JUDGEMENT
-
(1.)ORDER :( The petitioners and respondents 4, 5 and 6 are members of the Punjab Service of Engineers (Class I) (the Service) in the Irrigation Department of the State of Punjab. The respondents are members of the Scheduled Castes whereas the petitioners belong to the general category. The conditions of service of the members of the Service are governed by the Rules called the Punjab Service of Engineers Class I P. W. D.(I. B.) Rules, 1964 (the Rules). The Punjab Government by the instructions dated May 4, 1974 provided reservations for the Scheduled Castes and Backward Classes in promotions to and within Class I and II services under the State Government. It was laid down under the said instructions that 16 percent of the posts to be filled by promotion were to be reserved for members of the Scheduled Castes and Backward Classes (14 percent for the Scheduled Caste and 2 per cent for the Backward Classes) subject to the conditions that the persons to be considered must possess the minimum necesary qualifications and they should have satisfactory record of service . the instructions further provided as under :
"(1) In a lot of 100 vacancies occurring from time to time, those falling at serial numbers mentioned below should be treated as reserved for the members of Scheduled Castes;
1. 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, 91 and so on. Vacancies falling at serial numbers 26 and 76 should be treated as reserved for the members of Backward Classes.
(ii) The reservation prescribed shall be given effect in accordance with a roster to be maintained in each Department. The roster will be implemented in the form of a running account from year to year."
Rule 9 of the Rules which provides for promotion within the service reads as under:
"Promotion within service :(
(1) Subject to the provisions of sub-rules 2 and 3 members of the Service shall be eligible for promotion to any of the posts in the service, namely , Executive Engineers, Superintending Engineers and Chief Engineers :
Provided that a Member of the service in whose case the qualifications mentioned in clause (a) of rule 6 have been waived, shall not be eligible for promotion to the post of Superintending Engineer or above till he has acquired the necessary qualification.
Explanation :( Once an officer has been appointed a member of the Service, his promotion within it from one rank to another shall be regarded as promotion within the same cadre.
(2) Promotions shall be made by selection on the basis of merit and suitability in all respects and no member of the Service shall have any claim to such promotion as a matter of right or mere seniority.
(3) A member of the Service shall not be eligible for promotion to the rank of -
(a) Executive Engineer unless he has rendered five years service as an Assistant Executive Engineer;
Provided that an officer who has rendered six years or more service as an Assistant Executive Engineer shall unless he is considered unsuitable for promotion, be given preference for such promotion over an eligible Class II Officer;
(b) Superintending Engineer, unless he has rendered seven years service as an Executive Engineer;
(c) Chief Engineer, unless he has rendered three years service as Superintending Engineer;
Provided that , if it appears to be necessary to promote an officer in public interest, the Government may, for reasons to be recorded in writing, either generally for a specified period or in any individual case reduce the period specified in clauses (a), (b) and (c) to such extent as it may deem proper."
It is stated in writ petition that the petitioners are at serial Nos. 19, 23, 26, 29, 30, 31, 34 and 38 of the seniority list of the service whereas the respondents are at serial Nos. 46, 140, and 152 . Respondent-Rattan Singh was promoted to the rank of Chief Engineer against the post reserved for the Scheduled Castes by superseding 36 senior colleagues including the petitioners. Similarly, respondents Surjit Singh and Om Prakash were promoted as Superintending Engineers against the reserve vacancies by superseding 82 and 87 senior colleagues respectively. According to the petitioners at the time of promotion of these respondents the petitioners were already working as Superintending Engineers for several years. It is further averred in the petition that respondents 4, 5 and 6 were in fact working as Executive Engineers when the petitioners were holding the posts of Superintending Engineers.
(2.)On the above facts the petitioners have challenged the reservation policy on several grounds but Mr Harish Salve learned counsel for the petitioners, has confined the arguments to the following two points.
(1) The object of reservation is to provide adequate representation to the Scheduled Castes/Tribes and Backward Classes in services and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved. The precise argument is that for working out the percentage of reservation the promotees/appointees belonging to the Scheduled Castes and Backward Classes whether appointed against the general category posts or against the reserve posts are to be counted. In other words if more than 14% of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates then the purpose of reservations in the said cadre having been achieved the Government instructions providing reservation would become inoperative.
(2) Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category reserve or general due to retirement etc. of whose member the post fell vacant.
(3.)Adverting to the first point Mr. Harish Salve the Mr. Rajiv Dhawan, learned counsel representing the petitioners, have contended that the total number of promotes/appointees belonging to the reserve categories in a cadre are to be counted to work-out the prescribed percentage of reservation. According to the learned counsel the reserve categories can take advantage of the reservation made in their favour till their representation in the Service - including those appointed against general category posts - reaches the prescribed percentage. For working out the percentage the promotees /appointees belonging to reserve categories in the Service, whether on the reserve posts or general category posts, are to be counted. Support is sought from the judgment of the Punjab and Haryana High Court in Joginder Singh Sethi v. Punjab Government, (1982) 2 Serv LR 307 : (1983 Lab IC 730). In the said case 22% reservation was provided for the members of Scheduled Castes/ Tribes and Backward Classes. In the cadre strength of 202 posts the Scheduled Castes candidates were entitled to 42 posts. There were already 47 members of the said category in the cadre but out of them 10 were promoted on the basis of seniority-cum-merit against the general category posts. There being only 37 persons who had been promoted against the reserved posts 4 more Scheduled Castes were sought to be promoted against the reserve vacancies. The High Court quashed the promotion on the ground that the cadre was already having more than 22% persons from the reserve categories. We are of the view that the High Court in Joginder Singh Sethi's case fell into a patent error. The said case was subsequently considered by a Full Bench of Punjab and Haryana High Court in Jaswant Singh v. Secretary to Government of Punjab, Education Department, (1989) 4 Serv LR 257 : (1990 Lab IC 559). The Full Bench did not agree with the ratio in Joginder Singh Sethi's case and reversed the same.