- (1.) IN this batch of writ petitions (Nos. 10952 of 1988, 496l. of 1987, 2189 of 1988, 2190 of 1988 7806 of 1988 7807 of1987, 7860 of 1981, 7861 of 1987, 444 of 1987 2792 of 1983, 8540 of 3987, 3400 of 1987, 10213 of 1988, and 3182 of 1989), a common question relating to the scope and ambit of the Government orders relating to reservation of posts for Scheduled Castes/tribes in the matter of appointment and promotions in the State Servioes, arises for consideration. The petitioners in all these cases are either employees in the office of the Director, Health Services and Family. Welfare on the office of the Financial Commissioner, Punjab or the Punjab Civil Secretariat or Class. I officers of Punjab Educational Services. The question relates either to the promotion from Assistant Superintendents to Superintendents or from Superintendents Under Secretaries or from Under Secretaries to Deputy Secretaries and in one case promotion to the post of Director in the office of Director, Public Instruction, Punjab.
(2.) BEFORE dealing with the points adumberated, it would be necessary to trace and set out the relevant Government orders relating to reservation of posts for Scheduled Castes/tribes (hereinafter refened to as Scheduled Castes for short, which expression shall, unless the context otherwise requires, include Scheduled Tribes) in the matter of new appointments and promotions. For historical reasons, visualising the difficulties that may have to be encountered in securing to weaker sections of its citizens justice, liberty, equality and fraternity democratic system that allowed the power to go to forward or influential communities, feudal interests and other stronger sections of our society, the Constitution provided safeguards, under various Articles, to protect the weaker sections of the Community and especially providing for the reservation for Scheduled Castes in the matter of appointments and promotions under Article 16 (4) of the Constitution. In fact, the Government even before the adoption of the Constitution took note of that provision in the Draft Constitution while it was under consideration of the Constituent Assembly and decided to give representation to the Scheduled Castes in the Services according to their population and by an order dated October 19, 1949, reserved, pending determination of the exact percentage of Scheduled Caste population in East Punjab. 15 per cent vacancies in a Services for Scheduled Caste candidates subject to their possessing the minimum qualification and suitability for the posts. The percentage was increased to 19 in Government proceedings dated August 19, 1952. In order to ensure to members of the Scheduled Castes their due share in Government services the Government decided to adopt a block system of recruitment based on a formula of rotation and to fix the posts reserved for Scheduled Caste and accordingly in their proceedings dated December 8, 1953, the Government gave a formula of reservation for appointment on the basis of a block of five vacancies. That order provided that the first post in a block of five will have to be reserved for members of Scheduled Caste. The filling up of the other posts was open to all. It further provided that if it was not possible to fill the first reserved vacancy by appointment of a member of the Scheduled Castes, this vacancy may be filled by a non-Scheduled Caste Candidate, in consultation with the Chief Secretary and the reservation Should then be carried on from vacancy to vacancy in the same block until a suitable candidate for one vacancy in the block has been found. If all vacancies in the block are filled by non-Scheduled Castes candidates, the vacancy should be carried over to the second block, and in the second block of five, the first two vacancies are to be filled by Scheduled Caste candidates and if for any reasons even in the second block it was not possible to fill both the reserved vacancies, then one of the two reserved vacancies will have to be carried over to the third block. In other words, not more than one reserved vacancy will be carried over to the next block in any case. In the light of this reservation in a block of five and further instructions dated January 29, 1959, and having regard to the 19 per cent reservation for Scheduled Castes and 2 per cent reservation for Backward Classes, the Government notified the reserved posts or points in a block of 100 vacancies as follows : 1, 6, 11, 16,21,26, 27,31,36,41,46,51,56,61,66,71, 76, 81, 86,91,96. Of these 26th and 27th posts in the 6th block were reserved for Backward Classes. The reservation was increased from 19 per cent to 20 percent for Scheduled Castes candidates subject to the usual conditions relating to minimum qualifications. As we have noticed earlier, these Government orders related only to the new appointments and were not to apply to promotions. Finding that the Scheduled Castes candidates were poorly represented in various Services in the upper grades in the State Government, the Government decided to reserve 9 per cent of the higher posts to be filled by promotions for members of the Scheduled Castes and one per cent for backward classes and vide their order dated January 14, 1964, applied this 10 per cent reservation to be filled by promotion to all State Services including Class I, II, III and IV Posts excepting All India Services. The reservation was to be given effect to by reserving for members of the Scheduled Castes first post in a block of 10 posts. The carry-forward rule as applicable to new appointments is also to be applied subject to the condition that no mote than one vacancy shall be carried over from one block to the next in any case. This instruction contained an important clause which reads as follows : "in case an out of turn promotion has already been given to a candidate belonging to Scheduled Castes/tribes or Backward Classes against a reserved vacancy and then in the same block it happened to be the turn of a candidate belonging to the said Casts/classes for promotion, such candidate should not be ignored on the ground that 10 per cent reservation has already been exhausted. " Doubts having been raised as to whether the reservation of 20 per cent for Scheduled Castes in Government Services at the time of new appointment should be in addition to the posts/vacancies secured by the said class on merit, the Government gave instructions that in case a greater number of candidates belonging to Scheduled Castes and other Backward Classes succeed on merit than the number of posts reserved for them, all of them subject to the number of vacancies available should be considered for appointment
(3.) IN spite of the fact that the instructions issued by the Government in regard to reservation are clear and unambiguos, the Government seem to have been receiving references seeking clarification and finding that in spite of the instructions on the subject from time to time, the representation of Schedules Castes and Backward Classes in the State continued to be inadequate, the Government notified the following instructions in their communication dated July 30, 1970, relevant part of which reads as follows : 'certain references have been received from various quarters seeking clarification as to whether the members of the Scheduled Castes/backward Classes who get selected to particular posts on the basis of merit againt the vacancies meant for the general pool or those who become eligible for promotion to higher posts by virtue of their seniority-cum-fitness may or may not be included in the percentage or reservation meant for them. The matter has been carefully examined by the Government and it has been decided that the 22 per cent reservation in services only indidates the broad based policy of the Government to provide the requisite quantum of reservation in services but there is no bar to a larger number of posts being secured by the members of the Scheduled Caste/backward Classes. In consequence the members belonging to the Scheduled Castes/backward Classes who get selected on merits in the general list (in the case of direct recruitment) and those who become eligible for promotion to next higher posts by virtue of their seniority cum fitness should not be included, while calculating percentage of the reservation meant for Scheduled Castes/backward Classes. . . ";