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PETITIONER: UNION OF INDIA AND ORS. ETC.

       Vs.

RESPONDENT: VIRPAL SINGH CHAUHAN ETC.

DATE OF JUDGMENT10/10/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) AGRAWAL, S.C. (J)

CITATION:  1996 AIR  448            1995 SCC  (6) 684  JT 1995 (7)   231        1995 SCALE  (5)648

ACT:

HEADNOTE:

JUDGMENT:                        J U D G M E N T B.P. JEEVAN REDDY, J.      C.A. NOS.9272-73 & 9277 1995 (ARISING OUT OF S.L.P. (C) NOS.6468 OF  1987, 1682/88,  AND 8111/94),  C.A. NO.2261/87, 5044/89, 4436/90,  18/90, W.P. (C) 1208/87 AND 565/93. [Main Opinion]      Leave granted in Special Leave Petitions. 1.   These appeals/writ  petitions raise  an  important  but difficult  question   concerning  the   nature  of  rule  or reservation in  promotions obtaining  in the Railway service and the  rule  concerning  the  determination  of  seniority between  general  candidates  and  candidates  belonging  to reserved classes in the promoted category. The issue is best illustrated by  taking the  facts  in  the  first  of  these matters, viz.,  Union of  India and  Ors.  v.  Virpal  Singh Chauhan - civil appeal No.9272/95 arising from Special Leave Petition (C)  No.6468  of  1987.  The  appeal  is  preferred against the  judgment of the Central Administrative Tribunal (Allahabad Bench)  disposing of  Original Application No.647 of 1986 with certain directions. [It was originally filed as a writ  petition in  the Allahabad  High Court which, on the constitution  of   the   Central   Administrative   Tribunal (Allahabad Bench),  was transferred to the Tribunal.] It was filed by,  what may  be called  for the sake of convenience, employees not  belonging to  any of  the reserved categories (hereinafter referred  to as  "general candidates"  -  which means   open    competition   candidates).    The    railway Administration  as   well  as  the  employees  belonging  to reserved categories,  i.e., Scheduled  Castes and  Scheduled Tribes   were    impleaded   as    respondents.   The   writ petition/original  application  came  to  be  filed  in  the following circumstances:      Among the  category of  Guards in  the Railway service, there are  four categories,  viz., Grade ‘C’ Grade ‘B’ Grade ‘A’ and Grade ‘A’special. The initial recruitment is made to

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Grade ‘C’  and they  have to  ascend rung  after rung  to go upwards. The  promotion from  one grade  to another  in this category is  by seniority-cum-suitability.  In other  words, they are  "non-selection posts".  The rule of reservation is applied not  only at  the initial  stage of  appointment  to Grade ‘C’  but at  every stage  of promotion. The percentage reserved for  Scheduled Castes  is fifteen  percent and  for Scheduled Tribes  7.5%, a  total of  22.5 percent.  To  give effect to  the rule of reservation, a forty-point roster was prepared in which certain points were reserved for Scheduled Castes and  Scheduled Tribes respectively, commensurate with the percentage of reservation in their favour. For Scheduled Castes candidates,  the places  reserved in the roster were: 1, 8,  14, 22, 28 and 36 and in the case of Scheduled Tribes candidates,  they  were:  4,  17  and  31.  Subsequently,  a hundred-point roster has been prepared, again reflecting the aforesaid percentages. 2.   In the  year 1986,  the  position  was  that  both  the petitioners   in    the   original   appalication   (general candidates) and  the party-respondents  in the said original application  (members  of  Scheduled  Castes  and  Scheduled Tribes) were  in the  grade  of  Guards  Grade  ‘A’  in  the Northern Railway.  On August  1, 1986, the Chief Controller, Tundla passed orders promoting certain general candidates on ad hoc  basis to  Grade ‘A’  special. Within less than three months, however,  they were  sought to  be reverted  and  in their place,  members of  Scheduled Castes/Scheduled  Tribes were sought  to be  promoted. Compalining that such a course of action  is illegal,  arbitrary and  unconstitutional, the general  candidates   approached  the   High  Court,   which petition, as  stated above, was transferred to the Tribunal. The general candidates asked for three reliefs, viz., (a) to restrain the  Railway authorities  from filling up the posts in the  higher grades  in the category of Guards by applying the  rule  of  reservation;  (b)  to  restrain  the  Railway Administration from  acting upon  the illegal seniority list prepared by  them; and  (c) to  declare that the petitioners (general  candidates)   are  entitled  to  be  promoted  and confirmed in  Guard Grade  ‘A’ special  on the  strength  of their seniority  earlier to the reserved category employees. Their contention,  in short,  was (1)  that once  the  quota prescribed for a reserved category is satisfied, the rule of reservation -  or the  forty-point roster  prepared to  give effect to  the said rule - cannot be applied or followed any longer and  (2) that the forty-point roster is prepared only to give  effect to  the rule  of reservation. It may provide for accelerated  promotion but it cannot give seniority also to a  reserved category  candidate in the promoted category. According to  them, the  seniority in Guard Grade ‘C’ should govern and  should be  reflected in  all  subsequent  grades notwithstanding the  earlier promotion of the members of the reserved categories.  Their case was that even if a reserved category member  ‘X’ is promoted from Grade ‘C’ to Grade ‘B’ earlier  than   his  senior  ‘Y’  (general  candidate),  the position should be that when the general candidate also gets promoted later  to Grade  ‘B’ which means that in Grade ‘B’, ‘Y’ again  becomes senior  to ‘X’.  They submitted that this should be  the rule to be followed to ensure that command of Articles 14  and 16  of the  Constitution of India prevails. They relied  upon two  decisions of the Allahabad High Court and another  decision of  Madhya Pradesh in support of their contention. They  also relied  upon certain circulars of the Railway Board in this behalf. 3.   The case  of  the  Railway  Administration  (Respondent Nos.1 to  4  in  the  original  application)  was  that  the

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Administration is  maintaining seperate  seniority lists for each of  the grades  in the  category of Guards according to the policy  in voque.  The  ad  hoc  promotions  of  general candidates ordered on August 1, 1986 were irregular inasmuch as the  seniors in  the category  of Grade  ‘A’ Guards  were ignored  and  juniors  promoted  by  the  Chief  Controller, Tundla. The  Chief Controller,  Tundla was  not competent to order the  said ad  hoc promotions.  The promotions  ordered later of  Scheduled Castes/Scheduled  Tribes  candidates  is strictly in  accordance with the seniority position in Grade ‘A’ and  is unobjectionable.  The Administration  submsitted that seniority  is determined  on the  basis of  the date of promotion and  since promotion  effected applying the forty- point roster  cannot be  said to  be an  ad hoc promotion, a Scheduled Caste/Scheduled  Tribe candidate  promoted earlier to a  particular grade  becomes senior to another candidate, general or  otherwise, who  is promoted to that grade later. In short,  according to  them, the  date of  promotion to  a particular grade determines the seniority in that grade. 4.   The reserved  candidates (respondents  in the  original application) supported the stand of the Administration. They submitted that the seniority list pertaining to Guards Grade ‘C’ is  not relevant and cannot be followed in the matter of promotion to  Grade ‘A’  special from  Grade  ‘A’.  For  the purpose of  promotion to Grade-a special, the seniority list pertaining to Grade ‘A’ should be followed and since in that grade, the Scheduled Castes/Scheduled Tribes candidates were seniors, they  were entitled  to be  promoted to  Grade  ‘A’ Special earlier  than their  juniors in that seniority list. They submitted  that the  seniority in  a  grade  should  be determined according to the date of promotion/appointment to that grade  and not in any other manner. They submitted that inasmuch as  in the  higher grades,  the  representation  of Scheduled  Castes/Scheduled   Tribes   members   was   quite inadequate, the Scheduled Castes/Scheduled Tribes candidates obtained rapid  promotions from  one grade to another but it is neither contrary to the rules nor is it inconsistent with Articles 16 and 14. In fact, the very rule of reservation in promotions  is  meant  to  increase  the  representation  of Scheduled Castes/Scheduled  Tribes candidates  in the higher echelons of  services quickly.  No exception can be taken to the said rule, they submitted. 5.   Since  the   Tribunal  has  strongly  relied  upon  two decisions of  the Allahabad High Court and a decision of the Madhya Pradesh  High COurt, it would be appropriate to refer to their ratio briefly. 6.   In Civil  Writ Petition No.1809 of 1972, J.C. Mallik v. Union of  India, the allahabad High Court held that the rule of reservation  or the  forty-point roster,  as the case may be, cannot  be followed  and applied once the representation of Scheduled  Castes/Scheduled Tribes in a particular grade, cadre  or   service,  reaches   the  prescribed   level   of percentage. In  other words,  once the  quota of  22 1/2% in favour of  Scheduled Castes/Scheduled  Tribes is  satisfied, the rule  of reservation/forty-point roster can no longer be followed and applied. It may be mentioned that this decision has since  been referred  with approval  in the Constitution Bench decision  in R.K.  Sabharwal v.  State of Punjab (1995 (2) S.C.C.745). 7.   The other  decision of  the Allahabad  High Court is in Second Appeal  No.2745 of  1983 arising  from Suit No.308 of 1981, M.P.  Dwivedi v.  Union of  India &  Ors. The  learned District Judge,  whose decision was under appeal in the said second appeal,  had decreed  the suit  filed by  the general candidates  in   the  following   words:  "The   defendants-

