1.Though several contentions are raised in these
appeals, finally the learned counsel for the
appellants has come down to one submission, since
according to him, he is entitled to succeed on that.
That submission pertains to the direction in R.K.
Sabharwal and Others v. State of Punjab and Others,
(1995) 2 SCC 745, regarding post based roster in the
matter of promotions. It was made clear in R.K.
Sabharwal (supra) that 10.02.1995 shall be the date
for the purpose of following the post based roster.
It appears, the Respondent No.2 was still not
following the same which led to the decision in Union
Chauhan (supra) it was made clear that the Railways
has to follow the principles as laid down in R.K.
Sabharwal (supra). Paragraph Nos. 29 and 33 of the
same are extracted below:
“29. 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.K. 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 candidates 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 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.
33. Shri Dhavan points out yet another
anomaly. 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 Sl. No.18 in the
select list, whereas another Scheduled Caste
candidate selected under and only because of
the reserved quota stands at Sl. 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 Sl. No.18 for his merit.
Because he was meritorious, he was selected
in general category and is treated as a
general candidate. He suffers all the
disadvantages any other general candidate
suffers while another Scheduled Caste
candidate, far less meritorious 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 herein concerned, 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 40 per cent 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.29]
with effect from the date of judgment in
R.K. Sabharwal, i.e., 10.02.1995. “
2. However, it is the case of the Railways that it
took some more time for them to take a call on the
issue of following post based reservation and finally
it was clarified on 14.09.2006 that the post based
reservation would be followed only with effect from
16.11.2005. In fact, it has been said so in an
affidavit filed before this Court in an answer to a
query from this Court in the order dated 25.10.2017.
The query and answer given in the affidavit filed on
17.11.2017 read as follows:-
“(5) That it shall be clarified as to
whether the Railway Board has followed post
based roster in any other vacancy after
15.07.2005?
In terms of Railway Board's letter
Nos.2005/E(SCT)I/25/14 dated 16.11.2005 and
E(GP)2005/2/61 dated 22.11.2005 and
14.09.2006, instructions were issued
regarding introduction of post based
reservation rosters in promotion from Group
'C' to Group 'B' or within Group 'B'.
In terms of aforementioned letter dated
14.09.2006, Railway Board clarified that
that post based roster shall be adopted from
the next cycle of selections commencing
after the issue of Railway Board's letter
No.2005/E(SCT)I/25/14 dated 16.11.2005.
Hence Post based roster for Gazetted
cadre was not followed for any vacancy
filled up to 16.11.2005. Thereafter,
Post-based rosters were applied in all
selections conducted in Group 'B'.”
3.We are afraid that this stand cannot be justified. This Court in Virpal Singh Chauhan (supra), having directed the Railways to specifically follow the principles as laid down in R.K. Sabharwal (supra) with effect from 10.02.1995, the post based roster has to be followed from 10.02.1995.
4.In the above circumstances, we dispose of these appeals with the following directions: i. The case of the appellants shall be examined in the light of the judgments referred to above for the purpose of their promotion to the post of Assistant Executive Engineer and Executive Engineer. ii. In the process, we also make it clear that promotions already granted to other incumbents shall not be affected. It is further made clear that as far as promotion to the post of Assistant Executive Engineer is concerned, the same shall be notional and as far as the post of Executive Engineer is concerned, both the appellants shall be entitled to the restoration of seniority, in case they are otherwise found eligible and entitled in the process of selection. We are informed that Appellant No.1 has already been promoted to the post of Executive Engineer, therefore, in his case only restoration of seniority and notional fixation of pay are required to be granted. As far as Appellant No.2 is concerned, benefits regarding seniority shall be conferred in the light of the judgment referred to above, in case he is found eligible and entitled for the monetary benefits with effect from the date of his actual promotion to the post of Executive Engineer, as and when made. iii. The required process shall be completed in the light of this judgment, within a period of one month from today.
5.Pending applications, if any, shall stand disposed of.
6.There shall be no orders as to costs. [KURIAN JOSEPH] [S. ABDUL NAZEER] NEW DELHI; NOVEMBER 22, 2017. ITEM NO.109 COURT NO.5 SECTION XII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL NO(S). 4751-4752/2011 V. LAKSHMIKANTHAN AND ANR. APPELLANT(S) VERSUS UNION OF INDIA AND ORS. ETC. RESPONDENT(S) Date : 22-11-2017 These appeals were called on for hearing today. CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE S. ABDUL NAZEER For Appellant(s) Mr. C.K. Chander Shekhar,Adv. Mr. S. R. Setia, AOR For Respondent(s) Ms. V. Mohana,Sr.Adv. Mr. B. Ragunath,Adv. Ms. N.C. Kavitha,Adv. Mr. Vijay Kumar, AOR Mr. A.K. Panda,Sr.Adv. Ms. Alka Agrawal,Adv. Mr. Raj Bahadur,Adv. Mr. Mohan Prasad Gupta,Adv. Ms. Sushma Verma,Adv. Mrs. Anil Katiyar, AOR UPON hearing the counsel the Court made the following O R D E R The appeals are disposed of in terms of the signed judgment. (NARENDRA PRASAD) (RENU DIWAN) COURT MASTER ASST. REGISTRAR (Signed “Non-Reportable” Judgment is placed on the file)