Calcutta High Court
Arundhuti Mondal vs Kolkata Municipal Corporation & Ors on 22 September, 2017
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE: HON'BLE MR. JUSTICE HARISH TANDON
W.P. 253 OF 2017
ARUNDHUTI MONDAL
-VS-
KOLKATA MUNICIPAL CORPORATION & ORS.
Mr. Soumya Majumdar,
Mr. Victor Chatterjee.
... for the Petitioner.
Mr. Alok Ghosh,
Mr. Arijit Dey.
... for KMC
C.A.V. On: 18.09.2017
Judgment On: 22.09.2017
The Court:
The Petitioner has challenged provisional gradation list dated
March 22, 2017 on mere apprehension and she can be thrown out of
zone of consideration for promotional post even if it is for reserved
category. The challenge is basically thrown on the plea that there
should be a separate gradation list for a general category, Schedule
Caste and Schedule Tribe category and the other reserved categories
and all such reserved category candidate should not be put into a
single gradation list.
The facts emanate from the respective pleadings of the parties
are that an advertisement was made in the year 2012 by the
Municipal Service Commission to fill up 10 vacancies occurred in the
post of Assistant Analyst in the Kolkata Municipal Corporation. The
said advertisement envisaged, apart from the other, that three
vacancies are reserved for Schedule Caste and Schedule Tribe
candidates. The Petitioner applied as a Schedule Caste candidate and
was adjudged as successful candidate, which would be evident from
the panel prepared by the said Commission and the name of the
Petitioner was at Serial No. 10 therein. The letter of appointment dated
January 27, 2014 was issued to the Petitioner indicating that the said
appointment is provisional and temporary depending upon the
satisfying performance.
Undisputedly, the Petitioner was made permanent on
16.11.2016 to the said post and still continuing in service. One Dipak
Pramanik, Deputy Analyst (Chemistry) attained superannuation on
February 28, 2017 having promoted to such post on 27.05.2011. It is
not in dispute that the said superannuated employee was promoted to
the said post reserved for the Schedule Castes and Schedule Tribes as
per 50 point roster as the deserving candidate under the aforesaid
category was not found. According to the Petitioner, such vacant
promotional post cannot thereafter be filled by the general category
candidates as the vacancy, which arose in the year 2011 is required to
be carried forward and can only be filled by the Schedule Caste
candidates.
Subsequently, a provisional gradation list for the post of
Assistant Analyst cadre is published on March 22, 2017 and the
Petitioner finds her name at Serial No. 8 therein. The solitary
grievance of the Petitioner is that in terms of Rule 10 of the West
Bengal Schedule Castes and Schedule Tribes (Reservation of
Vacancies in Service and Post) Act, 1976, the zone of consideration is
five times the number of the promotional vacancies actually available
at the time of consideration and the Petitioner having placed at Serial
No. 8 in the single / combined gradation list shall not be eligible to
offer her candidature to the promotional post reserved for the
Schedule Caste category.
The Petitioner, thus, contends that the Kolkata Municipal
Corporation must prepare and maintain a separate gradation list for
general category, Schedule Caste and Schedule Tribe categories so as
to bring the reserved category candidates within the normal zone of
promotion.
On the other hand, the Corporation contends that the gradation
/ seniority list is prepared as per the extent regulation of seniority
published on 23.04.1984 and there is no provision under the said
regulations to prepare a separate list based upon the caste of the
candidates i.e. the Schedule Caste and Schedule Tribe. It is, further
contended that Rule 10 of the West Bengal Schedule Castes and
Schedule Tribes (Reservation of Vacancies in Service and Post) Act,
1976, expressly provides the selection against the vacancies reserved
for Schedule Castes and Schedule Tribes to be made among those
Schedule Caste and Schedule Tribe employees who fall within the
normal zone of consideration. The normal zone of consideration in
respect of promotion to any particular post or posts means and
includes the candidates appointed in descending order of seniority,
five times the number of vacancy or vacancies actually available for
filling up by promotion at the time of consideration. It is, thus, stated
that the single gradation list / seniority list has been prepared in
terms of the extent regulations and the Petitioner has been rightly
placed in the 8th position as a Schedule Caste candidate.