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appellants, their agents and servnts are restrained by means of permanent  injunction from filling up the posts of higher grade in  the category  of Guards  by way  of reservation in favour of  Scheduled Castes  and Scheduled Tribes candidates in excess  of  fixed  by  Railway  Board.  Their  claim  for declaration to  the effect  that they  are  entitled  to  be promoted to  the higher  grades in the category of Guards on the  strength  of  their  seniority  list  prepared  by  the defendant for Guards Grade-C on their initial grades is also decreed". When  the matter  came  to  the  High  Court,  the learned Single  Judge, who  disposed of  the second  appeal, held:      "(A)fter having  considered  the  entire      position I am of the opinion that in the      present case promotion from grade ‘A’ to      ‘A’ Special  cannot be made on the basis      of  reservation   so  long   as   Guards      belonging   to   Scheduled   Castes   or      Scheduled  Tribes  class  in  grade  1A’      Special are  in excess of the percentage      reserved   for   them.   The   position,      however, will  always remain fluctuating      and will  have to  be  reviewed  by  the      authorities from  time to  time. But the      right of  Scheduled Castes and Scheduled      Tribes candidates to promotion merely on      the  basis   or   their   seniority-cum-      suitability  without  any  reference  to      reservation will  not be  barred. As and      when percentage  of Scheduled Castes and      Scheduled   Tribes   guards   in   grade      Scpecial goes  down below  the requisite      percentage their  right to  promotion on      the basis  of reservation  will  revive.      Subject to  this modification the decree      for injunction passed by the Court below      is  confirmed   and  the   appeals   are      dismissed." 8.   The judgment  of the  Madhya Pradesh  High Court  is in G.C.  Jain  v.  Divisional  Rail  Manager,  Central  Railway (reported in 1986 (1) S.L.R.588). The passage relied upon by the Tribunal reads thus:      "Those SC  & ST candidates who have come      or  been  promoted  due  to  reservation      quota, having  already jumped the queue,      cannot  be  permitted  to  compete  with      general    candidates     for    further      promotion. They  are a  special class by      themselves and  they have  only to go to      the reserve quota for further promotion.      If the  reserve quota is already full in      the next  grade, the  SC & ST candidates      just below  that grade  in  the  reserve      quota will  have to  wait  till  vacancy      occurs  in   the  higher  grade  in  the      reserve quota.  However, we want to make      it clear  that this  will not  apply  to      such SC & ST candidates who on their own      in   competition    with   the   general      candidates have  atained  their  present      position and  not  due  to  reservation,      they are  entitled  to  compete  further      with the  general  candidates  and  they      will not  be affected  for promotion  in      the general  quota even  if the reserved

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    quota is full in the next higher grade". 9.   On the  basis of  the aforesaid  decisions and  certain circulars of  the Railway Board, which will be referred at a later stage, the Tribunal laid down the following principles in Para-26  of its judgment. (We have split up the paragraph into several  sub-paras to  bring out the several principles distinctly):      "26. To clarify  the position further we      will   enunciate   the   principles   of      determining seniority  in situations  as      are under dispute here.           The basic  seniority in  grade  ‘C’      will be  the quiding  seniority list for      the cadre of quards.           Reservations in promotions would be      made against posts in the grades and not      against vacancies.           Persons who  are promoted by virtue      of the  application of  roster would  be      given accelerated  promotion but not the      seniority.           The seniority  in a particular grde      amongst  the  incumbents  available  for      promotion to  the  next  grade  will  be      recast each  time new  incumbents  enter      from the lower grade on the basis of the      initial  grade   ‘C’  Guard   who   gets      promoted to  grade ‘B’ or from grade ‘B’      to grade  ‘A’ and  so on  will find  his      position amongst  the incumbents of that      grade on the basis of the original grade      ‘C’ seniority.           Such persons  as are superseded for      any reasons  other than  on  account  of      reservation will  be excluded.  A person      superseded on account of a punishment or      unfitness will  count his  seniority  on      the revised  basis and  not on  original      grade ‘C’ seniority.           The reserved  community  candidates      who  are   senior  not   by  virtue   of      reservations  but  by  the  position  in      grade ‘C’ selections which the grade ‘C’      seniority list  will automatically  take      care of,  will not  wait for reservation      percentage to  be  satisfied  for  their      promotion. They  will  get  promoted  in      their normal  turn irrespective  of  the      percentage   of    reserved    community      candidates in  the higher  grade. Others      who  get   promoted  as   a  result   of      reservation by  jumping the  queue  will      wait for their turn.           Reservation will  again have  to be      applied on  depletion of the reservation      quota in  the higher  grade to make good      the shortfalls." 10.  The Tribunal  directed that  a fresh  seniority list be drawn in  the light  of the  principles enunciated  by it in Para-26 and  promotions made  on that  basis.  The  Tribunal rejected the  contention of  the general candidates that "no promotions at  all be made for reserved community candidates because  quota   is  full".   Similarly,  it   rejected  the contention of  the general  candidates (petitioners  in  the original applaication)  that all  promotions in  the  higher

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grades shall  be made  on the  basis of  the seniority  list pertaining to  Grade ‘C’  alone. It  held that the seniority list  will   be  separately   prepared  for  each  grade  in accordance with the principles enunciated by it and that the list must  be updated  every time there is promotion to that category. It  clarified that  a reserved community candidate who gets  promotion on his own merit and not on the basis of rule of  reservation-cum-forty-point roster will be entitled to be promoted irrespective of the quota position. But those reserved community  candidates  who  obtained  promotion  by jumping the  queue on  the basis of rule of reservation will get the promotion on the basis of the revised seniority list to be  prepared in  accordance with the directions contained in Para-26. 11.  The  Indian  Railway  Establishment  Manual,  Volume-I, contains instructions  regulating inter  alia  seniority  of non-gazetted  Railway   servants.  They   are  contained  in Chapter-III.  Para   306  says,   "candidates  selected  for appointment at an earlier selection shall be senior to those selected later  irrespective of  the dates of posting except in the case covered by paragraph 305 above". Para 309 reads: "SENIORITY  ON  PROMOTION.--  Paragraph  306  above  applies equally to  seniority in  promotion vacancies in one and the same category due allowance being made for delay, if any, in joining the  new posts  in the  exigencies of service." Para 314 says  that subject  to Paragraphs  302 to 306, "when the dates of  appointment to the grade are the same, the date of entry  into   the  grade   next  below  it  shall  determine seniority". Para  319 deals  with seniority  on promotion to non-selection posts.  This paragraph  states that "promotion to non-selection  posts shall  be on the basis of seniority- cum-suitability, suitability  being judged  by the authority competent to fill the post, by oral and/or written test or a departmental examination  or a  trade test or by scrutiny of record of  service as considered necessary." It further says that "a  railway servant,  once promoted  in his  turn after being found  suitable  against  a  vacancy,  which  is  non- fortuitous, should  be considered as senior in that grade to all others  who are  subsequently promoted after being found suitable". 12.  So far as the rule of reservation is considered, it has been made  applicable to Railway service by orders issued by the Railway  Board from  time to  time pursuant  to  and  in obedience to  the policy  decisions of  the Ministry of Home Affairs. The decision of this Court in Akhil Bhartiya Soshit Karamchari Sangh  v. Union  of India  (1981  (1)  S.C.C.264) refers to  the several  orders issued  from time  to time in this behalf. They are also found at Pages 4 to 6 (Chapter-I) and  Pages  59  to  89  (Chapter-III)  of  the  Brochure  on Reservation for  Scheduled Castes  and Scheduled  Tribes  in Railway Services  (Third Edition-1985).  We do  not think it necessary to  refer to  them in  this judgment  since we are concerned herein  not with  the  validity  of  the  rule  of reservation but  with its  nature and  its effect  upon  the question of  seniority. We  shall, therefore,  refer to  the Railway Board’s  circulars alone  relevant on  this  aspect. Here too,  we will  refer first to orders applicable to non- selection posts.  Railway Board’s  letter dated 13th August, 1959 is of a general nature. It says that "as a general rule the seniormost candidate should be promoted to a higher non- selection post,  susbject to  his suitability. Once promoted against a  vacancy which  is non-fortuitous,  he  should  be considered as  senior in  the grade  to all  others who  are subsequently promoted".  [Printed at Page 507 in Chapter-XII of the  Brochure aforesaid]*.  The  Railway  Board’s  letter

