Himachal Pradesh High Court
Service Commission vs State Of Punjab And Others on 29 March, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IIIITHE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 29TH DAY OF MARCH, 2022 BEFORE HON'BLE MR. JUSTICE VIVEK SINGH THAKUR .
CIVIL WRIT PETITION NO. 4052 OF 2019 Between:-
OM PRABHA NEGI WIFE SH. SANJAY KUMAR, RESIDENT OF AKASH DEEP BHAWAN, NORTH OAK, SANJAULI, SHIMLA-6 PRESENTLY SERVING AS SECTION OFFICE, H.P. PUBLIC SERVICE COMMISSION, NIGAM VIHAR, SHIMLA-2 ... PETITIONER (BY MR. SUNIL MOHAN GOEL, ADVOCATE) AND
1. H.P. PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY, NIGAM VIHAR, SHIMLA
2. PRINCIPAL SECRETARY (PERSONNEL) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA
3. TRIBAL DEVELOPMENT DEPARTMENT THROUGH ITS SECRETARY VIJANI HOUSE, CHOTTA SHIMLA, SHIMLA-2
4. HEMANT KUMAR SON OF LATE SH.RAJESHWAR NATH UNDER SECRETARY, H.P. PUBLIC SERVICE COMMISSION, NIGAM VIHAR, SHIMLA-2.
5. SH. TILAK RAJ ATTRI, SON OF SH.P.R.ATTRI, SECTION OFFICER, H.P. PUBLIC SERVICE COMMISSION, NIGAM VIHAR, SHIMLA-2.
6. SHRI JASBIR SINGH, SON OF SHRI HARNAM SINGH, SECTION OFFICER, H.P. PUBLIC SERVICE COMMISSION, NIGAM VIHAR, SHIMLA-2.
7. SH. BUTESHWAR RAM, SON OF LATE SH.BHADROO RAM, SECTION OFFICER, H.P. PUBLIC SERVICE COMMISSION, NIGAM VIHAR, SHIMLA-2.
8. SMT. SOMA SHARMA, WIFE OF SH.AJAY SHARMA, ::: Downloaded on - 29/03/2022 20:14:33 :::CIS SUPERINTENDENT H.P. PUBLIC SERVICE COMMISSION, NIGAM VIHAR, SHIMLA-2 .. RESPONDENTS (MR. VIKRANT THAKUR, ADVOCATE FOR R-1) (MR. RAJU RAM RAHI, DEPUTY ADVOCATE GENERAL FOR R-2 & 3) .
(MR. DILIP SHARMA, SENIOR ADVOCATE WITH MR.MANISH SHARMA ADVOCATE FOR R-4 TO 7) (MR.D.K. KHANNA, ADVOCATE FOR R-8) Judgment reserved on: February, 2022 Date of decision: February, 2022 Whether approved for reporting: Yes This petition, coming on for judgment this day, the court delivered the following:
J U D G M E N T Petitioner, serving as Section Officer in office of respondent No.1 H.P. Public Service Commission (hereinafter to be referred as Commission), has filed the instant petition for quashing Office Memorandum dated 24.9.2019 whereby Tentative Seniority List of Section Officers, as it stood on 1.9.2019, depicting private respondents No. 5 to 7 senior to petitioner has been circulated, and also for quashing of proceedings of Department Promotion Committee (DPC) dated 1.1.2010 (Annexure P-6), 16.11.2011 (Annexure P-8), 10.5.2012 (Annexure P-9), 28.7.2014 (Annexure P-10) recommending promotion of respondents No. 4 to 7 from the post of Senior Assistant to Superintendent Grade-II, DPC proceedings dated 31.3.2015 (Annexure P-7) recommending promotion of respondent No.4 and another from the post of Superintendent Grade II to the post of Section Officer and also DPC proceedings dated 13.2.2007 (Annexure P-11) recommending promotion of respondent No.8 Soma Devi as Senior Assistant against the post meant for Secheduled Caste category.
2 Ground for aforesaid challenge is that in view of pronouncement of the Supreme Court in R.K. Sabharwal vs.State of Punjab and others, reported in (1995(2) SCC 745, as well as instructions dated 20.8.1998 and 19.2.2000 issued by Government of Himachal Pradesh dealing with Reservation Roster to the appointment and promotion, ::: Downloaded on - 29/03/2022 20:14:33 :::CIS various posts of Senior Assistant, Superintendent Grade-II and Section Officers allotted to the reserved category could not have been filled by promoting the candidates from unreserved category but were to be kept vacant till availability of suitable candidate of concerned reserved category and thus, promotion of private respondents belonging to .
General Category against respective reserved posts is illegal and invalid and, therefore, despite being senior to petitioner in the entry grade, private respondents are not entitled for benefit of principle of catch-up Rule propounded by the Supreme Court in Union of India and others vs. Virpal Singh Chauhan reported in (1995)6 SCC 684 and Ajit Singh & others (II) vs. State of Punjab and others reported in (1999)7 SCC 209 and, accordingly, petitioner being appointed as Section Officer on 25.2.2016, prior in time to promotion of respondents No. 4 to 7 to the post of Section Officer, is to be placed senior to them and has to be considered for further promotion to the post of Under Secretary prior to them. Further that on same analogy, respondent No. 8 Soma Sharma, who was promoted as Superintendent Grade II on 1.4.2015 after the date of promotion of petitioner to the said post i.e. Superintendent Grade II on 31.10.2013, is also to be placed below the petitioner in seniority list of Superintendent Grade-II being not entitled for benefit of Principle of catch up Rule.