Both the Counsels appearing for the respective parties are
uniformly relying upon the various judgments of the Supreme Court
and sought to give their independent interpretation to justify their
contentions raised in the instant Writ Petition.
Before I proceed to deal with some of the judgments which have
a relevancy in the perspective of the core issue involved in the instant
Writ Petition, it would be apposite to quote certain provisions of the
Rules and Regulations issued in this regard. Both the counsels are
relying upon Rule 10 of the West Bengal Schedule Castes and
Schedule Tribes (Reservation of Vacancies in Service and Post) Act,
1976, which was amended from time to time. The amended Rule 10,
which stands now are--
"10. While filling up vacancies reserved for Scheduled Castes and Scheduled Tribes
by promotion, the following procedure shall be followed, namely:-
(a) Selection against vacancies reserved for Scheduled Caste and Scheduled Tribe
employees who fall within the normal zone of consideration.
*Explanation.--Normal zone of consideration in respect of promotion to any particular
post or posts shall consist of such of the employees eligible for promotion to such post or posts
according to the prevailing recruitment rules or procedure as occupy, when arranged in
descending order of the seniority, five times the number of vacancy or vacancies actually
available for filling up by promotion at the time of consideration.";
(b) If candidates from Scheduled Castes and Scheduled Tribes obtain on the basis of
merit with due regard to seniority, on the same basis as other candidates, less number of
vacancies that that reserved for them, the difference shall be made up by selecting
candidates irrespective of merit but who are considered fir for promotion:
"Provided that for the purpose of fitness, all Scheduled Caste and Scheduled Tribe
employees who are within the normal zone of consideration for promotion to higher posts shall
be given one grading higher than the grading assigned to them on the basis of their record of
service excepting in those cases where the highest grading has been assigned on the basis of
record of service."
(c) In the absence of qualified Scheduled Caste or Scheduled Tribe candidate against a
particular reserved vacancy, the reserved vacancy shall be carried forward till the next
reserved vacancy occurs in the fifty-point roster but not beyond.
(d) While vacancies reserved for Scheduled Castes and Scheduled Tribes will continue
to be reserved for the respective community only, a Scheduled Caste employee may also be
considered for appointment against a vacancy reserved for Scheduled Tribes, or vice-versa,
where the appropriate reserved vacancy could not be filled by a Scheduled Tribe or a
Scheduled Caste candidate, as the case may be."
The explanation appended to Clause (a) of the said Rule was
interpreted by the various authorities creating an anomalous situation
and thereafter the Government of West Bengal thought it fit to clarify
and assign the correct interpretation by issuing a Memorandum dated
6th March, 1981. In the said Memorandum, it is categorically observed
that the correct interpretation of the said amendment in relation to
zone of consideration is five times the total number of promotional
vacancies actually available at the time of consideration with the
illustration as under:-
"2. The correct interpretation of this amendment is that the "zone of consideration" is
five times the total number of promotional vacancies actually available at the time of
consideration. For example, let us suppose that there are eight vacancies at the time of
consideration (i.e. at the time the appointing authority or the selection committee is
considering the candidates for promotion, or at the time the vacancies are being reported to
the Public Service Commission). It should be borne in mind that all the vacancies that are
actually available will have to b considered reported simultaneously. It will not be correct to
consider report only some of these available vacancies holding back the remaining vacancies
for future consideration reporting. Let us also assume that the aforesaid eight vacancies
occupy the 7th to the 14th place in the 20 point roster. That would mean that these eight
vacancies include two reserved vacancies - one for Scheduled Tribe candidates (8th in the
roster) and one for Scheduled Caste candidates (13th in the roster). Therefore, according to the
aforesaid rule 10 as it now stands, the zone of consideration will consist of 8 x 5= 40
candidates i.e. the first forty persons in the gradation list."
The Personnel Department of Kolkata Municipal Corporation by
virtue of Circulation 13 of 1984-85 dated 23rd April, 1984 framed a
Regulation regarding determination of seniority of the officers and
employees namely Calcutta Municipal Corporation (Determination of
Seniority) Regulation, 1984. Rule 4 of the Regulations, 1984 provides
the manner of determining the seniority of the direct recruits as
under:-
"Determination of Seniority of direct recruits:
The relative seniority of all persons appointed directly through competitive
examination or interview or after training or otherwise shall be determined by the order of
merit in which they are selected for such appointment on the recommendation of Commission
or other selecting authority, persons appointed on the results of an earlier selection being
senior to those appointed on the results of a subsequent selection;
Provided that where appointments of persons initially made otherwise than in
accordance with the relevant recruitment regulations or in the absence of any
prescribed recruitment regulations are subsequently regularised in consultation with
the Commission, where necessary, seniority of such persons shall be determined
from the very date of appointment.
