F.ROY CHOUDHARY & 9 other(s) V. UNION OF INDIA & 115 other(s)

SCA/3099/2005

AI Insights

The case revolves around a challenge to the promotions granted to SC/ST candidates in the Customs and Central Excise Department, which were alleged to exceed the reserved quota. The petitioners, who were general category candidates, argued that the promotions violated the Supreme Court's directives on reservation and promotion, specifically citing the R.K.Sabharwal case. The Department defended the promotions by citing a restructuring and reallocation of posts, which they claimed complied with the applicable rules and circulars. The High Court found that the Department had not properly adhered to the roster system as mandated by the Supreme Court, leading to an excess in the number of SC/ST candidates promoted compared to the reserved quota.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 802736 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 16-09-2019
• Assessment Year: misc
• Other Referred Cases: R.K.Sabharwal & Ors. Vs. State of Punjab & Ors., Union of India & Ors. Vs. Virpal Singh Chauhan & Ors., Indra Swahney Vs. Union of India & Ors., Union of India Vs. Ramesh Ram & Ors., Niravkumar Dilipbhai Makwana Vs. Gujarat Public Service Commission & Ors., K.Manorama Vs. Union of India represented by General Manager, Southern Railways & Ors., Lachhmi Narain Gupta & Ors. Vs. Jarnail Singh & Ors., B.K.Pavitra & Ors. Vs. Union of India & Ors.
• Laws Referred To: Articles 226 and 227 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: NIRAL MEHTA
• Assessee Lawyers: G M JOSHI
• Keywords: Promotion; Reservation; Seniority; SC/ST; Feeder cadre; Roster system
• Section: 529

Judgement Text

"C/SCA/3099/2005 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 3099 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE ANANT S. DAVE Sd/- and HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/- =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? No ================================================================ F.ROY CHOUDHARY & 9 other(s) Versus UNION OF INDIA & 115 other(s) ================================================================ Appearance: MR GM JOSHI(370), SENIOR ADVOCATE for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9 MR NIRAL R MEHTA(3001) for the Respondent(s) No. 1 MR SHALIN N MEHTA, SENIOR ADVOCATE assisted by MS.VIDHI J BHATT (2010) for the Respondent(s) No. 108,111,28,36,38,42,43,46,47,60,62,63,66,67,68,69,86,87,88,90,92 MR. NILAY A THAKER(7275) for the Respondent(s) No. 10,101,102,103,104,105,106,109,114,115,15,16,23,27,37,4,40,41,44,48,50,5 1,53,54,55,56,57,70,71,72,75,77,78,79,80,81,83,89,91 RULE SERVED(64) for the Respondent(s) No. 100,107,11,110,112,113,116,12,13,14,17,18,19,2,20,21,22,24,25,26,29,3,30, 31,32,33,34,35,39,45,49,5,52,58,59,6,61,64,65,7,73,74,76,8,82,84,85,9,93,94 ,95,96,97,98,99 ================================================================ Page 1 of 36 C/SCA/3099/2005 CAV JUDGMENT CORAM: HONOURABLE MR. JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE A.Y. KOGJE Date : 16/09/2019 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE A.Y. KOGJE) 1. This petition under Articles 226 and 227 of the Constitution of India is filed challenging the judgment and order dated 09.09.2004 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No.529 of 2002. Under the impugned judgment and order, the Tribunal dismissed the application of the petitioners which was challenging promotions of respondent Nos.4 to 116. 2. Before the Tribunal, it was the case of the petitioners that the petitioners who were discharging their duties as Inspectors in the Customs and Central Excise Department as direct recruits or by promotion between 1991 to 1995, belonging to general category, formed feeder cadre for the post of Superintendent. 2.1 Before the tribunal, it was the case of petitioners that the respondent no.2 appears to have ignored this important principle laid down by the Hon’ble Supreme Court of India and has granted promotion to the SC/ST candidates far in excess to their quota and their Page 2 of 36 C/SCA/3099/2005 CAV JUDGMENT entitlement. From the promotion order Annexure A/2 it can be seen that what appears to have been done is that 166 SC/ST candidates have been given promotion considering their seniority in the lower grade of Inspectors and they are given promotion along with their colleagues in general category. The last 113 promotions are enblock in favour of reserved categories of SC/ST after giving regular promotions to all candidates including reserved candidates is bad in law. Firstly it violates the ratio laid down by the Hon’ble Supreme Court and permits the reserved category candidates who are inducted in the feeder cadre by availing of accelerated promotion/appointment by virtue of their belonging to reserved categories to compete with general category candidates on general category vacancy. Secondly this procedure completely gives a go by to the roster and makes it completely redundant. By this strange method of giving promotions to the reserved candidates the percentage of their representation has actually come up to 43% as against 22.5% reserved for them. 2.2 That all the reserved category candidates have already availed of preferential treatment at the lower level by virtue of availing of reservation for entry as inspector either by promotion or direct appointment. To further promote such reserved class candidates to the Page 3 of 36 C/SCA/3099/2005 CAV JUDGMENT post of Superintendent by permitting them to compete with the general category candidates and to grant them promotion simply on the basis of their seniority over general candidates achieved through accelerated promotion/appointment would amount to great injustice to the applicants and other general category candidates. Not just this, but to further provide for full quota of reservation for SC/ST over and above the SC/ST promotions granted in violation of the Supreme Court decision amounts to double reservation and complete denial of rights to the general category candidates. 