3 According to petitioner, benefit of principle of catch-up Rule is available only to those employees who are senior in the feeder category to employee promoted by way of accelerated promotion, however, have been promoted against the post available for unreserved category but not on promotion against the post allotted to reserved category. Referring impugned DPC proceedings, Annexure P-6 to Annexure P-11, learned counsel for petitioner has pointed out the recommendation of DPC with respect to employees belonging to unreserved category against the post meant for SC and ST categories and has contended that instead of doing so, the posts meant for SC & ST categories were to be kept vacant and, in such eventuality, private respondents could not have been ::: Downloaded on - 29/03/2022 20:14:33 :::CIS promoted against such post(s) and, therefore, their promotions in pursuant to impugned DPC proceedings deserve to be ignored for considering the petitioner above them in seniority list and consequently also for further promotion in terms of pronouncement of the Supreme Court and instructions issued by State Government, referred supra.
.
4 It has been argued on behalf of petitioner that post meant for reserved category cannot be filled by appointing/promoting candidate from unreserved category without de-reserving the post with prior approval of competent authority, which has not been done in present case and thus, promotions of private respondents made against post meant for reserved category are illegal, and are inconsequential with respect to right of petitioner to consider her senior to them, as they are not entitled for benefit of catch up Rule for their illegal and impermissible promotions made against the post of reserved category.
5 Separate replies on behalf of respondents No. 1, 2 as well as respondents No. 4 to 7 have been filed. Respondent No.8 has adopted the reply filed on behalf of respondents No. 4 to 7, whereas, no independent reply has been filed on behalf of respondent No. 3/respondents/Tribal Development. During hearing instructions dated 26.12.2020, imparted by the Additional Chief Secretary (Personnel) to the Government of HP to learned Additional Advocate General, have also been placed on record along with documents enclosed therewith.
6 As per reply of respondent No.1, placement of Section Officers in Tentative Seniority List has been made in accordance with instructions of Government vide letter No. PER(AP)C-F(1)-1/95 dated 27th May, 1996 by applying the principle of Catch-up as propounded by the Supreme Court in Vir Pal Singh's and Ajit Singh(II)'s cases (referred supra) and promotions under challenge have been recommended and made by applying ratio laid down by the Supreme Court in R.K. Sabharwal's case referred supra. ::: Downloaded on - 29/03/2022 20:14:33 :::CIS 7 It has been stated in reply of respondent No.1 Commission that petitioner was appointed as daily wages clerk on 5.2.1996 and her services were regularized as Clerk on 10.2.1997 and she was placed as Junior Assistant on 10.2.2002 and promoted as Senior Assistant on 13.2.2007. Thereafter, she was promoted as Superintendent Grade-II .
on 31.10.2013 and Section Officer on 26.2.2016 immediately on attainment of eligibility criteria without causing any loss to her at any point of time as she was given due and timely benefit as and when admissible. For promotion from Clerk to Senior Assistant, 10 years service was required and for promotion from Senior Assistant to Superintendent Grade-II, 6 years service was required and petitioner was promoted as Senior Assistant and Superintendent Grade-II immediately after attaining the eligibility criteria by her. Petitioner became eligible for promotion to the post of Section Officer on 26.2.2016, whereas vacancy had arisen on 1.12.2015, but the same was kept vacant till the petitioner attained the eligibility and accordingly she was promoted on the day when she acquired the eligibility. It has also been stated in reply that in the year 2011 cadre strength of Senior Assistant was decreased from 34 to 18 by abolition of 16 posts of Senior Assistant and creation of 8 posts of Clerk and similarly cadre strength of Superintendent Grade-II was decreased to 7 from 11 in the year 2007, by upgrading 4 posts of Superintendent Grade II to the post of Assistant Registrar as a measure personal to the incumbents and as such, on retirement of incumbents posted against those posts, cadre strength of Superintendent Grade-II again became 11 and roster register of these posts remained incomplete because of this increase and decrease in the cadre strength at various times and continuation of some temporary posts.
8 It has been further stated that at the time of recommending promotion of respondent No.8 Soma Devi along with petitioner vide DPC proceedings dated 13.2.2007 18 posts of Senior Assistant were lying vacant and as per reservation roster the roster points No. 15 and 16 were available for the candidates of SC and ST category ::: Downloaded on - 29/03/2022 20:14:33 :::CIS respectively, but Scheduled Caste candidate was not available and, therefore, Soma Devi, who was senior to the petitioner, was promoted by carrying forward the roster point of Scheduled Caste and thus, as other vacant posts of Senior Assistant were there making the vacancy available against roster point of General/Unreserved category, Soma Devi .
was and is to be considered to have been appointed/promoted against the roster point available for General/Unreserved category, but, it has been wrongly mentioned in proceedings that she was promoted against the vacancy available for Schedule Caste reserved category.
9 It has been further stated on behalf of the Commission that cadre strength of Superintendent Grade-II is 11, whereas cadre strength of Section Officers is 7 and therefore, instead of 100 point roster, 13 point model roster for promotion is to be and has been applied in accordance with instructions dated 20.8.1998 and for non-availability of SC/ST candidate against the roster point available for them, promotion has been given to the candidates of unreserved category against next roster point by carrying forward the roster point of reserved category. Further that as per 13 point roster, one roster point each is available to SC and ST category in rotation and therefore, all private respondents cannot occupy single post reserved for SC/ST category as proported by petitioner and therefore, at the most, last candidate can be considered to have been promoted against the post meant for SC/ST category but in view of instructions dated 27.5.1996, after promotion, the said incumbent has also to be placed above the petitioner in seniority list as senior to her in feeder cadre and therefore, it has been contended that no harm has been caused to interest of petitioner on account of DPC proceedings impugned in present petition. 10 During course of hearing, on behalf of respondent No.1 Commission, comparative statement of appointment in the entry grade and thereafter promotion of private respondents viz-a-viz petitioner has been placed on record, which is as under:-
TABLE-A ::: Downloaded on - 29/03/2022 20:14:33 :::CIS Sr Name of Name of Post and Date of Appointment/Promotion No. Officer/Official Clerk/Entry Sr Superintendent Section Under Grade Assistant Grade-II Officer Secretary