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dated August  31, 1982  (at Page  512 -  Chapter XII  of the Brochure) deals  with the subject "Reservation for Scheduled Castes and  Scheduled Tribes  in promotion  in Group ‘D’ and ‘C’ (Class  IV and  III)  on  the  basis  of  seniority-cum- suitability". Para-4 of the letter reads:      "Against  the   above  background,   the      matter has  been reviewed  by the Board.      It has  been  decided  that  posting  of      Scheduled     Caste/Scheduled      Tribe      candidates   on   promotions   in   non-      selection posts  should also  be done as      per the  reserved points  on the  roster      susbject, however, to the condition that      seniority     of      the      Scheduled      Caste/Scheduled  Tribe   candidates   in      comparison  to   other  candidates  will      continue to  be governed  by  the  panel      position in the case of categories where      training  is   not   provided   and   in      accordance with  the merit  position  in      the  examination   where   training   is      provided."                              (Emphasis added) ------------------------------------------------------------ * The  several circulars  and orders  issued by  the Railway Board from  time to  time are  arranged chapter-wise  in the said Brochure. Chapter-V deals with Rosters, Chapter-IX with promotion  to   non-selection  posts  and  Chapter-XII  with confirmation and seniority. The Brochure is published by the Government of  India, Ministry  of Railways (Railway Board), New Delhi. 13.  It is  evident that  this letter  is  speaking  of  the seniority position  in the  initial entry category/grade. It says that  while posting shall be done as per roster points, seniority shall continue to be governed by the ranking given in the  selection list/panel.  This clearly  brings out  the departure being made from the normal principle that the date of entry in a category/grade determines the seniority. 14.  Indeed, the  Railway Board’s  letter dated  January 19, 1972 (Pages 194-195 - Chapter-VIII dealing with promotion to selection posts  - of  the Brochure)  shows that even in the case of  promotions made  on the  basis of  merit, the  same principle applies. 15.  The Railway  Board’s  letter  dated  October  20,  1960 referred to  in the judgment of Madhya Pradesh High Court in G.C. Jain  says,  "seniority  of  SC/ST  employees  will  be determined under the normal rules. The reservation roster is considered  only   a  machinery  to  ensure  the  prescribed percentage of reservation for SC/ST employees and should not be related to the question of seniority and confirmation. If any of the SC/ST employee is confirmed in the post by virtue of roster,  such confirmation will not give them any benefit in respect  of seniority".  Again, the very same idea stated clearly. 16.  At Page  503 of  the Brochure,  in Chapter-XXII dealing with confirmation  and  seniority,  Railway  Board’s  letter dated February  11, 1972  is extracted, the relevant portion whereof reads:      "Sub: Reservation  for Scheduled  Castes      and Scheduled Tribes--   Application  of      roster  both  at  the  time  of  initial      recruitment and confirmation.           Reference Board’s  letter No.E(SCT)      62CM15/7 dated  20th  April  1963  which      provides that  the reservation roster is

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    to  be  applied  only  at  the  time  of      initial     recruitment     and     that      confirmation should be made in the order      of seniority  which in  the case of non-      trained categories  is determined on the      basis  of  the  position  in  the  panel      supplied   by    the   Railway   Service      Commission and  in the  case of  trainee      categories on  the basis  of  the  merit      position in the examination.      2.   The     Board     after     careful      consideration have  decided that  in the      posts filled by direct recruitment on or      after the  date of issue of this letter,      reservation may  be made  for  Scheduled      Castes and  Scheduled Tribes both at the      time of initial appointment on temporary      basis  as   well  as   at  the  time  of      confirmation.   In   posts   filled   by      promotion, however,  no  reservation  is      admissible at  the stage of confirmation      of promotees  and the existing procedure      of  confirming  employees  in  order  of      their panel position may continue."      (Emphasis added) 17.  Again at  Page 508,  extracts of Railway Board’s letter dated January 19, 1972 are set out, which read:      "3.  The   seniority    of    candidates      belonging  to   Scheduled   Castes   and      Scheduled Tribes  vis-a-vis others  will      continue to be determined as at present,      i.e., according to the panel position in      the case of categories where training is      not provided  and in accordance with the      merit position  in the examination where      training is provided."      And finally  at Page  512, the  circular/letter of  the Railway Board  dated August  31, 1982  is set out, which has already been extracted hereinbefore. 18.  Pausing here  for a  moment, we  must explain what does panel mean  and signify in the case of promotions. Though we enquired repeatedly,  this aspect  could not be clarified by the learned  Additional Solicitor General. In particular, we wanted to  know whether a panel is prepared only in the case of selection  posts or  is it  also prepared  in the case of non-selection posts.  The  several  instructions  in  Indian Railway Establishment  Manual are  also not  helpful on this aspect. We  are, therefore, left to interpret the expression ourselves. Having  regard to  the fact that in all the above circulars/letters, the  expression "panel"  has been used to denote a  merit list or select list, as it may be called, we think it  reasonable to  understand  as  a  panel  which  is prepared in the case of selection posts only. In the case of non-selection posts,  there is  no question of such a panel. In their  case, the  senior is promoted automatically unless he is  found to be unsuitable to hold the promotion post. No panel, i.e.,  merit list or select list is called for in the case of  non-selection posts.  May be, ultimately, a list of persons to  be promoted  is prepared  but that  is neither a merit list, nor a select list. 19.  Sri Altaf  Ahmed, learned  Additional Solicitor General questioned the  correctness and  validity of  the principles enunciated by  the Tribunal  in Para-26  of its judgment. He submitted that according to the Indian Railway Establishment Manual,   seniority   is   determined   by   the   date   of

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promotion/appointment to  the concerned  grade and  that the said principle  cannot be  altered or  departed from  in the name of  ensuring equality.  Once the rule of reservation is remembered that  in the  higher echelons  of administration, representation of Scheduled Castes/Scheduled Tribes has been inadequate all  these years,  there is nothing surprising if the  members   of  Scheduled   Castes/Scheduled  Tribes  get promotions sooner  and earlier  than the general candidates. This is  the natural  consequence of  applying the  rule  of reservation in  promotions -  and not an unintended one. The said consequence  cannot, therefore, be a basis for evolving a rule which partially off-sets the very purpose and meaning of  the   rule  of  reservation.  Sri  Altaf  Ahmed  further submitted that  effecting promotions  in accordance with the roster vacancies  are not  and cannot  be called "fortuitous promotions". They  are regular  vacancies and  promotion  to them is  a regular promotion. He relied upon the decision of the Central  Administrative Tribunal  in Durga Charan Haldar v. Union  of India  (Original Application  No.854  of  1990) wherein it  has  been  held  that  the  date  of  promotion, effected  following   the  forty-point  roster/hundred-point roster, is determinative of seniority. He submitted that the decision  of  the  Central  Administrative  Tribunal  (Patna Bench) to  the contrary  is the  subject matter of appeal in this batch.  The Patna Tribunal has followed the decision of the Allahabad Tribunal in Virpal Singh Chauhan. 20.  Sri Rajeev  Dhawan, learned  counel appearing  for  the respondents-general candidates,  put forward  the  following submissions while  opposing the  contentions of  the learned Additional Solicitor General: (i)  Article 16(4)  of the Constitution enables the State to define the  extent and nature of the benefits to be extended to the  backward classes.  It is not as if there is only one particular method  of providing  reservations under the said clause. (ii) The purpose  behind Article 16(4) is to ensure adequate representation to  backward classes  in  the  administrative apparatus of the State. The purpose of Article 16(4) is only to  ensure   aequate  representation   and  not   to  confer additional benefits  - other than those which logically flow from  the   rule  of   reservation.  As   soon  as  adequate representation is  achieved, the rule of reservation must be kept in abeyance and if there is a roster the application of the roster must be stopped. (iii)     A harmonious  construction of  clauses (4) and (1) of Article  16 - both of which are indeed facets of the very same principle  of equality - implies that while the members of reserved  categories will  be entitled to equal treatment in all  matters relating  to service conditions, they cannot claim  accelerated  seniority  in  addition  to  accelerated promotion. If  this principle  is not  recognised, it  would result  in   the  reserved   category  members  stealing  an additional march  over the  general candidates which defeats the quarantee  of equality  extended  by  Article  16(1)  to general  candidates.  In  other  words,  giving  accelerated seniority in  addition to  accelerated promotion  amounts to conferring double  benefit  upon  the  members  of  reserved category and  is violative  of rule  of equality  in Article 16(1). (iv) The command  of Article  335 of  the Constitution shall also have  to be  kept in  mind in  this behalf. Accelerated promotion-cum-accelerated seniority  is destructive  of  the efficiency of  administration inasmuch  as by this means the higher echelons of administration come to be occupied almost entirely by  members of  reserved categories  - at any rate,

