Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  6631-6632 of 2015 (Arising out of SLP (Civil) Nos. 8366-8367 of 2012)

S. PANNEER SELVAM & ORS.      ..Appellants Versus

GOVERNMENT OF TAMIL NADU & ORS.            ..Respondents

WITH CIVIL APPEAL NO. 6633  of 2015

(Arising out of SLP (Civil) No.10928 of 2012) A. VENKATACHALAM & ORS.              ..Appellants

Versus THE SECRETARY, GOVERNMENT    OF TAMIL NADU & ORS.   ..Respondents

AND CIVIL APPEAL NOS.  6634-6636  of 2015

(Arising out of SLP (Civil) Nos. 16692-16694 of 2012)

GOVERNMENT OF TAMIL NADU  AND ANR. ETC.ETC.       .Appellants

Versus V. VIVEKANANDAN & ORS. ETC. ETC.   ..Respondents

J U D G M E N  T

R. BANUMATHI, J.

Leave granted in all the special leave petitions.

2. Common issues involved in this bunch of appeals

are:-(i)  In  the  absence  of  policy  decision  taken  by  the

1

Page 2

State/rules  framed  pursuant  to  the  enabling  provision  of

Article 16 (4A) of the Constitution of India whether a reserved

category candidate promoted on the basis of reservation earlier

than  his  senior  general  category  candidate  in  the  feeder

category can claim consequential seniority in the promotional

post; (ii)  In the absence of policy decision taken by the State

with  regard  to  Tamil  Nadu  Highways  Engineering  Service

Rules,  whether  Division  Bench  was  right  in  holding  that

Article 16(4A) of the Constitution of India by itself would give

consequential seniority in addition to accelerated promotion to

the roster-point promotees.  

3. These  appeals  are  filed  assailing  the  common

judgment  dated  25.11.2011  passed  by  the  High  Court  of

Judicature at Madras in Writ Appeals No. 113, 207 and 208 of

2009 whereby the  High Court  while  setting aside the order

passed by the learned Single Judge observed that the object of

the amending Article 16 (4A) of the Constitution of India is to

give  consequential  seniority  in  addition  to  accelerated

promotion  to  roster–point  promotees  thereby  holding  that

‘catch-up rule’ is not applicable among the Assistant Divisional

2

Page 3

Engineers  appointed  from  the  post  of  Junior  Engineers

following the rule of reservation.  For convenience, parties are

referred to as per their array in the appeals arising out of SLP

(Civil) Nos. 8366-8367 of 2012.  

4. The  appellants  are  graduate  Assistant  Engineers

and  the  contesting  private  respondents  are  Diploma  holder

Junior Engineers are entangled in several rounds of litigation

for about two decades over the nagging question of ‘catch-up

rule’ and the consequential seniority in the promotional post of

Assistant Divisional Engineers.  Before adverting to the legal

issues,  it  would  be  appropriate  to  refer  to  the  background

facts.  Engineers  of  Tamil  Nadu  Highways  Department  viz.,

Chief  Engineers,  Superintending  Engineers,  Divisional

Engineers and Assistant Divisional Engineers are governed by

Tamil Nadu Highways Engineering Service Rules.   Assistant

Engineers,  Junior  Engineers,  Supervisors  and further  lower

categories are governed by Tamil Nadu Highways Engineering

Subordinate  Service  Rules.  The  categories  viz.,  Assistant

Engineers and Junior Engineers were feeder categories to the

category of Assistant Divisional Engineer and the first three

3

Page 4

vacancies to be filled by Assistant Engineers and the fourth

vacancy  to  be  filled  by  recruitment  by  transfer  by  Junior

Engineer  of  Tamil  Nadu Highways  Engineering  Subordinate

Service.  Rule  12  of  Special  Rules  to  Tamil  Nadu Highways

Engineering  Service  prescribes  application  of  rule  of

reservation  for  the  appointment  of  Assistant  Divisional

Engineers by direct recruitment and recruitment by transfer.

Accordingly prior to 24.05.1993, the Assistant Engineers and

Junior  Engineers  were  appointed  as  Assistant  Divisional

Engineers by recruitment by transfer after following the rule of

reservation.  

5. List of Assistant Engineers/Junior Engineers as on

01.01.1993  was  published  vide  Chief  Engineer  Memo

No. 960/N4/91 dated 18.04.1994 not following the ‘catch up

rule’.  One Assistant Divisional Engineer (ADE) D. Rajendran

who  belonged  to  general  category,  who  was  overlooked  for

promotion by Assistant  Engineers who belonged to reserved

category  filed  O.A.  No.2186/1996  before  the  Tamil  Nadu

Administrative  Tribunal  challenging  the  consequential

seniority  given to  the  reserved category  Assistant  Divisional

4

Page 5

Engineers  and  prayed  to  revise  the  seniority  in  the  higher

category as obtained in the lower category.  Relying upon Ajit

Singh Januja & Ors.  vs. State of Punjab  & Ors.,  (1996) 2 SCC

715,  vide  order  dated  29.11.1996,  the  tribunal  allowed the

application  observing  that  even  though  the  respondents

therein were promoted as ADEs earlier to  D. Rajendran, they

cannot be placed above the applicant by virtue of accelerated

promotion  and  giving  them  the  consequential  seniority.

