  the view taken by the High Court cannot be sustained.  He also  submitted that the ratio laid down in the case of Ajit Singh I and  Ajit Singh II (Supra) does not hold good anymore in view of the 77th  and 85th constitutional amendment and that shall deem to be come into  force retrospectively.  Consequently, all the benefit given by the  petitioner is correct.  As against this, the learned counsel for the  respondent strenuously urged before us that the constitutional  amendments i.e. 77th and 85th were retrospective with effect from  17.6.1995 and  it cannot go beyond that.  Therefore, present case has  to be decided on the basis of legal position obtaining at the relevant  time.  The retrospectivity cannot be given to constitutional mandate  beyond what Parliament has already given. 6.      Before we proceed to consider the rival submissions, it would be  appropriate to reproduce both the 77th and 85th constitutional  amendments.  The 77th amendment in the Constitution was inserted by  Article 16 (4A) with effect from 17.6.1995 enabling State Government  to make provision for reservation in State services in favour of  scheduled castes and scheduled tribes in matter of promotion which was  not there prior to this amendment, but it did not provide any benefit  of seniority.  Therefore again Article 16 (4A) was amended by the  Constitution (85th Amendment) Act, 2001 with effect from 17.6.1995  providing \021consequential seniority\022. Both amendments reads as under:  \023(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 the Scheduled Castes and Scheduled Tribes which in the  opinion of the State are not adequately represented in the  services under the State.\024          

       \023(4A) Nothing in this article shall prevent the State from making  any provision for \021reservation in matters of promotion, with  consequential seniority, to any class\022 or classes of posts in the  services under the State in favour of the Scheduled Castes and  Scheduled Tribes which in the opinion of the State are not  adequately represented in the services under the State.\024

7.      As a result of this subsequent amendment which came into force by  the Constitution (85th Amendment) Act, 2001 with effect from 17.6.1995,  the candidates who have been given promotion against reserved category  could possibly claim a consequential seniority.  In fact, both these  amendments in Article 16 (4A) facilitated the rules to be framed by  the State Government.  Prior to this, the State Government had issued  only executive instructions to cover this omission.  This

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constitutional mandate came to the rescue of the State so as to enable  the State to provide reservation in promotion and consequential  seniority with effect from 17.6.1995.  In fact, these two amendments  necessitated because of the decision given in the Ajit Singh II vs.  State of Punjab wherein their Lordships observed as under:

       \023The roster-point promotees (reserved category) cannot,  therefore, 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.  Virpal  and Ajit Singh have been correctly decided and Jagdish Lal is not  correctly decided.  In Jagdish Lal 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 was the main reason for arriving at a different  result.\024

8.      In fact, by virtue of this ratio laid down the Constitution  Bench, 85th Amendment was necessitated which came by the Amendment Act  of 2001 and it was made retrospective with effect from 17.6.1995.  In  case of Ajit Singh II, all earlier cases were considered by this  Court, therefore, no useful purpose will be served by referring to all  the decisions referred by learned counsel for the petitioner.  After  the 85th amendment, the position has now been crystallized and the  State Government also framed consequently, Rules of 2002, known as  Madhya Pradesh Public Service Commission (Services Promotion Rules  2002).   Prior to that the State Government had already framed the Act  known as Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan  Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994.   By this Act, the Government only provided that State Government can by  notification, provide roster-point promotion to the scheduled castes  and scheduled tribes in the services.  This Act came in 1994, but  there was no consequential provision for providing the seniority,  therefore, they further framed the rules, known as Madhya Pradesh Lok  Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade  Vargon Ke Liye Arakshan) Sanshodhan Adhiniyam, 2002, and this came  into force by the notification issued on 13.5.2002 by the State  Government. By amending Act of 1994, sub-Section 5-A was inserted in  Section 5 of the main act of 1994 enabling the State Government to  provide for consequential seniority in favour of scheduled castes and  scheduled tribes by framing the rules or by issuing instructions and  thereafter, consequently, Madhya Pradesh Public Services (Promotion)  Rules, 2002 was framed enabling the benefit to scheduled castes and  scheduled tribe candidates, who got promotion against the reserved  post.  Therefore, now, by virtue of the 77th and  85th constitutional  amendment and consequential Act and rules framed by the State of  Madhya Pradesh, it is possible to provide a proper seniority to the  persons who have been promoted against scheduled caste and scheduled  tribe quota- a seniority as a result of their appointment against  reserved post of scheduled caste or scheduled tribe.  But, this has  all come into force from 2002 only.   9.      But in the present case, the issue triggered in the year 1985 and  these rules at that time were not in force.  Neither the  constitutional amendments had come into force nor were the rules.   Neither the 77th constitutional amendment nor the 85th constitutional  amendment had been made retrospective from 1985.  It has been made  retrospective with effect from 17.6.1995 only.  The controversy dates  back to 1985 when the general quota candidates were promoted in 1985

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on the post of Executive Engineer and the appellant respondent was  promoted in 1980.  At that time, the circular of the Government of  1975 was in force and as per that circular of the Government,  incumbent was not entitled to the seniority on account of his  accelerated promotion against the reserved quota,  as per the circular  of 1975 as quoted above, he was only entitled to the accelerated  promotion but not the seniority; therefore, in this view of the  matter, we are of the opinion that the view taken by the Division  Bench of High Court is correct and no interference is warranted in the  present case.  Consequently, all the appeals are dismissed.  No order  as to costs.