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far beyond  the percentrage  of reservation  prescribed  for them. (v)  The decisions  of  this  Court  clearly  establish  the distinction between promotion and seniority. It would be too simplistic to  say that  seniority automatically follows the promotion. (vi) A   candidate    belonging   to    reserved    category appointed/promoted on  the  basis  of  rule  of  reservation should not be held entitled to compete for a general vacancy in the roster. They should be confined to reserved vacancies alone.  Non-observance  of  this  rule  has  resulted  in  a situation where  in the  higher grades of Railway Guards the representation  of  Scheduled  Castes/Scheduled  Tribes  has risen upto  seventy percent  (in the  case  of  Guard  Super Grade) and  forty percent  (in the  case of  Guard Grade ‘A’ Special) instead  of 22.5  percent. This  anomaly cannot  be allowed to occur. 21.  Sri K.B.  Rohtagi, learned  counsel appearing  for  the respondents in  Civil Appeal  No.2261 of  1987  (for  Guards belonging to  Scheduled Castes/Scheduled  Tribes categories) supported  the   contentions  of   the  learned   Additional Solicitor General.            ------- ------X------------X------------ 22.  Clause (4)  of Article  16 of  the Constitution enables the State  to make  "any provision  for the  reservation  of appointments 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." In Indra  Sawhney   v.  Union   of  India   (1992   Suppl.(III) S.C.C.217), it has been held by the majority (in the opinion delivered by one of us, B.P. Jeevan Reddy, J.):      "The question then arises whether clause      (4) of  Article 16  is exhaustive of the      topic  of   reservations  in  favour  of      backward classes.  Before we answer this      question  it  is  well  to  examine  the      meaning and  content of  the  expression      ‘reservation’. Its  meaning  has  to  be      ascertained having regard to the context      in which  it occurs.  The relevant words      are any provision for the reservation of      appointments or  posts’. The question is      whether the  said words contemplate only      one form of provision namely reservation      simpliciter, or  do they  take in  other      forms   of   special   provisions   like      preferences, concessions and exemptions.      In  our   opinion,  reservation  is  the      highest form of special provision, while      preference, concession and exemption are      lesser   forms.    The    constitutional      schemeand  context   of  Article   16(4)      induces us  to take the view that larger      concept of reservations takes within its      sweep  all  supplemental  and  ancillary      provisions  as   also  lesser  types  of      special  provisions   like   exemptions,      concessions and  relaxations, consistent      no  doubt   with  the   requirement   of      maintenance     of     efficiency     of      administration  -   the  admonition   of      Article 335.  The  several  concessions,      exemptions and  other measures issued by      the Railway  administration and  noticed      in Karamchari Sangh (1981 (1) S.C.C.246)

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    are    instances    of    supplementary,      incidental and ancillary provisions made      with a  view to  make the main provision      of reservation effective i.e., to ensure      that the  members of  the reserved class      fully  avail   of  the   provision   for      reservation in  their favour.  The other      type of  measure is  the one  in  Thomas      (1976  (2)   S.C.C.310).  There  was  no      provision for  reservation in  favour of      Scheduled Castes/Scheduled Tribes in the      matter of  promotion to  the category of      Upper  Division  Clerks.  Certain  tests      were required  to  be  passed  before  a      Lower Division  Clerk could  be promoted      as Upper  Division Clerk. A large number      of Lower  Division clerks  belonging  to      SC/ST were not able to pass those tests,      with the  result they were stagnating in      the category  of LDCs.  Rule  13-AA  was      accordingly    made    empowering    the      Government to grant exemption to members      SC/ST from  passing those  tests and the      government   did    exempt   them,   not      absolutely,  but   only  for  a  limited      period. This provision for exemption was      a lesser  form of special treatment than      reservation. There is no reason why such      a special  provision should  not be held      to be included within the larger concept      of reservation." 23.  This statement  of law  makes it clear that there is no uniform or  prescribed method  of providing reservation. The extent and  nature of  reservation is a matter for the State to decide  having regard  to the  facts and  requirements of each case.  Such  a  situation  was  indeed  dealt  with  in National Federation of State Bank of India v. Union of India & Ors.  (1995 (3)  S.C.C. 432)  [rendered by one of us, B.P. Jeevan Reddy,  J. on behalf of the Bench which included R.M. Sahai and  S.C. Sen,  JJ.]. In  the case  of  service  under Public Sector  Banking Institutions,  while  reservation  in promotions was provided in the case of promotion from Class- IV to  Class-III, Class-III to Class-II and from Class-II to Class-I,  no   such  reservation  was  provided  so  far  as promotions within  Class-I were concerned. Only a concession (set  out  in  the  judgment)  was  provided  in  favour  of Scheduled Castes/Scheduled  Tribes candidates with a view to enable them  to obtain  promotions within  Clas-I which they may not  have obtained  otherwise. It was held by this Court that such  a concession  can also  be provided under Article 16(4). In  short, it  is open  to the  State, if  it  is  so advised, to  say that while the rule of reservation shall be applied and  the roster followed in the matter of promotions to or  within a  particular service,  class or category, the candidate  promoted   earlier   by   virtue   of   rule   of reservation/roster shall  not be  entitled to seniority over his senior  in the  feeder category  and that  as and when a general candidate  who was  senior  to  him  in  the  feeder category is promoted, such general candidate will regain his seniority over  the reserved  candidate notwithstanding that he is  promoted subsequent  to the reserved candidate. There is  no   unconstitutionality  involved   in  this.   It   is permissible for  the State  to so provide. The only question is whether it is so provided in the instant case? 24.  It is the common case of the parties before us that the

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rule of  reservation in  the Railway  services -  to be more precise to  the category  of Railway  Guards, whether in the matter of initial appointment or in the matter of promotion, from  one   grade   to   another,   is   provided   by   the circulars/letters    of    the    Railway    Board.    These circulars/letters have  been issued  by the Railway Board in exercise of  the power  conferred upon it by Rule 123 of the Statutory Rules  framed by  the President  of India. We have referred to  the  circulars/letters  of  the  Railway  Board hereinbefore. In  the circular/letter  dated August 31, 1982 which deals  with the  subject of "Reservation for Scheduled Castes and  Scheduled Tribes  in promotion  in Group ‘D’ and ‘C’ (Class  IV and  III)  on  the  basis  of  seniority-cum- suitability" it  is specifically ordered that while "posting of Scheduled  Caste/Scheduled Tribe candidates on promotions in non-selection  posts should  also  be  done  as  per  the reserved points  on the  roster", such  promotion  shall  be "subject to  the condition  that seniority  of the Scheduled Caste/Scheduled Tribe  candidates  in  comparison  to  other candidates  will  continue  to  be  governed  by  the  panel position in  the case  of categories  where training  is not provided and  in accordance  with the  merit position in the examination where  training is  provided".  So  far  as  the several grades  among  Railway  Guards  are  concerned,  the relevant service  conditions do not provide for any training followed by  examination on  promotion  from  one  grade  to another. Hence,  the seniority between the reserved category candidates and  general candidates  in the promoted 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 August 31,  1982 mean  when  it  spoke  on  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 be  reflected in each of the higher grade. This  means   that  while  the  rule  of  reservation  gives accelerated promotion, it does not give the accelerated - or 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  got promoted to  yet higher  grade. In  other words, by the time the senior  general category  candidate enterss,  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. 25.  Now let  us see how does the above principle operate in practice. Selection  is made for direct recruitment to Grade ‘C’ Guards.  A panel  is prepared by the selecting authority on the basis of and in the order of merit. Appointments have to be  made from  out of  this list/panel.  But  appointment orders will  not  be  issued  in  the  order  in  which  the candidates are arranged in this select list/panel; they will be issued  following the  roster.  Suppose  the  forty-point roster is  being operated  afresh, then  the  first  vacancy inthe roster  would go to a Scheduled Caste candidate though he may be down below in the select list/panel. The candidate