Aggrieved  by  the  order  in  O.A.  2186/1996,  Special  Leave

Petition (Civil) No. 24455/1996 was filed by the ADEs of the

reserved  category  which  was  dismissed  by  this  Court  vide

order dated 18.12.1996.

6. On 29.04.2004, seniority list of Assistant Divisional

Engineers  was  published  by  applying  ‘catch-up  rule’ among

ADEs appointed from Assistant Engineers and consequential

seniority  was  not  given  to  SC/ST  Assistant  Divisional

Engineers  appointed  from  Assistant  Engineers.   But  the

‘catch-up  rule’ was  not  applied  among  the  ADEs  appointed

from   Junior  Engineers  and  thereby   giving   benefit   of

consequential  seniority  to  SC/ST  Assistant  Divisional

5

Page 6

Engineers  appointed  from  Junior  Engineers  in  addition  to

accelerated  promotion.  Aggrieved  by  the  seniority  list  dated

29.04.2004 and the  subsequent  seniority  list  fit  for  further

promotion  to  the  post  of  Divisional  Engineer  dated

19.08.2005, the Assistant Engineers who were selected by the

Tamil  Nadu  Public  Service  Commission  under  the  junior

category filed the writ petition in the High Court. Contention

advanced  by  the  appellants/writ  petitioners  was  that  the

promotion given to Junior Engineers as ADEs was based on

rule of reservation and in the promotional post it would not

reverse the seniority of the seniors in the feeder category who

gained promotions subsequently.  Relying on the decisions of

this Court reported in Union of India And Ors. vs. Virpal Singh

Chauhan And Ors., (1995) 6 SCC 684;  Ajit Singh Januja  And

Ors. vs.  State  of  Punjab And Ors., (1996) 2 SCC 715;  R.K.

Sabharwal  And Ors. vs.  State of Punjab And Ors.,  (1995) 2

SCC 745;  Ajit Singh  And Ors. (II) vs. State of Punjab And Ors.,

(1999) 7 SCC 209 and M. Nagaraj And Ors. vs. Union of India

And Ors., (2006) 8 SCC 212, learned Single Judge of the High

Court held that the State failed to follow the dictum laid down

6

Page 7

by the Supreme Court in the above judgments and erred in

issuing  the  seniority  list  of  Assistant  Divisional  Engineers,

Tamil  Nadu  Highways  Engineering  Service  by  ignoring  the

principle  of  ‘catch-up rule’ vis-a-vis  ‘inter-se  seniority’  of  the

seniors who have gained promotion subsequently.  The Single

Judge thus allowed the batch of writ petitions by setting aside

the seniority list dated 29.04.2004 and directed the authorities

to prepare the revised seniority list of the Assistant Divisional

Engineers.  

7. Aggrieved, the respondents-promotees promoted as

ADEs from Junior Engineers in the reserved category preferred

writ  appeals  and  the  Division  Bench  by  the  impugned

judgment while setting aside the order passed by the Single

Judge held that the object of the amending Article 16 (4A) of

the Constitution of India is to give accelerated promotion to

roster-point  promotees  in  addition  to  accelerated  promotion

and  thereby  held  that  the  ‘catch-up  rule’ is  not  applicable

among the Assistant Divisional Engineers appointed from the

post of Junior Engineers by recruitment by transfer following

7

Page 8

reservation rules. These appeals assail the correctness of the

above judgment.      

8. Having heard both the parties, we have given our

thoughtful consideration to the rival contentions in the light of

the  principles  enunciated  by  this  Court  in  a  catena  of

decisions.

9. The  concept  of  ‘catch-up  rule’ and  ‘consequential

seniority’ is judicially evolved concepts to control the extent of

reservation.  The question of reservation and the associated

promotion  and  the  consequential  seniority  have  been  the

matter of discussion in various decisions of this Court.  The

matter regarding reservation in promotions was considered by

a nine Judge Bench of this Court in Indra Sawhney And Ors.

vs.  Union of India And Ors., (1992) Supp. 3 SCC 217 and this

Court  held  that  the  reservation  under  Article  16(4)  of  the

Constitution of  India is  confined only to initial  appointment

and cannot extend to reservation in the matter of promotion.

In order to nullify the effect of the aforesaid dicta, there was an

amendment  to  Article  16  by  Constitution  (Seventy-seventh

Amendment)  Act  with  effect  from  17.06.1995.  Vide  this

8

Page 9

Amendment,  after  Clause  (4),  Clause  (4A)  was  inserted  in

Article 16 of the Constitution.    