2.3 That the reservation to the post of Superintendent for Scheduled Caste category was 15% and for Scheduled Tribe, 7.5%. Accordingly, when 642 Inspectors were promoted to the post of Superintendent by order dated 23.09.2002, 279 persons were belonging to Scheduled Caste and Scheduled Tribe category. As a result, percentage of reserved category candidates in the post of Superintendent was at 43%, which was far exceeding the percentage reserved for both the categories. 2.4 In view of this fact situation, the petitioners challenged the order of promotion to the extent of granting promotion to the persons belonging to Scheduled Caste and Scheduled Tribe category in excess to the quota Page 4 of 36 C/SCA/3099/2005 CAV JUDGMENT reserved for these categories and with a direction to the respondent authorities to grant promotion by following roster system by considering 22.5% reservation for these two categories. The application also prayed for due date of seniority. 2.5 It was also the case of the petitioners that the respondents, who have been appointed in the post of Inspector (feeder cadre) by direct recruitment or by promotion by availing benefit of reservation, such respondents cannot once again avail the benefit of reservation for further accelerated promotions. 2.6 The application came to be opposed by the Department as well as the private respondents with the basic contention that the post of Superintendent was subsequently restructured. Thereafter, 672 posts came to be available for promotion. The Inspectors with 8 years of regular service as on 1st January of that year were found eligible for promotion. Relying upon the circulars issued by the DoPT from time to time giving guidelines regarding treatment to be given to the candidates belonging to reserved categories appointed on their own merits, such candidates were not considered against the post of reserved quota. 2.7 Considering the rival submissions of the Page 5 of 36 C/SCA/3099/2005 CAV JUDGMENT parties, the Tribunal under the impugned judgment and order, dismissed the application, against which the present petition is filed. 3. Learned Senior Advocate for the petitioners contended that considering the total posts of Superintendent available from the post of Inspectors being feeder cadre, as on date, 279 persons belonging to Scheduled Caste and Scheduled Tribe category are promoted, thereby taking their percentage to 43% as against the reserved quota of 22.5%. It is submitted that the Department has also not considered the fundamental issue that the private respondents, who were appointed or promoted to the post of Inspectors (feeder cadre), such private respondents were not entitled to promotions to the post of Superintendent as reserved candidates, as said persons cannot avail benefit of reservation again for the purpose of accelerated promotion. 3.1 Learned Senior Advocate for the petitioners submitted that the identical issue had arisen before the Central Administrative Tribunal, Hydrabad Bench, wherein the Tribunal by order dated 31.07.2003 in Original Application No.251 of 2003, after considering the judgment of the Apex Court in the case of R.K.Sabharwal & Ors. Vs. State of Punjab & Ors., reported in (1995) 2 Page 6 of 36 C/SCA/3099/2005 CAV JUDGMENT SCC, 745, had set aside the impugned orders of promotions. Learned Senior Advocate for the petitioners relied upon the said judgment of the Apex Court in the case of R.K.Sabharwal (supra), contending that the roster is to be applied in the form of 'running account' only till the quota provided under the reservation policy is reached and that in no circumstance, posts occupied by the candidates belonging to reserved categories can surpass the quota of reserved seats. It is contended that in the instant case, this very thing has happened which is directly against the judgment of the Apex Court in the case of R.K.Sabarwal (supra). 3.2 Learned Senior Advocate for the petitioners also relied upon the judgment of the Apex Court in the case of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors., reported in (1995) 6 SCC, 684, to substantiate his claim of seniority of the petitioners over the reserved candidates by considering length of their respective services in the feeder cadre. 3.3 Learned Senior Advocate for the petitioners thereafter relied upon the judgment of the Apex Court in the case of Indra Swahney Vs. Union of India & Ors., reported in (1996) 6 SCC, 506, to contend that the Supreme Court has now concluded that the reservation in the promotion would compromise the efficiency of Page 7 of 36 C/SCA/3099/2005 CAV JUDGMENT administration. It is submitted that the clarificatory memorandum dated 11.07.2002 in connection with OM No.36012/2/96 dated 02.07.1997 has defeated the very purpose and the interpretation given by the Apex Court in various judgments for smooth operation of reservation policy in the promotion. 