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at Sl.  No.1 in the said select list - a general candidate - will be appointed in the second vacancy. But once appointed, the general  candidate (at Sl. No.1 in the select list) will rank senior  to the  Scheduled  Caste  candidate  though  he (general candidate) is appointed subsequent to the Scheduled Caste candidate.  Now take  the case of promotions (based on seniority-cum-suitability,  i.e.,  non-selection  posts)  to Grade ‘B’.  Roster applies  even to  promotions to Grade B’. Again assume  that the  forty-point roster is opening now in Grade ‘B’.  The first  vacancy has  again got  to  go  to  a Scheduled Caste  candidate though  he may not be the senior- most in  Grade ‘C’.  The senior-most  candidate in Grade ‘C’ (the general  candidate, who  was at  Sl. No.1 in the select list/panel and  who regained his seniority on appointment to Grade ‘C’  as aforestated)  will be  promoted  in  the  next vacancy. But  once promoted,  the  general  candidate  again becomes senior  to  the  Scheduled  Caste  candidate  though promoted subsequent to the Scheduled Caste candidate. And so on and  so forth.  It is  in this  manner that  the rule  of reservation (and  the  roster)  merely  enables  a  reserved category candidate to obtain an appointment or promotion, as the case  may be  - which he may not have obtained otherwise or would  not have  obtained at the time he is now getting - but it  does not  give him the seniority. In this sense, the rule confers  a limited  benefit -  a qualified  benefit. We have already stated that such a rule of reservation does not fall foul of Article 16(4). 26.  We   are    of   the   opinion   that   the   aforesaid circulars/letters providing  for reservation  in  favour  of Scheduled Castes/Scheduled  Tribes candidates,  rosters  and their operation  and on  the subject of seniority as between general candidates  and reserved  category candidates, being in the  nature of  special rules  prevail over  the  general instructions contained  in Volume-I  of the  Indian  Railway Establishment Manual including those contained in Paras 306, 309 and 319 et al. Accordingly, we agree with the conclusion of the  Tribunal in  the order  under appeal  (Virpal  Singh Chauhan) though  we may not agree with all the reasons given by the  Tribunal. In  other words, we may not agree with the view expressed  by the Tribunal that a harmonious reading of Clauses (1)  and (4)  of  Article  16  should  mean  that  a reserved  category   candidate  promoted  earlier  than  his senior-general category  candidate in  the  feeder  category shall necessarily be junior in the promoted category to such general category candidate. No such principle may be said to be implicit  in the  said clauses.  But inasmuch the Railway Board’s ciruclars  concerned herein  do provide specifically for such  a situation  and since  they cannot  be said to be violative  of   the  constitutional  provisions,  they  must prevail and have to be given effect to. It is not brought to our notice  that the  said instructions  are inconsistent in any manner with any of the statutory provisions or statutory rules relevant in this behalf. 27.  So far as the other question considered by the Tribunal (viz.,  that   once  the   representation  of  the  reserved categories in  a  given  unit  of  appointment  reaches  the prescribed percentage, the rule of reservation or the roster based on  it cannot  be given  effect to),  the Constitution Bench decision  of this  Court in R.K. Sabharwal v. State of Punjab settles the issue. In this decision, it has been held that where the total number of posts in a cadre reserved for reserved candidates are filled by operation of a roster, the object of  rule of  reservation must  be deemed to have been achieved and that thereafter there would be no justification to operate  the roster.  Para-5 of  the said judgment brings

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out the reasons for the said rule and the rule itself:      "We see considerable force in the second      contention raised by the learned counsel      for the  petitioners.  The  reservations      provided under  the impugned  Government      instructions  are   to  be  operated  in      accordance  with   the  roster   to   be      maintained  in   each  Department.   The      roster is  implemented in  the  form  of      running account  from year  to year. The      purpose of  ‘running account’ is to make      sure that the Scheduled Castes/Scheduled      Tribes  and  and  Backward  Classes  get      their percentage  of reserved posts. The      concept  of  ‘running  account’  in  the      impugned  instructions   has  to  be  so      interpreted that  it does  not result in      excessive  reservation.   ‘16%  of   the      posts...’ are  reserved for  members  of      the  Scheduled   Castes   and   Backward      Classes. In  a lot  of 100  posts  those      falling at  Serial Numbers 1, 7, 15, 22,      30, 37,  44, 51,  58, 65, 72, 80, 87 and      91 have  been reserved  and earmarked in      the roster  for  the  Scheduled  Castes.      Roster points 26 and 76 are reserved for      the members  of Backward  Classes. It is      thus obvious  that when recruitment to a      cadre starts  then 14 posts earmarked in      the roster are to be filled from amongst      the members  of the Scheduled Castes. To      illustrate, first  post in  a cadre must      go   to   the   Scheduled   Castes   and      thereafter the said class is entitled to      7th, 15th,  22nd and  onwards upto  91st      post. When  the total number of posts in      a cadre  are filled  by the operation of      the roster  then the result envisaged by      the impugned  instructions is  achieved.      In other  words, in a cadre of 100 posts      when the  posts earmarked  in the roster      for  the   Scheduled  Castes   and   the      Backward   Classes    are   filled   the      percentage of  reservation provided  for      the reserved  categories is achieved. We      see no  justification to  operate the is      to operate  only till the quota provided      under  the   impugned  instructions   is      reached and  not  thereafter.  Once  the      prescribed percentage of posts is filled      the  numerical   test  of   adequacy  is      satisfied and thereafter the roster does      not   survive.    THe   percentage    of      reservation is the desired repesentation      of the  Backward Classes  in  the  State      Services  and  is  consistent  with  the      demographic  estimate   based   on   the      proportion worked  out  in  relation  to      their population. The numerical quota of      posts is  not a  shifting  boundary  but      represents a figure with due application      of mind.  Therefore,  the  only  way  to      assure equality  of opportunity  to  the      Backward   Classes   and   the   general      category is  to  permit  the  roster  to

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    operate till  the  time  the  respective      appointees/promotees  occupy  the  posts      meant  for   them  in  the  roster.  The      operation of the roster and the ‘running      account’ must come to an end 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.      For example, the Scheduled Caste persons      holding the posts at roster points 1, 7,      15, retire  then roese  slots are  to be      filled   from    amongst   the   persons      belonging  to   the  Scheduled   Castes.      Similarly, if  the persons  holding  the      post at  points 8  to 14  or  23  to  29      retire then these slots are to be filled      from  among  the  general  category.  By      following  this  procedure  there  shall      neither be  shortfall nor  excess in the      percentage of reservation." 28.  The Constitution Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively [vide Para  11]. It  has  further  been  held  in  the  said decision that  the "percentage  of  reservation  has  to  be worked out in relation to the number of posts which form the cadre-strength (and  that) the  concept of  ‘vacancy’ has no relevance in operating the percentage of reservation". (As a matter of  fact, it  is stated that this batch of cases were also posted  for hearing before the Constitution Bench along with R.L.  Sabharwal batch of cases but these cases were de- linked on  the ground  that they  raise certain other issues which did  not arise  in R.K. Sabharwal.) Be that as it may, as a  result of  the decision  in  R.K.  Sabharwal  and  the views/findings recorded  by us  hereinabove,  the  following position emerges: (i)  Once the  number of  posts reserved for being filled by reserved category  candidates in  a cadre, category or grade (unit for  application of rule of reservation) are filled by the operation  of roster,  the object of rule of reservation should be  deemed to  have been  achieved and thereafter the roster cannot  be followed except to the extent indicated in Para-5 of R.K. Sabharwal. While determining the said number, the  candidates  belonging  to  the  reserved  category  but selected/promoted on  their own  merit (and not by virtue of rule of  reservation)  shall  not  be  counted  as  reserved category candidates. (ii) The percentage  of reservation  has to be worked out in relation to  number of  posts in  a particular cadre, class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect to vacancies. (iii)     So far  as Railway  Guards in  Railway service are concerned -  that is  the only  category  we  are  concerned herewith -  the seniority  position in the promoted category as between  reserved candidates and general candidates shall be the  same as  their inter  se seniority position in Grade ‘C’ at  any given  point of time provided that at that given point of  time, both  the general candidate and the reserved category  candidates  are  in  the  same  grade.  This  rule operates whether  the general  candidate is  included in the same batch  of promotees  or in a subsequent batch. (This is for the  reason that  the circulars/letters aforesaid do not

