S.B.Sinha, J. - (1.)The petitioner in this application has, inter alia, prayed for a writ in the nature of mandamus commanding the respondents to grant promotional benefits as per select list/Merit list to the petitioners in the judgeship of Dakshin Dinajpur at Balurghat, Dakshin Dinajpur with effect from 1st November, 1994 as also commanding the respondents to strictly follow the select List/Merit List in respect of seniority of the petitioner and accordingly grant promotion. The fact of the matter is admitted. The petitioners who were three in numbers and the respondent No.5 were appointed on 20th June, 1986. In the seniority gradation list the petitioners' position was at serial Nos. 13, 14 and 15 whereas that of the respondent No.5 was at serial No.16. Admittedly, the respondent No.5 is a member of the scheduled caste. He has been given his promotion by reason of an order dated 22.9.95 as contained in annexure 'B' to the writ application is in question.
(2.)Mr. Roy, learned counsel appearing on behalf of the petitioners, has raised a short question in support of this application. The learned counsel submits that the statements made in paragraph 9 of the writ application that the respondent No.5 was appointed on merit as general candidate and in that view of the matter, his case could not have been considered for promotion on the ground that he was a reserved category candidate. The learned counsel in this connection, has also drawn this court's attention to an order dated 6.6.88 as contained in annexure 'D' to the writ application in order to show that in the merit list the respondent No.5 was not shown as scheduled caste candidate.
(3.)The learned counsel appearing on behalf of the respondents, on the other hand, had drawn the attention of this court to a detailed order dated 22.9.95 passed by the District Judge, Dakshin Dinajpur, at Balurghat and submitted that from a perusal thereof it would appear that 20 point roster was invoked in the instant case. According to the learned counsel, from the said order, it would appear that the respondent No.5 was promoted as he was a member of the scheduled caste. It is not in dispute that the State Government in the year 1976 enacted the Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976. In the affidavit-in-opposition, it has categorically been stated that the respondent No.5 was appointed in terms of the provisions of the said Act and the Rules framed thereunder as amended from time to time. The submission of Mr. Roy to the effect that from annexure 'D' to the writ application it would appear that the respondent No.5 was not appointed as against a reserved vacancy cannot be accepted. The vacancies were filled up admittedly in the year 1986 when the aforementioned act was in enforced. A presumption has to be drawn that official acts have been performed in ordinary course of business. Only because as against the name of the respondent No.5 the word, "Scheduled caste" has not be mentioned, the same does not mean that his case was not considered as a candidate falling under the reserved category. Furthermore, from the fact that apart from the petitioners and the respondent No.5, no other person was appointed from amongst the Scheduled caste candidates clearly goes to show that the appointment of the said respondent was against a vacancy reserved for the member of the scheduled caste and scheduled tribes. As indicated hereinbefore even in the affidavit-in-opposition, such a stand has been taken by the respondent No.4. It is true that in Indra Sawheny v. Union of India reported in AIR 1993 SC 477 the apex court has held that while promoting candidates reservation policy should not be given effect to, but in the latter decisions of the apex court has clearly held that keeping in view the fact that such policy decision had been taken by a State, the same should be allowed to operate for a period of five years. In Union of India v. Virpal Singh Chauhan reported in AIR 1996 SC 448 upon which strong reliance has been placed by the learned counsel for the petitioner, the apex court was considering a case of appointment upon taking into the consideration the decision of the Constitution Bench in R.K. Sabharwal v. State of Punjab reported in 1995(2) SCC 745 = 1995 AIR SCW 1371, where in it has been held that where the total number of posts in a cadre reserved for reserved candidates are filled by operation of a roster, the object of rule of reservation must be deemed to have been achieved and that thereafter there would be no justification to operate the roster. The scheme framed by the Constitution Bench in paragraph 5 of the said judgment, was to operate prospectively. The apex court in the said case held-"Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (Unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para 5 of R.K. Sabharwal. While determining the said number the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates." (ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, class, category or grade (Unit for the purpose of applying the rule of reservation) and not with respect to vacancies. (iii) so far as Railway Guards in Railway service are concerned that is the only category we are concerned herewith-the seniority position in the promoted category as between reserved candidates and general candidates shall be same as their inter se seniority position in Grade 'C' at any given point of time provided that at that given point of time, both the general candidate and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in the subsequent batch. (his is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction). In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon his seniority over the general candidate even though the general candidate is promoted later to that category." The case of the petitioner comes within the purview of the aforementioned Rule. In Kuldip Chand v. Union of India and Others reported in AIR 1996 SC 706, the apex court was concerned with a case where a person was promoted by way of fortuitous circumstances and continued to work in that post, which was otherwise than in his own right and as such he could not claim seniority over another clerk who had been working in the department from before the petitioner in the said case. The decision, therefore, has no application in the instant case. In Post Graduate Institute of Medical Education and Research, Chandigarh and Ors. v. K.L. Narasimhan and Anr. reported in 1997(6) SCC 283, the apex court observed-"It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the speciality; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate." As has been noticed hereinbefore, the petitioner has not been able to show that the respondent No. 5 was appointed as general category candidate. The said decision has also, therefore, no application in the instant case. The fact that the State has to follow the provision of reservation at the initial stage had been considered by this court in Subal Sakha Mondal and Ors. v. The State of West Bengal and Ors. reported in CLT 1996(1) HC 144, wherein this court was concerned with the similar situation. Circular letters of the State introducing 50% roster instead and place of 20 point roster has been taken into consideration by the learned District Judge in his order as contained in annexure "A" to the writ application. The District Judge as has been held in Subal Sakha Mondal & Ors.'s case (supra) has a statutory obligation to prepare a gradation list and follow the policy decision of the State of West Bengal in the matter of reservation. It may be that in ordinary practice a separate panel is prepared for general category candidates and the reserved category candidates; but only because no separate list has been prepared by the learned District Judge that by itself does not rebut the presumption which is to be raised that the District Judge must have followed the provisions of the Act. If such a presumption has to be raised, it was for the petitioner to show by taking the aforementioned point cogently in his writ application that in the merit list the respondent No.5 competes with the general category candidate and as such he was considered as a general category candidate. It was for the petitioner further to show, in such an event, that other persons from reserved category candidates had been appointed. As indicated hereinbefore that apart from the petitioners and the respondent No.5, no other person has been appointed and as such presumption that the District Judge has followed the law does not stand rebutted. In Jagdish Lal & Ors. v. State of Haryana and Ors. reported in AIR 1997 SC 2366, the apex court has held, "On promotion to the higher cadre the reserved candidate steals a march over general candidates and becomes a member of the service in the higher cadre or grade earlier to the general candidates. The apex court to that extent after taking into consideration various decisions considered Virpal Singh Chauban's case (supra) and R.K. Sabharwal's case (supra) in details and held that by reason of the aforementioned decision the court did not intend to depart from the normal service jurisprudence of continuous officiation in a post/cadre nor did it lay down any separate rule of interpretation in determining inter se seniority of the reserved candidates and the general candidates and their fusion into common seniority in the higher echelons yielding placement of seniority to the general candidates offer the erstwhile junior reserved candidates.