4. Learned Senior Advocate for the Department and learned Senior Advocate for the private respondents submitted that the Ministry of Finance under communication dated 05.06.2002 had allocated various posts to Group A, B, C and D amongst various zones /Central Excise and Customs Commissionerates and Directorates General after procedure of restructuring. This included 1193 posts in the grade of Superintendent of Central Excise, Group-B for the Central Excise & Customs formations falling within the State of Gujarat. The total posts available, which included posts on cost recovery basis, were 1203, out of which 534 were working Superintendent and 3 anticipated vacancies. Total 672 seats were to be filled by promotion from the grade of Inspectors. The eligibility was minimum of 8 years of regular service as Inspector as on 1st January of the year in which the DPC is held. The zone of consideration normally would be twice the number of vacancies. In the instant case, the DPC was held in the month of July 2002, Page 8 of 36 C/SCA/3099/2005 CAV JUDGMENT in which 672 vacancies were to be filled by candidates of Scheduled Caste and 31 by candidates of Scheduled Tribe and 539 by general candidates. It is the case that the Scheduled Caste and Scheduled Tribe candidates who were within normal select list of first 539 were to be adjusted against the general vacancies and 102 Scheduled Caste and 31 Scheduled Tribe candidates were to be selected by going down in the list of eligible candidates. 5. It is the case of the respondents that the Ministry of finance, New Delhi has vide their letter F.No:A-11013/4/2002-AD.IV dated 05.06.2002 allocated the various posts in Group “A”, ”B”, ”C” &”D” amongst the various zones/ Central Excise & Customs Commissionerates and Directorates General on account of Restructuring. This included 1193 posts in the grade of Supdt. Of C.Ex., Gr.’B’ for the Central Excise & Customs formations falling within the State of Gujarat. The total posts were 1193+ 10 posts on Cost Recovery basis total 1203. These posts i.e. 669 (1203-534 working Suptd.) and 03 anticipated vacancies on account of retirement i.e. total 672 were to be filled by promotion from the grade of Inspector of Central Excise and Customs. For being eligible for promotion to the grade of Suptd. Inspectors are required to put in minimum 08 years of regular Page 9 of 36 C/SCA/3099/2005 CAV JUDGMENT service in the grade as on 1st January of the year in which the Departmental Promotion Committee (will be quoted as DPC hereafter) is held. 5.1 The normal zone of consideration should be twice the number of vacancies plus four and zone for consideration for Schedule Caste (SC) and Schedule Tribe (ST) should be 05 times the number of vacancies. 5.2 The DPC was accordingly held on 24th and 25th July, 2002 in the office of the Chief Commissioner of Central Excise & Customs, Vadodara for considering the cases of Inspectors for promotion to the grade of Supdt. for 672 vacancies. In terms of this the normal zone of consideration was supposed to contain 1348 names of eligible Inspectors. But equal numbers of eligible Inspectors having put in 08 years of service in the grade as on 1st January, 2002 were not available. Only 1103 Inspectors eligible for consideration were available. Accordingly the consideration list placed before the DPC held on 24th and 25th July contained 1103 names of Inspectors. For the purpose of reservation for promotion of Schedule Caste and Schedule Tribe Officer, Post Based Roster introduced vide O.M No. 36012/96-Estt.(Res.) dated 02nd July, 1997 (effective from 02nd July, 1997) (A-I) issued by the Govt. of India, Department of Personnel and Training, New Delhi is maintained. Page 10 of 36 C/SCA/3099/2005 CAV JUDGMENT 5.3 As per the office Memorandum No. 36028/17/2001- Estt.(Res.) dated 11.07.2002 (A-II) issued by the Govt. of India, Department of Personnel and Training, New Delhi if an unreserved vacancies arises in a cadre and there is any Schedule Caste/ Schedule Tribe Candidates within the normal zone of consideration in the feeder grade, such Schedule Caste/ Schedule Tribe Candidate can not be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to “General Category”. In case he is selected he will be appointed to the post and will be adjusted against the unreserved point. 5.4 For the DPC held on 24th and 25th July, 2002, in the 672 vacancies to be filled up, 102 were to be filled by Schedule Caste Candidates, 31 by Schedule Tribe Candidates and 539 by General Candidates. Therefore while drawing the select panel of 672 officers, Schedule Caste/ Schedule Tribe Candidates coming within the normal select list of first 539 were to be adjusted against unreserved vacancies. 102 Schedule Caste Candidates and 131 Schedule Tribe Candidates were to be selected by going down in the consideration list beyond a point at which a select panel of 539 is completed. In other words, Schedule Caste/ Schedule Tribe Candidates found fit within the limit of Page 11 of 36 C/SCA/3099/2005 CAV JUDGMENT 539 vacancies will be adjusted against the unreserved points. 