1. Shri Hemant 22.01.1987 22.07.1995 02.08.2010 01.04.201 01.11.2018 Sharma (R-4) 5 (retired on 31.08.2020)
2. Shri Tilak Raj 22.02.1987 16..05.1997 16.11.2010 01.09.201 ________ Attri (R-5) 6 .
3. Shri Jasbir 06.03.1987 15.05.1997 11.05.2012 01.04.201 ________ Singh (R-6) 7
4. Shri 24.05.1996 26.05.2006 01.08.2014 01.11.2018 _______ Bhuteshwer Ram (R-7)
5. Ms.Soma 10.02.1997 13.02.2007 01.04.2015 ________ ________ Sharma (R-8)
6. Ms. Om 10.02.1997 13.02.2007 31.10.2013 26.02.201 ________ Prabha Negi 6 (Petitioner)
11 It has also been canvassed on behalf of Commission that posts of Section Officer and Superintendent Grade-II are functional posts and vacancy therein hampers efficiency of the Commission and, therefore, the post cannot be kept vacant and thus, being the functional posts, these posts, for non-availability of eligible SC and ST candidates in the feeder cadre, were filled by the candidates belonging to unreserved category which is permissible under law i.e. instructions circulated by Government of Himachal Pradesh as well as pronouncements of the Supreme Court. 12 On behalf of respondents No 4 to 7, claim of the petitioner has been opposed for non-joinder of necessary parties, not challenging the promotion order of private respondents, not assailing the Final Seniority List of Superintendent Grade-II dated 17.5.2016, delay and latches, and impermissiblity of reservation in promotion in view of pronouncements of the Supreme Court.
13 It has been contended on behalf of private respondents that in impugned DPC proceedings, employees other than private respondents were also recommended for promotion and were promoted in the same fashion and quashing of these DPC proceedings would definitely harm the interest of those persons also but they have not been arrayed as party and thus, petition is bad for non-joinder of necessary parties. Further that though DPC proceedings have been assailed but promotion orders of private ::: Downloaded on - 29/03/2022 20:14:33 :::CIS respondents have not been assailed and in absence thereof, writ petition is not maintainable.
14 It has been contended on behalf of private respondents that petitioner was promoted as Superintendent Grade-II on 31.10.2013 whereas private respondents No. 7 .
and 8 were promoted as Superintendent Grade-II on 1.8.2014 and 1.4.2015 after the promotion of petitioner and thereafter, they were placed senior to petitioner in the seniority list of Superintendent Grade-II circulated on 25.4.2016 which was finalized vide Memorandum dated 17.5.2016 but petitioner did not assail the said Seniority List at any point of time, and therefore, she has no right to assail the Seniority List of Section Officers prepared on the same analogy by applying the same principle and further that DPC proceedings assailed by petitioner were held during the period of 13.2.2007 to 31.3.2015 but petitioner has challenged the same in the year 2019 i.e. after unexplained inordinate delay and for not assailing DPC proceedings within reasonable time, petition deserves to be dismissed on this count also.
15 Referring Indra Sawhney vs. Union of India reported in (1992) Supp. 3 SCC 217; M. Nagraj and others vs. Union of India & others reported in (2006)8 SCC 212; pronouncement dated 18.9.2009 of the Division Bench of this High Court in CWP(T) No. 2628 of 2008; judgment dated 10.1.2017 passed in LPA No. 69 of 2015 whereby the Division Bench of this Court has affirmed the dismissal of CWP 8005 of 2011 passed by learned Single Judge vide order dated 2.4.2015 rejecting claim of petitioner therein for promotion to the post of Senior Assistant in H.P. Vidhan Sabha on the basis of reservation and Instructions No. PER(AP)-C-F(1)-2/2011-Vol.I dated 30.10.2013 whereby it has been communicated that Government is of the opinion that enabling provisions of Constitution (85th Amendment) Act 2001 are not required to be implemented in State, it has been contended that reservation in promotion is not available in Himachal Pradesh. ::: Downloaded on - 29/03/2022 20:14:33 :::CIS 16 It has also been contended on behalf of private respondents that another petition bearing CWPOA No. 4771 of 2020, titled Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh vs. State of HP is also pending adjudication in this regard whereby promotions made by respondent/State after 15.11.1997 by applying reservation .
policy, to various posts have been challenged on the basis of judgment in Indra Sawhney's as well as M. Nagaraj's cases with further prayer to restrain the respondent/State from making any further promotion in violation of provisions of the Constitution read with ratio of law laid down by the Supreme Court.
17 It has been further canvassed on behalf of private respondents that after passing of judgment in M. Nagaraj's case, whereby it was held that power granted to State by enabling provisions of Article 16 (4A) can be exercised by State only after collecting quantifiable data to show backwardness and inadequacy of representation in the services of State, the State Government had issued instructions dated 7.9.2007 making provisions for reservation in promotion along with consequential seniority on promotion against reservation roster in all classes of posts in services of the State in favour of SC and ST. These instructions were assailed in CWP-T No. 2628 of 2008 titled H.P. Samanaya Varg Karamchari Kalayan Mahasangh vs. State of HP and others and were quashed by the Division Bench for want of collection of quantifiable data as directed by Supreme Court in M. Nagaraj' case. Thus, it has been contended that after quashing of instructions dated 7.9.2007, reservation in promotion is not permissible in State of HP. 18 Alternatively, it has been argued that if it is considered that reservation is permissible in promotions also, even then claim of petitioner is not sustainable for the reason that cadre of Superintendent Grade-II and Section Officer consists of 11 and 7 posts respectively and therefore, 13 point roster is applicable to these posts and as explained in Dharam Pal vs. State of HP and another reported in 2009(1) Shim.LC 140, for non-availability of candidate of reserved category, roster point was to be carried ::: Downloaded on - 29/03/2022 20:14:33 :::CIS forward by reflecting it unutilized and post was to be filled by eligible candidate from the next roster point. It has been further contended that in R.K. Sabharwal's case Court was dealing with 100 point roster wherein allocation of posts to all categories i.e. unreserved and reserved, is possible as per percentage of their entitlement but in cadre of less than .