10. Clause  (4)  and  Clause  (4A)  of  Article  16  of  the

Constitution of India read as under:-

“Clause 4.   Nothing in this article shall  prevent the State from  making  any  provision  for  the  reservation  of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Clause 4A.  Nothing in this  article  shall  prevent the State from  making  any  provision  for  reservation  in  matters  of promotion to any class or classes of  posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”  

11. Article  16 (4) of the Constitution of India enables

the State to make a provision for reservation for appointments

or posts  in favour of any backward class of citizens which  in

its opinion is not adequately represented in the services under

the  State.  The  constitutional  position  on  the  insertion  of

Clause (4A) in Article 16 is that the State is now empowered to

make provision for reservation in the matter of promotions as

well,  in favour of  SCs and STs wherever the State is of  the

opinion that the SCs and STs are not adequately represented

in the service under the State. Clause (4A) of Article 16 of the

9

Page 10

Constitution is only an enabling provision which empowers the

State  to  make any provision for  reservation for  SC and ST

candidates in the matter of promotion as well.

12. In Union of India And Ors. vs. Virpal Singh Chauhan

And  Ors.,  (1995)  6  SCC  684,  a  question  had  arisen  as  to

whether a person in SC or ST category who gets accelerated

promotion because of reservation would also get consequential

seniority in the higher post if he gets that promotion earlier

than his senior in general category and this Court held that

such an employee belonging to SC/ST category on promotion

would not get consequential seniority and his seniority will be

governed by the panel position.  It was held as under:-

“24. …In short, it is open to the State, if it is so advised, to say that while the rule of reservation shall be applied and the roster followed in the matter of promotions to or within a particular service, class or category, the candidate promoted earlier  by  virtue of  rule  of  reservation/roster  shall  not  be entitled to seniority over his senior in the feeder category and that as and when a general candidate who was senior to him in the feeder category is promoted, such general candidate will  regain  his  seniority  over  the  reserved  candidate notwithstanding  that  he  is  promoted  subsequent  to  the reserved candidate. There is no unconstitutionality involved in this. It is permissible for the State to so provide…”   

13. The decision in  Virpal  Singh Chauhan case led to

another Constitution Amendment and the Parliament enacted

10

Page 11

Constitution  (Eighty-fifth  Amendment)  Act  2001  whereby

Clause (4A) of  Article 16 was further amended enabling the

State  to  make  a  provision  for  reservation  in  matters  of

promotion with consequential seniority.  Amended Clause (4A)

reads as under:-

“4A.   Nothing in  this  article  shall  prevent  the  State  from making any provision for reservation in matters of promotion with consequential  seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”  

Eighty-fifth  Amendment  was  made  effective retrospectively

from 17.06.1995, that  is,  the  date  of  coming into  force the

original Clause (4A) of Article 16 of the Constitution of India.

14. In  Ajit  Singh Januja  And Ors. vs.  State  of  Punjab

And  Ors.,  (1996)  2  SCC  715,  by  placing  reliance  on  the

principle  laid  down  in  Indra  Sawhney  case  and  also  the

Constitution Bench judgment in R.K. Sabharwal And Ors. vs.

State  of  Punjab And Ors., reported in  (1995)  2 SCC 745,  a

three Judge Bench accepted the principle of ‘catch-up rule’  as

laid down in  Virpal  Singh Chauhan case observing that  the

balance must be maintained in such a manner that there was

no  reverse  discrimination  against  the  general  category 11

Page 12

candidates  and that  any  rule/circular  or  order  which gives

seniority to the reserved category candidates promoted at the

roster-point would be violative of  Articles 14 and 16 of the

Constitution of India.   

15. In  Jagdish Lal And Ors. vs.  State of Haryana And

Ors., (1997) 6 SCC 538, another three Judge Bench opined

that seniority granted to the Scheduled Caste and Scheduled

Tribe candidates over a general category candidate due to his

accelerated promotion does not in all events got wiped out on

promotion of  general category candidate.

16. In  Ajit  Singh And Ors.(II) vs.  State  of  Punjab And

Ors., (1999) 7 SCC 209, the Constitution Bench was concerned

with the issue whether the decisions in Virpal Singh Chauhan

and  Ajit Singh Januja  case which were earlier decided to the

effect  upholding  the  ‘catch-up  rule’, that  is,  the  seniority  of

general category candidates is to be confirmed or whether the

later deviation made in  Jagdish Lal case against the general

category  candidates.  In  Ajit  Singh  (II) case,  inter-alia,  the

following points arose for consideration:-

(i). Can the roster-point promotees count their seniority in the  promoted  category  from  the  date  of  their  continuous

12

Page 13

officiation  vis-à-vis general candidates, who were senior to them in the lower category  and who were  later promoted to the same level?

(ii) Have Virpal [(1995) 6 SCC 684] and Ajit Singh [(1996) 2  SCC  715]  been  correctly  decided  and  has  Jagdish  Lal [(1997) 6 SCC 538] been correctly decided?

(iii)     Whether the “catch-up” principles are tenable?