5.5 As per the instructions contained in O.M. No. 10/41/73-Estt. (SCT) dated 20th July, 1974, (A-III) issued by Deptt. Of Personnel and Adm. Reforms, New Delhi relating to reservations for Schedule Caste or Schedule Tribes in posts filled by promotion to Group ‘B’, within Group ‘B’ and up to the lowest rung of Group ‘A’, while vacancies reserved for Schedule Caste or Schedule Tribes will continue to be reserved for the respective community only, a Schedule Caste officer may also be considered for appointment against a vacancy reserved for Schedule Tribes, or vice-versa, in the same year itself in which the reservation is made, where the appropriate reserved vacancy could not be filled by a Schedule Caste/ Schedule Tribe Candidates, as the case may be. 5.6 According to post based roster, the representation for SC should be 180 and ST 90 for 1203 posts in the grade of Supdt. Gr. ‘B’. As against these, 78 Supdts. belonging to SC and 59 belonging to ST category were working on the date of DPC and as such the reservation for SC worked out to 102 (180-78) and for ST 31 (90-59). As against 157 Inspectors belonging to SCV and 147 belonging to ST category were available for promotion. The DPC approved 650 Inspectors for promotion Page 12 of 36 C/SCA/3099/2005 CAV JUDGMENT to the grade Supdt. Out of which 146 are belonging to SCH Caste and 134 are belonging to SCH Tribe and 370 General Category. 5.7 After drawl of panel by the DPC, promotion order in respect of 650 Inspectors has been issued to the grade of Supdt. Vide Estt. Order Nos.225/2002 dated 31.07.2002, 258/2002 dated 04.09.2002 and 275/2002 dated 23.09.2002 all issued by the Commissioner of Central Excise and Customs, Vadodara. (Copies enclosed as Annexure A-IV, A-V, A-VI). 5.8 On perusal of the Estt. Order No.275/2002, it will please be seen that Inspectors whether belonging to SC, ST or General Category appearing up to Sr. No. 529 of the said Estt. Order can be said to have been promoted in normal course and those belonging to Sr.no.530 to 642 are promoted against the vacancies reserved for SCH Caste and Sch. Tribe i.e. in other words the Inspectors appearing between Sr.No.1 to 539 in the consideration list have been promoted (except those who are under suspension, found not fit for promotion, in whose case sealed cover procedure has been observed and such other cases) from normal zone of consideration list. 5.9 Out of 650 Inspectors promoted, 146 Inspectors belonging to SCH Caste and 134 belonging to SCH Tribe Page 13 of 36 C/SCA/3099/2005 CAV JUDGMENT have been promoted (Total 280). (I) out of 280, 98 Inspectors belonging to SCH Caste and 69 Inspectors belonging to SCH Tribe can be said to have been promoted against the vacancies meant for General Category candidates as they are between Sr.No. 1 to 595 in the consideration list. (II) 48 Inspectors belonging to SCH Caste and 65 belonging to SCH Tribe can be said to have been promoted against the vacancies reserved for SCH caste and SCH Tribe. (III) Out of 102 vacancies reserved for SCH Caste, 48 were promoted against the vacancies reserved for SCH caste and out of 65 SCH Tribe Inspectors promoted, 31 are considered to have been promoted against the vacancies reserved for SCH Tribe and 34 are considered as promoted against the vacancies reserved for SCH Caste by observance of exchange procedure laid down in O.M.No.10/41/73-Extt.(STT) dated 20th July, 1974, as there were no sufficient number of SCH caste Inspectors were not available. In terms of this there is still short fall of 20 in the SC category. 5.10 It was submitted on behalf of the respondents that total posts of superintendent on reorganization were 1203, which included 531 old posts and 672 new posts, out of which 933 were general category posts, 180 scheduled category posts and 90 scheduled tribe category posts, out of which 78 posts of scheduled caste were filled and 59 Page 14 of 36 C/SCA/3099/2005 CAV JUDGMENT posts of scheduled tribe were filled. Therefore, total vacant posts of scheduled caste were 102 and that of scheduled tribe 31. It is submitted that when appointments were to be made for 650 posts, quota for general candidates was 370, for scheduled caste 146 and for scheduled tribe 134 and in this, 98 scheduled caste candidates were appointed on their own merit against general seats and 69 scheduled tribe candidates were appointed on their own merits against general category. Therefore, candidates now appointed as reserved category in scheduled caste category are 48 and 65 respectively. Therefore, according to the respondents, against 180 posts to be filled by scheduled caste category candidates, there are only 126 candidates of scheduled caste appointed in reserved category of scheduled caste and therefore, there is a shortfall of 54 posts. Similarly, considering 65 scheduled tribe candidates now appointed against reserved category for scheduled tribe, the total number of seats of scheduled tribe being 124 against the total reserved posts of 90 filled. Thereby, 34 posts for scheduled tribe being excess, was pleaded to be adjusted towards deficiency of 54 posts in scheduled caste category. The fallacy in this arithmetic is based on basic principle of treating reserved candidate, who entered into the feeder cadre in reserved category, is sought to be treated as an “own merit” candidates Page 15 of 36 C/SCA/3099/2005 CAV JUDGMENT occupying a seat in general category. Such a methodology cannot be approved. 