13 posts such allocation of posts is not possible and therefore, to ensure the representation of all categories in rotation in such cadre, 13 point roster has been evolved in dilution of law laid down in R.K. Sabharwal's case and principles of providing reservation against vacancy instead of posts have been provided under 13 Point Roster by applying running roster and as upto 13 point no post/vacancy will be available to ST, therefore, roster is applied running upto roster point 14 so that post in rotation is available for ST category also.
19
Learned counsel for respondent No. 8 has also contended that petition against respondent No.8 is not maintainable as respondent No. 8 has not been yet promoted as Section Officer and thus, her name is not in the tentative list of Section Officers under challenge. Further that DPC proceedings dated 13.2.2007 have been assailed after 12 years which prayer deserves to be rejected on the ground of delay and latches as after such a long period, settled position cannot be unsettled. Further that in terms of judgment in Indra Sawhney's case, after 15.11.1997 no instruction has been issued by Government of Himachal Pradesh providing reservation in promotion except instructions 7.9.2007 which stands set aside by this High Court in judgment dated 18.9.2009 referred in CWP-T No. 2628 of 2008 titled H.P. Samanaya Varg Karamchari Kalayan Mahasangh vs. State of HP and others.
20 In Indra Sawhney's case it was held that Article 16(4) of the Constitution does not provide for reservation in the matter of promotion and thus reservation in promotion was held impermissible, however, five years time was given to Central as well as State Governments to continue reservation in promotions but, in absence of relevant provisions ::: Downloaded on - 29/03/2022 20:14:33 :::CIS in the Constitution, not thereafter. It led to an insertion of Article 16(4A) in the Constitution through Constitution (77th Amendment) Act, 1995 w.e.f. 17.6.1995. 21 In Vir Pal Chauhan's case it was held by Court that benefit of accelerated promotion (on account of reservation in promotion), does not confer consequential .
seniority and principle of Catch up Rule was propounded whereby candidate of unreserved category, senior to the person promoted through accelerated promotion, left behind in the feeder cadre would be entitled to regain seniority on his promotion, but on promotion before further promotion of candidate of reserved category. 22 For enabling the State to grant consequential seniority to employee of reserved category on promotion through reservation, Article 16(4A) was further amended by Constitution (85th Amendment) Act 2001. Prior to that Article 16(4B) was also inserted through Constitution (81st Amendment) Act 2000 enabling the State not to consider the vacancies of reserved categories of previous year(s) to be filled up in any succeeding year(s) together with vacancies of the said year(s) for determining the ceiling of 50% reservation on total number of vacancies of that year.
23 Constitutional validity of Articles 16(4A) and 16(4B) was assailed in M.Nagaraj's case. Upholding the Constitutionality of the Amendments it was clarified by the Supreme Court that for exercising its discretion under Article 16(4A) in addition to the compliance with Article 335 of Constitution of India, the State has to collect quantifiable data showing backwardness of Class and inadequacy of representation of that Class in public employment. However, in Jarnail Singh and others vs. Lachhmi Narain Gupta and others reported in (2018)10 SCC 396 the Supreme Court has held that there is no need for State to collect quantifiable data regarding backwardness of SC and ST as they are identified and grouped as such because of prior discrimination and its continuing ill- effects. However, it was reiterated that State has to collect quantifiable data, before ::: Downloaded on - 29/03/2022 20:14:33 :::CIS making provisions in terms of Article 16(4A), relating to inadequacy of representation of SCs and STs in the services of State if reservation is sought to be provided in promotions. 24 Before judgments in Jarnail Singh's case, State of HP had issued instructions dated 7.9.2007 providing reservation in promotion with consequential seniority, .
but in absence of quantifiable data in terms of M.Nagaraj's case the said instructions were quashed by a Division Bench of this Court in judgment dated 18.9.2009 rendered in CWP(T) No. 2628 of 2008, titled as H.P. Samanaya Varg Karamchari Kalyan Mahasangh vs. State of HP and others. This judgment is stated to have been assailed in Supreme Court which is pending adjudication along with Civil Appeal No. 629 of 2022. 25 In addition to reply filed on behalf of respondents/State, on the basis of instructions, learned Deputy Advocate General has submitted that State Government is providing reservation in promotion to Scheduled Caste and Scheduled Tribe to the non- selection posts and selection posts w.e.f. 27.11.1972 and 20.7.1974 and reservation roster in this regard is being followed in accordance with law laid down by the Supreme Court in R.K. Sabharwal's case by circulating instructions dated 27.5.1996, 27.3.1997 and 20.8.1998 which have been further clarified vide instructions dated 19.2.2000 and 18.11.2004. He has further submitted that aforesaid instructions have never been assailed much less quashed by any Court.
26 He has also referred contents of reply filed on behalf of respondent/State to petition CWPOA No. 4771 of 2020 wherein similar stand, as argued by him, has been taken. He has also submitted that provisions of Article 16(4A) of the Constitution enables the State to make any provision for reservation in the matter of promotion with consequential seniority to any Class or Classes of posts in service under the State in favour of Scheduled Caste and Scheduled Tribe. He has further submitted that on the basis of quantifiable data collected by State showing the overall representation of Scheduled Caste and Scheduled Tribe in services of State and Constitutional provisions ::: Downloaded on - 29/03/2022 20:14:33 :::CIS thereof, a conscience decision has been taken by State that reservation in promotion with consequential seniority to the members of Scheduled Caste and Scheduled Tribe categories as per Constitution (85 th Amendment) Act 2001 may not be granted and as a result thereof, the State of Himachal Pradesh is providing reservation to SC/STs in .
promotion but without consequential seniority. He has further submitted that though earlier decision circulated vide instructions dated 7.9.2007 providing the reservation in promotion with consequential seniority to the members of Scheduled Caste and Scheduled Tribe stands quashed by Division Bench of this Court in judgment referred in CWP(T) No. 2628 of 2008 but instructions dated 27.5.1996, 27.3.1999, 20.8.1998, 31.1.1989 and other similar instructions related to provision of reservation in promotion to SC and ST categories, have neither been assailed nor quashed and/or set aside at any point of time and therefore, communication dated 30.10.2013, relating to implementation of Constitutional (85th Amendment in Himachal Pradesh), is to be read along with those instructions and therefore, intent of State in instructions dated 30.10.2013 is that reservation in promotion with consequential seniority is not required to be provided in Himachal Pradesh, however, reservation in promotion in terms of instructions/decisions circulated earlier is to be continued and as such, State Government is continuing with reservation in promotion, except in promotion from Class-I post to Class-I post, but without consequential seniority.