17. The Constitution Bench held that Articles 16(4) and

(4A) did not confer any fundamental right to reservation and

that  they  are  only  enabling  provisions.  Overruling  the

judgment in Jagdish Lal case and observing that rights of the

reserved  classes  must  be  balanced  against  the  interests  of

other  segments  of  society  in  para  (77),  this  Court  held  as

under:-

“77.  We,  therefore,  hold  that  the  roster-point  promotees (reserved  category)  cannot  count  their  seniority  in  the promoted  category  from  the  date  of  their  continuous officiation  in  the  promoted  post,  —  vis-à-vis  the  general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general  candidate  at  the  lower  level,  if  he  reaches  the promotional level  later but before the further promotion of the  reserved  candidate  —  he  will  have  to  be  treated  as senior,  at  the promotional level,  to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that  Virpal, (1995) 6 SCC 684  and Ajit Singh,  (1996) 2 SCC 715 have been correctly decided and that  Jagdish Lal, (1997) 6 SCC 538 is not correctly decided. Points 1 and 2 are decided accordingly.”

13

Page 14

18. Constitutional  validity of  Clauses (4A) and (4B) of

Article 16 of  the Constitution was challenged in  M. Nagaraj

And Ors. vs. Union of India And Ors., (2006) 8 SCC 212.  The

question that came up for consideration was whether by virtue

of  impugned  constitutional  amendments,  the  power  of

Parliament was so enlarged as to obliterate any or all of the

constitutional  limitations  and  requirements  upholding  the

validity of the said Articles with certain riders.  On the concept

of ‘catch-up rule’ and consequential seniority, this Court held

as under:-

“79. Reading the above judgments, we are of the view that the concept of “catch-up” rule and “consequential seniority” are  judicially  evolved  concepts  to  control  the  extent  of reservation.  The  source  of  these  concepts  is  in  service jurisprudence.  These  concepts  cannot  be  elevated  to  the status  of  an  axiom  like  secularism,  constitutional sovereignty, etc. It  cannot be said that by insertion of the concept of “consequential seniority” the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that “equality code” under Articles 14, 15 and 16 is violated by deletion of the “catch-up” rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending  power  of  Parliament.  Principles  of  service jurisprudence  are  different  from constitutional  limitations. Therefore,  in our view neither the “catch-up” rule nor the concept of “consequential seniority” is implicit in clauses (1) and  (4)  of  Article  16  as  correctly  held  in  Virpal  Singh Chauhan, (1995) 6 SCC 684.”

14

Page 15

19. In  Nagaraj case  Court  further  considered  two

questions viz.:-  (1)  Whether there is any upper-limit  beyond

which reservation is not permissible? (2) Whether there is any

limit to which seats can be reserved in a particular year; in

other words, the issue is whether the percentage limit applies

only  on  the  total  number  of  posts  in  the  cadre  or  to  the

percentage of posts advertised every year as well?  Answering

the said questions in paras (121) and (123), this Court held as

under:-

“121. The impugned constitutional  amendments by which Articles  16(4-A)  and 16(4-B)  have  been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely,  backwardness  and  inadequacy  of  representation which enables the States to provide for reservation keeping in  mind  the  overall  efficiency  of  the  State  administration under  Article  335.  These  impugned  amendments  are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative  limitation),  the  concept  of  creamy  layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra  Sawhney,  1992  Suppl.  (3)  SCC  217,  the  concept  of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal, (1995) 2 SCC 745.

123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling  reasons,  namely,  backwardness,  inadequacy  of representation  and  overall  administrative  efficiency  before making  provision  for  reservation.  As  stated  above,  the impugned provision is an enabling provision.  The State is not  bound to make reservation for  SCs/STs in matters of

15

Page 16

promotions. However, if they wish to exercise their discretion and  make  such  provision,  the  State  has  to  collect quantifiable  data  showing  backwardness  of  the  class  and inadequacy  of  representation  of  that  class  in  public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

The  Constitution Bench judgment in Nagaraj case (supra) was

subsequently followed in Shiv Nath Prasad vs.  Saran Pal Jeet

Singh Tulsi  And  Ors.,  (2008) 3 SCC 80 and  Chairman And

Managing Director, Central Bank of India And Ors.  vs. Central

Bank of India SC/ST Employees Welfare Association And Ors.,

2015 (1) SCALE 169.

20. While  considering  the  validity  of  Section  3(7)  of

Uttar  Pradesh  Public  Services  (Reservation  for  Scheduled

Castes, Scheduled Tribes and Other Backward Classes) Act,

1994,  and  Rule  8A  of  U.P.  Government  Servants  Seniority

Rules,  1991  which  provided  for  consequential  seniority  in

promotions  given  to  SCs/STs  by  virtue  of  rule  of

reservation/roster and holding that Section 3(7) of the 1994

Act  and Rule  8A of  1991 Rules are  ultra vires as they run

counter to the dictum in  M. Nagaraj’s case in  Uttar Pradesh

16

Page 17

Power Corporation Limited vs. Rajesh Kumar And Ors., (2012) 7

SCC  1,  in  paragraph  (81), this  Court  summarized  the

principles as under:

“(i)  Vesting  of  the  power  by  an  enabling  provision  may  be constitutionally valid and yet “exercise of power” by the State in a given case may be arbitrary, particularly, if the State fails to  identify  and measure  the  backwardness  and inadequacy keeping in mind the efficiency of  service as required under Article 335. (ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects  the  interests  of  every  citizen  of  the  entire  society. They should be harmonized because they are restatements of the principle of equality under Article 14. (iii)  Each  post  gets  marked  for  the  particular  category  of candidates  to  be  appointed  against  it  and  any  subsequent vacancy has to be filled by that category candidate. (iv)  The  appropriate  Government  has  to  apply  the  cadre strength as a unit in the operation of the roster in order to ascertain  whether  a  given  class/group  is  adequately represented in the service. The cadre strength as a unit also ensures that  the upper  ceiling limit  of  50% is not  violated. Further, roster has to be post-specific and not vacancy based. (v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article  16 applies  only  to SCs and STs.  The said clause is carved out of Article 16(4-A).  Therefore,  clause (4-A) will  be governed by the two compelling reasons-“backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If  the  said  two  reasons  do  not  exist,  then  the  enabling provision cannot be enforced. (vi) If the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event,  the  timescale  has  to  be  imposed  in  the  interest  of efficiency in administration as mandated by Article 335. If the timescale  is  not  kept,  then  posts  will  continue  to  remain vacant  for  years  which  would  be  detrimental  to  the administration.  Therefore,  in  each  case,  the  appropriate

17

Page 18

Government  will  now  have  to  introduce  the  duration depending upon the fact situation. (vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation. (viii) The constitutional limitation under Article 335 is relaxed and  not  obliterated.  As  stated  above,  be  it  reservation  or evaluation, excessiveness in either would result in violation of the  constitutional  mandate.  This  exercise,  however,  will depend on the facts of each case. (ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling  provisions  are  required  to  be  made  because  each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. (x)  Article  16(4),  therefore,  creates  a  field  which  enables  a State  to  provide  for  reservation  provided  there  exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.”

21. In  the  light  of  the  above,  we  shall  consider  the

factual matrix and the rival contentions urged and the purport

of Rule 12 of Tamil Nadu Highways Engineering Service Rules.

22. Dr. Rajiv Dhawan, learned Senior Counsel for the

appellants submitted that while it is well-settled law followed

by this Court in a catena of cases  M. Nagaraj And Ors.  Vs.

Union of India & Ors., (2006) 8 SCC 212 that Article 16 (4A) is

18

Page 19

only an enabling provision and does not automatically confer

right on the reserved categories and when no policy decision

was  taken  by  the  State,  Article  16  (4A)  does  not  per  se

applicable  to  Tamil  Nadu  Highways  Engineering  Service

conferring consequential seniority to the Junior Engineers who

obtained  accelerated  promotion  by  following  rule  of

reservation.  It was further submitted that post of Assistant

Engineers to be promoted as ADEs constitute more than 75%

of the cadre strength and by not applying the ‘catch up rule’

among  the  Assistant  Divisional  Engineers  promoted  from

Junior Engineers by following rule of reservation would result

in  patent  discrimination  creating  disharmony  amongst  the

cadre.   Onbehalf  of  the  appellants,  it  was  urged  that  the

implementation  of  the  impugned  judgment  of  the  Division

Bench of the High Court would result in conferring seniority to

a  less  qualified  and  less  experienced  Assistant  Divisional

Engineer appointed from Junior Engineer belonging to SC/ST

category and who stand on a higher footing both on education

and  experience  than  the  Assistant  Divisional  Engineers

belonging to general category would offend the rule of equality.

19

Page 20

23. Per  contra,  learned  Senior  Counsel  Mr.  R.

Thiagarajan and Ms. Kiran Suri appearing for the respondents

contended that  there  is  no  common list  of  seniority  of  the

appellants who are the direct recruit Assistant Engineers and

the respondents who are in the cadre of Junior Engineers and,

therefore, the services of the appellants and the respondents

cannot be compared and the ‘catch up rule’ is not applicable.

The learned Senior Counsel further contended that promotion

given to the respondents were not accelerated promotion but

promotion on account of rule of reservation following Rule 12

of  Tamil  Nadu  Highways  Engineering  Service  Rules.  The

respondents contended that Article 16 (4A) of the Constitution

has been added to protect the consequential seniority arising

out of accelerated promotions and when such amendment is

held to be  valid and not ultra vires the Constitution by this

Court in M. Nagaraj case (supra), the Single Judge ought not

to  have  allowed  the  writ  petitions  and  the  Division  Bench

rightly set aside the  order of the Single Judge.

24. Article 16(4A) of the Constitution is only an enabling

provision which specifically provides that the concerned State

20

Page 21

may  make  any  provision  for  providing  reservation  of

appointments or posts in favour of any backward class citizens

which is not adequately represented in the services under the

State.  Articles 16(4) and 16(4A) have to be read with Article

335 of the Constitution which deal with norms of Scheduled

Castes and Scheduled Tribes to services and posts  and lay

down that the claims of the members of the Scheduled Castes

and the Scheduled Tribes shall  be taken into  consideration

consistently  with  the  maintenance  of  efficiency  of

administration, in the making of appointments to services and

posts in connection with the affairs of the Union or of a State.