6. Having heard the parties at great length and perusing the documents on record, the facts which are not in dispute are that upon restructuring within the Department, 672 posts of superintendent were available, for which the feeder cadre was Inspector in the Department. It also cannot be disputed that the Inspectors, which formed the feeder cadre, were either promoted or directly recruited. Amongst the direct recruit Inspectors, some of the Inspectors were appointed against reserved quota. Similarly, Inspectors who were promoted from within the Department, some of them were also promoted as reserved quota candidates. The exercise therefore which was required to be undertaken at the relevant time by the Department was to segregate these candidates who made it into the feeder cadre by virtue of them being candidates belonging to reserved category and appointed in the feeder cadre against reserved posts. It was only after carrying out such exercise, it was for the Department to prepare the seniority list. The question therefore for the Department at the relevant time was whether while promotion to the post of Superintendent from feeder cadre of Inspector, candidates, who had found place in the feeder cadre as reserved candidate, can, for Page 16 of 36 C/SCA/3099/2005 CAV JUDGMENT the purpose of promotion, migrate as a general candidate. 7. The Supreme Court in the case of Union of India Vs. Ramesh Ram & Ors., reported in (2010) 7 SCC, 234, was faced with the issue regarding migration of the candidates belonging to reserved category, who found place in merit along with candidates of general category, can he be permitted to migrate to the reserved category at the time of service allocation after clearing civil services examination conducted by UPSC. On this issue, the Supreme Court was called upon to to examine constitutional validity of Rule 16, sub-rules (2) to (5) of Civil Services Examination Rules. Rule 16 laid down manner of selection, preparation of merit list and selection of the candidates, wherein sub-rule (2) provided for the candidates belonging to SC, ST or OBC recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government, if by this process, they get a service or higher choice in the order of their preference while making service allocation. The total vacancies notified were 457, out of which 242 were for general category, 117 for OBC, 166 for SC and 32 for ST. The UPSC recommended as per Rule 425 candidates in in first phase which consisted of 210 general, 117 OBC (which included 31 meritorious candidates), 66 SC (which included 1 meritorious candidate) and 32 ST. The wait Page 17 of 36 C/SCA/3099/2005 CAV JUDGMENT list was also prepared. At the stage of recommendation through operation of wait list, 26 meritorious OBC candidates and 1 meritorious ST candidate, who were recommended in the first list, opted to be considered for the reserved seats, as by that process, they were likely to get service of higher choice in order of preference. Certain OBC candidates in the wait list therefore were aggrieved and filed application before the Central Administrative Tribunal, Madras contending that if the aforementioned candidates are permitted to migrate back to the reserved category, this would result into shrinking and their opportunity to make it into the civil services. The Tribunal, after interpreting Rule 16(2), concluded that the meritorious OBC candidates must be adjusted against the general category. This decision came to be challenged before the Madras High Court and by the impugned decision, the Madras High Court held Rule 16(2) as unconstitutional. In these facts, the Supreme Court considered following questions:- “20. In the light of the submissions made by the learned counsel appearing for different appellants, the following questions arise for consideration: I. Whether the Reserved Category candidates who were selected on merit (i.e. MRCs) and placed in the list of General Category candidates could be considered as Reserved Page 18 of 36 C/SCA/3099/2005 CAV JUDGMENT Category candidates at the time of \"service allocation\"? II. Whether Rule 16 (2), (3), (4) and (5) of the CSE Rules are inconsistent with Rule 16 (1) and violative of Articles 14, 16 (4) and 335 of the Constitution of India? III. Whether the order of the Central Administrative Tribunal was valid to the extent that it relied on Anurag Patel v. Uttar Pradesh Public Service Commission and Others, (2005) 9 SCC 742 (which in turn had referred to the judgment in Ritesh R. Sah v. Dr. Y.L.Yamul and Others, (1996) 3 SCC 253, which dealt with reservations for the purpose of admission to post graduate medical courses); and whether the principles followed for reservations in admissions to educational institutions can be applied to examine the constitutionality of a policy that deals with reservation in civil services.“ 7.1 For the purpose of our case, question No.1 appears to be relevant. With reference to this question, the Supreme Court was examining Rule 16(2) of the Civil Services Examination Rules which was amended by notification dated 04.12.2004 and upon consideration of relevant decisions of the Supreme Court, it was ultimately held that in case of meritorious reserved candidates who avail benefit of Rule 16(2) and are even adjusted in the reserved category, should be counted as Page 19 of 36 C/SCA/3099/2005 CAV JUDGMENT part of the reserved pool for the purpose of computing the aggregate reservation quotas. Therefore, it means that the seats vacated by the meritorious reserved candidates in general pool will be offered to the candidates from general category. The Supreme Court held that this is the only viable solution since allotting general category seats vacated by meritorious reserved candidates to relatively lower ranked reserved category candidates would result into aggregate reservation exceeding 50% of the total number available seats. Hence, the Supreme Court found that migration of meritorious reserved candidates to the reserved category was not an impediment However, converse cannot be considered as a matter of rule, meaning thereby, once a candidate has been given appointment as a reserved candidate, later on migration from reserved category to the general category cannot be held to be in consonance with the principle laid down by the Apex Court as well as from various instructions through office memorandums. 