Provided further that if any person selected for appointment to any post does not join
within 2 (two) months of the offer of appoint his seniority shall count from the date on which
he joins the post unless the appointing authority for reasons to be recorded in writing
condones the delay at the time of joining.
Note:
1) A list of candidates for the purpose of selection for appointment shall be prepared
in all cases by the selecting authority when will be recruitment in a single
processor of selection of more than one person.
2) Where the inter se seniority amongst several persons has not been determined
prior to the coming into force of these regulations, seniority shall, on the coming
into force of these regulations, determined on the basis of actual date of their
joining. Then the date of joining of all such persons is the same, the seniority is to
be determined on the basis of a date of birth, persons retiring early being
adjudged as senior. Then the date of birth is the same, seniority shall be
determined on the basis of total marks obtained by each in the examination,
passing of which is the academic qualification prescribed in R/R for recruitment to
the particular post, cadre or pay-scale / grade.
3) In so far as the determination of relative seniority of persons selected either by the
Commission or by selecting authority for appointment to different posts in the
same pay-scale with different qualifications such as Assistant Engineers in Civil,
Mechanical and determined from the date of joining."
From the conjoined reading of the aforesaid provisions, it is
manifest that the seniority is determined of all such persons appointed
directly through competitive examinations in the order of merit in
which they are selected for such appointment. In view of Rules, 1976
in the event any vacancy arises which is reserved for the Schedule
Caste and Schedule Tribe, in the promotional post, the selection
against the said vacancy shall be made amongst the person holding
the feeder post and belonging to such category provided, they fall
within the normal zone of consideration. Normal zone of consideration
has been explained in the said Rule imbibing within its contour the
employees eligible for such promotion in descending order of seniority,
five times the number of vacancy or vacancies actually available for
filling up the promotional post at the time of consideration. The said
Rule further provides that the regard should be had on the basis of the
merit in relation to seniority and in absence of qualified Schedule
Caste and Schedule Tribe candidates against the said reserved
vacancy it would be carried forward till the next reserved vacancy
occurs as per five point roster.
Clause (d) of Rule 10 expressly postulates that where the
vacancy is reserved for Schedule Caste or Schedule Tribe it would
continue to be reserved for the respective community only and the
reserved category employed may be considered for appointment
against the vacancy reserved for such category if the same could not
be filled by the reserved category candidate.
The Petitioner is apprehensive having placed at Serial No. 8 of
the combined grade / seniority list because of the 50 point roster to be
followed under normal zone of consideration. The sense has developed
in the mind of the Petitioner that the candidates who belong to a
general category and placed above her in the gradation / seniority list
would be brought within the zone of consideration for filling up the
promotional post meant for reserved category.
In case of R.K. Sabharwal & Ors. -Vs- State of Punjab & Ors.
reported in (1995) 2 SCC 745 the challenge was made to reservation
policy of the State of Punjab before the Constitution Bench on two fold
grounds,
firstly, that the object of reservation to provide adequate
representation of the reserved category clauses in service would be
defeated and the requisite percentage would not be achieved if the
reserved category candidates are competing with the general category
candidates; and,
secondly, if the post is earmarked for the Schedule Caste /
Schedule Tribe and other backward classes are filled, it would achieve
the object and purpose for reservation. While determining the same,
the Constitutional Bench held:-
"4. 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 reserved 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 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 citizens which, in the opinion of the State is not
adequately represented in the Services under the State. It is, therefore, incumbent on
the State Government to reach a conclusion 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
percentage 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 appointed/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 operative
the same have to be followed. Despite any number of appointees/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."
It is further observed therein that once the total cadre has full
representation of the Schedule Castes/ Schedule Tribes and the
backward classes as per the reservation policy, any vacancies arising
thereafter in the cadre are to be filled from amongst the category of
person to whom the respective vacancies belong. The Constitutional
Bench ultimately held that the balance between the general and the
reserved category should always be maintained in filling up the posts
and illustratively held:-
"10. 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
Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward
Classes and the remaining 84 posts are filled from amongst the general category.
Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with
the roster by 31-12-1994. Thereafter in the year 1995, 25 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
Scheduled Castes 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 and thereafter the vacancies falling in the cadre are to be 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."
Another Constitutional Bench in case of M. Nagaraj & Ors. -Vs-
Union of India & Ors. reported in (2006) 8 SCC 212 succinctly
considered the purpose and object of the reservation policy introduced
by inserting Article 16(4A) by the 85th Amendment of the Constitution
when the challenge was thrown on its vires having stated to operate
retrospectively. The said Constitution Bench noticed the earlier
Constitution Bench decision rendered in R.K. Sabharwal (Supra) and
approved the replacing theory in the following:-
"96. The Constitution (Eighty-first Amendment) Act, 2000 gives, in substance,
legislative assent to the judgment of this Court in R.K. Sabharwal [(1995) 2 SCC 745 : 1995
SCC (L&S) 548 : (1995) 29 ATC 481] . Once it is held that each point in the roster indicates a
post which on falling vacant has to be filled up by the particular category of candidate to be
appointed against it and any subsequent vacancy has to be filled up by that category
candidate alone then the question of clubbing the unfilled vacancies with current vacancies
does not arise. Therefore, in effect, Article 16(4-B) grants legislative assent to the judgment in
R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . If it is within
the power of the State to make reservation then whether it is made in one selection or
deferred selections, is only a convenient method of implementation as long as it is post based,
subject to replacement theory [Ed.: For the "replacement theory", see R.K. Sabharwal case,
(1995) 2 SCC 745, in general, and para 118, below.] and within the limitations indicated
hereinafter."
The carry forward theory was also accepted and reiterated in the
said decision with the following observations:-
"116. As stated above, Article 14 enables classification. A classification must be
founded on intelligible differentia which distinguishes those that are grouped together from
others. The differentia must have a rational relation to the object sought to be achieved by the
law under challenge. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
(1992) 22 ATC 385] an opinion was expressed by this Court vide para 802 that there is no
constitutional or legal bar to the making of classification. Article 16(4-B) is also an enabling
provision. It seeks to make classification on the basis of the differentia between current
vacancies and carry-forward vacancies. In the case of Article 16(4-B) we must keep in mind
that following the judgment in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 :
(1995) 29 ATC 481] , the concept of post-based roster is introduced. Consequently, specific
slots for OBCs, SCs and STs as well as GC have to be maintained in the roster. For want of a
candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to
be filled only by the specified category [Ed.: It would seem that this is the "replacement
theory".] . Therefore, by Article 16(4-B) a classification is made between current vacancies on
one hand and carry-forward/backlog vacancies on the other hand. Article 16(4-B) is a direct
consequence of the judgment of this Court in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC
(L&S) 548 : (1995) 29 ATC 481] by which the concept of post-based roster is introduced.
Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme
envisaged. Therefore, in our view Articles 16(4), 16(4-A) and 16(4-B) together form part of the
same scheme. As stated above, Articles 16(4-A) and 16(4-B) are both inspired by observations
of the Supreme Court in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
(1992) 22 ATC 385] and R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29
ATC 481] . They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold
the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional
amendments, therefore, do not obliterate equality."
While upholding constitutionality of the Article 16(4A) and
16(4B), it is conclusively held:-
"122. We reiterate that the ceiling limit of 50%, the concept of creamy layer
and the compelling reasons, namely, backwardness, inadequacy of representation
and overall administrative efficiency are all constitutional requirements without
which the structure of equality of opportunity in Article 16 would collapse.
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 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.
124. Subject to the above, we uphold the constitutional validity of the Constitution
(Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000;
the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth
Amendment) Act, 2001."