In the absence of  any policy decision taken by the State of

Tamil Nadu, Eighty-fifth Amendment per se will not protect the

consequential seniority granted to the respondents who were

promoted  to  the  post  of  Assistant  Divisional  Engineers

following the rule of reservation.

25. The respondents placed heavy reliance upon Rule

12 of the Special Rules Tamil Nadu Engineering Service and

contended that  their  consequential  seniority  is  protected  in

21

Page 22

terms of Rule 12 and under Article 16 (4A) of the Constitution

of India.  Rule 12 reads as under:-

“Rule  12:  Reservation  of  appointments:  The  rule  of reservation of appointments (General Rule 22) shall apply to the appointment of Assistant Divisional Engineers by direct recruitment and recruitment by transfer separately and the appointment of Assistant Engineers by direct recruitment.”

As per Rule 12, reserved category Assistant Engineers and the

reserved  category  Junior  Engineers  secured  promotion  as

Assistant  Divisional  Engineers  much  earlier  to  the  general

category  Assistant  Engineers  and  Junior  Engineers

respectively because of their accelerated promotion following

rule of reservation.   

26. The true legislative intent under Article 16 (4A) of

the Constitution is to enable the State to make provision or

frame rules giving consequential seniority for the accelerated

promotion gained based on the rule of reservation.  Rule 12

evidently does not provide for the consequential seniority for

reserved  category  promotees  at  any  point  of  time.  The

consequential seniority for such reserved category promotees

can be fixed only if there is express provision for such reserved

category promotees in the State rules. In the absence of any

22

Page 23

specific  provision  or  policy  decision  taken  by  the  State

Government for consequential seniority for reserved category

accelerated  promotees,  there  is  no  question  of  automatic

application of Article 16 (4A) of the Constitution.   

27. Respondents  contended  that  in  about  eight

departments of the State, rule of reservation is followed and

one among them is Tamil Nadu Highways Engineering Service

and in terms of Rule 12 practice of following rule of reservation

in  promotion is  in  existence  for  more  than sixty  years  and

therefore the Division Bench rightly extended the protection

under  Article  16(4A)  to  accelerated  promotees.  We  are  not

impressed with the above submission.  In terms of  Rule 12,

reservation  is  followed  only  for  promotion  of  AEs/JEs  as

Assistant Divisional Engineers and Rule 12 does not protect

the  consequential  seniority  to  ADEs  who  were  promoted

following  the  rule.  The  appellants  belonging  to  the  general

category  are  not  questioning  the  accelerated  promotion

granted  to  the  Junior  Engineers/Assistant  Engineers  by

following  rule  of  reservation  but  are  only  seeking  fair

23

Page 24

application of the ‘catch up rule’ in the fixation of seniority  in

the category of ADEs.  

28. Protection of  the consequential  seniority conferred

on the Assistant Engineers appointed as Assistant Divisional

Engineers following rule of reservation during the year 1994

was  held  to  be  unconstitutional  in  the  earlier  round  of

litigation  in  Original  Application  No.2186/1996  dated

29.11.1996  before  the  Tamil  Nadu  Administrative  Tribunal

and the same was confirmed by this Court in Special Leave

Petition (Civil) No.24455/1996 titled Tr. J. Sabapathy And Ors.

vs.  D. Rajendran And Ors. decided on 18.12.1996.  Pursuant

to the same seniority of the Assistant Engineers promoted as

ADEs following rule of reservation had been lowered following

‘catch up rule’.   

29. Now let us consider the crux of the dispute. While

publishing the impugned seniority list dated 29.04.2004, the

‘catch  up  rule’ was  applied  among  the  Assistant  Divisional

Engineers  appointed  from  Assistant  Engineers  and

consequential  seniority  was  not  given  to  SC/ST  Assistant

Divisional Engineers appointed from Assistant Engineers; but

24

Page 25

the ‘catch up rule’ was not applied to the Assistant Divisional

Engineers  promoted  from  Junior  Engineers  and  thus

consequential  seniority  was  given  to  the  SC/ST  Assistant

Divisional Engineers-accelerated promotees.  According to the

State,  ‘catch-up rule’ was applied to the Assistant Divisional

Engineers promoted from Assistant Engineers, since, Assistant

Engineers  were  recruited  by  Tamil  Nadu  Public  Service

Commission  and  at  the  time  of  their  initial  recruitment  as

Assistant Engineers, rule of reservation was strictly followed

by  Tamil  Nadu  Public  Service  Commission.  In  the  counter

affidavit filed before the High Court, the State has taken the

stand that the ‘catch up rule’ was not applied in the case of

JEs promoted as ADEs or regarding their inter se seniority of

Assistant  Engineers and the Junior  Engineers since rule  of

reservation was not followed at the time of their appointment

as Junior Engineers.

