- (1.) R. A. Sharma, J. Petitioner is holding the post of Chief Veterinary Officer, which is a Class II post and the next post to which he could look for ward is Class I post, which includes the post of Deputy Director. The strength of Class I service, according to the petitioner, is 61, whereas according to some of the respondents, it is 62. The quota reserved for Scheduled Castes for promotion is 18% and for Scheduled Tribes, it is 2%. It is admitted case of both the parties that 12 Scheduled Castes candidates have already been promo ted to Class I posts from the quota reserved for them. In this manner the Scheduled Caste candidates are already having 18% posts of Class I. In this cadre 22 posts are vacant on account of which respondents have constituted a Departmental Promotion Committee (hereinafter referred to as the D. P. C.) for selecting the candidates for promotion. The D. P. C. has ear-marked 4 out of 22 vacancies for Scheduled Castes candidates and the remaining 18 vacancies are to be filled by the candidates of general category. It also appears that the D. P. C. has already made selection of 4 Scheduled Castes candidates, who have been arrayed as respondents to this writ petition. Petitioner has filed this writ petition for writ of madamus directing the respondents not to implement the recommendation of the D. P. C. held on 17- 5*1994, so far as it relates to the selection of 4 Scheduled Caste candidates for promotion to 4 Class I posts. Prayer for quashing the Government Order dated 30-11-1991, which provided for roster system, has also been made. This Court has granted interim order in this petition.
(2.) RESPONDENTS have filed counter-affidavits and the petitioner has filed rejoinder affidavit in reply thereto. We have heard learned counsel for the parties. Learned counsel for the petitioner has raised four contentions, namely, (i) there cannot be any reservation in promotion ; (ii) in any case there cannot be reservation in promotion when promotion is to be made on the basis of seniority subject to rejection of unfit ; (iii) no appointment/promo tion of Scheduled Caste candidates can be made in excess of 18% of the total strength of the cadre unit; and (iv) the Government Order dated 30-11-1991, providing for continuance of roster even after the quota of 18% for Scheduled Caste is complete, is illegal. Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477, has laid down that reservation in promotion is not permissible under law. However, his Lordship Hon'ble B. P. Jeevan Reddy, J. has further laid down that wherever reservations are provided in the matter of promotion, such re servation will continue in operation for a period of five years from the date of the judgment. Relevant extract from his Lordship's judgment is as under : "however, taking into consideration all the circumstances, we direct that our decision on this question shall operate only prospectively and shall not affect the promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion be it Central services or State services or for that matter services under any corporation, authority or body falling under the definition of "state" in Article 12- such reser vations shall continue in operation for a period of five years from this date. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue to relevant Rules to ensure the achievement of the objective of Article 16 (4 ). " Although Hon'ble B. P. Jeevan Reddy, J. has given the judgment foe himself and on behalf of Hon'ble M. H. Kania, CJ. Hon'ble M. N. Venkatachaliah, J. and Hon'ble A. M. Ahmadi, J. but on the question of reservation in promotion Hon'ble A. M. Ahmadi, J. (as his Lordship then was) was of the opinion that this question did not arise for consideration in that case and hence need not be answered. As such the judgment of Hon'ble Jeevan Reddy, J. on the question of continuance of reservation in promotion is for himself and on behalf of the then Chief Justice, Hon'ble Mr. Justice M. H. Kania and Hon'ble M. N. Venkatachaliah, J. Hon'ble Mr. Justice Pandian, J. shared the view of Hon'ble Jeevan Reddy, J. on this question. Thus the law laid down by Hon'ble Jeevan Reddy, J. regarding continuance of the policy of reservation in promotion for a period of five years is for and on behalf of four out of nine Hon'ble Judges, who constituted Bench. A Division Bench of this Court in Ashok Kumar Gupta v. State o/u. P. , 1993 ALJ 1341, has held that Hon'ble Supreme Court in the case of Indra Sawhney (supra) has laid down that there cannot be any reservation in promotion. It was further held that the direction issued by four Hon'ble Judges' regarding continuance of reservation in promo tion for a period of five years are the directions under Article 142 of the Constitution and are, as such, binding. Therefore, wherever there was reservation in promotion in service it will continue for a further period of five years from the date of the judgment in Indra Sawhney's case, (16-11-1992 ). Although we agree with the learned counsel for the petitioners that there can not be reservation in promotion but if there was reservation in promotion in the service in question, same is liable to continue for a period of five years, which is to be counted from 16-11-1992 unless the Government withdraws/ cancels such a reservation earlier.
(3.) THE Government of U. P. vide Government Orders dated 20-8-1974, 27-12-1974 and 5-7-1984 has provided for reservation in promotion where promotion is to be made on the basis of seniority subject to rejection of unfit. Rule 7 provides for promotion to Class I posts of Deputy Director or the posts equivalent to it on the basis of seniority subject to rejection of unfit. THE Government Orders providing for reservation in promotion made on the basis of seniority subject to rejection of unfit, are thus fully applicable to the instant case. THEse orders will continue for a period of five years to be counted from 16-11-1992. THE first contention of the learned counsel has, therefore, to be rejected. The second contention of the learned counsel is that when promotion is to be made on the basis of seniority question of making reservation does nut arie. In support of this contention reliance has been placed on para graph 103 of the judgment delivered by Hon'ble B. P. Jeevan Reddy, J. in Indra Sawhney's case, relevant extract from which is reproduced below : "reservation in the case of promotion is normally provided only where the promotion is by selection, i. e. , on the basis of merit. For, if the promotion is on the basis of seniority, such a rule may not be called for, in such a case the position obtaining in the lower cate gory gets reflected in the higher category (promotion category) also. Where, however, promotion is based on merit, it may happen that members of backward classes may not get selected in the same proportion as is obtained in the lower category. In view to ensure similar representation in the higher category also, reservation is thought of even in the matter of promotion based on selection. ";