27 It has been further contended by learned Deputy Advocate General that Instructions dated 7.9.2007 were issued in continuation of instructions dated 31.1.1989 and 20.8.1998 and in supersession of instructions dated 27.5.1996 and 27.3.1997 and therefore, on quashing of instructions dated 7.9.2007, instructions dated 27.5.1996 and 27.3.1997 stand revived and these instructions as well as other instructions issued from time to time including instructions dated 31.1.1989, 20.8.1998 and 18.11.2004 have neither been withdrawn by State nor assailed in Court. Further that though promotions ::: Downloaded on - 29/03/2022 20:14:33 :::CIS made giving reservation in promotions after 15.11.1997 have been assailed in CWPOA No. 4771 of 2020, but, the said petition is yet to be decided wherein, the stand of State, that reservation in promotion is being provided in terms of instructions dated 27.5.1996 and 27.3.1997 in consonance with pronouncement of Supreme Court and provisions of the .
Constitution is pending adjudication.
28 In nutshell, ground reality is that reservation in promotion is being extended in State of H.P. but without consequential seniority in terms of Constitution (85 th Amendment) Act. Matter related to this issue is pending adjudication in CWPOA No. 4771 of 2020 before Division Bench of this Court and in Civil Appeal No. 629 of 2022 along with connect appeals in the Supreme Court. Further, petitioner was provided reservation in promotion on 13.2.2007, 31.10.2013 and 26.2.2016 when she was promoted to the post of Senior Assistant, Superintendent Grade-II and Section Officer. At the time of promotion of petitioner as Superintendent Grade-II, respondents No. 7 and 8 did not raise any objection despite the fact that they were senior to her and she was promoted prior to them. Similarly on promotion of petitioner as Section Officer on 26.2.2016, prior to private respondents No. 5 to 7, they remained silent spectators despite the fact that they were senior to her in feeder cadre and were promoted subsequent to promotion of petitioner. In fact, promotions of petitioner on the basis of reservation was never assailed by private respondents at any point of time.
29 Plea of State, that vide communication dated 30.10.2013 State has decided not to extend benefit of consequential seniority on the basis of accelerated seniority but not to discontinue the reservation in promotion of SC and ST candidates which is being extended in promotion as per instructions including instructions dated 27.5.1996 and 27.3.1997, is pending adjudication in CWPOA No. 4771 of 2020 before Division Bench of the High Court and also in Civil Appeal No. 629 of 2022 pending adjudication in Supreme Court. In Civil Appeal No. 629 of 2022, the Supreme Court vide order dated 28.1.2022, in ::: Downloaded on - 29/03/2022 20:14:33 :::CIS para 23 thereof it has been observed that in Himachal Pradesh, reservation in promotion is being provided by following explanatory notes to the office memorandum issued by Government of India dated 2.7.1997.
30 In these facts and circumstances and also keeping in view the fact that issue .
regarding reservation in promotion in Himachal Pradesh is pending adjudication, as referred supra, and reservation in promotion extended to the petitioner is not under challenge in this petition, I am of considered view that it is neither necessary nor warranted to give any opinion with respect to legality or illegality in providing reservation to petitioner. Principle of delay and latches is applicable to both sides. Otherwise also, present petition can be decided without going into this question.
31. Instructions dated 20.8.1998, which are in force, contain guidelines with respect to implementation of post based reservation roster in terms of judgment of the Supreme Courtin R.K. Sabharwal's case. Appendix to Annexure D provides modal roster for promotion for cadre strength upto 13 posts which is also known as 13 point roster. 32 In Para-6 of Instructions dated 20.08.1998 (hereinafter referred to as 'the instructions'), which is relevant in present case reads as under:-
"6. At the Stage of initial operation of a roster, it will be necessary to adjust the existing appointments in the roster. This will also help in identifying the excesses/shortages, if any in the respective categories in the cadre. This may be done starting from the earliest appointment and making an appropriate remark "utilised by SC/ST/OBC/Gen. etc.", as the case may be against each point in the rosters as explained in the explanatory notes appended to the model rosters. In making these adjustments, appointments of candidates belonging to SCs/STs/OBCs which were made on merit (and not due to reservation) are not to be counted towards reservation so far as direct recruitment is concerned. In other words, they are to be treated as general category appointments."::: Downloaded on - 29/03/2022 20:14:33 :::CIS
33 Clauses 1 and 2 of Initial Operation contained in Annexure A appended with aforesaid Instructions, after explanatory note are also relevant in present case, which read as under:-
"1. As the point of initial operation of the roster, it will be .
necessary to determine the actual representation of the incumbents belonging to different categories in a cadre vis-a-vis the points earmarked for each category viz. SC/ST/OBC and General in the roster. This may be done by plotting the appointments made against each point of roster starting with earliest appointee. Thus, if the earlier appointee in the cadre happens to be a candidate belonging to the Scheduled Castes, against Point NO.1 of the roster, the ramark "utilized by SC" shall be entered. If the next appointee is a general category candidate, the remark "utilized by general category" shall be made against point No.2 and so on and so forth till all appointments are adjusted in the respective rosters. In making these adjustments, SC/ST/OBC candidates on merit, in direct recruitment, shall be treated as general category candidates.
2. After completing the adjustment as indicated above, a tally should be made to determine the actual percentages of representation of appointees belonging to the different categories in the cadre. If there is an excess representation of any of the reserved categories, or if the total representation of the reserved categories exceeds 50%, it shall be adjusted in the future recruitment. Vacancies arising from retirement etc. of candidates belonging to such categories shall be filled by appointment of candidates belonging to the categories to which the relevant roster points, against which the excesses occur, belong."