30. Mr. Thiagarajan, learned Senior Counsel appearing

for the private respondents submitted that under the Right to

Information  Act,  information  was  sought  for  onbehalf  of

respondent  U.  Palaniappan  and  Government  furnished  the

25

Page 26

Government Orders for temporary panel of Junior Engineers

for promotion as Assistant Divisional Engineers and the said

Government Orders furnished would clearly show that there

is inadequate representation of Scheduled Caste candidates

in  various  category  of  Tamil  Nadu  Highways  Engineering

Service.   It  was  further  submitted that  there  are  only  two

persons belonging to Scheduled Caste community promoted

from the  rank  of  Junior  Engineer  after  17.06.1995  to  the

higher  post  of  Assistant  Divisional  Engineer  and Divisional

Engineer and of these two persons one has been promoted to

the post of Superintending Engineer and no other person  is

available  in  the  entire  department  and  the  inadequacy  of

representation  was  rightly  taken  into  consideration  by  the

Government while implementing the rule of reservation and

consequential seniority.

31. The respondents’ submission regarding inadequacy

of  representation  of  Scheduled  Castes/Scheduled  Tribes  in

the Tamil Nadu Highways Engineering Service by itself is not

sufficient  to  uphold  the  inadequacy  of  representation  of

SCs/STs  in  the  said  service.  Even  after  Eighty-fifth

26

Page 27

Amendment, the State is duty bound to collect data so as to

assess the adequacy of representation of the Scheduled Caste

candidates in the service and based on the same the State

should frame a policy/rules for  consequential  seniority.  No

material is placed on record that the State of Tamil Nadu has

ever undertaken such exercise of collecting data of adequacy

of representation of the SC/ST candidates in the Tamil Nadu

Highways Engineering Service.   In the absence of  any rule

conferring  consequential seniority in the State of Tamil Nadu

‘catch up rule’  is applicable  even amongst Junior Engineers

promoted as ADEs following rule of reservation and also for

their  inter-se seniority amongst AEs promoted as ADEs and

JEs promoted as ADEs following rule of reservation.

32. Respondents  placed  reliance  on  Rule  35  (aa)  of

Tamil  Nadu  State  and  Subordinate  Service  Rules  (General

Rules)  to  contend  that  they  are  entitled  to  consequential

seniority in promotional position. Rule 35 (aa) relied on by the

respondents reads as under:-

“*(aa).  The seniority of a person in a service, class, category or  grade shall  where the normal  method of  recruitment  to that  service,  class,  category  or  grade is  by  more  than one method  of  recruitment,  unless  the  individual  has  been

27

Page 28

reduced to a lower rank as a punishment be determined with reference to the date on which he is appointed to the service, class, category or grade.

Provided  that  where  the  junior  appointed  by  a particular method or recruitment happens to be appointed to a  service,  class,  category  or  grade  earlier  than  the  senior appointed  by  the  same  method  of  recruitment,  the  senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:

Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se seniority….” (* Substituted in G.O. Ms. No.523, P & AR, dated 4.06.1982, w.e.f. 13.07.78)

Rule  35  (aa)  of  Tamil  Nadu State  and  Subordinate  Service

(General) Rules relied upon by the 3rd respondent is applicable

only for normal appointments to any service, class, category or

grade and not reserved category promotions.  Rule 35 (aa) does

not  specifically  provide  for  consequential  seniority  to  the

accelerated promotees who were promoted following the rule of

reservation  and  Rule  35  (aa)  is  of  no  assistance  to  the

contesting respondents.

33. As noticed earlier,  by application of Rule 12, it is

evident that the Assistant Engineers and Junior Engineers of

reserved  category  got  promotion  to  the  post  of  Assistant

Divisional  Engineer  much  earlier  to  the  general  category

candidates.  At this juncture, we may refer to  the comparative

28

Page 29

table of service particulars of some of the appellants promoted

as ADEs from Assistant Engineers/Junior Engineers and the

respondents  in  the  post  of  Assistant  Engineer  and  Junior

Engineer and their position in the cadre of Assistant Divisional

Engineer to appreciate the patent discrimination as under:-

Name and  status in W.P.s.,  and Community

Educational Qualification

Date  of appointment  as A.E./J.E.  and  the name  of  the service  to  which the  appointments initially made

Date  of completion of probation

Sl. No. in the classified list of A.E./J.E. as on

01.01.93

Date of appointment and service as ADE

Sl.  No.  in ADE as on 01.04.2004

S.  Paneer-Selvam,  (Petitioner No. 1  in W.P. 33735 &  34077) - MBC

B.E., (C) 07/05/1980 *

T.N.H.E.S. (* Tamil Nadu  Highways  Engineering Service)

13.11.1984 A.N.

1180 11/02/2002 201

T.G.  Raja-sekaran  (Petitioner No. 2  in W.P. 33735 &  34077)-MBC

B.E.,  (C) 10/11/1978 T.N.H.E.S.

09.11.1981 F.N.

1159 09/09/1999 183

V.  Vivekanandan  (Respondent No. 3 in W.P. 34077) -S.C.

B.E. 30/04/1985 T.N.H.E.S.S. ----------

1666 (19)

16/06/1998 (By recruitment by

transfer by applying Rule 12 of the Tamil

Nadu Highways Engineering Service)

119

V. Appadurai  (Respondent No. 4 in W.P. 34077)  –S.C.

D.C.E. 29/04/1985 T.N.H.E.S.S. ---------

1666 (22)

           29/04/1998  (By  recruitment  by transfer  by  applying Rule 12 of  the Tamil Nadu  Highways Engineering Service)

120

U.Palaniappan  (Respondent No. 3 in W.P. 33735  & 39142) –S.C.

