NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S).  4751-4752/2011

V. LAKSHMIKANTHAN AND ANR. APPELLANT(S)

                               VERSUS

UNION OF INDIA AND ORS. ETC.                RESPONDENT(S)

J U D G M E N T KURIAN, J.

1. Though several contentions are raised in these appeals,  finally  the  learned  counsel  for  the appellants  has  come  down  to  one  submission,  since according to him, he is entitled to succeed on that. That  submission  pertains  to  the  direction  in  R.K. Sabharwal and Others v. State of Punjab and Others, (1995) 2 SCC 745, regarding post based roster in the matter  of  promotions.   It  was  made  clear  in  R.K. Sabharwal (supra) that 10.02.1995 shall be the date for the purpose of following the post based roster. It  appears,  the  Respondent  No.2  was  still  not following the same which led to the decision in Union of India and Ors. v. Virpal Singh Chauhan and Others, (1995) 6 SCC 684.  In paragraph 33 in Virpal Singh Chauhan (supra) it was made clear that the Railways

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has to follow the principles as laid down in R.K. Sabharwal (supra).  Paragraph Nos. 29 and 33 of the same are extracted below:

“29. The  Constitution  Bench  has,  however, made it clear that the rule enunciated by them shall operate only prospectively  [vide Para 11]. It has further been held in the said  decision  that  the  "percentage  of reservation has to be worked out in relation to  the  number  of  posts  which  form  the cadre-strength  (and  that)  the  concept  of 'vacancy' has no relevance in operating the percentage of reservation". (As a matter of fact, it is stated that this batch of cases were  also  posted  for  hearing  before  the Constitution Bench along with R.K. Sabharwal batch  of  cases  but  these  cases  were  de- linked on the ground that they raise certain other  issues  which  did  not  arise  in  R.K. Sabharwal.) Be that as it may, as a result of the decision in  R.K. Sabharwal and the views/findings  recorded  by  us  hereinabove, the following position emerges:  (i) 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

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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  the  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 candidates 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  a  subsequent  batch.  (This  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

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Caste/Scheduled Tribe candidate. The earlier promotion  of  the  Scheduled  Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.

xxx      xxx xxx

33. Shri  Dhavan  points  out  yet  another anomaly.  Where  a  candidate  belonging  to Scheduled  Caste  gets  selected  on  his  own merit,  i.e.,  in  the  general  category,  he will be treated as a general candidate and on  that  account  he  suffers  prejudice vis-a-vis  another  reserved  category candidate who could not be selected on his own  merit  (i.e.,  in  the  general  category) and was selected only because of and under the  rule  of  reservation.  For  illustrating his submission, learned counsel says, take an  instance  where  out  of  forty  candidates selected,  a  Scheduled  Caste  candidate selected on merit stands at Sl. No.18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at Sl. No.33. But when  the  occasion  for  appointment  arises, the Scheduled Caste candidate at Sl. No.33 will  be  be  appointed  against  the  first roster-point,  whereas  the  Scheduled  Caste candidate  at  S.  No.18,  being  a  general candidate has to wait for his turn. This, the  learned  counsel  says,  amounts,  in

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effect,  to  punishing  the  Scheduled  Caste candidate  at  Sl.  No.18  for  his  merit. Because he was meritorious, he was selected in  general  category  and  is  treated  as  a general  candidate.  He  suffers  all  the disadvantages  any  other  general  candidate suffers  while  another  Scheduled  Caste candidate, far less meritorious than him and who was selected only by virtue of rule of reservation, steals a march over him in the matter  of  initial  appointment  and  in promotion  after  promotion  thereafter.  This is undoubtedly a piquant situation and may have  to  be  appropriately  rectified  as  and when the occasion arises. It is not pointed out that any such situation has arisen in the appeals before us. It is probable that many such situations may arise which cannot be  foretold  now.  According  to  the  general category  candidates  herein  concerned,  of course, the rule of reservation/roster has already  given  rise  to  many  distortions. According to them, the representation of the reserved  categories  in  Guard  Grade  'A' Special has reached 40 per cent as against the  prescribed  22.5  percent.  It  is  not possible  for  us  to  say,  on  the  material before us, how and why the said situation has come about. It may be partly because the rule  now  enunciated  in  R.K.  Sabharwal was not there and was not being followed. It may also be that such a result has been brought about by a combined operation of the factors mentioned in  (i) and (ii) above. The fact remains that the situation  -  assuming that

