N. P. Singh, J. - (1.) These appeals have been filed against the judgment of a Full Bench of the Punjab and Haryana High Court dated 23-8-1989 dismissing three writ petitions (C. W. P. No. 2190/88, C. W. P. No. 7860/87 and C. W. P. No. 7861/87) filed on behalf of the appellants. The petitioners in C. W. P. No. 2190 of 1988 were working on the posts of Superintendent Grade I, Superintendent Grade II and Assistant, in Punjab Civil Secretariat, Chandigarh. They were members of the cadre of Punjab Civil Secretariat. The petitioners in C. W. P. No. 7860 of 1987 were working on the posts of Under Secretaries/Superintendent Grade I, in the Punjab Civil Secretariat, Chandigarh, and were members of the cadre of Punjab Civil Secretariat. The petitioners in C. W. P. No. 7861 of 1987 were working against the posts of Deputy Secretaries/Under Secretaries in the Punjab Civil Secretariat and were members of State Service Class-I. The Primary grievance made in all these writ petitions on behalf of the different petitioners, was that the policy for reservation in respect of candidates belonging to Scheduled Castes and Backward Classes, was being implemented by the State Government in a manner, because of which the members belonging to the Scheduled Castes and Backward Classes were holding posts in excess to their reservation quota. This was not only prejudicial but detrimental to the right of the petitioners for being considered for promotion to higher grade. Several other similar writ petitions had also been filed on behalf of others which were heard together and were dismissed by the common impugned judgment.
(2.) The State has been issuing from time to time Government Orders in respect of reservations for members of Scheduled Castes and Backward Classes. One such order was issued on 19-10-1949, making 15% reservation of posts in favour of Scheduled Castes to be filled up from amongst candidates who held minimum qualification for the posts. By another order dated 19-8-1952, the percentage of 15% was increased to 19%. By yet another order, dated 29-1-1959 roster system was introduced for implementing the policy of reservation. By an order dated 14-1-1964 reservation was fixed in all classes of posts i. e. I, II, III and IV. However, by an order dated 23-8-1966, the State withdrew reservation for Class I and II posts but the reservation in respect of Class III and IV posts were increased to 20%. On 19-7-1968 a clarification was issued by the State Government saying that in direct recruitment the roster points shall be taken as seniority points for Scheduled Castes. By an order dated 4-5-1974, reservation was reimposed even in respect of Class I and II posts and it was fixed at 16% (14% for Scheduled Castes and 2% for Backward Classes). This reservation was to be provided by applying the roster system. The reservation of 14% posts for Scheduled Castes was the substantive provision and the roster was a machinery provision. By an order dated 6-6-1974, the quota of reservation was increased to 25% for Scheduled Castes and 5% for Backward Classes w. e. f. 6-3-1974. On 7-1-1980 the State issued an order, the relevant part whereof says:- ".... it is made clear that those scheduled castes/Backward classes employees who get appointed/promoted against reserve points on the basis of their merit/seniority should not be counted for the purpose of reservation but that reserve point should be carried over to the next point on the roster and filled by a candidate/employee belonging to Scheduled Castes/Backward Classes so that the deficiency of representation in service is made up." The aforesaid Government order dated 7-1-1980 was considered by the High Court in the case of Joginder Singh Sethi v. Punjab Government, (1982 (2) SLR 307). The operative part of the judgment of the High Court is: "For working out this percentage the promtees/appointees in this cadre whether on the basis of reservation or otherwise, have to be taken notice. In the light of this conclusion of ours we hold that any promotions of the members of the Scheduled Castes and Backward Classes made beyond prescribed limit on the basis of above noted instructions of the Government are void and non est". Civil Appeal Nos. 3326-27 of 1982, which have been heard along with the present appeal is against the aforesaid judgment of the High Court in the case of Joginder Singh Sethi, (supra). This Court in those appeals on 8-2-1983 passed an order of stay saying: "We made it clear by our order dated 19-10-82 that there will be an interim order of stay against reversion of any of the person already appointed on the basis of instructions issued by the Govt. of Punjab which have been held to be invalid by the judgment of the High Court impugned in these appeals and writ petition. We do not think that there is any doubt in regard to what we said, namely that no Scheduled Castes and Scheduled Tribes employees who has already been appointed or promoted pursuant to the instructions of the Government of Punjab will not be reverted but so far as the future appointments/promotions are concerned these shall be made according to the judgment of the High Court and these will be ultimately subject to the result of the writ petition and appeals. If the Govt. makes any appointment/promotions in accordance with the judgment of the High Court the State Govt. will make it