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make or  recognise any  such distinction.)  In other  words, even if  a  Scheduled  Caste/Scheduled  Tribe  candidate  is promoted earlier  by virtue  of rule  of  reservation/roster than his  senior general  candidate and  the senior  general candidate is  promoted later  to the  said higher grade, the general candidate  regains his  seniority over  such earlier promoted  Scheduled  Caste/Scheduled  Tribe  candidate.  The earlier promotion  of the  Scheduled  Caste/Scheduled  Tribe candidate in  such a  situation does  not  confer  upon  him seniority over the general candidate even though the general candidate is promoted later to that category. 29.  If the  above three  rules are  observed and  followed, there may  not remain much room for grievance on the part of the general  candidates. While in the very scheme of things, it is  not possible  to give  retrospective effect  to these rules -a  fact recognised  in R.K.  Sabharwal  -  the  above rules,  operated   conjointly,  should  go  a  long  way  in maintaining a  balance between  the  demands  of  merit  and social justice. 30.  Sri Rajeev  Dhawan, learned  counsel  for  the  general candidates, pointed  out, what  according to  him,  are  the inequitable and  anamolous situations which would follow, if the candidate  appointed/promoted on  the basis  of rule  of reservation is  not confined  to reserved posts alone and is allowed to  compete for  general posts  as well.  In such  a situation, he submits, the reserved candidate will enjoy yet another -  third -  advantage. Whenever, it is convenient to him, he  will claim to be considered for a reserved post and where it  is more  convenient to  him, he  will claim  to be considered for  a general  post, whereas a general candidate is restricted  to  general  posts  alone.  In  our  opinion, however, the  plea of  the learned  counsel cannot simply be accepted;  his   submission  flies   in  the   face  of  the established law on the subject. 31.  Sri Dhawan then pointed out that Rule 3 stated above is not sufficient  to do  justice to the general candidates and that in  practice, it  has resulted in denial of just rights to general  candidates. He elaborates his submission thus; a reserved category  candidate may get promoted from Grade ‘C’ to Grade  ‘B’  earlier  than  his  senior  general  category candidate (senior  with reference  to the  select list/panel prepared at  the time of selection to Grade ‘C’ by operation of rule  of reservation/roster. The general candidate who is senior to him in the said select list/panel may get promoted to Grade  ‘B’ later  but what may happen, meanwhile, is that the reserved  category candidate is no longer there in Grade ‘B’ -  he has  ascended to  Grade ‘A’.  In such a situation, there will  be no occasion for applying the aforesaid Rule 3 as between  these two  candidates. Sri  Dhawan submits  that this is  precisely what  has happened in the case of Railway Guards. Even  the Railway  Administration has  admitted this situation in  their  counter,  he  says,  though  they  have ascribed it  to inadequate  representation of  the  reserved categories in  the higher  grades. Sri  Dhawan says that, in practice, the  candidates belonging  to reserved  categories got rapid promotions, leaving their erstwhile senior general candidates in  the category  in which  they were  originally appointed. May  be that  Sri Dhawan’s complaint is true - we have already  dealt with  the possibility and consequence of such a  situation -  but his  grievance, in  effect, is  not against Rule  3 aforestated  but against  the very  rule  of reservation being  applied in promotions. It may be recalled that in  Indra Sawhney,  eight of  the nine  learned  Judges constituting the  Bench opined  that Article  16(4) does not permit or  warrant reservation  in the matter of promotions.

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This was precsely for the reason that such a rule results in several untoward and inequitous results. The Bench, however, permitted the existing rules in that behalf to operate for a period of  five years  from the  date of  judgment based  as those rules  were on  an earlier Constitution Bench decision in General  Manager, Southern  Railway &  Anr. v. Rangachari (1962 (2) S.C.R.687). It is another matter that since then a constitutional amendment  has  been  brought  in  permitting reservation in  promotions to the extent of Scheduled Castes and Scheduled Tribes only, we need express no opinion on the said amendment. 32.  Sri Dhawan  points out  yet another  anamoly.  Where  a candidate belonging  to Scheduled Caste gets selected on his own merit, i.e., in the general category, he will be treated as a  general candidate  and  on  that  account  he  suffers prejudice vis-a-vis  another reserved category candidate who could not be selected on his own merit (i.e., in the general category) and  was selected  only because  of and  under the rule  of   reservation.  For  illustrating  his  submission, learned counsel  says, take  an instance  where out of forty candidates selected, a Scheduled Caste candidate selected on merit stands at S. No.18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at S. No.33. But when the occasion for appointment arises, the Scheduled Caste candidate at Sl. No.33 will  be be  appointed against the first roster-point, whereas the  Scheduled Caste  candidate at S. No.18, being a general candidate  has to  wait  for  his  turn.  This,  the learned counsel  says, amounts,  in effect, to punishing the Scheduled Caste candidate at S. No.18 for his merit. Because he ws  meritorious, he was selected in general gcategory and is treated  as a  general  candidate.  He  suffers  all  the disadvantages any  other  general  candidate  suffers  while another Scheduled  Caste candidate,  far  less  meritorieous than him  and who  was selected  only by  virtue of  rule of reservation, steals  a march  over  him  in  the  matter  of initial  appointment   and  in   promotion  after  promotion thereafter. This  is undoubtedly a piquant situation and may have to  be appropriately rectified as and when the occasion arises. It  is not  pointed out  that any such situation has arisen in  the appeals  before us.  It is probable that many such situations  may arise  which cannot  be  foretold  now. According  to  the  general  category  candidates  concerned herein,  of  course,  the  rule  of  reservation/roster  has already given  rise to  many distortions. According to them, the representation of the reserved categories in Guard Grade ‘A’  Special  has  reached  forty  percent  as  against  the prescribed 22.5  percent. It  is not possible for us to say, on the  material before  us, how  and why the said situation has come  about. It  may be  partly  because  the  rule  now enunciated in R.K. Sabharwal was not there and was not being followed. It may also be that such a result has been brought about by  a combined  operation of  the factors mentioned in (i) and  (ii) above.  The fact  remains that the situation - assuming that  it  is  what  is  described  by  the  general candidates -  cannot be  rectified with retrospective effect now. The  Constitution  Bench  in  R.K.  Sabharwal  too  has directed that  the rule  enunciated therein  shall have only prospective operation.  So far  as the  present appeals  are concerned, it  is sufficient  to  direct  that  the  Railway authorities shall  hereinafter follows  Rules (i),  (ii) and (iii) [stated  in Para  No.28] with  effect from the date of judgment in R.K. Sabharwal, i.e., February 10, 1995. 33.  Learned counsel  have sought  to bring  to  our  notice individual facts  of some of the appeals before us but we do

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not  propose   to  enter   into  those  facts  or  make  any pronouncement thereon.  The proper  couse, in our considered opinion, is  to send  all these matters back to the Tribunal to work out the rights of individuals concerned applying the three principles  aforesaid. These  appeals are  accordingly disposed of  in the  above terms and matters remanded to the respective Tribunals.  Write  petitions  are  dismissed.  No costs.                        SELECTION POSTS                  CIVIL APPEAL NO.9276 OF 1995          ARISING OUT OF S.L.P. (C) NO.18370 OF 1993: 34.  Delay condoned. Leave granted. 35.  This  appeal   arises  from  the  judgment  of  Central Administrative Tribunal  (Madras  Bench)  allowing  Original Application No.869  of 1991  filed by the respondent, Sri D. Williams. The  relevant facts,  drawn from the counter filed on behalf  of the Railway Board and its officials before the Tribunal, are the following: 36.  The cadre  of Station  Masters  is  divided  into  five grades. The grades and inter se percentage is as follows: ------------------------------------------------------------ Sl. Category & Grade    Whether selection       Percentage No.                     or non-selection        distribution                                                 of post in                                                 each grade ------------------------------------------------------------ 1. Asst.  Station Master   Recruitment/                  10%      Rs.1200-2040        Selection 2. Station  Master            Non-Selection              70%      Rs.1400-2300 3. Station  Master/T.I      Non-Selection/               10%      Rs.1600-2600        Recruitment 4. Dy.  Station Supdt/T.I.Selection                      10%      Rs.2000-3200 5. Station Supdt./T.I    Selection              10% of posts      Rs.2375-3500                            in Rs.2000-3200 ------------------------------------------------------------ 37.  The posts  of Assistant Station Masters in the scale of Rs.1200-2040/- are  filled  by  direct  recruitment  through Railway Recruitment  Boards to  the extent of fifty percent. The  balance   fifty  percent  is  filled  by  promotion  of departmental employees.  The higher grades in the said cadre are filled  by promotion  from the  immediately lower  grde. Twenty five  percent of  the posts  in the scale of Rs.1600- 2600/- are, however, filled by direct recruitment of Traffic Apprentices. 38.  The first  respondent, Sri  Williams (petitioner in the original application  before the  Tribunal) was  promoted to the post  of Deputy Station Superintendent/Traffic Inspector in  the  scale  of  Rs.2000-3200/-  on  December  30,  1989. Actually, he  was initially  appointed as a Signaller in the scale of  Rs.60-150/-. Over  the years, he earned promotions one after  the other.  In the  scale of Rs.130-240/-, he was senior to Respondent Nos.4 to 10 in the original application (they are  not impleaded as respondents in this appeal), all of whom belong to Scheduled Castes/Scheduled Tribes. Because of rule  of reservation  and the  manner  in  which  it  was implemented,  the   said  Scheduled  Castes/Schedule  Tribes candidates were  promoted to  the higher categories soosner. They came  to be  promoted to  the post  of  Deputy  Station Superintendent/Traffic Inspector  in the  scale of  Rs.2000- 3200/- far earlier to Sri Williams, i.e., on January 1, 1984 or   earlier.    On   that   basis,   the   said   Scheduled Castes/Scheduled Tribes  candidates were  being  treated  as seniors to  Sri  Williams  who  is,  of  course,  a  general

