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IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:
Writ Petition (civil) 79 of 1979

PETITIONER:
R.K.SABHARWAL AND ORS.

RESPONDENT:
STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT: 10/02/1995

BENCH:
KULDIP SINGH & S.MOHAN & M.K.MUKHERJEE & B.L.HANSARIA & S.B.MAJMUDAR

JUDGMENT:
JUDGMENT

Delivered By:
KULDIP SINGH (J)

Kuldip Singh,J.

1.The petitioners and respondents 4, 5 and 6 are

members of the Punjab Service of Engineers (Class 1) (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 per cent of the posts to be filled by
promotion were to be reserved for members of the Scheduled
Castes and Backward Classes (14 per cent for the Scheduled
Casts and 2 per cent for the Backward Classes) subject to
the conditions that the persons to be considered must
possess the minimum necessary qualifications and they should
have, satisfactory record of service. The instructions
further provided as under:
"(i) 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 to 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;-
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(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 an-
other 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 the 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
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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
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than 14% of the Scheduled Castes candidates are
appointed/promoted in a cadre on their own merit/seniority
by competing with the general category candidates then the
purpose of reservation in the said cadre having been
achieved the Government instructions providing reservations
would become inoperative.
3. 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
of the post fell vacant.
4. Adverting to the first point Mr. Harish Salve and Mr.
Rajiv Dhawan, learned counsel representing the
petitioners, have contended that the total number of
promotees/appointees belonging to the reserve categories in
a cadre are to be counted to work-out the prescribed per-
centage 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 and others v.
Punjab Government and other 1982 (2) SLR 307. 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 cat-
egory 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 & Haryana High Court in Jaswant Singh v. Secretary to
Government of Punjab, Education Department [ 1989 (4)
Services Law Reporter 257]. The Full Bench did not agree
with the ratio in Joginder Singh Sethi’s case and reversed
the same.
5. When a percentage of reservation is fixed in respect of
a particular cadre and the roster indicates the reserve
points, it has to be taken that the posts shown at the
reserve points are to be filled from amongst the members of
reserve categories and the candidates belonging to the
general category are not entitled to be considered for the
reserve posts. On the other hand the reserve category
candidates can compete for the non-reserve posts and in the
event of their appointment to the said
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posts their number cannot be added and taken into
consideration for working out the percentage of reservation.
Article 16(4) of the Constitution of India permits the State
Government to make any provision for the reservation of
appointments or posts in favour of any backward class of
citizen which, in the opinion of the State is not adequately
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represented in the Services under the State. It is,
therefore, incumbent on the State Government to reach a con-
clusion that the backward class/classes for which the
reservation is made is not adequately represented in the
State Services. While doing so the State Government may
take the total population of a particular backward class and
its representation in the State Services. When the State
Government after doing the necessary exercise makes the
reservation and provides the extent of percentage of posts
to be reserved for the said backward class then the per-
centage has to be followed strictly. The prescribed
percentage cannot be varied or changed simply because some
of the members of the backward class have already been
appointed/promoted against the general seats. As mentioned
above the roster point which is reserved for a backward
class has to be filled by way of appointment/promotion of
the member of the said class. No general category candidate
can be appointed against a slot in the roster which is
reserved for the backward class. The fact that considerable
number of members of a backward class have been ap-
pointed/promoted against general seats in the State Services
may be a relevant factor for the State Government to review
the question of continuing reservation for the said class
but so long as the instructions/ Rules providing certain
percentage of reservations for the backward classes are op-
erative the same have to be followed. Despit any number of
