K. RAMASWAMY, J. - (1.) LEAVE granted.
(2.) WE have heard learned counsel on both sides. This appeal by special leave arises from the Division Bench Judgment of Punjab and Haryana High Court, made on 5/11/1996 in C. W. P. No. 8755/96. The appellants general candidates, viz., Jagdish Lal, Ram Dayal and Surinderjit Kapil, challenged the promotion of the Scheduled Caste and Scheduled Tribe candidates (for short, the 'reserved candidates'), viz., Ram Asra, H. S. Hira, Sant Lal and Ajmer Singh, as Superintendent in Class-III Service of Haryana Government. Respective appointments of the appellants and the respondents have been reflected in the judgment of the High Court as under ;- JUDGEMENT_538_6_1997Html1.htm In the lowest cadre post, i. e., Clerks and Assistant, in the Education Department, admittedly, the appellants were senior to the respondents. But as Deputy Superintendents, Respondents Nos. 1 and 2 were promoted respectively on 26/05/1982 and 27/10/1983, while the appellants were promoted on different dates viz., October 27, 198 7/01/1989 and 2/02/1996. Sixth respondent, Sant Lal was promoted on 4/11/1987, that is prior to the promotion of Surinderjit Kapil. Equally, respondent No. 7, Ajmer Singh also was promoted earlier to Ram Dayal and Surinderjit Kapil on 31/10/1988. While working as Deputy Superintendent, Ram Asra was promoted to the post of Superintendent on 4/09/1987; H. S. Hira was promoted as Superintendent on 27/05/1988, while the first appellant, Jagdish Lal was promoted on 1/04/1990 and Ram Dayal, appellant No. 2 was promoted on 9/08/1991; Sant Lal, respondent No. 6 was promoted on 8/02/1990, that is, prior to the promotion of Jagdish Lal as Superintendent. Equally, Ajmer Singh, 7th respondent was promoted as Superintendent on 1/07/1990, that is, prior to the promotion of second appellant, Ram Dayal on 9/08/1991. While all of them were working as Superintendents, H. S. Hira was further promoted on ad hoc basis w. e. f. 2/02/1996, for a period of 4 months and from 31/05/1996, on regular basis, in his own right, as Registrar (Education) which post is now classified as Class I post. On 4/06/1996, the appellants filed a writ petition claiming that right from the post of Clerk up to the post of Superintendent, the Class III Service of the Education Department, they were senior to the reserved candidates. Though they were promoted on the basis of rule of reservation applying the 100 point roster maintained by the Government, they stole a march over the appellants who were being members of the same Class III Service. They further claimed that though the reserved candidates had got promotion to the different posts earlier to them, the appellants still were entitled to be senior to them for the purpose of promotion to Class I posts. As a consequence, they were entitled to be considered for promotion before consideration of the reserved candidates including H. S. Hira, the fifth respondent as Registrar (Education). The sheet anchor of their case was the decision of this Court in Ajit Singh Januja v. State of Punjab, (1996). (2) JT (SC) 727 : (1996 AIR SCW 1996). The High Court dismissed the writ petition inter alia on the ground of abnormal delay in challenging the promotion of the reserved candidates to the post of Asstt. Dy. Superintendents and Superintendents. It observed that though the reserved candidates were promoted on different dates as Superintendents etc. earlier to the appellants, they having become members of the Service in the lower cadres earlier to the appellants, were entitled to be considered for further promotion to the higher ladders of the Service; their promotions are not vitiated by any error of law. The Haryana Education Deptt. (State Service Class II) are governed b the Haryana Education Deptt. (State Service Group B) rules, 1980 (for short, the 'Rules'). Rule 11 of the Rules deals with seniority. By operation thereof the reserved candidates become senior to the appellants in the respective cadres. Fifth respondent, H. S. Hira was promoted to Group 'B' Class-I Service in his own right as a general candidate as there was no reservation. Therefore, their promotion is valid in law. It was also held that even otherwise, since the promotions of the reserved candidates came to be made prior to the decision in Sabharwal's case, (1995 AIR SC 1371), they could not be declared invalid. The High Court has pointed out that "Here it is important to mention that as on the date of promotion of respondent No. 4 on the post of Superintendent, the petitioners had not been promoted even as Deputy Superintendents. Similarly, as on the date of promotion of respondents Nos. 4, and 5, the petitioner No. 2 had not been promoted as Deputy Superintendent and so far as petitioner No. 3 is concerned, he came to be promoted as Deputy Superintendent after almost 8 years and 6 months of the promotion of respondent No. 4; after 7 years and 9 months of the promotion of respondent No. 5; and after almost 4 and 5 years and 6 months of the promotion of respondents Nos. 6 and 7 as Superintendents. Thus the petitioners cannot have any claim to be assigned seniority over and above respondents No 4 to 7 as Superintendents." The High Court negatived the contention that the appellants were denied of right to equality on account of application of rule of reservation and roster point violating Articles 14 and 16 of the Constitution. The High Court further pointed out thus : "A careful reading of the various decisions of the Apex Court and the decision of this Court, shows that in R. K. Sabharwal's case, their Lordships were primarily concerned with the interpretation of the policy circulars issued by the Government of Punjab regarding reservation in favour of the Scheduled Castes and Backward Classes and operation of the roster system. In Virpal Singh Chauhan' case, the Apex Court was dealing with circulars issued by the Railway Board with particular reference to the letter dated 31/08/1982 and held that the word "Panel" used in that circular meant the panel prepared by the recruiting authority at the time of initial entry in the service and that the seniority of the employees in the higher grades must also be determined with reference to their panel position. This very principle has been reiterated in Ajit Singh's case in which circular issued by the Government of Punjab and the judgment of the Full