clear in the letter of appointment/promotion that the appointment/promotion is subject to the result of the writ petition and appeal so that there is no difficulty in future in case the High Court judgment is reversed by this Court......." So far the appellants are concerned, they took a stand before the High Court in writ petitions filed on their behalf that when the reservation quota was complete, the Scheduled Castes candidates should not further be appointed/promoted. It was said on their behalf that Scheduled Castes and Backward Class candidates who compete on merit, should also be adjusted against the quota reserved for them, otherwise there shall be increase in the percentage of the quota reserved for them. The writ petitions were referred to a Full Bench of the said High Court. Before Full Bench it was also submitted that Scheduled Castes and Backward Class candidates cannot be considered for appointment/promotion against general category posts in a cadre. The Full Bench however said in the case of Jaswant Singh v. The Secretary to Govt. of Punjab, (1989) 4 SLR 257 that non-consideration of Scheduled Castes candidates against general category posts for purpose of appointment or promotion will be hit by Articles 14, 15 and 16 of the Constitution. It also observed that there was no bar to the appointment/promotion of larger number of members of Scheduled Castes. The member of the Scheduled Castes, appointed on merit or promoted on seniority-cum-fitness basis shall not be taken into consideration for working out the reserved percentage. The High Court also said that roster points were seniority points. In results the Full Bench overruled the view taken by the same High Court in the aforesaid Joginder Singh Sethi's case, 1982 (2) SLR 307. The conclusion of the Full Bench is: "Thus, while non-Scheduled Caste candidates are not eligible for appointment or promotion to the reserved posts at the reserved point, the Scheduled Castes candidate are eligible to compete with the general category candidate in respect of the posts which are not reserved and also claim promotion to the same if they are otherwise eligible by virtue of seniority and merit and merely because they happen to be members of the Scheduled Caste, they cannot be deprived of their right to compete for appointment or promotion on the basis of seniority and merit that is constitutionally protacted under Articles 14 and 16 (1) (2) of the Constitution even when the total number of Scheduled Castes members in that cadre holding posts are more than the prescribed percentage. Secondly, where Scheduled Caste/Backward Class secure an appointment against "a reserved point" on the basis of his own merit and seniority and not on the basis of only his being Scheduled Caste/Backward Class, such candidate should not be counted while calculating the percentage of reservation meant for Scheduled Caste/Backward Class, but that reserved point should be carried over to the next point on the roster and filled by candidates belonging to Scheduled Castes/Backward Classes. Thirdly, Scheduled Castes/Backward Classes candidates who are appointed or promoted on the basis of appropriate reservation under the prescribed roster point shall be assigned seniority as per the point reserved for them in the relevant roster irrespective of their position in the general merit list (in case of direct recruitment in Class I, II, III and IV services. In other words, roster points are the seniority points in respect of Scheduled Castes/Backward Classed. In the case of Scheduled Castes/Backward Classes merit/seniority, he will retain his original higher seniority position secured by him. The seniority cannot be ambivalent and fluctuating. It was further said: "We have already held that reservation does not mean that the Scheduled Castes candidates are deprived from being considered for promotion to the general category seats on the basis of seniority-cum-merit or on the basis of selection on merit. It also not possible to invoke the principle of reservation not exceeding 50 per cent on the total strength as reaching above 50 per cent is not by reason of any such reservation as such it so happened that the candidates who competed for the selection belonged to a particular category and all of them were found to be suitable on merit and ability. It has been pointed out in the counter statements that on a number of occasions previously all these posts were held by non-Scheduled Castes. But if two Scheduled Castes had already come purely on merit it is, to be taken as a matter gratifying and not to be frowned upon. It is only if reservation in effect amounted to an unreasonable percentage that could if at all be questioned. The percentage of reserved candidates in this case is only 14 and if the Scheduled Castes candidates have come and occupied that position in that cadre on account of their own merit and ability, the reservation itself could not be questioned and they could not be deprived of their right to be considered for selection on the basis of merit and ability. We are, therefore, unable to accept the contention of the learned counsel for the petitioners that the Scheduled Castes candidates cannot be considered for the vacant post". On the aforesaid findings the different writ petitions were dismissed by a common judgment as already referred to above.