34 Para-6 of the Instructions provides that in making adjustments, against Roster point, appointments of the candidates belonging to SCs/STs/OBCs, which were made on merit, and not due to reservation, are not to be counted towards reservation so far as "direct recruitment" is concerned. Earlier this principle was not ::: Downloaded on - 29/03/2022 20:14:33 :::CIS applicable to the promotional Roster. However vide communication No.PER(AP)-C-F(II)-3/98 dated 18.11.2004 issued by Department of Personnel AP-III, as circulated, clarifies as under:-
"... ... ...that the Scheduled Caste/Scheduled Tribe candidates appointed by .
promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against un-reserved points.
Further, it has also been clarified that the Scheduled Caste/ Scheduled Tribe candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against un-reserved points will retain their status of Scheduled Caste/Scheduled Tribe and will be eligible to get benefit of reservation in future/further promotions, if any."
35 Instructions also contain guidelines for initial operation of the Roster for determination of actual representation of the incumbents belonging to different categories in a cadre vis-a-vis the points earmarked for each category i.e. SC/ST/OBC and General in the Roster. Appointments made against each point of Roster may be plotted starting with earliest appointee and if the earlier appointee in the cadre happens to be a candidate belonging to Scheduled Caste against Point No.1 of the Roster the remark "utilized by SC" shall be entered and if the next appointee is a General category candidate the remark "utilized by General category" shall be made against Point No.2 and so on and so forth till all appointments are adjusted in the respective Rosters. In making these adjustments, SC/ST/OBC candidates appointed/promoted on merit, shall be treated as General category candidates.
36 After completing the adjustment as indicated above, percentage of representation of appointees belonging to different ::: Downloaded on - 29/03/2022 20:14:33 :::CIS categories in the cadre should be determined and in case there is excess representation of any of reserved category or if total representation of reserved category exceeds 50%, it shall be adjusted in future recruitment.
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37 It is also settled that in 13 Point Roster, Principle of Replacement/Replacement Theory is not applicable rather Roster is to be continued rotating it forever on the basis of vacancies.
38 On the basis of pronouncements of the Supreme Court in R.K. Sabharwal and others vs. State of Punjab and others, (1995) 2 SCC 745; Post Graduate Institute of Medical Education & Rsearch, Chandigarh vs. Faculty Association and others with many other connected matters, (1998) 4 SCC 1; and judgment of Division Bench of this High Court in Dharam Pal vs. State of H.P. and another, 2009 (1) Shim.L.C. 140, and also taking into consideration instructions/guidelines issued by the Government vide communication dated 20.08.1998 and 18.11.2004 following principles for adjudication of present case have emerged:-
A. There is difference between the "post" and the "vacancy":
(i) "Post" denotes the number of posts in the cadre, whether filled or vacant. "Cadre Strength" is equal to the created/existing posts in the cadre.
(ii) "Vacancy" means a vacant post available for appointment, through recruitment/promotion, on creation of new post(s) or retirement, death or resignation or for any other reason removal of the incumbent working on the post.
B. There is difference between "Roster Point" and "position" in the seniority list:
(i) "Roster" denotes division/allotment of posts in the cadre to different categories on the basis of quota of reservation notified ::: Downloaded on - 29/03/2022 20:14:33 :::CIS for each category. In the Roster Register, "Roster Point" reflects availability of post or vacancy for a particular category in the cadre.
(ii) "Seniority list" denotes the position of the incumbent in the cadre assigning his seniority inter se the incumbents posted/appointed .
in the cadre. Seniority list is not to be prepared on the basis of Roster Point, but on the basis of appointment/entry in the cadre subject to other guidelines/instructions related to 'accelerated promotion' and 'principle of catch up'.
C. Accelerated promotion When a person belonging to reserved category, for allotment/availability of post in higher cadre against the Roster Point allotted to such reserved category, is promoted prior to his seniors, in feeder cadre, of Un-Reserved or other category, by giving preferential treatment, then it is accelerated promotion.
D. Principle of Catch up When a person of reserved category for vacancy at a Roster Point reserved to his category gets accelerated promotion prior to his seniors, in feeder cadre, of Un-Reserved/other category and lateron his senior also gets promotion but before further promotion of person promoted by accelerated promotion, then senior, in feeder cadre, shall rank senior to him in promoted cadre also, irrespective of date of his promotion vis-a-vis date of promotion of person promoted by accelerated promotion.
E. Replacement Theory/Principle of Replacement Once all posts are filled as per Roster, then vacancies subsequent thereto are to be filled on the basis of replacement i.e. the post vacated by a person of a particular category i.e. UR/SC/ST/OBC etc., shall be filled from the same category.
F. There are two types of Rosters, one is 100 Point Roster and another is 13 Point Roster.
G. For a cadre of 2-13 posts 13 Point Roster shall be applicable and in such Roster:-
(i) the Roster depicted in the Chart Annexure-D with instructions dated 20.08.1998 is to be read from Entry-1 under the Column ::: Downloaded on - 29/03/2022 20:14:33 :::CIS "Cadre Strength" till the last post and then horizontally till the last entry in the horizontal row i.e. like 'L';
(ii) All the posts of the cadre are to be earmarked for the categories shown under column "Initial Recruitment";
(iii) While initial filling up will be by the earmarked category, the .
replacement against any of the post in the cadre shall be by rotation as shown horizontally. After exhausting last Roster Point, Roster shall be rotated again from Point No.1;
(iv) In case of non-availability of candidate of reserved category against the vacancy available for that category in the Roster Point, the said Roster Point shall be carried forward and in case of promotion such post shall be filled by consuming next Roster Point by promoting a person of the category to which next Roster Point is available. As and when eligible candidate of the category shall be available, the Roster Point for that category shall be exhausted by appointing/promoting such candidate on availability of vacancy; and
(v) The relevant rotation by the indicated reserved category could be skipped over if it leads to more than 50% reservation of reserved category.