Bench case in Jaswant Singh's (supra) came up for consideration. The Division Bench which decided Madan Lal's case simply applied the observations made in the three decisions of the Supreme Court and held that reserved categories employees have no right to be assigned seniority on the promoted posts over and above the general category employees who were senior in the lower cadre and who got promotion in the next higher post on a later date. However, in Akhil Bhartiya Soshit Karamchari Sangh's case (supra) their Lordships clarified that the principles laid down in R. K. Sabharwal's case and Virpal Singh Chauhan's case (supra) will operate prospectively and not retrospectively. In our opinion, none of these decisions is of any help for interpreting rules relating to seniority which have been extracted above. In none of the decisions, their Lordships of the Supreme Court interpreted a rule like the one which is under consideration before us. No doubt in Madan Lal's case a similar rule has been referred to but instead of interpreting that rule the Division Bench has limited its consideration in the context of the observations made by the Supreme Court in Ajit Singh's case (supra). We are of the opinion that in view of the clear language used in the substantive part of Rule 11 and its first proviso, seniority will have to be determined in different cadres and categories of posts because the services governed by the Rules of 1974 and 1980 consist of different cadres. Posts of Registrar, Assistant Registrar (Examinations), Budget Officer and Superintendents constitute different cadres, and therefore, seniority will have to be determined in each cadre separately. Similarly, the post of Deputy Superintendents, Assistants and Clerks recruitment to which is governed by '1974 Rules' constitute different cadres and seniority will have to be determined separately in each of these cadres and the general principle laid down in Ajit Singh's case cannot be applied for the purpose of determination of seniority in a case like the present one. On the basis of above discussion, we hold that :- (i) the writ petition deserves to be dismissed on the ground of delay and laches in so far as challenge to the promotion of the respondents as Superintendents/Registrar is concerned; (ii) the principles laid down in Virpal Singh Chauhan's case (supra) and Ajit Singh's case (supra) will operate prospectively and will not affect promotions of reserved category candidates which were made prior to the decision in R. K. Sabharwal's case (supra) or Virpal Singh Chauhan's case (supra); (iii) the decision in Virpal Singh Chauhan's case and Ajit Singh's case cannot be applied in a case like the present one where the seniority is required to be determined in different cadres and categories of posts. In the absence of any challenge to the vires of Rule 11 the petitioners cannot claim fixation of their seniority above the Respondents Nos. 4 to 7 who were promoted as Deputy Superintendents earlier than the petitioners."
(3.) SHRI Rohtagi learned counsel for the appellants, contended that in all the posts/grades starting from that of Clerk to Superintendent in Class III Service and the post of Budget Officer, Assistant Registrar and Registrar in Group 'B' Class I Service by operation of ratio of Ajit Singh case, (1996 AIR SCW 1196) and Union of India v. Virpal Singh Chauhan, (1965) 6 SCC 684 : (1995 AIR SCW 4309), seniority is required to be determined keeping the seniority of the general and reserved candidates in the lower grade/cadre in tact as all the posts are of the same Service. As soon as the general candidates get promoted to the higher cadre, the inter se seniority of the general candidates and the reserved candidates is required to be redetermined on the basis of their inter se seniority in the feeder grade/cadre. That was the view taken by this Court in Veerpal Singh Chauhan case. Even though the reserved candidates were promoted earlier to the general candidates, the inter se merit between the general candidates and the reserved candidates in Group 'B' Class I Service should be redetermined. The promotion is required to be given to Class I Service on that basis. Promotion at various levels in Class II Service is also, accordingly, required to be given and the seniority determined. As soon as the general candidates get promoted, even though later to the reserved candidates, they have right to have their seniority restored. As a consequence, the general candidates are eligible to be considered for promotion in higher posts before consideration of the reserved candidates in Class I Service treating all of them as general candidates since for the fist time the inter se rights are being considered in Class-I Group 'B' Service. This interpretation given in Chauhan's case, (1995 AIR SCW 4309) and Ajit Singh's case, (1996 AIR SCW 1196), is consistent with the principle laid down in Articles 14 and 16(1) of the Constitution granting equality of opportunity to both the general as well as the reserved candidates. The absence thereof would negate the right to equality to general candidates violating Articles 14 and 16(1) of the Constitution. The mere delay in filing the writ petitions cannot be made the base to deny the relief to the general candidates. The right to equality being a constitutional mandate, as and when the right is required to be determined, the Court has to consider the facts of each case and decide it on merits. The High Court, therefore is wrong in law. Shir Prem Malhotra, learned counsel for the State, contended that whatever be the earlier legal position, after the judgment of Ajit Singh's case, the Government re-examined the matter and issued proceedings restoring the seniority of the general candidates in their respective feeder posts/cadres from which reserved candidates came to be promoted. The direction, it is contended, is consistent with and is in implementation of the law laid down by this Court. The High Court, therefore, is not right in refusing to grant the relief to the appellants. SHRI K. S. Chauhan, learned counsel for the reserved candidates, contended that under Rule 11 of the Haryana Education Department Class III Service Rules, 1974 (for short, the "1974 Rules") and Rule 11 of the Rules provide for determination of seniority of the employees in the said Service. The Service as per 1974 Rules