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candidate. 39.  The posts  of Station  Superintendent/Traffic Inspector in the  scale of  Rs.2375-3500/- are controlled by and dealt with at  Head Quarter’s  level.  They  are  filled  on  "All Railway" basis by a process of selection (which comprises of viva-voce   only)    from   among    the   Deputy    Station Superintendents/Traffic Inspectors  in the scale of Rs.2000- 3200/-. 40.  Eleven vacancies  arose in the scale of Rs.2375-3500/-. According to  rules, three  candidates have to be considered for every  vacancy. Accordingly,  a  list  of  thirty  three senior-most candidates  in the  sacle of  Rs.2000-3200/- was prepared on  the basis of their respective dates of entry in the said  grade. They  were ‘alerted’  to be ready to appear for the  interview by  a letter dated July 12, 1991. All the thirty three  senior-most employees  so  alerted  belong  to Scheduled Castes/Scheduled  Tribes.  Sri  Williams  was  not among  the  thery  three.  It  is  then  that  Sri  Williams approached the  Tribunal praying for setting aside the alert notice dated  July 12, 1991, to revise the seniority list of all the  grades in  the Station Masters’ category protecting the seniority  of  general  candidates  and  for  a  further declaration that  rule  of  reservation  cannot  be  applied against vacancies.  He sought a further declaration that the said rule  of reservation  is confined to recruitment to the scale of Rs.1200-2040/- alone - i.e., to the lowest grade in the cadre - and not to higher grades. 41.  The Tribunal  allowed the original application filed by Sri Williams  following its  earlier  decision  in  Original Application No.85  of 1989.  The Tribunal  declared that for the purpose  of promotion under the general quota, seniority of the  Scheduled Castes/Scheduled  Tribes candidates should not be  determined on  the basis of the date of their actual promotion but  on the  basis of the date on which they would have been  promoted in due course if the rule of reservation were not  applied. The  Tribunal, however, declared that the seniority in  the  grade  of  Rs.1600-2600/-  shall  not  be disturbed because  the  applicant  had  not  approached  the Tribunal in  time to  challenge the seniority in that scale. The relief  granted by  the Tribunal  is  in  the  following terms:      "In the result, we allow the application      and pass the following orders:-      We direct  the respondents to revise the      seniority   of    the   applicants   and      respondents in the scale of Rs.2000-3200      taking into  account for  the  applicant      his date of actual promotion and for the      respondents 4  to 10  the date  on which      they would  have been  granted promotion      in that  grade but  for the preferential      treatment    based    on    reservation.      Promotion shall  be made  according to a      selection based on the revised list." 42.  The learned  Additional Solicitor General appearing for the appellants  (Union of India and the Railways) challenged the correctness  of the  decision of  that Tribunal  on  the ground that  it has  evolved a  principle of  seniority  not recognised by  any rule  or circular  orders of  the Railway Board and  is unsustainable  in  any  event.  He  submitted, relying upon  the decision  in Karam  Chand v. Haryana State Electricity Board  (1989 Suppl.(1)  S.C.C.342) that the date of promotion  to a  particular grade  or category determines the seniority  in that  grade or  category. Inasmuch  as the said thirty  three candidates  were alerted  (Called for) on

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the basis of their seniority for interview (for selection to eleven posts  in  the  grade  of  Rs.2375-3500/-)  no  valid grievance can be made by any one to such a course. 43.  Sri S.  Murlidhar, learned  counsel for Sri D. Williams submits that  this is a demonstrable case of injustice being done to  general candidates by applying not only the rule of reservation at every stage of promotion but also because the rule of  seniority enunciated  by the  Railway Board  in its several circulars  was not  being followed  by the concerned authorities. He  submits that  it is  for  the  Railways  to explain how  the situation  has come  about  where  all  the thirty  three   candidates  being   considered  for   eleven vacancies  happen   to  belong   exclusively  to   Scheduled Castes/Scheduled Tribes  categories. He  subsmits  that  Sri Williams ws  admittedly a  senior to  Respondent Nos.4 to 10 (in    the    original    application,    i.e.,    Scheduled Castes/Scheduled Tribes  candidates) in the grade of Rs.130- 240/- but  then the  said Scheduled  Castes/Scheduled Tribes candidates obtained  rapid and  preferential  promotions  to next  higher   grades,  viz.,   Rs.330-560/-,  Rs.425-640/-, Rs.455-700/-,  Rs.1600-2600/-  and  then  to  the  grade  of Rs.2000-3200/-. They  reached the  grade  of  Rs.2000-3200/- more than  five years  earlier to Sri Williams who was their senior in  the lower  category of Rs.130-240/- The result of faulty implementation  of rule  of reservation  and rule  of seniority is  that all  the  top  grades  have  come  to  be occupied exclusively  by the  reserved category  members,  a situation, which he characterises as a total negation of the Rule of Equality underlying Articles 16(1), 16(4) and 14. He emphasises the  fact that the Railways have not explained in their counter  as to  how the above situation has come about except   stating    baldly   that    since   the   Scheduled Castes/Scheduled  Tribes  candidates  were  seniors  to  Sri Williams in  the grade  of Rs.2000-3200/-, they were rightly alerted for interview. 44.  It is  true that this case presents a rather poiiignant turn  of  events.  Of  the  thirty  three  candidates  being considered  for   eleven  vacancies,   all   are   Scheduled Castes/Scheduled Tribes  candidates. Not  a single candidate among them  belongs to general category. The learned counsel for  the   respondent  is   justified  in  complaining  that appellants have  failed to  explain how such a situation has come about.  Not only  the juniors are stealing a march over their seniors  but the  march is  so  rapid  that  not  only erstwhile compatriots  are left  far  behind  but  even  the persons who  were in  the higher  categories at  the time of entry of Scheduled Castes/Scheduled Tribes candidates in the service have  also been  left behind.  Such a  configuration could not certainly have been intended by the framers of the Constitution or  the framers of the rules of reservation. In the absence  of any  explanation from  the authorities,  the best we  can do is to ascribe it as faulty implementation of the rule  of reservation.  In other words, not only have the Railways not  observed the  principle that  the  reservation must be vis-a-vis posts and not vis-a-vis vacancies but they had also  not kept  in mind  the rule  of seniority  in  the promotion posts  enunciated in the Railway Board’s circulars referred  to   supra.  Yet   another  principle   which  the authorities appeared  to have  not observed  in practice  is that once  the percentage reserved for a particular reserved category is  satisfied in  that service  category  or  grade (unit of appointment) the rule of reservation and the roster should no longer be followed. Because of the breach of these three rules, it appears, the unusual situation complained of by the  general candidates  has come  to pass.  The  learned