7.2 The Court may draw support in this regard from the judgment of the Apex Court in case of Niravkumar Dilipbhai Makwana Vs. Gujarat Public Service Commission & Ors., in Civil Appeal No.5185 of 2019 dated 04.07.2019, where, in para-2, question before the Apex Court was, “The question for consideration in this appeal is whether Page 20 of 36 C/SCA/3099/2005 CAV JUDGMENT a candidate who has availed of an age relaxation in a selection process as a result of belonging to a reserved category, can thereafter seek to be accommodated in /or migrated to the general category seat?”. Answering this, the Apex Court held in para-36 as under:- “36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.” 8. The Supreme Court in case of K.Manorama Vs. Union of India represented by General Manager, Southern Railways & Ors., reported in (2010) 10 SCC, 323, held that the principle when a member belonging to scheduled caste gets selected in open competition on the basis of his own merits, he will not be counted against the quota reserved for schedule caste, but will be treated as an Page 21 of 36 C/SCA/3099/2005 CAV JUDGMENT open candidate. This principle will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of seniority-cum- suitability. 9. In the judgment of the Punjab & Haryana High Court in case of Lachhmi Narain Gupta & Ors. Vs. Jarnail Singh & Ors., in CWP No.23218 of 2009 dated 15.07.2011, relied upon by Learned Senior Advocate for the petitioners, the Punjab & Haryana High Court was faced with almost identical fact situation, where petitioners, who was Income Tax Inspectors belonging to general category had challenged the order of the Central Administrative Tribunal, Chandigarh, which had issued direction for consideration of cases of the Income Tax Inspectors belonging to scheduled caste category for promotion to the post of ITO on the basis of their own merit, which resulted in consumption of general category posts as against the roster point promotions, which resulted in shrinking of general category seats of Inspectors and more posits becoming available to the reserved category. The Punjab & Haryana High Court took into consideration all the judgments of the Apex Court in the field, including position of law on the 85th constitutional amendment as well as judgment of the Apex Court in case of M.Nagraj Vs. Union of India, reported in Page 22 of 36 C/SCA/3099/2005 CAV JUDGMENT (2006) 8 SCC 212 and observed in paras-34 to 39 as under:- “34. Subject to the above limitations, the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000, the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001, have been upheld in M. Nagaraj’s case (supra). It has also been observed that the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. Article 16(4) enables a State to provide for reservation in cases where it is satisfied on basis of quantifiable data that there exists backwardness of a class and inadequacy of representation in employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for the Court to decide as long as the parameters mentioned in Articles 16(4) are maintained. 35. On the question of necessity of quantifiable data it has been held that reservation is necessary for transcending caste and not for perpetuating it. Reservations has Page 23 of 36 C/SCA/3099/2005 CAV JUDGMENT to be used in a limited sense otherwise it will perpetuate casteism in the country. The extent of reservation depends on facts of each case and in this regard the State concerned would have to show in each case the existence of backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. If in a given case Court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down. The need to balance the context specific independent variable requirements of equity, justice, and merit/efficiency on the basis of quantifiable date in each case, the conflicting claim of individual rights under Article 16(1) and the preferential treatment given to a Backward Class has to be balanced. Therefore, in each case a contextual case has to be made out depending on different circumstances which may exist Statewise and the problem has to be examined on the facts of each case. Wheat needs to be found is a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. 36. In paras72, 73, 79, 81 and 102 of the judgment in M. Nagaraj’s case (supra), their Lordships’ have dealt with the ‘catchup’ rule, which had been explained in detail in para 26 of the judgment in Virpal Singh Chauhan’s case (supra). As per the ‘catchup’ rule a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidates in the feeder grade, shall Page 24 of 36 C/SCA/3099/2005 CAV JUDGMENT necessarily be junior in the promoted category to such general category candidates. The ‘catch-up’ rule is not imlicit in Articles 16(1) to (4). The concept of the ‘catch-up’ rule and ‘consequential seniority’ are not constitutional requirements or limitations. They are judicially evolved concepts to control the extent of reservation, derived from service jurisprudence. They are not constitutional principles so as to be beyond the amending power of parliament. Principles of service jurisprudence are different from constitutional limitations. They are not axioms like, secularism, federalism, etc. Nor can these concepts be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. it cannot be said that by insertion of the concept of ‘consequential seniority’ the structure of Article 16(1) stands destroyed or abrogated. Obliteration of these concepts or insertion of these concepts do not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. hence, the same cannot bind the amending power of Parliament and is not beyond the amending power of Parliament. However, whether weightage of earlier accelerated promotion with consequential seniority should be given or not are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and representation in public employment and overall efficiency of services. 