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it  is  what  is  described  by  the  general candidates  -  cannot  be  rectified  with retrospective  effect  now.  The  Constitution Bench  in  R.K.  Sabharwal too  has  directed that the rule enunciated therein shall have only  prospective  operation.  So  far  as  the present  appeals  are  concerned,  it  is sufficient  to  direct  that  the  Railway authorities shall hereinafter follows Rules (i), (ii) and  (iii) [stated in Para No.29] with  effect  from  the  date  of  judgment  in R.K. Sabharwal, i.e., 10.02.1995. “

2. However, it is the case of the Railways that it took some more time for them to take a call on the issue of following post based reservation and finally it was clarified on 14.09.2006 that the post based reservation would be followed only with effect from 16.11.2005.   In  fact,  it  has  been  said  so  in  an affidavit filed before this Court in an answer to a query from this Court in the order dated 25.10.2017. The query and answer given in the affidavit filed on 17.11.2017 read as follows:-

“(5) That it shall be clarified as to whether the Railway Board has followed post based  roster  in  any  other  vacancy  after 15.07.2005?

In  terms  of  Railway  Board's  letter Nos.2005/E(SCT)I/25/14 dated 16.11.2005 and E(GP)2005/2/61  dated  22.11.2005  and

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14.09.2006,  instructions  were  issued regarding  introduction  of  post  based reservation rosters in promotion from Group 'C' to Group 'B' or within Group 'B'.

In terms of aforementioned letter dated 14.09.2006,  Railway  Board  clarified  that that post based roster shall be adopted from the  next  cycle  of  selections  commencing after  the  issue  of  Railway  Board's  letter No.2005/E(SCT)I/25/14 dated 16.11.2005.

Hence  Post  based  roster  for  Gazetted cadre  was  not  followed  for  any  vacancy filled  up  to  16.11.2005.   Thereafter, Post-based  rosters  were  applied  in  all selections conducted in Group 'B'.”

3. We  are  afraid  that  this  stand  cannot  be justified.   This  Court  in  Virpal  Singh  Chauhan (supra), having directed the Railways to specifically follow the principles as laid down in R.K. Sabharwal (supra) with effect from 10.02.1995, the post based roster has to be followed from 10.02.1995. 4. In the above circumstances, we dispose of these appeals with the following directions:

i. The  case  of  the  appellants  shall  be examined  in  the  light  of  the  judgments referred to above for the purpose of their promotion to the post of Assistant Executive Engineer and Executive Engineer.

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ii. In the process, we also make it clear that  promotions  already  granted  to  other incumbents  shall  not  be  affected.  It  is further made clear that as far as promotion to the post of Assistant Executive Engineer is concerned, the same shall be notional and as far as the post of Executive Engineer is concerned,  both  the  appellants  shall  be entitled to the restoration of seniority, in case they are otherwise found eligible and entitled in the process of selection.  We are informed that Appellant No.1 has already been promoted to the post of Executive Engineer, therefore, in his case only restoration of seniority and notional fixation of pay are required to be granted.  As far as Appellant No.2  is  concerned,  benefits  regarding seniority shall be conferred in the light of the judgment referred to above, in case he is found eligible and entitled for the monetary benefits with effect from the date of his actual  promotion  to  the  post  of  Executive Engineer, as and when made.   iii. The required process shall be completed in  the  light  of  this  judgment,  within  a period of one month from today.

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5. Pending  applications,  if  any,  shall  stand disposed of. 6. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [S. ABDUL NAZEER]  

NEW DELHI; NOVEMBER 22, 2017.

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ITEM NO.109               COURT NO.5               SECTION XII                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS CIVIL APPEAL  NO(S).  4751-4752/2011 V. LAKSHMIKANTHAN AND ANR.                       APPELLANT(S)                                 VERSUS UNION OF INDIA AND ORS. ETC.                   RESPONDENT(S)

Date : 22-11-2017 These appeals were called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MR. JUSTICE S. ABDUL NAZEER

For Appellant(s) Mr. C.K. Chander Shekhar,Adv.                  Mr. S. R. Setia, AOR                     For Respondent(s) Ms. V. Mohana,Sr.Adv.

Mr. B. Ragunath,Adv. Ms. N.C. Kavitha,Adv.

                 Mr. Vijay Kumar, AOR Mr. A.K. Panda,Sr.Adv. Ms. Alka Agrawal,Adv. Mr. Raj Bahadur,Adv. Mr. Mohan Prasad Gupta,Adv. Ms. Sushma Verma,Adv.

                 Mrs. Anil Katiyar, AOR           UPON hearing the counsel the Court made the following                              O R D E R

The appeals are disposed of in terms of the signed judgment.

(NARENDRA PRASAD)                               (RENU DIWAN)   COURT MASTER                                 ASST. REGISTRAR

(Signed “Non-Reportable” Judgment is placed on the file)

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