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counsel  for   general  candidates  is  right  that  such  a situation is  bound to lead to acute heart-burning among the general candidates  which is not conducive to the efficiency of administration.  Be that  as it  may, the question is can the said  situation be  rectified. Probably  not,  until  we direct all  the promotions  to be reviewed and re-done. This may not  be advisable at this distance of time. The enormity of the  exercise should  deter any  one from  launching upon such a  course. It  is evidently  for this  reason that  the Constitution Bench  has directed  in R.K. Sabharwal that the rule affirmed  by them should be applied only prospectively. There   is   yet   another   circumstance:   the   Scheduled Castes/Scheduled Tribes  candidates cannot  be  barred  from competing for  general posts.  We are  constrained to remark that it  is the  application of  rule of  reservation in the matter of  promotions -which  entitles a  reserved  category candidate to  avail of the benefit of reservation any number of times which is mainly responsible for such a situation. 45.  While    referring     to    the     Railway    Board’s circulars/letters in  civil appeals No.9272/95 (arising from S.L.P.(C) No.6468 of 1987 and batch), we had referred to the Railway  Boards   circular/letter  dated  January  19,  1972 dealing with  promotion to  selection posts.  (Para-3 of the said letter  is in  the same  terms as Para-4 of the Railway Board’s circular/letter  dated August  31, 1982  referred to supra.)  The  said  Para-3  reads:  "(3)  The  seniority  of candidates belonging to Scheduled Cates and Scheduled Tribes vis-a-vis others  will  continue  to  be  determined  as  at present, i.e.,  according to  the panel position in the case of  categories   where  training  is  not  provided  and  in accordance with  the merit position in the examination where training is  provided." But  inasmuch as the post of Station Superintendent/T.I. in  the scale  of  Rs.2375-3500/-  is  a selection  post,   the  panel   referred  to   in  the  said circulars/letters would  mean the panel prepared at the time of  making   selections  for  promotion  to  the  said  post (Rs.2375-3500/-) - and not the panel/select list prepared at the time  of entry  into the  initial grade, viz., Assistant Station Master  (Rs.1200-2-40/-). It also means that members in one  panel take  precedence over  the members in the next panel. The  application of the rule of seniority referred to in the  said circular/letter  - and  other circulars/letters referred to  supra most of which do not make any distinction between selection  and  non-selection  posts  -  has  to  be subject to the said limitation. 46.  It may  be noticed  that of  the  five  grades  in  the Station Masters’ category, two are non-selection posts while the remaining  three are  selection posts. While in the case of non-selection  posts the  rule  enunciated  in  the  main opinion (Virpal  Singh Chauhan)  would be applicable, in the case of selection posts, the rule explained herein has to be followed. We  may clarify that Rules (i) and (ii) in Para 28 of Virpal  Singh Chauhan  apply to  both selection  and non- selection posts. Rule (iii) also applies to both but subject to the  above rider. As explained in the main opinion, while there is no question of a "panel" being prepared at the time of promotion  to non-selection  posts, a  panel  has  to  be prepared for promotion to selection posts. 47.  This appeal  is  accordingly  allowed  and  the  matter remanded to  the Tribunal with a direction to dispose of the original application  afresh in  the light of the principles enunciated herein. No costs.      CIVIL APPEAL NO.9275 OF 1995      ----------------------------      ARISING OUT OF S.L.P.(C) NO.4102 OF 1994:

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    ----------------------------------------- 48.  Delay condoned. Leave granted. 49.  The   respondent   [petitioner   before   the   Central Administrative Tribunal  (Allahabad Bench), Sri Mohd. Sabir, joined the Railways as an Office Clerk on December 20, 1957. He was  promoted as  Head Clerk  and then  as  an  Assistant Superintendent. His  promotion  to  the  post  of  Assistant Superintendent was  on March 12, 1985. The next promotion is to the  post of  Superintendent. He  approached the Tribunal complaining that when two vacancies arose in the category of Superintendents,  the  Railway  Authorities  called  certain Scheduled Castes/Scheduled  Tribes candidates  for interview in preference  to him though they are far juniors to him. He gave three  instances, viz.,  (1)  Sri  A.P.  Pramanik,  who joined the  service twenty  years  after  him  and  who  was promoted as  Assistant Superintendent  only on  February 22, 1988. (2)  Sri Kamal Kishore, who was initially appointed as Class IV  employee but who is being treated as senior to the petitioner and (3) Sri Amrendra Kumar Das, who was appointed as an  Office Clerk  twenty two  years after his appointment and who  came to  be promoted as Assistant Superintendent on February 25, 1986. The grievance of Sri Mohd. Sabir is this: the  total   sanctioned  strength   of   the   category   of Superintendents  (Grade  Rs.2000-3200/-  RPS)  is  thirteen. There are  three vacancies.  Of the  remaining ten, only two are general  candidates and  the remaining  eight belong  to Scheduled Castes.  Inspite of  the same,  the candidates now being considered  for promotion  are again  Scheduled Castes candidates which  is likely  to result  in an  almost  total reservation in  the said category in favour of the Scheduled Castes/Scheduled  Tribes   candidates.  The   case  of   the appellants (respondents in the original application) is that they are  considering the  senior most  candidates  for  the vacancies arising  in the  category of  Superintendents and, therefore, no objection can be taken with the said course by any aone. 50.  The Tribunal  has allowed  the original  application in the following terms:      "It  appears   that  some   mathematical      mistake occurred  on  the  part  of  the      department in  making the  promotion and      deciding  the  seniority.  According  to      learned counsel in view of Vir Pal Singh      Chauhan’s case  these candidates  are to      be reverted.  Whether  they  are  to  be      reverted or  not that  is the matter for      the  respondents   to  decide  all  such      observations which have been made in Vir      Pal Singh’s  case, but  the  respondents      are directed  to promote  the members of      the general community to the extent they      are  entitled  to  by  adhering  to  the      seniority. Accordingly, since the matter      is not  decided finally  by the  Hon’ble      Supreme Court, However those persons who      have already  been promoted,  keep  them      for the  post of  Supdt. and will adjust      the  seniority   list   accordingly   in      accordance with  Vir Pal  Singh’s  case.      Let all  these be done within the period      of   3   months   from   the   date   of      communication of this order. No order as      to the costs." 51.  This appeal  is liable  to be  dismissed  applying  the principle enunciated  in R.K.  Sabharwal. It is evident that

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out of  the cadre-strength  of thirteen,  there  were  three vacancies on  the date of filing of the original application before the Tribunal and of the remaining ten posts, only two were occupied  by the  general candidates  and the remaining eight were  occupied by  the members  of  Scheduled  Castes. Since the  representation of Scheduled Castes is already far beyond their  quota, no  further Scheduled Castes candidates could  have   been  considered   for  the   remaining  three vacancies. This  means that  the Scheduled Castes candidates can be  considered only as and along with general candidates but not  as members  belonging to  a reserved  category. The appeal  is   accordingly  dismissed   with   the   aforesaid clarification.      CIVIL APPEAL NO.9274 OF 1995      ----------------------------      ARISING OUT OF S.L.P.(C) NO.6924 OF 1988:      ----------------------------------------- 52.  Delay condoned. Leave granted. 53.  This matter  pertains to  promotion  to  the  posts  of Office Superintendents Grade-I, Office Superintendent Grade- II and  Head Clerk.  The original  application was  filed by three  candidates   belonging  to  general  category.  Their grievance  was   that  the   representation   of   Scheduled Castes/Scheduled Tribes  candidates has already exceeded the percentage  reserved  for  them  and  inspite  of  that  the Scheduled Castes  candidates are  again being considered for the vacancies  arising in  the said  categories. By  way  of illustration, they  pointed out,  the sanctioned strength of the category  of Head  Clerks is six. Four are filled up and there are  two vacancies.  Out of  the  four  posts  already filled up,  two are  held by general category candidates and two by  the members  of Scheduled  Castes. The  claim of the original petitioners (respondents in this appeal), which has been upheld  by the Calcutta Tribunal, is that the remaining two vacancies  should go only to general candidates. Similar direction has been made with respect to other two categories as well.  The Tribunal  further directed  that the  rule  of reservation must  be applied with reference to posts and not with reference  to vacancies.  The main  contention  of  the Union of India and the Railway Authorities in this appeal is that  the   rule  of  reservation  in  favour  of  Scheduled Castes/Scheduled Tribes  should be  applied to vacancies and not to  total number  of posts in the cadre. It is submitted that the  Tribunal was  in error in holding that the rule of reservation should be so applied as to ensure that the posts held by  Scheduled Castes/Scheduled Tribes do not exceed the prescribed percentage.  It is  submitted that this was never the  intention   of  the   Constitution  or   the  rule   of reservation. 54.  The only  contention urged  by the appellants herein is concluded against  the appellants  by the  decision of  this Court in R.K. Sabharwal, referred to hereinbefore. Following the  said   decision  this  appeal  is  dismissed  with  the clarification that the members of Scheduled Castes/Scheduled Tribes can also compete as general candidates. The appellant shall follow and apply the said decision. No costs.      ---------------X--------------------X--------------      Before parting  with these  appeals, we feel obliged to reiterate the  principle  affirmed  in  Indra  Sawhney  that providing reservation  in  promotion  is  not  warranted  by Article 16(4).  The facts  of  these  cases  illustrate  and demonstrate the  correctness of  the said holding. They also bring home  the intractable  problems that  arise from  such provision -  problems that  defy solutions.  No more need we say on this aspect. The decision in Indra Sawhney speaks for

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itself.