appointment/promotees belonging to the backward classes
against the general category posts the given percentage has
to be provided in addition. We, therefore, see no force in
the first contention raised by the learned counsel and
reject the same.
6. We see considered force in the second contention raised
by the learned counsel for the petitioners. The
reservations provided under the impugned Government
instructions are to be operated in accordance with the
roster to be maintained in each Department. The roster is
implemented in the form of running account from year to
year. The purpose of "running account" is to make sure that
the Scheduled Castes/Schedule Tribes and Backward Classes
get their percentage of reserved posts. The concept of
"running account" in the impugned instructions has to be so
interpreted that it does not result in excessive
reservation. "16% of the posts......are reserved for
members of the Scheduled Caste and Backward Classes. In a
lot of100 posts those falling at serial numbers 1,7, 15, 22,
30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved
and earmarked in the roster for-the Scheduled Castes.
Roster points 26 and 76 are reserved for the members of
Backward Classes. It is thus obvious that when recruitment
to a cadre starts then 14 posts earmarked in the roster are
to be filled from amongst the members of the Scheduled
Caste. To illustrate, first post in a cadre must go to the
Scheduled Caste and thereafter the said class is entitled to
7th, 15th, 22nd and onwards upto 91st post. When the total
number of posts in a cadre are filled by the operation of
the roster then the result envisaged by the impugned
instructions is achieved. In other words, in
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a cadre of 100 posts when the posts earmarked in the roster
for the Scheduled Castes and the Backward Classes are filled
the percentage of reservation provided for the reserved
categories is achieved. We see no justification to operate
the roster thereafter. The "running account" is to operate
only till the quota provided under the impugned instructions
is reached and not thereafter. Once the prescribed per-
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centage of posts is filled the numerical test of adequacy is
satisfied and thereafter the roster does not survive. The
percentage of reservation is the desired representation of
the Backward Classes in the State services and is consistent
with the demographic estimate based on the proportion worked
out in relation to their populations The numerical quota of
posts is not shifting boundary but represents a figure with
due application of mind. Therefore, the only way to assure
equality of opportunity to the Backward Classes and the
general category is to permit the roster to operate till the
time the respective appointees/ promotees occupy the posts
meant for them in the roster. The operation of the roster
and the running account" must come to an end thereafter.
The vacancies arising in the cadre, after the initial posts
arc filled, will pose no difficulty. As and when there is a
vacancy whether permanent or temporary in a particular post
the same has to be filled from amongst the category to which
the post belonged in the roster. For example the Scheduled
Caste persons holding the posts at Roster - points 1, 7, 15
retire then these slots are to be filled from amongst the
persons belonging to the Scheduled Castes. Similarly, if
the persons holding the post at points 8 to 14 or 23 to 29
retire then these slots are to be filled from among the
general category By following this procedure them shall
neither be short-fall nor excess in the percentage of
reservation.
7. The expressions "posts" and "vacancies", often used in
the executive instructions providing for reservations, are
rather problematical. The word "post" means an appointment,
job, office or employment. A position to which a person is
appointed. "Vacancy" means an unoccupied post or office.
The plain meaning of the two expressions make it clear that
there must be a ’post’ in existence to enable the ’vacancy’
to occur. The cadre - strength is always measured by the
number of posts comprising the cadre. Right to be consid-
ered for appointment can only be claimed in respect of a
post in a cadre. As a consequence the percentage of
reservation has to be worked out in relation to the number
of posts which form the cadre-strength. The concept of
’vacancy’ has no relevance in operating the percentage of
reservation.
8. When all the roster-points in a cadre am filled the
required percentage of reservation is achieved. Once the
total cadre has full representation of the Scheduled
Casts/Tribes and Backward Classes in accordance with the
reservation policy then the vacancies arising thereafter in
the cadre are to be filled from amongst the category of
persons to whom the respective vacancies belong. Jeevan
Reddy, J. speaking for the majority in Indra Sawhney vs.
Union of India (AIR 1993 SC 477) observed as under:-