H. Replacement theory is applicable to 100-Point Roster as percentage of posts available to each category can easily be calculated and maintained in 100-Point Roster. Whereas, in 13 Point Roster, replacement theory is not applicable as for less number of posts in a cadre, where 13 Point Roster is applicable, percentage of reservation cannot be achieved as per entitlement of the particular category and in case percentage of reserved category is maintained then, percentage of Un-Reserved category shall decrease and in case percentage of Un-Reserved category is maintained, then percentage of reserved category shall decrease. Further all reserved categories may not get adequate chance and, therefore, 13-Point Roster has been evolved by the Government to ensure representation of all categories by rotation. Therefore, in 13-Point Roster, instead of replacement theory, the vacancy is to be filled-in on the basis of ::: Downloaded on - 29/03/2022 20:14:33 :::CIS Roster Point available in 13-Point Roster by applying it in 'L' shape application of Roster as mentioned supra.
I. In case of single cadre post reservation is not permissible. J. In the cadre of 2 and 3 posts, in case one post is occupied by reserved category either Scheduled Caste or Scheduled Tribe, another .
vacancy would not be filled on the basis of reservation to SC or ST candidate despite availability of roster point for such reserved category as it would amount reservation of more than 50% whereas in the cadre of four posts, maximum two posts can be filled on the basis of reservation. However, there shall be no bar on promotion of SC/ST candidate as unreserved candidate, on his own merit, without availing benefit of reservation policy. In case of promotion while applying 13 point roster, vacancy or post is not be carried forward, but, roster point of reservation is to be carried forward.
39 Stand of State of HP is that on the basis of quantifiable data collected by State, consequential benefit of seniority on account of reservation in promotion has been decided not to be extended but reservation in promotion has not been discontinued as there is no binding under Article 16(4A) that reservation in promotion is definitely to be given with consequential seniority. According to respondent/State, there is adequate representation of SC/ST candidate in services of State and thus, benefit of consequential seniority is not warranted to be extended. Even after insertion of Article 16(4A) in the Constitution, it is not binding on the State to give reservation in promotion or reservation in promotion with consequential seniority as Article 16(4A) is only enabling provision. Depending upon the circumstances to be evaluated from quantifiable data, State may or may not give such reservation in promotion. Therefore, claim of petitioner on this count, for consequential seniority after accelerated promotion on account of reservation is liable to be rejected.
40 Right to be considered for appointment/promotion can only be claimed for the post in cadre and percentage of reservation is to be worked out in relation to number of posts which forms the cadre strength. In case of cadre of less than 14, on the basis of ::: Downloaded on - 29/03/2022 20:14:33 :::CIS percentage of reservation, no post for ST shall be available. However, to accommodate, to ensure the representation, the Schedule Tribe candidate 13 point roster has been evolved. 41 In 100 point roster all posts can be allotted to each category unreserved and reserved by earmarking the serial number of posts to specific category according to their .
entitlement as percentage of each category can easily be determined for which it is entitled in 100 point roster and therefore, in the cadre of 100 or more than that, when 100 point roster is applicable, after exhausting the roster, the post vacated by a person is to be filled by candidate of the same category but it is not possible in 13 point roster where upto Serial Number 13, only one seat for reserved category of SC is available at roster point 7 and for providing the post available to ST, 14 th point has been made available in 13 point roster and thereafter, roster is to be rotated again from the beginning on availability of vacancy irrespective of category of employee vacating such post and again roster points 1 to 6 and 8 to 13 are to be made available to unreserved category and roster point 7 th and 14th are to be made available to SC and ST candidate respectively. However, when roster point available to reserved category is carried forward the same shall be exhausted at any point of time when vacancy is available and candidate from reserved category is eligible to be promoted to such post.
42 Mandate of pronouncement in M.Nagaraj and Jarnail Singh's cases is that apart from adequacy of representation, administrative efficiency as defined under Article 335 of the Constitution has also to be taken into consideration at the time of providing reservation in promotion. Therefore, in a small cadre where functioning of Institution/department shall be hampered on keeping the post vacant, it is not advisable to keep the post vacant for waiting an eligible candidate from a particular category. Right to consider for promotion may be a Fundamental Right under Equality Clause but right to be promoted during service career is not a Fundamental Right. It is an instance of service ::: Downloaded on - 29/03/2022 20:14:33 :::CIS which may happen or may not happen depending upon various factors like date of entry in service, number of promotional posts and fulfilling of eligibility criteria etc. 43 Reservation has been provided in the Government jobs for socially and economically backward classes under Articles 15 and 16 of the Constitution of India for .
social justice and equality amongst all sections of the society. However, as provided under Article 335 of the Constitution maintenance of efficiency of administration is also to be taken into consideration at the time of dealing with claim of the members of Scheduled Caste and Scheduled Tribe. Therefore, whenever, in case of promotion especially in small cadre/establishments, against Roster Point available for reserved category, eligible person of that category is not available, then the vacancy available for filling up such Roster Point is not to be kept vacant, but is to be filled by utilizing next Roster Point. However, for ensuring compliance of reservation, for social justice, the Roster Point meant for reserved category is to be carried forward for utilization as and when candidate of that category is available, but subject to availability of vacancy/post, because on keeping the post vacant, particularly in small cadres/establishments, efficiency of administration would definitely be hampered and suffered. Therefore, a post cannot be kept vacant for indefinite period or long period in anticipation of availability of a candidate of a particular category, who is not eligible/available on the date of vacancy or date of filling the said vacancy. Promotion is incident of service, which may occur or may not happen in a service career of a person. It is a settled law that right to consider for promotion against available post, is a fundamental right but promotion is not a fundamental right.