37. The matter has been again considered by Page 25 of 36 C/SCA/3099/2005 CAV JUDGMENT their Lordships’ of Hon’ble the Supreme Court in the case of Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, wherein the aforesaid principles have been reiterated. Placing the whole history, Hon’ble the Supreme Court has held that the principles laid down in M. Nagaraj’s case (supra) are binding. It has been found that the concepts of ‘catch-up’ rule and ‘consequential seniority’ are judicially evolved concepts and were not to be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament, however, the requirement of Articles 16(4A) and 16(4B) would have to be maintained and the tests indicated therein would have to be satisfied, which could only be achieved after an inquiry as to identity. In cases where no exercise was undertaken in terms of Article 16(4A) to acquire quantifiable data regarding the inadequacy of representation of SC/ST communities in public services, the Courts have rightly quashed the notifications. 38. When the principles laid down in the case of M. Nagaraj (supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated 21.1.2009 and 10.8.2010, it becomes clear that no survey has been undertaken to find out inadequacy of representation in respect of members of the SC/ST in the services. The aforesaid fact has been candidly admitted in the written statement filed by respondent Nos.5 and 6. The aforesaid Page 26 of 36 C/SCA/3099/2005 CAV JUDGMENT fact has also been conceded by the respondent- Union of India in the communication dated 15.9.2010. In para (iv) of the aforesaid communication it has been stated that no exercise was carried out to assess the inadequacy of representation of SC/STs in the services under the Government of India before issue of instructions dated 31.1.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffers from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagaraj’s case (supra) as well as in Suraj Bhan Meena’s case (supra). 39. The net result is that no reservation in promotion could be made in pursuance to office memorandum dated 2.7.1997. We are not dealing with many other contentions raised by the learned counsel for the petitioners for the reason that the core issue going to the roots of the matter has been determined in their favour and such a necessity is obviated.” 10. The Court is informed that the judgment of the Punjab & Haryana High Court in case of Lachhmi Narain Page 27 of 36 C/SCA/3099/2005 CAV JUDGMENT Gupta (supra) is carried before the Apex Court where SLP is filed and is pending. Nothing is brought on record to suggest that the implementation is stayed. Moreover, the Apex Court has also referred the case of M.Nagraj (supra) to a Constitutional Bench for reconsideration. 11. In case of R.K.Sabharwal (supra), which is still a good law, the Supreme Court in paras-4 and 5 held as under:- “4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete for the non- reserve posts and in the event of their appointment to the said 356 posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a con- clusion that the Page 28 of 36 C/SCA/3099/2005 CAV JUDGMENT backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the per- centage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been ap- pointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/ Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despitr any number of appointment/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in Page 29 of 36 C/SCA/3099/2005 CAV JUDGMENT addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same. 5. 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/Schedule Tribes 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 Caste and Backward Classes. In a lot of100 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 Caste. To illustrate, first post in a cadre must go to the Scheduled Caste 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 Page 30 of 36 C/SCA/3099/2005 CAV JUDGMENT impugned instructions is achieved. In other words, in 357 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 roster thereafter. The \"running account\" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed per- centage 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 representation 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 populations The numerical quota of posts is not 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 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 arc 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 Page 31 of 36 C/SCA/3099/2005 CAV JUDGMENT roster. For example the Scheduled Caste persons holding the posts at Roster - points 1, 7, 15 retire then these 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 them shall neither be short-fall nor excess in the percentage of reservation.” 