"Take a unit/service/cadre comprising 1000
posts. The reservation in favour of
scheduled Tribes Scheduled Cass and other
Backward Classes is 50% which means that out
Of the 1000 posts 500 must be held by the
members of these classes i.e- 270 by Other
Backward
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Classes, 150 by Scheduled Casts and 80 by
Scheduled Tribes. At a given point of time,
let us say the number of members of OBC in the
unit/ service/ category is only 50, a
shortfall of 220. Similarly the number of
members of scheduled Casts and Scheduled
Tribes is only 20 and 5 respectively,
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shortfall of 130 and 75. If the entire
service/cadre is taken as as unit and the
backlog is sought to be made up, then the open
competition channel has to be chocked
altogether for a number of years until the
number of members of all backward classes
reaches 500 i.e., till the quota meant for
each of them is filled up. This may take
quite a number of vacancies arising each year
are not many. Meanwhile, the members of open
competition category would become age barred
and ineligible. Equality of opportunity in
their case would become a mere mirage. It
must be remembered that the equality of
opportunity guaranteed by clause (1) is to
each individual citizen of the country while
clause (4) contemplates special provision
being made in favour of socially disadvantaged
classes. Both must be balanced against each
other. Neither should be allowed to eclipse
the other. For the above reason, we hold that
for the purpose of applying the rule of 50%
a year should be taken as the unit and not
the entire of the cadre, service or the unit
as the case may be"
9. The quoted observations clearly illustrate that the
rule of 50 % a year as unit and not entire strength of
the cadre has been adopted to protect the rights of the
general category under clause (1) of Article 16 of the
Constitution of India. These observations in Indra
Sawhney’s case, arc only in relation to posts which are
filled initially in a cadre. ’The operation of a roster,
for filling the cadre strength, by itself ensures that the-
reservation remains within the 50 % limit. Indra Sawhney’s
case- is not the authority for the point that the roster
survives after the cadre-strength is full and the percentage
of reservation is achieved.
10.A Division Bench of the Allahabad High Court in J.C.
Malik and others v. Union of India and others (1978)SLR 844)
interpreted Railway Board’s circular dated April 20, 1970
providing 15% reservations for the Scheduled Casts. The
High Court held that the percentage of reservation is in
respect of the appointment to the posts in a cadre. On the
basis of the material placed before the High Court it
reached the conclusion that if the reservation is permitted
in the vacancies after all the posts in cadre are filled
then serious consequences would ensure and the general
category is likely to suffer considerably. We see no
infirmity in the view taken by the High Court.
11. We may examine the likely result if the roster is
permitted to operate in respect of the vacancies arising
after the total posts in a cadre are filled. In a 100 point
roster, 14 posts at various roster points are filled from
amongst the scheduled Casts/ Scheduled Tribes candidates, 2
posts arc filled from amongst the Backward Classes and the
remaining 84 posts are filled from amongst the general cat-
egory. Suppose all the posts in a cadre consisting of 100
posts are filled in accordance with the roster by December
31, 1994. Thereafter in the year 1995, 25 general category
persons (out of the 84) retire. Again in the 1996, 25 more
persons belonging to the general category persons (out of
the 84) retire. Again in the year 1996, 25 more persons
belonging to the general category retire. The position
which would emerge would be that the Sched-
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uled Casts and Backward Classes would claim 16% share out of
the 50 vacancies. If 8 vacancies are given to them then in
the cadre of 100 posts the reserve categories would be
holding 24 posts thereby increasing the reservation from 16%
to 24%. On the contrary if the roster is permitted to
operate till the total posts in a cadre are filled by the
same category of persons whose retirement etc. caused the
vacancies then the balance between the reserve category and
the general category shall always be maintained. We make it
clear that in the event of non-availability of a reserve
candidate at the roster-point it Would be open to the State
Government to carry forward the point in a just and fair
manner.
12. We, therefore, find considerable force in the second
point raised by the learned counsel for the petitioners.
We, however, direct that the interpretation given by us to
the working of the roster and our findings on this point
shall be operative prospectively.
13. The writ petition is, therefore, disposed of in the
above terms. No costs.
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