D.C.E 13/04/1987 T.N.H.E.S.S

14.06.1989 1477 12/05/1999  (By recruitment by transfer by applying Rule 12 of the Tamil

Nadu Highways Engineering Service)

150

(As extracted in the judgment of the Single Judge)

29

Page 30

If  we  look  at  the  above  comparative  table  of  the  service

particulars of the appellants and the respondents, it is seen

that  the  contesting  respondents  U.  Palaniappan  joined  the

service almost seven years after the appellants, his seniority is

automatically accelerated at an unprecedented rate and as on

01.04.2004 his seniority rank as ADE is 150 and seniority of

V. Appadurai is 120.  The appellants who are qualified and

seniors  than  the  contesting  respondents  are  placed  much

below in rank in comparison to the person belonging to the

reserved  class  promotees  who  were  promoted  following  the

rule  of  reservation.  It  is  to  be  noted  that  the  private

respondents  in  the  present  case  have  been  promoted

temporarily under Rule 39 (a) and Rule 10 (a) (i) of the General

Rules  with  the  condition  that  their  inclusion  in  the

promotional  order  shall  not  confer  on  them  any  right

whatsoever in the service. Determination of seniority is a vital

aspect  in  the  service  career  of  an employee  and his  future

promotion is dependent on this.  Therefore, determination of

seniority must be based on some principles which are just and

fair.  In  the  absence  of  any  policy  decision  taken  or  rules

30

Page 31

framed  by  the  State  of  Tami  Nadu  regarding  Tamil  Nadu

Highways Engineering Service, accelerated promotion given to

the respondents following rule of reservation in terms of Rule

12 will not give them consequential accelerated seniority.  

34. Appellants  were  appointed as  Assistant  Engineers

directly,  while  the  respondents  were  initially  appointed  as

Junior Engineers.  Hence according to the respondents, there

was  no  common seniority  between  the  Assistant  Engineers

belonging to general category and Junior Engineers belonging

to  reserved  class  and  therefore  promotion  of  JEs  as  ADEs

applying Rule  12 is  of  no relevance  to  the  appellants.  This

contention  does  not  merit  acceptance.  Both  the  Assistant

Engineers  in  the  Tamil  Nadu  Engineering  Service  and  the

Junior Engineers in the Tamil Nadu Engineering Subordinate

Service are feeder categories for filling up higher post of the

Assistant Divisional Engineer in the ratio of 3:1 between them.

Although,  Assistant  Engineers  and  Junior  Engineers  are

presently two distinct categories, prior to 1993, both Assistant

Engineers  and  Junior  Engineers  were  in  one  category  of

service-Tamil  Nadu  Highways  Engineering  Subordinate

31

Page 32

Service.  Only  after  G.O.Ms.No.807,  Public  Works  (HK)

Department dated 24.05.1993, the post of Assistant Engineer

was raised to the level gazetted status and they were brought

in to State Service/Tamil Nadu Highways Engineering Service.

For  promotion,  even though two separate  seniority  lists  are

prepared for each category, they are actually of the same cadre

and the respondents cannot contend that if Junior Engineers

are promoted as ADEs following rule of reservation applying

Rule  12,  it  does  not  affect  the  services  of  the  Assistant

Engineers.   

35. In the absence  of any  provision  for  consequential

seniority in the rules, the ‘catch up rule’ will be applicable and

the  roster-point  reserved  category  promotees  cannot  count

their  seniority in the promoted category from the date of their

promotion and the senior general candidates if  later reach the

promotional  level,  general  candidates  will  regain  their

seniority.  The Division Bench appears to have proceeded on

an erroneous footing that Article 16 (4A) of the Constitution of

India  automatically  gives  the  consequential  seniority  in

addition  to  accelerated  promotion  to  the  roster-point

32

Page 33

promotees and the judgment of the Division Bench cannot be

sustained.

36. In the result, the impugned judgment is set aside

and these appeals are allowed.  State Government-respondent

Nos.  1  and  2  are  directed  to  revise  the  seniority  list  of

Assistant  Divisional  Engineers  applying  the  ‘catch  up  rule’

within four months.  Pursuant to the impugned judgment of

the  Division  Bench  of  Madras  High  Court,  if  any  further

promotion  had  been  granted  to  the  Assistant  Divisional

Engineers  promoted  from  the  rank  of  Junior  Engineers

following rule of reservation with consequential seniority, the

same  shall  be  reversed.  Further  promotion  of  Assistant

Divisional Engineers shall be as per the revised seniority list.

The parties shall bear their own costs.

                                                              ..……………………J.  (T.S. THAKUR)

                                                               ….……………………J.  (R. BANUMATHI)

New Delhi; August 27, 2015  

33