The judgment rendered by the Constitutional Bench in case of
M. Nagaraj (Supra) is summed up in a recent decision rendered by the
Supreme Court in case of B.K. Pavitra & Ors. -Vs- Union of India &
Ors. reported in (2017) 4 SCC 620 in these words:-
"25. Reference was then made to the Constitution amendment enabling reservation in
promotions and consequential seniority which was upheld in M. Nagaraj [M. Nagaraj v. Union
of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . The said judgment was summarised
as follows: (U.P. Power Corpn. Ltd. case [U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7
SCC 1 : (2012) 2 SCC (L&S) 289] , SCC pp. 36-37, para 81)
"81. From the aforesaid decision in M. Nagaraj case [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and the paragraphs we have quoted
hereinabove, the following principles can be carved out:
(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 harmonised 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 time-scale has to be imposed in the interest of
efficiency in administration as mandated by Article 335. If the time-scale 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 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 optimise 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."
The complete answer can be had from a Co-ordinate Bench
decision from the Subal Sakha Mondal & Ors. -Vs- The State of
West Bengal & Ors. reported in 1996 (1) CLJ 170 in the following:-
"It is really not understandable as to how a person who became a lower division clerk
on 6.2.81, could be promoted to the higher post although he did not complete at least three
years of service before 1.4.81. The petitioners, admittedly, joined the service as lower division
clerks immediately after Shri Somnath Saha. Even in the case of Somnath Saha, the
promotion policy of the State was not attracted nor could he be promoted with effect from
1.4.81. be that as it may, this Court is not concerned with the promotion of Shri Somnath Saha, but the said fact is being mentioned only for the purpose of showing that if a person who entered into service on 6.2.81, could be considered for promotion, it does not stand to any reason how the petitioners who had been appointed on 22.5.81, 6.12.82 and 2.11.81 and thus put in about 14-15 years of service, could not be considered for promotion despite the fact that they belong to reserved category. As indicated hereinbefore while considering the matter relating to the grant of promotion, to reserved category candidates, the cases of general candidates must be excluded. The zone of consideration, in that view of the matter, should be considered and thus considered, it must mean that while following the rule of zone of consideration, the question of consideration of the general candidate while filling up the posts for reserved category candidates are ruled on. The zone of consideration only confines to those persons who belong to the reserved category candidates."
What can be gathered from the enunciation of law in the above report that every State or the Union has to maintain the constitutional obligation in keeping the percentage of reservation so that there would be an adequate representation of the unprivileged class of person for their upliftment. The entire cadre strength should be taken into account to determine whether the reservation up to its required limit has been achieved. While preparing the roster one thing should be ensured that the reservation would remain within the ceiling limit and each post should be earmarked in the category of the cadre and the subsequent vacancy to be filled by that category of candidate alone. Even a carry forward theory cannot be applied to exceed the ceiling limit and if the vacancy arises for a particular category, it can only be filled by the candidates of such category from the single grade / seniority list.
In the instant case Rule 10 of the Rules 1976 is clear and explicit that the selection against the vacancies reserved for Schedule Castes and Schedule Tribes shall be made from among those Schedule Caste and Schedule Tribe employees falling within the normal zone of consideration. There is an express indication that such vacancy should be filled with such category of the employees and the inclusion of the other category is ruled out. The normal zone of consideration explained in the said Rule is to be read ejusdum generis with the purpose and object and any narrow or strict interpretation would whittle out such object. The expression "employees eligible for promotion" appearing in the explanation appended to the said Rule should be read in the perspective of the enabling provision providing the selection against the vacancy amongst those Schedule Caste and Schedule Tribe employees. If the eligibility is enshrined therein, it implies the exclusion of other categories of employees. The explanation in descending order of seniority should be meant and restricted amongst the employees under the Schedule Caste an Schedule Tribe categories and the misconception appearing in the mind of the Petitioner does not appear to be correct and legal. The idea underlying the tenet of Regulation, 1984 in determining the seniority amongst the direct recruits would be totally frustrated if separate seniority list on category wise are prepared. The seniority within the class is maintained in the order of merit in terms of the Rule 4 thereof.
There is no hesitation in my mind that if the promotional post is to be filled by the reserved category, the normal zone of consideration would be amongst those category of employees as it cannot be filled with other category except in case where no deserving candidates are found.
This Court, therefore, does not find that the preparation of a single grade or seniority list affects any right conferred upon the Petitioner nor it brings the Petitioner out of the zone of consideration.
The Writ Petitioner is, thus, dismissed.
However, there shall be no order as to costs.
Upon appropriate application(s) being made, urgent photostat certified copy of this judgment, may be given expeditiously subject to the usual terms and conditions.
(Harish Tandon, J.)