DHARAM PAL SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This writ petition is filed to quash the letter of the Chief Secretary dated 17.5.1995 vide Annexure P-5 and the consequential order dated 21.11.1995 vide Annexure P-6 reverting the petitioner from the post of Deputy Superintendent to the post of Assistant.

(2.) The petitioner was appointed as a Clerk in the office of Engineer-in- Chief, Haryana P.W.D. (B&R) on the basis of the his selection by the Haryana Subordinate Service Selection Board. The petitioner being a Backward class candidate claims that he is entitled to be promoted as Deputy Superintendent against the promotion quota for Backward Classes which was raised from 5 per cent to 10 per cent on 18.9.1979. According to the petitioner roster points at 10, 16, 22, 32, 46, 56, 70, 76, 86, and 96 have been reserved for promotion of Backward Class employees and it is the further case of the petitioner that he has been promoted to the post of Deputy Superintendent against the reserved vacancy at point No. 10 on 9.11.1993. Thereafter one Shri Som Nath Arora, 3rd respondent made a representation against the promotion of the petitioner. Thereafter the 2nd respondent sought a clarification from the Chief Secretary. By the impugned letter (Annexure P-6), the Chief Secretary clarified that where total posts are seven in a cadre, then Backward Class category employees cannot be granted the benefit of reservation because in this way the reservation percentage of Backward Backward Class category would exist more than 14 per cent whereas the reservation percentage of Backward Class category has been fixed at 10 per cent. Challenging this letter of the Chief Secretary, the petitioner filed the present writ petition for quashing the same. Subsequently, an order dated 21.11.1995 was passed by the Engineer-in-Chief, Haryana, PWD (B&R) vide Annexure P-7 reverting the petitioner from the post of Deputy Superintendent to the post of Assistant. On the basis of the clarification issued by the Chief Secretary vide Annexure P-6, the petitioner is also claiming the relief for quashing of Annexure P-7.

(3.) There is no dispute that there are only 7 posts of Deputy Superintendents available in the office of the 2nd respondent. According to the order (Annexure P-7) when the total posts are 7 in a cadre, there cannot be any reservation for promotion amongst the Backward Class employees, but this view does not appear to be correct. For the purpose of providing reservation, where number of posts is less, roster system has been introduced. 10 vacancies have been taken as a unit and all the reservation points for the Backward Classes and Scheduled Tribes have been fixed in the roster consisting of 100 vacancies. Admittedly, in the roster of 100 vacancies taken as a unit, the roster points at 10, 16, 22, 32, 46, 56, 70, 76, 86 and 96 have been reserved for filling up from amongst the Backward Class candidates. Thus 10 per cent quota will be fulfilled when roster of 100 vacancies will be completed. When 7 posts are created at the initial stage, no Backward Class candidate will be entitled to promotion at that stage. Thereafter if any vacancy exists either due to retirement of the persons already working or increase of strength or any vacancy arises for any other reason, then 10th vacancy in the roster may be filled up by the Backward Class candidates from amongst the Assistants. Therefore, it is not correct to say that when there are 7 posts, no Assistant belonging to Backward Class category should be promoted and reservation policy is not applicable. The very purpose of introducing the roster point is to take 100 vacancies as a unit and promote the Backward Class employees in those vacancies of 100 which arise from time to time. Thus, it is clear that while filling up the posts, it is the vacancies which have to be taken into consideration and these vacancies have to be filled up according to the roster points. In this view of the matter, I am fortified by the decision of the Apex Court in Civil Appeal Nos. 4224-25 of 1994 and Batch. The learned Counsel for the respondents relied upon a decision of the Supreme Court in R.K. Sabharwal and others v. State of Punjab and others, 1995 2 SCC 745 but I am of the view that the said decision does not lay down the law differently. It is pertinent to refer to the following observations in the said decision of the Supreme Court :-