44 Post based replacement cannot be made applicable to a cadre of less than 13 as by such application only 7 th posts shall go to SC and no post shall be available to ST category and post vacated by SC shall be filled by SC candidate and as such, ST candidate shall never get a chance to be promoted against reserved category and he shall only get the chance of promotion by competing with unreserved candidates against the ::: Downloaded on - 29/03/2022 20:14:33 :::CIS post available from roster point 1 to 6 and 8 to 13. Therefore, in 13 point roster the roster register shall never be exhausted but shall be repeated and rotated again and again from 1 to 14 by starting roster point 1 after 14 in every cycle.
45 In present case, keeping in view the cadre strength of Superintendent Grade-
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II and Section Officers, 13 point roster is applicable and in case, an eligible candidate is not available against a particular roster point, the said roster point is to be reflected as unutilized and vacancy is to be filled by exhausting next roster point. 46 On perusal of impugned proceedings of DPC, Annexures P6 to P11, it transpires that at some places erroneously it has been mentioned that post was meant for unreserved or reserved category wherein in 13 point roster, it is the roster point on the basis of which vacancy is to be allotted to a particular category either unreserved or reserved and therefore, proper wording, which should have been used in DPC proceedings, is that roster point available for reserved category (SC/ST) is carried forward and post is filled by exhausting next roster point. As a matter of fact, practically the post has been filled by next roster point. But for wording used in DPC, it sounds that post of reserved category has been consumed by unreserved category, whereas, the fact is that roster point available for reserved category was kept unutilized by carrying forward and next roster point available for unreserved category was utilized by promoting the employee of unreserved category.
47. Even if for argument sake, it is considered that the post would have been kept vacant for ST then also not all but last one would have to be ousted. But on promotion to the same post, even after promotion of petitioner, but before her further promotion, he would be entitled for benefit of catch up Rule being senior to her in the entry cadre and in present case, petitioner was promoted as Superintendent Grade-II on 31.10.2013 prior to respondents No. 7 and 8. But respondents No. 7 and 8 were promoted as Superintendent Grade-II prior to further promotion of petitioner as Section Officer on 26.2.2016 and ::: Downloaded on - 29/03/2022 20:14:33 :::CIS therefore, they have been assigned seniority in the cadre of Superintendent Grade-II above the petitioner, which was never objected by petitioner. Similarly, after promotion of petitioner as Section Officer, by way of accelerated promotion on 26.2.2016, respondents No. 5 to 7 who were seniors to her not only in the previous cadre but also in entry cadre, .
but were left behind due to accelerated promotion of petitioner, have been promoted to the post of Section Officer prior to further promotion of petitioner and therefore, they have rightly been placed above the petitioner in seniority list of Section Officers. 48 Plea of petitioner that respondents were promoted against post meant for reserved category is not tenable and such plea is misconceived on account of faulty recording of minutes noting of DPC proceedings as discussed supra. As a matter of fact, roster point for reserved category was carried forward and private respondents were promoted by exhausting the next roster point which was available for unreserved category. The said exercise was undertaken as no one from reserved category was eligible at the relevant point of time.
49 Promotion of respondents No. 4 to 6 to the post of Superintendent Grade-II was affected during 1.1.2010 to 10.5.2012 as they were eligible to be promoted and post of Superintendent Grade-II was vacant. At that time, petitioner was not eligible though roster point for ST was available. Petitioner gained eligibility to be promoted as Superintendent Grade-II in February 2013 and she was considered and recommended for promotion in DPC proceedings dated 21.8.2013 against the vacancy arisen immediately after acquiring eligibility by her and was promoted on 31.10.2013. Therefore, she has no right to assail the DPC proceedings recommending the private respondents No 4 to 6 and their promotion in consequence thereto as at that time she was not having any right to be considered against the vacancies to which private respondents No 4 to 6 have been promoted for want of eligibility.
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50. So far as respondent No.7 is concerned, he was promoted after petitioner on 28.7.2014, but, before her further promotion and therefore, respondent No.7 being senior in feeder cadre was entitled for benefit of catch up Rule and to be placed above the petitioner in seniority list of Superintendent Grade-II.
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51 Similarly challenge laid to DPC proceedings dated 31.3.2015 recommending the promotion of respondent No.4 Hemant and Raman Kumar to the post of Section Officer is also not tenable as on that day petitioner was not eligible to be promoted as Section Officer for want of eligibility and roster point available for ST was not exhausted but was carried forward which was made available for her promotion keeping the post vacant for two months to wait gaining of eligibility by petitioner. 52 If it is considered that instructions dated 30.10.2013 deals with only issue of consequential seniority in reservation in promotion then also for quashing of instructions dated 7.9.2007, there is no other instructions except 27.5.1996 and 27.3.1997 providing reservation in promotion. Those instructions also contain principle of catch up. Therefore, right of petitioner, as claimed by her, is to be governed by such instructions by taking into consideration the same as a whole but not by ignoring the principle of catch up. As discussed supra, private respondents are entitled for benefit of catch up Rule and thus, prayer of petitioner is not sustainable.
53 Considering hypothetically, on applying directions contained in R.K. Sabharwal's case to the cadre of Superintendent Grade-II and Section Officer in present case, after filling up all posts, running roster shall loose its relevancy after applying it upto 7th and 11th posts as the case may be, and thereafter, posts are to be filled on the basis of replacement theory. In such eventuality, the only 7 th post shall be available to reserved category of Scheduled Caste and on vacation thereof by incumbent appointed against the said post, the same shall be filled by Scheduled Caste candidate and ST shall get no chance ever. Therefore, it has rightly been observed in Dharam Pal's case that R.K. ::: Downloaded on - 29/03/2022 20:14:33 :::CIS Sabharwal's case does not deal with cases of such cadre where13 point roster is made applicable for having cadre from 2 to 13 posts.
54 In view of aforesaid discussion, I do not find any merit in plea raised by petitioner rather I am of the considered opinion that plea on the basis of which petition has .
been preferred is completely misconceived and contrary to law of land. Therefore, petition is dismissed being devoid of any merit.
(Vivek Singh Thakur),
Judge
March 29, 2022
(ms)272727272727
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