consists of various cadres, starting from Clerks to Superintendents in the Class III Service. Under 1980 Rules, the Gazetted Cadre consist of Budget Officers, Assistant Registrar (Education) and Registrar (Education) all of which constitute Class I Service. Rule 11 of the respective Rules is a substantive rule creating right to seniority. The moment the officer is appointed to the service/cadre on putting probation, on successful completion of the probation period and on being duly declared, they cease to be the members of the feeder cadre from which they came to be promoted, As and when the vacancies arise in the posts in the respective cadres as per the roster point, the candidates, whether general or reserved, are required to be considered for promotion and duly promoted in accordance with the existing Rules. They became members of the Service in the respective cadres of Class III or Group B Class I Service. The moment they started discharging the duties of the posts and on declaration of the successful and satisfactory probation period, they became full fledged members of that Service. They also ceased to be members of the feeding cadre. Therefore, the moment the termination of probation was declared, they ceased to be members of the Service of lower feeder cadre at various levels as cadre officers. The subsequent promotions to the general candidates do not have the effect of denying the seniority secured by the reserved candidates due to their early promotion. Even if promotions to Group 'B' Class I Service are to be made without applying the rule of reservation, the reserved candidates having become senior the general candidates, are entitled to be considered for promotion as per Rules in their own merit. Accordingly, the 5th respondent came to be promoted to the post of Registrar (Education) in his own right. The appellants have no right to claim seniority over the respondents-reserved candidates. He also contended that promotion to the reserved candidates is as member of the Dalits and Tribes as a Class. Constitutional right to equality enshrined under Article 14, the genus, and Article 16(1), the species thereof, provide for protective discrimination in favour of the Dalits and Tribes. Appointment by promotion to a post or Service under the State is a constitutional right given by Article 16(1) or (4A) of the Constitution. Therefore, when the reserved candidates are promoted in accordance with the Rules, applying rule of reservation, and are promoted to posts as per the roster and are appointed to the posts reserved for reserved candidates as per the roster, no unconstitutionality results and it is not discriminatory or arbitrary, violating Article 14 of the Constitution. He also contended that the reserved candidates were promoted long prior to the general candidates in Class III and Group B Class I Service. The writ petition came to be filed after Ajit Singh's case, (1996 AIR SCW 1196). The High Court, therefore, is right in dismissing the writ petitions on the ground of delay as well. In view of the diverse contentions, the questions that arise for consideration are : from what date seniority of reserved or general candidates should be determined: Whether the accelerated promotions given to the reserved candidates to various cadres, applying the rule of reservation, will not ensure to them the seniority from the date of respective promotion? Conversely, whether on the promotions given to the general candidates as per the roster point, the promotions will have the effect of giving them the seniority over the reserved candidates in the respective feeder/promoted cadres? Whether the view taken by the High Court is correct in law? In order to appreciate the contentions, it is necessary to refer to Rule 11 of the 1974 Rules and Rule 11 of the 1980, rules. They read as under : "1974 Rules : rule 11 : The seniority, inter se seniority of members of service shall be determined by the length of continuous service on post in the service; Provided that where there are different Cadres or categories of the posts in service, the seniority will be determined separately for each cadre or category of posts; Provided further that in the case of members appointed by direct recruitment, the order of merit determined by the commission shall not be disturbed in fixing the seniority and candidates recommended earlier shall be senior to the candidate recommended later; Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows : (a) a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer; (b) a member appointed by promotion shall be senior to a member appointed by transfer ; (c) in the case of members appointed by promotion or by transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and (d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member, who was drawing a higher rate of pay in his previous appointment and if the rates of pay drawn are also the same, then by the length of their service in the appointments, and if the length of such service is also the same, the older member shall be senior to the younger member. "1980 Rules' : Rule 11 : Seniority of members of the service : The seniority, inter se of members of the Service shall be determined by the length continuous service on a post in the service; Provided that where there are different cadres or categories of posts in the service, the seniority shall be determined separately for each cadre or category of posts; Provided further that in the case of members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority and candidates recommended earlier shall be senior to the candidates recommended later : Provided further that in the case of two or more members appointed on the same, date, their seniority shall be determined as follows: (a) a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer; (b) a member appointed by promotion shall be senior to a member appointed by transfer; (c) in the case of members appointed by promotion or by transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and (d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member, who was drawing a higher rate of pay in his previous appointment and if the rates of pay drawn are also the same, they by the length of their service in the appointments, and if the length of such service is also the same, the older member shall be senior to the younger member." ;