12. The Supreme Court also therefore came to conclusion that the likely result if the roster is permitted to operate against the vacancies arising, taking example of 100 posts in a cadre which are filled in accordance with the roster in the forth coming years, the position would emerge that the reserved category candidates would be holding increased number of posts against actual reserved posts. This discrepancy cannot be upheld. 13. The Court finds it useful to refer to the judgment of the Apex Court where the Apex Court has dealt with the subject of reservation viz a viz 'inadequacy of representation', 'backwardness' and 'overall efficiency', in the backdrop of several pronouncements of the Apex Court on the subject. The Apex Court examined the subject firstly in the reported judgment in case of B.K.Pavitra & Ors. Vs. Union of India & Ors., reported in Page 32 of 36 C/SCA/3099/2005 CAV JUDGMENT AIR 2017 SC, 820 (B.K.Pavitra-I) and later, in AIR 2019, SC, 2723 (B.K.Pavitra-II). 13.1 In B.K.Pavitra-I, constitutional validity of Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2002 was challenged. The challenge was upheld, holding that while exercising power of Article 16(4A) 'inadequacy of Representation', 'backwardness' and 'overall efficiency' has to be determined. The Act, 2002 was declared ultra virus to Article 14 and 16 on the ground that it did away with 'Catch up Rule'. The State of Karnataka thereafter, carrying out necessary exercise, enacted Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018. The constitutional validity of the Act, 2018 was examined in B.K.Pavitra-II. The challenge to the Act, 2018 failed. The Apex Court found that the defects observed by the Apex Court in B.K.Pavitra-I were cured, thereby reiterating the requirement of ascertaining the 3- compelling reasons to co-exist for determining reservation in promotions. 14. After due perusal of the record, the Court finds that the Department has not undertaken the exercise Page 33 of 36 C/SCA/3099/2005 CAV JUDGMENT of finding out a candidate of reserved category, scheduled caste or scheduled tribe, who has entered into the feeder cadre as a reserved category candidate upon availing benefit available to the reserved candidate and thereafter treating them to be as such at the time of promotion to the cadre of superintendent. In the opinion of this Court, such exercise was contemplated at the time of preparation of the seniority list, which is the subject matter of the present case. 15. It is apparent that at the time of passing impugned orders of promotions in the post of Superintendent, the guidelines laid down in the judgment in case of R.K.Sabharwal (supra) were already there. The judgment in case of R.K.Sabharwal (supra) is still a good law. Accordingly, the Department ought to have undertaken the exercise to bring the orders of promotions in consonance with the judgment in case of R.K.Sabharwal (supra). The Court is of the view that the findings of the Central Administrative Tribunal that the promotion orders impugned herein are in conformity with R.K.Sabharwal (supra) judgment is erroneous. 16. The Court has also examined the impugned order of the Central Administrative Tribunal and from the reasoning assigned, the Court finds that the findings given by the Tribunal regarding promotion order has Page 34 of 36 C/SCA/3099/2005 CAV JUDGMENT followed the principles laid down in case of R.K.Sabharwal (supra), comes out to be erroneous on facts. The Tribunal has also missed on the count that the Department was obliged to undertake exercise of ascertaining entry of the reserved candidates against reserved seats in the feeder cadre, which is not borne out from the facts of this case. 17. In view of the aforesaid discussion, the impugned judgment and order dated 09.09.2004 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No.529 of 2002 deserves to be quashed and set aside. It is accordingly quashed and set aside. The Department is directed to undertake exercise as contemplated hereinabove and prepare the list afresh of the candidates to the post of superintendent. The petition is allowed accordingly. 17.1 The Court is mindful of the fact that direction herein is likely to affect the seniority list as the exercise for seniority list was undertaken in the year 2002 and thereafter the condition has prevailed for 15 long years, we adopt the method adopted by the Apex Court in the judgment in case of Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra & Ors., reported in (1990) 2 SCC, 715, where the Apex Court was deciding upon seniority in quota for Page 35 of 36 C/SCA/3099/2005 CAV JUDGMENT direct recruits and promotees. In conclusion, one direction given is as under:- “44. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.” 17.2 Adopting the aforesaid rationale and the services rendered by reserved category candidates in respective cadre since 17 years, we are of the view that interest of justice will be served if directions contained in this judgment are made with prospective effect. 18. Rule is made absolute. No order as to costs. 19. After pronouncement of the judgment, learned Advocate Ms.Vidhi J.Bhatt requests for stay of this judgment and order for some time. Considering the facts and circumstances, request is granted. This judgment and order is stayed for a period of four weeks from today. Sd/- (ANANT S. DAVE, J) Sd/- (A.Y. KOGJE, J) SHITOLE Page 36 of 36 "