(3.) It may be mentioned that some of the questions raised in the cases of Joginder Singh Sethi (supra) and Jaswant Singh (supra) came up for consideration before a Constitution Bench in the case of R. K. Sabharwal v. State of Punjab, (1995) 2 SCC 745, on a writ petition filed by members of the Punjab Service of Engineers (Class I) in Irrigation Department, belonging to the general category challenging the policy of reservation in connection with promotion to higher posts. The respondents to the said writ petition were members of the Scheduled Caste. On behalf of the petitioners in that case a stand was taken that the (i) object of reservation was to provide adequate representation to the Scheduled Castes/Tribes and Backward Classes in service and if more than 14% of Scheduled Castes candidates are appointed/promoted in a cadre on their own merit/seniority by competing with general category candidates then the purpose of reservation in the said cadre having been achieved the Government instructions in respect of reservation would become inoperative and (ii) once the posts earmarked for Scheduled Castes/Tribes and Backward Classes on the roster are filled, the reservation is complete and the roster cannot operate any further and has to be stopped. Any post falling vacant, in the cadre thereafter is to be filled from category reserved or general - due to retirement etc., of whose members the post fell vacant. In respect of the first question mentioned above, it was said: "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 reserved 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 posts their number cannot be added and taken into consideration for working out the percentage of reservation." It was further said: "The fact that considerable number of members of a Backward Class have been appointed/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. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition." In respect of the second question as to whether once the posts earmarked for Scheduled Castes/Tribes and Backward Classes on the roster are filled and the reservation is complete the roster can operate any further, the Constitution Bench said: "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 operative 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 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 Caste and thereafter the said class is entitled to 7th, 15th 22nd and onwards up to 31st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by impugned instructions is achieved. In other wards, 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 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 percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. It was said thereafter that vacancies arising in the cadre after the operation of the roster and the "running account" comes to an end, they have to be filled up from amongst category to which posts belonged in the roster, it was illustrated by saying: "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 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". It was also said that the operation of a roster for filling the cadre strength by itself ensures that reservation remains within 15% limit. It was demonstrated by an illustration as to what shall be the consequences if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled by saying: "We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100-point roster, 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with roster by 31-12-1994. Thereafter in the year 1995, 25 general category persons (out of 84) retired. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserved category and the general category shall always be maintained." Reliance was also placed on the judgment of nine judge Bench in the case of Indra Sawhney v. Union of India, (1992) 3 Suppl. SCC 217 at page 737 para 814 where it was said: "Take a unit/service/cadre comprising 1000 posts. The reservation favour of Scheduled Tribes, Scheduled Castes and other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i. e. 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all Backward Classes reaches 500, i. e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age-barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by class (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be". The controversy which has been raised in the present appeals is:whether, after the members of Scheduled Castes/Tribes or Backward Classes for whom specific percentage of posts have been reserved and roster has been provided having been promoted against those posts on the basis of 'accelerated promotion' because of reservation of posts and applicability of the roster system, can claim promotion against general category posts in still higher grade on the basis of their seniority which itself is the result of accelerated promotion on basis of reservation and roster The learned counsel, appearing for the appellants, took a clear and definite stand that they have no grievance or objection if members of the Scheduled Castes or Backward Classes, for whom reservation has been made and roster has been prescribed even in the promotional posts, get accelerated promotions against those posts. But the question is:whether, on this basis such 'accelerated promotees' from lower grade to higher grade in service can claim promotion against the general category posts in still higher grade of service merely because they had been promoted before the general category candidates, who were senior to them in the lower grade and have been promoted later in their turn In other words, is the benefit of extra seniority obtained by a reserved category candidate by earlier promotion under the reservation policy to the reserved post, also available to him for competing with his otherwise senior general category candidate, who got promoted to the same cadre later only because of the reservation policy, for promotion to a general category post also in the next higher grade. ;